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Prosecuting Torture: The Strategic Ethics of Slavery in Pre-Revolutionary Saint-Domingue (Haiti)

  • Malick W. Ghachem
Extract

In the spring and summer of 1788, a master was prosecuted for the torture of two female slaves in the French Caribbean colony of Saint-Domingue (present-day Haiti). The exceptional nature of the case was immediately obvious to the participants who lived through it. The governor and intendant of Saint-Domingue—in essence, the colony's chief military and administrative officers, respectively—described it as a “unique opportunity to arrest, by means of a single example, the course of so many cruelties.” In 1788, the most recent victims of this long eighteenth-century history of cruelties included two slaves known only as Zabeth and Marie-Rose, ostensibly tortured because they were suspected of having administered poison to their master and fellow slaves. This article tells the story of the prosecution of the master who tortured them, Nicolas Lejeune.

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malick.ghachem@maine.edu
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1. Letter from François Barbé de Marbois, Intendant, and Alexandre de Vincent de Mazarade, Governor, to César-Henri de la Luzerne, Naval Minister, August 29, 1788, Archives nationales d'outre-mer (hereafter ANOM), Fonds ancien, Série F, F/3/90, fol. 266. With a few exceptions, all subsequent archival references in this essay are to manuscript volumes of the F/3/90 classification in the ANOM, located in Aix-en-Provence, France, and will be designated simply as F/3/90 followed by a folio number. Unless otherwise noted, all translations in this article are by the author.

2. The most extensive treatment of the Lejeune affair is Thibau, Jacques, Le temps de Saint-Domingue: L'esclavage et la Révolution française (Paris: J.-C. Lattès, 1989), 1793, an account embellished with various novelistic details that do not seem solidly grounded in the sources. Extended extracts from the F/3/90 manuscripts relating to the case are reproduced in Gisler, Antoine, L'esclavage aux Antilles françaises (XVIIe-XIXe siècles), rev. ed (Paris: Éditions Karthala, 1981), 117–27. Brief accounts can also be found in Fick, Carolyn E., The Making of Haiti: The Saint Domingue Revolution from Below (Knoxville, TN: University of Tennessee Press, 1990), 3738; idem, “L'Affaire LeJeune,” in Dictionnaire historique de la Révolution haïtienne, ed. Moïse, Claude (Montreal: Les Éditions du CIDIHCA, 2003), 2930; Pluchon, Pierre, Vaudou, sorciers, empoisonneurs: De Saint-Domingue à Haïti (Paris: Éditions Karthala, 1987), 199204; James, C.L.R., The Black Jacobins: Toussaint Louverture and the San Domingo Revolution, rev. ed. (New York: Random House, 1963), 2224; de Vaissière, Pierre, Saint-Domingue: La société et la vie créole sous l'ancien régime (1629–1789) (Paris: Perrin et Cie, 1909), 186–88; Dubois, Laurent, Avengers of the New World: The Story of the Haitian Revolution (Cambridge, MA: Harvard University Press, 2004), 56; and Colin [Joan] Dayan, , Haiti, History, and the Gods (Berkeley: University of California Press, 1995), 215–18. See also Le petit juge et le maître cruel ou la question de l'esclavage à Saint-Domingue à la veille de la Révolution (France Inter radio broadcast, March 2, 2008, rebroadcast July 6, 2008). I have not been able to access a copy of this program.

3. Lachance, Paul, “Repercussions of the Haitian Revolution in Louisiana,” in The Impact of the Haitian Revolution in the Atlantic World, ed. Geggus, David P. (Columbia: University of South Carolina Press, 2001), 209–30; Scott, Rebecca J., “The Atlantic World and the Road to Plessy v. Ferguson,” Journal of American History 94 (2007): 726–33; idem, Public Rights, Social Equality, and the Conceptual Roots of the Plessy Challenge,” Michigan Law Review 106 (2008): 784–85.

4. See Bodin, Jean, The Six Bookes of a Commonweale: A Fascimile reprint of the English translation of 1606 Corrected and supplemented in light of a new comparison with the French and Latin texts, trans. Knolles, Richard, ed. McRae, Kenneth Douglas (Cambridge, MA: Harvard University Press, 1962), 45 (rendering as an “ancient proverb” the phrase “[s]o many slaves, so many enemies in a man's house”) (emphasis in the original); and Pierre-Paul Tarin de Cussy, Governor, to Jean-Baptiste Colbert de Seignelay, Naval Minister, October 18, 1685, ANOM, Correspondance générale Saint-Domingue, C/9A/1, fol. 250 (“In our slaves we have domestic enemies.”).

5. Langbein, John H., Torture and the Law of Proof: Europe and England in the Ancien Régime, (1977; Chicago: University of Chicago Press, 2006), 3. Moreover, although torture never systematically established itself as an element of English criminal procedure, it played a role in England and other common law jurisdictions as well. Ibid., 73. Langbein, John H., “The Legal History of Torture,” in Torture: A Collection, ed. Levinson, Sanford (New York: Oxford University Press, 2004), 99100 (noting that although the system of judicial torture was never institutionalized in English law, English courts experimented with using torture to investigate crime during the Tudor–Stuart period).

