Race, Slavery, and the Law in Early Modern France
Peabody, Sue, The Historian
During the seventeenth and eighteenth centuries much of France's Atlantic and Indian Ocean trade was tied up with the expansion of slavery. In the late 1600s, Louis XIV chartered two slave-trading companies in West Africa. Slave labor gradually began to replace indentured servitude in the Caribbean as sugar edged out tobacco production. During the 1700s, French planters established sugar, coffee, and indigo plantations off the coast of East Africa, modeled after those in the Americas. In India the French presence was primarily mercantile, not agricultural, yet slavery existed there as well in the form of domestic servitude. As the colonies prospered, many planters, merchants, state officials, and naval officers returned to France to do business and, no doubt, to flaunt their success. They were often accompanied by their slaves, who served their masters both as laborers and as symbols of the master's wealth. By the mid eighteenth century thousands of blacks, free and slave, had migrated to France.
Slavery, however, was illegal in France itself. The principle that a slave became free once he or she entered France had been recognized by French jurists since the sixteenth century, though it was never translated into royal decree. Hundreds of slaves won their freedom in French courts on the basis of this principle. The Parlement of Paris, France's highest court, refused to register two of the king's laws allowing a conditional slavery to exist within the kingdom. Ironically, it was the Parlement's refusal to register these laws that paved the way for a wave of racist legislation in the second half of the eighteenth century: despite a judicial tradition that frowned on slavery, French jurists embraced the notion that dark-skinned people were innately inferior to whites. Yet as one case, Francisque v. Brignon, shows, the notions of racial difference that undergirded the law were ambiguous at best.
The principle that "any slave who sets foot on French soil is free" was first promoted by Jean Bodin and Antoine Loysel in the sixteenth and seventeenth centuries. Both legal scholars cited statute and case law as precedent. Louis X's ordinance of July 1315 held that "following natural law, all men are born free. . . . Considering that our kingdom is called the kingdom of Francs, and wishing that the thing in actuality be in accordance with its name," the king ruled that those held in servitude could arrange for their freedom under "good and suitable conditions." Louis X's ordinance acknowledged the link between the name "France" and the condition of liberty implied in the word "enfranchise."(1)
Early modern lawyers used case law to argue that the freedom enjoyed by French citizens should be extended to anyone who arrived in France. They cited a 1402 case in which the syndic of Toulouse ruled that four slaves who had escaped to Toulouse were free by the privilege of that city. The Parlement of Bordeaux took similar action in 1571, when a Norman slave merchant attempted to sell a cargo of slaves in Bordeaux. The merchant was arrested and the slaves were freed.(2)
Problems arose by the late seventeenth and early eighteenth centuries, as increasing numbers of black slaves began to arrive in France as domestic servants for their colonial masters. Occasionally, they escaped and sought refuge with sympathetic French subjects. When masters took their slaves to court to reaffirm their property rights, the courts frequently upheld the slaves' right to freedom.
In 1716, the mayor of Nantes urged the king's ministers to draw up definitive legislation for use in cases involving black slaves. His proposals were ultimately incorporated into the Edict of October 1716. The edict established the conditions under which colonists could bring their slaves to France without losing them. Slaves could be brought to France for two reasons: for religious instruction or for training in a particular trade. To retain their slaves, owners were required to obtain permission from the colonial governors before departing, and to register their slaves at the nearest office of the Admiralty within eight days of their arrival in France. …