The language of the law. Part Latin, part Anglo-Saxon, all confusing.
For someone trained in the common law — inherited from the British tradition, working in the records of the civil law is like working in a foreign country.
And no, here The Legal Genealogist doesn’t mean civil law as in the difference between civil and criminal. I mean civil law as in the law that comes out of the tradition of the 6th century Emperor Justinian and that’s followed in most of the world including places like Louisiana, Quebec, Puerto Rico and elsewhere.1
Not only are the records sometimes in a foreign language — it’s not at all uncommon to have civil law records from Louisiana in French — but even when the document itself appears to be written in English, the terminology may be utterly different.
You can begin with the fact that you don’t have counties in Louisiana — you have parishes: a “territorial division of the state corresponding to what is elsewhere called a ‘county.’” In a common law jurisdiction, a parish is a religious jurisdiction: an “ecclesiastical division of a town or district, subject to the ministry of one pastor.”2
When you look in parish records for the wills and estates and other documents of probate, you find that … sigh .. an estate sometimes isn’t called an estate in Louisiana. It’s sometimes called a succession: “In the civil law and in Louisiana… (the) fact of the transmission of the rights, estate, obligations, and charges of a deceased person to his heir or heirs … (and the) right by which the heir can take possession of the decedent’s estate.”3
And that a guardian isn’t called a guardian, but rather a tutor or curator: “By the laws of Louisiana, minors under the age of fourteen years, if males, and under the age of twelve years, if females, are, both as to their persons and their estates, placed under the authority of a tutor. Above that age, and until their majority or emancipation, they are placed under the authority of a curator.”4
And then there’s the homologation. That’s the noun. The verb is homologate. And that one had me completely stumped when it showed up on court documents filed in estate cases. It turns out that to homolgate, in the civil law, means “to approve; to confirm; as a court homologates a proceeding.”5 And homologation, in the civil law, is “approbation; confirmation by a court of justice; a judgment which orders the execution of some act.”6
So a homologated succession is a court-approved estate document, likely an order that something be done.
Sigh… The language of the law. Part Latin, part Anglo-Saxon, all confusing.
- See generally “Roman Legal Tradition and the Compilation of Justinian,” The Robbins Collection, School of Law (Boalt Hall), University of California at Berkeley (https://www.law.berkeley.edu/library/robbins/ : accessed 21 Apr 2016). ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 869, “parish.” ↩
- Ibid., 1133, “succession.” ↩
- Ibid., 1194, “tutor.” ↩
- Ibid., 579, “homologate.” ↩
- Ibid., “homologation.” ↩