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Race, slavery, and the law in early modern France.

During the seventeenth and eighteenth centuries much of France's Atlantic and Indian Ocean trade was tied up with the expansion of slavery. In the late 1600s, Louis XIV chartered two slave-trading companies in West Africa. Slave labor gradually began to replace indentured servitude in the Caribbean as sugar edged out tobacco production. During the 1700s, French planters established sugar, coffee, and indigo plantations off the coast of East Africa, modeled after those in the Americas. In India the French presence was primarily mercantile, not agricultural, yet slavery existed there as well in the form of domestic servitude. As the colonies prospered, many planters, merchants, state officials, and naval officers returned to France to do business and, no doubt, to flaunt their success. They were often accompanied by their slaves, who served their masters both as laborers and as symbols of the master's wealth. By the mid eighteenth century thousands of blacks, free and slave, had migrated to France.

Slavery, however, was illegal in France itself. The principle that a slave became free once he or she entered France had been recognized by French jurists since the sixteenth century, though it was never translated into royal decree. Hundreds of slaves won their freedom in French courts on the basis of this principle. The Parlement of Paris, France's highest court, refused to register two of the king's laws allowing a conditional slavery to exist within the kingdom. Ironically, it was the Parlement's refusal to register these laws that paved the way for a wave of racist legislation in the second half of the eighteenth century: despite a judicial tradition that frowned on slavery, French jurists embraced the notion that dark-skinned people were innately inferior to whites. Yet as one case, Francisque v. Brignon, shows, the notions of racial difference that undergirded the law were ambiguous at best.

The principle that "any slave who sets foot on French soil is free" was first promoted by Jean Bodin and Antoine Loysel in the sixteenth and seventeenth centuries. Both legal scholars cited statute and case law as precedent. Louis X's ordinance of July 1315 held that "following natural law, all men are born free. . . . Considering that our kingdom is called the kingdom of Francs, and wishing that the thing in actuality be in accordance with its name," the king ruled that those held in servitude could arrange for their freedom under "good and suitable conditions." Louis X's ordinance acknowledged the link between the name "France" and the condition of liberty implied in the word "enfranchise."(1)

Early modern lawyers used case law to argue that the freedom enjoyed by French citizens should be extended to anyone who arrived in France. They cited a 1402 case in which the syndic of Toulouse ruled that four slaves who had escaped to Toulouse were free by the privilege of that city. The Parlement of Bordeaux took similar action in 1571, when a Norman slave merchant attempted to sell a cargo of slaves in Bordeaux. The merchant was arrested and the slaves were freed.(2)

Problems arose by the late seventeenth and early eighteenth centuries, as increasing numbers of black slaves began to arrive in France as domestic servants for their colonial masters. Occasionally, they escaped and sought refuge with sympathetic French subjects. When masters took their slaves to court to reaffirm their property rights, the courts frequently upheld the slaves' right to freedom.

In 1716, the mayor of Nantes urged the king's ministers to draw up definitive legislation for use in cases involving black slaves. His proposals were ultimately incorporated into the Edict of October 1716. The edict established the conditions under which colonists could bring their slaves to France without losing them. Slaves could be brought to France for two reasons: for religious instruction or for training in a particular trade. To retain their slaves, owners were required to obtain permission from the colonial governors before departing, and to register their slaves at the nearest office of the Admiralty within eight days of their arrival in France. The only penalty for noncompliance with the 1716 law was the loss of one's slaves.(3)

The terminology of the edict is striking. Throughout, slaves are usually referred to as "esclaves negres" (Negro slaves) or "esclaves" (slaves). But in article 5 - which establishes the freedom of the slave as penalty for the owner's noncompliance with the law - the edict refers to them simply as "negres" (Negroes). Eighteenth-century dictionaries confirm that one connotation of the word negre was slave status. In French law, as in daily usage, there was a natural association of race with slave status in the eighteenth century.

