French Prejudice of Colour #3/6 Its Legal Expression (a)

tanlistwa, extrait d'une peinture montrant le portrait d'une femme noire, de face, regardant le peintre, elle est coiffée d'un madras, porte des boucles d'oreille ronde rouge, elle a une chemise blanche

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This week, we continue the series on prejudice of colour with Episode 3. In the previous post, I talked about the stereotypes about blacks people that were conveyed by religious chroniclers and legislators. But if colour bias has raised many questions for me, it is primarily for its legal expression in the colonies; indeed, one of the fundamental elements of prejudice of colour is that it has instituted racial discrimination in law! There’s a lot to say, so I’ll need three posts to go around the subject (yes, even if I synthesize a bit!). Today, I have two objectives:

  1. to show the emergence of the free people of colour as a legal group, as it was gradually built up between 1685 and 1720,
  2. to contextualize the legal expression of the prejudice of colour in relation with the society of order of the kingdom of France, because it allows a better understanding on which is based the prejudice of colour which is developed in the colonies.

Once we have seen these two points, we will be able in the following episodes to look at the extent of legal racial discrimination.

The birth of the legal class of free people of colour in 1720

The opinions of travellers, chroniclers and settlers did not alone forge the construction of a racist colonial society. This society received legal support from the colonial administration, whether it came from the king, his minister or their representatives in the colonies.

For Caribbean history, the King’s ordinance concerning « the discipline of the Church, and the state and quality of Negro slaves in the American Isles » [ la discipline de l’Église, et l’état et qualité des nègres esclaves aux Isles de l’Amérique], promulgated in March 1685 and better known as the « Black Code » [Code Noir] of 1685, is a fundamental text. It is often referred to because it legalized the use of slavery in the French colonies, while at the same time, by virtue of the edict of 3 July 1315, slavery was illegal in the kingdom of France and « the soil of France frees the slave who touches it« . But it is not this contradiction that interests me here. What interests me in this text is the article that granted the same rights to freed persons as to those born free, with the precision: « Let us want the merit of an acquired freedom to produce in them, both for their person and for their property, the same effects that the happiness of natural freedom causes to our other subjects » [voulons que le mérite d’une liberté acquise, produise en eux tant pour leur personne que pour leurs biens, les mêmes effets que le bonheur de la liberté naturelle cause à nos autres sujets]. In the colonies in 1685, in legal terms, individuals were distinguished essentially on the basis of the manner in which they acquired freedom, whether ingenuous or emancipated, and not on the basis of race.

Then what happened?
In fact, the drafting of this text was already out of step with the emerging colonial ideology, which distinguished people more on the basis of skin colour and physical features. This is why a shift from servile origin to phenotype gradually took place in legal matters, and why slaves and « negroes » became almost synonymous for the contemporaries of the time.

I must point out that, at the time, legislation was built up at different levels. It emanated from the king or his minister from the kingdom of France, but it was also made locally via decrees or regulations by the governors and intendants who represented the king on the spot and by the sovereign council, a sort of equivalent of local parliaments. This is why certain texts may be valid for certain colonies only or applied with different dates. Here we will focus on Martinique’s regulations.

On June 10, 1705, a declaration by the king took action against « free negroes who hide maroons » [les nègres libres qui retirent des marrons]; this was the first occurrence in the code of Martinique of an expression associating colour and free legal status for people of colour. The text refers only to this very specific case, as if, apparently, it was self-evident that no white person could do the same.

Then, on April 2, 1718, an ordinance of the governor general and the intendant on the intoxication of rivers (a fishing technique requiring the use of poison) proposed a sanction for « whites » and another for « negroes« . Henceforth, people were no longer distinguished according to how they acquired their freedom, as in 1685, but according to their perceived race. You will notice, however, that there are no separate sentences, as there were shortly afterwards, between three legal classes (slaves, free people of colour and whites). The confusing aspect on this point is explained by the fact that the local representatives of power had a binary perception of society (white masters, black slaves), whereas society had become more complex with emancipation and mixing (the word « mulatto« , for example, had already been used in censuses and parish registers of free people since the last third of the seventeenth century).

In the 1720s, a new stage was definitively reached. In an Act on Clothing of June 4, 1720, « mulattoes, Indians or Negroes freed or free from birth » [mulâtres, Indiens ou nègres affranchis ou libres de naissances ], like their slave counterparts and unlike whites, were constrained in the type of clothing they were allowed to wear. Now among the free people, the lawmaker distinguished those who were not white. It was at this point that, in the Martinique Code, the free people of colour became a group with its own legal existence and no longer a sum of individual cases not envisaged or conceived of by the law.

On the other hand, what is known today as colourism – the act of ranking people according to the shade of skin colour, valuing the lightest skin tones – did not exist legally (although it can be observed socially). In the code of Martinique, the texts did not legally create a distinction within the group of Free People of Colour between people who would have been more or less black; there were whites and others.

tanlistwa, peinture, "Mulâtresse", par Pierre Alexis Lesage, XXe siècle, Crédits photos (C) A. GUILLARD
« Mulâtresse », par Pierre Alexis Lesage, XXe siècle, Crédits photos (C) A. GUILLARD

The society of order, an inegalitarian society

So here we are, from 1720 on, in a society where legislation distinguishes three types of status: slaves, free people of colour, and whites. It is a new social organization which is built in the colonies. In spite of everything, the people who make it up did not fall from the sky. Therefore, to really grasp the content of the texts I will come back to later, I must remind you of a few things about the society of order of the Ancien Régime from which those who made the laws for the colonies came.

