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Introduction

Men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past.

—Karl Marx, “Eighteenth Brumaire of Louis Bonaparte” (May 1852)

After they were found guilty of larceny by a New Orleans jury in 1849, Henry Levy and Jacob Dreyfous appealed their conviction to the Louisiana Supreme Court, claiming that the trial court erred in allowing the testimony of a free man of color. There was no rule of evidence that explicitly stated free people of color were competent to testify against whites in criminal matters, and, the appellants argued, the presumption should be that they were not. In support of this argument, the lawyers for Levy and Dreyfous cited decisions in the supreme courts of South Carolina and Maryland. The Louisiana Supreme Court, in an opinion written by Justice George Rogers King, rejected the appellants’ argument, stating that the “legislation and jurisprudence” of Louisiana “differ materially from those of the slave States generally, in which the rule contended prevails. This difference of public policy has no doubt arisen from the different condition of that class of persons in this State.” This was especially true in the city where the members of the jury and the witness lived.¹ The people of color in New Orleans, Justice King continued, “are respectable from their intelligence, industry and habits of good order. Many of them are enlightened by education, and the instances are by no means rare in which they are large property holders. So far from being in that degraded state which renders them unworthy of belief, they are such persons as courts and juries would not hesitate to believe under oath.”² If the question in this case was whether Louisiana law recognized that a free man of color in New Orleans had the intellectual capacity to understand the significance of an oath and the integrity to abide by it, Justice King’s answer was yes.

Free people of color had been interacting with the American court system in New Orleans since its origins during the territorial period (1804–11). They were not only witnesses in criminal cases, as in State v. Levy, but also litigants in private lawsuits seeking to distinguish themselves from enslaved people of African descent and claim their rights as free citizens. Acting individually in the courtroom, these free people of color created a collective representation of themselves as “respectable” people due to their “intelligence, industry, and habits of good order” that came to be seen in racial terms. Near the end of the territorial period, the 1811 Superior Court case of Adele v. Beauregard judicially recognized a racial distinction between gens de couleur (who were presumed to be free) and Negroes (who were presumed to be slaves).³

Making Race in the Courtroom is about the process by which free people of color living in New Orleans during the Age of Revolution made history under circumstances they did not choose. It argues that in the process of negotiating a legal system that supported and legitimized racially based slavery, free people of African descent in New Orleans, through their participation in the courts, caused the legal reshuffling of racial categories. New Orleans’s legio-racial system was in flux during the transition from the colonial era, and a more thorough Anglo-Americanization of the system was deterred by the arrival of St. Domingan refugees (white, black, and of color), which helped to fix the fluidity in a direction that was more comparable with late eighteenth-century St. Domingue norms than with contemporary Anglo-American ones. The refugee gens de couleur and other members of New Orleans’s free colored community did not necessarily intend to create a third race. Rather, acting within the context of political, cultural, and legal uncertainty, they were seeking to protect and gain privileges denied to free blacks elsewhere in the United States. One of the unintended consequences of their behavior, however, was a recognition in the laws of a racial distinction between “Negroes” and “people of color.”

The courtroom was not the only venue in which free people of color sought to protect and expand their legal rights. Justice King acknowledged in his opinion that the “earliest legislation” of the Territory of Orleans protected the rights of free people of color. Free men of color also offered their military services to the territorial governor, William C. C. Claiborne, who recognized them as a “highly useful corps.” Thus, free people of color also sought to influence the legislative and executive branches of the territorial government, with some success.

