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A Legal System in Flux

When Jean Baptiste sued for his freedom in the New Orleans City Court in 1811, he was invoking Spanish law before a francophone judge in an American court. The petitioner, a thirty-year-old black man, admitted to being a slave but claimed a legal right to purchase his own freedom based on a contract formed when Louisiana was still a Spanish colony. His petition alleges that on July 4, 1789, Andres Almonaster, his master, contracted with Coffi, his father, to grant liberty to all four of Coffi’s children for a total sum of 2,400 pesos.¹ Coffi had paid a total of 316 pesos before he died in the late 1790s. Shortly thereafter, Almonaster also died. In 1811, Jean Baptiste asked the City Court to order Almonaster’s widow, Louise Laronde Castillon, to accept the sum of 284 piastres and grant him his freedom.² Thus, the case involved complex issues of not only contract law but also slave law, estate law, and conflict of laws from different jurisdictions. More important for Jean Baptiste, it would determine whether or not he would legally gain his freedom.³

The judge in the case, a white refugee of the Haitian Revolution named Louis Moreau-Lislet, denied Jean Baptiste’s claim. Although he did not provide a written rationale for his decision, Moreau-Lislet could have based his judgment on any number of factors. Jean Baptiste did not provide the original contract or proof of the payments made by Coffi but instead had the agreement’s terms and the payment schedule transcribed in the petition. He also did not offer a reason as to why he deserved the entire credit of 316 piastres—he never explained what happened to his three siblings who also stood to gain their freedom. The defendant’s lawyer, a former congressman from the Orleans Territory and future justice of the Louisiana Supreme Court named Pierre Derbigny, answered the petition by claiming that Louise Laronde Castillon did not inherit the obligation of her late husband. Perhaps most important, Jean Baptiste claimed his right to freedom by virtue of the Spanish policy of coartacion, which had been expressly overturned by the territorial legislature. Whatever his reasoning, the judge was well equipped to deal with all the complicated issues in Jean Baptiste’s case. Since he arrived in New Orleans from revolutionary St. Domingue after the Louisiana Purchase, Moreau-Lislet had spent a good part of his time familiarizing himself with both the laws of Spanish Louisiana and the legal system of Anglo-America.

This chapter examines the legal structure of New Orleans in the years following the Louisiana Purchase. It explores the interrelated juridical contests between civil law and common law jurists, between proponents and opponents of slavery, and between national and local rule of the lower Mississippi valley. It further illustrates the influence of West Indian refugees on the territory’s legal system and the way its laws treated free people of African descent. The legal system that emerged from these struggles was a reflection of the ideals of the Age of Revolution converging with the material conditions of plantation slavery. While the laws supported slavery, racism, and patriarchy, they also, above all else, protected property rights. The legal structure, therefore, allowed those free people of color with property to undercut some of the power structures created by slavery and racism.

The Many Legalities of the Louisiana Purchase

Jean Baptiste’s pursuit of his freedom was interrupted by the Louisiana Purchase, which raised a plethora of juridical questions. In this treaty, signed on April 30, 1803, the Republic of France agreed to transfer the “Province of Louisiana” to the United States of America for a total sum of 78 million francs (the equivalent of $15 million), thereby doubling the size of the United States. While the Louisiana Purchase was later seen as a coup for President Jefferson, in part because it secured westerners unfettered access to the Mississippi River and, through it, the Gulf of Mexico, it met strong opposition at the time. Federalists opposed the treaty out of fear that it would strain relations with Great Britain, while some members of Jefferson’s own party feared that it set a dangerous precedent for expansive powers of the national government. Many believed that the treaty was unconstitutional. Jefferson himself, who had previously favored limitations on the power of the central government, temporarily set aside his idealism to tell his supporters in Congress that “what is practicable must often control what is pure theory.” The majority of Congress agreed, and the treaty narrowly passed a House vote, 59 to 57.⁴

