The Origins and Authors of the Code Noir
Louisiana Law Review
Volume 56, Number 2 (Winter 1996)
pages 363-407
Vernon Valentine Palmer, Thomas Pickles Professor of Law
Tulane University, New Orleans
I. Introduction
The Code Noir marked France’s historic rendezvous with slavery in the Americas. It was one of the most important codes in the history of French codes. First promulgated by Louis XIV in 1685 for his possessions in the Antilles, then introduced in Louisiana in 1724, this code was, unlike the Custom of Paris, the only comprehensive legislation which applied to the whole population, both black and white. In these colonies where slaves vastly outnumbered Europeans and slave labor was the engine of the economy as well as its greatest capital investment, the Code was a law affecting social, religious and property relationships between all classes.
The Code was also an important sociological portrait, for no legislation better revealed the belief system of European society including its fears, values and moral blind spots. No legislation was more frequently amended and regularly adapted to adjust to France’s evolving experience with slavery. Furthermore, perhaps no aspect of the Code—whether one refers to its motives and aims, compares it to other slave systems, or questions its enforcement—is free of contemporary controversy.
However, no set of issues is more important than the Code’s antecedents and origins. Who were its authors and what sources did they use in drafting the Code? And what difference does it make? Some have claimed that the Code Noir derives from Roman law and that once again we have an example of legislation from the civil law which contrasts with slave legislation in the English colonies. But to what extent is this conclusion justified? Indeed, the claims about Roman sources usually include the argument that slave laws like those of France and Spain were susceptible of being codified because the Roman reservoir of rules was available, whereas English law developed ad hoc experientially, and could not be codified at the outset2 Some even argue that Rome’s legal influence improved the quality of life of slaves in the New World. France and Spain’s laws, they argue, were relatively more “humane” or less dehumanizing than slavery rules developed by English colonies, and Spanish slavery regulation was milder than that of France because of the greater degree to which Spain absorbed Roman law into its law of slavery…
…II. THE INSTRUCTIONS
The first document is the King’s Mémoire to his Intendant, dated April 30, 1681. This Mémoire is a statement of reasons or motifs why a slavery code is desired, and it contains a set of instructions for the preparation of an “ordonnance” in the Antilles. The King entrusted the task to Jean-Baptiste Patoulet and the Comte de Blénac, his two top officials in the Antilles…
…III. The Drafters’ Rough Notes
On December 3, 1681, de Blénac and Patoulet compiled what is essentially a set of notes comparing their views and seeking consensus on specific problems and topics relating to slavery. Two vertical columns divide each page. The right-hand column reads, “Advice of M. de Blénac on several issues in the Isles of America” and the left-hand column carries the heading “Response of Sieur Patoulet.” De Blénac took the initiative in the drafting, organizing his thoughts into nine articles. Article one deals with convening sessions of the Sovereign Councils, article two with matters of taxation, article three with the problem of the diminishing number of Europeans in the islands, article four with criminal and civil trials, procedures and punishments of slaves, article five with questions arising out of racial mixing (status of offspring, marriage, customs in Martinique and Guadeloupe, etc.), article six with the desirability of introducing feudal fiefs in the islands, article seven with establishing an inspectorate to monitor the treatment of slaves on each island, and article eight with police control (passes, runaways, etc.). Article nine contains a miscellany. De Blénac wrote these sections of the memorandum and then sent the papers on to Patoulet for his response or comments. Patoulet completed his “Response” three days later, and returned the entire document to de Blénac who then added a postscript stating that he would appear the following Monday at Patoulet’s office to work further on the drafting.
De Blénac’s procedure in this memorandum was to pose a general problem at the beginning of each paragraph within an article and then to list possible solutions by shorthand annotation. Patoulet’s responses either approved, disapproved, or supplemented these solutions. These agreements and disagreements formed the basis of their subsequent working session.
These notes allow glimpses into the formative stage of the redaction. They also illuminate aspects of the personalities of the authors and the sources at their disposition. The notes first reveal that the authors took quite seriously the obligation to collaborate with the three Sovereign Councils. De Blénac outlined a procedure in article one, whereby the Councils of all the islands were to meet every two months and to remain in continuous session where matters required it. The authors apparently interpreted their instructions as permitting some parts of the slave code to arise out of the deliberations of these assemblies. This was a sensible interpretation. Since the Intendant served as first president of these Councils with responsibility to take the votes, draw up and sign and promulgate the regulations, and since the Governor-General had full rights of audience and was expected to attend, these sessions would have been the most convenient means by which the authors might comply with their duty to seek consensus and collaboration. Yet this shows that they built the Code not merely out of previously established laws and customs, but from on-going legislative activity during the redaction period itself. Thus, to Patoulet and de Blénac “collaboration” did not exclude the passage of new legislation by the local representative institutions which they led. This was the antithesis of an “artificial” process of discovering rules by the light of Roman sources in faraway Paris.
Second, the notes give hints as to the personalities and motives of the codifiers. De Blénac appears the more humanitarian and racially tolerant of the two. He called for inspectors to be placed on each island to monitor the treatment of slaves, and he wanted to outlaw the use of cruel punishments like “la brimballe” and “le hamac.” Patoulet, however, did not find these practices “too rude” to be employed. Patoulet believed in strict separation of the races. He was scandalized by concubinage between Europeans and Africans, whereas de Blénac considered miscegenation a normal, even inevitable, phenomenon in the colonial context.
Though the drafters may have had somewhat differing outlooks, we should guard against the tendency to contuse their motives with our own views. Judging by these notes, some allegedly “protective” rules may have had a completely different motive than to protect slaves. For example, de Blénac and Patoulet reached the conclusion that the law should require owners to provide their slaves with minimum food and clothing allotments, and this rule passed into the Code Noir. They did not originally discuss this measure as a matter of decency or humanity toward slaves (as might be supposed), but as a means of halting the diminishing white population in the islands. The drafters’ notes argued that when slaves were not properly fed, they had a tendency to run away in search of food and steal from the petit blancs, causing these whites to sell their lands and leave the islands. Readers of the Code may search for higher motives behind the rations provision, but the Mémoire provides evidence that cold-eyed efficiency primed every other consideration.
Finally, the drafters’ notes contain important references to the existence of customs and usages about slavery which had already taken root in the Caribbean islands. These practices were a vital part of the dynamic by which indigenous slave law developed. De Blénac tells us, for example, that there was a usage on the isle of Martinique regarding the manumission of mulattoes: the men are freed automatically when they become twenty years old, the women when they reach fifteen years. The father of a mulatto child was obliged to pay a fine to the Church as a penalty, and if he claimed the child for himself from the owner of the mother he had to pay the owner a similar sum. On Guadeloupe and St. Christophe, however, de Blénac outlines the development of other laws and customs. De Blénac takes all of these rules and practices into account in stating his position to Patoulet. As mentioned earlier, the presence of these diverse legal elements and sources shows that the picture of French slave law drawn by Professor Watson is quite misleading. Professor Watson assumed that France would have turned inevitably to Roman sources because there was a legal vacuum existing with respect to local law and custom. This took no account, however, of the speed and diversity with which law and custom incubated on small isolated islands separated by great distances. None of this development could have been visible from Paris, nor would it have depended upon Rome…
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