Nevertheless, the impact of free people of color was more far-reaching on the judiciary than it was on the other branches of the government. As local white planters gained control of the representative government in the region, they excluded free men of color, as a group, from political participation—voting, holding office, or even petitioning the legislature. Yet individual free people of color could still use the court system to protect their property rights, in part because they were an important part of New Orleans’s expanding commercial economy. Consequently, the principle of Louisiana law that New Orleans’s gens de couleur were qualitatively different from free people of African descent in “the slaves states generally,” as expressed by Justice King, was established by judicial precedent rather than a legislative act or an executive decree.⁴

Moreover, the greater access to the judicial branch than to the legislative or executive branches of government had gendered implications. In the early American republic, voting, petitioning the government, and holding office were the exclusive province of men. Unmarried women, on the other hand, could sue and be sued in courts. As the chapters that follow show, women of color were involved in litigation in early American Louisiana at about the same rate as men of color and far more often than white women. Some of the most influential cases in the territorial courts of New Orleans, including Adele v. Beauregard, involved women of African descent. Thus, women of color were just as important as men of color, if not more so, in shaping the legal definitions of race in early New Orleans.

The last two decades have seen a veritable explosion of works about the history of New Orleans. Since the 1990s, no fewer than two dozen scholarly books and as many articles about the city’s history have been published, most of them focusing on issues of race.⁵ While a number of factors may have contributed to the surge in scholarly interest in historical New Orleans, it is largely a result of changes in the dialogue about race in this country, specifically with regard to transformations within America’s “black community.” An increasingly well-established, vocal, and self-conscious (if not significantly larger) black bourgeoisie has given rise to class divisions within this country’s African American community. Moreover, the “voluntary” immigration of Africans to the United States that began in the late twentieth century and continues today has created distinctions between black Americans who are descendants of the transatlantic slave trade and those who are not. Although second-generation Americans of African descent still suffer from racial discrimination, their perceptions of America differ from those of Americans whose ancestors came as slaves more than 200 years ago.⁶ Even black West Indian immigrants and their children, whose ancestors were slaves, often see the United States in a different light than native-born African Americans.⁷ The election of Barack Obama, a black man who is the descendant of a white mother and a Kenyan father, serves to highlight the increasing diversity of the black American experience.⁸ In short, pre–Civil War New Orleans has become a popular place to study in recent years because it, more than anywhere else in early America, was home to a complex and multivalent racial system similar to the one Americans live in today.

It is now commonplace to say that race is a social construction. Yet, while this tells us what race is not (i.e., genetically distinct groups of humans), it does little to define what race is. This book takes the position, as its title suggests, that race is best understood not as a category at all but as a process. It builds upon the work of Ian F. Haney-Lopez, who, in his influential essay “The Social Construction of Race,” argues that race is “an ongoing, contradictory, self-reinforcing, plastic process subject to the macro forces of social and political struggle and the micro effects of daily decisions.”⁹ Under this definition, race is historically constructed by the choices that individuals make within structural boundaries. Recognizing that race is a process, continually made and remade, this book does not claim to demarcate an originary point at which “people of color” became a distinct race. Instead, it seeks to demonstrate the role of free people of African descent, interacting within the courts, in the process of race making.

Recent scholarship has demonstrated what race relations in pre–Civil War New Orleans looked like, especially with regard to the legal position, socioeconomic status, and culture of the city’s free people of African descent. Many scholars have discussed the uncommon legal rights and privileges enjoyed by free colored people in antebellum Louisiana, who could own all types of property, including slave property, move about freely, enter into legal contracts, and, perhaps most important, sue and testify in court against whites. Of course free people of color did suffer certain legal restrictions; they could not vote or serve on juries, and they were not free to marry whites or slaves, for example. Still, the legal rights of free people of color were more expansive in Louisiana than in any other slave state.¹⁰ Historians have also shown that, in addition to having greater legal rights, New Orleans’s gens de couleur were wealthier and better educated than free blacks in most other parts of the United States. Many owned land and slaves and were educated in schools in the northern United States or France. Although they were precluded by custom from the medical and legal professions, many free people of color were accomplished artists, artisans, small-business owners, and landowners and built a unique and rich culture.¹¹ The scholarship has reached a general consensus that Louisiana’s gens de couleur enjoyed an unusually privileged position compared with free people of African descent in the rest of the United States.¹²

