Making Race in the Courtroom. Kenneth R. Aslakson

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