In addition to the issue of its constitutionality, the treaty raised questions regarding how the newly acquired territory would be organized, who would govern, and under what law.⁵ The U.S. Congress addressed some of these questions on March 26, 1804, when it passed “An Act Erecting Louisiana into Two Territories and Providing for the Temporary Government Thereof.” Under this act, all of the Louisiana Purchase territory south of the thirty-third parallel (roughly all of the present-day state of Louisiana on the right bank of the river plus New Orleans) became the Orleans Territory. The law gave the president of the United States the power to appoint, among others, the governor, secretary, judges, and legislators of the territory. The legislative council was to be composed of “thirteen of the most fit and discreet persons of the territory … from among those holding real estate therein, and who shall have resided one year at least, in the said territory.” Together, the governor and legislative council had the “power to alter, modify, or repeal the laws which may be in force at the commencement of this act … but no law shall be valid which is inconsistent with the constitution and laws of the United States.” Finally, the March 26 law incorporated a total of twenty-one other laws of Congress so as to apply to the Territory of Orleans, among them, the Fugitive Slave Law and “An Act to Prohibit the Carrying On of the Slave Trade from the United States to Any Foreign Place or Country.” With this act, therefore, the central government assumed a great deal of control of the Territory of Orleans.⁶

Once Orleans had been established as a separate territory from the rest of the land acquired in the Louisiana Purchase, the question turned to what type of legal system would prevail in the territory. Namely, would it be subject to common law or civil law? While a struggle ensued after the Louisiana Purchase between proponents of each tradition, it never posed a serious threat to disunion, as some at the time claimed it would. Both sides proved willing to compromise. Many elements of Spain’s civil law tradition survived the Louisiana Purchase, other elements were imported from the French West Indies, and common law principles from the United States also made their way into Louisiana’s legal system, some immediately after the Louisiana Purchase. Yet the legal contests of territorial Louisiana were more complex than simply cultural and legal battles between Anglo-American supporters of common law and French and Spanish supporters of civil law. Rather, they were also intimately tied to the desire to preserve and protect the Union, assertions of local rule, and, ultimately, the future of slavery in the region.⁷

Common Law, Civil Law, and Local Rule

In order to understand the common law versus civil law debates in the Territory of Orleans, it is necessary to understand the basic differences between the two.⁸ Common law and civil law are not legal systems so much as legal traditions. A legal system is “an operating set of legal institutions, procedures, and rules,” while a legal tradition is “a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught.”⁹ Louisiana’s legal system is the product of both traditions.

The differences in the two traditions center on their different visions of the source of law and are illustrated by their different visions for the role of legislators, legal scholars, and judges. The civil law tradition adheres to “legislative positivism,” which holds that only statutes enacted by a legislature have the power of law. In the common law tradition, on the other hand, law finds its source in judicial precedent and custom, as well as statutes.¹⁰ Civilian law is premised on the view that lawmakers are able to anticipate conflicts and, based on reasoning from basic premises, enact laws that will resolve these conflicts. When civil law countries go through codification, it is all-encompassing. Any principles of prior law that are not included are no longer binding. Common law countries also have statutes, but these are not exclusive and are often codifications of customary or judge-made law stemming from previous disputes rather than anticipations of future conflicts.¹¹ A common law advocate might argue that the civil law has a utopian view of codification.

Legal scholars play significantly different roles in the two traditions. In civil law countries, they serve as advisers to lawmakers, providing their expertise on the function and impact of laws. While law professorships in common law countries are often prestigious positions, the scholar plays no real part in the lawmaking process. Students of civilian law read legal scholars and learn about the historical development of ideas about the function of law. Students of common law, on the other hand, pay little attention to legal scholars but instead read great cases and learn about the historical circumstances giving rise to them. In other words, legal history in civil law tradition is intellectual history, while in the common law tradition it is most often social or economic history.¹²

