and common law jurists, between proponents and opponents of slavery, and between national and local rule of the lower Mississippi valley. It further illustrates the influence of West Indian refugees on the territory’s legal system and the way its laws treated free people of African descent. The legal system that emerged from these struggles was a reflection of the ideals of the Age of Revolution converging with the material conditions of plantation slavery. While the laws supported slavery, racism, and patriarchy, they also, above all else, protected property rights. The legal structure, therefore, allowed those free people of color with property to undercut some of the power structures created by slavery and racism.
The Many Legalities of the Louisiana Purchase
Jean Baptiste’s pursuit of his freedom was interrupted by the Louisiana Purchase, which raised a plethora of juridical questions. In this treaty, signed on April 30, 1803, the Republic of France agreed to transfer the “Province of Louisiana” to the United States of America for a total sum of 78 million francs (the equivalent of $15 million), thereby doubling the size of the United States. While the Louisiana Purchase was later seen as a coup for President Jefferson, in part because it secured westerners unfettered access to the Mississippi River and, through it, the Gulf of Mexico, it met strong opposition at the time. Federalists opposed the treaty out of fear that it would strain relations with Great Britain, while some members of Jefferson’s own party feared that it set a dangerous precedent for expansive powers of the national government. Many believed that the treaty was unconstitutional. Jefferson himself, who had previously favored limitations on the power of the central government, temporarily set aside his idealism to tell his supporters in Congress that “what is practicable must often control what is pure theory.” The majority of Congress agreed, and the treaty narrowly passed a House vote, 59 to 57.4
In addition to the issue of its constitutionality, the treaty raised questions regarding how the newly acquired territory would be organized, who would govern, and under what law.5 The U.S. Congress addressed some of these questions on March 26, 1804, when it passed “An Act Erecting Louisiana into Two Territories and Providing for the Temporary Government Thereof.” Under this act, all of the Louisiana Purchase territory south of the thirty-third parallel (roughly all of the present-day state of Louisiana on the right bank of the river plus New Orleans) became the Orleans Territory. The law gave the president of the United States the power to appoint, among others, the governor, secretary, judges, and legislators of the territory. The legislative council was to be composed of “thirteen of the most fit and discreet persons of the territory … from among those holding real estate therein, and who shall have resided one year at least, in the said territory.” Together, the governor and legislative council had the “power to alter, modify, or repeal the laws which may be in force at the commencement of this act … but no law shall be valid which is inconsistent with the constitution and laws of the United States.” Finally, the March 26 law incorporated a total of twenty-one other laws of Congress so as to apply to the Territory of Orleans, among them, the Fugitive Slave Law and “An Act to Prohibit the Carrying On of the Slave Trade from the United States to Any Foreign Place or Country.” With this act, therefore, the central government assumed a great deal of control of the Territory of Orleans.6
Once Orleans had been established as a separate territory from the rest of the land acquired in the Louisiana Purchase, the question turned to what type of legal system would prevail in the territory. Namely, would it be subject to common law or civil law? While a struggle ensued after the Louisiana Purchase between proponents of each tradition, it never posed a serious threat to disunion, as some at the time claimed it would. Both sides proved willing to compromise. Many elements of Spain’s civil law tradition survived the Louisiana Purchase, other elements were imported from the French West Indies, and common law principles from the United States also made their way into Louisiana’s legal system, some immediately after the Louisiana Purchase. Yet the legal contests of territorial Louisiana were more complex than simply cultural and legal battles between Anglo-American supporters of common law and French and Spanish supporters of civil law. Rather, they were also intimately tied to the desire to preserve and protect the Union, assertions of local rule, and, ultimately, the future of slavery in the region.7
Common Law, Civil Law, and Local Rule
In order to understand the common law versus civil law debates in the Territory of Orleans, it is necessary to understand the basic differences between the two.8 Common law and civil law are not legal systems so much as legal traditions. A legal system is “an operating set of legal institutions, procedures, and rules,” while a legal tradition is “a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught.”9 Louisiana’s legal system is the product of both traditions.
The differences in the two traditions center on their different visions of the source of law and are illustrated by their different visions for the role of legislators, legal scholars, and judges. The civil law tradition adheres to “legislative positivism,” which holds that only statutes enacted by a legislature have the power of law. In the common law tradition, on the other hand, law finds its source in judicial precedent and custom, as well as statutes.10 Civilian law is premised on the view that lawmakers are able to anticipate conflicts and, based on reasoning from basic premises, enact laws that will resolve these conflicts. When civil law countries go through codification, it is all-encompassing. Any principles of prior law that are not included are no longer binding. Common law countries also have statutes, but these are not exclusive and are often codifications of customary or judge-made law stemming from previous disputes rather than anticipations of future conflicts.11 A common law advocate might argue that the civil law has a utopian view of codification.
Legal scholars play significantly different roles in the two traditions. In civil law countries, they serve as advisers to lawmakers, providing their expertise on the function and impact of laws. While law professorships in common law countries are often prestigious positions, the scholar plays no real part in the lawmaking process. Students of civilian law read legal scholars and learn about the historical development of ideas about the function of law. Students of common law, on the other hand, pay little attention to legal scholars but instead read great cases and learn about the historical circumstances giving rise to them. In other words, legal history in civil law tradition is intellectual history, while in the common law tradition it is most often social or economic history.12
Finally, and perhaps most important, judges in the two traditions serve different functions. In the common law world, the decisions of judges can become precedent, which, in itself, becomes a form of binding law. This has led to criticism from proponents of the civil law on the basis that common law countries do not strictly adhere to separation of powers. The civil law countries created administrative courts and limited or prohibited judicial review of legislation in order to prevent the judge from taking on the role of a lawmaker. In the civil law world, judges are seen as civil servants or functionaries.13
While the civil law tradition claims roots in classical Greece and Rome, if not before, it was reinvigorated during the Age of Revolution. Prior to the Enlightenment, it was not uncommon for judges in jurisdictions based on Roman law to act like common law judges. But as the revolutionaries on the European continent saw it, this was a problem. Thus, in the late eighteenth and early nineteenth centuries, many emerging states on the European continent went through processes of radical and extensive codification. The most notable and most influential of these was the enactment of the French Civil Code of 1804. The main author of the Code Napoleon, as it came to be called, was Jean Étienne Marie Portalis, who worked on his compilation from 1800 until its completion four years later. Law in England was transformed much more slowly. Nevertheless, by the eighteenth century, it had transformed a great deal from its medieval state.14
At the same time Portalis was working on the Code Napoleon, President
