American Society for Legal History The Board of Trustees of the University of Illinois
Slave Law and Claims-Making in Cuba: The Tannenbaum Debate Revisited Author(s): Alejandro de la Fuente Reviewed work(s): Source: Law and History Review, Vol. 22, No. 2 (Summer, 2004), pp. 339-369 Published by: American Society for Legal History Stable URL: http://www.jstor.org/stable/4141649 . Accessed: 10/07/2012 10:08
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp
. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].
.
American Society for Legal History and The Board of Trustees of the University of Illinois are collaborating with JSTOR to digitize, preserve and extend access to Law and History Review.
http://www.jstor.org FORUM: WHAT CAN FRANK TANNENBAUM STILL TEACH US ABOUT THE LAW OF SLAVERY?
Slave Law and Claims-Makingin Cuba: The TannenbaumDebate Revisited
ALEJANDRO DE LA FUENTE
Scholars of slavery in Latin America are giving renewed attention to the study of the law. Although this literature is not as developed and sophisti- cated as in the United States, where slavery has been a central concern of legal historians for quite some time, a specialized subfield seems to be in the making. This is a welcome development. After all, every important aspect of slaves' lives in the Iberian colonies, from birth and nourishment to marriage, leisure, punishment, and rest, was regulated in theory by a vast, indeed massive, array of positive laws. Some of these regulations had been part of the traditional statutes of Castile for centuries, others were passed by the Crown or by local organs of administration and power. The subject is of course not new to the Latin American historiography.
Alejandrode la Fuenteis an associateprofessor in the departmentof historyat the Universityof Pittsburgh
Law and History Review Summer 2004, Vol. 22, No. 2 O 2004 by the Board of Trustees of the University of Illinois 340 Law and History Review, Summer 2004 Earliergenerations of scholarscompiled, classified, and studiedthis body of positive laws.1Their work was limited in at least two ways, however. First, they privilegedthe study of the laws passed by the Consejode In- dias and otherorgans in the higherechelons of the institutionalhierarchy of the state.Regulations passed by local organsof power,those thatreflect- ed betterthe concernsof the slave holders in the colonies, received less attention.Second, positive laws were frequentlyanalyzed with little refer- ence to social conditions and to the actual experiencesand initiativesof slaves, masters,and colonial administrators. The centralityof the law to understandingslavery in LatinAmerica was underlinedby FrankTannenbaum's influential book Slave and Citizen, publishedin 1946. Tannenbaumargued that differencesin race relations in the UnitedStates and Latin America stemmed from their respective slave systems,which had developedunder dissimilar "moral and legal settings." A long legal traditionthat came throughthe Justiniancode andrecognized that slavery was against natureand reason informedthe developmentof slaveryin Spanishand PortugueseAmerica. Slaves were consideredwor- thy of participatingin the Christiancommunity, had the rightto receivethe sacraments,and their marriagesand families were protectedby law, cus- tom, andthe church.In the BritishWest Indies andthe Americancolonies, by contrast,the lack of legal traditionsconcerning slavery allowedplant- ers to define slaves as chattel. Blacks lacked "moralpersonality," their marriagesand families enjoyedno legal protection.Furthermore, whereas legal and religious traditionswere "biasedin favor of freedom"in Latin America,thus opening avenues to manumission,all sorts of legal obsta- cles plaguedthe roadto freedomin the United States."The frequency and ease of manumission,"Tannenbaum asserted, "more than any otherfactor, influencethe characterand ultimateoutcome of the two slave systemsin this hemisphere."2 Slave and Citizenthus containedtwo centralclaims. First, thatin con- trastto the Britishcolonies, slaves in IberianAmerican societies were en- dowed with a legal and moralpersonality. Second, that these differences
