5
Body of Law
The Sun King and the Code Noir

Joseph Roach

"Who are my people?"
Ward Connerly

In March of 1685 at Versailles, when Louis XIV affixed beneath his signature the great seal of green wax ornamented with green and red silk ribbon, he enacted into French law the theory and practice of West Indian slavery. The document he authorized with this ceremonial gesture consisted of the sixty articles of the Code Noir, the "Black Code," a body of law "Concerning the Discipline and the Commerce of Negro Slaves of the Islands of French America." The Code Noir inscribed the legal particulars of the Gallic role in the vast Eurocolonial project of the economic exploitation of the Caribbean (and later Louisiana) using African slave labor. It also provided a general structure for the partial incorporation of hundreds of thousands and eventually millions of Africans into the body politic of the ancien régime and its successors. In the visionary imagination of omnipresence and immortality that characterizes such absolutist pronouncements, the Sun King addressed the preamble of the Code Noir "to all present and to come."^[1]

[1] Regulations, Edicts, Declarations, and Decrees, Concerning the Commerce, Administration of Justice, and the Policing of the French Colonies of America; with the Black Code and Additions to the Said Code , trans. Olivia Blanchard (Baton Rouge: Survey of Federal Archives in Louisiana, 1940), Black Code of 1685, Preamble. Subsequent citations will be given in the text.

His salutation proved prophetic, I believe—not only in the legal and social history of the American state that bears his name, but also, more subtly, in the formation of the national body politic of the United States in the crucible of race. The practice of embodying power in seventeenth-and eighteenth-century France, notwithstanding its particular manifestations as documented elsewhere in this volume, also constitutes a limited but consequential contribution to what Michel Foucault memorably called the "history of the present."^[2] Reading the articles of the original Code Noir today, one hundred years after Plessy v. Ferguson (1896), the Louisiana civil rights case whereby the Supreme Court of the United States in effect established the doctrine of "separate but equal" as the law of the land until 1954, discloses an unexplored relationship between two legal constructions of race and nation. The first is located in the articles of the Code Noir (adopted in amended form in Louisiana in 1724) and the practices and customs they embodied. The second, in part an unacknowledged descendant of the first, is very much alive today. It animates the claim, now heard ever more bluntly from the bench and from neo-conservative opinion makers, that fairness requires the law to ignore race. It also animates the physical bodies of Louisiana creoles past and present, bodies that have been deployed to undo the very concept of race as a meaningful category of difference under the law.

The constitutional address of "We, the People" defers a fundamental question, the one posed on behalf of the individual subject or citizen by the epigraph to this essay: " Who are my people?" This very question was recently asked by Ward Connerly, a Louisianan by birth, now a University of California regent and successful proponent of Proposition 209, a ballot measure that has ended racial preferences in education and government contracts. His question resonates across space and time. It resonates across the century from the Plessy case, which itself represents a catastrophic anglicization of the old Code Noir, to the current crisis of affirmative action and "racial quotas." It resonates even more expansively, in fact—across conventional boundaries of now/then and here/there. Boundaries like that allow us to believe, falsely, that power embodied in seventeenth- and eighteenth-century France pertains only to the dead.

[2] Michel Foucault, Discipline and Punish: The Birth of the Prison , trans. Alan Sheridan (New York: Vintage Books, 1977), 31.

Such an approach to the "history of the present" is best described by Jonathan Boyarin in Remapping Memory: The Politics of TimeSpace , whereby history (as a narrative of more or less linear temporal periods succeeding themselves within fixed national borders) obscures the presence of the very past it seeks to evoke. Boyarin asks:

Is it possible for us to think otherwise, as cultural actors evidently do, and conceive of "past" events being truly effective in the present—conceive of them, that is, as not really past? To try to imagine the latter possibility, I suggest, requires that we complicate the model of a one-dimensional arrow of time along which we move through or within a separate, three-dimensional "space." I further suggest that our reified notions of objective and separate space and time are peculiarly linked to the modern identification of a nation with a sharply bounded, continuously occupied space controlled by a single sovereign state, comprising a set of autonomous yet essentially identical individuals .^[3]

Since the consolidation of modern nation-states amid the turbulence of colonial and imperial expansion in the seventeenth century, the legal organization of people into different nationalities has been variously expounded and contested. The word nation itself, cognate as it is to nativity, native , and nascent , once meant a breed, a stock, or a race. Over time the idea of a nation as a political aggregation has tended to supersede this more restrictive racial sense (OED ), but, as Elizabeth Colwill shows in her essay in this volume, that change of meaning has occurred unevenly and uncertainly. It remains incomplete today.

