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.”Footnote ¹ 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.Footnote ²

There is much more to the singularity of Saint-Domingue than its unremitting history of violence. Between the 1660s, when French settlers began to colonize the western third of Hispaniola, and the late eighteenth century, Saint-Domingue became a surpassingly lucrative base of sugar and coffee production, easily the most profitable plantation colony in the entire Western Hemisphere. It was, even more notably, the site of the world's first and only victorious war of slave revolution on a national scale, a foundational event that had major repercussions for all of nineteenth-century United States constitutional and African-American history, from the Louisiana Purchase to Plessy v. Ferguson.Footnote ³

But violence was unquestionably central to the colony's history, its political culture, and its fate. And one form of slavery's violence occupied a place of special significance in the story of Saint-Domingue: torture. Conventionally defined as the use of coercive means by public or quasi-public actors to induce cooperation or a confession from a criminal suspect, “torture” in colonial Haiti was not always seen as the legally specialized and distinctive form of state-sanctioned violence that features in the historiography of criminal procedure. Rather, torture was identified as part of a continuum of practices that included cognate forms of brutality. Torture nonetheless occupied a prominent niche in the set of techniques by which masters sought to discipline and terrorize their slaves, and this prominence undoubtedly derives in good measure from torture's close relationship to law and the methods of legal inquiry.

To understand torture in Saint-Domingue is to grasp its situation in the larger project of the Code Noir—the 1685 royal edict that established the basic law of slavery in the French Empire—as it was implemented and understood over the course of the eighteenth century by administrators and jurists, by planters, and also by slaves. The Code Noir was the subject of a permanent debate in colonial and revolutionary Haiti over how best to maintain stability in a slave society. The explosive politics of torture were deeply embedded in that debate, such that we can speak of a veritable terror–torture nexus in the colony: a vicious cycle of planter repression and slave resistance that seemed entirely ungovernable by law (even though it was founded at bottom in the basic legal institution of human bondage). At the level of both political theory and colonial administration, slaves figured as “domestic enemies,” effectively colluding with the abuses of their masters to threaten what Jean Bodin called the “well-ordered commonwealth.”Footnote ⁴ The Lejeune prosecution crystallizes the competing elements of this legal culture, thereby illuminating the nature of the law of slavery as a set of strategic techniques for mediating the anxious world of masters and their captive “domestic enemies.”

In 1788, the slaves on Lejeune's plantation (at least) were finally able to register their resistance to this cycle of violence in the form of law. That they did so is owed, in part, to a seeming anomaly of legal history: the prohibition of torture incorporated into the 1685 Code Noir. As is well known, the legal systems of all of the major continental European states regularly resorted to torture as an official part of the inquisitorial system until the end of the Ancien Régime.Footnote ⁵ At one level, the Code Noir was entirely consistent with this state of affairs, as the Code prohibited the use of torture by masters vis-à-vis their slaves, not the use of torture by the colonial courts. There was at least some judicial torture of slaves during the colonial period in Saint-Domingue, although it is difficult to tell just how much, given the periodic destruction of slave criminal trial records during the eighteenth century.Footnote ⁶ But the very definition of torture as a technique of official investigative procedure means that, whereas individual acts of torture outside the judicial system were presumably also illegal on the continent, the phenomenon of extrajudicial torture posed far less of a challenge to sovereignty and stability in France (if indeed it posed any such challenges there at all) than it did in the colonies. The anomaly cannot be resolved simply by writing the use of torture on the colonial plantations out of the definition of torture. For the Code Noir, which is indisputably a legal or official document even in the conventional sense, uses the technical term “torture” to describe the torture of slaves by their masters, as did the participants in the Lejeune prosecution.Footnote ⁷ The French colonial prohibition of torture therefore stands as a curious puzzle in the history of Western law, one that has yet to be solved in the disconnected literatures on the laws of torture and slavery.Footnote ⁸

This should not be entirely surprising, because in all of the eighteenth-century agitation over torture that preceded and accompanied its initial abolition in revolutionary and Napoleonic Europe, the torture of slaves overseas seems to have played no discernible role.Footnote ⁹ Despite torture's apparent origins in ancient Greek and Roman law as a practice targeted initially at slaves, the modern scholarship on the law of torture takes as its object of study an institution conventionally defined without reference to the dynamics at play in torture's Atlantic colonial theatre.Footnote ¹⁰ This demarcation of the subject points to a limitation inherent in the historiography of torture, which emphasizes its strictly procedural or evidentiary role as an instrument of “state actors” engaged in the investigation of crime.Footnote ¹¹ The essence of torture, in this literature, lies in its functional relationship to the law of evidence.Footnote ¹² Given that the legal systems of Saint-Domingue and other New World slave societies generally barred the use of slave testimony, a prohibition of torture seems superficially amenable to a functionalist explanation. In principle, there is no need to procure, through the use of torture, evidence that has no legally recognized status. But the exclusion of slave testimony in the French colonial courts, never complete to begin with, was relaxed early in the eighteenth century, so the judicial torture of slaves could thereafter be thought to have a renewed rationale as a means of extracting confessions.Footnote ¹³ In any case, the Code Noir itself had no bearing on judicial torture per se. One might be able to embrace a functional rationale for the prohibition on the torture of slaves by masters if in fact the Code had meaningfully served to deter masters from torturing their slaves. But both common sense and the archival evidence tell us that, absent actual enforcement on the ground of Saint-Domingue, the Code Noir itself neither did nor could play such a role.

This does not mean, however, that the French colonial ban on torture (and kindred provisions of the Code Noir) should be seen as quaint relics or purely phantom efforts to regulate the conduct of masters as well as slaves. According to what is probably the dominant line of interpretation, the antitorture provisions were so rarely enforced that they can only be seen as ideological figments that served to disguise the “true” purpose of the law of slavery, which was to legitimate the sovereignty of masters over slaves.Footnote ¹⁴ There is some truth to this claim. Indeed, one can hardly avoid looking at Old Regime colonial law with at least some degree of skepticism, given that many nations have continued, well after the late eighteenth-century abolition of torture and even into our own day, to use torture as an instrument of law enforcement, despite contrary international and domestic legal commitments.Footnote ¹⁵ The story of torture in modern Western legal history is one of continuities as well as rupture. And an important chapter of that story involves the subjection of slaves and their descendants in the Atlantic world to practices that can be described, with greater or lesser precision, as torture.

As with other areas of the law of slavery, however, the assumption of a straightforward relationship between torture and colonial administration, or between colonial administration and the demands of planters, can be misleading. The prosecution of torture raised profound issues of individual standing and sovereign immunity in the legal order of Saint-Domingue.Footnote ¹⁶ The Lejeune affair sheds a rare light on the genealogy of and relationship between these tightly linked concepts, as they crystallized in the distant but nonetheless recognizably modern forms of slave standing to sue and planter immunity from prosecution. The heavy weight of racism and of social hierarchy in the French Caribbean had an enormous impact on the contemporaneous understanding of these legal forms. But ideas about the legitimacy of slave resistance through law and the domestic sovereignty of planters were also filtered through a prudential prism of risk and revolution, which recast those ideas in complicated and surprising ways.

