Legal Eagles of Louisiana

Legal Eagle is what the OED describes as a rhyming collocation. The term goes back to the 1940s, and is first found in the U.S.A.

This Blog has a long-standing interest in Louisiana and its law. Louisiana is of course known as the Pelican State because of the adoption of the native brown pelican as the state bird. On the State Flag, a hen Pelican feeds her young with her own blood. Formalised in 1912 (and again in 2006) a pelican flag has in fact been used since the 1860s.

The bald-headed eagle has been the symbol used on the seal of the U.S.A. since 1782. It is a powerful symbol, the bird of Zeus, whose form he would sometimes take, and it is much used in heraldry, its wings outstretched generally symbolising protection.

The Law Library of Louisiana has just produced a poster as an exhibit, featuring symbolic eagles used by New Orleans printers in the early days of statehood (which came in 1812). Interestingly enough, one image depicts the eagle in the pose later used for the pelican, feeding her young with blood from her breast. It occurs on a French-language title page for acts passed by the first legislature of the new State. Over it is a ribbon bearing the words “Union” and “Confidence”. Also on the poster, but without a corresponding title page, is a medallion of another eagle, standing on a palm branch bearing in its beak a crown of laurel or olive, with the words Territory of Orleans surrounding the top half of the medallion with other devices – an intriguing symbol.

All of this points in an imaginative way to a fertile field for research. The Law library of Louisiana is to be congratulated for this stimulating display of symbols potent with meaning.

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Bicentenary, Supreme Court of Louisiana & Martin’s Reports

2013 is the bicentenary of the Louisana Supreme Court, established under the State's constitution of 1812 after Louisiana's admission as a state of the Union. It is worth noting that 2013 has seen the investiture of the 25th Chief Justice, with the notable milestone of the new Chief Justice, the Hon. Bernette Joshua Johnson, being the first African-American Chief Justice in Louisiana. Chief Justice Johnson has been a judge since 1984; she has been a member of the Supreme Court since 1994.

On 1  March there were special celebrations of the bicentenary in the Supreme Court Buildings, the culmination of a year of events. See http://www.lasc.org/press_room/press_releases/2013/2013-05.asp

One matter of particular interest is the publication on the website of the Court of historical legal material. This consists of a digitized version of the first Louisiana Reports, Martin's Reports, and two digitized MS minute books. Your blogger has already had passed some pleasant times, randomly browsing the volumes, searching by key words to see what turns up. See http://www.lasc.org/Bicentennial/historicaldocuments.aspx

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This will be a significant asset to scholars, and is an excellent lasting memorial of the celebrations.

Louisiana: Colonial Records, 1712-2012

In 1712, Antoine Crozat obtained a charter from the French Crown that granted him various privileges, mainly over commerce, in Louisiana for fifteen years. He had to send two ships each year to the colony with passengers and carrying material for the Crown. He also had each year to send a ship to Africa to buy slaves to sell to the colonists. The charter also provided that the Custom of Paris should apply in Louisiana. A little later another Crown document created the Superior Council. This was the start of the organized legal system in Louisiana.

In this tercentenary year, the Louisiana Museum Foundation has started a project to digitize the colonial legal records: see http://www.thelmf.org/colonial-documents. It is impossible to exaggerate the significance of this project in both preserving and making more accessible the rich records of Louisiana's legal historical past. Some of them were calendared and described in the Louisiana Historical Quarterly in the inter-War period, which just serves to whet the appetite. But they are important for legal historians, social historians, economic historians and genealogists, to name but a few. What can be done with them is indicated by some recent books, such as Din and Harkins, The New Orleans Cabildo (1996), to name but one.

A party on 8 December inaugurates the enterprize: http://www.thelmf.org/a-records-review-colonial-documents-going-digital-save-the-date

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Slavery, Louisiana, and Codification

This blog has an obvious interest in both slavery and law and the law of Louisiana. Both of these topics come together with the publication of Through the Codes Darkly: Slave Law and Civil Law in Louisiana, Lawbook Exchange, Clark NJ, 2012, by Vernon Valentine Palmer of the Tulane Law School. This pulls together Palmer’s research into slavery and Louisiana, though it is perhaps broader in implication and significance than that description and the title might suggest. It is an important work, reflecting on, for example, the customs that evolved around the practice of holding slaves, customs that made slavery more palatable for the enslaved, an important issue given the threat of slave insurrection – and in 1811 Louisiana had the largest ever slave insurrection in the U.S.A. (the subject of a recent popular history by Daniel Rasmussen – slaves of James Brown, one of redactors of the Code of 1808, were ringleaders).

