and Spanish civil law and by the ordinances and decrees that previously applied in Louisiana. 24 Initially, Governor Claiborne vetoed this legislation and this sparked protests within and without the legislature notwithstand ing the veto the move was seen as pragmatic because of the confused, uncod ified state of Spanish law that had been in force Louisiana at the time of the Purchase. 2 >In particular, there were ' six different compilations of Spanish laws, . and it was unclear which of over 20,000 individual laws of Spain applied in the territory. 26 This state of confusion prompted both sides to seek greater compromise which had culminated in the adoption, on March 31, 1808, of a work entitled'A Digest of the Civil Laws now in Force in the Territory of Orleans, with Alterations and Amendment Adapted to its Present form of Government. 27 This Digest, 8 known as the Louisiana Civil Code of 1808, was inspired largely by the French projet du gouvernement of 1800, better known as the Code Napoleon. 9 In particular, approximately seventy percent of the Codes river to the river Iberville; and from thence along the middle of sa id river and lakes Maurepas and Ponchartrain leagues of the coast, be, and they are hereby authorized to form for themselves a constitution and state government, and to assume such name as they may deem proper .. Id YIANNOPOULOS, supra note 9 at 63 It should be noted that Louisiana was ceded to Spain in 1762 by the Treaty of Fontainebleau. French laws, however, continued to be applied until 1769 when Spanish Govemor Don Alejandro O Reilly, an Irishman in the service of Spain, issued an ordinance designed to organize an efficient govemment and administration of justice in accordance with the Spanish laws ' Yiannopoulos, supra note 7 at XVI. The ordinance, which became nown as"OReilly's Code, had the effect of transforming Louisiana into a" Spanish ultramarine province, governed by the same la ws as the other Spanish possessions in America and subject to the same system of udicial administration. Id at XVll. Nevertheless, Louisiana was receded to France by the Treaty of San Idelfonso in 1800, yet France reassumed sovereignty on November 30, 1803, for only twenty days before ce the territory to the United States. As a result, the bulk of the pre-existing laws [Spanish] remained in force the United States took possession of the territory on December 20, 1803. Id 26 William Tetley, Mixed Jurisdictions: Common Law v Civil Law(Codified and Uncodified/), 60LAL REV.677, 697-98(2000); see John T. Hood, Jr, The History and Development ofthe Louisiana Civil Code, 19 LA. L REV. 18, 19(1958)(noting that even in Spain there was no consensus over which laws would apply in case of a conflict); see also ALAIN A LEVASSEUR, LOUIS MOREAU-LISLET: FOSTER FATHER OF LOUISIANA CIVIL LAW(1996), see also Rodolfo Batiza, The Louisiana Civil Code of 1808: Its Actual Sources and Present Relevance, 46 TUL. L REV. 4(1971); but cf. Robert A Pascal, Sources of the Digest of1808: A Reply to Professor Batiza, 46 TUL. L REV. 604(1972) Yiannopoulos, supra note 7 at XIX (West 2000 ), see also Roger K. Ward, The French language in Louisiana Law and Legal Education: A Requiem, 57 LA. L REV. 1283. Discussing the state of Louisiana jurisprudence before codification, Roger Ward argued that Louisiana's decision to adopt a civil code was based on necessity. Because of its motley colonial past, Louisianas legal system was actually an interesting amalgamation of Spanish and French law. The Spanish law in effect at the time of the transferof the territory to the United States was com posed of eleven different codes, conta ining more than 20,000 laws, with many conflicting provisions. Relatively few Spanish legal treatises were available to help Louisianians understand and REv. 29, 33(1958)(arguing that the redactors of the Digest of 1808 were influenced by Spanish law, i TUL. L interpret these laws. Id at 1302; but cf Rodolfo Batiza, The Influence of spanish Law in Louisiana, 33 particular the fifth book of Las Siete Partidas relating to contracts and sales of goods) According to Professor Yiannopoulos, a digest codeis aclarification and system ization of existing law without significant alterations. It secures orderly arrangement of legal provisions, convenience of a compilation rather than a true codification 'YIANNOPOULOS, supra note gat4 y the Justinian legislation,is ascertaining, and accessibility of the law. This type of code, which is exemplified For more on the sources of the la w in Louisiana, see id, at 65. See also Henry Plauche Dart, The Sources ofthe Civil Code oflouisiana, in SAUNDERS, LECTURES ON THE CIVIL CODE OF LOUISIANA(1925). In