With the Edict of 1716 in force, it appeared safe for slaveowners to bring their slaves to France. But in 1738 a celebrated case in the Admiralty Court of Paris, a lesser court within the jurisdiction of the Parlement of Paris, prodded the king's ministers to draft more stringent legislation. The case involved Jean Boucaux, a slave from Saint Domingue, and his master, Sieur Verdelin, a Frenchman who married the widow of a French colonist and brought Boucaux and another slave to France. Boucaux's lawyers charged that Sieur Verdelin, who was not a colonist himself, was taking advantage of the Edict of 1716 to import slaves without intending to return them to the colonies. Verdelin had fulfilled some of the requirements of the edict, but he neglected to ensure that the slaves' names were included in his letter of permission from the governor, and failed to register them within eight days of their arrival in France. The Admiralty Court of France ruled in favor of Boucaux, freeing him and ruling that his imprisonment during the trial be stricken from the record.(4)

Boucaux's lawyers argued his plea entirely on the basis of his status as a slave, not his race. The attorney general portrayed Boucaux as a Frenchman, a man "equal to us," and a citizen: "French, because he was born the subject of our monarch; our equal, as much by humanity as by the religion which he professes; and citizen because he lives with us and among us." The master's lawyer, on the other hand, tried to make an issue of Boucaux's race. He claimed that the principle extending freedom to all who entered the kingdom applied to "any slave other than a negro slave." Verdelin's lawyer maintained that "if a foreigner or a French merchant arrives in this kingdom with some American Indians [sauvages] that he claims are his slaves; or a Spaniard or an Englishman comes to this kingdom with negro slaves from the colonies of his nation," then the principle "once in France a slave is free" would hold true, and these slaves would be freed. In the case of "Negro slaves," however, the lawyer insisted that the principle ceased to be valid because French law - notably the Code Noir of 1685 - recognized Negro slavery in its own colonies as "necessary and authorized." If was legally enslaved in the French colonies, merely stepping on French soil was not enough to free him.(5)

We do not know why the judges decided to free Boucaux. Since they derided in his favor, it appears that arguments concerning his race were unpersuasive. Under the Edict of 1716, Boucaux was entitled to his freedom. Still, the fact that Verdelin - who intended neither to train his slaves in religion or a trade, nor to return them to the colonies - enjoyed the protection of the edict for more than eight years spurred the government into a crackdown on abuses of the law.

Immediately after the case was derided, the king issued a new declaration, designed to restrict the introduction of slaves into France. The Declaration of 1738 reiterated the requirements of the Edict of 1716. In addition, several new provisions were aimed at reducing the number of free blacks in France. Slaves who were brought to France in violation of the law were now to be confiscated, shipped back to the colonies, and sold to new owners (the king would pocket the profit), instead of being freed to live out their lives in France. The duration of a slave's stay was limited to three years, and owners were required to leave a 1,000-livres deposit if they expected their slaves to remain in France longer than that. Like the Edict of 1716, the Declaration of 1738 used the terms negres esclaves, esclaves negres, esclaves, and negres interchangeably, as though race and slave status were synonymous.(6)

Neither the Edict of 1716 nor the Declaration of 1738 was registered by the Parlement of Paris. Parlements occasionally opted not to register legislation that they did not support - one of the principle ways in which the struggle between the parlements and the monarchy manifested itself during the eighteenth century. Nonregistration meant that the Edict of 1738, though officially part of the law of France, was unenforceable. The fact that neither the 1716 law nor 1738 law was registered by the Parlement of Paris had repercussions for future cases.(7)

In 1759 the Parlement of Paris agreed to hear the appeal of a master, Brignon, whose slave, Francisque, had been freed by a lower court. The case marks a transition in French legal thought from the first half of the eighteenth century, when there was little differentiation between race and slave status, and the second haft of the eighteenth century, when race alone became the basis for many laws.(8)

Francisque was in some ways typical of the slaves who traveled to France from the colonies during the eighteenth century. Purchased as a young boy, he was brought to France as a domestic servant. Recent statistical studies of blacks in France, and especially Paris, suggest that young males were predominant among French blacks.(9)

Francisque was atypical, however, in one important respect: he was a native of Pondichery, India. The most accurate figures for this period indicate that only about 8 percent of the blacks in Paris at the time were born in India. The majority of French blacks (55 percent) originated in the Caribbean colonies of Guadeloupe, Martinique, and especially Saint Domingue. The remainder came directly from West Africa (10 percent); East Africa, including Mozambique, Madagascar, Ile de Bourbon, and Ile de France (17 percent); and French settlements in Canada and Louisiana (6 percent). Thus, the majority of French blacks were of African descent. The distinction between black Africans and East Indians became a pivotal point in Francisque's case.(10)