Slavery is, of course, still with us in a variety of forms. Recent wars, the break-up of the old Soviet Empire, and other events have created the instability and social dislocation that makes individuals – particularly women and children – vulnerable to enslavement. This has made its proper definition a significant issue. Here one may note publication of the recent book edited by Jean Allain, The Legal Understanding of Slavery (Oxford, University Press, 2012). Through a historical and contemporary discussion (to which your blogger contributed a chapter) this seeks to assist in interpreting the provisions on slavery in international law. It contains a set of guidelines on how slavery should be understood and the relevant provisions interpreted.

It was the brutality of the Louisiana slave regime that led to the revolt of 1811; it is the brutality of modern slavery that means a work such as that edited by Allain is needed.
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Louisiana: The Legal History of Europe in a Single US State

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Louisiana: The Legal History of Europe in a Single US State
20-21 May 2011
Workshop Report

The state of Louisiana is unique: it is the only US state to have a civil law code. This code was inspired by European law codes such as the Code Napoléon as well as other European sources and it went on to have a surprising influence on modern law codes worldwide. This workshop set out to explore the history of the Louisiana Code as well as its impact. It took place under the gaze of portraits of thinkers past in the Old College’s Raeburn Room. What follows is a preliminary report about the presentations given over the two days of this lively and fascinating conference.

The event was opened by Professor Lesley McAra, Head of the School of Law, who revealed that she is a relative of the eighteenth century lawyer and book collector Andrew Crosbie – the original of Paulus Pleydell in Sir Walter Scott’s Guy Mannering, a well known character to legal historians. This set the tone perfectly for the conference especially since the first presentation took us into the realm of book history.

width=276Professors Cairns and McAra start the workshop

Professor John W. Cairns (University of Edinburgh) presented ‘Planning and Printing a Code/Digest’ in which he looked at the quality of printing of the original Louisiana Code and the implications of this. The Code was produced quite quickly: two jurists – Louis Moureau-Lislet and James Brown – were appointed to work with a committee to create a civil code on 7 June 1806. By 31 March 1808 their work was complete and an act to enact the Digest was passed. By October of the same year, 600 copies of the Digest of the Civil Laws Now in Force in the Territory of Orleans were distributed throughout Louisiana. Printing the Digest (it was only called a Code from 1825) was complicated by the need to include a dual text in both English and French. The resulting printed work was functional rather than beautiful and mistakes occur throughout which reveal the hasty production of the book.

Professor Markus Puder (Loyola University) and Professor John Lovett (Loyola University) presented two width=303aspects of ‘Possession, Prescription and Uncertain Land Titles in Louisiana: 1808-1825’. Puder opened the discussion with a case study of the title claims of the disputed land of Feliciana (in West Florida). Ownership of the region was contested between Spain and the United States and its status as part of the Louisiana Purchase only complicated matters. Spain eventually ceded all of Florida to the US in 1819 but this did not resolve individuals’ claims to property in the territory. The case of Foster & Elam v Neilson (1829) was only the first of seventy-cases over the next thirty years as Louisiana property law developed. Lovett followed on with a study of case law from the early Louisiana Supreme Court between 1808 and 1825. Land titles were often uncertain – were they French or Spanish? – and judges had to work out what sources of law to use when deciding ownership.  Lovett found twenty-five court decisions in which the court filled in gaps in the law. The judges’ decisions were ‘like legal cocktails’ and they borrowed heavily from European civil law and French sources especially Pothier. The revised Code of 1825 codified the problems the courts had dealt with since 1808.

