The Louisiana Civil Law System - Unique in the United States

How Civil Law Prevailed Over Common Law in Louisiana

The Origin of Louisiana's Civil Codes Was Never The Napoleonic Code

 

The biggest myth perpetuated about Louisiana's legal system is that its first body of civil laws was the Napoleonic Code (called the "Code Napoleon" in France).  Even today, some people, including attorneys, erroneously believe that Louisiana's present Civil Code is based on the Napoleonic Code.

 

Although the Napoleonic Code played a role in the development of Louisiana's civil law system, its role was not that of being copied and adopted as Louisiana's own.  That myth was born out of Europe's diverse interest in the land originally called "New France" by French explorers, and later, the Louisiana Territory.  The complicated and "secret" exchanges of that Territory between France and Spain (and to a lesser degree, Great Britain), caused so much confusion about the law in effect when the United States acquired Louisiana from Napoleon, that well respected legal scholars-historians debated the issue until just a few years ago.  Of course, the origin of Louisiana's civil law does not play the same role of importance today as it did when Louisiana was being considered for statehood, but the origin is not purely academic either.  Louisiana's civil law system should not be ignored nor forgotten, as it still influences the manner in which our courts interpret our Civil Code.  And the interpretation of our Civil Code still sets Louisiana apart from the other 49 states.

 

The "Doctrine of Discovery"

 

One might wonder how, exactly, did the Spanish, the French, and other European countries become "owner" of lands around the world.  As the European explorers were obviously not from North and South America, Africa, and Asia, how could they claim ownership of such lands simply based on the fact that they landed on them?

 

Toward the end of the Middle Ages, this period of exploration produced what is now called the "Age of Discovery".  It was given this name because European explorers were circling the globe and claiming ownership of all the land they "discovered" in the name of their sponsoring country.  One must remember that during this time, Europe was almost entirely Catholic, and the sitting popes at that time held great secular, as well as religious, power as head of the Catholic Church.  To deal with ownership claims, and to prevent competing claims to the same land, several popes issued several papal bulls - a form of decrees - that dealt specifically with the exploration of the world sponsored by Europe's Catholic monarchs.

 

The three primary bulls governing the discovery of "new lands" by Europeans were Inter CaeteraRomanus Pontifex, and Dum Diversa.  They granted to nations and their explorers the "right" to claim ownership of land they had "discovered" on behalf of their sponsoring countries.  Known as the "doctrine of discovery", this legal principle held that title to lands was automatically conferred on the government whose subjects explored and occupied a territory whose inhabitants were not already subjects of another European Christian monarch.  Thus, when the Spanish and Portuguese Conquistadors landed in South and Central America, they immediately claimed ownership of the land in those areas for Spain and Portugal.  When the French landed in the northeasternmost part of modern-day Canada, they claimed that land for France.  And when the British landed on the eastern coast of North America, they claimed that land for Great Britain.  As the areas of exploration grew, so did the ownership claims.

 

Before summarily dismissing the "doctrine of discovery" as some absurd, antiquated principle used to illegally obtain land from indigenous peoples, note that the great Chief Justice John Marshall of the United States Supreme Court (in Johnson v. Mc'Intosh, 1823) used this exact doctrine in ruling that Great Britain had obtained lawful title to the lands they explored and occupied in North America - namely, the 13 original colonies.  In addition, the title to those lands passed to the United States, which it acquired through conquest in the American Revolution.  Marshall referred to the exploration charters given to explorers by their sponsoring country as legal "proof" that the explorers had operated under the "doctrine of discovery".  In that important land-ownership case, Chief Justice Marshall said:

 

"On the discovery of this immense continent, the great nations of Europe ... as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. ... The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles."

 

In addition, Marshall referred to the indigenous Native American tribes not as sovereigns, but merely "occupiers".

 

I do not suggest that this doctrine was moral - I merely cite it as a legally-recognized doctrine used for the ownership of foreign lands.

