Article by John H. Wigmore
This article originally appeared in the first issue of the Southern Law Quarterly in 1916. It has been reprinted in this issue to commemorate the 100-year anniversary of the Tulane Law Review.
It is the fashion nowadays to have an opinion about codification or the newest codes; but even a slight acquaintance with the earliest of our codes seems ‘to be regarded as an acquisition scarcely worth the pains, or even as a valuable accomplishment. To the ordinary lawyer in one of our common-law States the legal system of Louisiana is a mere rumor, an unprofitable subject, a matter of scantiest information. Perhaps the savor of Roman law, itself not in favor with most of us, has helped to repel acquaintance with the characteristics and the history of the law of Louisiana. Yet for this lack of appreciation there is no good reason. Few subjects so well reward attention as the unique position in American law occupied by Louisiana, and the singularly interesting course of events which out of such varied material has given us the system of law now so much in contrast with the other systems of the Union. Other states have codes; other governments of modern times have composite bodies of law; but in few other modern states has the work of a genius lent character and interest, as the work of Edward Livingston entered into and strengthened the legal system of Louisiana. At an earlier period, too, than the compilation of the codes, our interest gathers about the strange and incoherent mixture of law in force in the early days of our ownership of the territory, and the confusing complications that ensued. We are led back to the Spanish codes of Ferdinand and of Alfonso, and to the Siete Partidas of 1348—the Pandects of Spain; and we realize that medieval customs of Spain were in full force in Louisiana as late as the first decades of the 1800s.
Early law in Louisiana (before the 1700s) there was little. Justice was imperfectly administered by a military commandant. The population was an unsettled one, and the need of a system of law was not greatly felt. In 1712, when Crozat took possession under his charter, the legal history of this region begins. The custom of Paris—a code, first written down in 1510, of that partly Romanized Germanic customary law which characterized Northern France before the codification of Napoleon—was made the law of Louisiana by the charters of Crozat in 1712, and of the Western Company (John Law’s) in 1717.
It was in 1763 that Spain, by. cession from France, became owner of the territory known as Louisiana, including the greater part of the region west of the Mississippi, except Texas and California; but six years passed before the Spaniards, under Count O’Reilly, took actual possession. When a region is ceded, its local law continues in force until abrogated by the new owner. Accordingly, in 1769, by a proclamation of O’Reilly, all French law was abrogated (with the exception of the “Black Code” or slave code, given by Louis XV in 1724, and continued in force by O’Reilly),’ and the Spanish law took its place; nor did the law of France ever after reappear in its own name in Louisiana. It was totally overthrown,’ and its influence revived only when Livingston, Lislet, and their coadjutors, went to the French code for a model. Don Alexandro O’Reilly was a young Irishman of great military ability, who, forsaking his country, had served under vari6us continental commands, and finally had risen to distinction in the Spanish army. He was at this time in high personal favor with Charles III of Spain. Count O’Reilly organized an efficient government for the province, and published a portion of the laws in the French language, and the substitution of the Spanish system seems’ to have been thoroughly carried out. As it happened, the common origin of the two systems of law made the transition not a radical one. The attendant friction was due to the personality of the new government rather than to the content of the new laws.
What was this law of Spain, received by the people at the point of the bayonet, actively enforced for nearly sixty years, and tingeing ineffaceably the legal system of the State?
The early streams of Spanish law were copious. Roman law, culminating in the Theodosian code of 384 A. D., held sway until the conquest of Spain by the Visigoths about the year 466, and perhaps for a short period thereafter. Euric, the first Gothic king, promulgated some written laws of uncertain extent, which probably did not displace the Roman law; and the Breviary of Alaric II (itself often called Lex Romana Visigothorum, and based on the Theodosian code), published 506 A. D., was in force for the Roman population in Spain in the sixth century. But Kindaswind the Goth, about the year 650, abrogated Alaric’s code and the Roman law as such, and introduced a collection of laws for the entire people of his kingdom, afterwards united with other laws of earlier and later date in the West Gothic Code, published about 650, entitled “Liber Judiciorum.”
Curiously enough, this Germanic code, placed imperiously above the Roman system, was in many portions compiled from the Breviary of Alaric, and was therefore largely Roman in its materials. It is noticeable, too, that when the statutes and the customary law were silent, the Roman law was applied by the judges as a matter of conscience. This code was known as the Forum Judicum, afterwards corrupted into Fuero Juzgo, and enjoyed the chief authority, in the kingdom of Castile at least, until the reign of Alfonso the Wise. Meanwhile the terrible political convulsions attending the expulsion of the Moors and the consolidation of the Spanish kingdom left its laws as a whole in a distracted state. Other codes made their appearance, based partly on custom, partly on the civil law, the Fuero Viejo, the Fuero Real, and others. In 1256 Alfonso the Wise began the preparation of a uniform legal system for his dominions. Here again, while indigenous customs found a place, the jurisconsults took from the legislation of Justinian, sometimes by translation almost literal, the body of their code. They chose for some reason (probably the penalty which still technically attended the citation of Roman law), as in the Fuero Juzgo, not to acknowledge the source of their borrowing, and referred to the rules of Roman law as the precepts of the ancient sages (los sabios antiguos.) The code was published in 1348, and this great work, known as the Siete Partidas, long furnished the fundamental principles of the law of Spain.
