The customs of slavery: The war without arms

American Journal of Legal History

Volumn 48, Issue 2, 2006, Pages 177-218

  Palmer, Vernon Valentine ^a  

^a NONE

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EID: 34548337270     PISSN: 00029319     EISSN: None     Source Type: Journal    
DOI: 10.2307/25434791     Document Type: Review

References (182)

1. Thomas Pickles Professor of Law, Director of European Legal Studies and Co-Director of the Eason-Weinmann Center of Comparative Law, Tulane University, vpalmer@tulane.edu I wish to thank Judith Schafer, Alan Watson, Rebecca Scott and Jonathan Nash for reading this article in manuscript and for their helpful suggestions. All shortcomings are of course mine. The article's subtitle was inspired by Justice A.P. Anyebe's Customary Law: The War Without Arms (Fourth Dimension 1985).
2. Philip J. Schwarz, Slave Laws in Virginia, 2 (Georgia Press 1996).
3. The 1784 slave code for Santo Domingo by Augustin Domingo is the lengthiest I have found. It contains 181 laws, distributed in 37 chapters, the overall text constituting 79 printed pages.
4. See Theodore Wilson, The Black Codes of the South (Ala. Press 1965) "Slavery came about by the force of practice; the earliest laws merely gave legal sanction to established usage." See also E.V. Goveia, The West Indian Slave Laws of the 18th Century (Univ. of West Indies 1970) "Law is not the original basis of slavery in the West Indian colonies.... Before the slave laws could be made, it was necessary for the opinion to be accepted that persons could be made slaves and held as slaves." (p 10). Other scholars, however, argue that the slave laws of the New World were inspired by or borrowed from earlier precedents within the legal tradition. See Bradley Nicholson, "Legal Borrowing and the Origins of Slave Law in the British Colonies" 38 Am. J. Legal Hist. 38 (1994); Alan Watson, Slave Law in the Americas (1989).
5. See infra, Section I.
6. Alexander Johnston, "Slavery" in Cyclopaedia of Political Science (N. Y. 1899).
7. The Morality of Law 234 (Yale 1969).
8. See infra Section V.
9. Ariela Gross, "Beyond Black and White: Cultural Approaches to Race and Slavery" 101 Colum. L. Rev. 640 (2001). Professor Gross rightly notes that histories of African-American culture had been written as though law was largely irrelevant, while legal histories of slavery tended to focus upon the opinions of high courts and the laws enacted by legislatures, thus ignoring extra-legal sources of norms. She argues that the new field of cultural-legal history is now breaking down the barriers between "legal history" on the one hand, and "social history using legal records" on the other, (at 643).
10. Provisions in Spain's Codigo Negro (1789), for instance, repeatedly cross-reference the reader to "la costumbre de Pais". See e.g. Cap. I, Christian schooling of slaves ordinanly held on festival days, but not where custom recognizes an exception at harvest time; Cap II, quantity and quality of clothes or food furnished to slaves must conform to "la costumbre del Pais". See Javier Malagon Barcelo, Codigo Negro Carolina (1784) , Annex III at p 270 (Santo Domingo 1974). Cross-referencing to custom is equally found in Louisiana's Black Code of 1806, e.g., sec 7 "That as for the hours of work and of rest, which are to be assigned to slaves in summer and winter, the old usages of the territory shall be adhered, to wit: [....]" Acts of Louisiana, 1806.
11. Thus when the Cabildo sought to revise Louisiana slave law in 1778, the draft took aim at what Louisiana planters perceived to be the most objectionable customs, such as the right of slaves of different plantations to marry each other, the practice of hiring out and the Spanish institution of coartación. See infra Sec. I.
12. Schwarz, supra note 2 at p 5 ("The customary law of slavery is useful as the basis for constructing a model of the interrelationship between masters' and slaves' behavior and the changing law of slavery.")
13. This expression is not used here in a technical way. In the literature on slavery this expression has been applied to almost every New World slave regulation shaped by French, Spanish and American influences, undoubtedly because slavery in that context was always equated with black enslavement. Actually relatively few enactments employ the expression in their official title. (An exceptional example is the 1806 legislation in Louisiana, discussed infra Sec. I.) The term "code" is used quite loosely, only connoting a legislative act of some sort and no guarantee of comprehensive treatment. In reality this is a popular expression applied to any laws regulating African slavery.
14. Robert Shaw states in his preface: "...the laws of slavery frequently did not reflect accurately the realities of that institution. On relatively isolated plantations, and with slaves denied any access to the courts or the right to testify, "justice" was usually a private mat-ter....And it is also clear that many enactments were seldom enforced and, indeed, remained as almost dead letters in the statutes. This applies to laws both for the control and punishment of slaves and those for their protection." A Legal History of Slavery (Northern Press 1991).
15. I should signal that there is an important complication to this historical account. As we move from French slave law to Spanish law, or from Spanish law to laws passed in the American period, it is never stated that the former law is abrogated in its entirety. As a matter of principle, there would be "implied repeals" in places of substantive incompatibility between two laws, but where the laws and/or the customs were not incompatible, there may have been a kind of legal accretion. Unfortunately we cannot be sure that legal actors saw the matter in terms of this principle, at least not until the American period when the judiciary clearly adopted the principle.
