French-speaking population of Orleans improved considerably. In 1812, he defeated Jacques Villère in the state of Louisiana’s first gubernatorial election, an election he could not have won without support from some francophone elites who preferred the civil law.
In the end, local elites in New Orleans from both legal traditions were more concerned with maintaining local rule than with which tradition ultimately prevailed in the region. As one of the representatives of the new Americans in Washington, Pierre Derbigny led the charge for self-government in the Orleans Territory, but he was joined by Anglo-Americans as well, including Daniel Clark and Edward Livingston. Their collective call for the national government to stop interfering with their domestic institutions is a familiar theme throughout American history—and resembles the cries coming from the seceding states half a century later. Their similarities with the secessionists of the mid-nineteenth century do not end there. Most local elites in the Orleans Territory were willing and able to compromise on the type of legal system in the region, but none of them, whether ancienne habitants, West Indian refugees, or Anglo-American newcomers, could accept national government restrictions on slavery.41
The Legal Battles over Slavery
Whatever differences existed between civil law and common law with regard to the issue of slavery, they paled in comparison to their similarities. Both traditions developed in the early modern era to support bourgeois values by naturalizing the individual’s right to private property. Indeed, both common law and civil law supported property rights above all else.42 And in lower Louisiana, as in the Caribbean and the southern states of America, both traditions supported New World slavery. Livingston, Moreau-Lislet, and Derbigny, all slaveholders themselves, were key participants in establishing a legal system that legitimated the treatment of human beings of African descent as chattels.43
Slavery and a legal system that supported it were well entrenched in the lower Mississippi valley at the time of the Louisiana Purchase. France founded New Orleans as a planned slave society in 1718, by which time the colonial power already had a codified law of slavery: the 1685 Code Noir, which was enacted to govern African slavery in the French Caribbean. The Code Noir was supposedly modeled on Roman slave law, but its name, which translates as the “Black Code,” expressly acknowledged the racial element of New World slavery. Some aspects of the Code Noir recognized the humanity of slaves. It stated that slaves should be instructed in the Catholic faith, and it promoted slave families. It further allowed masters to free their slaves at their own discretion, and once freed, the former slaves had “les mêmes droits” as all free people.44 However, other aspects of the code were more severe. Slaves could not own property and, therefore, were legally incapable of purchasing their own freedom. They could not be a party to a lawsuit or testify against free people except in cases in which the defendant was accused of inciting rebellion. Louisiana enacted its own slave code in 1724. Although it adopted most of the 1685 law, the Louisiana Code Noir made it more difficult for masters to free their slaves. Under the 1724 code, manumission required the approval of the Superior Council, French Louisiana’s governing body, and masters had to show good cause for manumission, such as a special service to the colony.45
The Louisiana Code Noir, adapted from a set of laws designed for the prosperous West Indian sugar colonies, was ill suited for the conditions of Louisiana. Staple crop production floundered in the lower Mississippi valley for most of the eighteenth century. The quality of tobacco could not compete with that grown in Virginia, and while indigo was successfully grown in the region, this crop alone could not support a slave society. As a result, the Louisiana Code Noir was honored in the breach. Most notably, masters did not take seriously the restrictions placed on their ability to emancipate their slaves. At the end of French rule, there were close to 200 free people of African descent living in or around New Orleans.46
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