| Book Review | Law and History Review, 21.2

Book Review

Mark F. Fernandez, From Chaos to Continuity: The Evolution of Louisiana's Judicial System, 1712–1862, Baton Rouge: Louisiana State University Press, 2001. Pp. xviii + 135. $29.95 (ISBN 0-8071-2705-1).

Louisiana's legal patterns have long been thought to be anathema to larger American forms of jurisprudence. Mark F. Fernandez turns that assumption on its head in From Chaos to Continuity. He rejects the notion that Louisiana's "civilian system differs too much from the marriage of codes and common law that typified American practice in the nineteenth century" (xii). Instead he expertly argues that Louisiana's patterns of judicial development strongly and consciously resemble that of other American states. Fernandez's analysis of Louisiana's courts shows us how the state's antebellum legal system struggled to define itself in terms of the growing United States, rather than in spite of it.

The chaos before the continuity in this book begins in the colonial period. A brief overview of Louisiana's French and Spanish past in chapter one sets the stage for the American period. From 1712 until 1762, France loosely guided the governance of Louisiana. During that period a system of courts developed that Fernandez characterizes as "often exceeding the quality of the mother country's courts in both civil and criminal cases" (4). In 1762, France ceded Louisiana to Spain to help pay war debts from the Seven Years' War. After seven years of ineffective transitional leadership, Alejandro O'Reilly took control of the government in New Orleans. He quickly dissolved the existing Superior Council, which had served as the colony's judicial body under France, and set up the cabildo as the official "residence of the administrative and judicial offices of the Spanish government" (13). Cabildo officers as well as the Spanish governors held judicial responsibilities under the new system. By the end of the eighteenth century Louisiana's colonial courts seemed to function to the liking of its diverse population. The smooth transition between French codes and the relatively similar civilian system of Castile, however, would not be replicated during Louisiana's move to American control.

When Louisiana officially became an American territory on December 20, 1803, she did so without courts or laws. During the brief three-week period between Spanish and American control, when France briefly ruled, French leaders of the colony suspended the power of the cabildo. This suspension, Fernandez argues, allowed the new territorial government to be constructed "from the ground up" (19). The Americans had no set government from which to transition. The territory's new judicial system was thus created following American practices of procedure and common law patterns. The formation of a new court also led to the appointment of American-trained judges and attorneys who, in turn, influenced the construction of law in the territory. Fernandez aptly states that "the very structure and complexion of the judiciary increased the influence of Anglo-American patterns of judicature on Louisiana's judicial system" (18). Louisiana's territorial period marked an era where innovation ruled. With the task of creation before them, judicial leaders developed a "common-law oriented judicial discourse within a mixed system of laws" (39).

The glimmer of continuity in Louisiana's judicial system began with statehood. In 1812, the first state constitution provided an opportunity for lawmakers to change the trajectory of the courts. Yet instead of creating a firm common law base or a firm civilian law base, Louisiana's new state courts "blended civilian and American conceptions of law in distinctively American courts" (40). As the nineteenth century progressed the state supreme court also began to regulate admissions to the bar and legal education in the state. By advocating instruction in English and American legal treatises as well as in civilian works the justices attempted to move the courts in line with other American states as common law jurisdictions.

In chapters four and five, Fernandez examines the delicate balance between common law and codes. During the first thirteen years of statehood Louisiana's court makes a series of decisions where it becomes apparent that Spanish civil law is the basis for Louisiana's common law—an interesting melding of both forms. In 1825 though, the state legislature published the Louisiana Code of 1825. The code passed in large part due to the work of a lawyer named Edward Livingston who favored "the redefinition of judicial practice from an Anglo-American common law style of decision making to a less creative civil law type of judicature" (80). The code's publication ultimately set off a struggle between the legislature who tried to clarify rules of jurisdiction and the court who interpreted the codes as they saw fit using the concept of stare decisis (judge-made law).

If the glimmers of continuity began to shimmer in 1812 when the first state constitution is written, it really began to shine with the constitution of 1845. The judicial reforms presented at the constitutional convention attempted to iron out contradictions in the courts, such as whether or not justices were to issue writs of habeas corpus, and also by setting term limits and provisions for a chief justice. Fernandez argues that the changes "marked a deliberate attempt to cast Louisiana's judiciary into a more representative of American jurisprudence" (94). These types of reforms, largely meant to organize the efficiency of the court continued until the occupation of New Orleans by federal troops in 1862 created a whole new sort of chaos.

Fernandez's work ends with an invaluable appendix outlining the often hard-to-follow relationship between civil and common law traditions. The book as a whole serves as a reminder that not only did Louisiana's judiciary assert itself as American, other American states regularly modeled themselves after Louisiana.

Samantha Holtkamp Gervase

University of California, Los Angeles

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