 

The Law in the "Discovered Lands"

 

In addition to claims of ownership, the explorers almost immediately attempted to apply the laws of his sponsoring country to the land he discovered.  Doing this, however, at so great a distance (across the Atlantic Ocean) with any permanence in the New World was problematic and sometimes almost impossible to enforce.  This was especially true when ownership rights changed in Europe, but the people occupying the newly "discovered" land several thousand miles away had no say in those changes.

 

With the discussion below, I hope to explain in simple terms the birth of Louisiana's civil law tradition, and why, even today, Louisiana and its laws were influenced by both Spain and France.

Exploring the Land Along the Mississippi River

 

Like the majority of the North American continent at the time of the Europeans' arrival, Louisiana was occupied by what Columbus (thinking he had landed in India) referred to as "Indios" (or "Indians") - a mixture of peoples now called Native Americans.  Although we now know that Columbus first landed in the modern-day Bahamas - namely, San Salvador, that he never reached the North American continent, and that others had actually reached North America (such as the Viking Leif Erickson) before him, Columbus's four voyages to the "New World" opened the door to a wave of expeditions of North America from Europe.

 

One of the most explored areas in North America was the Mississippi River valley, made famous by the Spanish, and then the French - two countries who aspired to colonial power in North America.  Although Great Britain was also interested in North America, it initially confined its interest to the area located primarily along the Atlantic Ocean - the 13 original American colonies.

 

The territory that came to be known as "Louisiana" was explored from essentially two directions: from south to north to southwest by the Spanish, and from north to south by the French.

 

The South to North to Southwest Exploration

 

Hernando de Soto, sponsored by Spain, first landed in Florida in 1539.  His crew journeyed as far north as the Carolinas and Tennessee and then treked westward until they reached the Mississippi River in 1541.  de Soto died shortly thereafter in 1542, and was buried in the River itself somewhere between modern-day Memphis and Baton Rouge.  de Soto's remaining men crossed the Mississippi River and ventured into Texas before returning to Louisiana and traveling down the Mississippi River until they reached the Gulf of Mexico.  Once in the Gulf, the remants of de Soto's expedition made their way to Mexico (already a Spanish territory) by traveling westward along the Louisiana and Texas Gulf of Mexico coastline.  By 1543, other than a few settlements in Florida, the Spanish left the North American continent, and the lower Mississippi River valley remained free of European contact for another 130 years.

 

The North to South Exploration

 

In 1534, just five years before de Soto's landing in Florida, King Francis I of France sent Jacques Cartier to find a western water passage (known today as the "Northwest Passage") from Europe to Asia.  Thinking one existed across modern-day Canada, Cartier and other French explorers colonized the northeastern-most part of the North American contintent and named it "New France".  As the French explorers moved, the territory known as "New France" grew.  Each push to the west and south expanded "New France".

 

Convinced of the necessity of "connecting" its "Canadian" settlement with the Gulf of Mexico, France supported Robert de La Salle as he followed the Illinois River until it met the Mississippi River.  La Salle then proceeded down the Mississippi River to its mouth at the Gulf of Mexico where he announced that he was taking possession "of the country known as Louisiana, its seas, havens, ports, bays, adjacent straits and of all nations, peoples, provinces, cities, villages, settlements, mines and mineral deposits, fisheries, rivers and streams comprised witin the territory and extent of the said Louisiana" in the name of King Louis XIV, after whom Louisiana was named.  La Salle is credited as being the first European (and possibly the first person) to navigate the entire length of the Mississippi River from the northern-most point in Minnesota to the mouth of the Mississippi River in the Gulf of Mexico.  The spot where he claimed the Mississippi Basin for Louis XIV is now Venice, Louisiana.  Ironically, when La Salle sailed from France years later with the goal of establishing a French settlement at the mouth of the Mississippi River via the Gulf of Mexico, he died before finding it from the Gulf-end.

