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A Closer Look: A Symposium Among Legal Historians and Law Librarians to Uncover the Spanish Roots of Louisiana Civil Law†

Published online by Cambridge University Press:  28 February 2019

Vincenç Filiu ,
Dennis Kim-Prieto  and
Teresa Miguel
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Abstract

The debate regarding whether the origin of Louisiana civil law is based in the Spanish or in the French legal tradition has been ongoing since that state's incorporation into the United States as a result of the Louisiana Purchase. Distinguished legal scholars have argued in favor of one tradition being dominant over the other, and each has been staunch in support of that view. This article proposes and demonstrates that the Spanish, not French, civil law had an enormous influence on the creation and evolution of Louisiana civil law, and that this legacy resonates today.

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Articles
Information
International Journal of Legal Information , Volume 38 , Issue 3 , Winter 2010 , pp. 295 - 338
Copyright
Copyright © 2010 by the International Association of Law Libraries. 

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References

1 This paper is a combined effort of all three writers reflecting the ideas presented by our four speakers. We are particularly grateful to Profs. Levasseur, Rabalais, and Těte for the enthusiasm and authority their participation brought to this symposium. The symposium was conceived and moderated by Teresa M. Miguel. Both Dennis Kim-Prieto, co-moderator, and Vicenç Feliu, speaker, assisted additionally in the symposium's organization and with the coordination of the panelists. Audio of the panel presentation can be purchased from Mobiltape: http://www.mobiltape.com/conference/AALL-100th-Annual-Meeting (last visited February 8, 2011).Google Scholar

2 Editorial, The Louisiana Gazette, Friday, November 9, 1804.Google Scholar

3 See, e.g., Rodolfo Batiza, The Louisiana Civil Code of 1808: Its Actual Sources and Present Relevance, 46 Tul. L. Rrv. 4 (1972); Robert A. Pascal, Sources of the Digest of 1808: A Reply to Professor Batiza, 46 Tul. L. Rev. 603 (1972); Rodolfo Batiza, Sources of the Civil Code of 1808, Facts and Speculation: A Rejoinder, 46 Tul. L. Rev. 628 (1972); A.N. Yiannopoulos, The Early Sources of Louisiana Law: Critical Appraisal of a Controversy, in Louisiana's Legal Heritage 87 (Edward F. Haas, ed., 1983).Google Scholar

4 Louis Moreau Lislet & James Brown, A Digest of the Civil Laws Now in Force in the Territory of Orleans, with Alterations and Amendments Adapted to its Present System of Government (New Orleans, Bradford & Anderson 1808) (herinafter, Digest of 1808).Google Scholar

5 Louisiana Civil Code of 1825.Google Scholar

6 Batiza and Pascal supra note 3.Google Scholar

7 The influence of Spanish architecture emerged in the rebuilding of New Orleans after two fires (1788 and 1794) that destroyed many buildings that had been erected during the previous French period. Observation of Professor Raphael Rabalais, delivered in “A Closer Look: Uncovering the Spanish Roots of the Louisiana Civil Law,” Annual Meeting of Annual Association of Law Libraries (17 July 2007).Google Scholar

8 Many primary documents available for research pertaining to the Spanish Colonial period are housed in New Orleans. Loyola University New Orleans played a major role in microfilming the largest collection of Spanish Colonial documents housed in the General Archives of the Indies in Seville. Thus, it is possible to use 140,000 pages of archived material without traveling to Seville. See Raphael J. Rabalais, The Influence of Spanish Laws and Treatises on the Jurisprudence of Louisiana: 1762–1828, 42 La. L. Rev. 1494–1508 (1982) for a detailed treatment of this preservation as well as an analysis of the contents of these documents. Additionally, the Notarial Archives in New Orleans consists of about 220,000 manuscript pages from the Spanish colonial period. Though some of them were damaged in Hurricane Katrina, they were very quickly preserved, and the majority of these documents are still usable. For an overview of the colonial judicial materials collected therein, see New Orleans Notarial Archives, Research Center and Historical Documents, http://www.notarialarchives.org/research.htm (last visited Dec. 11, 2008).Google Scholar

