From Chaos to Continuity

The Evolution of Louisiana's Judicial System, 1712–1862

Mark Fernandez

• Publisher: LSU Press
• Year: 2015
• ISBN:
  9780807156872
• Topic: Law
• Subtopic: Legal History
• Index: Law

Historians have long viewed Louisiana as an anomaly in the American judicial system-an eccentric appendage at the mouth of the Mississippi River. The diverse Creole culture and civilian heritage of the state's legal system have led many scholars to conclude that it is an anachronism in American law unworthy of serious attention. Others embrace this tradition and revel in the minutiae of the Pelican State's unique civil law legacy. In From Chaos to Continuity, Mark F. Fernandez challenges both perspectives. Using the innovative methods of the New Louisiana Legal History, he offers the first comprehensive analysis of the role of the courts in the development of Louisiana's legal system and convincingly argues that the state is actually a representative model of American law and justice.
Tracing the rise of Louisiana's system from its earliest colonial origins to its closure during Federal occupation in 1862, Fernandez describes the introduction of common law after American takeover of the colony; the chaotic combination of French, Spanish, and Anglo legal traditions; the evolution of that jurisdiction; the role of the courts-especially the state supreme court-in maintaining the mixture; and the judge's proper function in administering justice. According to Fernandez, the challenge of integrating two very different systems of law was not unique to Louisiana. Indeed, most antebellum southern states had legal systems that incorporated important traditional aspects of their colonial legal orders to varying degrees. From Chaos to Continuity liberates Louisiana's legal history from the quirky restraints of the past and allows scholars and students alike to see the state as an integral part of American legal history.

1

FRENCHMEN AND SPANIARDS

The Colonial Period

On 26 September 1712, Louisiana became a civilian jurisdiction when Louis XIV granted Antoine Crozat letters patent to “all the territory possessed by the Crown between old and new Mexico and Carolina.” Before that time the colony was subject to military rule. Crozat’s grant marked a turning point in the colony’s development by ushering in a period of conciliar rule that established Louisiana’s first judicial system. Separate edicts of 12 and 23 December 1712 set up a temporary Superior Council that on 16 September 1716 gave way to a more permanent eight-man council.¹

The edict that created the Superior Council granted it jurisdiction in all civil and criminal causes. The commissaire-ordonnateur² served as the honorary president of the council, but in practice a senior councilor presided over the court. He alone sat as the court of first instance in provisional actions, while a quorum of three was necessary. A five-man quorum determined criminal matters. Meeting monthly, the council operated in exactly the same fashion as those in other French colonies, such as St. Domingue and Martinique.³

When in 1717 the Western Company, a joint-stock venture, assumed Crozat’s charter, it added a system of inferior courts to assist the council in its judicial duties. If the Western Company found itself involved in a civil suit, then the case was heard in the Consular Jurisdiction of Paris with appeals before the Parlement of Paris.⁴

In September 1719 the crown revised the Western Company’s charter to accommodate the rapid growth experienced by the colony after Bienville’s founding of New Orleans. Under the amended charter the council heard appeals from the inferior courts with the king reserving the right to review conciliar decrees. After 1719 the Superior Council began to exercise administrative authority in a variety of capacities, and its officers joined forces with military interests in the colony. Eventually, the council asserted legislative prerogatives far beyond the ambit of its powers as described in the initial edicts.⁵ In 1731 Louis XV attempted to prohibit such lawmaking discretion, but the Superior Council, separated from direct royal interference by distance and lack of interest, continued to wield such authority as late as 1743.⁶ The council’s exercise of legislative and administrative powers often invited controversy, but its judicial authority remained unchallenged throughout the Western Company’s checkered existence.⁷ Thus, the development of the colony’s courts had an uncharacteristic record of success.

By the late 1720s the French had organized the inferior courts into nine efficient judicial districts: Alibamons, Mobile, Biloxi, New Orleans, Natchez, the Yazoos, the Illinois and Wabash, Arkansas, and Natchitoches. Inferior courts within these districts consisted of a director or agent of the company assisted by two local magistrates.⁸

In 1729, Indian warfare led the Western Company to abandon its hopes of making Louisiana profitable, and in July 1731 it relinquished its title to the monarch. In May 1732 the crown reorganized its possession, creating a thirteen-man Superior Council with members of that body serving as “assessors” in cases of first instance.⁹ Relying on a loose interpretation of the Coutumes de Paris and royal edicts, this form of judicial organization remained in effect until the revolt of 1768.¹⁰

