The Louisiana Manifesto of 1768

The Louisiana Manifesto of 1768
y the Treaty of Fountainebleau, signed November 3, 1762, France ceded to Spain all of Louisiana west of the Mississippi River. In the following spring the Treaty of Paris yielded to England all of Louisiana east of the Mississippi. The French diplomats saved New Orleans for Spain by holding it as part of an island cut off from the rest of the East Bank of the Mississippi by the Iberville (Manchac) River, Lake Maurepas, Lake Pontchartrain and Lake Borgne. Spain tarried in taking possession of her Louisiana. Only in March of 1766 did Governor Antonio de Ulloa arrive in New Orleans-but without Spanish troops. When the weary French soldiers in Louisiana declined the invitation to re-enlist for service under Spain, Ulloa refrained from taking formal possession of the colony. Some decisions he did make, some orders he did give, but only through Charles-Philippe Aubry, the senior French military officer in the ceded colony. On the sensitive matters of Louisiana ' s currency and of Spanish mercantile regulations any governor of the new regime could have expected difficulty. Ulloa, scientist by profession and meticulous by training, was unable to impose scientific order on the shifting givens of the political situation. The home government tarried in providing the means for a solid colonial administration in Louisiana. After two and a half years of tension the conseil superieur in New Orleans, stirred by a variety of motives, expelled Governor Ulloa at the end of October 1768. The Superior Council of Louisiana, in its fateful expulsion decree of October 29, 1768, affirmed that the colonists ' lives, fortune and honor were at stake as they sought to retain forever the sweet, inviolable title of French citizenship. ' One is reminded of the Declaration of Independence of 1776 in which the delegates of the Continental Congress pledged their lives, their fortunes and their sacred honor. The AngloAmericans succeeded in attaining their goal, the Louisianans did not. Practically unknown in United States and Latin American historiography, the Louisiana rising has always figured prominently in general histories of Louisiana, and has also been the object of particular studies, for example John Preston Moore ' s monograph Revolt in Louisiana 17661770. 2 But can one go so far as to say that this rising of 1768, although not widely known, was the first revolution of American colonists against a
1. Ordonnance, p. 9. Printed copy in Paris, Archives des Colonies, C 13 A 48, f. 233-244.
2. Baton Rouge, 1976.
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THE POLITICAL SCIENCE REVIEWER
European power? Spanish America had seen some rebellious movements before the struggles of the early 1800s which led to independence. Already in the sixteenth century the encornenderos had reacted violently to the New Laws (1542) of Charles V. Yet the colonials did notreject the royal authority as such or claim to "reassume " a right of self-de termination which belonged to them by natural law. When in sixteenth-century Mexico an heir of Cortez thought of a separate kingdom, he thought in terms of feudal inheritance and of military power rather than in terms of government by consent of the governed. When Spanish-American comuneros resisted royal authority and authorities, their motivation lay in their rights as guaranteed by that same royal authority. It is, of course, beyond the scope of this present study to examine all revolts in Spanish America. Some of them doubtless involved active participants and general population that outnumbered the Louisianians of 1768. The question to be asked, though, is whether those risings aimed at any more than an insistence, backed by violent protest, on rights within the positive law of Spain or on alleviation of economic suffering. For example, in the decade prior to the Louisiana revolution there were vehement protests in Chile that followed upon a 1753 tightening of the royal monopoly; violent agitation broke out again in 1766 for the same reason, but the action was contained by calling up the local militia and by increasing military patrols. 3 These Chilean protests were precisely that-protests not revolutions. It was rather after the Louisiana revolution of 1768-I do not say because of it-that revolutionary ferment increased in Spanish America. It seems therefore that the Louisiana rising of 1768 was the first revolution of American colonists against a European power in which the participants claimed self-determination based upon the natural-law principle of government-by-the-consent-of-the-governed. Antonio de Ulloa had already encountered colonial discontent. In the work he co-authored with Jorge Juan-Noticias secretas de America (1768)-there is a keen description of the mutual hostility between the born-in-America criollo and the born-in-Spain peninsular. 4 Ulloa, then, must not have been astonished when the merchants of New Orleans began to grumble. Experience had prepared him to face discontent in Louisiana ' s Creoles and natives of France who had lived long enough in the colony to feel and "become" Creole. Yet both the Spanish governor in New Orleans and the government ministers in
3. Sergio Villalobos R., "Opposition to Imperial Taxation " in R.A. Humphreys and John Lynch, The Origins of the Latin American Revolutions, 1808-1826 (New York, 1965), 125. 4. Francisco A. Encina, "The Basis of Spanish American Independence, " in Humphreys and Lynch, op. cit., 245.
THE LOUISIANA MANIFESTO OF 1768
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Spain were astonished at the audacity of Louisianians ' declarations and actions. Spain for the first time faced self-determination in its American empire. With or without Ideas It is not the aim of this present article to narrate the revolution, analyze its dynamics or assess its effects. The single purpose is to provide new light on a question that has in the past usually been answered in a quite different way. The focus here is strictly on the revolution ' s ideas: Did the Creoles of colonial Louisiana have political theories? Did the revolutionaries of 1768 have an ideological basis for their actions? Generally, historians have given a negative response or simply ignored the question because there was, they judged, no affirmative answer. Some authors recognize that the Louisianians had " dreams" and "plans " but attribute no political philosophy to them. 5 The insurgents ' motivation has usually been classified in two categories, namely French national sentiment and commercial self-defense. (These are, in fact, two themes that receive emphasis in the decree of October 29, 1768.) In this context the esteemed J.G. Taylor in Louisiana: A Bicentennial History tersely declared: " The Louisiana rebels had no idea of self-government. "6 Yet there are those who say that revolutions simply do not occur without ideas. " No ideas, no revolution, " as Crane Brinton succinctly puts it. 7 Alc&e Fortier (1856-1914), who published his History of Louisiana in 1904, attributed a political philosophy to the revolutionaries of 1768. And presented them as leaders of a united people who would have setup a republic in Louisiana, if that had been possible. The patriotic Creole author did not seem to realize how divided were the sentiments in the colony, nor did he recognize that in all probability the republicans were few indeed. He hailed the Louisiana leaders with filiopietistic fervor: "They gave Louisiana the glory of having thought of establishing a republican form of government in America several years before Jefferson wrote his immortal Declaration of Independence, which gave birth to our United States. " Yet, except for the documentation of the fact that a
5. "La Louisiane fut la premiere colonie americaine qui songea a secouer le joug europeen. ": Charles Gayarre, Histoire de la Louisiane (New Orleans, 1847) II.
"
So the dream of a rudimentary republic began to fade out. " Henry E. Chambers, A History of Louisiana (Chicago and New York, 1925), I 280-283. Garnie William McGinty, A History of Louisiana (New York, 1949/1951), 69. Antoine Bernard, Histoire de la Louisiane (Quebec, 1953), 163. Charles L. Dufour, Ten Flags in the Wind. The Story of Louisiana (New York, 1967), 106. 6. (New York and Nashville, 1976), 21. 7. The Anatomy of Revolution (New York, 1965), 49 of Vintage edition.
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republic was considered by the Louisianians as one of the possibilities for their future, Fortier had no archival sources at his disposal concerning the political ideas. Although later twentieth-century historians have been loath to attribute ideas to the Louisiana revolutionaries of 1768, there were two notable exceptions-Roger P. McCutcheon and Jo Ann Carrigan-who thought that the conspirators were not without political theory and maturity. In his research on colonial Louisiana libraries, McCutcheon found that titles were rarely given in the inventories of estates prepared at the time of succession. Usually general terms like "books " or "libraries" sufficed for the recorders of possessions. However, in an inventory of the Prevost estate prepared in 1769, he met a detailed list and discovered politically interesting titles. Prevost 's " books included Montesquieu, Locke, Voltaire, Rousseau and the like. It is by no means merely fanciful to suppose, as has been done, that the abortive revolution in New Orleans in 1768 may be traced to the same revolutionary writers who influenced the Declaration of Independence nine [sic] years later. "8 As for the Anglo-Americans ' ideas, it is better to look to English sources rather than French. Moreover, when those English sources drew upon continental thinkers it was from fonts created far earlier than the works of Prevost ' s authors. Nonetheless, what McCutcheon showed was that the French colonial Louisianians had access to the multiplying treatises that were bringing Europeans back to the more traditional concept of monarchs that had prevailed prior to the age of absolutism, namely that the monarch is bound by contract. Carrigan, in her extensive commentary on Alcee Fortier ' s History of Louisiana (Reprint edition, Baton Rouge, 1966), developed the role of the Conseil Superieur in colonial Louisiana. In one statement she opened horizons beyond the point she had reached: "An intensive study of the Superior Council throughout its various stages of development might well yield some interesting insights into the evolution of an independent spirit among propertied French Louisianians-not altogether different from the political maturity which developed on a much broader scale in the American colonies. "9 Her expressions are more sober than those of the author she was commenting upon, but she had a historian ' s intuition that ideas were there. Carrigan was on an interesting track. The conseil superieur of Louisiana had a mixture of administrative, legislative and judicial powers. Like a parlement of France it regis8. Roger P. McCutcheon, "Libraries in New Orleans, 1771-1833, " Louisiana Historical Quarterly 20 (1937) 152-158. 9. I, 319.
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tered government decrees, but, unlike the parlements, was not strong enough to refuse the registering of legislation. Within limited areas its members legislated local ordinances. The members were appointed by the royal government in Versailles after receiving recommendations from Louisiana concerning the leading colonists. In general, the council members carried on their work according to French custom law without invocation of theories of government. More than once during the eighteenth century the parletnent of Paris, composed of judges who held their posts by purchase, behaved as though it were composed of those who had been elected by constituents. The conseil superieur of Louisiana contented itself with its very modest self-government duties until 1768. Thus both McCutcheon and Carrigan suggested, albeit without the fervor of Fortier, that Louisiana in its uprising of 1768 may indeed have had ideological currents equivalent to those of the Atlantic Coast colonies, but both were unable at the time they wrote to provide further evidence concerning political thought in Louisiana of the 1760s. If only a document could be found that would include a list of grievances, a declaration of rights and a philosophical justification of the Revolution of October 1768! Aside from the legal ordonnance or decree, the only statement printed by the Louisianians during those eventful days was the 21page Memoire des Habitan[t]s et Negocian[t]s de la Louisianne, sur 1 'Evenement du 29 octobre 1768, but this pamphlet stopped short of expressing basic political theory. While defending their action, the leaders and authors were cautious, and cautioned to be still more cautious, they amended the publication they had already released.
The Memoire
In that first printing of the Memoire 300 copies were produced, but they were recalled after three or four days. Colonists were requested to return copies for destruction. After a sentence insulting to Spain was removed, a second edition was put forth. It was Aubry who persuaded the leaders, for the common good and their own, to suppress the antiSpanish lines, and to adopt, at least in print, a more moderate position.' In private, Aubry with no illusions reported reality to the Minister of Colonies in France: "Although it appears in the arret that it is only the governor who is attacked, I dare assure you that there is a conspiracy against him and his nation in general. " it The first printing of the Memoire, the recalled version, had gone
10. Aubrey to Minister, Dec. 24, 1768, Paris, Archives des Colonies, C 13 A 48, f. 38v. 11. Dec. 20, 1768, Paris, Archives des Colonies, C 13 A 48, f. 32.
