Building the Land of Dreams by Eberhard Faber

Author:Eberhard Faber [Faber, Eberhard]
Language: eng
Format: epub
Tags: History, United States, State & Local, South (AL; AR; FL; GA; KY; LA; MS; NC; SC; TN; VA; WV), Revolutionary Period (1775-1800), 19th Century, Social History, General, Americas (North; Central; South; West Indies), Modern
ISBN: 9780691180700
Google: cXOYDwAAQBAJ
Publisher: Princeton University Press
Published: 2018-07-10T16:05:12+00:00

A VETO, A MANIFESTO, AND A COMPROMISE

Rewriting the racial regime, however, represented only half of the legislature’s agenda for its initial session—the other half being “to revise and strengthen the imperfect, lame and unfinished code of laws,” to finish, in short, what the appointed council had begun, at Claiborne’s urging, the winter before. The territory’s private law remained uncertain. And the creole leading lights of the legislature—Destréhan, Boré, Sauvé, and others, now strongly influenced by a group of accomplished émigré attorneys from Saint Domingue, including Louis Moreau-Lislet and Étienne Mazureau—were determined to ensure that the dreaded common law would not be imposed on their country. According to one American, those émigrés—“men of talents and information by no means despicable”—had labored to excite prejudices against the common law by associating it with British government, which Louisiana creoles found “odious.” Their covert goal was not the reestablishment or continuation of the colonial system but the introduction “of the laws and usages of modern France.” To combat this perceived threat, Americans cited the Northwest Ordinance’s guarantee that territorial inhabitants should “always be entitled to the benefits of judicial proceedings according to the course of the common law.” Creoles and Saint Dominguans, in turn, cited the 1805 Governance Act’s promise that “the laws in force in the said territory … shall continue in force until altered, modified, or repealed by the legislature.” The struggle to determine the territory’s legal regime thus became a contest to define what, exactly, the “laws in force” in the Orleans Territory were.37

But that determination, in fact, had already been made—at the judicial level, if not the legislative. John B. Prevost was still the sole judge on what had been intended to be the three-judge superior court, still overwhelmed by the “herculean task” of comprehending “the mysteries of a code obsolete in practice,” and trying without much guidance from the government to “form some kind of system, to give effect to my decrees and at the same time to unite public opinion.”38 On November 12, 1805, Prevost had invited the city’s most prominent attorneys to debate the question of whether Spanish laws that predated the cession of Louisiana should be considered as still in force—and, more broadly, the issue of the common vs. the civil law. First a number of American lawyers spoke in favor of the introduction of the common law as (they argued) mandated by the Northwest Ordinance; then Pierre Derbigny and Edward Livingston spoke in favor of the civil law. They argued that the phrase “common law” in the ordinance meant simply the commonly understood law of the land of Louisiana, not the Anglo-American legal system. Livingston, who had had a deep interest in civil law and codification since his earliest legal studies, also declaimed eloquently on the merits of civilian systems. One prominent Saint Domingue émigré lawyer, Etienne Mazureau, wished all Louisianians could have heard Livingston’s oration and congratulated the New Yorker on his “great, sublime, admirable, stunning” argument: “happy the people whose interests will be

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