Cottin v. Cottin,The Louisiana Supreme Court held in Cottin v. Cottin that the Digest of 1808 was a "digest of the civil laws, which were in force in this country, when it was adopted; that laws must be considered as untouched, wherever the alterations and amendments, introduced in the digest, do not reach them; and that such parts of those laws only are repealed, as are either contrary to, or incompatible with the provisions of the code." This opinion essentially revived Spanish colonial law and opened the floodgates of litigation. According to this decision, the laws in force in the Orleans Territory included the Digest of 1808; Spanish compilations and jurisprudence; the Custom of Paris; United States and Louisiana constitutions; U.S. Congressional acts, and territorial legislation. This entanglement of laws meant it was impossible to know what law to apply. The Louisiana Legislature responded to the chaos in 1822 by appointing Louis Moreau-Lislet, Pierre Derbigny, and Edward Livingston to draft a new code.
The Louisiana Supreme Court held in Flower et al. v. Griffith that the provisions of the Digest of 1808 continued to be in force unless expressly modified, suppressed, or superseded by new provisions of the 1825 Civil Code. "[T]he jurists who were appointed to alter and improve our old code, in their report to the legislature, proposed amendments of three kinds. The first, the insertion of new provisions; the second, the modification of those already existing; and the third, the suppression of those articles which were incompatible with the changes they thought proper to recommend." This opinion contradicted Louisiana Civil Code Article 3521, which repealed the laws prior to the effective date of the Civil Code.
1828 Great Repealing ActsResponding to the Flower et al. v. Griffith decision, the Louisiana Legislature passed
acts 40 and 83 of 1828, called the Great Repealing Acts. Act 40 repealed the laws of the Digest of 1808 with the exception of the tenth title that dealt with the dissolution of communities and corporations. Act 83 expressly abrogated the civil laws in force before the promulgation of the 1825 Louisiana Civil Code.
In Handy v. Parkinson (10 La. 92 (1836)), the Louisiana Supreme Court agreed with the Legislature that "the whole body of Spanish law, which had remained in force after the promulgation of the Code of 1808" had been repealed. However, in Reynolds v. Swain et al., the Court held that the Legislature could only repeal provisions that it itself had enacted, the "positive, written, or statute laws of those nations and of this state and only such as were introductory of a new rule, and not those which were merely declaratory." The Court went further to say that "the Legislature did not intend to abrogate those principles of law which had been established or settled by the decisions of courts of justice" on the basis of prior laws. The Reynolds v. Swain et al. decision therefore left room for ancient Spanish law to appear in modern day litigation, such as in cases about French and Spanish land grants.