Much has also been written, though there is less agreement, on why antebellum Louisiana’s gens de couleur enjoyed rights and privileges denied to free blacks throughout most of the United States. The arguments usually hinge on the differences between Anglo-America, on the one hand, and French or Spanish America, on the other. Following the lead of Frank Tannenbaum and Stanley Elkins, several historians of race in Louisiana argue (some explicitly, others implicitly) that slavery in the English colonies of the New World was harsher than in the colonies of Spain and, to a lesser extent, France. One corollary of the Tannenbaum-Elkins thesis that seems especially relevant in the context of New Orleans is that the institutions in Latin America allowed former slaves to assimilate into free society much more easily than those in Anglo-America.¹³ Thus, some historians argue that the French and Spanish colonial governments in Louisiana granted exceptional rights and privileges to free people of color that survived the Louisiana Purchase.¹⁴ For other historians the relatively privileged position of free people of color in Louisiana was a product less of Louisiana’s French and Spanish colonial heritage than of the influence of the French West Indies. This argument centers on the thousands of gens de couleur immigrants from St. Domingue and, to a lesser extent, Martinique and Guadeloupe, where many free people of color identified more closely with the property-holding free whites than with the masses of enslaved blacks, most of whom were African born.¹⁵ Both sets of arguments are bolstered, in part, by evidence that in the late antebellum period the increasingly Anglo-American planter-controlled Louisiana government attempted, with limited success, to circumscribe the rights and privileges of Louisiana’s community of free people of color. Such attempted circumscription is considered an important (and negative) aspect of the “Americanization” of Louisiana.¹⁶

In the end, a combination of factors (demographic, economic, cultural, and institutional) contributed to the unusually privileged status, within the United States, of Louisiana’s free people of color. Throughout most of the eighteenth century, the white population was so overwhelmingly male as to encourage intimate relationships between white men and enslaved women of African descent.¹⁷ This produced a significant community of people of mixed ancestry who were the offspring of white male slaveholders. Kimberly Hanger has shown that during the Spanish period masters were more likely to free their mixed-race children than other slaves they owned. Moreover, despite the plans of early French officials, slavery did not become central to the Louisiana economy until the 1790s. In eighteenth-century Louisiana’s “frontier exchange economy,” racial categories were much more fluid than they would become after the plantation revolution. Furthermore, the Spanish policy of coartacion, under which slaves had the legal right to purchase their freedom with or without their masters’ consent, significantly contributed to further growth of the free colored community in the late eighteenth century.¹⁸ Finally, the immigration from the French West Indies in the last decade of the eighteenth century and first decade of the nineteenth century added thousands of sophisticated and educated free people of mixed ancestry. All these factors help explain why Louisiana’s free people of color enjoyed a privileged position relative to the rest of the American South.

This book, however, is less concerned with the what and why than with the how questions. It accepts the consensus view that the status of free people of color in Louisiana “differ[ed] materially from [that of free blacks in] the slave states generally.” But instead of looking for the root cause of this difference in institutions, cultural traits, or material conditions, it shows how individual free people of color inserted themselves into the legal system to protect and enhance their rights as free people. As a result of their efforts, the “difference” between gens de couleur and other people of African descent came to be perceived as a racial difference that became embodied in the law, where it informed future courts and legislatures. This book is about how free people of color acting within institutions of power shaped those institutions in ways beyond their control.

While free people of color interacted within many different institutions in early New Orleans, this book focuses on the legal system. Legal institutions were important sites in which status and race were negotiated and defined. One important purpose of the laws of New World slave societies was to support a socioeconomic system that was built on racially based slavery. Thus, at various times throughout the early modern era, statutes, decrees, and/or court decisions in the New World slave societies created legal presumptions that people of African descent were enslaved and people of European descent were free.¹⁹ Yet the prevalence, even very existence, of free people of African descent challenged these presumptions. Whereas in much of the southern United States these contradictions were dealt with by passing laws discriminating against free blacks (by making them slaves without masters), jurists and lawmakers in New Orleans took a different approach. They created a new legio-racial category: people of color.