France stumbled through a series of imperial wars and continental entanglements throughout the eighteenth century. As a result, Louis XV’s ministers occupied themselves with warfare, and Louisiana experienced a period of “salutary neglect” similar to that of the British North American colonies in the age of Walpole.¹¹ Viewing Louisiana as a poor stepchild to the richer reserves of New France, Louis XV allowed the officials and citizens of Louisiana to fend for themselves in a variety of political and administrative venues. That the council often served as a vehicle for such maneuvering should not be surprising. In British and in Dutch North America, the distance between the metropolitan center and the colonial peripheries often facilitated a blending of governmental prerogatives in both legislative and judicial institutions.¹² Despite the disputed nature of the Superior Council’s administrative history, it provided for a high degree of excellence, often exceeding the quality of the mother country’s courts in both civil and criminal causes.¹³

After the Seven Years’ War, France ceded the colony to Spain to compensate the Spanish Bourbons for their support. When Louisiana became a Spanish colony in 1762, logistical problems and the messy nature of Spain’s own imperial bureaucracy prevented Spain from taking immediate possession of its new acquisition. Accordingly, Spain allowed the administration of Louisiana to fend for itself from 1762 to 1766, when Antonio de Ulloa finally assumed control of Louisiana for Charles III.¹⁴

Of all the candidates Charles III could have chosen to govern Louisiana, Antonio de Ulloa was the worst. A slender, bookish man, young Ulloa gravitated toward intellectual pursuits. He was an excellent student, reveling in his studies, especially in mathematics and the natural sciences, but his scholarly endeavors provided little training for more vigorous activities, such as military service. Unfortunately, only limited opportunities existed for lesser nobles like Ulloa in eighteenth-century Spain. Many chose the military as a path to career advancement. Lacking the stature and stamina for combat, Ulloa relied on his intelligence and innate meticulousness to cut his path through the Spanish naval academy. His educational success presented Ulloa with his first career opportunity as a soldier. In 1734 he signed on as a military escort and mathematician to a Parisian expedition to Ecuador in search of the equator. The success of the quest opened doors for other exploratory ventures. Soon Ulloa won renown for naturalist studies of the Americas coauthored with his brother, Juan. In typical Enlightenment fashion, Ulloa’s superiors, impressed with his scientific accomplishments, appointed him to an administrative position. So, in 1758, Ulloa traveled to Peru to reform Huancavelica, a foundering mining province. Although Ulloa’s plans to revitalize the mining industry were sensible, his brusque leadership style and overbearing attention to economy and detail roused opposition in the graft-ridden region. In 1764, his opponents engineered his ouster.¹⁵

On 5 March 1766, a defeated but dogmatic Ulloa arrived on a rain-swept New Orleans levee. Hoping to redeem himself for the Huancavelica debacle, Ulloa strove to assimilate Louisiana into the Spanish empire. Unfortunately, his meticulous, scientific nature fueled procrastination and indecision. Ulloa’s failure to embrace the local elite and his inability to compromise also helped to stymie his efforts to control the colony.¹⁶ Such control was essential given the reservations that most Louisianians shared about the cession of the colony to Spain.

Neglected by the French since 1762, the commercial establishment in Louisiana had repeatedly petitioned Louis XV to undo the transfer of the colony, most notably by sending Jean Milhet, a prominent merchant, to the French court.¹⁷ Mainly the merchants feared that the Spaniards would institute legal reforms that could dispossess them of their holdings and place them firmly “under the yoke of Spain.”¹⁸ Ulloa’s drive to reorganize the legal system exacerbated those fears. He committed his first mistake immediately on his arrival by failing to take formal possession of the colony. Accordingly, Ulloa’s regime in the ensuing months assumed the air of a provisional government, one that was preparing the way for major changes on the occasion of official retrocession. The prospect of such reforms frightened Louisiana’s French citizens and made them dread the formal assumption of Spanish leadership.¹⁹

In January 1767, after shoring up the Spanish military presence, Ulloa further alarmed the French citizenry when he moved to dissolve the Superior Council, which had fallen into the hands of a corrupt junto after 1762. The shunned council, consisting of the most influential leaders of the opposition, believed that their worst fears were materializing. To abolish the council, Ulloa persuaded his superior, Jeronimo Grimaldi, to draft a royal decree to reorganize the colony’s legal system. Believing that Louisiana had no reason to expect an independent judiciary since other Spanish possessions, such as Havana, did not have them, Ulloa urged Grimaldi to vest judicial power in the governor alone. Then, according to Spanish imperial practices, the governor would preside over all civil and criminal appeals with the assistance of a trained lawyer called an asesor letrado. On retrocession, then, the Superior Council would cease to exist, and the governor would become the supreme judicial official.²⁰