9 Rabalais, supra note 8, at 1487.Google Scholar

10 Id. at 1487.Google Scholar

11 Id. See infra Section IV.C.Google Scholar

12 The Louisiana State Museum holds many Spanish judicial records from the alcaldes. This collection is approximately 200–300 linear feet of Spanish judicial documents. A researcher translated a précis of these documents from 1923–1948, but only completed translating documents up to the year 1785. For a complete description of the colonial judicial materials collected therein, see Louisiana State Museum Historical Center, Summary of Collections (excluding books) (http://lsm.crt.state.la.us/collections/hcenter.htm, last visited March 17, 2009).Google Scholar

13 For a concise discussion of O'Reilly's ordinances and instructions, See Shael Herman, Under My Wings Every Thing Prospers: Reflections Upon Vernon Palmer's “The Louisiana Civilian Experience–Critiques of Codification in a Mixed Jurisdiction,” 80 Tul. L.Rev. 1491 (2006) (book review).Google Scholar

14 Rabalais, supra note 7.Google Scholar

15 See James T. McHugh, On the Dominant Ideology of the Louisiana Constitution, 59 Alb. L. Rev. 1583 (1996)(citing Alcee Fortier, A History of Louisiana 30–49 [1904] for the text of a letter dated Aug. 10, 1776, from Don Francisco Bouligny, Captain of the Battalion of Infantry of Spanish Louisiana, to Don Josef de Galvez, Minister of the Indies, on behalf of Charles III, King of Spain, detailing the myriad development opportunities then available in Spanish Colonial Louisiana.)Google Scholar

16 See Shael Herman, The Contribution of Roman Law to the Jurisprudence of Antebellum Louisiana, 56 La. L. Rev. at 262 (citing George Dargo, Jefferson's Louisiana: Politics and the Clash of Legal Traditions [1975]) for a concise summary of the economic conditions in Louisiana near the end of the Spanish colonial period.Google Scholar

17 See Rabalais, supra note 8, citing Batiza, The Louisiana Civil Code of 1808: Its Actual Sources and Present Relevance, 46 Tul. L. Rev. 11–12 (1971).Google Scholar

18 For a discussion of the events leading up to the rebellion in Pointe Coupeé, see Vernon V. Palmer, The Customs of Slavery: the War without Arms, 48 Am. J. Legal Hist. 177 (2006).CrossRefGoogle Scholar

19 See James T. McHugh, On the Dominant Ideology of the Louisiana Constitution, 59 Alb. L. Rev. 1583–1585 (1996) for a brief description of the political and economic exigencies extant during the end of the Spanish colonial period in Louisiana.Google Scholar

20 See, e.g., Herman, supra note 16; see also Henry J. Richardson III, Excluding Race Strategies from International Legal History: the Self-Executing Treaty Doctrine and the Southern Africa Tripartite Agreement, 45 Vill. L. Rev. at 1103–1105 (2000) & Roger K. Ward, The French Language in Louisiana Law and Legal Education: A Requiem, 57 La. L. Rev. 1283, 1289 (1997) for a discussion of this volatile transition.Google Scholar

21 See Robert Knowles, The Balance of Forces and the Empire of Liberty: States’ Rights and the Louisiana Purchase, 88 Iowa L. Rev. 343 (2003); See also, Roger K. Ward, The Louisiana Purchase, 50 La. B.J. 331 (2003) at 333–334 for analyses and further citations documenting the factors leading up to Napoleon's decision to sell the Louisiana Territory.Google Scholar

22 This simple declaratory statement is a virtual minefield of controversy. Moreau Lislet's date of birth has been often disputed, and the name given him at birth did not include the sobriquet “Lislet.” However, thanks to Prof. Levasseur's diligent and thorough research, we can now make this assertion with a high degree of certainty. See generally Alain A. Levasseur with Vicenç Feliú, Moreau Lislet: The Man Behind the Digest of 1808 79–113, Claitor's Publishing Division, Baton Rouge 2008.Google Scholar

23 All Figures referenced in this article are in an Appendix, in numerical order, following the conclusion of the article.Google Scholar

24 Id. at 95–97.Google Scholar

25 Id. at 98–101.Google Scholar

26 Id. at 111–112.Google Scholar

27 Id. at 113.Google Scholar

28 Joint resolution of the two chambers, signed by J. Poydras, President of the Council and approved by the governor, W.C.C. Claiborne on February the 4th 1805.Google Scholar

29 The Territory of Orleans was the area of land transferred in the Louisiana Purchase of 1803 south of the 33rd parallel that later became the state of Louisiana. See An Act: Erecting Louisiana into Two Territories, and Providing for the Temporary Government Thereof, 8 Cong. Ch. 38, 2 Stat. 283 (1804).Google Scholar

