April 2, 2011
Footnote of the Day: Supreme Court Footnote not in English
Here's the footnote:
‘Si le preneur est expulsé par le fait du prince, par une force majeure, ou par quelque autre cas fortuit, ou si l'héritage périt par un débordement, par un tremblement de terre, on autre événement, le bailleur, qui était tenu de donner le fonds, ne pourra prétendre le prix du bail, et sera tenu de rendre ce qu'il en avait re cu, mais sans aucun autre dédommagement; car personne ne doit répondre des cas fortuits.’
Viterbo v. Friedlander, 120 U.S. 707, 714n.1 (1887). One of the first [numbered?]* footnotes to appear in a United States Supreme Court opinion is in French, in a case in which the Court's task was resolving a dispute between a citizen of France and a citizen of Louisiana regarding annuling a lease of a sugar plantation because of the "extraordinary rise of the Mississippi River."
Justice Gray, writing for the Court began the Opinion by acknowledging that civil law and common law are different, and then delves into the Louisiana law:
It is to be remembered that the Louisiana Code, as it was originally enacted in 1808, and as it was again promulgated in 1825, and remained in force until 1870, was in French as well as in English. The Code of 1808, enacted before the admission of the State of Louisiana into the union, was entitled "A Digest of the civil laws now in force in the Territory of Orleans, with alterations and amendments adapted to its present system of government," and the Act of March 31, 1808, c. 29, declaring and proclaiming it to be in force in that territory, was published in both languages, and provided that "if, in any of the dispositions contained in the said digest, there should be found any obscurity or ambiguity, fault or omission, both the English and French texts shall be consulted, and shall mutually serve to the interpretation of [the] one and the other."
Thus, the need for that first footnote. The next footnotes are also French text, but then, on page 717 of the opinion citation footnotes make their first appearance:
Louisiana Code of 1808, lib. 3, tit. 8, arts. 2, 6, 17–19, 26, 30, 31, 35, 40.
Code Napoleon, arts. 1709, 1719–1721, 1728, 1754, 1755.
These footnotes are numbered 1 and 2, respectively, because the numbers began anew on each page of the United States Reports. (Reading the opinion in any other format than the original US Reports is therefore quite confusing). The Opinion returns in its footnotes to French passages, but then adds a bevy of citations (six on page 727 and seven on page 728), before discontinuing its use of footnotes for the final nine pages.
The total footnote count: 25.
And the outcome? The "lease being of a sugar plantation for the purpose of being used to cultivate sugar-cane" and the land ceasing to be fit for that purpose, under the civil codes of Louisiana, the French citizen was entitled to have the lease annulled.
UPDATE/CORRECTION: Thanks to a reader's comments, the footnote in Viterbo v. Friedlander, 120 U.S. 707, 714n.1 (1887) has been convincing shown not to be the very first. But it seems to be the first numbered footnote?
[image: WWI poster promoting Louisiana cane sugar syrup, via]
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I have read and reread this sentence to make sure I understand it correctly: "The first footnote to appear in a United States Supreme Court opinion is in French . . ."
My incredulity arises from this fact: while I do not know when the first footnote ever appeared in a U.S. Supreme Court opinion, I know it was not in 1887. Just on a hunch, I turned to a case I had at hand, and I have easily beaten this "first" by 89 years. See Calder v. Bull, 3 Dallas 386 (1798), at 390, opinion by Samuel Chase, a page that contains no fewer than four footnotes. They are not numbered, but are represented by various symbols, but they are indisputably footnotes. Is there an example still earlier than this? Perhaps. Are there almost certainly many hundreds of footnotes between 1798 and 1887? I would think so. Whence then this strange claim of the "first" footnote in the Court's history?
Posted by: Matt Franck | Apr 4, 2011 8:16:33 AM
Correction to previous comment: Chase's four footnotes appear on page 389, not 390--still earlier!
Posted by: Matt Franck | Apr 4, 2011 8:18:19 AM
Great comment Matt Franck! I've amended the post a bit. I admit to relying on some secondary sources; obviously a mistake. One should always check the footnotes. But I am now thinking it is the first numbered footnote? Historians?
Posted by: RR | Apr 4, 2011 12:34:44 PM
other than ease of searching in modern databses, what significance would attach to the first _numbered_ footnote, as opposed to notes identified by letters, asterisks, etc?
Posted by: Peter | Apr 9, 2011 9:14:49 AM