Making Race in the Courtroom. Kenneth R. Aslakson

of Robert Livingston, one of the signers of the Louisiana Purchase treaty. Edward Livingston studied at Princeton and then apprenticed himself to noted lawyer and legal scholar John Lansing.²⁰ While studying under Lansing, Livingston developed an appreciation for Roman law, which he thought to be much more efficient than the “judge-made” law of England. Still, he was admitted to the New York bar and became a successful common law attorney and lawmaker. He was a congressman from New York State, the U.S. attorney for the state, and the mayor of New York City before coming to New Orleans in 1804. He left New York in the wake of a financial scandal that both left him deeply in debt and soured his relationship with Thomas Jefferson. Most important, Livingston was a brilliant legal mind who was constantly working to make Louisiana’s laws clearer and its legal system more efficient.²¹

      While Jefferson and Claiborne encouraged these common law jurists to immigrate to the Orleans Territory, local supporters of the civil law tradition resisted the efforts of the central government to Americanize the region’s legal system. Among the civil law–trained jurists living in New Orleans at the time of the Purchase, Pierre Derbigny, the lawyer for Louise Laronde Castillon in the case that begins this chapter, was the most accomplished.²² Derbigny opposed Anglo-American common law in Louisiana and defended the retention of civil law practices established during the French and Spanish colonial periods. Yet some of the most vocal supporters of civil law were not lawyers at all but wealthy French-speaking planters such as Joseph Dubreuil and Julien Poydras. Dubreuil was very critical of Claiborne’s appointment of both American and French judges to the territorial courts and the “awful cacophony which was bound to result from such an arrangement.”²³ Poydras proclaimed “of all the evils to which lower Louisiana was exposed by American rule, nothing was more nefarious than the threat to its ancient laws and legal institutions.”²⁴ Poydras’s assertion raises a central contradiction to the Jefferson administration’s attempts to transform Louisiana’s legal system from civil law to common law. As Louisiana legal historian Mark Fernandez has observed, since common law “rests on the notion that, over the centuries, the law will evolve and eventually approach the ideal of justice …, how could the common law replace the civilian legal heritage of Louisiana?”²⁵

      Some francophone planters put their words into actions. In November 1805, a group of rural planters published a set of “Instructions” for their delegates in the House of Representatives complaining of the newly imposed county court system, which they saw as both oppressive and inconvenient.²⁶ Then, in June 1806, ten non-English-speaking members of the legislative council resolved to immediately dissolve the newly formed General Assembly. Their main reason for doing so, as explained in a manifesto they had published in a local newspaper, was to protest the attempts of the governor, acting on behalf of the national government, to impose a foreign and unfamiliar legal system on the residents of Orleans: “The most inestimable benefit for a people is the preservation of its laws, usages, and habits. It is only such preservation that can soften the sudden transition from one government to another and it is by having consideration for that natural attachment that even the heaviest yoke becomes endurable.”²⁷ It seems that many elites who had lived in Louisiana prior to the Louisiana Purchase feared that an American legal system threatened the vitality of their culture.

      The most influential civil law jurist in Louisiana during the territorial period, however, was not one of Louisiana’s own but a post-Purchase immigrant from St. Domingue, and the judge in the case that opens this chapter, Louis Moreau-Lislet. Born in Cap Français, St. Domingue, in 1766, Moreau-Lislet studied law in Paris, becoming an avocat just before the outbreak of the French Revolution. He returned to Le Cap prior to its burning by slave insurgents in 1793. In 1794, he served as agent and attorney for several emigrants who expected to return to the island after the hoped-for defeat of the insurrection, but by 1800 he held an official position in the revolutionary government. In 1801–2, he sat as interim judge on a court in Port Republicain (Port-au-Prince), and as late as February 1803 he was a public defender and a trial judge in Le Cap. In August 1803, after the French army had surrendered to Jean Jacques Dessalines’s forces, Moreau-Lislet left St. Domingue. He went first to Cuba, but then sometime between August 1804 and February 1805, he arrived in New Orleans. Because Moreau-Lislet was fluent in French, Spanish, and English, Governor Claiborne made him official interpreter in the colony almost as soon as he arrived. The governor then appointed the refugee to be the first judge of the newly formed New Orleans City Court in 1806. He remained on the City Court’s bench until early 1813, less than a year before a restructuring of the court system ended its existence. In addition to his service on the City Court, Moreau-Lislet was a practicing lawyer and, like Edward Livingston, an active participant in clarifying the region’s laws.²⁸

