Making Race in the Courtroom: The Legal Construction of Three Races in Early New Orleans by Kenneth R. Aslakson (review)

In Making Race in the Courtroom: The Legal Construction of Three Races in Early New Orleans, Kenneth R. Aslakson investigates the records of the short-lived New Orleans City Court to illustrate how Louisiana, unlike every other southern slave state, created a three-race legal system. While historians have long debated why free people of color in New Orleans enjoyed formal rights and privileges denied to others elsewhere in the American South, Aslakson moves beyond this debate to focus on “how free people of color acting within institutions of power” exploited the Crescent City’s economic and demographic realities to help “[create] a new legio-racial category: people of color” (p. 7). Because of Louisiana’s particular colonial history, the large number of West Indian migrants during and after the Haitian Revolution, and the state’s increasing dedication to “preserving and expanding racially based slavery,” free people of color were able to use the New Orleans legal system to preserve their property and better safeguard their own freedom (p. 14).

Before delving into the New Orleans City Court’s records, Making Race in the Courtroom situates New Orleans and its legal system within a broad Atlantic history during the Age of Revolution. As residents of a colonial outpost, New Orleans’s free people of color came to occupy an essential middle stratum in colonial society, one poised between ostensibly “black” slaves and European “whites.” Following the Louisiana Purchase, preexisting French civil law customs ran up against English common-law structures and the culture of the United States. While this collision often created friction, the increasingly hybridized system united legal and political leaders in championing patriarchy, whiteness, and most important, property rights. As city elites strove to create a stable legal order during the tumultuous transition into American hands, free people of color found opportunities in the city court to leverage the law in their favor. Aslakson has uncovered well over two hundred instances where free people of color were litigants in this legal forum, with the vast majority being property cases and freedom suits. From his analysis of this evidence, Aslakson draws two primary conclusions. First, “Neither judges nor juries in the New Orleans City Court appear to have discriminated against men or women of color when deciding cases,” even ruling for the petitioner in an astonishing 60 percent of freedom-suit cases (p. 135). Second, free people of color, through their legal activities and economic standing, assisted in the inscription into law of a third racial category, “person of color,” that existed between white and black and offered greater legal protection against kidnapping and unlawful enslavement for the city’s large mixed-race population.

Making Race in the Courtroom is well written and tightly argued, and it contains much for historians of southern race law. However, it curiously avoids significant engagement with recent historiography regarding southern free people of color and simply assumes that they “enjoyed more privileges and rights in Louisiana than anywhere else in the antebellum South” (p. 183). Recent studies such as Melvin Patrick Ely’s Israel on the Appomattox: A Southern Experiment in Black Freedom from the 1790s Through the Civil War (New York, 2004) and Kirt von Daacke’s Freedom Has a Face: Race, Identity, and Community in Jefferson’s Virginia (Charlottesville, 2012) suggest qualification of this assumption.