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.

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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, the jurisconsults (abogados)arguedthecasebeforethejudges.Thecourtren- dered its final decision (sentencia) in writing, typically without justification, so that unlike in English law, Spanish and Latin American courts did not develop a tradition of using the prior decisions as a source of law. The frantic legal activity of Spain’s early imperial period declined – at least in Europe – during the second quarter of the seventeenth century until the early eighteenth century. English judicial practices diverged significantly from systems on the European continent. English law dictated that the accused receive a trial before a jury of their peers, presided over by a judge, whereas in Europe most cases were tried before a panel of judges. Moreover, English judges generally delivered “reasoned” opinions, which established precedent for future cases. Although continental law took prior decisions into account, judges were expected to deduce law, not make it, and hence did not provide an account of their deliberations or rationale for their conclusions. Though numerous schools of Islamic jurisprudence have emerged over the centuries, Sunni Islam recognizes four complementary schools, each

2 Deborah A. Rosen, “Acoma v. Laguna and the Transition from Spanish Colonial Law to American Civil Procedure in New Mexico,” Law and History Review, 19 (2001): 513–46.

Cambridge Histories Online © Cambridge University Press, 2011 598 the cambridge world history of slavery dominant in a particular area: Maliki (Spain, northern and western Africa), Hanafi (Turkic Asia), Shafii (Egypt, eastern Africa, and Southeast Asia), and Hanbali (Saudi Arabia), whereas Shiite jurisprudence (jafari)isprominent in Iran and other enclaves in the Middle East. The Maliki school, founded by Malik ibn Anas (c.713–c.795)inMedina,hadthestrongestinfluenceon Atlantic slave law. Muslim imperial policy favored allowing subject non- Muslim populations to maintain their own legal systems; this was true in the Iberian peninsula before the reconquista as well as in West African societies. Because slavery is such an ancient and pervasive institution, it is rarely defined succinctly in legal codes. Rather, one must piece together the defi- nition of slaves out of numerous provisions. Under both Islamic law and in most Atlantic regimes, slaves were heritable property. In medieval Spanish law, the slave was represented as part of the extended “familia,” and the distinction between slaves and serfs was not clear-cut. Spanish law makes it clear that the slave had no power of movement and lived in servitude to a master. Modern historians have made much of the inherent dual nature of the slave as both person and thing – slaves have both will and agency, yet they are also considered property by law. Conversely, slavery implies its opposition: free status. In Spanish medieval law, liberty is defined as “the power which every man has by nature to do what he wishes, except where the force of law or privilege prevent him” (Siete Partidas of 1555,Vol.3,Tit.34,Regla2). In Botswana, slaves’ status (batlhanka) is compared with that of children, but the com- parison only holds up so far. Unlike the child, the slave could not inherit the master’s property, nor could slaves establish independent households upon reaching adulthood. Less a matter of law than of custom, the preference for women and children as slaves in pagan and Muslim Africa meant that the descendents of slaves were often absorbed into the extended kinship structures over several generations. Legal statutes, regulations, laws, and codes generally reflect the desire of societies’ leaders to control their subordinates. However, as prescriptive texts, they are not necessarily an accurate reflection of lived experience. Indeed, written legislation is often an inverse indicator of the behavior it tries to control, as for example, repeated issuance of regulations prohibiting slaves from gathering in public places or requiring masters to pay a poll tax. Once committed to writing, laws can be recalled by successive generations to try to preserve or renew the privileges of a particular social class or group. Laws are relatively easy to study for historians, and much has been written about them. The behavior of regulated people is much messier and more difficult to recover for the early modern period, though the records of judicial enforcers (police, courts, etc.) provide a rich wealth of evidence that is still under exploration.

Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 599 Most societies with slavery in Africa, Europe, and America – and cer- tainly all of those who built empires – gave certain of its members the privilege of making laws. Islamic law (shari’ah)isbaseduponfourtextual sources: the Qur’an; the example of the Prophet as related in the core biographical texts (hadith); Muslim consensus (ijma’), understood to be consensus of doctors of law; and reasoning by analogy (qiyas). According to this system, all human action can be evaluated as obligatory, meritori- ous, permissible, reprehensible, or forbidden. Two legal texts that enjoyed wide influence in west and central Muslim tropical Africa are the Risala of Ibn Abi Zayd (tenth century) and the Mukhtasar of Kahlil ibn Ishaq (four- teenth century). In Europe, canon law had no direct bearing on slaves per se, though in the Americas missionaries sometimes interceded in secular courts on behalf of slaves. European lawgivers were generally monarchs, but the legislation itself was often drafted by noble officeholders, bureau- cratic functionaries, or jurists. In some part of Europe, laws could also be written by elected bodies, such the British Parliament; though the privilege of electing was severely circumscribed by age, gender, and wealth. Most European monarchs appointed governors to rule their overseas territories, but due in part to their distance from the metropole, local councils arose in many colonies (Spanish America: cabildos;English:assembliesorHouse of Burgesses; Dutch: Raad), who made laws that applied only within their territories.

Islam Islamic law, or shari’ah,containsmanyreferencestoslavesandslaveryin a wide range of contexts (inheritance, marriage, commercial law, criminal law, etc.), reflecting the importance of this category to medieval and early modern Islamic societies. Islamic law does not permit Muslims to enslave other free Muslims, though, as in other religious traditions, the determina- tion of who is a legitimate believer of the “true faith” was often contested. As a result, captives taken in a holy war (jihad) could be enslaved, even though they considered themselves Muslims. The seventeenth-century scholar Ahmad Baba of Timbuktu rejected the idea that free black Mus- lims could legitimately be enslaved – though apparently the practice was widespread in his time and continued to occur at least into the late nine- teenth century. He specifically rejected the justification that blacks were marked for enslavement by the curse of Ham.

Rome Since the Roman imperial era, European law considered slaves to have a double nature: On one hand, they were property; on the other, they were

Cambridge Histories Online © Cambridge University Press, 2011 600 the cambridge world history of slavery people. As such, Roman law treated slaves as both as chattel, much like horses or cattle, and as persons with the capacity to be held responsible for their actions. However, Roman law treated slaves, as dependents, dif- ferently from free, adult, male citizens. As things and as persons, slaves appear in many areas of Roman private law, including inheritance law, criminal law, commercial law, and so on. Roman slaves constituted slightly more than a third of the Roman population, coming from all reaches of the Roman Empire, and they were employed in a wide range of posi- tions, from agricultural workers and servants to medical doctors and bankers. The one area of Roman law that dealt exclusively with slaves was the law of manumission, which regulated the transition from slave to free status. Roman law favored manumissions, and they were very common. A master could free his slaves with relatively few restrictions, whether by an act of manumission or by testament. Freedmen (who had been manumitted during their own lifetime) did not enjoy the same rights as freeborn people, but their children did. In the sixth century, the Roman emperor Justinian completed a major overhaul of the wide-ranging and fractious legal code. Justinian’s new, organized Corpus Juris Civilis influenced most continental European legal systems, allowing many threads of continuity with both the past and among the Atlantic colonial slave regimes.

Spain and Spanish America The most important legal codes bearing upon slavery in the Spanish Empire originated in the kingdom of Castile. In the midst of the Christian recon- quest of Muslim Iberia, the Castilian king Alphonso X promulgated a model set of laws, heavily influenced by Rome’s Justinian Code. This compilation, known as the Siete Partidas (1265), formed the backbone of Spanish private law, including slave law, for more than five hundred years. These laws applied to Castile itself, as well as to Spanish territories overseas. European crowns and colonial governments also promulgated new laws that would apply only to their new world colonies. For example, the Laws of Burgos of 1512 prohibited the enslavement of Indians in Spanish America, though conquistadors and their descendents found other ways to compel Native Americans’ labor through encomiendas,forcedmining, and other forms of tribute. Indian slaves who successfully sued in colonial courts, proving their enslavement unjust, could win exemption from tribute payments and forced labor, at least temporarily. Spanish town councils, or cabildos,passedinnumerablepiecesoflegislationaimedatcontrollingslaves and free people of African descent. For example, many prohibited slaves from carrying arms, traveling from their homes at night without a pass, attending Indian markets, engaging in trade, or cutting down trees.

Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 601 In 1680, Carlos II promulgated the Recopilacion´ de las Leyes do los Reinos de Indias, a consolidation of all previous Spanish American colonial law. The Recopilacion´ took the myriad local colonial laws, each issued for specific jurisdictions and extended them to be consistent throughout Spanish American territory.

Portugal and Brazil The Spanish and Portuguese crowns were unified from 1580 until 1640, after which Portugal and Brazil became independent from Spanish rule. In contrast to the heavily bureaucratic and centralized Spanish crown, Por- tuguese slave legislation tended to be more local in nature, originating in the town councils with occasional royal intervention. Under Hapsburg rule, the Spanish prohibition of enslaving Indians was extended to Por- tuguese territory in 1587.AsubsequentHapsburglawof1595 renewed the prohibition against enslaving Indians and formally codified the theory that slaves could only be legitimately captured in a “just war,” in this case a military action authorized by the crown.