 

Although La Salle is the first known person to have reached the Gulf of Mexico via the Mississippi River by traveling north to south, he did not venture very far from the river and its banks.  Jesuit fur trappers and other French explorers preceded La Salle, with Father Jacques Marquette and Louis Joliet in 1673 paddling from the Wisconsin River to the Mississippi River as far south as the Arkansas River tributary.  While traveling the Mississippi, the French explored fairly wide swaths on both sides of the River.  Hoping to permanently "tie" its foot-hold in modern-day Canada with the mouth of the Mississippi River area that had been proclaimed for France by La Salle, France commissioned two brothers - Pierre Le Moyne d'Iberville and Jean-Baptiste Le Moyne de Bienville - to establish Louisiana as a French colony.  Iberville established the colony in 1699 and Bienville established the City of New Orleans in 1718.

New France (light blue) via French exploration and the "Doctrine of Discovery"

Remember - under the "doctrine of discovery" - each "discovery" of land not previously explored, or previously explored but abandoned (as Spain had done after de Soto's expedition), led to ownership claims by the country who sponsored the "newest" explorer.  Thus, by the time La Salle reached the Gulf of Mexico, France's ownership of territory in North America - called "New France" - extended from Canada to the Gulf of Mexico.  France ultimately divided New France into five distinct colonies with its own administration: Canada, Acadia, Hudson Bay, Newfoundland, and Louisiana.

 

Viewing the light blue portion of the map above (New France), one can easily see just how much territory on the North American continent France explored, controlled, and colonized.

 

Following the "discovery" of the New World and the incorporation of the lands the French explored, France realized that some form of law needed to govern the ever-growing population in its Louisiana Territory.  In 1712, France decreed by royal edict that the Custom of France would govern that territory.

The Roots of the British Expulsion of the French from Acadia in New France

 

The War of Spanish Succession: 1701-1714

 

If one looks at the upper-right corner of the map above, one will see that one of the five colonies of New France - "Acadia" - bordered the British American colony that became the State of Maine.

 

From 1701 until 1714, Great Britain and France fought a European conflict called the "War of Spanish Succession".  It was a prelude to the "French and Indian War" that would be fought several decades later by essentially the same parties, and, like the French and Indian War, also had a European Theater as well as an American Theater of war.  Toward the end of the War of Spanish Succession, British forces in modern-day Maine laid siege to Port Royal, the capital of the Acadia colony.  It is important to note that although Great Britain won the siege of Port Royal and gained control of Acadia, the British did not expel the French settlers from the colony at that time.

 

By the time the French and Indian War broke out between Great Britain and France in 1754, French settlers had lived in Acadia for 150 years, going back to the early 1600's when France began actively settling New France during its search for a western water passage to Asia.

The French and Indian War: 1754-1763

 

During the creation of New France by the French on the North American continent, Great Britain continued to enlarge its presence on the continent as well.  Not only did Great Britain expand the population of its American colonies, it also began moving westward from those colonies toward the Mississippi River.  As large as it was, the Mississippi River was an obstacle to simple westward expansion by Great Britain, and with frequent disagreements between Great Britain and France leading to numerous battles in Europe (such as the War of Spanish Succession), skirmishes between the British and French in North America were inevitable.

 

Such was the case in 1754 when Great Britain went to war with France in what is now called the "Seven Years' War".  Although fought primarily in Europe, that war had a North American Theater as well, called the "French and Indian War".  This war in America was the setting of James Fenimore Cooper's classic novel "Last of the Mohicans".  Again, the American colonies of Great Britain fought the French colonists occupying New France, with both sides engaging various Native American tribes as their allies.  In addition - and this was to have a huge significance for Louisiana - Spain allied itself with France in this particular war.

The French Become "Troublesome" for the British

 

One major difference between the French and Indian War and the prior War of Spanish Succession was that some (but not all) of the French settlers living in Acadia (which had been lost to the British during the War of Spanish Succession) actively assisted the French forces during the French and Indian War.  In addition, throughout the British occupation of Acadia, the French settlers had refused to pledge allegience to the British, even though, by the time of the French and Indian War, those French had been under British rule for almost 45 years.