width=182Ms Asya Ostroukh (University of Edinburgh) presented ‘The Significance of Quebec Sources for Understanding the Origin and Nature of Louisiana’s Civil Law Codification’. Commissioners in Quebec set out to codify their laws in 1857 and the resulting Civil Law Code of Lower Canada was adopted in 1866. TheCommissioners used sources ranging from the Code Napoléon (1804) to the Regolamento legislativo of the Papal States (1834) but one of their most favoured sources was the Civil Code of the State of Louisiana of 1825. Ostroukh offered several suggestions for the popularity of Louisiana’s Code with the Quebec commissioners not least that it offered a more modern interpretation than the Code Napoléon. The Commissioners used Fortuné Antoine de Saint-Joseph’s Concordance entre les codes civils étrangers et le Code Napoléon (1856) when compiling their Code and often preferred the provisions of the Louisiana Code to the Code Napoléon. The library used by the Quebec compilers survives and Ostroukh will be making a study of it as part of her doctoral research.

width=147Professor Vernon V. Palmer (Tulane University) presented ‘Slavery and Louisiana Civil Law, 1825-1860’.  Palmer began with a brief survey of laws relating to slavery from Louis XIV’s 1685 Code Noir to the final removal of all slavery provisions in the Louisiana Civil Code in 1870. Laws relating to slavery were unique to Louisiana and came from French, Spanish, Spanish-Roman, and American sources. The 1808 Code had included forty-five provisions relating to slavery but after 1808 a new form of emancipation by prescription emerged. Of the 1200 appeals cases contested in the Louisiana Supreme Court, 25 per cent were slave-related. Slaves could sue their masters for freedom but many of the cases were to do with protecting buyers’ rights: New Orleans had the biggest slave marketplace. The laws of France and Spain were spliced together and, as it expanded, slavery was woven into the fabric of the law.

 

width=192Dr Agustin Parise (Max-Planck-Institut) presented ‘Influence of the Louisiana Civil Code of 1825 in Latin-American Codification Movements: The References to Louisiana Provisions in the Argentine Civil Code of 1871’.  When they set out on their project, the Argentine codifiers, as the codifiers of Quebec had done, looked to the Louisiana Code. Argentina identified a shared Spanish heritage with Louisiana and saw its law code as an example of civilian success in the new world. The Argentine Civil Code includes 295 references to the Louisiana Code in its 4,051 articles: most of the Louisiana provisions still apply. The Argentine Code’s compiler provided extensive notes explaining the rationale for using (or not using) the different sources and used two concordances, one French and one Spanish. Both of the concordances gave Louisiana’s Code prominence. Parise has traced three difference types of references to Louisiana law in the Argentine Code and has found that most of the references are to do with real rights.

Ms Catherine MacMillan (Queen Mary, University of London) presented ‘Judah Benjamin: The Louisianan’s width=166Influence on British Law’ which showed how Louisiana’s law went out into the world by the actions of one extraordinary character. The swashbuckling Benjamin (1811-1884), a short portly dynamo, was in turn a student at Yale, a Louisiana lawyer, a US Senator, Attorney General, Secretary of War and Secretary of State for the Confederate States of America, an English barrister, and the builder of an elaborate house in Paris. In England, he published A Treatise on the Law of Sale of Personal Property (1868; 2nd edn 1873; 3rd edn 1883) in which he managed to make civil law appealing to English common lawyers and which went on to influence English treatises on the subject. Benjamin also played a role in Canadian legal history (hence the ‘British’ in the paper’s title) by helping to define Canadian confederation. Although he lost most of the cases he was involved with, Benjamin’s use of French law which he had by way of Louisiana had an impact on the development of Canadian political theory. MacMillan is at work on a legal biography of Benjamin which is eagerly awaited!

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Professor Cairns organised and convened the workshop. The sessions were ably chaired by Professor Ernest Metzger (University of Glasgow) and Dr Paul du Plessis (University of Edinburgh). The relaxed atmosphere on the two days of the workshop allowed for much more informal discussion which was enjoyed by all of the participants. A convivial dinner ended the proceedings in the Old College’s Elder Room.

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The workshop’s exploration of Louisiana law as a study of European legal history was certainly a great success. It is hoped that the papers presented at the workshop will be printed in due course.

