Louisiana Celebrates 200 Years of History: Louisiana Statehood Bicentennial 1812-2012 By Richard K. Leefe Secretary, Louisiana State Bar Association he Louisiana State Bar Association (LSBA) is proud and honored to join in the celebration of the Louisiana Statehood Bicentennial Tand to recognize the roots from which our great state has grown. The Louisiana Office of the Secretary of State, through the Louisiana State Archives, created a wonderful compilation and presentation of that history, together with much more, in its work entitled “Louisiana 2012: A Bicentennial Celebration of History, Culture and Natural Resources.” The Secretary of State and the State Archives have kindly allowed the Louisiana Bar Journal to publish excerpts of that work in this issue for our members. This history excerpt is only a small part of the comprehensive work created by the Louisiana State Archives. Hopefully, the full work will be published for public access and use soon. The LSBA strongly recommends it. The information provides a marvelous perspective and review of the origins of our state. As Louisiana citizens and attorneys, we all owe a great deal of gratitude to those who founded this state and have gone before us in making this rich history. In addition, this issue of the Journal includes an article addressing the 300 years of French law influence in Louisiana by The official United States Twelfth Congress (1811) document approving Louisiana’s entry into Louisiana State University Paul M. Hebert the Union as the 18th state, as signed by President James Madison. National Archives and Records Law Center Professor Olivier Moréteau, as Administration. Used with permission. well as a lesson by Lafayette attorney Ariel A. Campos, Sr. on the large part Hispanic history has played in making Louisiana what it is today. Rounding out the issue are letters from various key players in the Bicentennial celebration, as well as a list of Bicentennial-related events throughout the state. These events are updated monthly on the state’s main website, www. louisianabicentennial2012.com. We hope you enjoy the articles and feel Louisiana has had eight State Seals since 1805, all including the state’s official emblem of the pelican pride in Louisiana’s rich history! and her nest. Louisiana State Archives, Secretary of State’s Office. Used with permission. 324 February / March 2012 Louisiana 1812-2012: 200 Years of Statehood and 300 Years of French Law Influence By Prof. Olivier Moréteau he Bicentennial of Louisiana’s Louisiana. The population of New Orleans In France, the law took a new departure statehood happens to coincide successfully insisted that the civil law after the 1804 codification: the effort was with the Tercentennial of the tradition be maintained. In 1804 and 1805, to unite all Frenchmen under one law, enactment of French law as the two Acts of Congress provided that, in so demanding that all previous laws — Roman Tlaw applicable to La Louisiane, marking far as they were consistent with federal law, law in Southern France and customs in the starting point of the law of Louisiana. the civil laws in force in the Territory of the North — be repealed. After a national A Letter Patent signed on Sept. 14, 1712, Orleans “shall continue in force until altered, Revolution, it comes as no surprise that by King Louis XIV of France granted to modified, or repealed by the legislature.” In France would have a break with the past Sieur Crozat, the king’s Secretary, exclusive 1806, the Legislative Council resolved that regarding its legal system. trade rights in all lands possessed by the a Civil Code be prepared for the territory, Things were different in Louisiana, King “under the government of Louisiana,” and that “the civil law by which this territory where the movement towards codification whilst providing in article VII that all is now governed” (namely Spanish civil was conservative in essence. The Digest of laws applicable in Paris and its province, laws) be made “the ground work of said 1808 was meant to preserve the preexisting including Edicts, Ordinances and Customs, code,” in the effort to make the law clearer law and there was no wish for a fresh were applicable to Louisiana. This is the first and more accessible to the French, Spanish start. Judges kept citing the Siete Partidas document to make reference to the law to and American inhabitants. of Alfonso X of Castile and subsequent be applied in Louisiana. The two draftsmen, James Brown and Recompilations. This defeated the purpose Until the cession to Spain 50 years Louis Moreau-Lislet, were challenged with of the Digest as expressed in the Act of later, French law officially applied in the the daunting task of reducing thousands of March 31, 1808: it aimed at eliminating immense territories that stretched from pages of