1. For a few significantexamples, see FernandoOrtiz, Los negrosesclavos (1916; Havana: Editorialde CienciasSociales, 1975); Luis M. Diaz Soler,Historia de la esclavitudnegra en PuertoRico (1493-1890) (Madrid:Revista de Occidente,1953); Carlos Larrazibal Blan- co, Los negros y la esclavitud en Santo Domingo (Santo Domingo: J. D. Postigo, 1967); Idelfonso Pereda Valdes, El negro en el Uruguay, pasado y presente (Montevideo, 1965); Miguel Acosta Saignes, Vida de los esclavos negros en Venezuela (Caracas: Hesp6rides, 1967); JavierMalag6n Barcel6, C6digoNegro Carolino(1784) (Santo Domingo:Editora Taller,1974). 2. Frank Tannenbaum, Slave and Citizen: The Negro in the Americas (1946; Boston: BeaconPress, 1992), 69. Slave Law and Claims-Makingin Cuba 341 in the moraland legal settingsof each slave system preconfiguredor pre- determinedpostemancipation race relationsin each area. Both argumentscame underattack, with some scholarsgoing so far as to claim thatthe studyof the law had little to contributeto ourunderstand- ing of the slave experiencesin LatinAmerica. Yet this critiquereinforced the centralityof Tannenbaum'swork for the study of slavery and the law in the region.As legal scholarRobert Cottrol has asserted,the scholarship on comparativelaw has largelybeen dominatedby framesof referencethat were establishedby sociologist FrankTannenbaum in the 1940s.3 Given the centralityof Slave and Citizen,in the following pages I re- view the controversysparked by Tannenbaum'sbook to analyzethe schol- arshipon slavery and the law in SpanishAmerica during the last few de- cades.I questionthe validityof some of the criticismagainst Tannenbaum's work and claim that some of his argumentsremain valid, in the sense that althoughhigh expressionsof the law arenot sufficientto understandslaves' everydaylives, they can not be ignoredeither. I concurwith Cottrolthat Tannenbaum'sstudy "retains its importance"not only for settingthe terms of the debate,but also "forpresenting the case for the importanceof legal normsin determiningthe often contrastingconditions under which slaves lived."4Among these laws were the traditionalstatutes of Castile that, as Tannenbaumnoted, continuedto be invoked by the courtsduring the co- lonial period.The potentialuse and applicabilityof these laws were sanc- tioned numeroustimes by authoritiesand the courts as they attemptedto regulatesocial relationsin the colonies and to constrainslaves' attempts to improvetheir lives or to escape their statusaltogether. Tannenbaum,however, gave laws a social agencythat they did not have. In this articleI use the notion of slaves' claims-makingto bridge the gap between the law as an abstractdeclaration of rights and slaves as social actorswith theirown strategiesand goals. Ratherthan assumingthat pos- itive laws endowed slaves with a "moral"personality, as Tannenbaum
3. RobertJ. Cottrol,"The Long LingeringShadow: Law, Liberalism,and Culturesof Racial Hierarchyand Identityin the Americas,"Tulane Law Review76.1 (2001): 40. The continuingrelevance of Tannenbaum'sbook is confirmedby thefrequency with which his work is explicitly engagedby recentscholarship. For some additionalexamples, see Fred- erickCooper, Thomas C. Holt, andRebecca J. Scott,Beyond Slavery: Explorations of Race, Labor, and Citizenship in Postemancipation Societies (Chapel Hill: University of North CarolinaPress, 2000), 1-32; JaneLanders, Black Society in SpanishFlorida (Urbana:Uni- versity of Illinois Press, 1999), 1-2; ThomasN. Ingersoll,Mammon and Manon in Early New Orleans: The First Slave Society in the Deep South, 1718-1819 (Knoxville: The Uni- versityof TennesseePress, 1999), xviii-xix, 120-22; Gilbert C. Din,Spaniards, Planters, and Slaves: The Spanish Regulation of Slavery in Louisiana, 1763-1803 (College Station: TexasA & M UniversityPress, 1999), xiii-xiv. 4. Cottrol,"The Long LingeringShadow," 41-42. 342 Law and History Review, Summer 2004 wouldput it, I implythat it was the slaves, as they madeclaims and pressed for benefits,who gave concretesocial meaningto the abstractrights regu- lated in the positive laws. Throughthese interactionswith colonialauthor- ities and judges, slaves acted (and were seen) as subjectswith at least a limited legal standing. Afterreviewing the scholarship,I focus on an empiricallybased discus- sion of slaveryin Cuba.One of the main critiquesagainst Slave and Citi- zen refersto its geographicaland chronological vagueness, a criticismthat I share.I use the Cubancase to testTannenbaum's assertions about the Latin American"legal setting"and to discuss some of the ways in which slaves were able to use the legal system to theiradvantage. The articlethus deals with Tannenbaum'sfirst claim, concerningthe centralityof the law to our understandingof slavery.It does not seek to addresshis problematiccor- relationbetween slaveryand "racerelations."
