5.2.3 The Edict of 1716: First Limitations to the French Freedom Principle

Things would soon change. In 1715, the Admiralty Court of Nantes heard the case of Pauline Villeneuve, a young slave who sued for her freedom against her master, as she refused to go back with him to the colonies.

The year after, a mémoire concerning the issue of black slaves in France was circulating at the French Ministry of Marine. Gérard Mellier (1674–1729), later mayor of Nantes and at the time a subdelegate of the intendant of Bretagne, seized this moment to respond to the mémoire, which questioned whether slaves coming to France ought to be declared free or not. Mellier clearly drafted his answers with the interests of Nantes, which was heavily dependent on the slave trade, in mind. First, he noted how Nantes already had a custom contrary to the freedom principle, as masters were allowed to keep their slaves in Nantes if they registered them with the Admiralty Court of Nantes (due to the lack of registration, Villeneuve was declared free). Mellier searched for positive law on the issue, but only came across the Edict of 1685 (the “Code Noir”), which dealt with colonial slaves. Lacking any substantive legislation on the situation of blacks coming to France, Mellier urged the government to take action. Evidently, Mellier suggested the King to choose for an option that would make an exception to the French freedom principle. To legitimise the exception, he used several arguments: the French slave traders were actually saving Africans from their overpopulated continent and instructing them in the catholic faith, it would be bad for the development of the colonies if rich proprietors had to take French servants with them instead of black slaves, and black slaves coming to France could learn a useful craft whilst they were here.

Alhough Mellier’s mĂ©moire was not completely copied by the government (they omitted some provisions on fugitive slaves), the crux of Mellier’s argument was retained in the first great piece of royal legislation, the Edict of 1716 “Concernant les esclaves Nègres des colonies”.⁵⁵ This change of heart in comparison with the confirmations of the freedom principle during Louis XIV’s reign has been linked with an emphasis on pursuing policies in accordance with France’s economic best interests during the regency period.⁵⁶ The edict allowed inhabitants and officers who were employed in the colonies (but only them) to take slaves with them, but only if this was done to instruct slaves in the catholic faith, or to teach them a craft (“pour leur apprendre en même temps quelque art and metier”).⁵⁷ Furthermore, the colonists needed to obtain a written permission (containing several details) from the relevant colonial governor or commander and had to register this permission both at the greffe of the court of the French colonial district where they resided and the Admiralty Court where they disembarked in France (within 8 days of arrival).⁵⁸ If these conditions were met, the slave did not acquire his liberty whilst in France and could be compelled to return to the colonies. If the procedural conditions were not met, or in case the slave married in France with the permission of his master, the slave was deemed to be free.⁵⁹ Furthermore, sales of slaves were explicitly prohibited in France, and the law also provided for an exception to the freedom principle for stowaways.⁶⁰ Finally, to ensure that the stay of nègres in France would be temporary, it was stated that colonists wishing to settle in France for good had one year, as from the moment of their decision to stay, to send their slaves back.

This law created the first explicit limitation on the French freedom principle, but it still had to be registered by the Parlements. And here, things went wrong. Although scholars still disagree as to which Parlements exactly registered the Edict of 1716, some things are certain: the edict was registered by the Atlantic Parlements of Bretagne, Bordeaux and Normandy, but not by the important Parlement of Paris.⁶² The reason for the Parisian refusal has been linked by Sue Peabody to the strong presence of Jansenist thought in the Parisian Parlement. This was a Catholic theological movement which was especially important in France, but eventually denounced by the Vatican in 1713 through the papal bull Ubigenitus. Apparently, Jansenist thinkers believed that this edict touched on a matter of religion. When a Jansenist scholar called Pierre Lemerre was consulted on the matter by Joly de Fleury, the avocat gĂ©nĂ©ral of the Parlement of Paris, he argued against registering this edict, on the basis that it would be in violation of an indigenous French tradition of liberty and freedom. The Parlement seems to have followed this advice and did not register the edict. As the presence of slaves cannot have been but marginal in Paris at this time, the royal authorities did not press the matter any further. ⁶³

5.2.3.1 Jean Boucaux V. Verdelin: A Judgment in Favour of Liberty

The Parisian refusal to register the Edict of 1716 only came to the fore when the first case on slavery was heard by the Admiralty of France: that of Jean Boucaux against his master Monsieur Verdelin.⁶⁴ The case was so important because it was well-documented and published in the causes cĂ©lèbres, provided ample ammunition for lawyers in subsequent cases, and because it set the Admiralty of France’s first precedent to free slaves that petitioned it.⁶⁵ The facts of the case were quite straightforward.

