The Continuing Influence of le Droit Civil and el Derecho Civil in the Private Law of Louisiana

• Author: J.-R. Trahan
• Position: Assistant Professor of Law, Paul M. Hebert Law Center, Louisiana State University

Assistant Professor of Law, Paul M. Hebert Law Center, Louisiana State University; Associate, Phelps Dunbar, Baton Rouge, 1990-95; Law Clerk to Judge Alvin B. Rubin, United States Court of Appeals, Fifth Circuit, 1989-90; J.D., LSU, 1989; B.A., Political Science, LSU 1982.

I Introduction

If one were to conceive of Louisiana's private law as a "natural person,"¹ then it would not be unfair to say that the "parents" of that person are le droit civil of France and el derecho civil of Spain. It was, after all, from those two "civil laws" that Louisiana's private law was first born. As this "child" has grown up, it has, like any other child, differentiated itself from its parents, both physically and psychologically. Indeed, in the case of this particular child, one could say that, as it has grown up, it has, at the physical level, undergone a good bit of "cosmetic surgery," more than a few "organ transplants," and even some wholesale "amputations" and it has, at the psychological level, adopted a mindset that, at least in part, is at odds with that of its parents. But through it all and despite all these many changes, it remains the case that Louisiana's private law, in both its body and its mind, still bears a striking resemblance to its parents.

That is the burden-one that, I readily admit, is not all that difficult to carry-of my presentation: to bear witness to this continuing parent-child resemblance. In pursuit of this objective, I must, of necessity, review the history of Louisiana's private law. Now, unless I miss my guess, most of the Louisianians in the audience will not relish the prospect of being subjected to the recitation of yet another "history" of Louisiana's private law. This history has been given before, and on more than one occasion.² In my defense, I would remind us Louisianians that there are many in the audience who hale from foreign shores and who, for that reason, are not as familiar with the origin, development, and current state of Louisiana's private law as we may be. Such a history will no doubt assist them in making sense of the remarks of the other speakers who will address more particular aspects of the past, present, or future of Louisiana's private law. But I dare to hope that even for us Louisianians, the retelling of the story of our private law-or at least this particular retelling-will have some value. My hope is built on what I take to be the only really distinctive characteristic of my retelling of the story, namely, its relatively positive focus: it emphasizes the extent to which Louisiana's civil law tradition remains intact. Unlike most prior histories of Louisiana's private law, which tend to point out that "the glass" is now "half empty," mine reminds us that it is also yet "half full."³ This is a reminder of which I stand in constant need.

II Corpus

A The Colonial Era (1699-1803)

The history of Louisiana's private law dates back to the time of the European colonization of Louisiana. During that period, Louisiana was owned, first, by France, then, by Spain, and finally, by France again. That Louisiana took its civil law from the civil law of both of those nations is not disputed. What is disputed is just how much and precisely what Louisiana took from each.

1. The First French Period (1699-1762)

Though the French began to colonize Louisiana as early as 1699, the French king made no provision for the administration of justice or the substantive law here until 1712.⁴ In that year, he issued "Letters Patent" to Sieur Crozat, his Secretary, directing him to assume the administration of the territory. That document made "Our [royal] Edicts, Ordinances & Customs and the Usages of the Provostry and Viscounty of Paris" applicable to the colony.⁵ These "edicts, ordinances, customs, and usages" included, among others, la Coutme de Paris and l'Ordonnance de 1667 (concerning civil procedure).⁶ As we will see later on, at least some elements of these early French legal authorities remain a part of Louisiana law even today.