Louis XIV proclaimed the slave codes in the same year that he announced the Revocation of the Edict of Nantes, which drove hundreds of thousands of Huguenots out of France. Significantly, the Sun King's policies, however failed and misguided, aimed more at assimilation of the Protestant minority, through conversion and intermarriage, than at segregation and exile. No proclamation of national identity before or since resounds more euphoniously than the one current at the time of the Revocation of the Edict of Nantes: Une foi, un roi, une loi , or "One God, One King, One Law."^[4] To this totalizing trinity, however, the contingencies of African slavery and New World colonization added another and even more problematic term: "One Blood." As its name implies, the

[3] Jonathan Boyarin, "Space, Time, and the Politics of Memory," in Remapping Memory: The Politics of TimeSpace (Minneapolis: University of Minnesota Press, 1994), 2; emphasis in the original.

[4] John B. Wolf, Louis XIV (London: Victor Gollancz, 1968), 379–401.

Code Noir directly confronted the problem posed by racial as well as religious difference to the formulation of the French body politic as a matter of law. Despite the undeniable color consciousness of its title, the detailed provisions of the Code Noir of 1685 worked to create a new society in "our islands of America" in which the races would eventually be subsumed into the genius of a single superior "race"—the Gallic one.

This approach to the law and its cultural formation across conventional boundaries of nation and period reflects my interest in the historic transmission of social behaviors and attitudes through performance—the public execution of actions and utterances with revision over time.^[5] It also reflects a recent trend within critical legal studies to reexamine a wide range of historical and theoretical issues in light of performance—to think of justice, for instance, not as something that exists merely as abstract principle, but rather as something that must be done .^[6] "As a cultural system dedicated to the production of certain kinds of behaviors and the regulation or proscription of others," I have written elsewhere, "law functions as a repository of social performances, past and present." As incorporated memory within the law (or as resistant actions outside of it), "performance infuses the artifacts of written law with bodily action, a meaning that obtains when it is said that a party to a contract performs."^[7] Performance transmits the meaning and force of the law through the medium of corporeal action. As in the production of a classic play, the efficacy of the transmission resides in the physical embodiment of the textual artifact by living actors.

To approach the law from the perspective of performance is to take the idea of the body politic as literally as Louis XIV did when he addressed the Code Noir to the most distant and even the most abject of his sub-

[5] I have recently explored related issues in Cities of the Dead: Circum-Atlantic Performance (New York: Columbia University Press, 1996). For a general orientation to the current work in the field of performance studies, see Andrew Parker and Eve Kosofsky Sedgwick, eds., Performativity and Performance (New York: Routlcdge, 1995); Susan Foster, ed., Choreographing History (Bloomington: Indiana University Press, 1995); Elin Diamond, ed., Performance and Cultural Politics (London: Routledge, 1996); and Peggy Phelan and Jill Lane, eds., The Ends of Performance (New York: NYU Press, 1997).

[6] Bernard J. Hibbitts, "Coming to Our Senses: Communication and Legal Expression in Performance Cultures," Emory Law Journal 41 (1992): 873–960. Hibbitts writes: "The dynamism of performance is arguably reflected in the performative inclination to think of law not as things but as acts, not as rules or agreements but as processes constituting rule or agreement. A performative contract, for instance, is not an object, but a routine of words and gestures. A witness to a contract testifies not to the identity or correctness of a piece of paper, but to phenomena seen and heard. Likewise, members of performance cultures tend to think of justice not as something that simply is, but rather something that is done" (959).

[7] Roach, Cities of the Dead , 55.

jects: "Although they inhabit countries infinitely far from our land, we are always near them, not only by the extent of our power, but also by the promptness of our will to assist them in their needs" (preamble). Imagining that the state is in some sense a body, in some sense his body, the king spoke confidently of the long arm of its law. Invoking the ancient Anglo-Norman doctrine of the "king's two bodies"—the body natural and the body politic—Louis projects himself as being in two places at once. The king's physical person (the body natural) served him as a symbolic iteration—through the spectacular fêtes at Versailles and kindred state performances—of his other body, the one that can project its power over time and distance through the medium of his law-abiding subjects (the body politic). This body physically exists in the performance of itself by an ensemble of actively affiliated bodies—their gestures, actions, utterances, and attitudes—which may be transmitted across vast territories as custom or handed down as tradition. By making the one into many and the many into one, such communications were vital to the expansion of the medieval dynastic state into the modern imperial nation state, which Benedict Anderson has described so influentially as an "imagined community." These communications became all the more urgent, as Anderson shows, in the face of the secessionist energies exerted by the "Creole pioneers" along the intercultural frontiers of the New World,8 and especially along the Caribbean rim, which includes Louisiana. Unlike the body natural, the body politic cannot die—but it can and will be subject to periodic crises over its efficacy or its legitimacy as it changes through time. An informed answer, therefore, to the question "Who are my people?" more often than not requires an inquiry into what those people do , especially what they do as obedient (or resisting) subjects on the inside (or the outside) of the law.

