The French Connection and The Spanish Perception: Historical Debates and Contemporary Evaluation of French Influence on Louisiana Civil Law

• Author: Vernon Valentine Palmer
• Position: Thomas Pickles Professor of Law

Thomas Pickles Professor of Law and Director of European Legal Studies, Tulane University. This article began as a paper commissioned by the Cour de Cassation to commemorate the bicentennial of the Code Napoléon in 2004. The present article is an outgrowth of that paper. I have many friends and colleagues to thank for their kind comments and criticisms of earlier drafts. My special gratitude goes to Alain Levasseur, Michael McAuley, John Lovett, and particularly Thomas Tucker for his insightful observations, patience, and encouraging advice. Any errors that remain are of course mine alone.

"It is a matter of public notoriety that our St. Domingo Lycurgus is avowedly copying his new code from that of Bonaparte, to the infinite delight of the whole party by whom he is employed."

Jeremiah Brown¹

". . . the great difficulty which history records is not that of the first step, but that of the second step. What is most evident is not the difficulty of getting a fixed law, but getting out of a fixed law;...not of making the first preservative habit but of breaking through it and reaching something better."

Walter Bagehot²

Introduction

The approaching bicentennial of the Code Napoléon is a useful moment in which to take stock of the past and future of our own Civil Code. The Code Civil des Français has been vital to Louisiana's entire experience with codification. It was one of the models for the Digest of 1808, and it again served as a model for the Civil Code of 1825. Even today, it appears to be serving as one of the models for our present Code's revision. My paper, however, deals with a broader subject than just the influence of the Code Napoléon on Louisiana codification. Since Louisiana codifiers have borrowed copiously from French commentators, projet drafts, and other French sources, it is necessary to speak more widely of the influence of French law on Louisiana civil law.

It is convenient for my purposes to consider French influence in four historical phases. There is, first, the rise of French law in the colony of Louisiana in the period 1699-1762. In this period the Coutume de Paris and the great royal Ordonnances were in force.³This early period will not receive much discussion, however, since it had only limited impact upon the nineteenth century codification movement. In the second period, 1762-1803,⁴ the province was ceded to Spain, and Madrid officially replaced French law with Castilian law. The effect was to transform Louisiana into a Spanish ultramarine province whose legal order now "derived from Castilian law to the exclusion of other peninsular fueros."⁵ The non-foral Castilian private law which Governor O'Reilly introduced was taken in about equal parts from the Recopilación of Castile and the Siete Partidas. The Spanish period plays a more important role in this study because a complicated legal dualism developed over the course of it. There is evidence that officially-imposed Spanish law had limited geographical and cultural reach and Louisianians clung to their original private law at a folk level. The legal situation took on additional complexity when Spanish rule ended. Spanish law officially continued, but now it purported to serve as the derecho común of a French society entering an American union.

The third period, 1803-1828, comprises the early years after the Louisiana Purchase. It saw the establishment of territorial government, the quest for statehood, and most important to this inquiry, Louisiana's push toward codification. Louisiana enacted two procedural codes (1805, 1828), a crimes act (1805), two civil codes (1808, 1825) and drafted but did not enact a criminal code and a commercial code (1825). French legal influence emanated from within and without: the Louisianians had an innate attachment and preference for things French and French legal science exerted a magnetic attraction on codifiers not only in Louisiana but in many lands. The freshly-minted Code Napoléon was never more highly prized. By virtue of its sheer modernity, relevance, and accessibility to Louisianians, it excelled in ways that its chief competitor at that time-uncodified Spanish law-could not. The Legislature and its appointed jurisconsults drafted and enacted civil codes borrowing heavily from the Code Napoléon, the Projet (1800) and French commentators. All in all, nearly 85% of these new codes contained French-derived articles. The actual motives of the redactors have been difficult to reconstruct due to incomplete historical records, and it has also been a daunting task to demonstrate what effect, if any, these appropriations had on the existing Spanish law. Some scholars theorize that the Legislature intended to codify Spanish substantive ideas and merely used French-language equivalents out of convenience. According to this "Spanish thesis," our present law may still be, at a substantive level, Spanish. On the other hand, other scholars, based upon meticulous tracing and overwhelming evidence of verbatim and almost verbatim borrowings, believe that the true sources were French (the "French thesis") and that French influence remains predominate today. Depending on the proper outcome of this debate, this third period is either the zenith or the nadir of French legal influence in Louisiana.

This interesting controversy brings us to the modern era and a period of declining French influence. The modern revision of the Civil Code (1976-present) is the first serious attempt since 1825 to modernize Louisiana civil law. The process of modernization has considerably weakened the French connection.

This article covers a considerable amount of ground, and it may be helpful to summarize where it leads. It begins in the third period by taking a historical look at the Digest of 1808 and the Civil Code of 1825 [§§1.0-1.2] in order to summarize the basis for French law in Louisiana and to establish a certain baseline for comparative purposes. The two codes are compared as to their form, structure, and style. Next, the famous controversy over whether these two civil codes are more influenced by Spanish than French law is examined in some detail [§1.3]. The merits of the debate are central to an inquiry on the extent of French influence, since if the "Spanish thesis" is essentially correct, then scholarly claims and popular perceptions about French influence must be seriously revised. The discussion attempts first to clarify the debate and then to advance it in three new directions [§1.4 (1-3)].

One new path is to focus attention upon substantive comparisons between the two laws. It is observed that the only type of investigation which could resolve the Pascal/Batiza debate, at least from the Pascalian point of view, has never been carried out. Although there has been comparative research on a few topics, we have not had the benefit of a comprehensive substantive comparison between the existing Castilian law and the borrowed French provisions. Consequently we do not know the extent of the substantive deviations, if any, which French models introduced into Louisiana. In addressing this issue, I sketch a suggested methodology to measure substantive differences and I employ a newly discovered tool which Moreau Lislet himself provided in the de la Vergne volume.⁶ The discovery is that Moreau's own hand points to many salient areas of substantive difference. The first fruits of this analysis are presented, and it is pointed out where research should be directed in the future. The evidence, though partial and preliminary (a limited number of subject areas were studied) makes clear that the introduction of French models in 1808 did have deep substantive repercussions. It brought in material original and indigenous to France, often unknown to Spanish law and/or incompatible with it, and in greater amounts than previously known or shown. The analysis strongly supports the French thesis.

The second new direction focuses the inquiry less around the Digest and more on the Civil Code of 1825. Being the later expression of legislative will and also the immediate predecessor of the modern law, the contents of this Code and the intentions of its drafters are far more important to the question of substantive sources. In the past, historians have dwelt almost exclusively upon the obscurest link in the chain of evidence-the cloudy history and inscrutable intentions of the Digest redactors. This new approach looks ahead to the far clearer historical record surrounding the Civil Code of 1825 to compare the evidence and test out theories. Analysis of that record, in my view, is a second buttress for the French thesis. As shown in their exposé des motifs...