In the next few centuries several supplementary compilations made their appearance. The different bodies of law in force in Louisiana under the dominion of Spain were the Siete Partidas, the Neuva Recopilacion of Castile (published in 1567, and last amended in 1777), the Recopilacion of the Indies (in 1680, containing laws specially applicable to Spain’s colonial possessions), whatever royal Edicts (Cedulas) had been directed to the courts of Louisiana, and, to an uncertain extent, the early codes already mentioned.
In 1801 Louisiana was ceded by Spain to its former owner, but not until late in 1803 did France enter upon the territory, and then only in order to deliver possession to our own nation, purchaser under the treaty of 1803. This temporary occupation, however, was” not attended by the promulgation of any system of law, and so by the rule already mentioned the Spanish law was in no way abated, but remained in full vigor. In 1804 the United States established a territorial government for its new region, and in March 1805, the district of Orleans (substantially corresponding to the present State of Louisiana) was set apart and a separate government given.
What, then, under the new ownership, was the condition of the law of Louisiana? Most perplexing and intolerable.
The perplexity lay in this. Until repealed, expressly or impliedly, by the new power, all Spanish law remained ii force. The legislative acts material to effect a repeal were five in number, three acts of Congress and two acts of the first territorial government. The act of Congress authorizing the president to take possession of the province (31 Oct., 1803) left unchanged its old laws, vesting in new officers the power to administer them. The act of 26 March, 1804, organized the different branches of government, and provided, among other things, for the writ of habeas corpus and for trial by jury; expressly declaring, moreover, that all laws in force in the territory at the passage of the act and not inconsistent with it, should continue in force until altered by legislation. The act of 2 March, 1805, contained the same clause. The legislative council, on 4 May, 1905, passed an act for the punishment of crimes and misdemeanors, specifying a number of offenses and directing that they be construed and tried according to the common law of England. A subsequent statute of 3 July in the same year, adding a few crimes to the list and prescribing a common-law trial for “all other crimes,” was repealed in the ensuing year. Finally, it should be remembered that upon the cession the constitution of the United States became the supreme law of the territory.
In all these legislative acts there was no express repeal. Whatever change occurred was effected by implication,—that that is, such laws as were inconsistent with the new provisions were thereby abrogated. Briefly, then, the laws repealed were (1) those inconsistent with the new form of government,—such as the royal prerogative, the mode of appointing officers; (2) those inconsistent with the institutions of our constitution,—such laws interfering with the liberty of the press, with the right to trial by jury; (3) the offenses corresponding to those referred to in the territorial act,—and the law of evidence and of procedure so far only as those offenses were concerned; perhaps, also,9 the laws dealing in any way with offenses prohibited since the cession. What procedure was to apply to other offenses already existing or subsequently created was not indicated.
Confusing, indeed, then was the condition of legal practice in Louisiana. The Fuero Juzgo, Fuero Viejo, Fuero Real, Recopilacions, Siete Partidas, Cedulas, our Federal constitution, several legislative acts representing the incorporation of an uncertain element of common law,—it was not enough that these codes and statutes pressed in on all sides and claimed the obedience of the, citizen. It was not even certain that all of these codes did in fact have the force of law, or what part of each, if any, was in force. Worse than this, copies of the older codes were rare. Complete collection of all there was none. Of some not a single copy existed. Yet all, old or new, rare or plentiful, were still as potent rules of conduct—so far as they were in forced—as the most public and recent proclamation. Moreover, the institutions of the two systems, differing in parentage as well as in language, were repugnant and not easily reconciled. The confusion of tongues, too, impeded the administration of justice. For offenses and suits other than those enumerated in express legislation it was difficult to say how the administration of justice should be conducted,—whether Spanish or English rules of evidence and procedure should be adopted.