The Code Noir of 1685 required, first, that the people made clear by their actions who they were not. Consistent with the Revocation of the Edict of Nantes, the preliminaries of the code were explicit and dispositive: article 1 banished all Jews from "our islands"; article 3 outlawed the practice of any religion except Catholicism; article 8 forbade the contract of legal marriage to non-Catholics and bastardized the children of such unions. The rest of the code dealt with masters and slaves as legally differentiated from one another in the duties required of them but nonetheless united in the same body politic. The exact nature of their affiliation

[8] Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism , rev. ed. (London: Verso, 1991), 47–65.

and difference reflected the scope of the Sun King's ambition for the future of the French in the New World. It also showed the influence of the visionary designs of Colbert, even though the code was signed two years after that formidable minister's death.

When Louis XIV declared that "we owe equal care to all the people whom Divine Providence has placed under our authority" (preamble), he made it clear that he expected that the benefits of his paternal concern would be transmitted through the regulation of his slaveholding subjects. In contrast to the Anglo-Saxon common law's predilection for the elaboration of rights, French law, which follows the traditions of the Roman civil code, tends to impose duties. By the terms of the prescriptions of the Code Noir, it was mostly the masters who were required perform. They were specifically obligated, for instance, to carry out various rituals and practices that would incorporate their slaves into the body politic.

These performances were various. Although the fact of slavery deprived slaves of their rights of property in themselves as bodies, the Code Noir recognized their status as autonomous "souls" by requiring their masters to see to their baptism and instruction within the Roman Catholic religion (article 2). Masters were also enjoined from making their slaves work on the Sabbath or on feast days (article 6), from marrying them off against their wills (article 11), from torturing or mutilating them except as provided for by law (article 42), from taking their lives arbitrarily (article 43), from abandoning them when they became old, infirm, or incurably ill (article 27), and from leaving their bodies unburied: baptized slaves were to be buried "in consecrated ground, in the cemetery designated for that purpose," unbaptized "in some field near the place of their demise" by dark of night (article 14). The secular regulation of rites of passage has been described as a characteristic practice of the modernizing nation-state, the goal of which is to mediate between the abstraction of imagined community and the tangible performances of daily life.^[9] Mortuary ritual is especially powerful in this regard, and the Code Noir meticulously appropriated the rites of death and burial (as well as baptism and marriage) to this agenda of secular incorporation. As for the physical needs of the living, the code stipulated that masters must provide their slaves with "two linen suits" each year (article 25) and each week victuals equivalent to five pounds of manioc flour, two pounds of salt beef, three pounds of fish, "or something else in proportion" (article 22). Nonperformance by the

[9] David I. Kertzer, Ritual, Politics, and Power (New Haven: Yale University Press, 1988), 114–19 and chap. 5: "The Ritual Construction of Political Reality," 77–101.

master in any of these articles entitled the slaves to complain to the procureur , the king's agent, for redress (article 26).

Feeble as these paper guarantees seem and ineffectual as their enforcement may have been in fact, they may be contrasted revealingly with the general silence of Anglo-American law on the welfare of slaves. Judge Thomas Ruffin of North Carolina epitomized this silence when he concluded that the law could confer but never amend the authority of the master over the slave: "The power of the master must be absolute to render the submission of the slave perfect.... We cannot allow the right of the master to be brought into discussion in the courts of justice. The slave, to remain a slave, must be made sensible that there is no appeal from his master; that his power is in no instance usurped; but is conferred by the laws of man at least, if not the law of God" (State v. Mann , 1829). Judge Ruffin's opinion is preoccupied with the elaboration of a "right" belonging to privileged persons in the absence of any corresponding obligation under the law. He imagines a community of a very particular kind, one that is ruled by an American version of divine-right absolutism, creating two completely separate classes: those whose rights are absolute and inalienable and those whose rights do not exist. In Anglo-American practice, moreover, the particular conditions of involuntary servitude were explicitly linked to race: in contrast to bonded servitude, into which white folks might fall temporarily, African slavery was constituted as a perpetual and inherited condition. As Thomas Beverley's History of Virginia (1705) puts it: "Their servants they distinguished by the Names of Slaves for Life, and Servants for a time.... Slaves are the Negroes, and their Posterity, following the Condition of the Mother."^[10] On this point at least—of the necessary connection of race and slavery—the community that Louis XIV and Colbert imagined under the Code Noir was more complex.