The Netherlands, Suriname, and Dutch Antilles Unlike the Iberians, whose proximity to Mediterranean trade made slavery apersistentlegalcategorythroughouttheMiddleAges,theDutchhad very little medieval contact with slaves. Hence, the seventeen provinces that comprise Belgium and the Netherlands found themselves with no indigenous legal traditions regarding slavery when they were drawn into the wider Atlantic empire under Charles V in the early sixteenth century. Some historians feel that the Dutch therefore fell back on Roman legal traditions (e.g., status follows the mother), but it seems likely that they were equally influenced by the pragmatic needs and developing customs of slaveholding in the American colonies. In 1686,theDutchgovernorofSuriname,VanSommelsdijck,con- cluded a treaty with three Native American peoples, the coastal Caribs, the Waraus, and the Arawaks, which declared them all free, unenslavable peo- ple, except as punishment for specific crimes. However, this did not apply to inland indigenous people, and soon there developed an economy of captives, with coastal peoples raiding those in the interior to supply Euro- pean colonists’ demands. During that same year, Van Sommelsdijck issued the first Plantation Regulations that would be modified by his successors during the eighteenth century. As Dutch colonial slave law developed in the seventeenth and eighteenth centuries, the regulations of the Dutch Antillean trading centers of Curac¸ao and St. Eustatius were considerably milder than those of the plantation colony of Suriname. Throughout the

Cambridge Histories Online © Cambridge University Press, 2011 602 the cambridge world history of slavery Dutch Atlantic, laws forbade marriages between blacks and whites and sought to preserve the social distance from their masters by such measures as prohibiting slaves from smoking a pipe in public or wearing shoes.

France and Its Colonies While slavery persisted along France’s Mediterranean coastline in the region of Provence throughout the medieval period and into the seventeenth century, it disappeared more or less completely from the legal system of northern France (Ile de France) and the Roussillon region of southwestern France. Parisian customary law and royal statutes made no mention of slavery. Whereas the Spanish and Portuguese Atlantic empires expanded rapidly in the sixteenth century, France’s few attempts at American colo- nization in Brazil and Florida were brief, ill-fated, and overshadowed by civil religious strife. In 1570,theFrenchwriterFranc¸ois de Belleforest fanned nationalist flames by celebrating a supposedly ancient sea-faring tradition: The custom is such that not only the French, but foreigners arriving in French ports and crying “France et libert´e,” are beyond the power of those that possess them; [their owners] lose the price of the slave and the service of the slave if the slave refuses to serve them. Subsequent French jurists fashioned a legal maxim, or Freedom Principle, from this custom that courts upheld with the force of law: “All persons are born free in this kingdom; and as soon as a slave has arrived in the borders of this place, being baptized, is freed.” Although merchants of the Norman cities of Dieppe and Rouen financed slave-trading companies to transport slaves between West Africa and Brazil in the second half of sixteenth century, African and Native American slaves appeared in continental France only rarely, generally as servants or exotic curiosities. As in the Netherlands and Britain, there was no royal or provincial legislation to regulate their status, treatment, or sale. Indeed, the lack of unified French policy toward slavery can be seen in the famous case of 1571, when a Norman slaver attempted to sell a cargo of slaves in Bordeaux. The regional parlement (high court) intervened with the proclamation that “France, the mother of liberty, doesn’t permit any slaves.” Yet, surely the NormanmerchantswereasmuchapartoftheFrenchpolityastheburghers of Bordeaux. Over the seventeenth century, slavery grew steadily in the French colonies of New France (Canada), Martinique, Guadeloupe, and Guiana, with customs adapting to circumstances and no formal royal regulation (save several letters patents, beginning in 1634,authorizingexclusiveAfrican slave-trading monopolies to private companies). Royal and local officials

Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 603 issued piecemeal slave legislation as plantations became central to the Caribbean colonies. Under Louis XIV, French slave law was systemized as the Code Noir (1685). The Code Noir comprised sixty articles regulating religious uniformity of the colonies, treatment and policing of slaves, slaves as heritable and commercial property, and their passage to free status. Viewed by many historians as somewhere between the protective and humane Spanish codes and the harsher laws of the British and Dutch, the Code Noir would gradually lose many of its moderating provisions to subsequent colonial legislation of the eighteenth century, which sought to control the overwhelming expansion of the slave population. Over the course of the eighteenth century, the French crown sought ways to accommodate slaveholders who wanted to bring their slaves to France from the colonies without fear of losing them to the Freedom Principle. The king issued edicts in 1716 and 1738 designed to permit masters to bring a handful of slaves to France temporarily for training in trades or religious education. Provincial judicial courts (parlements) along the Atlantic and Mediterranean coasts registered these laws immedi- ately because their economies were already tied to slave-related economic activity. However, the Parlement of Paris, whose jurisdiction comprised athirdoftheterritoryofFrance,refusedtoregistertheselaws,invoking the Freedom Principle: that slavery was antithetical to France. Not until the Minister of the Marine substituted the word “blacks” (noirs) for “slaves” (esclaves)inthe1777 Declaration pour la Police des Noirs did the Par- lement of Paris retreat from its earlier scruples. By then the racist doc- trine of the inherent inferiority of blacks had received widespread accep- tance among France’s elites, who were now ready to prohibit the entry of all nonwhites into French territory. The 1777 law appears to have been enforced only selectively as Thomas Jefferson, for example, is known to have brought several black slaves, including Sally Hemings, to Paris in the 1780s.

England and Its Colonies Much like the Dutch and the French, the English had no tradition of statutes regulating slaves per se. The medieval category of villein or bonds- men – though still mentioned in certain early modern legal tracts – had virtually died out in practice by the second half of the sixteenth century. As English colonization expanded rapidly in the seventeenth century, proxim- ity to Spanish, Dutch, and Portuguese Caribbean supplies of African and Indian slaves led to increased reliance on slave labor. Englishmen used the existing property law to cover the sale, inheritance, mortgaging, and so on of slaves as both real and chattel property. But as the slave populations of many American colonies grew in the seventeenth century, English colonial

Cambridge Histories Online © Cambridge University Press, 2011 604 the cambridge world history of slavery assemblies in Barbados, South Carolina, Virginia, New York, and other colonies each established their own independent regulations. In practice, these laws generally resembled one another through the mid-eighteenth centuries. As the enslaved populace came to outnumber free colonists, British American slave law developed increasingly harsher mechanisms of control and punishment. For example, in the 1690s South Carolina imported the mature Barbadian slave code wholesale. The absence of a strong missionary impulse early in the Protestant colonies also militated against the humanistic elements of some Latin American slave codes.

enslavement There is remarkable continuity in the ways that European, African, and American societies legitimated the process of enslavement. Robin Law, surveying many European travelers’ records with an eye to what they tell us about West Africans’ ideas about lawful and unlawful slavery, notes many consistencies with the Christian-European and Muslim traditions. Like Muslims and Christians, non-Muslim West Africans permitted only outsiders to be legitimately enslaved. The difference is in the social bound- ary between insider and outsider: Ethnic or political ties were the crucial distinction in West Africa, rather than the religious boundaries enforced by Muslims and Christians. For example, many African kingdoms prohibited the enslavement of those born within the kingdom; some extended this category to those who wore the abaja, or facial scarifications. Like Euro- peans, Africans accepted warfare as a legitimate means of taking people captive, whereas enslavement through kidnapping or banditry was pro- scribed. In practice, however, such distinctions merely validated the power of certain leaders (royalty, chieftains) while fending off rivals of a lesser scale. Yet many West African societies came to allow for the enslavement of their own people through judicial processes. In the late sixteenth century, men of Beafares found guilty of adultery or murder could be punished with enslavement, sometimes to the man whom they had offended. Spanish Capuchins reported disapprovingly that judicial proceedings were used to enslave commoners along the Upper Guinea Coast in the late seventeenth century. According to them, upon conviction, “the poor person starts to clamor, saying ‘Senor, don’t kill me, sell me for rum.’” Oral traditions in Botswana tell that poaching on fishing grounds could be punished with a kind of enslavement:

If members of one village poached on the fishing grounds of another, the headman of the aggrieved villages seized the offenders, who not only were deprived of their

Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 605 catch and fishing gear, but also were forcibly incorporated into the village of their captor, where they rendered him service for some time, after which they were allowed to enjoy full citizenship.3 Other sources suggest that when a convicted criminal was not able to pay a fine, the sentence might be transmuted to slavery. The sixteenth- century Portuguese traveler Alvares d’Almada wrote: “Often men become slaves [through judicial sentences], along with their whole lineage. . . . In particular, they condemn witches, whom they sell with all their lineage, down to the fourth generation.” Indeed, historians Walter Rodney and Walter Hawthorne argue that the Atlantic slave trade was responsible for transforming the penalty of fines into enslavement throughout much of West Africa. The early modern African judicial system may have been considerably more humane than its European counterpart because it limited capital punishment solely to the crime of homicide. Yet it is clear that African elites who benefited from the Atlantic slave trade took advantage of their positions as judges to arbitrarily condemn their enemies and vulnerable commoners to slavery. It is important to emphasize that the proportion of people enslaved through judicial processes was considerably smaller than those who were taken as captives of war. There are many parallels between slavery as it functioned in West Africa and in indigenous North America societies such as the Apache, Comanche, Navajo, Pawnee, Pueblo, and Ute peoples. In both regions, warriors enslaved their captives, with a predominance of women and chil- dren, who then became absorbed over several generations into kinship networks. However, evidence of indigenous legal practices in nonliterate North American societies prior to European conquest is very limited. In pre-conquest Aztec and Texcoco societies, certain crimes, such as petty theft, were punished with enslavement (though in Texcoco, only if the stolen item was recoverable; theft involving property damage or valuable items was punished by death). Spanish conquerors took many Indian captives from these regions during the sixteenth through the nineteenth centuries, whereupon they came under Spanish imperial law. Though the enslavement of Indians was prohibited from 1542, such captives could be purchased by new Spanish owners through the fiction of paying their “ransom.” Between the 1685 and 1825,Francecondemnedmorethantenthousand criminals to terms as galley slaves (galeriens). Many such prisoners in the

3 Thomas Tlou, “Servility and Political Control: Botllhanka among the BaTwana of Northwestern Botswana, ca. 1750–1906,” in Suzanne Miers and Igor Kopytoff (eds.), Slavery in Africa: Historical and Anthropological Perspectives (Madison, WI, 1977), p. 373.