6. Criminal procedure in late seventeenth- and eighteenth-century France was governed by a 1670 royal ordinance that provided for the use of judicial torture (“questions et tortures”) in the trial courts. See Ordonnance criminelle, tit. 19 (1670). This ordinance also applied to Saint-Domingue, albeit with complaints on the part of commentators and the colony's high courts that certain provisions were incompatible with local conditions and that trial judges were neglecting to conform their practices to the letter of the law. See “Ordonnance Criminelle,” August 1670, in Loix et constitutions des colonies françaises de l'Amérique sous le vent, ed. de Saint-Méry, Médéric-Louis-Elie Moreau (Paris: published by the author, 1784–90), 1:198 (hereafter cited as Loix et constitutions) (noting the colonial high courts’ adoption of the 1670 ordinance, “several provisions of which cannot suit the American islands”); Arrêt du Conseil du Port-au-Prince, June 17, 1779, ANOM, Fonds ancien, Série F, Code de Saint-Domingue, F/3/274, fol. 810 (calling for adherence to the 1670 ordinance). The colonial high courts sought to require trial judges to “interrogate” slave defendants within the first twenty-four hours of their imprisonment, in conformity with the 1670 ordinance, but such interrogation did not involve coercive methods. See Arrêt du Conseil du Port-au-Prince, March 7, 1777, ANOM, Fonds ancien, Série F, Code de Saint-Domingue, F/3/274, fols. 257–58. The appellate court records preserved in Moreau de Saint-Méry's collection give no indication one way or the other of the extent of the use of judicial torture of slaves. For further discussion, see text at notes 42–49 below.

7. For a contemporary variation on this linguistic impasse, see Bennoune, Karima, “Terror/Torture,” Berkeley Journal of International Law 26 (2008): 46 (arguing that the “terminological quagmire” of human rights jurisprudence “springs from the larger question of whether human rights law can be applied directly to non-governmental entities”).

8. On the legal historiography of torture, see the sources cited in note 11 below; and Langbein, “The Legal History of Torture.”

9. The closest connection I have seen drawn in this respect is Hunt, Lynn, Inventing Human Rights: A History (New York: W.W. Norton, 2007), 105–6, discussing Jacques-Pierre Brissot de Warville's career in the 1780s, first as a critic of torture, and then as founder (in 1788) of the French antislavery Society of the Friends of the Blacks. But Hunt suggests only a general association – not a direct connection – between these two aspects of the future revolutionary's pre-1789 activism. Judicial torture was abolished in two stages in eighteenth-century France. The so-called question préparatoire—torture for purposes of securing a suspect's confession—was abolished by royal decree in 1780. The question préalable—torture of a convict just prior to execution for purposes of securing the names of accomplices or information about other crimes—was provisionally abolished by the monarchy on May 1, 1788, then definitively by the National Assembly on October 8, 1789. Ibid., 76, 240 n.4. I have seen no indications that the abolition measures of either 1780 or 1788 were invoked in connection with the Lejeune prosecution, which preceded the 1788 abolition by roughly one month.

10. See, for example, Foucault, Michel, Discipline and Punish: The Birth of the Prison, trans. Sheridan, Alan (New York: Vintage Books, 1979), 39 (noting that torture “is of ancient origin: it goes back at least as far as the Inquisition . . . and probably to the torture of slaves”).

11. See Peters, Edward, Torture, exp. ed. (Philadelphia: University of Pennsylvania Press, 1996), 4 (“Torture began as a legal practice and has always had as its essence its public character, whether as an incident in judicial procedure or as a practice of state officials outside the judiciary proper.”); Silverman, Lisa, Tortured Subjects: Pain, Truth, and the Body in Early Modern France (Chicago: University of Chicago Press, 2001), x (“When I speak about torture, I am speaking about the legal practice of torture that permitted the infliction of pain by officers of the state on the bodies of suspects in capital cases”); Whitman, James Q., Harsh Justice: Criminal Punishment and the Widening Divide between American and Europe (New York: Oxford University Press, 2003), 20 (torture is “best understood in its technical sense, as harsh treatment intended to coerce persons to cooperate or confess”); Langbein, Torture and the Law of Proof, 3 (distinguishing between punishment and torture and defining the latter as “the use of physical coercion by officers of the state in order to gather evidence for judicial proceedings”). The focus on judicial torture per se seems unduly narrow, as Peters has acknowledged in the preface to the new edition of his work. See Peters, Torture, viii. It is no coincidence that all four of the works cited here, with the partial exception of Whitman's book, overlook the colonial law of anti-torture and thus are unable to account for the legal politics of torture in the context of Atlantic slavery.

12. Indeed, in the most influential account, by Langbein, this very functionalism accounts for the eventual demise and abolition of torture. According to Langbein, the Roman-canon law of proof—which required that defendants in capital cases be convicted on the strength either of a confession or the testimony of two witnesses—began to dissolve in Europe in the seventeenth century. In its place, there developed a more free-ranging judicial examination of the evidence, of the kind we associate today with the inquisitorial style of criminal procedure, thereby rendering torture obsolete. See Langbein, Torture and the Law of Proof, 11–12.

13. See text at notes 55–57, p.1001.

14. See Sala-Molins, Louis, Le Code Noir, ou le calvaire de Canaan (Paris: Presses Universitaires de France, 1987), viii (describing the Code Noir as an instrument for “the legitimation of a practice . . . of torture” and the regulation of “utilitarian genocide”); Colin [Joan] Dayan, , The Story of Cruel and Unusual (Cambridge, MA: MIT Press, 2007), 1011 (characterizing the Code Noir as part of a broader “language” of slave law that “offered protection and normalized abuse”); and Nesbitt, Nick, Universal Emancipation: The Haitian Revolution and the Radical Enlightenment (Charlottesville: University of Virginia Press, 2008), 30 (“New World slave owners . . . quite actively tortured and bestialized as a colonial power whose actions were defended by the state and rule of law that promulgated the Code Noir.”).

15. See Peters, Torture, 103–87; Hathaway, Oona A., “The Promise and Limits of the International Law of Torture,” in Torture: A Collection, ed. Levinson, Sanford (New York: Oxford University Press, 2004), 201–4.

16. Cf. Levinson, Sanford, “Slavery and the Phenomenology of Torture,” Social Research 74 (2007): 150 (“[T]he most fundamental legal and moral issues raised by slavery and torture are astonishingly similar. Both ultimately raise issues of ‘sovereignty’—that is, the possession of absolute unconstrained power—and, therefore, the challenge to ‘sovereignty’ that is implicit in any liberal notion of limited government.”).