Slave and Citizen
Tannenbaum'sinsightful book generateda passionate,if not always pro- ductive,historiographic debate in the decadesfollowing its publication.One by one, his main argumentswere scrutinizedand in many cases modified, criticized,or rejectedaltogether. The issue of precedentsand traditions, for instance, was challengedearly on by anthropologistSidney Mintz, who questionedwhether they were trulyabsent in the non-Iberianworld. Mintz found evidence to the contraryin the Britishvilleinage laws, which were still appliedin sixteenth-centuryEngland. "The argument that therewas no working traditionfor slavery in the non-CatholicNew Worldis not entirelyconvincing," he argued."There was an Englishlegal, andto some extent even institutional,background for British West Indianand North Americanslavery."" Contested, also, was the notionthat the Romanfoun- dationsof Iberianlegal precedentstruly conferreda moralpersonality to slaves. In a 1965 article,Arnold A. Sio concludedthat, in severalkey ar- eas, therewas "nothingsufficiently distinctive to distinguishthe legal sta- tus of the slave as propertyin the United States from that in Rome"and
5. Sidney Mintz, CaribbeanTransformations (Chicago: Aldine Publishing,1974), 70. Mintz had made this argumentearlier, in a 1961 review of StanleyElkins's Slavery, which was reproducedas "Slaveryand EmergentCapitalisms" in Slavery in the New World:A Reader in Comparative Perspective, ed. Laura Foner and Eugene Genovese (Englewood Cliffs, N.J.: Prentice-Hall,1969), 27-37. For an oppositepoint of view, see Alan Watson, Slave Law in the Americas(Athens: The Universityof GeorgiaPress, 1989), 63-66. Wat- son quotes a case (p. 11) in which a Virginiacourt statedin 1826 thatvilleinage could not be considered"the prototype of slavery,as it has always existed here." Slave Law and Claims-Makingin Cuba 343 that extensive assimilationof slave rights to propertyhad takenplace not only in the U.S. and Rome, but also in LatinAmerica. Other studies elab- oratedon these criticisms,questioning whether Iberian cultural and legal precedentsactually recognized slaves' humanityand were free from rac- ism. As Sweet contendsin a recent article,"the racism that came to char- acterizeAmerican slavery was well establishedin culturaland religious attitudesin Spain and Portugalby the fifteenthcentury."6 Even more powerful than the criticism concerning the existence and natureof legal and culturalprecedents was the argumentof whetherlegis- lation matteredat all. At the core of this argumentwere two differentis- sues. One concernedthe "effectivetransfer" of these Europeantraditions to the colonies, the otherthe actualenforcement of the laws. Both points, his critics rightly noted, had been almost completely ignoredby Tannen- baumin his analysis. The issue of the effective transferof traditions,first raised by Mintz and developedlater by HerbertKlein in his comparativestudy of Virginiaand Cuba,had importantramifications. To begin with, it placed the whole de- bate aboutthe natureof slave regimes in an institutionalframework, in- dependentfrom the planters'individual attitudes, character, and benevo- lence. A key element in this analysis was to determinewhere the "center of power"was located-whether in the colonies or acrossthe Atlantic.Did slave owners have the institutionalability to define the surroundingso- cial and legal environmentaccording to theirmost immediateinterests or was such capacity mediated,even obstructed,by an intrusivemetropoli- tan government?As Mintz put it, "The English, for instance, appearto have given their colonists maximumlocal authority-which in practice could mean maximumpower to abuse the slaves and to bypass any impe- rial concern for their protection.In contrast,the Spanish colonies were administeredfrom the metropolis.... Slavery under Spain, consequent- ly, was more subjectto controlfrom afar."7 Even taking into accountthese qualifications,some critics challenged the valueof Tannenbaum'sapproach as a whole. They emphasizedthe wide