      One of the most controversial cases in New Orleans during the territorial period pitted Louis Moreau-Lislet against Edward Livingston as lawyers on opposite sides of the docket. The case was officially called Gravier v. City of New Orleans, but it is remembered simply as the “batture case” after the piece of land that was the subject of the suit. In lower Louisiana, a batture is an area of land between the river and the levee that remains dry for most of the year but is covered by the river in its annual swells.²⁹ The batture in question in the Gravier case was upriver from the Vieux Carré in Faubourg St. Marie. In the late eighteenth century the land was part of Bertrand Gravier’s plantation, but in 1788 he subdivided much of the land in establishing New Orleans’s first suburb and sold parcels of this estate throughout the 1790s. When Bertrand died in 1797, his brother, Jean Gravier, inherited the land that had not been sold. The batture land bordering Faubourg St. Marie had been neither sold nor improved but was being used by the public. In 1803–4, Jean Gravier attempted to move the levee on this batture closer to the river in order to claim more land, a practice that had developed throughout New Orleans’s history because the batture was constantly widening due to the buildup of soil. This time, however, the public protested because Gravier did not own any of the land bordering the batture. Gravier then sued the city in the Orleans Superior Court to establish his title to the St. Marie batture. Livingston agreed to represent Jean Gravier on a contingency fee. If he won, Gravier would grant Livingston a part of the batture on which Livingston planned to construct a commercial dock. In answering the lawsuit, the city of New Orleans, represented by Pierre Derbigny and Louis Moreau-Lislet, claimed that the St. Marie batture was public land. On May 23, 1807, a unanimous court granted a decision in favor of Gravier. Yet, while Livingston won the case for his client, he was never allowed to build on the land. President Jefferson claimed the land as federal government property and ordered the eviction of Gravier and Livingston pursuant to a law of Congress of March 3, 1807, that allowed the government to evict squatters on public lands. The order was executed, and Gravier and Livingston were evicted, in January 1808.³⁰

      While the batture case pitted New Orleans’s most accomplished common law–trained lawyer against two of the civil law’s best, the issues of the case had little to do with disputes over the Americanization of the legal system.³¹ Livingston’s client, Jean Gravier, was Louisiana born and tended to favor the civil law tradition, while Claiborne and Jefferson, avid proponents of the common law tradition, both supported the city’s position. In fact, Moreau-Lislet and Livingston came to admire and respect each other even though they were opponents in the case and were trained in different legal traditions. Each showed an appreciation of the other’s legal tradition. In his time on the City Court bench, Moreau-Lislet acted like a common law judge in his liberal interpretations of existing law and willingness to make decisions based on custom and precedent. For his part, Livingston was a proponent of civilian law even before coming to Louisiana. Once he got there, he became one of its most articulate defenders against common law encroachment. Moreau-Lislet and Livingston were both ambitious men seeking power and influence, but both also seemed genuinely interested in improving the territory’s legal system. Under the influence of these two men, the heated debates between proponents of civilian law and proponents of common law subsided by the end of the territorial period.

      Indeed, the respective careers in New Orleans of both Moreau-Lislet and Livingston suggest that each was more concerned with creating certainty in the territory’s laws than in pushing for one tradition over the other. As a result, they were willing and active participants in the drafting and clarification of the substantive laws and legal procedures