On the one hand, the condition of slavery in the French territories, as in Virginia, was to follow the status of the mother: the children of a slave father and free mother were born free; those of a free father and slave mother were enslaved (article 13). On the other hand, the code provided for the manumission of slaves (articles 55–58), the emergence of a free black population (article 59), and intermarriage between slaves and slaveholders (article 9). The last-mentioned article, after providing for the confiscation of the children fathered by a free black or slaveholder with a slave

[10] Thomas Beverley, The History and Present State of Virginia , ed. Louis B. Wright (Chapel Hill: University of North Carolina Press, 1947), 271.

concubine, continues: "However, the man who, not being married to another person during his concubinage with his slave, shall marry the said slave according to the decrees of the church, and they shall be enfranchised thereby, and the children made free and legitimate" (article 9). Such provisions reflect the tendency of the Latin Caribbean plantations to develop three-caste societies, roughly divided into African and Indian slaves, free people of color, and whites. With crisscrossing patterns of intermarriage and less formal arrangements of kinship, however, the lines between the castes functioned more like open frontiers than closely patrolled borders. In view of the tendency of frontier populations to band together in the face of hardship and uncertainty, propinquity alone might be supposed to offer a sufficient rationale to intermingle bloods. The generally different histories of the English-speaking North American colonies in this regard, however, highlight the effects over time of French rule in Canada and French (later Spanish) rule in Louisiana. If no other memory remained, the specialized lexicon of racial mixture itself would disclose its Latin derivation: métis, griffes, mulattoes, maroons, quadroons , and octoroons .

Miscegenation was, in fact, a geopolitical strategy of Louis XIV's France. When Colbert assumed responsibility for the administration of Canada in 1663, he formulated a policy, already implemented ad hoc by the coureurs-de-bois , of populating its vastness with Frenchmen by assimilating Native American peoples through enculturation and intermarriage. At his direction, a state-financed dowry was offered to any woman, French or Indian, who would marry a man of the other race, "in order that, having one law and one master, they may form only one people and one blood."^[11] In other words, there was nothing inherent in the body natural (the "blood") that prevented its complete absorption into the body politic under the paternal aegis of one God, one king, and one law. Although the assimilationist strategy was contested and unevenly successful—skeptics in the colonial administration expressed fear about the proliferation of half-breeds and complained that Frenchmen were being turned into Indians instead of the other way around—it is important to remember that Louisiana was founded and developed in its early years by French Canadians, many of whom brought with them a willingness to sponsor the performances that would, in the fullness of time, turn "one law" into "one blood." In the West Indies and Louisiana, of course, the assimila-

[11] Cited in Jerah Johnson, "Colonial New Orleans: A Fragment of the Eighteenth-Century French Ethos," in Creole New Orleans: Race and Americanization , ed. Arnold R. Hirsch and Joseph Logsdon (Baton Rouge: Louisiana State University Press, 1992), 23.

tionist project was complicated by the growing presence of Africans and their commingling with Native Americans. On that subject, perhaps the most remarkable article of the Code Noir of 1685 provided for the full enfranchisement of freed slaves: "We give to the enfranchised the same rights, privileges, and immunities enjoyed by free-born persons, so that the merit of an acquired freedom might produce in them, for their persons as well as for their possessions, the same benefits that the happiness of natural freedom gives to our other subjects" (article 59).

The intent of this clause seems to anticipate by nearly two hundred years the Fourteenth Amendment to the Constitution of the United States, guaranteeing equal protection under the law to all regardless of former condition of servitude. Of course, one of the "benefits of freedom" bestowed on the enfranchised by the Code Noir was the right to own not only property in oneself, but property generally, including slaves—which gens de couleur libre of Louisiana did in growing numbers throughout the colonial and antebellum periods. Although article 59 and other liberal provisions were struck from the revised version of the Code Noir in 1724 and miscegenation was outlawed at that time, the imagined community of "one blood" had already rooted itself in certain popular behaviors and practices that were further reinforced under Spanish rule. What those cultural performances embodied for many, particularly for the newly enfranchised, was the vision of an emergent society in which race, if it continued to exist as a concept at all, might remain beneath the notice of the law.

