Making Race in the Courtroom

The Legal Construction of Three Races in Early New Orleans

Kenneth R. Aslakson

• Publisher: NYU Press
• Year: 2014
• ISBN:
  9780814724866
• Topic: Histoire
• Subtopic: Histoire de l'Amérique du Nord

No American city’s history better illustrates both thepossibilities for alternative racial models and the role of the law in shapingracial identity than New Orleans, Louisiana, which prior to the Civil War washome to America’s most privileged community of people of African descent. Inthe eyes of the law, New Orleans’s free people of color did not belong to thesame race as enslaved Africans and African-Americans. While slaves were“negroes,” free people of color were gensde couleur libre, creoles of color, or simply creoles. New Orleans’screoles of color remained legally and culturally distinct from “negroes”throughout most of the nineteenth century until state mandated segregationlumped together descendants of slaves with descendants of free people of color. Much of the recent scholarship on NewOrleans examines what race relations in theantebellum period looked as well as why antebellum Louisiana’s gens de couleur enjoyed rights andprivileges denied to free blacks throughout most of the United States. This book, however, is less concerned with the what and why questions than with how peopleof color, acting within institutions of power, shaped those institutions in ways beyondtheir control. As its title suggests, Making Race in the Courtroom argues that race is best understood notas a category, but as a process. It seeks to demonstrate the role offree people of African-descent, interacting within the courts, in this process.

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 of its climate, and its proximity to “Mexico, the Havana, the finest islands of America, and lastly, to the English colonies.” With these observations he asked, “Can there be any thing more requisite to render a city flourishing?” Within just a couple of weeks, however, Charlevoix had changed his tune about New Orleans. Claiming that there was “nothing very remarkable” about the country around New Orleans, Charlevoix asked his readers to imagine “two hundred persons … sent out to build a city … who have settled on the banks of a great river, thinking upon nothing but upon putting themselves under cover from the injuries of the weather, and in the mean time waiting till a plan is laid out for them, and till they have built houses according to it.” Charlevoix complained about the marshy soils downriver from the city, whose “depth continues to diminish all the way to the sea.” “I have nothing to add,” he wrote dismissively, “about the present state of New Orleans.”⁵ The same ambivalence remained around the time of the Louisiana Purchase, as reflected in the comments of French-born traveler François Marie Perrin du Lac: “New Orleans, at which I arrived in six weeks, does not merit a favorable description. All that can be said in defense of its founder is that there is not for a great distance a finer, more elevated, or healthier position. If higher, it would be too distant from the sea; if lower, subject to inundations.”⁶

Despite New Orleans’s problems with regard to climate and terrain, it had all the potential to be a great port city due to its location at the terminus of North America’s largest river system. Americans moving west of the Appalachians after the colonists’ victory in the American Revolution coveted access to the Mississippi River and its port city of New Orleans because it assured them of greater access to markets for their agricultural products and raw materials. Echoing the sentiments of many American travelers to the city in the years leading up to the Louisiana Purchase, New York merchant John Pintard predicted in 1801 that New Orleans would “very shortly become a vast commercial emporium.” Thomas Jefferson summed up the city’s importance to the West in 1802 when he said “there is on the globe one single spot, the possessor of which is our natural and habitual enemy. It is New Orleans, through which the produce of three-eighths of our territory must pass to market.”⁷ The expansiveness of the Mississippi River seemed to predetermine the importance of New Orleans.

In fact, by the time of the Louisiana Purchase in 1803, New Orleans was emerging as one of the most important cities in North America, but it was not because of the western river trade. As the pages that follow demonstrate, during the Age of Revolution New Orleans was a Gulf city more than a river city. French and Spanish colonists had forged ties with the Caribbean that were reinforced by immigration and remained strong for decades after the Louisiana Purchase. The West Indian influence is reflected in the demography, the economy, and even the architecture of the period.

Migrants and Refugees: The Demography

Between the American Revolution and the Civil War, New Orleans experienced urbanization much more intensely than any other city in the Deep South. In general, as Douglass North has shown, “As the South shifted out of a diversified agriculture into cotton and its income increased, the effect was quite different from that generated in the Northeast by rising incomes from the re-export and carrying trade. Urbanization did not increase.”⁸ To be sure, Mobile, Savannah, and Charleston all grew along with the cotton trade. But Charleston’s growth from 16,000 residents in 1790 to 24,000 in 1810, for example, “was less than the rate of population growth for the country as a whole” and well behind that of other urban centers. New Orleans was the exception to the rule for cities in the South. The population of New Orleans grew rapidly and steadily, from 5,028 in 1785 to 27,176 in 1820, at which time it was the fifth most populous city in the United States.⁹ By the time Louisiana became a state in 1812, New Orleans had surpassed Charleston as the largest city in the Deep South, and this was just the beginning. By 1840 it was virtually tied with Baltimore as the second-largest city in the country with 102,000 residents.¹⁰