Cambridge Histories Online © Cambridge University Press, 2011 606 the cambridge world history of slavery late seventeenth century were Huguenots, persecuted for their religion. By the eighteenth century, most of the French galeriens were convicted of petty crimes, such as theft, smuggling, or military desertion. Most were young, unemployed, or laboring men in their twenties, sentenced to serve out their lives in the galleys. It may be questioned whether a sentence of hard labor on these ships in fact constitutes enslavement. Certainly, this punishment was not passed on to the slaves’ children, which distinguishes these sentences from the Atlantic slave system. Yet one cannot deny that the convicts’ experiences on ships, subject to the whip and other brutalities, were as wretched and hopeless as those experienced during the Middle Passage or on American plantations. Perhaps only forced mining or the harvesting of sugar can compare in terms of violence, mortality, and depredation. Two additional types of enslavement were generally recognized as legiti- mate by both Europeans and West Africans: “pawning” and “panyarring.” In the case of pawning, Africans might place one of their family or clan with European traders as collateral for goods advanced by the Europeans. When the Africans returned with the slaves, the relatives would be released (and if not, the Europeans would theoretically be entitled to enslave the pawns and sell them). Panyarring (from the Portuguese, penhorar´ ,todis- train), was similar, except that in this case, Europeans (or other Africans) might seize a debtor’s relative or associate to enforce the payment of debt. Robin Law notes that when Europeans acted on these “rights,” they ran the risk of alienating the trading communities. Indeed, sometimes Euro- pean traders went to great lengths to recover the enslaved African affili- ates – even from the American slave colonies – so as to restore the con- fidence and partnership of their African trading partners. Law correctly points out that by supporting such notions of “legitimate” and “illegit- imate” enslavement, traders merely reinforced the system of slavery as a whole. Aztecs permitted people to become enslaved through capture in battle, being sold by one’s parents, selling oneself, or as punishment for a crime. Not all slaves were equal in Aztec society, however; those with a contractual relationship with their master were on a higher footing than those who became slaves as punishment for a crime. However, unlike slavery in Europe and African law, slave status was not heritable; that is, the children of Aztec slaves were free. Africans and indigenous Americans were not the only Atlantic peoples enslaved during the early modern period. From at least the Middle Ages, North African corsairs preyed upon European sailors and coastal residents and sold them into the Arab slave market of North Africa and the Ottoman Empire. The wealthier captives were usually held for ransom, sometimes paid by their families or municipal councils or, increasingly over the

Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 607 seventeenth and eighteenth centuries (in the case of French subjects), by the crown.

regulating conditions of slavery If Muslim, West African, and European legal traditions all concurred on the principle that enslavement was justified through the capture of enemies as prisoners of war, the status and conditions of the enslaved and their ability to be absorbed into the kinship structures of the ruling elites varied considerably over place and time. Roman law neglected to regulate many areas of private relations – includ- ing master-slave relations – according to the principle “law keeps out.” Consequently, many aspects of early modern legal codes that attempted to regulate master-slave relations in the Atlantic world were innovations, arising out of the circumstances and desires of the slaveholding class. It is also important to underscore that merely creating law about the conditions of slavery did not assure that the law was enforced. There was often a discrepancy between what the codes prescribed and the actual conditions of slaves and free people.

Protection Most American slave societies had laws on the books aimed at protecting slaves from abuse and neglect. The seventeenth-century Spanish jurist Juan de Solorzano (1648)emphasizedthatmasterswhoabusedtheirslaves–by working them too hard; feeding, clothing, or housing them inadequately; sexually abusing them; or prostituting them to others – could be punished with fines or the slaves’ manumission. The French Code Noir (1685)andthe regulations of the Dutch West India Company required masters to provide their slaves with shelter, adequate food, and clothing. But many planters dispensed with this obligation by designating garden plots for slaves that the slaves themselves had to maintain in their meager spare time. Though a Barbadian law of 1688 required masters to provide their slaves with caps for men and petticoats and caps for women, the penalty for failing to comply was only five shillings per slave. And although the South Carolina Black Code of 1690 required all slaves to be furnished with “convenient clothes, once every year,” the revised code of 1696 did away with this provision. The lack of variety in the diet could easily lead to malnutrition, and drought, hurricane, or overwork often pushed slaves to starvation. Slaves in the British West Indies were legally subject to their masters’ discipline, which meant that prosecution for physical abuse was rare. In Spanish America, the punishment for harming or abusing one’s own slave

Cambridge Histories Online © Cambridge University Press, 2011 608 the cambridge world history of slavery was the freeing of the slave, which – in combination with prosecutorial advocacy – gave slaves in Spanish America more leverage for better treat- ment.

Slaves’ Capacity as Plaintiffs, Witnesses, Defendants Slaves had limited legal personhood under all of the legal systems that touched upon the Atlantic world. Under Roman law, slaves could not be parties to a civil suit – that is, they could neither be plaintiffs nor defendants, except in cases where their status was in dispute (freedom suits). Nor could Roman slaves accuse others of a crime, though they could be tried for criminal actions. However, Roman slaves were permitted to offer testimony in certain cases, except that their testimony was never admitted to contradict that of citizens, and the law required that they be tortured prior to giving testimony, presumably to ascertain that they would tell the truth. Within Islamic law, slaves were not permitted to testify in court unless to confess to a crime (and then, only if it did not relate to his master’s property). Though the evidence dates from the later, more documented colonial period, it is clear that Mende slaves (nduwanga)inSierraLeone were prohibited from suing in the customary courts, though others could act for them. In many American colonies (e.g., Suriname, Jamaica), neither slaves nor free blacks were permitted to testify against whites. If wronged, their only hope was to find one or more white intermediaries to testify on their behalf. Virginia law prohibited blacks access to jury by peers, the right to counsel, and the right to address the court on their own behalf. In 1711,theFrenchroyalgovernmentrestrictedtheslave’srighttoappealhis or her sentence only to cases involving hamstringing or the death penalty. Since Roman times, there were legal provisions for those who were unjustly enslaved to challenge their enslavement in court. Although slaves generally did not have standing to bring a suit in court, there was an exception for those who claimed to be free because, if they were indeed free, they would have the capacity to sue. In this way, the law tended to presume freedom until slave status could be proven. In English colonies, slaves whose masters had promised to free them by testament could petition the court through free people (“next friends”). Some lawyers and judges, particularly as the abolition movement took hold in the late eighteenth century, took on the cases in forma pauperis (without payment).

Work During the early modern period, prior to the organized labor movements of the nineteenth and twentieth centuries, there were few limits on the hours or conditions anyone could be required to work. This was true

Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 609 in Europe as well as for slaves in the Americas. Most European colonies forbade masters from making slaves work on Sunday, though at the height of sugar harvesting, such niceties might be waived so as to process the cane before it spoiled. In 1707,JewishmastersintheDutchcoloniesresisted the Christian regulations, preferring to keep Saturday as the Sabbath and to work their slaves on Sunday instead.

Control Aztec law required that masters treat their slaves well. However, for repeated misbehaviors, an Aztec owner could punish a slave by applying a wooden collar, by sale to another owner, or by selling the slave for human sacrifice. Many of the slave regulations in the Americas, particularly as the planta- tion complex heightened the demographic gulf between white elites and the slaves they depended upon, were essentially designed to prevent individual and organized resistance by slaves. Many American slave societies prohib- ited slaves (and sometimes free people of color) from gathering in large groups, playing drums, dancing, fighting, drinking, carrying weapons, and so on. The Dutch Curac¸aoan council passed numerous regulations along these lines, with increasingly harsh threats of punishment, over the course of the eighteenth century but to little apparent effect.

Religion Religion was a fundamental epistemological framework for all societies in the early modern Atlantic world. Christian and Muslim authorities legitimized the enslavement of religious outsiders; moreover, slavery was justified as a recruitment tool for Catholicism and Islam. Spanish (as of 1538), Portuguese, and French (1685)legalsystemsrequiredthatallslaves be baptized and instructed in religion. By contrast, the early laws of the English and Dutch Protestant slave colonies paid no attention to the slave’s religion. Seventeenth-century French laws prohibited Protestants and Jews from owning slaves, but these regulations were not enforced. Both Christians and Muslims wrestled with the problem of whether religious conversion guaranteed emancipation but concluded that it did not. Muslim slaves were not required to make the pilgrimage (haj)to Mecca; to do so without the master’s permission would render the rite in- valid. Some Islamic schools allowed a master to deputize a slave to make the pilgrimage in his place. High-ranking slaves or freedmen might the- oretically act as imam,orreligiousleader,forfreemen,butnotajudge (qadi). In practice, enslaved imams were rare or nonexistent. Throughout the early modern period, some Muslim Africans found themselves enslaved and transported to the Americas.

Cambridge Histories Online © Cambridge University Press, 2011 610 the cambridge world history of slavery European and colonial attitudes toward witchcraft are complicated. Although prosecution for witchcraft declined sharply in Europe by the late seventeenth century, belief in slaves’ capacity to harm free people through witchcraft – or more secularly, poisoning – were prominent in the seventeenth- and eighteenth-century American colonies. Tituba, a slave of African or Native American origin, was the first resident of Salem, Massachusetts, accused of sorcery in the 1692 witch trials. French colonists accused Franc¸ois Macandal as the leader of many other slaves executed for sorcery and poisoning in St. Domingue’s witchhunt of 1757–8.The Jamaican legislature passed a law in 1760 against obeah,aCaribbeancom- plex of beliefs and practices aimed at manipulating the natural and social worlds, which is usually glossed as witchcraft or sorcery. At least five slaves were tried on these grounds in the late eighteenth century.

