Code Noir

Codes governing slavery had already been established in many European colonies in the Americas, such as the 1661 Barbados Slave Code. At this time in the Caribbean, Jews were mostly active in the Dutch colonies, so their presence was seen as an unwelcome Dutch influence in French colonial life.[5] Furthermore, the majority of the population in French colonies in the Americas were enslaved. Plantation owners largely governed their land and holdings in absentia, with subordinate workers dictating the day-to-day running of the plantations. Because of their enormous population, in addition to the harsh conditions facing slaves, small-scale slave revolts were common. Despite containing some well-intended provisions, the Code noir was never effectively or strictly enforced, in particular regarding protection for slaves and limitations on corporal punishment.[6]

In his 1987 analysis of the Code noir's significance, French philosopher Louis Sala-Molins claimed that its two primary objectives were to assert French sovereignty in its colonies and to secure the future of the cane sugar plantation economy.[7] Central to these goals was control of the slave trade. The code aimed to provide a legal framework for slavery, to establish protocols governing the conditions of inhabitants of the colonies, and to end the illegal slave trade. Religious morals also governed the crafting of the Code noir; it was in part a result of the influence of the influx of Catholic leaders arriving in the Antilles between 1673 and 1685.

The title Code noir first appeared in 1712 during the regency of Philippe II, Duke of Orléans, under minister John Law, and referred to a compilation of two separate ordinances of Louis XIV from March and August 1685.[8] One of the two, regulated black slaves in the French islands of the Americas, while the other established the Sovereign Council of Saint-Domingue. Subsequently, starting in 1723, two supplementary texts were added that instituted the code in the Mascarene Islands and Louisiana.[6]

Manuscript of the original 1685 ordinance

The earliest of these constituent ordinances was drafted by the Naval Minister (secrétaire d'État à la Marine) Marquis de Seignelay and promulgated in March of 1685 by King Louis XIV with the title "Ordonnance ou édit de mars 1685 sur les esclaves des îles de l'Amérique". The only known manuscript of this law to have been preserved is currently in the Archives nationales d'outre-mer (French National Overseas Archives). The Marquis de Seignelay wrote the draft using legal briefs written by the first intendant of the French islands of the Americas, Jean-Baptiste Patoulet, as well as those of his successor Michel Bégon. Legal historians have debated whether other sources, such as Roman slavery laws, were consulted in the drafting of this original text. Studies of correspondence from Patoulet suggest that the 1685 ordinance drew mostly on local regulations provided in the colonial intendant’s memoranda.[6][8]

The later two supplemental texts concerning the Mascarene Islands and Louisiana were drafted during Phillippe II’s regency and ratified by King Louis XV (a minor of thirteen) in December 1723 and March 1724 respectively.[9] It was also during the Régence, that the first royal authorizations to practice the slave trade were given to shipowners in French ports.[10]

From the 18th century onward, the term Code noir was used not only to describe edits and additions to the original code, but also came to refer broadly to compilations of laws and other legal documents applicable to the colonies. Over time, the foundational ordinances and their associated texts were amended to meet the evolving needs of each colony.[6]

In the Code noir, the slave is considered property immune from seizure (article 44), yet also criminally liable (article 32). Article 48 stipulates that, in the case of a seizure of person (physical seizure), this is an exception to article 44.[11][8] Should the human nature of the slave confer certain rights, the slave was nevertheless denied a true civil personality before the reforms adopted under the July Monarchy. According to French colonial legal historian Frédéric Charlin, an individual’s legal capacity was fully dissociable from her humanity under old French law.[12] Additionally, the legal status of slaves was further distinguished by the separation of field slaves (esclave de jardin), the main workforce, from domestic slaves "of culture" (esclave de culture).[13] Before the institution of the Code noir, slaves other than those "of culture" were considered fixtures (immeubles par destination). The new status was adopted with such great reluctance on the part of local jurisdictions that it was necessary for a ruling of the King's Council of 22 August 1687 to take a position on the capacity of slaves because of the rules of succession applicable to the new status.[12] Despite the 1804 creation of the Napoleonic Code and its partial promulgation in the Antilles, the re-institution of slavery in 1802 had led to the reinstatement of parts of Code noir which precluded Napoleonic rights.[12] In the 1830s, under the civil code of the July Monarchy, slaves were explicitly given a civil personality while also considered as being fixtures, that is, personal property legally attached to and/or part of real estate or businesses.[13]