The present article is based primarily on an elaborate report (now housed in the French Colonial Archives in Aix-en-Provence) written by the colony's governor and intendant to the French naval minister in August 1788, after the high court in Saint-Domingue had disposed of the matter.Footnote ¹⁷ (The Naval Ministry had jurisdiction over the French colonies.) This report, with attachments comprising what we would call the case “docket,” reveals nearly all of what we today know about the Lejeune affair. In particular, the case file shows clearly that both sides of the argument over Lejeune's fate were preoccupied with the implications of allowing slaves to press claims against their masters in court for violations of the Code Noir. For Lejeune and his sympathizers, permitting such prosecutions would embolden the slaves of Saint-Domingue to resist the demands of plantation labor and to regard their masters, not as “absolute” authorities, but rather as subjects of a higher law. Leaving planters with an unrestrained hand was the only way to avert “insubordination” on the wider scale of slave revolt. On the other side, the governor and intendant of the colony argued that the real danger lay in preventing the claims of slaves against their masters from being heard by the court system. Deprived of access to the legal system, the slaves would turn to a private system of retribution that both paralleled and aimed to eliminate their masters’ reliance upon domestic punishment. The result would be the same as the one predicted by the argument of Lejeune and his fellow planters: a slave revolution. Diametrically opposed in one sense, these contrasting arguments were perfectly symmetrical in another. By 1788, the fear of a generalized slave revolt, present in one form or another since the second decade of the eighteenth century, had become such a widespread point of reference that it could be used to powerful effect both by the planters who mobilized around Lejeune and by the administrators who pressed for his conviction and punishment.Footnote ¹⁸

The Colonial Prohibition of Torture

Even as they terrorized the slaves who far outnumbered them, the planters of eighteenth-century Saint-Domingue felt terrorized by their slaves, and specifically by their suspected use of poison to kill blacks and whites, slaves and freepersons alike. As a technique of intimidation and resistance, poison was characterized, above all, by its invisibility. Indeed, the hidden nature of poison was the very source of its power to sow fear in the minds of masters and overseers.Footnote ¹⁹ As the colonial administrators would note in one of their interventions into the Lejeune case, poison was a method of “secret vengeance.”Footnote ²⁰ A practice of ancient pedigree that was also strikingly modern and disciplinary in its consequences, poison effected violence without resort to conventional methods of violence. Its operation on the body required no overt physical invasion, rendering its effect on the psyche all the more powerful.Footnote ²¹

The true dimensions of this reputed reign of terror are probably forever lost to history. What we can say is that, in Saint-Domingue, that reign was associated at its origins with a Muslim, Arabic-speaking slave from West Africa named Macandal.Footnote ²² After eluding capture for many years, Macandal was burned at the stake in 1758 on charges of poisoning whites and spreading knowledge about the use of poison to other slaves in the colony. His name became associated with a specific crime—“Macandalisme”—and was invoked by the colonial courts and by colonists for the duration of the Old Regime in Saint-Domingue as a symbol of the dangers of slave resistance.Footnote ²³

Macandalisme united in one name the twin planter fears of poisoning and slave marronage (or fugitive slavery). Slaves who fled their plantations were punished the first time by having their ears cut off and a shoulder marked with the fleur-de-lis, the second time by having their hamstrings cut (and the other shoulder marked), and the third time by death.Footnote ²⁴ Marronage spawned a vigorous culture of slave resistance in Saint-Domingue, and no maroon was more famous in the eighteenth century than Macandal, who organized bands of fellow fugitives from his base in the mountains to execute attacks on plantations throughout the northern province of the colony.Footnote ²⁵ Slaves identified the culture of maroon resistance with autonomy and release from the rigors of the plantation; masters associated it with brigandage and guerilla-style terrorism.Footnote ²⁶ It was largely in connection with the dreaded specter of Macandalisme that torture was deployed so pervasively in Saint-Domingue during the second half of the eighteenth century.Footnote ²⁷

The legacies of Macandalisme would appear and reappear throughout the Lejeune affair. In another respect, however, the case was virtually unprecedented in the annals of Saint-Domingue, because this was one of the very few instances (if not the only one) in which slaves were successful in using the criminal justice system to press charges against their master. The prosecution unquestionably came as a complete surprise to Nicolas Lejeune, whose father had bequeathed to him a coffee plantation earlier in the 1780s, located near Plaisance, in the northern province of Saint-Domingue, some twenty miles southwest of the commercial capital of Cap Français. The Lejeune plantation had been the scene of several previous incidents involving the torture of slaves on suspicion of having administered poison to their master and fellow slaves. None of these previous infractions of the Code Noir had ever resulted in the actual investigation or prosecution of either the elder Lejeune or his son, a situation typical of broader patterns in the colony.

Lejeune's slaves were able to pursue their claims in 1788 because of a mix of very old and very new law: the 1685 Code Noir itself, and a set of royal ordinances promulgated exactly one century later, on the eve of the events in question. Article 26 of the Code allowed slaves to bring a complaint to the royal prosecutor in cases of malnourishment, lack of clothing, or improper “maintenance,” and mandated the prosecution of masters for the “barbarous and inhumane treatment” of their slaves.Footnote ²⁸ Article 42 punished masters who tortured or mutilated their slaves by confiscation of the injured slave and prosecution of the master (while permitting masters to chain or whip those of their slaves who “deserved” such punishment).Footnote ²⁹ Finally, article 43 commanded the king's colonial officers to prosecute masters or overseers who killed slaves “under their power or under their direction” and to “punish the murder according to the atrocity of the circumstances.” But it also permitted the royal officers to “absolve” such masters where appropriate, without the need to obtain a royal pardon.Footnote ³⁰

Unsurprisingly, these articles were very rarely given force in the eighteenth century.Footnote ³¹ It was not until the other end of the colonial Old Regime that the monarchy finally found the wherewithal to promulgate an ordinance with the power necessary to begin to effectively regulate and punish the torture of slaves by their masters. In December 1784, Louis XVI enacted the most sweeping revision of the Code Noir to occur in the eighteenth century. Plantation managers and agents were required to keep a register of the births and deaths of all slaves under their jurisdiction; each such register was to be sent once a month to the plantation's legal owner in France (most plantations in Saint-Domingue were owned by absentee proprietors, particularly in the period after the Seven Years’ War [1754–1763]). Managers and overseers were prohibited from “treating their slaves inhumanely, by giving them more than fifty lashes of the whip, by beating them with a stick, by mutilating them, or finally by causing them to die in different ways.” Plantation overseers and managers who engaged in the radical abuse of their slaves would face potential “revocation,” and the colony's governor and intendant were authorized to prosecute any such violators. Finally, a system for the “ongoing regulation” of the plantations was proposed, and its direction placed in the hands of the colonial governor and intendant.Footnote ³²

Predictably, the planters’ representatives on the northern high court of Cap Français, one of two high courts in the colony, resisted lending their stamp of approval to the new ordinance for more than a year after it was first promulgated by the monarchy. By the time the law was finally registered locally, its most interventionist provisions had been watered down, in the form of a second royal ordinance issued in Paris in 1785; a reluctant concession intended to pacify the dissenting colonists.Footnote ³³ The new regulations were a response to a number of factors, including a climate of opinion (both metropolitan and colonial) that by 1785 had begun to swing decisively against the most abusive of the planters.Footnote ³⁴ But a concern with the radical abuse of slaves did not necessarily spring from humanitarian motives. The new regulations were issued in the context of predictions of an impending crisis in the colony prompted by isolated reports of small-scale uprisings on the plantations. A tactical anxiety about the consequences of planter brutality, and not the demands of abolitionists, led Louis XVI and the French naval minister to act when they did.Footnote ³⁵

The significance of these reforms for the Lejeune affair derived as much from memories of the political conflict they triggered—still ripe in the spring and summer of 1788—as from their actual text. Partly in response to northern obstreperousness in the face of the 1784 ordinance, the intendant of Saint-Domingue, François Barbé de Marbois, had suspended the Conseil Supérieur of Cap Français in January 1787 and essentially merged it with its more docile counterpart in Port-au-Prince, where the colony's administrative seat was located.Footnote ³⁶ The reactions of Lejeune and his neighbors to the 1788 prosecution make clear that they interpreted the case through the lens of this institutional history and the broader pattern of “administrative despotism” that it symbolized for them.Footnote ³⁷

Torture clearly represented a bone of special contention between planters and administrators in late colonial Saint-Domingue. But what explains the original decision to ban its use by planters? The sources behind the drafting of the Code Noir suggest a general concern with breaking the vicious cycle of slave “crimes” and planter retaliation that administrators and jurists perceived in the French Caribbean world of the mid-to-late seventeenth-century.Footnote ³⁸ Beyond this, the article 42 prohibition appears to reflect not only the old feudal distinction between haute (high) and basse (low) justice, but also the principle that “in criminal matters the establishment of truth was the absolute right and the exclusive power of the sovereign and his judges.”Footnote ³⁹

