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Law-in-spacing : geographies of territorialization and resistance Stewart, Lynn Alison 1993

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LAW-IN-SPACING: GEOGRAPHIES OF TERRITORIALIZATION ANDRESISTANCEbyLYNN ALISON STEWARTB.A., Indiana University-Purdue University at Indianapolis,1991A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THEREQUIREMENTS FOR THE DEGREE OFMASTER OF ARTSinTHE FACULTY OF GRADUATE STUDIES(Department of Geography)We accept this thesis as conformingto the required standardTHE UNIVERSITY OF BRITISH COLUMBIAOctober 1993© Lynn Alison Stewart, 1993In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(SignatureDepartment of The University of British ColumbiaVancouver, CanadaDate  t 6.6.^tf 4 3DE-6 (2/88)AbstractMy thesis revolves around the extension of Anglo-American common law to the newly acquired territories of theOld Northwest and Louisiana. Both of these territories hadFrench-speaking populations with traditions of EuropeanCivil law systems. I suggest that the extension of commonlaw to these territories highlighted a process of law-in-spacing, a process by which the private law principles ofcommon law became increasingly visible in the context ofthese traditionally Civil law populations. I also show thatthe common law had specific and unforseen consequences forthese French-speaking populations. I use concrete issuessuch as land and slavery to suggest that there are not onlygeographies of law, but geographies of custom. I alsodiscuss the production of space as it relates to slavery.iiTABLE OF CONTENTSAbstract^ iiTable of Contents^ iiiList of Figures vAcknowledgements^ viINTRODUCTION 1Chapter One^Territorializations^ 5Order and Ordinances 17Politics of Property: Anglo-Americans^27Politics of Property: The French^34Conclusions^ 45Chapter Two One Spot on the Globe: Land and Law inTerritorial LouisianaJefferson's PurchaseA Powerful Engine: Land LawLouisiana Grumbles: Common LawThe Louisiana RemonstranceThe Louisiana Civil Code of 1808Conclusions48505671748186Chapter Three Louisiana Subjects^ 89European and American Slavery in Louisiana 90Louisiana Rhetorics of Slavery^98A 'Most Troublesome' Property 108The Force of Habit^ 113Servants Obey in All Things Your Masters 116Spatial Designs 121Conclusions^ 135Chapter Four The Territorial Court of Pleas^139The Court of Common Pleas: Jurisdiction^141Labie V. Baudin^ 143Merchants and Planters^ 150Geographies of Equity 160The 'Laws of Justice' 167Conclusions^ 170Chapter Five The New Orleans Batture: DisputedGeographies of Jurisdiction^174New Orleans Settings^ 178Gravier v. the Mayor, et al. 182Local Resistances 185'Sovereign' Spaces 192Geographies of Public and Private Right^200Conclusions^ 204iiiivChapter Six^Conclusions^ 209Bibliography 211List of FiguresvFigure 1: State Cessions and the Old Northwest 18Figure 2: The Kaskaskia Commons 38Figure 3: Washington,^D.C. 44Figure 4: The Eastern and Western Districts 64Figure 5: Representative Sugar Plantations 123Figure 6: New Orleans and its Vicinity 179Figure 7: Jean Gravier's Property 180AcknowledgementsI would like to thank my advisor, Dr. Derek Gregory,for encouraging me to try something a bit different. Thebest parts of this thesis owe a great deal to hisinspiration and patience, his uncanny ability to understandhalf-formed thoughts, and his confidence in me. Many thanksto Nick Blomley, and Cole Harris, both of whom took a livelyinterest in this project.I would also like to thank my 'cohorts' in theGeography Department for taking an interest in this project,and for frequent invaluable advice. Thanks particularly toDavid Demeritt and Averill Groenveld-Meyer, who were alwayssupportive in their own particular ways. I also want tothank Daniel Clayton, who perfectly combined an analyticmind and a sympathetic ear.vi1IntroductionLaw, we are told, embodies assumptions and values centralto specific historical periods. 1 I do not want to argue withthis statement, but rather to supplement it, by proposing thatgeography also plays a role in the construction of legalassumptions and values. I am trying, then, to write ageography of law which revolves around American territorialexpansion, an expansion that was predicated on the extensionof Anglo-American common law to the territories. I considerone of these territories in some detail, Louisiana, and forthe purposes of contrast, I also take a brief look at the OldNorthwest Territory. Both territories have in common French-speaking populations with European Civil law traditions. Theextension of common law to traditionally Civil law populationshighlights a process that I call law-in-spacing, a process bywhich the structuring assumptions of private law becomevisible, not only by their extension through space, but alsoby their 'implantation' on populations with different sets ofsocial and spatial practices.In Chapter One I look at the extension of American commonlaw to the Old Northwest Territory, an extension whichoccurred largely through the Ordinance of 1787. I focus on thedifferent conceptions of property which were built intoAmerican common law and French Civil law, and the effects that1 John Henry Merryman, The Civil Law Tradition: AnIntroduction to the Legal Systems of Western Europe and LatinAmerica (Stanford: Stanford University Press, 1985).2common law had on the French populations of the Old Northwest.I suggest that the different property assumptions of the U.S.federal government and the French may have reflected different'logics of space', different ways of visualizing space whichwere historically and geographically contingent.Chapter Two looks at the same issues, land and law, afterthe U.S. acquisition of Louisiana in 1803. I contrast theterritorialization of Louisiana with that of the OldNorthwest, suggesting that there were geographies ofterritorialization which can be traced in each of these areas.I also point to the intensification of law-in-spacing inLouisiana, where Civil law was more widespread, and where theFrench-speaking population outnumbered the Anglo-Americanpopulation for over two decades. I also focus on the LouisianaRemonstrance, which highlighted three issues of immenseconcern to Louisianians: U.S. land laws, Anglo-American commonlaw, and the Congressional ban on the importation of 'foreign'slaves.My third chapter, then, deals with slavery in Louisiana.I contrast the French Code Noir with the 1806 Black Code, bothof which set broad parameters to master/slave relations, andsuggest that these parameters did not necessarily reflectactual practice. I discuss the rhetorics put into play byLouisianians in reaction to the ban on slave importation,rhetorics which exemplified a moral geography of race andplace. I use Henri Lefebvre's conception of the production ofspace to point to the possibility that slaves were able to3create their 'own' space, space which overlapped and subvertedthe 'white' space designed to contain and control them. Ialso examine a law suit to point to the ways that socio-spatial behaviors engender lex loci - custom - which can oftensubvert or completely override more formal laws which (in thiscase) represent norms created by the Church or State.Chapter Four revolves around the Territorial Court ofPleas, which I think exemplifies the process of a legal systembecoming visible which I have called law-in-spacing. The Courtof Pleas was the first court in Louisiana to use common lawcourt procedures and Civil law substance. The Court isimportant because it demonstrates the factionalism of the NewOrleans 'community'. I also discuss two of the Court'sjudgments to demonstrate that there may have been twoconflicting geographies of equity at work in territorialLouisiana.My final chapter revolves around a court case known asthe Batture Controversy, a series, really, of litigationswhich started in 1804 and continued for several decades. TheBatture concerned the attempted removal of an alluvion in NewOrleans from a realm of public customary use to one ofstrictly private ownership. The case demonstrates the complexgeographies of public and private right in Louisiana,geographies which point to the larger geographical andhistorical differences of common and Civil law.I propose, then, to range widely over a variety ofgeographical, spatial and legal issues, and to highlight the4ways in which these issues are interconnected. I am not tryingto write a legal history, much less a critical legal history.I am not trying to rewrite American history. I have simplychosen to write about American territorial expansion to get atthe geographies of law which seem particularly clear in thatprocess.5Chapter 1TerritorializationsLaw was crucial to the American experiment in westwardexpansion. The Ordinances of 1785 and 1787 were designed bythe federal government to achieve specific goals in itsterritories. Federal sovereignty was to be established throughthe implementation of 'law and order' on the frontier, whileprinciples of republican government were to be introduced andnourished through a series of stages which offeredincreasingly representative government to the inhabitants ofthe newly acquired territories. Liberty and equality were tobe guaranteed to the new territories by the common law.Finally, the federal government would systematize, order, andregulate the disposal of the new public domain throughCongressional legislation. These policies were intended tofacilitate the assimilation of territorial populations, whichwere quite disparate, both within and between territories.The Northwest Territory, acquired by the United Statesfrom Britain in 1783, and the Orleans Territory (Louisiana),the southernmost part of the Louisiana Purchase from France in1803, posed different sets of challenges to the federalgovernment. The Old Northwest was a vast tract of landpopulated predominately by native groups, while Louisiana washome to over thirty thousand, mostly French-speakingmerchants, planters, tradesmen, and black slaves. 2 The2 Daniel Clark estimated that there were over 50,000 whites inthe entire territory, and a census in the Annals of Congress6function of territorial law in both areas was to guaranteefederal sovereignty over land and resources, and to establishcontrol over the inhabitants through the extension ofAmerican government and common law.The successful advance of an American governmentalstructure was linked to establishing a common law jurisdictionin the territories. Common law came to America with the firstBritish colonists; it is that system of law in which judicialauthority rests wholly in jurisprudence, or the decisions ofthe court. Precedent (stare decisis), plays a large role incommon law jurisprudence, which is largely 'unwritten' (case)law. This dependence on precedent is one of thecharacteristics which distinguishes common law from Civil law.Civil law, descended from Roman law, derives its authorityfrom legislation, limits the function of judges to theapplication of principles, or at most to interpretation, andis codified, or written law. The extension of common law tothe territories was essential to the federal governmentbecause the principles embodied in the common law were,ironically, the guarantors of two of the government's mostcherished objectives. First and foremost, common law was toreiterates this figure. The latter also states that NewOrleans and its adjacent settlements comprised half the totalwhite population. Daniel Clark to Secretary of State JamesMadison, September 8, 1803 in Clarence E. Carter, ed.,Territorial Papers of the United States, 26 vols. (Washington,1940), 9: 32. [Hereafter cited as Territorial Papers.] Annalsof Congress: The Debates and Proceedings in the Congress ofthe United States, 1789-1824. (Washington, 1834-56), 8thCongress, 1st Session (17 October 1803-3 March 1804) Gales andSeaton, 1852, 13: 1573. [Hereafter cited as Annals ofCongress.]7ensure that a republican system of government would beestablished in the territories. This emphasis reflected thebelief that the political philosophy of an American form ofrepublicanism, as expressed in the Constitution, wasuniversal.' In other words, that American liberty, justice andequality were the most beneficial for all men.' The common lawwas one of the principal means by which this politicalphilosophy was made possible. George Dargo has argued that "Ifthe common law was the basis of American liberties, then itwas basic to the liberties of all men." 5 By extension, then,common law was the legal system that would most benefit allmen.The implications of this belief that the liberty andequality expressed in the Constitution and implemented by thecommon law were universal were to make an indelible impressionon the judicial and governmental systems of the territories,and consequently, upon the inhabitants themselves. Universalprinciples were just that - universal - and consequently therewas no need to tailor them to specific circumstances orlocales. The first Governor of the Northwest Territory, ArthurSt. Clair, summed up his attitude toward law and its functions3 By republicanism I mean a form of government that was notmonarchical but was based on a representative governmentelected by the citizens, and responsible to them.4 I use 'men' advisedly. Liberty, justice and equality werepolitical guarantees, and women were not included in thepolitical process at this time.5 George Dargo, Legal Codification and the Politics ofTerritorial Government in Jefferson's Louisiana, 1803-1808(PhD Dissertation, Columbia University, 1970), 377. [hereaftercited as Legal Codification.]8thus: "That people in a new country have some differentprospects and objects from those who inhabit an old one, iscertainly true; but how the change of objects can affect theregulations that are necessary for preventing crimes andprotecting property, I own I cannot conceive." 6 St. Clair'sassumption that geography and social differences had nobearing on the primary functions of common law was typical ofan attitude that was to be displayed by more than oneterritorial Governor.Most American politicians believed that the common law,which was essentially established in the United States by theConstitution, and the Ordinance of 1787 (which guaranteed thatnew territories would be common law jurisdictions) embodieduniversal principles and could therefore be institutedanywhere with only good effects. Because it was not bound toplace, and because there could be no 'reasonable' argumentagainst it, American common law had great assimilatorypotential. Further, it was self-contained - whole and complete- so that the establishment of common law jurisdictions in theterritories was sufficient to expunge all previously existingsystems of law. This in effect limited the "legal operations[of the territorial judges]...to the principles of the6 Arthur St. Clair to Judges Samuel Parsons and James VarnumAugust 7, 1788, in William Henry Smith, ed., The St. ClairPapers, The Life and Public Services of Arthur St. Clair,Soldier of the Revolutionary War, President of the ContinentalCongress, and Governor of the North-Western Territory, WithHis Correspondence and Other Papers, 2 vols. (New York: DaCapo Press, 1971), 2: 74. [Hereafter cited as St. ClairPapers.]9Constitution and common law only."' The Ordinance of 1787, andthe common law system which it promised, were necessary toduplicate American institutions in the new territorialsettings, as well as to bind those territories more tightly tothe Union by the creation of mutual "interests." Politiciansin the Eastern states worried that the West's "...interests,if not opposed, will be but little connected with ours." 8 Thisemphasis on interests not only reflected conflicting regionalpolitics within the Union, but also an awareness of thetenuous nature of republican government over long distancesand the plethora of foreign interests which (literally)surrounded the Old Northwest and the Louisiana Purchase. Itwas essential to the United States to govern firmly, whileguaranteeing the eventual benefits of statehood to the newlyacquired territories.It seems to me that law was, therefore, multi-functional.It served to promote and guarantee an identification ofinterests by expressing acceptable (to the Eastren U.S.)political and social values. It also enabled the federalgovernment to maintain sovereignty over the territoriesthrough its more blatantly coercive functions, such as theprosecution of criminals and the protection of public welfare.As such, the extension of American law to the territories can7 Judges Parsons and Varnum to St. Clair, July 31, 1788,Ibid., 2: 69.8 James Monroe to Thomas Jefferson, August 25, 1785, cited inJay A. Barrett, Evolution of the Ordinance of 1787, with anAccount of the Earlier Plans for the Government of theNorthwest Territory (New York: Putnam's, 1891), 34 n.3.10be seen as the extension of federal power over theterritories.But the rhetoric of interest that occupied so much ofthe attention of Eastern politicians invites anotherinterpretation. For the United States, the process of settlingthe territories involved a process of othering. Not only werethe territories a wild frontier, populated by "savages" (bothwhite and Indian) and foreigners, but it seemed likely thatnon-English westerners would add to this "other" population. 9There was a need, therefore, to educate these "others", toassimilate, and Americanize them. Issues such as education,assimilation, and Americanization were intended to reflect aunitary federal policy regarding the territorial populations,but in reality they varied over time and through space, andfrom administration to administration. These concerns weretrebled with the United States' acquisition of Louisiana,where the population must surely be seen as the United States'first encounter with a self - consolidating other. By this Imean that in Louisiana, and to some degree in the NorthwestTerritory, there were differences which were perceptible tothe American eye, such as the predominance of the Frenchlanguage, the Roman Catholic religion, the Civil law system,and (in Louisiana) status as subjects of the Spanish Crown,but these differences were not constructed by Americans or theAmerican government and imposed on Louisianians or the French9 Cf. Jack E. Eblen, The First and Second United StatesEmpires; Governors and Territorial Government, 1784-1912(Pittsburgh: University of Pittsburgh Press, 1968), 45-46.11populations of the Old Northwest. Rather, these differenceswere pre-existing and 'real'. I am not suggesting, however,that the federal government did not use these differences inparticular and political ways, for example the notion thatLouisianians, as Spanish 'subjects,' were not yet 'ripe' forcitizenship.NIn any case, the settlement of the Old Northwest did notbear out predictions of massive foreign immigration, and itwas a huge area with a minimal population. The otherness ofthe Northwest rapidly became part of the American self-image -bold, industrious pioneers subduing the frontier -accompanying the spatial imagery of manifest destiny." Thisimage could not hold true in the lower Mississippi basin,however. The problem there involved the incorporation of'civilized' people into the Union: people with sophisticatednetworks of commerce, and established social, linguistic andlegal arrangements. In this sense, the territorial expansionof the period between 1785 and 1812 can be seen as the firstAmerican efforts at imperialism, a process that is not usually10 Two points are necessary here. First, the "othering" thatdeveloped around blacks in the southern U.S. was vastlydifferent from the process I have outlined here. I willaddress this issue in Chapter 3. And second, the first self-consolidating others the U.S. encountered were the NativeIndian populations, but I cannot include their stories here atall11 Manifest destiny was an American belief that the 'natural'limit of U.S. expansion westward was the Pacific ocean.Disputes over the territory included in the Louisiana Purchasefrequently revolved around an American insistence that thePurchase included portions of the Rocky Mountains, which, byinternational law, would then give them rights to the westernterritories by virtue of the watersheds of rivers whichoriginated in the mountains.12thought of as beginning until a century later, and thenexercised over native populations and foreign nations.Thus, the United States government was attempting tomanage these "new" spaces as part of an essentiallyimperialistic project. Social change was to be brought aboutby the (spatial) transplantation of American common law to theterritories, while political change was to be wrought by theextension of American forms of government.By examining the concrete fabric of produced spaceassociated with these processes, and the development ofgovernmental and legal institutions on the territorialperipheries of the "United States", I hope to allegorize thislarger heterogeneous process, to avoid "the sanctionedignorance" of imperialism that is common in histories of theAmerican west concerned with this period. In order to do thisI will use a few specific, concrete, examples which focus onthe role of law to illuminate the larger imperialist processesat work - to allegorize those processes. Gayatri Spivak's"intervention" in the allegorical subtext of Europeanimperialism informing the work of European theorists such asFoucault is pertinent to my case. She suggests:"Sometimes it seems as if the very brilliance ofFoucault's analysis of the centuries of Europeanimperialism produces a miniature version of thatheterogeneous phenomenon: management of space - but bydoctors; development of administrations - but in asylums;considerations of the periphery - but in terms of theinsane, prisoners, and children. The clinic, the asylum,the prison, the university - all seem to be screenallegories that foreclose a reading of the broadernarratives of imperialism...Yet we have already spoken of13the sanctioned ignorance that every critic of imperialismmust chart."12In the context of this thesis, an allegorical subtext, such asthe legal personalities of property owners under common andCivil law, can highlight the assimilatory potentials of legalsystems implicated in larger imperialist projects. I want,therefore, to turn this critique inside-out, as it were, usingsome of the "miniatures" of American territorialization topoint to more heterogeneous processes that might be named"imperialist" - American territorialization being a foundingmoment in the production of an American 'west' and in theproduction of America as 'The West'.Working with this sense of the "miniature" as aparticular constellation of puissance/connaissance, I want tofocus on local networks of power and knowledge in Louisianawhich bump up against larger constellations of pouvoir/savoirput into play by the federal government. As Foucault suggests,"les resistances... sont l'autre terme, dans les relations depouvoir; elles s'y inscrivent comme irreductible vis-a-vis." 13I focus on particular connaissances, local in nature, to pointto the tensions in law-in - spacing, Louisiana being my "localfoci", where local connaissances were bound up with a Civil12 Gayatri Chakravorty Spivak, "Can the Subaltern Speak?" inCary Nelson and Lawrence Grossberg, eds., Marxism and theInterpretation of Cultures (Urbana: University of IllinoisPress, 1988), 291.13 "Resistances...are the other term in relations of power;they are irreducibly inscribed therein face to face," fromMichel Foucault, La Volonte de Savoir, cited in GayatriChakravorty Spivak, "More on Power/Knowledge" in Thomas E.Wartenberg, Rethinking Power (Albany: State University Press,1992), 157. All translations from the French will be mineunless otherwise stated.14legal system which, like American law, was far from inert. Bylaw-in-spacing I want to imply a set of related processess andconcepts, having to do with power and resistance, law andspace. One thread of my allegory wends through the multiplegeographies of law that can be traced out in Louisiana: at abroad level, geographies of common and Civil law; at finerlevels, geographies of the varied legal constructions ofproperty ownership contained within the frameworks of commonand Civil law; and widening the scope again, a geography ofthe meaning of justice, as it is embodied by, for example,equity. The image that I want to evoke with the term law-in-spacing is similar to Spivak's term power - in-spacing, whichhighlights Foucault's notion that networks of power may bemost visible at the peripheries, or extremities, of thespatial arrangements they engender. In the same vein, I wantto suggest that the effects of law, or of specific systems oflaw, are most visible when they are extended to the'frontiers' of society. The extension of common law to thenewly acquired hinterlands of the United States can be seen asa process of territorialization. Thus, my allegory spinsaround a conception of space as one medium of social changethrough, in this instance, legal transplantation. But space isalso, by virtue of its social production, instrumental intempering legal transplantation. 1414 Henri Lefebvre has frequently emphasized the notion of'juridicality', particularly as it relates to privateproperty, but he has offered no sustained analysis of the waysin which legally constructed notions like private propertyproduce new sets of spatial practice. In any event, his15The extension of the American legal system through spaceto distant, "new" settings, was problematic. For example, theprivate aspects of common law, primarily regulatory in theAmerican Union, contrasted sharply with those portions of theterritories with French and/or Spanish populations accustomedto European Civil law. 15 Because territorial law was aconstruction of the American federal government, and wasintricately bound up with common law, when it was applied toEuropean populations it was clearly unconnected to the socialrelations of the people and communities it was intended toregulate. Territorial law had no local underpinning in placeslike Louisiana, Vincennes, or French Illinois; it is this lackof fit - the catachrestic quality of 'territorial law' - thatpoints to the more general relations between power,resistance, and social space that I want to explore. In spaceslike Louisiana and Illinois, territorial law acquired ametonymic quality that concealed a larger project ofimperialism initiated by the federal government - the quest toinstill the universal principles and virtues of the republicthrough territorial aggrandizement.The degree to which the contours of common law becametransparent in the territories was governed not only by thenature of the spatial arrangements it was intended todiscussion is limited to Europe. Henri Lefebvre, TheProduction of Space, Donald Nicholson - Smith, trans.(Cambridge, Massachusetts: Basil Blackwell, 1991).15 I will use civil law when writing of private common law,and Civil law to designate the European systems of law basedon Roman law.16construct, but also by the social and cultural backgroundswhich had produced and sustained, and often contested andreworked, those arrangements. Law-in-spacing in the OldNorthwest can be seen as a matter of degree. For Anglo-American settlers, territorial law was probably visible andwelcome, as there was no unifying or entrenched legal systemin place in this vastly underpopulated area. For the Frenchinhabitants of the Old Northwest, the common law system, inconjunction with the land laws, caused a unique set ofproblems which revolved around social and legal conceptions ofproperty and property ownership. In the smaller Frenchsettlements, these problems seemed insurmountable, and acommon response was emigration to the Spanish side of theMississippi River. For Anglo-American settlers, territoriallaw posed problems of a different nature, revolving aroundlegal title to land and enfranchisement.The discursive juxtaposition of two territories, the OldNorthwest and the Orleans Territory (hereafter referred to asLouisiana) will highlight several aspects of territorial lawwhich make the term law-in-spacing peculiarly appropriate tothe legal settlement of these two areas. In this chapter myfocus in the Old Northwest will be on the period between 1785and 1795. In the following chapter I will focus on Louisianafrom the end of 1803 through 1808. Each chapter considersthese territories at the beginning of their respectiveterritorial periods. In this chapter I will discuss the waysin which the United States attempted to use the Ordinances of171785 and 1787 to protect its interests in the Old Northwest,as well as the ways in which these two Ordinances can be seenas having interlocking effects on the populations of thatterritory. I will focus specifically on the multiple effectswhich these Ordinances engendered as they were put into placeon Anglo-American and French populations in the NorthwestTerritory. I will also discuss the varying problems these twopopulations experienced in this encounter with territoriallaw, and the responses they made to it.Order and OrdinancesAs early as 1780 the federal government had realized theimportance of the western lands. A huge, and unacceptable,foreign debt had accumulated during the Revolutionary War.Payments to war veterans were in arrears. The federalgovernment proposed to satisfy both of these debts bydisposing of the western lands: the foreign debts would bepayed through land sales, while grants of land would be issuedto veterans in lieu of money payments.There were several problems to be rectified before theseschemes could be put into action. The first, and apparentlymost insurmountable, was that the federal government did notactually possess title to the western lands. Most of the landeast of the Mississippi River had been claimed ('by right ofconquest') by the individual states during and immediatelyafter the Revolutionary War (see figure 1). One of the first^1iiraraRte/JO/o• CmdKrir,Fort NIcloroshkckionga(Mn Too n1 LUpperSandusicvLAKEMICHIGAN.1)^PointFort WashingtonICincinnatt)I .4storo-Dctrott •Msano.^r,aptds%home(^looter SanduskyGrand Claim• 17Venango• L'AngudIrOu,na non • Mack achackI^e• s. ()Id ChdlicothcssMingo• .hcrlingPittsburghF or( Harmarriot aClarksvillc71-1Flls of Ohio KF.NTUCK) DISTRICT OF VIRGINI.A.a (Lams ilirl^I 7c. trigtonVInc.c.nnmr,oRitterMap IOLD NORTHWEST REGION, 1783-90.v"• (.2 flOkKaskaskiaState Cessions and the Old Northwest1819chores of the Continental Congress was to convince the statesto cede their claims to the federal government, a request thatwas not greeted enthusiastically by the states. 16 It was onlyafter an acrimonious debate in Congress that the first cessionwas made by New York to the federal government, a cessionwhich had been brought about by federal guarantees that all"unappropriated lands" ceded by the states would be disposedof for the "common benefit" of all the states in the Union,and that these lands would eventually be admitted to statehoodon an equal footing with the original states.'' Congress wasable to officially claim the Northwest Territory upon thesigning of the Treaty of Paris with Britain in 1783, and withthe Virginia cession of 1784, which granted all the territoryin the Old Northwest that Virginia had seized and occupiedduring the Revolutionary War to the federal government.There was intense debate in Congress over the potentialdivision of the new territory into states, due to sectionalinterests, particularly between the Northern and Southernstates. These debates were temporarily laid to rest by theOrdinance of 1784, which stipulated how the territory was tobe divided into states, and provided a government for those16 It would take over 15 years for the government to acquireall the lands east of the Mississippi River from the states.Georgia refused to cede lands that would become the northernportions of Alabama and Mississippi until 1802. Another stripof land to the south of this area, known as West Florida, wasclaimed by Georgia, Spain and the United States, and was notacquired by the latter until 1819.17 Journals of the Continental Congress, 1774-1789,Worthington C. Ford, ed., 18 vols. (Washington: GovernmentPrinting Office, 1906), 12: 915-916.states. This Ordinance was never actually in force, and theissues that it dealt with were again taken up by Congress in1787.The second problem facing Congress was the actual methodof disposing of the newly acquired public lands. There wereseveral crucial issues at stake here. The first involvedbalancing the needs of the federal government with the needsof individual settlers. Basically, the government had toensure that it would profit from the immigration of settlersto the Northwest Territory. This meant regulating settlementand instituting a workable system of payment and titleregistration. Settlers, on the other hand, needed affordableterms, particularly during the post-war depression. At thesame time Congress wished to maintain governmental control ofthe territory without appearing tyrannical, while settlersneeded some type of federal protection which would not impingeupon their conception of democracy. The Land Ordinance of1785 addressed the first of these goals.Naturally, these questions were politically charged.There was some argument over the method of alienating publiclands: New England favored a system of rectilinear survey,while the Southern states favored a less systematic, moreindiscriminate approach to settlement. A rectilinear system oftownship and ranges was decided upon, each township to bedivided into 36 sections and then sold. This in turnthreatened the interests of several northern land companieswhich had been formed with an eye to the opportunities2021presented by the opening up of the Northwest Territory. If theland was sold by section, there would be a great deal ofinconvenience, and loss of profit to the land companies, whileif entire townships were offered it would be impossible forthe average settler to afford land. A compromise was reachedwhereby townships would be sold alternately whole and bysection.However, the most vital issue to many members of Congresswas to guard against "squatting", which was seen as more thansimply trespassing on the public domain. As a House Committeeexplained, squatting was objectionable because it "...waswholly incompatible with the idea of deriving revenue from thesale of public lands, and [it] encourage[d] migration beyondits natural and necessary progress." Squatters had wreakedhavoc in Kentucky through their constant warfare with Indians,their habit of claiming lands indiscriminately through"tomahawk rights", and their movements across the Ohio Riverand into the Northwest Territory. All of these practices madethe government of the new lands more difficult: Native peoplewere reluctant to part with lands they were engaged in warfareto defend, settlements were impossible to defend againstNative attacks because they were so scattered and isolated,while the cost of defense skyrocketed due to the continuoushostilities and due to dispersed settlement patterns. These18 American State Papers - Documents, Legislative andExecutive of the Congress of the United States 1789-1824, 38vols. (Washington, 1832-61), Miscellaneous, 1:387. [Hereaftercited as ASP]22were the conditions that Congress was determined to avoid whenit created the Land Ordinance for the Northwest Territory. Theconcern with squatting was so great, however, that the federalgovernment instigated a policy of squatter removal even beforethe Land Ordinance was passed.'This desire to realize the goal of controllingsettlement, and thereby turn the new lands to profit,motivated the Land Ordinance. First, there was to be no saleof lands until the Geographer of the United States hadsurveyed and demarcated seven ranges.' These lands would then19 On January 26, 1785, the Commissioners for Indian Affairsinstructed Colonel Joseph Harmar to move into the NorthwestTerritory and to "...employ such force as he may judgenecessary in driving off persons attempting to settle on thelands of the United States. Harmar took the defense of UnitedStates property seriously, posting notice of theCommissioners' instructions along the Ohio River. He laterreported that "...a party has been detached, who drove them[squatters on the north side of the Ohio River] off as as faras seventy miles from this post. The number lower down theriver is immense, and unless Congress enters into immediatemeasures, it will be impossible to prevent the lands beingsettled", and again,"[t]his position at Muskingum will answerthe valuable object of removing the intruders from the publiclands, should any hereafter presume to encroach upon them,which I do not believe will be the case, as shortly before Ileft McIntosh they sent up a most humble representation inbehalf of the whole, purporting that they were convinced thatthey had behaved most disorderly, and praying, as the lastindulgence, that they might only be permitted to stay a shorttime and gather in their crops, after which they wouldinstantly depart. Lenity I thought to be out of the question,and have directed Captain Doughty, on his way down, to burnand destroy any remaining cabins between McIntosh andMuskingum." Col. Joseph Harmar to Secretary of War Henry Knox,June 1, 1785, and October 22, 1785, St. Clair Papers, 2: 3n.1, 6, 12.20 The office of Geographer of the United States wasestablished by the Ordinance of 1785, and President GeorgeWashington appointed Thomas Hutchins to the post in that year.The Geographer was to direct surveys, set up regulations forthe surveyors, and report to Congress. Hutchins died in 1789,and was never replaced: the Geographer's duties were divided23be put up for public auction in the major eastern cities. Thiswould facilitate payment and the complex registration processenvisioned in the Ordinance. The government would be providedwith one of three plat maps issued, the other two going to thepurchaser and to the register. 