Finally, and perhaps most important, judges in the two traditions serve different functions. In the common law world, the decisions of judges can become precedent, which, in itself, becomes a form of binding law. This has led to criticism from proponents of the civil law on the basis that common law countries do not strictly adhere to separation of powers. The civil law countries created administrative courts and limited or prohibited judicial review of legislation in order to prevent the judge from taking on the role of a lawmaker. In the civil law world, judges are seen as civil servants or functionaries.¹³

While the civil law tradition claims roots in classical Greece and Rome, if not before, it was reinvigorated during the Age of Revolution. Prior to the Enlightenment, it was not uncommon for judges in jurisdictions based on Roman law to act like common law judges. But as the revolutionaries on the European continent saw it, this was a problem. Thus, in the late eighteenth and early nineteenth centuries, many emerging states on the European continent went through processes of radical and extensive codification. The most notable and most influential of these was the enactment of the French Civil Code of 1804. The main author of the Code Napoleon, as it came to be called, was Jean Étienne Marie Portalis, who worked on his compilation from 1800 until its completion four years later. Law in England was transformed much more slowly. Nevertheless, by the eighteenth century, it had transformed a great deal from its medieval state.¹⁴

At the same time Portalis was working on the Code Napoleon, President Thomas Jefferson was working on acquiring the Louisiana Territory from France. After successfully doing so, he insisted on Americanizing the new territory’s legal system. When Jefferson first took office in 1801, he expressed his desire for a nation of “people speaking the same language, governed in similar forms, and by similar laws.”¹⁵ Thus, two years later, he was convinced that the loyalty of Louisianans to the United States was dependent upon their acceptance of its common law traditions. Jefferson had been trained in the common law at the same time he was participating in the birth of the United States. In his view, this legal tradition was an essential component of the American political system, and if Louisianans failed to adopt it, they would never be fully integrated into the Union. But the president feared that the civil law tradition was so well entrenched in the lower Mississippi valley that its inhabitants would resist attempts to impose common law. In 1803, therefore, he pushed for the annexation of New Orleans and the surrounding countryside into the Mississippi Territory. As he explained to Horatio Gates, “We shall endeavor to introduce the American laws there, and that cannot be done but by amalgamating the people with such a body of Americans as may take the lead in legislation and government.”¹⁶ But this plan had little support, and Jefferson soon abandoned it.

Once the plan to integrate New Orleans into the Mississippi Territory was abandoned, the hopes for instilling the common law in the lower Mississippi valley rested on Anglo-American immigrants to the region. In fact, several influential Anglo-American jurists trained in the common law tradition immigrated to New Orleans immediately after the Purchase. Among them was William Charles Cole Claiborne, the man Jefferson appointed to be the Orleans Territory’s first governor. Although Claiborne was born in Jefferson’s home state of Virginia and studied at the College of William and Mary, he lived in many different parts of the United States before coming to Louisiana. At the age of sixteen, he moved to New York, where he worked under John Beckley, the clerk of the House of Representatives. When the nation’s capital moved to Philadelphia in 1790, he went there with it and began to study law. In 1794, he moved to Tennessee to start his legal practice. He later served as justice of the Tennessee Supreme Court and then governor of the Mississippi Territory before Jefferson made him governor of Orleans in 1804. Jefferson charged Claiborne with overseeing the territory’s adoption of common law principles.¹⁷

Several other common law lawyers made an early impact on the territory. James Brown, another Virginia-born lawyer, arrived in New Orleans in November 1804 after practicing law for many years in Frankfurt, Kentucky. He served as secretary and district attorney for the Orleans Territory but turned down an appointment to the Superior Court, apparently because it did not pay well enough. He purchased a sugar plantation on the German Coast and became one of the largest slaveholders in the territory.¹⁸ Another Brown, Jeremiah Brown, wrote a pamphlet in 1806 defending the common law tradition in which he accused refugee lawyers “from the bloodletting on the island of Santo Domingo” of seeking to undermine the American legal system.¹⁹ John Prevost, the stepson of Aaron Burr, was born in New Jersey and studied law in New York. He came to New Orleans in October 1804 and accepted a position as justice on the Orleans Superior Court. Supporters of common law hoped that Prevost would use his position to help Americanize the territory’s legal system.