The law is a useful lens through which to view the historical construction of race because, as Haney-Lopez states, “the law serves not only to reflect but to solidify social prejudice, making law a prime instrument in the construction and reinforcement of racial subordination.”²⁰ Moreover, the letter of the law, which is designed, in part, to uphold certain principles, at times differs from the law as applied, which reflects on-the-ground social realities. But, Making Race in the Courtroom is less a legal history than a cultural history.²¹ It focuses on the interaction of law and culture in New Orleans’s courtrooms in the aftermath of the Louisiana Purchase, when the city’s legio-racial order was particularly malleable. Furthermore, rather than looking at the law in the abstract, by focusing on the laws and policies handed down by the legislatures and the judicial decisions of the highest courts, this book examines the interactions of free people of color within the legal system.²² Free people of color forged a distinct identity with their behavior outside the courtroom that was both reflected and reinforced within it.

While the chronological focus of this study is relatively short, roughly 1791 to 1815, the book grapples with important issues such as the intersections of law and culture, the impact of the American and Haitian Revolutions in the Atlantic world, the dialectic of agency within structure, and the contingent nature of historical development. Much of the evidence for this study comes from the records of the New Orleans City Court, a court that existed from 1806 until it was disbanded in 1813. The City Court heard a little more than 3,500 cases in its eight-year existence. All of them were private lawsuits (as opposed to criminal or administrative matters) involving individuals and/or corporations. Free people of African descent were litigants in around 350 of these cases,²³ and they were witnesses in dozens of others. They were involved in a wide variety of lawsuits on both sides of the docket. By examining every record of the New Orleans City Court involving free people of color, this study not only closely examines how the abstract laws became concrete when they were enforced within this community but also, more important, highlights inconsistencies in the application of these laws and shows how free people of color responded to them. Indeed, in some important instances, the actions of free people of color led to changes in the laws.

The court records are supplemented with multiple other primary sources, such as notarial records, probate records, census data, letters and diaries, and other sources, all of which reveal a great deal about the individuals involved in these lawsuits. Using details about the lives of hundreds of individual free people of color outside the courtroom, this book demonstrates their shared culture and how it shaped their behavior in the courtroom. This detailed research allows this study to move beyond generalizations about a three-caste system arising out of French or Spanish or Catholic culture. Instead, it shows that the system arose because free people of African descent were able to manipulate different aspects of the plural legal traditions of the city to maximize their fortunes in individual lawsuits. Free people of color were not always acting as conscious members of a free colored community or a middle caste.²⁴ But the sum of their individual actions had the unintended consequence of producing an enhanced body of legal rights for Louisiana’s gens de couleur that was justified by those in power with the assertion, embodied in the law, that free people of color were racially distinct from enslaved blacks.

Free people of color in New Orleans were able to protect and enhance their rights in the courtroom in large part because judges, generally speaking, applied the law with an eye toward evenhandedness.²⁵ The 1812 case of Massant v. Veda serves as an example. On August 4, 1812, a free woman of color named Henriette Massant was passing in front of the house of a white man named François Veda when two young women from within the Veda home tossed the contents of a chamber pot onto her. Massant identified these women as Louise and Deloritte Couso—their status within the household is unclear, but they were likely servants or slaves. Believing that Veda’s daughter, Félicité Veda, had ordered the disgusting act, Massant leveled a series of insults at the young Veda. François Veda then pursued Massant to her home and proceeded to hit her and throw objects at her, including a chair. Massant sued Veda for assault on August 6, 1812, and the judge of the New Orleans City Court awarded her a judgment for $500.²⁶