Such a vision is enabled by a habit of mind that allows a people to think beyond the body natural in order to imagine an expanded body politic. Frenchmen in the age of Louis XIV could do that, but not without deep ambivalence. Rather than thinking of "our islands" in the Caribbean as a place where a new world had been discovered, they sought to act on them as a place where a new world could still be invented, notwithstanding the unprecedented cultural disruptions and the staggering human costs involved. The Code Noir is not the only evidence of this perplexed vision. These dangerous utopias were in a sense rehearsed, I believe, in the great court entertainments performed by and for Louis at Versailles in the 1660s. In these festive rituals of state, on the cusp of feudal tournament and modern national spectacle, the actors and scenes rendered visible the anxieties provoked by the salient material fact of the practice of one blood, its culturally revolutionary hybridity.

In an essay on these fêtes, Orest Ranum rightly notes the importance of fantastic islands in their boldly synoptical scenography, which enfolded

the chivalric games and courtly mythology of dynastic tradition within the technological wonders wrought by the innovations of the imperial machinists and designers. Ranum argues that the resulting performances drew on sources deep in European cultural memory, to which I would add that they simultaneously appealed to aspirations directed toward far distant shores and scarcely imaginable futures:

The Ptolemaic theory of the four elements that make up the world—earth, air, fire, and water—implied that islands, and particularly volcanic southern islands, were the natural locations of mutation, or at least of copulation between species occupying different positions in the hierarchy of species that ranged from angels to devils.... Acts of sexual frenzy were considered more likely to occur on the tropical islands that were the encounter zones between inhabitants of Olympus, man, and the sea. Southern islands were shown as inhabited by fishy creatures that were a bit human: a fin was not all that different from a wing. An island resident might possess the passions of a human housed in a scaly hulk.12

The ambivalence of this imagery, reminiscent of the oscillation between nostalgia and nausea in Shakespeare's Tempest , derives, I believe, from both the reassuring representation of a mythic world of the Mediterranean past and the anxious creation of an unprecedented one in the Caribbean future.

The most significant of the fêtes, Les Plaisirs de l'ile enchantée (The pleasures of the enchanted island, 1664), took place in the same year that Colbert initiated his plans for the crash development of a sugar-refining industry in France, with the mercantilist aim of monopolizing the final production and distribution of the most profitable commodity of the New World; during the next year the finance minister, who also had overall charge of the fêtes, imposed prohibitive tariffs on sugar imported from any other country. The scope of these designs may be measured by some statistics: French trading ships in Caribbean waters, which numbered 4. in 1662, amounted to 205 by 1683, the year of Colbert's death. By that year there were also twenty-nine sugar-refining factories prospering in metropolitan France, consuming approximately eighteen million pounds of semiprocessed West Indian sugar annually. Sugar plantations were the most labor intensive of all, requiring one slave for every two acres, compared with one slave for every ten acres of cotton or thirty acres of corn.

[12] Orest Ranum, "Islands and the Self in a Ludovician Fête," in Sun King: The Ascendancy of French Culture During the Reign of Louis XIV , ed. David Lee Rubin (Washington, D.C.: Folger Shakespeare Library, 1992), 17.

From 1680 French slave importation into Haiti alone averaged 8,240 slaves per year, making a total of 800,000 slaves by 1776.^[13] This number excludes those who disembarked at Martinique, Guadeloupe, and St. Christophe; it also excludes those who perished during the Middle Passage (from disease, neglect, abuse, murder, and suicide), a wastage that averaged approximately one-third of those who embarked in African ports and one-fifth of the ships' crews.^[14]

Enchanted islands, beckoning in the distance where horizon becomes mirage, must have been on the minds of many at court in 1664, but The Pleasures of the Enchanted Island , a complex pageant with a number of subsidiary entertainments that took several days to perform, was created by the combined talents of Lully, Quinault, Molière, Le Notre, and Torelli out of materials drawn from Ariosto's Orlando Furioso . As spectacles of abundance, the entries enacted the natural distribution of commodities to the far corners of the world and their providential return to a centripetal locus of accumulation at Versailles. This bounty, not for the eyes alone, included the lavishly sugared patisseries du roi .^[15] In the opening dramatic scenes, Louis himself enacted the leading role of Roger. In the climactic action of the Third Day, however, the hero, now played by a stand-in or stunt double for the king, breaks the spell of the enchantress Alcina, who has entertained and bewitched him with a ballet that featured giants, dwarfs, sea monsters, and eight Moors carrying torches. It is Alcina's power to summon these Caliban-like creatures to perform for her delight that defines her magic. Upon the successful conclusion of a siege and the occupation of her island, Roger destroys Alcina's palace with fireworks. Replacing the enchantress, Roger acquires her magic, which is now in a larger sense the magic of the state, legitimated physically by the royal presence under a canopy at the symbolic center of the realm.^[16]

In the most frequently reproduced image of The Pleasures of the Enchanted Island , Louis (always locatable by the size of the plume in his hat) is shown as he witnesses the rout of Alcina, who is riding on a sea monster, one of three afloat on Le Notre's ingeniously managed waters (fig. 5.1). Between the king and the enchanted island lies an empty plane

[13] Eric Williams, From Columbus to Castro: The History of the Caribbean (New York: Random House, 1984), 145, 161–63.

