Mark F. Fernandez.
From Chaos to Continuity: The Evolution of Louisiana's Judicial System,
1712-1862.
Baton Rouge: Louisiana State University Press, 2001. xviii + 135 pp.
Appendix, bibliography, notes. $29.95 (cloth), ISBN 0-8071-2705-1 .
Reviewed by:
George Dargo, New England School of Law.
Published by:
H-Law
(August, 2002)
Mainstreaming Louisiana Legal History
Land of Mardi Gras, Preservation Hall, the Latin Quarter,
an erstwhile streetcar named Desire, birthplace of jazz, the home court of
the Sugar Bowl and of numerous Super Bowls, the Crescent City is as much a
part of American popular culture as Mount Rushmore, the World Series, and
Thanksgiving Turkey. As for the Pelican State itself, Louisiana was an
integral part of the antebellum South, and prominent Louisianians served
as high officials in the Southern Confederacy. Post Civil War Louisiana
was also the state that produced the infamous 1896 Plessy v. Ferguson
decision that embedded "separate but equal" into the fabric of American
Law, the legal doctrine most responsible for the perpetuation of racial
apartheid in the United States. And, in the twentieth century, during the
Great Depression, the name of Huey Long was as familiar to most Americans
as that of the President of the United States. In short, in good times and
in bad, the Louisiana historical experience has always been very much a
part of the American past.
But Louisiana is also different, special, peculiar, even
European--or, at least, Caribbean--a difference captured by Tennessee
Williams when he has Stanley Kowalski explain to his sister-in-law,
Blanche Dubois, that "there is such a thing in this state of Louisiana as
the Napoleonic Code, according to which whatever belongs to my wife is
also mine--and vice versa."[1] Kowalski was wrong in the specifics but
right overall. The legal regime to which Kowalski referred--"the community
of acquets and gains"--was indeed a distinctive feature of Louisiana
property law, but the weight of historical thinking on the subject of the
state's unique legal origins has established that Louisiana law was
primarily based upon Spanish rather than French sources--that the
Louisiana Code of private law going all the way back to the Digest of 1808
was by no means merely a duplicate copy of Napoleon's famous Civil Code.
As Judge Alexander Porter declared in an important case decided under
Lousiana's Code of 1825: "The jurisprudence of Spain came to [Louisiana]
with her laws.... The opinions of [Spanish jurisconsults] ... have
obtained an authority ... of which the history of no other country offers
an example."[2]
The key point to consider, however, is not that Louisiana
law was primarily Spanish in its origins rather than French, nor even that
it was continental European and not Anglo-American. It is, rather, that
while Louisiana's rich past is part of the deep mainstream of general
American history, the history of its law has been, at best, but a marginal
sub-plot in the American story.
Mark Fernandez's new book, From Chaos to Continuity,
must therefore be seen as a significant contribution to the developing
effort by Louisiana legal scholars and historians to end this
marginalization. The main theme of Fernandez's interesting analysis is
that "Louisiana's legal order should not be viewed as an anomaly in the
American judicial system" (p. xvi). Fernandez even goes so far--perhaps a
bit too far--when he advances the bold suggestion that when viewed from
the perspective of the courts at least, Lousiana's legal system, far from
being anomalous, was a "representative American jurisdiction," a model of
the developing legal culture in other American states particularly in the
South.
From Chaos to Continuity
traces the history of Louisiana's unusual legal development from the
earliest times of French rule right up to the period of the Civil War. Of
particular interest is Fernandez's skillful discussion of the Spanish
period, from 1762, when France ceded the colony to Spain, until the
retrocession to France, which did not take effect until late in 1803,
twenty days before the American takeover of all of Louisiana on December
20 of that fateful year. These abrupt regime changes had significant
effects upon the law, not only by creating uncertainty and confusion, but
also by depositing sedimentary layers of law upon the earliest foundations
established by the French. Fernandez is skillful in sorting this out. For
example, his discussion of Alejandro O'Reilly, the Irish mercenary who had
served the Spanish crown in the recently concluded Seven Years' War, is
particularly lucid. Not only was the "Code of O'Reilly" an effective
instrument in the establishment of Spanish substantive law, but the legal
administration that O'Reilly set up through the force of his own imposing
personality made his law reforms of lasting consequence to the future
state. The forty year period of Spanish rule was a formative period of
Louisiana legal history, and Fernandez's discussion of this sometimes
confusing sequence of events is most useful.