There were two main reasons for New Orleans’s rapid population growth in the late eighteenth and early nineteenth centuries. The first was directly related to the upheaval caused by the Haitian Revolution. In three main waves during the course of that revolution, tens of thousands of refugees fled St. Domingue (and smaller numbers fled Guadeloupe) for safer ground in Europe, North America, and the British and Spanish Caribbean. The first wave was set in motion by the burning of Cap Français in 1793, sending thousands of refugees to, among other places, the East Coast cities of the United States such as Boston, New York, Philadelphia, Baltimore, Richmond, and Charleston. The second wave occurred in 1798, when defeated British forces withdrawing from the war-torn island took shiploads of refugees with them to Jamaica. The final and largest wave came in 1803–4, after the insurgent forces led by Jean Jacques Dessalines defeated the French army. The great majority of these refugees fled to Cuba.¹¹

The influx of immigrants from the French West Indies into New Orleans eventually dwarfed that of Anglo-Americans, but only a small percentage of these refugees followed a direct route to the city due to the restrictive immigration policies of the Spanish government in Louisiana. Although the first refugee immigrants arrived in New Orleans as early as 1791, only about a thousand refugees came to New Orleans prior to the Louisiana Purchase, usually after spending some time in other American port cities or in the English or Spanish Caribbean. Among the early arrivers was Antonio Morin, the man who was greatly influential in the birth of Louisiana’s sugar industry.¹²

A thousand more refugees came to New Orleans during the first year of American rule, more than the total number of West Indian immigrants in the previous eleven years, because American policies toward the refugees were much more liberal than the Spanish policies had been.¹³ Many of these men, women, and children came from Jamaica, but others came from Eastern Seaboard cities in the United States. Several of these refugees, who were welcomed by the native French-speaking inhabitants, proved to be very influential on New Orleans’s society and culture. Louis Moreau-Lislet, for example, a refugee immigrant from St. Domingue in 1804, made an immediate impact on the legal system. He was appointed the first judge of the New Orleans City Court in 1806 and was the principal author of the 1808 Louisiana Civil Digest.¹⁴

By far the largest wave of refugee immigration into New Orleans came five years after the American takeover. Napoleon invaded Spain in 1809, and the French-speaking refugees in Spanish Cuba were forced to either take an oath of loyalty to the Spanish crown or leave the island. Between May 1809 and February 1810, nearly 10,000 St. Domingan refugees fled Cuba for New Orleans on dozens of vessels. These schooners, sloops, ships, brigs, and chebecks had telling names such as L’Esperance, Triumph, Republican, and Le Sauveur. The vessels carried as many as 417 passengers (the ship Beaver) and as few as 17 (the schooner Fanny).¹⁵ The captains of smaller vessels, such as the chebecks, sloops, and some of the schooners, had the option of taking either the Mississippi River or the Lake Pontchartrain route. The larger ships and brigs, on the other hand, had too deep of a drag to navigate Lake Pontchartrain and were thus required to sail up the river, at times a difficult task.

The 1809–10 refugee immigration increased the population of New Orleans and surrounding areas by close to 60 percent, creating housing dilemmas, food shortages, and general chaos.¹⁶ In the midst of the nine-month-long influx of refugees, Governor Claiborne expressed concern about the ability of the city to accommodate them. In an effort to put a halt to the immigration, he wrote to William Savage, the consulate to Jamaica, that “New Orleans and its vicinity are crowded with strangers; House Rent and Provisions are extravagantly high, families of limited resources find them soon exhausted, and the number of the poor and distressed are daily augmenting.” He asked Savage to inform any refugees who “should pass by the way of Jamaica, that it is advisable for them, to seek an asylum elsewhere, than in the Territory of Orleans, for the Refugees from Cuba, who have arrived here, are so numerous as to be embarrassing to our own citizens.”¹⁷ While Claiborne had encouraged Anglo-American immigration during the territorial period, he was worried about the influx of refugees. Clearly, Claiborne’s concerns had to do with more than just logistics. The “strangers” arriving from the West Indies daily were making it very difficult for the governor to comply with his charge to Americanize the city.

The second main reason for New Orleans’s population growth in the era was expansion of slavery in the lower Mississippi valley, which both produced a great demand for enslaved labor and encouraged immigration of whites seeking to benefit from the expanding economy. Between 1796 and 1810, nearly 10,000 African slaves passed through the port of New Orleans. This was the first major wave of Africans since 1743, when just under 2,200 slaves arrived in the Louisiana colony.¹⁸ Some of the trade in the later period was illegal, as the Spanish government, out of fears concerning the “contagion of revolution,” had prohibited the introduction of slaves on several occasions during the 1790s, and Congress briefly forbade the transatlantic slave trade in Louisiana almost immediately after the Louisiana Purchase. Between 1805 and 1808, a legal slave trade also developed that brought African slaves to New Orleans via other U.S. port cities, mostly Charleston, South Carolina.¹⁹ Most of these African slaves were purchased for labor on cotton, sugar, and indigo plantations in the region and did not remain in New Orleans. Nevertheless, the slave population in the city itself almost tripled from 1,631 in 1785 to 4,618 in 1810.

Anglo-American migration, primarily from the Mid-Atlantic and Chesapeake states, accounted for a modest increase in New Orleans’s white population in the era. In 1790 most of New Orleans’s white residents were of French descent. The small Spanish population consisted of mostly officials and their families, and there were only a few American merchants and German farmers. The plantation revolution that began in the middle of the decade brought in scores of Anglo-Americ...