[14] C.L.R. James, The Black Jacobins: Toussaint L'Overture and the San Domingo Revolution (1938; New York: Vintage Books, 1989), 6–9.

[15] Jean-Marie Apostolidès, Le Roi-machine: Spectacle et politique au temps du Louis XIV (Paris: Editions de Minuit, 1981), 93–113.

[16] Molière, Oeuvres complètes , ed. Maurice Rat (Paris: Gallimard, 1956), 1:675.

Figure 5.1
Les Plaisirs de l'île enchantée , Third Day, 1664. By permission of the Bibliothèque Nationale.

populated only by two armed guards. He watches as his stand-in (or "body double," in Hollywood parlance) lays down the law at a considerable distance across the water, underscoring through bodily performance the political theory of colonial rule that "although they inhabit countries infinitely far from our land, we are always near them" (Code Noir, preamble).

The symbolic economy of the Code Noir, like that of The Pleasures of the Enchanted Island , requires belief in the efficacy of corporeal action at a distance. For the modern state to work its magic, the symbolic and the physical dimensions of the body politic must be unified so that the king's immortal body may reconstitute itself into a body of laws. But these laws must be repeatable as specific performances at distant sites. They must serve as a constitution as that word has enlarged in meaning from an individual physique to an instrument for governing diverse and even refractory interests in a commonwealth. The constitutional imperative of bodily performance attains its greatest clarity in the Code Noir's provisions for the punishment of runaways. The slave absent without leave for one month "will have his ears cut off and [will be] branded on one shoulder with the fleur-de-lys; if he is guilty of a second offense ... , he shall be hamstrung and also branded with the fleur-de-lys on the other shoulder, and a third time he will be put to death" (article 38). Branding with the Lily of France, the time-honored emblem of her monarchical continuity and national identity, subjects the slave who rejects the king's legal incorporation to a most rigorous reminder of the long arm of his law.

By providing for the marking of the rejectionist's body by maiming amputations and identifying brands, the Code Noir insisted on the existence of the slave as a legally distinct but nonetheless integral constituent of France. This is demonstrated by article 57: "We declare that enfranchisements acquired in our islands will be held in lieu of their being born on the islands, and enfranchised slaves [have] no need of our letters of naturalization in order to enjoy the advantages of native subjects of the Kingdom, lands, and countries under our authority, although they were born in a foreign country." Prior to enfranchisement, however, although slaves may be fully French, they cannot be fully French subjects. Contradicting its prior recognition of the "souls" of Africans, the code thrice defined slaves as chattel: "appurtenances" (article 44), "movable objects" (article 45), and "movable goods" (article 46). By the legal logic based on this definition, flight is theft—stealing oneself from one's master. But the brand that is then applied punitively to the flesh of the thief is not the mark of the private owner. It is rather the historic and sacred emblem of the body politic itself.

Like any legal code, the Code Noir was also subject to the dictates of a higher law—that of unintended consequences. As the checkered history of its enforcement in Louisiana makes clear, Africans who represented the majority of the population it was designed to incorporate came to America from the French concessions of Senegambia, bringing powerful laws and customs of their own. As Gwendolyn Midlo Hall has shown, conditions therefore favored "the emergence of a particularly coherent, functional, well integrated, autonomous, and self-confident slave community."^[17] This African community operated within and around the one that Europeans believed they alone had imagined. In fearful recognition of the power of public performance to consolidate imagined communities, the Code Noir prohibited slave assembly: "We also forbid slaves belonging to different masters to gather together, day or night, under pretext of weddings or otherwise, whether on the premises of the masters or elsewhere, and especially along the highways or remote places, under penalty of corporeal punishment which must not be less than the lash or fleur-de-lys; and in the case of frequent repetition and other aggravating conditions, they may be punished by death" (article 26).

