Once Orleans had been established as a separate territory from the rest of the land acquired in the Louisiana Purchase, the question turned to what type of legal system would prevail in the territory. Namely, would it be subject to common law or civil law? While a struggle ensued after the Louisiana Purchase between proponents of each tradition, it never posed a serious threat to disunion, as some at the time claimed it would. Both sides proved willing to compromise. Many elements of Spain’s civil law tradition survived the Louisiana Purchase, other elements were imported from the French West Indies, and common law principles from the United States also made their way into Louisiana’s legal system, some immediately after the Louisiana Purchase. Yet the legal contests of territorial Louisiana were more complex than simply cultural and legal battles between Anglo-American supporters of common law and French and Spanish supporters of civil law. Rather, they were also intimately tied to the desire to preserve and protect the Union, assertions of local rule, and, ultimately, the future of slavery in the region.7
Common Law, Civil Law, and Local Rule
In order to understand the common law versus civil law debates in the Territory of Orleans, it is necessary to understand the basic differences between the two.8 Common law and civil law are not legal systems so much as legal traditions. A legal system is “an operating set of legal institutions, procedures, and rules,” while a legal tradition is “a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught.”9 Louisiana’s legal system is the product of both traditions.
The differences in the two traditions center on their different visions of the source of law and are illustrated by their different visions for the role of legislators, legal scholars, and judges. The civil law tradition adheres to “legislative positivism,” which holds that only statutes enacted by a legislature have the power of law. In the common law tradition, on the other hand, law finds its source in judicial precedent and custom, as well as statutes.10 Civilian law is premised on the view that lawmakers are able to anticipate conflicts and, based on reasoning from basic premises, enact laws that will resolve these conflicts. When civil law countries go through codification, it is all-encompassing. Any principles of prior law that are not included are no longer binding. Common law countries also have statutes, but these are not exclusive and are often codifications of customary or judge-made law stemming from previous disputes rather than anticipations of future conflicts.11 A common law advocate might argue that the civil law has a utopian view of codification.
Legal scholars play significantly different roles in the two traditions. In civil law countries, they serve as advisers to lawmakers, providing their expertise on the function and impact of laws. While law professorships in common law countries are often prestigious positions, the scholar plays no real part in the lawmaking process. Students of civilian law read legal scholars and learn about the historical development of ideas about the function of law. Students of common law, on the other hand, pay little attention to legal scholars but instead read great cases and learn about the historical circumstances giving rise to them. In other words, legal history in civil law tradition is intellectual history, while in the common law tradition it is most often social or economic history.12
Finally, and perhaps most important, judges in the two traditions serve different functions. In the common law world, the decisions of judges can become precedent, which, in itself, becomes a form of binding law. This has led to criticism from proponents of the civil law on the basis that common law countries do not strictly adhere to separation of powers. The civil law countries created administrative courts and limited or prohibited judicial review of legislation in order to prevent the judge from taking on the role of a lawmaker. In the civil law world, judges are seen as civil servants or functionaries.13
While the civil law tradition claims roots in classical Greece and Rome, if not before, it was reinvigorated during the Age of Revolution. Prior to the Enlightenment, it was not uncommon for judges in jurisdictions based on Roman law to act like common law judges. But as the revolutionaries on the European continent saw it, this was a problem. Thus, in the late eighteenth and early nineteenth centuries, many emerging states on the European continent went through processes of radical and extensive codification. The most notable and most influential of these was the enactment of the French Civil Code of 1804. The main author of the Code Napoleon, as it came to be called, was Jean Étienne Marie Portalis, who worked on his compilation from 1800 until its completion four years later. Law in England was transformed much more slowly. Nevertheless, by the eighteenth century, it had transformed a great deal from its medieval state.14
At the same time Portalis was working on the Code Napoleon, President Thomas Jefferson was working on acquiring the Louisiana Territory from France. After successfully doing so, he insisted on Americanizing the new territory’s legal system. When Jefferson first took office in 1801, he expressed his desire for a nation of “people speaking the same language, governed in similar forms, and by similar laws.”15 Thus, two years later, he was convinced that the loyalty of Louisianans to the United States was dependent upon their acceptance of its common law traditions. Jefferson had been trained in the common law at the same time he was participating in the birth of the United States. In his view, this legal tradition was an essential component of the American political system, and if Louisianans failed to adopt it, they would never be fully integrated into the Union. But the president feared that the civil law tradition was so well entrenched in the lower Mississippi valley that its inhabitants would resist attempts to impose common law. In 1803, therefore, he pushed for the annexation of New Orleans and the surrounding countryside into the Mississippi Territory. As he explained to Horatio Gates, “We shall endeavor to introduce the American laws there, and that cannot be done but by amalgamating the people with such a body of Americans as may take the lead in legislation and government.”16 But this plan had little support, and Jefferson soon abandoned it.
Once the plan to integrate New Orleans into the Mississippi Territory was abandoned, the hopes for instilling the common law in the lower Mississippi valley rested on Anglo-American immigrants to the region. In fact, several influential Anglo-American jurists trained in the common law tradition immigrated to New Orleans immediately after the Purchase. Among them was William Charles Cole Claiborne, the man Jefferson appointed to be the Orleans Territory’s first governor. Although Claiborne was born in Jefferson’s home state of Virginia and studied at the College of William and Mary, he lived in many different parts of the United States before coming to Louisiana. At the age of sixteen, he moved to New York, where he worked under John Beckley, the clerk of the House of Representatives. When the nation’s capital moved to Philadelphia in 1790, he went there with it and began to study law. In 1794, he moved to Tennessee to start his legal practice. He later served as justice of the Tennessee Supreme Court and then governor of the Mississippi Territory before Jefferson made him governor of Orleans in 1804. Jefferson charged Claiborne with overseeing the territory’s adoption of common law principles.17
Several other common law lawyers made an early impact on the territory. James Brown, another Virginia-born lawyer, arrived in New Orleans in November 1804 after practicing law for many years in Frankfurt, Kentucky. He served as secretary and district attorney for the Orleans Territory but turned down an appointment to the Superior Court, apparently because it did not pay well enough. He purchased a sugar plantation on the German Coast and became one of the largest slaveholders in the territory.18 Another Brown, Jeremiah Brown, wrote a pamphlet in 1806 defending the common law tradition in which he accused refugee lawyers “from the bloodletting on the island of Santo Domingo” of seeking to undermine the American legal system.19 John Prevost, the stepson of Aaron Burr, was born in New Jersey and studied law in New York. He came to New Orleans in October 1804 and accepted a position as justice on the Orleans Superior Court. Supporters of common law hoped that Prevost would use his position to help Americanize the territory’s legal system.
The most influential and probably most controversial