After successfully doing so, he insisted on Americanizing the new territory’s legal system. When Jefferson first took office in 1801, he expressed his desire for a nation of “people speaking the same language, governed in similar forms, and by similar laws.”15 Thus, two years later, he was convinced that the loyalty of Louisianans to the United States was dependent upon their acceptance of its common law traditions. Jefferson had been trained in the common law at the same time he was participating in the birth of the United States. In his view, this legal tradition was an essential component of the American political system, and if Louisianans failed to adopt it, they would never be fully integrated into the Union. But the president feared that the civil law tradition was so well entrenched in the lower Mississippi valley that its inhabitants would resist attempts to impose common law. In 1803, therefore, he pushed for the annexation of New Orleans and the surrounding countryside into the Mississippi Territory. As he explained to Horatio Gates, “We shall endeavor to introduce the American laws there, and that cannot be done but by amalgamating the people with such a body of Americans as may take the lead in legislation and government.”16 But this plan had little support, and Jefferson soon abandoned it.
Once the plan to integrate New Orleans into the Mississippi Territory was abandoned, the hopes for instilling the common law in the lower Mississippi valley rested on Anglo-American immigrants to the region. In fact, several influential Anglo-American jurists trained in the common law tradition immigrated to New Orleans immediately after the Purchase. Among them was William Charles Cole Claiborne, the man Jefferson appointed to be the Orleans Territory’s first governor. Although Claiborne was born in Jefferson’s home state of Virginia and studied at the College of William and Mary, he lived in many different parts of the United States before coming to Louisiana. At the age of sixteen, he moved to New York, where he worked under John Beckley, the clerk of the House of Representatives. When the nation’s capital moved to Philadelphia in 1790, he went there with it and began to study law. In 1794, he moved to Tennessee to start his legal practice. He later served as justice of the Tennessee Supreme Court and then governor of the Mississippi Territory before Jefferson made him governor of Orleans in 1804. Jefferson charged Claiborne with overseeing the territory’s adoption of common law principles.17
Several other common law lawyers made an early impact on the territory. James Brown, another Virginia-born lawyer, arrived in New Orleans in November 1804 after practicing law for many years in Frankfurt, Kentucky. He served as secretary and district attorney for the Orleans Territory but turned down an appointment to the Superior Court, apparently because it did not pay well enough. He purchased a sugar plantation on the German Coast and became one of the largest slaveholders in the territory.18 Another Brown, Jeremiah Brown, wrote a pamphlet in 1806 defending the common law tradition in which he accused refugee lawyers “from the bloodletting on the island of Santo Domingo” of seeking to undermine the American legal system.19 John Prevost, the stepson of Aaron Burr, was born in New Jersey and studied law in New York. He came to New Orleans in October 1804 and accepted a position as justice on the Orleans Superior Court. Supporters of common law hoped that Prevost would use his position to help Americanize the territory’s legal system.
The most influential and probably most controversial Anglo-American jurist to come to New Orleans was Edward Livingston, brother of Robert Livingston, one of the signers of the Louisiana Purchase treaty. Edward Livingston studied at Princeton and then apprenticed himself to noted lawyer and legal scholar John Lansing.20 While studying under Lansing, Livingston developed an appreciation for Roman law, which he thought to be much more efficient than the “judge-made” law of England. Still, he was admitted to the New York bar and became a successful common law attorney and lawmaker. He was a congressman from New York State, the U.S. attorney for the state, and the mayor of New York City before coming to New Orleans in 1804. He left New York in the wake of a financial scandal that both left him deeply in debt and soured his relationship with Thomas Jefferson. Most important, Livingston was a brilliant legal mind who was constantly working to make Louisiana’s laws clearer and its legal system more efficient.21
While Jefferson and Claiborne encouraged these common law jurists to immigrate to the Orleans Territory, local supporters of the civil law tradition resisted the efforts of the central government to Americanize the region’s legal system. Among the civil law–trained jurists living in New Orleans at the time of the Purchase, Pierre Derbigny, the lawyer for Louise Laronde Castillon in the case that begins this chapter, was the most accomplished.22 Derbigny opposed Anglo-American common law in Louisiana and defended the retention of civil law practices established during the French and Spanish colonial periods. Yet some of the most vocal supporters of civil law were not lawyers at all but wealthy French-speaking planters such as Joseph Dubreuil and Julien Poydras. Dubreuil was very critical of Claiborne’s appointment of both American and French judges to the territorial courts and the “awful cacophony which was bound to result from such an arrangement.”23 Poydras proclaimed “of all the evils to which lower Louisiana was exposed by American rule, nothing was more nefarious than the threat to its ancient laws and legal institutions.”24 Poydras’s assertion raises a central contradiction to the Jefferson administration’s attempts to transform Louisiana’s legal system from civil law to common law. As Louisiana legal historian Mark Fernandez has observed, since common law “rests on the notion that, over the centuries, the law will evolve and eventually approach the ideal of justice …, how could the common law replace the civilian legal heritage of Louisiana?”25
Some francophone planters put their words into actions. In November 1805, a group of rural planters published a set of “Instructions” for their delegates in the House of Representatives complaining of the newly imposed county court system, which they saw as both oppressive and inconvenient.26 Then, in June 1806, ten non-English-speaking members of the legislative council resolved to immediately dissolve the newly formed General Assembly. Their main reason for doing so, as explained in a manifesto they had published in a local newspaper, was to protest the attempts of the governor, acting on behalf of the national government, to impose a foreign and unfamiliar legal system on the residents of Orleans: “The most inestimable benefit for a people is the preservation of its laws, usages, and habits. It is only such preservation that can soften the sudden transition from one government to another and it is by having consideration for that natural attachment that even the heaviest yoke becomes endurable.”27 It seems that many elites who had lived in Louisiana prior to the Louisiana Purchase feared that an American legal system threatened the vitality of their culture.
The most influential civil law jurist in Louisiana during the territorial period, however, was not one of Louisiana’s own but a post-Purchase immigrant from St. Domingue, and the judge in the case that opens this chapter, Louis Moreau-Lislet. Born in Cap Français, St. Domingue, in 1766, Moreau-Lislet studied law in Paris, becoming an avocat just before the outbreak of the French Revolution. He returned to Le Cap prior to its burning by slave insurgents in 1793. In 1794, he served as agent and attorney for several emigrants who expected to return to the island after the hoped-for defeat of the insurrection, but by 1800 he held an official position in the revolutionary government. In 1801–2, he sat as interim judge on a court in Port Republicain (Port-au-Prince), and as late as February 1803 he was a public defender and a trial judge in Le Cap. In August 1803, after the French army had surrendered to Jean Jacques Dessalines’s forces, Moreau-Lislet left St. Domingue. He went first to Cuba, but then sometime between August 1804 and February 1805, he arrived in New Orleans. Because Moreau-Lislet was fluent in French, Spanish, and English, Governor Claiborne made him official interpreter in the colony almost as soon as he arrived. The governor then appointed the refugee to be the first judge of the newly formed New Orleans City Court in 1806. He remained on the City Court’s bench until early 1813, less than a year before a restructuring of the court system ended its existence. In addition to his service on the City Court, Moreau-Lislet was a practicing lawyer and, like Edward Livingston, an active participant in clarifying the region’s laws.28
One of the most controversial cases in New Orleans during the territorial period pitted Louis Moreau-Lislet against Edward Livingston as lawyers on