In actual practice, the records of the festive and ritual life of the French plantations show plentiful evidence of a flourishing tradition of public performance. Some of these the code required or implicitly condoned, contradicting article 26—at funerals, on feast days (especially Mardi Gras), and on Sunday afternoons. In "Congo Square," an unofficial New Orleans marketplace, the slaves danced bamboulas, calindas, and carabines accompanied by African instruments.^[18] On the island of Martinique during Mardi Gras season 1808, Pierre Laussat, Napoleon's deputy, came upon a festive assembly of slaves who danced both the bamboula and European-style contredanses on Ash Wednesday, saying their "farewells to Carnival."^[19] Although he had reinstated the Code Noir of 1724 when he briefly served as Louisiana's last French governor in 1803, Laussat's laissez-faire account recalls an apocryphal story, part of the folk tradition of New Orleans Mardi Gras, that Louis XIV issued a special decree exempting carnival activities in Louisiana from the rigor of the law.^[20] This story prob-

[17] Gwendolyn Midlo Hall,Africans in Colonial Louisiana: The Development of Afro-Creole Culture in the Eighteenth Century (Baton Rouge: Louisiana State University Press, 1992), 159.

[18] Jerah Johnson, "New Orlean's Congo Square: An Urban Setting for Early Afro-American Culture Formation," Louisiana History 32 (1991): 117–57.

[19] Pierre Laussat, Mémoires sur ma vie, à mon fils (Pau: E. Viganancour, 1831), 137.

[20] Hodding Carter, ed., The Past as Prelude: New Orleans, 1718–1968 (New Orleans: Pelican Publishing, 1968), 342.

ably had its origin in article 6 of the code, which forbade work on Sundays and feast days, a considerable loophole through which the great performance traditions of West Africa, evolving in their own way in proximity to European festivities, could pass. They inaugurated a genealogy of related forms that today include Second Line parades, Mardi Gras Indian processions, and jazz funerals. Although the musical life of the Sun King's court is justly celebrated in the genius of Lully and others, the cornucopia of popular forms associated with New Orleans might be considered a more consequential, though distant and indirect, contribution of his policies.

More certainly, the enfranchisement of the gens de couleur libre and the development of a three-caste society under French and Spanish sovereignty in Louisiana profoundly complicated the issue of race for the Anglo-Americans after 1803. The first American governor, William C. C. Claiborne, was alarmed by the sight of armed colored militia drilling in the main square and under their own officers.^[21] In 1812–15, however, their numbers increased by immigration from Haiti,gens de couleur were freely recruited by the Americans, who were happy to have their military services. Addressing himself "to the free coloured inhabitants of Louisiana," Andrew Jackson appealed to them as fellow Americans: "As sons of freedom, you are now called upon to defend our most inestimable blessing." He hastened to assure them that if they enlisted, "due regard will be paid to the feelings of freemen and soldiers. You will not, by being associated with white men in the same corps, be exposed to improper comparisons or unjust sarcasm."^[22] For the next hundred years after the victory at the Battle of New Orleans, however, the position of free people of color deteriorated as white Americans attempted with increasing vehemence to impose a binary system of racial classification and to disenfranchise anyone with a trace of "negro blood." As recounted by Rodolphe Desdunes in Nos Hommes et notre histoire (1911), the losing battle for full citizenship—once guaranteed under the old regime—was fought in the law courts and in the court of public opinion.^[23] Organized into the Comité des Citoyens

[21] Roland C. McConnell, "Louisiana's Black Military History, 1729–1865," in Louisiana's Black Heritage , ed. Robert R. MacDonald, John R. Kemp, and Edward F. Hass (New Orleans: Louisiana State Museum, 1979), 39.

[22] "Proclamation. Head-quarters, 7th military district, Mobile, September 21, 1814," Louisiana State Museum.

[23] Rodolphe Desdunes, Our People and Our History , trans. Sister Dorotea Olga Mc-Cants (Baton Rouge: Louisiana State University Press, 1973). See Caryn Cossé Bell, Revolution, Romanticism, and the Afro-Creole Protest Tradition in Louisiana (Baton Rouge: Louisiana State University Press, 1997).

and inspired by the memory of the Revolution of 1848, which ended slavery in the French West Indies and enfranchised all the former slaves, francophone creoles of color maintained a position rooted in their past but focused on their American future: race could not be a factor in the determination of legal rights. In this regard, the body natural is legally superseded by another body, an invisible one that enjoys equal protection of the law, an inalienable one that is constituted as a civic soul.

Homer Adolph Plessy, born in 1862 to Rosalie Debergue and Adolphe Plessy, French-speaking Catholics of New Orleans, was described as "an octoroon," a person of one-eighth "African blood." Legally black, he could pass as white. In the Anglo-American zeal to establish a defensible color line in the ethnic gumbo that was creole Louisiana, many definitions of race were tried, including the test of one thirty-second "negro blood." All failed.^[24] On behalf of the Citizens Committee, a successor to the Comité des Citoyens, Homer Plessy volunteered his body natural, the blackness of which was invisible, to assert his right to equal protection of the law on behalf of his body politic.

