The de la Vergne Volume and the Civil Law – A Celebration
A crucial document in understanding the history of the law in Louisiana after the cession to the United States is known as the de la Vergne Volume or manuscript. Your blogger has discussed it, first in his PhD thesis, and then in a number of articles.* It was compiled by Louis Moreau Lislet, one of the redactors of the first two civil codes of Louisiana, though not in his hand, but that, one suspects, of a clerk. A very early version of it, preserved in Louisiana State University, is, however, almost certainly in Moreau’s hand. Other versions of Moreau’s collection survive. See my article of 2009.
The manuscript was passed down through the de la Vergne family from Hugues de la Vergne, a notary public who became a member of the Louisiana bar, and who had at one stage shared an office with Moreau Lislet. In 1938, Pierre de la Vergne shared knowledge of its existence with Ferdinand F. Stone of the Tulane Law School. In 1941, Mitchell Franklin of the same Law School claimed that in the MS Moreau Lislet provided the “sources” of the code of 1808. This became a relatively settled view.
It was once assumed to show the legal origins or sources of the actual articles of the first Louisiana code, The Digest of the Civil Laws now in Force in the Territory of Orleans with Alterations and Amendments Adapted to its Present System of Government, promulgated in 1808; but modern scholarship, including that of your blogger, has shown that this cannot be the case. Indeed he has demonstrated the close link it bears to the multi-volume Teatro de la legislación universal de España e Indias compiled in Madrid in the 1790s by Antonio Xavier Pérez y López. Moreau Lislet drew very closely on this compilation of Spanish laws, with its excellent introduction, in a whole variety of endeavours, including his translation of the Siete Partidas, the medieval Castilian law book.
This then raises the question: Why did Moreau Lislet compile the volume? What was its purpose?
The references are to Spanish, some French, and some Roman sources, with very occasional references to a Territorial Statute. There is a general list of sources at the beginning of each title; more specific references are allocated to individual articles. As your blogger has shown beyond any doubt, behind the lists in the de la Verne Volume lie the lists Pérez y López provided in his Teatro to equivalent titles of law. Moreau Lislet also compiled these lists AFTER the Digest has been enacted. Moreover, research, including your blogger’s, has shown that the references to Spanish law are generally NOT to the sources of the articles. There can be little doubt but that much of the Digest was drawn from the French Code civil and its Projet, neither of which are ever cited.
One conclusion, argued for over many years by the late Professor Robert Pascal of the L.S.U. Law School, was that the Digest was “Spanish law” in French dress, with the de la Vergne Volume revealing the “true” sources. But while some provisions of the Digest are indeed of Spanish origin, this is very far from being the case for the Digest as a whole. The late Rodolfo Batiza of the Tulane Law School argued for the origin of most of the articles of the Digest in the French Code. There is much more evidence to support this. The work of Vernon Palmer on obligations and of Asya Ostroukh on property, to pick just two examples, supports this. On the other hand, the book of the Digest that differs most from its French models is that on persons. Your blogger’s PhD dissertation, however, showed that in that book, the puissance paternelle and puissance maritale were not “Castilian” or “Spanish” but basically northern French in origin, but with some Castilian influence. Moreover, your blogger’s Brendan Brown lecture of 4 April 2019, forthcoming in revised form in the Loyola Law Review, demonstrated significant differences in other areas between the French models and the Digest; but this was not because the Digest was embodying Spanish law in French words. Rather, certain French Revolutionary reforms were not suited to the situation in Louisiana. In fact, as your blogger first argued in his thesis, he remains convinced that, in the Digest, Moreau Lislet and James Brown, drawing on materials available, created a unique and important civil code, which they were attempting to tailor to suit the conditions in Louisiana and its needs, as they understood them. And your blogger is of the view that what they did represented an acceptable interpretation of the instructions of the Territorial Legislature to base the code on the civil laws in force in the Territory, which were indeed the Spanish laws with some amendments.
Your blogger concluded in his thesis that the de la Vergne volume was probably a concordance intended to assist attorneys in linking the texts of articles of the Digest with the Spanish law that the courts revived in practice in some instances. Supporting this is the fact that the material he used in it was also used in his translations of the Siete Partidas, which definitely had that aim. Of course, this is a surmise, but it is in your blogger’s view the most plausible one–more plausible, for example, than the late Hans Baade’s ingenious suggestion that the de la Vergne Volume was prepared to pretend that the Digest was founded on the Spanish laws of the Indies that were definitely in force when the Americans took over the colony.
This blog has in the past mentioned the late Louis de la Vergne, noting his death (see https://www.elhblog.law.ed.ac.uk/2017/10/05/louis-v-de-la-vergne-1938-2017/) and publishing some photographs of him with the volume that he owned (see https://www.elhblog.law.ed.ac.uk/2010/09/28/the-de-la-vergne-volume-and-louisiana-legal-history/). Mr de la Vergne was fascinated with the legal history of Louisiana and the part his family had played in it and indeed in the general history of Louisiana. He was a man generous with his time, and endlessly willing to discuss legal historical matters with scholars and learned librarians. He was always very helpful to your blogger, even if he had challenged the view that the volume revealed the “sources” of the Digest. Mr de la Vergne left the volume to his friend Ms Anna Swadling, and she recently generously donated it to the Tulane Law School of which he had been an alumnus.
To mark this, on 6 November, 2019, the Tulane Law School held a “Celebration of the cIvil Law and etc de la Vergne Volume”. Your blogger was fortunate to be invited and to be able to attend. After an introduction by Professor David Meyer, Dean of the Law School, Professor Vernon Palmer gave an elegant presentation on the volume and its role in the legal history of Louisiana, to be followed by discussions by Professors Ronald Scalise and Sally Brown Richardson, exploring different aspects of the volume, including its role in teaching. Their remarks are available on the Tulane Law School website: https://law.tulane.edu/news/remarks-de-la-vergne-volume-celebration. Ms Swadling was there, as well as some members of the de la Vergne family, and a descendent of Louis Moreau Lislet, currently a student at the Tulane Law School. It was a suitable event both to mark the memory of Louis de la Vergne and the generous gift of Ms Swadling. There is a good account of it with photographs available at the same website: https://law.tulane.edu/news/fabled-de-la-vergne-volume-feted-tulane-law
Below are some photos of your blogger with an important document relating to the introduction of Spanish law into Louisiana, with Professor Olivier Moréteau of LSU and Dean Meyer, and in animated conversation with Professor Moréteau, all courtesy of Mrs Georgia Chadwick, retired Director of the Law Library of Louisiana.
- John W. Cairns, Codification, Transplants and History: Law Reform in Louisiana (1808) and Quebec (1866) (2015)
- “Spanish Law, the Teatro de la legislación universal de España e Indias, and the Background to the Drafting of the Digest of Orleans of 1808”, in Séan Donlan and Vernon Valentine Palmer, eds., Legal Traditions in Louisiana and the Floridas (2019), pp. 149-99 (reprint of “Spanish Law, the Teatro de la legislación universal de España e Indias, and the Background to the Drafting of the Digest of Orleans of 1808”, Tulane European and Civil Law Forum, vol. 31/32 (2017), pp. 79-120)
- “Introductory Essay to the Discorso preliminar of Pérez y López’s Teatro”, Journal of Civil Law Studies, vol. 11 (2018), pp. 433-64
- “The de la Vergne Volume and the Digest of 1808” Tulane European and Civil Law Forum, vol. 24 (2009), pp. 31-81