From another point of view, the Code Noir ban on torture might be viewed as a form of exception to the widespread seventeenth-century reliance upon delegated corporate authority. Many New World slave colonies, Saint-Domingue included, were originally administered as royally chartered trading companies, exercising authority delegated to them by European monarchies. And it may be that, in this institutional setting, individual planters were, similarly, seen as possessing certain default powers and privileges that would have otherwise accrued (on the other side of the Atlantic) to the monarchy. Saint-Domingue's corporate phase had ended more than ten years before the Code Noir, in 1674, when the colony was directly absorbed into the royal domain. Even after 1685, however, the individual plantations exercised quasi-public powers delegated by the imperial administration, such as the enforcement of police regulations and court sentences relative to slaves.Footnote ⁴⁰ Against this backdrop, the administration of colonial criminal justice does not lend itself to any clear public–private distinction, of the kind familiar to modern law. On the other hand, the public–private dichotomy is not entirely anachronistic even in the world of the Code Noir. By 1712, at the latest, it was recognized that masters who engaged in the torture of their slaves were acting in a “private” (and illegal) capacity.Footnote ⁴¹

Article 42 does not entail that slaves were exempted from the use of judicial torture (la question) in Saint-Domingue.Footnote ⁴² An early draft of the Code Noir implies that torture could lawfully be administered to slaves in the colonial courts.Footnote ⁴³ Slave criminal trial records were periodically destroyed during the colonial period, making it difficult to tell just how often la question may have been used in prosecutions of slaves. But the surviving eighteenth-century appellate records gathered in Moreau de Saint-Méry's voluminous collection give no clear indication one way or the other.Footnote ⁴⁴ Pierre Pluchon has written of a 1755 case from Martinique in which both plantation and judicial torture were used.Footnote ⁴⁵ Macandal himself, according to a contemporary account, was subjected to a form of judicial torture known as the “question préalable,” in the course of which he is said to have confessed the names of a “prodigious” number of coconspirators, who were themselves arrested and questioned under torture.Footnote ⁴⁶ It seems likely that judicial torture was applied to slaves at other times in Saint-Domingue.Footnote ⁴⁷

At the same time, however, such cases cannot have been very common, not only because of the limits on the use of slave testimony in court (about which more subsequently), but also given the reality that masters and their representatives rarely found it necessary or proper to avail themselves of the royal tribunals when dealing with slaves accused of poisoning. In these and other situations, slaves were effectively tried and convicted on the plantation, often with the illegal use of “private” torture.Footnote ⁴⁸ When slaves were brought to trial, it seems they were typically condemned on the basis of mere rumor and the master's word, rather than on the basis of slave evidence.Footnote ⁴⁹

At the end of the day, the Code Noir prohibition on torture seems at least partly inconsistent with the definition of torture as a presumptive monopoly of the state. That inconsistency looms even larger in light of a second axiom in the historiography of criminal law that sharply distinguishes the practice of torture from the administration of painful punishments.Footnote ⁵⁰ The Code Noir, by contrast, links torture (in article 42) to such clearly punitive practices as mutilation, whipping, and chaining.Footnote ⁵¹ Although directed at masters rather than magistrates, this provision suggests an understanding of torture as comparable to or continuous with the exercise of punishment and the deliberate infliction of suffering.

This understanding reflected the specific circumstances of the slave society that the Code Noir was designed to regulate, but may not have been purely local in nature either. There appears to be a broader etymological dimension to the association between torture and punishment. In the mid-fifteenth century, the French word “torture” signified “a serious penalty, a corporal punishment that could result in death.”Footnote ⁵² By the late sixteenth century, the term had taken on its modern sense of “intense physical suffering inflicted in order to extract confessions.”Footnote ⁵³ This linguistic shift, however, did not preclude subsequent connotations of intolerable physical suffering, as reflected first in a 1631 usage, and then reappearing in the mid-seventeenth century.Footnote ⁵⁴ Therefore, a broader and perhaps more popular meaning of torture both predates and postdates the technical definition of the term. As a historical matter, the jurisprudential effort to segregate these technical and popular meanings has not prevented them from cross-fertilizing each other, even within the domain of law itself.

In any case, for those who found themselves on the receiving end of these practices and understandings, whether in France or its overseas territories, torture was no mere semantic exercise. As we will see, whatever the exact relationship between colonial torture and metropolitan (judicial) torture may have been, it is hard to view the use of torture in the Lejeune affair as anything other than a particularly brutal and volatile mix of punitive and investigative practices, operating in that twilight space of sovereignty that was the slave plantation. But the implications of colonial torture were even more complicated and far reaching than this image suggests.

The Deposition of the Slaves

The criminalization of torture was not the only precondition of Lejeune's prosecution. Another was the willingness of Lejeune's slaves to bring charges against their master. In order to do so, they had to be allowed to present their version of the facts to a judicial officer, and their account in turn had to be recognized by a court of law. As slaves were barred under the Code Noir from serving as witnesses in civil and criminal matters alike, and judges could not use a slave's deposition to draw inferences or to establish proof of guilt, the logistical aspect of this dilemma was no mere detail.Footnote ⁵⁵ Slave depositions could be used, at most, only to assist judges in clarifying the circumstances of a matter.Footnote ⁵⁶ Even after 1738, when the testimony of an essential slave witness was made admissible into evidence absent any white witnesses, a slave could not testify against his own master.Footnote ⁵⁷ And the 1784–1785 regulations permitting a slave to denounce the abuses of a master, overseer, or plantation manager did nothing to change the preexisting evidentiary restrictions of the Code Noir. On another day, in another area of the colony, a case such as the one brought against Lejeune might well have gone unnoticed, as nearly every such case did. Just as plausibly, it might not have been allowed to proceed all the way to a trial and appeal.

We can get some sense of the fragility and contingency of the slaves’ success in pressing charges from the account of an analogous case that came to a head in Saint-Domingue just as the Lejeune prosecution was beginning. On March 25, 1788, the colony's intendant (Marbois) and governor (Alexandre de Vincent de Mazarade) reported to Naval Minister César-Henri de la Luzerne on the “barbarities committed by” a planter named Maguero against the slaves of his plantation. The report was based on the letter of a commander named Coutard, who was present in Port-au-Prince to receive the news while the administrators were away on a trip to Gonaïves, a town on the western coast roughly sixty miles north of the capital. Coutard reported that “the tribunals were finding it impossible to take cognizance of this case, because the law rejects the depositions of slaves and there was no other available proof.” When the administrators returned to Port-au-Prince, they summoned Maguero and his slaves to present their respective accounts of the incident. In the course of this interrogation Maguero confessed to wounding one of his male slaves with a gunshot and mutilating a female slave.Footnote ⁵⁸

“The courts of justice having unfortunately no hold over this guilty person,” Vincent and Marbois wrote, “it has seemed to us necessary to deal severely with him by way of an administrative proceeding.” Maguero was ordered deported to France on the next available passage, where he would undergo “several months of detention” and be barred from ever returning to the colony. The administrators acknowledged the “inconveniences” of removing a slaveholder from his plantation, in consideration of which they appointed the royal prosecutor to make arrangements for the supervision of Maguero's property. They then concluded their letter by emphasizing that Maguero's crime was “not the only one of this nature. There have been crimes committed on other plantations that are even more serious.” But these other cases lacked the “clarity” of proof afforded by a planter's own confession. Vincent and Marbois promised to take steps to “stop the course of these cruelties” by making an “example” of their punishment, as in the case of the deportation meted out to Maguero. But the underlying problem of the court system's rejection of slave testimony remained.Footnote ⁵⁹

Whether the administrators had in mind the Lejeune case with their reference to other crimes yet “more serious” than those committed by Maguero is unclear. Vincent and Marbois wrote their first letter commenting on Lejeune's prosecution four days after reporting on the Maguero case. But there would have been no shortage of other incidents upon which to base this claim about the severity and extent of planter brutality in Saint-Domingue. Far more than the question of severity, what distinguished the Lejeune case from its counterparts was the decision of the court of first instance (sénéchaussée) to order and accept the deposition of Lejeune's slaves. This decision not only prevented the case from joining the vast number of incidents that were never reported in the first place, but also kept the determination of Lejeune's fate out of the discretionary jurisdiction of the administrators, a fact that had a considerable impact on the ultimate resolution of the affair.