But this was not all. Remaining at the beginning of this century, in a republican community, were provisions dating back to the time of the Gothic conquerors of Spain, —some barbarous, “Enrolled penalties . . . strict statutes, and most biting laws,” others merely absurd or repugnant to modern notions, but all equally out of date and unfit for enforcement. For example, if a lawyer died after beginning a suit, the heirs, if they tendered another capable lawyer, might claim the whole of ‘the stipulated fee. The penalty of infamy, entailing the most serious disabilities and penalties, was imposed without discrimination upon the lightest offenders, and even upon an unsuccessful defendant in a civil suit. The rules regulating the incompetency of witnesses far surpassed the English rules of the 1700s in their power to pervert justice. It was a criminal offense to throw into the street, by way of insult, a book given one to bind or clothes given one to repair. If an injured party afterwards sat with the wrong-doer or lived with him, the right to reparation was lost. Banishment and confiscation of property were the fate of the advocate who betrayed the secrets of his client or intentionally cited the law falsely. It seems beyond a doubt that torture was a legal possibility,—not to compel the accused to confess (for this the constitution forbade), but to force out testimony as to accomplices, and to extract the truth from a prevaricating witness. In many instances the sentence lay wholly in the discretion of the judge. In capital cases he could at his pleasure choose, as the mode of punishment, decapitation by the sword (though not—such was the tenderness of the law—by the saw or the reaping hook), burning, hanging, or wild beasts; and a judge was found (according to a trustworthy account), who exemplified the terrible potentiality of these obsolete yet living laws, and condemned a slave to be burned alive at the stake, the sentence being executed in his presence.
In April, 1805, the first step was taken towards reclaiming the land from the tangled growth of law that covered it, and Livingston’s Code of Procedure was adopted. Not until 1828, however, was the last step taken and the process of codification abandoned. During those twenty years the uncertainties of the law abated only partially. To some extent the legal atmosphere was cleared by the code of 1808; but new penal statutes of doubtful bearings were constantly passed, and the sum total of gain made was little. As a last straw, the act of 1806, creating the Superior Court, provided for three judges, any one of whom constituted a quorum, and might sit separately, rendering a decision of last resort. Thus a new opportunity was offered for increasing the discord and confusion.
But this period was the Augustan age of the bar of Louisiana. The breadth of research which the circumstances forced upon them tended to make and did make jurists of them all. During those twenty years the lawyers drew for their authoriy upon the Gothic, Spanish, and French codes, the Roman and the civil laws, with their attendant cloud of commentators, and, finally, upon the common law of England and its developed form in this country. This keen exercise was not reserved for the leaders of the bar; it was a matter of daily experience for all. Upon a random page in the reports of cases of that period one may expect with equal probability a citation from Binney or Ulpian, from Lopez or Pothier, from Croke or Vattel. There first in this country, and there only, perhaps it might be added, was found at the bar a taste for comparative law. The names of the brilliant ones of that day are not often heard now, but Hall, Derbigny, Duponceau, Brown, Lislet, Workman, Mazureau, were eminent names in the creative era.
Perhaps the leading figure, in earliest times, was Frangois Xavier Martin, judge of the Superior Court from 1810 to 1813, and of the Supreme Court from 1813 till his death in 1846. Removing from North Carolina at an early age, he began life again in this new field. Of foreign birth and in his youth extremely poor, he was a man of broad tastes and high accomplishments. His literary vigor was remarkable, and besides a translator of Pothier on Obligations (the first ever published in English) and other legal works, he wrote a history of North Carolina, his first home, and, later, of Louisiana. His solid legal culture brought him into frequent contact with Kent and Story, and made him no unequal companion; and in 1841 Harvard University honored him with the degree of LL. D.
Better known to-day, and greater than Martin, is Edward Livingston. In more than one way his history has been the history of his State and of the nation, and needs no mention here. But his legal genius has never been sufficiently appreciated in this country. He may be called the greatest creative jurist we have seen. He is the Bentham of American jurisprudence, without the blemishes of that great critic. It was Bentham’s misfortune too often to overshoot his mark, perhaps as much by not being thoroughly grounded in the law he criticised as through any other cause. Livingston shared with Bentham his contempt for the rubbish and the useless fictions that disfigured (and. in part still disfigure) the common law of England and the United States; but he had moderation and clearer perceptions, and was not only a master of the common law, but was thoroughly acquainted with the civil law and widely read in the continental writers. To this he added a store of common sense, an intimate knowledge of humanity, the spirit of high purpose, and, watching and restraining all, an eye for the feasible. and the practical in legislation. One passage from his Code of Criminal Procedure will perhaps suggest the comprehensiveness of his mind and his acute perception of legislative ends and their means. The selection is from the part of the code giving a discretion to the judge as to the apportionment of punishment when circumstances of aggravation exist,—a subject which in existing systems of legislation has received far too little development.
Leaving the figures of this attractive period,—what was the process of codification and how far was it accomplished?