30 Levasseur, supra note 22, at 115.CrossRefGoogle Scholar

31 Id. at 116–117.Google Scholar

32 Moreau Lislet & Brown, supra note 4, at 49–53.Google Scholar

33 1806 La. Acts 214–218.Google Scholar

34 Levasseur, supra note 22, at 167.Google Scholar

35 Session Laws of American States and Territories, Territory of Orleans, 1804–1811. Legis: 1-1806, S.I. p. 215.Google Scholar

36 Despite the unequivocal instructions, there is still a widely held belief that Moreau Lislet somehow ignored the legislature's specific charge and based the Digest of 1808 on the French Code Civil of 1804 and the French Project of the year VIII. Levasseur, supra, note 22 at 168. However, comparing the Digest of 1808 and the work of Moreau Lislet shows that the Digest's foundations clearly emerge from Spanish civil law. See, e.g., Robert A. Pascal, Sources of the Digest of 1808: A Reply to Professor Batiza, 46 Tul. L. Rev. 603 (1972).Google Scholar

37 Fenet, Recueil Complet des Travaux Préparatoires du Code Civil. Projet de l'an VIII, Vol. 2. (Paris 1836).Google Scholar

38 On the 28th of Messidor, year 9 of the Republic, the Conseil d'État, presided over by Napoleon himself, peremptorily ordered that the Projet's Preliminary Title be redrafted. Unlike the actions taken with respect to other provisions of the Projet, no debate was recorded. In place of the first article of the Projet, which had expressly recognized natural law, the redraft presented on the 4th of Thermidor, year 9, provided that the laws are executory in the whole Republic, fifteen days after the promulgation made by the First Consul (who was then Napoleon). Procès-Verbaux de Conseil d'État, Years IX and X (Paris 1803). With these and other changes made by the redraft, law in general came to be interpreted as resting almost solely on the will of the legislator. While a theory of legal positivism was not expressly set forth in the Code Napoleon, one can be inferred from the changes made in the Preliminary Title by the redrafted final articles. Nevertheless other articles of the Code Napoleon, particularly in the law of obligations, were drawn from the natural law tradition, particularly as reflected in the writings of Domat and Pothier.Google Scholar

39 Compare the Preliminary Title of the Projet of the Year VIII, Fenet supra note 36, with that of the Code Napoleon (1804) itself.Google Scholar

40 René David, French Law: Its Structure, Sources, and Methodology 15 (1972).Google Scholar

41 Don Alexander O'Reilly, Ordinances and Instructions of Don Alexander O'Reilly in Ancient Jurisprudence of Louisiana, reprinted in 1(2) La. L.J. 1 (1841). See also text accompanying n. 10 supra.Google Scholar

42 An Act: Further Providing for the Government of the Territory of Orleans, 8 Cong. Ch. 23, 2 Stat. 322 (1805).Google Scholar

43 See Elizabeth Gaspar Brown, Legal Systems in Conflict: Orleans Territory 1804 – 1812, 1 Am. J. Legal Hist. 35, 47 – 48 (1957).Google Scholar

44 The de la Vergne volume, a reprint of an original copy of the Digest of 1808, is “bound with interleaves containing references in manuscript to various civil laws and commentaries. According to the preface to these manuscript annotations, the references opposite the English texts of the Digest are to various laws of civilian jurisdictions on the same subjects as the texts and those opposite the French texts are to the actual sources of the texts themselves. [See Figures 5 to 5.c]. These latter references are very predominantly to Spanish laws and works, even in those many instances in which it is obvious that the words of the particular texts were taken from the French Code Civil of 1804 or one of its projets. The annotations, therefore, lend support to the conclusion that the Digest was indeed in substance primarily a digest of the Spanish laws in force in the Territory of Orleans in 1808, even though the formal source of many of its provisions was the French Code Civil or one of its projets, and tend to refute the popular notion that the Digest represents an acceptance of French Law in what is now the State of Louisiana.” A Reprint Of Moreau Lislet's Copy of a Digest of the Laws Now in Force in the Territory of Orleans (1808) Preface to the Reprint (The Louisiana State University School of Law and the Tulane University School of Law 1968). It is believed that the annotations in the de la Vergne volume are a scrivener's copy of Moreau Lislet's notes made in his copy of the Digest of 1808. The de la Vergne volume is now available online at the LSU Civil Law Online page with the original annotations fully transcribed for ease of use at www.law.lsu.edu/digest.Google Scholar