By the time Vincent and Marbois first learned of what had transpired on Lejeune's plantation, in fact, the judicial process was already well under way. On March 13, 1788, a magistrate (sénéchal) and the royal prosecutor of Cap Français, BuffonFootnote ⁶⁰ and Jean-Baptiste Suarez d'Almeida, wrote a letter to the administrators reporting that fourteen slaves had arrived at the town prison from Plaisance the previous Sunday evening to ask for “the protection of the judicial system” from the “cruelties of their master's son.” The slaves charged that on two separate occasions Nicolas Lejeune had used a torch to burn his slaves. The first of these incidents came the year before and involved two slaves, one female and one male. The second incident had occurred only the previous Friday when Lejeune used a torch to burn the legs of two female slaves, Zabeth and Marie-Rose.Footnote ⁶¹ Since that time, he had kept the two women locked up in a cell. The fourteen slaves reported that “the fear of undergoing similar treatment, with which they had been threatened, forced them to flee” the plantation.Footnote ⁶² In this instance, as in a mere handful of other eighteenth-century cases that led to the prosecution of masters under articles 26 and 42 of the Code Noir, a group of slaves who took the risk of trying to establish that their master had violated the Code Noir's prohibition on torture could only succeed in doing so by violating another provision of the same code.

For this particular group of slaves, however, the initial risk paid off. The sénéchal Buffon agreed to pursue the complaint by means of a special investigation that would seek to establish the dimensions of the alleged crime “with the least amount of scandal possible.”Footnote ⁶³ This was the first indication of an official nature that the prosecution of Lejeune would require treading on highly sensitive territory. Buffon entrusted Couët de Montarand, one of the other judges of the sénéchaussée, with the task of traveling to the Lejeune plantation and taking the depositions of all those involved in the incident.Footnote ⁶⁴ Montarand arrived at the plantation to discover Zabeth and Marie-Rose locked up in a cachot (cell of solitary confinement) with burns to their feet, legs, and thighs. Asked to provide his version of the events, Lejeune declared that he suspected the two slaves of having used poison to murder another female slave, Julie, who had died suddenly in her sleep. Lejeune further stated that an autopsy of Julie undertaken by his “surgeon” had revealed the presence of undigested food in her intestines and “stains” in other parts. Lejeune also alleged that he himself had survived an attempt at poisoning by Zabeth and Marie-Rose, in proof of which he offered a container of powder to the clerk who accompanied Montarand on his investigation.Footnote ⁶⁵ We learn from subsequent accounts of the case that Zabeth and Marie-Rose would eventually die of the wounds they had received from Lejeune, only a matter of days after they were found locked up in the cachot.Footnote ⁶⁶ Before their deaths, however, both were able to testify that it was only the physical torment they experienced that had forced them to confess to anything Lejeune wanted them to admit. In confirmation of this claim, an analysis of the powder Lejeune had submitted by a doctor and surgeon appointed by Montarand had revealed evidence of nothing more than common smoking tobacco interspersed with five bits of rat stool. “That is . . . the exact account of this scene of atrocity, of which unfortunately there are only too many examples,” Buffon and Almeida concluded.Footnote ⁶⁷

But there was more to this initial report by the two judicial officers than a factual account of the case as they had come to understand it from Montarand's investigation. The two incidents of torture of which Nicolas Lejeune stood accused were not the first such instances on this particular plantation. “Similar cruelties” had been inflicted by the senior Lejeune back in 1781 and 1782, for which he had been reprimanded by the government “without a scandal” (sans éclat).Footnote ⁶⁸ Moreover, Lejeune père's nephew (Nicolas Lejeune's cousin) had followed the “same principles” in applying discipline to his slaves, as a result of which he eventually became the “victim of [their] vengeance, or of [their] desperation.”Footnote ⁶⁹ Nicolas Lejeune's atrocities were therefore only the latest installment in a longstanding pattern of events. In all three cases, Buffon and Almeida implied, the perpetrators had rationalized the use of torture as a response to the suspected use of poison by slaves.Footnote ⁷⁰

Despite this history of brutality, there were countervailing considerations. Perhaps the most revealing passage in the March 13 report came near its end, where the sénéchal and royal prosecutor warned the administrators of the risks associated with any serious effort to bring Nicolas Lejeune to justice: “[Y]ou are aware of the danger that such an affair, if allowed to explode, could pose to the regime of the colonies. It is greatly to be feared that the Negroes would confuse the right of complaint with insubordination, which would become difficult to put down if they believed themselves to be backed up by the laws.”Footnote ⁷¹ This argument would become the keystone of Lejeune's defense. It is therefore all the more significant that it was first articulated by the officials responsible for bringing the case to light. Having acknowledged the “danger” that might result from their interventions, Buffon and Almeida then ended their report with an ambiguous promise to continue the prosecution until and unless they receive orders from the colonial governor and intendant to stop.Footnote ⁷² Whether this was an invitation to Vincent and Marbois to take the matter out of the lower court's hands, or a mere question of formality and deference, it was clear that the sénéchal and prosecutor were not accustomed to dealing with complaints of the sort they now found themselves in charge of adjudicating.

“The Feeling of Absolute Power”

Over the next two weeks, calls to end the prosecution of Lejeune were sounded in other, more predictable corners of the colony. The first came on March 23, in the form of a letter to Vincent and Marbois from Lejeune's fellow planters in the district of Plaisance. They urged the administrators to dissolve the proceedings on the grounds that “already, the plantations adjacent to Lejeune's are murmuring, and it is possible that this event will become the signal of a general revolt.” No credibility could be given to the claims of a slave community that was guilty not only of the attempted assassination of Lejeune's manager ten years before and the successful assassination of his nephew, but also of no fewer than ten attempted uprisings. Moreover, the planters asserted, the “execrable Mme. Rose” had administered fatal doses of poison to twenty victims “of her own color” in previous years, and had even tried to do the same to her master. Stopping the prosecution of Lejeune was the only way to “assure public tranquility and the common good.”Footnote ⁷³

The reference to the “execrable Mme. Rose” points to an inescapable undercurrent of gendered anxiety that informed planter reactions to the case, beginning with Nicolas Lejeune's use of torture in retaliation for the perceived crimes of Zabeth and Marie-Rose. A putative association between the subtle, noninvasive violence of poison and the sinister machinations of women slaves seems to pervade much of the affair, possibly overlaid with similarly gendered stereotypes of vodou as a magical, pagan practice akin to sorcery.Footnote ⁷⁴ Indeed Nicolas's torture of Zabeth and Marie-Rose might even be compared to some of the witchcraft trials of the sixteenth and seventeenth centuries.Footnote ⁷⁵ However far that analogy may extend, the nexus between poison and torture in late eighteenth-century Saint-Domingue was powerfully reinforced by the distinctive anxieties that feminized resistance to slavery evoked in the French colony. And it seems equally likely that Nicolas Lejeune's indignation at having to defend himself from the likes of Buffon and Almeida was heightened by the thought that his prosecution stemmed from an (alleged) act of female slave insubordination in its most quintessential and dangerous form.

