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Mixed Jurisdictions and Convergence: The Louisiana Example

Published online by Cambridge University Press:  28 February 2019

Warren M. Billings
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Extract

Once on a plane to New Orleans I chanced to half overhear a conversation between two passengers who shared the same row of seats with me. Somewhere between wakefulness and drowsiness, my ear caught a telltale accent that betrayed one of my seatmates as an Orleanian as they chatted animatedly about the Crescent City, Louisiana, and the ways that both diverged from the rest of the country. The native noted reverently the influence of the Roman Catholic Church, he remarked grandly on the extraordinary cuisine, he waxed pridefully about the city as the birthplace of jazz, and he spoke warmly about the manifold ethnic origins of his fellow Louisianians. Then, as if to fortify his contention that he hailed from a truly unusual place, he pointedly observed that Louisiana was the only state in the nation whose legal system rested upon the Napoleonic Code, even as he confessed to an uncertainty about why that difference existed or what it meant precisely.

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Articles
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International Journal of Legal Information , Volume 29 , Issue 2 , Summer 2001 , pp. 272 - 308
Copyright
Copyright © 2001 by the International Association of Law Libraries 

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References

1 See, for example, Wigmore, John H., “Louisiana: The Story of its Legal System,” Tulane Law Review 1 (1916): 1–45; Dart, Henry Plauché, “The Legal Institutions of Louisiana,” ibid., 3 (1918): 254–80; Charbonneau, Thomas E., Combe, David A., and Herman, Shael, The Louisiana Civil Code: A Humanistic Appraisal (New Orleans, 1981); Palmer, Vernon Valentine, ed., Louisiana: Microcosm of a Mixed Jurisdiction (Durham, N.C., 1999). That view has also suffused more popular writing, such as Flake, Carol, New Orleans: Behind the Masks of America's Most Exotic City (New York, 1994), 64–67. Recently, though, it has come under scrutiny and revision. See Billings, Warren M. and Fernandez, Mark F., eds., A Law Unto Itself? Essays in the New Louisiana Legal History (Baton Rouge, 2001).Google Scholar

2 The origin of the myth is treated in my introduction to Schafer, Judith Kelleher and Billings, Warren M., eds., An Uncommon Experience: Law and Judicial Institutions in Louisiana, 1803–2003 (Lafayette, La., 1997), 11–17 and Fernandez, Mark F., “Louisiana Legal History: Past, Present, and Future,” in Billings and Fernandez, eds., A Law Unto Itself, 1–23.Google Scholar

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19 The sources of the Digest have long been a bone of contention among Louisiana legal scholars. Some have argued long and vehemently for France as the predominant influence; others have contended with equal force for Spain. A representative sampling of the nature of the disputation is to be found in Dart, Henry Plauché, “The Influence of the Ancient Laws of Spain on the Jurisprudence of Louisiana,” Tulane Law Review, 6 (1931–32): 83–93; Franklin, Mitchell F., “The Place of Thomas Jefferson in the Expulsion of Spanish Medieval Law From Louisiana,” ibid. 16 (1941–42): 319–38; Franklin, , “The Eighteenth Brumaire in Louisiana: Talleyrand and the Spanish Medieval System of 1806,” ibid.: 514–61; Reynolds, C. Russell, “Alfonso el Sabio's Laws Survive in the Civil Code of Louisiana,” Louisiana History 12 (1971): 137–47; Tucker, John H. Jr., “Source Books of Louisiana Law,” Tulane Law Review 8 (1933–34): 396–405; Stone, Ferdinand, “The Civil Code of 1808 for the Territory of Orleans,” ibid. 33 (1958–59): 3–6; Hood, John T. Jr., “The History and Development of the Louisiana Civil Code,” ibid., 7–20; Baudoin, Louis, “The Influence of the Code Napoleon,” ibid.: 21–28; Franklin, Mitchell, “An Important Document in the History of American, Roman, and Civil Law: The De la Vergne Manuscript,” ibid., 35–42; Tucker, Thomas W., “Sources of Louisiana's Law of Persons: Blackstone, Domat, and the French Codes,” ibid. 45 (1970–71): 264–95; Batiza, Rodolpho, “The Louisiana Civil Code of 1808: Its Actual Sources and Present Relevance,” ibid. 46 (1971–72): 4–165; Sweeney, Joseph Modeste, “Tournament of Scholars over the Sources of the Civil Code of 1808,” ibid.: 585–603; Pascal, Robert A., “Sources of the Digest of 1808: A Reply to Professor Batiza,” ibid., 603–27; Batiza, Rodolpho, “Sources of the Digest of 1808, Facts and Speculation: A Rejoinder,” ibid., 628–53; Dainow, Joseph, “Moreau Lislet's Note on the Sources of Louisiana's Civil Code of 1808,” Louisiana Law Review 19 (1958–59): 43–51. However the systematic analysis of Richard Holcombe Kilbourne, Jr., A History of the Louisiana Civil Code: The Formative Years, 1803–1839 (Baton Rouge, 1987) settles the argument in favor of the predominance of Spanish influences.Google Scholar

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21 The Mississippi River makes nearly a two hundred-seventy degree bend at New Orleans. Hence the synonym “Crescent City.”Google Scholar

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28 Between 1812 and 1845, members of the court were designated “judges” rather than “justices,” and there was no formal recognition of a chief judge as such. However from the first session of court forward, it was the custom for the senior judge in point of commission or length of tenure to preside. The judiciary article in the Constitution of 1845 adopted the style “justice” and “chief justice.”Google Scholar

29 Kilbourne, , A History of the Louisiana Civil Code, 96–130; Fernandez, , From Chaos to Continuity, Chapter Six; Concurrent Resolution of the General Assembly of Louisiana, 14 March 1822, Acts Passed at the Second Session of the Fifth Legislature of the State of Louisiana (New Orleans, 1822), 108.Google Scholar

30 “An Act relative to the Criminal Laws of this State,” Acts Passed at the First Session of the Sixth Legislature of the State of Louisiana (New Orleans, 1821), 30–32; Concurrent Resolution of the General Assembly of Louisiana, 13 Feb. 1821, in Livingston, Edward, The Complete Works of Edward Livingston on Criminal Jurisprudence … (New York, 1873) 1:4; Billings, , “Origins of Criminal Law in Louisiana,” 66; Grant Lyons, “Narrow Failure, Wider Triumph? The Response to Edward Livingston's System of Criminal Law in Louisiana and Europe” (M.A. thesis, University of New Orleans, 1973); Preliminary Report on the Plan of a Penal Code, Works of Edward Livingston 1:7–79.Google Scholar

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34 This discussion relies on Kilbourne, , History of the Louisiana Civil Code, 131–65 and Fernandez, , From Chaos to Continuity, Chapter Six. Fernandez's discussion of the issues in Reynolds v. Swain is especially cogent, and it should be consulted for a detailed analysis of the issues and the constitutional stakes involved in the case.Google Scholar

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