Mallet, Boucaux’s lawyer, opened his plea by referring to slavery as against nature but instituted by the laws of war, and by going over what he perceived as the history of slavery in France. Crediting Christianity for the decline of slavery, Mallet subsequently referred to many of the historic precedents to establish the French freedom principle. He skilfully connected the various instances to give the idea of one seamless story of the French freedom principle. The 1315 ordonnance of Louis X, an example from Toulouse, the history of the Siege of Metz and references to Bodin and Loisel were all used to establish the French freedom principle. The Edict of 1685 was acknowledged, but its functioning limited to the French colonies. When it came to the Edict of 1716, Mallet pointed at the many provisions which were not met: one could doubt whether “cooking” qualified as a mĂ©tier (thus contravening Art. 2); the permission which Verdelin received from the governor of Cap François lacked details such as the name, age and appearance of Boucaux (thus also contravening Art.

Tribard, Verdelin’s lawyer, disagreed. Interestingly, he did acknowledge the validity of the French freedom principle, seeing it as a prĂ©rogative Ă©minente of the French kingdom. However, he believed that the Edict of 1685 and the Edict of 1716 had created clear exceptions to the principle. The first claim is remarkable, as it argues in favour of some kind of “one imperial law” for both metropolitan and colonial France. Tribard analyzed various provisions of the Edict of 1685, showing how these were all meant to restrict the slave in his everyday life. According to Tribard, it was inconceivable that this law would not apply anymore if a black slave would cross from one part of the French realm to another part. “N’est ce pas toujours la même loi qui les fuit partout”, Mallet asked. Because of the Edict of 1685, the French freedom principle only applied to foreigners, but not Frenchman, arriving in France with their slaves. Tribard tried to bend the examples to his benefit, noting that they all preceded the Edict of 1685 and all dealt with foreigners coming to France with their slaves. Though this was the main point, he (rather unconvincingly) also asserted that the formalities of the Edict of 1716 were met. He ended with a public order argument, duly noting that a decision in favour of the slave might well cause uproar in the colonies.⁶⁸

Next, Le Clerc du Brillet, the procureur du roi in the Admiralty of France, offered his views and clearly sided with Boucaux. He also acknowledged the French freedom principle, made the same misconstruction of the ordonnance of 1315 as Mallet and added some other references to assert the freedom principle. He referred to the 1571 decision of the Parlement of Bordeaux, the case involving King Henry III, and Grotius’ views on the French freedom principle.

The Admiralty of France then made a decision, holding that Boucaux was free as from his entry in France (“libre de sa personne and biens dès son arrive en France”). They also awarded him back wages for all his previous work. Unfortunately, as with almost all French court cases up until the end of the Ancien RĂ©gime, we have no idea on which grounds the court made its judgment, as French courts usually did not provide their rationale.⁷⁰ It might be that the court considered the non-registration to be the most important matter, but the case might as well have been decided on the merits of the Edict of 1716. The case did not end there, as Verdelin succeeded in appealing the case to the Conseil du Roi.⁷¹ The Conseil decided that Boucaux remained free, but cancelled the award of back wages, banned Boucaux from Paris and prohibited him from returning to the colonies.⁷²

5.2.3.2 Tightening the Reins: The Declaration of 1738

Three months after this case, the king issued the Declaration of 1738 “Concernant les nègres esclaves des colonies” in order to modify the Edict of 1716. Quite possibly, the case of Jean Boucaux might have had something to do with it, as the preambles of the declaration certainly point to some of the procedural conditions that were breached by Verdelin. Equally, reference was made to the “bad habits” that slaves learned in France, and a fear of a mixture of French and black blood inspired the legislation as well.⁷³

In terms of content, the Declaration of 1738 kept the Edict of 1716 intact but tightened the conditions to bring black slaves to France. Procedurally speaking, newly arrived slaves also had to be registered at the admiralty of the place where they would live in France, besides the admiralty of the port of arrival.⁷⁴ Second, the freedom principle was limited even more. When the procedural conditions (registration, permission, etc.) were not met, the slave would not gain his freedom, but would be confiscated au profit du roi and sent back to the colonies.⁷⁵ The same punishment was meted out for masters who currently held slaves in France, but did not register them within three months of the publication of the declaration. These slaves also had to be sent back to the colonies within one year.⁷⁶ For the first time, the period during which colonial inhabitants could keep their slaves in France was restricted as well, as the period was capped at three years.⁷⁷ One exception was allowed: colonists planning to keep their slaves for a longer period in France could pay 1000 livres to the colonial authorities in advance.⁷⁸ Finally, the declaration opted for a blanket marriage ban for any esclave nègre in France and ordered that slaves could only be enfranchised through their master’s testament.⁷⁹

