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Slavery, Freedom, and the Law in the Atlantic World, 1420-1807

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Slavery, Freedom, and the Law in the Atlantic World, 1420-1807 CHAPTER 23 SLAVERY, FREEDOM, AND THE LAW IN THE ATLANTIC WORLD, 1420–1807 sue peabody To trace the development of slavery and its legal manifestations over the early modern period is to tap some of the larger transformations of the Atlantic world as a whole. In the fifteenth century, slaves constituted a small but recognizable segment of most African, European, and American societies. Some societies with strong imperial traditions (Roman, Islamic, Itza, and Aztec) contained many references to slaves in their commer- cial, marital, inheritance, civil, and criminal law. Others, with no written traditions or living in relative isolation, developed customs surrounding the intersection of military captivity, labor obligations, and kinship ties that define slavery and free status, which they enforced communally. As European maritime activity transformed the Atlantic Ocean from bar- rier to facilitator of conquest, migration, and commerce over subsequent centuries, slavery became central, or at least implicitly related, to nearly every society on all three continents. The new plantation complex, with its insatiable demand for laborers, generated new legal systems to enforce compliance. As American colonists became increasingly impatient with metropolitan (European) political control toward the end of the eigh- teenth century, antislavery discourse fueled much of the political rhetoric of the Revolutionary era, ushering in the republicanism, nationalism, and the constitutional framework of the modern period. In this chapter, I have sought to put the slave’s experience at the center of the story. It is important to see law as a product of social relations, reproduced by successive generations of historical actors. To this end, I have tried to identify the personnel, institutions, and concepts of the law that a slave might encounter at each step of the way, from enslavement, through daily life, to efforts to win free status. How are these processes similar in the various African, European, and American societies for which we have records, and how do they differ? Most important, by tracing the changes in slave law from the fifteenth through the early nineteenth centuries, we can glimpse the greater transformation from tribal and feudal forms of justice to the judicial institutions embedded in the modern nation- state. 594 Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 595 slave law in societies without writing Anthropologists have long wrestled with the problem of recognizing law in societies with minimal social stratification. Bronislaw Malinowski pro- claimed that the difference between custom and law was in the latter’s enforcement by “a direct, organized and definite social sanction.”1 E. Adamson Hoebel, studying the political structure of the North Ameri- can Comanche Indians, pushed this distinction further by emphasizing that a social group must designate certain of its members to apply physical force to maintain specific social norms. When society authorizes the use of force to police its members, whether or not a formal state is in existence, that society can be said to have law. One of the key developments over the early modern period is the degree to which people’s lives became increasingly inscribed within systems of writing. Scholars have not fully analyzed the relationship between writing and systems of law, but one certain effect of writing is the ability to transmit information and authority beyond face-to-face contact. That is, for societies without writing, most law is community based. Once a system of writing is employed, legal authority has the potential to be sustained and regularized beyond the immediate confines of time and space. As aconsequence,writtensystemsoflawtendtobeconservative,bringing older legal categories and understandings into new situations. Conversely, however, writing also facilitates legal disputation with past authorities, thus permitting both fundamental attacks on older systems of understanding and the dissemination of these challenges to wider audiences. Written records are key not only to the functioning of modern legal institutions, but also to the writing of history itself. When we try to understand the development of slavery and the law – particularly for the early modern period – we are hampered by the preponderance of written evidence from societies and empires that generated text and the relative paucity of detail for societies without writing systems. Many pre- Columbian American and African societies had no system of writing, and, as European literacy was confined primarily to elites associated with the church during the Middle Ages, many Europeans too only appear in the historical record as they come into contact with systems of religious or political authority, including judicial courts. Islam and commerce also helped to create records of slave law from the Mediterranean to the Middle East. Evidence of legal understandings of slavery in the nonliterate societies therefore comes primarily through contact with outsiders who left records of their encounters. 1 Bronislaw Malinowski, The Family Life of the Australian Aborigine (London, 1912), p. 115. Cambridge Histories Online © Cambridge University Press, 2011 596 the cambridge world history of slavery Even so, outsiders do provide some vivid evidence for how judicial systems functioned in some nonliterate societies. As in medieval Europe, many West African societies resolved their disputes in a trial before the king, noble, governor, or chief. However, African rulers generally consulted community elders for their advice, and in some kingdoms (e.g., the Papels, the Beafadas, and the Sapas of Upper Guinea), the prospective king was bound and beaten as a fundamental rite of coronation to teach him how to administer justice fairly. The Portuguese traveler Andre´ Alvares d’Alamada, writing at the end of the sixteenth century, describes a judicial trial in the kingdom of Borc¸alo (Gambia): “One party presents its case, the other argues against it; evidence is then brought forward, and the matter is resolved between them.” When the evidence in a given case was inconclusive, West Africans, like some Europeans, used a trial by ordeal to determine the guilt or innocence of the accused. Alvares describes an “ordeal by iron” this way: They bring to the place a blacksmith or they go to his house. He puts a small piece of iron in the fire and works the bellows until the iron becomes as red as a live coal. The person who has to undergo the ordeal says these words: “God knows the truth; if I have done such and such a thing, as is said of me, may this iron burn my tongue so that I never speak again.” As soon as these words are said, the blacksmith picks up the iron with his tongs, so that a thousand sparks dart from it, and the person who said the words takes the tongs in his hand, and licks the red-hot iron with his tongue thrice. If he is unharmed, he and his supporters prance around and sentence is given in his favor. But those who do not dare to take the ordeal are condemned. Alvares may not have been aware that blacksmiths are not mere tradesmen in Wolof society but are ritual specialists, believed to possess supernatural powers. Thus, the trial had spiritual overtones. One should not assume that societies without writing systems had sim- plistic legal cultures or that judicial systems built on writing were inher- ently rational or sophisticated. In the sixteenth century, the Papels of what is now Liberia distinguished between five categories of property, and the secret societies of Sierra Leone developed complex judicial insti- tutions and rituals, to name but two examples. Lack of evidence about indigenous systems of justice should not be taken as an absence of legal institutions. At the same time, there is ample evidence that legal decisions based on random or divine intervention continued under European aus- pices into the nineteenth century. For example, in the 1850s, a Spanish priest mediated the dispute between two rival Pueblo communities in New Mexico by asking two little girls, one from each group, to draw Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 597 lots. The priest rendered his judgment for the winner, declaring it God’s decision.2 imperial justice systems in america, africa, and western europe Not all pre-Columbian American societies were illiterate. The highly strati- fied Aztec and Incan empires had developed both systems of slavery and law, as well as writing systems that make them accessible to historical research. Of the two empires, the Aztecs seem to have had the most differentiated legal structure, with a supreme legal council devoted to judicial functions. An early Aztec legal code, represented in pictorial glyphs, served the needs of a hunter-gatherer society; this became elaborated into eighty laws by the time of Spanish contact. Many of these indigenous courts persisted into the period of Spanish conquest, functioning almost as lower courts beneath the Spanish audiencias. Castilian society in Spain during the time of American conquest was extremely litigious, with lawsuits, counter-suits, and appeals prolonging legal disputes for many years. Since the Middle Ages, Spanish civil law was heavily dependent upon written procedures. The plaintiff filed an initial, written complaint, to which the defendant was required to reply. All testimony and evidence was presented in writing. At a hearing,
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