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beyond denouncing " M. Ulloa, loaded with our hatred, which he has so justly deserved," and had asked rhetorically: "Cannot his nation reproach him with having failed in the rules of the Spanish policy, which, gentle and insinuating in the beginning, becomes tyrannical only when the yoke has been imposed? " The expurgated edition sneered at Ulloa alone and spared the Spanish nation: " As he is loaded with our hatred, which he has so justly deserved, his nation may reproach him again with having failed in the rules of policy, by forcing us to fear the Spanish government. " 12 The printed Memoire concentrates on commerce, and avoids political philosophy. Spanish trade laws promulgated by Ulloa were destined, it affirmed, to wreck trade with the Indians and thereby bring on the hostility of the tribes. Since Spanish colonies could outdo Louisiana ' s production of timber, tars, cotton and tobacco, the restriction of Louisiana trade to within the Spanish circuit would be fatal to the colony. Analyzing international trade, the memorialists judged that Louisiana was of little or no use to Spain, but of great value to France. With attention focused upon Ulloa, the Memoire presented his policies as arbitrary, as tending to foster the wealth of the few to whom he would grant privileges. His decisions were shown as clumsy, as creating risks and losses for ships at the mouth of the river. Impetuosity and selfinterest, tyranny and vexation, these were listed as hallmarks of Ulloa ' s administrative activity. Only in one passage did the printed Memoire extol political initiative in defense of traditional rights: What would be reprehensible, then, in the decision which the conduct and the vexations of M. Ulloa have made us take? What wrong have we done in shaking off a foreign yoke, which the hand that imposed it rendered still more overwhelming? What wrong have we done, finally, in claiming back our laws, our country, our sovereign, to vow to him the perseverance of our love? Are, then, those praiseworthy attempts without an example in our history? More than one town of France, province even-Quercy, Rouergue, Gascony, Cahors, Montaubanhave they not several times broken the English yoke with fury, or refused their fetters with constancy? In vain did the treaties, the cessions, the orders, even renewed, of our kings attempt sometimes what the fortune of English arms was nevertheless incapable of achieving; and that noble resistance to the will of the natural sovereigns, far
" 12. Alcee Fortier, History of Louisiana, I, 198, 204-205. Jose Melchior de Acosta, Rela" tion diaria ... in M. Serrano y Sanz, Documentos Histdricos de la Florida y la Luisiana (Madrid, 1913), 288. Marc de Villiers du Terrage, Les Dernieres annees de la Louisiane francaise (Paris, [1903]), 274.
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from exciting the sovereigns ' anger, awakened their tenderness, attracted their assistance, and effected a complete deliverance. is This passage is packed with meaning. Every line could be expanded into a paragraph, a page or more. There is here a jejune summary of political thought and historical reflection. Yet it is too jejune to have merited for the 1768 revolutionaries the attribution of ideology. It was too little for historians to go on. Recently, however, a document has come to light-and is now presented in these pages-which provides a well-argued philosophical and legal defense of the colonists ' actions in opposition to Ulloa and in favor of their self-determination. This manifesto seems to have escaped the attention of all authors who have previously studied the Revolution of 14 1768. The document did not go into print. Two manuscript copies have come down to us. One is the French original: " Manifeste des habitants, negociants et colons de la province de la Louisianne au sujet de la revolution qui est arrive[e] le 29 8bre 1768. " The other is a Spanish translation, obviously made for Spanish officials to examine. We know from the subsequent trial of the leaders that there were other writings which aimed at proving the legality of the actions taken. But when Governor Alejandro Reilly arrived to put down the rising, the revolutionaries were doubtless prompt to destroy compromising papers; in word and in action they tried to minimize the events and to minimize their participation in whatever it was that had happened. Furthermore, it is a matter of record that the public executioner, upon orders of O ' Reilly, burned material adjudged seditious. i5 Hence it should not be surprising that we find only this rare specimen, and that we find it in the government ' s own archives. The Memoire that did go into print was, as shown above, a much milder document. From the subsequent interrogation of the leaders we know that a number of secret meetings took place prior to the public meeting of the Superior Council on October 29, 1768. In the lengthy discussions it is probable that the participants brought forth various theoretical and practical positions. However, when the time came for publishing a Memoire, the more pragmatic, the more " diplomatic" posi13. Fortier, History of Louisiana I, 199-200. 14. On March 26, 1976, at the Annual Meeting of the Louisiana Historical Association, I read a paper which presented and analyzed the Manifesto. Dr. Preston Moore, whose volume on the revolution of 1768 was about to go to press, learned of the Manifesto via the LHA program and referred to it in his Revolt in Louisiana, 172. 15. Proces-verbal, Oct. 26, 1769, Archivo General de Indias, Papules de Cuba, 171A, f. 308v.
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tion carried the day. The aim of the memorialists was to win as much support in France as possible; the aim was to offend as few as possible in Europe and in the colony. So the more ideological-minded of the participants obtained the inclusion of only the brief passage cited above. How much more they had to say we can learn from the Manifesto that did not " go into print. (Hereafter in these pages this French manuscript Manifeste" will be referred to as the Manifesto.) The original French text of the Manifesto and the contemporary Spanish translation are found in Legajo 1054 of the Papeles de Cuba in the Archivo General de Indias, Seville, Spain.
THE LOUISIANA MANIFESTO OF 1768 MANIFESTO OF THE PLANTERS, MERCHANTS AND COLONISTS OF THE PROVINCE OF LOUISIANA IN REGARD TO THE REVOLUTION WHICH OCCURRED 29 OCTOBER 1768.*
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The Revolution which occurred in Louisiana in the last days of the month of October of 1768 is not only a proof of the love which the French have ever borne their natural sovereign but also a new example of the law of nations put into practice, law sacred and inviolable, used even in the primordial times of the universe, and transmitted to our time by sure tradition and uninterrupted custom. Without being obliged to have recourse to epochs foreign to our nation, the history of our monarchy by itself furnishes us more than one proof concerning the adherence of the body politic to its members, and of the members to the body politic, as well as of the power of the sovereigns regarding the alienation of these provinces, and of the rights of these provinces when returned to their natural liberty. It was indeed sufficient for the inhabitants of Louisiana to have addressed their petitions and their memoirs to their monarch, sole competent judge whom they should recognize in these present circumstances. For no one will dare to say that they should subject their actions to masters other than him whom birth has given them, and whose rule they claim. But since the colony considers itself to be in need of proving in the eyes of the nations that it has committed nothing that violates the natural laws and the law of nations which they follow s -indeed, that the colony has done no more than conform itself to the examples of many other cities and provinces, which history tells us of-we have judged that we could succeed therein by rendering manifest the principles of those sacred rights upon which the inhabitants based their conduct. 2
*Translation reprinted with the permission of the Director of the Archivo General de Indias, Seville, Spain. 1. A definition of "natural law" as given by Grotius: " Natural Law is the dictate of right reason, which shows that a given act, because it does or does not correspond to rational nature itself, contains moral turpitude or moral obligation, and shows consequently that such " an act is forbidden or commanded by God the author of nature. De lure Belli ac Pacis, I, ' " " 1, x, 1 (Translation of C.E.O N.) The natural law" and the law of nation"-droit des gens-are only partially distinguishable. The second term embraces the applications of natural law to states, and conveys the nuance that this law of nature is recognized by the gens. See also note 7 below. 2. This determination "to prove in the eyes of the nations " the justice of their action calls to mind the statement in the 1776 Declaration of Independence that "a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. "
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What is legally done is well done. Quod jure fit, bene ft. 3 Whatever is legal is good-irrefragable axiom, and drawn from the purest of morals. When then one shall have developed this precept of the law of nature, as ancient as the nations themselves, who indeed could declare themselves openly partisans of a foreign nation, to be preferred to their own, and renounce their being, so to speak, in renouncing voluntarily their natural liberty, their patriotic customs, their civil and national name?4 In order to leave no doubt remaining about the truth of these principles which are going to be developed, it is necessary to say in advance that they are extracted from the writings of Grotius, Puffendorf, Wolff, etc. 5 The works of these philosophers, whose productions do honor to the human mind, are the pure sources where we have drawn our maxims. One learns therein what citizens owe to the fatherland, one learns to respect the laws, to serve prince and country, to live and die virtuously. A nation, according to the accepted definition, is a political body, or a society of men united together to obtain advantages in common and the general security for the united multitude. 6 This is called a civil association. The principal effect of this association is to submit each citizen to the authority of the entire body, in everything that can interest the general welfare, and the exercise of this authority is remitted to the hands either of sovereigns in monarchies or of magistrates in republican states, without, however, the body politic ceasing to be the proprietor. This body is governed, moreover, by laws which are of two different
" 3. "Whatever is done in accord with law is rightly done. (Ius means both law and right.) This tersely phrased axiom is found in slightly longer form in the list of axioms of A. Bar" bosa, Tractatus Varii (Lyon, 1655): " lure suo qui utitul; neminiheft iniuriam. [Who uses a right does no injury thereby to any one.] (Axiom cxxxv, on p. 89). Also (Axiom cxxxvi, on p. 92): "Lege permittente quod fit, dicitur juste et beneferi" [When the law permits what is done, then it is justly and rightly done.] When I consulted the late Otis Robleda, S.J., professor of Roman and Canon Law of the Gregorian University, on this point, he traced the simplified axiom to formulations in the Justinian Code, Digesta (Pandectae), L, 17, 151 and 155. 4. Natural liberty: Various philosophies, in their explanations of the origin of political authority, postulate a moment, either real or hypothetical, in which the individual person ' surrenders a primitive liberty so as to join in the organized society s provision for the common weal. 5. On Grotius, Puffendorf, Wolff and soon to be mentioned Vattel, see below, pp. 273275. 6. In giving this definition of nation, the Manifesto seems to be drawing on Vattel, Le " Droit des Gens, Preliminaires, 1-in Paris 1830 edition, vol. I, p. 37: Les Nations ou ' Etats sontdes corps politiques, des societes d hommes unis ensemble pour procurer leur " salut et leur avantage, a forces reunies. [Nations or states are political bodies, societies of men who have joined together in order to secure by united efforts their well-being and advantage.]
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kinds. Inasmuch as they derive from two different institutions; one kind is called the law of nations, the other is named civil law. As for the latter which are peculiar to the nation which made them, they have only a weak connection with the purpose of this opus. But rather it is regarding the law of nations, and particularly that which the noted Grotius calls natural and internal-it is on this invariable principle that the colony bases itself, and since this law is universal, it is according to this very law that it claims to justify its conduct in the eyes of the universe. That law is defined as universal and unchanging whose maxims all nations follow, and whose principles are founded on the nature of things, and in particular on the nature of man. I say that this law is unchangeable, that is to say that nothing can revoke it or alter it, either in tenor or in extent. ? For, serving as a rule to natural society, it is as stable and constant as nature itself. Moreover, all men are interested in maintaining it in its constancy and stability, for, as Vattel remarks in his treatise on the law of nations, this law so greatly influences the general welfare that, if it were ever permitted to depart from it, no people could assure itself of working solidly towards well-being and survival, no matter what measures it might take. Further, all men have a perfect right that is born with them to everything which tends to this goal. It is a privilege which they bring along in being born. It is the patrimony of nature. It is the right which every nation enjoys and of which it cannot be stripped radically, whether by force or by its consent, or by the introduction of sovereignty itself. It is indeed true that some unfortunate circumstances can suspend the exercise of it, but when the nation is returned to its natural and primitive state and liberty, it is evident that it is at the same time returned to the law of nations, to its primitive right which seems thus to be reborn from ashes. Further, this universal law 's fundamental principle, the one upon which civil association rests, the one which has served as foundation, is the intimate and reciprocal adherence of the body politic to its members, and of the members to the body politic. This principle alone will furnish material for two points which we propose to discuss in this work. 8 As for the first point, we will apply ourselves to proving the obligation to which the entire nation is bound, of preserving its members.
7. Vattel defines the "law of nations " as the application to states of the natural law. Since the latter "is unchangeable, founded as it is on nature, and in particular on the nature of man, it follows therefrom that the law of nations is immutable." Le Droit des Gens, Preliminaire, 8-in Paris 1830 edition, I, 41. (Translation of C.E.O'N.) Provisions there are, therefore, from which nations cannot dispense themselves even by a mutually agreed upon treaty (Ibid., 9). 8. -Here we find the Manifesto' s plan of argument. There are two basic points: I. The duty of the body politic toward citizens. II. The duty of the citizens to preserve the body politic.
