The Digest of 1808 was the first European-style code to be enacted in the Americas but it was also the first modern code anywhere in the world to incorporate slave law. The decision to combine the two subjects in a single code is curious and intriguing, and has not been explained. It is as if the Digest was to be the simultaneous expression of two contradictory impulses or perhaps two contrasting blueprints. It was, on the one hand, a code of enlightenment and natural reason, drafted shortly after the French and American revolutions, and embodying therefore all the acquis of those revolutions. On the other hand the Digest embodied slavery and was therefore a code of darkness, a code contra naturam, dedicated to the continuance of human bondage. The Digest of Orleans omitted sentimental, conscience-salving statements and made no apology for treating slavery. It has the tone of those who are comfortable in the right. Yet the task would seem problematic. Would not the juxtaposition of slavery in a liberal code produce a Janus-faced figure at war with itself? Was it possible to reconcile and unite the principles of liberal society with those of a slave-holding society? How would the slave be presented, as a person without rights or as human property without personality? How to reconcile the everyday contradiction that a slave could purchase his freedom, yet the law officially proclaimed that he or she was incapable of owning property, including that which he used in purchasing his freedom? Or how to reconcile that slaves were at times paid laborers (e.g., Sunday labor or hiring himself out in his free time) but remained enslaved the rest of the time? Could the code distinguish between the civil rights enjoyed by free whites and those rights held by free persons of color? Were those gradated distinctions even settled or understood in 1808 and what could be codified about them? One imagines that these must have been only some of the challenges facing Moreau Lislet, the principal draftsman.
Monday, November 23, 2009
Palmer on The Strange Science of Codifying Slavery
The Strange Science of Codifying Slavery - Moreau Lislet and the Louisiana Digest of 1808 has just been posted by Vernon V. Palmer, Tulane Law School. It appears in the Tulane European and Civil Law Forum (2009). Here's the abstract: