Making Race in the Courtroom. Kenneth R. Aslakson

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

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