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We will develop the rights of the sovereign on this article, and those of the nation itself in regard to the sovereign. As for the second point, it will be useful to sketch the adherence of the members to the general body, the duties of the citizens toward the fatherland, and lastly the rules by which they should regulate their conduct in cases which involve the common cause. But before entering upon the subject matter, there arises a question open to some difficulties, to wit, whether the colonies adhere essentially to the body politic of the nation with respect to the colonists, and whether they are comprised within the domains of the state with respect to the land.' The first point of this question is decided with proof from Grotius, Lib. 2, cap. 9, par. 7, De Jure Belli et Pacis. He proves that, in the case of a people that has done nothing more than change place or region, it does not cease to be still the same people or to form a body with the whole nation. While they keep the same government, the same name and the same laws-although in another hemisphere-there is no room to doubt that the colonies adhere to the body politic through the inhabitants who occupy them. But the question whether the colony is part of the territory or domain of the state in regard to the land seems to be a thornier one, and it is the discovery of America which gave rise to it. At first it would seem that the land belongs to the natives of the region, that the European colonies which have been established there have only a precarious possession which they preserve by force or by friendly relations. Hence it would follow that the lands would not form part of the domain or territory of the state, and that, in disposing of them, the sovereign would be giving away nothing that belongs to the state in full and real proprietorship. But, if one gives attention to the fact that by the law of nature and of nations, all men being under the obligation to cultivate the land, and to draw from it their subsistence, no one can attribute to himself more terrain than he has need of, without usurping the goods of others, one will understand easily that the European nations, too constrained at home, could legitimately appropriate vacant lands which the natives neither needed nor cultivated. They had the right to take possession of lands and to settle them for the reason that the earth does not belong exclusively to this or that people but to the whole human race. The first occupant can by natural law make his own any deserted and abandoned region, which
9. This digression will serve to prove that what is said of the bond between nation and citizens can be affirmed with equal right of the bond between nation and colonists. Thus " Grotius in De lure Belli et Pacis, II, 9, vii: But if a people migrates from its site, whether freely on account of famine or other evils, or forced to do so, as were the Carthaginians in " the Third Punic War, if the self-image remains, it does not cease to be a people. (Translation of C. E. O'N. )
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will become again "no one 's property (res nullius, Justinian says), if ever he himself abandons it. 10 Join to these truths the practical usage in the French and English colonies of buying from the region 's natives the lands needed, whenever already occupied by them, and there will no longer be any room to doubt that the colonies are of the domain and of the territory of the state, subject consequently to the national laws which preserve the territory. Let us move on to discuss the two proposed points, the first of which is to prove the adherence of the body politic to its members, and the attention which it ought to have to preserve them if it does not wish to perish itself." By the act of civil association, of which we spoke above, and which forms the primitive constitution of every nation, of every people, of every empire, each individual has along with the entire body the obligation to seek always the common good, and the body in general is pledged to protect the member, to defend him, and to safeguard the means for him to reach his well-being. The joining together of men, the formation of towns and cities, the establishment of provinces and states, has no other principle, no other origin, no other base. If therefore each one in particular ought to contribute to the conservation of the entire nation, it is just that the nation, on its side, watch attentively for the conservation of its members, who make up its force and its welfare, both because of the reciprocity of the pact of political society which obliges thereto, and because of the fact that in losing 'some one of its members, it is itself weakened and endangered. Consequently the nation cannot abandon a province, a city or even an individual who forms part of it unless necessity constrains it to do so, or the strongest reason for the public safety make of the step an unavoidable requirement. But cannot the absolute power of the sovereign unsettle the political harmony and destroy this mutual commitment? Delicate question, in which we must not confound fact and law. Let us see what in law is known on the subject. First, it is proper to distinguish, with Grotius, whether the sovereign holds the states by election or whether he has obtained them by succes10. Res nu/bus: "property of no one. " Justinian Code, Corpus Iuris Civilas, Institutiones, Libel. Secundus, I, 12: "Quod enim ante nullius est, id ratione occupanti conceditur." [What previously was the property of no one is by reason conceded to the one who oc-
cupies it.] 11. Concluding the digression, the author turns now to the two main points of the argumentation. The lines that follow are a paraphrase of Vattel, Le Droit des Gens, I, ii, 1617-in Paris 1830 edition, I, 60-61.
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sion. 12 In the first case it is indubitable that the prince cannot alienate or dismember any of these provinces, for he is only the usufructuary. This right belongs to the people alone, and it cannot be exercised even by the people, except in some extraordinary cases, without violating the pact of civil association. But in the second case the prince can, according to his will, and without the consent of the state-all of whose rights he unites in his person-dispose of those rights which the state had over the said cities or provinces, provided nonetheless that the fundamental laws of the kingdom do not take this faculty away from him. 13 Without going in search of what has taken place among our neighbors in this regard, let us examine what law has been in use in France for all time, and which must be in use today. It is incontestable that a law as ancient as the kingdom itself limits the power of the sovereign from being able to dismember or to alienate his provinces without the concurrence of the nation or of its representatives. 14 Our history furnishes us several examples of this. Is The testament of Charlemagne was not valid except in so far as it was confirmed by the French lords. It was, however, not an alienation strictly so called he was making of this empire but an equitable division among his three sons. He recognized, though, that the dismemberment of his states was hardly in conformity with the laws of the kingdom; he took care to call the lords together for the reception of his testament and confirmation of the division. And in order to compensate the people in some fashion for the dismemberment he was making of his states and for the breach he was making in their right of union, he left to them the liberty of choosing a master after the death of these princes, provided that
12. Grotius treats this matter in De lure Belli et Pacis, I, III, xi-xii and in II, VI, iii. The second class of states would be those that had surrendered to a conqueror or, to avoid some evil, had given themselves to a prince for protection. Even in this case some conditions may have been included in the submission which would preclude dismemberment. Whatever may be the case of these second-category states, the Manifesto goes on to show that the relationship of the French with their sovereign belongs to the first class. 13. Vattel, although not cited here by name, has a pertinent statement on the basic source and extent of the prince ' s authority; "Le prince tient son autorite de la Nation; it en a precisement autant qu'elle a voulu lui en confier. " Le Droit des Gens, I, iv, 45. A footnote cites Juan de Mariana, De Rege et regis institutione, I, v. 14. The political philosophy of the Manifesto holds that between the universal natural law and the national positive law there is an enduring fundamental law by which the sovereign " is also bound. Cf. Martyn P. Thompson, The History of Fundamental Law in Political Thought from the French Wars of Religion to the American Revolution," American Historical Review 91 (1986) 1103-1128. 15. The use of " we " and " our" in referring to French history does not necessarily mean that the author of the Manifesto is himself French. He is writing in the name of colonists the great majority of whom were French, and all of whom had recognized French sovereignty.
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he be of royal blood. Abrege chronologique de Mr. le President Henaut, 16 annee 806. Louis the Debonair, his son and successor, makes a different division of his states. He gives Aquitaine to Charles his son. 17 The nobles refuse to obey Charles, and take arms to remove themselves from his domination. As is pointed out by Grotius, Lib. 1, Chap. par. 13, although these princes and several others later on bequeathed their states by testament, this disposition was a recommendation for the people rather than a true alienation or a dismemberment done by authority, but under the third dynasty, all these divisions, all these dismemberments ceased. Hugh Capet and his successors, with a prudence from which they never departed, looked always toward reuniting to the crown whatever had been detached, and they succeeded in uniting the entire nation under one prince. We will not speak here of the testament of Charles VI, which has caused so many tears and so much blood to be shed in France. 18 For even without recourse to the laws of the kingdom which rendered null this disposition, it is sufficient to bring forward the insanity into which this prince had fallen. But, if one wishes to have striking examples of the perpetual adherence of the provinces to the entire body of the French monarchy, the treaties of Bretigny between John and Edward III, 19 and of Madrid between Francis I and Charles V leave us nothing more to be desired 20 John, made prisoner in the Battle of Poitiers, cannot obtain
16. Charles-Jean-Francois Henault, Nouvel Abrege Chronologique de 1 'Histoire de France. I consulted the fifth edition, published by Prault in Paris in 1756. Henault (16851770) was " president"-that is to say " presiding magistrate "-of the " Premiere chambre aux enquetes. " The text cited here is found in vol. I (of three), 69. Henault treats the subsequent complex partitions of the empire during the years 835838. The mentioned reaction of the lords of Aquitaine is recounted in the year 838 (Paris, 1756 ed., vol. I, 79). 17. "Charles his son " is Charles the Bald, son of Louis and Judith of Bavaria. 18. Charles VI, who for years had suffered mental illness, disinherited his son, and arranged for the marriage of his daughter with Henry V of England. The Treaty of Troyes (22 May 1420) stipulated that after the death of Charles VI the two kingdoms would be perpetually united under Henry V and his heirs. 19. The Treaty of Bretigny, signed 8 May 1360, which ended the first phase of the Hundred Years War, cut in half the losses of the text signed in London the previous year by Jean le Bon. King Edward III of England, in exchange for renouncing the claim to the throne of France as well as lordship over several counties, received the port of Calais, the duchy of Aquitaine and a number of southern fiefs, among them Poitou, Guyenne, Gascogne, Quercy and Rouergues. Leon Mirot, Manuel de Geographie Historique'do la France, 2 vols. (Paris, 1948) I, 176-177. 20. The Treaty of Madrid, signed 13 January 1526, ended the first war between Francis I and Charles V. Francis, taken prisoner at Pavia, was brought to Madrid, Grave illness and impatience led to his concluding a treaty whereby France ceded Burgundy. Ratification was to be given by the Estates General of France and by the Estates of Burgundy. The first
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his deliverance except on the hardest of conditions. The first treaty, negotiated in England in 1359, by which he alienated several of his provinces, stirs up all France, and the Estates of the Kingdom refuse to accept it. Finally, the next year the Treaty of Bretigny was concluded, by which Edward was placed in possession of Guyenne, etc., but, as the wise Duverge says, 21 the Commissioners of the King reserve to themselves [or: for him] the sovereignty over the states and the subjects in such fashion that Edward was really nothing but an usufructuary. The Commissioners of the King of England offered no opposition to the reserve contained in these clauses even though by the Treaty of Bretigny John was supposed to renounce the said sovereignty, so true is it that by common law the parts of the body politic are inalienable. Francis, made prisoner in like manner at Pavia, ceded to Charles V by the Treaty of Madrid the Duchy of Burgundy in exchange for his deliverance, but the Notables of France, assembled in Coignac, says Meserais, Tome 2, page 458, concluded all with one voice that the authority of the 22 prince did not extend so far as to dismember the crown. The Treaty was declared null, as being contrary to the fundamental laws of the kingdom, and when the Viceroy of Naples came to ask the King for ratification-M. Hainaut says at the year 1526-the response he received was to be brought into the assembly of the deputies of Burgundy,. who declared to His Majesty that they would not consent to the cession which he had made of this duchy, that, never having been subject to any crown other than that of France, they would die in that obedience, and that, if the king abandoned them, they would take up arms and would force themselves to be put in liberty rather than pass from one subjection to
act of Francis after repatriation was to denounce the treaty as void because it was obtained under violence. The Deputies of Burgundy, assembled at Cognac, protested the alienation of Burgundy. At Paris in 1527 the treaty was rejected in the assembly of a lit dejustice. 21. "Le sage Duverge " is doubtless Gilbert Saulnier du Verdier, author of Abrege de I 'histake de France. The work, which was first published in Paris in 1652, went through several editions. I have examined the pertinent pages in Tome II of the 1663 and of the 1673 editions, but the words quoted in the Manifesto are not found there. Du Verdier altered passages in successive editions. The author of the Manifesto may have had in his hands some other edition of this nowadays quite rare opus. 22. Francis I, back in France, affirmed " that the promises made in prison are null, ... that the laws of the Kingdom did not permit him to cut off any part of it. He spoke thus to the ambassadors at his court; he wrote the same to the Pope, to the King of England, and to the Venetians. The Assembly of Notables which he convoked at Cognac answered the same, and the Estates of Burgundy absolutely refused to change lords although in appearance he " urged them to with all his power. Francois Eudes de Mezeray, Abrege Chronologique de ' 1 'Histoire de France, 6 vols. (Amsterdam, 1688) IV, 542. [Translation of C.E.O N.] (The author must have used an in-quarto ediedition I used is in duodecimo. The Manifesto's tion.)
