474 April / May 2013 François-Xavier MartinLouisiana Views Revisited: on Codification, Jurisprudence, Legal Education and Practice By Prof. Olivier Moréteau

n March 21, 1810, François-Xavier Martin, then judge in the Territory of Mississippi, was transferred to New Orleans to sit on the bench of theO Superior Court of the Territory of Orleans. Five years later, in 1815, he would begin a 31-year tenure as one of the very first judges of the Supreme Court, leaving the court in 1846, the year of his death.

Portrait of François-Xavier Martin. Image provided by the Louisiana Supreme Court.

Louisiana Bar Journal Vol. 60, No. 6 475 He was appointed as a federal time, he surpassed judge by James Madison in his master. He saved 1809, just after the new President’s money to buy his inauguration. He spent less than one year own press and started in Biloxi before moving to New Orleans a profitable printing where he resided until the end of his life. and publishing busi- Martin was 48 years old when he ness. He published arrived in New Orleans. The story of his books on subscrip- fascinating life is well documented.1 A tion, almanacs and a summary of his formative years helps weekly newspaper, understand how French-born Martin turned The North Carolina into an American printer and self-taught Gazette (1786-97). 18th century jurist, later to be celebrated as The Gazette focused the “Father of Louisiana Jurisprudence”2 on events in France, for his judicial contribution to the unique especially during the identity of the Louisiana legal system in French Revolution. the early 19th century. His mastery of both He translated and pub- the civil and the traditions lished popular French and his understanding of the convergence novels, continuing to of both systems regarding underlying do translation work principles and sources of the law make later in life.3 him an inspiring model for the 21st Martin printed le- century, well worth being revisited as the gal forms and pub- Louisiana Supreme Court commemorates lished treatises on Portrait of François-Xavier Martin. Provided by the Louisiana its Bicentennial. He indeed epitomizes North Carolina law. Supreme Court. clear Louisiana views on codification, Justice of the Peace jurisprudence, legal education and practice. handbooks were pop- This work gave Martin grounding in the ular at the time, and plagiarism was com- tradition, years before he came A Self-Taught Jurist monplace. Judges and attorneys needed to Louisiana. He indeed had received no small books they could carry by their saddle legal education or training before leaving François-Xavier Martin was born in when riding from town to town. Martin France. Marseilles, France, on March 17, 1762, wrote or copied and published several In 1803, Martin planned to publish a into a wealthy merchant family. As the third law books; he came to be known as an Digest of all reported cases in the United son, he was destined to become a priest. He honest businessman. Piracy of books was States, showing a unitary vision of the had received a solid liberal education and probably needed in those days because of common law that he shared with Judge knew Latin and Italian. He was 17 when the scarcity of information. He published Joseph Story. The plan failed due to a he left France. He would not become a collections of English statutes and English shortage of subscriptions,7 and the idea priest, though his lifestyle would be akin to law reports of the 17th century, the first of a general common law was to be later that of a monk: an austere bachelor, living ones to be printed in the United States. He defeated.8 It can be difficult to make very simply, spending as little as possible. also published the first collection of North business with futuristic views, but Martin He sailed to Martinique where his uncle Carolina cases (1796). unknowingly predicted the National had a flourishing business, provisioning He found a copy of the famous Traité Reporter System, Lexis and Westlaw. the French fleet. When his uncle sold the des obligations by the French legal scholar Meanwhile, Martin had received legal business to retire in France, Martin sailed Robert Pothier (first published in Orléans in training from a great attorney of North to America. He spent 1782-83 in New 1761) and published an English translation Carolina, Abner Nash, and was admitted York, unsuccessfully attempting to recover in 1802.4 According to legend, Martin to the Bar in 1789. In 1806, he was elected a family debt that would have helped set the type as he translated rather than to represent New Bern in the North him create a business. He enrolled in the using a handwritten draft.5 However, the Carolina state Legislature. He served on Continental Army in Virginia during the translation is of great quality.6 Featuring the committee charged with the duty of final years of the American Revolution, but both Roman law and French customary receiving President Washington when he was dismissed due to his feeble eyesight. law, this book had a great influence on visited the state. In New Bern, N.C., Martin survived on the drafting of the French . odd jobs, teaching French and selling old Available in English, the book also A Judge of Vision newspapers. inspired learned common law judges Martin was hired by James Davis, one during the 19th century on matters not When Martin reached New Orleans in of the few printers in the Carolinas. In no previously addressed by English courts. March 1810, he found a world of clashing

476 April / May 2013 Martin’s reports on display in the Rare Book Room at the Law Library of Louisiana. Provided by the Law Library of Louisiana.