Sex and Marriage One of the greatest differences between slavery in Africa – both tradi- tional and Islamic – and slavery as it developed in the early modern Atlantic world is the degree to which slaves were held as an extension of the kinship structure. Muslim law, African traditions, and even medieval Spanish law recognized slaves as part of the master’s extended family. In both Muslim and pagan Africa, the great majority of slaves were women and children who were readily absorbed into the master’s familial lines over one or more generations. It could be argued that this was func- tionally true in much of the Catholic Atlantic world as well, because many masters recognized and promoted some of their mixed-race chil- dren by enslaved concubines or free women of color, manumitting them and sometimes recognizing them as heirs. By contrast, the Atlantic slave regimes of the northern, Protestant European countries did not frame slaves as part of the family structure. Of course, Euro-Christian coun- tries and colonies did not recognize the polygynous traditions of pagan or Muslim Africa, but because those societies typically reserved multiple partners for only the wealthiest or most prominent men, the differences between the Christians and non-Christians are not as far apart as one might presume. In ancient and medieval Europe, the expansion of Christianity had gen- erally favored slaves’ marriage rights. Under pagan Roman law, which did not recognize slaves as legal personalities, slaves were not permitted to marry anyone, including slaves belonging to the same master. Since the seventh century, however, Iberian Visigoths and subsequent Christian rulers departed from the Roman precedent, formally encouraging mar- riages between slaves. Pope Hadrian ruled that a slave could marry even

Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 611 over his master’s objections but that he would still remain a slave; this was eventually codified in the Corpus Juris Canonici in 740 AD. The medieval Spanish Siete Partidas finally extended this privilege further: Slaves who married free people thereby became free themselves. American colonial law reversed this trend. In order to prevent slaves from becoming free by marrying Indians, Spanish Queen Juana directed the viceroy and governor in 1538 that marriages between slaves and free people would no longer automatically manumit the slaves. In the British American colonies, there were no provisions for slave marriages, and such religious ceremonies or common law relationships that might take place had no legal standing. Still, in practice, some slaveholders found that facilitating these couples increased compliance and increased productivity. Just as often, however, owners separated husbands, wives, and children through sale to distant owners. Portuguese colonial law permitted a freed male slave to purchase the freedom of his wife and children, and if a free man voluntarily allowed himself to be enslaved to the master of his wife and children, they would all be freed upon the master’s death. Legal historian Alan Watson traces these Brazilian provisions – unique in American colonial law – to atenth-centuryByzantineprecedent,adoptedaspartofBrazil’sRoman slave law. The French Code Noir required that slaves who wanted to marry acquire their masters’ permission in lieu of their parents but also forbade masters from forcing slaves to marry against their will. Few marriages between slaves were actually recorded in French parish records, especially in rural areas. Although white men’s concubinage with black women was formally banned in all Euro-Christian colonies in the New World, the prohibition tended to be honored only in the breach. In fact, some Euro-American legal codes contained provisions that tacitly recognized and sometimes gave legitimacy to extramarital liaisons between masters and female slaves. For example, the Spanish government decreed in 1563 (and reaffirmed in 1680), that if a slave were to be sold, the owner must give preference to the slave’s Spanish father who wanted to buy him and set him free. According to the Code Noir (1685), French men who sired children by their women slaves faced heavy fines and the confiscation of the woman and child unless he agreed to marry her. However, though few such marriages occurred, the free population of mixed lineage increased rapidly during the eighteenth century, especially in the Caribbean colonies of Martinique and St. Domingue. The Louisiana Code Noir of 1724 mirrored its Caribbean predecessor in many ways, but it prohibited all marriages between whites and people of color, regardless of free or slave status. Black men’s and white women’s sexuality was more heavily policed. The Dutch governor of Suriname issued a regulation at the beginning of the

Cambridge Histories Online © Cambridge University Press, 2011 612 the cambridge world history of slavery eighteenth century forbidding sexual relations between white women and black men:

To prevent such unnatural whoredom and adultery...we order that if it is proven that any white female, not being married, has had sexual intercourse with a black, said female will be severely flogged and banished from this colony for life. And in case any married female should lapse into such a misdemeanor, she will not only be severely flogged but also branded and banished from this colony for life, while the black in question will be punished by death. Before long, two white women who became pregnant by black slaves were banished from the capital city in 1721. Yet class could override racial stigma. In 1764, a wealthy free black woman with multiple plantations in Dutch Suriname announced her intention to marry a white man twenty years younger than she. Despite its initial opposition, the State Council (Raad von State)approvedhermarriagetoasecondwhitewhenherfirst fiance´ died before the wedding could take place. White Spanish colonial patriarchs used the royal ordinance of 1778,designed“topreventtheabuse of contracting unequal marriages,” to prevent their children from allying with those descended from Africans or Native Americans. A French royal proclamation of 1781 prohibited marriages between whites and those of African descent, though it is unclear whether the decree was ever enforced in the metropole.

Peculium Islamic law permitted slaves to earn money and own property, including other slaves, but upon their death, this property reverted to the master; slaves could not pass their estate to heirs or inherit. Although most Atlantic slave regimes, following the Roman tradition, did not permit slaves to own property outright, many allowed slaves to accumulate and manage a small amount of property (known as the peculium in Roman law). The peculium technically belonged to the master, but the slave had some control, so that some slaves – usually those in urban areas – were able to save up money and eventually purchase their freedom or that of their children or other loved ones. The English colonies in America made no legal provision for a peculium, though the practice certainly existed. Yet slaves belonging to Englishmen who tried to save up funds toward self-purchase or for other uses were at the mercy of their masters, who could legally claim the savings at any time. Once the plantation economy overtook any particular colony, it was not unusual for the local authorities to try to restrict slaves’ participation in local commerce. Many colonies issued laws (sometimes repeatedly over several decades) prohibiting slaves from selling staple crops or livestock and whites

Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 613 from trading with slaves, because authorities felt that this encouraged theft or commercial competition with whites. A second, probably intentional, effect of these laws was to prevent slaves from saving up the capital for self- purchase, and to reduce the growth of the free black population, except through patronage by elite whites (for “loyal service”).

Regulating the Slave Trade All European governments sought to regulate the slave trade, seeking to secure steady profits for themselves. Spanish royalty granted the asiento or exclusive right to the Atlantic slave trade with its American colonies beginning in 1518.ThePortuguesewontheasiento from 1595 to 1640,after which Dutch and Genoese merchants broke the Portuguese monopoly, followed by the French and English in the eighteenth century (though by then Spanish purchase of slaves had dwindled to but a small portion of the Atlantic trade). According to the prevailing early modern economic theory of mercan- tilism, colonies were only permitted to trade with the metropole. Colonial merchants, meanwhile, sought to evade taxes by smuggling slaves illicitly outside of the prescribed boundaries. For example, between 1606 and 1626, colonists in Buenos Aires bought numerous contraband African slaves from Brazilian merchants in exchange for Peruvian silver until the illegal trade was suppressed by the Relac¸ao˜ of Bahia. Occasionally legislation, but more often the captain’s economic self- interest, regulated conditions aboard slave ships. Though mortality rates generally improved over time along with maritime technology (faster crossings meant fewer deaths), the captain’s authoritarian justice prevailed aboard ships, falling harshly on both sailor and slave alike.

enforcement: judicial personnel and institutions Legal codes were only as good as their enforcement. Slaves who wished to challenge a violation needed access to the sites of legal disputation, intermediaries, and advocates who would support their challenges. In the colonies of continental Europe, which were based on Roman law, slaves and free people appealed to the same court system, but English colonies, with the tradition of trial by jury, generally established separate slave courts to deal with slaves accused of crimes. There are relatively few studies of legal practices among tribal peoples. In the North American Comanche society, wives were seen as quasi-chattel to their generally older husbands. If a young man sought to build a romantic relationship with a woman who was already married to another, he might steal her away as his group left on a hunting expedition. The woman’s

Cambridge Histories Online © Cambridge University Press, 2011 614 the cambridge world history of slavery husband was expected to try to seek legal redress through negotiation. He was represented by his male relatives in subsequent bargaining between the two parties. The warrior who claimed the woman, however, was custom- arily not entitled to such representation. In instances where the wronged man had no kin to represent him, a man of high standing (“war leader”) would help him negotiate a settlement with his opponent. Under the reign of Nezahualcoyotl (1403–73), the Central Ameri- can state of Texcoco was restructured. Nezahualcoyotl established four supreme councils, including an advisory supreme legal council and two tribunals under the central authority of the ruler (tlatoani). The “ruler’s tri- bunal” (tlatocaicpalpan)heardmundanecaseswhereastheDivineTribunal (Teoicpalpan)wasreservedformoreseriousandcapitalcases.Texcoco’s provinces and towns were divided into six jurisdictions, each with two judges. There was also an office of bailiff (achcauhtli). Beneath these high courts were the provincial judges who performed both investigatory and sentencing functions. There is some evidence that nobles and commoners were tried in different courts. According to one source, all cases involving slaves (as well as homosexuality, treason, sumptuary regulations, adultery, theft, drunkenness, property, lands, status, and offices) were under the jurisdiction of the Supreme Legal Council. Contemporary reports suggest that the neighboring Aztec Empire’s legal structure was not as sophisticated as that of Texcoco. In Islamic courts, plaintiffs pled their own cases before a religious judge (qadi), a free man, appointed by authorities, with advanced religious and legal training. The qadi’s decision, not subject to appeal, was to be based entirely on shari’ah,withoutresortingtointerpretation.Slaveswerepro- hibited from holding the office of qadi. In Spanish America, most of the judicial functions resided within the audiencias, which began as governing bodies with legislative, executive, and administrative functions specific to certain jurisdictional areas (such as Mexico, Peru, or Santo Domingo) under the authority of the viceroy. However, starting with the appointment of the three-judge court in Santo Domingo in 1508,theroleoftheaudiencias soon shifted to become pri- marily judicial in nature. These judges (oidores)specializedineithercivil or criminal law, often with other duties, such as probate, commercial, tax, or other functions, and the courts were often severely understaffed. The audiencias also served as appellate courts over lower local courts. Ecclesi- astical courts also ruled on such matters as the legitimacy of marriages or births and therefore could bear upon the right to inherit property. Portuguese judicial and administrative functions were organized around the township (conselho). Initially, each town council typically included two elected judges (juiz ordinario´ or juiz de la terra), who lacked formal legal training and whose term of office was a year. Over the course of the sixteenth

Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 615 century, a royal judicial system, presided over by the juiz de fora´ (literally, “judge from afar”), came to supplant the local magistrates. In Portugal, decisions of the municipal courts could be appealed to one of twenty-one “corrective” courts (commarca or correic¸ao˜ ), presided over by the traveling superior crown magistrate (corregedor). The next level in this highly devel- oped bureaucracy were the three high courts of appeal (Relac¸ao˜ ): The two subordinate tribunals in Lisbon (Casa do C´ıvel)andGoa(Relac¸ao˜ da India), and the superior Casa da Suplicac¸ao˜ ,whichadministeredtheking’sjustice. Though nominally headed by a great noble, high churchman, or, in the colonies, the resident governor or viceroy, the ranking judicial officer was the chancellor, with extensive legal training. The king’s advisory council (Desembargo do Pac¸o)advisedthekingonallmatterspertainingtojustice and law and developed into the chief administrative bureaucracy of the Portuguese Empire. In 1532,DomJoao˜ III created a new advisory board on matters relating to the church and morality, the Mesa da Consciˆencia eOrdens. This board played an increasingly influential role as it reviewed legal and judicial issues arising from the Portuguese Empire, including the legality and morality of Indian and African slavery. Though the sugar plan- tocracy eventually controlled the municipal councils in northeastern Brazil, after 1609,theroyalmagistratesoftheRelac¸ao˜ provided a countervailing judicial force throughout the remaining colonial period. AseriesofroyalofficialswerecreatedinPortugueseAmericancolonies, charged with adjudicating disputes arising between Indians and whites. After 1560, the civil office of momposteiro was designed to protect the liberty of Indians. The Hapsburg statute of 1595 created a new magistrate to settle Indian-white complaints, including accusations of illegal enslavement (the former office apparently having lost its efficacy). In 1711, the Brazilian archbishops of Rio de Janeiro and Salvador da Bahia petitioned the king to create a new office that would be charged with investigating slaves’ complaints of abuse by their masters; however, the crown rejected this appeal. The Dutch colonies of Suriname and Curac¸ao had an officeholder (fiscal), whose responsibilities included advocating for slaves who were mistreated. He could initiate legal proceedings on their behalf, presuming that they could reach him (which meant either by stealth or, improbably, with a signed pass from the master). According to the governor of Suri- name in 1766,awhitefoundguiltyforcommittingphysicalinjuryagainst a black could be fined:

However, if only verbal injury has occurred, the black or colored person will not be permitted to initiate judicial proceedings against the white, unless the circumstances are of unusually great importance. . . . Even if corrective measures against the white will then be unavoidable, they must be applied civilly and secretly

Cambridge Histories Online © Cambridge University Press, 2011 616 the cambridge world history of slavery so that he will not be publicly humiliated ...whichwouldincreasetheboldness of the blacks and coloreds. . . . If a free black or colored person offends a white by words or actions, the white – if of good repute – will be taken at his word, the more so if signs of blows are present.4 At this time, the fiscal of Suriname, Herman Coerman, was representing free men of color so well that the governor complained about him to the Prince of Orange on the Board of the Dutch West India Company in the United Provinces. Cases in English colonies on behalf of mistreated slaves would have been heard in the common law courts of assizes, quarter sessions, or petty sessions. However, the vast majority of judicial cases concerning slaves were those prosecuting slaves under criminal law. In Barbados, Jamaica, and the Carolinas, there were two parallel criminal courts, one for free people (entitled to a jury of their peers) and one for slaves (composed in Jamaica of five persons: three freeholders and two magistrates). According to the Barbados legislature (1688), being Brutish slaves, deserve not, from the Baseness of their Condition to be tried by the legal trial of twelve men of their peers, or Neighbourhood, which truly niether can be rightly done, as the Subjects of England are. Magistrates of the English slave courts were typically planters with no formal legal training. Diana Paton’s study of the St. Andrew’s parish shows that though the Jamaican slave code prohibited many actions by slaves, only theft, running away for periods longer than six months (which might be construed as self-theft), and violence against masters were prosecuted with any frequency. Moreover, the conviction rate in one Jamaican parish (76 percent) was somewhat higher than in English, South Carolinian, or Virginian courts of the same period (generally 60–70 percent). In the French Caribbean, slaves’ cases – like those of free persons – initially came before ordinary judges. In 1645,thekingestablishedjudicial bodies (conseils sup´erieur) for each colony to hear judicial appeals. Each conseil sup´erieur was composed of between eight and fourteen militia offi- cers (drawn from the wealthiest and highest-ranking colonists), selected by the royally appointed colonial governor. Initially, the parties represented themselves before the court; colonial authorities resisted the encroachment of private lawyers and reportedly banished them from Martinique (per- haps in part because they posed a threat to the judicial ignorance of the colonial justices). In the early seventeenth century, missionaries sometimes advocated for slaves in court, but beginning in 1685 the Code Noir des- ignated the royal attorney general (procureur g´en´eral)torepresentslaves

4 Quoted in Cornelis Ch. Goslinga, The Dutch in the Caribbean and in the Guianas 1680–1791 (Assen, 1985).

Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 617 before the court in cases of abuse. However, the procureur g´en´eral was also the official charged with prosecuting slaves accused of crimes, a mission typically undertaken with much greater diligence. The conseil initially met once a month; later this extended to one day every other month. For complex cases, a temporary conseil extraordinaire was established. In 1686, the Martinique Council protested the Code Noir’s article 30, which held that slaves could only testify against other slaves on the grounds that this would result in impunity for many crimes committed against slaves. As a result, the crown modified the code so that slaves might give evidence, in the absence of testimony by whites, in all cases except against their own masters.

Punishment Although Europeans might be punished for breaking state laws with such sentences as prison terms, forced labor on the galleys, or hanging, slaves in the American colonies were already subject to forced labor and restricted movement, so punishments tended toward the infliction of bodily pain. These included flogging, dismemberment, breaking on the wheel, burn- ing alive, and hanging. Many slaves deemed unruly were sold to another master or another colony, presumably to harsher labor, such as salt pan- ning or mining. Mutilation had largely been abandoned throughout much of Europe by the late seventeenth century but was commonly employed against slave convicts in the English colonies. Branding, though some- times used to punish criminals in Europe, was routinely applied to slaves for identification purposes by Europeans in Africa and America. Though prohibited in England and for white colonists, castration was authorized as a punishment for slaves in seven English American colonies over the course of the eighteenth century (Antigua, the Carolinas, Bermuda, Vir- ginia, Pennsylvania, and New Jersey). Whipping or flogging, reserved for convicts of low social status, was the most common punishment adminis- tered in both eighteenth-century England and in the colonies. However, English civilian courts (as opposed to military tribunals) typically limited the sentences to a dozen or so blows, whereas colonial sentences were much harsher, averaging thirty-nine to seventy-five strikes for whites and blacks respectively in eighteenth-century Jamaica. In English colonies, the state explicitly delegated its power to punish to the slaveholder for lesser infractions. For example, the 1664 Jamaican slave code stated that “all small . . . misdeamenours shall be heard and deter- mined by the master of the Slave or Slaves.” Jamaican legislation gave judicial officials wide latitude in punishing slaves for many crimes, per- mitting “any penalty as the court shall see fit.” French officials prohibited masters from mutilating or killing their slaves, reserving these punishments

Cambridge Histories Online © Cambridge University Press, 2011 618 the cambridge world history of slavery as state judicial sanctions. Yet though the French crown occasionally chas- tised Caribbean colonists for brutality toward their slaves early on, by the second half of the eighteenth century, it conceded that the need for abso- lute control over an enormous slave population overrode the niceties of moderate treatment, recommending that abusive masters be reprimanded secretly. Punishments were designed to exact retribution on those who trans- gressed the social order, but also as a display of power to terrorize the rest of the population. In early modern Africa, Europe, and the Americas, punishments were typically meted out in a public place, or – in the case of masters’ private punishment – before an assembly of slaves. It was not uncommon to display the hanged body or the head, ears, or other severed parts of a convict in a public place as a deterrent to others. American courts typically prescribed humiliation – such as the pillory or stocks – only for the free population, though many masters used the stocks to mete out “private” justice on the plantations. In America, as in Europe, the state employed certain people to inflict punishment, such as the English “common whipman” or the executioner. Many American colonies used slaves in these roles (the Dutch had a name for the enslaved enforcer, the bomba). In French colonies, the state exe- cutioner was sometimes a convicted slave whose death sentence was com- muted in exchange for taking on the position of executioner. The cabildo of Angostura, in late-eighteenth-century Caracas, Venezuela, sought to purchase a black slave to fill the vacant post of executioner. Islamic law prescribes particular punishments for specific crimes, but these correctives were generally less harsh for slaves than for free men, who were to be held to a higher standard. But in many American colonies (Dutch Suriname, French St. Domingue), slaves and free blacks were punished much more severely than whites, especially if they committed a crime, such as assault, against a white. For example, a slave who wounded a master might be hanged, whereas a white who harmed a black might be punished with a fine. In 1669,theVirginiaHouseofBurgessesestablished that masters might kill their own slaves with impunity as they administered “due correction.” More than a century later, in French St. Domingue, the council of Le Cap dismissed charges against a slaveholder accused of killing four of his slaves and severely burning two more in response to white public opinion.