16. By 1654 there were already 12,000 slaves distributed in St. Christophe, Martinique and Guadeloupe. Alfred Martineau & Louis Philippe May, Trois siècles d'histoire antillaise, Martinique et Guadeloupe 23, 29 (1935).
17. For details see Vernon Valentine Palmer, "The Authors and Origins of the Code Noir" 56 La. L. Rev. 1 (1995); this essay is also found in Vernon Valentine Palmer, The Louisiana Civilian Experience, pp101-134 (Carolina Academic Press 2004). See also, Louis Sala-Molins, Le Code Noir ou Le Calvaire de Canaan (1987); Gabriel Tardieu, Le Destin des Noirs aux Indes de Castille (1984).
18. For example, under Art. 30 the crime of slave theft was limited to stealing farm animals and farm produce. Under art. 6, required rest on Sunday meant freedom from "the cultivation of the land and the manufacture of sugar". Only exceptionally does the Code break out of its rural immediacy. See art. 29.
19. The custom is mentioned in an arrêt dated 13 Jan. 1682 of the Sovereign Council of St. Christophe, which the Code drafters quoted in their Mémoire au Roy de 20 mai 1682.
20. See Lucien Peytraud, L'Esclavage aux antilles francaise avant 1789, 23 (1897).
21. See http://perso.wanadoo.fr/yekrik.yekrak/.
22. Arts. 23, 24 (1685).
23. Arts. 6, 7.
24. Art. 9.
25. Robert Shaw, supra p 7.
26. See Gwendolyn Midlo Hall, Africans in Colonial Louisiana, 60 (Table 2) (LSU 1992).
27. In an ordonnance of 1713 the liberal powers of manumission under the Code Noir were cut back in the French islands and this was incorporated in the 1724 code issued at New Orleans. Under the ordonnance an owner needed written permission from the Governor-General and Intendant to free his slave, thus requiring the necessity of stating a good reason for the emancipation, not merely natural feelings caused by blood connection. According to a legislative Mémoire written in Guadeloupe, "Out of 100 enfranchisements 5 at most have a praiseworthy motive. The 95 others were given to favorite concubines and some of their children." Maurice Satineau, Histoire de la Guadeloupe sous l'ancien regime 315 (1928). The Governor-General was prompted to write, "If we do not hold the line ...there will be four times the number of enfranchisements, because there is here great familiatiy and freedom between masters and negresses 'qui sont bien faites.'" (my translation) Of course this was to be Louisiana's destiny as well. "In reality antebellum Louisiana was a three-tiered society." Judith Schafer, Slavery, The Civil Law and the Supreme Court of Louisiana 20 (LSU 1994).]
28. Cf. art. 55 (1685) with art. 50 (1724).
29. Cf. Art. 9 (1685) with Art. 6 (1724).
30. Art. 52(1724) This was part of the policy of restricting emancipations.
31. Art. 18(1724). Cf art 22 (1685).
32. Art. 5 (1724) The 1751 Regulation of Police decreed by the Governor, the Marquis de Vaudreuil has been left out of this discussion. This Regulation dealt in part with slavery but with little relevance to my subject. An abstract of it is found in the appendix of Charles Gayarré, History of Louisiana, VoI II, The French Domination (New Orleans 1879).
33. Infra Section II.
34. Henry P. Dart, "A Murder Case Tried in New Orleans in 1773," 22 L. H. Q. 623 (1939). Hans Baade, "The Law of Slavery in Spanish Louisiana, 1769-1803" in Louisiana's Legal Heritage, pp. 43-86. (Haas ed. 1983).
35. Berlin writes that during the period 1769-1779 three hundred cartas were registered in New Orleans, which was many times the number that had been issued during French rule. Ira Berlin, Many Thousands Gone 212 (Harvard 1998).
36. See Re Negress Angelica, 11 La Hist. Q. 37, March 1772 (Caterall p 426); Blaquet v. Maney, 9 La. Hist. Q. 149, January 1773 (Caterall 426); Catalina v. Fazende and Boré, 9 La. Hist. Q. 556, June 1773 (Caterall 427); Maria Juana v. Suriray, 11 La. Hist. Q. 333, February 28 (1776) (Caterall 432).
37. McGowan, pp 175-177. Manumission must have been easier during Spanish rule since the number of free persons increased dramatically. At the end of French rule, there were only 165 freed blacks, whereas by 1785, there were 1,175 free blacks out of some 15,000 slaves. Shaw, supra, at 100. The de facto closing of the slave trade after 1731 and the resulting scarcity of slaves in the colony, however, was already sufficienrt reason to discour-gage manumission in the French period.
38. The protection reappeared, in greatly diluted form, in the American period. The Civil Code of 1808 said that where the master was convicted of cruel treatment of his slave, the slave was to be sold at public auction "in order to place him out of the reach of the power which his master has abused." Art 27, p 42 (1808).
