Ernest S. Easterly
III, Ph.D., 32°
PO Box 21109, Baton Rouge, Louisiana 70894–1109
Pike's profound understanding of legal philosophy has as
much relevance today as in his lifetime.
Photo: Volumes of Maxims
Emerging
from the turbulence of the times and the affinities of two contrasting
legal cultures—one derived from the French and Spanish legal
traditions of the place, the other resulting from the introduction
of concepts from Anglo–American Common Law—the Louisiana
Civil Code of 1825 became the cornerstone of Louisiana's vibrant
and rather unique legal system. Modeled upon, and largely redacted
from, the French Code Napoleon, the Louisiana Civil Code owes
much to a little noticed, but very real, Masonic heritage. Its
early drafts flowed from the pen of a prominent Mason, Edward
Livingston (1764–1836), whom Sir Henry Maine described as
"the first legal genius of modern times." After legislative
enactment, the Code soon attracted the interest of outstanding
legal scholars whose commentaries, as a persuasive source of the
law termed "doctrine," still affect the decisions of
Louisiana courts.
Yet among the treatises on civil and comparative law, perhaps the most erudite and scholarly remains unpublished—Albert Pike's three-volume commentary on the Louisiana Civil Code. Although Pike engaged in law practice at New Orleans for only three seasons, he never lost his fondness for the Louisiana Civil Law system with its Roman Law heritage. After relocating to Washington, D.C., in 1868, he commenced his magnificent tome comprising "all the maxims of the Roman and French Law, with the comments upon them of the French courts in text writers, and of the Pandects." The task took several years to complete and reflected more than 20 years of meticulous research.
The treatise, entitled Maxims of the Roman Law and Some of the Ancient French Law, as Expounded and Applied in Doctrine and Jurisprudence, derived in part from Pike's study of the Pandects (which he translated from Latin and French into English), the 22 volumes of Duranton, several volumes of Pothier, the five volumes of Marcande, and other works. This preparatory effort also produced an extensive monograph of about 300 pages, "Notes on the Civil Code of Louisiana, made by Albert Pike in 1855, at New Orleans" which, unfortunately, is also generally unavailable to the legal profession.
Pike, a scholar of the Anglo-American Common Law tradition as well as the Roman-based French Civil Law, naturally employed the comparative approach to his critique of the Louisiana Civil Code. In the spirit of the Civil Law, Pike placed the authority of the commentator on a level with that of the judge; and yet his approach to sources reveals an appreciation of the Common Law reverence for historic precedent. He looked to the antecedents of the articles of the Civil Code for precedent and guidance, incorporating them into a profound understanding of legal philosophy, which has as much relevance for today as then.
At an earlier age, Pike addressed the Arkansas Bar Association: "An humble student, I am yet without the portals, or at least only upon the threshold, of the great temple of jurisprudence. A neophyte, yet serving my probation, I have hardly earned the spurs of legal knighthood. I shall content myself, therefore, with viewing at a distance, the vast proportions of the edifice, without undertaking to enter in and explore its labyrinthine intricacies."
Rich in metaphor revealing a Masonic provenience, Pike thus embarked on a quest which carried him beyond the "threshold" into the inner temple of legal science, where his intellect engaged the enlightened sages of English and American, as well as French and Roman, jurisprudence. In his characteristic, scholarly way, Pike came to know every path in the garden of the Common Law, and each corridor in the shrine of the Civil Law, en route to earning his "spurs" before no less than the Supreme Court of the United States. Clearly, Pike's treatises on the Louisiana Civil Code evidence his greatness as a comparative lawyer. Inasmuch as the Civil Code was no deathbed convert to the ideals of our Fraternity, but was quite literally conceived by the spirit of Masonry, there probably exists no legal scholar more entitled by virtue of Masonic understanding (or for that matter, qualified by knowledge, reason, and insight) to comment on the Louisiana Civil Code than Albert Pike.