45 This annotated first edition Digest of 1808, mentioned id., is the one discovered by Professor Robert Pascal, Professor Emeritus Paul M. Hebert Law Center, Louisiana State University, in 1965 in the Louisiana Room of the Louisiana State University Library. See Figure 2. It is presently located in the Hill Memorial Library of Louisiana State University and was made available for the original research in preparation of the symposium and for this article. We owe special thanks to Professor Pascal, who provided invaluable insight into the collection of original Louisiana documents, and who advised the organizers in the selection of panelists for this symposium.Google Scholar

46 All the facsimiles of original documents pertaining to Moreau Lislet's life were gathered by Professor Alain Levasseur, Hermann Moyse, Sr. Professor of Law Paul M. Hebert Law Center, Louisiana State University during his research for his book Louis Casimir Elizabeth Moreau Lislet, Foster Father of Louisiana Civil Law (The Louisiana State University Law Center Publications Institute 1996, revised and reissued in 2008 as Moreau Lislet: The Man Behind the Digest of 1808, Claitor's Publishing Division, Baton Rouge). Professor Levasseur's research in original materials from such diverse sources as the French National Archives, the New Orleans Notarial Archives, and even the parish records of Dondon, Haiti, where Moreau Lislet was born, has resulted in a collection of facsimile materials spanning and documenting the life of Moreau Lislet which is presently held in the Rare Book Collection of the Paul M. Hebert Law Center Law Library. His original research is one of the cornerstones supporting the argument for Spanish law as the primary substance of the Digest of 1808.Google Scholar

47 Joseph F. O'callaghan, Alfonso X and the Pallidas in 1 Las Siete Partidas xxx (Robert I. Burns, S.J. ed., Samuel Parsons Scott trans., University of Pennsylvania Press, 2001).Google Scholar

48 Id.Google Scholar

49 E. N. Van Kleffens, Hispanic Law until the End of the Middle Ages 155 (Edinburgh University Press 1968).Google Scholar

50 CORPUS IURIS CIVILIS (Theodore Mommsen et al. eds., Weidman, 1915–1928).Google Scholar

51 O'CALLAGHAN, supra note 46.Google Scholar

52 In his last will, dated 10 January 1284, Alfonso refers to the book as the Setenario and in other documents it has been referred to as the Libro de las Leyes or Book of Laws. Id. at xxxvi.Google Scholar

53 To this day, we see the evidence of this emphasis in aggregations such as the Seven Liberal Arts, the Seven Sacraments, the Seven Gifts of the Holy Spirit, the Seven Capital Sins, the Seven Joys and Sorrows of the Virgin Mary, the Seven Ages of Man, etc.Google Scholar

54 Each section of the Partidas begins in this manner, forming the name Alfonso;Google Scholar

  1. I.

    I. A seruicio de Dios

  2. II.

    II. La ffe cathólica

  3. III.

    III. Fizo Nuestro Sennor Dios

  4. IV.

    IV. Onras sennaladas

  5. V.

    V. Nascen entre los ommes

  6. VI.

    VI. Sesudamente dixeron

  7. VII.

    VII. Oliuidança et atreuimento

Castile (Kingdom) & Alfonso X, LAS SIETE PARTIDAS (Gregorio Lopez ed., Madrid, 1789) (1254 – 1282).Google Scholar

55 O'CALLAGHAN, supra note 46, at xxxvii.Google Scholar

56 VAN KLEFFENS, supra note 48, at 164; See also Summa Corp. v. California, 466 U.S. 198 (1984).Google Scholar

57 VAN KLEFFENS, supra note 48, at 226.Google Scholar

58 Id. at 212–3.Google Scholar

59 Id. at 226.Google Scholar

60 Id. at 227. Recopilación is a collection of texts rather than a codification into a single text.Google Scholar

61 Id. at 227, n. 2. The Novissima Recopilación is not mentioned at length because, as noted, it did not begin publication until 1805, after the Spanish lost dominion over Louisiana. It was later cited, however, by Louisiana courts. See, e.g., Succession of Dill, 155 La. 47 (La. 1923).Google Scholar