Francisque's master, Sieur Allain Francois Ignace Brignon, was a native of St. Malo in Bretagne. He came from a modest background, and as a young man he derided to go to sea to seek his fortune. In about 1747 he was trading in Pondichery, a French port on the southeast coast of India, about one hundred miles south of Madras. According to the legal brief filed later on Francisque's behalf, it was in Pondichery that Brignon, "drunk with the pleasure of astonishing his compatriots with the riches he had acquired," decided to purchase two young boys as slaves. He acquired Francisque, age 8, and his brother Andre, for the sum of eight rupees each. Because of the boys' youth, they were not especially useful to him, so he sent them to his mother in St. Malo, where she instructed them in the Catholic faith and arranged for theft baptism.(11)

Several years later, Brignon returned to France and built a large mansion in Paris. He had prospered during his voyages. His new home included a garden full of flowerbeds and arbors. He brought the two Indian boys to Paris, where their exotic background added to the home's atmosphere of luxury and opulence. In 1757, however, Francisque and his brother Andre, feeling that they were being mistreated, decided to seek work as valets for another employer. According to their lawyer, "As everybody knows, Indian blacks, completely unlike the negroes of Africa, are ordinarily good domestics; consequently they had no difficulty finding a new position."(12)

Their former master, Brignon, obtained an order to have the boys imprisoned. But in February 1758, the attorney general brought suit against Brignon in the Court of the Admiralty on the grounds that the young men had been freed by virtue of their arrival in France. The court found in favor of Francisque and Andre. Brignon brought a countersuit, charging that since he had put up 300 livres in surety, he should be allowed to seize the brothers. Francisque was transferred to the Conciergerie, but Andre escaped and was never heard from again. The suits and countersuits between Francisque and Brignon continued through the spring and summer of 1758, culminating in the Admiralty's decision that Francisque should be set free. But the persistent Brignon appealed the decision to the Parlement of Paris, where the case was heard the following year.

Francisque's lawyers in the Parlement of Paris based their case on two premises: first, that as an Indian, Francisque was not covered by the laws of 1716 and 1738, which applied only to "Negro slaves"; and second, that even if the judges ruled that Francisque should be considered a "Negro slave" under these laws, Brignon had failed to meet the requirements of those laws and had no right to keep Francisque as his slave.

Francisque's lawyers may have introduced the racial argument because, if successful, it would have restored Francisque's freedom entirely, whereas a victory based on Brignon's failure to comply with the Declaration of 1738 would simply have meant that Francisque would be confiscated by the king and resold into slavery in the colonies. The argument that Francisque was not really "a Negro" raises the question of how racial differences were construed in eighteenth-century France. At the time, European intellectuals in many fields developed a keen interest in the origin and nature of racial distinctions. The case of Francisque provides a view of the racial theories circulating among French practitioners of law.(13)

Having observed that Indians made better domestic servants than Africans, Francisque's lawyers sought to further differentiate between the two groups. The lawyers' description of Indian culture accentuated the similarities between Europe and India. "Indians are a free people," the lawyers asserted, and though the Hindus practiced an idolatrous religion, they were "ruled by laws, subject to monarchs, rich by the fertility of their lands, [and] perpetuated through an ancient filiation." The lawyers' portrait of Indian society differed little from European society, at least in terms of social structure.(14)

The lawyers then discussed the physical differences between Indians and Africans:

If, by the color of their skin, the individuals who are born on the banks of the Indus & the rivers which feed it, bear some resemblance to the negroes of Africa, they at least differ from the latter in that they don't have such a flat nose, such thick, protruding lips, and, instead of the wooly, frizzy down which covers the heads of Africans, they have long and beautiful heads of hair, similar to those which decorate European heads.

Again, the lawyers emphasized the similarities between Indians and Europeans, while drawing a strong distinction between Indians and Africans. The legal brief continued,

Such is Francisque: It suffices to see him to know that he has never spent a day on the burning sands of Guinea or Senegal. It is true that his nose is a bit large, his lips a little fat. But, disregarding his color, he looks more European than many Europeans who need only black skin to appear African.

Here the lawyers may have been alluding to the climatological theory of the origin of racial differences. Many eighteenth-century writers, notably Buffon, observed that the darker-skinned peoples of the world usually lived nearest the equator, and suggested that the sun's heat was responsible for differences in skin color.(15)

The evidence regarding physical differences was shaky at best. Careful comparison of the traits that Francisque's lawyers used to distinguish him from an African Negro shows that "frizzy" hair was the only salient physical difference between the two. At the same time, the lawyers' assertion that Francisque looked European but for his dark skin, implies that skin color was the only important difference between Indians and Europeans.

