Making Race in the Courtroom. Kenneth R. Aslakson

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.

      1

      The Gulf and Its City

      The flat-bottomed scow schooners carrying thousands of refugees fleeing the Caribbean for New Orleans during the two decades straddling the Louisiana Purchase followed a similar route to the Crescent City. They traveled westward along the coast of present-day Alabama and Mississippi before entering Lake Borgne. From there, the vessels passed through one of “several narrow channels called the Rigolets which lead into Lake Pontchartrain.” They then entered Bayou St. Jean, “which communicate[d] with New Orleans by an artificial canal dug by the efforts of Baron Carondolet, the [former Spanish] governor of Louisiana.” The canal led the schooners to the back of the city, near present-day Rampart Street and the public space that came to be known as Congo Square, where the passengers disembarked. From there it was a fifteen- to twenty-minute walk to the levee in the front of the city, where the refugees would have seen the expansive Mississippi River for the first time.

      The Lake Pontchartrain route to New Orleans was “much shorter and safer than by way of the mouth of the Mississippi.” The former was no more than fifty leagues (125 miles) in length and could have been made in two days. It was sheltered from both storms and enemy attacks. The river route, on the other hand, was much longer (eighty leagues or 200 miles) and much more dangerous. The storms are frequent along the Chandeleur Islands, and ships were vulnerable to enemy attack. Travelers to the city commented, moreover, that “the land at the river’s mouth is so low that it can be seen only when one is very near and hence is very dangerous to approach.” Once at the mouth of the Mississippi, furthermore, it sometimes took “twenty or thirty days to get up to New Orleans” due to the swift current of the river. “When the wind was from the north, ascent was impossible, because a sailing ship could only move against it by tacking back and forth across the river whose current would cause the ship to lose as much, or more, distance as it gained by tacking. Ships would therefore have to anchor below English Turn and wait for a favorable wind.”¹ Most people in the eighteenth and early nineteenth centuries arrived in the city from the Gulf rather than from upriver, and since the river’s current was a hindrance to access to the city from the Gulf, ships with little drag that could navigate the shallow waters of Lake Pontchartrain circumvented the Mississippi altogether.

      While the importance of the Mississippi River to New Orleans can hardly be overstated, the Gulf of Mexico has also profoundly influenced the city’s history. Jean Baptiste Le Moyne (Sieur de Bienville) chose the site for the city not only because there is no higher ground closer to the river’s mouth but also because of its proximity to Bayou St. Jean, Lake Pontchartrain, and an alternate route to the Gulf. In the era of the Louisiana Purchase, moreover, New Orleans’s ties to the West Indies through the Gulf of Mexico were much stronger than its ties to the North American heartland through the Mississippi River as reflected in the city’s economy, demography, and culture. This chapter provides the socioeconomic framework of New Orleans in this Age of Revolution and locates the city’s free people of color within this framework, identifying where they resided, what they did for a living, and how they spent their leisure time. It also introduces the reader to both the West Indian influence on the Crescent City and the material conditions that would help shape the city’s developing legal structure, which is the subject of chapter 2.

      The “Inevitable City on an Impossible Site”: The Geography

      About 100 miles (as the crow flies) from the mouth of the Mississippi, New Orleans’s French Quarter sits on soil deposited by the river as it twists and turns its way through its expansive delta into the Gulf of Mexico. The lakes, marshlands, and bayous that surround this natural levee give New Orleans the feel of an island city as much as a river city. Its humid, semitropical climate is kept from extreme temperatures by surrounding waters, and rainfall occurs throughout the year. The elevation ranges from five feet below sea level to fifteen feet above, with the highest ground bordering the river.² New Orleans geographer Pierce Lewis described the Crescent City as an “inevitable city on an impossible site.”³ Bienville’s 1718 decision for the siting of New Orleans was based on geographic reasons of accessibility and defendability, as well as a lack of better alternatives. According to Bienville:

      The capital city … is advantageously situated in the center of the French plantations, near enough to receive [their] assistance … and … reciprocally to furnish the settlers with the things they need … from its warehouses. Bayou St. John which is behind the city is of such great convenience because of the communication which it affords with Lake Pontchartrain and consequently with the sea that it cannot be esteemed too highly.⁴

      From its founding New Orleans’s commercially and strategically advantageous situation had to be balanced against its precarious site. After visiting New Orleans in 1722, Jesuit priest Pierre François Xavier de Charlevoix shared his ambivalent feelings about the city. On first arriving he praised the fertility of its soil, the mildness