17. The report seems to have been prepared in connection with the possibility of further administrative or judicial proceedings in France.

18. For the earlier eighteenth-century background, see Ghachem, Malick W., The Old Regime and the Haitian Revolution (New York: Cambridge University Press, 2012), chaps. 1 and 3.

19. That poison had such an effect is confirmed, inter alia, by a pair of earlier cases dating to 1770 and 1771. See ibid., chap. 3 (discussing the cases of Cassarouy and Dessources).

20. Letter from François Barbé de Marbois, Intendant, and Alexandre de Vincent de Mazarade, Governor, to the members of the Cap Français Chamber of Agriculture, April 17, 1788, ANOM, F/3/90, fol. 208.

21. Because it could be placed in food or drink and then left to await consumption, poison had the additional terrifying aspect of being at least partly self-administered. Although poison played a role of special importance in the Caribbean colonies, it was feared by planters throughout the Americas. See James, The Black Jacobins, 16–17; and Genovese, Eugene, Roll, Jordan, Roll: The World the Slaves Made (New York: Vintage, 1976), 616. For a study of the trial of slaves for poisoning in early nineteenth-century Martinique, see Savage, John, “Between Colonial Fact and French Law: Slave Poisoners and the Provostial Court in Restoration-Era Martinique,” French Historical Studies 29 (2006): 565–94.

22. Pluchon locates the first official reference to poison as a crime punishable by death in Saint-Domingue in a June 1723 decision of the high court of Le Cap. Pluchon, Vaudou, sorciers, empoisonneurs, 152.

23. See Fick, The Making of Haiti, 59–73; and Pluchon, Vaudou, sorciers, empoisonneurs, 165 ff.

24. Code Noir, art. 38 (1685). Enforcement of these provisions depended heavily upon the fugitive slave police, in which free people of color played a leading role.

25. Saint-Domingue was divided for administrative purposes into northern, western, and southern provinces, the “western” province constituting essentially the middle or central region of the colony.

26. On Macandalisme and maroon resistance in Saint-Domingue, see Fick, The Making of Haiti, 59–73.

27. Yvan Debbasch, “Au coeur du ‘gouvernement des esclaves’: La souverainété domestique aux Antilles françaises (XVIIe – XVIIIe siècles),” Revue française d'histoire d'outre-mer 72 (1985): 31–54 (emphasizing the relationship between poisoning and torture); and Pluchon, Vaudou, sorciers, empoisonneurs, 196–97.

28. Code Noir, art. 26 (1685). On the drafting of the Code Noir, see especially Vernon Valentine Palmer, “The Origins and Authors of the Code Noir,” Louisiana Law Review 56 (1995): 363–407.

29. Code Noir, art. 42 (1685) (“Only masters shall be permitted, when they believe their slaves so deserve, to chain them and beat them with canes or rope. We forbid masters from applying torture to their slaves or from inflicting any kind of mutilation, on pain of confiscation of the slaves and special prosecution of the masters.”) (emphasis added). See also Ordonnance du Roi, December 30, 1712, in Loix et Constitutions, 2:337. The heading for this 1712 ordinance in Moreau de Saint-Méry's compilation is worth quoting in full: “Ordinance of the King that prohibits all of his subjects in the American islands from applying torture [la Question] to their slaves by their private authority, under whatever pretext.” The ordinance described the King's distress at being informed that planters in the French Caribbean colonies were using torture in violation of the Code Noir and “with unheard cruelty, even among the most barbarous nations, such that [their] slaves were unable for long periods to render any service.” Meanwhile, other slaves, “intimidated by the example,” were led to desert the plantations for fear of being subjected to “such inhumanity,” all of which caused “great disorder” in the colonies. The ordinance established a fine of 500 livres per violation and called upon slaves who were suspected of committing crimes to be prosecuted by the court system. Ibid.

30. Code Noir, art. 43 (1685).

31. In the course of my research I have encountered only the following examples of masters being prosecuted for violations of articles 26, 42, and 43 of the Code Noir: Arrêt du Conseil du Petit Goâve, January 3, 1724, ANOM, F/3/90, fols. 123–25 (convicting a master of burning the feet and legs of a female slave who died from the wounds; the punishment included a fine and three months’ imprisonment); Arrêt du Conseil de Léogane, September 2, 1726, ANOM, F/3/90, fol. 187 (condemning a slave driver to three years of galley labor for killing a slave “in a fit of anger”); Arrêt du Conseil du Port-au-Prince, March 11, 1780, ANOM, F/3/90, fol. 51 (condemning a colonist to be whipped, marked, and sent to the galleys in perpetuity for having “coldly and unnecessarily” slit the throats of two fugitive slaves arrested by him); and the 1788 Maguero case discussed on pages 1002–1003. As early as August 28, 1673, whites in the French islands were freed of any liability for killing fugitive slaves. See Ordonnance du Gouverneur-Général des Isles, August 28, 1673, in Loix et Constitutions, 1:268–69. The March 11, 1780 case was a rare exception to that general rule.

32. Ordonnance du Roi, concernant les Procureurs et Economes-gérans des habitations situées aux Isles sous le Vent, December 17, 1784, in Loix et Constitutions, 6:656–57, 660, 662, 666–67.

33. See Ghachem, The Old Regime and the Haitian Revolution, chap. 3. The 1785 law provided an opportunity to appeal the findings of the independent commissioners responsible for investigating violations of plantation management practices. The 1784 regulations were also revised to emphasize the duties of “respect and obedience” that all slaves owed not only to masters but also to agents and overseers, who were “enjoined” to inflict such punishments as the Code Noir and the new law directed for cases of “insubordination, neglect, relaxation of discipline, and disobedience.” Finally, and perhaps most tellingly, the King effectively pardoned all crimes committed against slaves that had occurred prior to the registration and publication of the new regulations and for which legal proceedings were not yet commenced. Ordonnance du Roi, December 23, 1785, in Loix et Constitutions, 6:927–28.