The aim of Plessy and the Citizens Committee was to explode the idea of race in American law. In June 1892 the octoroon entered a "whites only" railway car in violation of the Louisiana Separate Car Law of 1890, which provided for "equal but separate" accommodations for people of the "white" and "colored" races. Plessy was arrested and charged as planned. Testing the law's definition of race, the Citizens Committee performed the juridical memory of "one blood," which existed not only in the dusty archives of the Cabildo—the old colonial building where the Louisiana Supreme Court heard the case—but also in the crowded, polyglot New Orleans streets outside. In a letter to Albion Tourgée, Plessy's attorney, Louis Martinet of the Citizens Committee described the historic effects of French law and custom as they manifested themselves in an increasingly segregationist American urbanscape of 1891: "There are the strangest white people you ever saw here. Walking up & down our principal thoroughfare—Canal Street—you would [be] surprised to have persons pointed out to you, some as white & others as colored, and if you were not informed you would be sure to pick out the white for colored & the colored for white."^[25]

[24] Virginia Dominguez, White by Definition: Social Classification in Creole Louisiana (New Brunswick, N.J.: Rutgers University Press, 1986), 56–89.

[25] Cited in Otto H. Olsen, ed., The Thin Disguise: Turning Point in Negro History. Plessy v. Ferguson—A Documentary Presentation, 1864–1896 (New York: Humanities Press, 1967), 56–57.

Although he did not cite article 59 of the Code Noir, Tourgée's brief developed a similar argument against racial segregation by recourse to the equal protection clause of the Fourteenth Amendment of the United States Constitution. He further attacked the Separate Car Law because it failed to define (because it could not) what it meant when it said "white" and "colored" races. Tourgée's brief asks: "Is not the question of race, scientifically considered, very often impossible of determination? Is not the question of race, legally considered, one impossible to be determined, in the absence of statutory definition?"^[26] Moreover, because it could not define what race meant, the law in effect deputized the railroad conductors of Louisiana, while punching tickets, to make their own judgments about what the legislators might possibly have been thinking of when they specified "white" and "colored" races. Despite the logic of Plessy's plea and the material fact of his body natural, the Supreme Court of the United States decided that there is a clear and important distinction between "white and colored races—a distinction which is founded in the color of the two races, and which must always exist as long as white men are distinguished from the other race by color."^[27] The court thereby legalized race relations for the United States in the twentieth century that were, as the old saying goes, somewhere to the right of Louis XIV.

The question of the status of race under the law continues to circulate within the larger conundrum of the body politic. Many of the issues that surfaced in Plessy a century ago have turned up again in current debates over affirmative action, race-based admissions to colleges and universities, and minority set-asides. I have argued here that their particular genealogy extends further back in time. They are the consequence of a particular history, one that cannot be adequately represented solely by the documents left behind because it also exists in the physical bodies, practices, and attitudes that it continues to produce.

As a regent of the University of California and chairman of the ballot initiative to end racial preferences under affirmative action, Ward Connerly recently explained his personal perspective on race and the law to the press. Although he is described as "a black man pushing to end the very policies meant to help black people," his story is in fact more complicated—and, I hope, by now more familiar. Growing up poor in Louisiana under Jim Crow, the orphaned Connerly was raised by his Choctaw Indian grandmother. His other grandmother was white. One

[26] Cited in ibid., 81.

[27] Plessy v. Ferguson , 163 U.S. 537.

grandfather was a white man of French descent, the other was black. The grandmother who raised him taught him to believe that "race just didn't matter"—a fair summary of Plessy's argument if she may be understood to have meant that race ought not to matter. It is not coincidental that on these two occasions—that of Plessy v. Ferguson and that of California Proposition 209—a national challenge to race as a legal category emerged among the descendants of a community first imagined under a law that gave to freed slaves and their descendants "the same rights, privileges, and immunities enjoyed by free-born persons" (Code Noir, article 59) and for a time permitted (and thereafter never wholly or effectively prevented) their intermarriage. Connerly itemizes his kinship ties with the clear intent of demonstrating that in the face of their unifying consanguinity—multiple, complex, ambiguous—the concept of separate races is unworkable under the law: "Who are my people? ... I can identify with blackness, I can identify with white, I can identify with Indian."^[28] Across three centuries, his body thus performs as bidden—one blood under one law.

[28] Donna St. George, "Black University Regent Fights Affirmative Action," New Orleans Times-Picayune , April 7, 1996, A-18.