21 This method would not onlyinsure that the Board of Treasury knew precisely who owned,and owed, what, but also that widely scattered settlementswould not prevail in the Old Northwest. These objects werefurther provided for in that the entirety of the first sevenranges had to be sold before newly surveyed lands were offeredfor sale.The Land Ordinance of 1785 never proved effective as ameans of protection for the federal government's landedinterests in the Old Northwest. First of all, the attempt todisallow any settlement whatsoever before the sale of the thefirst seven ranges was unrealistic. By mid-1787 only three andbetween the newly created Treasury Department and, in 1796 theoffice of Surveyor General. Rufus Putnam was the first to fillthat office. In 1812 Congress created the General Land Officewithin the Treasury Department, largely to relieve AlbertGallatin of the additional work and stress of landadministration. See Malcolm J. Rohrbough, The Land OfficeBusiness: The Settlement and Administration of American PublicLands, 1789-1837 (Oxford: Oxford University Press, 1968;repr., Belmont, California: Wadsworth Publishing Co., 1990),9-10, 40.21 The register's duty was to keep careful track of all landssold, making sure that no tract was sold twice, and to keep amaster plat of all tracts sold. He was also in charge ofdistributing plats to the Board of Treasury, and to thepurchaser, on receipt of the final payment. The receiver wasin charge of all moneys received, as well as tabulating thecomplex system of interest which Congress had designed. Anextremely detailed account of the registration process isavailable in Charles Judah Bayard, The Development of thePublic Land Policy 1783-1820, with Special Reference toIndiana (New York: Arno, 1979)24one half ranges had been surveyed, and the sales were sluggishat best.' Second, there was initially no provision for landoffices in the territory itself, so that purchasers werebuying land sight unseen. Third, the registration process andthe payment plan for land sales were so complex that actuallyobtaining a plat, and a title, were extremely time consumingand difficult.Indeed, title to land would become, and remain, thesource of most of the litigation that took place in all thenewly acquired territories. This was partly due to theimpracticality of the system of sales and registration. It wasalso due to the large number of squatters who had settled,made improvements, and felt that they had earned title totheir claims. At the federal level, Congress was constantlybarraged by petitions from the "ancient" French inhabitantsrequesting a final settlement of thir titles. It was also dueto Congress' determination to profit as much and as quickly aspossible from its new assets. Several large land companies,most notably the Ohio and Miami Companies, and one individual,John Symmes, had contracted privately with Congress to buyover six million acres in the territory. Many individuals whobought from these companies were unable to establish title toland that they had payed for because the companies, throughdefault, fraud or mismanagement, were unable to fulfill theircontracts with Congress. Many of the oversights of the22 Indeed, the survey of the first seven ranges was notcompleted until 1796, when they were again offered for sale,in Pittsburgh.25Ordinance of 1785 would be amplified by the passage of theOrdinance of 1787.The Ordinance of 1787 established a system of governmentfor the Northwest Territory which was intended to progress instages from a colonial style government through to statehood.Initially a form of government was implemented in which theentire upper echelon of officials was federally appointed.Civil and military power were combined in a Governor, whoshared legislative powers with three federally appointedjudges. However, law did not issue solely from the councils ofthe governor and judges in the form of legislation; it wasalso within the governor's power to issue proclamations (tothe civilians) and orders (to the militia). All lesserofficials were to be appointed by either the President,Congress, or, usually, the Governor. This was the "firststage" of territorial government as it was set forth in theOrdinance, and its similarity to colonial rule seems obvious.Territorial Governors repeatedly found themselves in theawkward position of close contact with a local population withwhom they had no real ties, implementing policies that derivedfrom a distant source, and from which they were invested withtheir only claim to legitimacy.'23 This was a particularly difficult position for St. Clair.He did not seem to be aware of the delicacy of his position:his reliance upon governing by proclamation earned him a"private and friendly" letter from President Washingtonwarning him of a potential misconstruction of his actions inthe capitol. George Washington to St. Clair, January 2, 1791Territorial Papers, 2: 320.26The Ordinance of 1787 was also composed of six Articlesof Compact. These articles guaranteed to the potential statesfreedom of religion, a republican form of government, thebenefits of the common law, taxation proportionate torepresentation, and the exclusion of slavery and indenturedservitude. Doubtless, the intention was to soften the nakedlyimperialistic overtones of the first stage of government bymaking these guarantees.Population requirements were to trigger the movement fromone stage to the next. When the population of the territoryreached five thousand free white males of twenty one years ofage and over, the government was to move from a strictlycolonial type of government to one in which there was limitedrepresentation for the inhabitants of the country. This typeof government provided for a House of Representatives electedby the voting public (free white males of age who metresidency, citizenship and property ownership requirements),the House then being empowered to nominate ten men from whomCongress would choose five to serve as a Legislative Council.The Council and House were also empowered to elect a delegateto Congress who had the right to debate but not to vote. TheGovernor, as the chief officer of the territorial legislature,had the power to convene, prorogue and dissolve that body, aswell as to veto any bills passed by the legislature. Theterritory was to be divided into no less than three, but nomore than five states, which were to apply to Congress forentry into the Union upon proving a population of sixtythousand "free Inhabitants."'Politics of Property: Anglo-AmericansSome of the benefits promised by the Ordinance of 1787might have been more forthcoming if it had not been for theodd way that this Ordinance seems to have worked in tandemwith the provisions of the Land Ordinance, slowing allmovement toward statehood to a crawl. For example, therequirements in the Ordinance of 1787 stipulating that eachvoter possess a freehold of fifty acres in the district was,in itself, not unusual in the United States at this time.While it was not universal suffrage, it guaranteed, forinstance, that people from Kentucky could not swamp a countyin the Northwest territory and bias that county's elections.The problem arose when the inhabitants had to prove theirtitles to land. These had been slowed down immensely by thedifficult and unwieldy process provided for in the LandOrdinance, and the Northwest Territory did not enter thesecond stage of territorial government until 1799.24 This stipulation dates back to the 1784 debates thatcentered on sectional power. The North felt that the Westwould be decidedly biased in favor of the Southern states, aswell as providing the latter with certain economic andsecurity perquisites. Therefore it was in the Northerninterest to divide the territory up into as many small blocksas possible, thus safeguarding northern power in the House ofRepresentatives. On the other hand, the Southern section ofthe country wanted to keep the number of potential states low,for the opposite reasons.2728The enormity of the problem of obtaining title to landcan be illustrated by taking into consideration some of theemigration and population figures which are available. Forexample, General Josiah Harmar reported to the Secretary ofWar that 18,761 "souls" had passed down the Ohio River by FortHarmar (Marietta, Ohio) between October 10, 1786 and May 8,1789. 25 This does not even address the existence of a longestablished French population in the city of Vincennes, whichHarmar estimated at 900 "souls" in 1787, nor the populationsof the villages of Cahokia and Kaskaskia, in present dayIllinois. 26 Neither does it mention the number of emigrantswho may simply have crossed the Ohio River from Kentucky tosettle in the Old Northwest. These figures suggest thelikelihood that by 1789 the free white male population in theterritory had outstripped the 5,000 mark, which was notofficially attained until 1799. 27Legal recognition of land ownership was also, however,important to settlers because land title was bound so tightlyto enfranchisement in the territory at this period. It was areasonable expectation that longtime citizens of the original25 Harmar to Knox, June 12, 1789, Territorial Papers, 2: 196.26 The Vincennes population estimate is from Harmar to Knox,August 17, 1787, St. Clair Papers, 2: 26. A Cahokia census of1787 enumerated 239 males and male children, while a Kaskaskiacensus of the same year listed 191 males and male children.The Illinois estimates are in Clarence W. Alvord, The IllinoisCountry 1673-1818 (Chicago, 1922), 624-632, 414-423.27 A census of 1800 records the population of the NorthwestTerritory (present day Ohio, Indiana, Illinois, Michigan andWisconsin) as 27,000 white male inhabitants. HistoricalStatistics of the United States: Colonial Times to 1970, U.S.Department of Commerce, Bureau of Census, 1975, 22.29states should have procured legal title to their lands, butthe same expectation, when applied to such a new and distantterritory, was unrealistic. The question of title wasexasperating for many Anglo-Americans in the territory. Inresponse to a petition received from settlers on the SymmesPurchase, St. Clair explained the ties between voting and landtitle succinctly:"You will consider that the right of suffrage is confinedto those who hold land either by freehold - that is alease for life - or in fee simple. Now, none of you holdlands by either of those titles. You hold under JudgeSymmes, who has himself neither of these titles, and,indeed, nothing but a claim in virtue of a contract,which he says ought to be fulfilled, but which Congress,the party with whom the contract was made, has hithertorefused to fulfill...You stand, in respect to the rightof voting, precisely on the same ground as those who havesat down on the public lands that are not claimed...Butyou think it hard that, as you have paid your money forthe land, you should not have a right to vote...[and] youthink because you have paid [county] taxes, you should beallowed to vote."Unfortunately, there were several communities which hadpurchased land from large land companies, and found themselvesin precisely the same situation.' They were unable toretrieve their money from the company, nor were they able toforce the company to comply to the terms on which they hadagreed to settle. At the same time, they were also unable toparticipate in their own government because they were unableto produce a legal title.28 St. Clair to Joseph Page, December 13, 1798, St. ClairPapers, 2: 436-437.29 Another example of this situation was the community ofGallipolis, which had emigrated from France after contractingwith the Scioto Company. They, too, sent several petitions tothe Governor. Cf. Territorial Papers, 2: 311-312, 422.30These difficulties in obtaining even the most basic ofAmerican entitlements, such as the right to vote, or to bequieted in the possession of property, contrast sharply withthe utopianism implicit within the American Government'scolonizing schemes. The desire to produce a 'new' Americanspace which mirrored the positive elements of Eastern Americansociety was an essential goal of the Ordinance of 1787. Theoddity lies in the fact that the government believed that thisspace, and the society which would colonize it, could beproduced by means of a legal apparatus - a legally producedspace. Henri Lefebvre charts a history of socially producedspace in Europe, yet he suggests that this socially producedspace has been in decline, due to the rise and ascendancy ofabstract space in conjunction with the rise and ascendancy ofcapitalist economic systems.Abstract space, according to Lefebvre, is space which ishomogeneous and homogenizing, institutional andinstitutionalizing. The irony of American utopianism lies inits dependence on politically or legally produced space,rather than on space produced by the citizens or inhabitantsof the territories. With Lefebvre, I would suggest that theAmerican belief that a "true space can be constructed"completely evades the question of the "truth of space". 3° Inthis sense, some of the problems I have pointed to werecreated by the imposition of this rationalized, "true" spaceon lived spatial practice. The key, then, to American30 Lefebvre, 9.31utopianism was written into the Ordinance of 1787: the legal(and political) construction of a space, and the legal (andpolitical) construction of who could, and should, participatein the ownership of that space.The recurring problems with the large land companiespoint out yet another problem with the territorial system oflaw and its lack of fit with conditions on the ground. Thiswas the tendency of the judicial system to become drasticallypoliticized, at both the federal and local levels. At thefederal level, appointments to territorial office tended to bemade according to the appointees' political influence, or tohis party affiliation. Hence, St. Clair's continuation in thepost of Governor of the Northwest Territory despite the bittercomplaints and ruthless attacks made on him by many of the"citizens" can be seen partly in terms of President Adams'election to the presidency. Both men were staunch Federalists,and wary of "democracy", which was seen as the road toanarchy. On the other hand, Winthrop Sargent, the territorialsecretary, may have owed his appointment to his connectionwith the Scioto and Ohio companies (he was a co-founder of theformer), which both had powerful backers in Congress.At the local level, federal appointees had ampleopportunity to influence events. In the Northwest Territorythis was peculiarly true of the judiciary. Of the three menoriginally appointed territorial judges, James M. Varnum,Samuel H. Parsons and John C. Symmes, the first two wereinvolved in founding the Ohio Company, which contracted32privately with Congress to purchase 1.5 million acres, whileJudge Symmes also contracted privately to buy one millionacres. 31 Varnum died, and was replaced by George Turner, whodid not seem to have any involvement in land speculation, butagainst whom there were several complaints on other matters. 32Parsons also died while in office, and was replaced by RufusPutnam, another co - founder of the Ohio Company, and theeventual Surveyor General of the United States.It must be remembered that the judges, along with St.Clair, were the sole legislators for the territory during thefirst stage of government. They were also a court of the lastresort, from whom there was no provision made for appeal, andin which one judge constituted a quorum. Even St. Clair, whomaintained a good relationship with the judges, was alarmed bythese circumstances:"Every land dispute will be traced to some transaction ofone or of the other of those gentlemen [Putnam andSymmes]...Interest hangs an insensible bias upon theminds of the most upright men...In the matters that aremost likely to be litigated, in whichever of theassociations they necessarily happen, these must be of sogreat a similarity that, deciding in one by a judge whohas no direct interest in the cause, may have,nevertheless, as direct and certain an effect in anotherwhere he is interested, as if he had determined his owncause."31 Apparently the surveyor contracted by Symmes did such apoor job that the judge's property ended up to be a mere311,000 acres.32 Turner seems to have had an enhanced vision of hisjurisdiction, for St. Clair complained that the judge meddledin Indian Affairs, at that time the exclusive province of theGovernor.33 St. Clair to Thomas Jefferson, December 14, 1794, in St.Clair Papers, 2: 333.33This letter was written in response to various complaints bylitigants. While I have not found any positive evidence thatthe judges adjudicated in their own favor, their presence onthe bench must have had an impact on the manner in which thelegal system was approached, and used, by the inhabitants.Certainly it would have been the height of absurdity forSymmes' purchasers to expect justice from Symmes' own court.The federal government's efforts to control the pace ofemigration, and the spatial arrangements of settlement werelargely unsuccessful. What is more, after 1787 the brunt ofthe negative force of legal formality appears to have fallenmost heavily on those who actually had an equitable claim toland, or to the right to vote. The Land Ordinance, rather thanencouraging orderly settlement, impeded those settlers whotried to abide by its tenets. The Ordinance of 1787, ratherthan moving the Northwest Territory through the stages ofgovernment according to its population requirements, wasbogged down by the ties between formal legal propertyrequirements and enfranchisement.While the discussion thus far has considered the problemsof territorial law broadly, and in a specifically Anglo-American setting, the same problems were amplified, anddifferent problems created, in the French settlements of theOld Northwest.34Politics of Property Two: The FrenchThe French inhabitants of the Northwest Territory sharedsome of the problems faced by the Anglo-American population,but also experienced the effects of the two Ordinances in waysthat were uniquely related to their own ways of life. Oneissue of particular importance related to the ways in whichtitle stipulations in the Ordinance of 1787 were geared towarddistinctly Anglo-American notions of family and privateproperty. This had a great impact on the French settlers.The case of Vincennes is instructive: the inhabitants ofthis community could trace the establishment of Post St.Vincents in 1732 to the French authorities of Louisiana. Theland on which the post stood, and the surrounding area whichthe inhabitants farmed, had been granted to the French by thePiankashaw Indians, and further confirmed by a conveyance ofthe same by the Piankashaws to Lord Dunmore in 1768, whoreserved it for the use of the inhabitants of Vincennes. 34 In1788 Congress "confirmed" the titles of the French andCanadian settlers at Vincennes who had settled there prior to1783, on the condition that the tracts were surveyed andregistered. It also "donated" 400 acres of land to each headof family who met these 1783 settlement requirements. 3534 This, at least, is what the inhabitants of Vincennesclaimed in a Memorial to Congress of February, 1788. InTerritorial Papers, 2: 92. It would seem that the claim wasnot disputed by Congress, because they based their decision onit, ASP, Public Lands, I: 32-33.35 Resolution of Congress: The Inhabitants of Vincennes,August 29, 1788, Territorial Papers, 2: 14535These donations completely overlooked the differences inthe French system of conveyancing and inheritance which wereguaranteed by the Ordinance of 1787. For instance, there wasno provision made by Congress for minors who held title toland. Certainly there was no provision for women or femalechildren who held title - a case which would not have beenuncommon in the French communities, where property could beinherited equally by all children regardless of gender. 36While the Ordinance eliminated any possibility for theexistence of primogeniture in the territory, the Congressassumed that land ownership was the exclusive realm of marriedmen over 21 years of age, preferably with families. It ignoredthe possibility that land which may have been owned'informally' by a family for decades, could be held by arightful heir as a minor, or that a married woman could holdreal estate which was completely outside the community of36 Inheritance laws were diverse and complex in pre-revolutionary France. Coutumier succession distinguishedbetween nobles and commoners (roturiers), and between types ofproperty: movables, immovables, propres (immovable propertyinherited from relatives) and acquets ( immovables or movablesacquired during one's lifetime through labor). Testamentaryfreedom to dispose of property varied significantly fromregion to region in France, but law required that a lêgitime,a guaranteed share, be reserved for ascendants or children.for a good, but unintended, geography of succession law inpre - revolutionary France, see James Traer, Marriage and theFamily in Eighteenth Century France (Ithaca, New York: CornellUniversity Press, 1980). For a good account of the ways inwhich law was manipulated to "protect family heritages fromthe partition which the law required", see Ralph E. Geisey,"Rules of Inheritance and Strategies of Mobility inPrerevolutionary France", American Historical Review 84(1977), 271-289, 288.36acquets and gains she shared with her husband. 37 The latterwent completely against the common law tenet that women werenot persons under the law. 38The Congressional donations also did not include thecommons, fenced-in land used by the entire community for fueland pasturage, nor did it include the common field justoutside the town itself which was traditionally farmed byFrench communities (see figure 2). 39 These lands were crucialto the French communities of the Old Northwest because theywere the source of most of the grains and dairy productsproduced by the community. They were not, however, privatelyowned, and hence no one individual could point to an area ofthe commons and claim it - it belonged to the community as awhole. Since the land was not divided into separate lots ownedby private persons, Congress initially considered it37 While French women did have legal personalities under Civillaw, I am not suggesting that they were treated equally -sexism was alive and well in French law and French society.See Jane Abray, "Feminism in the French Revolution" AmericanHistorical Review 82 (1975), 43-62.38 William Blackstone described a married woman's status undercommon law as such that "the very being or legal existence ofthe woman is suspended during the marriage, or at least isincorporated or consolidated into that of the husband," norcould a wife bring action for injury "without her husband'sconcurrence, and in his name, as well as her own." Blackstonecontrasted this to the Civil law, under which "the husband andwife are considered as two distinct persons; and may haveseparate estates, contracts, debts and injuries." Commentarieson the Laws of England, St. George Tucker, ed., 5 vols. (NewYork, 1803), 2: 442, 444.39 Clarence Alvord, ed., Cahokia Records 1778-1790.Collections of the Illinois State Historical Library VII,(Springfield, Illinois: Illinois State Historical Library,1907), xxii.(-PoD0/,,A 0 as °A FRENCH SETTLEMENTKASKASKIA. ILLINOISMap A. Plan of Settlement, 1807Map B. Specimen of Common Fields about 18092A aia■ k^t,C ear '//,,•^• •ow Ka.t.ka.i:1,1dC'PofThe Kaskaskia Commons38unappropriated - part of the public domain and hence owned bythe United States. While the concept of a commons would havebeen perfectly familiar in both England and New England in theseventeenth century, it was foreign to the United Statesgovernment by the end of the eighteenth century. It was onlyon the recommendation of Secretary Winthrop Sargent, who wason the spot trying to sort out the title problems inVincennes, that Congress, in 1791 "appropriated to the use ofthe inhabitants" the fenced in common.'But the problems of French title to land were not duesimply to the recalcitrance of Congress; they were alsobrought about by the inability of the American government todeal with the French (and Spanish) system of granting lands inthe Northwest Territory and, later, in Louisiana. On one hand,the federal government failed to recognize that, thoughdifferent, the French and Spanish systems of granting landshad validity and meaning for the people who had received thegrants in question. The European land grant system was basedon a network of relations between the inhabitants and the menthey recognized as figures of authority, whether the authoritywas delegated by the Crown, as in the case of postcommandants, or earned socially and politically, as in thecase of the syndics, who were elected by an assembly of allthe village men to supervise the execution of the laws of thecommons and the assembly's decisions.' The system depended on40 Land Grant to the Inhabitants of Vincennes and the IllinoisCountry, March 31, 1791, Territorial Papers, 2: 339-342.41 Alvord, Cahokia Records, xxiii.39the presence of these men in the community itself, rather thanon an elaborate legal or written procedure. Grants werecontingent upon the fulfillment of certain requirements by thegrantees - for example, in Vincennes it was incumbent uponindividuals to build and maintain fences which passed throughthe portion of the commons they farmed. Not only were theserequirements enforced through pressures exerted personally bythe commandant or syndic, but it was through their fulfillmentthat title to land was recognized. Boundary and other propertydisputes were settled by men who were intimately acquaintedwith the physical and social organization of the community, onthe basis of familiarity and equity, rather than on a formalbasis. This was a necessity considering that very few of theproperties had been surveyed or mapped.Yet another problem, in the eyes of Congress, was theextra-legal appearance of these grants: only rarely was therean extant written record, and if one existed it had notnecessarily been recorded by the commandant or the notary. Forexample, of 88 land titles reported from Vincennes by the lastpost commandant, St. Ange, less than half were "entre sesmains" [in his hands], 33 were "perdue" [lost], and 13"verballes" [verbal]. Oddly enough, all nine of St. Ange'sown claims were in writing and recorded. 42 It was thisvagueness and informality, as well as the potential for abuse,that made Congress so wary of the European system of landholding. Seemingly, the only way to determine the validity of42 Cited in Bayard, Public Land Policy, 9-10.40the French land claims was by an examination of eachindividual's claim, to assess whether the land was actuallyoccupied and improved. Indeed, this is exactly the system thatCongress tried to implement. It was, however, far tooinefficient, arbitrary, and time consuming to work, and theFrench land claims in Vincennes were not satisfactorilysettled until 1819.This brief discussion highlights some of the difficultiesthat the federal government encountered when it came intocontact with established communities with different land useand land grant systems. Vincennes was one of the largest ofthese French settlements, but it had a population of onlyaround 900 people. The Government's inability to copeeffectively or efficiently with the situation in Vincennes didnot arise, therefore, because of large numbers of claims orbecause of a necessity to manage extensive tracts of land. Theproblem lay in the government's profound inability tounderstand some of the basics of the French villages. Theconception of a commons, of communal property, was difficultto grasp, in part because the government worked on theassumption that property could exist only in two forms: it waseither privately owned by an individual, (private property) orit was public property owned by the government. 43 Indeed, E.P.43 This governmental lack of understanding regarding theimportance of commons was paralleled by a similar, but farmore complex process in England. E.P. Thompson has documentedthese struggles over commons, and has pointed to the gapbetween the theory and practice of law, as well as to thevarious contested definitions of what constituted law, arguingthat "claim and counter-claim had been the condition of forest41Thompson has noted a similar problem on each occasion thatEnglish common law has encountered "an alien notion ofproperty in land" - each encounter is marked by the inabilityof the law to take "cognisance of such a communalpersonality.""This can be recast as a conflict between two "logics ofspace".' Lefebvre has argued that abstract space was producedin tandem with a logic of space that served to rationalize andto hide its contradictions. This logic of space, which islinked with order, rationalism, and planning, could beconsidered as a perceptual and conceptual strategy. It seemsthat such a logic of space would necessarily be bound up withwhat Lefebvre has called a 'logic of visualization,' or atleast that the connections between these two logics are clearenough to permit an extended analogy between them.Martin Jay has argued that within a seemingly hegemonicvisual order based on Cartesian perspectivalism 'competingocular fields' developed which offered alternative visualcultures.' Jay has called these visual orders 'scopicregimes', but I think that they provide good examples oflife for centuries. On the one hand, the nobility and localgentry had been nibbling and continued to nibble [at theforest]...on the other hand, the customary tenants of theseveral manors had pressed forward on every occasion their ownclaims to unrestricted grazing, timber and peat-cutting ontheir commons." E.P. Thompson, Whigs and Hunters: The Originof the Black Act (New York: Penguin Books, 1975), 31-32.44 E.P. Thompson, Customs in Common (New York: The New Press,1993), 164.45 Lefebvre, 293-300.46 Martin Jay, "Scopic Regimes of Modernity" in Scott Lash andJonathan Friedman, eds., Modernity and Identity (Oxford: BasilBlackwell, 1992), 178-195, 179.42Lefebvre's logic(s) of visualization. Jay, however, offers nopoint of entry into a discussion of how these different scopicregimes came into being. I would suggest that differentspatial practices or 'styles' produce different logics ofvision, or that different logics of vision could producedifferent sets of spatial practice. Indeed, Jay notes thatthere seem to be correlations between particular scopicregimes and different styles of urban life, for example that"L'Enfant's Washington showed the fit between state power andurban space built according to the visual principles of thedominant scopic regime of the modern era." 47Washington, then, seems to embody a representation ofspace which makes a clear distinction between what is publicand what is private. But more, it embodies a conception oforder, of rationalization, and of politics, which it attemptedto extend through territorialization (see figure 3). We get asense, then, of a logic of space that tends towardabstraction.On the other hand, the French villages do not seem tohave developed this degree of abstraction as yet. One needonly look at any map of the French long lot system in NorthAmerica to see that order, and private property, were47 Construction on Washington began in 1800. The quote is fromJay, ibid., 191.^CZICIOG12531^cacr,^dODD^".. .CiLLIC;$114 .330.301:10..:JC=13(JI:1[331 ^ pta03^ams:AL.;,^jUDDEDDDIouocia 'eCJU DOG? .J3111:n311321LIIL:3RoEutzlopoo. To N-1:1 =.'E.&'22C1L-JOL1LIO^ '"JOUUD,6L10..=, ,.tJ1:10[1030DOUJ Q7 '.1:11 10D9.9u.^ ir-npo -poaciOLIDEIDD Clal ..2Aa[191:133332.C., ,J1 1:0 0 ENCICk)•'-"--J 1-Y-Z1^410;2 °J1:0 0 0 Dj.11,043,7;11,[.:1,Li5 :.-:'1. 3P,P4.0 U NJ EL31111- 1=n1LE1,0,11,,Dju43 3 di, 0 alb -12b0 op 1 a.3 vaj fz:H=1°11,4:LooL.?...9.J.E.11=:1 •CSOVJV01133011011..fLi\..C:IV.,00E3LiL,^j^32 - ti1MODOLTL--9 -11,,^.1,-......z., Ludiaci001:jzi oD ju zlED D=157,'9,,C3o u,L,sj .90C11:10 1:10 C101::1z3 t zu,,, ..-.4‘. ..J EggLT.E.1, 13. EA ,p, E.) J, .,,, L. si,t/.0 jugunDmv,..,i[] :•I^'v 00:Dijoc3. _ . A.,- , , 9ponL33DOUni..10 ,:j.,Z4-`1L-JCICI3DCJDOPLJ37^" ,,JEmon.: ;.;.,,. t1.4-7,--,-4.,-.. -;,.2;:va-n3031...Luopi.c..-1-Li-J,._,.....,.-: 100^.ICl z-,"1, Pr, ICID Uc--i. 'J'Y^1_11'4 30 7-:. — .„.. '''CJI7-1;Y:LJZ.)r,2 °°1160JUD117, , ., .. ,-4 ..,9 1=1„1:=1 ,,„ )„211 -'---:'"LNfi Fniq_l_irFs'ap ) :;JoNDUEJWA P.: ibtfjj^E LI`-- -- -----,-, r., . ,,7;,,,,” 107---....- Qz,Y:,,...,.. ..Fd...::::_g 3, 21,31:0, ::::77,,b.,:u232,00Door,^ •....^..luovnlqp,..^.sp, yRo Lzi=:,.-, 1 ---^, 1,__ i  ,.......,.....o^..1:4 - .. - :-.'a,uni.i0- sblON (..'ZIDO:OD: D1 1.___ 2 ,1=1301.7 DF.,:0:2)L.-5 1p.., L2., L., illu,_ g .i.-- :E:i nJID ,=.1, 1 n'c4,- ci ---i. '"1 , 0].] 1. J3jd r:1 .-711: ,,.‘1;!:11..."' L331:313.1=:Eg.'"-1"-.--j 471/,^1.1 L. Ejli.14, : ., 70 .TCa3f)E'rE rAjj 95D03JJDELI QILID-10.4e-•-1:_'sho ::-..i ,..:_l DJ.--...1J,7-1'..L1=.31 ,"" -J ^ ',0ijDoD3DD -;,'; '57 DoIER-t..FQ1DJJD.7,32:13_,Z1=^,...1-,' ..5,.. O CIZZJaoo . ..^..z.-j=c..,..C:1^U,':1 _Ita., In ':1 ° a .4^DD ^7 ADAJL, 07J1^MD - -' ID D JDU'DO^). J OD^.13 -'0 D 0 -113DDD?' 27'LJ ^ r33223:124-‘^0707JUTJ373Di^ p A- 11^°^0301 -1^:',;.114ib^faCZILDLY ^aictJOD530C30CAMLI LI^D31111,illi•ILDGUY,Sv>, dOC:32 JD CJETILAIL. ,--6,1[30DJ^OLDADIJI4LIVJUVAL1 DODD eni3t'uil]A-o w .13 UILDING FOR TILEMETROPOLIS OF AMERI CA.AND ESTABLISHED AS THEPER NA NEXT RE S I DE NCE OFCONGRES SPLANOF Tin' CITY OFWA S KIN GTON;AFTER TILE 141181800.(1793 )5881,5 54'5180e. Cs.pitol...^38 53 N.Lao gitud• . 0.0Lon..fivw^ 7; .5 V,Washington, D.C.44important. But the existence and importance of communalproperty, seem to suggest that in Vincennes these visions ofspace had not hardened to the same extent as had the federalgovernment's vision of space. Property was not seen as eitherpublic or private, but as something in between. I think thatthis suggests that there are geographies (and histories) ofthe abstraction of space that have not yet been examined, andfurther, that these geographies and histories suggest thatperhaps abstraction is not so globally hegemonic as it hadseemed to Lefebvre to have become in Europe.It seems possible, then, that the commons in dispute didnot have a place in the American government's logic of spacefor two reasons. First, since the commons were notindividually, privately owned, they could not be legallyclaimed by anyone other than the federal government. Second,by virtue of the invisibility of the commons as a legal object- belonging neither to the public or the private domain - itcould have no social reality for the government.The federal government was also unable to recognize thatsocial and legal definitions shift between cultures. Thedefinition of a land owner in the United States assumed afamily man, of a minimum age, who had acquired title in alegally prescribed fashion, and who could, therefore, vote.The definition of a landowner in the French villages was farbroader than this. There were fewer age and gender limitationson property ownership and the legitimacy of title did nothinge on formal legal requirements to the same extent that45title under the U.S. did. The link between title andenfranchisement was probably felt differently among theFrench, where communal decisions were traditionally made byall the men of the village on Sundays after mass in front ofthe church door. The right to vote would have been anessential emblem of the entire U.S. political system toAmericans. It was in part these social discrepancies whichmade the system of territorial law, and its common lawassumptions, seem so out of tune with the lives of the Frenchin the Old Northwest. Indeed, it must have seemed out of tuneat the time: by 1794, the situation in Vincennes had becomesuch that "The French inhabitants, I mean such of them as yethold their land rights, for by far the greater part, havingneither patience, nor confidence in the Government, have soldtheir rights for little or nothing ...."" The French, then,frequently preferred to sell in order to relocate across theMississippi River in Spanish territory, where property rights,religion, and the political system must have seemed morefamiliar.ConclusionsThe Ordinances of 1785 and 1787 affected the French andAnglo-American populations of the Old Northwest in differentand unexpected ways. On the one hand, government adherence toinefficient and highly formalized mechanisms of acquiring48 Judge Turner to St. Clair, June 14, 1794, St. Clair Papers,2: 326. The situation in Vincennes would not be cleared up tothe satisfaction of the inhabitants until 1819.46title deprived many Anglo-Americans of their political rightto vote. On the other hand, the extension of American commonlaw to the French settlements endangered customary rights toland, and rights to property ownership. In the case of theFrench, I have suggested that many of their problems could beattributed not only to differing legal constructions ofproperty ownership, but to a clash of spatial logics. Theselogics differed not only over space, but over time: the Frenchin the Old Northwest seem to have clung to an older logic ofspace which emphasized different objects than did the Americanlogic of space. The latter seems to have been far moredependent on written and legal rationalisms, and particularlyso as a means of imperialist expansion.These small effects and responses elicited byterritorialization are examples of two of my goals in thischapter. First, I wanted to show the importance of private lawto American territorial expansion. But I also wanted todemonstrate the unforseen consequences of extending commonlaw, and land laws, to the Old Northwest. I think these areimportant issues because they lend some insight into, in thiscase, the common law's potential for assimilation andAmericanization. These potentials were brought about largelyby American private law, seemingly the least coercive segmentof the American legal system. I think that frequently weoverlook the ways in which legal definitions, of women orproperty for example, structure and construct people's livesin complex ways. In this sense, these constructions of47individuals and their everyday lives serve as an allegory forcolonialism, which also shapes people and their lives, in bothovert acts of violence, and in far more insidious and subtleways.And second, I wanted to show how the effects of theextension of common law to the French settlements in the OldNorthwest could be used as "miniatures", which would alsoserve to introduce the problems that the much larger Frenchpopulation in Louisiana would encounter after the LouisianaPurchase. By 1805, both Ordinances would be in force inLouisiana. The effects they would have on that population, andthe reactions they would engender, though, were vastlydifferent from those in the Old Northwest. I will trace outone possible history, legal and political, of Louisianians'responses to the extension of territorial law.48Chapter 2One Spot on the Globe: Law and Land inTerritorial LouisianaThe Louisiana landscape in 1803 must have presented arather desolate aspect to newly arrived Americans. Arriving bysea from Balize at the mouth of the Mississippi River, swampand marsh predominated for the two weeks it could take to makethe one hundred mile trip upstream to New Orleans. Habitationsbegan some 27 miles from the city, but concentrated settlementappeared only 18 miles south of the city itself, and thetraveller's view was obstructed by the levees which rose oneither side of the river to guard against seasonal flooding.New Orleans itself presented a dilapidated spectacle to thetraveller, straggling along for about a mile on the east sideof the river. It was, however, a bustling port city, a "towerof babel" during the winter trading season. The population of8,000 was divided almost evenly between blacks and whites; butthe Anglo-American population was outnumbered by about sevento one by the French-speaking community. Divisions within NewOrleans society were numerous, but (race aside), the largestsplit appeared between the Anglo-Americans and the 'ancientinhabitants.' The linguistic and cultural divide between thesetwo groups was reinforced by religious differences:Louisianians were avowedly Catholic, while the majority ofAnglo-Americans were Protestant.Many of these sources of conflict between the ancientinhabitants and the Anglo-Americans were manifested inpolitical and social struggles which often revolved around49questions of law. Louisianians were accustomed to a legalsystem which had its roots in the Roman legal tradition, whilethe Anglo-Americans saw common law as familiar, and as a meansto assimilate and Americanize Louisiana. Louisianians wereaware of the American desire to implement common law in theTerritory, and the remainder of this thesis will trace outsome of the confrontations that developed around thesecompeting legal systems.The previous chapter outlined the establishment ofTerritorial government in the Old Northwest, and some of theproblems that the common law system created for the Frenchinhabitants. The Louisiana Act of 1804 was Congress' firstattempt to install an American territorial government andAmerican legal principles in Louisiana. The Act arousedantipathy in Louisiana on three counts: the governmental andjudicial institutions that were established, the new anddifferent land policies of the federal government, and the banon the importation of slaves into Louisiana from outside theUnited States. This chapter revolves around two provisions ofthe Louisiana Act: land law and common law, and focussesspecifically on the differences between American and Europeanland grant systems, and on the strategies Louisianiansemployed to register their dissatisfaction with theCongressional land laws and with the American system of commonlaw. 1 The next chapter focusses on the ban on slave1 Terminology is problematic. I will use Anglo-American todenote English speakers from American or English backgrounds.The French-speaking 'community' in New Orleans and throughout50importation proposed by Congress, and the Louisiana reponsesto it.Jefferson's PurchaseOn October 1, 1800, Spain and France signed the Treaty ofSan Ildefonso, which effected the secret retrocession ofLouisiana from Spain to France. When rumors of the transferreached the United States government in 1802, PresidentJefferson responded promptly with a letter of inquiry toRobert Livingston, the American Ambassador in Paris,explaining:"...There is on the globe one spot, the possessor ofwhich is our natural and habitual enemy. It is NewOrleans, through which the produce of three - eighths ofour territory must pass to market, and from its fertilityit will ere long yield more than half of our wholeproduce and contain more than half our inhabitants.France placing herself in that door assumes to us theattitude of defiance. Spain might have retained itquietly for years." 2American alarm grew when the American right of deposit at NewOrleans was suspended by the Spanish Intendant Morales inLouisiana poses more of a problem because it was composed ofCreoles, people of French or Spanish descent born inLouisiana; French from France and other French colonies; andAcadians and their descendants in more rural areas. I havesettled on 'Louisianians' to describe this diverse group ofFrench speakers. Both groups were extremely fluid, reflectingvarious, and varying, economic, political, and romanticinterests. I certainly do not want to suggest that there was astabilizing or unifying consensus within either 'community' -both were factionalized, and alignments may have reflectedagreement on one particular issue. Free people of color andslaves may have formed two other distinct communities inLouisiana as well.2 President Thomas Jefferson to Robert Livingston, April 18,1802, Paul L. Ford, ed., The Writings of Thomas Jefferson, 10vols. (New York, 1892-99), 8: 143.51October of 1802, precipitating talk of war in the west. Thesetwo circumstances combined to pique American interest whenTalleyrand (French Minister of Foreign Affairs) hinted that anAmerican purchase of the territory from France was possible.Negotiations took place in Paris throughout the month ofApril, 1803, a Treaty of Cession was signed on April 30th, andthe United States purchased Louisiana for fifteen milliondollars.The Purchase was vehemently protested by the Spanish, whobased their complaints on a promise made by the Frenchgovernment that it would never alienate the territory withoutthe approval of the Spanish government.' These protestscompounded the need for haste on Congress' part to ratify thetreaty, which stipulated a time limit for ratification aftersigning.However, Jefferson was plagued with misgivings aboutoverstepping a strict construction of the Constitution, whichmade no explicit reference to the incorporation of foreignterritories or peoples into the United States. He thereforecontemplated the desirability of a Constitutional amendmentauthorizing the acquisition of Louisiana. This, however, wouldtake time to be ratified by a majority of the states.Jefferson's dilemma boiled down to a conflict between "...his3 For an overview of the diplomatic correspondence between theSpanish Minister of State, Pedro Ceballos, and the SpanishAmbassador to the United States, Casa Yrujo, see James A.Robertson, Louisiana Under the Rule of Spain, France, and theUnited States, 1785-1807, 2 vols., (Cleveland, Ohio: ArthurClark Co., 1911), 2: 65-136.52philosophy of strict construction,...