Essay by Hans W. Baade
Louisiana has escaped the bifurcation of its private law into law and equity, but everything else in Louisiana law and legal history seems to be viewed in pairs of competing, hostile, or mutually exclusive categories. The present legal system itself is hybrid, consisting of civil-law and common-law elements, and every twenty years or so, there is a heated debate about whether Louisiana is more of a civil-law than a common-law jurisdiction, or vice versa. But the moorings and origins of Louisiana's civil-law tradition are also contested between friendly and not-so-friendly twins. Did French or Spanish elements predominate in the Civil Code (or Digest) of 1808? Was the ancien droit of France displaced by the law of Castile and of the Indies between 1769 and 1803, and if so, where and to what extent? And to take up another theme: To what extent did the civil-law component of Louisiana law at any given time reflect Roman law rather than the Custom of Paris or Castilian law?
Professor Palmer has discussed a variant of the dichotomy last mentioned by tracing the pre-history of the Code Noir of French Louisiana. That Code, we now know, was put into effect in French Louisiana in March 1724, and on August 27, 1769, General O'Reilly expressly confirmed its continuing effectiveness in the initial, transitory period of direct Spanish rule. As has been shown elsewhere, however, and as is now more fully documented in Hanger's work, Spanish slave law soon thereafter replaced the Code Noir in Spanish Louisiana. It seems no longer open to dispute that officially, at any rate, and as administered in and from New Orleans, the law of Castile and of the Indies replaced the ancien droit of France in the Spanish ultramarine Province of Louisiana from November 25, 1769 to November 30, 1803.
Once again, however, there was a bifurcation of the legal system. As I hope to have shown elsewhere, the law of Castile and of the Indies then prevailed, in the Spanish language and in Spanish tribunals advised by a genuine Spanish lawyer, in New Orleans. It was quite different, however, at the posts, where Francophone commandants dispensed their variants of justice to Francophone colonists. This traditional jurisprudence did not prevail in cases appealed or removed to New Orleans, but it helped keep alive the memory of French law, including the Code Noir. The French interregnum before Napoleon's cession of Louisiana to the United States lasted only three weeks (November 30 to December 20, 1803), but in those twenty-one days, the French Prefect (Laussat) found time to reenact that Code.
The years following, well-described by Schafer, saw yet another bifurcation of Louisiana law or, perhaps more accurately, a cascade of bifurcations. The bifurcation between the civil-law tradition and common-law intrusions is still with us today. It did not extend (or it did not extend directly) to the law of slavery. Louisiana slave law, however, underwent a series of bifurcations. First, the maintenance, discipline, and punishment of slaves, as well as their emancipation, were regulated by separate statutes, enacted in 1806 and 1807, respectively. Second, the Civil Code (or Digest) of 1808 regulated the private law side of the relations between slaveowners and slaves, so that Louisiana slave law under United States rule became divided into a public- and private-law component. Finally, the private law of slavery in Louisiana, too, was at least initially a dual system, for Spanish law continued to be applicable, at least as suppletory law, along with the 1808 Civil Code (or Digest) and even with the Civil Code of 1825 until expressly repealed in 1828. By that time, we will see, one of the characteristic features of Spanish slave law had passed into Louisiana jurisprudence and was already reflected in the Civil Code enacted in 1825.
Thus, antebellum Louisiana slave law, about which we have learned so much recently from Schafer, was a doubly bifurcated system. It was divided into public- and private-law components, which were in use in Continental Europe but not in vogue in the United States. The private-law components, which were codified in the Civil Code, governed the relations between master and slave—a relationship that was classified as a variant of the master-servant relationship and was placed in the “Persons” (or status) part of the tripartite institutional arrangement familiar to civilian lawyers. The public-law components, consisting mainly of a Sonderstrafrecht for the subjected race and of constraints on the freedom of manumission operating ex officio, were codified in separate enactments outside the Civil Code. Private slave law, too, was bifurcated, consisting of elements drawn from the French Code Noir and from Spanish slave law. As we will see, this latter bifurcation, which is the main subject of the present Essay, is most readily apparent in the regulation of self-purchase by slaves.
Before turning to that subject, yet another set of bifurcations needs mention. These are the bifurcations on the paths taken by historians of slavery in the Americas. First and foremost, there is the Fifty Years' War over the “Tannenbaum Thesis.” The eponymous author of that thesis and his followers maintain that the Roman-law traces in Spanish and French slave law, in combination with the pervasive authority of an all-embracing Roman Catholic state church, produced a system of slavery that was more benign than the common-law or “Virginia” variant prevailing in the North American colonies of Great Britain.
This proposition has been strongly attacked by other historians, including students of slavery in Louisiana. Concentrating on aspects of everyday life such as exposure to cruelty and to debilitating amounts of working, they have shown that the living conditions of the slaves in Francophone Louisiana were particularly brutal. That led David Rankin to the conclusion that “Louisiana's Latin heritage failed to soften slavery, encourage manumission, or foster egalitarian race relations.”
Historians of slavery in Louisiana are also divided over another more specialized thesis advanced in some more recent studies. Such studies are of respectable, if partisan, lineage. The thesis advanced is that within what has been called the Latin—i.e., civil law—Roman Catholic groups of slave-law systems, Spanish slave law was more favorable to slaves than was French slave law. That thesis has its probable origin in a lengthy report, or informe, filed with the Council of the Indies at its request in January, 1792, by the former Spanish Intendants of Caracas, Havana, and Louisiana. The Council was at the time considering the representations of the inhabitants of these intendancies, and of Santo Domingo, against the local promulgation of the famous Cedula of May 31, 1789, on the Education, Treatment, and Employment of Slaves. After a brief summary of the law of slavery since antiquity, the informe noted that in modern times, slaves received “incomparably milder” treatment in Spanish overseas possessions than in the American colonies of France, England, or the Netherlands. One of the results of this mild treatment, they pointed out, was the much more favorable ratio of freedmen to slaves in Spanish possessions.
The Intendants attributed the mildness of the Spanish system of slavery, as compared with other European slave systems then in place, to three factors. These were the protective concern of the Spanish sovereigns for the Indians, which by analogy extended to slaves as well; the constant protection of these disadvantaged castes by judicial and ecclesiastical authorities; and, finally, “la sabiduria de nuestras leyes patrias, que adoptando unicamente la parte benigna de la legislación romana, cinerón los derechos de la esclavitud a los precisos terminos de la necesidad.”
In particular, the informe pointed to three institutions of Spanish law that had “suavizado la esclavitud hasta un grado desconocido en las demas naciones.” First, masters did not require official permission for the manumission of their slaves. Second, Spanish law enabled slaves to purchase their freedom, and that of their wives and children, by paying their purchase price to their masters. Finally, Spanish tribunals were open to slaves who complained of the cruelty of their masters, and when mal trato was established, the judge was empowered to sell the slave to another master.
In this Essay, an attempt will be made to determine the accuracy of the main thesis of the three Intendants that Spanish slave law, in contradistinction to, among others, French slave law, had adopted “solely the benign rules of Roman law, and had limited the rights of slave owners to those which were strictly necessary” for the existence of slave law as such. Discussion is limited to two of the three institutions of Spanish slave law mentioned by the Intendents in support of that thesis: the absence of public-law constraints on voluntary manumission by slave owners and the right of compulsory freedom purchase by slaves.
About the Author
Hans W. Baade. Hugh Lamar Stone Chair in Civil Law, University of Texas School of Law.
Citation
70 Tul. L. Rev. 1481 (1996)