Category: Louisiana

Judah Benjamin, 1811-1884, new book.

Legal History, Louisiana

All historians of the law of Louisiana know of Judah Benjamin; all historians of the law of sale in England also know of Judah Benjamin. I shall not discuss the basics of his life. There is an adequate Wikipedia entry that I lack the knowledge to praise or condemn, with its  speculations on his family life. He had a distinguished career as a lawyer and politician, and when the Civil War came, he became Attorney General and then Secretary of War and then Secretary of State for the Confederacy. After escaping at the end of the War, he eventually reached England, where he was admitted to the bar. There is no need to go further into his remarkable life. 

This month Edinburgh University Press is to publish by William C. Gilmore, The Confederate Jurist: The Legal Life of Judah P. Benjamin (ISBN 9781474482004). It focuses on his career as Jewish lawyer, U.S. Senator, Confederate statesman, political exile, leader of the English bar, and distinguished jurist.

According to EUP, this is the first biography written from a legal perspective on the public life of Judah P. Benjamin (1811–1884), a prominent figure in the common law world in the second half of the 19th century. Drawing on a range of primary source materials including newspaper articles, case law and extensive archival research in the UK and USA, it charts his rise as a lawyer first in the mixed legal system of Louisiana and then nationally. In 1853 he was the first person of Jewish heritage to be offered nomination to the US Supreme Court – an honour he declined. Benjamin was also a member of the US Senate, a slave owner and a supporter of Southern secession. In the Civil War he served continuously in the Confederate Cabinet initially as Attorney General, then as Secretary of War and finally as Secretary of State. Following the victory of the Union he fled America, a fugitive. In political exile in England he requalified as a Barrister at Lincoln’s Inn. Within a decade he had written a scholarly and long-enduring treatise on commercial law and become the undisputed advocate of choice in appeals before the House of Lords and the Privy Council. This book considers the extraordinary career of this distinguished jurist and reflects upon his legal legacy. There is a forward by Stephen C. Neff, Professor of War and Peace at the University of Edinburgh and author of Justice in Blue and Gray: A Legal History of the Civil War (Harvard University Press, 2010).

William C. (Bill) Gilmore is Professor of International Criminal Law Emeritus at the university of Edinburgh

A Virtual Conversation about the Lost Translators of 1808 and the Birth of Civil Law in Louisiana

Legal History, Louisiana

On 27 April, at 5.30 p.m. CST (Us and Canada) the Tulane Law School and the Center for International and Comparative Law invite you to a virtual conversation about the Lost Translators of 1808 and the Birth of Civil Law in Louisiana in celebration of the release of Vernon Palmer’s new book and his 50 years of teaching at Tulane Law School.


Featuring presentations by:

Vernon Palmer
Thomas Pickles Chair, Co-Director, Eason Weinmann Center for Comparative Law
Tulane Law School, Tulane University

John W. Cairns
Professor of Civil Law
Edinburgh Law School, University of Edinburgh

Olivier Moreteau
Professor of Law, Russell B. Long Eminent Scholars Chair, Assistant Dean & Director of the Center of Civil Law
Paul M. Hebert Law Center, Louisiana State University

Agustin Parise
Associate Professor
Faculty of Law, Maastricht University

Introductions by:
David D. Meyer
Mitchell Franklin Professor of Law and Dean of the Law School
Tulane Law School, Tulane University

And Q&A moderated by:
Sally Brown Richardson
A.D. Freeman Professor of Civil Law and Vice Dean for Academic Affairs
Tulane Law School, Tulane University
 
To register follow this link:
 
 

Translators of the Louisiana Code (Digest of Orleans) of 1808

Blackstone, Legal History, Louisiana, New Books, Roman Law

In very recent years there has been a renewed interest in the legal history of Louisiana in the Territorial Period and the early years of statehood. There has been a complete rethinking of the sources of the first Louisiana Civil Code, the Digest of the Civil Laws of the Territory of Orleans, with renewed reflection on some related documents, such as the de la Vergne volume, and other source material.

One important product of this developing research is the new book by Professor Vernon Palmer of the Tulane Law School, The Lost Translators of 1808 and the Birth of Civil Law in Louisiana, published by the University of Georgia Press in its Southern Legal History Series, ISBN 9780820358338.

There is not the scope here for a full review of this important and enlightening work. Professor Palmer explores the lives of the translators, which illuminates much of the tensions and culture of the early territorial period, before reflecting on their work in a fascinating account of what they did.

All interested in translation, codification, and early Louisiana should read this handsomely produced monograph.

The de la Vergne Volume and the Civil Law – A Celebration

Legal History, Louisiana, Roman Law

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.

 

* See:

  • 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

Louis V de la Vergne (1938-2017)

Legal History, Louisiana

Some years ago this blog had an entry on the de la Vergne manuscript or volume, with photographs of it and Louis V de la Vergne, its possessor. Mr de la Vergne has recently died. He was a man who was generous with his time and who was fascinated with the legal history of Louisiana and his ancestors and family’s many links with it. Among his ancestry can be counted well-known individuals such as Villeré, Bermudez, and Schmidt. Mr de la Vergne was very supportive of scholars and their research, and enthusiastic about their findings.

