6.1.1 Deep South (1670-1803): The Civil Law Tradition

Civil Law Versus Common Law:  A Primer

  • The colonial Deep South was a meeting ground for two very different legal systems:  British common law, which prevailed in South Carolina and Georgia from the beginning; and Spanish and French civil law, used in the rest of the region for most of the colonial period.   The differences between the two systems are extensive and complex, but the systems also have many points of similarity.  Some of the most important differences are as follows:


Common Law

Civil Law

Sources of law

Britain had a constitution guaranteeing its people basic civil rights such as the right to a hearing and trial by jury on charges against them.  Constitutional rights were largely unwritten, although some were recited in Magna Charta (1215), which precluded the crown from assuming absolute power and guaranteed that at least some power of the state would reside in the nobility.  Americans made a crucial modification to this system by introducing the idea that constitutions should be written, so that anyone could easily know their constitutional rights. 

The heart of common law was a the rules that British courts had developed during centuries of decision-making to cover many aspects of business and private life.  British courts enjoyed some measure of independence from the king; in 1700, Parliament made that independence nearly absolute by providing that judges would serve for life and could not be removed from office except for egregious misbehavior.  Common law also comprised statutes  enacted by Parliament.

Spain, France and other continental European nations relied on written codes of laws issued by the crown, supplemented by codes of local “customs” or regulations adopted in major Spanish and French cities.  No constitutions existed to check royal power; many nations had parliaments, but parliaments and local customs provided only a mild check on royal authority. 

The leading codes used in the Spanish North American colonies, including Louisiana and Florida when under Spanish control, included the Siete Partidas (Seven Parts), prepared mainly under  Alfonso X of Spain in the 13th and 14th centuries, and the Recopilacion de las Indias (1680).  Important French codes included Louis XIV’s Code Noir (1685) governing slavery (§ __) and the Coutume de Paris, the most influential French local code.  The Code Napoleon (1801-04), prepared during the emperor’s first years in power, influenced Louisiana law after the territory passed into American hands.  

Courtroom procedures

Criminal defendants and most parties in civil (non-criminal) lawsuits had the right to trial by jury.  Trials were conducted by each side presenting its own position.  It was felt that this adversarial system was better suited to finding the truth than a more collaborative system. 

Jury trials were rare; most cases were heard and decided only by judges.  The parties were expected to collaborate with the judge in a mutual search for the truth.

Rights of married women

Married women had no legal existence separate from their husbands, who completely controlled their property and their earnings.  However, the common law allowed women to preserve indirect control over their property by placing it in trust before marriage.

Civil law featured a “community property” system.  Husbands and wives each retained the property they brought to the marriage, and each had an equal interest in property acquired during the marriage.  However, husbands had the sole right to manage marital property during the marriage.

Land and water law

Protection of property rights is a core principle of common law.  Prior to the Industrial Revolution, landowners had a nearly absolute right to use their property as they wished. 

Great Britain and its colonies had abundant rainfall, thus, riparian (water-related) common law gave landowners the right to full use of all rivers running through their property – but they were also required to ensure that fellow owners downstream received all the water they did not use. 

The civil law also respected property rights, but it placed more importance on using land so as not to injure neighbors than did the common law.

Southern European countries, including Spain, had arid climates which required water use rules very different from common-law riparian rules.  Spain and its colonies generally a “prior appropriation” rule, giving upstream landowners first rights to limited water supplies.  Sometimes this was modified by limiting owners’ right of use to what each owner reasonably needed.  Under either rule, once the water was used up, downstream owners were out of luck.

Common-Law Codes in the Deep South:  The South Carolina Slave Code and Sargent’s Code

  • Codes were not confined to French and Spanish territories.  English and American lawmakers in the Deep South also made use of codes, partly because of French and Spanish influence and partly because codes seemed to be the best device for imposing some order on thinly-settled, often violent parts of South Carolina, Alabama and Mississippi.
  • South Carolina’s 1740 Slave Code.  Government took hold only slowly in South Carolina:  the colony’s proprietors were in London and devoted little attention to the details of settlement or the wishes of their settlers.  As a result, laws were enacted sporadically and on a piecemeal basis, and efforts to build a true legal system began only after the British crown took direct control (1719) and divided the colony into North and South Carolina (1729). 
  • In 1739, approximately 100 slaves organized a rebellion for freedom in the Stono River region south of Charleston.  Whites quickly suppressed the rebellion , but the specter of insurrection did not go away.  The colonial council promptly enacted a comprehensive slave code, modeled on the harsh code of Barbados. 
  • Among other things, the 1740 Code prohibited slaves from owning property and from assembling without close white supervision; imposed harsh punishments for any black resistance to white authority; allowed slaveowners virtually unlimited license to discipline their slaves even to the point of death; and established a system for detecting and thwarting further attempts to gain freedom.  The 1740 Code served as a model for many other states in the South.    
  • Sargent’s Code.  In 1798, after Kentucky and Tennessee had been admitted to statehood, Congress organized the remaining American territory east of the Mississippi and south of the Ohio River into the Mississippi Territory.  Winthrop Sargent, a  Massachusetts politician who had served as a Northwest Territory official, was appointed the new territory’s first governor.  When Sargent arrived in the territory he found it in a state of near anarchy, and he wasted no time enacting a series of laws for the territory that later became known as Sargent’s Code.
  • Many settlers in the new territory were hostile to regulation of any sort; others disliked the high-handed nature of Sargent’s actions and his lack of interest in their input.  Sargent created a detailed system of territorial and local government and imposed slave laws that were surprisingly harsh in light of his northern background and the fact that slavery had not yet become well established in the territory.   Sargent was removed from office when the Federalists lost power in 1800.  New laws gradually superseded the Code as the territory grew, but remnants of the Code remained in Mississippi and Alabama lawbooks for many years.  

File:A new map of ye north parts of America claimed by France under ye names of Louisiana, Mississipi, Canada & new France with the adjooyning territories of England & Spain (4071874239).jpg

Herman Moll, Map of New France (1732) - courtesy Wikimedia Commons

Frontispiece, Las Siete Partidas (1555) - courtesy Wikimedia Commons

[Winthrop Sargent, by Gilbert Stuart.]
Winthrop Sargent (from a painting by Gilbert Stuart) - courtesy New York Public Library

"There prevails in the country of our destination, a refractory and turbulent spirit, with parties headed by men of perverseness and cunning.  They have run wild in the recess of Government, and every moment’s delay in the adoption of rules and regulations … must be productive of growing evils and discontent.” – Winthrop Sargent to U.S. Secretary of State Timothy Pickering (1798)