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.