and Spanish civil law and by the ordinances and decrees that previously applied in Louisiana.’24 Initially, Governor Claiborne vetoed this legislation and this sparked protests within and without the Legislature. Notwithstanding the veto, the move was seen as pragmatic because of the confused, uncodified state of Spanish law that had been in force in Louisiana at the time of the Purchase.25 In particular, there were ‘six different compilations of Spanish laws . . . and it was unclear which of over 20,000 individual laws of Spain applied in the territory.’26 This state of confusion prompted both sides to seek greater compromise, which had culminated in the adoption, on March 31, 1808, of a work entitled ‘A Digest of the Civil Laws now in Force in the Territory of Orleans, with Alterations and Amendments Adapted to its Present form of Government.’27 This Digest,28 known as the Louisiana Civil Code of 1808, was inspired largely by the French projet du gouvernement of 1800, better known as the Code Napoléon. 29 In particular, approximately seventy percent of the Code’s river to the river Iberville; and from thence along the middle of said river and lakes Maurepas and Ponchartrain, to the gulf of Mexico; thence bounded by said gulf to the place of beginning: including all islands within three leagues of the coast, be, and they are hereby authorized to form for themselves a constitution and state government, and to assume such name as they may deem proper . . .’ Id. 24 YIANNOPOULOS, supra note 9 at 63. 25 It should be noted that Louisiana was ceded to Spain in 1762 by the Treaty of Fontainebleau. French laws, however, continued to be applied until 1769 when Spanish Governor Don Alejandro O’Reilly, an Irishman in the service of Spain, issued an ordinance ‘designed to organize an efficient government and administration of justice in accordance with the Spanish laws.’ Yiannopoulos, supra note 7 at XVI. The ordinance, which became known as ‘O’Reilly’s Code,’ had the effect of transforming Louisiana into a ‘Spanish ultramarine province, governed by the same laws as the other Spanish possessions in America and subject to the same system of judicial administration.’ Id. at XVII. Nevertheless, Louisiana was receded to France by the Treaty of San Idelfonso in 1800, yet France reassumed sovereignty on November 30, 1803, for only twenty days before ceding the territory to the United States. As a result, ‘the bulk of the pre-existing laws [Spanish] remained in force until the United States took possession of the territory on December 20, 1803.’ Id. 26 William Tetley, Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified), 60 LA. L. REV. 677, 697-98 (2000); see John T. Hood, Jr., The History and Development of the Louisiana Civil Code, 19 LA. L. REV. 18, 19 (1958) (noting that even in Spain there was no consensus over which laws would apply in case of a conflict); see also ALAIN A. LEVASSEUR, LOUIS MOREAU-LISLET: FOSTERFATHER OF LOUISIANA CIVIL LAW (1996); see also Rodolfo Batiza, The Louisiana Civil Code of 1808: Its Actual Sources and Present Relevance, 46 TUL. L. REV. 4 (1971); but cf. Robert A. Pascal, Sources of the Digest of 1808: A Reply to Professor Batiza, 46 TUL. L. REV. 604 (1972). 27 Yiannopoulos, supra note 7 at XIX (West 2000); see also Roger K. Ward, The French Language in Louisiana Law and Legal Education: A Requiem, 57 LA. L. REV. 1283. Discussing the state of Louisiana jurisprudence before codification, Roger Ward argued that ‘Louisiana’s decision to adopt a civil code was based on necessity. Because of its motley colonial past, Louisiana’s legal system was actually an interesting amalgamation of Spanish and French law. The Spanish law in effect at the time of the transfer of the territory to the United States was composed of eleven different codes, containing more than 20,000 laws, with many conflicting provisions. Relatively few Spanish legal treatises were available to help Louisianians understand and interpret these laws.’ Id. at 1302; but cf. Rodolfo Batiza, The Influence of Spanish Law in Louisiana, 33 TUL. L. REV. 29, 33 (1958) (arguing that the redactors of the Digest of 1808 were influenced by Spanish law, in particular the fifth book of Las Siete Partidasrelating to contracts and sales of goods). 28 According to Professor Yiannopoulos, a ‘digest code’ is a ‘clarification and systemization of existing law without significant alterations. It secures orderly arrangement of legal provisions, convenience of ascertaining, and accessibility of the law. This type of code, which is exemplified by the Justinian legislation, is a compilation rather than a true codification.’ YIANNOPOULOS, supra note 9 at 43. 29 For more on the sources of the law in Louisiana, see id., at 65. See also Henry Plauche Dart, The Sources of the Civil Code of Louisiana, in SAUNDERS, LECTURES ON THE CIVIL CODE OF LOUISIANA (1925). ‘In
2, 160 Articles, or 1,516 articles, was based upon the French Code. 30 This being said, it is surprising to note that Louisiana never enacted a codal provision correspond ing to Article 5 of the Code Napoleon relating to the prohibition of judge-made law(precedent). 31 Considering that the French Civil Code was adopted and promulgated four years prior to the Louisiana Civil Code of 1808, and in light of the 'close ties then existing with the old country, there must have been ample opportunity for [the Code] to have found its way to Louisiana. 332 The absence of a provision prohibitive of judge-made law, however, should not be nterpreted as an attempt by the redactors of the Code to adopt the Anglo-American common- law doctrine of stare decisis. On March 24, 1822, Messieurs Edward Livingston, lOuis Moreau- Lislet, 4 and Pierre Derbigny 35 were commissioned by the Louisiana Legislature "revise the civil code by amend ing the same in such a manner as they will deem advisable A year later, in a report to the Louisiana Senate, these esteemed jurisconsults wrote about the proper role of judges and, in doing so, showed their contempt for precedent as a source of law They wrote preparing the Digest of 1808 there is no doubt that Moreau-Lislet and Brown followed the first projet of the Napoleonic Code. There are very many articles identical with articles of the Napoleonic Code, from which the legend gathered strength, until it is customary now to say that the Digest of 1808 was a mere transcript of the first projet of the Napoleon Code ' Id at XXXV. For more on the Napoleonic Code'stermitorial expansion'by conquest, direct persuasion and inspiration, see, e.g., Jean Limpens, Territorial Expansion ofthe Code, in THE CODE NAPOLEON AND THE COMMON LAW WORLD 93-99(Bernard Schwartzed, Greenwood Press 1975) (1956). The dynamic influence of the Code did not stop at the borders of Europe. America, with its boundless territories, was to furnish new areas for expansion. Strangely enough, it was in North America on the soil of the United States that the Code found its first foothold. Louisiana. a French esta blishment from 1682 to 1762.a Spanish possession from 1762 to 1800, a part of the United States from 1804, was first and foremost a land of French culture. The first code of 1808 amply demonstrated its heritage. Although it is not known if the drafters of the code were in possession of the definitive text of the Code Napoleon, it is interesting to note that the divergences from it were not great. ' Id at 98-99 YIANNOPOULOS, supra note 9 31 C Girard Davidson, Stare Decisis in Louisiana, 7 TUL. L REV. 100, 100(1932) Id at 101 in assuring the survival of the civil law in his adopted state. According to Judge Hood, []here /was/teental Edward Livingston was a New York la wyer who emigrated to Louisiana in 1803 and was fundamental question but that the common law system would have been established here shortly after the United States assumed sovereignty, and that Louisiana would be a common law state today, were it not for the fact that Livingston.. emerged as a leader in opposing this action, and as a champion for the ca use of retaining a civil law system in the territory, Hood, supra note 26 at 20 ouis Moreau-Lislet was born in Saint-Domingue(modem-day Santo Domingo )on the Isle of Hispaniola when it was a French dependency. He received his legal tra ining in France and immigrated shortly after the Louisiana purchase. Moreau-Lislet has perhaps contributed more to the legal literature of this state than has any other person. During his busy career, he participated in more than 