Uncovering the Spanish Influence on Louisiana Civil Law: A Closer Look - Prof. Magdalena, Apuntes de Historia del Derecho Español

¡Descarga Uncovering the Spanish Influence on Louisiana Civil Law: A Closer Look - Prof. Magdalena y más Apuntes en PDF de Historia del Derecho Español solo en Docsity! 1 History of Spanish Law and Institutions ARA Group (10) Prof. Mª Magdalena Martínez Almira RREADINGS FOR THE STUDENTS A CLOSER LOOK: A SYMPOSIUM AMONG LEGAL HISTORIANS AND LAW LIBRARIANS TO UNCOVER THE SPANISH ROOTS OF LOUISIANA CIVIL LAW Vicenç Feliu, Dennis Kim-Prieto, and Teresa Miguel This article is derived from a symposium of experts in legal history and legal bibliography particular to the state of Louisiana. They are: ProfessorAlain Levasseur, Moyse Professor of Law, and Professor Vicenç Feliú, former Assistant Director for Public Services and Associate Librarian for Foreign, Comparative, and International Law at the Louisiana State University Paul M. Hebert Law Center; Professor Raphael J. Rabalais, Sarpy Distinguished Professor at the Loyola University New Orleans College of Law; and Mr. William T. Tête, Of Counsel for Medo & Tête and Adjunct Professor of Law at Loyola University New Orleans College of Law. The panelists presented key documents that contributed to the development of Louisiana civil law, placed these documents into their proper historical context, and explained how each was influential as the civil law of Louisiana evolved over the course of the last 200 years. This symposium, entitled ”A Closer Look: Uncovering the Spanish Roots of Louisiana Civil Law,“ was held on 17 July 2007 in New Orleans as a featured program of the 100th Annual Meeting of the American Association of Law Libraries.1 I. INTRODUCTION 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 Tête for the enthusiasm and authority their participation brought to this symposium. The symposium was conceived and moderated by Teresa M. Miguel, Head of Foreign and International Law Reference at the Lillian Goldman Law Library, Yale Law School. Both Dennis Kim-Prieto, co- moderator and Reference Librarian at Rutgers University-Newark Law Library, and Vicenç Feliu, speaker and Director of the Law Library and Assistant Professor of Law, University of the District of Columbia, David A. Clarke School of Law, Mason Law Library, 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 March 4, 2009). 2 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.2 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.3 In this article we propose and demonstrate 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. This article begins with a brief historical account of the formation of Louisiana from territory to statehood. We then closely examine the contributions of Louis Casimir Elisabeth Moreau Lislet, the architect of the Digest of 18084 and the Code of 1825.5 In doing so, we analyze original Spanish documents and resources that were the foundation of the Digest of 1808. We demonstrate that these Spanish civil law sources had a profound impact on Moreau Lislet and on the creation of Louisiana civil law. This leads us into the continuing evolution of Louisiana civil law and the now-famous Batiza-Pascal debate on the origins of the Louisiana civil law.6 II. COLONIAL LUISIANA AND THE CONTEXT OF SPANISH LAW The Spanish heritage in Louisiana is apparent throughout the state and its people. It can be seen, for example, in the Spanish architecture dominating the French 2 Editorial, THE LOUISIANA GAZETTE, Friday, November 9, 1804. 3 See, e.g., Rodolfo Batiza, The Louisiana Civil Code of 1808: Its Actual Sources and Present Relevance, 46 TUL. L. REV. 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). 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). 5 LOUISIANA CIVIL CODE OF 1825. 6 Batiza and Pascal supra note 3. 5 engaged in lives of hard manual labor, burning thousands of calories per day towards their subsistence.14 Towards the end of the Spanish colonial period, the city of New Orleans became immensely wealthy and valuable, much like an American version of Venice. New Orleans, being below sea level, was a major source for the transfer of goods and overseas trade.15 Compared to other Spanish colonies in the Americas, New Orleans had an extremely high per capita income.16 The institution of slavery was practiced under French and Spanish colonial rule, but in 1792, the local cabildo adopted a resolution to stop the entry of slaves.17 The justification for this effort may have foreshadowed the slave rebellion just three years later in Point Coupée parish, slightly north of Baton Rouge today.18 Thus, during the waning years of Spanish rule, the importation of slaves stopped and did not resume until after the Louisiana Purchase. At the very end of Spanish colonial rule, political and governmental conditions had deteriorated. Spain was under increasing pressure from France, and was making 14 Rabalais, supra note 7. 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.) 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. 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). 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) 6 concessions to Napoleon.19 In October 1800, Spain secretly agreed to retrocede Louisiana to France. Napoleon planned to send a large army of 30,000 troops, first to eradicate a slave rebellion in Haiti, and then take possession of Louisiana.20 However, virtually all of his army died of yellow fever or other tropical disease while in the Caribbean, leaving him faced with the dilemma of trying to muster and transport another army. Instead, he ultimately decided to sell what his secret treaty had forbidden him to sell: thus was born Thomas Jefferson’s Louisiana Purchase and the beginning of the evolution of Louisiana civil law.21 III. MOREAU LISLET, ARCHITECT OF THE LOUISIANA DIGEST Louis Casimir Elisabeth Moreau Lislet was born in Dondon, St. Martin Parish, Saint Domingue (presently Haiti) in 1766.22 See Figure 1. He studied law in Paris and received the title of “Avocat de Parlement” around 1788. He married Anne Philippine de Peters in Paris in 1789 and they returned to Saint Domingue in 1790.23 A. Professional Experience 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. 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. 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. 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. 23 Id. at 95-97. 7 Between 1790 and 1793 Moreau Lislet practiced law in Saint Domingue. After the slave uprising and revolutionary takeover of the island by Toussaint Louverture in 1791, Moreau Lislet had the opportunity to become the attorney for many emigrants wishing to secure their property in their absence from Saint Domingue. The revolutionary events taking place in Saint Domingue after 1791 were the main factor in Moreau Lislet’s emigration to Philadelphia with his family in 1793. The family returned to Saint Domingue a year later, and Moreau Lislet continued his practice, serving as public defender and judge on several occasions.24 This pattern of practice and public service continued until 1803 when, en route with his family to Cap Français for an official assignment, enemy ships forced the vessel in which he was traveling to divert to Santiago de Cuba. On October 18, 1803, Moreau Lislet’s stay in Santiago became indefinite when the French evacuated Port-au- Prince, Haiti, preventing his return to his homeland. While in Santiago, Moreau Lislet continued to practice law and manage the affairs of his fellow émigrés through the agency of the French Government in that city.25 By August of 1804, the Moreau Lislet family joined the migration of French colonists from Saint Domingue to Louisiana, a move which marked the next stage in his career. During this period, Moreau Lislet not only became familiar with the English and Spanish languages, but he also learned in the practice of law in a Spanish civil law jurisdiction (Cuba) and in a common law jurisdiction (United States) as he continued to manage émigré affairs for clients in both Philadelphia and Santiago de Cuba. 26 (…) 24 Id. at 98-101. 25 Id. at 111-112. 26 Id. at 113.