39. For example in 1775 a plaintiff sought to apply the Code Noir provisions "ordered to be observed by ...Count O'Reilly" with respect to the daily amount to be paid in hiring a slave. Chaperon v. Mrs. Dupard, 11 La. Hist. Q. 156, February 1775 (Caterall p 432).
40. James McGowan, Creation of a Slave Society: Louisiana Plantation in the Eighteenth Century (Diss. Univ. of Rochester, 1976).
41. See Carondelet's Decree of 1795, discussed below in the text accompanying notes 54-57.
42. The phase 'necessary to public subsistence' was used in the Cabildo's projet of a slave code, 1778-1779, art.5.
43. Hans Baade, "Marriage Contracts in French and Spanish Louisiana: A Study in 'Notarial' Jurisprudence" 53 Tul. L. Rev. 1 (1978). For a socio-cultural explanation for the "return" of French law after Spanish rule , see Vernon Valentine Palmer, The Louisiana Civilian Experience 75-82 (Carolina Acad. Press 2005).
44. Gilbert Din, Spaniards, Planters, and Slaves: The Spanish Regulation of Slavery in Louisiana, 1763-1803, p 76 (Texas A&M 1999).
45. Baade, supra at p 65.
46. This is the consensus view, but Thomas Ingersoll argues from circumstantial evidence that it did go into effect. See "Slave Codes and Judicial Practice in New Orleans, 1718-1807" 13 Law and History Rev. pp53-54 (1995).
47. Thomas Ingersoll believed it at least accurately reflected the inclinations of Louisiana slaveowners and the actual administration of justice.
48. Ibid. The practice of leasing slaves to themselves meant that slaves paid the master a proportion of their earnings and retained the balance for themselves, perhaps until they had accumulated enough to purchase their freedom. The practice was considered widespread in New Orleans amongst skilled slaves. John Kendall, "New Orleans' 'Peculiar Institution' " 23 La. Hist. Q. 864, 872 (1940).
49. Art. 22.
50. Siete Partidas stated that slaves could marry even when their master was opposed, whereas the Code Noir insisted that the master's approval was necessary. Part.4, Tit.5, Law I. In 1772, Governor Unzaga ordered that a marriage ceremony could take place between Vicente and Maria Francisca, though it was contrary to the wishes of Vicente's master who attempted to prevent the ceremony. The governor wrote that "our laws allow it, and the King orders, in his most recent royal cédulas on the government of this province, that the negro can always follow his master and the negra hers...." Gilbert Din, Spaniards, Plantations, and Slaves 57 (Texas A&M 1999).
51. Creation of a Slave Society: Louisiana Plantations in the Eighteenth Century 279 (Dissertation: Univ. of Rochester 1976)
52. Jerah Johnson, Congo Square in New Orleans 17 (Wilson Publications 1995).
53. The planters' remonstrations are set forth by Jo Ann Carrigan, "The Spanish Domination and the Cession to the United States, 1969-1803" pp 384-386 in Fortier's History of Louisiana (Claitor's 1972).
54. Library of Congress, Louisiana Papers, AC 1333.
55. Ibid. p 601.
56. "The Syndics shall persuade the Inhabitants of their District to assign Fields to their slaves, for their own cultivation, and to their use, which will not only put them more at their ease, but also increase the mass of the productions of the province, and advantageously employ the time they might otherwise spend in riot and debauchery." Ibid. p 601. The Decree also stated, perhaps with an eye to limiting customary rights of slave ownership, that "No Slave shall be permitted to sell any thing without the permission of his master, not even the production of their own Fields, ...No slave is permitted to possess a Horse of his own..."
57. Ibid. p 601.
58. Baade, supra 71-72. According to Laussat's memoirs, "the members of the local government tormented me to sanction yet one more decree relative to the regulation of the Negroes. ... They came back to the charge several times. I kept refusing on the grounds that this was on the eve of my laying down my ephemeral power. Finally, I gave in." Ibid. Interestingly, his arrêté of 17 Dec 1803 took care not to exhume all of the Code Noir. He excepted provisions establishing Catholicism as the exclusive religion for slaves and free persons, on the ground that it was contrary to the Constitution of the United States.
59. Acts of the Second Session of the First Legislature of the Territory of Orleans, Chap. X, pp 82-86, March 9, 1807.
60. Sections 2, 3 (1807). Coartación was also suppressed by the Civil Code of 1808, Art. 27, p 42, quoted below, note 61.
61. Thus, by way of partial summary, Book One, the law of Persons, defined the condition of slavery and differentiated the condition of manumitted and naturally free persons. Arts. 13,14,15, p10. In this definition, "A slave is one who is in the power of a master and who belongs to him in such manner, that the master may sell him, dispose of his person, his industry and his labor, and who can do nothing, possess nothing, nor acquire any thing, but what must belong to his master." The Civil Code also recognized slave marriage with the master's consent but declared such marriage produced no civil effects. Art. 23, p40. It prohibited marriage between slaves and free persons, Art 8, p24, listed the slave's various incapacities, arts. 17,18 p40, and stated the rule that children follow the condition of their mother, art. 24 p40. It said that a master may manumit his slave but only in the form required by special laws, art 25 p40 and in an obvious attempt to suppress involuntary manumission or coartacion, it declared that "No master of slaves shall be compelled either directly or indirectly to enfranchise any of them...." Art. 27 p42. Book Two, the law of Property, established that slaves are immovables by operation of law, art 19 p99m and by right of accession, slave children are the property of the mother's owner. art. 19 p99. Book Three declared that slaves are incapable of receiving donations and transmitting successions, art. 64 p 159, art. 5 p209, of witnessing a will or of entering contracts, art. 105 p232, art. 23 p265. Masters were responsible for a slave's delicts, art. 21 p323, and the redhibitory action applied to the sale of slaves, art. 79 p 358, art. 80 p 358.
