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