34. Debien, Gabriel, Les colons de Saint-Domingue et la Révolution: Essai sur le club Massiac (Août 1789 – Août 1792) (Paris: Armand Colin, 1953), 3032.

35. Cf. Haudrère, Philippe, “Code Noir,” in Dictionnaire de l'ancien régime, ed. Bély, Lucien (Paris: Presses Universitaires de France, 1996), 274 (claiming that the 1784 ordinance was issued “at the demand of the abolitionists”). Citing no evidence for this proposition, Haudrère seems to have confused the reaction to the new law with the actual circumstances behind its promulgation.

36. Debien, Les colons de Saint-Domingue et la Révolution, 53; and Blackburn, Robin, The Overthrow of Colonial Slavery, 1776–1848 (London: Verso Books, 1988), 166. The suspension lasted until June 1787. The court in Le Cap was replaced by an elected Chamber of Agriculture that served as the northern colonists’ only representative institution until the convocation of the Estates General (announced in May 1788 and set for May 1789).

37. For the colonists’ grievances against “administrative despotism,” see Tarrade, Jean, “Les colonies et les principes de 1789: les Assemblées révolutionnaires face au problème de l'esclavage,” in La Révolution française et les colonies, ed. Tarrade, Jean (Paris: Librairie l'Harmattan, pour la Société française d'histoire d'outre-mer, 1989), 1113; and Geggus, David Patrick, “Saint-Domingue on the Eve of Revolution,” in The World of the Haitian Revolution, ed. Geggus, David Patrick and Fiering, Norman (Bloomington: University of Indiana Press, 2009), 13.

38. See Ghachem, The Old Regime and the Haitian Revolution, chap. 1.

39. On the medieval law background, see Chesnais, Robert, introduction to Le Code Noir, ed. Chesnais, Robert (Paris: L'esprit frappeur, 1998), 11. On the monarchy's inquisitorial monopoly, see Foucault, Discipline and Punish, 35. Foucault is here discussing Old Regime French criminal procedure, including the use of judicial torture, but his point also (and somewhat paradoxically) illuminates the ethos of the Code Noir's ban on the torture of slaves by masters.

40. See Gene E. Ogle, “Policing Saint Domingue: Race, Violence, and Honor an in Old Regime Colony,” (PhD Diss., University of Pennsylvania, 2003), 111. I thank Errol Meidinger for his thoughts on this subject.

41. See note 29, p. 995; and Ghachem, The Old Regime and the Haitian Revolution, chap. 3.

42. I thank Kenworthey Bilz and Andrew Koppelman for their questions on this point.

43. “Projet de règlement de Mrs. de Blenac et Patoulet sur les Esclaves des Isles de l'Amérique,” May 20, 1682, ANOM, F/3/90, fol. 5.

44. Cases involving the death penalty were subject to mandatory appeal to the Conseils Supérieurs. Ogle, “Policing Saint Domingue,” 340. Poisoning was a capital offense, and it therefore seems significant that no appellate decisions reference the torture of slaves by trial courts. Ogle's thesis alludes to the role of torture in Old Regime French criminal procedure but does not cite any specific instances of the judicial torture of slaves in eighteenth-century Saint-Domingue. On the periodic destruction of slave criminal trial records pursuant to royal order during the first half of the eighteenth century, see ibid., 92, 308; and Pluchon, Vaudou, sorciers, empoisonneurs, 152.

45. The master used torture to elicit an initial confession from a slave whom he suspected of poisoning a fellow slave. At trial, the defendant retracted his confession as having been made under duress, leading the judge to apply two rounds of la question before obtaining the desired admission. Pluchon, Vaudou, sorciers, empoisonneurs, 160. In a 1712 letter to the Naval Minister, the Intendant of the Windward Islands, Vaucresson, used the term “la question” to describe the “private” torture of slaves by masters. Ibid., 207.

46. This account attributed the apprehension of Macandal to the threatened use of torture against a female slave (herself suspect of using poison) in December 1757. Relation d'une conspiration tramée par les nègres dans l’îsle de S. Domingue (n.p., 1758), 3–4, 6–7. See also Pluchon, Vaudou, sorciers, empoisonneurs, 170–76, 238.

47. In the aftermath of the August 1791 slave revolt, slaves believed to have participated in the uprising were tortured on the wheel by officials in Cap Français, for what seem to have been punitive as much as investigative reasons. See Dubois, Avengers of the New World, 96.

48. Pluchon, Vaudou, sorciers, empoisonneurs, 196–97.

49. Ibid., 162. The difficulty of proving poison cases against slaves prompted a number of extraordinary suggestions for the reform of colonial criminal justice during the eighteenth century. In 1726, the Conseil Supérieur of Martinique proposed a kind of itinerant, emergency form of justice, whereby magistrates would travel immediately to a plantation upon being informed of a poisoning incident. A rapid, on-site criminal trial and sentencing would ensue. In 1749, the administrators of the Windward Islands began requiring autopsies of suspected poison victims, in an apparent effort to introduce some scientific rigor into an otherwise arbitrary system of proof. In 1763, the intendant of Saint-Domingue proposed to the Naval Minister that suspected poisoners be deported to France in light of the difficulty of adducing adequate evidence to convict them. Despite such attempted reforms, rumors and presumptions continued to dominate the accusation and conviction of slaves in poison cases, which were disposed of by masters and their agents at the “private” level of the plantation. Ibid., 153–54, 196.