In my PhD thesis, I show that we must look at the model of the society of order of the kingdom of France before the French Revolution (the principle of inequality, the hierarchy that results from it, the honours that are attached to it), to understand what is constructed and the content of the specific regulations enacted in the colonial societies of the French Caribbean. Indeed, not only were texts specifically promulgated for free people of colour, but also for the same offence, enslaved people, free people of colour and whites people were not subject to the same punishment. And that’s what I want to discuss now, although I’m not going to expand on it much here.

In the French colonies, the culture of the dominant group (the Whites), and especially that of its elite who were responsible for instituting local administration and regulation, was transposed overseas. To be clear, these island notables and colonial administrators came from France, with their societal model from there. They therefore took it with them, reproduced and adapted it to the colonial context.

Before the French Revolution (1789), the French lived in an unequal society of rank and privilege. This unequal system was reproduced in the colonies, but forged on the difference of « race ». In an inegalitarian society, the sanctions provided and the judgments handed down reflected a justice that took into account the outrage committed, as well as the honour of the accused and the victims involved, their quality, and their place in the social hierarchy.

It’s a bit short of saying all that, but what we have to remember is that the regulations specific to colonial societies must also be seen as adaptations of a system existing in France. A new context, a new construction, but not with a clean slate.

It is this principle of inequality between the different categories of people existing in the kingdom of France, as much as the desire to keep the free people of colour and the enslaved people in a state of subordination in a colonial situation, that makes it possible to understand the discrimination in the sentences provided for by local regulations and in the judgements made, throughout the 18th century.

The choice of sentences being considered is worthy of consideration. Monetary penalties were generally preferred, to avoid endless cycles of revenge and to serve as compensation. It was a means of settling a dispute by quickly reintegrating the transgressor into society. Corporal punishment, particularly the death penalty, did not serve the same function. By inflicting them, an individual was marked as a deterrent example or eliminated from society, when he or she was considered irretrievable. Usually, if they were not condemned to death, those who seemed irretrievable (violent people, those perceived as disturbing social peace, traitors, multi-recidivist thieves…) were excluded from society, either by banishment or by the galleys.

Here is a concrete example, an ordinance of the governor general and the intendant in 1724. It prohibited:
« any person, on pain of a 150-pound fine for whites, the same fine and 15 days in prison for free coloured people, and whipping and imprisonment for slaves, from going out on the main roads to meet merchants selling vegetables, grass and other foodstuffs intended for the daily supply of the towns »
[à toute personne, sous peine de 150 livres d’amende, pour les blancs, de la même amende et de 15 jours de prison pour les gens de couleur libres, et du fouet et de la prison pour les esclaves, d’aller dans les grands chemins à la rencontre des marchands de légumes, herbages et autres comestibles destinés à l’approvisionnement journalier des bourgs ]. Thus, very often, for the same offence, whites were punished by a pecuniary fine, while the free people of colour had to serve a prison sentence and enslaved people were subjected to corporal punishment.

In a hierarchy of repressions proposed by Benoît Garnot, the monetary fine is at the bottom of the scale. Next come the infamous penalty (incapacity to hold office), the afflictive penalty (banishment), the afflictive corporal penalty (galleys, whip, straitjacket), and, at the very top of the scale, the death sentence. In most of the texts of the Martinique code, the sentence for whites consisted of a monetary fine, while the sentence for people of colour also provided for a period of imprisonment ranging from 3 days to 3 months. The penalty of imprisonment was never sought for the white category (except in the case of a repeat offence, in a 1730 text on the accommodation of beggars). The texts emanating from the governor general and the intendant therefore tended to avoid any humiliating situation for whites.

It should be kept in mind that the Governor General and the Intendant were the local representatives of royal power. The punishment enacted was a form of penance and a disgraceful punishment, as much as a political demonstration of sovereign authority. The harsher measures for the Free People of Colour than for the Whites were in line with the argument developed in the King’s Memoir of 1777, which I quoted in the first episode: concern to guarantee the safety of the Whites and the colonial « good order » by maintaining, in public opinion, the idea that black enslaved people (just like their free descendants) should be kept in a state of subordination and respect for the whites. As such, I was marked by penalties for certain offences, consisting of the loss of freedom for free people of colour, even if they had been born free! The weakening of the freedom of free people of colour could be seen as the first stage in the logic of subordination of persons in this legal group, because these punishments helped to convey the idea that, unlike whites, freedom was never definitively acquired for them.

All posts:

(coming up)
French Prejudice of Colour #/6 In People’s Lives


* The first 5 posts devoted to this series on the prejudice of colour are a reworking of the writings taken from my French dissertation defended in June 2015. You can download it here Les Libres de couleur face au préjugé… if you wish to read more about the subject or to get precise references. For this episode, see in particular chapter 3 (p. 62 and following) and chapter 4 (pp. 78-85).
Researchers’ quotes in the note are translated from French and may therefore differ from works also published in English.

French Bibliography

  • Benoît Garnot, Justice et société en France aux XVIe, XVIIe et XVIIIe siècles, Gap, 2000


  • Durand-Molard, Code de la Martinique, Saint-Pierre, Martinique, J.-B. Thounens, 1807.


  • Wikipédia, Jeune femme aux pivoines, Frédéric Bazille, 1870, National Gallery of Art (Washington)
  • Base de données Joconde, « Mulâtresse », par Pierre Alexis Lesage, XXe siècle, Crédits photos (C) A. GUILLARD

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