The earlier entry explained the significance of the manuscript in the history of the Territory of Orleans and the early state of Louisiana. The volume originated in the work of Louis Moreau Lislet, one of the redactors of the Digest of the Civil Laws Now in Force in the Territory of Orleans, generally known as the first Louisiana Civil Code, which was promulgated in 1808. The volume has generated much interest and discussion. See http://www.elhblog.law.ed.ac.uk/2010/09/28/the-de-la-vergne-volume-and-louisiana-legal-history/; http://www.elhblog.law.ed.ac.uk/2010/09/28/the-de-la-vergne-volume-and-louisiana-legal-history/

PhD candidates sought

Legal History, Louisiana, Old Books, Opportunities, Roman Law, Slavery

The Centre for Legal History in the University of Edinburgh has considerable experience in successfully supervising students for the degree of Ph.D. Supervision can be offered in Roman law, Roman and Canon law in the middle ages and early modern period, the history of Scots law, law and the Enlightenment, and slavery and law in the eighteenth century. Recent theses successfully examined include topics as diverse as legal transplants in Francophone Canada, sixteenth-century French legal practice, and moveable succession in the ius commune and Scots law.
Anyone interested should consider contacting Dr Paul du Plessis, Director of the Centre. Help can be given in finding funding to support the studies of appropriate candidates.

EARLY LOUISIANA AND HER SPANISH WORLD: 4 November, 2016

Legal History, Louisiana, News and Events

Our colleagues Seán Patrick Donlan of the School of Law of the University of the South Pacific and Vernon Palmer of the Tulane Law School have organised what promises to be an important conference on 4 November 2016, exploring the very significant role that Spain, Spanish culture, Spanish government, and Spanish ultramarine law played in Louisiana. This is a central topic requiring further investigation to help us understand not just the history but also the legal histories of Louisiana, the USA and Spanish colonialism.

In the 1970s, there was a lively debate between Professors Pascal and Batiza over the sources of the Digest of the Civil Laws now in Force in the Territory of Orleans of 1808. The latter showed that the overwhelming majority of the articles originated in French law; the former argued that they were Spanish in origin, if sometimes put in “French dress”. There can now be no doubt that the majority of the articles of the Digest were taken from the Code civil des français and its Projet of 1800; there was not a sustained attempt to embody “Spanish law” in “French dress”. This specific point has been fully explored in your blogger’s work, Codification, Transplants, and Legal History: Law Reform in Louisiana (1808) and Quebec (1866) (Clark, N.J.: Talbot Publishing, 2015), where he shows how and why the redactors used the sources they did. This work resolves the Batiza-Pascal debate. Nonetheless, there was a revival of the Spanish law in the decades following the promulgation of the Digest.

The significance of Spanish law and culture cannot be denied. Under Spain, the colony of Louisiana developed and flourished. The impact of Spanish law and customs and their influence on the law and culture require to be teased out. Of course, important work has already been done. One can point, for example, to the writings of Gilbert C. Din, on, to give two topics, slavery and the Cabildo. Others have also explored various issues. Given current historiography it is no surprise that slavery features in such work on Spanish Louisiana, including as well as the study of Din, a pioneering study by Hans Baade published as long ago as 1983.

The conference will cover: “Lawyers of Early New Orleans” by Kenneth Aslakson (History, Union College); “Spanish Law, Encyclopaedias, and the Digest of 1808” by John W Cairns (Law, Edinburgh); “Through a Glass Darkly: The Minor Judiciary of Feliciana, c1803-1810”, by Seán Patrick Donlan (Law, South Pacific); “‘The Spanish Spirit in This Country’: Newcomers to Louisiana in 1803-1805, and Their Perceptions of the Spanish Regime” by Eberhard (Lo) Faber (Music, Loyola); “A Confusion of Institutions: Spanish Law and Practice in a Franco-phone Colony Louisiana, 1763-c1798” by Paul Hoffman (History (Emeritus), Louisiana State); “A Dark Legacy of Spanish Governance: The Tradition of Extra-Legal Violence in Louisiana’s Florida Parishes” by Samuel C Hyde, Jr (History, Southeastern Louisiana); “The Supreme Court, Florida Land Claims, and Derecho Indiano” by MC Mirow (Law, Florida International); “Allegiance and Privilege: William Panton and the Spanish Realm” by David Narrett (History, Texas at Arlington); “Reclaiming Homes across the Florida Straits” by Susan Richbourg Parker (Former President, St Augustine Historical Society); “The Prosecution of Clement: Slave Violence and Spanish Legal Process in New Orleans, 1777-78” by Jennifer M Spear (History, Simon Fraser University); “Entangled Lives, Entangled Law: Women of Property in early Louisiana” by Sara Brooks Sundberg (History, University of Central Missouri).