62. For example the rule that the master is not discharged from his duty to feed the slaves by permitting them to work certain days of the week for their own account was taken verbatim from the old Code Noir. The rule had not been repeated in any statute or draft since 1724.
63. For example article 10 declaring that slaves are real estate and subject to mortgage and to be seized and sold as real estate. Most important for the future, Spanish principles would remain the background to fill the lacunae and interpretative gaps in this and other slave statutes.
64. Sec. 1, La. Act of June 7, 1806. This Act is conveniently found in the General Digest of the Acts of the Legislature 1804-1827, vol I (1828) compiled by L. Moreau Lislet. The Legislature, however, attempted to restrict the operation of this rule to the plantation setting. Slaves employed as servants, carriage drivers, and hospital workers were not covered.
65. Ibid., Sections 2-3.
66. Jerah Johnson describes how officials used this fiction at Congo Square in New Orleans: "Throughout the French period the market activities of slaves remained in legal limbo. The Code Noir expressly forbade slaves to do any kind of work on Sundays and holy days, to own any kind of property, to conduct any kind of trade on their own account ... without written permission. On the other hand the slave entrepreneurs provided much needed supplies to a city frequently ...short of foodstuffs. The solution was for the authorities simply to do nothing and say nothing, and "assume" that the slave vendors were selling goods for their masters, and with permission. Hence the absence of any official mention of the market is not surprising." Supra note 52, at p 13 (my emphasis).
67. "All that a slave possesses belongs to his master, he possesses nothing of his own, except his peculium, that is to say, the sum of money or moveable estate which his master chooses he should possess." Projet of the Civil Code of Louisiana of 1825, p 14, Louisiana Legal Archives, Vol. I (New Orleans 1937).
68. Professor Baade reads the Code Noir (1724) and the later Black Code (1806) as depriving slaves of the capacity to own property without the consent of their masters, which he asserts was in contrast wth the freedom of the slave under Spanish law to have his peculium. "The Law of Slavery in Spanish Luisiana 1769-1803 pp 72, 74-75 in Edw. Haas (ed.) Louisiana's Legal Heritage (Pensacola 1983). See infra, section III. His view has been followed by Judith Shafer Slavery, the Civil Law, and the Supreme Court of Louisiana 6 (LSU 1994). I disagree to the extent that the learned authors seem to ignore the custom and therefore ignore the fact that French law and Spanish law on the peculium were substantially the same.
69. There were of course biblical underpinnings: Exodus 20 "...the seventh day is a Sabbath to the Lord your God; you shall not do any work - you, your son or daughter, your male or female slave, your livestock, or the alien resident in your towns."
70. Code Noir, Art. XXIII.
71. Antoine Simone Le Page du Pratz, Histoire de la Louisiane, vol I, 352, (Paris 1758).
72. Dumont observed, "Most of the slaves clear grounds and cultivate them on their own account, raising cotton, tobacco, &c. which they sell. Some [masters] give their negroes Saturday and Sunday to themselves, and during that time the master does not give them any food; they then work for other Frenchmen who have no slaves, and who pay them. Those who live in or near the capital generally turn their two hours at noon to account by making faggots to sell in the city; others sell askes, or fruits that are in season." Memoires historiques sur la Louisiane (Paris 1753) and quoted from Jerah Johnson, infra note 52 at p 7.
73. Jerah Johnson, Congo Square in New Orleans 12-13 (Wilson Publications 1995).
74. Code Noir, Art. II.
75. Code Noir, Art. VII.
76. Code Noir, Art. V.
77. Code Noir, Art. V.
78. There is one report of a violation of this provision. Father Mathias, the Curé of New Orleans, and Vicar-General, on learning that a baptized slave girl belonging to the Treasurer-General of New Orleans had died and been interred in the garden of her owner, filed a formal complaint with the Conseil Superieur. The claim was founded upon Article XIV of the Code Noir which required baptized slaves to be buried in consecrated cemeteries. The Conseil fined the Treasurer-General thirty livres and ordered that the body be exhumed and reinterred in the cemetery according to the rites of the Church. Vicar-General v. Treasurer-General, 38 L.H.Q. 11.