cultures,9 halfway between the New and Their labor would have been much French authors such as Dumoulin, Domat the Old Worlds, with the heat, smells more beneficial to the people, than or Pothier (of course, in French, though and sounds of Africa and the Caribbean. it has proved, if the legislature . . . the latter had been partly translated into Educated people conversant both in had given it their sanction as a English by Martin himself). The rest French and English were not that many. system, intended to stand by itself, is history: a Louisiana Civil Code was Martin was familiar with the English and and be construed by its own context, adopted in 1825, this time with a proper American common law; he was already by repealing all former laws on abrogation clause, strengthened in 1828. acquainted with the civil law at least matters acted upon in this digest. Martin was in favor of a clean through his translation work. Martin’s Anterior laws were repealed, so abrogation clause, as it is the best way to talents as translator were much in use far only, as they were contrary to, make the law predictable for the citizen to during the transition period from territorial or irreconcilable with any of the whom it is to be applied.16 Yet he believed administration to statehood. provisions of the new. . . . In practice, that such a clause would only repeal the He served as federal judge at the end of the work was used, as an incomplete positive laws adopted by a legislature.17 the Territorial period, later to be appointed digest of existing statutes, which still In Reynolds v. Swain,18 a case decided in the first Attorney General of the State of retained their empire; . . . Thus, the 1839 when Martin was the chief judge, he Louisiana in 1813. In 1815, he was made people found a decoy, in what was said that the Legislature cannot abrogate a judge of the Louisiana Supreme Court, held out as a beacon.12 unwritten law such as natural law or the then composed of three judges. The other law of nations: two were George Mathews and Pierre He shows great civilian lucidity and Derbigny. In 1837, when Mathews left full understanding of what a civil code is The repeal spoken of in the code, the Court, Martin served as the chief judge by his opposition to the Court’s practice and the act of 1828, cannot extend until the day he left the Court in 1846.10 of keeping the old laws alive wherever beyond the laws which the legislature During his fertile 36 Louisiana years, they were not contradicted by the Digest.13 itself has enacted . . . . It cannot be he developed remarkable views on He dissented in Cottin v. Cottin (1817),14 extended to those unwritten laws codification, jurisprudence and legal where Pierre Derbigny decided that the which do not derive their authority education. Digest provision to the effect that “abortive from the positive institution of any children are such as by an untimely people, as the revealed law, the Codification and Natural Law birth, are either born dead, or incapable natural law, the law of nations, the of living”15 did not contradict and did laws of peace and war, and those The Digest of the Civil Laws now in not repeal the old Spanish law that said laws which are founded in those force in the territory of Orleans (1808) to inherit, the child must live at least 24 relations of justice that existed in was in force when Martin took office, with hours. This made legal practice extremely the nature of things, antecedent to its French text and English translation. In complex. Wherever the Digest was found any positive precept.19 The History of Louisiana, a two-volume too general or silent (a matter of much book that Martin wrote and published in debate), one had to dig into ancient Spanish There is no clearer statement in 1827,11 he regrets that the Digest was not a laws (of course, in Spanish), Roman law Louisiana jurisprudence that the law is Code. Praising the two draftsmen, he wrote: (of course, in Latin), or comments by grounded on universal principles. After