In the early days of American dominion there took place a large influx of lawyers from other States (Livingston among them), and naturally a strong effort (claiming as its justification an equivocal expression in the congressional ordinance relating to the territory) was made by them to secure the adoption of the common-law rules in which they had been bred, at least for the forms of procedure to be followed. But the unfairness of such a measure, in a community accustomed only to law of a Roman origin, excited the opposition of the native lawyers, and of Livingston, long convinced of the superior excellence of the civil law. The champions of the common law were defeated, and Livingston was selected to draw up a code of procedure. His code was adopted in 1805, and simple yet adequate, it stood successfully the test of use .until it was replaced by the more ambitious code of 1825. In 1808 Moreau Lislet and James Brown (afterwards Minister to France), ‘who had been appointed to prepare a civil code, presented their results, which were adopted by the second territorial legislature. But this document did not purport to cover the whole body of the laws, and to a limited extent only did it abrogate reference to the Spanish law. It was modeled on the draft of the Code Napoleon (for a complete copy of the latter was not at that time accessible), and the whole body of French legal learning was thus introduced into the arguments and decisions of the courts of Louisiana. Martin’s Digest, authorized by the legislature, appeared in 1816, but it included only statute law. In 1820 the codifying spirit acquired fresh zeal, and by the act of Feb. 10, Livingston’s preparation of a criminal code was authorized. His preliminary report was approved by the legislature in 1822 and again in 1823; but by an accident the draft was .destroyed in November, 1823, and when, after two years of toil, he had rewritten it, the legislative mind seems to have altered and the code was not adopted. Futile attempts were made, the last in 1831, to secure its adoption (Livingston’s absence in other fields probably contributed to the failure), and the opportunity of possessing perhaps the most enlightened and most nearly perfect criminal code of its time was stubbornly rejected by the people of Louisiana.
In other quarters, however, the work of systematization advanced. Moreau Lislet, Livingston, and Derbigny, appointed in 1822 to prepare a civil code and a code of practice, reported in 1825 a code of practice, probably founded on the earlier one of Livingston, but of ampler scope, and a new civil code. Both were adopted. The civil code was intended to supplant all existing law relating to the subjects covered by the new document, but a doubt arose as to the efficacy of this repeal, and by the act of 25 March, 1828, all civil laws existing before the promulgation of the new code were repealed. Thus were finally swept away the laws of Spain. It is said that the part of the code dealing with obligations was entirely from Livingston’s hands. The codifiers, in their report of 1823, declare that “in the Napoleon code we have a system approaching nearer than any to perfection,” and their code evinces their admiration for the continental model which they took. The form, and, in general, the titles and divisions correspond closely to those of the French code. The Louisiana jurists evidently took the latter as their original material, and in their discretion pruned from it unsuitable clauses, or added to it desirable provisions taken from other systems or suggested by their own experience. All helpful sources were freely sought, and there was no servile adherence to any model.
It was intended at the same time to reduce the law merchant to the form of a code, but this part of the general work was never adopted and in commercial matters the law merchant of the United States remained in force, when not in conflict with legislation or usage in Louisiana; for it had been held that by the cession the law merchant of the United States came into force and it was in existence side by side with the old code.
It was also intended to present in codified form the rules of evidence. Possibly at first the Spanish law of evidence had prevailed; but at an early date the practice changed, for the harshness of the Spanish law and the difficulty of conducting jury trials by other than the accustomed rules of evidence made it easy to find a justification on the ground that the Spanish law was inconsistent with the institutions of the new government and was therefore repealed. The plan of a code of evidence was not carried out, but many of the leading principles of the subject were incidentally incorporated in the civil code.
At this time then (1828) the great body of private law was in codified form, arranged and founded on Roman law principles, modified by considerations drawn from various sources. The commercial law was that in force generally throughout the United States, and was still to be found in the decisions of the judges. The criminal law included only statutory offenses, but for the definitions of the larger number of those offenses search had to be made in the common-law decisions. The law of evidence was the common law, still uncodified. Practice and procedure were governed by the code of 1825. The common-law element was and is perhaps larger than is usually believed by lawyers of other States. The terminology of the English law crept in with the language, and is found here and there through the law in places where it would be least looked for. Perhaps in no portion does the spring of the civil law flow pure for any long period. Yet the civil code is thoroughly and essentially Roman, and it remains true that the Roman system of law must form a fundamental part of the equipment of a lawyer in Louisiana.
Later changes in the law have not been radical, and, it may be added, have not been characterized by the reforming spirit of 1820-30. The codes have been amended, and general revisions of the statute law have been made. But that first of all legislative duties, the publication of a penal code, remains as yet not executed, nearly a century after Edward Livingston’s first draft had, by the accident of fire, lost forever its apparent destiny of adoption.
90 Tul. L. Rev. 529 (2016)
1 So. L. Q. 1 (1916)