79. Baudier, The Catholic Church in Louisiana 77 (New Orleans 1939).
80. Ibid. p 140.
81. Ibid. p 128.
82. Taylor, supra. Mary Veronica Miceli credits the Capuchins with devoting considerable attention to slaves, "baptizing thousands". As to reported neglect of religious instruction, she writes, "Despite these complaints, a solid foundation of Catholicism ...had been laid." The Influence of the Roman Catholic Church on Slavery in Colonial Louisiana under French Domination, 1718-1763, 57 (Tulane dissertation 1979). The church registers in fact record many baptisms of slaves, but relatively few marriages. Baudier, supra 126-127. The infrequency of slave marriages in the Spanish era, according to Gilbert Din, is explained by the attitude of the planters who preferred to buy and sell black male laborers individually, not in families. Din, Spaniards, Planters, and Slaves: The Spanish Regulation of Slavery in Louisiana 1763-1803, p 127 (Texas A&M 1999).
83. See Carl A. Brasseaux, "The Administration of Slave Regulations in French Louisiana, 1724-1766" 21 La. History 139. Brasseaux argues that the French Attorney Generals practiced selective enforcement of slavery regulations, and took the view the Code was subject to "two governments", that of public authority and that of domestic authority. This led them to make concessions to local mores and to ignore code articles that undermined the owner's authority.
84. Carrigan supra, p 380.
85. Ibid.
86. See Laura Porteous, "Civil Procedure in Louisiana under the Spanish Regime as Illustrated in Loppinot's Case, 1774, XII Louisiana Historical Quarterly 33-120 (1929). The set of documents relating to this case is translated into English.
87. Ibid. at p 56. Villeneuve also pointed out that when Mulet crossed the river he was pursuing his own ends. He was not returning home because "my plantation and his master's are on the same side and he did not have to cross." He compared his death to a thunderbolt or some other accidental cause. Ibid at p 105.
88. Quoted from Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North America, 202 (Harvard 1998) at note 17.
89. On this contention, see Jerah Johnson, supra note 52 at p 8.
90. The Louisiana Supreme Court followed this same principle in interpreting the custom. If a slave died during Sunday work due to the fault and misconduct of the party hiring him, the latter was liable to the owner. Niblett v. White's Heirs, 7 La. 253 775 (La 1834).
91. Frederick Law Olmstead, The Cotton Kingdom 323 (Modern Lib. 1984).
92. V. Alton Moody, Slavery on Louisiana Sugar Plantations 62 (1924), reprinted from (1924) L. H. Q., April issue.
93. Black Life on the Mississippi 92 (N.C. Press 2004).
94. Ibid. Other sources of personal income for slaves came from passenger tipping and produce trading wherein slaves benefited from an "ancient marine custom" which allowed boat workers to transport without paying shipping fees a limited amount of their own pro-duce to urban markets along the river. Ibid. pp 93-94.
95. Rice v. Cade et al, 10 La. 288 (1836).
96. See Hans Baade, "The Law of Slavery in Spanish Louisiana 1769-1803", in Louisiana's Legal Heritage (Haas ed.) at p. 50.
97. Ibid. p 50.
98. See Part. III.5.5 and III.29.13. See also Moreau Lislet's references to Justinian's Digest in the treatment of peculium under the Civil Code of 1808. In the de la Vergne manuscript he refers to the peculium by citing the Digest directly and Rodriguez's translation of the Digest. Under the code of 1825 the peculium is specifically provided for: "All that a slave possesses belongs to his master; he possesses nothing of his own, except his peculium, that is to say, the sum of money or moveable estate which his master chooses he should possess." Projet of the Civil Code of 1825, p. 14 (La. Leg. Archives 1937). As the source of this provision the drafters cited Roman law and the usages of Louisiana. One therefore finds little justification for Professor Baade's statement that peculium in the Roman-Spanish tradition gave the slave a different property right than in the Roman-French tradition. The sources are basically the same.
99. Part. IV, 21.7
100. As already mentioned supra note 72, the system was described in Dumont's Mémoires Historiques sur la Louisiane (Paris 1853), vol II p15.
101. McGowan, at 141.
102. McDonald, at 71-72; McGowan, supra, at 141. On the circulation of cash among slaves, see Larry E. Hudson Jr., " 'All That Cash': Work and Status in the Slave Quarters" pp 77-94 in Larry E. Hudson Jr.(ed) Working toward Freedom: Slave Society and Domestic Economy in the American South (Rochester Press 1994).
103. As Philip Schwarz points out, a slaveholder like Thomas Jefferson conceded a distinction between his own property and that belonging to his slaves.. In a letter in 1778 he stated, "I have ever found it necessary to confine them to such articles as are not raised on the farm. There is no other way of drawing a line between what is theirs and mine." Supra note 2 at p. 46.
104. Roderick McDonald, The Economy and Material Culture of Slaves (L.S.U. 1993); V. Alton Moody, Slavery on Louisiana Sugar Plantations (Doctoral Dissertation, Michigan 1924).
105. Jerah Johnson, "Colonial New Orleans: A Fragment of the Eighteenth-Century French Ethos" in Hirsch and Logsdon (eds), Creole New Orleans (LSU 1992) at p. 42.
106. Ibid.
107. Gilbert Din, Spaniards, Planters, and Slaves: The Spanish Regulation of Slavery in Louisiana 1763-1803 (Texas A&M 1999).