 

During the 45 years of British occupation of Acadia, a kind of uneasy "truce" prevailed.  The French settlers never pledged allegience to their British occupiers and sometimes threatened to leave the land barren, while the British repeatedly threatened to expel the French settlers when tensions rose.  Yet, neither side carried out their threats during this period.  Essentially, the Acadia-French and their British "masters" tolerated one another, with some British holding out hope of the Acadia-French assimilating into the British culture in British-occupied areas.

 

But things came to a head when some Acadia-French settlers decided to begin aiding the French during the French and Indian War.  Failing to secure a pledge of allegience from the French settlers in Acadia was one thing.  But providing overt aid to the French armies against the British during the French and Indian War by some of the Acadia-French proved too much for Great Britain.  The British concluded that the French had to leave Acadia.

 

Realizing that it would probably lose the French and Indian War on the North American continent to the British, France - in the secret Treaty of Fontainbleau in 1762 - ceded Louisiana (New France) to Spain.  The loss of this war in North America by the French resulted in British control of Canada (also part of New France),which included Acadia.  This treaty was so secret that only the rulers of France and Spain initially knew of its existence.

 

When contrasting the map above with the map below, one can appreciate just how much the French and Indian War devastated France's occupation in North America.  It essentially lost all of New France as a result of cessions to Spain and war-losses to Great Britain.  The "remnants" of that loss can be seen today: Canada's easternmost territory has a rich French heritage where French is still spoken in places like Quebec and Nova Scotia, but it has Great Britain's king or queen as its constitutional monarch.

North America After French and Indian War - note huge loss of territory lost by France when compaired to the previous map

The British Expel the French from Acadia

 

As I mentioned above, in 1755, just one year after the start of the French and Indian War, the British decided to rid themselves of the French living in Acadia.  By this time, the French had not only been living in Acadia under British rule for 45 years - the French had been living in Acadia since its founding over 150 years earlier as a colony of New France.

 

During British rule over New France, particularly Acadia in Canada, the British expelled approximately 11,500 French settlers from Acadia as "punishment" for Acadia's settlers' help to the French during the French and Indian War.

 

Without making distinctions between the Acadians (the name given to French settlers who made Acadia their new home) who had been peaceful and those Acadians who were actively supporting the French in its war with Great Britain, the British governor Charles Lawrence and the Nova Scotia Council ordered that all of the French be expelled from Acadia and surrounding areas.

 

At Gran Pre', the British assembled almost 2000 French settlers and announced:

 

"I now declare to you his Majesty's Orders.  Know then, that your lands, tenements, cattle and live stock of all kinds, are forfeited to the Crown, with all other effects of yours, excepting your money and household goods, which you will be allowed to carry with you; and that yourselves and families are to be removed from this province to places suiting His Majesty's pleasure; and in the meantime, to remain in custody, and under the inspection and control of the troops I have the honor to commmand.  In a word, I now declare you all the King's prisoners."

Map of Modern Louisiana Showing the Parishes Settled by the French from Acadia

The Acadian Diaspora: 1755-1763

 

Lasting eight years, the British forcibly removed approximately 11,500 French settlers from the Acadia colony.  Approximately 1/3 died during this diaspora (forced migration) - the predominant number from disease, starvation, and drowning as a result of several shipwrecks transporting French refugees from Acadia.   Several of these French settlers arrived in New Orleans, and made their way to the lower part of the Louisiana colony along the Gulf Coast (to what we now call the Atchafalya Basin, North America's largest swamp).  For them, the Louisiana colony seemd a "natural fit" because they believed it was still one of the five French colonies that had originally comprised New France, and many of the inhabitants of Louisiana spoke Frence or were of French descent, owing to Bienville's and Iberville's establishment of Louisiana on behalf of France approximately 40 years earlier.  The areas of Louisiana that the Acadians settled became known as "Acadiana" - a collection of parishes (the equivalent of counties in other states) located in the mid-southern and southwestern part of Louisiana.  It was not until well into the 20th century that many Acadians still lived off the land in the Atchafalya swamp.