Racial Codes Scholars debate the origins of antiblack racism, but it is generally acknowledged that during the early modern period, coincidental with the widespread trafficking of black African slaves, elites throughout the Arab

Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 619 and European empires embraced a color hierarchy that favored lighter- skinned people over the darker hues of sub-Saharan Africans and their descendents on other continents. A clear pattern of legislating these hier- archies emerges in the Euro-Atlantic regimes over the course of the early modern period, generally in response to growing populations of freed for- mer slaves and their descendents in any particular population. Islamic law, grounded in the Prophet’s sayings and life, takes no notice of racial distinctions, and subsequent Muslim legal experts rejected the notion that black Africans were especially destined for slavery. Still, within the greater Islamic world, a color hierarchy developed so that lighter- skinned slaves were given preferential treatment while black slaves were often given the most menial tasks. The Spanish crown officially banned Jews, Moors, foreigners, and heretics from settling in its American colonies. With the exception of clerics and common soldiers, only full-blooded Castilians with testimo- nials by six witnesses notarized by three notaries could receive the royal license to emigrate. In 1542,theSpanishcrownbannedtheenslavementof Native Americans on the grounds that they were vassals, thus paving the way for exclusive enslavement of blacks. Spanish colonial leaders passed regulations designed to prevent racial mixing between Indians and blacks and, eventually, to reduce upward mobility of nonwhites. In seventeenth- century Cuba, for example, free people of color were supposed to live under the supervision of a patron. In both Mexico City and Cuba, they were not allowed to wear gold, silk, cloaks, or other finery or to carry arms, unless under certain circumstances. Over the course of the eighteenth century, as the plantation economy became central to many English, Dutch, and French colonies, local and royal governments also instituted laws designed to prevent racial mixing and the social advancement of nonwhites. English colonial slave codes expanded the metropolitan notion of “petit treason” – whereby murder by a subordinate (such as wife, child, servant, or appren- tice) of a person in legitimate authority over him or her became analogous to treason against the state – to apply to slaves’ actions against all whites (whether slaveholders or not). Particularly following the Seven Years War (1756–63), the colonial government of St. Domingue issued numerous restrictions against the social advancement of free people of color, reflect- ing the growing wealth and status of some of them.

the law of freedom: manumission, lawsuits, maronnage If the legal condition of slavery varied widely in the early modern world, so did free status. Like Roman and Islamic law, Spanish law considered slavery to be contrary to nature. The section of the Siete Partidas pertaining to manumission opens with the words: “All creatures of the world naturally

Cambridge Histories Online © Cambridge University Press, 2011 620 the cambridge world history of slavery love and desire liberty, especially men who have authority over others and, in general, those who are of noble heart.” The French Freedom Principle implies the universal desirability of free status. Yet throughout the early modern world, nearly all societies were divided hierarchically, with privileges accorded to those of higher rank or in certain associations (such as guilds). Achieving free status in these societies did not, therefore, translate into universal equality. It is worthwhile to distinguish between freedom pursued individually (for a single person or a family) and slavery rejected outright as an institu- tion, through collective action. Individual manumission tended to reinforce the system of slavery as a whole, by reinscribing the master (or the state) as the grantor of freedom, and singling out particular slaves as “worthy” of free status. Escape – and particularly assisting slaves to escape into a territory outside the control of the slave regime (whether to a community of maroons or a free state) – could destabilize the slave system, but it still left other slaves behind. Slave revolts necessarily tended to focus first on achieving the freedom of the participants, though this goal expanded tremendously during the cataclysmic Haitian Revolution (1791–1804). The abolition movement, which sought to eradicate slavery throughout the world, gained momentum in the late eighteenth century but would not realize widespread success until the nineteenth century.

Manumission The older Mediterranean slave systems (Roman, Islamic, Iberian) offered many sanctioned means by which individual slaves might be manumitted, that is, freed from their owners’ control. There is wide variation in Islamic manumission policy and practice. In general, the Qur’an lauds masters who free their slaves as a worthy act but does not require it. Islamic law designates several categories of slaves that should be automatically freed upon the death of the master. For example, manumission is assured to any enslaved woman who has born her master a child (umm walad)ortoslaves who were promised their freedom upon the master’s death (mudabbar), though the master may rescind the latter arrangement at any time. If a master dies in debt, the repayment of debts supercedes the promise of emancipation. Slaveowners found guilty of certain crimes (such as invol- untary manslaughter or intentionally breaking the Ramadan fast) might be required to free a healthy, fully owned slave as a form of expiation (kaffara). The correct formalization of Islamic manumission varied from state to state. A standardized template from Timbuktu incorporated expres- sions of piety. Nineteenth-century evidence from the African Sokoto caliphate suggests that a letter of manumission had to be witnessed and signed before a judge (qadi)tobevalid.

Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 621 Under Aztec law, slaves could be manumitted in various ways: by means of a legal act, through marriage to one’s owner, through self-purchase or escape, or by royal asylum. In neighboring Texcoco, escaped collared slaves could win their freedom by successfully entering the royal palace. In Teotihuacan, a local official, the barrio ward (calpulli) had the power to free escaped slaves who reached him. In most Atlantic slave societies, at the outset of colonization, masters had full authority to manumit their slaves as they saw fit. But some regimes began to restrict this policy as the shift to plantation agriculture brought rapid increases in both the slave population and the free nonwhite pop- ulation. For example, though the 1685 French Code Noir initially placed no restrictions upon manumission, eighteenth-century royal and colonial legislation severely hampered masters’ capacity to manumit their slaves through taxes and by requiring administrative permissions, character wit- nesses, and so on. Dutch colonial legislatures instituted similar restrictions during the eighteenth century, beginning in 1733. One rationale for restrict- ing manumission was to prevent unscrupulous masters from releasing slaves who could no longer work to become burdens on the colonial treasury or the church’s poor-relief system. Yet a greater concern seems to have been a desire to maintain old systems of hierarchy and privilege. Colonial admin- istrators sought to prevent the “disorders” that occurred when slaves and free people of color could tap into colonial commerce to advance their station. They tried to prevent not only theft and prostitution (by which slaves might try to purchase their freedom), but they also, in some cases, tried to block marketing activity and certain occupations to free people of color. Even so, white colonists themselves must have advanced the for- tunes of their own mixed-race children, especially in the Caribbean and Latin American colonies, since by the late eighteenth century, there existed a large free nonwhite population in many slave colonies. Some of these free families of mixed descent had amassed property – including slaves and land – rivaling the wealth of many white planters. In late-eighteenth- century French St. Domingue, free people of color supported their own aging and impoverished freedmen.

Coartacion´ Although it does not appear in any Spanish royal legislation until the sev- enteenth century, the practice of coartac¸ion´ (self-purchase by installments) is in evidence since at least the sixteenth century in both Spanish and, later and more rarely, Portuguese America.5 It may derive from the Islamic legal

5 Alejandro de la Fuente has dated the practice of coartacion´ at least to sixteenth century, “Slave Law and Claims-Making in Cuba: The Tannenbaum Debate Revisited,” Law and History Review, 22 (2004): 339–69.

Cambridge Histories Online © Cambridge University Press, 2011 622 the cambridge world history of slavery practice of katiba¯ ,acontractualarrangementwherebyaslavemightpur- chase his or her freedom in installments toward a fixed, mutually agreed upon price. Under Islamic law, if the slave fell behind in payment, the installments were forfeited to the master, and if the contract was resumed, it must begin again from the start. Spanish coartacion´ (Portuguese: coartac¸ao˜ ) was very similar to both Islamic katiba¯ and a form of conditional manumis- sion spelled out in the Siete Partidas. Once slaves and their masters agreed on a fixed purchase price, the slave could make partial payments toward his or her freedom. As soon as the purchase price was fixed, the master could not sell or mortgage the slave for a higher price. Moreover, in some regions of Spanish America, once slaves began making payments toward freedom, they literally owned a portion of themselves and owed the master only a fraction of their labor (for example, seven-eighths or one half). Coartacion´ was especially prevalent in occupations where slaves had access to cash, such as gold panning or shop keeping. Surviving legal records make it clear that, at least since the end of the eighteenth century (and perhaps much earlier), Spanish colonists accepted and affirmed the basic principles of coartacion´ : that slaves who paid their value had the right to manumission; that after receiving this amount, the owner had the obligation to provide a letter of manumission; that coartacion´ was a personal right (that could not pass from mother to daughter, for example); and that after being set, the price of a slave could not be changed (for example, an owner could not increase the price by alleging that he had taught the slave a trade). By contrast, coartacion´ did not emerge as a standard, legally enforceable practice in the English, Dutch, or French Atlantic empires, though self-purchase certainly occurred, especially in urban areas.