[and] the need forexpediency and practicality in government." 4 Expedience won theday, for Jefferson submitted the Treaty to Congress with nomention of the need for an amendment to the Constitution.There were other ideological problems posed by theacquisition of Louisiana which had not been previouslyencountered in the short history of the United States. Chiefamong these was the shadow of imperialism which was cast overthe Jefferson administration by the presence of large numbersof 'foreigners' along the southern banks of the MississippiRiver. This presence did not simply require the acquisitionand settlement of empty lands but entailed the subjugation andassimilation of 'civilized' people. The debates in Congresswhich would follow reflected these concerns, and centeredaround questions of the governance and incorporation of such alarge population of foreigners into the Union.The Treaty was, however, ratified quickly. An awarenessof the strategic and economic importance of Louisiana did muchto outweigh the ideological qualms of Congress regarding theConstitutionality of the Purchase, and the United States tookformal possession of Louisiana on December 20, 1803.Congress next addressed the mode of government whichshould apply to Louisiana. Disagreement centered around threeissues. First, the meaning of the guarantee made in Article 3of the Treaty of Cession, which read "The inhabitants of the4 David A. Carson, "Blank Paper of the Constitution: TheLouisiana Purchase Debates", The Historian 54 (1991), 477-490,479.53ceded territory shall be incorporated into the Union of theUnited States and admitted as soon as possible according tothe principles of the federal Constitution to the enjoyment ofall these rights, advantages and immunities of citizens of theUnited States, and in the mean time they shall be maintainedand protected in the free enjoyment of their liberty, propertyand the Religion which they profess." The second issue stemmedfrom the first: if "as soon as possible" did not meanimmediately, then what was the best system of government for aforeign people to whom "...the principles of a popularGovernment are utterly beyond their comprehension "' ? Andlast, what type of government would best enable the UnitedStates to establish and retain power over Louisiana?There seems to have been some tacit agreement that theTreaty of Cession provisions must take a back seat to the morepractical question of government. The debates on this issuewere polarized between those who believed that one of theexisting grades of government set forth in the Ordinance of1787 should be extended to Louisiana, and those who believedthat a new form of government should be fashioned to fit thepeculiarities of the situation. The range of these debatescannot be detailed in the context of this thesis, but twoexcerpts can index the scope of disagreement. TheMassachusetts Representative, Mr. Eustis, declared that,5 Claiborne to Madison, January 2, 1804, in Rowland Dunbar,ed., The Official Letter Books of William C. C. Claiborne1801-1816, 6 vols. (Jackson, Mississippi, 1917). 1: 328[Hereafter cited as Letterbooks].54" I am one of those who believe that the principles ofcivil liberty cannot suddenly be engrafted on a peopleaccustomed to a regimen of a directly opposite hue...itis absolutely necessary to consider the relation of thesepeople to the United States. I consider them as standingin nearly the same relation to us as if they were aconquered country... 1"And from Mr. Campbell of Tennessee,"Is there, too, anything in the Spanish government whoseeffects are so degrading as to disqualify a man fromenjoying freedom? If this were the case it would havebeen an argument against accepting the country atall...If this principle [of waiting until a people weredeemed ready for liberty] had been pursued, liberty hadnever flourished; if the people had never enjoyed libertytill they were ripe for it, how many ages of darknesswould have passed away!" 7Thus, much of the debate centered on the political status ofthe inhabitants of Louisiana, and particularly their relationto the federal government - were they to be treated asconquered people or as citizens?An Act Erecting Louisiana into Two Territories, andProviding for the Government thereof was passed on March 26,1804, and was to take effect on October 1, 1804. 8 It did notextend the first stage of government set forth in theOrdinance of 1787 to the new territory, but provided insteadfor a more restrictive form of government. The Act providedfor a governor vested with civil and miltia powers, aterritorial secretary, and three superior court judges, allpresidential appointees. Justices of the Peace, the AttorneyGeneral and district court judges were also to be federallyappointed. Legislative powers were to be vested in the6 Annals of Congress, 8th session, 1st Congress, 1058.7 Ibid., 1066-1067.8 2 Statutes 283-289.55Governor, and a Council of thirteen "fit and discreet personsof the territory", all to be appointed by the President. TheGovernor was to legislate for the territory, "by and with theadvice and consent" of the Legislative Council.Obviously, this arrangement did not allow any kind ofself-government to the inhabitants, but the Act went further,dividing Louisiana into two territories, the northern sectionto be called the Louisiana Territory, and the southernportion, the Orleans Territory. This would have reduced thepopulation of both territories sufficiently to ensure thatthey would not meet the population requirements for statehoodwhich had been established by the Ordinance of 1787, while noprovisions or guarantees for statehood were included in theAct. But protest and resistance revolved around three specificprovisions of the Louisiana Act. In this chapter I focus ontwo of these provisions: the first provision covered land, andvoided "every act and proceeding...towards obtaining anygrant, title, or claim to...lands" subsequent to the Treaty ofSan Ildefonso. 9 The second provision concerned the limitedextension of common law to the Territory. The next chapterwill focus on the issues of slavery, for the Act also includeda ban on the importation of slaves from outside the UnitedStates.9 Act of March 26, 1804 2 Statutes 283-289 (1804)56A Powerful Engine: Land LawCongressional land laws and Louisianians' responses tothem are best understood in the context of the land policiesestablished by the Spanish government during the periodbetween 1769 and 1802. These policies were in marked contrastto those of the United States (1803), and left a number ofincomplete titles with which the latter government had tocontend.The Spanish did not view Louisiana land as a source ofprofit through sales, but rather as a way of attractingsettlers and increasing the population. A liberal immigrationpolicy aimed to make Louisiana self-sufficient agriculturallyand defensively. Land was usually free, and periodically theSpanish government offered special inducements to newsettlers. In 1778, for instance, Governor Galvez decreed thateach new settler would be provided with farm implements,maize, and two hens, a cock and a two-month-old pig. 1° TheSpanish government, however, stipulated that land ownershipdepended upon the fulfillment of certain conditions, mostnotably the building and maintenance of levees by settlerswith water frontage. This stipulation for the construction andmaintenance of levees, had been established during the Frenchregime and was continued by the Spanish government. Yetanother inducement offered to settlers was freedom of10 C. Richard Arena, "Land Settlement Policies and Practicesin Spanish Louisiana", in John Francis McDermott, ed., TheSpanish in the Mississippi Valley 1762-1804 (Urbana:University of Illinois Press, 1974), 59.57conscience during the first generation, which was tempered bythe requirement that the second generation must be Catholic.Each Spanish Governor-General exercised discretionary powersover land policy, so that the Spanish system tended to beflexible, changing in response to circumstances orgubernatorial personality.Confirmation of land grants under the Spanish system wasa lengthy and complex procedure, and most inhabitants seem tohave regarded it as an unnecessary expense.II Since theSpanish government rarely re-annexed lands to the Crown fornon-fulfillment of conditions, permission from the postcommandant was generally recognized to be sufficient proof oftitle.fl11 An example of the complex and time-consuming nature of theprocess can be found in ASP, Public Lands, IV: 506. Thefollowing Spanish grant was declared by Congress to be "themost authentic and complete that is known: The legalrepresentatives of Narcisse Carri6re claim a tract of land, -In this claim the following documents of title have beenfiled: a) The requ&te of the said Narcisse Carrie- re, dated atOpelousas, Nov. 24, 1777, soliciting a grant of the abovedescribed tract of land. b) The certificate of the commandant,Chevalier de Clouet, dated Nov. 25, 1777, stating that theland petitioned for was of the domain. c) The order of surveyby Governor de Galvez, dated at New Orleans, Feb. 26, 1778,conceding the said land as solicited to the petitioner, andordering the commandant to fix the boundaries of said land. d)The return or certificate of the commandant, Chevalier deClouet, stating that he had fixed the boundaries in thepresence of Narcisse Carriere and the neighbors, dated Nov.28, 1778. e) The patent or title in form by Governor de Galvezto the said Narcisse Carriere, dated at New Orleans, June 23,1781, for the above described land."12 Major Amos Stoddard, Sketches, Historical and Descriptiveof Louisiana, (Philadelphia: Mathew Carey, 1812), 248 - 249.Stoddard was appointed "commandant" of St. Louis by Jefferson,who believed that this system of government should bemaintained for a time in Upper Louisiana. Apparently Stoddard,who spoke French and was familiar with the inhabitants and thearea through long residence, was very popular.58It is not surprising, then, that Louisianians werealarmed by the Congressional order of 1805 requiring them toregister their land. Besides the generally relaxed attitude ofthe Spanish government to legal title, there had been twodevastating fires in New Orleans in 1788 and 1794 which hadconsumed most of the city, and, most important of all, thedocuments stored there. Other factors contributed to thedestruction of written proof of title, such as humidity,hurricanes, and frequent flooding. With their emphasis onlegal, written title, the Congressional land laws wereperceived as designed to deprive Louisianians of theircustomary landed property rights. This opinion was echoed byother sources at the international level where there waswidespread belief that the American acquisition of Louisianawould profoundly affect property. Pierre Clement Laussat, theFrench Colonial Prefect sent to receive possession ofLouisiana from Spain in 1803, wrote to his government that,"one of the most speedy effects of the change insovereignty is going to be a complete revolution in thebasis of the population of these countries. The best partof the principal properties will have changed hands therein less than ten years. The ancient colonists will bedisgusted, repulsed, dispossessed, driven out." 13Laussat believed that the process of dispossession hedescribed was a breach in the third article of the Treaty ofCession, and could warrant French intervention on theLouisianians' behalf, thereby maintaining France's "connection13 Pierre Clement Laussat to Decrês, French Minister of theNavy and Colonies, April 7, 1804, in Robertson, 11:57.in their bosoms."' He disagreed with Napoleon's decision tosell Louisiana to the United States, in part because hebelieved that it had great potential value, and in partbecause he believed that Louisianians still regarded Francewith affection.The Spanish Ambassador to the United States alsoremarked on the new land situation in Louisiana, and byextension its possible benefits for Spain:"By its article 14, [the Louisiana Act] annuls allconcessions of land made in the territories ceded byFrance to the United States after the treaty of April,1803. That measure puts the inhabitants in the mostdisagreeable position, for they see in it a pretext forattacks on their property, and their dispossessionthereof."'Many Spanish officials connected with Louisiana regarded theproblems that surrounded land title as important because theybelieved that it would encourage Louisianians to emigrateacross the Mississippi into Spanish territory, and there forma buffer against future American expansion, while at the sametime weakening Louisiana through depopulation. 16The reality of these fears can be confirmed at the locallevel. An editorial dated August 7, 1804 in The LouisianaGazette, warned:14 Ibid., II: 58. Schemes like this, coupled with Spanishprotests of the cession, mitigate some of the Americangovernment's paranoia at this time.15 Marquis de Casa Calvo to the Spanish Ambassador to theUnited States, Don Pedro Cevallos, May 18, 1804, in Ibid., II:19116 See in particular "Reflections on Louisiana", by VincenteFolch, Spanish Governor of West Florida, 1804?, Ibid., II:325-347.5960"Reflect on these truths Louisianians, and on the miserythat awaits you when you are to be governed by adependent legislature, when justice is to be administeredby judges dependent on the will of the President, andremember that the man is rarely to be found independentenough to [form a] judgment against his employer orpatron. That this concerns you all is plain - look toyour land titles - what has the Unites States done withrespect to them - what has it declared sufficient toensure you the enjoyment of your property - . 117This editorial not only reflects the concern that many localsfelt about the provisions made for land title in the LouisianaAct, but it may also have been intended to generate and focussuspicion. This, at least, was the prevalent opinion of manyfederally appointed officials in Louisiana. 18The provisions of article 14 of the Louisiana Actremained in effect for less than a year, when Congress passedthe Act of 1805, which was concerned wholly with title to landand the establishment of a registration process for Louisiana.Louisianians regarded this law as even more intrusive and less17 The Louisiana Gazette was certainly not impartial in itsreporting. It tended to reflect the opinions of Anglo-Americans, and to disagree with federal policy regardingLouisiana. Claiborne feared that "we shall soon find here astrong federal Party, nearly all the Gentlemen of the Bar, andmany of the Merchants are of that Sect; they have a federalpaper (the Louisiana Gazette) and it is assuming a decidedTone." Claiborne to Jefferson, December 21, 1804, TerritorialPapers, 9: 358.18 It is interesting how frequently the question of land titlewas linked to local self-representation, and the number ofways that title was justified. One unusual view was offered inresponse to Thomas Paine's article: "You add, we wish togovern a Territory which you have purchased. In what have youmade the payment? Do you not say that you are to pay forLouisiana from the proceeds of the sale of lands in thisterritory? In that case it is not you that pay the debt. Areyou ignorant that this territory belongs to us by rights ofconquest from the Indians above an age since? How often haveour fathers and we spilt our blood to acquire and preserve it?What, would you deprive us of our privileges and powers solegitimately our due?" November 17, 1804, The Union.61equitable than the Louisiana Act and anxieties increasedproportionately.An Act for the Adjustment of Land Titles, approved byCongress March 2, 1805, set up a complex system of landregistration, and also defined who must register, and thetypes of land grants that would be countenanced by the UnitedStates government. The first two sections of the Act providedcriterion for incomplete grants which would be acceptable tothe United States. The first of these sections provided forpeople who had obtained orders for survey or duly registeredwarrants from the French or Spanish government during the timethese governments had possession of the territory; theclaimant must also have actually inhabited and cultivated thatland. The second section confirmed titles to people who hadobtained permission to settle from the proper Spanishauthorities prior to December 20, 1803, and had settled,inhabited and cultivated the land by that date; these tractswere not to exceed one square mile. Both sections stipulatedthat these types of incomplete grants were valid only if theparty was the head of a family, or above twenty-one years ofage. The fourth section provided that persons claiming land byvirtue of legal French or Spanish grants made before October1, 1800 were permitted to file their claim of notice with theRegister, but people claiming by virtue of incomplete titles,or under the first two sections of the Act were required to62file in writing by March 1, 1806, under penalty of theirclaims being "forever barred". 19In July, 1805, John W. Gurley, Register for the EasternDistrict of the Orleans Territory, journeyed through theparishes in his district to assess the situation. He reportedthat the 1805 Land Law had not been well received by thegeneral populace, indeed that it was"reguarded by the enemies of ye Government as a powerfullengine by which to excite discontent in this Territory.Already it is represented as intended to rob the peopleof their rights [,] to destroy the equitable titles whichexist in the Country and finally to become the instrumentof the most vexatious oppression."'To counter this discontent, Gurley, a longtime resident ofLouisiana, intended to make an extended tour through theEastern district, disseminating copies of the Land Law inFrench, explaining the law to the people, and providing themwith claim forms and detailed instructions for completing theforms.It seems that Gurley was an unabashed optimist. On March6, 1806 he reported that the people of the Eastern districtseemed well satisfied with the promptness of the LandCommission, while at the same time noting that 160 claims hadcome before the Commission.' The Eastern District comprised,roughly, "all that part of the Territory which lies East ofthe Mississippi, together with all the parishes lying on the19 2 Stat. 324-329.20 John W. Gurley to Claiborne, July 25, 1805, TerritorialPapers, 9: 477.21 Gurley to Secretary of the Treasury Albert Gallatin, March6, 1806, Ibid., 9: 606.63West bank and bordering the same, and including the Fourche"(see figure 4). 22 This of course was the most populous portionof Louisiana at the time, and the figure given by Gurley ofonly 160 claims speaks volumes about the almost complete lackof local participation in the registration program. Thisdisregard of federal instructions was not just a reflex to thenewness of the process, or the result of inadequate time forclaimants to register. Louisianians continued to disregardfederal instructions concerning their titles despite federalpressure and, eventually, federal concessions.For instance, the Land Act of April 20, 1806 removed theage requirement of claimants if they had inhabited the landfor ten years prior to December 20, 1803, while the Act ofMarch 3, 1807 repealed both age and head of familyrestrictions, and increased the amount of land that anindividual could claim to two thousand acres. Both Actsextended the time period allotted for registration, as well asextending the powers of the commissioners. In 1808, BenedictVan Pradelles, the new Register for the Eastern District,reported that 183 claims had been filed under the first law(1805), 148 under the second (1806), and 50 under the third(1807). 23 A report from the Eastern District in 1811 estimatedthat over eight-tenths of the land grants in that districtwere based on incomplete titles. Considering that "all thelands on both sides of the Mississippi from the22 Gallatin to Gurley, March 30, 1805, Ibid., 9: 427.23 Van Pradelles to Gallatin, June 11, 1808, Ibid., 9: 791-792.MOBILE • '.,‘POINTE COUPEENATCHITOCHESNATCHEZmae•ADAYESBILOXI^PENSAC07;_z-Dauphin IslandA IZEORLEANSjV-2 I•BATON ROUGEBARATARIABAY ST. LOUISThe Eastern and Western Districts65distance of sixteen leagues below New Orleans to Baton Rouge,are granted to the depth of forty acres...", a total of 331claims in four years is a poor showing indeed.'The situation in the Western District - "all thesettlements on the Red and Washita rivers, together with theparishes of Attacapas and Opelousas" - was somewhatdifferent.' The federal government assumed that most of thevacant lands in the Territory were located in the WesternDistrict, and this was of two-fold importance. First, theWestern District represented the most potential profit for thegovernment, and second, it offered the best opportunity toaccomodate a large influx of Anglo-American settlers. Thegovernment was anxious that the latter should take place assoon as possible: it would begin the shift to the Anglo-American majority that the federal governent regarded asindispensable to establishing firm governmental control in theTerritory.' It is unclear how many claimants actually24 "Description of Louisiana" in Annals of Congress, 13: 1496-1578.25 Ibid.26 "You will perceive by the subsequent sections of theenclosed Act, that it is the wish of the Legislature that thepublic lands should be offered for sale in that quarter [inthe area around the Bayou Teche]; and I will add, that thatobject is considered as intimately connected with the welfare,& even the safety of that newly acquired territory. - For itis the only portion where any great increase of Americanpopulation can take place, and I need not comment on theimportance of that object. - It may indeed in this instance befound necessary to sacrifice the scientific correctness, whichwould otherwise be desirable, to the dispatch which isindispensably necessary." Gallatin, like Jefferson, believedthat an Anglo-American majority was necessary to fix theAmerican presence in Louisiana, and to gain control over localpolitics. Gallatin to Surveyor General Isaac Briggs, May 8,1806, Territorial Papers, 9: 630 - 631.66attempted to register in the Western District, but Secretaryof the Treasury Albert Gallatin thought in April of 1806 thatfewer than 500 claims had been presented to theCommissioners. 27U.S. Commissioners gave a variety of reasons for the lackof compliance with the land laws, among them the disappearanceof the Spanish archives, a Louisianian belief that the Spanishwould soon regain possession of the Territory, and themachinations of enemies of the government.' There is not agreat deal of evidence available which portrays the attitudesof Louisianians themselves - breaking the law is not somethingone writes to a cousin about. A petition from claimants in theWestern District sheds some light on the matter:"That Among these Causes for their non Entry, some ofyour petitioners state, that they are Ignorant natives ofthe Country, and Unacquainted with the views of theGovernment, and Consequently, were frequently advised bythe Enemies of that Government, not to make an Entry oftheir Claims, as their Titles wou'd be lost; That, othersof your petitioners, were discouraged from Enrigisteringtheir Claims, under the defects of the first Land Laws,that were passed. When they resorted to the office forthat purpose, they were told, that these claims wou'dultimately prove to be invalid under the Law; so thatyour petitioners, to save Expense, did not make theEntries - These discouragements operated on others oftheir neighbours, who also, deemed it Unnecessary toEnter their Claims - By this means, the claims of yourpetitioners who live retired, were never entered undersuccessive changes of Laws that were more favorable.-That, another class of your petitioners, were preventedfrom entering their claims in time, by their papers beingeither mislaid, or in the spanish Country; others, from27 Gallatin to Senator Joseph Anderson, April 6, 1806, Ibid.,9: 624-625.28 Cf. James Brown to Gallatin, December 11, 1805; BenedictVan Pradelles to Gallatin, June 11, 1808; Gurley to Claiborne,July 25, 1805 and James Brown to Gallatin, September 3, 1805,in Territorial Papers, 545 - 548, 791-792, 477, and 496-498.67the retired habits of their lives and great distance fromthe Land office, which precluded them from a knowledge ofthe necessity of the Measure; and others again, frommisconceiving the intentention of the Requisition toEnter, which they have Since found to be just - " 29The reasons given for failure to register, then, range from abelief that the land laws were unjust to fear that title wouldbe denied. Many written titles were unavailable due to theremoval of the Spanish archives, but many people claimed landon the basis of requetes, which were basically writtenpetitions, stating certain facts about the petitioner (size offamily, etc), and signed by the proper post commandant. Thesesigned requ&tes were considered as sufficient proof of titleduring the Spanish period but carried little weight withAmerican officials, who were accustomed to a far more formal -written and legal - system of proving ownership. Gallatin, inparticular, seems to have construed requetes according to aliteral French translation - a request - and denied theirvalidity as a formal means of establishing title.'It is not difficult, therefore, to make a connectionbetween the perceived injustice of the land laws and thebelief that the registration process was the mechanism bywhich American law would deprive Louisianians of theirproperty. While this attitude may not have applied to all the29 Petition of December 15, 1811, Territorial Papers, 9: 959-96030 ASP, Public Lands, II: 765-766. Also Gallatin toCommissioners of the Western District, May 24, 1811;Commissioners of the Eastern District to Gallatin, January 25,1811; and Claiborne to Gallatin, December 24, 1810. Claiborneuses the word "rickets", which I presume is an Anglicizedversion of requ6tes, Territorial Papers, 9: 934-936, 919-921,and 903-904.68less politically active, more geographically isolated portionsof the Louisiana populace, public opinion on this issue wascertainly widespread and united. James Brown, Register for theWestern District, stated that:"The inhabitants of N[ew] Orleans and of the Islandsformed by the Iberville and the Chafalaya give a tone orimpression on political subjects which pervades the wholeTerritory. On no questions are the feelings of the peopleof every Country more alive than on those which affectthe Titles to the Lands on which they reside." 31It seems that the lack of participation, whether instigated inor around the New Orleans area, was the norm throughoutLouisiana.Despite the increasingly liberal attitude of the federalgovernment's land policy, the damage had already been donewith the implementation of the Act of 1805. The Act hadnumerous faults, which necessitated frequent Congressionalsupplementation and repeal. 32 Despite these changes, theinitial impression that the federal government intended todeprive the inhabitants of their property was slow todissipate - the Land Act represented a position in which thefederal government, "instead of taking possession merely ofpublic lands and leaving private property to individuals,virtually declared the whole a public domain and required alllandholders to come forward and prove their titles." In31 Brown to Gallatin, September 3, 1805, Ibid., 9:497.32 Congress passed a series of increasingly liberal land Actsin 1806, 1807, 1811-1814, and 1820.33 The quote is from Harry Lewis Coles, Jr., A History of theAdministration of Federal Land Policies and Land Tenure inLouisiana, 1803-1860 (New York: Arno, 1979), 76-77. Coles isparaphrasing Judah P. Benjamin in the Congressional Globe,36th Congress, 1st Session, (1860), 1478-1480.69other words, the United States was assuming that all Louisianaland was public domain until proven otherwise, rather thanvice versa.Another vital consideration was the lack of an appealsmechanism satisfactory to Louisianians. Gallatin remarked thatif a title was denied by both the Land commissioners andCongress, "it will not preclude the Claimants from theirremedy in Courts of law." 34 This must have seemed a hollowpromise to landowners - they were to seek remedy fromCongressional land laws in courts whose judges were appointedby the President and confirmed by Congress.Some of these fears would be borne out by several SupremeCourt judgments in later decades. In the United States v.Reynes, the Supreme Court set a precedent which stated thatthe date of signing of the secret Treaty of San Ildefonso(October 1, 1800) ended all powers of the Spanish governmentto dispose of lands, thereby invalidating any title which mayhave been acquired by individuals after that date. By strictlegal construction, the judgment is perfectly correct. But howa settler arriving at Opelousas in November 1800, for example,was to know about a secret treaty that had been signedoverseas seems unclear, nevertheless the court declared that"the inceptive equity of grants made by the governors ofremote territories, who do not know that a cession of it hasbeen made, or that negociations have begun for such an end,34 Gallatin to Gurley, March 30, 1805, Territorial Papers 9:428.70may be recommended to the kind consideration of the sovereignwho receives the transfer; but no more can be claimed...Thelanguage of it is hope - not right." This construction musthave seemed particularly inequitable to Louisianians,considering that it is the de facto effects of government -"the exercise of sovereignty...which is necessary for socialorder and commercial purposes" - which are usually felt by thecitizen, rather than the strictly formal aspects of thatgovernment. 35Congress would, however, revise land law many times inthe decade following the acquisition of Louisiana, attestingto the complexity of land claims, and to Congress' desire tobalance fairness and profit. Indeed, federal policy seems tohave shifted in favor of purchasers, and of individuals whowere actually occupying the lands which they claimed.The discrepancies between the position taken by Congressregarding the Old Northwest and Louisiana are striking. Thiscan probably be attributed to the presence of the Republicanparty in office at the time: Jefferson was renowned for hisagrarian policies, which viewed the individual farmer as thebackbone of the American Republic. A case can be made,however, that Congress had learned a lesson in the OldNorthwest, namely that land companies and other largespeculative enterprises could do far more damage to governmentprofits than small farmers. Indeed, the land provisions of the35 9 Howard, 127-155. The quotes are from Samuel Davis v. ThePolice Jury of the Parish of Concordia (9 Howard, 280-297)71Louisiana Act suggest that the Congressional preoccupationwith squatters in the Northwest Territory had shifted to fearof land speculation in Louisiana. The pendulum had swung fromthe need to control settlement to the need to controlcapitalist adventurers. Claiborne had warned the federalgovernment as early as September 7, 1803: "I have reason tobelieve that much of the vacant land in Louisiana, will becovered by fraudulent grants, previous to the delivery of theprovince to the U.S...I have also understood...that theselands are now at Market at very reduced prices; some have beenpurchased for ten cents per acre." Thus, the Louisiana Actcan be seen as a (hasty) Congressional response to land fraudand speculation, a reaction which echoed the squatter policyin the Old Northwest.But Louisianians' response to the land laws is bestunderstood in the context of the Louisiana Act as a whole -that is, in conjunction with the provisions for the governmentand judiciary of Louisiana, as well as on the ban on theimportation of slaves.Louisiana 'Grumbles': Common Law'While the land laws caused consternation and anxiety inLouisiana, the sections of the Louisiana Act that received themost local criticism were the portions that dealt with the36 Claiborne to Madison, September 7, 1803, TerritorialPapers, 9: 26.37 Henry P. Dart, "The Sources of the Civil Code of Louisiana"intro., in E.D. Saunders, Revised Civil Code of Louisiana (NewOrleans, 1909), i-xxxix, xxv.72legal system. The Louisiana Act established the trial by juryin capital criminal cases, and also allowed for trial by juryin criminal and civil cases before the superior court upon therequest of either party in the case. It extended the writ ofhabeus corpus and bail to the Territory, and forbade cruel andunusual punishment. However, the Act was vague, if not silent,on the question of which law was in force in the Territory,the common law or Civil law. The Act provided that no lawcontrary to the Constitution or the laws of the United Stateswas valid, but never directly confronted the substance ofLouisiana law. The focus of Congress seems to have been toestablish common law procedure, and particularly common lawcriminal procedure, but phrases such as "the laws which may bein force" and "the laws in force in said territory, at thecommencement of this act, and not inconsistent with theprovisions thereof, shall continue in force, until altered,modified, or repealed by the legislature", did not address thesubstance of law in Louisiana. This deficiency in federallegislation would prove to be serious - it neither implementedthe common law, nor did it specify the Civil law system whichwas to be in force in Louisiana. Congress' failure to directlyaddress the topic of law in Louisiana led to debates at boththe federal and local levels that would only be resolved withthe Territorial Legislature's passage of the Louisiana CivilCode in 1808.Substantive law was a particularly difficult question inLouisiana due in part to the changes in sovereignty the73territory had undergone. During the initial French periodthe Coutume de Paris and the King's ordinances were the ruleof law. When the Spanish had taken physical possession ofLouisiana in 1769, Governor Alexander O'Reilly instituted"O'Reilly's Code", an encapsulation of the Recopilacion de lasIndias and a multitude of other Spanish legal sources. Itremains unclear whether O'Reilly abrogated French law. Duringthe Spanish reign, justice had been administered by theCabildo, which combined judicial and municipal functions. Butwith the transfer of Louisiana from Spain to France in 1803,the Colonial Prefect, Pierre Clement Laussat, dissolved theCabildo, and all offices empowered by the Spanish crown.Claiborne described the situation as he found it in December,1803:"Many of the Embarassments I have experienced, may beattributed to the disorganized revolutionary state, inwhich we received Louisiana from M. Laussat...for thedestruction of the Cabildo, I had supposed myselfindebted to him...Nearly all the ancient Establishmentsof the Country were overthrown: the Cabildo dissolved,the judiciary abolished, and nothing erected in theirplace, but a Municipality, or City Council, whose powerswere undefined, and seemed to be limited only by the willof their creator."With the abolition of the Cabildo, the fact that Laussat hadnot formally re-established French law, and the limitedsubstantive content of the American law which was extended toLouisiana, there would appear to have been, technically, alegal vacuum. This was certainly true of the period fromDecember 20, 1803, when the Americans took possession of38 Claiborne to Jefferson, November 25, 1804, TerritorialPapers, 9: 338-339.74Louisiana, to October 1, 1804, the date the Louisiana Act wentinto effect. During this period Governor Claiborne tooktemporary measures to establish a minimal civil legalapparatus in New Orleans, a court of Common Pleas, which wasthe source of much discontent in New Orleans, which I willdiscuss in Chapter 4.I do not, however, intend to engage in a debate over theprecise national origins of Louisiana law. My point is,rather, that Louisianians were perfectly aware of the rules ofcivil procedure by which they lived, and they demonstratedtheir awareness and appreciation of their system of civil lawin several ways. The first was a memorial presented toCongress on December 31, 1804, most commonly known as theLouisiana Remonstrance.The Louisiana RemonstranceA memorial to Congress was first discussed in mid-March1804, when a committee was nominated to draft the grievancesof Louisianians. It is unclear whether this first meetingactually produced anything material. However, a second meetingwas held on June 1, 1804 in which both planters and merchantswere present." The meeting was held entirely in French, andit seems likely that Edward Livingston was chosen to draft thememorial which was to be presented to Congress. 4° It is39 Marietta LeBreton, A History of the Territory of Orleans,1803 - 1812 (PhD Dissertation, Louisiana State University, 1969)40 Claiborne to Madison, June 3, 1804, and June 29, 1804,Territorial Papers, 9: 242 and 245.75important to bear in mind that the Remonstrance expressed theconcerns of several loosely defined segments of the Louisianapopulace, and that everyone who signed it may not have agreedwith all of the grievances it set forth. Indeed, at about thesame time the Remonstrance was formulated, a petition wascirculated by Anglo-Americans which expressed "satisfactionand hope" regarding the Louisiana Act: only English speakerswere allowed to sign it. 41The Remonstrance is a cleverly worded and argued petitionwhich encompassed the subjects most alarming to theLouisianians: the substitution of common for Civil law, theperception that Congress had breached the third article of theTreaty of Cession by not admitting Louisiana immediately tostatehood and that a form of government had been institutedwhich was less than republican in nature, the substitution ofEnglish for French, and the ban on slave importation. TheRemonstrance was particularly critical of the vagaries of thelegal system which had been (partially) established by theUnited States, and the role the Governor played:"A single magistrate, vested with civil and military,with executive and judiciary powers, upon whose laws wehad no check, over whose acts we had no control, and fromwhose decrees there is no appeal: the sudden suspensionof all those forms to which we had been accustomed; thetotal want of any permanent system to replace them; theintroduction of a new language into the administration ofjustice; the perplexing necessity of using an interpreterfor every communication with the officers placed over us;the involuntary errors of necessity committed by judgesuncertain by what code they are to decide, waveringbetween the civil and the common law, between the formsof the French, Spanish and American jurisprudence, and41 Louisiana Gazette, October 26, 1804.76with the best intention unable to expound laws of whichthey are ignorant, or to acquire them in a language theydo not understand; these were not slight inconveniences,nor was this state of things calculated to give favorableimpressions or realize the hopes we had entertained; butwe submitted..."'The Remonstrance had numerous signatories in New Orleans -Claiborne estimated that over 150 people had attended themeeting at which the Remonstrance was read, and who had signedit on the spot.' Later it was circulated throughout theTerritory, and it is probably fair to say that the portions ofthe Remonstrance which covered the legal and politicalsituation of Louisiana reflected the opinion of a largeportion of Louisianians. Pierre Sauve, Pierre Derbigny, andNoel Destrehan were deputed to take the petition to Washingtonand present it to Congress.Reactions to the Remonstrance varied widely. Locally,Governor Claiborne considered it to be the product of partyspirit and persuasion; "Some no doubt, thought they had realgrievances, and many were made to think so; - But theimpression among the latter, I am certain was not durable...""While party spirit was doubtless at work, Claiborneunderestimated the depth of feeling throughout the French-speaking community regarding questions of law.On the other hand, the Remonstrance was taken quiteseriously in Washington and elsewhere. Thomas Paine, under hispseudonym of Common Sense, penned a scathing reply to the42 Annals of Congress, 13: 1597-1608, 1598.43 Claiborne to Jefferson, October 27, 1804, TerritorialPapers, 9: 314.44 Ibid.77Remonstrance in the Aurora, a Philadelphia newspaper, whichwas reprinted in the Mississippi Messenger November 12, 1804.He charged that the Louisianians were"already participating, without any merit or expense inobtaining it, the blessings of freedom acquired byourselves; and in proportion as you become initiated intothe principles and practice of the representative form ofgovernment, of which you have yet had no experience, youwill participate more...