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another (Meserai, Tome 2, page 458). Nothing more laudable and plausible than this hearty resolution of the deputies of Burgundy. The reason given by Grotius is full of good judgment, namely that the members are not for sale, and in order for the alienation of a province to be valid, it must consent thereto, because those who united themselves to form a state have contracted a perpetual and immortal society over which the sovereign presides, and which he ought not break without the consent of the body and of its parts. 23 Besides, he goes on to say, the parts do not depend on the body politic as the members depend on the natural body. The body of which there is question here is of a completely different species. Being formed by the will of men, its authority over men as well as that of the sovereign who exercises it ought to be measured according to this first primitive will. But one cannot presume that this will was such that the body had a right to cut off its parts so as to put them in the power of another. But, someone will say, can the sovereign not securely and without the consent of his subjects dispose of the land of the territory of the province while leaving to the inhabitants the option of withdrawing if the new domination displeases them? Of course not. Because it is as much against the law of nations as against the good of states and against sound policy to make fugitives out of citizens established in their homes, for this would be to put them in the harsh necessity of selling and of alienating their property at a time when they have no desire of doing so. For the territory which belongs in its totality to the state belongs in its parts to individual citizens in full and entire proprietorship. But it is against the law of nature and of nations to expose men to the sad alternative of either recognizing a power which they have not chosen for themselves or of stripping themselves of their patrimonial property, and of leaving the place that saw them born. Calamity and hor rible vexation-that Virgil speaks of in these terms: Nos patriam 24 fugim us. Nos dulces linquim us agros. It must therefore be held as certain, as Vattel remarks, that there is no sovereignty properly so called which is alienable in whole or in part. 25 It
23. Two lines in the middle of page 13 of the French original have been reconstructed with the aid of the Spanish translation. The passage of Grotius referred to is found in De lure Belli et Pads, II, VI, iv. 24. "Nos patriae fines et dulcia linquimus arva, Nospatriam fugimus." Ecloga I, lin. 3-4. [ We are leaving behind the boundaries and sweet fields of our homeland; Our fatherland we are fleeing.] (Translation of C. E. O ' N.) The Non before dulces in the manuscript is obviously an error, where Nos was intended. 25. The Vattel passage referred to is found in Le Droit des Gens, I, v, 69. The historical examples of Rome and Russia are also drawn from Vattel. For Vattel, if the people do not freely submit to a conqueror, the state of war continues in some fashion. However, outside of war, after a transfer ofsovereignty that was an abuse of power, a people may choose to submit in order to avoid worse conditions. The juridical principle is not destroyed by acceptance of the new rule.
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matters little that Roman history furnishes us the example of some princes who bequeathed their provinces to the Roman people. For, besides the fact that the consent of the subjects might have concurred, there is also the fact that force which brings about a de facto domination 26 is incapable of ever destroying their right (de jute) to the contrary. Vis-a-vis so powerful a legatee, had the subject people on the other hand any alternative other than that of submitting? But, to cite valid examples, it would be necessary to bring up the case of a people who had resisted in a similar situation and whose conduct had been universally condemned. Peter Allexiovits made use of an absolute despotism. 27 He made it serve for the reforming of his subjects. He changed everything among them, their customs, even their dress. And what was much more difficult to carry out, he destroyed their superstitions. It is difficult to cite a sovereign who was better obeyed. But, the same author asks, do you think that, if he had dismembered his states in favor of the Sultan or of some other neighboring power, he would have found his subjects so submissive as not to resist, and would the Russians then have been considered as obstinate? What absurdity! What a shocking thought! When therefore a state or a sovereign cedes and alienates a province, it is much less an alienation according to the intention of the giver than a yielding up in which the state or the sovereign turns the province over to itself. The sovereign can indeed divest himself of all the rights he holds over it in favor of another power. But the city or the province which is thus given up and dismembered from the body to which it was united has no obligation to admit the new master. The province is from that very moment returned to itself, and it reenters upon its natural rights, whereby without its participation neither its liberty nor its property can be traded, whatever may be the advantages such a deal could produce. And if it be possible for the province to defend this liberty against him who would want to subject it, the resistance is legitimate. Rouergue, Quercy and several provinces and cities of France have at different times made these glorious efforts. 28 Their zeal, their perseverance, their vigorous defense earned them in the end the advantage of remaining under the lordship of their sovereign and of continuing ever to be united with and joined on to the body of their nation.
26. In the middle of page 15 of the French original a line has been lost. The crease of folding, helped by the ink, tore the paper. 27. Peter Alekseevich (1672.4725) becomes Tsar Peter I "the Great. " 28. During the Hundred Years War, Quercy and Rouergue figured regularly in the treaties between the King of France and the King of England. This paragraph is one of the most cogent in the entire Manifesto.
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If that be the case, someone will say, then no treaty of peace is firm and effective. For there are few in which one power does not cede to another some cities or some provinces. I respond that as far as the state is concerned, the treaty is valid. But in regard to the ceded city or province, it has, as we have said, the right to accept or to refuse, the right to submit or to free itself. It is the outcome of battles which settles such questions, and although the sword can silence the law of nations on this point, the law, although silent, is none the less unchangeable and imprescriptible. The law can be applied at any time, and it is precisely to remove this right that the new masters always call upon the new subjects to take the oath of allegiance-which would be idle and superfluous if the peoples were legitimately bound by cessions and by conquest. From all these principles, linked to the striking examples, it follows incontrovertibly that the enterprise formed by the citizens of Louisiana and carried out last October 29 and the days following in order to withdraw themselves from a foreign domination had nothing in it that was not praiseworthy and legitimate. 29 Ceded to His Catholic Majesty. by a special treaty signed at Fontainebleau in 1762, the colony looked only in sorrow upon the project of its separation from the monarchical body to which it was united. 3 0 However, a respectful deference made it show all possible respect toward the officers of a prince of Bourbon blood. 31 But, without accepting the new domination, the colonists temporized as long as possible until the danger of imminent and certain ruin did not any longer permit keeping to this policy of circumspection. Returned to its natural rights and liberty by the abandonment which its sovereign was making, the colony was without contradiction empowered to accept or to refuse the law which a foreign power offered. This is what results from the principles which were established and proven above. But supposing that the colony was ever of a mind to accept, did it not have the right to make its pact and treaty of submission, and to place therein the type of clause it might have judged fitting to its needs and its welfare? Was it not so authorized by the law of nature and of nations?
29. On 29 October 1768 the Superior Council of Louisiana declared that Ulloa, without having presented credentials to the Council,.. had unlawfully exercised authority. For the public peace the Council ordered him to leave the colony within three days. 30. After the fall of Quebec (1759) the French monarchy realized that it could no longer protect Louisiana against English encroachment or seizure. During France ' s negotiations with England that led to the Treaty of Paris of 1763, French and Spanish diplomats reached an agreement at Fontainebleau (3 November 1762) whereby France ceded to Spain all of Louisiana west of the Mississippi along with New Orleans and the island on which the colonial capital stood. 31. Charles III (1716-1788), who succeeded to the throne of Spain in 1759, was the son of Philip V of Spain and the great-grandson of Louis XIV of France.
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And what was it asking for after all? Nothing more than the preservation of its laws, its privileges, its commerce, that is to say, the preservation of its being. Far from conforming to such legitimate requests, to which it was indispensable to subscribe, the envoy of His Catholic Majesty treated as seditious the representations which were made to him. And, giving the name of crime to requests which the law authorized, he employed the most insulting menaces towards the representatives of the colony. After such irregular conduct on his part, was it then necessary to maintain restraint any longer? And can one attribute this restraint to any motive other than the respect with which our hearts were imbued for the sovereign who had sent him? But, someone will ask, why did you not make him show his credentials? Why did the magistrates of the Council suffer him to trespass upon their rights? Why did you delay so long in sending him away? What connection can all these objections have with the cause of the people? And how could the public discern the goodness and justice of those objections? For, regarding the first question, it is clear that it would have been quite useless to make him show his credentials, which we were not yet prepared to obey, and the exercise of which we soon formed the firm resolution to oppose when we saw him reject with so much haughtiness the very preliminaries of the pact of submission. As for the second question, it must be said that the jurisdiction and the rights of a sovereign tribunal are imprescriptible. 32 To the magistrates of his courts the sovereign has entrusted a portion of his very own royal prerogative. But the royal prerogative is inalienable, immutable, imprescriptible. Therefore, whatever may have been the endeavors of M. Ulloa, one cannot say that he usurped and acquired for himself even the least of the rights of the court [[i.e. Conseil Superieur]], but only that he performed some acts offensive to its authority. Therefore the same court was empowered to hasten or to postpone retribution. Finally, regarding the last point, it is clear that it mattered quite little whether this officer, with or without credentials, remained a long or short time among us, since he was adjudged to have no other rank and no other recognized and admitted power than of simply a private person, and it would matter little that he were still there if his maneuvers had not been tending toward the total ruin of the colony. 33 It is incontestable
32. The author of the Manifesto takes care to show that the Superior Council did not share authority with Spanish Governor-elect Antonio de Ulloa. Nor could any tacit consent introduce legal prescription. 33. The Manifesto' s tone and content change at this point. The presentation becomes more emotional. The attention is on Louisiana and Louisianians, on their loyalty and on its advantages to the mother country.
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that the sojourn of M. Ulloa in this province was marked with no authority. It is the French flag which has always flown over our public square and at the head of our militia. It is the French flag which has always been raised on our ships. It is under this banner and under this standard-as respectable in our eyes as the royal pennant was in the days of our ancestors-that we wish to live and die. Born in happier times and under a rule so sweet and so glorious, is it to be thought that the French settled on the continent have lost anything of the zeal and of the ardor of their ancestors? The noble perseverance of our fathers in times of calamity, their inviolable attachment to the fatherland, their love for their natural sovereign are inviolable laws which it is indispensable for us to follow. Especially in more serene and tranquil days, far from being a burden to the state which was abandoning us, we dare to say that we are useful to it, perhaps even necessary. 34 Our colony is among the destinations of its shipping. Our commerce assures a certain market for its manufacturing, and on the return voyage contributes raw materials. Our activity has always made the name of France known and respected in the upper part of the Mississippi, and in the vast region watered by the Missouri, the Arkansas River, the Red River, etc. Our ardor, in fine, which awaits only the orders of our prince to blaze forth, can at the first signal serve to recover for the state the immense possessions which the fate of arms took away in the last war. 35 Fortunate are we if our sovereign deigns to accept the pledges and the fidelity of a colony which under his empire drew up no complaint except in the moment in which it saw itself about to be separated from that empire! More fortunate still if our feeble efforts could ever contribute to the glory of his reign, to the prosperity of his arms! Our transports of love for his august person hardly permit us to express ourselves on the deplorable state of this colony and the unfortunate extremity to which our city is reduced. From movements of sincerest zeal which make our hearts soar upon most gratifying hope, it is indeed sad to pass to outbursts of keenest sorrow which plunge and submerge our hearts into pits of frightful bitterness. Our possessions have no more value, and our marketplace is almost without specie. The nerve, the bond of commerce is, so to speak, annihilated. It is true that by wisdom and inventiveness we have resolved to remedy that calamity, and every measure has been taken towards that effect. Or at least we are
34. Louisiana, argues the Manifesto, offers the mother country great advantages in the context of mercantilism. 35. The "immense possessions " lost by France in the Seven Years War (1756-1763) included Canada and the part of Louisiana which lay east of the Mississippi River.