Whatever its deeper psychosocial sources, Nicolas Lejeune's reaction to the affair reflected a quite deliberate elevation of the stakes. A week later, he came forth with a defense of his own that echoed his fellow planters’ allusion to the possibility of a slave revolution if steps were not taken to halt the prosecution. Of all the unfortunate things that could happen to a colonist, he wrote the administrators on March 27, “the most terrible and the most dangerous to public tranquility” is the “humiliating necessity” of having to defend oneself against one's own slaves. It was only “the spirit of rebellion and, even more, the fear of being declared accomplices to all the crimes committed on [a] plantation” that had turned his slaves “into the accusers.” Rather than complain, the slaves ought to realize that nothing prevented them from being “incomparably happier” than the peasants of France, who were responsible for supporting entire families on the basis of little more than a cottage and the fruit of their labors.Footnote ⁷⁶

In support of his claim that there was now a real and pressing danger of an outright slave revolt, Lejeune enlisted the support of the colony's favorite philosophe and legal theorist, Montesquieu. In a controversial and ambiguous passage of The Spirit of the Laws, Montesquieu had written that only the “fear of punishment” could inspire the slave to perform “onerous duties” in lands where extreme heat enervated both the body and the will.Footnote ⁷⁷ Lejeune took this formulation and gave it an even more Machiavellian twist, arguing that if one destroyed that “salutary fear of punishment” that induced slaves to show obedience toward their masters, what hope of security would three or four whites have in the midst of one or two hundred whose willingness to rebel had been sanctioned by the colonial legal system? No real distinction could be made, he added, between the conduct of his slaves and the slave population of Saint-Domingue generally, as a revolt on one plantation would spark revolts on all the others. For that reason, Lejeune wrote, “my cause in this case becomes the cause of every colonist: it must interest all men reduced to living among beings in whom one can assume the existence of neither character (moeurs) nor moral principles.”Footnote ⁷⁸ The assumption of the Code Noir, and of colonial administrators and judges more generally, that the planter community could be safely and legitimately divided into “responsible” and “irresponsible” factions was no more valid than the idea that one group of slaves could be distinguished from another.

The accused planter's debt to Montesquieu was more than implicit. Lejeune went on to cite “the celebrated author of The Spirit of the Laws” for the principle that in all countries where slavery was founded on the use of force and violence, it could only be maintained by “the same means.” It is not the “fear . . . of the law that prevents the negro from stabbing his master,” but rather “the feeling of absolute power that [the master] exercises over [his slave's] person.” Remove this restraint, Lejeune remarked, and the slave would dare anything to improve his condition. Not surprisingly, the decision of the lower court to go ahead with the prosecution was portrayed in just that light, as a victory for the subversive principle that the master–slave relationship was one of relative rather than “absolute” domination. “What a triumph for my negroes; and what a revolution it has effected in the spirit of these men accustomed to servitude! This is new for them.”Footnote ⁷⁹

Had Lejeune been interested in exploring the full range of Montesquieu's observations about slavery, he might have come across the philosophe's argument that men will accustom themselves to anything, including slavery, “provided that the master is not harsher than the servitude.”Footnote ⁸⁰ As it was, Lejeune was far more preoccupied with what he described as the heavy costs of leniency. Some of the most distinguished residents of the colony, he wrote, had paid with their lives for exercising “complacency” toward their slaves. For Lejeune, this price was best measured in the “incredible number” of slaves who, between 1769 and 1771, had been executed on charges of having murdered their masters.Footnote ⁸¹

A Fugitive from Justice

Sometime between March 13, when Buffon and Almeida sent their initial report to Vincent and Marbois, and March 27, when the two administrators made their initial intervention in the affair, two important events transpired: the sénéchaussée of Cap Français issued a warrant for the arrest of Nicolas Lejeune, and Lejeune became a fugitive from justice.Footnote ⁸² Whether he was the first white planter in the colony's history to attain this status is not clear, but this development was certainly a tremendous anomaly against the long eighteenth-century backdrop of planter preoccupation with the problem of fugitive slaves (marrons).Footnote ⁸³ Over the next few weeks, Lejeune's escape would transform his case into a colonial cause célèbre, with the administrators and the fugitive's fellow planters lined up on opposite sides of the debate over whether the “public interest” militated for or against his arrest and conviction.

By March 18, though still pending before the trial court in Cap Français, the case had been brought to the attention of Guillaume-Pierre-François de la Mardelle, the royal prosecutor attached to the (now merged) Conseil Supérieur of Saint-Domingue in Port-au-Prince. In a remarkable letter that he addressed directly to Montarand, de la Mardelle urged the magistrate to stick to his guns in the face of planter opposition. “Principles of humanity” and “raison d’état” together argued in favor of protecting the “population of Africa [which] diminishes appreciably each day . . . [I]t is necessary to support, defend, and encourage that of Saint-Domingue, otherwise in fifty years the sugar colonies will be only imaginary entities for the European powers who have them.” As for the suggestion “constantly put forward” that slave insubordination would ensue from the prosecution of Lejeune, de la Mardelle concluded, the only real risk of revolt stemmed from “extreme injustice and barbarism.”Footnote ⁸⁴

In this same spirit, on March 27, Vincent and Marbois issued a directive to the commanders and administrative officers in all three provinces of the colony. By this time Lejeune stood accused not merely of torture but also of murder, as Zabeth and Marie-Rose had both died of their wounds in the days after the initial investigation of the case was conducted. The administrators insisted that Lejeune was undoubtedly “guilty of this atrocity”: his flight from Plaisance, and from the “just punishments with which he was threatened,” merely served to confirm that culpability. The directive ordered the commanders and administrative officers to make every effort to arrest Lejeune at the earliest moment, including taking steps to prevent him from escaping abroad via one of the ports of Saint-Domingue. At stake was a combination of strategic and humanitarian interests that the colony could not afford to ignore: “The peace of the colony depends upon the exemplary punishment of crimes of this nature; humanity begs it, and all of the planters, with only a very few exceptions, eagerly wish that a curb be placed on all these barbarities.”Footnote ⁸⁵ The planters of Plaisance having made known their opposition to Lejeune's prosecution in their letter of March 23, it is not difficult to imagine what Vincent and Marbois meant by the phrase “very few exceptions.” It is far less clear on what basis the administrators purported to have the support of the near totality of the colony's planters, but this assertion nonetheless makes sense as an effort to counter Lejeune's argument that his cause was also “the cause of every colonist.”Footnote ⁸⁶

By way of supplementing their March 27 directive, Vincent and Marbois wrote that same day to the officers of the sénéchaussée of Le Cap, asking them to exercise “the most particular care” to prevent Lejeune's escape from the colony. “We would greatly regret to see a crime this big remain unpunished,” they noted with a hint of resignation at the unlikelihood of actually bringing the infamous planter to trial. The administrators also enjoined the lower court magistrates to treat Lejeune's surgeon, Magre, as a codefendant in the case and to arrange for his arrest. It was Magre and not Lejeune, the administrators alleged, who had actually used the pinewood torch to burn Zabeth and Marie-Rose. Magre's role in the affair was therefore “doubly criminal,” as it would have belonged to him before anyone else either to “moderate the violence of [his] master” or to come to the aid of “the objects of [Lejeune's] fury.”Footnote ⁸⁷

The administration's determination not to allow Lejeune's escape to stand in the way of his prosecution seems to have registered with those in the slaveholding community who sympathized with Lejeune. Among the voices raised in defense of the fugitive planter was that of the recently created Chamber of Agriculture of Cap Français, the successor institution to the Conseil Supérieur, which had been suppressed and merged with the high court in Port-au-Prince in early 1787. Although endowed with fewer prerogatives than its predecessor, the Chamber of Agriculture was nonetheless encouraged to act as a conduit for the grievances of planters in the northern province. On April 4, the Chamber's secretary, a Cap Français attorney by the name of Pierre-Joseph de Laborie, submitted a petition to Vincent and Marbois emphasizing “the dangers the colony would face from giving publicity to the punishments inflicted on masters who might have misused their authority over their slaves in committing acts of barbarism.”Footnote ⁸⁸ Unlike Lejeune's own brief, which denied the possibility that a master could “misuse” an authority that by definition was “absolute,” the Chamber's petition acknowledged that Lejeune had violated the Code Noir in committing an “act of barbarism.” But despite the protection accorded slaves by the laws of Saint-Domingue, and despite the Chamber's disavowal of any intention to ignore the “severity” of those laws, the reality was that a public sanctioning of Lejeune would do more to undermine than stabilize the plantation regime. The only risk-free solution was to expel Lejeune from the colony.Footnote ⁸⁹

A similar line of reasoning featured in another petition signed six days later by approximately seventy residents of the northern department.Footnote ⁹⁰ Far be it from them to “justify the cruelties” that Lejeune inflicted on his slaves, the colonists wrote to Vincent and Marbois; “we cherish the sentiments of humanity that dictated your rigorous orders” of March 27. But the planters also asked for the administrators’ “help” and “prudence” in a matter on which depended “the peace, good order, [and] even the possession of a colony precious to the State. Our fortunes, your life (vie), ours, the existence of ten thousand families in France all depend on the subordination of the slaves, and on the results of their labor. Humanity may be revolted by the rules that ancient and modern policies have adopted; [but these] conventions have been made and slaves exist!”Footnote ⁹¹ That Lejeune was not being prosecuted for following the “conventions” of either “ancient” Roman or “modern” French slave law did not trouble these petitioners. His conviction would also be an indictment of the institution of slavery itself, which the colonists had merely inherited from an earlier age. And the administrators themselves—many of whom acquired plantations during their tenure in Saint-Domingue, although they were barred by royal decree from doing soFootnote ⁹²—had a quite personal stake in the immunity of Lejeune from all further prosecution, as the reference to “your life” tried to suggest.