108. McGowan, supra, at 142.
109. McDonald, supra, at 78.
110. Dumont, Mémoire Historique s sur la Louisiane, vol II, 241-242 (Paris 1853).
111. Ira Berlin, Many Thousands Gone, p 202. Berlin's estimate is consistent with the calculation of an 18th century planter on the isle of St. Vincent who wrote: "On my estate ... forty-six acres of the richest ground are set apart for the negro gardens, where they work voluntarily in the two hours they have every noon to themselves, on the half-holiday in the week, and Sundays...." Sir Wm Young, 'A Tour through the several Islands of Barbadoes. St. Vincent, Antigua, Tobabo, and Grenada in the Years 1791 and 1792' pp 271-272.
112. Joe Gray Taylor, Negro Slavery in Louisiana 32 (LHA 1961) The Black Code of 1806 stipulated that the Sunday wage would be fifty cents.
113. Code Noir, Art. XIX.
114. See Vernon Valentine Palmer, "The Origins and Authors of the Code Noir" 56 La. L. Rev. 363, 383 (1995).
115. Betty Wood, "Never on a Sunday: Slavery & the Sabbath in Low Country Georgia" in Mary Turner (Ed) From Chattel Slaves to Wage Slaves (London 1995), at pp 79-80.
116. Ibid. p. 33.
117. Lorena Walsh, "Work and Resistance in the New Republic: The Case of the Chesapeake, 1770-1820" in Mary Turner (ed) supra, at p 112.
118. Philip D. Morgan, "The Ownership of Property by Slaves in the Mid-Nineteenth-Century Low Country" XLIX Journal of Southern History 399 (No 3) (1983) Olmstead observed that the extent of any particular task was settled by custom and for that reason it was difficult to increase the amount of work expected. If such customs were violated, the planter increased the likelihood "of a general stampede to the 'swamp'". Ibid. at 400.
119. The classic study is Sidney Mintz, Caribbean Transformations (John Hopkins Press 1974), especially Chap. 7 "The Origins of the Jamaican Market System" pp 180-213. See also, Michael Mullin, "Slave Economic Strategies " in Mary Turner (ed) supra, at pp 69-70.
120. Sidney Mintz, "From Plantation to Peasantries in the Caribbean," in Caribbean Contours, Sidney Mintz & Sally Price (eds) (Baltimore: 1985) p 134; See also Beth Fowkes Tobin, "And there raise yams: Slaves' Gardens in the Writings of West Indian Plantocrats" http:jhu.edu/journals/eighteenth-century_life/v023/23.2tobin.html.
121. Ibid. p 68.
122. Mintz, Caribbean Transformations, p 182.
123. David B. Gaspar, "Sugar Cultivation and Slave Life in Antigua before 1800", in Ira Berlin and P.D. Morgan (eds), Cultivation and Culture (Univ. Press of Virginia 1993) at p 115.
124. Gaspar depicts the slaveholders' efforts as "regulating what they could not prevent", noting moreover that in any event these efforts were not enforced and had no lasting effect. Ibid p 118.
125. Ibid. p 117.
126. Scott and Zeuske, "Property in Writing, Property on the Ground: Pigs, Horses, Land and Citizenship in the Aftermath of Slavery, Cuba 1880-1909" in Society for Comparative Study of Society and History (2002) pp 674-676.
127. Ibid at p 675.
128. Rebecca Scott, Slave Emancipation in Cuba 17 (Univ. Pittsburgh Press 1985).
129. Scott and Zeuske, supra at pp 677-679.
130. Dale Tomich, "Une Petite Guinée: Provision Ground and Plantation in Martinique, 1830-1848" in Berlin and Morgan (eds) Cultivation and Culture (Univ. Press of Virginia, 1993) at pp 223-224.
131. According to Victor Schoelcher, it is uncertain whether this law intended to make the slave an owner, but certainly the slaves regarded their gardens as belonging to them. They bequeath them from father to son, mother to daughter and the slaveowners respect this. Victor Schoelcher, Des colonies francaises, Abolition immédiate de l'esclavage, 8-9 (C.T.H.S. 1998).
132. Ibid. at p 236.
133. Dale Tomich, "Contested Terrains" in Mary Turner (ed) From Chattel Slaves to Wage Slaves (Indiana U.P. 1995) at p 245.
134. R.C. van Caenegem, Law, History, the Low Countries and Europe 123 (Hambledon 1994).
135. Francesco Parisi, "The Formation of Customary Law" Paper #01-06 (2001) Law and Economics research Papers Series, http//papers.ssrn.com/paper. taf?abstract_id=262032 See also H. Patrick Glenn, "The Capture, Reconstruction and Marginalization of "Custom", 45 AJCL 613 (1997). To Glenn, custom consists of long settled practice (repetitive human behavior) and the belief of practitioners that it is obligatory. Malaurie and Aynès speak of "un ensemble d'usages juridiques, devenus obligatoires par une repetition durable, paisible et publique." Cours de droit civil - Introduction à l'étude du droit (1991) at 219.
136. Leon Sheleff, The Future of Tradition 83-84 (Frank Cass 2000) I agree with Sheleff's view that "Any attempt to relate to customary law must ... come to terms with the impact of jurisprudential thinking on the manner in which custom is incorporated into the legal system - whether as being of immemorial use and therefore static, or whether as being part of a living group, reflecting changing mores, responding to changing circumstances...." Ibid at 84.