After underscoring Francisque's physical similarity to Europeans, the lawyers linked Africans' features to their servitude: "by their ignoble countenance, the negroes of Africa seem to be more especially destined to slavery than the blacks of Hindustan." Here the lawyers invoked ideas from Montesquieu's L'Esprit des Lois: "There are countries where the heat enervates the body and weakens the courage so much that men come to perform an arduous duty only from fear of chastisement." The notion that Africans were peculiarly suited to toil in the tropical sun was widespread, and a common justification for slavery in the French colonies. Francisque's lawyers no doubt assumed that the relationship between Africans and slavery was self-evident.(16)

The lawyers turned finally to their second line of defense, arguing that Francisque's master had failed to obtain the governor's permission in Pondichery and neglected to register Francisque with the Admiralty in Paris. Furthermore, Brignon's actions made it clear that he had no intention of returning Francisque to the colonies once his religious education was complete. In sum, Brignon was guilty of violating both the spirit and the letter of the law.

In August 1759 the Grande Chambre of the Parlement of Paris ruled that Francisque was free. The basis of their ruling is unclear; later cases, however, cited their ruling as precedent, linking the decision to the fact that neither the 1716 nor the 1738 law was registered by the high court.(17)

There is evidence that Francisque remained in Paris after his liberation. Eighteen years later, a young man from Pondichery named Francois Chavry - also known as "Francisque" - registered himself with the clerk of the Admiralty in Paris. His reported age of 32 would make him about five years younger than the Francisque who served Brignon, but at that time people were often imprecise about then' ages. When asked whether he was a slave or free, this Francisque responded that he was "et libre" - born free.(18)

Francisque's case before the Parlement of Paris marked a turning point in legislation regarding colonial blacks who came to France. Following the case, a series of laws was enacted restricting the rights of blacks in France. All of these laws were phrased in terms of race instead of slave status. For example, an ordinance issued by the Office of the Admiralty in 1762 ordered all "negroes and mulattoes" in France to register with the Admiralty. A sweeping declaration of 9 August 1777, known as the "Police des Noirs," established depots at all the major ports to retain "blacks, mulattoes, or other people of color" until they could be returned to the colonies. One arret de conseil issued in 1778 required "blacks, mulattoes and other people of color" to carry identification papers, while another prohibited marriages between "whites, blacks, mulattoes and other people of color." An order of 1781 prohibited "all priests, notaries, land surveyors and other public officials from giving any people of color the title of sir or dame."(19)

The change in legal terminology did not stem directly from Francisque's claim to freedom. Evidence suggests that the laws of 1716 and 1738 were unenforceable because the Parlement of Paris refused to register legislation containing the word esclave. In 1777 the minister of the Marine reported that the terms "slave and free cannot appear in the text of the law." Instead, the 1777 Police des Noirs used the phrase "cannot change status" to prohibit the sale, inheritance, or exchange of slaves, since the Parlement could not "refuse to adopt these terms." So, beginning in 1762, all laws concerning black slaves were couched in terms of race, not slave status.(20)

Francisque's case before the Parlement of Paris provides a window into the troublesome problems of race and slave status during the mid eighteenth century. Slave status was problematic because legal tradition extended freedom to any slave who arrived in France, even as France reaped enormous economic benefits from its slaveholding colonies. The government resolved the problem in the latter half of the century by framing legislation in terms of racial difference - even though, as Francisque's case shows, racial distinctions were not always clear. His case demonstrates that the judicial elite of France were willing to preserve the notion of France as the seat of liberty, while at the same time promoting the image of blacks as an inferior race.

1 Jean Bodin, Six livres de la republique (Paris, 1576), book 1, ch. 5; Antoine Loysel, Institutes coutumieres (Paris, 1607), book 1, ch. 6, no. 24.

2 The first incident was cited by Loysel, in Institutes coutumieres, 1:40. The second incident was cited as precedent in many eighteenth-century cases. See, for example, [Gayot de Pitaval], "Liberte Reclamee par un Negre, contre son Maitre qui l'a amene en France," in Causes Celebres et Interessantes, avec les Jugements qui les ont dicidees (Paris, 1747), 13:549.

3 "Memoire de Gerard Mellier, maire de Nantes, justifiant la traite des negres," Archives de la Loire-Atlantique, C742; Francois-Andre Isambert, Recueil general des anciennes lois francaises depuis l'an 420 jusqu' a la revolution de 1789 (Paris, 1830), 21:122-126.