Registration was problematic again, as the Parlement of Paris, probably as the only Parlement this time, refused to register the declaration. The link between Paris’ refusal to register the law and the declaration’s references to slavery was made explicitly by later French authorities.⁸⁰ As before, all of the Parlements in regions with ties to the Atlantic slave trade did register the law.⁸¹ Despite Paris’ refusal, it did acknowledge the Declaration of 1738 in one respect, as records were kept of slaves who were brought to the capital.⁸² Registration or not, the Count of Maurepas, then Marine minister, did try to enforce the law in 1741, when the first period of three years was about to end. Administrative correspondence between the Count and the authorities of La Rochelle (within the ressort of the Parlement of Paris) shows how he wanted warnings to be issued to all those not in conformity with the law. Some local research proved that neglect of the law was widespread in La Rochelle, as almost all slaves there belonged to non-colonists, and almost no-one was planning to send the slaves back. Although the authorities did try to enforce the law every now and then in this early period, they soon neglected the issue, certainly so after the Count of Maurepas fell in disgrace in 1749.⁸³ Because of this neglect by the highest authorities, it is necessary to look to the situation “on the ground” in both Paris and the Atlantic port cities.

In the Admiralty of France, where the Edict of 1716 and Declaration of 1738 remained unregistered, a flurry of lawsuits asking for freedom started to pour in. Whilst the court did not hear any cases in the years 1740–1749, it heard 11 freedom suits in the next decade and 71 in the ensuing one.⁸⁴ In all of these cases, the slave won his freedom.⁸⁵Given the slaves were not confiscated au profit du roi, one can safely opine that the court must have been making its decisions on the basis of non-registration, and combined this with an acknowledgement of the French freedom principle.

Peabody opines that there might have been various reasons it took so long before slaves started using the Parisian courts to ask for their freedom: a slave would only go to court if he was unhappy in his circumstances; he would need to have access to legal representation and the means to afford it; and few of the lawyers themselves probably initially realized the opening that was created by Paris’ non-registration of the slave legislation.⁸⁶

When the number of slaves asking for their freedom strongly rose after 1760, there were various reasons: another highly published case in 1759, plus a 1762 ordinance of the Admiralty of France ordering blacks to be registered, probably increased attention to the issue of personal status. Likewise, Peabody believes that lawyers might have been tempted to take these cases because of the remuneration, and the experience and chance of winning they offered. Personal sympathy for the cause of the client could have come into play as well.⁸⁷ The pay argument is an interesting one, given that the one Parisian lawyer who defended 52 slaves did not seem to have been driven by abolitionist sentiment. In some cases, there is evidence of an informal network of free blacks helping slaves, but another source of remuneration could have been the fact that Parisian courts would sometimes grant back-wages to former slaves. However, as this was apparently quite rare, the arguments of legal experience and personal sympathy might have come more into play.⁸⁸

The slave’s quest for freedom did not necessarily end in the Admiralty of France. Of the 6 slaves who were declared free in this court in 1755, at least four where shipped back to the colonies by an arrêt of the Conseil du Roi.⁸⁹ Although no-one has traced the exact number of cases in which the King intervened, one scholar opines that these few instances were not isolated.⁹⁰ Moreover, the records show that in various cases, slaves were put under the protection of the Admiralty of France, which requested more information before it would deliver a judgment. As there was no final decision in several of these cases, one can presume that these slaves were sent back on special order of the King to the colonies.⁹¹

