W&M ScholarWorks Dissertations, Theses, and Masters Projects Theses, Dissertations, & Master Projects 1991 The appellate question: A comparative analysis of supreme courts of appeal in Virginia and Louisiana, 1776-1840 Mark F. Fernandez College of William & Mary - Arts & Sciences Follow this and additional works at: https://scholarworks.wm.edu/etd Part of the Law Commons, and the United States History Commons Recommended Citation Fernandez, Mark F., "The appellate question: A comparative analysis of supreme courts of appeal in Virginia and Louisiana, 1776-1840" (1991). Dissertations, Theses, and Masters Projects. Paper 1539623810. https://dx.doi.org/doi:10.21220/s2-jtfj-2738 This Dissertation is brought to you for free and open access by the Theses, Dissertations, & Master Projects at W&M ScholarWorks. It has been accepted for inclusion in Dissertations, Theses, and Masters Projects by an authorized administrator of W&M ScholarWorks. 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Order Number 9219100 The appellate question: A comparative analysis of supreme courts of appeal in Virginia and Louisiana, 1776-1840 Fernandez, Mark Frederick, Ph.D. The College of William and Mary, 1991 U·M·I 300 N. Zeeb Rd. Ann Arbor, MI 48106 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. THE APPELLATE QUESTION: A COMPARATIVE ANALYSIS OF SUPREME COiJRTS OF APPEAL IN VIRGINIA AND LOUISIANA, 1776-1840 A Dissertation Presented to The Faculty of the Department of History The College of William and Mary in Virginia In Partial Fufillment Of the Requirements for the Degree of Doctor of Philosophy by Mark Frederick Fernandez 1991 -------- Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. APPROVAl SHEET This dissertation is submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy Approved, December 1 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. For Dione Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. TABLE OF CONTENTS Page ACKNOWLEDGEMENTS. .v ABSTRACT. .. vii CHAPTER ONE. INTRODUCTION: JUDICIAL HISTORY AND THE EARLY REPUBLIC • . • . • . • . • • . 2 CHAPTER TWO. REVOLUTION AND REF'ORH .. , .••••••• 30 CHAPTER THREE. COURTS AND THE 'CLASH OF CULTURES?' 1803- 1812 THE TERRITORY OF ORLEANS ..•••• 99 CHAPTER FOUR. THE SUPREME COURT OF APPEALS FOR THE STATE OF VIRGINIA . • • • • • • • • . • • • 145 CHAPTER FIVE. LOUISIANA'S SUPREME COURT, 1813-1840 ••• 216 CHAPTER SIX. CONCLUSION: INTERPRETING THE DANCE • . 269 APPENDIX I .. • • • • • • • • • • • • • • • 2 8 2 APPENDIX II. • . • • . 2 9 2 APPENDIX III .•.....•...•..••..•.... 296 APPENDIX IV. • . • . • • • 301 BIBLIOGRAPHY .•. .•• 307 VITA. • • . •. 322 iv Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ACKNOWLEDGMENTS The writer wishes to express his appreciation to Professor John Selby who provided guidance, support, valuable criticism, and infinite patience during the preparation of this dissertation.. Professor Thad Tate graciously lent his time, advice, expertise and encouragement in the final stages of this project. James P. Whittenburg and Charles F. Hobson added criticism and served above and beyond the call of duty. A special note of thanks is reserved for Professor Warren M. Billings who inspired the investigation and enriched the study with expert legal and historical criticism, friendship, faith, and hospitality. Many professional librarians, historians, researchers, and archivists provided the author with invaluable assistance and comraderie. The staffs at the Earl Gregg Swem Library and the Marshall-Wythe Law Library at the College of William and Mary, the Earl K. Long Library at the University of New Orleans, the Howard-Tilton Memorial Library at Tulane University, the Law Library of Louisiana, the Louisiana Division and City Archives of the New Orleans Public Library, the Louisiana State Museum, the Supreme Court of Virginia Library, The Historic New Orleans Collection, The Albert B. Alkeck Library of Southwest Texas State University, the Alderman Library at the University of Virginia, the Virginia State Library and Archives, and the Virginia Historical society dealt with innumerable requests and questions with professionalism and unstinting good cheer. I am grateful to the Colonial Dames of America and the Order of the Cincinnati for their generous support of my research in 1988 and 1989. Fellow historians Mary Brennan, W. Hamilton Bryson, Elizabeth Gaspard, Richard H. Kilbourne, Jr., Thornton Miller, E. Lee Shepard, Sandra F. VanBurkleo, Edward Wise, and Tom Wren provided comraderie, assistance, advice, criticism, and stimulating discussion throughout the investigation. The graduate students at the College of William and Mary in Virginia have provided me with a great deal of support, criticism, and inspiration. Special thanks are reserved for the two "Toms": Costa and Legg. Many friends, especially Carol and Elizabeth Billings, Frances Springer, and Teddy Bryan provided vital support, encouragement, and assistance. v Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. My family deserves a great deal of credit for putting up with me as I pursued this project. Ann Fernandez, Clara Hellmers, Vera Hellmers, Cindy and Willie Francis, Barry and Sarah Fernandez, and the late Otis and Josephine Ezell fortified me with infinite quantities of love, support, and encouragement. Wesley distracted me time and again while I completed my revisions. I shall treasure those distractions forever. My wife Dione sacrificed more than anyone can imagine as I pursued this obsession. Her love, patience, faith, and support have made this experience worthwhile. vi Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ABSTRACT "The Appellate Question: A Comparative Analysis of Supreme Courts of Appeal in Virginia and Louisiana, 1776-1840 11 This dissertation examines the processes that created supreme courts of appeal in Virginia and Louisiana and challenges the traditional view of Louisiana as an anomaly in the American judicial system. Comparison of the development of the Supreme Court of Louisiana to that of Virginia reveals important similarities in judicial practices and procedures, legal theory, and the role the courts played in the early political development of each state. In every area, the two states shared important intellectual and historical experiences. In order to investigate the creation of these jurisdictions, this dissertation examines the political climate cf both 3tates; the background, education, and politics of the judges; the rules of court which they developed; and the jurisprudence that defined the structure and operation of the courts. Accordingly, the judicial history of both states reflects the political changes which governed the era. The study of the development of the jurisdictions, moreover, chronicles the structural changes that influenced a pronounced shift from "moral" or "republican" principles of law to a more pragmatic and activist approach to justice in nineteenth-century America. Finally, the profound influence of the common law and Anglo­ American patterns of judicature on Louisiana's legal institutions sugges·ts a reconsideration of the state's place in the mainstream of American legal history. Mark Frederick Fernandez Department of History College of William and Mary in Virginia vii Reproduced with permission of the copyright owner. Further reproduction prohibited