Louisiana Bar Journal Vol. 60, No. 6 477 all, those who deny the existence both common law strongly relies on of natural law nonetheless recognize and civil law. He the work of the the supremacy of human rights and no doubt trusted highest courts, fundamental rights, and are willing to ac- the work of the finding their de- cept that they may only be defined in the Court and had cisions persuasive context of a case. Whatever the name and an acute sense especially when wherever such rights receive constitutional of what stare repeated, yet not support, we accept that judges may strike decisis means in regarding one down legislative provisions unreasonably a common law unique decision denying their protection.20 We are willing to setting. He also as a binding prec- accept that positive civil or municipal laws, had a clear and edent.33 as defined by Justinian and Blackstone,21 20th century per- are just conducive of local variations.22 ception of what On Legal The reference to equity and natural law in jurisprudence Education and the gap-filling provision of the Digest and means in the civil Practice Codes of 1825 and 1870,23 copied from law tradition. It the French Projet and yet abandoned in the feels as if he had Martin wished French Code civil, supports Martin’s view, read François all attorneys prac- and the omitted reference to natural law Gény more than ticing in Louisi- 24 in the revised article 4 may be regretted. 80 years before The granite tomb of François-Xavier Martin in St. Louis ana to be trained 30 Cemetery No. 2 in New Orleans. Photo by Viçenc Feliu, published both in the civil The first judges who sat on the Louisiana it was written. with permission. Supreme Court were not positivists, and He published the law and the com- the Louisiana civil law consistently differs first reports of mon law. Warren 34 from the French in this respect. They show the cases decided by the Superior Court Billings explains that, in 1840, Chief an open-minded view of what the law is. In of the Territory of Orleans and the Loui- Judge Martin molded a rule of court re- Orleans Navigation Company v. Mayor of siana Supreme Court in a set of at least forming legal education for prospective New Orleans,25 Mathews (C.J.) stated that 18 volumes. In the foreword to the Old attorneys, prescribing the study of over in the court’s opinion: Series, he wrote: a dozen treatises ranging from theory to practice of the law in general and the law . . . and here it may be observed In matters of practice [the judge] of Louisiana in particular. The list includes that, in our view, it is very immate- will at times conform himself to Robert Pothier, Jean Domat, Joseph Story, 35 rial whether we named things by what has been already done, though, Sir William Blackstone and James Kent. the common law or civil law, if the had there been no determination, This was a bijural curriculum avant la names are proper according to the he might have suspended his as- lettre, making Martin the grandfather of rules of common sense or common sent. General and fixed rules are the present Louisiana State University parlance; and it is quite unnecessary, in this respect a great desideratum. model, though the grandchild sadly moves being the same in both systems of law, At all events, a knowledge of the away from doctrinal sources. to enquire whether they have been decisions of the court will tend to Martin was a man of immense learning established by the dictum of a Roman the introduction of more order and and a great legal mind. There is evidence praetor, the edict of an emperor, or regularity in practice, and unifor- that he loved arguing by asking questions denominated by a learned English mity in determination.31 and mastered the Socratic method. He 36 law writer.26 was compared to Lord Mansfield. His The foreword emphasizes words like Court has been recognized as “one of the While this kind of discourse may lead “order,” “regularity” and “uniformity” ablest courts of last resort in the United 37 to common law contamination27 and places and expresses a clear preference for “gen- States.” He achieved a lot with limited great confidence into what the judge says,28 eral and fixed rules.” In Smith v. Smith, means, proving that vision can to some 38 it goes beyond the civil law/common law a case decided in 1839,32 he states that extent supplement technical hardship. divide and reveals a belief in the universal- “more than one decision of the supreme He remained on the bench though totally ity of the law that prospered in the United judicial tribunal is required to settle the blind, and yet a lucid chief judge. He left States under the influence of Judge Story jurisprudence on any given point or the Court in 1846, as the state Constitution 39 and would be defeated by Erie Railroad question of law.” This might be the first had been changed, and died in December Co. v. Tompkins.29 expression ever of the doctrine of juris- that year. The whole bar and bench and prudence constante. It came under the pen many distinguished officials accompanied On Jurisprudence of a judge who appears to be a remarkable him to his last abode that may still be comparative law scholar. He understood visited in St. Louis Cemetery. Martin was a true scholar, at ease with 100 years before others that the civil law