The case of Massant v. Veda reveals a lot about the ways in which the social hierarchy was contested in New Orleans’s courts. The events that gave rise to the lawsuit were, for the most part, undisputed. Massant had four witnesses testify on her behalf, and Veda had three testify for him. None of the witnesses contradicted each other. Yet the meaning of these events was hotly contested. Each side claimed that the other had been “insolent” and disrespectful. Veda claimed to be protecting the honor and dignity of his daughter. He implicitly argued that he and his daughter should not be held accountable for throwing bodily waste onto Massant, but that Massant should be held accountable for reacting strongly to getting bodily waste thrown onto her. Indeed, this case tested the meaning of section 40 of the newly passed Black Code, which admonished free people of color never to insult whites. Judging by his ruling in the case, the justice of the peace with whom Massant originally filed her complaint apparently interpreted section 40 to prohibit only unprovoked insults. On appeal, Veda claimed that the justice of the peace’s decision had unjustifiably harmed his reputation. Yet the decision was upheld on appeal and provoked no social outrage. It was not unusual for women of color to win favorable judgments against white men in the territorial and early state courts of New Orleans.²⁷ The court was intent upon interpreting the law fairly, even if this, at times, upset the social dynamics of the parties involved in the lawsuits.

To say that courts, in general, ruled evenhandedly is not to suggest that the law treated all people, or even all free people, equally. The very existence of the Louisiana Black Code of 1807 is evidence of racial inequality. The great majority of the regulations in the code dealt with slaves rather than free people of color. But slavery was, of course, racially based, and race served to justify the institution, even in the letter of the law. The Black Code explicitly states that “free people of color shall not presume to be the equal of whites.”²⁸ Still, this law was only necessary in a society in which racial subordination was contested.

At times the limits of racial subordination (as well as other elements of the social hierarchy) were negotiated even in cases in which none of the parties were people of color. In the 1811 case of Brengle v. Williams and Colcock, for example, two white men asked the court to deprive another white man of custody of the latter’s two daughters on the basis of his alleged sexual relationship with a black woman.²⁹ The petitioner, Christian Brengle, claimed that defendants David Williams and William Colcock illegally took possession of his two daughters, Lucinda and Harriet, both minors. The defendants invoked a provision of the Civil Digest of 1808 that stated that “persons of a conduct notoriously bad and of depraved morals” are to be “excluded from the tutorship and are even liable to be removed from it.”³⁰ Colcock claimed to have taken possession of the children at the repeated requests of their mother and the children themselves because otherwise they would have been placed under the care of “a black woman of notorious ill fame.”

The details of what gave rise to the lawsuit are unclear. Brengle’s marriage was legally dissolved on September 14, 1808, owing, according to Brengle, “to his wife’s unconscionable conduct for three or four years prior to separation, i.e. ‘whoredom,’” after which Brengle struggled to get custody of his daughters. Eventually, the children’s mother gave up custody of Lucinda and Harriet and permanently moved back to Kentucky, from which both she and Brengle had come to New Orleans. For around two years Brengle lived with one or both of his daughters in a boardinghouse operated by a black woman named Mrs. McCoy. It is unclear if Brengle had a sexual relationship with McCoy, but the defendants alleged that he lived “in open prostitution” with her, a “circumstance which … rendered him ineligible to the charge of curator and tutor.” For his part, Brengle claimed that he “became displeased with [his] children’s situation owing to a crowd of boarders” at Mrs. McCoy’s house. He then “immediately turned [his] attention to endeavoring to procure more suitable lodgings for them.” William Colcock, who was then in charge of the New Orleans port, was one of many applicants and “appeared anxious to have them on certain terms but for no certain time.” Brengle would pay Colcock ten dollars a month for the care of his youngest child, but “the eldest was taken as a companion for [Colcock’s] wife” free of charge. After several months, Brengle became dissatisfied with the arrangement. He was concerned about an apparent “neglect of dress and [lack of] cleanliness.” His concern heightened when he “discovered that their treatment was not such as children of their age and sex should have had—[his] principle objection was that of a male child nearly about their own age and size bedding with them.” When he tried to remove his children “to send them to [his] brother in Maryland or put them in some good families in this city,” however, Colcock and Williams prevented him from doing so. Brengle then filed his lawsuit asking the court to order the defendants to return his children to their father. A few days later, after a hearing on the case, the court ordered the defendants to “deliver the children together with the wearing apparel belonging to them to [Brengle] on his giving security in the sum of two thousand dollars that he will place them in a respectable family to be there treated and maintained at his expense.” Unfortunately, the judge in this case did not provide a rationale for his ruling.