[but] you already so far mistakeprinciples, that under the name of rights you ask forpowers; power to import and enslave Africans; and togovern a territory that we have purchased." 45Naturally this touched off several local responses in theNew Orleans press. One signed "Your pedantry's humble servant,A Louisianian" retorted:"You say, that we are already participating in theblessings of freedom. - This shews that you have no ideaof our present government. No, sir, there is no suchthing as freedom among us, and that is precisely what wecomplain of - You are willing , however, to give usfreedom and self - government by degrees, when you and someothers like you, I suppose, shall have had time to teachus how to conduct ourselves. That is a good plan to besure, and a very modest idea of the bargain. But, my dearCommon Sense, the same experience which has taught you somany fine things, has shewn us already that this theorywill not do.""Paine's article and the A Louisianian's response seem to echothe Congressional debate outlined above, which pitchedconquered subjects against free citizens.The memorialists had arrived at Washington during thesession of Congress which was to debate a new government forLouisiana (by section 16, the Louisiana Act was to remain inforce only through October 1, 1805). On Capitol Hill, John45 Thomas Paine, "To the French Inhabitants of Louisiana", inPhilip S. Foner, ed., The Complete Writings of Thomas Paine, 2vols. (New York: Citadel Press, 1945), 2: 963-968, 964-5.46 Louisiana Gazette, January 4, 1805.78Quincy Adams predicted that the memorialists would succeed intheir mission so far as to bring about the early admission ofLouisiana as a state (although he would soon change his mindregarding this prediction). 47 Adams' later assumption was toprove correct, and the Louisianians were to be disappointed onthis count. In a Report to their fellow citizens, theRemonstrance deputies described their lack of success inCongress:"...without paying any regard to our representations,they persisted in assimilating us to the otherterritories of the United States, and continued to traceout for us a government founded on the Ordinance of 1787.In vain did we insist that our situation was quitedifferent, in vain did we represent that this ordinancewas a local law, totally unconnected with the Principlesof the Federal Constitution, and made exclusively for theTerritory N. W. of the Ohio.""This citation speaks of an effort to avoid the strictures ofthe Ordinance of 1787, and in doing so, to avoid the totalassimilation of the American territorial process.The authors do not explain the precise cause of theirdislike of the Ordinance of 1787, but some speculation ispossible. Probably the most important consideration for theLouisianians was the achievement of statehood. The Ordinanceset the population figure for admission to the Union at 60,000free white inhabitants. Sauv6, Derbigny, and Destrehan hadendeavored to push a figure of 33,000 through the Senate, butwere unable to convince the Senate of this amendment."47 John Quincy Adams to John Adams, November ?, 1804, inWorthington C. Ford, ed., The Writings of John Quincy Adams 7vols. (New York, 1913-1917), 3: 81.48 The Louisiana Gazette, June 11, 1805.49 Ibid., June 11, 1805.79Statehood would have guaranteed the Louisianians a largedegree of autonomy over their internal affairs, thus removingsuch topics as slavery and the legal system from the purviewof the federal government. It is only in light of this desireto regulate their own internal affairs that some of thelanguage of the Remonstrance, and of the Report, can beunderstood. But the authors of both pieces appeal to theuniqueness of Louisiana, an appeal which would be reiteratedthroughout the territorial period as a justification for manylocal practices. The Ordinance of 1787 and its judicialstructures, the population figures, and the extension of thecommon law that it embodied were seen as inimical to localinterests.'" Indeed, the Remonstrance stresses the point thateven "The purest principles will be misapplied...without anintimate knowledge of the manners, customs, pursuits andinterests of the people to whom they are applied... 151Louisianians were struggling for control over their owndestinies, particularly their own land tenure system, theirlegal system, and the institution of slavery as a whole.Despite the publicity that the Remonstrance had received,and the presence of Derbigny, Destrehan, and Sauv6, An Act forthe Government of Orleans Territory was passed by CongressMarch 2, 1805. 52 The Act was based on the Ordinance of 1787,but excluded the sections which prohibited slavery and50 "There shall also be appointed a court to consist of threejudges any two of whom form a court, who shall have a commonlaw jurisdiction..." Ordinance of 1787.51 Annals of Congress, 13: 1601.52 2 Statutes 322-323.80regulated descent and the distribution of estates. The Actprovided that Lower Louisiana should move directly into thesecond stage of government, and ordered that the election ofrepresentatives should take place the first Monday in October,1805.The assembly of the first Territorial House ofRepresentatives marks the beginning of a new phase in thestruggle over the legal system in Louisiana. Up to this point,most of the complaints of Louisianians had centered around theinstitutional changes in form that had been effected by thefederal government. During a trip through the majorsettlements early in 1806, Claiborne noted repeatedly that"...the system [in this case the county courts] isgenerally reprobated and is really the source of muchdiscontent. The Trial by Jury; the powers of the court;and the frequency of their Sessions are all objected to:But the conduct of the lawyers...has occaisioned greatdissatisfaction, and has served to alienate theaffections of the Louisianians from the Government. Thesemen are said to encourage litigation; to extort fromtheir clients heavy fees; and when the judgment of thecourt and costs of suits come to be paid, they theLawyers are not unfrequently the only monied men toattend the Sheriff's sales." 53And again, in the Remonstrance, form takes precedenceover substance in a discussion of the effects of theintroduction of English into the courts;7, ...judicial proceedings were indeed in Spanish; butbeing carried on altogether by writing, translations wereeasily made...and the introduction of viva voce pleadingsinto the courts of justice subjects the party who canneither understand his counsel, his judge, nor the53 Claiborne to Jefferson, June 17, 1806, in Letter Books, 3:333-334.81advocate of his opponent, to embarrassments the mostperplexing, and often to injuries the most serious." 54By mid-1806, however, the substance of law had become thefocus of legal debates. Unlike the first Legislative Councilappointed by Jefferson, French-speakers overwhelminglydominated the Louisiana House of Representatives. This, ofcourse, affected the composition of the Legislative Council,because the House nominated the ten men from whom thePresident was to choose. Eight of the original ten had strongties to the French-speaking community, as did all the men whowere eventually appointed. This changed the balance that hadbeen established between the executive and legislative"branches" of the government under the Louisiana Act. The newAssembly owed its allegiance to local constituents rather thanto the federal government. This was reflected by theinfrequent but devastating use of the Governor's veto powersduring this first session.The Louisiana Civil Code of 1808On May 26, 1806, Claiborne vetoed a bill that declaredthe laws in force in the territory to be the Roman civil codeand the Spanish laws deriving from the Recopilacion de lasIndias. The Assembly responded by introducing a bill todissolve itself, meanwhile publishing its reasoning in LeTelegraphe:"...Le bienfait le plus inestimable , pour un peuple,c'est la conservation de ses lois, de ses usages et deses habitudes....Quelles sont les lois qui doivent etre54 Annals of Congress, 8th Congress, 1st Sess., 1607.82sujettes a etre revues et rectifiees par les Legislaturesde ce Territoire?...I1 est evident que c'est desanciennes lois qui etait en usage en ce pays, avant sacession aux Etats-Unis d'Amerique, qu'il s'agit ici....I1faut distinguer, dans les lois qui regissent un etat,celles qui tiennent a sa constitution et a songouvernement, d'avec celles qui ne reglent que lescontrats et les conventions entre particuliers. Lespremieres doivent etre, indispensablement, communes atoutes les parties de la republique, mais sur les autreselles peuvent differer sans inconveniens."'The proposal to dissolve the Assembly was defeated by onevote, and the Assembly adjourned within two weeks of the veto,much to Claiborne's relief.Interestingly, Claiborne seems to have seen the entireprocess simply as an example of the "hazards" of an "earlyextension of the Representative system" to the territory,because the "Executive and the two Houses of assembly do notharmonize" rather than as a serious move to address thesubstance of the laws in force.' He dismissed the bill, themotion for dissolution, and the publication, as an attempt to"...raise the popular sentiment in favor of the Signers...butI am persuaded that its effects will soon pass away."'55 "The most inestimable benefit for a people is thepreservation of their laws, usages and habits...What are thelaws that must be subject to the review and rectification ofthe Legislature of this Territory?...It is evident that theyare the old laws that were in use in this country before itscession to the United States of America...It is necessary todistinguish between the laws that govern a state, those thatbelong to its constitution and to its government, from thosethat only govern contracts and agreements between individuals.The former must indispensably be common to all parts of therepublic, but the latter may differ without inconvenience." LeTelégraphe, June 3, 1806. Reprinted in The Louisiana Gazette,June 5, 1806.56 Claiborne to Jefferson, June 4, 1806, Territorial Papers,9: 657.57 Claiborne to Madison, June 3, 1806, ibid., 642.83This attitude was typical of the government at that time- it assumed that support for the Civil law was manufacturedfor purely political reasons by a few ambitious men. In theAmerican mind, the Civil law represented unenlighteneddespotism, the diametric opposite of the principles of theAmerican version of republicanism. Civil law was the naturaladjunct of that "government of a different hue" so repugnantto American principles, while the differences between Americancommon law and Louisiana Civil law would certainly impede thatidentification of interests the United States governmentconsidered so essential to the successful incorporation ofLouisiana into the Union.These fears certainly reflected federal mistrust ofLouisianians, a distrust which centered on the extent of theirattachment to the United States. However, the events of late1806 would do much to dispel these doubts.In late 1806 the "Burr Conspiracy" erupted. Rumors flewthat ex-Vice President Aaron Burr intended to separate thewestern states from the Union and to form them into an'empire' from which he would attack the Spanish possessionswest of the Mississippi River. New Orleans was rumored to behis intended headquarters. Jefferson responded to this threatby sending General James Wilkinson to New Orleans to fortifythe city and to establish military control. Wilkinson took histask seriously, fortifying the city, as well as making aseries of dubious arrests, attempting to suspend habeas corpusand generally instituting a military 'reign of terror' with84decidedly political overtones. During this period, Claibornewas able to dispose of several of his most vituperativeenemies by implicating them in Burr's conspiracy. Most of theaccusations that were flung, and the majority of Wilkinson'sarrests, targeted Anglo-Americans in New Orleans. The Creolecommunity seems to have remained completely aloof from theseproceedings."The result of this episode - the lack of Creoleparticipation in it - was to transform the Creoles in GovernorClaiborne's eyes, from "...uninformed, indolent and luxurious- in a word, illy fitted to be useful citizens of a Republic",to "the best supporters of the American government."" TheCreoles had proved their loyalty to the American government.Another unlikely alliance was to be established betweenthe federal government and the Creoles during 1807. Thisrevolved around the issue of the St. Mary Batture, which willbe discussed in more detail in Chapter 5. The Batture incidentserved to bring the issue of the Civil law in Louisiana to thedirect attention of the administration in Washington, due to58 Ironically, the circumspection of the Creoles during thisaffair earned them criticism from some quarters. In a letterto Nathaniel Evans, (a prominent citizen of Fort Adams), anofficer named Robert Gamble described his views of theCreoles: "I really am astonished at the tameness theinhabitants of this city displayed during the execution of somany oppressive and arbitrary decrees of the late Dictator[Wilkinson] - it can only be accounted for by their longresidence under the Spanish Government - had the citizens feltas freemen should - Gen'l W. would not have dared to haveacted thusly -" Robert Gamble to Nathaniel Evans, June 5,1807, Nathaniel Evans Papers, Series 1, Box 1, Folder 2, LSUArchives.59 Claiborne to Jefferson, January 16, 1804 and June 28, 1807,Territorial Papers, 9: 161 and 745.85Jefferson's involvement in the law suits instigated by EdwardLivingston. Jefferson's defense depended in large measure onthe premise that the laws in force in Louisiana were French,rather than Spanish. I suspect that Jefferson's plight mayhave eased the way for the adoption of the 1808 Civil Code inLouisiana. The form and language of the code bore an obviousaffinity to the Napoleonic Code of 1804, and this may haveencouraged the conception that the laws it expounded were alsoFrench.To what degree the Burr Conspiracy or the Batture may ormay not have influenced Governor Claiborne, in 1808 hecheerfully approved the Louisiana Civil Code he had sovehemently rejected only two years earlier. Claiborne gave hisreasons in a rather misleading letter to Madison:"The civil code alluded to in my last letter, is nothingmore than a Digest of the Civil Laws now in force in thisTerritory - This work will be of infinite service to theMagistrate and the Citizen; - Heretofore, a knowledge ofthe laws, by which we were governed, was extremelyconfined. The lawyers who avowed themselves to becivilians, told the Judges what the Law was, and theCitizens in the most common transactions of life, neededthe aid of Council; But this state of insecurity anduncertainty will for the future be in a great measureremoved. - I see much to admire in the Civil Law, butthere are some principles, which ought to yield to theCommon Law Doctrine; - Indeed it has been with me afavorite policy to assimilate as much as possible theLaws and usages of this Territory to those of the Statesgenerally; - but the work of innovation, cannot bepursued hastily, nor could it be prosecuted to advantageor with safety until the existing Laws were fullypresented to our views.""60 Claiborne to Madison, April 5, 1808, Letter Books, 4: 168-169.86Claiborne misrepresented the nature of the Civil Code of 1808- it was a code of law that had been passed by thelegislature, not simply a digest, or list, of the laws. Inthis sense he also misrepresented the prospect of completelyimplementing common law in the Territory, which could haveoccurred at this point only through drastic federalintervention.The survival of the Civil law in Louisiana would beensured by a clause in the State Constitution of 1812, whichprovided that "The Legislature shall never adopt any system orcode of laws by a general reference to the said system orcode; but in all cases shall specify the several provisions ofthe laws it may enact."ConclusionsLouisianians were vocal in their protests against theland and legal provisions of the Louisiana Act. In response tothe land laws, they tried recourse to the courts, they ignoredregistration deadlines, and they complained bitterly inpetitions and newspaper editorials. In many instances theirpatience was rewarded by an increasingly liberal Congressionalattitude toward the acquisition of title, and of propertyownership generally.On the other hand, the battle lines seem to have shiftedwith regard to the implementation of common law. The firstcomplaints about the legal system, expressed explicitly in theLouisiana Remonstrance, centered around the confusion produced87by new procedures (and a new language) in the courtroom.Eventually, however, protest began to focus on the actualsubstance of the laws in force, which led to the failedattempt to pass a Civil Code in 1806. Circumstances such asBurr's Conspiracy seem to have contributed to a change in thefederal government's attitude toward the Louisianians, andClaiborne signed the Civil Code into law in 1808.While Louisianians encountered many difficulties with theextension of the American territorial apparatus, they did notexperience these difficulties to the degree that the smallerand more isolated French populations of the Old Northwest had.The numerical superiority of the French speaking population ofLouisiana seems to have been a key difference: by gainingcontrol of the political system they were able to preserve theCivil legal system in Louisiana, something that would havebeen almost impossible for the French in the Old Northwest toaccomplish. The Louisiana populace did not have to survive thelegal re-definition of such basic categories as propertyownership, possibly because their recalcitrance andremonstrances reached Congressional ears frequently andemphatically.Yet another difference between the Old Northwest andLouisiana comes to the fore regarding slavery. The Ordinanceof 1787 had banned slavery in the Northwest Territory, whilethe Louisiana Act simply aimed to prevent the introduction of'foreign' slaves into the Louisiana territory. Slavery88essentially died out in the Old Northwest, while it flourishedin Louisiana.89Chapter 3Louisiana SubjectsThe institution of slavery can be examined at a number oflevels: at a general socio - economic level, or at the level ofthe plantation, and the "highly personalized mechanisms ofcoercion" adapted by an individual planter.' My account rangeswidely over these levels, beginning with the rhetorics ofslavery expressed in slave codes and newspapers, the customaryusages of Louisianians which permit us to see through to thepractices of slavery which were not embodied by law, andmoving through an account of power and space as they came tobear on the slaves themselves. More specifically, I look atthe slaves codes designed by Europeans and Americans inLouisiana. These codes are useful because they embody many ofthe ideological and philosophical preoccupations of theirtime, and they also set the broadest, although often blurryand unreliable, parameters of the system. Slave codes,however, are limited in that they say little about the actualpractices of Louisiana slaves and slave owners. With this inmind I look at the ways in which the codes were supplemented,or subverted, by practices that became customs so wide spreadand so consensual as to defy positive law. I will also pointto the rhetorics of slavery that developed in Louisiana inresponse to the federal government's ban on slave importation,suggesting that in tandem with law, these rhetorics attempt to1 James Oakes, Slavery and Freedom: An Interpretation of theOld South (New York: Vintage Books, 1991), 7.construct blacks as slaves, and to naturalize slavery inLouisiana by fixing the slave body into the landscape. And Iwill try to come to grips with the ways in which power andspace were implicit in the social and legal relations ofLouisiana slaves and their owners.European and American Slavery in LouisianaIn the French colonies in the New World slaves wereregulated by the Code Noir, which was originally enacted byLouis XIV in 1685, and revised and extended to FrenchLouisiana in 1724. The Code had 55 provisions which covered abroad range of subjects. The Catholic church required thatslaves receive baptism, instruction in the Catholic religion,rest on Sundays and holidays, and that they be buried inconsecrated ground. There were food and clothing requirements,a peculium (limited ownership of property) was allowed, andthe Code encouraged slave owners to respect slave families:marriages were recognized, and husbands and wives were not tobe sold apart, nor were children under the age of fourteen tobe sold apart from their mothers. Miscegenation andconcubinage were penalized, while manumission was discouraged.Owners were further encouraged to act as "bons peres defamilies."The Code Noir also dealt with the legal status of slaves.They were allowed to testify in court if there were no other'suitable' witnesses, but were never allowed to testify9091against their owners. Although they were designated as movableproperty, slaves between the ages of 14 and 60 could be seizedfor debt only for their purchase price, otherwise they couldnot be seized for debt unless the plantation on which theyworked was also seized. These stipulations tended to fixslaves onto the land they worked, making them virtuallyimmovable property.Punishment figured large in the Code. First offenserunaways could be branded or have their ears clipped, thosewho tried a second time could be hamstrung (severing of thehamstring muscle in the leg), and a third offense waspunishable by death. Petty theft was punished by beating andbranding, grand theft by "peine afflictive" or death "if thecase required it." In cases of repeated illegal gathering,whipping, branding or death were countenanced by the Code,according to the seriousness of the offense. Naturally anyslave who struck an owner or member of the owner's family wassubject to the death penalty. Slave owners were forbidden totorture, kill or maim their slaves, but were permitted tochain them and beat them. 2 The punishments prescribed by theCode had an extremely visual orientation, in a double sense.Punishment was a public spectacle, intended to set an exampleand to act as a deterrent, but it was also visual in that thebody of a slave was literally a record of his or her2 Le Code Noir de 1685, reprinted in the Publications of theLouisiana Historical Society (New Orleans, 1908), 4: 75-90.92transgressions - it was possible to read the history of aslave's crimes through a cursory visual inspection.By today's standards, it is difficult to conceive of theCode Noir as anything other than a brutal and demeaning pieceof legislation. In the context of the European criminalsystem, where, as Mathe Allain has pointed out, "in earlynineteenth century England...juveniles were hanged forstealing a handkerchief, [and] a Frenchman convicted ofstealing [animals or crops] would have been sent to thegalleys", the Code's provisions could indeed have beenconsidered "extremely mild." 3 The Code was, however, notribute to the humanitarianism of the French crown. Like allslave codes, it was designed in part to protect and control avaluable species of property. But it was also an expression ofsovereign will. The Code had a two-fold purpose: not only wasit intended to regulate slaves, but it was also intended toestablish royal control over the colonists, ostensibly bysetting limits on the degree of control (physical violence)the colonists could exercise over slaves. Thus, while the Codevested a slave owner with power that could be exerciseddirectly on the body of a slave, it sought to establishauthority over the colonists simply by the act of limiting thedegree of violence they could use. When French subjects (otherthan slaves) came into the purview of the sovereign, death wasmeted out frequently and cruelly for the least offense. Thus,3 Mathe Allain, "Slave Policies in French Louisiana,"Louisiana History XXI (1980): 127-137, 136.93in 1745 a French soldier could be convicted of sedition forrefusing to eat his ration of moldy bread, and "hung andstrangled until death doth ensue." 4 The Code was a complexexpression which was typical of what Foucault has calledsovereign power, power which "spoke through blood," and which"culminated in the privilege to seize hold of life in order tosuppress it." 5 It reserved the ultimate 'right of death' tothe sovereign.The Code, then, was not exclusively concerned withslaves. It sought to extend Catholicism, and most of all,royal control to the colony. These goals may have made itpalatable to the Spanish Crown - indeed, Spanish possession ofthe colony saw the continuance of the bulk of the French CodeNoir, supplemented by provisions that tailored it to theSpanish perception of local conditions. Several provisions ofthe French Code Noir extended the "mesmes Droits, Privilegeset Immunitez" [same rights, privileges and immunities] to freepeople of color "dont joilissent les personnel nées libres"[which persons born free enjoy], with the express exceptionthat free people of color could not receive inter vivosdonations from whites.' The Spanish, however, supplemented theCode Noir with seventeen provisions concerned almost4 Heloise H. Cruzat, "Records of the Superior Council,"LOuisiana Historical Quarterly XIV (1931): 263 - 267. [Hereaftercited as LHQ].5 Michel Foucault, The History of Sexuality, Volume 1: AnIntroduction, Robert Hurley, trans. (New York: Penguin Books,1978), 136, 147.6 Le Code Noir, Article LIV. An inter vivos donation, asopposed to a testamentary gift, is made while the donor isliving.94exclusively with the regulation of free Blacks. Significantly,they removed many of the impediments to manumission(emancipation) that had been present in the French Code.'^TheSpanish law of coartacion allowed a slave who had accumulatedmoney equivalent to his or her market value to purchasefreedom - further, it required owners to accept payment.However, Thomas N. Ingersoll maintains that the law ofcoartacion cannot be attributed to Spanish humanitarianism;rather, it was a policy designed to increase economicdevelopment in a wretchedly backward colony. 8 He also notesthat the Spanish Crown did not extend coartacion to all of itscolonies, which suggests that it was intended to addressspecific economic situations.The Spanish policy of coartacion, combined with largenumbers of refugees from the Caribbean, contributed immenselyto the large proportion of free Blacks in New Orleans. In1770, one year after the Spanish officially took possession ofLouisiana, there were 165 free blacks in the territory; by1795 there were over 1,500. 9 Under the Spanish and French7 Emancipation is an interesting word in French law,particularly in light of Allain's argument that the "status ofa slave under the Black Code" was one of "a perpetual minorover whom a master exercised paternal authority unlessmanumission altered his [sic] status." Under French law, whena minor child comes of age, he or she is "emancipated" frompaternal power, which included the right to control person andproperty, and to moderate physical correction. Allain, 132-1338 Thomas N. Ingersoll, "Free Blacks in a Slave Society: NewOrleans, 1718-1812," William and Mary Quarterly, 3rd ser.,XLVIII (1991): 173 - 200, 180-181.9 Gwendolyn Midlo Hall, Africans in Colonial Louisiana: TheDevelopment of Afro-Creole Culture in the Eighteenth Century(Baton Rouge: Louisiana State University Press, 1992), 278.95governments free people of color had enjoyed many of the"rights and privileges" that white free people enjoyed.Indeed, as Virginia Dominguez has pointed out, there was atripartite division of society, based upon legal recognitionof the distinction between free Blacks and slaves in theEuropean colonies.l0 These divisions were closely scrutinizedby both the Creole planters and the new American government,though for different reasons.Many of the Americans found the presence of the largepopulation (1,566 in New Orleans by 1805) of free Blacksawkward at best." Claiborne's diplomacy was tested almostimmediately by a petition from the free Black militiacompanies requesting that they be permitted to continue underthe American government. 12 Americans living in Louisiana sentJames Thomas McGowan, Creation of a Slave Society: LouisianaPlantations in the Eighteenth Century (PhD Dissertation,University of Rochester, 1976), 196-201. McGowan calculatedthat over four-fifths of the population of free blacks livedin New Orleans, suggesting that there was a geography tocoartacion.10 Viginia R. Dominguez, White by Definition: SocialClassification in Creole Louisiana (New Jersey: RutgersUniversity Press, 1986).11 Charles L. Thompson, intro., New Orleans in 1805, ADirectory and a Census (New Orleans: Pelican Press repr.,1936).12 James Sterrett, an American posted in New Orleans explainedthat Claiborne had to set a guard around the 'mulatto' Company"to keep off the mob", but there was still trouble, when "oneof Mecklenberg's men Struck a French man (that crowded on him)with his gun. The French man enter'd a complaint and this daywe are to try the Soldier -- the other Soldiers swear hard infavor of their Mess Mate -- and the french Men Swear equallyhard against him -- some of those little Frog eaters will getthemselves into trouble, I foresee." James Sterrett toNathaniel Evans, June 23, 1804, Nathaniel Evans Papers, Series3, Box 2, Folder 70. See also the Address by the Free Peopleof Color, January 1804, Territorial Papers, 9: 174-175.96numerous warnings to the federal government regarding thepotential explosiveness of the free Blacks, warnings which fedinto a general suspicion of them.' Free Blacks were despisedby white Louisianians because they were associated with slaverevolts and the 'contamination' of white blood. They had alsobecome increasingly numerous and economically successful underthe Spanish, signalling the failure of a moral logic whichrested upon the 'naturally' degraded condition of the black'race'. Not only were free Blacks excluded from many of thenew American institutions, but they were also deprived of manyof the liberties they had been accorded under the French andSpanish systems. With the arrival of the American government,the legal distinction between free Blacks and slaves wasalmost completely eradicated by the Territorial Legislature'sreluctance to distinguish between blacks who were free andblacks who were slaves in the Black Code of 1806. Thetripartite system of France and Spain, which was establishedby legal recognition of free people of color, began tocrumble. Black skin, or any evidence of 'blackness', wouldbecome the determining factor of slavery in Louisiana.The legal systems of both the European and American eraswere implicated in these constructions of race. Law, in thenineteenth-century and today, frequently represents socialrelations, and in a convoluted process it seems to representsociety to itself. In this capacity, one of the powers of law13 See for example, Benjamin Morgan to Chandler Price, August7, 1803, Ibid., 7; and Daniel Clark to Claiborne, November 23,1803, Ibid., 121.97lies in its ability to categorize, define and demarcateobjects, domains, events, and people. These categorizationscan be creative, establishing new labels, or they can beconfirmative.Societies have categorized people since time out of mind.But since Linnaeus, who has become the emblem of taxonomy andbiological classification, there has been a renewed vigor inthe belief that it is possible to distinguish between things,or people, according to specific biological criterion. Thesebiologically based, or genotypical, categorizations wereparticularly potent in the juridical field, and theirimplications were profound for racial distinctions: thedifferences that enable us to categorize in this way wereconceived to be produced by Nature (with a capital N). We seethem not as arbitrary social constructions but as naturalcategories produced by the laws of Nature. The act ofcategorizing according to biological criterion implies thatNature has already divided things or people up, so that legalrecognition of race seems merely to be (re)affirming orreflecting these Natural laws. Civil legal systems providedfor a ternary division of society into free whites, free gensde couleur, and black slaves, and were most explicitlyconcerned with the distinction between free people and slaves.These legal distinctions were bound up with colordistinctions: free people of color were recognizable by theirlighter skins, while darker skin designated a slave. TheAmerican legal system, on the other hand, set up a binary and98far more polarized society by assuming that all blacks were'naturally' slaves and all whites were 'naturally' free. Inthis sense, and in others, law was an essential ingredient inthe production and maintenance of the system of black slaveryin Louisiana. These legal, and social, constructions - thatblacks were somehow 'naturally' slaves, and 'inferior' - arereflected in a variety of rhetorics of slavery which wereprompted by the federal government's intention to ban theimportation of 'foreign' (non-American) slaves into Louisiana.Indeed, these rhetorics depended on the construction of anequivalency between black and slave.Louisiana Rhetorics of SlaveryThe federal government's ban on the importation of slavesfrom outside the United States took effect on October 1, 1804.It is important to note, however, that much of the disgustthat the ban generated in Louisiana came from very specificsources. Most of the following excerpts were written by Anglo-Americans residing in Louisiana, and were published bynewspapers which targeted Anglo-American readers. Anglo-Americans and merchants seem to have been solidly in favor ofkeeping the external slave trade open. The position thatCreole planters took is far more ambiguous. A debate over theimportation of slaves had raged between planters and merchantsin Louisiana since 1795, when a highly coordinated slaverevolt had been uncovered in Point Coup6e, and anotheruncovered on the German Coast the following winter. Planters99believed that these rebellions were initiated by slaves thathad been imported from the West Indies, where news of thesuccessful St. Dominguan revolt of 1791 was wide spread.Planters argued that the only way to prevent such rebellionsin Louisiana was to stop importing slaves, in spite of theacknowleged need to supplement the labor force. The merchants,however, ridiculed this suggestion, emphasizing the economicimportance of slaves and pointing to planter debt. The debatemoved to the Cabildo in 1800, where the merchants, backed bythe Spanish government, prevailed. 14 It is difficult to know,then, to what extent Creole planters' views may have changedby 1804 - certainly many Creoles signed the LouisianaRemonstrance, which included a condemnation of the ban.The rhetorics which follow were, I think, intended tojustify and naturalize slavery for a broader audience, mostparticularly the federal government. I want to argue that themajority of these diatribes tried to inscribe slavery as aninstitution into the Louisiana landscape, and to fix it there.News of the ban on the importation of slaves elicited aprompt and negative response from many Louisianians. GovernorClaiborne remarked on the reaction to the ban as early asApril, 1804: "the prohibiting the Importation of Slaves intoLouisiana, will be viewed by the Citizens as a greatGrievance; on this subject much irritation is manifested, andthe general opinion seems to be, that the Territory cannot14 McGowan, 401-413.100prosper without a great encrease of Negro's." 15 Claiborne'sassessment was accurate, in that much of the rhetoricsurrounding the ban linked prosperity and slave labor.However, the justifications for slavery in Louisiana rangedwidely over a variety of issues.The first of these spun around the notion that the natureof the country itself made slavery a necessity:"...it is impossible for white men to cultivate the landin that hot, sultry and moisty climate. Perhaps you don'tknow that those whom misery drives to that extreme,either perish or languish in a state of decay, while thenegroes, on the contrary, not only resist it, but areremarkably healthy."'The author points out that for whites agricultural labor inthe Louisiana climate was a death sentence, while black slavesseemed to have flourished in the heat and humidity. Theinference is that blacks in general were somehow speciallysuited to labor in the Louisiana climate, and that, therefore,they 'naturally' belonged there. This statement about race andplace has a pedigree which goes back to Aristotle, and whichbecame particularly important during European expansion to the'New World', as well as to more recent brands of environmentaldeterminism. It is an excellent example of what DavidLivingstone has called a 'moral geography', a rhetoric whichseeks to back racist judgments with scientific data, thereby15 Claiborne to Jefferson, April 15, 1804, Territorial Papers,9: 221-223.16 The Louisiana Gazette, January 4, 1805.101legitimating those judgments.'' According to Livingstone,climatology was particularly suited to this task, in that it'permitted' a wide variety of statements to be made. The'logic' of the author of this citation moves quite simplythrough a series of 'givens': 1) the climate of Louisiana issultry and hot; 2) blacks come from Africa, a sultry and hotclimate; and 3) therefore they will 'naturally' flourish inLouisiana, just as they did in Africa. A simple connection ismade between race and place, a connection which inscribesblack slavery into the Louisiana landscape 'naturally'.Conversely, whites do not flourish in Louisiana because theyare from more temperate climates - Louisiana is therefore nottheir 'natural' environment. This would serve as the'scientific' justification for transplanting a black laborforce to the Territory.' 817 David N. Livingstone, "The Moral Discourse of Climate:Historical Considerations on Race, Place and Virtue," Journalof Historical Geography 17 (1991): 413 - 434, 413.18 A brief note will suffice to show the hypocrisy involved ina statement like this. Creole slaves drew considerably higherprices in Louisiana than slaves from other sections of theUnited States because it was believed that they were"acclimated" to the climate and to disease. The high pricespaid for Creole slaves presents one of the many gaps in thetextual fabric that Louisiana writers were attempting toweave. If all negroes were "remarkably healthy", as thiseditorial claimed, then there could be no plausible reason forthe significant difference in value between Creole slaves andthose imported from outside Louisiana. The tenuous nature ofthe textual subterfuge employed by slave owners in Louisianabecomes more obvious if it is seen as a strategy tonaturalize, or domesticate, black slavery in the Louisiana.Newspaper advertisements are the best evidence for the premiumplaced on Creole slaves: "un Negre nomme Robert, creole";"Environs quarante Esclaves, presque tous creoles"; "UneNegresse...garantie de vices et de maladie"; "UneNegresse...garantie des maladies et defauts". Le Moniteur,102Another justification for the continuation of the slavetrade was an appeal to value and property rights. Slave ownerswere quick to point out that the third article of the Treatyof Cession guaranteed their property rights, and propertyincluded slaves. Further, slaves were not only valuable inthemselves, they also added to the value of land:"The treaty secures to us our properties, that is to sayin plain words, that we cannot be deprived of what wepossess. Now if by cutting short the principal resource,which gives value to our lands, you reduce that value toone half or one third, will you think that the engagementhas been fulfilled?"nAgain, slavery is seen as an integral part of the Louisianalandscape, this time as one of its principal resources.Louisiana writers seem to have been attempting to inscribeslavery into the landscape in such a way as to make the twoinseparable. Slaves were depicted (enpicted?) as essential to,and as productive of, the Louisiana landscape. Therefore, toban the one meant, to Louisianians, the destruction of theother.This process seems inversely related to the processdescribed by Marie Louise Pratt. She points out that Europeanimperialists tended to write texts that eradicated, orremoved, indigenous peoples from the landscape. Pratt suggeststhat this textual disposal of the indigenous occupants of theland facilitated their physical removal.' In Louisiana, we seeJune 8, 1807; March 25, 1807; January 17, 1807; December 20,1806.19 The Louisiana Gazette, January 4, 1805.20 Mary Louise Pratt, Imperial Eyes: Travel Writing andTransculturation (New York: Routledge, 1992), 64-65.103this logic in reverse, but with the additional necessity ofequating blacks with slavery. Once this equivalence wasestablished, Louisianians could move to the next step: bytightly binding slavery and the landscape together, byestablishing their interdependence, Louisianians seem to havebeen trying to make slavery a normal, natural part of thatlandscape. Once the presence of slaves was firmly fixed, theirabsence would be abnormal. Thus, by textually embedding blackslavery into the landscape, Louisianians hoped to preventtheir physical removal. This strategy depended upon legal, aswell as the phenotypical and genotypical, constructions ofrace I discussed above. By arguing along ethno-climatologicallines that blacks were suited to the climate of Louisiana, andwhites were not, blacks become a natural part of thatlandscape. Further, it speaks to the necessity of movingblacks to Louisiana - since blacks were from the same type ofclimate they could adapt more readily than could whites. Theseethno-climatological rhetorics echoed certain veins ofEnlightenment philosophy, in particular Montesquieu's argumenton "How the laws of civil slavery are related to the nature ofthe climate." 