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able to assure ourselves that there remains little more that could be done. But who caused us all36 these disasters? Without contradiction it is the Spanish administration. Before the arrival of M. Ulloa the former paper money of the King circulated on the marketplace, and, although it suffered a certain discredit, it facilitated commerce, and was a resilient instrument of business. M. Ulloa decided to have it withdrawn, in spite of the representations that were made to him. 37 He had doubtless heard tell that . poverty brings down power and discourages activity. A shrewd policy, ` tis true, but a false policy, one which is adopted only by barbarians. The usurper of Persia, the famous Tamukulikant3 8 commonly said that he would reduce five families to one lone stew pot, that is to say he would render his subjects so poor that only in common would five families possess that utensil of low cost. Horrible maxim, which contributed only to diminish his glory, and made him detested by the universe. This great reformer M. Ulloa, does he not explain his actions in almost the same way? From the first days of his arrival he said coarse cloth was sufficient for our purposes. It was necessary to give up cloth of Holland. At most there were only four households where wheat bread should be eaten, and he set out to make the others get used to corn tortillas. Finally the paper money was withdrawn from circulation. A sad time which wiped out, so to speak, a total of seven million [livres?] circulating in commerce. But sadder still was the period of the introduction of Spanish paper which M. Ulloa effected by his staff, against every law and every usage of Spain, a currency whose authorization seems uncertain, which, however, we received in good faith, and which is already losing half of its face value. Was it in order to hobble us, and bind us more tightly to the yoke that he introduced this paper? Who doubts it? But did he have orders to act thus? We are morally certain of the contrary-unless he had two sets of orders. Whatever the case, he succeeded perfectly in making us fear all Spanish government. Please God, let this not be aimed at the nation. Every Spaniard who
" " 36. After mentioning the gouvernement espagnol the Manifesto insists that it was the individual Ulloa and his policies that were to blame. Indeed the Manifesto accuses Ulloa of contravening Spanish law and practice. 37. The governments of France and Spain disagreed over the funding of Louisiana for the years 1763, 1764, and 1765. Ulloa tried to solve the problem of devalued paper money by introducing some solid Spanish specie. However, the valuable coins disappeared in accord with " Gresham 's Law. " 38. Timur Lenk, Tamerlane. The notoriously cruel Mongol conqueror from Samarkand cleared Persia of opposition in the 1380s.
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has no insignia of authority can come among us, as we have publicly declared. He will always experience the same marks of respect. The second point which we proposed to discuss has for its object the duties of the citizen toward the fatherland, a rich and precious topic, an inexhaustible treasure for mind and heart. 39 Here it will suffice to skim the surface since every man, born virtuous, can on this subject supply with abundance of feeling for the insufficiency of this presentation. By the term "fatherland " we do not mean only the place which saw us born but also the state of which we are members. The reciprocity of the civil and political commitment obliges every citizen to work for the good of his compatriots, and since this association of which we have spoken above has for its principal object the general conservation and growth through the union of individual forces, he cannot refuse to cooperate therein with all his power, without failing in an obligation all the more sacred as it derives from the law of nature. In being born man contracts this debt which he is obliged to pay every day of his life, and to which he ought to sacrifice his dearest interests. Far from being able to plot or to scheme against the fatherland, he cannot even cravenly abandon it in danger and place himself in safety when he ought to hasten to its aid. In the first case he is a traitor; in the second he is a disgraced deserter whom the state has a right to punish severely. I say more: in an unjust war it is not even then permitted to take up arms against the fatherland. The only option that is left to him is to remain in complete neutrality, if the injustice of the public cause is absolutely evi dent and perfectly demonstrated. For it is not for citizens to judge the body politic, it is rather the body which has the right to judge the citizen. In fine, although vengeance be of natural right, it is not permitted to carry it out against the fatherland, whatever be its errors and even its injustice. 40 It is a terrible crime to plot in the mind, and it is attempted parricide to dare to undertake such an enterprise. In a word, all the actions of the citizens ought to have no other purpose than the service of the state. Placed in unequal stations, endowed with different talents, more or less favored by fortune, men are nonetheless all bound to carry out this service, since all are capable of doing so in proportionate degree by rendering their ability, whatever it be, tributary of the common good. Newton, Descartes, Leibniz served and shed luster upon their fatherland by their works. George d'Amboise, Sully, Colbert by their
39. After lengthy treatment of Point I the Manifesto takes up only now-and quite briefly-Point II. 40. In these few ominous lines the author of the Manifesto carries a germ of Jacobinism (the individual crushed by the majority), of " Decaturism" ( " my country right or wrong"), and totalitarianism (the individual existing for the state).
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application to political life. 41 Vespucci, Le Maire, Cabral, Magellan by their exploits. The farmer, the serf, the merchant, the artisan do likewise. In a word, every act of every station in life can and ought be related to the common good, but the great tribute which all men are capable of giving and which they cannot refuse to give to the fatherland is their life and their blood. When the good of the country demands it, they ought to sacrifice for its preservation the days which this common mother has given them. Striking examples, found in both ancient and modern history, prove these grand truths. Codrus, king of Athens, devotes himself to the city state, and goes in search of his death, upon which, he42 believes according to the oracle, the well-being of this people depends. The consul Brutus ceases being father in order to remain citizen; in his heart duty wins out over nature, and he sacrifices for the saving of Rome his victorious son, the hope and honor of his family. 43 Regulus exposes himself to the most terrible torments rather than endorse a treaty upon which his deliverance depends, but which the hero 44 believes to be disadvantageous to his fatherland. The Roman orator, the learned Tullius, recalled from exile, forgets the ills and outrage which the people and the senate did him, and busies 45 himself only about their welfare. The scion of the Coucis [Guiscard?] banished from Syracuse, comes back at the moment when Suleiman must be combatted. Syracuse is de6 livered, and among its dying defenders Tancred is discovered.4
41. Isaac Newton (1642-1727), mathematician, physicist. Rene Descartes (1596-1650), mathematician, philosopher. G.W. von Leibniz (1646-1716), mathematician and philosopher. George d 'Amboise (1460-1510), minister under Louis XII. Maximilien de Bethune, duc de Sully (1560-1641), minister under Henri IV. Jean-Baptiste Colbert (1619-1683), minister under Louis XIV. Amerigo Vespucci (1451-4512), explorer and mapmaker. Jakob Le Maire (1585-1616), explorer. Pedro Alvarez Cabral (1460-1526?), explorer who claimed Brazil for Portugal. Ferdinand Magellan (1480?-1521), explorer. 42. Codros: Last of legendary kings of Athens (eleventh century B.C.). An oracle hadpromised victory to the Dorians on condition that the King of Athens not be killed. Cod ros, disguised as a farmer, went to his death at the hands of a Dorian soldier. The enemy fled. Athens was saved. 43. Brutus, sixth-century B.C. consul of Rome. At the beginning of the republic he sentenced his own two sons to death as traitors after they had conspired to restore the monarchy. 44. Marcus Atilius Regulus, Roman consul. Captured by the Carthaginians in 255 B.C., he was sent with an embassy to Rome. Judging the peace terms disadvantageous, he spoke against them; then he returned with the Carthaginian legates to captivity, torture and death. 45. Marcus Tullius Cicero (106-43 B.C.). ' 46. Tancred: fictional hero in Voltaire s tragedy Tancrede (1760), set in eleventh-century Sicily.
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Twelve hundred brave Swiss attack the army of Sigismond, sixty thousand strong. 4 ' At St. Jacques near Basel all perished, save twelve, but their fatherland is guaranteed against a ruinous invasion, and the enemy whom they fought cannot help giving them praise. The twelve who escaped, on the contrary, are regarded by their compatriots as cowards who preferred a shameful life to the glory of dying for their country. Vicinkelvic [Winkelried], a gentleman of Underval [Unterwald], in the battle of Sempach, seeing that the Swiss cannot break through the heavily armed Austrians, whose tightly drawn up battalion presents a front covered with iron and bristling with lances- " My friends, " he says, " I am going to give my life to procure victory for you. Only this: I commend my family to you. " He advances at that very moment at the head of his troop, arranged in a triangle, and, grabbing as many pikes as he can seize, he opens a passage through that terrifying battalion for those who are following him. He falls, pierced with a thousand cuts, but the Austrians, thrown into disorder and encumbered by their armor, are beaten. The Swiss, inferior in number and poorly armed, remain victorious. The name of this hero, dear to the nation, will be respected as long 48 as the nation endures. One cannot give praise too great or honor too high to these generous citizens who, not content with not failing in their common duties toward the fatherland, are still further capable of attempting noble deeds and of making the greatest sacrifices for it. But for the same reason there is no mark of infamy sufficiently branding to lay upon those who would be capable of harming the fatherland. 49 " He who renders himself guilty of so horrible and so detestable a crime," says Vattel, Liv. 1, chap. 11, "breaks the most sacred commitments, and falls into the darkest perfidy, since they abuse the confidence of their fellow citizens, and treat as enemies those who had a right to expect from them only help and service. One finds, " he continues, " traitors to the fatherland only among men who are moved solely by the grossest of interests, who look out immediately for themselves alone and
47. Sigismund of Tirol (1426-1496). Saint-Jacques: In August of 1444 at Sankt Jacob an der Birs the Swiss held back an army of French mercenaries whom the Hapsburg Emperor Frederick III had obtained from Charles VII of France. The Swiss, outnumbered ten to one, resisted until only a few wounded survivors remained. The French mercenaries withdrew. 48. Arnold Winkelried, according to tradition, led the Swiss charge against the Austrians at the Battle of Sempach (July 1386), and died in the fashion described by the Manifesto. The victory assured Swiss independence. These two Swiss historical examples are found in Vattel, Le Droit des Gens: Battle of Sankt Jakob-I, xv, 190. Winkelried-I, xi, 124. 49. Therefore, runs the argument, let no Louisianian or Frenchman of France take up arms against the Louisiana colonists.
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whose heart is incapable of any sentiment of affection for others. So they are justly detested by everybody and regarded as the most infamous of scoundrels. "50 To what dishonor, therefore, to what withering scorn would every subject expose himself who would not be sufficiently attached to his prince and to his fatherland to enter upon the common cause, and to contribute with all his power to make it succeed? What risk would not any citizen incur who would unite with a foreign nation, and would carry madness so far as to take up arms in its favor to force his compatriots to receive a law which, returned to their natural liberty, they are in their right to refuse? Let us draw the curtain over these hideous topics which, properly speaking, are only phantoms. Concerned only with the general welfare of this colony being born anew, let us give ourselves to the flattering hope of still being the subjects of Louis the Well Beloved. How can one imagine that our august prince, who has ever shown himself the father of his peoples and who makes his own happiness consist of their felicity, will reject devotion as sincere as ours? Given back to itself by the Cession and returned to its natural liberty, the colony had the right to choose a master for itself, but it did not take hold of this right except to do homage to its true sovereign and to cry out for his rule. The unanimity of our intentions in that regard, the firm resolve we have to make the greatest sacrifices for that purpose, the legitimacy of our cause, everything, in fine, assures us and carries us forward on our way toward that result. Everything in our conduct is legitimate. Everything has been carried out with legal procedure. Everything, in fine, is' authentic proof of our an zeal, of our love, of our respect for our king.