In one instance, the Parlement of Paris itself got the opportunity to assess a freedom request of a slave. Francisque, a slave from Pondicherry, India, had been declared free by the Admiralty of France. His master decided to appeal the case to the Parlement of Paris. The case is interesting because the mĂ©moire for the slave was published by his lawyer and showed some marked differences in the arguments being used vis-à-vis the case of Jean Boucaux. Whilst the second argument of Francisque’s lawyers was still based on the non-respect of the formalities of the Edict of 1716 and Declaration of 1738, the main argument used this time was that the provisions of these laws did not apply to people from the Indian subcontinent.⁹² The Indian subcontinent was seen as fertile and governed by legitimate monarchs, whereas Africans needed to be disciplined by the Europeans. And though it was true that the skin colour of Indians resembled those of blacks, surely their nose, lips, and hairs were different (“Qu’ils n’ont point le nez si Ă©crasĂ©, si aplati, les lèvres si Ă©paisses, si saillantes, en ce que, au lieu de ce duvet cotonneux & crêpĂ© qui couvre la tête des Africains, ils portent de longues et belles chevelures”). In short, Francisque resembled more of a European than an African and had to be declared free according to his lawyer.⁹³ Eventually, Parlement granted him his freedom, but it is unclear whether this was done on the basis of non-registration, or on the basis of Francisque’s Indian heritage.⁹⁴ The importance of this case, was that it showed that a more race based ideology had set in within the French elite by the second half of the eighteenth century. This has been linked to an increase in social stratification in the colonies, and the fact that the influence of colonists on the highest echelons of French metropolitan society was on the rise.⁹⁵

One should bear in mind that the quality of Peabody’s work on Paris tends to obscure one element: both the Edict of 1716 and the Declaration of 1738 were registered by the Parlement of Bordeaux and the Parlement of Bretagne, which included the principal port cities of Bordeaux and Nantes. In those cities, it does not seem that the soil was free.⁹⁶

More than one-third of the French slave voyages originated in Nantes, the city was economically dependent of the slave trade and the black presence was very much visible in contemporary reports.⁹⁷ One inhabitant of the city also wrote a mĂ©moire in 1738 advocating in favour of the position of Monsieur Verdelin, Jean Boucaux’s owner.⁹⁸ We also know of one case involving the slave Catherine Morgan in Nantes in 1746. After she was beaten by her master, she fled him, and the case eventually came before the Admiralty Court of Nantes. In this case, the Admiralty found that the slave had not been registered by her master upon arrival, and confiscated her au profit du roi. We lack a thorough analysis of the judgments of the Admiralty of Nantes, but given that the Declaration of 1738 was registered by the Parlement of Bretagne, there is no reason to assume that this was no standard judgment.⁹⁹ In fact, Dwain C. Pruitt, who wrote extensively on the situation in Nantes, went as far as to say that the Nantais did not embrace the “freedom principle”, but rather advocated for an “unfreedom principle” which protected the property rights of slave owners.¹⁰⁰

The scarce evidence from Bordeaux points in the same direction. Despite the lack of judgments, we do know that the number of slaves leaving Bordeaux surged in the immediate aftermath of the Declaration of 1738 but returned to normal levels soon after. Likewise, we know of cases of slaves who stayed for 12, 16, 24, 42 and even 49 years in Bordeaux. These are all flagrant breaches of the Declaration of 1738.¹⁰¹ All this should lead us to conclude that in France, two opposing forces were at work: freedom for those slaves that were able to petition the courts in Paris, but respect for the rights of proprietors elsewhere.

5.2.3.3 From Status to Race: The Police Des Noirs

The Change to Racial Bias

If the case of Francisque served as a first example to make distinctions not so much on the basis of status (slave vs. free) but on the basis of race (African vs. Europeans/Indians), more was to come. In the wake of the Seven Years War, the colonial planters increased their sway over the Marine Department. The two next Marine Ministers, the Duke of Choiseul and the Duke of Praslin, who respectively led the ministry in 1761–1766 and 1766–1770, were well connected to the colonial haute sociĂ©tĂ©. After the war was over, the Duke of Choiseul even drafted a circular letter ordering all black slaves to leave the kingdom. He rescinded his order several months after, probably swayed by the fact that the colonists themselves were not too happy to see black slaves return from France (as they believed those slaves to have become insolent by their stay in the metropolis).¹⁰²