 

But, as the 1762 Treaty of Fontainebleau - by which France had ceded the New France Louisiana colony to Spain - had been kept secret for almost three years, and was not publically disclosed until 1764, the newly-arrived Acadians found themselves living in a land owned by yet another country other than their ascenstral France: Spain.  And living in Spanish territory would mean living under Spanish law, another crucial point in the development of The Louisiana Civil Law System.

The Beginnings of Modern Louisiana - Spain Takes Over: 1762 - 1800

 

When the French inhabitants of Louisiana (who had been living in Louisiana since Bienville's and Iberville's established settlements, especially New Orleans) and the newly-arrived Acadians discovered "their" Louisiana had been ceded to Spain in secret, they selected several prominent Frenchmen and residents of Louisiana to travel to France and pleaded for France to take back Louisiana from Spain.  Meeting with the King's representative, they were told the King would not nullify his cession to Spain.

 

In 1766, when Antonio de Ulloa arrived in New Orleans to serve as the first Spanish governor of Louisiana, the French colonists were still in states of shock, anger, and abandonment after the French king's refusal to take back Louisiana from Spain.  As a result, the French settlers refused to recognize Spanish rule, and expelled Ulloa from Louisiana by an uprising known as the Louisiana Rebellion of 1768.  Spain responded to this rebellion by sending General Alejandro O'Reilly to Louisiana as the newly appointed second governor and captain-general of colonial Louisiana.  O'Reilly dealt severely with the rebellion by taking formal possession of Louisiana, holding trials for the leaders of the rebellion, and harshly punishing the leaders who were found guilty.  At least six prominent rebel Frenchmen were executed, several others were exiled, and the remainder were imprisoned in the Morro Castle in Cuba.  O'Reilly's arrival was a "wakeup call" for Louisiana's inhabitants.

 

After returning order to colonial Louisiana, General O'Reilly then abolished the Superior Council (which had governed the Louisiana colony under French law) and replaced it with a "cabildo", a Spanish, colonial administrative council that governed a municipality and was considered the legal representative of the municipality.  In Louisiana history, the word "cabildo" has two meanings: (1) the definition just given, (describing the governing administrative council of a municipality), and (2) the name given to the actual building - located next to the St. Louis Cathedral in the heart of the French Quarter - where the Spanish exercised their governance of the Louisiana colony.

 

But O'Reilly's most significant act occurred on November 25, 1769, when he issued an Ordinance designed to organize an efficient government and administration of justice in accordance with Spanish law, and that abolished most French laws and replaced them with a Spanish code.  Formally called "Ordinances and Instructions of Don Alexander O'Reilly", but commonly referred to as "O'Reilly's Code", the provision that effectively replaced any vestiges of French law stated:

 

Instructions as to the manner of instituting suits, civil and criminal, and of pronouncing judgments in general, in conformity with the laws of the Nueva Recopilación de Castilla and the Recopilación de las Indias, for the government of the judges and parties pleading, until a more general knowledge of the Spanish language, and more extensive information upon those laws may be acquired.

 

The Nueva Recopilación de Castilla and the Recopilación de las Indias, both contained a provision stating that if no further statutes were enacted to deal with a particular subject, reference should be made to the Las Siete Partidas (Spanish for "the seven parts"). And by enacting Spanish law as Louisiana's governing law, vestiges of Roman law were introduced into Louisiana's codal history because a great deal of Spanish law was rooted in Roman codes that dated back almost 1000 years. 

 

Thus, with the promulgation of O'Reilly's Code, Louisiana was subject to two primary Spanish sources of civil law and procedure, and where legal issues arose that were not dealt with in those two sources, a third Spanish source governed.

