In 1806, Moreau Lislet and James Brown were given the job of drafting Louisiana’s first civil code, which was to be a codification of the laws in force at the time in the territory.[1. V Feliu, D Kim-Prieto and T Miguel ‘A Closer Look: A Symposium among Legal Historians and Law Librarians to Uncover the Spanish Roots of Louisiana Civil Law’ (2010) < http://ow.ly/cqudu > accessed 28 August 2012.] However, the code that they drafted, the Digest of 1808, bore no indication of its sources, and academics have since pondered what they were.[2. A N Yiannopoulos, ‘The Civil Codes of Louisiana’ (2008) 1 CIV. L. COMMENT. < http://www.law.tulane.edu/uploadedFiles/Institutes_and_Centers/Eason_Weinmann/v01i01-Yiannopoulos(1).pdf > accessed 28 August 2012.] This debate normally boils down to whether the code was mainly Spanish or French in what Feliu, Kim-Prieto and Miguel describe as the “now-famous Batiza-Pascal debate” [3. V Feliu, D Kim-Prieto and T Miguel (n1) 2.] in reference to the heated academic back-and-forth had during the 1970s by two of the main proponents of the opposing views.
The French Codes
In his exhaustive linguistic analysis that set alight this famous debate, Batiza traced 70% of Louisiana’s first civil code to the French Projet de la Commission du Gouvernement of 1800 and the French Civil Code of 1804,[4. R Batiza ‘The Louisiana Civil Code of 1808: Its Actual Sources and Present Relevance’ (1971) 46 Tul. L. Rev. 4, 11.] attributing only 8% of the code to Spanish sources. [5. R B Rabalais ‘The Influence of Spanish Laws and Treatises on the Jurisprudence of Louisiana: 1762-1828′ (1982) 42 La. L. Rev. 1485, 1488.] Although, as Pascal points out, this does not necessarily mean that the code was not based on Spanish law,[6. R Pascal ‘Sources of The Digest of 1808: A Reply to Professor Batiza’ (1971) 46 Tul. L. Rev. 603.] which, it is generally accepted, was the main law in force in Louisiana when the code was drafted. [7. V Feliu, D Kim-Prieto and T Miguel (n1).]
Pascal claims that as there was no unified code of Spanish laws at the time, and as the Louisiana code was to be written in French (and then translated into English), the drafters decided to make their lives easier and use the recently drafted Napoleonic Code of 1804 as a model or an “interface between the information systems of Spanish law” and the new code.[8. Pascal] [9. V Feliu, D Kim-Prieto and T Miguel (n1) 8.] Where the French code expressed the same substance as Spanish law, the article in question was copied directly, argues Pascal.
According to this argument, the Louisiana code was always going to look like the French codes, even if its basis was Spanish. Pascal asserts that where French and Spanish law diverged, Spanish law took preference, and he cites examples of this, one of which is the concept of divorce.[10. Pascal (n6).] Whereas French law admitted divorce and named it as such, Spanish law did not, preferring to call it “separation from bed and board”, which is what was used in the Digest of 1808 instead of “divorce”.[11. ibid 622] However, Palmer notes that the Digest of 1808 also often diverges from Spanish in favour of French law.[12. V V Palmer ‘The French Connection and The Spanish Perception: Historical Debates and Contemporary Evaluation of French Influence on Louisiana Civil Law’ (2003) 63 La. L. Rev. 1067]
So, while both sides acknowledge the use of French phraseology, the dispute centres on whether the substance of the Digest of 1808 is actually based on French or Spanish law. But why did the drafters hide the origins of the code in the first place? According to Justice Tate of the Louisiana Supreme Court, there is a plausible explanation:
The deliberate intent of the redactors was to create a comprehensive body of principles and rules of law that either would be directly applicable to a matter in dispute or would be susceptible of application by expansive interpretation and analogy. In the absence of positive law, there would be judicial resolution of disputes by application of equitable principles rather than by resort to ancient treatises or former laws.[13. cited in Yiannopoulos (n2) 9.]