This measure still made a distinction between free and enslaved blacks, but this was soon to change. Remarkably, the racial bias also became a live force in the Admiralty of France. In the wake of yet another case in which a slave was freed, Guillaume Poncet de la Grave (1725–1803), the new procureur du roi, started denouncing the presence of blacks in France.¹⁰³ Though he agreed that slaves coming before the court had to be freed in accordance with the law, he also believed that blacks committed many crimes and that they had turned Paris into a public market in which blacks were freely sold.¹⁰⁴ In any case, his lament was the occasion for the Admiral of France, the Duke of Penthièvre, to make an ordinance in 1762 ordering all blacks, both free and slave, to register themselves at the admiralty court, in order to get an assessment of the size of the “black problem”.¹⁰⁵ This blurring of the lines of status in favour of race was not limited to this instance. Choiseul’s successor, Praslin, made clear in administrative correspondence that it was his intention to limit the possibilities of the mixture of blood between black and white in France (“sang-mêlĂ©s”) and believed that there was a clear distinction between the race nègre and the race indienne.¹⁰⁶

In the short term though, not much changed. Slaves were still freed by the Admiralty of France, and the court even started to register unconditional manumissions of slaves by their masters at the end of the 1750s. This contradicted the Declaration of 1738, which only allowed manumissions by will.¹⁰⁷ One case drew most attention, namely that of the slave Roc in 1770, because the mĂ©moire of his lawyer, Henrion de Pansey, was published again. Substantively, the lawyer recounted the familiar arguments in favour of the slave, but also showed himself as an abolitionist. Next to this, he laid much stress on the necessity of the registration of the law (“MĂ©priser la formalitĂ© de l’enrĂ©gistrement, citer dans les tribunaux une loi qui n’en est point revêtue, c’est choquer la constitution”), and also seemed to be making the link between slavery and political domination.¹⁰⁸

All this occurred just when France was embroiled in a standoff between Louis XV and his Chancellor Maupeou on the one hand and the Parlement of Paris on the other hand. The direct cause of the conflict was a case in which the Parlement of Paris took sides with the Parlement of Bretagne regarding an unpopular provincial governor, but the king’s authority vis-à-vis the Parlements had been in decline for far longer. Maupeou eventually chose for an unprecedented move, abolishing the Parlement of Paris, and with it the Admiralty of France, between 1771 and 1774.¹⁰⁹

The Declaration of 1777

After Maupeou fell out of grace in 1774, the Parlement of Paris and the Admiralty of France were re-established. Soon after, the Admiralty came to a new standoff against measures taken by Versailles. So far, the Admiralty of France had always acquiesced with the occasional arrêts of the Conseil du Roi annulling one of its sentences, or with the explicit orders of the King to have a slave sent back to the colonies. The Admiralty of France now decided it did not admit this disrespect for its authority any longer. In a 1775 case, the court gave freedom to a slave called Jean-Louis and placed him under the protection of the court whilst they were deciding on his request for back wages. When the slave’s master came back with an ordre du Roi to arrest Jean-Louis and ship him back to the colonies notwithstanding this protection, the Admiralty of France had enough. His jailer had to appear before the court, and the Admiralty threatened him not to release Jean-Louis to his master or anyone else, under the threat of severe penalties.¹¹⁰ Nor was this the only instance when the two authorities came into conflict, as the same thing happened when the Admiralty wanted to free the slave of the well-connected Count of Choiseul-Gouffier. Likewise, in the published case of Pampy and Julienne v. Mèndes France, the Jewish slave-owner Mèndes France openly boasted that he would ensure that his freed slaves were arrested by the king.¹¹¹

Something had to be done. Whilst Pierre-Joseph De La Haye, the lieutenant gĂ©nĂ©ral of the Admiralty of France sent a request to then Minister of the Marine Antoine de Sartine, who was in office between 1774 and 1780, to change this state of affairs, Poncet de la Grave also sent a proposal to the minister with his own views on possible new legislation.¹¹² Though nothing came of the latter proposal, Sartine did intervene. In September 1776, lettres patentes asking for a suspension of all cases regarding the personal status (“état”) of blacks, pending new royal legislation, were published and registered in the Parlement of Paris.¹¹³ A legislative committee was created a few days after, and the law was drafted by August 1777. When Sartine presented it to the Conseil des dĂ©pêches in 1777, the gist of the law was clear. Sartine acknowledged the problems with the previous laws, which had not been registered by the Parlement of Paris. This had created a situation in which the Parisian Courts freed slaves on the basis of the French freedom principle (“L’inconvĂ©nient de l’opposition de la loi à la loi”, as Sartine called it). In addition, a race related argument played a role. Sartine believed that the presence of nègres (and other coloured people) was multiplying in the kingdom, and that the French blood and skin colour was slowly being altered because of this importation. The previous motives to bring blacks into the kingdom, namely to teach them a craft or to instruct them in the Catholic faith, had become less important by now. As a result, whilst acknowledging the status quo for blacks that were already in France, Sartine wanted to close the gates of France for new blacks trying to enter the country, both those that were free and enslaved. To counter any opposition from the Parlement of Paris, he had consulted with the Parlement’s president before and ensured that the law did not include references to libres or esclaves. Henceforth, black people were to be legally defined as domestiques noirs, whilst free became “qui ne sont point en service” and enslaved “en leur service”.¹¹⁴