200 cases before the State Supreme Court, and also served at various times as a mem ber of the State House of Representatives, a State Senator, as a Parish Judge, as Attorney General, and as a representative in Congress. Id at 24 Pierre Derbigny was a French nobleman who was forced to flee during the revolution. He settled in Louisiana and joined Edward Livingston's efforts to oppose Govenor Claiborme's plan to install the common- law system in the territory. Derbigny is perhaps best remem bered for his service as a Justice of the Louisiana Supreme Court and for his tenure as Governor. Id at 29; see generally LOUISIANA GOVERNORS, supra note 19 1822 La. Acts. 108
2,160 Articles, or 1,516 articles, was based upon the French Code.30 This being said, it is surprising to note that Louisiana never enacted a codal provision corresponding to Article 5 of the Code Napoléon relating to the prohibition of judge-made law (precedent).31 Considering that the French Civil Code was adopted and promulgated four years prior to the Louisiana Civil Code of 1808, and in light of the ‘close ties then existing with the old country,’ there must have been ‘ample opportunity for [the Code] to have found its way to Louisiana.’32 The absence of a provision prohibitive of judge-made law, however, should not be interpreted as an attempt by the redactors of the Code to adopt the Anglo-American commonlaw doctrine of stare decisis. On March 24, 1822, Messieurs Edward Livingston,33 Louis Moreau-Lislet,34 and Pierre Derbigny35 were commissioned by the Louisiana Legislature to ‘revise the civil code by amending the same in such a manner as they will deem advisable.’36 A year later, in a report to the Louisiana Senate, these esteemed jurisconsults wrote about the proper role of judges and, in doing so, showed their contempt for precedent as a source of law. They wrote: preparing the Digest of 1808 there is no doubt that Moreau-Lislet and Brown followed the first projet of the Napoleonic Code. There are very many articles identical with articles of the Napoleonic Code, from which the legend gathered strength, until it is customary now to say that the Digest of 1808 was a mere transcript of the first projet of the Napoleon Code.’ Id. at XXXV. For more on the Napoleonic Code’s ‘territorial expansion’ by conquest, direct persuasion and inspiration, see, e.g., Jean Limpens, Territorial Expansion of the Code, in THE CODE NAPOLEON AND THE COMMON LAWWORLD 93-99 (Bernard Schwartz ed., Greenwood Press 1975) (1956). ‘The dynamic influence of the Code did not stop at the borders of Europe. America, with its boundless territories, was to furnish new areas for expansion. Strangely enough, it was in North America on the soil of the United States that the Code found its first foothold. Louisiana, a French establishment from 1682 to 1762, a Spanish possession from 1762 to 1800, a part of the United States from 1804, was first and foremost a land of French culture. The first code of 1808 amply demonstrated its heritage. Although it is not known if the drafters of the code were in possession of the definitive text of the Code Napoleon, it is interesting to note that the divergences from it were not great.’ Id. at 98-99. 30 YIANNOPOULOS, supra note 9. 31 C. Girard Davidson, Stare Decisis in Louisiana, 7 TUL. L. REV. 100, 100 (1932). 32 Id. at 101. 33 Edward Livingston was a New York lawyer who emigrated to Louisiana in 1803 and was fundamental in assuring the survival of the civil law in his adopted state. According to Judge Hood, ‘[t]here [was] little question but that the common law system would have been established here shortly after the United States assumed sovereignty, and that Louisiana would be a common law state today, were it not for the fact that . . . Livingston . . . emerged as a leader in opposing this action, and as a champion for the cause of retaining a civil law system in the territory.’ Hood, supra note 26 at 20. 34 Louis Moreau-Lislet was born in Saint-Domingue (modern-day Santo Domingo) on the Isle of Hispaniola when it was a French dependency. He received his legal training in France and immigrated shortly after the Louisiana purchase. Moreau-Lislet has ‘perhaps contributed more to the legal literature of this sta te than has any other person. During his busy career, he participated in more than 200 cases before the State Supreme Court, and also served at various times as a member of the State House of Representatives, a State Senator, as a Parish Judge, as Attorney General, and as a representative in Congress.’ Id. at 24. 35 Pierre Derbigny was a French nobleman who was forced to flee during the Revolution. He settled in Louisiana and joined Edward Livingston’s efforts to oppose Governor Claiborne’s plan to install t he commonlaw system in the territory. Derbigny is perhaps best remembered for his service as a Justice of the Louisiana Supreme Court and for his tenure as Governor. Id. at 29; see generally LOUISIANA GOVERNORS, supra note 19. 36 1822 La. Acts. 108