The most influential and probably most controversial Anglo-American jurist to come to New Orleans was Edward Livingston, brother of Robert Livingston, one of the signers of the Louisiana Purchase treaty. Edward Livingston studied at Princeton and then apprenticed himself to noted lawyer and legal scholar John Lansing.²⁰ While studying under Lansing, Livingston developed an appreciation for Roman law, which he thought to be much more efficient than the “judge-made” law of England. Still, he was admitted to the New York bar and became a successful common law attorney and lawmaker. He was a congressman from New York State, the U.S. attorney for the state, and the mayor of New York City before coming to New Orleans in 1804. He left New York in the wake of a financial scandal that both left him deeply in debt and soured his relationship with Thomas Jefferson. Most important, Livingston was a brilliant legal mind who was constantly working to make Louisiana’s laws clearer and its legal system more efficient.²¹

While Jefferson and Claiborne encouraged these common law jurists to immigrate to the Orleans Territory, local supporters of the civil law tradition resisted the efforts of the central government to Americanize the region’s legal system. Among the civil law–trained jurists living in New Orleans at the time of the Purchase, Pierre Derbigny, the lawyer for Louise Laronde Castillon in the case that begins this chapter, was the most accomplished.²² Derbigny opposed Anglo-American common law in Louisiana and defended the retention of civil law practices established during the French and Spanish colonial periods. Yet some of the most vocal supporters of civil law were not lawyers at all but wealthy French-speaking planters such as Joseph Dubreuil and Julien Poydras. Dubreuil was very critical of Claiborne’s appointment of both American and French judges to the territorial courts and the “awful cacophony which was bound to result from such an arrangement.”²³ Poydras proclaimed “of all the evils to which lower Louisiana was exposed by American rule, nothing was more nefarious than the threat to its ancient laws and legal institutions.”²⁴ Poydras’s assertion raises a central contradiction to the Jefferson administration’s attempts to transform Louisiana’s legal system from civil law to common law. As Louisiana legal historian Mark Fernandez has observed, since common law “rests on the notion that, over the centuries, the law will evolve and eventually approach the ideal of justice …, how could the common law replace the civilian legal heritage of Louisiana?”²⁵

Some francophone planters put their words into actions. In November 1805, a group of rural planters published a set of “Instructions” for their delegates in the House of Representatives complaining of the newly imposed county court system, which they saw as both oppressive and inconvenient.²⁶ Then, in June 1806, ten non-English-speaking members of the legislative council resolved to immediately dissolve the newly formed General Assembly. Their main reason for doing so, as explained in a manifesto they had published in a local newspaper, was to protest the attempts of the governor, acting on behalf of the national government, to impose a foreign and unfamiliar legal system on the residents of Orleans: “The most inestimable benefit for a people is the preservation of its laws, usages, and habits. It is only such preservation that can soften the sudden transition from one government to another and it is by having consideration for that natural attachment that even the heaviest yoke becomes endurable.”²⁷ It seems that many elites who had lived in Louisiana prior to the Louisiana Purchase feared that an American legal system threatened the vitality of their culture.

The most influential civil law jurist in Louisiana during the territorial period, however, was not one of Louisiana’s own but a post-Purchase immigrant from St. Domingue, and the judge in the case that opens this chapter, Louis Moreau-Lislet. Born in Cap Français, St. Domingue, in 1766, Moreau-Lislet studied law in Paris, becoming an avocat just before the outbreak of the French Revolution. He returned to Le Cap prior to its burning by slave insurgents in 1793. In 1794, he served as agent and attorney for several emigrants who expected to return to the island after the hoped-for defeat of the insurrection, but by 1800 he held an official position in the revolutionary government. In 1801–2, he sat as interim judge on a court in Port Republicain (Port-au-Prince), and as late as February 1803 he was a public defender and a trial judge in Le Cap. In August 1803, after the French army had surrendered to Jean Jacques Dessalines’s forces, Moreau-Lislet left St. Domingue. He went first to Cuba, but then sometime between August 1804 and February 1805, he arrived in New Orleans. Because Moreau-Lislet was fluent in French, Spanish, and English, Governor Claiborne made him official interpreter in the colony almost as soon as he arrived. The governor then appointed the refugee to be the first judge of the newly formed New Orleans City Court in 1806. He remained on the City Court’s bench until early 1813, less than a year before a restructuring of the court system ended its existence. In addition to his service on the City Court, Moreau-Lislet was a practicing lawyer and, like Edward Livingston, an active participant in clarifying the region’s laws.²⁸

