Review by Shael Herman
Richard Kilbourne's Louisiana Commercial Law: The Antebellum Period, prepared under the auspices of the Center of Civil Law Studies of the Paul M. Hebert Law Center, is the first comprehensive study of Louisiana's early commercial law. For the uninitiated, a preliminary question might be whether the commercial law of a single state among fifty deserves its own book, especially because commerce has traditionally been a national concern. According to Mr. Kilbourne, the answer lies, first, in the fact that during the early nineteenth century commercial matters were decidedly regional, not national. Second, the scope and substance of Louisiana's antebellum commercial law made it unique. This factor is noted in a passage from the Louisiana Advertiser quoted at the beginning of the book:
Perhaps there is no section of the United States where more important novel questions arise in jurisprudence than in the State of Louisiana. This results in part from the necessity of applying the principles of the Federal Constitution and the laws of the United States to our ancient Spanish laws; and partly from the peculiar nature of our local position. We are the depositaries of the commerce of immense regions, and frequently commercial contracts made in every nook and corner of the civilized world are to receive their exposition from the tribunals of this state.
Although the book's title implies that its emphasis is on Louisiana law, Kilbourne considers in detail the essential characteristics of commercial activities in New Orleans, the South's antebellum commercial hub and the nation's fifth largest city. A broader historiographical goal of the book is to "elucidate the importance of law in furthering commercial enterprise." Mr. Kilbourne's work shares with Morton Horwitz's Transformation of American Law a concern with the instrumentalism of law and the dialectical motion of law and economic change. The author wisely avoids examining the internal logic and interaction of legal concepts for their own sake, for, as the author makes clear, the life of the law for early Louisiana lawyers was a blend of experience and logic. "Between law and commerce the one [was] so much a continuation of the other that the two ordinarily distinguishable entities were practically one." When the author examines important early judicial decisions and crucial legislative activities, he does so to illuminate the dynamics of the local commercial world, itself a reflection of the wider range of international commercial transactions. Along with elaboration of legal doctrines and institutions, there emerges a description of the New Orleans merchants' pivotal position in the monetary structure of a preindustrial economy, their contributions to the refinement of modern marketing techniques, and their role as facilitators of economic expansion. Thus, to illuminate antebellum commercial practices, the study focuses on law as a means or instrument for attaining economic ends, not law for its own sake. On a variety of issues, such as the relative merits of civil and common law and the wisdom of enacting codes of commerce and practice, Louisiana's early lawyers pragmatically asked if a proposed course of action was both legally sound and healthy for business. Plus ca change, plus c'est la meme chose.
Kilbourne's study spans roughly the first half of the nineteenth century, a crucial formative period on both national and state levels. The book is broken into six parts: The Proposed Louisiana Commercial Code of 1825, Jurisprudential Developments, The Commercial Court of New Orleans, Factors and Brokers, Commercial Paper in Antebellum New Orleans, and The 1839 Depression. The analysis contained in these sections reveals a remarkable effort at integrating economic history, law, commercial and banking practices, and even occasional biographical sketches.
About the Author
Shael Herman. Member of the Louisiana Bar; Adjunct Professor, Tulane University Law School.
Citation
56 Tul. L. Rev. 804 (1982)