50. This quotation from Vattel is underlined in the original manuscript of the Manifesto. 51. Conclusion. The Cession of 1762 brought into question the pact of civil association. However, the sovereign, as shown above, cannot alienate a part of the body politic without the consent of the citizens. So the colonists had been returned to the philosophical state of "natural liberty. " The colonists have decided to choose neither autonomy nor foreign ruler. Rather their choice is to remain attached to Louis XV, the Well Beloved, and to the body politic of the French monarchy. Thus, after putting forward its legal rights in the context of natural and international law, the first American revolutionary "Declaration" chooses not independence but rather continued association in dependence.
THE LOUISIANA MANIFESTO OF 1768 Analysis of the Manifesto
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The Manifesto shows from the very start a lively, clearly understood patriotism. The French of the eighteenth century maintained a loyalty to the person of the King rather than to the abstraction of the patrie. They were subjects of the monarch rather than citizens of a state. It was the monarchy which had developed a centralized government and extended the boundaries of France. It was the monarchy that assured order and rights within the society whose component categories in turn supported the monarchy. Various procedures had evolved which exercised control on the so-called absolute monarchy. The monarch and his ministers had to govern according to basic laws and regional customs. Moreover, the fundamental medieval concept that the monarch ' s authority was derived from the people had, at a certain level of thought, withstood the sixteenth-century revival of ancient Roman law which had exalted the will of the prince. The Louisianians ' Manifesto shows that in the tense weeks and months following October 29, 1768, they discussed the philosophical ideas and the historical applications that were part of the mainstream of Europe' s political culture, This document is one particular affirmation of the natural-law thesis that government is derived from the consent of the governed. Philosophy Philosophers invoked by name to sustain "the truth of these principles " are Hugo Grotius, Samuel Pufendorf, Emmerich von Vattel and Christian Wolff, Hugo Grotius (1583-1645) continued the Scholastic philosophy tradition that reached back through centuries of European thought. He developed his particular version of natural-law thought in the context of Protestant northern Europe. He defined natural law as the " dictate of right reason which points out that an act, according as it is or is not in conformity with rational [and social] nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined by the author of nature, God. " 16 A faithful believer himself, Grotius insisted that even one who did not believe in God should accept the natural law. God, is, God cannot not be, but even if one imagined that He did not exist, the natural law would not therefore go away; this view is part of Grotius ' prolegomena. i7
16. De lure Belli ac Pacis, lib. I, cap.
17. Ibid., Prelegomena, 11.
1, par. x, 1.
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Living his life through Europe ' s bitter Thirty Years ' War, Grotius sought to systematize international law and ground it upon natural law. He urged the nations to observe a rule of law even in the midst of cruel strife. Samuel von Pufendorf (1632-1694), less successful in philosophy and law than Grotius, wound up practically fusing natural law with international law and with the positive civil law within nations. Emmerich von Vattel (1714-1767) is as much appreciated by the Louisiana Manifesto as the more renowned Grotius. Vattel, a native of Couvet, Neuchatel, was born at the time when this canton of Switzerland was part of the domain of the king of Prussia. After studies in Geneva and Basel, the young aspirant secured employment with the Elector of Saxony, whom he served for a time as counsellor in the embassy at Bern, and for a time in Dresden as a counsellor of the Elector. When his health was failing, he returned to Neuchatel, where he died at 53 years of age. Vattel was less a philosopher than a summarizer and popularizer. One biographer gave this assessment: " Vattel summed up the knowledge of Grotius, who was deeper but not clear; the knowledge of Pufendorf, who was more methodical but not exempt from excessive niceties; the knowledge of Wolff, whose errors he rectified while following him as master. That was the best thing Vattel could do in composing a basic book at the ' time he wrote. "18 The Manifesto of 1768 is clearly indebted to Vattel s compilation Le Droit des Gens, ou principes de la loi naturelle, published in 1758. Christian Wolff (1679-1754) enters the Manifesto only through Vattel, who translated the German philosopher ' s Latin treatise on natural law into French. There is no direct quotation from Wolff in the Louisiana document; he is, however, named along with the three previous authors. The particular distinctiveness of each of the four cited writers is of no significance to the author of the Manifesto. What is cited from them is the perennial theme rather than the specific modification of that theme by a given author. They are borrowed from for what they have to say in the broad, deep European natural-law tradition. Grotius was familiar with the work of Francisco de Vittoria (c. 1483' 1546), the Spanish Dominican "father of international law, " and with the writings of the Jesuits Juan de Mariana, Roberto Bellarmino and Fran ' cisco Suarez, who were of the generation preceding Grotius s. ' Of John Locke (1632-1704) there is no sign in the Manifesto s
" 18. M. Avenel, "Vattel in Nouvelle Biographie Generale, 46 vols. (Paris, 1862-1870), 45, 999.
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thought; he was of the generation after Grotius, and, although he made his mark in England, he had no effect on the sources of the Manifesto. So Prevost ' s library, mentioned above, may have informed some of the colonials of Lockean and Rousseauvian ideas, but there is no clear connection between them and the Revolution of 1768. One might ask why, in the Franco-Spanish context of Louisiana, the author of the Manifesto cited no Spanish author, such as Francisco Suarez (1548-1617). For example, in his study of the origin of law, published in 1612, Suarez gave a strong, concise enunciation of the doctrine of popular sovereignty: " Whenever political authority is found in an individual or prince, it must have emanated directly or remotely from the people or community according to some legitimate and "19 established title, and, if it is to be just, it cannot be otherwise obtained. The explanation of the omission of such strong support from a Spanish author may lie in the lack of knowledge or in the lack of availability of the opus. The more likely explanation, however, is the fact that Suarez was a member of the Society of Jesus. Whatever may have been the library resources available in New Orleans, and whatever may have been the educational background of the author of the Manifesto, it would have been utterly counterproductive to quote a Jesuit at a time when the two Bourbon monarchies had just suppressed the Jesuit Order in the home country and in the colonies. The Manifesto also failed to cite a most telling line which the author must have seen in his copy of Vattel: "The prince holds his authority from the nation; he has precisely as much authority as the nation has chosen to confer upon him. "20 In making this statement Vattel cited a paragraph in Juan de Mariana ' s study of the nature of monarchy. 21 However cogent and pertinent were this passage and the volume referred to by Vattel, it would have been impolitic for the author of the Manifesto to place himself in the company of the Jesuit Juan de Mariana. Social Compact The concept of contractual relationship between the governed and their ruler was a commonplace in the history of European political thinking. This relationship constitutes a key element in the argumentation of the Manifesto. " A nation, " as defined by the Manifesto, "is a society of men united together to procure general advantages and security for the united multi19. De Legibus, III, iv, 2. 20. Le Droit des gens, I, iv, 45. 21. De Rege et Regis Institutione, I, v.
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tude. . . . The principal effect of this association is to submit each citizen to the authority of the entire body in everything that can interest the general welfare. "22 But the Creoles recognized that the body politic as a whole could not govern. They accepted the traditional wisdom whereby the whole body must delegate to a few or to one the actual exercise of the political authority created by the association. "The exercise of this authority is remitted to the hands, either of sovereigns in monarchies, or magistrates in republican states, without, however, the body politic ceasing to be the proprietor, "23 This last point is of great doctrinal significance; the body politic as a whole remains the ultimate proprietor of the authority which, for the sake of efficient functioning, it must entrust to an individual or to a group to exercise. Although the Manifesto considers a passing from a theoretical stateof-nature-without-organization to a state of political association, this idea is expressed in broad natural-law terms. There is no allusion to Jean-Jacques Rousseau, whose Contrat Social had appeared in 1762.
Law and Obligations
Like the Anglo-American Declaration of Independence that lay almost eight years in the future, this declaration expressed a concern for international public opinion. The colonists, it maintained, need only have petitioned Louis XV. " But since the colony considers itself to be in need of proving in the eyes of the nations that it has committed nothing that violates the natural law and the law of nations, . . . we have judged that we could succeed therein by rendering manifest the principles of those sacred rights upon which the inhabitants based their conduct, " 24 Law, they claimed, was the basis of their conduct. They were not violating law, they were observing it. First, there is the natural law, universal to all mankind of all centuries; it is the code of conduct that is rooted in the very nature of being human. Next, there is the law of nations, the accepted code of conduct that has evolved with the common wisdom and consent of the community of nations. The action in New Orleans is presented as one more example in history of putting into practice this twofold "law, sacred and inviolable, used even in primordial times of the universe, and transmitted to ours by sure tradition and uninterrupted
23. Ibid. 24. Ibid., 1-2. Although the Manifesto, by using and, distinguishes between "natural law" and "law of nations" (droit des gens), the two terms are practically identical in the rest of the document.
22. Manifesto, p. 3. Page citations refer to the pages of the French manuscript.
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custom. "25 Thirdly, within any given nation a corpus of law must be legislated for the governance of that particular nation, with its particular 26 preferences; this is called the civil law. The Manifesto insists upon the reciprocal obligations that bind the body politic to its members, and the members to the body. Colonists, however far they migrate from the mother country, remain a part of the body. Mere geographical distance does not cut the mutual bonds of duty. And Grotius is cited in support of this provision of the law of nations. 27 As for the land of America, the question must be asked to whom it belongs. To the indigenous population, it would seem. Yes, but only to the extent that the Indians occupy and till the land. Thus argues the Manifesto. Whatever is vacant land can be occupied by the first who come to occupy and cultivate it. For by the natural law the earth belongs to all humans indifferently until definite areas are occupied by peoples and individuals. Hence the Europeans could and did legitimately occupy vacant American lands. Moreover, when desired lands were occupied already, the Europeans paid a purchase price to the Indians. Thus, the American colonies form part of the European mother-country ' s body politic; the bond exists in and through the colonists who occupied the lands rather than through the lands as such. But both settlers and lands are integral parts of the nation, with inherent relationships and conse quences. 28 Mutual association in forming a nation aims at the common good. The body as a whole, the Manifesto insists, must protect the member and procure its well-being. By member is meant a town, a city, or a province. 29 So we see, the Manifesto avoids Hobbesian individualism or that concept of dog-eat-dog fear that would drive citizens into a leviathan state. Rather does the Louisiana doctrine have a broad, traditional base in medieval thought; there is a corporate sense of cooperation of individuals and groups toward a common welfare. Obligations are reciprocal in the association; after incorporation there can be no one-way arbitrary act of domination-or of alienation. " Consequently it [the political society] cannot abandon a province, a city, nor even an individual who forms part of it, unless necessity constrains it to do so, or the strongest reasons for the public safety makes of the step an inevitable law. "30
25. Ibid., 1. 26. Ibid., 3-4. 27. Ibid., 6. Grotius, De lure Belli ac Pacis, II, 9, vii.
28. Manifesto, 7-8. 29. Ibid., 8.
30. Ibid., 9.
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Before reaching the conclusions one must draw when abandonment does occur in a case of necessity and inevitability, the Manifesto discusses a question the reader may well have in mind: Cannot a Sovereign dissolve the political bond? " Delicate question, " admits the Manifesto, wherein one must "not confound fact and law. " The Manifesto, invoking Grotius, distinguishes between sovereignty via election and sovereignty via inheritance. " In the first case it is indubitable that the prince cannot alienate or dismember any of these provinces, for he is only the usufructuary. The right belongs to the people alone, and it cannot be exercised even [by them] except in some extraordinary cases without violating the pact of civil association. But in the second case the prince can, according to his will and without the consent of the State-all of whose rights he unites in his person-dispose of those rights which he has over the said cities or provinces, provided nonetheless that the fundamental laws of the Kingdom do not deprive "3i him of this faculty. The Manifesto goes on to maintain that the age-old law of France has indeed forbidden the sovereign to alienate a part of the realm. Examples are cited, ranging from Charlemagne to Francis I. (Interestingly, when in the twentieth century a professor of legal history in France wants to explain the inalienability of parts of the kingdom, he uses the very same cases and treaties, indeed almost the same words as the Manifesto 32 drafted in New Orleans in 1768. ) With Grotius, the Louisiana Manifesto maintains that an alienation by testament can be only a " recommendation for the people " rather than a "dismemberment done by authority. 33 Likewise, by the law of nations and by the custom of France, a treaty cannot alienate a province from the kingdom unless the province " consent thereto, because those who united themselves to form a state have contracted a perpetual and immortal society over which the sovereign presides, and which he ought not break without the consent of the body and of its parts. 34 We can readily see the power and pertinence of this ideological point: the Treaty of Fontainebleau of 1762 cannot legally have effect without ratification in some fashion by the people of Louisiana. In the dramatic session of October 29, 1768, the Superior Council had argued that "the King neither could nor should dismember the provinces of his realm unless he were forced thereto by misfortunes in battle, and since the cession of Louisiana had been made freely, without
31. Ibid. 32. P.C. Timbal, Histoire des institutions et des faits sociaux (Paris, 1961), 315-316. 33. Manifesto, 10-11. Grotius, De lure ..., I, 3, xiii. 34. Manifesto, 13. Grotius, De lure . . ., II, 6, iv.