legal rules into a volume of 200 or the need of “recurring to a multiplicity the Gulf of Mexico to the Great Lakes, 300 pages. It fully made sense to follow as of books, which, being for the most part from the Mississippi River to the Rocky models both the Projet of 1800 and the Code written in foreign languages, offer in their Mountains and to the Isle of Orleans east civil des Français of 1804, later to be known interpretation inexhaustible sources of of the Mississippi River, though there as the Code Napoléon. Wherever an article litigation.” Clarification and simplification is limited evidence, if any at all, of the of the Projet or of the Napoleonic Code had been a vain hope. application of the Custom of Paris outside conformed to the Spanish law, it naturally In 1825, the Digest was replaced by New Orleans and maybe in a few locations made its way into the Digest of 1808. The a Civil Code, also drafted in French and in south Louisiana. organization of the French Civil Code, translated into English, this time abrogating French law would cease to apply in replicating the structure of the Institutes of “the Spanish, Roman and French laws” Louisiana after its cession to Spain in 1762. Gaius, remains to this date the backbone in force at the time of the Purchase on all When Spain effectively took possession of the successive Louisiana Civil Codes. matters governed by the Code (art. 3521). in 1769, Governor O’Reilly proclaimed The study of the cases decided in the Then an Act of 1828 proceeded to a general that justice was now to be administered first two decades after the enactment of repeal of all the civil laws in force before according to the laws of Spain, naming the the Digest of 1808 reveals that Louisiana the Civil Code. However, in a 1839 case Nueva Recopilación de Castilla and the courts never regarded the new enactment (Reynolds v. Swain), the Louisiana Supreme Recopilación de las Indias. The complex as a shift from the Spanish to the French Court declared that this repeal was confined and intricate Spanish laws, largely derived model. When faced with the generality of to positive or written law and could not from the Roman law of Justinian and that the provisions it contained, judges looked apply to the unwritten laws, citing among of the Visigoths, remained in force after the for the missing details in the pre-existing others the revealed law, the natural law, retro-cession of the Louisiana territories Spanish compilations. Spanish law was not and the law of nations: in the opinion of to France in 1800 and the subsequent abolished except where clearly contradicted the court, what had not been enacted by Louisiana Purchase by the United States in by the Digest. In addition, some distinctive the Legislature could not be abolished. At 1803. French law would never apply again aspects of Spanish law, different in least at that time, this made Louisiana law as such, but it would remain influential after substance from those in the French model, remarkably different from French law; the Territorial period during two centuries made their way to the Digest — for instance, legislative positivism was rejected, with of statehood. rules relating to marriage, the community French law was never reestablished in of gains, successions and alimony. Continued next page LouisianaLouisiana Bar Bar Journal Journal Vol. Vol. 59, 59, No. No. 5 5 325325 Continued from page 325 the French influence into the interpretation To this day, the fleur-de-lis remains judges preferring to rely on the tradition of the Code and the understanding of a powerful symbol of Louisiana and its and principles of natural law. the substance of the law. Regarding French heritage. It was planted 300 years The Louisiana Civil Code was again interpretation, a most influential book by ago in the garden of our laws, where it is still rewritten in 1870, this time in English, Francois Gény was also translated into cultivated though more as a hybrid than in its after the Civil War and the abolition of English (1965). Méthode d’interprétation et original form. It was joined 100 years later slavery. The Louisiana State Law Institute sources en droit privé positif, a world-famous by a self-sacrificing pelican, a bird native to was founded in 1938 to prepare subsequent book published in 1899 and revised in 1954, Louisiana and a Christian symbol of love revision and keep the laws of Louisiana clarifies the importance of jurisprudence in (see good faith and cooperation as founding under constant review. The Civil Code of civil law jurisdictions and helps understand principles of the civil law). What flows in 1870 has been almost completely revised that reliance on court decisions is not the its veins is a mix of what makes us human during the past few decades, and can fairly same as common law stare decisis.