It is easy to see the importance of these topics. All are interesting and it is good to note those that link Louisiana with other Spanish colonies and their cultures. There are themes that stand out: slavery, free people of colour, women, violence, links and comparisons. But this is a rich mix of topics that should open up many new avenues of research, creating a picture of a complex society, ethnically diverse, with tensions raising from that diversity as well as from slave-owning and the presence of large numbers of “free people of colour”.

Books croppedDLV 1(Photos courtesy Georgia Chadwick)

For full details of the conference and the papers, click on the link:

Early Louisiana and Her Spanish World – Abstracts (June 2016)

 

Tucker Lecture 2015; Louisiana State University, Center for Civil Law Studies

Legal History, Louisiana, News and Events

Esin Örücü, Professor Emeritus of Comparative Law at the University of Glasgow, as well as Professor Emeritus of Comparative Law, Erasmus University, Rotterdam, and one of the world’s most distinguished scholars of Comparative Law, delivered the Tucker Lecture on 17 March 2015, at the Centre for Civil Law Studies at the Paul M. Hebert Law Center of the Louisiana State University in Baton Rouge. Her title was: “One into Three: Spreading the Word Three into One: Creating a Civil Law System.” Professor Örücü explored the significance of translations, starting by looking at some general concerns such as language, culture, transpositions, neologisms, equivalence, mistranslations and then moving on to illustrating these issues through the experience of Turkey with her process of total and global modernization, westernization, secularization, democratization and constitutionalism.  The lecture then dealt with the translation into Turkish from the already-trilingual Swiss Civil Code, seemingly a “three into one” case, though only the French version was used by the Turkish translators. This was defined as “creating a civil law system,” converting within the span of five years, via five Codes, the efforts of reform resting solely on import and translation from major continental Codes both as to form and content, creating a civilian legal system out of a mixed one. Finally, she posed a crucial question related to all translated codes: why translate a code? Various aims and reasons were analysed.

esinesin  Photos courtesy Georgia Chadwick, LSU Centre for Civil Law Studies, and University of Glasgow

 

Judith Kelleher Schafer (1942-2014)

In memoriam, Legal History, Louisiana, Slavery

SchaferLegal history and the study of the history of slavery have suffered a significant loss with the death on 16 December of Judith Kelleher Schafer at, by modern standards, a relatively early age. A graduate of Sophie Newcomb College and Tulane University, Professor Schafer was a prolific, thorough, and imaginative scholar, with a keen eye for the telling detail and a fine way with words.

Her first book was Slavery, the Civil Law, and the Supreme Court of Louisiana (LSU 1994). A major achievement, this was based on detailed archival research through the records of the court. It was widely and well reviewed, though some reviewers noted a tension between  a theme of “Americanisation” of the law and one of “uniqueness” of the law of Louisiana – a theme that tends to run through Louisiana legal history more generally. Her next monograph was Becoming Free, Remaining Free: Manumission and Enslavement in new Orleans, 1846-1862 (LSU, 2003). Again based on detailed archival research, this time in the newspapers and court records of New Orleans, the author stressed that this was not a social history of slaves, freedmen and freedwomen, and slave owners, but a study of how these groups used the legal system. The era was that of intensification of slavery in parts of the U.S.A. in the lead up to the Civil War, as the white population started to become more anxious about the survival slavery and its survival; correspondingly it chronicles the attempts of free black to maintain their status. It is a complex topic. Finally, like many who have carried out detailed archival research, Professor Schafer came across other fascinating material. This resulted in a third monograph: Brothels Depravity, and Abandoned Women: Illegal Sex in Antebellum New Orleans (LSU, 2009). This explored the brutal lives of women who prostituted themselves in New Orleans, their violence, the violence against them, and how it all fitted in to property ownership and the needs for landlords to make money from tenancies. It is a fascinating book, telling a complex story, filled with illuminating and vivid stories.

I did not know Professor Schafer well; but I met her a number of times socially, and remember her as an elegant, friendly and amusing woman, whose kind politeness was genuine and not simply the product of good manners. I remember her talking about her determination to go home after Katrina, even to a house in a poor state. Anyone who acknowledges in her books the support derived from drinking companions surely deserves a vote! She will be missed by her family and friends as well as by historians of slavery and of Louisiana.

Louisiana Civil Code: Compiled Edition

Legal History, Louisiana

All those who research in the legal history of Louisiana are aware of the enduring value of the Compiled Edition of the Civil Codes of Louisiana, produced by the Louisiana State Law Institute pursuant to a 1938 Act of the State Legislature. Louisiana State University’s Law Centre has now digitized the pages of volume III of the Compiled Edition: http://digitalcommons.law.lsu.edu/la_civilcode/.

This means there is accessible, following the text of the Civil Code of 1870, the articles of the Digest of 1808 and the Civil Code of 1825, along with the relevant texts of the Code Napoleon and its Projet of 1800. The original volumes also included the Projets of the Civil Code of 1825 and of the Code of Practice. Perhaps the success of this endeavour will encourage the further digitization of this material.

This is an excellent resource for legal historians, and those who produce L.S.U. Digital Commons are to be congratulated and thanked.

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