137. See Jonathan Martin, Divided Mastery: Slave Hiring in the American South 11 (Harvard 2004).
138. Norrece T. Jones, Jr, Born a Child of Freedom: Mechanisms of Control and Strategies of Resistance in Antebellum South Carolina 11 (Wesleyan 1990). Jones quotes John Locke's assertion that "the perfect condition of slavery...is nothing else but the state of war continued between a lawful conqueror and a captive." See also, Alexander Johnston, supra note 5, who characterized slavery as placing society on a war footing: "It was a strange society, always on the alert, always with its hand on the sword."
139. Orlando Patterson, Slavery and Social Death: A Comparative Study, 207 (Harvard 1982),
140. Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North America, 2 (Harvard U. P. 1998).
141. On compromise and negotiation with slaves, see Richard Follett, The Sugar Masters 131-135 (LSU 2005).
142. Kenneth Stampp correctly saw that "Slavery was above all a labor system [in which] masters measured the success of their methods by the extent to which their interest in a maximum of work of good quality prevailed over the slaves' predilection for a minimum of work of indifferent quality." Cf. Adam Smith's view that because a slave could not own property, he "can have no other interest but to eat as much, and to labour as little as possible. Whatever work he does beyond what is sufficient to purchase his own maintenance, can be squeezed out of him by violence only...." Quoted in Gavin Wright, "Slavery and American Agricultural History", pp 3-4 (2003) 03-006, www-econ.stanford.edu/faculty/workp.
143. The Enterprise of Law: Justice Without the State 12-13 (Pacific Res. Inst. 1990).
144. Ibid.
145. Fuller, infra 234.
146. Roderick A. McDonald, The Economy and Material Culture of Slaves 50 (LSU 1993).
147. Follett, supra at p. 132 (stating that the identical problem for all slaveholders was "how could they create a plantation system that tempted the slave to work in his or her owner's interest?").
148. Slavery and Social Death, A Comparative Study 185 (Harvard 1982).
149. Lon L. Fuller, The Morality of Law 23 (Yale 1969).
150. See Norrece Jones's study of various mechanisms of control and strategies of resistance in Born a Child of Freedom (Wesleyan 1990). See further, Lorena Walsh, infra note 117.
151. Toulotte et Riva, Histoire de la barbarie et des lois au moyen age, vol II, 465-467 (Paris 1829); Marc Bloch, Feudal Society 109-116 (Univ. of Chicago Press, Manyon transl. 1962). I wish to thank Shael Herman for drawing my attention to this point.
152. Eugene D. Genovese, Roll Jordan Roll 538 (Pantheon 1972).
153. See Lorena Walsh, "Work Resistance in the New Republic: The Case of the Chesapeake 1770-1820" in Mary Turner (ed) From Chattel Slaves to Wage Slaves (Indiana Univ. 1995) at pp 109-110. ("Slaves clung tenaciously to the task requirements and work pace that had become customary on a given plantation. Whenever a new overseer attempted to changed established work routine, he encountered stiff resistance.").
154. Gilbert Sadler, The Relation of Custom to Law 10 (Sweet & Maxwell 1919, reprinted 1986).
155. Paul Vinogradoff, Custom and Right 69 (Oslo 1925).
156. E.g. the Louisiana custom regarding sugarcane harvest season - whereby slaves were worked at a frenzied pace 18 hours every day, including Sundays and Christmas, until the harvest was complete, with the missed holidays scrupulously made up in January-- was largely dictated by the botanical characteristics of sugarcane, the Louisiana climate, and the level of technology available. Rebecca Scott explains that the frenetic pace was a necessary consequence of an objective fact: "Cane had to be cut when the proportion of sucrose in the juice was highest, and, above all, the juice had to be extracted within 24 to 48 hours to prevent spoilage." Rebecca Scott, Slave Emancipation in Cuba 24 (Princeton 1985). For a detailed description of the "great push" at harvest time in Louisiana, see Frederick Law Olmstead, The Cotton Kingdom 255 (NY 1984).
157. For example in colonial New Orleans under the French, laws and legal announcements were posted on the doors of the St. Louis Cathedral on Sundays at the hour of high mass when the largest number of citizens could be expected to be in attendance. Legal announcements were also made by the huissier by marches to the beat of the drum around the city. See Sally Kittredge Reeves, "The Notarial Archives Drawings of Adrien Persac" in H. Parrott Bacot et al (eds) Marie Adrien Persac, Louisiana Artist (LSU Press 2000) at p. 86.
158. Down to the end of the Spanish regime perhaps more than half the free adult population of New Orleans was illiterate, according to estimates based on a count of signatures and marks on the oath of allegiance, Daniel Clark said in 1803 that "not over half the inhabitants can read or write the French and not two hundred in the whole country with correctness." Since lawyers were not permitted to practice prior to this time, individuals were deprived of the advice of counselors.