Fernandez's treatment of the territorial period from 1803
until Louisiana entered the union as the eighteenth state is equally
impressive. This was the period of Jeffersonian rule when American
migration to Lower Louisiana grew with exponential force and when the
foundations of the legal profession were established by an elite band of
lawyers both French and American. Fernandez views the tensions between the
two cultures struggling for supremacy during this short but turbulent
decade as not nearly as dramatic as previous writers (including this one)
have tried to suggest. He eschews the notion that there was a "clash" of
legal civilizations, instead suggesting that Jeffersonian policy was
highly nuanced in its demonstrations of respect for local traditions while
at the same time gently introducing basic American liberties as well as
American principles of judicial governance. At the very end of Jefferson's
second term, this policy saw its fruition with the enactment in 1808 of
the Civil Digest of the Laws in Force--an elegant effort to reduce to
writing in both English and French the large bulk of Spanish civil law in
order to make it accessible to the new rulers of Louisiana and its growing
number of English-speaking law officers. Fernandez builds upon the
position taken a few years ago by Richard Holcombe Kilbourne Jr., another
able writer on this subject who has written: "The Digest, then, should be
seen at least in part as a means of preparing the Orleans Territory for
statehood. If any one person was responsible for the digest, it was Thomas
Jefferson, who insisted on a thorough reformation of the existing legal
system, a condition precedent to statehood."[3]
Fernandez marshals a good deal of evidence to support his
important attempt to normalize Louisiana legal history. Of particular
interest is his focus upon rules of court and the role of the organized
bar in shaping the growth of the law in Louisiana. Contrary to the rather
loose requirements for bar admissions that existed in the early nineteenth
century in many of the other states, especially in the West, the Louisiana
Supreme Court issued tight bar admission requirements that had the overall
effect not only of limiting access to professional practise but had the
collateral effect--perhaps intentional--of deepening the hold of
Anglo-American law, legal procedures and legal sources as opposed to
civilian and continental sources on the practise of law in the state. For
example, in a series of landmark rule-makings in 1840, the state's high
court required applicants for admission to master a defined syllabus of
readings which increasingly stressed American common law materials rather
than traditional European source books and treatises. In addition, rules
of court practice developed by the court established structural routines
that "reinforced the Anglo-American predispositions of the court's
proceedings."
From Chaos to Continuity
is not without weaknesses. Fernandez is at his best covering the early
periods, but the structure and texture of the later chapters are less
finished. Particularly bothersome is his tendency toward excessive
explanation of the choicest legal cases. For example, Syndics of
Bermudez v. Ibanez and Milne, a case involving a complex real estate
transaction, is presented in all of its excruciating technical detail
apparently for the purpose of supporting the book's main theme--namely,
that the 1808 Digest (as well as the 1825 revised code) was not a truly
modern code at all, but merely a compilation of laws which allowed the
Louisiana Supreme Court to examine underlying Spanish precedents thereby
fortifying its engagement in common law adjudication.[4] Presenting every
twist and turn in this complicated bit of civil litigation amounts to the
proverbial long climb for a short slide. Other examples abound in the same
chapter tellingly entitled "Creating a Common Law." But surely some of
these cases attracted a good deal of contemporaneous public comment. New
Orleans had a spirited press in the early 19th century; it was still a
small community with a very active resident population. Fernandez's
narrative would have benefited from some attention to newspaper and other
sources as a measure of public reaction to the activities of the Louisiana
Supreme Court with its decided drift to the American model of
jurisprudence. Such attentions would have provided a needed third
dimension to Fernandez's analysis which dry case law recitations alone can
never duplicate. Undoubtedly the local newspapers covered cases such as
Cottin v. Cottin (1817), a simple inheritance case but arguably the
most visible and important case at the time.[5] In Cottin, the
distinguished jurist, Pierre Derbigny, laid the interpretive foundation of
Louisiana Law under the Digest as well as the subsequent revisions that
were to follow: "It must not be lost sight of," he wrote, "that our civil
code is a digest of the civil laws, which were in force in this country,
when it was adopted; that those laws must be considered as untouched,
wherever the alterations and amendments, introduced in the digest, do not
reach them; and that such part of those laws are repealed, as are either
contrary to or incompatible with the provisions of the code" (p. 73).