50. See Langbein, Torture and the Law of Proof, 3; and note 11 above.

51. See note 29, p. 995. In so doing, the Code Noir evokes the anthropological analysis of Michel Foucault, who argued that torture in Old Regime Europe “functioned in that strange economy in which the ritual that produced the truth went side by side with the ritual that imposed the punishment.” In this interpretation, “the regulated pain involved in judicial torture was a means both of punishment and of investigation.” Foucault, Discipline and Punish, 42.

52. Rey, Alain, ed., Dictionnaire historique de la langue française (Paris: Le Robert, 1998), 3: 3857.

53. Ibid.

54. Ibid.

55. Code Noir, art. 30 (1685). Article 31, for its part, prohibited slaves from becoming parties to civil or criminal matters. Only a master could represent the slave's interest in civil matters. Similarly, only the master could pursue criminal remedies to compensate for “outrages and excesses” committed against his slaves. Ibid., art. 31.

56. See Ghachem, The Old Regime and the Haitian Revolution, chap. 3 (discussing the 1775 case of a slave named Thomas).

57. Fick, Making of Haiti, 283 n.108. Cf. Jefferson, Thomas, “Notes on the State of Virginia,” in Thomas Jefferson: Writings, ed. Peterson, Merrill (New York: Library of America, 1984), 268 (“With the Romans, the regular method of taking the evidence of their slaves was under torture. Here it has been thought better never to resort to their evidence.”). As Langbein has demonstrated, torture was necessary to continental criminal procedure because the Roman-canon law of proof required either a confession or two witnesses in cases involving blood sanctions (that is, execution or mutilation). Langbein, Torture and the Law of Proof, 12. As explained above, however, the law of evidence alone seems unable to explain the status of torture in the Atlantic colonial context.

58. The administrators allowed other charges made against Maguero, including the suggestion that the number of slaves on his plantation had somehow “diminished” over time from twenty-five to three, to go unexplored. Letter from François Barbé de Marbois, Intendant, and Alexandre de Vincent de Mazarade, Governor, to César-Henri de la Luzerne, Naval Minister, March 25, 1788, ANOM, Fonds ancien, Série C Colonies, Correspondance générale Saint-Domingue, C/9A/160, fols. 78–79.

59. Ibid., fol. 79.

60. Buffon's full name is not revealed in the standard biographical references.

61. Relying on Thibau, Joan Dayan's account of the case notes that Marie-Rose was a slave from the Congo and Zabeth an Ibo from the Niger delta. Dayan, Haiti, History, and the Gods, 321 n.73. I have no reason to question this information but have not seen it confirmed in the primary sources, and Thibau's narrative makes somewhat imaginative use of secondary background literature on the slave trade in seeking to reconstruct the African background of both women.

62. Letter from Buffon, Sénéchal, and Jean-Baptiste Suarez d'Almeida, Royal Prosecutor, to François Barbé de Marbois, Intendant, and Alexandre de Vincent de Mazarade, Governor, March 13, 1788, ANOM, F/3/90, fol. 200.

63. Ibid.

64. It seems likely, but is not certain, that this is Jean-Baptiste Louis-Augustin Couët de Montarand, who owned four coffee plantations and two houses in Cap Français, and eventually served as a judge on the Conseil Supérieur of Le Cap. See Généalogie et Histoire de la Caraïbe 30 (1999): 399 http://www.ghcaraibe.org/bul/ghc030/p0399.html (May 7, 2010).

65. Letter from Buffon and Almeida to Marbois and Vincent, March 13, 1788, fol. 200.

66. Letter from François Barbé de Marbois, Intendant, and Alexandre de Vincent de Mazarade, Governor, to the Commandants and officiers d'administration, March 27, 1788, ANOM, F/3/90, fol. 198; Letter from Vincent and Marbois to La Luzerne, August 29, 1788, fol. 263.

67. Letter from Buffon and Almeida to Marbois and Vincent, March 13, 1788, fol. 200.

68. The implication here is that the administrators or their subordinates, rather than the colonial judicial system, had been responsible for taking action against Lejeune in these earlier cases.

69. The slaves judged responsible for killing the senior Lejeune's nephew were all subsequently executed on the wheel.

70. Letter from Buffon and Almeida to Marbois and Vincent, March 13, 1788, fols. 200–201.

71. Ibid., fol. 201.

72. Ibid.

73. Letter from Residents of the quartier of Plaisance to François Barbé de Marbois, Intendant, and Alexandre de Vincent de Mazarade, Governor, March 23, 1788, ANOM, F/3/90, fol. 197.

74. On the colonists’ association of poison with sorcery and vodou, see Pluchon, Vaudou, sorciers, empoisonneurs, 169–72; Bell, Madison Smartt, Toussaint Louverture: A Biography (New York: Pantheon, 2007), 68.

75. On the use of torture against witches in early modern England and Scotland, see Hunt, Inventing Human Rights, 77. I thank Susan Slymovics for suggesting this line of comparison.

76. Statement (mémoire) of Nicolas Lejeune to François Barbé de Marbois, Intendant, and Alexandre de Vincent de Mazarade, Governor, March 27, 1788, ANOM, F/3/90, fols. 202–03 bis. A mémoire has the sense of a party's statement of a legal case. A mémoire judiciaire is what we would call a legal brief. This statement was signed by Nicolas's father, Lejeune père, “in the absence of his son.” Ibid., fol. 205.

77. Charles-Louis de Secondat, baron de Montesquieu, The Spirit of the Laws, ed. and trans. Cohler, Anne M., Miller, Basia Carolyn, and Stone, Harold Samuel (Cambridge, UK: Cambridge University Press, 1989), 251. I have modified the translation of this passage to more accurately reflect the original.