The Centre would like to thank Christine Goulding from the School of Law Research Office for her superb organisation of the event.

ORCID logo http://orcid.org/0000-0002-7116-5457

Louisiana: Legal History Reprinted Works with new Editions – Dargo

The celebration of the Bicentenary of the Digest of the Civil Law of the Territory of Orleans in 1808 inspired, as well as a number of conferences and symposiums, both publications and republications of some important works. Thus, Claitor's in Baton Rouge reprinted R. H. Kilbourne's important study of the History of the Civil Code of Louisiana and Alain Levasseur's informative biography of Louis Moreau Lislet, certainly the main redactor of the Digest, as well as producing a bicentenary reprint of the de la Vergne volume.

In the 1970s, one of the most important works developing a new approach to Louisiana's legal history, an approach that brought more to the attention of mainstream historians of US law, a field that was in itself rapidly developing under the influence of pupils of the scholarship of Willard Hurst, was George Dargo's Jefferson's Louisiana: Politics and the Clash of Legal Traditions (1975). This was based on Dargo's history Ph.D. thesis from Columbia University in New York and was pubished by Harvard UP in the series, Studies in Legal History.

The Lawbook Exchange has now produced a revised edition of Dargo's book. This has a very nice new essay by Dargo on the current of the legal history of Louisiana, as well as a warm and generous intorduction by Stanley Katz. While the original volume has a certain charm in its 70s-style presentaton, this is a much more handsome book. The typeface is clear, the notes are now at the bottom of the page, all-in-all this is a much more "user-friendly" volume, also enriched with some maps and illustrations. Dargo's biographical essay of 1975 was one of my starting points for research in 1977, when I embarked on a study of aspects of the legal history of Louisiana: it is still useful as such, along with his new introductory essay.

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Home of Moreau Lislet, no 2.

It turns out that the house mentioned earlier as the house of Moreau Lislet was not in fact his. The address is correct, as Professor Levasseur has in his book, but the current house was built later. The blog is informed by Georgia Chadwick that the New Orleans' archivist Sally Reeves has pointed out that the current house was described as unfinished in 1857. Moreau Lislet's house was set 38 feet back from the street and fronted by a garden. It is always possible that parts of Moreau's house were used in the rebuilding, of course.

This said, this is still an important historical site for the legal history of Louisiana. Might it not be appropriate for a plaque to be put up to that effect, just as his grave has already been beautifully restored? It was on this property, after all, that Moreau lived from 1809, and it is where he took his last breath.

Home of Louis Moreau Lislet, drafter of the Louisiana Code, for sale

This blog has a keen interest in the legal history of Louisiana. Georgia Chadwick of the State Law Library of Louisiana has drawn to its attention the discovery by Daphne Tassin, a member of her staff, that the home into which Moreau moved in 1809, and lived until he died in 1832, is currently for sale at 1027 Chartres Street, New Orleans, formerly Condé Street. See Levasseur's biography of Moreau Lislet at p. 123. Pictures of this large property can be found on a New Orleans realtor's website: http://www.fqr.com/index/listings/multi-family/details/807729

Bicentenary of the Digest of Orleans (1808)

2008 was the bicentenary of the Louisiana Civil Code. Among various events commemorating this was an important conference at Tulane Law School, hosted by the Easson-Weinmann Centre, and organised by Professor Vernon Palmer. While some of this was devoted to the issue of codification generally – and the evergreen and ever so tedious topic of a European code of private law – there was a day of very important papers on the history of the law of Louisiana, in which some excellent research was presented. Most will be published relatively soon. For details of the Conference, see http://www.law.tulane.edu/uploadedFiles/Life_After_Law_School/CLE/PDFs_for_Events_and_Conferences/Civil%20Code%20Celebration%20Brochure.pdf

The legal history papers have now been published in the Tulane European and civil Law Forum. vol. 24 (2009)

The author of this entry visited the grave of Louis Moreau Lislet, one of the compilers of the Digest, in the  atmospheric cemetery familiar to those of you who remember the film Easy Rider. (Photo courtesy of Georgia Chadwick, Director, Law Library of Louisiana)

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