6. ArnoldA. Sio, "Interpretationsof Slavery:The Slave Statusin the Americas,"Com- parative Studies in Society and History 7.3 (April 1965): 296; James Sweet, "The Iberian Roots of AmericanRacist Thought," The William and MaryQuarterly 44.1 (January1997): 144. 7. Mintz, Caribbean Transformations, 69; Herbert Klein, Slavery in the Americas: A Comparative Study of Virginia and Cuba (1967; Chicago: Elephant Paperbacks, 1989). The importanceof institutionaldifferences, already present in Tannenbaum'swork, was discussedby Elkins as well, who noted thatin LatinAmerica several competing powers- Crown,church, masters-intervened in regulatingthe lives of slaves. See StanleyM. Elkins, Slavery: A Problem in American Institutional and Intellectual Life (Chicago: University of ChicagoPress, 1968), 52-80. 344 Law and History Review, Summer 2004 gap that separatedlegal formulationsfrom social realitiesand questioned the analyticalusefulness of law andregulations for understandingthe char- acterand nature of slaveregimes. The Crown,anthropologist Marvin Harris asserted,"could publish all the laws it wanted,but in the lowlands,sugar was king."Both in the United States and LatinAmerica "law and reality bore an equally small resemblanceto each other,"so scholarsof compar- ative slaveryhad to examine"material conditions first, before concluding that it was the mystiqueof the Portugueseor Spanishsoul that made the difference."'Among those conditions,Harris found that demographic fac- tors were key. He arguedthat whereasBritish migrationto Americahad been largeenough to accountfor populationgrowth and for whites to per- form interstitialroles in the economy, Portugueseand Spanishmigration had been much lower, so race ratios were the opposite in both areas.As a result,population growth in LatinAmerica had taken place mainlythrough miscegenationand naturalincrease, with intermediategroups of mestizos performingeconomic andmilitary functions for which slave laborwas not adequate,and for which no whites were available.9 In his rejectionof Tannenbaum,Harris fell into a determinismthat was at least as extremeas thatof the authorhe opposed.10Yet he was not alone in his criticism.Other scholars, including those who subscribedto Tannen- baum'smain arguments,agreed that productionsystems were a key ele- ment that had to be incorporatedinto the analysis. By the 1970s a new consensuswas emergingin the scholarship:slave systems in LatinAmer- ica and the United States were not truly differentand slaves' experiences were remarkablysimilar when they were immersedin comparablesystems of production.Case studies confirmedthat the dehumanizingeffects of plantationslavery cut acrossethnic and colonial lines." Regardlessof the
8. MarvinHarris, Patterns of Race in the Americas(New York:Walker and Co., 1964), 76. Also criticalof Tannenbaum'sreliance on legal preceptswas David Brion Davis, The Problem of Slavery in WesternCulture (Ithaca: Cornell University Press, 1966), 223-43; and Gwendolyn Midlo Hall, Social Control in Slave Plantation Societies: A Comparison of St. Domingueand Cuba(Baltimore: Johns Hopkins University Press, 1971). For a morerecent example, see Ingersoll, Mammon and Manon in Early New Orleans, xviii, who asserts that "lawsor religionhad little or no influenceon eitherthe planterclass or the conditionof black slaves or free blacks." 9. Harris,Patterns of Race, 84-92. Harris'sdemographic explanation was laterechoed in numerousstudies. For a notableexample, see Carl N. Degler, Neither WhiteNor Black: Slavery and Race Relations in Brazil and the United States (Madison: The University of WisconsinPress, 1971), 41-47. 10. For a thoughtfulcritique of Harris,see Genovese, "Materialismand Idealismin the History of Negro Slavery in the Americas," in Slavery in the New World:A Reader in Com- parativePerspective, ed. LauraFoner and Eugene Genovese (Englewood Cliffs, N.J.:Pren- tice-Hall, 1969), 238-55. 11. For examples of this scholarshipsee Mintz, CaribbeanTransformations; Manuel Moreno Fraginals, El ingenio: complejo econrmico-social cubano del azdcar (Havana: Slave Law and Claims-Makingin Cuba 345
colonial setting, in the plantations the master's will was the only valid law. Some authors even suggested that North American slavery might in fact have been less harsh than in Latin America, as indicated by the capacity of its slave population to reproduce itself, and contended that slaves in the U.S. had never been considered just chattel in the eyes of the law.12 Thus Tannenbaum'scentral argument-i.e., that differences in posteman- cipation race relations were based on equally different experiences under slavery-was under full attack by the 1970s. After a careful comparative analysis of slave systems in Brazil and the United States, for instance, Carl Degler concluded that whatever differences might have existed-and these he acknowledged only reluctantly-were "not fundamental to an explana- tion of differences in contemporary race relations" and were "a result of historical circumstances in the New World, not of inherited moral intent or law." In his comparative study of South Africa and the United States, Cell arrived at a similar conclusion, claiming that conditions before the late nineteenth century had "relatively little to do with the origins of segrega- tion." Emilia Viotti da Costa summarized the new trend when she wrote in 1992: "In the 1980s scholars were abandoning the assumption that differ- ent forms of racism, discrimination and segregation in modern society derived from different slave systems, or that the different contemporary patterns of race could be explained by reference to traditional differences in the perceptions of race in the Anglo-Saxon and Iberian world."'13 But did Tannenbaum get it so completely wrong? In fact, many of the critiques against his book are not entirely convincing. To begin with, Tan-