478 April / May 2013 Conclusion book, reprinted in 2000, remains a leading source State Law Institute; the first edition was on the history of our state. Citations are to the 2000 published in 1899). edition. 31. François-Xavier Martin, “Preface,” The Universities of Harvard and 12. Martin, History of Louisiana, supra note 11, 1 Orleans Term Reports or Cases Argued and Nashville awarded Martin honorary at 344. Determined in the Superior Court, at vii (1811). doctorates. He was named a foreign 13. Olivier Moréteau, “De revolutionibus, The 32. Smith v. Smith, 13 La. 441, 445 (1839). Place of the Civil Code in Louisiana and in the 33. As clearly stated by Robert A. Pascal and W. member of the Marseilles Academy. He Legal Universe,” 5 J. Civ. L. Stud. 31 (2012), first Thomas Tête, “The Work of the Louisiana Appellate is fondly remembered, in Louisiana and published in Le droit civil et ses codes: parcours à Courts for the 1969-70 Term: Law in General,” 31 beyond, 203 years after his arrival in New travers les Amériques, 1 (Jimena Andino Dorato, La. L. Rev. 185 (1971), the opinion once expressed Orleans. May his work keep inspiring Jean-Frédérick Ménard & Lionel Smith, eds., by the Louisiana Supreme Court that when “the Thémis, Montreal, 2011). question is not regulated by statute, the law is what new generations of attorneys and judges 14. Cottin v. Cottin, 5 Mar. (O.S.) 93 (1817). this Court has announced it to be” (Johnson v. St. as our state and its Supreme Court move 15. Digest of 1808, Book 1, Title 1, Article 6 Paul Mercury Insurance Co., 236 So.2d 216 (La. towards a third century of existence. Martin (www.law.lsu.edu/digest). 1970)) is inconsistent with the legislation of this state. understood that codes are made for the 16. On a citizen-centered approach of the Civil In Pringle-Associated Mortgage Corp. v. Eames, Code, see Robert A. Pascal, “Of the Civil Code 254 La. 705, 714, 226 So.2d 502, 505 (1969), the people, that they do not repeal but must and Us,” 59 La. L. Rev. 301 (1998); Moréteau, Court had gone as far as saying that a single previous 40 remain connected with natural law, and “De revolutionibus,” supra note 13. On a digest- decision construing legislation is obligatory on lower must not be manipulated but kept alive based approach and the confusion it generates, see courts (Pascal and Tête, at 187). by judges educated in both civil law and Vernon Valentine Palmer, The Louisiana Civilian 34. Warren M. Billings, “The Supreme Court of Experience: Critiques of Codification in a Mixed Louisiana and its Chief Justices,” 89 Law Libr. J. 449 common law. More so than these words, Jurisdiction (2005). (1997). a simple look at the magnificent bust of 17. In the citation above, he refers to a “digest of 35. Billings, supra note 35, at 456. François-Xavier Martin at the Louisiana existing statutes.” 36. Howe, supra note 1, at xlii: “He has been Supreme Court will tell the reader that 18. Reynolds v. Swain, 13 La. 193 (1839). called the Mansfield of the southwest.” 19. At 198. 37. Howe, supra note 1, at xlvii, referring to the inspired vision comes from the inside. 20. The first Constitution of the state of period of 1821-33. Howe gives much detail on the Louisiana, Art. VI, section 25, reads: “All laws man and his life, his being a miser, his neglected FOOTNOTES contrary to this Constitution shall be null and void.” looks and dusty home, located 915 Royal St. in New See Paul R. Baier and Georgia Chadwick, “Judicial Orleans. 