One of the most controversial cases in New Orleans during the territorial period pitted Louis Moreau-Lislet against Edward Livingston as lawyers on opposite sides of the docket. The case was officially called Gravier v. City of New Orleans, but it is remembered simply as the “batture case” after the piece of land that was the subject of the suit. In lower Louisiana, a batture is an area of land between the river and the levee that remains dry for most of the year but is covered by the river in its annual swells.²⁹ The batture in question in the Gravier case was upriver from the Vieux Carré in Faubourg St. Marie. In the late eighteenth century the land was part of Bertrand Gravier’s plantation, but in 1788 he subdivided much of the land in establishing New Orleans’s first suburb and sold parcels of this estate throughout the 1790s. When Bertrand died in 1797, his brother, Jean Gravier, inherited the land that had not been sold. The batture land bordering Faubourg St. Marie had been neither sold nor improved but was being used by the public. In 1803–4, Jean Gravier attempted to move the levee on this batture closer to the river in order to claim more land, a practice that had developed throughout New Orleans’s history because the batture was constantly widening due to the buildup of soil. This time, however, the public protested because Gravier did not own any of the land bordering the batture. Gravier then sued the city in the Orleans Superior Court to establish his title to the St. Marie batture. Livingston agreed to represent Jean Gravier on a contingency fee. If he won, Gravier would grant Livingston a part of the batture on which Livingston planned to construct a commercial dock. In answering the lawsuit, the city of New Orleans, represented by Pierre Derbigny and Louis Moreau-Lislet, claimed that the St. Marie batture was public land. On May 23, 1807, a unanimous court granted a decision in favor of Gravier. Yet, while Livingston won the case for his client, he was never allowed to build on the land. President Jefferson claimed the land as federal government property and ordered the eviction of Gravier and Livingston pursuant to a law of Congress of March 3, 1807, that allowed the government to evict squatters on public lands. The order was executed, and Gravier and Livingston were evicted, in January 1808.³⁰

While the batture case pitted New Orleans’s most accomplished common law–trained lawyer against two of the civil law’s best, the issues of the case had little to do with disputes over the Americanization of the legal system.³¹ Livingston’s client, Jean Gravier, was Louisiana born and tended to favor the civil law tradition, while Claiborne and Jefferson, avid proponents of the common law tradition, both supported the city’s position. In fact, Moreau-Lislet and Livingston came to admire and respect each other even though they were opponents in the case and were trained in different legal traditions. Each showed an appreciation of the other’s legal tradition. In his time on the City Court bench, Moreau-Lislet acted like a common law judge in his liberal interpretations of existing law and willingness to make decisions based on custom and precedent. For his part, Livingston was a proponent of civilian law even before coming to Louisiana. Once he got there, he became one of its most articulate defenders against common law encroachment. Moreau-Lislet and Livingston were both ambitious men seeking power and influence, but both also seemed genuinely interested in improving the territory’s legal system. Under the influence of these two men, the heated debates between proponents of civilian law and proponents of common law subsided by the end of the territorial period.