2 '21 Montesquieu also supports my contention that Europeanconceptions of race were largely phenotypical. Indeed three ofthe reasons he gave as a defense of Negro slavery were: Thoseconcerned are black from head to toe, and they have such flatnoses that it is almost impossible to feel sorry for them; Onecannot get it into one's mind that god, who is a very wisebeing, should have put a soul, above all a good soul in a bodythat was entirely black; It is so natural to think that colorconstitutes the essence of humanity..." The Spirit of theLaws, Anne M. Cohler, et al. trans. and ed., (Cambridge:Cambridge University Press, 1989), 250.The Louisiana Remonstrance underlines this connectionbetween land and slaves, stating simply,"If therefore, this traffic is justifiable anywhere, itis surely in this province, where, unless it ispermitted, cultivation must cease, the improvements of acentury be destroyed, and the great river resume itsempire over our ruined fields and demolishedhabitations."'According to this statement, slavery is important not onlybecause it is the basis of the agricultural system and theeconomy, but because the very survival of Louisiana itselfdepends on the presence of slaves. Only slave labor canmaintain the levees that keep the "great" river in check, andthat permit the existence of cultivation and habitation.And again,"The consequence of this [ban] is, that bye and bye therewill not remain in lower Louisiana, a sufficient numberof hands even to guard it against inundation. Hence thedestruction of our lands and the utter ruin of ourcountry, and so will our property be secured andprotected if that system will prevail."'Once more, the author is emphasizing the importance of slaveryto the very nature of the territory, here in terms of floodprevention.These citations have in common a constant appeal to theuniqueness of Louisiana, embodied particularly by theMississippi River. Rather than relying solely on the claimthat slavery was necessary to the agricultural system inLouisiana (an argument that could have been used by any of theplantation states), Louisiana slaveholders repeatedly pointed22 Louisiana Remonstrance, Annals of Congress, 13: 1597-1608.23 The Louisiana Gazette, January 4, 1805.104105out that slavery was necessary to prevent inundations. Bytextually creating, or fabricating, the uniqueness ofLouisiana, they were literally distancing and distinguishingthemselves from the rest of the country. Not only were theyaffirming the differences embedded in Louisiana which soalarmed the federal government, they were also enlarging thosedifferences, trying to use them to their own advantage.Louisianians were producing a textual strategy for explicit,clear cut purposes: they were textually delineating a uniquespace, a landscape that was totally dependent upon thepresence of the slave body. By extension, these exceptionalcircumstances warranted the continuation of the slave trade inLouisiana.Implicit in this claim to difference was the suggestionthat local interests could only be recognized and served bythose with local knowledge. A broad federal policy could notbe expected to understand or appreciate such matters. Localknowledge was validated by the 'nature' of Louisiana itself.This rhetoric is interesting because it worked againstthe grain of the larger federal project. Federalterritorialization was intended to smooth over, or erase,differences in the interests of assimilation and the commoninterests of a national project. The rhetoric surroundingslavery was intended to bring difference to the fore and tounderscore it. In light of my uncertainty about the positiontaken by Creole planters regarding the ban, it would be unwiseto attribute any broad political intentionality to these106rhetorics. The emphasis on local problems and local solutionsdoes seem to reflect a broader Anglo-American suspicion, atthe time, of the hegemonic tendencies of the federalgovernment and a fierce determination to defend the localrights and interests of the states.The federal government did not change its ban on slaveimportation into Louisiana: Congress knew that it would endthe African trade nation-wide on January 1, 1808. In themeantime, Louisianians experienced little, if any, difficultyin obtaining slaves after the deadline - a burgeoning tradewith the Eastern seaboard states developed. The increase inthe slave population, and the desire for closer regulation,prompted the speedy passage of the 1806 Black Code by theTerritorial legislature.The Black Code of 1806 was promulgated by the firstTerritorial legislature, and 'perfected' by subsequent codes.Many of the provisions of the Code Noir were retained withlittle or no alteration. However, the control of slaves wasseen as a critical issue by the Territorial Legislature,partly in response to the successful slave revolt on St.Domingue (Haiti) in 1791. Freedom of movement was curtailed bya pass system which was enforced by the provision that anywhite could, and should, demand to see the pass of any blackoutside the limits of a plantation. A patrol system, which wascreated and paid for by local planters, was designed toapprehend slaves out of bounds.107While some of the provisions of the Louisiana Black Codewere slightly more humane than the slave codes of otherSouthern states, the general movement in Louisiana in theTerritorial period was to increasingly enmesh blacks, slave orfree, within an extremely limiting web of legal and spatialprohibitions.' While the physical punishments prescribed inthe Black Code may have been less brutal than those in theCode Noir, the legally prescribed mechanisms for control weremore effective and extensive in the nineteenth century. MatheAllain notes that "if the French and Spanish empires hadmilder laws concerning slaves, it was because those absolutistregimes did not leave slave legislation in the hands of thecolonists." 25 This suggests that the slave codes produced bythe French and Spanish represented the interests of the Crownfar more than the interests of slave owners, but moreimportantly, that a slave code produced by slave owners wouldreflect their interests more closely and would yield fargreater latitude to the individual planter concerning slavecontrol. The Black Code of 1806 was the first opportunityLouisianians had to develop a Code that reflected their own24 There was a concern for maintaining family units withmembers over 60 and under 10 which was unique to Louisiana.These are among the articles of the code, however, whichdemonstrate the gap between legal theory and local practice.Solomon Northrup, a slave in Louisiana in the 1850's and1860's, wrote that a mother and her two children (both underten years of age) were sold to three different masters.Solomon Northup, Twelve Years A Slave: Narrative of SolomonNorthrup in Gilbert Osofsky, ed., Puttin' on Ole Massa, TheSlave Narratives of Henry Bibb, William Wells Brown, andSolomon Northup (New York: Harper & Row, 1969), 264-269.25 Allain, 137.interests and beliefs. It also reflected their owncontradictory logic, a 'logic' which became particularlyuntenable in their attempts to define human beings asproperty.A Most "Troublesome Property"The Black Code owed much of its substance to the CodeNoir, while also imposing more stringent limitations onslaves. It did, however, change the property status of slaves.Under the Code Noir, slaves were defined as movable property,but they were not defined as chattel - their humanity, andtheir souls, were clearly recognized by the Code. During theAmerican regime, slaves were redefined as immovable property,and as "chattel personal", although the latter principle wasnot expicitly stated in the Louisiana Black Code.The 1808 Civil Code offered a more concise definition ofthe slave's condition under Louisiana law: "A slave is one whois in the power of a master to whom he belongs. The master maysell him, dispose of his person, his industry and his labor.He can do nothing, possess nothing nor acquire anything, butwhat must belong to his master."' As this article makes clear,Louisiana slaves were by definition without civil rights.Civil cases involving slaves were generally limited to owners'suits for damages to their human property. Obviously, a beingwho can own nothing, and who has no legally recognized26 Louisiana Civil Code of 1808, Arts. 35 and 173.108familial bonds, would have little reason to recur to privatelaw.The denial of a slave's right to own property isessential to the logic of Southern slavery. William Goodellsuggests that "if the slave could possess property, he coulddispose of it; he could make contracts; he might contractmarriage; he might become a man,...and cease to be aslave...the idea that a slave can possess property...is theidea that the slave has rights."' By possessing propertyrights the slave would have become autonomous, the 'owner' ofhis or her own person. As a bearer of rights, the slave wouldhave been included in a web of social relations which gavesuch abstract concepts as rights, duties and obligationsmeaning - by vesting rights in a person, society concretizeswhat is essentially a (modern) fiction. Only through thesocial recognition of rights and obligations can a persontruly be said to possess those rights.Inclusion into the community at large, through rightssuch as property ownership or marriage, would have effectivelydestroyed what Orlando Patterson considers to be the primarycharacteristic of slavery: social death. According toPatterson, social death is the consequence of a slave'sdependence and lack of power, formal natal alienation, anddegraded, or honorless, status. This condition is achieved by27 William Goodell, The American Slave Code in Theory andPractice: Its Distinctive Features Shown by Its Statutes,Judicial Decisions and Illustrative Facts (New York: Americanand Foreign Anti-Slavery Society, 1853), 96.109110a combination of physical force and the manipulation ofsymbolic authority. Obviously, Patterson's is one view in alarger on - going discussion of the modalities and mediationsinvolved in slavery.' Patterson believes that the role of lawas a primary source of the master's authority has beenfrequently misunderstood and overstated. As he correctlyobserves, "law itself begs for the thing we call authority."'I think, however, that Patterson underestimates theimportance of law on at least two counts. The first is thedual process of inclusion and exclusion: exclusion from civilrights and a private law personality, inclusion as a criminalpersonality. And second, is the multiplicity of ways in whichslave owners and slaves contributed to the law-making process.While the Louisiana Black Code may have derived its authoritylargely from local custom and tradition, and while it may havebeen ignored altogether by slave owners who preferred to meteout 'justice' as they saw fit, it was in itself an importantsource of authority. Slave legislation transformed a socialfact, the ownership of persons, into a legal fact - in otherwords, slave ownership became a right which was recognized bythe larger community. This recognition was important partlybecause it implicitly guaranteed that the planters would enjoy28 Cf. Eugene D. Genovese, Roll, Jordan, Roll: The World theSlaves Made, (New York: Random House, 1972); Lawrence W.Levine, Black Culture and Black Consciousness (Oxford: OxfordUniversity Press, 1977); and Herbert G. Gutman, The BlackFamily in Slavery and Freedom, 1750-1925 (New York: VintageBooks, 1976).29 Orlando Patterson, Slavery and Social Death, A ComparativeStudy (Cambridge, Massachusetts: Harvard University Press,1982), 36.111the "quiet possession" of their slaves. But the support of themajority of the community was also desirable for the obviousnecessity of controlling black slaves, who in Louisianaconstituted just under half the population.'General recognition of the right to own slaves came witha price. The interests of Louisiana society as a wholedictated that slaves must be held accountable for theiractions under criminal law. This need points to one of manyinconsistencies in the logic of the system. Article 173 of the1808 Louisiana Civil Code reads: "The slave is entirelysubject to the will of his master." The Louisiana legalsystem, as well as the legal systems of other Southern states,was constantly confronted with the practical consequences ofthis contradiction.' The heart of the matter lies in thenotion that if slaves were solely the extensions of theirmaster's will, there would be no need to account for slavecrime. By making slaves liable for their criminal actions, thelaw implicitly acknowledged that they had wills of their own,wills that were not completely subsumed by those of theirowners. This led to the inescapable fact that slaves were not30 An 1806 census lists 22,701 slaves in a total population of55,534. Territorial Papers, 9: 702.31 Several Kentucky judgments demonstrate the Courts'difficulty in negotiating the contradictions of humanproperty: "However deeply it may be regretted, and whether itbe politic or impolitic, a slave by our code is not treated asa person, but (negotium) a thing, as he stood in the civilcode of the Roman Empire" (1828); "A slave has volition, andhas feelings which cannot be entirely disregarded" (1829); and"But, although the law of this state considers slaves asproperty, yet it recognizes their personal existence, and, toa qualified extent, their natural rights" (1836). Cited inGenovese, 30.112things and not livestock - they were people, and as such theywere indeed a most "troublesome property."'E. P. Thompson has argued that some categories of peoplewere excluded from the logic of the law, most notably,children and slaves.' This assessment is meaningful on twolevels. First, he assumes that the special nature of the lawmeans that its logic will be applied according to standards of"universalism and equity". Obviously the laws that weredesigned to apply to slaves were neither universal, norequitable. Second, it seems obvious that while slaves wereexcluded from private law except as objects of litigation,they were not outside of, nor excluded from the law in anyother sense. Not only did law apply to them, but they alsocontributed to its construction, not in a formal sense, but toits social construction. As Eugene Genovese has pointed out:"Had [the planters] reflected on the implications of a wagon'sinability to raise an insurrection, they might have understoodthat the slaves as well as the masters were creating thelaw." The necessity of creating a body of law focussing onslaves, then, was brought about by the contradictions implicitwithin the concept of human chattel.Law, however, is only part of the story. While itlegitimized the ownership of other human beings, representedthe consent of the state to use its coercive powers for theplanters' cause, and set limits on the degree of physical32 Cited in Levine, 122.33 Thompson, Whigs and Hunters, 262.34 Genovese, 30.113coercion which could be employed by slave owners, its effecton the daily lives of slaves was sporadic. Custom played animportant role in Louisiana, and its effects are particularlyclear in the institution of slavery, where it could sometimessupersede positive law.The Force of HabitThe institution of slavery in Louisiana reflected thevarying social and economic imperatives of the French, Spanishand American regimes. James McGowan has traced a history ofLouisiana slavery which illustrates broad, informal changes inthe institution in response to material conditions andspecific events. He notes, for example, a shift from a regimeof brutality and fear to one of management and (some)accomodation in response to a joint uprising of slaves andNatchez Indians in 1729 which claimed the lives of over one-eighth (235 people) of the white population along theMississippi River. 35 Planters and administrators came tobelieve that slaves had to be "persuaded to accept theircondition" in order to prevent future uprisings. 36 Le PageDuPratz, the official in charge of the Crown's plantations inLouisiana, suggested showing slaves "those marks of humanity[which] flatter them, and attach them to their masters." 37 Healso recommended that slaves be given their own garden plots,35 McGowan, 98.36 Ibid., 107.37 Antoine Le Page du Pratz, History of Louisiana, JosephTregle Jr., ed., (Baton Rouge: Louisiana State UniversityPress, 1975 reproduction of 1774 issue), 380.114and that planters "engage them to cultivate it for their ownprofit, that they may be able to to dress a little better, byselling the produce of it."'This shift in the 1730's marked the beginning of acustomary practice which saw Sundays as "Negroes' day", a dayon which they could cultivate garden plots in order to sellthe produce, or to hire themselves out to anyone who wished toengage their services for the day. The strength of this customis clearly illustrated by a law suit, Loppinot's Case,initiated in 1774 during the Spanish regime."The issues in Loppinot v. Villeneuve revolved aroundquestions of absolute ownership, but were essentially decidedaccording to the strength of the custom of allowing slaves towork for themselves on Sundays. Mulet, Loppinot's slave,accidentally drowned on his way home to his owner'splantation, having spent Sunday building a chimney forVilleneuve. Loppinot claimed restitution from Villeneuve forhis lost property, a claim that was upheld by an arbitrationcommittee composed of planters respected in the colony.Villeneuve's lawyer, Mazange, challenged the arbitrationcommittee's award, however, on the basis that his client'srelationship to the slave Mulet had been one between anemployer and an employee, rather than one between the two38 Ibid., 387.39 Most of my facts about Loppinot v. Villeneuve come fromLaura L. Porteus, "Civil Procedure in 1774 - Loppinot's Case",LHQ 12 (1929), 49-120. McGowan also discusses the case,considering pivotal to a broader conception of the slaves'power to shape their own world.115owners. If the former relationship was recognized, Villeneuvecould not be held responsible for Mulet's death. Broutin,Loppinot's attorney, recognized the untenable terrain involvedin pursuing an argument which rested on the conflation ofslavery and voluntary wage labor. Instead, he argued his caseon the basis of canon law, which stipulated that Sunday was aday of rest, and on a legal technicality which stated thatslaves could not leave their owner's plantation without awritten permit. Even Broutin's own witnesses refused toacknowledge these basic facts, however. Rather, theymaintained that it was "a custom, use and style for all theNegroes on the plantations as well as those in the cities towork for themselves the days the courts are closed", andfurther, that "on legal holidays the Negroes do not needpermits from their masters to communicate with each other norfor any private work they do."" Owners themselves, then, wereacknowledging that their property rights in slaves were notabsolute. If these rights of ownership had been regarded asabsolute Broutin would have won the suit when he pointed outthat"It is by right and incontestable any property thatbelongs to me in ownership also belongs to melegitimately on Sunday just as on the other six days ofthe week, so then no one has the right to take him fromme any more on this day than on the other working days."“The court's decision for Villeneuve clearly illustrates theforce of custom, even when it was contrary to the most basic40 Porteus, Loppinot's Case, 77 - 78.41 Ibid., 101.116tenets of Civil and canon law, and even though it floutedlocal law. The case is unusual in that it yields aparticularly clear glimpse into the unwritten and informalrelations between masters and slaves in colonial Louisiana,and gives us an example of the chasm between law and socialpractice, and the ways in which the latter can grow to bothsupplement and subvert the former.I want to make it clear that custom carried a great dealof weight in Louisiana (and not only in Louisiana), a pointthat I will explore more thoroughly in chapters to follow. Butmore immediately, I want to point to the importance of customas a means to get from what the slave codes said, to whatslave owners actually did. While the slave codes are importantas statements of the way things 'ought' to be, or asexpressions of general principles, they do not necessarilyprovide insight into the some of the primary issues ofslavery. Thus, in the following section, I will discuss amodality of critical importance to slave owners and slaves -the operation of physical coercion on the bodies of slaves.Servants Obey in All Things Your Masters 42Power, the ability of each individual planter to exertphysical and social control directly onto the bodies ofslaves, was a primary means of maintaining slavery. Louisianaslavery as an institution poses numerous problems for European42 The title is taken from a line in a catechism that theReverend C.C. Jones had written to teach his slaves. Cited inLevine, 45.117theories of power such as Foucault's. His genealogy of power,which charts a shift from sovereign to disciplinary modes ofpower in Europe, is not entirely appropriate to the relationsof power involved in Louisiana slavery. 43 As I have notedabove, the Code Noir was an expression of sovereign power, butthe same cannot be said about the non-discursive relations ofLouisiana slavery. In eighteenth and nineteenth centuryLouisiana slavery, the shift that Foucault charts in Europe isless evident. The nature of a master/slave relation requiredthat the type of power exercised by masters over slaves not beanonymous, but capable of being exercised directly on thebodies of slaves - if its source was not clear to the view ofthe slave, its efficacy was lost or at least diminished. Inthis sense power was ascending, and its source was necessarilyvisible, suggesting that it was sovereign in nature. On theother hand, disciplinary mechanisms did play a role in thecontrol of slaves. The planters were aware of the need to'rationalize' their agricultural system, to make it asproductive and profitable as possible. Rationalization wasaccomplished in a number of ways: set routines, quotas to befilled or specific tasks to be accomplished, constantsurveillance during the daylight hours, direct coercion uponthe slaves' bodies, and by minor concessions, or rewards, on43 While I owe a great deal of my perspective on the powerrelations of slavery to Foucault, he himself never seems tohave come to grips with slavery, or with colonialism. Hisunwillingness to address the power relations of slavery ledhim to argue that it was a relation of violence rather than arelation of power.118the part of the individual planter." Thus it could be saidthat Louisiana slavery rested on a combination of sovereignand disciplinary regimes of power. Slave owners were concernedto regulate and police slaves through the manipulation ofspace, but this concern with spatial arrangements does notseem to have altered their reliance on physical power, becausethey could not rely on the twin instruments of disciplinarypower as Foucault described them:"like surveillance and with it, normalization becomes oneof the great instruments of power at the end of theclassical age...It is easy to understand how the power ofthe norm functions within a system of formal equality,since within a homogeneity that is the rule, the normintroduces, as a useful imperative and as a result ofmeasurement, all the shading of individual differences.,, 4 5The processes of surveillance and normalization to whichFoucault refers seem to have a double aspect, in that both areoriginally initiated from a point, or set of points, exteriorto the body. However, to be truly effective, they must beinternalized by the object of their scrutiny. Once the'standards' of discipline have been internalized, theoriginary, external source of discipline acquires the functionof a safety net: the 'real' work is done by theobject/individual.The countless examples of slave resistance, ranging froma defiant word or gesture to armed rebellion, suggest that44 Indeed, Genovese notes that the slaves were often able toturn these "favors" or "bonuses" into established rights whoseremoval would only create turmoil on the plantation.45 Michel Foucault, Discipline and Punish: The Birth of thePrison, Alan Sheridan, trans., (New York: Vintage, 1979), 184.119surveillance was sporadic, and that slaves never came toaccept their condition as the norm. Resistance points to thecontinued necessity of an external source of disciplinethroughout the Southern slave regime. Orlando Pattersoncharacterizes Southern slavery as a "direct, personal mode ofdomination in the midst of a prevailing capitalistic indirectidiom": the image is one of brute force at work in a societyin which power is usually disguised by the social relations ofproduction." This spectacle of naked force could not lenditself to a perpetuation of the mythos of Southern gentility,and slaveholders attempted to control their slaves in myriadways. Eugene Genovese has suggested that a locus of controlwas provided by the hegemonic paternalism which pervadedsouthern slave societies. 47 This assessment certainlycontributes to an understanding of antebellum (1820-1860)southern slave societies, and it sheds light on the countlesspages which have been written by slave owners about theirslaves in that period. The textualization of slaves has been aconstant preoccupation with southerners, and not just becausethey represented economic assets, but because they were, forwant of a better word, mysterious." I am not sure, however,46 Patterson, 33.47 Genovese, 1-5.48 The clearest examples of the mysterious nature of theslaves can be found in women's writings. See particularly MaryChesnut, who constantly notes this quality in "her" slaves: "Iam always studying these creatures. They are to me inscrutablein their ways and past finding out"; "their faces are asunreadable as the sphinx"; while "Laurence [the butler] wearsthe same bronze mask." C. Vann Woodward, ed., Mary Chesnut'sCivil War (New Haven: Yale University Press, 1981), 48, 114,132.120that Genovese comes to grips with earlier slave societies.Certainly, no one could be "paternalized" into slavery,whereas it is not difficult to find accounts of the coercionwhich took place throughout the period of the African slavetrade. It also seems unlikely that paternalism as a systemcould have preceded Patterson's criterion - social death andthe ways in which it is brought about - for the creation of aslave society. While paternalism may be an appropriate namefor the relations between southern men and 'their' women andchildren, I do not think it gets to the crux of the relationsbetween masters and slaves: clearly there are differentrelations of power at work here.One modality of power, then, was physical coercion andthe creation of what I would call a space of fear. Immanentphysical coercion, and the act itself, was essential to themaintenance of slavery - it was essential to ensuring thatblack people would continue to perform as slaves. Power was,however, exercised in more subtle ways. As Foucault hassuggested in another context, mechanisms of power entertain"complex and circular relations" with a vast array of forms ofsubjection, exploitation and domination. Power does notalways, or even necessarily, "act directly and immediately onothers. Instead it acts upon their actions..." One of themost subtle forms of domination implemented by slave ownerswas the spatial arrangement of their human property. While49 Michel Foucault, "The Subject and Power" in Hubert L.Dreyfus and Paul Rabinow, eds., Beyond Structuralism andHermeneutics (The Harvester Press, 1986), 208-226, 213.121slaveholders tried to manipulate space in order to segregate,contain and control slaves, the slaves were able to takeadvantage of the spaces designed for them, and to producespaces of their own.Spatial DesignsThe majority of slaves in Louisiana lived on large farmsor plantations, rather than on smaller farms or in urbanareas. Herbert Gutman has calculated that 72% of Louisianaslaves were owned by masters with 20 or more slaves, while 51%were owned in groups of 50 or more." These figures indicatethat most slaves were engaged in large scale agriculture inrural areas. Therefore, any discussion of slavery in Louisianamust necessarily come to grips with the nature of slavery onplantations.In lower Louisiana, roughly from Baton Rouge south, theclimate was favorable for the cultivation of sugar, and manyof the plantations in that area were sugar plantations.'Cotton was also grown, but predominated in northern Louisiana.Work routines varied with crop, but as a rule, sugarcultivation was more labor intensive than was cotton. Sugarproduction required more hands, and a larger investment inlabor and equipment. Sugar plantations in lower Louisiana were50 Gutman, 44.51 Sugar had been grown in southern Louisiana sporadically inthe 18th century, but it was not until Etienne Bore, aLouisiana sugar planter, perfected the refining process in1795 that sugar became a staple crop in Louisiana.122almost invariably located on a bayou or river, the mostdependable means of transportation in Louisiana at the time.As Figure 5 shows, slave quarters were usually at agenerous distance from the "big house", while the overseer'shouse tended to be adjacent to, but not in, the quarters. Thefocal point of the plantation was generally the owners' home.Outside of Louisiana this was frequently established bysituating the house on a hill. In Louisiana, where hills arevirtually non-existent, the house was distanced from thehuddle of the quarters, and was frequently demarcated by anavenue of oaks which ran up to the gallery. On manyplantations there was clearly an aesthetic at work. Oakavenues often ran perpendicular to rivers or bayous, orpresented the house from the most flattering perspective. Theaesthetic ideology embodied by many Louisiana plantations canbe seen as the ordering, and representing, of an ideal space -an almost smug statement that things are as they should be.Indeed, as Lefebvre has noted, the inscription of aestheticson the landscape evokes specific notions of property andpermanence, and imbues "the countryside with depth andmeaning."' Two qualifications should be noted however. First,unlike Lefebvre's poderi, which illustrate a representation ofspace (linear perspective) generated by spatial practice, theSouthern landscape was undoubtedly influenced by artisticrepresentations of space. And second, this aestheticpreoccupation with landscape was not always52 Lefebvre, 78.SUGARHOUSE123BAYOU - BLOCK^—'-PLANTATIONALICE C.II 1-"----- -..--ii"DFIELD0,,.STOW•^:4,,,,ERc^.", eeee^1_84 V 0 L/^TECHE110^ 0 MILE 11965Representative Sugar Plantations124practical: while much plantation space was produced andarranged in such a way as to make slaves and their doings asvisible as possible, spatial configurations such as treedavenues hardly lent themselves to this function.The effect created by this physical and aestheticdistancing, did serve, however, to create a boundary of sorts;the slaves as a rule were limited to the quarters when theywere not in the fields, while the whites were not limited toany particular space. This boundary, then, was characterizedby a one-way permeability, which undoubtedly lent an aura ofmystery and luxury to even the most shabby "big house": asummons was usually required for the typical field hand to geta glimpse of the interior of the house. When field handBenjamin Johnson of Georgia visited the house, the other fieldhands plied him with questions about the unknown territory. 53The distance separating the quarters and the House wasprobably cherished by the slaves. It represented if notprivacy, at least some relief from the continuous scrutiny ofthe daylight hours. Housing within the quarters itself seemsto have changed over time. In the eighteenth century, slaveswere often quartered in a barracks-like building, with noregard for crowding, hygiene, or family units. By thenineteenth century there seems to have been a shift to cabins,which can be attributed to heightened concerns about health,morals and morale. 5453 Genovese, 532.54 Ibid., 524125Although slaves often built their own cabins, they hadlittle control over the form their housing would take -specifications were inevitably provided by the planter. Manyplanters put a great deal of thought into the design of theirslaves' housing. One recommended that :"Housing for Negroes should be good; each family shouldhave a house, 16 by 18 feet in the clear, plank floor,brick chimney, shingle roof; floors elevated 2 feet abovethe earth. There should be no loft, no place to stow awayanything, but pins to hang clothes upon. Each houseshould be provided with a bedstead, cotton matress, andsufficient bedclothes for comfort."'This, of course, was an ideal that was rarely realized, but itdoes contain several hints as to what was important to theplanters. There are numerous accounts, by slaves and visitorsto the South, which attest to the lack of furniture in slavecabins, as well as to the lack of partitioning in the cabins.This not only made it extremely difficult to "stow" things,but people too. Ostensibly cabins were raised off the groundto permit circulation (and in Louisiana, to prevent flooding),but this also made it difficult to hide things underfloorboards or in the ground within the perimeter of thecabin. Cabins were generally not designed for "comfort" butfor adequate shelter: planters expected waking hours to bespent at work. Cabins were spaces to be utilized at night andon Sundays.Field work was closely supervised, by the owner,overseer, or both. Solomon Northrup described his typical day55 Cited in Joe Gray Taylor, Negro Slavery in Louisiana (BatonRouge: Louisian Historical Association, 1963), 113.126on a cotton plantation in northern Louisiana as one that wasfilled with fear: fear of oversleeping; fear of not keeping upwith his line in the field; fear of either not picking enoughcotton or picking too much (in which case his quota for thenext day was raised); and fear of breaking precious branchesoff the cotton plants.' All these offenses were punished bythe whip, and most accounts agree thatr it was ever presentand frequently used.On most plantations, some relief from the scrutiny ofoverseers and owners was available because of the separationbetween the quarters and the House. The quarters tended to bea familial space, where the entire family was gatheredtogether in one place, where evening meals were cooked,stories told, days compared, and garden plots and livestocktended.The separation of the House and the quarters was morethan a spatial division between whites and blacks. It alsomarked a division of labor, and according to many white andsome black accounts, a division in slave society. Houseservants formed a very small proportion of slaves, and weregenerally highly prized as skilled cooks, butlers, maids andnannies. However, it was only on the very large andaristocratic sugar and rice plantations, most notably aroundCharleston and New Orleans, that there was an elite of houseservants; servants who considered themselves superior to, andwho refused to associate with, the mass of field workers.56 Northrup, 313-317.127Many of these servants lived in the "big house", or inquarters separate and somewhat better than those of the fieldhands. By virtue of proximity, and training, these servantsoften came to be regarded by whites as members of the family.However, proximity to master and mistress was a mixedblessing; while food and clothing were sometimes better, houseservants were constantly and unremittingly under the eye ofthe whites. As Genovese notes, "The very intimacy of life inthe Big House meant that every fault and every passionappeared in full view."' Unlike the inhabitants of thequarters, house servants had little opportunity to distancethemselves from their owners.Not only were there spatial divisions within theplantation itself, but most plantations in Louisiana were alsodesigned to be relatively self-sufficient. Sugar plantationsin particular had their own refineries, their own store, andfrequently their own church, or a priest who visited from timeto time. Most plantations raised much of the food necessary tofeed their slaves, and in Louisiana, timber was usuallyavailable in the back swamp which bordered many properties.Plantations were not fenced, but there were many attempts tocontrol their borders.One of these was the pass system mentioned above. Duringthe night hours, when much of the slave's social life tookplace, the boundaries of plantations were policed by groups ofpatrollers. There were numerous reasons why a slave might want57 Genovese, 336.128to leave the confines of an owner's domain; there was a livelyblack market trade on Louisiana bayous, and religiousgatherings frequently occurred at night in the woods. Dances,social gatherings, hunting and love interests or family on aneighboring plantation also provided an impetus for nocturnalwandering.Intended to discourage runaways and inter-plantationtheft, and to prevent rebellions, patrollers were the sourceof fear and anxiety in the quarters. They travelled in groups,frequently mounted and armed, and usually with one or moredogs in tow. They were usually non-slaveholding whites, andless than impressed with the valuable property they were paidto police, leading to complaints of brutality from both slavesand owners. The slaves summed up the problem concisely in asong that warned: "Run, nigger, run, patteroller'll ketch yer,Hit yer thirty-nine and sware'e didn' tech yer." Their raidsfrequently took them into the quarters, and into cabins - theywere extremely intrusive, but sporadic at best. The frequencyand success with which slaves evaded them is attested to bythe flourishing black market, and in slave tales.Thus far I have focussed primarily on the spatialarrangements, and particularly the boundaries, that plantersconstructed to contain and control slaves. These spaces wereproduced by a society that was dependent on slave labor, or,as Lefebvre would probably point out, a capitalist mode ofproduction in which labor was not sold for wages but was58 Cited in Levine, 14.129(literally) captive. I have little doubt that these relationsconstituted a socially produced space, one produced bySouthern slave-owning whites, with the general participationof the vast majority of Southerners. According to Lefebvre'sconception, spatial practice, representations of space andspaces of representation, all contribute, individually or incombination, to the production of space. Spatial practicedenotes the ways in which people generate and use materialspace. Representations of space tend to be rational, readable,and reproducible conceptions of space, while spaces ofrepresentation are lived spaces produced and modified by theirinhabitants - they are spaces imbued with meaning andsymbolism. 