Despite this supposed intention, the new code “did not end judicial recourse to Spanish law” , which had a “significant influence” in judicial decisions in Louisiana through to 1828,[14. Rabalais (n5) 1493.] when, owing to the legal uncertainty resulting from having to resort to the large mass of uncodified Spanish law for points not covered in the Civil Code, the Great Repealing Statute of 1828 was passed, which “abrogated ‘all the civil laws which were in force before the promulgation of the civil code lately promulgated'”. [15. Palmer (n12) 1077]
Louisiana law in 1806
Another aspect that has fuelled the debate is the question of what laws were actually in effect in Louisiana at the time of drafting.[16. cited in Yiannopoulos (n2).] As the drafters’ commission was to codify the law in force, this is a key point in the arguments of both sides, and not one that is as straightforward as might be expected. Below is a time-line summary of the legal history of the Louisiana prior to 1808.[17. ibid.]
|1699||French settlement in Louisiana.|
|1712||Legal history of Louisiana starts when Louis XIV grants a “charter to Antoine Crozat for the development, administration, and exploitation of the possession”.[18. ibid 2.] Territory governed by the laws or rules of Paris and surrounding area.|
|1762||France cedes Louisiana to Spain. French law still in force.|
|1769||Spanish law introduced through an ordinance known as O’Rielly’s Code that “transformed Louisiana into a Spanish ultramarine province, governed by the same laws as the other Spanish possessions in America”.[19. ibid 4.] Main provisions taken from Nueva Recopilación de Castilla and the Recopilación de las Indias. The French population possibly continues using French law extrajudicially.|
|1800||Louisiana handed back to the French.|
|1803||The French assume sovereignty on November 8 but only for 20 days. Bulk of Spanish law remains in force.|
|1803||US takes possession of Louisiana under the Louisiana Purchase.|
Pre-1808 Louisiana legal history.[20. ibid.]
In 1806, thanks to two bills passed to declare what law was actually in effect in Louisiana, it was determined that the Roman law of the Emperor Justinian, “except as derogated from by the Spanish law”, and the following Spanish laws were in force:[20. Feliu, Kim-Prieto and Miguel (n1) 11.]
1. The Recopilación de Castilla (1567 and 1777);
2. The Autos Acordados (1745);
3. Las Siete Partidas (the law of the Seven Parts drafted 1256-1263 under Alfonso the Wise but not promulgated as law until 1343);
4. The Fuero Real of Castile (1254, also under Alfonso the Wise);
5. The Recopilación de Leyes de los Reynos de las Indias (1661);
6. The Leyes de Toro (1505);
7. The Royal Orders and Decrees which had formally been applied to Louisiana, all as aided by the authority of reputable commentators admitted in the courts of Justice. [21. ibid 11]
Despite this, some, such as Colonel John H. Tucker, Jr., maintain that O’Reilly never actually repealed French law, and that the drafters ended up codifying French law.[22. J Tucker ‘The Code and the Common Law in Louisiana’ (1955) 29 Tul. L. Rev. 739]
The de la Vergne Volume
Another important piece in this legal puzzle is the de la Vergne Volume—a copy of the Digest of 1808 with manuscript notes that have been attributed to Moreau Lislet. These notes apparently cite sources for 70% of the articles in the code, and they are mainly Spanish and Roman; there is no mention of the French Civil Code or the Projet of 1800.[23. J W Cairns ‘The de la Vergne Volume and the Digest of 1808′ (2009) 24 Tulane European & Civil Law Forum 31.] This volume, which was part of a private collection and unknown to scholars until the mid-twentieth century, was seen by Pascal as evidence to support his thesis:
…the Digest of 1808, though written largely in words copied from, adapted from, or suggested by French language texts, was intended to, and does for the most part, reflect the substance of the Spanish law in force in Louisiana in 1808. [24. Pascal (n6) 604.]