159. South Carolina Act of 1834, S. 41; Louisiana Act of March 16, 1830, S. 3. For details, see Janet D. Cornelius, "When I can read my title clear: literacy, slavery and religion in the antebellum South (U.So. Car. Press 1991); Thomas Webber, Deep Like the Rivers: Education in the Slave Quarter Community, 1831-1865 (1978); C. Peter Ripley, Slaves and Freedmen in Civil War Louisiana, pp 126 ff (LSU 1976). Despite these laws, there did exist a certain amount of literacy among blacks, though it was not widespread. Certainly it was higher among domestic slaves and free persons of color in urban centers. It is known for example that the Ursuline nuns in New Orleans taught slaves, Indians and free persons of color to read and write. Laws banning the teaching of slaves to read and write were not enacted in the South until fairly late.
160. Jo Ann Carrigan, "The Spanish Domination and the Cession to the United States, 1769-1803" in Fortier's History of Louisiana, vol II (1972 Claitor's) at p. 386.
161. See Wolfgang Fikentscher, Modes of Thought: A Study in the Anthropology of Law and Religion 118-120 ( 1995 Tubingen).
162. Ariela J. Gross, Double Character- Slavery and Mastery in the Antebellum Southern Courtroom 42-43 (Princeton 2000).
163. In an excellent study of manumission in Louisiana, Judith Schafer noted that slaves found ingenious and remarkably sophisticated ways to use the law, lawyers, judges and the local courts to gain their freedom. Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862, p xii (LSU 2003).
164. Gwendolyn Midlo Hall, Africans in Colonial Louisiana 305-306 (LSU 1992).
165. Code Noir art. 29 speaks of "le pécule desdits esclaves que les maitres auront permis d'avoir en sera tenu ..."
166. Gilbert Din, Spaniards, Planters, and Slaves: The Spanish Regulation of Slavery in Louisiana, 1763-1803, p64 (Texas A&M Press 1999).
167. Scott and Zeuske note that in Cuba virtually everyone recognized that enslaved laborers could raise pigs and pocket the proceeds and that "almost every negro on the estate owns a horse [ ...]" "Property in Writing, Property on the Ground: Pigs, Horses, Land and Citizenship in the Aftermath of Slavery, Cuba, 1880-1909, (Comparative Study of Society and History 2002).
168. Code Noir art 43. According to Shaw, this provision was unique in North America. "It was only in Louisiana that there was any statutory restriction upon the breakup of slave families." A Legal History of Slavery 165 (1991).
169. Roger Baudier, The Catholic Church in Louisiana 206 (New Orleans 1939).
170. G.M. Hall, supra p 168, 183, 304.
171. "The Spanish identified husbands and wives not legitimately married in church - and very few were - as unrelated pieces of property, and the children followed the mothers as 'bastards, father unknown...' James McGowan, Creation of a Slave Society, Louisiana Plantations in the Eighteenth Century, 273 (1976 Dissertation, Univ. of Rochester).
172. Gilbert Din notes that from 1767-1777 there were only forty marriages among blacks, both free and slave, at St. Louis church in New Orleans, as compared to two hundred and sixty five marriages for whites. During 1782-1791, the clergy married merely forty black couples. Supra note 44 at p 127.
173. Letter from Villiers to Unzaga, April 6, 1773, quoted in Hall, supra p 305.
174. Ira Berlin, Many Thousands Gone 213-214 (Harvard 1998). When the owner refused to negotiate, a slave or any interested party could petition the court to have a carta de libertad issued. Berlin estimates that only a fifth of all freedom purchases were contested.
175. H.S. Aimes, "Coartación: A Spanish Institution" The Yale Review (1909), p414. See also, E.V. Goveia, The West Indian Slave Laws of the 18th Century, 14 (Univ. of West Indies 1970); Herbert Klein, Slavery in the Americas: A Comparative Study of Virginia and Cuba 196-199 (U. Chicago Press 1967).
176. The principle they proposed to include in the Civil Code was "All that a slave possesses belongs to his master; he possesses nothing of his own, except his peculium...." (emphasis added) In their exposé des motifs they base the peculium on previously-existing local custom: "We here are in the habit of permitting our slaves to enjoy what they acquire by their industry." Projet of the Civil Code of 1825, vol I, p. 14 (1937).
177. Berlin estimates that blacks must have spent over one-half million Spanish dollars on self-purchase, most of it invested the last two decades of the 18th century. This says as much about their determination and sacrifice as about the considerable resources generated by the independent slave economy. Between 1769-1803 some fifteen hundred purchased either their own liberty or that of their family and friends in New Orleans. Ira Berlin, supra at 332.
178. There is also reported evidence of a Brazilian counterpart to coartación. See Mary C. Karasch, Slave Life in Rio de Janeiro 1808-1850, 356 (Princeton 1987).
179. Rebecca Scott, Slave Emancipation in Cuba 1860-1899, 11 (Pittsburg Press 1985).
180. Berlin, supra 332. Ingersoll's estimate is about 1100 for the period 1769-1807. Supra 42-43.
181. Gilbert Din, supra note 44, at p 65.
182. Taken from details of the expeditionary force from Cuba. See Bibiano Torres Ramirez, Alejandro O'Relly en las Indias 101-102 (Sevilla 1969).