78. Statement of Nicolas Lejeune to Vincent and Marbois, March 27, 1788, fol. 204.

79. Ibid., fols. 204–5. Lejeune's argument about the need for absolute power over the slave can be compared to the famous 1830 opinion of the North Carolina Supreme Court in State v. Mann, 2 Devereux (13 N.C.) 263 (1830). On State v. Mann, which held that masters could not be prosecuted for assaults on their slaves, see Tushnet, Mark, Slave Law in the American South: State v. Mann in History and Literature (Lawrence: University of Kansas Press, 2003).

80. Montesquieu, Spirit of the Laws, 502.

81. Statement of Nicolas Lejeune to Vincent and Marbois, March 27, 1788, fol. 205. A marginal note at the end of Lejeune's statement reads: “In 1754, at the time of Mr. le Courtin, it was a veritable slaughterhouse (boucherie). From morning til evening executions were carried out.” Ibid. It is not entirely clear that Lejeune himself inserted this final note; it is possible that the remark was added by one of the administrators who received the mémoire, but there is nothing in the text itself to suggest that the addition was not by Lejeune. “Mr. Le Courtin” was probably Sebastien Jacques Courtin, who served during the period of the Macandal affair in various positions including royal prosecutor before the high court in Cap Français, notary general, and sénéchal (trial judge). The investigation and trial of Macandal and his accomplices were presided over by Courtin as judge. Pluchon, Vaudou, sorciers, empoisonneurs, 174–75, 208.

82. Letter from Vincent and Marbois to the Commandants and officiers d'administration, March 27, 1788, fol. 198.

83. In a 1774 case involving a white plantation manager accused of ordering a slave to assault a white peddler in the marketplace of Petite Rivière, the plantation manager failed to appear for a second round of questioning when required by the trial judge. As Ogle writes, the plantation manager “had taken what was often a quite effective route to avoid the law's rigor in Old Regime France and its colonies—he ran away.” Ogle, “Policing Saint Domingue,” 331.

84. This March 18, 1788 letter is reproduced in full in de Beaucaron, Charles Edmond Regnault, Souvenirs de famille; voyages, agriculture, précédés d'une Causerie sur le passé (Paris: Plon-Nourrit et cie, 1912), 99100, where de la Mardelle is incorrectly identified as La Luzerne's successor as Governor-General of Saint-Domingue. I thank Rebecca Scott for cueing me to this correspondence. On de la Mardelle's career in Saint-Domingue, see Tournerie, Jean-André, “Un projet d’école royale des colonies en Touraine au XVIII siècle,” Annales de Bretagne et des pays de l'Ouest 99, no.1 (1992): 3360.

85. Letter from Vincent and Marbois to the Commandants and officiers d'administration, March 27, 1788.

86. Statement of Nicolas Lejeune to Vincent and Marbois, March 27, 1788, fol. 204.

87. Letter from François Barbé de Marbois, Intendant, and Alexandre de Vincent de Mazarade, Governor, to the officiers of the Sénéchaussée of Cap Français, March 27, 1788, ANOM, F/3/90, fol. 207.

88. Letter from Pierre-Joseph de Laborie, Secretary of the Cap Français Chamber of Agriculture, to François Barbé de Marbois, Intendant, and Alexandre de Vincent de Mazarade, Governor, April 4, 1788, ANOM, F/3/90, fol. 199.

89. Ibid.

90. The number of signatories is given in Gisler, L'esclavage aux Antilles françaises, 118.

91. Letter from residents of the northern part to François Barbé de Marbois, Intendant, and Alexandre de Vincent de Mazarade, Governor, April 10, 1788, ANOM, F/3/90, fol. 209.

92. Blackburn, Robin, The Making of New World Slavery: From the Baroque to the Modern, 1492–1800 (New York: Verso, 1997), 298.

93. Letter from residents of the northern part to Vincent and Marbois, April 10, 1788, fol. 209.

94. See Ghachem, The Old Regime and the Haitian Revolution, chap. 3.

95. Letter from residents of the northern part to Vincent and Marbois, April 10, 1788, fol. 209.

96. Letter from Marbois and Vincent to the Chamber of Agriculture, April 17, 1788, fol. 208.

97. For more on the relationship between the “epidemic of poisoning” and the rule of law in Saint-Domingue, see Debbasch, “Au coeur du ‘gouvernement des esclaves’,” 38.

98. If any uncertainty existed about the propriety of this policy, the administrators concluded, the monarchy's plantation management regulations of December 1785 would suffice to remove all doubts. Letter from Vincent and Marbois to the Chamber of Agriculture, April 17, 1788, fol. 208. The final line of the manuscript is partly illegible here, but it can be established that Vincent and Marbois were referring to one of the articles in Title 11 of the December 23, 1785 royal ordinance. On the threat that planter brutality posed to colonial stability, see also the March 18, 1788 letter from de la Mardelle to Couët de Montarand, published in Regnault de Beaucaron, Souvenirs de famille, 99–100.

99. Minutes of the Clerk of the Sénéchaussée of Cap Français, May 21, 1788, ANOM, F/3/90, fol. 250. The technical term for such a petition was a requête d'intervention, so named because it constituted a request on the part of a third party to be received judicially on behalf of an absent plaintiff or defendant. At the end of his petition Lejeune père cited a criminal law treatise by the jurist Daniel Jousse for the proposition that a parent or other close relative of a defendant held in contempt of the law had a right to be received judicially on the defendant's behalf. The treatise is probably Jousse, Daniel, Traité de la justice criminelle de France: où l'on examine tout ce qui concerne les crimes & les peines en général & en particulier (Paris: Debure Père, 1771).

100. Lejeune père's first name is not given in any of the sources, primary or secondary, bearing on this case.

101. This theme will be particularly familiar to students of the United States antebellum law of slavery. See Tushnet, Slave Law in the American South, 50–52.