1. William Wirt Howe, “Memoir of François- Review in Louisiana: A Bicentennial Exegesis,” 5 J. 38. In the “Preface” of 1811, supra note 32, at iv- Xavier Martin,” in François-Xavier Martin, Civ. L. Stud. 7 (2012). v, he wrote: “No one could more earnestly deplore, The History of Louisiana (1827, new ed. 1882), 21. Both cited by Martin in his judgment. for no one more distressingly felt, the inconvenience reprinted in 2000, pp. xxxi-lxii (written in 1881); 22. See Pascal, “Of the Civil Code and Us,” of our present judicial system. From the smallness Edward Laroque Tinker, “Jurist and Japer, François- supra note 16. of the number of the Judges of the Superior Court, Xavier Martin and Jean Leclerc, With a List of 23. Louisiana Civil Code 1870, art. 21: “In all the remoteness of the places where it sits, and the their Publications in this Library and Elsewhere,” civil matters, where there is no express law, the multiplicity of business, it has become indispensable 39 Bulletin of The New York Public Library 675- judge is bound to proceed and decide according to to allow a quorum to consist of a single judge, who 697 (1935); Michael Chiorazzi, “François-Xavier equity. To decide equitably, an appeal is to be made often finds himself compelled, alone and unaided, Martin: Printer, Lawyer, Jurist,” 80 Law Libr. J. 63- to natural law and reason, or received usages, where to determine the most intricate and important 97 (1988); Kathy Dugas, “An Immigrant’s Journey positive law is silent.” questions, both of law and fact, in cases of greater to Wealth and Power: The Story of François-Xavier 24. The reason given in comment (b), “The term magnitude . . .,” explaining further that “a number Martin,” Louisiana History, The Journal of the ‘natural law’ in Article 21 of the 1870 Code has no of foreign laws are to be examined and compared, Louisiana Historical Association, Vol. L, No. 3, defined meaning in Louisiana jurisprudence,” is and their compatibility with the general constitution 321-340 (2009). See also, “Remembering François- shameful and wrong. and laws ascertained — an arduous task anywhere, Xavier Martin,” 38 La. Bar J. 177 (1990). 25. Orleans Navigation Company v. Mayor of but rendered extremely so here, from the scarcity of 2. Chiorazzi, supra note 1, at 63 and 77. New Orleans, 2 Mart. (O.S.) 214 (La. 1812). works of foreign jurists.” 3. For more details on Martin as a printer and 26. Id. at 228. 39. In 1845. publisher, see Chiorazzi, supra note 1. 27. Olivier Moréteau, “Mare Nostrum as the 40. Or fundamental rights, as per the discussion 4. Treatise of the Law of Obligations Considered Cauldron of Western Legal Traditions: Stirring above. in a Moral and Legal View, Translated from the the Broth, Making Sense of Legal Gumbo whilst French of Pothier, Martin & Ogden, New Bern, Understanding Contamination,” 4 J. Civ. L. Stud. Professor Olivier Moréteau N.C., 1802. 516 (2011). is the first holder of the 5. Howe, supra note 1, at xxxiv. Chiorazzi, supra 28. In Reynolds v. Swain, Martin concludes Russell B. Long Eminent Scholars Academic Chair at note 1, at 77, is silent on this publication. “that the legislature did not intend to abrogate those Louisiana State University principles of law which had been established or 6. It is unmatched by a later translation: A Paul M. Hebert Law Center. Treatise on the Law of Obligations, or Contracts, settled by the decisions of courts of justice.” As will A professor of law, he is by M. Pothier (translated by William David Evans, be seen below, this is not recognition of stare decisis director of the Center of Philadelphia) (1853). (as wrongly understood by Mark F. Fernandez, From Civil Law Studies at LSU 7. Chiorazzi, supra note 1, at 75. Chaos to Continuity, The Evolution of Louisiana’s Law Center, editor-in-chief 8. Erie Railroad Co. v. Tompkins, 304 U.S. 64 Judicial System 1712-1862, 81-88 (2001); see of the Journal of Civil Law (1938). Sean P. Donlan, “Clashes and Continuities: Brief Studies and associate vice 9. George Dargo, Jefferson’s Louisiana: Politics Reflections on the ‘New Louisiana Legal History,’” chancellor for interna- and the Clash of Legal Traditions (Rev. ed. 2009). 5 J. Civ. L. Stud. 67 (2012)), but of the supremacy tional programs. The author 10. Robert B. Fisher, Jr., “The Louisiana of natural law. thanks Paul R. Baier, Georgia Chadwick, Alexandru- Daniel On, Michael McAuley and Robert A. Pascal for Supreme Court, 1812-1846: Strangers in a Strange 29. 304 U.S. 64 (1938). their help and support. (Paul M. Hebert Law Center, 30. François Gény, Méthode d’interprétation et Land,” 1 Tul. Civ. L. F. 1 (1973). 1 E. Campus Dr., Louisiana State University, Baton 11. François-Xavier Martin, The History of sources en droit privé positif, Critical Essay (1963) Rouge, LA 70803) Louisiana (1827). This remarkably documented (translation of the 2d ed. 1954, by the Louisiana

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