The French Return - But in Name Only: 1800

 

By 1800, France's fortunes changed.  With the Bourbon dynasty overthrown, and Napoleon now ruling as Emperor, France looked again to the west with a goal of building a western French colonial power in the New World. To accomplish this goal, and via yet another secret treaty - the Treaty of San Ildefonso signed in 1800 - Spain ceded the Louisiana Territory back to France in exchange (in part) for France giving the King of Spain's son-in-law power over the Tuscany region in Europe.

 

But Napoleon's dream for a North American French colonial empire was quickly dashed. A slave revolt (ultimately successful) in French-controlled Haiti led to Napoleon losing thousands of troops, a large sum of money, and the loss of Haiti itself.  In addition, although Napoleon formally acquired Louisiana from Spain in 1800, he did not assume sovereignty until November 30, 1803, and that was only for a period of 20 days.

 

The Louisiana Purchase: 1803

 

As Napoleon was also looking eastward to expand his empire, and was preparing to go to war with Great Britain yet again, Napoleon needed money quickly.  Coincidentally, at the same time Napoleon was pressed for funds, President Thomas Jefferson wanted to expand the United States westward on the North American continent and saw control over New Orleans (and thus control over the Mississippi River) as crucial to his goals.  Jefferson dispatched James Monroe and Robert Livingston to France with authority to buy New Orleans and the surrounding area for up to $10 million. Much to the surprise of Monroe and Livingston, Napoleon offered to sell the entire Louisiana Territory to the United States for just $5 million more. Realizing the acquisition of the Louisiana Territory would more than double the size of the United States, and fearful that Napoleon might change his mind, Livingston - without authority from President Jefferson, yet certain Jefferson would approve - purchased the entire Louisiana Territory from France for the offering price of $15 million, and the United States took possession of Louisiana on December 20, 1803.

 

Although some in the United States federal government questioned whether a president without consulting Congress (which, of course, appropriates money) could purchase property on behalf of the United States (including, ironically, Jefferson himself), these questions were put aside when the majority in Congress realized how important the Louisiana Territory could become to the future of the United States' expansion.

 

A glance at the map below shows just how much the Louisana Purchase expanded the territory of the United States.

Assimilating the Louisiana Territory into the United States

 

In 1804, the U.S. Congress established the (a) Territory of Orleans, consisting of all of The Louisiana Purchase south of the 33rd parallel (and which represented almost all of modern-day Louisiana), and (b) Territorial Legislative Council, a legislative body charged with governing that Territory.  The remainder of the Louisiana Purchase was called the District of Louisiana, and was governed by the governor and judges of the Indiana Territory.

 

With the ultimate goal of incorporating the Territory of Orleans into the United States as a new state, President Thomas Jefferson appointed William C.C. Claiborne (later Louisiana's first governor) to oversee the Territory, which then existed as an organized incorporated territory of the United States from 1804 until April 30, 1812, the date it was admitted into the Union as the State of Louisiana.

 

Prior to statehood, Claiborne attempted to carry out Jefferson's instructions by vetoing the Territorial Legislative Council's attempts to recognize the laws then in force in the Territory of Orleans.  The purchase of Louisiana by the United States from France took many by surprise, as the 1800 cession of Louisiana by Spain to France had been a secret for three years.  Many did not even realize France owned Louisiana when it sold the Louisiana Territory to the United States.  Yet, despite France's legitimate ownership of Louisiana prior to its sale to the United States, that ownership was more a "paper" one than an actual occupation.  Thus, nothing occurred to displace the majority of Spanish Law that had been in place for the 40 years of Spanish rule.

Digest of 1808 - Louisiana's First Attempt to Create

A Civil Code

Titlepage of a Digest of 1808 from that period.

Angered at Claiborne's goal to "make" Louisiana more in line with the other United States (that is, into a "common law" jurisdiction), the Territorial Legislative Council adopted a resolution appointing James Brown and Louis Moreau-Lislet to prepare a Civil Code for use in the Territory of Orleans.  That Council charged Brown and Moreau-Lislet with the following mandate:

 

"compile and prepare jointly, a Civil Code for the use of this territory.  Resolved, that the two jurisconsults [Brown and Moreau-Lislet] shall make the civil law by which this territory is now governed the ground work of said code . . ."