However, this document was not enough for everyone. Batiza, for instance, does not attribute much value to it precisely because it makes no mention of the French codes, which, according to him, were “the two most constituent elements of the Code of 1808”.[25. Batiza (n4) 10.] In a more recent study, Palmer found that where Moreau cites no sources in the de la Vergne Volume, 30% of the time, the articles in question are exclusively of French origin,[26. Palmer (n12).] which leads us to another plausible reason for not explicitly stating the sources.
If the drafters did decide that they were going to violate their instructions and not exclusively codify the predominantly Spanish law in force in Louisiana at the time, which is what some believe happened,[27. Yiannopoulos (n2).] why would they tell anyone about it? Palmer claims that the de la Vergne Volume was never meant to be a “complete list of sources”.[28. Palmer (n12) 1085.] According to him, it was a list of Spanish or Roman sources that had could be seen to have some connection to the articles of the code. So, the de la Vergne Volume might have been some sort of justification or test by the drafters to see how closely their work actually matched their commission. Maybe they wanted to satisfy themselves that they had carried out their task adequately.
Of course, if this is the case, and, as Palmer suggests, all the blanks in the de la Vergne Volume both correspond to “legal blanks” in Spanish law and directly reflect French law, this means that the drafters relied heavily on the Napoleonic Code, both for form and substance.[29. ibid] From a practical point of view, this would at least seem to be the logical thing to do given both the comprehensive and succinct nature of the ground-breaking French code, which had a strong influence in the drafting of many other civil codes, including Spain’s first of 1889,[30. W Tetley ‘Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified)’ (2000) 60 La. L. Rev. 677] in addition to the fact that Spanish private law was not neatly complied into one document at that time.
Continental civil law
The fact that such a mystery can even exist is also attributable to the similarity of Spanish and French law at the time. As Trahan notes, “there was considerable overlap, in other words, the law was in the main the same”.[31. J R Trahan ‘The Continuing Influence of le Droit Civil and el Derecho Civil in the Private Law of Louisiana’ (2003) 63 La. L. Rev. 1019, 1037.] In some respects, this may diminish the importance of the debate over the Digest’s exact origins, which, in any case, has been put to one side without even being “satisfactorily resolved”.[32. Cairns (n23) 36.] What, however, can be said with at least some degree of certainly?
Most authors acknowledge that the Digest of 1808 was based on the structure of the French code,[33. Yiannopoulos (n2).] [34. Pascal (n6).] and few would dispute that the substance of the law in the code could be seen to reflect both Spanish and French private law of the time or be a combination of the two,[35. S C Symeonides ‘An Introduction to “The Romanist Tradition in Louisiana”: One Day in the Life of Louisiana Law*’ (1995) 56 La. L. Rev. 249.] given the divergences in both directions on different occasions.[36. Pascal (n6).] [37. Palmer (n12)] This combination changed in subsequent codes in favour of French law, probably because of the greater importance of French in Louisiana and also owing to the fact that the Digest of 1808 was moulded in the shape of the French codes, which was conducive to adopting more French law at later stages.[38. ibid] This was, at least, in terms of private law. Public law, on the other hand, in the form of legislation such as the Code of Practice of 1825, seems to have been more heavily based on Spanish sources.[39. Rabalais (n5).]
What can be said, then, is that Louisiana’s Civil Code and legal system were based on continental, Roman civil law.[40. Symeonides (n35)] And while, as Trahan points out, both the French and Spanish legal content has been diluted over time—not least because of the influence of US common law,[41. Trahan (n31).] the “law in Louisiana is still based to a large (though sometimes overestimated) degree on French and Spanish (civil) law…”,[42. R Michaels ‘American Law’ in J M Smits (ed) Elgar Encyclopaedia of Comparative Law (Edward Elgar Publishing 2006 Massachusetts), 73] which is what makes it interesting for a translation point of view. As Louisiana is a continental civil law system in English, it should be fertile ground for finding authoritative English equivalents to Spanish (and French) legal concepts. How similar current Louisiana and European civil law are is, of course, another question, but there are bound to be a number of concepts that coincide, in meaning but also in terms of how they fit into the respective legal systems, which is often the sticking point for many potential common law equivalents in translation.