[WHat is the true meaning of the law when it is doubtful; to decide how it applies to facts when they are legally ascertained is the proper office of the Judge-The exercise of his discretion is confined to these which are called CASES OF CONSTRUCTION: in all other he has none. he is but the organ for giving voice, and utterance, and effect, to that which the Legislative branch has decreed In cases where there is no Law, according to strict principles he can neither pronounce nor expound, nor apply it Governments under which more is required from, or permitted to, the Magistrate are vicious because they confound Legislative powerwithJudicial duties, and permit theirexercise in the worst possible ape, by creating the rule, after the case has arisen to which it is applied. This is a vice inherent in the Jurisprudence ofall nations governed wholly, or in part, as England is by unwritten Laws, or such as can only be collected from decisions. 37 The Louisiana Civil Code of 1825 was printed in French and English, and the redactors of the Code drew inspiration from the Code Napoleon as well as French doctrine and jurisprudence. 39 The French version of Article I of the Code of 1825 put the matter to rest when it declared that []a loi est une declaration solennelle de la volonte legislative. 40 Thus without expressly declaring that precedent is not law along the lines of Article 5 of the Code Napoleon, the redactors of the Louisiana Civil Code came back within the ambit of the French revolutionary model 4I That is to say, although it may seem that the judge must decide the case. the decision itself is not to be considered law. 42 The opposite is true of the common law. To the student of the common law, the law is created and molded by judges, and legislation is viewed as serving a kind of function. 43 Consequently, it can be said that the common law has its fundamental basis on the idea of precedent or stare decisis. The rationale for this rule is consistency 44 According to LIVINGSTON MOREAU-LISLET DERBIGNy REPORT ON THE REVISION OF THE CIVIL CODE 8-10 (1823)(emphasis added) The Civil Code of 1825 was drafted originally in French and was translated into English. Both versions, however, were official, but since the English translation was known to contain errors, the French text became controlling. See Tetley, supra note 26 at 698-99. The English translation proved to be spectacularly bad. Recognizing the deficiencies in translation, the Louisiana Supreme Court ruled that, in the event of a conflict between the two texts, the French would prevail. This French preference rule has been applied constantly by Louisiana courts. Levasseur& Ward, supra note 20 at 304. See generally Dunford v. Clark's Estate, 3 La. 199 (La, 1831); Phelps v Reinach, 38 La. Ann. 547 (La, 1886), Straus v City of New Orleans, 166 La. 1035, 118 So.125(a,1928) Sample. Whitaker,172La.722,135S0.38(La,1931) YIANNOPOULOS, supra note 9 at 69 LA. CIV. CODE ANN., art. I(1825). The English version of the same text reads: "Law is a solemn expression of legislative will. According to Professor de vries, in the civilian tradition, " loi, or legislation, is the most fundamental source of law. hENRY P DEVRIES. CIVIL LAW AND THE ANGLO-AMERICAN LAWYER 248 (1975) 41 Nevertheless, the [Louisiana ] Code does contain a provision which is not found in the Code, that might be said to indicate an intention on the part of the codifiers to reach the French Article [of the Louisiana Civil Code of 1870] provides that"Law is a solemn expression of legislative Davidson supra note 31 at 102 MERRYMAN, supra note 1 I at 34 Professor Dainow states that the common-law theory of precedents developed during England's formative years when there was no strong legislative power. He writes: When a court decided a particular case its decision was not only the law for the parties, but had to be followed in future cases of the same sort, thereby becoming a part of the general or common law. Thus, the common law, as a body of law, consisted of all the