62 The Papal Bull Inter Caetera issued by Alexander VI on 4 May 1493 granted the newly “discovered” lands of the Americas as conjugal property of King Ferrán of Aragon and Queen Isabel of Castile during their lifetimes but these lands were to pass to the Kingdoms of Castile and Leon on the death of either partner.Google Scholar

63 VAN KLEFFENS, supra note 48, at 235.Google Scholar

64 Id. at 263.Google Scholar

65 Id. The Spanish audiencias were originally high courts of appeal that became, in effect, general administrative boards for regions within colonial territories.Google Scholar

66 Id. at 18.Google Scholar

67 Id. at 125.Google Scholar

68 Id. at 135–44.Google Scholar

69 Id. at 167–8.Google Scholar

70 See generally Javier Barrientos Grandon, La Cultura Jurídica en la Nueva España 16–37 (Universidad Autonoma de México 1993).Google Scholar

71 Id. at 100.Google Scholar

72 Id.Google Scholar

73 Adicionado is the past participle of the verb adicionar, which translates into English as “to add to.” Hence, adicionado can be accurately translated as meaning “added” [in the sense of material included].Google Scholar

74 See generally Manuel Mato Vizoso, Biografía de D. José Febrero 39–50 (Imprenta de la Diputación Provincial, Lugo 1897).Google Scholar

75 Moreau Lislet supra note 43.Google Scholar

76 See id. for a description of these annotations.Google Scholar

77 Louis Moreau Lislet and Henry Carleton, The Laws of Las Siete Partidas, which are Still in Force in the State of Louisiana (New Orleans, James M'Karaher 1820). See Figure 15.Google Scholar

78 For example, the Digest of 1808 reflected the Spanish law of a community of gains encompassing property acquired under onerous title (i.e. that property not acquired by donation or inheritance). Unlike the French law, the Louisiana and Spanish law did not provide for a community of movables. On the other hand the Digest of 1808 reflects concepts that the French had adopted, such as the limitation of the right to rescind a grossly unbalanced contract for lesion to the seller of immovable property. This approach is arguably better adapted to the needs of a modern commercial republic for certainty in transactions than the broader medieval remedy for lesion, extending to buyer and movable property, found in the Spanish laws of Las Siete Partidas. Conclusion of William Těte, delivered in “A Closer Look: Uncovering the Spanish Roots of the Louisiana Civil Law,” Annual Meeting of American Association of Law Libraries (17 July 2007).Google Scholar

79 Cottin v. Cottin, 5 Mart. (o.s.) 93 (La. 1817).Google Scholar

80 Richard Holcombe Kilbourne, Jr., A History of the Louisiana Civil Code: The Formative Years, 1803 – 1839 at 69 (1987).Google Scholar

81 An Act to authorize and encourage the translation of such part of the Partidas as are considered to have the force of law in this state, approved March 3, 1819. 1819 La. Acts 44.Google Scholar

82 O'Callaghan, supra note 46, at xxiv.Google Scholar

83 Id. at xvi. Highest in this hierarchy was the Recopilación de Castilla, followed by the Fuero Real, and then finally Las Siete Partidas at the bottom.Google Scholar

84 1823 La. Acts 68.Google Scholar

85 Louis Moreau Lislet, Edward Livingston & Pierre Derbigny, Preliminary Report of the Code Commissioners in A Republication of the Projet of the Civil Code of Louisiana of 1825, lxxxv-xcv (Louisiana Legal Archives: New Orleans, 1937).Google Scholar

86 A Republication of the Projet of the Civil Code of Louisiana of 1825, 1 (Louisiana Legal Archives: New Orleans, 1937) (hereinafter, referred to as the Projet of the Civil Code of 1825) (1937). See Figure 16.Google Scholar

87 John Henry Merryman, The French Deviation, 44 Am. J. Comp. L. 109 (1996).CrossRefGoogle Scholar

88 Těte, supra note 77.Google Scholar

89 Louis Moreau Lislet, Edward Livingston, P. Derbigny & B. F. Butler, Civil Code of the State of Louisiana 1112 (English) – 1113 (French) (New Orleans, J. C. de St. Romes 1825).Google Scholar

90 25th Section of Act of 25th March, 1828, Louisiana Supreme Court, Reports of Cases Argued and Determined in the Supreme Court of Louisiana 383 (1859).Google Scholar

91 Moreau Lislet, supra note 43.Google Scholar

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97 Id.Google Scholar

98 Id.Google Scholar