4 Mallet, Memoire pour Jean Boucaux, negre, demandeur contre le sieur Verdelin, defendeur (Paris, 1738); Pitaval, "Liberte Reclamee," 492-586.

5 Pitaval, "Liberte Reclamee," 540, 526, 529.

6 "Declaration concernant les negres esclaves des Colonies," 15 December 1738, in Isambert, Recueil general, 22:112-115.

7 J. B. Denisart, "Negres," in Collection de decisions nouvelles relatives a la jurisprudence actuelle (Paris, 1775), 3: 312-313. On the eighteenth-century conflicts between the Parlements and the monarchy, see J. H. Shennan, The Parlement of Paris (Ithaca, N.Y., 1968), 4. See also Jeffrey W. Merrick, The Desacralization of the French Monarchy in the Eighteenth Century (Baton Rouge, 1990); Dale Van Kley, The Damiens Affair and the Unraveling of the Ancien Regime (Princeton, 1984); Jean Egret, Louis XV et L'Opposition Parlementaire, 1715-1774 (Paris, 1970); Bailey Stone, The French Parlements and the Crisis of the Old Regime (Chapel Hill, 1986); and James David Hardy, Judicial Politics in the Old Regime: The Parlement of Paris during the Regency (Baton Rouge, 1967).

8 Unless otherwise indicated, all of the specifics in the Francisque case come from the following document: Joly de Fleury, de la Roue and Collet, Memoire signifie pour le nomme Francisque, Indien de Nation, Neophyte de l'Eglise Romaine, Intime; contre le Sieur Allain-Francois-Ignace Brignon, se disant Ecuyer, Appellant (Paris, 1759), hereafter cited as Memoire.

9 Pierre Boulle, "Les gens de couleur a Paris a la veille de la revolution," in L'Image de la revolution francaise: Communications presentees lors du Congres Mondial pour le Bicentenaire de la Revolution, ed. Michel Vovelle (Paris, 1989), 1:161.

10 See Sue Peabody, "There Are No Slaves in France': Law, Culture, and Society in Early Modern France, 1685-1789" (Ph.D. dissertation, University of Iowa, 1993), ch. 5, for an analysis of the records of the Archives Nationales, Z1D 139.

11 Memoire, 3-4.

12 Ibid., 6.

13 See William B. Cohen, The French Encounter with Africans (Bloomington, Ind., 1980); Philip D. Curtin, Image of the African (Madison, Wis., 1964); and Winthrop Jordon, White Over Black American Attitudes Toward the Negro, 1550-1812 (Chapel Hill, 1968).

14 Memoire, 25.

15 Ibid., 25, 26; G. L. Leclerc comte du Buffon, Natural History, General and Particular, by the Count de Buffon, trans. William Smellie (London, 1812), 3:374-375. Claude-Nicolas Le Cat summarizes the prevalent theories on the origin of racial differences in Traite de la couleur de la peau humaine en general, de celle des negres en particulier, et de la metamorphose d'une de ces couleurs en l'autre, soit de naissance, soit accidentellement (Amsterdam, 1765), 1-23.

16 Memoire, 26; Charles Montesquieu, The Spirit of the Laws, trans. and ed. Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone (Cambridge, 1989), 251.

17 Nicolas-Toussaint Le Moyne Des Essarts, Causes celebres, curieuses et interessantes de toutes les cours sovereigns du royaume avec les jugements qui les ont decidees (Paris, 1775-1789), 36:80-83.

18 Archives Nationales, Z1D 139, 14 July 1777.

19 "5 Avril 1762. Sentence de reglement rendue en l'admiraute de la France concernant les declarations a passer pour les Negres et Mulatres," Archives Nationales Z1D 139. For the arrets de conseil, see Isambert, Recueil general, 25:81-84, 189, 257, and 27:107.

20 "Rapport au Conseil des Depeches, par M. de Sartine du Projet de Declaration dur la police des noirs, 9 August 1777," in Recueil des pieces relatives a la legislation sur la police des noirs, Bibliotheque Nationale, MSS francais 13357, 24-25.

Sue Peabody, who recently received her Ph.D. in history from the University of Iowa, is currently a research associate at Amherst College.
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Author:Peabody, Sue
Publication:The Historian
Date:Jun 22, 1995
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