Indeed, the respective careers in New Orleans of both Moreau-Lislet and Livingston suggest that each was more concerned with creating certainty in the territory’s laws than in pushing for one tradition over the other. As a result, they were willing and active participants in the drafting and clarification of the substantive laws and legal procedures of early American Louisiana. In 1804, having recently arrived in New Orleans from New York, Livingston wrote that the governor’s “ordinances in English mixed with those of his predecessors in Spanish and French, the laws of Castile, the Customs of Paris, the Leyes de Partidas, les Edits du Roi, the Statutes of the United States and the omnipresent common law of England make a confusion worse than that of Babel.”³² He helped clarify the territory’s laws by drafting a code of civil procedure in 1805. Moreau-Lislet also played a big role in providing certainty and clarity to the territory’s laws. In June 1806, the legislature assigned him and James Brown the task of compiling the region’s laws into a written digest. Moreau-Lislet was the dominant partner in this joint effort. Two years later the two submitted their work for legislative approval, and the legislature quickly adopted a bill to make it the law of the land in Louisiana. Despite some concerns that he would, Claiborne did not veto the bill.³³ The 1808 compilation of laws was a digest rather than a code. Moreau-Lislet did not create a set of laws by reasoning from basic principles (as Portalis had done in drafting the Napoleonic Code); rather, he studied existing laws in Louisiana and organized and categorized them in written form. This is important because it means that the Civil Digest of 1808 did not break from past law; it merely organized and summarized it, and it was not the exclusive law of the land.³⁴ Finally, in 1822, the state legislature commissioned Livingston, Moreau-Lislet, and Derbigny to prepare a full revision of the civil code, a commercial code, and a comprehensive code of civil procedure. The new Civil Code of Louisiana was completed, was accepted by the legislature, and became law in 1824.³⁵

The legal system that emerged in Louisiana from all these efforts was, not surprisingly, a compromise influenced by both the civil law and common law traditions. The U.S. Constitution guaranteed the rights of trial by jury and habeas corpus, both elements of the English common law and strangers to Roman civil law. And the March 26, 1804, act of Congress created a common law (or adversarial) court system in the territory.³⁶ The law of civil procedure, while unique, adopted many of the basic components of the American system, including some of the common law forms of action, the adversary process itself, and the controlling importance of the judicial interpretation of the written law. The Civil Digest of 1808 did nothing to alter the American court system to which the local population had adjusted with surprising speed, and it did nothing to prevent the introduction of American criminal law and criminal procedure, again drawing little protest from the locals. Furthermore, Louisiana rejected a commercial code that might have alienated it from the national economy that was increasingly becoming the key to its prosperity. The only area of the Civil Digest that was truly civil law in nature was that of private substantive law, such as the laws governing contracts, marriage and family obligations, and inheritance.³⁷ Finally, the 1824 Civil Code incorporated common law principles of property and contract into the basic framework of the Napoleonic Code.³⁸

Anglo-Americans and Franco-Louisianans also fought over what should be the official language of the Orleans Territory. English speakers argued that it should be English only so as to conform to the rest of the country. They claimed that requiring publication in both French and English would be too costly and cumbersome. French speakers, on the other hand, feared that an English-only requirement would put them at a grave disadvantage in legal proceedings. The French speakers, with the support of Livingston and Superior Court justice John Prevost, won the day, at least officially. The Civil Digest of 1808 was printed in both French and English, and Livingston’s rule of civil procedure required all court documents to be drawn up in both languages. In the City Court, however, this requirement was ignored more often than it was followed. Out of all the cases in the court involving free people of color, about a third of the court documents were filed in English, about a third in French, and about a third in both. Only a handful of parties objected when the rule was not followed.³⁹