The status of the slave in Code noir is legally different from that of a serf primarily in that serfs could not be bought. According to anthropological historian Claude Messailloux, it is the mode of reproduction that distinguishes slavery from serfdom, while a serf cannot be purchased, they are reproduced through demographic growth.[14] In Roman law (the Digest), while a slave can be sold, given away, and legally passed to another owner as part of an estate or a legacy, this cannot be done with a serf. Contrary to serfdom, slaves are considered in Roman law to be objects of personal property that can be owned, usufruct, or used as a part of a pledge. In general, a slave can be said to have a much more restrictive legal capacity than does a serf simply due to the fact that serfs were considered right-holding individuals whereas slaves, although recognized as human beings, were not. Swiss Roman law scholar Pahud Samuel explains this paradoxical status as "the slave being a person in the natural sense and a thing in the civil law sense".[15]

The Code noir provides that slaves may lodge complaints with local judges in the case of mistreatment or being under-provided with necessities (article 26), but also that their statements should be considered only as reliable as that of minors or domestic servants.[8]

The first article of the Code noir enjoins the expulsion of all Jews residing in the colonial territories due to their being "sworn enemies of the Christian faith" (ennemis déclarés du nom chrétien), within three months under penalty of the confiscation of person and property. The Antillean Jews targeted by the Code noir were mainly descendants of families of Portuguese and Spanish origin who had come from the Dutch colony of Pernambuco in Brazil.[16][5]

The writers of the code believed that blacks were human persons, endowed with a soul and receptive to salvation. The Code noir encouraged that slaves be baptized and educated in the Apostolic and Roman Catholic religion (article 2).[6][8]

Slaves had the right to marry (articles 10 and 11), provided the master allowed them to do so, and had to be buried in consecrated ground if they were baptized (article 14).

The code prohibited slaves from publicly practicing any religion other than the Catholic, Apostolic, and Roman Catholic religion (article 3), including the practice of the Protestant faith (article 5). The code extends the punishment of pagan slave conventicles to masters who allow such behavior.

The code prohibited masters to have or to allow adulterous relations with their slaves and decreed the substantial fines of two thousand pounds of sugar in addition to the confiscation of the children and of the mother. Rather, the code encourages free men to marry, in the proper manner observed by the Church, the slave in concubinage such that the slave and the children would be made free and legitimate (article 9).[8]

• Weddings between slaves strictly required the master's permission (art. 10) but also required the slave's own consent (art. 11)
• Children born to married slaves were also slaves, belonging to the female slave's master (art. 12)
• Children of a male slave and a free woman were free; children of a female slave and a free man were slaves (art. 13; compare Partus sequitur ventrem)

• Slaves must not carry weapons except under permission of their masters for hunting purposes (art. 15)
• Slaves belonging to different masters must not gather at any time under any circumstance (art. 16)
• Slaves should not sell sugar cane, even with permission of their masters (art. 18)
• Slaves should not sell any other commodity without permission of their masters (art. 19–21)
• Masters must give food (quantities specified) and clothes to their slaves, even to those who were sick or old (art. 22–27)
• (unclear) Slaves could testify but only for information (art. 30–32)
• A slave who struck his or her master, his wife, mistress or children would be executed (art. 33)
• A slave husband and wife and their prepubescent children under the same master were not to be sold separately (art. 47)

• Fugitive slaves absent for a month should have their ears cut off and be branded. For another month their hamstring would be cut and they would be branded again. A third time they would be executed (art. 38)
• Free blacks who harboured fugitive slaves would be beaten by the slave owner and fined 300 pounds of sugar per day of refuge given; other free people who harboured fugitive slaves would be fined 10 livres tournois per day (art. 39)
• If a master had falsely accused a slave of a crime and as a result, the slave had been put to death, the master would be fined (art. 40)
• Masters may chain and beat slaves but may not torture nor mutilate them (art. 42)
• Masters who killed their slaves would be punished (art. 43)
• Slaves were community property and could not be mortgaged, and must be equally split between the master's heirs, but could be used as payment in case of debt or bankruptcy, and otherwise sold (art. 44–46, 48–54)

• Slave masters 20 years of age (25 years without parental permission) may free their slaves (art. 55)
• Slaves who were declared to be sole legatees by their masters, or named as executors of their wills, or tutors of their children, should be held and considered as freed slaves (art. 56)
• Freed slaves were French subjects, even if born elsewhere (art. 57)
• Freed slaves had the same rights as French colonial subjects (art. 58, 59)
• Fees and fines paid with regard to the Code noir must go to the royal administration, but one third would be assigned to the local hospital (art. 60)