In addition to the issues of whether or not Brengle had a sexual relationship with McCoy and whether, if so, this would have disqualified him from being the tutor and curator to his daughters, the ambiguous and contradictory testimony in this case raises several questions. Why was Colcock so intent on retaining custody of Brengle’s children? Was he sexually exploiting them? Was he otherwise exploiting their labor? Why was Brengle seeking to obtain another home for his daughters in the first place? The documents of this case alone do not provide sufficient answers to these questions. But read in the context of hundreds of other cases in the New Orleans City Court involving interpersonal relationships in this particular time and place, one can make reasonable assumptions about the events leading up to Brengle v. Williams and Colcock. For example, several other cases in the same court involve vulnerable young children who were exploited for their labor, sexual or otherwise, shedding light on Colcock’s possible motives. Similarly, it was not uncommon for a party to make allegations about the character and social position of a woman of color, as the defendants did with regard to Mrs. McCoy. Many inhabitants of the territory, especially recent Anglo-American immigrants like all three parties in the Brengle case, were perplexed by the financial independence of many women of African descent, assuming that their entrepreneurial success resulted from immoral pursuits. Finally, the resolution of the Brengle case is consistent with many other custody cases in the New Orleans City Court in which the judge’s primary concern was with the ability of the father to provide for his children. All of these issues are dealt with in the chapters that follow.

The historical context that sheds light on cases such as Massant v. Veda and Brengle v. Williams and Colcock is New Orleans in the Age of Revolution.³¹ Thus, Making Race in the Courtroom is a local history that addresses broad issues regarding historical change. Local histories serve several important purposes, but, most important, they allow for an in-depth analysis that can show when the on-the-ground reality does not comport with abstract ideals.³² This book builds on the important work of Melvin Ely in his book Israel on the Appomattox.³³ Ely’s findings show a significant disjuncture between the abstract ideology regarding free people of African descent, as reflected in the laws, treatises, and prescriptive literature, and the everyday interactions between free people of color and whites. Making Race in the Courtroom goes further to show not only the disjuncture between abstract ideology and human behavior but also the linkages between the two. It shows how individual interactions at the local and concrete level actually changed the abstract perceptions of free people of color in Louisiana.

New Orleans during the Age of Revolution is a great place in time to study these linkages because it was there and then that abstract cultural and legal constructions of race were ripe for change. Making Race in the Courtroom views New Orleans in the context of the important global transformations associated with the Haitian Revolution, which established the second independent republic in the New World, created the first black nation in the world, and was the only successful slave revolution in history.³⁴ Historians have shown how this climactic event of the Age of Revolution had varied and, at times, competing influences on different parts of the New World. In some parts of the United States, for example, the economic, political, and ideological revolutions of the era led to the abolition of slavery, while in others they led to the entrenchment of slavery and the hardening of racial categories used to justify the institution.³⁵ The Haitian Revolution’s impact on the city of New Orleans was monumental; it led to the Louisiana Purchase itself and contributed to national debates about slavery in the region. During and immediately after the Haitian Revolution, slavery became entrenched in New Orleans, but racial categories did not develop along the same lines as they did in other parts of the United States. This is, in part, due to the influence of the massive refugee immigration from St. Domingue to New Orleans during the era.

The refugee immigrants did not completely reshape New Orleans’s social structure so much as they reinforced it and gave it new meaning. New Orleans’s three-tiered social hierarchy of whites, free people of African descent, and enslaved people of African descent had taken a recognizable form during the Spanish colonial period. In many ways, the refugees to New Orleans were entering a society very familiar to them where complicated alliances were based on a variegated sense of differences based on color, ancestry, class, and status. Yet, as hundreds of free colored refugees sought to put together the pieces of their lives and maximize their rights in the courtroom, where the presiding judge, Louis Moreau-Lislet, was himself a refugee, these differences were explained using the language of race. The three-tiered social structure of Spanish colonial New Orleans became the three-race society of antebellum New Orleans.³⁶ Therefore, this book does not argue that the history of Louisiana in the French and Spanish period did not matter, only that it did not predetermine antebellum Louisiana’s racial structure.