Escape and Marronage Of course, slaves did not necessarily wait patiently for their masters to authorize their freedom or enter into contractual negotiations. Many claimed their liberty by running away. Self-liberation was obviously a threat to the whole slave system and so was punished severely, especially in societies that depended heavily upon slave labor. Spanish called escaped slaves cimarrones (wild horses), from which the French marrons and English “maroons” are derived. European colonists attempted to prevent such flight through harsh punishments; in 1520, the Cuban Licentiate ordered some captured maroons to be whipped and their ears cut off. However, slaves continued to escape, with some establishing independent communities in the regions beyond Europeans’ control, often sustaining themselves by raids on colonial or Indian villages throughout the sixteenth century. The English privateer Francis Drake allied with maroons in 1572 to attack the Spanish in Panama, prompting the local government to promulgate an

Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 623 anti-maroon code in 1574, which was extended to the whole of Spanish America in the Recopilacion´ de las Leyes do los Reinos de Indias in 1680. Through warfare, some maroon communities came to pose a significant threat to certain European colonies in America and were able to negotiate treaties with their Euro-descended neighbors in Brazil, Columbia, Cuba, Ecuador, Hispaniola, Jamaica, Mexico, and Suriname, especially during the seventeenth and eighteenth centuries. Such treaties typically recog- nized the maroons’ freedom and territorial integrity and provided for their economic needs (such as access to colonial marketplaces) in exchange for the termination of all hostilities, return of future runaways, and aid in tracking them down. Not all maroon societies achieved sufficient military success to force whites to treat with them, and not all treaties were honored, but such documents formed the basis of some African American states that have persisted to the present time. By the late seventeenth century, the French king Louis XIV had affirmed the maxim that setting foot on French soil freed a slave. The Parlement of Paris (France’s supreme court) upheld this decision in 1759.Twoyearslater, Portugal’s enlightened Marquis de Pombal issued a law establishing the Freedom Principle for the metropole, such that slaves who came to Portu- gal from the colonies achieved their freedom and could not be compelled to return to the colonies. English abolitionists won a court decision affirm- ing the Freedom Principle for England in the Somerset decision of 1772, though slaves who willingly returned to the colonies faced the prospect of reenslavement. The Dutch States General issued a similar ruling in 1776, affirming the freedom of slaves brought to the United Provinces. For the Dutch freedmen, however, their condition would theoretically follow them back to the colonies, provided they could offer proof of the means to earn alivingandthatthemastercouldprovidesufficientguaranteesthatthe former slaves would never burden the colonial treasury. The India Section of the Spanish Royal Council would free slaves resident in Spain in 1836, but it was not until 1861 that the Spanish crown would legislate the right of freedmen in Spain to return to the colonies and retain their free status there. Several states sought to undermine their enemies by encouraging slaves to escape, their freedom being guaranteed by the government. Spanish American territory was often a safe haven to slaves under French, Dutch, or English control in the eighteenth century. During the American Revo- lution, British armies offered freedom to those who joined royalist forces. During his jihad against the king of Gobir (1804–8), Usuman dan Fodio, founder of the Sokoto Caliphate in northern Nigeria, offered freedom to all slaves who would flee to join his forces. As the abolition movement took hold in the Northern United States and Britain, these territories became asafehavenforescapedslaves,atleastuntilthemid-nineteenthcentury,

Cambridge Histories Online © Cambridge University Press, 2011 624 the cambridge world history of slavery when legislative and judicial acts affirmed slaveholders’ property rights across state boundaries.

revolt, revolution, and abolition Slaves have taken up arms against their masters since ancient times. Within the early modern Atlantic slave system, slaves revolted in Africa, on the transatlantic passage, and in the Americas. One recent study found 485 acts of violence by Africans against slave ships and their crews alone, not including those that took place on land in Africa or the New World. All of these actions were, of course, held to be illegal by the slaveholding regime, though the slaves themselves no doubt held their own actions to be just. Indeed, it is likely that many Africans were illegally enslaved according to both African and Euro-American legal principles. By the second half of the eighteenth century, royal European mercan- tilist policies – which had prohibited colonists from trading with any but the mother country – were undermined throughout the Atlantic world, threatening the legal status of the slave trade. Widespread smuggling, unde- pendable connections between Europe and America (particularly in times of war), and new ideas about economic growth all pressured Spanish, French, and British crowns to abandon their exclusive, monopolistic slave- trade policies. At the same time, abolitionists in North America (where the slave population had stabilized demographically) and Britain began to challenge the slave trade on humanitarian grounds (and as more politically expedient than outright abolition of slavery itself). Though this is not the place to detail the growth of the abolition movement in the Atlantic world, it is important to recognize that some of its roots originated within the framework of colonial slave law.

Political Reorganization In the late eighteenth century, the Spanish crown instituted important colonial administrative reforms that impacted the judiciary in its Ameri- can colonies. Until 1776,thelegislativeandjudicialfunctionswerecon- centrated in the viceroy (governor) of each Spanish colony. However, with the Instruccion´ de Regentes, the king created a new administrative office, the regent, and assigned the viceroy’s judicial functions to the regent, at least when the viceroy was absent. As part of this “rationalizing” Enlighten- ment reform, the Spanish crown also streamlined the colonial court system, replacing some hundreds of local judges (corregidores and alcades mayors) with a handful of royally appointed intendants. At the same time, of course, thousands of British colonists in North America protested the taxation policies of the crown, culminating in the

Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 625 War of American Independence and the establishment of the United States. In the early stages of independence, each former British colony established its own legal policies concerning slavery. Vermont, with fewer than thirty slaves in the entire colony, was the first to expressly prohibit slavery in its 1777 constitution. Three years later, the Pennsylvania leg- islature passed its Gradual Emancipation Act, which provided that all children born to enslaved mothers would be held as indentured servants until their twenty-eighth birthday, upon which they would achieve their freedom. Thus, slavery would gradually be eliminated as the last genera- tion of slaves reached maturity. In other states, such as Massachusetts and New Hampshire, slaves successfully sued for their freedom on the basis of the state constitutional natural rights clauses, “all men are born free and equal.” When it came to the national Constitutional Convention in 1787, how- ever, Southern slaveholding states were able to hold out for important proslavery provisions. For example, the “three-fifths compromise” (Arti- cle 1,Section2)countedslavesas“three-fifths”ofapersonforthepurpose of governmental representation and taxes; a federal ban on the importation of slaves was postponed until 1808,thoughtherehadbeenconsiderable support for such a provision at the outset of the War of Independence (Article 1,Section9,andArticle5); and a fugitive-slave clause required free states to deliver up those slaves who escaped into their borders (Article 4, Section 2). Most U.S. states (including Connecticut, Rhode Island, Penn- sylvania, Delaware, New Jersey, Maryland, North Carolina, and Georgia) went on to individually ban the importation of slaves before 1800.(South Carolina had passed a series of temporary measures, beginning in 1788, to prohibit the importation of slaves, but this ban was repealed in 1803 due to political backlash.) Finally, in 1808,anewfederallawbanningthe importation of slaves went into effect, coinciding with the British abolition of the slave trade.

Amelioration In Portugal between 1761 and 1773,theMarquisdePombalinstituteda series of reforms based on Enlightenment precepts designed to improve the conditions of slavery in the American colonies. Yet it is not clear that royal legislation was enforced in Brazil. Charles IV of Spain promoted the similarly humanitarian Codigo´ Negro in the Spanish American colonies in 1789,butitmetwithprotestsinCaracas,Havana,Bogata,´ and Santo Domingoandhadtoberepealedwithinafewyears.DutchCurac¸ao (always milder toward slaves than its harsher sister colony to the south, Suriname) introduced ameliorative regulations in 1789 and, following a major slave revolt in 1795,tookmeasurestoreducethenumberofrunawaysandprevent

Cambridge Histories Online © Cambridge University Press, 2011 626 the cambridge world history of slavery further uprisings. In addition to receiving Sundays and holidays off, slaves were to work only from 5 a.m. to 11 a.m. and 1 p.m. until sunset. The law specified slaves’ minimum food and clothing allotments and prohibited the arming of slaves. Suriname, by contrast, with its much higher slave-to- white ratio, continued to use harsher, more sadistic punishments to control the slave population. The humanitarian sentiments of the late eighteenth century led to reforms of punishment in the colonies. Prisons or gaols were used increas- ingly for white convicts. Castration was eventually proscribed in Pennsylva- nia, Bermuda, Jamaica, New Jersey, Georgia, Virginia, and North Carolina. Many of these reforms were based in Europe and resisted by colonists. In the early nineteenth century, Dutch slaveholders in Suriname argued for the right to cut off their slave’s head and mount it on a pole as a warning to others without first gaining governmental permission, in defiance of new metropolitan measures.