Surely a case like Cottin v. Cottin would have seen a good deal of
public discussion.
There is a more general point to be made, however. In
trying to mainstream Louisiana legal history and to liberate that history
"from the quirky restraints of the past" Fernandez has attempted to put to
one side the truly unique position that Louisiana law occupies. In an age
when intermarriage among members of different "families of law" are
occurring with increasing frequency, the Louisiana model takes on new
importance as a showcase for other American jurisdictions. At a time when
our high appellate courts, including the Supreme Court of the United
States, still appear to be working under a sealed carapace of isolation
deflecting the vectors of change sweeping the rest of the developed legal
world, Louisiana's special history becomes all the more exemplary. Whereas
in the past, common law and civil law jurisdictions were defined by the
bright lines of nation and region, today those frontiers have been
breached as high courts in other parts of the world borrow freely across
the boundaries of legal traditions. Today the "mixed legal system" is fast
becoming the norm. Fernandez's effort to take Louisiana out of the side
pocket of American legal history, therefore, seems a bit misplaced in
time. Rather than emphasize Louisiana as a "representative model of an
Anglo-American common law jurisdiction sharing remarkably similar
experiences with its neighboring jurisdictions" (p. xiii), it might have
been more timely to stress that "Louisiana emerged as the first
jurisdiction to confront American [courts] with the problem of integrating
the two systems of law" (p. xviii).
But this suggests that From Chaos to Continuity
should have been a different project than the solid book that Mark
Fernandez has written. From Chaos to Community is, in fact, a
notable contribution to what Louisiana historians are calling "the New
Louisiana Legal History." It is a work that is sure to stimulate further
explorations in this most interesting field of historical scholarship.
Notes
[1]. Tennessee Williams, A Streetcar Named Desire
(New York: Signet, 1951), Scene 2 (p. 40).
[2]. Saul v. His Creditors, 5 Mart. (n.s.) 569
(1828), quoted in R. H. Kilbourne, Jr., A History of the
Louisiana Civil Code: The Formative Years, 1803-1839
(Baton Rouge: Louisiana State University Press, 1987), at pp. 149, 150.
[3]. Idem., at p. 43.
[4]. Syndics of Bermudez v. Ibanez & Milne, 3 Mart.
(o.s.) 17 (1813).
[5]. Cottin v. Cottin, 5 Mart. (o.s.) 93 (1817).
Library of Congress
Call Number: KFL78.F47 2001
Subjects:
* Justice, Administration of -- Louisiana -- History
* Courts -- Louisiana -- History
* Judges -- Louisiana -- History
Citation: George Dargo . "Review of Mark F. Fernandez, From
Chaos to Continuity: The Evolution of Louisiana's Judicial System,
1712-1862," H-Law, H-Net Reviews, August, 2002. URL:
http://www.h-net.org/reviews/showrev.cgi?path=99151032546682.
“[Fernandez] expertly
argues that Louisiana’s patterns of judicial development strongly and
consciously resemble that of other American states…The book as a whole
serves as a reminder that not only did Louisiana’s judiciary assert itself
as American, other American states regularly modeled themselves after
Louisiana.”
Samantha Holtkamp Gervase,
review of From Chaos to Continuity: The Evolution of Louisiana’s
Judicial System, 1712-1862, by Mark F. Fernandez, Law and History
Review 21 (Summer 2003): 418-419.