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The first two chapters of Making Race in the Courtroom set the stage by examining the material and legal structure of New Orleans in the era of the Louisiana Purchase. Chapter 1 introduces the reader to the rising new industries, busy markets, crowded streets, and newly built suburbs of the burgeoning port city in the era. Unlike comparable cities such as New York, Boston, and Philadelphia, where the developing industrial and commercial economies were based on free labor, New Orleans was rapidly emerging as a slave society. In the era of this study, New Orleans was more closely tied to the Caribbean slave societies through the Gulf of Mexico than to the trans-Appalachian farms through the Mississippi River. Chapter 2 focuses on the malleable and uncertain legal situation created by the transfer of the Louisiana Territory from Spain to France to the United States. While Anglo-American and English-born lawyers trained in the common law clashed with those born in Louisiana, France, and St. Domingue who were trained in the civil law, white jurists from both traditions put aside their differences and compromised in order to focus their attention on preserving and expanding racially based slavery in Louisiana. At the same time, free people of color solidified their access to the courts and, in the process, helped to create for themselves a distinct racial identity.

The engagement of free people of color with various aspects of the law is the subject of the next four chapters of the book. Free men of color are the dominant subjects of chapter 3, which explores the attempts of free militiamen of African descent to stake a claim to citizenship and political participation in the early American republic by invoking the language of republicanism. Despite these efforts, the incoming American government denied these men some of the basic aspects of citizenship in a republic, such as the right to vote or hold political office. Free women of color then take a prominent role in the final three chapters of the book. Both men and women of color retained the right to own property, even slave property, and the legal rights necessary to secure their property. But women of color were parties to the cases that had the most significant impact on the racial order. Chapter 4 focuses on both the significance of domestic law in shaping racial identity and its limitations in regulating behavior. The laws of the Territory of Orleans and the state of Louisiana prohibited marriages across the color line, but they could not prevent extramarital relationships between free women of color and white men in early New Orleans. This chapter debunks the myth that beautiful and refined women of color were essentially concubines of young, wealthy, white gentlemen, showing, instead, that interracial relationships were much more complex and involved than simple exchanges of sex for financial security. Still, because unmarried women of color could not rely on financial support from a husband, they had to take care of themselves and, hence, developed a stronger sense of autonomy and independence than most white women in New Orleans. Chapter 5 analyzes the efforts of free people of African descent to acquire and accumulate property and to use the laws and court system to protect their property rights. While Louisiana’s legal system, which was undergirded by racially based slavery, subordinated free people of African descent, it above all else elevated private property rights. In accumulating property, free people of color in New Orleans sought, among other things, to protect their free status. They took advantage of this system that viewed the protection of private property as a fundamental pillar of its private law to change perceptions of their community’s character traits. Finally, chapter 6 examines how illegally enslaved people of color sued their enslavers and, in the process, helped to create a three-tiered racial caste system in antebellum New Orleans. The majority of freedom suits in territorial New Orleans involved refugees from the French West Indies who, though they may have appeared vulnerable, were more sophisticated and knowledgeable of their legal recourse than most American free black victims of kidnapping. The 1811 case of Adele v. Beauregard, involving a young, illegally enslaved woman of mixed ancestry, served as the basis for the legal distinction between “Negroes” and “people of color.”

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As Robin Blackburn insightfully posited more than twenty years ago, “New World slavery coded ‘black’ skin as a slave characteristic; free people of colour might be led to deny their blackness—or to deny slavery.”³⁷ For the most part, free people of color in early New Orleans did not deny slavery for it would have been economically irrational and politically risky to do so. And while they did not deny their African ancestry, they did, in many respects, seek to distinguish themselves from slaves. By bringing this perspective into the courtroom, free people of color in New Orleans helped to make New Orleans, and indeed most of Louisiana, a three-race society.