The Legal Status of Slavery and the Haitian Revolution It is appropriate to conclude this summary of the early modern transfor- mations of the law of slavery and freedom with an account of the Haitian Revolution, because this event, more than any other, signals the transition from old-regime legal framework of slavery to the modern, constitutional, revolutionary, antislavery nation-state. Beginning with the largest slave revolt to date in the wealthiest American colony of the eighteenth century, the slaves and free citizens of French St. Domingue harnessed the opportu- nities of the simultaneous French Revolution to fashion a new state, ruled by former slaves and predicated on the abolition of slavery. The key moments with regard to law came in 1789, with the Declaration of the Rights of Man and Citizen fashioned (with assistance from American patriot Thomas Paine) as the preamble to the new French constitution. Colonists took advantage of the new political institutions to establish their own representative assemblies and to seek representation in the new national government in Paris. Meanwhile, free men of color, the sons and grandsons of white planters and their black wives and concubines who had been socially promoted and were often slaveholders themselves, grabbed the revolutionary moment to rectify their racial discrimination by demanding Parisian representation and overturning discriminatory laws. Dissatisfied with the lackluster response in Paris, the light-skinned, mixed- race merchant Vincent OgereturnedtoSt.Domingue,wherehetried´ to instigate an armed revolt among free people of color (but not slaves). White colonists put down his party and executed him in a most horrific manner. This incident apparently embarrassed the Parisian legislature into

Cambridge Histories Online © Cambridge University Press, 2011 slavery, freedom, and the law in the atlantic world 627 action: On May 15, 1791, the National Assembly voted to acknowledge equal political rights for free coloreds born of free parents. Independently, slaves in the northern plain of St. Domingue near Cap Franc¸ais secretly organized the slave revolt that began in August 1791.Some insisted that they were fighting to uphold the law of the king of France, whom, it was rumored, had abolished slavery, but which the masters refused to acknowledge. Others, the majority of whom were recently captured in African warfare and only recently enslaved and brought to America, claimed that they were subjects of “the King of Kongo.” Most free people of color did not fight with the slaves unless they were overrun and had no choice, at least until the National Assembly rescinded the equal rights declaration of May 15. This pushed free coloreds to consider an alliance with the slaves against the whites. Ayearlater,progressiveforcesinParispushedthroughthedeclaration of April 4, 1792,whichnowgrantedfullcitizenshiptoallfreepeople, regardless of color or status at birth (an ironic return to the original provi- sions of the 1685 Code Noir, which had declared all freedmen as having the same rights as French-born subjects). As civil war and more general war in Europe and the Americas further destabilized France’s antiroyalist gov- ernment in the metropole and the colonies, the republican commissioners to St. Domingue, Sonthonax and Polverel, desperately offered freedom to those slaves who would fight on behalf of the revolutionary government. At first there were few takers. They upped the ante by offering freedom to the soldiers’ wives and children. Finally, facing an imminent English invasion, Sonthonax announced an unconditional general emancipation on August 29, 1793.TheParislegislatureaffirmedSonthonax’semanci- pation decree and extended it to all French territories on February 4, 1794. Shortly after general emancipation was declared, the rebellious general in the Spanish army,former slave ToussaintLouverture, threw his considerable force behind the French republicans, thus propelling his own rise to power. Toussaint’s military success over the entire island, driving back both the English and Spanish, and finally expelling Sonthonax, culminated in his 1801 constitution, naming him governor for life, and antagonizing his French counterpart, Napoleon Bonaparte, who soon thereafter declared himself consul for life. The story of Napoleon’s treacherous orders to his brother-in-law, Leclerc, to capture Toussaint and restore slavery and racial segregation to the French Caribbean is well known. Toussaint was captured and imprisoned in the mountainous French Jura, where he died of exposure. The colored officers in Leclerc’s party realized that they were in danger of being suppressed once again and switched their allegiance to the formerly enslaved insurgents. On January 1, 1804,theirleader,Dessalines,

Cambridge Histories Online © Cambridge University Press, 2011 628 the cambridge world history of slavery proclaimed independence for the new state of Haiti, which was named with the original aboriginal word for the island. This survey of slavery, freedom, and the law in the Atlantic world demon- strates that the legal history of slavery cannot be studied divorced from the social and political realms. If, as the anthropologists say, law is custom mar- shaled by a society’s officers of force, the study of law necessarily brings us to consider the changes in political order. Slavery, envisioned and regulated at the outset of the early modern era throughout the Atlantic as an exten- sion of patriarchal, personal power, became the symbolic anathema to the new republican ideologies of the Revolutionary era. As the intense com- mercial activity generated by sustained contact between Europe, Africa, and the Americas in the early modern period created opportunities for some (both enslaved and free) to rise above their initial station, some (mer- chants and colonists) began to challenge the old legal order that prevented them from enjoying the political privileges of their wealth. Similarly, a portion of fortunate slaves who found themselves with access to commer- cial activity in urban areas were able to make use of custom (coartacion´ ) to purchase their own freedom and that of their families. However, as the proportion of people of African descent grew larger in any given commu- nity, whites looked for ways to prevent slave revolts and to inhibit free blacks and people of mixed lineage from competing for wealth, prestige, and political power. Finally, the mechanisms of the judicial system allowed those who began to question the very justice of slavery to challenge the institution in courts of law, whose decisions, in turn, inscribed increasing territories of “freedom.” Wars of liberation secured by legislative and con- stitutional texts made possible the establishment of new states, based on the principles of legal antislavery, a wider franchise, and legalized racial segregation.

further reading Alvares d’Alamada, Andre.´ Brief Treatise on the Rivers of Guinea, trans. P. E. H. Hair (Africa Digitization Project: http://digitial.library.wisc.edu/1711.dl/ Africana.Almada01). Benton, Laura. Law and Colonial Cultures: Legal Regimes in World History, 1400– 1900.Cambridge,2002. Blumenthal, Debra. “Sclaves Molt Fortes, Senyors Invalts: Sex, Lies, and Paternity Suits in Late Medieval Spain,” in Women, Text, and Authority in the Early Mod- ern Spanish World.EditedbyMartaVicenteandLuisCorteguera.Aldershot, 2003. Brana-Shute, Rosemary and Randy J. Sparks, eds. Paths to Freedom: Manumission in the Atlantic World.Columbia,SC,2009.

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Brooks, James F. Captives and Cousins: Slavery, Kinship, and Community in the Southwest Boarderlands.ChapelHill,NC,2002. Cope, R. Douglas. The Limits of Racial Domination: Plebeian Society in Colonial Mexico City, 1660–1720.Madison,WI,1994. Davis, David Brion. The Problem of Slavery in the Age of Revolution, 1770–1823. New York, 1975. Fisher, Humphrey J. Slavery in the History of Muslim Black Africa.London,2001. Fuente, Alejandro de la. “Slave Law and Claims-Making in Cuba: The Tannen- baum Debate Revisited.” Law and History Review, 22 (2004): 339–69 Garrigus, John D. Before Haiti: Race and Citizenship in French Saint- Domingue.New York, 2006. Gordon-Reed, Annette. The Hemingses of Monticello: An American Family.New York, 2008. Goslinga, Cornelis Ch. The Dutch in the Caribbean and in the Guianas 1680–1791. Edited by Maria J. L. van Yperen. Assen, 1985. Goveia, Elsa V. The West Indian Slave Laws of the 18th Century.London,1970. Hawthorne, Walter. “The Production of Slaves Where There Was No State: The Guinea-Bissau Region, 1450–1815.” Slavery and Abolition, 20 (1999): 97– 124. Hebrard,´ Jean, Hebe Maria Mattos, and Rebecca J. Scott, eds. “Ecrire´ l’esclavage, Ecrire´ la liberte:´ Pratiques administratives, notariales et juridiques dans les societ´ es´ esclavagistes et post-esclavagistes. Approche comparative (Bresil,´ Antilles, Louisiane).” Cahiers du Br´esil contemporain, 53/54 (2003). Henriques, Isabel Castro and Lous Sala-Molins, eds. D´eraison, esclavage et droit: Les fondements ideologiques et juridiques de la traite n´egrei`ere et de l’esclavage. Paris, 2002. Hoebel, E. Adamson. “The Political Organization and Law-Ways of the Comanche Indians.” Memoirs of the American Anthropological Association, 54 (1940): 1– 149. Hunwick, John and Eve Troutt Powell. The African Diaspora in the Mediterranean Lands of Islam.Princeton,NJ,2002. Kagan, Richard L. Lawsuits and Litigants in Castile, 1500–1700.ChapelHill,NC, 1981. Law, Robin. “Legal and Illegal Enslavement in West Africa, in the Context of the Tr a n s - At l a n t i c Sl a ve Tr a d e ” i n Ghana in Africa and the World: Essays in Honor of Adu Boahen.EditedbyToyinFalola.Trenton,NJ,2003, 513–33. Mellafe, Rolando. Negro Slavery in America.Berkeley,CA,1975. Mirow, M. C. Latin American Law: A History of Private Law and Institutions in Spanish America.Austin,TX,2004. Morris, Thomas D. Southern Slavery and the Law, 1619–1860.ChapelHill,NC, 1996. Offner, Jerome A. Law and Politics in Aztec Texcoco.Cambridge,1983. Ogle, Gene. “Slaves of Justice: Saint Domingue’s Executioners and the Production of Shame.” Historical Reflections, 29 (2003): 275–93. Paton, Diana. “Punishment, Crime, and the Bodies of Slaves in Eighteenth- Century Jamaica.” Journal of Social History, 34 (2001): 923–54.

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Peabody, Sue. “There Are No Slaves in France”: The Political Culture of Race and Slavery in the Ancien R´egime.NewYork,1996. Peabody, Sue and Keila Grinberg, eds. Slavery, Freedom and the Law in the Atlantic World. New York, 2007. ——. Slavery & Abolition,SpecialIssueonFreeSoil.32 (June, 2011). Price, Richard, ed. Maroon Societies: Rebel Slave Communities in the Americas. Baltimore, MD, 1979. Rodney, Walter. AHistoryoftheUpperGuineaCoast,1545–1800.Oxford,1970. Schwarz, Philip J. Twice Condemned: Slaves and the Criminal Laws of Virginia, 1705–1865. Baton Rouge, LA, 1988. ——. Slave Laws in Virginia.Athens,GA,1996. Schwartz, Stuart B. Sovereignty and Society in Colonial Brazil: The High Court of Bahia and Its Judges, 1609–1751.Berkeley,CA,1973. Watson, Alan. Slave Law in the Americas.Athens,GA,1989. Zysberg, Andre.´ “Galeres` et galeriens´ en France alafinduXVIIesi` ecle:` une image du pouvoir royal al’` ageˆ classique.” Criminal Justice History, 1 (1980): 49–116.

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