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Social Facts, Legal Fictions, and the Attribution of Slave Status: The Puzzle of Prescription

Abstract

This article explores a core question in the law of slavery: how was an individual's status as slave or free socially discerned and formally adjudicated? Under the doctrine of “freedom by prescription,” a person who had in good faith “lived as free” could argue that the absence of exercise of ownership for a specified term of years extinguished a prior owner's title. In the medieval Siete Partidas of Alfonso the Wise, which continued as a legal point of reference in Louisiana well after the end of Spanish rule, both the law of status and the law of property confirmed this path to freedom. From 1808 onward, Louisiana jurists and legislators sought to eliminate the remnants of the doctrine, but it lingered in popular and even judicial consciousness. The 1853 kidnapping of a woman named Eulalie Oliveau, six of her children, and eleven of her grandchildren for sale in the New Orleans slave market brought the question of “freedom by prescription” back into the courts. The awkward resolution of that case, and the uncertain fate of Eulalie Oliveau and her children, foreshadowed Reconstruction-era struggles over the content of legal freedom and the rights that freedom might bring to those who had once been held as property.

This article explores a core question in the law of slavery: how was an individual's status as slave or free socially discerned and formally adjudicated? Under the doctrine of “freedom by prescription,” a person who had in good faith “lived as free” could argue that the absence of exercise of ownership for a specified term of years extinguished a prior owner's title. In the medieval Siete Partidas of Alfonso the Wise, which continued as a legal point of reference in Louisiana well after the end of Spanish rule, both the law of status and the law of property confirmed this path to freedom. From 1808 onward, Louisiana jurists and legislators sought to eliminate the remnants of the doctrine, but it lingered in popular and even judicial consciousness. The 1853 kidnapping of a woman named Eulalie Oliveau, six of her children, and eleven of her grandchildren for sale in the New Orleans slave market brought the question of “freedom by prescription” back into the courts. The awkward resolution of that case, and the uncertain fate of Eulalie Oliveau and her children, foreshadowed Reconstruction-era struggles over the content of legal freedom and the rights that freedom might bring to those who had once been held as property.

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rjscott@umich.edu
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She thanks Leonardo Barbosa, Bethany Berger, Richard Brooks, Kathryn Burns, Ananda Burra, Bridgette Carr, John Cairns, Sidney Chalhoub, Adriana Chira, Brian Costello, Alejandro de la Fuente, Sam Erman, Hussein Fancy, Bruce Frier, Malick Ghachem, Thavolia Glymph, Allison Gorsuch, Ryan Greenwood, Keila Grinberg, Sarah L. H. Gronningsater, Ariela Gross, Gwendolyn Midlo Hall, Hendrik Hartog, Jean Hébrard, Marial Iglesias Utset, Martha S. Jones, Steven Kochevar, Noel Lenski, Beatriz Mamigonian, Olivier Moréteau, Mariana Dias Paes, Agustín Parise, Edgardo Pérez-Morales, Vernon Palmer, Lawrence Powell, Claire Priest, Peter Railton, Dominique Rogers, Michael Ross, Jean-Frédéric Schaub, Thomas Scott-Railton, Scott Shapiro, Kimberly Welch, John Witt, and participants in seminars at Stanford University, the Radcliffe Institute, Yale University, and the University of Toronto for suggestions and feedback. She also thanks Juliet Pazera and Sybil Thomas at the New Orleans Notarial Archives Research Center; Irene Wainwright and Greg Osborn at the Louisiana Division of the New Orleans Public Library; Florence Jumonville at the University of New Orleans Library; and the staff of the Office of the Clerk of the Court, Pointe Coupée Parish, Louisiana, for being generous with their time; and Jeanette Diuble, Bryan LaPointe, and Andrew Walker for helping to transcribe case files. Finally, she gives special thanks to the anonymous reviewers of Law and History Review.
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This list contains references from the content that can be linked to their source. For a full set of references and notes please see the PDF or HTML where available.

Kenneth R. Aslakson , Making Race in the Courtroom: The Legal Construction of Three Races in Early New Orleans (New York: New York University Press, 2014)

Patricia Hagler Minter , “‘The State of Slavery’: Somerset, The Slave, Grace, and the Rise of Pro-Slavery and Anti-Slavery Constitutionalism in the Nineteenth-Century Atlantic World,” Slavery & Abolition 36 (2015): 603–17

Michael Ross , “Obstructing Reconstruction: John Archibald Campbell and the Legal Campaign against Louisiana's Republican Government,” Civil War History 49 (2003): 235–53

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Law and History Review
  • ISSN: 0738-2480
  • EISSN: 1939-9022
  • URL: /core/journals/law-and-history-review
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