[W]hat is the true meaning of the Law when it is doubtful; to decide how it applies to facts when they are legally ascertained is the proper office of the Judge - The exercise of his discretion is confined to these, which are called CASES OF CONSTRUCTION: in all other he has none, he is but the organ for giving voice, and utterance, and effect, to that which the Legislative branch has decreed. In cases where there is no Law, according to strict principles he can neither pronounce nor expound, nor apply it. Governments under which more is required from, or permitted to, the Magistrate are vicious because they confound Legislative power with Judicial duties, and permit their exercise in the worst possible shape, by creating the rule, after the case has arisen to which it is applied. This is a vice inherent in the Jurisprudence of all nations governed wholly, or in part, as England is by unwritten Laws, or such as can only be collected from decisions.37 The Louisiana Civil Code of 1825 was printed in French38 and English, and the redactors of the Code drew inspiration from the Code Napoléon as well as French doctrine and jurisprudence.39 The French version of Article I of the Code of 1825 put the matter to rest when it declared that ‘[l]a loi est une declaration solemnelle de la volonté législative.’40 Thus, without expressly declaring that precedent is not law along the lines of Article 5 of the Code Napoléon, the redactors of the Louisiana Civil Code came back within the ambit of the French revolutionary model.41 That is to say, although it may seem that the judge must decide the case, the decision itself is not to be considered law.42 The opposite is true of the common law. To the student of the common law, the law is created and molded by judges, and legislation is viewed as ‘serving a kind of supplementary function.’43 Consequently, it can be said that the common law has its fundamental basis on the idea of precedent or stare decisis. The rationale for this rule is consistency.44 According to 37 LIVINGSTON, MOREAU-LISLET, & DERBIGNY, REPORT ON THE REVISION OF THE CIVIL CODE 8-10 (1823) (emphasis added). 38 The Civil Code of 1825 was drafted originally in French and was translated into English. Both versions, however, were official, but since the English translation was known to contain errors, the French text became controlling. See Tetley, supra note 26 at 698-99. ‘The English translation proved to be spectacularly bad. Recognizing the deficiencies in translation, the Louisiana Supreme Court ruled that, in the event of a conflict between the two texts, the French would prevail. This French preference rule has been applied constantly by Louisiana courts.’ Levasseur & Ward, supra note 20 at 304. See generally Dunford v. Clark’s Estate, 3 La. 199 (La., 1831); Phelps v. Reinach, 38 La. Ann. 547 (La., 1886); Straus v. City of New Orleans, 166 La. 1035, 118 So. 125 (La., 1928); Sample v. Whitaker, 172 La. 722, 135 So. 38 (La., 1931). 39 YIANNOPOULOS, supra note 9 at 69. 40 LA. CIV. CODE ANN., art. I (1825). The English version of the same text reads: ‘Law is a solemn expression of legislative will.’ According to Professor deVries, in the civilian tradition, ‘loi,’ or legislation, is the most fundamental source of law. HENRY P. DEVRIES, CIVIL LAW AND THE ANGLO-AMERICAN LAWYER 248 (1975). 41 ‘Nevertheless, the [Louisiana] Code does contain a provision which is not found in the French Civil Code, that might be said to indicate an intention on the part of the codifiers to reach the French result. Article 1 [of the Louisiana Civil Code of 1870] provides that “Law is a solemn expression of legislative will.”’ Davidson, supra note 31 at 102. 42 Id. 43 MERRYMAN, supra note 11 at 34. 44 Professor Dainow states that the common-law theory of precedents developed during England’s formative years when there was no strong legislative power. He writes: ‘When a court decided a particular case, its decision was not only the law for the parties, but had to be followed in future cases of the same sort, thereby becoming a part of the general or common law. Thus, the common law, as a body of law, consisted of all the