When the declaration of 1777 pour la Police des noirs was presented at 9 August 1777, the goal was clear: France had to get rid of its black presence. When it came to “noir, mulâtre, ou autres gens de couleur” in someone’s service (the slaves), a blanket ban for their introduction in France was instituted.¹¹⁵ Likewise, people of colour that were personally free were banned from entering the kingdom.¹¹⁶ Only one concession towards the colonists was kept: they could take one slave to serve them whilst travelling to France, but upon arrival, the slaves had to be put in dĂ©pôts which were to be established at the major French port cities. They were kept and fed there (for which the master had to consign 1000 livres) and taken back to the colonies by the first available ship. Whilst they were in a dĂ©pôt on French soil, their personal status could not change.¹¹⁷ All people of colour currently in France, both the enslaved and the free, had to be registered at the seat of the admiralty court of their domicile within one month.¹¹⁸ With respect to the enslaved, the article seemed to imply that, after this delay of one month, people of colour could only remain in the service of their masters if they did so out of their own consent, hinting at manumission (“Voulons que, passĂ© le dĂ©lai, il ne puisse retenir à leur service lesdits noirs, que de leur consentement”).¹¹⁹ Abanime opines that this article was necessary to ensure the support of the Parlement de Paris.¹²⁰ All this was supplemented by two arrêts of the Conseil du Roi, which granted an extra delay of two months to masters wishing to send their slaves back to the colonies, and also ordered a blanket intermarriage ban between blancs and noirs.¹²¹ Sartine took special care to ensure the declaration’s registration, which happened in all the Parlements, including Paris, and the West Indian Conseils Souverains over the next months.¹²²

Paris Versus the Atlantic: The Rift Remains

At first, the declaration of 1777 seemed to be well respected, as 125 new declarations were made in Paris during the first month of the enforcement of the Police des Noirs.¹²³ Over time, Poncet de la Grave even swayed the minister of the Marine to start a cartouche system in Paris. All coloured people had to register with the Admiralty of France, after which they would receive a certificate. If blacks were found without bearing a certificate, they could be arrested.¹²⁴

This relative ease did not endure for long. In fact, despite the fact that one would expect there to be no more slaves in France (given no new slaves would have been allowed in, and all the slaves that lived in France before the declaration would have had to leave the country), this simply was not so. Starting from the spring of 1778, the Admiralty of France started entertaining petitions for freedom again. Between 1780 and 1789, they freed 43 slaves and registered 58 acts of manumission.¹²⁵ What is more, in a slave case from 1786, the Admiralty and an ordre du roi again came to loggerheads for the same reasons as in 1775. In Paris, things did not really change much then.¹²⁶

One of the reasons that Paris could entertain new freedom lawsuits undoubtedly had to do with the Atlantic port cities. Although all Parlements duly recorded the declaration of 1777, colonists in Nantes, Bordeaux and other ports in France were obviously not amused by the fact that they could no longer bring slaves with them or had to send their old slaves back. This opposition is visible in many ways. For example, certain provincial intendants were very reluctant to provide Versailles with information on blacks resident in their city, and had to be warned by special letters from the royal administration.¹²⁷ Likewise, the head of the Admiralty Court of Bordeaux sent a lengthy rebuffal on the quality of the declaration’s provisions to Minister Sartine, only to be ignored.¹²⁸ In the same way, Bordeaux had to be pressed by the royal authorities to establish a dĂ©pôt, after the authorities had initially said that they did not have a suitable place for this in the city.¹²⁹ Other evidence points to instances of fraud, non-registration and special requests for additional time to retain slaves.¹³⁰