Ulloa also urged Grimaldi to draft far-reaching reforms of the colony’s administration. A revised municipal code covering religion, manners, provisions, public health, and public safety formed the core of the administrative changes. Although Grimaldi modeled the titres, or sections of the code, after similar provisions for the West Indies, the French inhabitants of New Orleans interpreted the comprehensive nature of the document, along with the proposed dissolution of the council, as a clear threat to their autonomy. Moreover, in the public safety section, the prudent retention of French troops in outlying Indian territories, under their popular commander, Governor Charles Philippe Aubry, raised the hackles of both Indian and British leaders on the frontier.²¹

Since the end of the Seven Years’ War, the British had been stepping up their military activities in West Florida. Strategic location of English forces along Louisiana’s eastern border greatly concerned Ulloa. His first response was to strengthen the forts along the Mississippi. Although Ulloa achieved a measure of success, still he worried that the forts alone would not repel a concerted invasion. To provide extra security for the port, he limited traffic on the river to a single channel. Ulloa’s efforts, with the help of diplomatic cooperation from Great Britain, largely succeeded in ending hostilities between the two empires. Restricting river traffic, however, precipitated a wave of opposition from New Orleans merchants. The northeastern channel that Ulloa kept open had a reputation of being one of the territory’s most difficult waters to navigate. Furthermore, reduction of the number of open channels considerably slowed the port’s commercial activities, hitting Ulloa’s critics in that most delicate part of their anatomy—the purse.²²

With the English at bay, Ulloa turned his attention to the Indians. When the Spanish assumed control of Louisiana, they realized that capitalizing on the colony’s lively Indian trade was crucial to the success of the venture. Wary that radical change might lead to violence, Ulloa, with Aubry’s support, maintained the French policy of friendship with the Indians. Mimicking effective British techniques, Ulloa sought to stifle the traders’ abuse of the Indians through strict commercial regulation. He set high penalties for violation of Spanish ordinances and enlisted the French commandant at St. Louis, Louis St. Ange, to enforce them. By 1768 rigid enforcement of Ulloa’s regulatory policies had begun to alienate the region’s French traders, adding their voices to the already stout opposition front.²³

Spain had acquired Louisiana in hopes of turning it into a profitable enterprise, so it was not surprising that Ulloa’s early reforms included commercial regulations. Any shift of a colony’s imperial center would call for a redefinition of its trading policies. In 1766, Ulloa, via Aubry, submitted a decree to the Superior Council that would require shipmasters to obtain licenses and passports from the Spanish government in order to engage in trade. Although this paralleled routine antismuggling measures in the Spanish empire, such comprehensive regulation shocked and enraged the French commercial community, which had built much of its fortune on illicit trade with Great Britain.²⁴

The proposed changes in the judicial system, coupled with the military and regulatory provisions of the revised municipal code, caused great dissatisfaction among Louisiana’s already suspicious French citizenry. That the new provisions attacked the livelihood of Louisiana’s most prosperous and influential citizens made the situation volatile. In creating those provisions, Ulloa alienated the very segment of the population whose support he needed most to effect a smooth transition. By the winter of 1768, relations between Ulloa and his constituents had deteriorated to such an extent that the Louisianians began scheming to rid themselves of the troublesome governor. When a monetary crisis left the colony in desperate financial straits, the schemers set their plots in motion.²⁵

From the beginning of the Spanish occupation, the crown had endeavored to retire French currency from the economy and to replace it with Spanish money. Unfortunately, a dearth of Spanish specie and Ulloa’s refusal to underwrite a debt of 2,683,000 livres led to a depreciation of French currency and a wave of inflation. To combat the inflation, Ulloa issued Spanish notes, but this measure met with only partial success. Anticipating the importation of large quantities of Spanish specie to relieve the crisis, Ulloa sought to diminish the role of France’s commissary, Denis-Nicolas Foucault, reducing him to the status of a mere “executor and caretaker of governmental property,” and limiting his duties to “settling the accounts of the French administration and assembling an inventory of the properties to be taken over by the Spanish, for which indemnification was to be made.”²⁶ Although Foucault’s demotion freed him to focus on the muddled state of the colony’s finances, Ulloa had essentially emasculated the one French off...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction: Law, Society, and Louisiana’s Courts
• 1. Frenchmen and Spaniards: The Colonial Period
• 2. Courts and the “Clash of Cultures,” 1803-1812: The Territory of Orleans
• 3. Order and Chaos: Organizing the Early Supreme Court
• 4. Creating a Common Law
• 5. The Phoenix: Edward Livingston and Codification in the 1820s
• 6. From Chaos to Continuity: Early Reforms
• Epilogue
• Appendix: Civil Law and Common Law
• Selected Bibliography
• Index