Slavery, the Civil Law, and the Supreme Court of Louisiana.

Judith Kelleher Schafer. Slavery, the Civil Law, and the Supreme Court of Louisiana. Baton Rouge: Louisiana State UP, 1994. 389 pp. $45.50 cloth/$16.95. paper.

This very important book focuses on the evolution of law and the operation of slavery in antebellum Louisiana through the study of law and the effects of Americanization. It is based upon a unique and comprehensive body of data relating to slavery and the evolution of law in nineteenth-century Louisiana through cases heard by the State Supreme Court. The great bulk of these unique records have been deposited at the Earl K. Long Library of the University of New Orleans under the able, meticulous, and enthusiastic care of their archivist, Mary E. Windell. As the author states, "To my knowledge, no one has ever [before] done a study of slave law in any state in the American South using a body of original case records containing judicial decisions that span the entire antebellum period." These documents date between 1803 and 1862, when New Orleans fell to Federal troops during the Civil War. But Schafer also discusses some post-Civil War cases involving the validity of debts incurred over the purchase and mortgage of slaves. Going far beyond the usual study of judicial decisions alone, the writer studied the manuscript materials accompanying these cases, which allow for a greatly enriched and deepened discussion of the issues involved as well as of the evolution of attitudes and legal interpretations.

The writer discusses the representativeness of these cases which, on the one hand, are broad in that the Supreme Court did not have the right of refusal and therefore had to hear all appealed cases. But the costs involved limited most cases heard to wealthy appellants. There was a regional bias as well, since the Court met in New Orleans throughout the year and traveled to other parts of the state only during September and October.

Louisiana law operates under code rather than common law, although over time principles of common law based heavily upon legal precedent and case law crept into the system. Most of the Supreme Court justices of antebellum Louisiana were trained in common-law states, but Louisiana slave law continued to be influenced by formal codes inherited from the French and Spanish colonial periods.

It is not surprising, especially since this book remained in press for so long, that Schafer relies heavily upon somewhat dated publications about slave law from the French and Spanish periods. One of these weaknesses involves lumping judicial torture of slaves in French and Spanish Louisiana together. In French Louisiana, the most brutal forms of torture of prisoners were very common, but poor whites were also tortured, normally by a black slave executioner. Legal prohibition of slave testimony against whites was taken as fact, although blacks, slave and free, did in practice testify against whites in both French and Spanish Louisiana. French law prohibited the separate sale of husband and wife or a slave child under the age of 14 from either mother or father. This prohibition was, in fact, normally practiced in French Louisiana, but not in the French West Indies or in Spanish Louisiana.

Comparing the Louisiana experience with that of other Deep South slave states, Schafer concludes that Louisiana slave law was until 1850 milder in allowing for manumission. In antebellum Louisiana, self-purchase for manumission was allowed, but not forced. In other words, a master could allow a slave to be manumitted through self-purchase or purchase by others, but this was not an enforceable right, as it was under Spanish law. In antebellum Louisiana, a person held in slavery had the right to sue only when claiming to be illegally enslaved. While the writer attributes Louisiana's somewhat better record in allowing for manumission to the heritage of Spanish law, this argument is too narrowly legalistic. The truly open tradition from below of race relations in the state, the large and relatively prosperous free colored population and its ties to those Creoles deemed white, was no doubt an important factor as well. While the Black Code of 1806 restricted manumissions to slaves aged 30 or older, an 1831 amendment allowed slaves under 30 to be manumitted if they were natives of Louisiana. The fact that there were no manumissions by will contested before 1836 indicates a strong survival of the tradition of freeing concubines and children of free men, including whites. Paul Lachance's recent study of wills probated in New Orleans between 1804 and 1812 (Social Science History 18.2 [1994]) demonstrates that one-third of white men born before 1740, 25.8 percent born between 1740 and 1759, and 19 percent born between 1760 and 1779 indicated in their wills that they were involved in consensual unions with women of color and passed on property to their concubines and their natural children. All forms of manumission were outlawed in 1857.

Schafer's informative chapters dealing with manumission would have been enhanced by a discussion of flexible definitions of race in Louisiana and large-scale passing of mixed-bloods into the "white" population (see, for example, Virginia Dominguez's 1985 book White by Definition). The writer's definition of Creole as meaning white and Creole of Color meaning non-white is a confusing, inaccurate, and ahistorical distinction which caters to surviving racist sentiments and delusions of racial "purity" in Louisiana.

Schafer concludes that slaves accused of crimes were relatively better off under American than under colonial rule because they benefitted from provisions of common law which guaranteed them a trial by jury and due process, yet surely the jury was not of their peers. In fact, Schafer claims that crime was more brutally dealt with in antebellum Louisiana than in other slave states, and establishes that due process for slaves accused of crimes was formally rejected in principle by the Supreme Court. Under Spanish rule, concern about proper procedure in criminal cases involving slaves was sometimes quite impressive. A good example are the Mina slaves of Pointe Coupee, accused of conspiring to revolt: Their convictions were overturned because of the absence of attending witnesses and qualified interpreters during their initial interrogation (see chap. 10 of my 1992 book Africans in Colonial Louisiana).

Schafer's conclusion that Louisiana slave law most often placed "more value on humanity of slaves rather than of their status as property" is hard to defend. It is hard to separate the monetary interests of the masters in their slaves from the value placed on their humanity. What is most striking about the discussion of cases involving slaves accused of crimes is that, as brutally as they were treated, they enjoyed more protection as slaves who were an important piece of property to their masters than as blacks for an entire century following the Civil War. The scars left by this long history of ruthless, racist brutality will be with us for a long time to come.