The picture from Nantes is largely the same. First, the Parlement of Bretagne only registered the Declaration after it received clarification from Versailles concerning article 9 of the Declaration of 1777. They wanted confirmation that if a master did register his slave, the slave was not automatically freed after the delay of one month. Versailles allowed this (although this was contradicted by the language of the Arrêt du Conseil of 7 September 1777), which shows the duplicity of Sartine in trying to both please the Parlement of Paris and the slave trade interests.¹³¹ Despite this victory, Nantes’ opposition to the police des noirs quickly became clear. For example, the procureur du roi of the Nantes Admiralty Court was temporarily dismissed from his duties because he was working against the wishes of the central administration in enforcing the declaration of 1777. Although the official had asserted in the summer of 1777 that Nantes was home to 700 blacks, and that black people arrived almost daily, he seemed to be unable to find any of them when the new law came into effect. Likewise, when a group of officials were sent to the city on an inspection tour, they encountered resistance to enforcing the terms of the declaration of 1777 everywhere.¹³² It seems quite clear that in this context, slaves still entered the country every now and then.

The Breakdown of the Police Des Noirs

Although the law did have its effect in the short term, and a substantial number of slaves left France, it unravelled few years after it was made. The problems were many: it was difficult to find adequate dĂ©pôts, and paying for their upkeep proved to be an issue as well. Admiralties were loath to register slaves because the declaration of 1777 required them to do this for free (gratis). Furthermore, exceptions were quickly made to the dĂ©pôt regime. Humanitarian grounds might come into play, exemplified by a case in which a black slave serving as the nurse of the babies of a colonial proprietor and breastfeeding them could not be kept in the dĂ©pôt. Likewise, some slaveholders were highly connected and undoubtedly could fetch exceptions for themselves. Blacks who were already in the kingdom and belonged to a powerful lord could thus afford to ignore the declaration.¹³³

The subsequent Arrêts du Conseils also helped to obfuscate the issue. They contradicted previous clarifications to Nantes, and the arrêt that had started the cartouche system also mentioned that it had to be given to both free and enslaved (“s’ils sont en service”) blacks, though the latter category could technically speaking no longer exist in France.¹³⁴

Although the government realised that its efforts had failed, it did not try to make any other all-encompassing legislation on this issue during the remainder of the Ancien RĂ©gime. Although a new legislative committee proposed a second attempt to send all coloured people out of the kingdom, the Marine Minister was happy enough with prolonging the Parisian cartouche system in 1783.¹³⁵ Finally, in 1789, amidst revolutionary fervour in France, a new embargo disallowing travel of coloured people in between France and the colonies was established. The rationale was that it would be for the best if these persons did not take cognisance of the Revolutionary ideas taking France in their grip.¹³⁶

5.2.3.4 The Revolution: Disappearance, Return and Decline of Slavery in France

At the end of the Ancien RĂ©gime, some abolitionist thought had set in metropolitan France, though it remained more of an elite phenomenon in comparison with the mass English movement.¹³⁷ Attacks were made against the legitimacy of black slavery, though the idea of the intellectual inferiority of black people did remain in sway. In 1788, this led to the foundation of the SociĂ©tĂ© des Amis des Noirs, which tried to sway electors for the States General to include requests for the abolition of the French slave trade and slavery.¹³⁸ However, despite references to human liberty in the DĂ©claration des Droits de l’Homme et du Citoyen, slavery was not discussed initially.¹³⁹

Slavery finally got addressed in the period of the AssemblĂ©e Constituante. Abolitionism was not evident, because there were five interest groups at work. The first one was the SociĂ©tĂ© des Amis des Noirs. Second, there were the Commission des colons rĂ©sidant à Paris, alongside the SociĂ©tĂ© de correspondants des colons. Both defended the interests of the white planters, but the latter (better known as the Club Massiac) supported more autonomy for the colonies. Next came the DĂ©putĂ©s extraordinaires des manufactures et du commerce, defending the interests of the ports associated with the slave trade, who usually sided with the white colonists. Finally, there was a group of Colons AmĂ©ricains representing the interests of the libres gens de couleur, who wanted true equality between them and the white elite, though they failed at securing representation in the AssemblĂ©e.¹⁴⁰ Given these strong lobbies in favour of preserving the status quo for colonial slaves, the result reached was not surprising. In 1791, two decrees were made. The most socio-politically important one of 24 September 1791 decided that the status of colonial slaves had to be decided by the colonial assemblies themselves, thus essentially preserving slavery in the colonies. However, when it came to metropolitan France, the opposite solution was chosen. For the first time, the French freedom principle became unequivocally part of the written law, as the Decree of September 28, 1791 stated that: “Tout individu est libre aussitôt qu’il est entrĂ© en France”.¹⁴¹

