Making Race in the Courtroom. Kenneth R. Aslakson

recently arrived in New Orleans from New York, Livingston wrote that the governor’s “ordinances in English mixed with those of his predecessors in Spanish and French, the laws of Castile, the Customs of Paris, the Leyes de Partidas, les Edits du Roi, the Statutes of the United States and the omnipresent common law of England make a confusion worse than that of Babel.”³² He helped clarify the territory’s laws by drafting a code of civil procedure in 1805. Moreau-Lislet also played a big role in providing certainty and clarity to the territory’s laws. In June 1806, the legislature assigned him and James Brown the task of compiling the region’s laws into a written digest. Moreau-Lislet was the dominant partner in this joint effort. Two years later the two submitted their work for legislative approval, and the legislature quickly adopted a bill to make it the law of the land in Louisiana. Despite some concerns that he would, Claiborne did not veto the bill.³³ The 1808 compilation of laws was a digest rather than a code. Moreau-Lislet did not create a set of laws by reasoning from basic principles (as Portalis had done in drafting the Napoleonic Code); rather, he studied existing laws in Louisiana and organized and categorized them in written form. This is important because it means that the Civil Digest of 1808 did not break from past law; it merely organized and summarized it, and it was not the exclusive law of the land.³⁴ Finally, in 1822, the state legislature commissioned Livingston, Moreau-Lislet, and Derbigny to prepare a full revision of the civil code, a commercial code, and a comprehensive code of civil procedure. The new Civil Code of Louisiana was completed, was accepted by the legislature, and became law in 1824.³⁵

      The legal system that emerged in Louisiana from all these efforts was, not surprisingly, a compromise influenced by both the civil law and common law traditions. The U.S. Constitution guaranteed the rights of trial by jury and habeas corpus, both elements of the English common law and strangers to Roman civil law. And the March 26, 1804, act of Congress created a common law (or adversarial) court system in the territory.³⁶ The law of civil procedure, while unique, adopted many of the basic components of the American system, including some of the common law forms of action, the adversary process itself, and the controlling importance of the judicial interpretation of the written law. The Civil Digest of 1808 did nothing to alter the American court system to which the local population had adjusted with surprising speed, and it did nothing to prevent the introduction of American criminal law and criminal procedure, again drawing little protest from the locals. Furthermore, Louisiana rejected a commercial code that might have alienated it from the national economy that was increasingly becoming the key to its prosperity. The only area of the Civil Digest that was truly civil law in nature was that of private substantive law, such as the laws governing contracts, marriage and family obligations, and inheritance.³⁷ Finally, the 1824 Civil Code incorporated common law principles of property and contract into the basic framework of the Napoleonic Code.³⁸

      Anglo-Americans and Franco-Louisianans also fought over what should be the official language of the Orleans Territory. English speakers argued that it should be English only so as to conform to the rest of the country. They claimed that requiring publication in both French and English would be too costly and cumbersome. French speakers, on the other hand, feared that an English-only requirement would put them at a grave disadvantage in legal proceedings. The French speakers, with the support of Livingston and Superior Court justice John Prevost, won the day, at least officially. The Civil Digest of 1808 was printed in both French and English, and Livingston’s rule of civil procedure required all court documents to be drawn up in both languages. In the City Court, however, this requirement was ignored more often than it was followed. Out of all the cases in the court involving free people of color, about a third of the court documents were filed in English, about a third in French, and about a third in both. Only a handful of parties objected when the rule was not followed.³⁹

      The battles over the future of Louisiana’s legal system and clash of legal cultures were intertwined with concerns about preserving a fragile Union and assertions of local control. At the time of the Purchase, Jefferson was convinced that the best way of ensuring the loyalty of Louisiana’s ancienne habitants to the United States was by indoctrinating them into Anglo-American culture, especially its legal culture. He appointed Claiborne as governor with instructions to oversee the overhaul of the legal system. After many local elites resisted attempts at a complete overhaul, however, Claiborne let up in his campaign against the civil law. He had come to accept that he could best win the loyalty of the old inhabitants by allowing some of their customs, including the civil law, to continue. In an October 1808 letter to James Madison regarding the legal system in Louisiana, the governor made establishing the common law his third priority. His first goal was “to render the laws certain; [his] next … to render them just, and [finally] to assimilate [Louisiana’s] system of jurisprudence as much as possible, to that of the several states of the union [emphasis added].” By the fall of 1808, therefore, Claiborne had compromised his loyalty to the common law with his sensitivity to the sentiments and wishes of the “Ancient Louisianans.”⁴⁰ As a result, Claiborne’s once strained relationship with the French-speaking population of Orleans improved considerably. In 1812, he defeated Jacques Villère in the state of Louisiana’s first gubernatorial election, an election he could not have won without support from some francophone elites who preferred the civil law.

      In the end, local elites in New Orleans from both legal traditions were more concerned with maintaining local rule than with which tradition ultimately prevailed in the region. As one of the representatives of the new Americans in Washington, Pierre Derbigny led the charge for self-government in the Orleans Territory, but he was joined by Anglo-Americans as well, including Daniel Clark and Edward Livingston. Their collective call for the national government to stop interfering with their domestic institutions is a familiar theme throughout American history—and resembles the cries coming from the seceding states half a century later. Their similarities with the secessionists of the mid-nineteenth century do not end there. Most local elites in the Orleans Territory were willing and able to compromise on the type of legal system in the region, but none of them, whether ancienne habitants, West Indian refugees, or Anglo-American newcomers, could accept national government restrictions on slavery.⁴¹

      The Legal Battles over Slavery

      Whatever differences existed between civil law and common law with regard to the issue of slavery, they paled in comparison to their similarities. Both traditions developed in the early modern era to support bourgeois values by naturalizing the individual’s right to private property. Indeed, both common law and civil law supported property rights above all else.⁴² And in lower Louisiana, as in the Caribbean and the southern states of America, both traditions supported New World slavery. Livingston, Moreau-Lislet, and Derbigny, all slaveholders themselves, were key participants in establishing a legal system that legitimated the treatment of human beings of African descent as chattels.⁴³

      Slavery and a legal system that supported it were well entrenched in the lower Mississippi valley at the time of the Louisiana Purchase. France founded New Orleans as a planned slave society in 1718, by which time the colonial power already had a codified law of slavery: the 1685 Code Noir, which was enacted to govern African slavery in the French Caribbean. The Code Noir was supposedly modeled on Roman slave law, but its name, which translates as the “Black Code,” expressly acknowledged the racial element of New World slavery. Some aspects of the Code Noir recognized the humanity of slaves. It stated that slaves should be instructed in the Catholic faith, and it promoted slave families. It further allowed masters to free their slaves at their own discretion, and once freed, the former slaves had “les mêmes droits” as all free people.⁴⁴ However, other aspects of the code were more severe. Slaves could not own property and, therefore, were legally incapable of purchasing their own freedom. They could not be a party to a lawsuit or testify against free people except in cases in which the defendant was accused of inciting rebellion. Louisiana enacted its own slave code in 1724. Although it adopted most of the 1685 law, the Louisiana Code Noir made it more difficult for masters to free their slaves. Under the 1724 code, manumission required the approval of the Superior Council, French Louisiana’s governing body, and masters had to show good cause for manumission, such as a special service to the colony.⁴⁵

      The Louisiana Code Noir, adapted from a set of laws designed for