2. The Spanish Period (1763-1800)

In a treaty signed in 1762, France ceded Louisiana to Spain.⁷Until fairly recently, there has been some debate about whether the Spanish ever introduced Spanish substantive law into the new colony.⁸ The first Spanish governor, Don Antonio de Ulloa, clearly did not do it. The question is-or was-whether the second Spanish governor, General Alexander O'Reilly, did so. The cause of the uncertainty is, at least in part, simply that no one has ever been able to find a decree in which O'Reilly put that law into effect.⁹Notwithstanding this fact, nearly all-if not all-historians of Louisiana law today agree that O'Reilly must have issued such a decree.¹⁰ This opinion has multiple foundations. For one thing, O'Reilly had requested and received authority from the Spanish crown to do precisely that.¹¹ And for another thing, the records of Laussat, the French governor during the second French colonial period, indicate that Laussat had received a copy of such a decree upon his arrival here in Louisiana.¹² Finally, there's the witness of a number of Louisiana lawyers and judges who had lived through the transition from French to American rule (some of whom had been around even in the Spanish period). In the early part of the American period, these lawyers and judges consistently stated or, at the very least, assumed that the law which had theretofore been in force in Louisiana was "Spanish," not "French."¹³

Now, precisely what "Spanish law" O'Reilly put into effect in Louisiana is not entirely certain, inasmuch as the decree that put that law into effect has apparently been lost. But one must suppose that it was the same Spanish law that had been or would soon be put into force in Spain's other New World colonies. It was that law, after all, that O'Reilly had asked the Spanish government for permission to put into effect here. That law included, among other things, various Spanish law digests or codes, such as the Recopilation de Castilla, Recopilacion de las Indias, the Leyes de Toro, the Fuero Real, and the Siete Partidas, well as various Roman law digests or codes, in particular, the works of Justinian.¹⁴ At least some elements of this "Spanish law," as we will later see, ending up "sticking," that is, remain a part of Louisiana's private law even now.

3. The Second French Period (1800-1803)

By treaty signed on October 1, 1800, Spain retroceded Louisiana to France.¹⁵ Just as there was once uncertainty regarding whether the Spanish authorities ever put Spanish law into effect in Louisiana, there is also some uncertainty regarding whether the French authorities, upon their return to Louisiana, reinstituted French law.¹⁶Though there is admittedly some evidence to the contrary, the weight of the evidence favors a negative answer, that is, that the French authorities did not reinstitute French law. First, there's the record of the correspondence between Laussat, the French governor, and authorities back in France. Though Laussat wanted to put French law -which, at that time, would have meant post-revolutionary French law-into force in Louisiana, the French government repeatedly declined his proposals.¹⁷ In addition, there is, once again, the consistent witness of those Louisiana lawyers and judges who had lived through the transition from French to American rule, according to whom it was Spanish law, not French law, that had been in effect when the Americans had assumed control.¹⁸

B The Territorial Era (1803-1812)

1. Louisiana's Civil Law Before The Digest

In the Treaty of Paris, executed on March 22, 1803, France ceded Louisiana to the United States.¹⁹ The transition of power occurred on December 20, 1803, the date on which the new American governor, William Claiborne, assumed his post.²⁰

Claiborne, who had been trained in the common law tradition and had served on the Tennessee Supreme Court, hoped eventually to establish the Anglo-American common law as the law of the new territory.²¹ When Claiborne's plan to "commonize" Louisiana law became public, it aroused intense opposition among Louisianians of Continental ancestry, partly for economic and partly for cultural reasons.²²

The fight to save Louisiana's civil law was centered in the Territorial Legislature, which the United States Congress had created at the behest of Claiborne's opponents.²³ One of the new legislature's first acts was to pass an act "declaring the laws which continue to be in force in the Territory."²⁴ Those laws, according to the act, consisted of:

1. The roman Civil code, as being the foundation of the Spanish law, by which this country was governed before its cession to France and to the United States, which is composed of the institutes, digest and code of the emperor Justinian, aided by the commentators of the civil law, and particularly of Domat . . . ; the whole so far as it has not been derogated from by the spanish law; 2. The Spanish law, consisting of the books of the recopilation de Castilla . . . , the [siete] partidas . . . , the fueroreal, the recopiliation de indias . . . , the laws de Toro, and finally the ordinances and royal orders and decrees, which have been formally applied to the colony of Louisiana . . . .²⁵ The purpose of the act was two-fold. The first, reflected in the...