102. Minutes of the Clerk of the Sénéchaussée, May 21, 1788, fol. 234.

103. Ibid., fol. 244.

104. On the racialization of honor in Saint-Domingue, see Ogle, “Policing Saint Domingue.”

105. Minutes of the Clerk of the Sénéchaussée, May 21, 1788, fol. 213.

106. Ibid., fol. 217 (underlined in the original).

107. Ibid.

108. Lejeune père does not identify the two provisions by article number, but it is clear from his discussion that he is referencing articles 26 and 42.

109. Minutes of the Clerk of the Sénéchaussée, May 21, 1788, fol. 219 (underlined in the original).

110. Ibid.

111. Ibid., fols. 219–20.

112. Ibid., fol. 220.

113. Ibid., fols. 222–25. As Lejeune père described it, the high court in Le Cap, by deciding (on appeal) to nullify the proceedings against the defendant in this case, had left no room for a similar “uprising” of slaves against their masters until the post-1785 period. On the Cassarouy case, see Ghachem, The Old Regime and the Haitian Revolution, chap. 3.

114. Minutes of the Clerk of the Sénéchaussée, May 21, 1788, fols. 213–15.

115. Ibid., fols. 222–23, 226.

116. Ibid., fols. 227–34. Before accusing Montarand of the murder of Zabeth and Marie-Rose, Lejeune père sought to minimize the extent of their burns. Zabeth and Marie-Rose, he wrote, had attributed these burns to Nicolas and Magre “because their master was accusing them of being Macandals.” Ibid., fol. 230.

117. Ibid., fol. 250.

118. Montarand alludes to the “grounds for recusal [that are] authorized by the ordinance.” Ibid., fol. 251. It is unclear whether this refers to the December 1785 plantation management ordinance or to another law.

119. Ibid., fol. 251.

120. Letter from Vincent and Marbois to La Luzerne, August 29, 1788, fol. 265; James, The Black Jacobins, 23.

121. James, The Black Jacobins, 23; and de Saint-Méry, Médéric Louis-Élie Moreau, Description topographique, physique, civile, politique, et historique de la partie française de l'isle Saint-Domingue (Philadelphia: Dupont, 1797–1798), 1:103.

122. Letter from Lejeune père to François Barbé de Marbois, Intendant, and Alexandre de Vincent de Mazarade, Governor, June 26, 1788, ANOM, F/3/90, fol. 255. The precise phrase Lejeune père uses here is “l'accusé coupable.” In their March 27, 1788 directive to the commanders and administrative officers of the colony, Vincent and Marbois had described Nicolas as “guilty of this atrocity.” Letter from Vincent and Marbois to the commandants and officiers d'administration, March 27, 1788, fol. 198. See also Letter from Vincent and Marbois to the officiers of the Sénéchaussée of Cap Français, March 27, 1788, fol. 207 (describing Nicolas as “not the only guilty one”).

123. Letter from Vincent and Marbois to La Luzerne, August 29, 1788, fol. 264.

124. James, The Black Jacobins, 23.

125. Letter from Vincent and Marbois to La Luzerne, August 29, 1788, fols. 264–265. The report is somewhat ambiguous on the headcount issue, indicating that seven to eight judges were “favorable” but without specifying the position to which they were sympathetic. I have imputed that Vincent and Marbois meant “favorable to the prosecution's case” based on a subsequent passage referring to the likelihood that the intendant would have been the eighth and decisive vote in favor of Nicolas's conviction.

126. Ibid., fol. 264. According to Vincent and Marbois, this orchestrated opposition accounted, in the first instance, for the failure of the local authorities to arrange for his capture following the taking of the slaves’ deposition. The administrators also professed “profound sorrow” at having to then stand by and watch their own subordinates frustrate “the efforts of justice and of the administration.” Ibid.

127. Ibid., fol. 265. The report's voluminous attachments and point-by-point refutation of Lejeune père's protestations suggest that a further appeal to the Conseil d’État in Versailles, or perhaps even a post-appellate ministerial fix, might still have been within reach.

128. Ibid., fol. 266.

129. Code Noir, art. 43 (1685).

130. Letter from Vincent and Marbois to La Luzerne, August 29, 1788, fol. 258.

131. Ibid.

132. Ibid., fols. 261–62.

133. Ibid., fols. 262–63.

134. Ibid., fol. 266.

135. Ibid., fols. 261–62.

136. Ibid., fols. 264–65.

137. Ibid., fol. 266.

138. Ibid.

139. Ibid., fol. 267. The royal prosecutor de la Mardelle's March 1788 letter to Couët de Montarand struck a very similar mix of humanitarian and tactical notes. See Regnault de Beaucaron, Souvenirs de famille, 99–100.

140. Letter from Vincent and Marbois to La Luzerne, August 29, 1788, fol. 266.

141. Ibid.

142. Ibid., fols. 267–68. Further details of the aftermath of the Lejeune affair can be found in Ghachem, The Old Regime and the Haitian Revolution, chap. 4.

143. See Lewis, Gordon K., Main Currents in Caribbean Thought: The Historical Evolution of Caribbean Society in its Ideological Aspects, 1492–1900 (Lincoln: University of Nebraska Press, 2004), 165–68. Lewis argues that a “policy of prudence” informed attitudes toward plantation slavery in the French colonies and elsewhere, but he connects this policy to proslavery ideology rather than to the critique of slavery, and emphasizes its limitations in the face of a “policy of terror” to which prudence was opposed. According to Lewis, “[t]he arguments of the reformers in favor of better treatment of the slaves—more protection, for example, in the courts—were in themselves proslavery, as better treatment was seen as weakening the case for early emancipation” (168). See also Jordan, Winthrop, White Over Black: American Attitudes Toward the Negro, 1550–1812 (Baltimore, MD: Penguin Books, 1969), 368. Jordan sketches the rise of a humanitarian reform movement in the late eighteenth-century United States South that sought, among other things, to alleviate brutality in the management of slave plantations. But Jordan notes a “supreme irony” in this development: “[a]s slavery became less brutal there was less reason why it should be abolished.” The critique of planter brutality, in other words, made slavery “more tolerable for the slaveowner and even for the abolitionist.” There is some validity to this arresting insight even as parallel developments in the French and British Caribbean are concerned. Jordan does not comment in this passage on the French slave colonies or their impact on the United States but observes that in the British Caribbean, unlike in the mainland, “slavery . . . helped doom itself by its notorious cruelty.”

