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FREE FOR A MOMENT IN FRANCE : HOW ENSLAVED WOMEN AND GIRLS CLAIMED LIBERTY IN THE COURTS OF NEW ORLEANS (1835-1857) by Alexandra T. Havrylyshyn A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Jurisprudence and Social Policy in the Graduate Division of the University of California, Berkeley Committee in Charge: Professor Christopher Tomlins, Chair Professor Rebecca McLennan Professor Laurent Mayali Professor Dylan Penningroth Fall 2018 © 2018 by Alexandra Havrylyshyn ALL RIGHTS RESERVED Abstract Free for a Moment in France: How Enslaved Women and Girls Claimed Liberty in the Courts of New Orleans (1835-1857) by Alexandra T. Havrylyshyn Doctor of Philosophy in Jurisprudence and Social Policy University of California, Berkeley Professor Christopher Tomlins, Chair An economic institution, slavery depended on a set of laws designed to protect owners of human property (Phillips 1918, Stampp 1956, Genovese 1976). One might expect that those at the bottom of the hierarchy—enslaved women and girls of African descent— would have no hope of lawfully contesting their status. Recent literature demonstrates that there were in fact many legal pathways to freedom (Schafer 1994, Brana-Shute and Sparks 2009, Gross and De la Fuente 2013). Much research has focused on Missouri, a borderland between free and slave states, whence Dred Scott’s claim emerged (Vandervelde 2015, Twitty 2016, Kennington 2017). This project focuses not on borderlands but on the Deep South. In the city with the largest slave market in the United States (Johnson 1999, Rothman 2005), it is surprising that opportunities to contest enslavement existed at all. This dissertation examines a subset of the cases that Judith Schafer (2003) identified in her survey study of New Orleans local court records. Between 1847 and 1850, a flurry of freedom suits descended upon the First District Court of New Orleans. Women and girls were the main legal actors. As domestic servants, they had been taken to France—a country whose legal institutions did not uphold slavery. Upon their return to New Orleans, these women and girls submitted petitions for freedom on this basis. Until 1852, white male judges affirmed their claims as valid under both local and international law. Inspired by socio-legal history and critical legal theory, several questions emerge. How did claimants develop a legal consciousness? How did they access justice? How did race and gender matter? A detailed focus on a small set of cases allows for an in-depth exploration of these questions. A micro-history set in motion, this project also follows the historical actors to relevant places (Scott and Hébrard 2012). Beginning in New Orleans, it then traces the claimants in French archives. It follows Judge John McHenry (who decided most of these cases at the first-instance) to California, where he moved on the eve of the Civil War. 1 This project often ventures outside sources of traditional legal history (such as judicial opinions) in order to better understand law (Gordon 1984). In addition to trial records, New Orleans sources include sacramental records, wills, and the records of the city’s first African American Catholic congregation. French sources include antislavery literature, Abolitionist periodicals, and diplomatic correspondence. California sources include newspapers and personal letters. Both an Atlantic history and a legal history from below, this book presents law the way that claimants experienced it (see, e.g. , McKinley 2016, Palmer 2016, Welch 2018). Chapter 1 is premised on the socio-legal assumption that all lawsuits begin as social disputes. This chapter reviews the precedent setting cases where the Supreme Court of Louisiana revived the French medieval maxim that “there are no slaves in [metropolitan] France” (Peabody 1996). Chapter 2 demonstrates that in the 1830s-40s, Paris was the center of a growing Abolitionist movement throughout the French Empire. American women and girls traveling there as domestic servants would have experienced deeply racist immigration and criminal laws, but also law’s emancipatory potentials. Chapter 3 follows the women and girls back to New Orleans, situating them within a broader network of free people of color. Petitioners did not act in isolation; freedom suits mobilized a community. Chapter 4 examines how legal professionals translated raw desires into legal claims. Professionalization of legal practice, not cause lawyering, explains how litigants accessed representation. Chapter 5 focuses on judgment: simple words that drastically changed litigants’ lives. From a structural point of view, the freeing of individual slaves is an integral part of slave law, serving the interests of the master class. By creating exceptions from some, it solidifies the general rule of slavery (Patterson 1982). But from an individual’s point of view, submitting a freedom petition is an act of resistance. Women and girls, not men and boys, emerge as the main legal actors. As members of intimate households, women were better placed than men to initiate legal proceedings. Because of the partus sequitur ventrem doctrine, the pay-off of an individual woman’s emancipation was higher. This project also responds to a narrative of Louisiana exceptionalism. Within Anglo-America, Louisiana was distinct in ways that mattered for enslaved people, and growing Anglicization of the legal system there shut off pathways to individual emancipation. On a wider international scale, however, Louisiana was not necessarily distinct but in fact well-connected to a French Atlantic network. 3 TABLE OF CONTENTS Free for a Moment in France: How Enslaved Women and Girls Claimed Liberty in the Courts of New Orleans (1835-1857) ............................................................................................. i Dedication ..................................................................................................................................... iv Acknowledgments ......................................................................................................................... v Archival Abbreviations .............................................................................................................. vii Table of Legal Authorities......................................................................................................... viii Constitution .......................................................................................................................................... viii Federal Statutes ................................................................................................................................... viii State Statutes ........................................................................................................................................ viii Cases ..................................................................................................................................................... viii Introduction ................................................................................................................................... 1 1. Before the Freedom Suits ................................................................................................... 14 Introduction .......................................................................................................................................... 14 The Social Dispute ................................................................................................................................ 14 The Scourge of Yellow Fever ............................................................................................................ 14 A Slave-Owning Parisian Woman in New Orleans ........................................................................... 17 Caretakers and Wetnurses .................................................................................................................. 19 Risking French Citizenship ................................................................................................................ 21 Litigation Begins Upon Return to Louisiana ..................................................................................... 23 The Civil Capacity of Slaves .............................................................................................................. 23 A French Medieval Maxim Revived (1835-1836) ............................................................................. 25 A Federal-State Divergence ............................................................................................................... 29 Conclusion ............................................................................................................................................. 31 2. A Spirit of Liberty That Is Dangerous to the Republic: The World American Slaves Encountered in France (1818-1848) .......................................................................................... 33 Introduction .......................................................................................................................................... 33 Atlantic Crossings ................................................................................................................................. 34 Policing and Surveilling Black People in France ............................................................................... 39 Old Regime France............................................................................................................................
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