Therefore, even though it was important for reasons of humanity and justice to prevent “cruel men from giving themselves over to violent outbursts,” it was no less important to avoid the “humiliation” of the colony's “privileged sorts” for reasons of “sound government” (“la saine politique”). Lejeune's mémoire had identified the experience of “humiliation” in the eyes of his own slaves as the most damaging aspect of the proceedings.Footnote ⁹³ In this April 10 petition that experience is characterized as one Lejeune would share with his fellow planters. “Sound public policy,” a phrase that had appeared in a number of earlier eighteenth-century legislative and judicial efforts to counteract planter brutality in Saint-Domingue,Footnote ⁹⁴ is here invoked not in tandem with but rather in opposition to the counsels of “humanity and justice.” For the northern residents, the choice between the two presented a set of clear alternatives, one that the administrators could resolve by transferring the case to their special jurisdiction. “You owe it to the good of the State [and] to the preservation of this Colony to use your private authority to pass sentence on him.” If the judicial system were allowed to proceed with the case and hand down an “authentic judgment,” that would only legitimate Lejeune's “rebellious” work force. Every slave would then feel justified in his “insubordination” and would refuse to accept any more discipline. All orders to labor in the coffee and sugar fields would be “a vexation, all punishment a crime.” Sooner rather than later the colonists would find that “we are all lost; all is overturned and we touch on a coming revolution in the colony, a revolution the horrors of which we leave you to contemplate.”Footnote ⁹⁵ To judge from this kind of rhetoric, the Chamber of Agriculture's April 4 petition would appear to have struck at least some planters of the northern department as overly passive and insufficiently alarmist.

Realizing they had a dilemma on their hands, Vincent and Marbois took the highly unusual step of responding directly to the concerns of the northern planters, in the form of a letter dated April 17 and addressed to the Chamber of Agriculture. (There is no evidence of a separate response to the “private” April 10 letter, but that may be because the administrators felt it more appropriate to channel their comments through an officially sanctioned institution. In any event, the letter reads as a response to both petitions.) There seemed to be a consensus for the idea that masters must be prevented from committing “barbarities of the sort that are being prosecuted at this moment” by the sénéchaussée of Le Cap, Vincent and Marbois noted. But the administration and the Chamber differed as to the nature of the punishment to be imposed, a disagreement that centered on the question of whether that punishment ought to be made public or kept secret. The northern planters were justified in expressing concern about their personal safety and the security of the colony as a whole, but they were mistaken about the real threat to their self-interest. The danger emanated not from the likes of Buffon and Almeida, but rather from Lejeune himself. “No planter (habitant) would feel secure in his home if the negroes were not assured of the protection of the tribunals.” Absent any sense of the rule of law, the slaves would give themselves over to “acts of retribution,” ignoring that both the Code Noir and the colonial administration tended to their welfare. “They would avail themselves of a way of justice that they believe society refuses them, and we know how many means domestic enemies can use to carry out their acts of secret vengeance.”Footnote ⁹⁶

The reference to methods of “secret vengeance” can hardly have missed its mark, given the pervasive anxiety among planters about the use of poison by slaves, an anxiety present since the late 1750s and of which Lejeune was merely the latest example.Footnote ⁹⁷ Whether or not they intended it as such, the administrators’ invocation of the risks of poison was precisely the inverse of Lejeune's in his March 27 mémoire. Lejeune had argued that the crime of poisoning had always eluded the eye of the judicial system and thereby demonstrated the necessity of leaving unlimited disciplinary power in the hands of the master. In their April 17 response to the Chamber of Agriculture, the administrators stood this assumption on its head with the argument that unrestrained plantation justice was the very reason slaves felt it necessary to use poisoning in the first place. By relying on the court system to prosecute planters such as Lejeune, the colonists might one day no longer have to run the risk of this undetectable method of retaliation. The “peace of the colony” required that whites be punished no less publicly for their crimes than slaves.Footnote ⁹⁸

Paternal Intervention

More than a month passed before the next major development in the case. On May 21, 1788, with his son still at large and in contempt of the law, Lejeune père intervened in the proceedings with a petition to the sénéchaussée of Cap Français urging the court to dismiss all charges against Nicolas Lejeune and instead prosecute Montarand, the magistrate who had been dispatched to Plaisance back in early March to investigate the allegations of Nicolas's fourteen slaves.Footnote ⁹⁹ Montarand's depositions of Zabeth, Marie-Rose, and other slaves had led to the issuance of a warrant for Nicolas's arrest, and Lejeune père believed the taking of those depositions to be itself a criminal act.Footnote ¹⁰⁰

The petition of Lejeune père is a rambling diatribe, embittered and paranoid even by the standards of eighteenth-century Saint-Domingue. Nonetheless, two overarching themes are apparent throughout. The first was the need to safeguard the planter's familial and racial honor.Footnote ¹⁰¹ “Here is a father defending the honor of his own blood,” Lejeune père wrote.Footnote ¹⁰² Charging that Nicolas's slaves had gathered together beforehand to orchestrate their story, Lejeune père insisted that no colonist could consider his “honor” to be secure if he was at the mercy of his slaves’ testimony.Footnote ¹⁰³ Lejeune père's petition to intervene, then, similarly to Nicolas's claim that his cause “was the cause of every colonist,” was put forth as an act of public service no less than of self-interest. The principle of honor united the two causes.Footnote ¹⁰⁴

Second, Lejeune père argued that the prosecution of a master for torture necessarily entailed the risk of a slave revolution, and that the only way to avert this prospect was to endorse a rule of private plantation law unconstrained by outside authority. Lejeune père thus essentially reprised his son's thesis that masters should be given discretion to use torture in light of the systematic failure of the legal system to deter the crime of poisoning. In Lejeune père's view, the trial of Nicolas was the result of a uniquely sinister plot formed “in the very shadow of the laws.” If the court were to allow even one of these cases to succeed, it would open the door to a thousand other similar conspiracies. An outbreak of “individual revolts” would pave the way for a “general revolt on the part of our slaves [and then for] the disastrous revolution that [those little revolts] will have brought about.”Footnote ¹⁰⁵ Here again was the image of the slippery slope that Nicolas and the colonial administrators had used to opposite effect in their earlier interventions. According to this logic, the only way to prevent the colony from slipping down the slope of revolution was effectively to disregard any sharp distinctions between “public” and “domestic” justice.

The heart of the petition was an extended disquisition elaborating on the relationship between the use of poison by slaves and the necessity of “private justice.” The impunity with which slaves were able to administer poison underlined a fundamental reality of the colonial legal system: there are truths no laws can suppress, truths different from “those that are recognized as such by the courts.” Somewhat ironically, this was also an argument that could have been applied to the phenomenon of planter brutality: if poison remained beyond the purview of the court system, so, too, did planter violations of the Code Noir provision prohibiting the use of torture. In fact, these two “truths” were intimately linked to each other, as the administrators’ April 17 letter to the Chamber of Agriculture had argued. In Lejeune père's view, however, the conclusion to be drawn from these “truths” was that “[o]ne must indeed permit private persons to render justice themselves, at least when the crimes are such as to become easily contagious, and when [those crimes] can lead to the ruin, overthrow, and destruction of an entire class of the society at the heart of which they are committed. For such is [the crime of] poison on the part of the slaves.”Footnote ¹⁰⁶ Invoking a well-worn creole theme of “local knowledge,” Lejeune père argued that in Europe it was simply not essential to discover and punish the “hidden and tenebrous” crime of poisoning. In the metropole, poisoning was not “the ordinary crime of one class against another class of men.” In Saint-Domingue, on the other hand, whoever was not a master was a slave, according to Lejeune père, and there were many more of the latter than of the former. Moreover, the two “classes” were necessarily enemies of each other. In such a state of war, the slave “class” could be contained only by means of “despotism,” which is to say by means of “a power that [was], so to speak, absolute.”Footnote ¹⁰⁷ Like his son's, the father's portrait of the power dynamics at work in this slave society reflected an unmistakable (but incomplete) borrowing from Montesquieu.

The primary restraint on the legitimate absolutism of the master “class,” in Lejeune père's view, was the 1685 Code Noir, and in particular articles 26 and 42 (banning the practice of torture and mutilation and authorizing prosecution of masters who engaged in those practices).Footnote ¹⁰⁸ In order to demonstrate the nefariousness of these provisions, however, he was forced to argue that planters had frequent resort to torture and mutilation as disciplinary tools, but should not be punished for so doing. This concession Lejeune père was more than willing to make. The problem was not that such violations of the Code Noir were deeply rooted in plantation culture, he argued, but rather that they could only be suppressed by means of the “the greatest inconveniences.” The Code Noir—“the law that prohibits masters from torturing their slaves”Footnote ¹⁰⁹—had been promulgated at a time when the colonists were still “ferocious,” having barely begun to leave behind their origins as “barbaric” pirates and buccaneers. Moreover, there had been many fewer slaves in 1685 than there were now; the prohibition on torture might have made sense as a way of preventing the strongest from oppressing the weakest in an earlier time, but now the scale had tipped in the opposite direction.Footnote ¹¹⁰ It was the masters who needed protection from their slaves.

More than simply unwarranted, the antitorture provisions of the Code Noir were also unnecessary given the master's self-interest in the welfare of his slaves, argued Lejeune père. Since the time of the Code Noir's promulgation, “the enlightenment (les lumières) that has penetrated even as far as this colony has civilized minds and demonstrated above all the accord of humanity with the interest of property.” Once strangers to an insignificant slave population, whites had become “so familiar to the slaves” as to no longer require any constraints on their actions other than a concern for the value of one's property and the dictates of humanity. It stood to reason, then, that articles 26 and 42 were rarely if ever enforced in the colony, despite a history of brazenly repeated acts of torture and mutilation. Paradoxically and incoherently, Lejeune père also argued that the antitorture laws signaled to slaves who poisoned their masters that the King's men would protect them from the physical retaliation of their overlords. Nonetheless, Lejeune père insisted that the Code Noir, an “antique law” that “seems to have been made for another colony,” had simply “fallen into desuetude.”Footnote ¹¹¹ By implication, what made his son's prosecution so objectionable and arbitrary was precisely the defunct nature of the Code's prohibition on torture.

All of these points contributed to a portrait of slave society as a place of incipient anarchy, ready to be overturned at the tip of a law. For any law that impinged on “a system of domestic justice enclosed within rightful limits” brought with it the prospect of slave insubordination.Footnote ¹¹² The slaves who gave testimony against Nicolas, argued Lejeune père, were guilty of manipulating the December 1785 royal ordinance—a law that had caused “a lot of noise among the slaves.” Although it had served to mollify planter opposition to the reforms passed the previous year, even the modified ordinance was a means by which slaves could “vex” their masters at will. The prosecution of Nicolas proved that his slaves were aware they could use the colonial legal system to stir up trouble on the plantation. And the quashed prosecution of a planter named Cassarouy in 1770, a year “remarkable” for the “revolution” it witnessed in the “character of our slaves,” was said to confirm the same point. Two prosecutions in twenty years sufficed, in this view, to establish that slaves could threaten the racial hierarchy of Saint-Domingue merely by availing themselves of the colony's legal system.Footnote ¹¹³

Lejeune père conceded that his son had used “a bit of violence,” but only in order to get to the bottom of a secret that threatened the safety of his plantation. Nicolas's crime was therefore attenuated by necessity. By contrast, the plantation on which Zabeth and Marie-Rose labored had always been one of the most “villainous” in the entire colony. The Lejeune slaves had simply failed to “learn” the lesson taught them earlier in the decade, after they had been punished on suspicion of repeatedly using poison against fellow slaves, their master, and his animals.Footnote ¹¹⁴ It was also significant for Lejeune père that Julie, the slave whom Nicolas had accused Zabeth and Marie-Rose of poisoning, was “one of the most beautiful negresses of the plantation.” And notwithstanding the testimony of Pierre Darius, the plantation cook, that Nicolas had used torture on them, Marie-Rose and Zabeth could not have had the “freedom of mind” to make up a “lie” while a flaming pinewood torch was being pressed to their skin.Footnote ¹¹⁵

It remained only for Lejeune père to condemn a character even more “villainous” than the slaves themselves: the investigating magistrate who had taken the initial depositions. Lejeune père accused Montarand of a range of evidentiary and procedural violations in his handling of the case, from failing to ask a single question of either Zabeth or Marie-Rose, to dispensing with the need to seal the container in which the alleged poison was stored. Most seriously of all, upon discovering Marie-Rose and Zabeth on the Lejeune plantation, Montarand had failed to release them from the stone cell to which they were confined, thereby depriving them of urgently needed medical care. Montarand's delayed decision to transport the two women to a different plantation in conditions of rain and cold, Lejeune père charged, was responsible for their eventual demise (Marie-Rose on March 12, Zabeth on March 14): “One can truthfully state that Couët [de Montarand] himself is the murderer of these two negresses.”Footnote ¹¹⁶ Lejeune père concluded by demanding that Montarand be tried for the murder of Marie-Rose and Zabeth, the charges against Nicolas be dismissed, and the testimony of the fourteen slaves be rejected and condemned as seditious, calumnious, and a threat to the security of the colony.Footnote ¹¹⁷

Although clearly rooted in a kind of desperation, these demands at least had the virtue of being consistent with the rest of the elder Lejeune's reasoning, and they must not have sounded as preposterous to contemporary ears as they seem to ours. Montarand himself certainly took the accusations in all seriousness. Three days later (May 24), he replied with a formal declaration maintaining that Lejeune père's petition provided no evidence of a “design” to “get rid of” (perdre) Nicolas, and further failed to establish any of the grounds required by law for the recusal of an investigating magistrate.Footnote ¹¹⁸ Ever the dutiful civil servant, Montarand protested that he had fulfilled “in my soul and conscience” the commission charged to him by the lower court of Cap Français.Footnote ¹¹⁹ Nonetheless, the lower court judges, after a long series of delays, returned a decision nullifying Montarand's findings of fact (procès-verbaux) and dismissing all charges against Nicolas and Magre.Footnote ¹²⁰ We cannot say for certain that Lejeune père's intervention was the pivotal factor, but the holding conformed to his most important demands.

Appellate Intrigue

Were it not for the efforts of the royal prosecutor in Cap Français, Almeida, the Lejeune affair might have ended then and there with the lower court's dismissal. Aware that he enjoyed the support of Vincent and Marbois, however, Almeida succeeded in securing an appeal to the Conseil Supérieur in Port-au-Prince (known since January 1787 as the Conseil Supérieur de Saint-Domingue), a move that stirred outrage among the colony's planters.Footnote ¹²¹

By right of their respective offices, Vincent and Marbois both held seats on the Conseil Supérieur, which added yet another layer of political controversy to this final stage of the proceedings. For it was clear to all involved, and especially to Lejeune père, that the two administrators had already arrived at an understanding of Nicolas's culpability and of the need for a public punishment. On June 26, with the appellate decision still pending, Lejeune père wrote again to Vincent and Marbois, imploring the two administrators to abstain from participating in the hearing of the case, and to discontinue their practice of referring to Nicolas in their official correspondence as “guilty,” rather than merely “accused.”Footnote ¹²²

At some point between this June 26 letter and August 29, when Vincent and Marbois submitted their report to Naval Minister La Luzerne summarizing the entire history of the case, the prosecution of Nicolas Lejeune came to a head. In recognition of the special sensitivity and importance of the case, Marbois had appointed the senior member (doyen) of the Conseil Supérieur in Port-au-Prince to serve as rapporteur (judge-advocate) in the appellate trial.Footnote ¹²³ On the day of the hearing, however, the doyen decided not to show up at the courthouse. C.L.R. James suggests the doyen's nonappearance was prompted by a concern that he would be unable to find enough votes to convict Nicolas.Footnote ¹²⁴ If so motivated, the strategy proved especially counterproductive: by what appears to have been a single vote, the court proceeded to absolve Nicolas once again of all charges. Thus ended the long and hotly contested legal trail of a case unlike any the colony had ever witnessed.