144. See Ghachem, The Old Regime and the Haitian Revolution, chap. 3.

145. This is not to say that the revolutionary period is a simple story of emancipation. Quite the contrary: it was an era of continued contestation between preservationist and emancipatory visions of colonial law. For an example of the former, see the November 1790 observation of Nicolas Robert, Marquis de Cocherel, a white deputy from Saint-Domingue to the National Assembly. Seeking to justify a constitution for Saint-Domingue based on local customs, Cocherel argued that the planters could be counted on to take benevolent care of the slaves for reasons of “humanity, interest, and the law.” Quoted in Gauthier, Florence, L'aristocratie de l’épiderme: Le combat de la Société des Citoyens de Couleur 1789–1791 (Paris: CNRS Éditions, 2007), 51.

146. Ghachem, The Old Regime and the Haitian Revolution, chaps. 5 and 6. Christopher Brown's distinction between antislavery thought, abolitionist programs of reform, and the actual achievement of abolition and emancipation is particularly useful in this context. Brown, Christopher Leslie, Moral Capital: Foundations of British Abolitionism (Chapel Hill: University of North Carolina Press, 2006), 1718.

147. Cf. Levinson, “Slavery and the Phenomenology of Torture,” 150.

148. Kahn, Paul, Sacred Violence: Torture, Terror, and Sovereignty (Ann Arbor: University of Michigan Press, 2008), 2. Cf. Sarat, Austin, Douglas, Lawrence, and Umphrey, Martha Merrill, “At the Limits of Law: An Introduction,” in The Limits of Law, ed. Sarat, Austin, Douglas, Lawrence, and Umphrey, Martha Merrill (Stanford, CA: Stanford University Press, 2005), 3 (discussing the “most common focus of studies of law's limits,” namely its practical or empirical limits, as in the inability of a law to eliminate racism or of a constitution to remake a political culture).

149. I do not mean to suggest that torture is the only context in which colonial planters can be understood as “sovereigns.” In the United States South and elsewhere, as Genovese demonstrated, slave law “came to accept an implicit duality: a recognition of the rights of the state over individuals, slave or free, and a recognition of the rights of the slaveholders over their slaves.” Genovese, Roll, Jordan, Roll, 45–46.

150. See Cole, Joshua, “Intimate Acts and Unspeakable Relations: Remembering Torture and the War for Algerian Independence,” in Memory, Empire, and Postcolonialism: Legacies of French Colonialism, ed. Hargreaves, Alec G. (Lanham, MD: Lexington Books, 2005), 125–37; and Foucault, Discipline and Punish, 32–69.

151. These issues of meaning and definition remain alive (and contested) today. The United Nations Convention Against Torture (UNCAT), which came into force on June 26, 1987, defines “torture” broadly so as to include the infliction of “punishment” by way of severe pain or suffering. “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” June 26, 1987, art. 1, United Nations Treaty Series 1465: 85 http://www.hrweb.org/legal/cat.html (May 11, 2010). The UNCAT also subjects states to liability for acts of “cruel, inhuman, or other degrading treatment or punishment” when committed by private persons with the acquiescence of government officials. Ibid., art. 16. See also Hudson v. McMillian, 503 U.S. 1, 18 (1992) (Thomas, J. dissenting) (arguing that the Eighth Amendment was traditionally thought to ban only “torturous punishments meted out by statutes or sentencing judges”).

152. See, inter alia, the sources cited in note 14; and Kahn, Sacred Violence, passim. For a useful review of the scholarship on the limits of law, as well as a cogent critique of the notion that law's limits are merely empirical or normative in nature, see Sarat, Douglas, and Umphrey, “At the Limits of Law,” 1–11.

153. Kahn, Sacred Violence, 4.

154. Cf. Sala-Molins, Le Code Noir, viii. Whatever else may be said of Sala-Molins's interpretation, the Code Noir did not legitimate the torture of slaves by their masters.

155. The Code Noir seems fairly clearly (albeit by implication) to distinguish between subjects and slaves in article 5 (forbidding Protestants from interfering with the exercise of Catholicism in the colonies), and articles 57 and 59 (on manumission) refer to the status of freed persons as equal to that of “natural subjects” of the French king, which confirms the slave/subject distinction. Code Noir, arts. 5, 57, and 59 (1685).

156. Sarat, Douglas, and Umphrey, “At the Limits of Law,” 2.

157. See, for example, Geggus, David, “The Caribbean in the Age of Revolution,” in The Age of Revolutions in Global Context, ca. 1760–1840, ed. Armitage, David and Subrahmanyam, Sanjay (New York: Palgrave Macmillan, 2010), 96; and Bell, Toussaint Louverture, 33 (noting that the slaves who participated in the 1791 slave revolt “were given to understand that King Louis XVI wished them well and had created the Code Noir for their benefit”). For an interpretation that emphasizes the fusion of royalist and republican ideologies in the politics of the insurgents, see Dubois, Laurent, “Our Three Colors: The King, the Republic and the Political Culture of Slave Revolution in Saint-Domingue,” Historical Reflections 29 (2003): 83.

158. See Ghachem, The Old Regime and the Haitian Revolution, chap. 6.

159. Cf. Sen's, Amartya discussion of the “plural grounding” of ethical argument in The Idea of Justice (Cambridge, MA: Harvard University Press, 2009), 2.

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