The battles over the future of Louisiana’s legal system and clash of legal cultures were intertwined with concerns about preserving a fragile Union and assertions of local control. At the time of the Purchase, Jefferson was convinced that the best way of ensuring the loyalty of Louisiana’s ancienne habitants to the United States was by indoctrinating them into Anglo-American culture, especially its legal culture. He appointed Claiborne as governor with instructions to oversee the overhaul of the legal system. After many local elites resisted attempts at a complete overhaul, however, Claiborne let up in his campaign against the civil law. He had come to accept that he could best win the loyalty of the old inhabitants by allowing some of their customs, including the civil law, to continue. In an October 1808 letter to James Madison regarding the legal system in Louisiana, the governor made establishing the common law his third priority. His first goal was “to render the laws certain; [his] next … to render them just, and [finally] to assimilate [Louisiana’s] system of jurisprudence as much as possible, to that of the several states of the union [emphasis added].” By the fall of 1808, therefore, Claiborne had compromised his loyalty to the common law with his sensitivity to the sentiments and wishes of the “Ancient Louisianans.”⁴⁰ As a result, Claiborne’s once strained relationship with the French-speaking population of Orleans improved considerably. In 1812, he defeated Jacques Villère in the state of Louisiana’s first gubernatorial election, an election he could not have won without support from some francophone elites who preferred the civil law.

In the end, local elites in New Orleans from both legal traditions were more concerned with maintaining local rule than with which tradition ultimately prevailed in the region. As one of the representatives of the new Americans in Washington, Pierre Derbigny led the charge for self-government in the Orleans Territory, but he was joined by Anglo-Americans as well, including Daniel Clark and Edward Livingston. Their collective call for the national government to stop interfering with their domestic institutions is a familiar theme throughout American history—and resembles the cries coming from the seceding states half a century later. Their similarities with the secessionists of the mid-nineteenth century do not end there. Most local elites in the Orleans Territory were willing and able to compromise on the type of legal system in the region, but none of them, whether ancienne habitants, West Indian refugees, or Anglo-American newcomers, could accept national government restrictions on slavery.⁴¹

The Legal Battles over Slavery

Whatever differences existed between civil law and common law with regard to the issue of slavery, they paled in comparison to their similarities. Both traditions developed in the early modern era to support bourgeois values by naturalizing the individual’s right to private property. Indeed, both common law and civil law supported property rights above all else.⁴² And in lower Louisiana, as in the Caribbean and the southern states of America, both traditions supported New World slavery. Livingston, Moreau-Lislet, and Derbigny, all slaveholders themselves, were key participants in establishing a legal system that legitimated the treatment of human beings of African descent as chattels.⁴³

Slavery and a legal system that supported it were well entrenched in the lower Mississippi valley at the time of the Louisiana Purchase. France founded New Orleans as a planned slave society in 1718, by which time the colonial power already had a codified law of slavery: the 1685 Code Noir, which was enacted to govern African slavery in the French Caribbean. The Code Noir was supposedly modeled on Roman slave law, but its name, which translates as the “Black Code,” expressly acknowledged the racial element of New World slavery. Some aspects of the Code Noir recognized the humanity of slaves. It stated that slaves should be instructed in the Catholic faith, and it promoted slave families. It further allowed masters to free their slaves at their own discretion, and once freed, the former slaves had “les mêmes droits” as all free people.⁴⁴ However, other aspects of the code were more severe. Slaves could not own property and, therefore, were legally incapable of purchasing their own freedom. They could not be a party to a lawsuit or testify against free people except in cases in which the defendant was accused of inciting rebellion. Louisiana enacted its own slave code in 1724. Although it adopted most of the 1685 law, the Louisiana Code Noir made it more difficult for masters to free their slaves. Under the 1724 code, manumission required the approval of the Superior Council, French Louisiana’s governing body, and masters had to show good cause for manumission, such as a special service to the colony.⁴⁵

The Louisiana Code Noir, adapted from a set of laws designed for the prosperous West Indian sugar colonies, was ill suited for the conditions of Louisiana. Staple crop production floundered in the lower Mississippi valley for most of the eighteenth century. The quality of tobacco could not compete with that grown in Virginia, and while indigo was successfully grown in the region, this crop alone could not support a slave society. As a result, the Louisiana Code Noir was honored in the breach. Most notably, masters did not take seriously the restrictions placed on their ability to emancipate their slaves. At the end of French rule, there were close to 200 free people of African descent living in or around New Orleans.⁴⁶