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His Majesty having been obliged to do so, the cession ought to be regarded as having no effect." 35 This argument, Aubry reported, was generally applauded at the meeting. However, he observed, " these gentlemen [of the Council] had enough moderation not to render a decree on "36 that subject. But, the Manifesto asked, cannot a sovereign dispose of a territory and leave to its inhabitants the possibility of withdrawing if the new domination displeases them? The Manifesto answered its own question with a resounding "Of course not." For " it is against the law of nature and of nations to expose men to the sad alternative either to recognize a power which they have not chosen for themselves or to strip themselves of their patrimonial goods, and to leave the place that saw them born.'''' Equity and law, we see, merge to prohibit such cavalier treatment of the inhabitants of a region. Sovereignty over a province is simply not alienable, the Louisiana document proclaimed, invoking Emmerich von Vattel. A sovereign can indeed divest himself of sovereignty over a region. What he cannot do is deliver that sovereignty into the hands of another ruler-without the concurrence of the city or province which is given up. The cession of the member cut off from its former body politic imposes of itself no obligation on the inhabitants to accept the new master. What actually happens in such a moment of law and history in this: " The province is from that very moment returned to itself, and it reenters upon its natural right, whereby, without its participation, one cannot trade either its liberty or its possessions." Moreover it would be lawful to resist and defend liberty against imposed subjection. 38 Nor should force pretend to create or to amend law. When there is conflict over territories, the Manifesto admitted, "it is the fate of armies which settles such questions. " However, " although the sword can silence the law of nations on this point, the law, although silent, is nonetheless unchangeable and imprescriptible. "39 This is implicitly admitted when there is a change of regime. It is precisely to resolve the question of right that new masters always call upon new subjects to take the oath of fidelity. If cessions and conquests were binding of themselves, the Manifesto reasoned, it would be idle and superfluous to call forth 4o this personal pledge of the inhabitants.
35. Aubrey to Minister, Dec. 24, 1768, Paris, Archives des Colonies, C 13 A 48, f. 40. 36. Ibid. 37. Manifesto, 14. 38. Ibid., 16. 39. Ibid., 17. 40. Ibid.
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"
From all these principles and examples it follows incontrovertibly that the enterprise formed by the citizens of Louisiana and carried out last October 29 and the days following in order to withdraw themselves from a foreign domination was on every count praiseworthy and legitimate. . . . Returned to its natural right and liberty by the abandonment which its sovereign was making, the colony was without contradiction mistress [of herself] to accept or to refuse the law which a foreign power offered her. "41 The colonists were temperate and moderate as they considered the right, duties and needs of their new situation. "A respectful deference made them show all possible respect toward the officers of a prince of Bourbon blood. " By the law of nature and of nations they had the right to participate in molding the pact of submission. They sought merely their normal self-preservation in conserving their legal and commercial existence. What spoiled the healthy evolution of a process? The Spanish envoy "gave the name of crime to requests which the law authorized. " Even then the colonists exercised patience and restraint because their " hearts were imbued with respect for the sovereign who had sent him. " " Only the imminent danger of certain ruin did not permit the continuing of the policy of circumspection. "42' Sovereignty is indivisible, the Manifesto insisted. Since the magistrates of Louis XV were still in authority, Antonio de Ulloa was merely a private citizen. Only when " his maneuvers " became "pernicious for the common good " and "tended toward the total ruin of the colony " did the royal Conseil Superieur require his departure. During his sojourn Ulloa never acquired any authority beyond that of a private citizen; yet he did perform some acts offensive to the Superior Council, in which was vested "the royal prerogative [which] is inalienable, immutable, impre43 scriptible." Background: The Parlement of Paris To understand the reasoning and the assumptions contained in the Manifesto, one should recall the role of the parlement in the eighteenthcentury royal government of France, for the Manifesto's " Louisiana doctrine " reached out from the natural law to include positive law and praxis concerning the royal tribunals (parlements). The judges of France saw themselves as sharers in the royal authority;
41. Ibid., 17-18. 42. Ibid., 18-19. 43. Ibid., 19.
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it was at times their duty to protect the royal authority against ill-advised decisions. In such cases, by refusing to register a royal act or by presenting aremontrance the parlement claimed to shore up rather than undermine royal authority. In this context the Superior Council judged that no official could enter upon his functions in the colony without registry of his commission; moreover, every official had to receive with deference any remontrance presented to him by the guardian of law, the Conseil Superieur. Sovereignty, one and indivisible, had remained French in Louisiana and was vested in the Conseil Superieur. The Manifesto argued that this was evident not only by the absence of any legal ceremony or document but also by the presence of the French flag that still flew over Louisiana's militia, ships and public squares. 44 Whatever happened to Ulloa happened to a private citizen, to one who, according to the Superior Council, chose to remain a private citizen. 45 Just as the parlement in Paris took official notice of and registered royal acts, and just as this registry was a sine qua non condition of validity, so the Conseil Superieur in New Orleans was the king' s agency for registry. For an appointment to an office to be valid, it had to be registered. As the councillors insisted in their report to the French monarchy on the events of October of 1768, " Ulloa refused constantly to have himself recognized and received in the legal form, without which all authority can be disregarded. " Whatever occurred without registry would be outside of the law; there could be no authentically authoritative act. If an officer were to give an order prior to registry, his order would be null. Hence, the Council argued, Ulloa acted in the manner not of governor but usurper; indeed " he gradually lifted himself up to be an absolute despot. "46 In France one could appeal to the parlement, the courts of law, for an injunction against an official action by claiming that it was an abuse or that it contravened established royal law and custom. The Superior Council, made in the image of the parlement, judged that it had the power to suspend illegal orders. When Ulloa required ship captains upon arrival in Louisiana to submit a cargo list and a selling price, the order was given in the form of an ordonnance signed by Aubry and dated September 7, 1766, two full years before the fateful uprising. The ship captains and the merchants appealed to the Conseil Superieur to suspend the ordonnance because " it was contrary to the usages and liberties
44. Ibid., 20. 45. Ibid. 46. 12/22 Nov., 1768, Paris, Archives des Colonies, C 13 A 48, f.196.
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of commerce. " In the name of law, the merchants appealed against this particular law. "The merchants as a body ... know enough about law, and are too submissive to it, not to judge that it is their right to call upon your [the Council ' s] authority and to lodge an appeal against [this] ordonnance. "47 The colonists maintained in 1766 that their reaction against the order given by Ulloa through Aubry was fully in accord with French legal procedure. Later, when the leaders of the revolt of 1768 were brought to trial by Governor Alejandro O ' Reilly, Pierre Carresses, one of the accused, similarly invoked French law: " The path of representation to the Council has in all times been open to all groups in the colony. This practice was never forbidden. " To make a crime out of signing such a petition, " the Government or the Council would have to have rendered an ordinance which forbade representations. "48 During the trial of the conspirators, the accused likewise harped upon Ulloa ' s non-official status as long as the French regime remained in place. Carresses equivalently called O ' Reilly as a witness for the defense: "The pomp and majesty with which Your Excellency surrounded those two ceremonies [of possession-taking] "49 proves that the colony remained French up until those two moments. Also in the trial of 1769 Nicolas Chauvin La Freniere, the former attorney general of French colonial Louisiana, no longer prosecutor but rather one of the accused, argued in his self-defense that "Legal authority is always clear and recognized. Men ought to have known their Superiors and the laws they were subject to for them to be liable to be punished for disobedience. . . . Authority, laws and ordinances are made known by solemn and public acts. Monsieur Ulloa did not wish to follow "5o these sacred principles. Conclusion of the Manifesto Regardless of the philosophical and legal arguments, the revolutionaries-within-the-law were decidedly apprehensive in the months that followed the expulsion of Ulloa. They feared that their brethren in France would let them be cut off from the body politic; they even feared that perhaps soldiers in French uniforms would assist in the cutting. Passing from the realm of ideas and of laws, the Manifesto made an emo-
47. Requetes, Sept: 8 and 10, 1766, Paris, Archives des Colonies, C 13 A 48, ff.213-217v. 48. Carresses to O ' Reilly, Oct. 13, 1769, Madrid, Archivo Historico Nacional, Consejo de Indias, 20.854, f. 433v-434. 49. Ibid., f. 435. " " 50. Memoire justificatif, Archivo Historico Nacional, Consejo de Indias, 20.854, f. 420.
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tional appeal: Loyalty to the body requires that every citizen be ready to make sacrifices for the common cause. If ever-sad thought to think!-a citizen were not ready to suffer for the common good, at least that citizen must never stoop so low as to pass over to the enemy. There is no baser crime than betrayal of one' s own people. Given the plight of the common welfare, each Louisianian was bound by the law of nature to rally to the common cause. To hold back-not to support the Superior Council 's action-would be cowardly and immoral. Worse still would it be to aid any who tried to impose an alien law 51 without the free acceptance of the people. In an earlier passage the Manifesto had exalted patriotic feeling for France; like their ancestors the colonists wished to live and die under France 's royal banner. So we should not be surprised to see that the document 's finale is not a declaration of independence. Rather is it an impassioned plea to be retained as loyal subjects of Louis the Well Beloved. Louisiana "given over to herself and returned by the cession to her natural liberty . . . had the right of choosing a master for herself, but did not grasp this right except to do homage to her true sovereign and call again for his rule. "52 Self-determination with government only by consent of the governed, yes. Separation with independence, no. The doctrine of government-by-consent-of-the-governed had been clearly enunciated but in vain. What the Louisianians could not obtain was government-by-consent-of-the-governing. For France firmly refused to continue governing Louisiana. As a result, the theorists and activists who had led the resistance had to suffer the consequences. Who were they? Leading Participants in the Revolution The participants in the events of October 1768 acted as a group. They seem to have had no one individual leader. In the trial of the leaders which followed the arrival of O ' Reilly, the Spanish prosecutor Felix del Rey accused each one of specific actions with relative degrees of culpability, but all were charged as co-conspirators. 53 The leading participants were: Pierre Caresses, a native of Bellocq, France, forty-two years of age in 1768, merchant of New Orleans. (When a participant is listed as mer51. Manifesto, 27-29.
52. Ibid., 29. 53. The names are given in alphabetical order and according to the spelling used by each individual in his signature as found in the trial records. Archivo Hist6rico Nacional, Consejo de Indias, 20.854, if. 308-355v.
