« Code Noir » (The Black Code)
This expression first appears in 1718, in a privately printed Parisian edition (Saugrain) of the decree of March 1685 regulating the French islands of America; there is a copy of the original manuscript of this ordonnance (Decree) in the Archives nationales d’Outre-Mer ANOM). Originally applicable to the colonies of the so-called Windward Islands, that is Martinique, Guadeloupe (whose version, not published until 2015, was registered by the governing Council of Basse Terre the following December, and is the only other manuscript copy of the Decree known to have survived – see doc.2) and St Kitts (which was still French at the time), the Decree was ‘extended’ in 1687 to the French part of Sainte-Domingue (Haiti), where it was known as an édit (Edict: a term which gradually replaced that of ordonnance in the 18th century), and finally, in 1704, to French Guiana.
Launched at the request of Louis XIV and the elder Colbert, and then drafted under the supervision of the younger Colbert, who succeeded his father at the Ministry of the Navy and the Colonies, by a special commission working on the basis of reports compiled by local administrators who set out the existing legislation, this 60-article Decree was in direct and flagrant contradiction, as even Colbert admitted, to the national law of the time, which had ruled out slavery right across the kingdom. In that sense one might consider it the founding text of French colonial law as a discrete legal corpus waiving national common law. Since the common law of Paris had been applied to those territories from 1664, the Paris Parliament consistently refused to recognise this Decree as legally valid, and in the 18th century, using the so-called Marble Table (Admiralty) jurisdiction, even ratified several judicial decisions to free slaves brought to Paris by their masters on the basis of the general principle that ‘French soil frees’.
If the 1685 Decree was essentially intended to regulate slaves, a good part of it also concerned the regulation of religion. The very first article of the Royal law concerned the expulsion of the Jews from the islands ‘within three months’, and a later one rigorously imposed the monopoly of the Catholic faith as opposed to ‘the supposedly reformed religion’, thereby prefiguring the future Revocation of the Edict of Nantes by the Edict of Fontainebleau in October 1685. The object of all of this, beyond the impetus of Colbert’s centralising and rationalising administrative and economic policies, was of course to assert Royal sovereignty over these territories, which had recently (1674) been included in the Crown’s domains in order to put an end to the excesses of previous legal regimes (those of the colonial companies and then of the ‘lords and owners’).
This aim, at once political and administrative, is reflected in the detailed regulation of relations between masters and slaves, where Royal power can be seen one the one hand subjugating the bodies and souls of slaves, but on the other containing and even limiting the powers of slave-owners. In principle a slave must be baptised and catechised on arrival in a colony (art.2). He can have a religious marriage according to the formalities of common law, including with a free person (arts 9,10,13). He is entitled to rest on Sundays (art.6), and to be buried in ‘hallowed ground’ (art. 14), and may not be given orders by a non-Catholic (art.4). The Royal law places an obligation on his master to feed (art. 22) and to clothe (art. 25) him, even in cases where he is unable to work (art 27), and not to put him to death or inflict ‘barbarous and inhuman’ treatment on him (arts 26, 42, 43). In return, the slave is consigned to a hereditary social status (by matrilineal line of descent – art. 13), which is discriminatory and humiliating in the context of colonial society and intended to keep him in a state of submission. The Decree forbids slaves to carry arms (art. 15), to assemble (art. 16), to carry on business without their masters’ permission (art. 18 ff.). It lays down harsh punishments, even in certain cases the death penalty, for theft (arts 36 and 36), attacks on free persons (art. 34) or worse still on masters or their families (art. 33), and for escaping or marronage (art.38). The slave is furthermore considered in law as the property of his owner and subject to his will. He can own no property of his own, and is part of the assets of a household (art. 28). His master can punish him (with ‘whips or canes’) if he is disobedient (art. 42), and can also hire him out, lend him or resell him. Ownership of him is transmitted by inheritance, in principle as a movable asset, but most often in practice (in the case of slaves in the agricultural sector who were the majority of the enslaved population), as a fixture (arts 44 ff.). At the same time, the Decree endorses situations of mutual confidence between master and slave by allowing that a master might entrust to him the running of his shop and/or a business (art. 29), and might also make him his legatee, the executor of his will or even the guardian of his children (art.56). Finally, emancipation arising from one of these cases, or from marriage with a free de facto partner (art. 9), or from the express will of the master without further administrative formalities (art. 55), enabled the emancipated slave to enjoy ‘the same rights’ as the ‘natural subjects’ of the kingdom (arts 57 and 59). The main elements of these provisions were to be carried over to the Edict of December 1723 relating to the Île Bourbon (later La Réunion) and the Île de France (Mauritius), and to that of March 1724 relating to Louisiana, which were also known as ‘Black Codes’.
The Decree of 1685 was subsequently to be completed by an important piece of later colonial legislation; the expression ‘Black Code’ came also in the 18th century to apply to the whole body of this legislation, compiled in private collections, such as that printed by Prault, running to hundreds of pages by the end of the century, or in copious local regulations which sometimes contradict the letter of the 1685 Decree (see for instance the study quoted below of the 1783 local Decree. The legal right to emancipation, and the juridical status of freed slaves and their descendants (‘freed persons of colour’) were subsequently restricted to such a degree that they imposed a severely discriminatory regime on these persons. Racial barriers were widely reinforced, becoming the main social structure of American slave colonies. The condition of servitude itself was on the other hand ‘softened’ by the Royal Decrees of 1784, 1785 and 1786, and above all by the general reforms of 1845 (the Makau Law) and 1846, which however do not seem to have been universally applied. The Decree or Edict of 1685 remained in force across the board until 1848. Yet in practice most of this legislation, and even the local regulations, were not applied, whether because of resistance on the part of masters and slaves, or because of the weakness, negligence, or on occasions the complicity, of the colonial authorities. Each colony witnessed the growth of specific habits and customs which still need to be investigated by historians.