helpful archivists, librarians, and curators make the telling of the history of New Orleans possible. The people at the Historic New Orleans Collection, the New Orleans Notarial Archives, the Louisiana Supreme Court, and the various libraries of Tulane University and the University of Texas have all been very helpful in my research efforts. I owe the most gratitude to the people at the New Orleans Public Library, especially Irene Wainwright, Wayne Everard, and Greg Osborn. With few financial resources, the people of the NOPL have maintained one of the richest collections of archives on the history of New Orleans that any scholar could find. Their work and assistance have been invaluable to me.
Thanks to the seemingly endless inspiration the city provides and the work of these curators, there is plenty to share among the large and growing cadre of historians of New Orleans. These scholars include, but are not limited to, Hans Baade, Caryn Cosse Bell, Warren Billings, Patricia Brady, Carl Brasseaux, Emily Clark, Craig Colton, Glenn Conrad, Thomas Dargo, Mark Fernandez, Virginia Gould, Gwendolyn Midlo Hall, Kimberly Hanger, Thomas Ingersoll, Ari Kelman, Paul F. Lachance, Alecia Long, Reid Mitchell, Judith Schafer, Mark Souther, and Daniel Usner. These women and men, some of whom I know personally and others whom I admire through their work, have broadened and deepened my understanding of the city so as to make the writing of this book much easier.
Four scholars of New Orleans in particular have been especially helpful. Nathalie Dessens’s early work on the influence of the refugees of the Haitian Revolution on New Orleans shaped the topic of this book in the early stages of my research. Having only recently gotten to know Nathalie herself, I am happy to learn that she is just as good of a person as she is a scholar. I met Jennifer Spear in the archives when she was near completing her book and I was just beginning mine. She encouraged me to pursue publication and offered sound advice. A little later, Emily Landau, over the course of many conversations, helped me see race relations in New Orleans in a broader historical context. Finally, I owe a special debt of gratitude to Lawrence Powell, one of the distinguished scholars who reviewed my manuscript for the press. His comments and suggestions made this book much better than it otherwise would have been.
I have also received a great deal of assistance from other scholars who do not specialize in the history of the lower Mississippi valley but are just plain smart and thoughtful. From the University of Texas I want to especially thank Julie Hardwick, Neil Kamil, Bob Olwell, Willy Forbath, Judy Coffin, Jorge Canizares Esguerra, Kevin Roberts, Tim Buckner, Sara Fanning, Lissa Boletino, and Karl Brown. Thank you as well to all the faculty of Union College, especially those in the History Department, and more specifically to Melinda Lawson, Andy Foroughi, and Bob Wells for reading and commenting on various portions of my manuscript. Allison Games, Lauren Benton, and Laurent Dubois also read portions of the manuscript and/or discussed its basic arguments with me. Matt Childs and Carolyn Eastman not only read many different versions of the manuscript and helped me to build upon and structure my arguments but also have been great mentors.
Finally, my deepest gratitude goes to my adviser, Jim Sidbury. When he took me on as his student many years ago, I already had a good sense of how important he would be as an adviser. His knowledge of the field, his insightful comments in seminars, and his careful readings of his students’ work made his attributes as an academic adviser obvious. But as he continues to read my work, offer constructive criticism and encouragement, and serve as a source of inspiration, I have come to regard him as not only a great mentor but also a close friend. I look forward to many more years of good times and great conversations.
All the people I have mentioned here have helped me to make the publication of this book possible. Yet, in the end, the people of NYU Press made that possibility a reality. Debbie Gershenowitz first introduced me to the press several years ago, and I became impressed with its attentiveness and honesty. Clara Platter has fostered this good relationship, and Constance Grady helped out more and more as we got closer to publication.
Thank you all.
Introduction
Men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past.
—Karl Marx, “Eighteenth Brumaire of Louis Bonaparte” (May 1852)
After they were found guilty of larceny by a New Orleans jury in 1849, Henry Levy and Jacob Dreyfous appealed their conviction to the Louisiana Supreme Court, claiming that the trial court erred in allowing the testimony of a free man of color. There was no rule of evidence that explicitly stated free people of color were competent to testify against whites in criminal matters, and, the appellants argued, the presumption should be that they were not. In support of this argument, the lawyers for Levy and Dreyfous cited decisions in the supreme courts of South Carolina and Maryland. The Louisiana Supreme Court, in an opinion written by Justice George Rogers King, rejected the appellants’ argument, stating that the “legislation and jurisprudence” of Louisiana “differ materially from those of the slave States generally, in which the rule contended prevails. This difference of public policy has no doubt arisen from the different condition of that class of persons in this State.” This was especially true in the city where the members of the jury and the witness lived.1 The people of color in New Orleans, Justice King continued, “are respectable from their intelligence, industry and habits of good order. Many of them are enlightened by education, and the instances are by no means rare in which they are large property holders. So far from being in that degraded state which renders them unworthy of belief, they are such persons as courts and juries would not hesitate to believe under oath.”2 If the question in this case was whether Louisiana law recognized that a free man of color in New Orleans had the intellectual capacity to understand the significance of an oath and the integrity to abide by it, Justice King’s answer was yes.
Free people of color had been interacting with the American court system in New Orleans since its origins during the territorial period (1804–11). They were not only witnesses in criminal cases, as in State v. Levy, but also litigants in private lawsuits seeking to distinguish themselves from enslaved people of African descent and claim their rights as free citizens. Acting individually in the courtroom, these free people of color created a collective representation of themselves as “respectable” people due to their “intelligence, industry, and habits of good order” that came to be seen in racial terms. Near the end of the territorial period, the 1811 Superior Court case of Adele v. Beauregard judicially recognized a racial distinction between gens de couleur (who were presumed to be free) and Negroes (who were presumed to be slaves).3
Making Race in the Courtroom is about the process by which free people of color living in New Orleans during the Age of Revolution made history under circumstances they did not choose. It argues that in the process of negotiating a legal system that supported and legitimized racially based slavery, free people of African descent in New Orleans, through their participation in the courts, caused the legal reshuffling of racial categories. New Orleans’s legio-racial system was in flux during the transition from the colonial era, and a more thorough Anglo-Americanization of the system was deterred by the arrival of St. Domingan refugees (white, black, and of color), which helped to fix the fluidity in a direction that was more comparable with late eighteenth-century St. Domingue norms than with contemporary Anglo-American ones. The refugee gens de couleur and other members of New Orleans’s free colored community did not necessarily intend to create a third race. Rather, acting within the context of political, cultural, and legal uncertainty, they were seeking to protect and gain privileges denied to free blacks elsewhere in the United States. One of the unintended consequences of their behavior, however, was a recognition in the laws of a racial distinction between “Negroes” and “people of color.”
The courtroom was not the only venue in which free people of color sought to protect and expand their legal rights. Justice King acknowledged in his opinion that the “earliest legislation” of the Territory of Orleans protected the rights of