59 These "moments" are useful, in that they permitnot only a broader conception of space, but also because theypermit a recognition of different types of space. Each ofthese moments is present in the plantation society I havedescribed: agriculture is an age old spatial practice; theform - the plan - of Louisiana sugar plantations is arepresentation of space; the quarters, and the entireLouisiana mythos of moonlight and magnolias, were spaces ofrepresentation.Slaves inhabited, and to a certain extent, participatedin the production of these spaces. It seems clear, though,that this space was predominately white - it was called forthby, and answered the needs of, Southern white society. The59 Lefebvre, 38-39.130question that insistently emerges from this train of thoughtis, could, and did, the slaves produce a space of their own?I think that Lefebvre points in the right direction whenhe suggests that:"Perhaps we shall have to go further, and conclude thatthe producers of space have always acted in accordancewith a representation, while the 'users' passivelyexperienced whatever was imposed upon them inasmuch as itwas more or less thoroughly inserted into, or justifiedby, their representational space...As to whether or not'inhabitants' possess a representational space, if wearrive at an affirmative answer, we shall be well on theway to dispelling a curious misunderstanding...""Lefebvre is trying to come to grips with a "free" twentiethcentury capitalist society, in which the dominant modes ofspatial practice and representations of space (the space ofthe producers) are made palatable, or capable ofjustification, through a process of ideological mystification.Here Lefebvre is emphasizing the potential for domination inthe non-physical aspects of the production of space: by itsnature, modern society must depend more on ideologicaldomination than on naked physical domination.Planters, by contrast, did not depend on the ideologicalimposition of their spatial productions on slaves - theoperation of white space on slaves was distinctly physical,although it undoubtedly had mental and emotional ramificationsas well. If slaves were so enmeshed in the space imposed uponthem by whites how could they produce a space of their own?The importance of Lefebvre's question becomes obvious at this60 Ibid., 43-44.131point - slaves, the inhabitants of this dominating space, did"possess" a space of representation, in the sense that theyhad produced a cultural and social space that overlayed thephysical space to which they were subject.Historians of Southern slavery have produced a great dealof evidence which suggests that despite the physicalsubjugation of slaves, they were able to create and maintain a"world" which enabled them to endure the brutality of theirlives. Genovese proposes that slaves were able to fashion aunique and fulfilling set of religious beliefs, while Levineadds slave songs and tales (religious and secular) toreligion. Gutman suggests that familial practices -reproduction and marriage - which were more reflective ofAfrican practices than of American norms, were an importantpart of slaves' lives. These practices composed what Genovesecalls "the world the slaves made". These historians focussedon daily life in slave communities, and particularly thesocial relations that slaves had built with one another andwith their paternalistic "white folks." They intended toappeal to the humanitarian instincts of a broad, sympathetic,and liberal audience, and to be sure, they haverevolutionalized the history of Southern studies. 6 'I suggest that these histories can be seen from adifferent perspective than the ones they were perhaps intendedto call forth. It seems that they all have a common thread:all of these studies point toward the notion that slaves -61 Genovese, Levine, Gutman, op. cit.132through cultural, religious, or familial practices - were ableto produce a space that was uniquely their own. I amsuggesting that Lefebvre's conceptual moments, spaces ofrepresentation, lived spaces, are invaluable to conceiving theways in which slaves, simply by "using" or "inhabiting" thespaces into which they were inserted, were able to makesomething new and different: they were able to produce theirown space. Indeed, if we take Lefebvre's claim that bodiesproduce spaces seriously, and I do, it is difficult to see whyslaves would not produce their own spaces. Further, I wouldsuggest that the production of these slave spaces werecritical to slaves' ability to resist white domination,whether it was physical, emotional or ideological.Resistance is an important issue in slavery. De Certeauhas suggested that tactics privilege time over space, thatthey occur only in the interstices of a space generated by aproprietary power. Hence they have no space of their own, theyare guided solely by considerations of opportunity andcircumstance. Strategies, he believes, privilege space overtime.' I do not entirely agree with de Certeau's theory oftactics and strategies, because I think that he ignores twoessential points. First, space is not always material - it isnot necessarily tangible. With Lefebvre, I think that thereare conceptions of space which are powerful and compellingwithout having to be physically manifested. One example of the62 Michel de Certeau, The Practice of Everyday Life, StevenRandall trans., (Berkeley: University of California Press,1984) 34-42.133power of this type of conceived space is linear perspective,which has produced a way of seeing, and of thinking, that hasdominated the European (and American) imagination forcenturies. But there are other spaces which are equallypowerful and meaningful, although possibly more local. Second,it seems that de Certeau's conceptions of tactics andstrategies privilege hegemonic power relations. By this I meanthat he does not come to grips with the political, contested,nature of space. If bodies do indeed produce spaces, thepotentials and possibilities inherent in that production areinfinite. The fragility of hegemonic apparatuses of power suchas slavery becomes clear, and we can see how it was possiblefor a group of people to have undergone perhaps this mostvirulent and violent form of oppression with their humanityintact. Thus, it seems to me that tactics and strategies areconstantly producing, and being produced by and through space,and further, that it makes no difference whether that space ismaterial or conceived. Or, that perhaps tactics and strategiesare connected more to one type of space than to another: that,for example, material spaces and representations of spaceprivilege strategies, while spaces of representation, lived,inhabited spaces privilege tactics. Whatever the case may be,I am suggesting that slaves did not seek simply 'to endure thebrutality of slavery', but that they were constantly active ina realm of subversive strategies and tactics that were boundup with space.134For example, slaves were aware of, and appreciative of,the significance of distance. Thus the physical distanceseparating quarters and House was prized, as a relief fromwatchful eyes, and as a boundary, no matter how porous,between coercion and desire. The Reverend C.C. Jones of SouthCarolina observed: "the Negroes are a distinct class incommunity and keep themselves very much to themselves. Theyare one thing before the whites, and another before their owncolor."" Slaves were able to produce distance by theirdemeanor, their wit, their awareness. As one planter warned:"They soon ascertain the character of those in authorityover them, their peculiarities of temperament anddisposition, and frequently under the cloak of greatstupidity, make dupes of the master and overseer. Themost general defect in the character of the negro ishypocrisy [!]; and this hypocrisy frequently makes himpretend to more ignorance than he possesses; and if hismaster treats him as a fool, he will be sure to act thefool's part. This is a very convenient trait, as itfrequently serves as an apology for awkwardness andneglect of duty. II 64Slaves tried to turn any gap, any lapse, any privilege totheir own advantage.63 Genovese, 583.64 Ibid., 583. The choice of the word hypocrisy isinteresting, because this planter seems to be aware that it isnot the most fitting word to describe the actions of hisslaves. As for the slaves themselves, they seem to havesettled the issue of hypocrisy to their own satisfaction.Asked if it was wrong to steal from his master, one slaveresponded with this exquisite logic: "A Lord, dou...taught dysarvents dat it want no harm fur ter take de corn out derbarril and put it into de kag. De barril 'longs to de marsterand de kag 'longs ter de marster, dar-forth it ain't nodiffunce when de darkie take de marster's pig out er de pen anput it into de darkie, case de darkie 'longs ter de martser,and de pig 'longs ter de martser." Cited in Levine, 131.135Socially produced space is necessary, even crucial toresistance - it is the point of fermentation for potentialaction. While slaves never mounted what could be termed formalpolitical resistance to their enslavement (how could they?),they certainly resisted in a plethora of ways. They resistedby holding their own religious meetings at night in the woods,where they were not bombarded by the white man's insistence onpreaching the morality of obedience; they went on go-slows inthe fields; they sang songs and told tales of their ability toto outwit "the Man"; they were defiant in word and deed; andoccasionally they armed themselves and fought for theirfreedom against all odds. If slaves were able to produce aviable, and vibrant, social space under these conditions, aspace that enabled them to resist this most extreme form ofoppression, what must we think of the potential for creationand resistance inherent in the production of space itself?ConclusionsEach of the topics I have discussed in this chapterplayed some role in the relations which constituted slavery inLouisiana. Slave codes were important, in that they delimitedthe outermost contours of slavery: while their onlyrecognition of the legal personality of slaves was to holdthem responsible for their criminal action, these codes alsoattempted to regulate the degree of physical forceslaveholders could legitimately inflict on their slaves. Lawalso played a crucial role by establishing property rights. It136provided legitimacy to white ownership of slaves, but moreimportantly, it denied the right of property ownership toslaves: by doing so, law denied other civil rights which werebelieved to flow from the ownership of property in WesternEuropean and American political philosophy.The textual strategy employed by Louisiana slaveholdersto inscribe slavery as an institution into the landscape castslavery in a depersonalized and anonymous mold, restrictingand manipulating access to the machinations of slavery itself.These rhetorics echo the legal constitution of an equivalencebetween black and slave, permitting some insight into onepossible geography of race, as well as to the moralgeographies of Louisiana slavery.I have tried to show that general theories of power donot fare well in the context of slavery. One of thedifficulties of this type of analysis is the highlypersonalized relations of power that existed within theinstitution of slavery. While physical coercion seems to havebeen omnipresent in the master/slave relation, it was only onemodality of power present in the web of relations whichconstituted slavery. How, for example, do we trace a historyof the power of fear? On the other hand, European conceptionsof a shift from sovereign to disciplinary modes of power areof limited value in an examination of slavery, and perhaps ofthe 'New World' in the nineteenth century. The Code Noir was aclear example of sovereign power, but its unambiguous positionin Foucault's genealogy of power may stem from the fact that137it was a product of the French monarchical bureaucracy.Louisiana slavery was not a product of that bureaucracy, butrather developed on the ground in a specific colonial context.I think the lopsided, personalized relations of power inslavery accentuate the importance of space. While slaveholderswere aware that spatial design could be utilized to exertcontrol over their slaves, slaves were nevertheless able touse white spatial design to their own advantage, and further,to produce their own spaces. I have tried to suggest the manytypes of space that could, and can, be produced, and to showspace was not, and is not, always a material physicalmanifestation. But more, I have tried to point to thepotential for resistance which is inherent in Lefebvre'sspatial architectonics - his notion that bodies producespaces. That notion is extremely suggestive, because it pointsnot only to one possible conception of the relations of powerand space in Louisiana slavery, but also because it speaks topresent day relations between power and space, particularly inview of the histories of the present written by Foucault andLefebvre. If slaves were able to resist the de-humanizingdomination of whites to any degree, if they were able toproduce spaces in the circumstances in which they foundthemselves, how much more this should say to our contemporaryability to resist the spread of disciplinary power intosociety as a whole, or to our ability to resist the increasingabstraction of space.138Thus far I have focussed on the myriad ways in whichsubjects are constituted by law: particularly the ways inwhich women, property, slaves, and property-owners wereconstituted differently under Civil and common law. In thischapter I have pointed to some of the ways that lawconstructed blacks as slaves. But I have also focussed on theimportance of custom, largely to point to the gaps whichexisted between practice and law. But custom was alsoimportant in Louisiana because it had acquired an immensedegree of authority and legitimacy. In the chapters thatfollow I show other ways in which the power of custom wasmanifested in Louisiana.Chapter 4The Territorial Court of PleasThe Court of Common Pleas established by GovernorClaiborne in the first ten days of his tenure is burdened witha legacy of blame in the legal history of Louisiana, eventhough there has been little detailed scholarship on thesubject. Henry Plauche Dart declared that if it were not forthe creation of the Court of Common Pleas, which Claibornemodelled after "his home system in Tennessee and Virginia",and the fact that its bench was composed of English speakerswho imposed their language on the proceedings, as well astheir common law experience, Louisianians "would possibly haveslipped gradually into an acquaintance with the other systemand in time have forgotten the mild sway of the past."' Inother words, the survival of the Civil law system in Louisianacan be traced to the animosity and opposition aroused by theCourt of Pleas.While I do not entirely agree with Dart's assessment, itis interesting for a number of reasons. First, as Dart stated,the Court did contribute to raising the level of awareness ofthe potential effects of the common law system in Louisiana.Second, the Court of Pleas was the first attempt at a dual1 Henry P. Dart, "Courts and Law in Colonial Louisiana", LHQ 4(1921): 255-289, 288. Most discussions of the Court cite Dart,who in turn cites Charles Gayarre's History of Louisiana,which, on this particular, does not seem to be entirelyaccurate.139140jurisdiction in the Territory, by which I mean that a commonlaw mode of procedure was shingled onto the substantive bodyof the Civil law. Third, it is possible to trace out somegeneralizations about Civil and common law conceptions ofequity through an examination of some of the Court'sdecisions. Finally, while the Court was the source of somelocal criticism, it was not targeted as frequently or assharply as was the Governor's appellate Court. 2More specifically, I focus on one case, Labie v. Baudin,to illustrate the confusion that was created by the Court ofCommon Plea's use of common law procedure in a traditionallyCivil law court system. The Court was also illustrative of thedivisions within New Orleans society, divisions whichreflected various interests and preferences in the community.Broadly, there was a division between English-speakers andFrench-speakers which reflected a preference for one legalsystem or the other, English-speakers tending to prefer commonlaw, French-speakers Civil law. This schism can also be tracedthrough two geographies of equity which collided in Louisiana,a Civil law conception which saw equity as implicit in thelegal dispensation of justice, and a common law conceptionwhich saw equity as a separate and formal process which could2 The majority of my information on the Court of Pleas comesfrom the Court of Pleas - Calendar of Cases, 1804. [Hereaftercited as Calendar]. The Calendar is a bound manuscript in theLouisiana Division of the New Orleans Public Library. It is asummary of all the cases that came before the court; eachsummary appears in both French and English. I have tried tosupplement the information from the Calendar as much aspossible with newspaper accounts and correspondence.141be called upon only in very specific circumstances. There wasalso a division between planters and merchants which washighlighted by Baudin's petition to President Jefferson, adivision which marked differing views on debt collection. Thecriticism which targeted the Governor's Court also reflectedthe divisions within New Orleans society, in that most of itwas produced by an Anglo-American newspaper - The LouisianaGazette - with decidedly anti-Jefferson overtones. Much ofthis chapter, and the next, points to the ways in which thelegal debates in Louisiana became highly politicized andcontested arenas for larger economic, political and judicialquestions.The Court of Common Pleas: JurisdictionGovernor Claiborne established the Court of Pleas bydecree on December 30, 1803. The Court was a temporary measuretaken in order to provide a minimal legal apparatus for theTerritory while Congress debated the Louisiana Act, and to actin the interim between passage of the Act and the date it wasto take effect on October 1, 1804. Although the Court of Pleaswas to have civil and criminal jurisdiction, Claiborneexplained to Madison that it had been established primarily inresponse to "the solicitude of the inhabitants for someTribunals of Justice [which] appeared to be universal, and theGeneral complaint was, that no debts could be recovered."'3 Claiborne to Madison, March 2, 1804, Letter Books, 2: 15.142The Court could hear criminal cases in which the sentencedid not exceed $200 and/or 60 days imprisonment, though thisturned out to be a minor factor in the history of the court,as (to my knowledge) it heard only one criminal case, inwhich, according to Claiborne "a few of [its] members seem[ed]unwilling to act even as Conservators of the peace." 4 The casewas promptly dismissed, and Claiborne's assessment wasprobably quite correct, in view of the Court's declarationthat it was a "cours de justice civile" which obviouslyconsidered its jurisdiction to extend only to civil cases. 5In its civil capacity, the Court's jurisdiction waslimited to cases involving no more than $3,000. Individuallyeach judge could summarily decide cases involving less than$100, which included a right of appeal to the Court sitting enbanc. In cases where the amount in dispute totalled over $500,either party could appeal to the Governor, from whom nofurther appeal could be made.The Court Regulations were of a decidedly common law cast- by which I mean that the Court was intended to adjudicateaccording to common law procedures - using a plethora of writs(summons, capias, and attachment), as well as viva voce4 The Court met on January 23, 1804, to examine 6 men,Gontier, Thiel, St. Avid, Robelot, Robert and Desforgues, whowere accused of "being concerned in a riot and breach of thepeace last evening in the ballroom." The court, "finding nosufficient charge against them to pronounce them guilty,thought proper to discharge them." The judges sitting wereArgoti, Mericult, Dorciêre, Lanusse and Morgan. Calendar, 7.Also, Claiborne to Madison, October 19,^1804,^Letter Books,^2:368.5 Calendar, 7.143pleading, all of which would have been unfamiliar to'Civilians.' Thus, some doubt remains as to whether theseregulations were designed by the Court or by GovernorClaiborne. On the one hand, Claiborne stated in a letter toMadison that he had decided to organize a court "somewhatsimilar to the Tribunals of the United States"; but on theother hand, he claimed that, "the forms of proceedings I in agreat measure left to [the Court's] own discretion."' Whatevertheir source may be, the regulations themselves speak of afamiliarity with common law proceedings. I have chosen to lookat one case, rather than try to present a generalized overviewfor several reasons. First, I have chosen this particular casebecause more information, in the form of correspondence, isavailable for it than any other heard in the Court of Pleas.Second, focussing on one case is a tried and true approach inlegal history, and I presume that it can be used to equallygood effect in a geography of law. And third, I want todiscuss the problems that common law forms created in a Civillaw context in more concrete and explicit terms than wouldhave been possible had I attempted an overview. Therefore, thestory that follows traces out Alexandre Baudin's firstencounter with the American legal system in territorialLouisiana.Labie v. Baudin6 Claiborne to Madison, October 16, 1804, Letter Books, 2:356; and Claiborne to Jefferson, May 1, 1804, Ibid., 2: 120.144On January 23, 1804, Joseph Labie sued Alexandre Baudin,a sugar planter, for the recovery of a one thousand dollardebt. When Baudin failed to appear in court, the action wasdecided ex parte in the plaintiff's favor, Labie proving thedebt by producing a note of hand signed by Baudin. 7 The courtissued a writ of execution on Baudin's property, whichprompted him to appeal first to Claiborne, then to PresidentJefferson. Although both of Baudin's attempts to stopexecution failed, the grounds on which he objected are ofinterest. First, he objected to the informality of theproceedings. Claiborne addressed this issue in a letter toBaudin, in which he states that he had not interfered in thejudgment of the Court of Pleas because: "The claims of M.Labie against you were not disputed, and your objections wentnot to the justice but the forms of the proceedings againstyou." 8 Precisely so - Baudin seems never to have contested thejudgment of the Court, but rather their methods, and the speedwith which they were carried out. Baudin was accustomed to themethods of Spanish tribunals, in which suits involving such alarge sum of money would have been adjudicated in a set,written, and rather slower manner.Under the Spanish judicial system, in cases involvinglarge debts, the entire process would have been in writing. Ifthe debt was fully established, for example by a ledgerbookentry, or by a note of hand, the creditor would draw up a7 Calendar, 7.8 Claiborne to Baudin, May 12, 1804, Letter Books, 2: 144-145.145declaration stating the claim, accompanied by the documentwhich proved the claim. The plaintiff would submit thesewritten proofs to the judge, moving that a writ of executionbe granted by virtue of these documents. Upon granting theexecution, the judge would then summon the debtor (whosepresence had been unnecessary up to this point), and presentthe writ of execution, ordering payment. If the defendantcould not pay, property equivalent in value to the debt wouldbe seized. The debtor had three days to oppose the execution,and ten days to prove an opposition. If the opposition was notproved, time would pass as movables or immovables wereappraised; more time would pass, because movables could not besold before public notice was given three times in nine days,while immovables required public notice every nine days forthirty days. 9Baudin's experience in the Court of Pleas was quitedifferent. Doubtless he was issued a writ of summons, butfailed to appear nonetheless. This may have been because hedid not understand why his presence was necessary during aprocess which had formerly involved only the judge and theplaintiff: according to Spanish forms his presence would nothave been required until the judge presented him with the writof execution. This was not, however, the mode of procedure ofthe Court of Common Pleas - its regulations specified theprocedure for a writ of execution:9 Dart, Courts and Law, 285. This was the process for simpledebt collection. The basic procedure for civil cases was farmore complex."After judgment shall have been obtained, a writ ofexecution shall issue, commanding the sheriff to take orretain (as the case may be) in his custody the partyagainst whom judgment shall have gone, and also to seizeand sell all such property as he can find, and aftersatisfaction of all costs and charges occurring thereon,pay the net proceeds of the sales to the party who shallhave recovered..." 1 °Rather than being served by a judge, the writ was served bythe sheriff. Further, a note of immediacy is struck by thephrase "take or retain in custody", in contrast to the Spanishprocedure outlined above.Baudin was called back to court on February 27, whenLabie sued him for the interest due on his loan. The entireproceeding was viva voce, doubtless compounding Baudin's senseof the informality, and hence the invalid nature of theproceedings against him. Furthermore, Baudin had assembled hiscreditors, apparently at the New Orleans L'Hotel de Villewhere the Court was in session, in order to enter "into someagreement with them." Two of these creditors, Paul Lanusse(who also happened to be one of the presiding judges) andLewis Fortin, petitioned the court to stay the execution,ostensibly so that some informal agreement could be reached byBaudin and his creditors. This request was refused, andLanusse and Fortin declared their intention to appeal to theGovernor's court." Claiborne would subsequently refuse tohear the case, thereby tacitly concurring with the Court'sdecision.10 Calendar, Regulations, 2-4.11 Ibid., 21.146147Second, and probably more importantly, Baudin objected tothe fact that the writ did not specifically exclude sugar fromseizure as security for the debt. This was the issue thatprompted Baudin to petition Jefferson on February 14, 1804.According to Baudin, the Laws of the Indies (the Spanish laws)exempted his "terres, Negres, et Ustencilles Necessaires auxtravaux de [la] Sucrerie", [lands, Negroes and implementsnecessary to the cultivation of sugar]. He suggested that theAmerican government should extend these same exemptions toLouisiana sugar planters. While none of the above mentioneditems appear to have been seized, the entire proceeding wasevidently extremely disturbing to Baudin. He continued,complaining that the Court, "N'etant Compause que deNegotient... ne Conaissent nulement les loix ni les cour de laJurisprudence", and that Governor Claiborne"ne veut faire attencion, malgre les Representacions quelui a fait le Supliant Ainsy que plusieurs habitants,Alleguant qu'il ne peut Prendre sur lui les Pareilleschauses; et permet que la Cour qu'il a Elu fasse saisirles habitans debiteurs, qui sont journellement CondamneSur les loix Americquaines a ce que disent les Membrescompausent la ditte cour de Justices, et sans les avoirfait promulguer avent de les mettre en vigeur, ce quiforme un desordre General, et entrainëra Une Ruinetotalle de grands nombres d'habitans..." 1212 "being composed only of Merchants...[the Court] understandsnothing of the laws or the courts of Jurisprudence," andClaiborne "does not wish to pay attention, in spite of therepresentations which the petitioner has made to him, as wellas several other inhabitants, Alleging that he cannot take onhimself such things; and that he permits the court that he haselected to seize resident debtors, who are daily condemned bythe American laws to whatever the members of the court maysay, and without having notified them before action is taken,all of which results in General disorder and will bring aboutthe total Ruin of a large number of inhabitants..." Alexandre148One possible explanation for Baudin's petition to Jefferson isthat under the Spanish system there was a right to appeal toHavana, and depending on the importance of the case, all theway to the Council of the Indies in Spain. Baudin must havebeen astonished when Jefferson referred him back to Claiborne,who smugly assured him that "no authority has as yet beenestablished paramount to that of the Governor I mean as toJudicial decisions." Claiborne also pointed out that "everycourt has an inherent right to regulate their own forms ofproceedings, provided they be not at variance with thesubstance and general principles of the Law of the Land." 13Claiborne raised an important point - the difficulty ofadministering law through the Court of Pleas was that theinhabitants, such as Baudin, did not understand the newprocedures regulating their affairs. At the same time, thefederal government, and more to the point, Claiborne, wasunsure of the substance of the Civil law. What is more, theprocedures of the common law did impinge upon rights whichLouisianians presumed were guaranteed them by the Spanishlaws. This was demonstrated clearly in Baudin's case - uponhis understanding of the Spanish laws, none of his sugarestablishment could be seized to satisfy debt, not even thefinished product.Baudin to Jefferson, February 14, 1804, Territorial Papers,9: 186 - 187.13 Claiborne to Baudin, May 12, 1804, Letter Books, 2: 144-145.149This point is further clarified if we take into accountthe rapidity - compared to the Spanish system - of theexecution process. Baudin's reaction to the writ of executionwas to call together his creditors in an attempt to settlewith them in a more informal manner. Judging by the reactionof some of his creditors, who attempted themselves to have thewrit stayed, this was not an extraordinary or unfamiliarprocedure.Baudin's complaint about the membership of the Courtshould also be taken seriously. The Court was composed almostexclusively of merchants, who were the source of most of thecredit in Louisiana at a time when there were no banks orcredit institutions: rapid and efficient debt recoveryundoubtedly assumed primary importance. In the Louisianaeconomy, borrowers tended to be planters, who generally hadready cash only after the consignment and sale of their cropsby the merchant houses. Lenders tended to be merchants, wholent on the basis of expected consignments by the planter. Itis not surprising to find that a conflict of interests wouldarise between merchants and planters - a conflict that was tobe adjudicated largely by New Orleans merchants. Indeed, thisconflict mirrors the clash between debtors and creditors on alarger scale. Lawrence Friedman has noted that throughoutAmerican history, courts have tended to uphold creditors'rights, while legislatures have tended toward debtor relief. 1414 Lawrence M. Friedman, A History of American Law (New York:Simon and Schuster, 1973), 217.150This certainly describes the situation in the first months ofthe Court of Pleas, at a time when Claiborne was virtually thelegislature.Regarding debt collection, Claiborne noted that debtors"have recently complained of the zeal and promptitude withwhich the justices discharge their duties, and beg that somedelay in the hearing and determining causes be prescribed, Ihave endeavoured to accomodate Debtors on this point, inprescribing certain rules of proceeding for the Court whichwill produce in part the delay solicited." 15 Claiborne, likemany American legislators, altered the procedure of the courtin order to protect debtors.Merchants and PlantersBaudin had complained in his petition to Jefferson of the"elected" nature of a Court composed of merchants, who wouldnaturally not understand the problems of a sugar planter. TheCourt was certainly composed predominantly of merchants, eight15 Claiborne to Madison, March 2, 1804, Letter Books, 2: 15.Claiborne instructed the Court "que l'audience doit "etreajourn6e de jour en jour jusqu'a trois jours cons6cutif,"rather than meeting weekly. Therefore, on May 9 the Courtadjourned until the first Monday of June. Calendar, 51. Thereare several examples in the Spanish Judicial Records of thelength of execution procedures. In Pictet v. Raguet, Pictetsued on March 2, 1770. On May 12 of that year judgment foundfor the plaintiff. On June 27 the Assessor ordered Raguet toappear to verify his signature. On October 20 Raguet had notappeared, and the plaintiff could not continue the action. ByJanuary 13, 1772, Pictet had not recovered the money owed, andthere is no more mention of the case. Laura Porteus, "Index tothe Spanish Judicial Records of Louisiana V", LHQ 7 (1924)145.151of the ten original judges were members of that profession.'Of the two remaining members of the Court, Antonio Argoti hadbeen a clerk and an attorney under the Spanish regime, whilethe profession of the other is unknown.''Information about many of the court members is scarce,but enough is available to hazard some general statements.Dart's claim that the Court had an English language and commonlaw bent is certainly true if the proportion of Americans onthe Court is compared to the proportion of Americans in theTerritory at the time. However, it would not be fair to saythat the Court was stocked with strictly English speakers. Sixof the Court's members spoke French; three, and possibly fourof them, had arrived in Louisiana before 1790. Another threewere established by 1801, and one possibly much earlier.Garland was a relative latecomer, Guerin a mystery, and Dubuyswas involved with an old firm from St. Domingue, and may havearrived in Louisiana during one of the influxes of immigrantsfrom the Island during the 1790s. The Creole population wasseriously under-represented. Mericult and probably Lanusse,were French, Dorsiere was Swiss, Dubuys was probably from St.16 Beverley Chew, Gaspard Debuys, Eugene Dorciere, BenjaminMorgan, William Kenner, Paul Lanusse, William Garland, andJean Mericult.17 There is a consensus in the literature that the Court wascomposed of seven members. I have found that this is notaccurate, at least according to the Calendar. Each case in theCalendar records the judges sitting at the session recorded.Each of these men is recorded: the fewest number of sessionsattended by any of them was 8 in a four month span. Inaddition, they are listed before the minutes of the firstsession.152Domingue (Haiti) or France, Morgan, Chew, Garland and Kennerwere all American, Argoti was Spanish, and Gu6rin unknown.According to Joseph Tregle Jr., the paucity of Creoles onthe Court was not unusual. He has pointed out that the foreignFrench - refugees from St. Domingue, the French Revolution andNapoleonic oppression - provided much of the leadership in the"Gallic community", and were the Anglo-Americans' true rivalsfor political power. Tregle claims that the foreign Frenchwere better educated, more versed in politics and law, andgenerally possessed of more initiative than were the Creoles.'This assessment, and particularly the claim that LouisianaCreoles were, as a rule, poorly educated, has been criticizedby Paul Lachance, who claims that "by contemporary standards"literacy in New Orleans was high, with Creoles setting ahigher standard of literacy than the foreign French.'Lachance bases his literacy rates on an individual's abilityto sign a marriage contract, rather than making a mark on it.David Cressy claims that the ability to make a signatureconstitutes "a cut - off point in the middle range, somewherebetween a rude ability to read and actual fluency in writing."People who could sign their names could often read, Cressyargues, because reading was taught prior to writing.' Kenneth18 Joseph G. Tregle, Jr., "Early New Orleans Society: AReappraisal," The Journal of Southern History, 18 (1952): 20-36, 30-31.19 Paul F. Lachance, "The Foreign French" in Arnold R. Hirschand Joseph Logsdon (eds), Creole New Orleans: Race andAmericanization (Baton Rouge: Louisiana State UniversityPress, 1992): 101-130, 122-3.20 David Cressy, "Levels of Illiteracy in England, 1530-1730"in Harvey J. Graff, ed., Literacy and Social Development in153Lockridge sharpens this assessment, pointing out that innineteenth-century Anglo-America 30% to 50% of men who mademarks, as opposed to signatures, could read. But he lowersthis figure to 10% in nineteenth-century France, where readingand writing were taught simultaneously.' Neither of theseassessments can genuinely be said to 'fit' Louisiana:literacy in Anglo-America was linked to Protestantism, whileilliteracy in France was the result of the educational system.Louisiana had been a Spanish colony for over three decades, itwas predominantly Catholic, and public education was notavailable. While Lachance's figures may be accurate, they donot account for the influence that the foreign French garneredin Louisiana, and given the bulk of evidence - travelaccounts, correspondence, and the proportionately overwhelmingdominance of foreign French in political and legal affairs,and newspaper publishing until 1824, Tregle's point is welltaken.'the West: A Reader, (Cambridge: Cambridge University Press,1981), 105-124, 105.21 Kenneth Lockridge, "Literacy in Early America, 1650-1800"in Ibid., 183 - 200, 188.22 The travel accounts which address literacy the mostdirectly are written by visiting Frenchmen. Comments rangefrom, "A Creole told me with great naivetée one day, that anever failing method to make him fall asleep, was to open abook before him", to, "But indeed, what is there to do in theevenings [other than gambling]? Converse? About what?Louisianians are strangers alike to art and science or even tothe most ordinary items of knowledge." Berquin - Duvallon, Vuede la Colonie Espagnole du Mississippi ou des Provinces de laLouisiane...en l'Annee 1802 (Paris, 1803), 60; C.C. Robin,Voyage dans l'interieur de la Louisiane 2 vols. (Paris, 1807),56. Daniel Clark wrote to President Jefferson that "not abovehalf the inhabitants can read or Write the french, & not twohundred in the whole country with correctness", Clark toJefferson, September 8, 1803, Territorial Papers, 9: 38. A few154The balance struck between French speakers and Anglo -Americans on the Court of Pleas bench did not last long. Thecomposition of the court had shifted to a decided Anglo-American majority by mid-June. It is unclear precisely whatoccured during June, but Claiborne appointed four new judgesto the Court: three were British, one was American.Ostensibly, these four men were intended to replace four ofthe original members, but it is impossible to know exactlywhom. Of the original ten, five did not appear on the benchafter June 9, 1804, but it is not clear whether these newappointments were due to resignations, more time-consumingappointments, or dismissal from duty.' The post-June 9thCourt may have been the Court that drew so much fire fromLouisiana historians, despite the fact that they sat for lessthan four months.There was another change which took place during thesession of the Court of Pleas which occasioned a great deal ofpublic discontent: the licensing of lawyers, which began onMarch 20, 1804. Through April 9, 1804, twenty-three lawyerswere licensed, and by September Claiborne estimated that thereexamples of prominent foreign French include Louis Moreau-Lislet, longtime Superior Court judge and student of the CivilCode; Louis Guillaume Du Bourg, first bishop of the diocese ofLouisiana; Louis Duclot and J-B Lesueur-Fontaine, editors ofthe first newspaper in Louisiana, Le Moniteur; and JosephRoffignac, mayor of New Orleans.23 The new appointees were Thomas Randall, Charles Patton,Andrew Burk and George Pollock. At least three of these menwere merchants. Kenner, Chew, Garland (who had been appointedSurveyor of New Orleans), Lanusse, and Dubuys did not sit onthe Court after June 9, 1804.155were over thirty in New Orleans.' Half of the lawyersmentioned in the Calendar were Anglo-American.One of the effects of this licensing can be seen in theCalendar. In February, the Court heard 105 cases. Assuming onelawyer per plaintiff and defendant, this leaves 210 slots thatcould have been filled by lawyers. Of the 210 possibilities,only 25 were filled. In May, (which was a shortened sessiondue to Claiborne's decree), 38 cases were heard, leaving 76slots for lawyers, of which 62 were filled. 25 It appears thatthe services of a lawyer had come to be seen as vital to one'scause. This had the effect of raising the costs of litigation,and, as Claiborne explained, "the great influx of American andFrench lawyers, wearied, (by their pleadings) the patience ofthe Court, and occasion'd the Disgust of some of the members.