It is difficult to know exactly what happened at the appellate stage of the case to produce this result. As best we can tell, the decision was a dramatically close one: a rare opportunity to affirm the antitorture provisions of the Code Noir had indeed slipped away. On a fourteen-judge court, eight votes were necessary to convict Nicolas, and either seven or eight had made known their sympathy for the prosecution's position in advance of the hearing. One of these belonged to Marbois, who presided over the proceedings as intendant, and another to Vincent. Assuming that six of the remaining judges voted for acquittal, therefore, the administrators’ two votes would have sufficed to convict. But after considering Lejeune père's objections, the Conseil decided to require Marbois to abstain, thereby allowing the decision to go in Nicolas's favor.Footnote ¹²⁵

As Vincent and Marbois later argued to the naval minister, this result could only be explained as the result of a concerted effort at public intimidation of the judiciary that ran the gamut of the entire litigation. Appending and referencing the various letters and petitions from the planters of Plaisance and the northern department in their report to La Luzerne, the administrators sought, in part, to demonstrate just how many colonists had a perceived investment in seeing Nicolas Lejeune avoid a conviction.Footnote ¹²⁶ The hostile “agitation” in Cap Français on the eve of the trial, which culminated in the sénéchaussée's decision to nullify Montarands’ findings of fact, made it further “obvious that the public had intimidated the judges.”Footnote ¹²⁷ In short, as a result of a failure of judicial backbone, the only punishment this “murderer of four slaves” received consisted of an order to “produce” the rest of his surviving slaves upon request and “other provisions no less frivolous in a matter involving human life.”Footnote ¹²⁸ The end result, although a clear corruption of legal justice from one point of view, was perfectly consistent with the Code Noir, which authorized the king's colonial officers, where appropriate, to “absolve” masters found guilty of murdering their slaves, without the need for a royal pardon.Footnote ¹²⁹

In their final summation to the naval minister, the administrators endeavored to impress upon the metropole the depths of the administrative dilemma in which the colony now found itself. The gaping holes in colonial law enforcement, in effect, created a void that could only be filled by the ancient state of war between masters and slaves. Treating whites dramatically different from blacks when it came to the punishment of crime was not a reliable formula for achieving stability in Saint-Domingue, the administrators argued. In fact, it tended to produce just the opposite effect: “[I]t does not seem that the judicial system has at any time reprimanded the inhumanity of the masters, and this erroneous policy that leads to punishing blacks severely [while] pardoning whites for everything they do has not produced the anticipated effect.”Footnote ¹³⁰ The slaves simply continued with their “insubordination” and the masters “with their cruelties.” It was for this reason that Lejeune père, no longer feeling himself safe on his own plantation, had decided to abandon it to his son in the first place. And Nicolas’ pathological mismanagement ended up reproducing the same cycle of violence and retribution that the authors of the Code Noir had sought to foreclose back in 1685.Footnote ¹³¹

None of Lejeune père's conspiratorial ramblings and denunciations could alter this reality, said the administrators, and the evidentiary basis for the case was unimpeachable in any event. The deposition of the fourteen slaves was entirely consistent with their initial declaration before the sénéchal in the Cap Français prison. And it was no accident that the seven witnesses who testified in Nicolas's favor were all white.Footnote ¹³² The evidence provided by Nicolas's cook, Darius, also confirmed the allegations of the fourteen slaves, who could not have coordinated their story with his while imprisoned far away from the location of the Lejeune plantation in Plaisance. Moreover, the elder Lejeune had neglected to mention that Julie—the slave alleged to have been poisoned—had fallen ill two months before her death as a result of complications arising from childbirth.Footnote ¹³³

For his offense in manifesting “zeal for humanity,” meanwhile, the hapless Montarand had been punished with a humiliating injunction.Footnote ¹³⁴ The investigating magistrate had earned this dishonor not because of mishandled evidence or irregular interrogations, wrote Vincent and Marbois, but rather because of his “humanity and zeal.”Footnote ¹³⁵ The campaign to discredit and vilify Montarand, the “first officer of justice who dared to raise his voice in favor of the negroes” in order to protest “one of the greatest outrages done to humanity,” was yet another example of the role of public intimidation in the proceedings. The “vehemence” and “vigor of the attack” directed against him were clearly intended “to discourage . . . all those who might be tempted in the future to lend their hand to this unfortunate class.”Footnote ¹³⁶

The failure to lend such a hand spoke to the inherent limits of judicial institutions in slave societies (although perhaps not only in such societies). “How many secret evils the eye of the courts is incapable of penetrating!” Vincent and Marbois exclaimed. Each new case that “publicly demonstrate[d]” the “impotence” of the colonial administration and legal system made it increasingly harder to set any effective limits on the autonomy of the planters and on their potential for causing unintended social upheavals. The Lejeune scandal involved not just any form of administrative “impotence,” however, but a particularly insidious kind that resulted from the “courts join[ing] forces with barbarous colonists in the oppression of [their] unfortunate [slaves].” For a century such oppression had been allowed to go unpunished. Finally, after so many atrocities that the judiciary was unable to reach, an ideal case for conviction had presented itself. And yet “the judicial system chooses to let slip this unique opportunity to arrest, by means of a single example, the course of so many cruelties.”Footnote ¹³⁷

We do not know how the naval minister may have reacted to this report, but its casting of moral issues in a prudential framework both reflected and appealed to the complex motives of an imperial administration deeply concerned with the reform of slavery. Vincent and Marbois did not shy away from speaking directly to the “considerations of humanity” that figured in the case, and to what they regarded as La Luzerne's own concerns in this regard. “You are privy to all the misfortune of [the slaves’] condition, whatever pains are taken to hide a part of it from the administrators,” they respectfully (if self-servingly) noted. “And we know how much you would like to be able to ease the wretchedness of this class of men.”Footnote ¹³⁸ At the same time, the pragmatic consequences of the Lejeune case were unavoidable. From this perspective, judicial integrity and courage were intimately linked to the colony's security. If they were to sustain the rule of law within the political constraints of a plantation society, judges required incentives and assurances. The outcome of the Lejeune affair, howeverd, made it highly improbable that other magistrates would follow Montarand's precedent and risk public defamation in order to pursue investigations of planters and their agents. Terrorized slaves would be left with “no other resource than vengeance and no other feeling than desperation.” And whereas the prospect of “general revolts strike[s] us as little to be feared,” the report continued, individual revolts must be averted “in order to prevent [the need for] punishments.”Footnote ¹³⁹

This fusion of moral and precautionary considerations itself had a very practical and immediate purpose: to persuade the naval minister “not to let the transgressions of Lejeune go entirely unpunished.”Footnote ¹⁴⁰ Vincent and Marbois requested that the King declare Nicolas incapable of owning slaves in the future and order him deported to France if the fugitive planter ever dared to reappear on his father's plantation. And by giving “publicity” to such orders, the damage caused by Nicolas's acquittal might still be undone.Footnote ¹⁴¹

If Vincent and Marbois believed that all hope for the colony was not yet lost, it was in part because their critique of the Lejeune dynasty served also to defend the non-refractory planter population. The majority of colonists adhered to a “moderate regime” on their plantations, claimed the administrators, and by 1788 the “rigors of slavery” had become less pronounced than they were twenty years ago. But there remained “entire areas [of the colony] where the old barbarism still exists in all of its force.”Footnote ¹⁴²