Colonial slavery was eventually dealt with few years later, during the period of the Convention Nationale. Although the official report indicated that there was a general consensus to abolish slavery, this was certainly not the case. In fact, when slavery was abolished all over the French realm at 4 February 1794, this was a panic measure intended to get the black population on the side of the French as their colonies were invaded by England and Spain.¹⁴²

The question of the relationship between the French legal order and slavery did not end here.¹⁴³ NapolĂ©on re-established slavery in the French colonies in 1802 and 1803. At the same time, regulations concerning blacks coming to France were made. Inspired by the Declaration of 1777, the consuls made an arrêtĂ© in 1802, which was supplemented by a ministerial arrêtĂ© in 1807. Using the same terms as the Declaration of 1777 (thus avoiding references to slaves), the former ordered a blanket ban for all foreigners to brings noirs, mulâtres, ou autres gens de couleur into the country. However, free blacks and blacks coming with their masters (slaves) could enter the kingdom if they had the requisite permission. ¹⁴⁴ The second law went further and decided that any black individual still arriving in France had to be kept at a dĂ©pôt and sent back.¹⁴⁵ Strictly speaking, the law of 1791 was not abolished, but the French authorities at least did not seem keen to enforce it anymore.

During the period of the Restoration (1815–1830), the government started to revert back to a policy of making a distinction between libres de couleur and slaves. The slave trade had already been officially banned by both NapolĂ©on and Louis XVIII, but the government was not austere in enforcing this ban.¹⁴⁶ As concerns free blacks, an exception was made to this reinstated Police des Noirs-like regime. Henceforth, colonial administrators could make discretionary exceptions to the travel bans, in order for (rich) libres de couleur to be able to come to France.¹⁴⁷ As concerns slaves, the government continued the dĂ©pôt policy (70 slaves were in one between 1817 and 1819). However, they also decided that, if a master did not take care to place his slave in a dĂ©pôt and the slave subsequently fled, they could do nothing.¹⁴⁸ After some such cases, the government tried to impose a blanket ban on slaves coming to France in place once more.¹⁴⁹ In short, the Restoration showed a slow change of once more using status, namely free or enslaved, instead of race, namely white versus coloured, as a benchmark for policy.

Eventually, it took another revolution for the French freedom principle to be codified in law for good. After the July Revolution, the government started to effectively enforce its ban on the slave trade. But some slaves still came to France in the early years after the revolution.¹⁵⁰ The government decided to solidify the French freedom principle in law once and for all during one final cause cĂ©lèbre.

The case dealt with a former slave called Furcy. He had lived for most of his life as a slave on Île de la RĂ©union (known as Île Bourbon before 1793, and also between the English invasion of 1810 and the end of the restored Bourbon dynasty in 1848) and Île de France (Mauritius). After a conflict with his master, he tried to assert his freedom. His lawyers used two arguments, namely that his mother had once been on French soil and thus free and that he was of Indian descent, and that the laws of slavery were not applicable to him (an argument also used by Francisque). Given that some of the judges of the colonial courts in Île de la RĂ©union were well known to Furcy’s master, the court judged against him. When the English invaded Île de la RĂ©union, they freed Furcy, but given that the French authorities in Île Bourbon made clear that they would not protect Furcy from confiscation if he returned to that island, he took his case to the courts in metropolitan France. There, he succeeded in bringing the case before the French Cour de Cassation in 1835, which would eventually annul the judgment in 1840. The slave-owner’s widow and heirs followed up by taking the case to the Cour royale de Paris.¹⁵¹

The government did not wait for the outcome of the Affaire Furcy to take action. In 1836, it made a new ordonnance on French free soil, which restated the ideas of 1791. Henceforth, colonists wishing to take a slave to France had to enfranchise him or her before departure. If they did not do so, the slave was free as from the moment of him or her disembarking in France. Finally, all slaves currently residing in France were freed as well.¹⁵²

Whilst this would have been enough to ensure Furcy’s freedom, the Cour royale had the last word on slavery in France in 1843, five years before slavery was abolished in France’s colonies once more:

La Cour […] considĂ©rant que c’était une maxime de droit public en France que tout esclave qui touchait le sol français devenait libre […] dit que Furcy est nĂ© en Ă©tat de libertĂ© et d’ingĂ©nuitĂ©.

Furcy was free, and France’s soil has remained free ever since.¹⁵³