 

With a mandate to codify Spanish law in the Territory of Orleans (that being "the civil law by which this territory is now governed"), Brown and Moreau-Lislet looked for the the best model readily available to use as a "template" for their codification project.  The model they found and used was France's Projet du Gouvenement (1800), which itself was the official draft that was to become the Napoleonic Code of France.  This first attempt to codify the civil laws by Brown and Moreau-Lislet was titled:

 

"A Digest of the Civil Laws Now in Force in the Territory of Orleans With Alterations and Amendments Adapted to its Present System of Government - By Authority"

 

Popularly referred to as the "Code of 1808" today, the Digest was the precursor to Louisiana's Civil Code of 1825 and then the Civil Code of 1870 (which was in effect for over 100 years, until major revisions during the late 20th century).

 

How Could a French-language Code be a Codification of Spanish Law? 

 

The confusion that arose regarding the source of Louisiana's Civil Digest and Codes was caused by the model and language used by the two original codifiers.

 

The "French school" argued that because much of the "Code of 1808" (and subsequent revisions) contained articles (that is, "statutes") that were identical in wording to those found in the Projet du Gouvenement  (the precursor to the Napoleonic Code in France), then the Projet du Gouvenement must have been the true source of Louisiana's "Code of 1808" and subsequent codes.  In support of their argument, this side of the debate asked how could a code that was virtually identical to the Projet du Gouvenement be a codification of anything other than the Projet du Gouvenement?

 

The "Spanish school", led by Professor Robert Pascal of the LSU Law Faculty, presented the opposing, and ultimately correct, view that although the style and wording was certainly taken from French sources, the substance of the law that was codified was still Spanish Law.  Professor Pascal based this conclusion on the following:

 

(a) Moreau-Lislet's hand-written notes indicated references to Spanish law sources used during the codification-project

 

(b) the Council mandated that the proposed civil code be based on the law still in effect in the Territory of Orleans, and this was Spanish law

 

(c) the presumption that the codifiers adhered to their mandate

 

(d) the very title of their codification was "A Digest of the Civil Laws now in force in the Territory of Orleans" (again - Spanish law), and,

 

(e) consistent, early jurisprudence (from the Louisiana Supreme Court) recognized Spanish law as still in effect in Louisiana even after it became part of the United States

 

Brown and Moreau-Lislet were practical men when it came to fulfilling their mandate.  They relied on a French model (the Projet), and used the French language for a populace that was predominantly French-speaking, but did so only when the French laws did not differ in substance from the Spanish laws in effect.  When the Spanish law in effect differed from the French model, the codifiers looked to Spanish sources (such as Las Siete Partidas) or formulated codal language on their own, to carry out their mandate.

 

As further "evidence" that French law was replaced with Spanish law by O'Reilly, two men assigned to translate Las Siete Partidas - Carleton and none other than Moreau-Lislet, one of the compilers of the Digest of 1808 - said in their preface to their translation:

 

O'Reilly issued a proclamation, changing the form of the government of Louisiana, abolishing the authority of the French laws, and substituting those of Spain in their stead. . . . From the time of its proclamation until now, the French laws ceased to have any authority in this country, and all controversies were tried and decided conformably to the Spanish laws.

 

Some have argued that during France's 20 day "rule" over Louisiana between its re-acquisition from Spain and its sale to the United States, French law replaced Spanish law.  But, the evidence suggests otherwise.

 

Colonial Prefect Laussat, Napoleon's representative in Louisiana during its 20 day "rule", did replace the Spanish authorities and created a non-Spanish form of municipal government for Louisiana.  But given only 20 days, Laussat simply did not have sufficient time to reorganize the courts and make wholesale changes to the civil laws remaining in force from the time of Spain's rule.  The only substantive changes made to Spanish law in Louisiana by Laussat was the replacement of Spanish slave law with the French Black Code.