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chant, the term is to be read in the sense of " one who bought and sold goods he imported and exported. ") Nicolas Chauvin La Freniere, a native of Louisiana, forty years of age in 1768, royal procureur general (attorney general.) Julien-Jerome Doucet, a native of Paris, twenty-eight years old in 1768, New Orleans merchant and attorney. Pierre Hardy de Boisblanc, native of Taillebourg (Saintonge), France, forty-five years of age in 1768, planter. Pierre Marquis, forty-eight years of age in 1768, native of Neuchatel, Switzerland, but a longtime resident of Louisiana, retired military officer. Balthazar de Masan, a French-born retired military officer, who had come to Louisiana in 1736, 53 years of age in 1768, a wealthy merchant of 54 New Orleans. Jean and Joseph Milhet, brothers from Bayonne, France, respectively forty-three and thirty-three years of age in 1768, merchants of New Orleans. Jean Baptiste Noyan, a native of New Orleans, thirty years of age in 1768, a planter, Noyan was a great-nephew of Jean-Baptiste Le Moyne, Sieur de Bienville, a co-founder of the Louisiana colony. Joseph Petit, native of Foncin (Guienne), France, 52 years of age in 1768, a merchant, resident in New Orleans. Pierre Poupet, from La Rochelle, France, was in 1768 a thirty-sevenyear-old New Orleans merchant. Author of the Memoire Felix del Rey, the Spanish prosecutor, in his case against Doucet, was willing to yield somewhat on one or two counts, but on one charge he held firm, namely that Doucet was the principal author of the printed Memoire... 55 Invoking the law which prescribed capital punishment for authorship of " notorious pamphlets directed principally against the Prince or against the State, " the prosecutor called for the death penalty against Doucet. 56 Del Rey argued against Doucet' s defense wherein the accused-responded that others had written the more offensive clauses, for this pretext did not exonerate Doucet who had produced a document whose aim was to justify the uprising. In passing, Del Rey expressed doubt that the defense was veracious, but, if so, wondered aloud who
54. Villiers du Terrage, Dernieres annees ... , 286n. 55. Testimonio, Archivo General de Indias, Papeles de Cuba, 171A, f. 296v. 56. Ibid., 297.
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was the author of the more offensive passages." Doucet testified that Bienville was the person who "principally" assisted him in perfecting the draft of the Memoire. ( Doucet was referring to Ensign Louis Rolland Payen de Noyan, chevalier de Bienville, greatnephew of the co-founder of Louisiana colony). It was young Bienville, moreover, who pressed for the printing of the document; so testified the 58 printer. The fact that Chevalier de Bienville was safely outside of Louisiana in the service of the French navy need not cast doubt on the veracity of this testimony as if it were concocted padding; his person could not be touched, but his property could be seized-and was. Other testimony affirms that there were several who gave a hand to the composition of the Memoire, and that Hardy de Boisblanc stood out 59 among them. Author of the Manifesto In the examination of Pierre Marquis, when Prosecutor Felix del Rey asked whether the accused had tried to bring the Conseil to discuss setting up a republic, Marquis responded in the negative. Since, though, others must have mentioned his name in connection with republicanism, the Swiss ably defended himself by saying that he had only mentioned the idea in his home during a private conversation with two or three friends who were of the opinion that both France and Spain 60 would abandon Louisiana. Marquis parried other perilous questions of Del Rey, but was obliged to acknowledge as his a letter to Doucet of July 2, 1769, wherein he stated that he was sending a Manifesto. Marquis further had to acknowledge "that the manifesto referred to was a justification of what had been done by the Conseil and the inhabitants. " 61 In so far as documentary evidence goes, one can conclude that this manifesto of Pierre Marquis is the one we are now studying. It is, we see, called manifesto and is distinguished from the Memoire. It is precisely a justification of what had been done by the Conseil and the colonists. It is referred to as a specific document, and not bunched with "other writings, " an expression Del Rey uses elsewhere. There are internal features in the Manifesto which point to Marquis as the author.
57. 58. 59. 60. 61.
Ibid., 297v. Ibid., 315v-316v. " Diario de Ios sucesos de la Luisiana, " in Serrano y Sanz, Documentos ..., 283. Testimonio, Archivo General de Indias, Papeles de Cuba, 171A, f. 65v. Ibid., f. 66v.
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1) Political philosophers cited are from Holland, Germany and Switzerland, rather than from France. 2) Although, of course, historical examples are chosen from the history of France concerning the rights and duties of the French king and people, an almost equal number of events are chosen from Swiss history. 3) The Manifesto is attentive to "republican states, " whereas most Europeans and European colonists thought constantly in terms of monarchies. Just as Doucet ' s Memoire certainly contained contributions of others, so Marquis ' s probably incorporated others ' observations. Basically, though, this Manifesto is to be attributed to the Swiss participant in the uprising. From the date of Marquis ' s above-mentioned letter to Doucet-July 2, 1769-we see that he had had about eight months to read, discuss, and reflect upon sources and ideas. Marquis had left Europe many years earlier and in Louisiana had led the life of officer and then merchant. The colony was not bereft of books, but neither was scholarly reading in vogue. Given the agitation of the months that followed October 29, 1768, Marquis did well, it must be acknowledged, in composing a presentable apologia based on philosophy, law and history. As amanuensis of the people, he had proceeded from his premises of "government by consent of the governed " to a conclusion which proposed not a Swiss-style republic (which he might ideally have offered) but rather a loyal adherence to the French monarchy, a monarchy which he had in fact long and faithfully served. Marquis presented the Louisianians ' rights in the vocabulary of concrete feudal contracts under the higher abstract natural law; his Manifesto concretized basic human rights. In choosing his conservative phraseology, he could hope for a hearing where republicanism would have been rejected outright. Villiers du Terrage hails Marquis as the first in America to attempt to establish an independent republic. 62' He was perhaps the first, but his attempt was measured and restrained. Only a full seven years later would the Anglo-Americans on the Atlantic Coast set up their republic. In Spanish America, as stated above, the republican movements came still later. Role of La Freniere It was Nicolas Chauvin La Freniere, royal attorney general, who presented to the Conseil Superieur the legal requete (petition for action)
62. Marc de Villiers du Terrage. Les Dernieres annees de la Louisiane &ngaise (Paris, 1903), 284n. It is not clear whether the unprinted Manifesto referred to by' Juan Jose de Loyola in his letter to A.M. Bucareli, July 4, 1769, is the same as Marquis s. AGI, Cuba 1054, " Sublevacion de 1768."
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which elicited the Ordonnance (decree) of October 29, 1768, and was incorporated within it. Aubrey branded him as one of those who most contributed to the revolution. Yet, interestingly, Aubrey stated that it was not clear who precisely was the author of the "audacious " requete; its authorship, he reported to Versailles, was generally " attributed to the procureur general [Chauvin La Freniere] and to seven or eight merchants, factious and bankrupt. "63 The briefly put central argument of the requete is that the Conseil has the legal competence to act, since like a parlement it is the depository where legislation and legal acts must be registered. The basis of Aubrey ' s indignation against La Freniere was the premise that above all others the procureurgeneial should have upheld le gality; in Aubrey ' s view the king ' s attorney failed in this solemn duty. It would have strengthened Aubrey ' s accusation to maintain that La Freniere was the author of the requete-as normally a procureur would be; the evidence, then, is all the stronger that the requete was not the creation of La Freniere alone. The procureur 's requete must be seen as the product of collective deliberation wherein, prior to the public session, the participants decided exactly what the conseil would approve. Then, on October 29, 1768, that is precisely what it did approve. To limit the authorship of La Freniere to that of being partial creator of the official proceedings of the conseil superieur does not relegate him to a minor role. For one of O ' Reilly ' s basic questions was "Who was responsible for the arres t or odonnance?"64 On the basis of the role he played, as documented by testimony, La Freniere was condemned to death, one of the six leaders sentenced to capital punishment. In the trial proceedings of 1769 La Freniere swore that he had not 65 read the published Memoire until eight days after it was printed. While one might argue that he was saying this simply to save his life, his statement must stand until contrary evidence appears. Similarly, it is improbable that he had any role in the composition of the Manifesto, concerning which he was not even questioned during his trial. Why Hitherto Undiscovered Given the deep significance of the Manifesto and its ideas, how is it possible that it has not merited attention from previous authors? For example, Baron Marc de Villiers du Terrage examined the events of 1768 in his 1903 study entitled Les Dernieres annees de la Louisiane Frangaise. In 1942 Vicente Rodriguez Casado published his Los Primeros
63. Aubrey to Minister, Dec. 24, 1768, Archives des Colonies, C 13 A 48, f.. 38. 64. O ' Reilly to Aubrey, Aug. 19, 1769, Archives des Colonies, C 13 A 49, 11 .29-30. " 65. "Memoire justificatif, AHN, Consejo de Indias, 20.854, f. 421v.
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aiios de dominacidn espaiiola en la Luisiana ( Madrid, Consejo Superior de Investigaciones Cientificas), in which he responded to Villier du Terrage's negative assessment of Ulloa and the Spanish handling of Louisiana. How did they miss finding the Manifesto? Villiers du Terrage relied principally upon French archival sources. His material and his quotations show evidence of extensive work in the colonial archives of Paris. It was precisely in drawing upon the abundant Spanish archives that Rodriguez Casado was able to present the Louisiana transition of 17661769 in a totally different light. Concerning the revolution itself Rodriguez Casado drew principally upon the ample documentation in the Archivo Histerico Nacional of Madrid. Indeed one-fifth of his opus-pp. 379-482 consists of transcriptions from parts of the official trial records found in Consejo de Indias, legajo 20.854. With such an overwhelming amount of material at hand, Rodriguez Casado, had no need to seek further documentation for his volume. He seems not to have drawn upon the Archivo General de Indias in Seville. In summary, although one could read in the bulky transcripts of the 1769 trials that there had been an audacious Manifesto composed by Marquis, that document itself lay among other papers in other archives in another city. Significance of the Manifesto Historians need to reconsider the hand-me-down presentations of the Louisiana Revolution of 1768. One can no longer affirm that the participants lacked doctrine-or doctrines. Nor affirm that Louisianians were ideologically unprepared for self-government in 1768. One must neither dismiss nor exaggerate the Louisianians' knowledge of self-government. Nor should one exaggerate or dismiss the significance of their actions and their role in North America. In contrast with the population of the Thirteen Colonies, they were few. At the end of the French regime the colonists in the Mississippi Valley numbered less than 7,000, less than half of whom had been born in the colony. The Anglo-American colonies, on the other hand, had two and a66 quarter million inhabitants at the time of the Louisiana revolt of 1768. The Louisianians, with few exceptions, did not see independence as a viable alternative, for they could not sustain independence even if they had sought and obtained it. So no one would naively claim that the revolt of 1768 became the inspiration of the subsequent Anglo-American and
66. Evarts B. Greene and Virginia D. Harrington, American Population Before the Federal Census of 1790 (New York, 1932), 8.
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Spanish-American revolutions that led to independence. The significance of the Manifesto lies rather in its showing that Louisiana participated in a political-intellectual tradition that spread over centuries and continents. As the Manifesto shows, there were colonial Louisianians who understood the philosophy of popular sovereignty. They sustained the idea that government required the consent of the governed in the basic sense, not in the sense of periodic elections. They had a fair acquaintance with authors who provided a theoretical justification of their practical actions. The fact that they were unsuccessful in obtaining their immediate goals does not mean that they were politically uninformed or incompetent. The Manifesto testifies to their knowledge and sophistication. Historians of Louisiana will have to drop the oft repeated legend concerning their political naivete. For, as a matter of fact, 1768 came eight years before 1776. CHARLES EDWARDS O ' NEILL

The Louisiana Manifesto of 1768

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The Louisiana Manifesto of 1768

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The Louisiana Manifesto of 1768

2. Baton Rouge, 1976.

THE POLITICAL SCIENCE REVIEWER