-" 26 The dissatisfaction with lawyers in New Orleans soonspread throughout the Territory, following the spread ofAmerican law. Indeed, the American lawyers would make theirpresence keenly felt in late 1804, when they initiated a suitbefore recently arrived Superior Court Judge, J.B. Prevost.'Les Americains' argued that the Northwest Ordinance hadestablished "judicial proceedings according to the course ofthe common law", and that logically, the Orleans Territory was24 Calendar; Claiborne to Jefferson, August 30, 1804,Territorial Papers, 9: 286.25 Calendar. It is interesting to note that of the 14remaining cases, in 8 the defendant did not appear, 3 peoplerepresented themselves, 1 had been settled by "amicableagreement", 1 was in jail, and 1 was appealed straight to theGovernor's Court.26 Claiborne to Madison, October 16, 1804, Letter Books, 2:356.156entitled to the same "privilege". The issue at hand wasdefining the meaning of the "course of the common law." Theirargument was countered by the Civilian lawyers, most notablyEdward Livingston, who argued that "the law in force inLouisiana was based on the Roman law, not on the English lawand that the term 'common law' was to be construed as 'thecommon law of Louisiana' and not as the 'common law ofEngland.'" Judge Prevost ruled against the Americans, whowould file the same suit upon the arrival of Superior CourtJudge George Mathews the following year.The Court of Pleas was, then, the first court inLouisiana to juggle common law procedure and Civil lawsubstance. Despite its common law procedure, the majority ofthe Court's decisions were not common law in substance. Manycases were obviously decided according to the content of theCivil law. Many of these cases were probate and family lawcases. 28 But far and away the largest class of suits the27 Elizabeth Gaspar Brown, "Legal Systems in Conflict: OrleansTerritory 1804-1812," The American Journal of Legal History 1(1957): 35-76, 40.28 For example, in Marie Louise Constant v. J. B. Plest, thecourt granted the plaintiff's request to change her tutor.There are several examples of individuals appearing in Courtto solicit letters of administration for the estates ofdeceased family members or friends. In Widow Darby v. EdwardForstall and F. Darby, the Court declared that the will "madeby the late Peter Darby is null and void and of no effect inconsequence it is ordered that the property of the successionbe returned to the legal heirs." While this summary is scanty,it appears that Darby's will was nullified because he hadfailed to observe the forced heirship principle of Civil law.Forced heirship limited the testamentary freedom of a parentto dispose of property, requiring that the bulk of propertypass to the children and the widow. While it is possible thatthe will was nullified due to a technical error, this seemsunlikely in Louisiana at this time: nuncupative wills, a formCourt heard were for the recovery of debts, and in themajority of these, the plaintiff was a merchant, or therepresentative of a mercantile house.Most of these cases were settled summarily, as in Labiev. Baudin. There were, however, several cases in which thejudgment bears no resemblance to typical common law decisions.I have chosen two as particularly clear examples of this typeof judgment - both disputes involve slaves.The first of these, J. Guillot v. J. Wiltz, reads:"The parties present to the court articles of agreementbetween them, in order to declare the nullity of the Saleof a Negro woman named Madeleine bought by plaintiff atthe auction of the effects of the late Laurent Wiltz,because the Negro woman is hysterical. The court inconsequence of the nullity of said sale, condemnsdefendant to take back said Negro woman, and condemns theplaintiff to pay her hire from the date of the sale tothis day, which hire the court rates at $170 which theplaintiff shall pay in the following manner and withoutinterest, to wit, $100 in hand, and $70 in 6 months. Thecourt order beside that each party shall pay the coststhey have sustained to this day, and that those of thepresent judgment be equally paid and divided by theparties." [Judges: Garland, Dorsi&re, Guerin]The other, Jean Gravier v. Cadet Dejan, reads:"The plurality of the judges decree that in consequenceof the good faith with which defendant had acted in thisaffair, and the particular circumstances which accompanyit, the parties shall share alike the loss of the Negroof the plaintiff drowned in the service of the defendanthis value being estimated at $900. Appealed." [Judges:Argoti, Randall, Garland, Patton, Dorsiêre]Both judgments show a concern for "common-sense" fairness inpreference to strict legal reasoning. Guillot v. Wiltzdemonstrates the principle of redhibition, the nullificationfrequently resorted to by isolated and illiterate inhabitants,were common.157158of a sale due to a defect in the article sold that rendered itvirtually or totally unusable, or that would have preventedthe purchase if known to the buyer. Rather than simplyoverturning the sale, the Court ordered Guillot to pay forMadeleine's time in his possession. Not only did it set thecost of Madeleine's hire, it also presented a detailed paymentschedule, while ordering both men to pay court costs.Gravier v. Déjan also demonstrates the Court's concernwith fairness. Apparently, there were mitigating factorsinvolved which precluded finding solely against the defendant.The Court seems to be determined to reward the defendant forhis "good faith", which it does by assigning to him only halfthe cost of the 'Negro'.Neither of these cases was settled by the formalappointment of arbitrators - a practice common in Louisiana -but both cases are similar to an arbitration process ratherthan to a strict, formal, legal proceeding. By this I meanthat in formal legal settings, there is generally a winner anda loser. The loser alone pays, or performs acts ofrestitution. In arbitration, there are no winners or losers ina strict sense, because both parties are compelled to perform.In this sense, even the person who is compelled to performmore has extracted something from the other. In other words,many arbitration decisions can be seen as a compromise betweenthe two parties, rather than as a strict application of thelaw. Bruce H. Mann has argued that in the small,agriculturally oriented towns of colonial Connecticutt159arbitration played a vital role in maintaining communitycohesion by mediating economic and social relations. In otherwords, a sense of community was maintained by the use of anarbitration process because it resembled a compromise betweenthe parties. The arbitrators, as 'representatives' of thecommunity, decided disputes on the basis of "common sense"rather than through an adherence to abstract legalprinciples. 29This was probably not the role played by the decisions inGuillot and Gravier. New Orleans was a large, commercial, portcity. Its web of trade extended from Liverpool, Bordeaux andBaltimore to Havana and Brazil. Rather than adjudicating in asmall, tightly-knit, agricultural community, the Court ofPleas was dealing with a merchant community based in NewOrleans, a more peripheral but powerful planter class,Creoles, foreigners, Americans, and the everyday squabbles ofa city of over 8,000 people. While the judgments do have somecommon ground with arbitration, they do not seem to me to beexamples of that process.I think that there are two, probably inseparable,accounts of the 'peculiar' process of adjudication illustratedby Guillot and Gravier. The first of these was the scarcity ofcopies of the Spanish code to which the Court could refer.While certain everyday procedures, such as conveyancing, werecommon knowledge, and never executed without a notary public29 Bruce H. Mann, Neighbors and Strangers, Law and Communityin Early Connecticutt (Chapel Hill: University of NorthCarolina Press, 1987).160present, the finer points of the Civil law were probably notwithin the intellectual purview of the Court as a whole - theexception to prove the rule perhaps being Argoti, who musthave had some familiarity with Spanish law.' However, ratherthan assigning the Court's judgments solely to ignorance or tothe unavailability of written texts, there is anotherpossibility: the Court may simply have placed greater emphasison equity than on strict legality. I will trace a briefgenealogy of equity in order to suggest that there may havebeen geographies of equity, or more broadly, geographies ofjudicial emphasis, at work in territorial Louisiana.Geographies of EquityEquity has been, traditionally, the power to dispensewith the rigidity and rigor of general laws in particularcases. Conceptions of equity, as well as its operation, havevaried over time and through space. Modern Americanconceptions of equity are different from those that were beingformulated at the beginning of the nineteenth century, while,at that time, there were distictions between American andEnglish conceptions of the role of equity, both of whichdiffered from those of nations with Civil law traditions.30 Argoti's knowledge of the Spanish system would have derivedmore from his position as Clerk of the Court, escribano, thanfrom his work as an attorney. According to Dart there was adistinction in the Spanish courts between lawyers, whopossessed legal knowledge, and attorneys, who were merelyrepresentatives of the litigant and did not necessarily posseslegal knowledge. Dart, Courts and Law, 279.161Both Civil law and common law traditions of equity can betraced back to the Greeks, where Aristotle first attempted toformulate juridical equity. For Aristotle, equity meantlooking to the spirit rather than the letter of the law incases that involved misfortune or error, as distinguished fromwrong acts. The Romans followed in the Greeks' footsteps,recognizing, as Aristotle had, that law and justice are notequivalent terms. Further, the Romans came to associate iusgentium with natural law - or right reason - while ius civilewas regarded as man-made, written, law. The Romans eventuallyformulated a body of equitable law dispensed by the praetors.Equity and law were "formally fused" by the reforms ofJustinian. 31 Through the expansion of the Roman Empire, Romanlaw and equity were diffused throughout Europe, and remainedinfluential for centuries.In England, full-fledged equity courts had appeared bythe fourteenth-century. They were the "Keepers of the King'sConscience" and their function was "to allow individuals whobelieved themselves without remedy or without adequate remedybefore the common law to appeal to the king's conscience for aspecial dispensation." 32 By the fifteenth- century thesecourts had been formalized as the Court of Chancery. TheseCourts soon came into conflict with the Courts of CommonPleas, the common law courts. Debates were triggered by31 Gary L. McDowell, Equity and the Constitution: the SupremeCourt, Equitable Relief, and Public Policy (Chicago:University of Chicago Press, 1982). I owe much of thefollowing history of Anglo - American equity to this source.32 Ibid., 24.162questions surrounding the legitimate sources of legalauthority. Sir Edward Coke, for example, believed that thecommon law was superior (in all respects) to equity law - heclaimed that the common law was a science, the product of"artificial reason and judgment" - not the result of naturalreason, while equity law was stigmatized as 'foreign'. Cokeargued that in England, the legitimate source of the law wasthe judiciary, not the king or the Church, and Courts ofChancery had no business reviewing common law decisions.Various other positions in the debate were taken by SirFrancis Bacon and Thomas Hobbes. Bacon believed that thepowers of review vested in the Courts of Chancery played avital role in checking judicial discretion in the common lawcourts, while Hobbes believed that equity was a moral virtue,a law of nature which pre-dated civil society, which hadbecome a (formal) law only after civil society had beenformed, and could only be enforced through the power of thesovereign, the source of judicial power. Neither of thesearguments, however, provided a rationale for the uncheckeddiscretionary powers of the Chancery Court.The publication of Lord Kames' Principles of Equity in1776, provided a solution to many of these problems. Kamesargued that equity was essential as a remedy to specificcommon law decisions, but he, too, worried over the issue ofjudicial discretion in the equity courts. He reasoned thatonly by systematizing equity could judicial discretion be163sufficiently limited - he counted on the power of precedent tocurb the judges' powers.The debate in England influenced American ideas of thelaw-equity relationship, largely in the theoretical realm. TheAmerican experience with colonial law, which did not alwaysmake a clear distinction between common law and equityjurisdictions, also played a role in the formation of theAmerican judiciary. The creation of the judiciary, and theroles that law and equity would be assigned, assumed evengreater importance in light of the need to effectivelysubordinate the common law to the more 'elevated' principleselaborated in the Constitution.By the 1780's the issue for Americans was less one of therelationship between law and equity, than one of where equitypower was to be exercised - at the state or federal level ofthe judiciary. The greatest fears arose in response to thepossibility that state judiciaries would be whollysubordinated to federal courts if the latter were given equitypowers. This fear was compounded by the potential of federalcourts, upon receiving equity jurisdiction, to interpret theConstitution without being confined to its actual text - inother words according to its intention and not its words.Judicial discretion was also, therefore, recognized as aserious problem in the United States.Congress addressed these issues in the Judiciary Act of1789, and the Process acts of 1789 and 1792. The result was aclear distinction between the procedures of equity pleading164and pleading at law. At the same time, these Acts left bothstate and federal courts with jurisdiction over cases in bothlaw and equity. The distinctions that were made betweenpleading procedures were intended to limit judicial discretionat the federal level by establishing a clear rule whichlimited the Court's equity jurisdiction to only those casesbrought by a writ of error. At the state level, equityjurisdiction was to extend only to those cases where no remedycould be had at law. By these provisions, the Act extendedfederal control over equity proceedings in the states.Clearly, then, in Anglo-American law, equity was aseparate and formal process to which appeal could be made onlyto remedy decisions made previously in the course of thecommon law - equity followed the law and not vice versa."Civil law conceptions of equity that lingered inLouisiana were quite different from those described above.Equity, particularly in France, never underwent the dramaticseparation from positive law that had occurred in the Anglo-American legal systems. 34 Indeed, the importance of equity inthe French system may have been enhanced by the codification33 There are numerous differences between American equitablerelief in the 1790's and those of today. First, equitable andlegal procedures have gradually merged. Two other notablechanges include the judicial tendency to apply equity to broadsocial groups, rather than individual 'hard bargains', and theshift in focus from such concrete rights as property rights,to more abstract rights, such as equality. Ibid., 9.34 Ren6 David, French Law, Its Structure, Sources andMethodology, Michael Kindred trans. (Baton Rouge: LouisianaUniversity Press, 1972) 194-196.165movements, and particularly by the efforts at codification ofthe Revolutionary era.The French legal codes of the Revolutionary period, whichculminated in the Code Napoleon, were intended to be acomplete and general body of rules. French codifiers werefully aware that they could not make codal provisions for theentire range of specific possibilities that would have to beadjudicated. There would be lacunae which could only be filledby judicial interpretation. They acknowledged theirappreciation of this circumstance in the preliminary book ofthe Projet of Year VIII, stating that "in civil matters, thejudge, in the absence of a specific statute, is a minister ofequity. Equity is a return to natural law or to customsreceived into the statutory law." 3' Despite the connotation ofarbitrary action which lingered around the word equity -stemming from the abuses of the pre-Revolutionary parlements -it was still seen in France as a vital part of theadministration of justice.The process of judicial interpretation involved in asystem of written law, as opposed to case law, is different.In the Civil system, the judge extrapolates from the statutes,or articles of the code, to the facts. The common law judgefrequently abstracts the facts in order to follow precedent. 3635 Benoit Jeanneau, "The Reception of Equity in French Privateand Public Law", R.A. Newman and M. Guillois trans. in RalphA. Newman ed., Equity in the World's Legal Systems, AComparative Study (Brussells: Etablissements Emile Bruylant,1973): 223-243, 223.36 Jacques Dufaux, "Equity and French Private Law" in Ibid.,246-260, 247.166The Civil law process implies a recognition of the specificityof the case, and, hence, the possibiltiy that there is nocodal provision that applies to it. To achieve justice thecase must be decided according to equity, which can be seen asa mode of interpretation which serves as a bridge between thegeneral and the specific - it concretizes the generalprinciples upon which the entire code is founded. In thissense, equity is not an extra-legal factor but is a vital partof the judicial process. The irony of the interdependencebetween a written, codified system of law and equity is thatit requires that judges be endowed with rather extensivediscretionary powers, which the codes were originally intendedto limit. 37The problem with equity is that it allows judges tobypass or transcend formal legal norms, and to adjudicateaccording to their personal ethical or social norms. Thisallows a degree of subjectivity in a system that is gearedtoward the objective - impartial - administration of justice. 38On the other hand, it allows a degree of justice-as-fairnessthat frequently is not present in more positivistic systems oflaw.37 The more recent French civil codes have been careful tolimit the discretionary powers of private law judges, but havestill allowed them a great deal of latitude by refusing todefine broad and crucial terms such as "bonnes moeurs" and"ordre public".38 I think there is a potential inherent in equity powers forsocial engineering on a grand scale, particularly in courts ofthe last resort. The U.S. Supreme Court has occasionallyrealized this potential in rulings such as Brown v. The Boardof Education.167These geographies of equity help to explain some of thedistinctiveness of the judgments in Guillot and Gravier. Theywere not arbitration judgments, but depended on a similarconception of 'common sense' justice which is not typical incommon law decisions. These geographies also help to acccountfor a great deal of the criticism that was levelled atGovernor Claiborne in his capacity as appellate judge.The 'Laws of Justice'While the Court of Pleas had raised eyebrows in NewOrleans, particularly with the mushrooming of lawyers in thecity, the Governor's Court was sharply attacked in the localpress and pamphleteers in New Orleans. Several cases that camebefore the Court of Pleas, and subsequently before theGovernor in his capacity as judge of the court of finalresort, are mentioned scathingly in The Louisiana Gazette asexemplary of the seemingly arbitrary, and certainly confused,legal system of the time.Two of the cases mentioned by The Louisiana Gazette areMorgan v. Paullet and Fortier, and Bonnet v. Roque. In bothcases, credit had been advanced to the defendants by theplaintiffs. In both cases, the central question revolvedaround the payment of interest when war in Europe hadinterfered with the transaction. In the first case, Claibornehad ordered that the interest that had accrued during theperiod of the war was to be deducted from the plaintiff's168demand. In the second, he ordered the defendant to pay theentire amount of the interest claimed, including the periodduring which the defendant had been the captive of a Europeanpower. 39These judgments prompted the author of the article to askif Claiborne always judged by the laws of the United States,or by those of Spain, "or if not, by what law did he judge" -did he simply "trust to the guide of his own discretion"?"These questions bring two critical points to the fore - thesystem by which Claiborne judged, and the extent of hisdiscretionary powers.Claiborne himself answers, to some degree, the firstquestion. In a situation that would be repeated frequently,Claiborne found himself in a defensive posture due to thecriticisms of the New Orleans press and pamphleteers.Typically, he refused to respond to his local critics,preferring to justify his actions solely to Washington. In along letter to Madison, Claiborne justified his conduct in theGovernor's Court, claiming that "although I will readilyacknowledge my want of Information of Spanish Law, yet Iprofess to be acquainted with the Laws of Justice..."“Claiborne, unacquainted with Spanish law and the French39 The Louisiana Gazette, January 15, 1805. The other casementioned was Dutan v. Cenas. I have not looked at theoriginals of these cases. I am not, however, as interested inreporting the cases with complete accuracy as I am in thepublic perceptions of them.40 Ibid.41 Claiborne to Madison, October 16, 1804, Letter Books, 2:352.169language, yet unable to rigorously apply the common lawtraining he had acquired as an attorney in Tennessee, wasappealing to his only alternative, to the "Laws of Justice."In a word, Claiborne was in a legal bind.There seem to be two possible readings of the phrase'Laws of Justice'. One implies equity, but as we have seen,equity in the common law world had a set of rules andprecedents which were definitively separate from common lawprocess. At the same time, as a remedial process, equity wasthoroughly imbued with common law principles, in the sensethat in order to remedy a common law decision, it wasnecessary to understand that decision. It seems unlikely thatClaiborne's conception of equity was this formal. ButClaiborne's conception of the law, what it was and what it wassupposed to do, must have been shaped to a great extent by hisformal training in common law, and it is doubtful that he wascompletely free of these assumptions when he sat as judge. Asecond possibility was broached by the editor of the Gazettearticle: that Claiborne decided cases with no fixed legalsystem in mind, but solely according to his own "discretion".I have pointed out above the connections between natural lawand equity, connections that certainly persisted into thenineteenth century. It is not far-fetched to equate a phraselike 'Laws of Justice' to natural law, and then to itsconnotations in Anglo-American thought. Thus, Claiborne'sdelicate position was complicated by the perception that hislegal stance was arbitrary, that he decided as it suited him,170rather than by fixed legal principles. Adding to theappearance of discretion run amok was the way in which he hadacquired appellate jurisdiction in the first place - byproclamation. 42 And, as Baudin had found to his chagrin, therewas no recourse from the Governor's judgments: his decisionswere final. It is also worth reiterating the frequency withwhich "arbitrary" was linked to "despotic" in the rhetoric ofthis period of American history. I suspect that the author, byusing the first term, hoped to evoke the second. It wasgeneral knowledge that Claiborne was appointed by Jefferson,that he alone possessed executive and legislative powers, andthat he was the commander of the Territorial militia. Hisposition as the judge of the court of last resort completedhis image as a despot.ConclusionsThe battle over procedure - which the Americans 'won' -became particularly acrimonious because most Louisianians didnot understand what was expected of them, or what to expect,in the new Courts of law. While unfamiliarity certainly bredcontempt, it also bred distrust. Both Americans andLouisianians were skeptical of Claiborne's Court foressentially the same reasons: they doubted that justice couldbe rendered without adherence to some agreed upon logic, asembodied in either precedent or written law. In the absence of42 Claiborne to Baudin, May 12, 1804, Letter Books, 2: 144-145.171this logic, both were alarmed by Claiborne's potentiallyunlimited discretion, and by the political overtones of boththe Court of Common Pleas and the Governor's Court.Both Courts demonstrate the ways in which a legal systemcan become politicized. With a large contingent of merchantson the Bench, the Court tended to reflect the interests ofthat particular occupational group, interests which oftenconflicted with those of the Louisiana planters. Planters didnot trust the Court to be an impartial arbiter of both ruraland urban concerns, and planters and merchants parted companyon the issue of debt collection. On the other hand, much ofthe criticism of Claiborne was produced by an Anglo-Americannewspaper which professed different political views from thoseof the Governor. How much of the Gazette's criticism reflectedgenuine concern over the Governor's legal competency, and howmuch was political hay-making is uncertain.The records of the Territorial Court of Pleas alsosuggest that there was more at stake than a conflict ofinterests. Louisianians could not understand how justice couldbe achieved by a strict adherence to an unwritten law that didnot incorporate equity. The concept of appealing to a separatecourt of equity for remedy to a legal decision must haveseemed absurd to people with a conception of justice asfairness. The importance of equity to justice was expressed inthe Louisiana Civil Code of 1808, which declared that "Incivil matters, where there is no express law, the judge isbound to proceed and decide according to equity. To decide172equitably an appeal is made to natural law and reason, orreceived useages, where positive law is silent."43 Thedifferences between Civil and law conceptions of equitysuggest that two histories, and geographies, of equity cameface to face in Louisiana. I have briefly traced how thesegeographies may have arisen in the Civil and common lawsystems, and certainly the different expectations whichLouisianians and Anglo - Americans had of the dispensation ofjustice reflected these geographies of equity. I also thinkthese geographies of equity contribute to an understanding notonly of the specific judgments in Guillot and Gravier, butalso to the wider situation in Louisiana. Americans believedthe Civil law system to be arbitrary (and hence despotic),while Louisianians believed the same to be true of the commonlaw system, although for different reasons. The viva voceproceedings and decisions based on case law in common lawcourts made decisions seem whimsical, probably because thereseemed to be no source from which they could be traced: to'civilians' case law seemed to be an unwritten hidden law.Unfamiliarity, Claiborne's (seemingly) unrestricteddiscretionary powers, and different conceptions of equity allcontributed to render the administration of justice uncertainin the eyes of Louisianians. By this I mean that, for them,the legal system had ceased to function in a predictable way,and predictability is an essential quality for any legitimatelegal system. This is particularly clear in Baudin's case. The43 Louisiana Civil Code of 1808, Chapter IV, Article 21.173combination of unfamiliar procedure, and the threat to seizehis sugar resulted in Baudin's conviction that the procedurewas illegitimate - it had been informal, and it had unforeseenconsequences.The battle surrounding the legal system in Louisianawould continue unabated until 1808, when the Louisiana CivilCode was passed by the Territorial Legislature and receivedGovernor Claiborne's assent. In the next chapter I focus onone of the last, but not the least, of the legal battlegroundsin Louisiana: the St. Mary's Batture.Chapter 5The New Orleans Batture: Disputed Geographies ofJurisdictionOn May 23, 1807, the Superior Court of the OrleansTerritory found for the plaintiff in Jean Gravier v. theMayor, Aldermen, and Inhabitants of the City of New Orleans.'The case centered on the ownership of the Batture, an alluvionformed of sediment thrown up by the Mississippi River overdecades. It had been used by the public for wharfage and filldirt until 1804 when Jean Gravier claimed it as privateproperty and attempted to enclose it. In the courts, thebatture debate revolved around issues of fact, but for thebulk of the Louisiana populace the issues at stake were moregeneral, revolving around customary public rights of use. Tothe inhabitants of New Orleans and the rest of the Territory,this judgment was a powerful example of the ways in which theAmerican legal system could deprive them of property 'rights'.The Batture St. Mary became a vortex that first drew theNew Orleans Municipality and the Territorial government intoits grip, and eventually pulled in the federal government andreceived national attention. The case is of interest becauseall levels of government - municipal, territorial and federal- came to bear on it. At the local level, the Batture waspredominantly a social issue, while at the federal level, in1 I have never found a citation for Gravier v. The Mayor, etal.174175Livingston v. Jefferson, it became extremely politicized. 2 Atall levels of debate, the participants assumed that theseblossoming political and social questions could be handled bythe legal system, but at every level, its methods anddecisions were disputed.The Batture Controversy, as it became known, turned onseveral important issues. First, it was a complex debate whichencompassed private property rights and customary publicrights of use. This debate was related to the differentemphases which Civil law and common law placed on the legalprotection of public rights, and suggests that there weregeographies of public and private right. Second, the case wasdecided acording to Spanish law, not French or common law.This, in essence, established Spanish law as the law in forcein the Territory. And third, the case stood at the crux ofseveral issues for the federal government and the Territory.The federal government seemed to be caught in a web of waningand rising trends: that of federal control and development ofthe newly acquired public domain embodied by the territories,contrasted with a growing impetus toward privatization of thepublic domain as a more effective means of development.Federal involvement also served to politicize the judicialprocess to an unconscionable degree. At the local level,Louisianians were confronted with the removal of a valuablepublic resource to a strictly private domain. Even though thejudges based their decision on Civil Law, Louisianians2 Livingston v. Jefferson, 15 Fed. Cas. 8411 (1811)176perceived the outcome as the result of judicial error, blamingthe judgment in favor of Gravier on the American judges'unfamiliarity with the Civil law and with the customary rightsof the country. The case also precipitated unlikely alliances,forged as participants and observers alike aligned themselveswith the litigants.Jurisdictional questions arose at each level of the case.The jurisdictions involved in the Batture stretched beyond astrict legal formulation of jurisdiction - the power andauthority of a court to take cognizance of a case, or thespatial reach of the court. Legal jurisdiction is basically anagreed upon 'fiction', as for example, the distinction betweentrespass (a local action) and a suit for damages (a transitoryaction) demonstrates. But if we see legal jurisdiction as afiction, as a spatial representation or demarcation of theagreed upon boundaries of power and authority, should we alsosee the exercise of power, or the recognition of authority asuniform throughout that area? I am suggesting that there are,and were, other networks of power and authority - other'jurisdictions' - that overlap, and do not necessarilycoincide with, legal jurisdictions. These networks may berecognizable through a refusal to acknowledge legallyconstituted authority, or through an emphasis on orrecognition of other types of authority. One such source ofauthority was the importance of custom to Louisianians, and,to a lesser degree, its importance to the Civil legal system.Many of the legal decisions of the Territorial Superior Court177were not recognized as legitimate by Louisianians but customfrequently was. The legitimacy, and power, of custom inLouisiana was demonstrated in the Loppinot case discussed inChapter 3, where custom took precedence over both Civil andecclesiatical law. As E. P. Thompson has noted, "common rightis a subtle and sometimes complex vocabulary of usages, ofclaims to property, of hierarchy and of preferential access toresources" which are local in nature, they are "lex loci",local laws, and I think that custom necessarily implies ajurisdiction of its own. 3 The Batture was a locus of conflictbetween customary and legal jurisdictions.Yet another example of disputed jurisdictions was thedesire of Louisianians to shore up the jurisdictionalboundaries between the common and Civil law systems - in thewake of the Gravier decision they became aware of the porousnature of these boundaries.In this chapter I focus on the disputes surroundingjurisdiction, in both its legal and customary forms. Thesedisputes include the particulars of the Gravier case, thereactions it precipitated, both in New Orleans and inWashington, and the movement of the Batture as an issue fromthe territorial court to the federal district court system. Ialso discuss the differing emphasis placed on public andprivate rights in the Civil and common law systems. Thesedifferences, and the legal decisions of Gravier andLivingston, contributed to a perception on the part of3 Thompson, Customs in Common, 151.Louisianians that justice could not be obtained from commonlaw courts or judges, and generated an awareness anddetermination which contributed to the successful passage ofthe Civil Code of 1808.New Orleans SettingsThe Batture St. Mary was adjacent to and up stream fromNew Orleans proper, and was part of a grant made to theSociety of Jesus by the French Crown in 1726 (see figures 7and 8). When the Jesuits were suppressed in Louisiana in 1763their property was divided into six large lots and sold atpublic auction. Jean Pradel bought the lot closest to thecity, and at his death it went to his widow, Alexandrina de laChaise. She in turn transferred the property to Andr6 Renard,who bequeathed all of his property to his wife, Maria JosephaDeslonde, who inherited in 1785. Maria married BertrandGravier, and willed him the property in 1792. Bertrand decidedto subdivide the property and lay out a suburb (a faubourg),named after his wife. More than 150 lots were sold to numerousbuyers on various terms throughout the 1790's. Bertrand diedintestate in 1797, leaving four collateral heirs, three inFrance, and a brother, Jean, in New Orleans, who was able toacquire all of Bertrand's property.'4 The heirs in France did not attempt to establish theirrights to the property until 1819, in Gravier et al. v.Livingston et al., 6 Martin (0.S.), 297-377 (1819). Most of myinformation about the Batture cases comes from ASP, PublicLands, 2: 6 - 99. The best account I have found of the Batturecases is William B. Hatcher's Edward Livingston: Jeffersonian178-11•ITS FORTIFICATIONS AND ENVIRONS.r3^,„ • e.„^ s^e "' 15^t. •t-T-e 1 4^— ""--e(PLANOF THE CITY OFNEW ORLEANS111 F., A DJACENT 1 .1.A STATIONS,1.441^o.4...... .r(A. 111•.r• ^o^ R. CLarter,!k .a,.. 17s.S....es : CARL. TIIVIV_AU1/ r COI•V . SI. THANALATIONii179New Orleans and its VicinityJean Gravier's Property181In Louisiana, the Mississippi River deposited silt andother material along certain portions of its banks. Over time,enough alluvial material could accumulate between the leveeand the bed of the river to produce a parcel of land which wasabove low-water level for several months of the year - abatture. When a batture reached a sufficient size, owners ofriparian property traditionally enclosed it by moving thelevee closer to the river, therefore increasing the size andvalue of their property. While technically private property,battures were traditionally open to public use; hence anyonecould dock or store goods on battures, or transport goods overthem. Since the Batture St. Mary had not been enclosed, itssoil was used to elevate houses, streets and sidewalks, and tomaintain the levee.In late 1803 Jean Gravier, probably recognizing theincreasing commercial value of the Batture St. Mary, startedto enclose it.' Because the Batture had been traditionallyopen to public use, its enclosure prompted an outcry from theinhabitants of New Orleans, and the subject of the enclosurewas raised by the City Council in February of 1804. 6 OnOctober 22, 1805, Gravier petitioned the Superior Court fordamages to the property resulting from the recurrenttrespasses of the inhabitants of New Orleans. In the petition5 Unfortunately, I have found no details about Jean Gravier inmy research - he does not appear to have been one of the'notables' of New Orleans in this period.6 Dargo, Legal Codification, 42.182he also asked to be 'quieted' in his possession of theproperty, which would have established his title to theBatture, his right to enclose it, and ostensibly removed anygrounds for future litigation or controversy. Judge John B.Prevost, the only Superior Court judge present in theTerritory, postponed a hearing of the case until a fullcomplement of judges were present, and in the meantime grantedan injunction which limited public use of the Batture toemergency repairs of the levee.' During the period that theinjunction was in effect, Gravier conveyed approximately onethird of the Batture property to Pierre Delabigarre, and onethird secretly to Edward Livingston in December of 1806. 8Gravier v. the Mayor et al.After several postponements, Gravier v. the Mayor et al.came to trial in the Territorial Superior Court, presided overby the federally appointed Judges Joshua Lewis, GeorgeMatthews, and Lewis Sprigg. The Council for the City, JohnGurley, Louis Moreau-Lislet, and Pierre Derbigny, failed tomove for a jury trial and the case was tried by the judges enbanc. 9 Council for Gravier was led by Edward Livingston, who,7 George Dargo, Law in the New Republic: Private Law and thePublic Estate (New York: Alfred Knopf, 1983), 110. [HereafterNew Republic]8 Edward Dumbauld, Thomas Jefferson and the Law (Norman:University of Oklahoma Press, 1978), 58.9 By the laws of the Territory, either party in a civil caseinvolving such valuable property could have claimed the rightto a jury trial, and certainly a jury composed of NewOrleanians would have found for the defendants. Dargoattributes the failure of defendant's council to claim a jurytrial to "their lack of familiarity with this procedure".183as owner of a portion of the Batture, had an interest in theoutcome of the proceedings.'°The basic issue at stake was ownership of the Batture.The City attempted to establish its claim by alleging thatBertrand Gravier had abandoned the property, by the operationof Municipal law governing suburbs, and by right ofprescription to the soil. It was therefore necessary for theplaintiff to establish satisfactory proof of his title, whichhe was able to do by producing records of the chain ofconveyances by which he had ultimately obtained the property.The plaintiff's case was complicated by the nature of thesales made by Bertrand. Many of the lots he had sold werefront lots - the lots closest to the river. These separatedGravier's back lots from the batture, and raised a moregeneral question about the definition of riparian ownership.French, Spanish, Roman, and common law systems did not differsignificantly on the rights of riparian owners to the alluvialaccretions which developed adjacent to their property." ButDargo, New Republic, 110. He underestimates the savvy ofMoreau-Lislet, one of the most noted jurists in Louisianahistory, however. Livingston explained that Moreau-Lislet didnot request a jury because he "apprehended they would not bepermitted to have a jury composed of inhabitants of the city(that is to say, of the parties to this cause.)" OrleansGazette, November 16, 1807.10 Also representing Gravier were James Brown, Lewis Kerr, andA. L. Duncan.11 French law stated, "The same usefulness of navigation ofrivers demands the free use of their banks...but the right ofsoil remains always in the proprietor of the adjacent soil."Domat, Books 1 and 2, no.9. Spanish law: "...although thebanks of rivers belong, as to the dominion, to those to whoseinheritance they are joined, yet, notwithstanding this, everyman may use them..." 3 Siete Partidas 363, lib. 6, tit. 28.Roman law: "The use of the banks is public by the law of184the separation of Gravier's back lots from the river by thefront lots he had sold, and the City's contention that hisproperty was bounded not by the river but by the highway thatran along the base of the levee, raised a question as towhether Bertrand was a riparian owner. 12The case, therefore, turned on several points of fact: ifthe Batture existed at the time Bertrand Gravier acquiredpossession of the property; whether the property was boundedby the river or the highway; and if the Battture had beenincluded in the sales made by Bertrand. The Court concludedthat the "civil and Spanish laws...must form the rule ofdecision in the present case," and found the facts to be: 1)an alluvion had formed antecedent to Bertrand's acquisition ofthe property, and that it was sufficiently large to warrantannexation to his property; 2) Bertrand's property was,according to the "general usage of the country" bounded by theriver; 3) the instruments conveying title in Bertrand's salesdid not include the Batture, and therefore Jean Gravierremained the rightful owner.fl The City moved for a new trial,on the grounds that title was in the United States rather thanin the Corporation.nations...but the property belongs to those whose propertythey join." 1 Corpus Juris Civilis, 18. 2 Ins. tit. 1 and 11.All cited in ASP, Public Lands, 2: 31-32. English common law:"in lands newly created by the rising of an island in the seaor in a river, or by the alluvion or dereliction of thewaters; in these instances the law of England assigns them animmediate owner." No mention is made of a public right to usealluvial accretions. Blackstone, Commentaries, 2: 261-62.12 ASP, Public lands, 2: 23-32.13 Ibid., 33.Gravier's title, and by extension the titles ofDelabigarre and Livingston, were thus judicially recognized.They were not, however, to be left 'quiet' in theirpossession.Local ResistancesThe Court's decision in favor of Gravier's claim createdan uproar in Louisiana, initiating a series of pamphlets andnewspaper editorials in New Orleans. In typical New Orleansstyle, each newspaper aligned itself with either the plaintiffor the defense. The Court itself was a favorite target, butLivingston also drew a great deal of fire.Edward Livingston had come to New Orleans in 1804 to tryto amass a fortune, in part because he had incurred a largedebt to the federal government during his tenure as New YorkState Attorney General, where one of his underlings abscondedwith a large chunk of federal money. Livingston was well-versed in Civil law, and spoke French, both assets in NewOrleans. He was a very successful lawyer, and made somelucrative land deals in Louisiana. Despite his unpopularityduring the Batture controversy, he became a U.S. Senator inthe 1820's, and made numerous important contributions to theLouisiana legal system. That Livingston was a target ofabusive literature rather than Gravier is indicative of theways in which Louisianians perceived the decision and themotives behind it.185186Claiborne himself sums up the attitude that prevailed inNew Orleans regarding Livingston's involvement with theBatture litigation, observing to Thomas Jefferson that "Animportant cause has been determined by the Superior Court ofthis Territory; It was one, in which Edward Levingston [sic]was the real plaintiff." The general opinion of the Creolepopulace seems to have been that Livingston himself hadinitiated the suit against the City, and that Gravier had beenused merely as a blind for the real plaintiff. The LouisianaCourier, which strenuously defended the City's right to theBatture, noted this sentiment, adding,"It is certain that a general and well-founded beliefprevails in New Orleans that a conspiracy of lawyers isformed to rob the city of its property; and that thejudges are of a conspiracy, their judgment in the causeof the Batture gives strong reason to suspect...Suchdextrous lawyers can with ease, Twist law and judges asthey please." 15The popularity of the view that the Court was somehowinfluenced by the Territory's American lawyers (and all theplaintiff's council were American) elicited a response fromLivingston in mid - November. He complained that despite the"liberality bordering on imprudence" with which the Court hadconducted the trial, "men are found [who] complain of thewiles of chicane; they speak as if their learned counsel hadbeen over-reached, as if the bench had been deceived." Hepointed out that not only were the characters of the judges"infinitely removed from beyond the reach of those factious14 Claiborne to Jefferson, May 20, 1807, Territorial Papers,9: 73615 Louisiana Courier, November 4, 1807.187calumnies that have assailed them," but that personalattachments could not have swayed the bench in favor of theplaintiffs - during the course of the hearing, Gravier hadbeen cited for contempt of Court, Delabigarre "was known to bethe author of a libel on the administration of justice, forwhich the printer had been presented, and I...had spoken ofthe conduct of the majority of the bench in a manner certainlynot calculated to conciliate their favor."In the 'loftier' realm of pamphleteering, the accusationswere more subtle, but possibly more damaging. Pierre Derbignyfired the first shot in August of 1807, laying out a ratherundistinguished case for the City." Derbigny also noted thatthe court was"In a country whose language, manners, usages, andsometimes whose laws are little familiar to [the judges];...the acknowledged integrity and information of thosethree judges are not always a solid security for theirrefragability of their judgment."Derbigny questioned the ability of the American judges toarrive at proper decisions due to their common law training.This observation was a recurrent theme in both the press andin other pamphlets circulated in New Orleans. The OrleansGazette declared its belief that "A fair trial of the causecould not be expected from three judges speaking a different16 ASP, Public Lands, 2: 22.17 Pierre Derbigny, "Case laid before counsel for theiropinion on the claims to the Batture, situated in front of thesuburb St. Mary", August 21, 1807, reprinted in John E. Hall,ed., The American Law Journal and Miscellaneous Repertory(Baltimore, 1809), 2: 282-306, 286. [Hereafter ALJ]18 Derbigny, Ibid., 286.188language...and bred under different laws, usages andreligion." Louis Moreau-Lislet also attributed the decisionin the Gravier case to the common law heritage of the judges,arguing,"Whatever be the integrity of the judges who renderedthis judgment, still we must deplore the situation towhich they have reduced New Orleans, possibly through animperfect acquaintance with our usages and laws, whichmade it difficult for them to apprehend the arguments ofthe Counsel for the city."20The notion that the Court had erred in its decision waswidespread, as Claiborne noted during a trip to ConcordiaParish in October 1807. 21This widespread, and well publicized, belief that theSuperior Court had judged wrongly in the Batture case isindicative of the level of sensitivity of Louisianians to thepotential injustices which could be wrought, not only by thecommon law itself, but also by lawyers and judges who weretrained in it. There seems to have been a prevalent beliefthat common law training rendered its practitioners incapableof grasping the principles of the Civil law. This becomes mostevident in the plethora of organic metaphors used to describeaffiliation with a legal system. People were "bred" to theirlegal system, they "imbibed this general and familiarjurisprudence with [their] milk", it was an indispensable andirrevocable part of them. 22 I think this points to an19 Orleans Gazette, October 1, 1807.20 Cited in Dargo, Legal Codification, 161-162.21 Claiborne to Madison, October 5, 1807, Territorial Papers,9: 765.22 The Louisiana Gazette, June 5, 1806.189awareness that a jurisdiction - in this case traditionallyrespected public rights - had been overlooked by the commonlawyers and judges because they were ignorant of itsexistence, they were not saturated with the "tincture" of theCivil law. Thus the common lawyers brought with them,naturally, a tincture of the common law, a tincture whichwould, consciously or not, affect their decisions.Custom also played an important role in Louisiana Civillaw, to the extent that "where a person acts in accordancewith custom under the assumption it represents the law, hisaction will be accepted as legal in many civil lawjurisdictions, so long as there is no applicable statute orregulation to the contrary."' France, in particular,cherished its customs: not only was there a long-livedmovement to codify them in the fifteenth and sixteenthcenturies, but there was also an attempt to incorporate manyof them into the Napoleonic Code. 24In the minds of the general public, custom carried a fargreater weight than did the legal arguments that had been usedin the trial. As Livingston and the transcript of the trialitself have shown, the judges decided on the basis of Civillaw evidence - according to the words of Civil law. ToLouisianians, untrained in strict legal formulae, it was thejudges' unfamiliarity with Civil Law, and with customary23 Merryman, 23.24 Ibid., 12.190rights of usage, that had led to a decision which went againstthe grain of the spirit of the Civil law.The Court's infringement of the boundaries of the "customjurisdiction" provoked more than written responses -the battle of words was paralleled by active resistance on thepart of New Orleanians.In August 1807, Livingston hired several Negro workmen todig a canal in his portion of the Batture. On their first dayof work, the workmen were driven from the batture by a crowdthat had gathered in the Faubourg Ste. Marie. The followingday, Livingston went to the Batture in person to assure thathis employees worked unmolested, but a crowd gathered tooppose him. Each day that Livingston attempted to exercise hisright of ownership, a crowd prevented him from doing so.Governor Claiborne, who had been out of town, returned tothe City at about this time, and both Livingston and the CityCouncil appealed to him to resolve the dispute, the latterurging him to initiate the prosecution of a claim to thebatture in the name of the United States government. Claibornedoes not appear to have taken any immediate action on eitherpartys' behalf, explaining to Madison that"The opposition on the part of the people to a decisionof the court is in itself so improper, and furnishes aprecedent so dangerous to good order that it cannot becountenanced. But the opposition on the present occasionis so general, that I feel myself compelled to resort tomeasures the most conciliatory, as the only means ofavoiding still greater tumult, and perhaps muchbloodshed."'25 Claiborne to Jefferson, September 3, 1807, ASP, PublicLands, 2: 80.191In the meantime, Livingston threatened to institute civilaction against all trespassers, and against anyone who soughtto oppose him. On September 14, 1807 he again started work onthe batture, having enlisted constables to protect the workersand to make a list of persons who attempted to interfere withthem. Again, a large crowd gathered, drove off the workers andthe constables, and confiscated and destroyed the constables'list. The following day, Livingston notified the Governor thathe would commence work at the batture at noon, noting thatbloodshed was likely. 26 At mid-day, a dozen white men beganwork on the Batture. Four hours later a drum sounded, andseveral hundred citizens gathered at the construction site.Governor Claiborne arrived, and attempted to pacify the crowd.He urged them to keep the peace, assuring them that furtherinquiries into Livingston's title to the Batture were inorder, and that he had already sent the pertinent informationto the President. The crowd nominated Jean Baptiste Macarty tocollect information on the Batture, and to present theinhabitants' grievances to the President. Livingston wasforbidden to continue his construction on the Batture by theCity Council, and the public was quieted by a City Councilordinance which authorized that earth from the Batture wouldbe delivered gratis to those who needed it. 27The continued refusal of the inhabitants to abide by theTerritorial court's decision which deprived them of their26 Ibid., 80.27 Louisiana Gazette, February 19, 1808, and City CouncilOrdinance of October 15, 1807, reprinted in ALJ 4: 557.192customary right of commonage on the Batture forced theGovernor's hand, and involved Jefferson in litigation whichwas potentially damaging both personally and politically. Theformer President's situation did not improve with the passageof time, and the Batture received a great deal of publicattention in the Eastern United States as well as in theOrleans Territory.'Sovereign' SpacesJefferson acted precipitously regarding the Batture. TheNew Orleans City Council formally requested Claiborne toappeal to Jefferson to intercede in the Batture case onDecember 12, 1807, suggesting that the United States were thelegal claimants of the property. 28 Jefferson had not onlyconferred with his cabinet and decided on his course of actionin November, but had also taken measures to implement hisdecisions. On November 30, 1807, Madison instructed the U. S.Marshal in New Orleans, Lebreton D'Orgenois, to evictLivingston from the Batture, and D'Orgenois did so on January25, 1808. 29 Jefferson based his original decision to evictLivingston largely on the strength of a brief published byPierre Derbigny.28 Hatcher, 149.29 The Federal government had been empowered to evictsquatters from the public domain by a Congressional Act ofMarch 3, 1807, and it was under the auspices of thisempowerment that Madison and Jefferson acted. The date ofMadison's letter is mentioned in Livingston v. D'Orgenoy[sic], 7 Cranch (U.S.) 577 (1813), 578. The discrepanciesbetween the dates of the City Council's appeal and Jefferson'saction is pointed out in Dargo, Legal Codification, 147-148.193Derbigny believed that title had passed from the FrenchCrown, to the Spanish, and hence to the United States by theright of sovereignty, and that the matter must be decidedaccording to French law, which was in effect at the time ofthe sale of the Jesuits' property. He claimed that the Batturewas royal property by virtue of the Royal Edicts of 1683,1693, and 1710, which declared that alluvions on navigablerivers belonged to the King, and that royal decrees were themost "certain part of French jurisprudence" because they were"emanations of the sovereign." He traced the Spanish right tothe Batture to "the firm resolution which the Spanishgovernment always evinced, of keeping the Batture...forpublick uses, by permitting no person to settle on it, andrefusing any grant inconsistent with that resolution."Therefore, the sovereign right to the Batture was clear, nopart of the property could have been made over to JeanGravier, and the United States consequently had a "wellfounded and clear title to the property, as being part of thepublick demesne."'In 1807 Jefferson believed that the United States hadvalid title to the Batture property according to Derbigny'sarguments. Throughout his involvement in the matter, Jeffersonwould cling tenaciously to the arguments set forth in PierreDerbigny's brief of 1807, despite the devastating rebuttals byLivingston and Pierre DuPonceau. Indeed DuPonceau's rebuttalof Derbigny's brief was so thorough and incontrovertible that30 Derbigny in ALJ, 2: 296, 294.194no subsequent legal argument on the City's behalf everattempted to duplicate Derbigny's position. DuPonceau pointedout that there were four edicts published by Louis XIV whichdealt with riverine property and that only one mentionedalluvions. Since the edicts had as their sole object adding tothe King's treasury, a struggle ensued "between the sovereign,or rather the fiscus or treasury, and the people." The kingwas subsequently denied a right to alluvions by the secondtitle of Book 2 of the Napoleonic Code. DuPonceau continued topoint out that the sovereign's pretended right to alluvionswas based on the "principal of feudality" and that "the feudalsystem has vanished; it can no longer present an obstacle tothe rights of riparious owners." He also showed that 1) theRoyal Edicts did not apply uniformly to the colonies, andparticularly not to Louisiana, where land was not held byfeudal tenure but by allodial tenure, and thus that feudalrights were excluded from Louisiana; 2) that there was never aformal judicial act annexing the alluvion to the demesne ofthe Crown; 3) that French law could not be said to operate onan alluvion which may not have formed by 1769 when the Spanishtook possession, and that therefore the laws of Spain mustgovern, wherein there were no rights to alluvions vested inthe sovereign; and 4) that the United States' claim based on a"branch of the royal prerogative" was not founded on law or onfact, and therefore could not be supported. DuPonceau'sargument contributed to a subsequent shift in the195Municipality's legal position regarding the Batture, a shiftwhich was ignored by Jefferson."There are numerous explanations given for Jefferson'shaste in this matter. Dargo suggests that Jefferson believedhe was correcting a "self-evident miscarriage of justice," andthat this opinion was shaped in response to the only materialhe had available on the topic: Derbigny's brief. But thisassessment of Jefferson's motives is dubious - Jefferson was alawyer by profession; he must have been aware that every casehas (at least) two sides, and that he was reading the briefprepared by the losing party. Dargo has also suggested thatthe federal government acted to take advantage of a politicalopportunity, but the greatest political advantage theadministration could hope to gain by its eviction ofLivingston was a greater popularity in New Orleans itself. 32 Itis unclear whether a desire for poplularity could have beensufficient to motivate Jefferson to involve the administrationin such a local cause.Given the dearth and poor quality of informationJefferson had received about the circumstances surrounding theBatture case, William Hatcher has concluded that he wasmotivated at least in part by personal reasons. He cites fourpossible sources of Jefferson's distaste for Livingston, both31 Duponceau was a noted Philadelphia lawyer. He had been oneof Jefferson's original choices for Orleans Territorial judge,but declined the post. His brief, "Opinion on the Case of theAlluvion Land or Batture, near New Orleans" is reprinted inALJ, 2: 392-433.32 Ibid., 148-150.196personal and political. First, Livingston had not activelysupported Jefferson in his quest for the presidency in 1801(while Claiborne had); second, Livingston was haunted byfinancial difficulties incurred during his tenure as New YorkAttorney General; third, Livingston was closely associatedwith the anti - Claiborne party in Louisiana; and last,Livingston's alleged association with Burr and hisinterference with Wilkinson's attempt to establish militaryrule in New Orleans during the Burr Conspiracy.' This is aharsh portrayal of one of the most esteemed presidents inUnited States history, but it seems best able to shed light onJefferson's subsequent actions.Initially, Jefferson may have been confident thatestablishing U.S. sovereignty and earning the goodwill of theNew Orleans populace were reason enough to become involved inthe Batture in 1807 and 1808. But as the case received growingpublic attention, he began to see the personal disadvantagesinherent in a highly publicized law suit. His increasinglyintense personal concern in the case was reflected in thedegree to which he was willing to use his political influenceto forward his cause.Livingston sued the former President in Federal DistrictCourt on January 25, 1808, alleging trespass and damages forwhich he held Jefferson personally liable. The case was to beheard by the District Court circuit to which Chief JusticeJohn Marshall was assigned, Jefferson's feared and disliked33 Hatcher, 150-151.197cousin. Jefferson believed he would not receive a fair trialin the District Court, and as he explained to Senator WilliamGiles,"Were this case before an impartial court it would nevergive me a moment's concern. The deep-seated enmity of onejudge [Marshall] and utter nullity of the other [Griffin]with the precedent of Burr's case, lessens the confidencewhich the justice of my case would otherwise give me.Should the Federalists from Livingston's exampleundertake to harrass and run me down, with prosecutionsbefore Federal judges, I see neither rest nor safetybefore me."'Jefferson also used this reasoning to explain his request toSenator Giles and Representative Eppes (who received anidentical letter) to prevent Congress from acting onLivingston's numerous petitions to that body. Jefferson wasable to take advantage of the death of Cyrus Griffin, thesecond judge on the District court, manipulating thecomposition of the District Court by requesting PresidentMadison to appoint the Governor of Virginia, John Tyler to thepost. Through his political influence, Jefferson had put ajudge on the Bench, and eliminated any potential problemswhich Congress may have presented.Livingston v. Jefferson was heard by the Federal DistrictCourt December 5, 1811. Despite Jefferson's "regret" that thecase was never publicly heard in open court, he concentratedon obtaining a dismissal on technical grounds. 35 A plea for34 November 12, 1810, cited in Dargo, Legal Codification, 202.35 Jefferson's "regret" is expressed in his "The Proceedingsof the Government of the United States, in maintaining thepublic right to the beach of the Mississippi; adjacent to NewOrleans, against the intrusion of Edward Livingston. Preparedfor the use of Counsel" (New York, 1812). His determination toavoid judicial scrutiny of the case based on its merits is198abatement was entered which challenged the jurisdiction of aVirginia court to hear an action for trespass that had occuredon land in Louisiana. The case was heard by Tyler, appointedthrough Jefferson's auspices, and Marshall. Both judges agreedthat the Court did not have jurisdiction over an action intrespass. Tyler promptly pointed out that the common law had"uninterruptedly for centuries past" acknowledged thattrespass quare clausum fregit was a local, not a transitoryaction, and that the "cause must therefore go out of Court."Marshall, on the other hand, hemmed and hawed. Relying less ona time-out-of-mind argument, Marshall pointed to unsuccessfulattempts in post-Revolutionary American courts to overthrowthe distinction between proceedings in rem, where the thingmust lie within the court's jurisdiction, and proceedings fordamages, where only the person must lie within the reach ofthe court. He noted that Livingston had a clear right withouta remedy, because"only the court of that district in which the defendantresides, or is found, can take jurisdiction of the cause.In a court so constituted, the argument drawn from thetotal failure of justice, should a trespasser be declaredto be only amenable to the court of that district inwhich the land lies, and on which he will never be found,appeared to me to be entitled to peculiar weight... [I]f,however, this technical distinction be firmlyestablished, if all other judges respect it, I cannotventure to disregard it."'evident in his correspondence with his lawyers, which isdocumented by Dargo, Legal Codifications, 194-196.36 The judges' decisions in Livingston v. Jefferson are citedin ALJ, 4: 78-87. The case has become a landmark in Americancivil procedure, setting a precedent for the local rather thantransitory nature of trespass.199Livingston was trapped in a web of jurisdiction. He was unableto get a hearing in federal court because of the local natureof his action for trespass, but he had been unable to have thecase tried in Louisiana "because a Louisiana court would havelacked personal jurisdiction over the ex - President."' Thiswas partially due to the territorial court system, which wasintended to be limited in scope.Between 1807 and 1812 the pamphlet war continued,involving more participants and a wider public arena.DuPonceau produced two briefs, the Philadelphia firm of Lewisand Tilghman, and two Philadelphia lawyers, Ingersoll andRawls, produced opinions which supported Livingston's claim,and Livingston himself published several pieces for publicconsumption.These publications were perused on the Eastern seaboardand in New Orleans, where they were often "exhibited on theExchange and read for the instruction of the bye standers" andwhere they frequently evoked written responses. 38 The mostpersistent critics of the Batture affair were J.B.S. Thierryand Julien Poydras, men who took different positions withinthe camp supporting the public right to the Batture. There isa common theme which wends its way through both of theirarguments, a theme which revolves around the importance ofpublic rights in Civil law.37 Dargo, New Republic, 112 n. 3.38 Claiborne to Jefferson, September 17, 1808, Letter Books,4: 218.200Geographies of Public and Private RightThierry, editor of the Louisiana Courier, was aconsistent supporter of the public's right to the Batture."His writing on the subject reveals his awareness of both thepolitical and the legal ramifications of the case. In Decemberof 1808 Thierry wrote that"Always faithful to his system of destruction, Mr.Livingston does not fear to call on his head all thesuspicion of his complicity with Burr, by explaininghimself thus: 'Where the destruction of personal libertyis permitted with impunity, the invasion of privateproperty must be a venial crime...' It is very simplethat he should speak of the destruction of individualliberty, when there was no alternative left between themomentary destruction of the liberty of some incendiariesand the destruction of public liberty, as is naturalenough for him to cry out that private liberty isviolated when there is in fact nothing more but thatobstacle in his usurping the public property.""Despite the convoluted structure of the paragraph, Thierry wasclearly making a connection between the Batture and Burrism.But more importantly, he evoked a Civil law tradition whichtended to subordinate private rights to public interests.Civil law is divisible into two legal categories, publiclaw and private law, which have no parallels in common law.The distinction can be traced back fourteen centuries to theGlossators and Commentators, and perhaps back to the JustinianCode. Handed down through the centuries as part of the juscommune - law common to Europe - public law was concerned withprotecting the rights of public usage of riverbanks, highways,39 A stance which was rewarded by his appointment as PublicPrinter for the Territory in mid-1808.40 Louisiana Courier, December 12, 1808.201the ocean, harbors, and the like. In France, the distinctionbecame increasingly marked during the seventeenth andeighteenth centuries, partially due to the Enlightenmentconcern with the individual, and the private law emphasis onprivate property rights and freedom of contract. Public lawseems to have been a logical corollary to the private law,ensuring that state action would defend public interest fromprivate depredations. This trend was completed and formalizedduring the Revolutionary period, where private law andadministrative law became separate jurisdictions.“I will follow two of the trails suggested by thisdiscussion. The first of these reflects the importance oflegal categories to a Civil law mind. To 'civilians' the needfor administrative law reflects the need for the state toprotect public rights against the incursions of privateinterests. Underlying this logic is an assumption that publicrights and private rights were not of the same degree ofimportance. As John Merryman has noted, "In private legalrelations the parties were equal and the state the referee. Inpublic legal relations the state was a party, and as arepresentative of the public interest (and successor to theprince), it was a party superior to the private individual." 42Special courts were established to handle cases involvingpublic interest, known today as administrative courts. Hence,legal rules which were indispensable to the resolution of41 Merryman, 92.42 Ibid., 93.202conflicts between individuals were often seen as inappropriatewhen applied to larger, public, concerns. 43 This may partiallyexplain some of the outrage expressed by the citizens of NewOrleans - that an issue so important to the public interestwas adjudicated by an ordinary court, and treated as a matterof private law.The second trail points to the lack of a mechanism incommon law to protect public rights, or more specifically, thecommon law obsession with private property. Two examples willsuffice. Locke clearly expressed the importance of privateproperty when he argued that it was a fundamental reason forthe rise of civil society, and that one of the primaryfunctions of government was the protection of privateproperty. This concern is reflected in the common law, where,as Blackstone has declared, "so great...is the regard of thelaw for private property that it will not authorize the leastviolation of it; no not even for the general good of thecommunity."" This difference in attitude toward public rights43 This entire discussion demonstrates Ren6 David's claim thatthe French do not see law as a self - contained domain, but oneof interest to everyone. David notes that the French see thelaw as a method of social organization (which means that thelaw is also political). Therefore, it is the "social sciencepar excellence" which regulates conflicts in society and"provides for the ordering of relationships within society."David, viii-ix.44 Blackstone continues, "If a new road, for instance, were tobe made through the grounds of a private person, it mightperhaps be extensively beneficial to the public; but the lawpermits no man, or set of men, to do this without the consentof the owner of the land. In vain it may be urged, that thegood of the individual ought to yield to that of thecommunity; for it would be dangerous to allow any private man,or even a public tribunal, to be the judge of this commongood, and to decide whether it be expedient or no. Besides,203can also be seen in various commentaries on alluvions. Frenchand Spanish law differed slightly on the question ofalluvions, but both agreed that the public retained rights ofuse, whether the property was privately owned or held in trustby the sovereign. On the other hand, Blackstone clearlyestablished that alluvions were privately owned, but isunconcerned with public rights regarding them.What Louisianians seem to have been aware of was the biasthat a common law training - which placed so much emphasis onthe sanctity of private property and had so little regard forpublic interest - was operating on a case that clearlyinvolved public interests. This common law bias was made morenoticeable by its presence in a society that had a longtradition of protecting public rights.Julien Poydras, the Territorial delegate to Congress in1810, took an active interest in this facet of the Batturecase. His writing, and his speeches to Congress, reflect manyof the issues I have discussed. He reiterated the point thatthe Gravier decision could never have been reached by judgesfamiliar with the customs and laws of the Territory. But healso objected vehemently to any resolution of the Batture caseby Congress or the federal courts, on the basis that onlylocal knowledge and local judicial proceedings could reach ajust decision in the Batture case. In a mysterious paragraphto a speech delivered to Congress, Poydras declaimed:the public good is in nothing more essentially interested,than in the protection of every individual's privaterights..." Blackstone, Commentaries, 2: 139."A spurious monster, the mongrel offspring of injusticeand chicane, has been introduced into my country by ourusurpers, who endeavor to pawn it on us as the lovelychild of truth and justice; but we have with horrorrejected this hideous imp, this illegitimate monster. Itsfoster parents are now attempting to have himregenerated, and legitimated, and for this purpose theypursue means which are new, circuitous and dark; but Iardently hope their schemes may once more proveabortive."'It seems that the illegitimate monster to which Poydras refersis the common law, its foster parents Livingston and theAmerican bar, who have attempted to regenerate "him" throughthe Batture litigation, and subsequent federal involvement.While the rhetoric is extreme, Poydras seems to havesummarized the general opinion of the Creole population of theTerritory regarding the infringement of common law on Civillaw matters.ConclusionsThe entire series of cases involving the Batture presentnumerous contradictions and inconsistencies. If, as Dargo hasclaimed, the American Revolution saw the beginning of a trendtoward a federal committment to economic growth anddevelopment that was reflected in a legal shift toprivatization of public eminent domain uses, the Batturebecomes a very sticky issue. The conflict is thus pitched in45 "Speech of Julien Poydras, Esq., the delegate from theterritory of Orleans, in support of the right of the public tothe batture in front of the suburb St. Mary, Wednesday, March14, 1810", in Annals of Congress, 11th Cong. 1st and 2ndSess., 1551. I can only speculate that Poydras' hideous impwas the common law - certainly it was not something he couldsay openly to a committee of American Congressman.204205terms of a joust between federal and local economicimperatives. On the one hand, the Territorial court's decisionin favor of Livingston is consistent with this premise. On theother hand, Jefferson's stand in support of the public's rightto the Batture, which was to be assured by establishingfederal title to the land, is inconsistent with a federalcommittment to privatization." Certainly, economic pragmatismplayed a role in much of the conflict that took place inLouisiana throughout the territorial period, but I am notconvinced that it offers a sufficient explanation for theseevents.Another interpretation of the litigation involvingriparian rights in Louisiana is proffered by Molly Selvin. Shebelieves that the litigation surrounding the disposition ofpublic and private rights is explicable through the "crucialdistinction between the French and Spanish law regardingalluvion." 47 The crucial distinction to which she refers isbased on the premise that the French Crown owned alluvions,rather than private individuals. This may have been the casein France, but it is uncertain at best that this law wasapplicable in Louisiana (see DuPonceau's argument), or that itexplains the extensive litigation in Louisiana after itsacquisition by the United States.46 Dargo, New Republic, 32.47 Molly Selvin, 'This Tender and Delicate Business' ThePublic Trust Doctrine in American Law and Economic Policy,1789-1920. (PhD Dissertation, University of California at SanDiego, 1978), 81-82.206Neither of these explanations comes to grips with theentire problem. Jefferson's involvement in the controversy mayhave been prompted by his recognition of an opportunity toclaim an important and valuable piece of property for theUnited States. On the other hand, he may have been largelymotivated by his antipathy toward Livingston. It is alsopossible that he was simply trying to correct what heperceived to be an injustice to the inhabitants of NewOrleans. And of course, it could be all of these things andmore. Thus, explaining federal involvement, or the case itselfin terms of national policies or broad legal trends isdifficult, and suggests that the batture is most meaningful inits specific geographic and historic setting.I think that much of the litigation in Louisianasurrounding public and private rights can be seen in terms ofdiffering conceptions of these rights in Civil law and commonlaw. These conceptions, which had developed throughout thedifferent histories of the two legal systems, collided in thespace of territorial Louisiana. The legal fictions ofjurisdiction were at play through an oddity of territorialgovernment. Territorial courts were generally courts of thefirst and last instance - there was no appeal from them, andno alternative to them. By virtue of these jurisdictionalarrangements, the territorial court system seems to havereinforced the potential for a territory to define itself asunique, as a self - contained unit. Despite the federalgovernment's confidence that it could control the legal life207of the territories through such mechanisms as federallyappointed judges, the judicial arrangements in Louisiana mayhave contributed to the maintenance of alternative sources ofauthority, such as custom, or public rights, which did notderive their potence from governmental or strictly legalsanction.At the most local level dispute centered on the seepageof common law attitudes toward public and private rights intoa system that was ostensibly a Civil law jurisdiction. Thisparticular dispute was aired most frequently as a belief thatcommon law judges, even though adjudicating according to Civillaw substance, were unable to comprehend customary rights andusages unique to Louisiana. If common law training was seen assuch a taint, the continuation of the case in the federalcourts, where common law judges, lawyers, and the common lawitself reigned supreme, was considered unjust and meddlesomeby Louisianians. Public versus private right to a piece ofproperty in New Orleans came to represent in miniature thetraditions of two legal systems: the common law emphasis onprotecting private, individual rights and liberties againstthe encroachment of public power, and the Civil law, whichtraditionally favored public rights.I think that today custom is either seen fondly through amist of nostalgia, or contemptuously as the inexplicablerituals of backward peoples. In this chapter I have tried tosuggest that custom was far more powerful than either of theseviews would suggest. Custom, in the case of the Batture, was a208way of using space. But more than this, custom was a means bywhich the ability to use space was transformed into a right ofuse and access. The public right to the Batture did not,apparently, depend on legal sanction for its validity - it wasa right that seems to have accrued to, or developed from, aset of spatial practices.The presence and strength of custom jurisdictions mayhave been reinforced by the legal jurisdictions in place inLouisiana. The strength of their presence flies in the face ofthe federal intention to bind the territories more tightly tothe rest of the Union, and points up the unforseenconsequences of the centrifugal and centripetal legal forcesat work on the American "frontier." But in Louisiana, theshadow jurisdictions of the early territorial period becameformally legitimate legal jurisdictions during in 1808. Thismay in part be attributable to the Batture and the events itprecipitated.209ConclusionThe threads which bind the chapters of this thesistogether are delicate and tenuous. The concrete themes I havechosen to look at are land, law and slavery in the context ofAmerican territorial expansion to the Old Northwest andLouisiana. I have tried to use these fairly concrete issues tohighligt three theoretical themes. The first of these themesis law-in-spacing, a process by which the extension ofAmerican common law to territorial populations with Civil lawtraditions brings the common law into sharp relief against thebackdrop of already-present legal, social and spatialpractices. I have tried to show that the presence of the Civillegal system in Louisiana and the Old Northwest was not theonly factor involved in bringing the common law to light,there were also customs and customary uses which collided notonly with the common law, but also with the Civil law. I havedemonstrated that these customs were local in nature, and thatthey involved not only practices, but concepts as well. Hence,while the Batture may have revolved around threatened publiccustomary use rights there were also legal conceptions whichcollided, conceptions which differed about the role of law inthe protection of public and private rights. Chapter Four alsocharted a collision of legal conceptions through a geographyof equity. While these conceptions of law may not have takenthe concrete form often associated with custom, they werecertainly sets of entrenched assumption and norms which areimportant to an understanding of events in Louisiana.210I have also tried to point to the different, oftenlegally constructed, conceptions of property held by the U.S.government and the French populations of the Old Northwest,conceptions which suggested that different logics of space, orlogics of visualizing space were at work. The struggle overcommunal property suggests the connections between legalconcepts and social and spatial practice, and indeed, thatlegal definitions are one way of visualizing space.The chapter on slavery is important for numerous reasons.First, it shows the importance of legal definitions to bothslave owners and slaves, and the ways in which the latter,though technically excluded by the law, were instrumental inshaping it. Second, I have tried to show that the productionof space is an essential human activity, and that thisproduction is intimately connected to resistance. The case ofslavery suggests that the production of space can takemultiple forms, and that it may not necessarily be a materialproduction. 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