Editorialde CienciasSociales, 1978), firstpublished in 1964; Hall, Social Control;Frank- lin Knight, Slave Society in Cuba During the Nineteenth Century(Madison: Wisconsin UniversityPress, 1970); Warren Dean, Rio Claro:A BrazilianPlantation System, 1820-1920 (Stanford:Stanford University Press, 1976). See also EugeneD. Genovese,"The Treatment of Slaves in DifferentCountries: Problems in the Applicationof the ComparativeMethod," in Slaveryin the New World,202-10. 12. The best argumentalong these lines has been made by Degler, Neither Black Nor White,67-75. Concerninglegal definitionsof slaves, see also Davis, TheProblem of Slav- ery, 244-55. 13. Degler, NeitherBlack Nor White,92; JohnW. Cell, TheHighest Stage of WhiteSu- premacy:The Originsof Segregationin SouthAfrica and the AmericanSouth (Cambridge: CambridgeUniversity Press, 1982), xii; EmiliaViotti da Costa, "Commentary,"Luso-Bra- zilianReview (Winter 1992): 147. The valueof Tannenbaum'smodel was furtherundermined by scholarsworking on the persistenceof racismand racial inequality in LatinAmerica after the 1950s. This scholarshipwas particularlysolid and sophisticatedin the case of Brazil, once hailed as the paradigmof racial democracyin the Americas.The researchof these scholarsseemed to suggestthat modem race relationsin the United Statesand LatinAmer- ica were not thatdifferent after all. For a discussionof this literature,see ThomasSkidmore, "Raceand Class in Brazil:Historical Perspectives," in Race, Class and Powerin Brazil,ed. Pierre-MichelFontaine (Los Angeles: CAAS, 1985), 11-24. 346 Law and History Review, Summer 2004 nenbaum'sstudy was not based on a false premise.Although postemanci- pationLatin American societies were not, as once thought,racial utopias, it is nonethelesstrue that they were differentfrom the UnitedStates in at least one fundamentalway: the absenceof institutionalsegregation. As George Reid Andrewshas stated,this is not a trivialdistinction. In nonsegregated societies therewere opportunitiesfor individualmobility and symbolicna- tionalintegration that were absentin the Jim CrowAmerican South.14 Furthermore,despite significant efforts to demonstratethat slave regimes wereessentially similar and that whatever differences may have existedwere due to "materialconditions," a significantdistinction remains: the propor- tion of freedmenand freedwomen in the totalpopulation was alwaysmuch higherin Spanishand PortugueseAmerica than in the United States.What FrederickBowser wrote severaldecades ago aboutthe Spanishcolonies is still valid: "Evenin areaswhere the institutionof slaverywas stronglyen- trenched,the freecolored were a veryimportant element in the population."" This strikingdifference has been explainedin turnas a functionof demo- graphicand economic conditions. The mostfrequent arguments include: that the boom and bust cycles of the colonial economyprovided incentives for manumission;that masters in Spanishand Portuguese America freed the old, the ill, or slaveswith low marketvalue, such as women;that, given raceand populationratios, in LatinAmerica free blackswere needed to performjobs thatwere not suitablefor slaves;or thatmost slaves accessedmanumission throughself-purchase, a clear indicationthat profits, not moralor religious considerations,were the slave owners'leading concern.16 Whatevertheir merit, these argumentsdo not reallyundermine Tannen- baum's insight that "The frequencyand ease of manumission,more that any other factor,influence the characterand ultimateoutcome of the two slave systems in this hemisphere."As StuartSchwartz argues, the ease by which a personcould move fromlegal slaveryto legal freedomwas indeed "anessential measure of a slave regime."17This ease was undoubtedlymuch
14. GeorgeReid Andrews, Blacks and Whitesin Sdo Paulo,Brazil, 1888-1988 (Madison: WisconsinUniversity Press, 1991), 4. 15. FrederickBowser, "Colonial Spanish America," in NeitherSlave Nor Free:The Freed- men of AfricanDescent in the Slave Societies of the New World,ed. David W. Cohenand JackP. Greene(Baltimore: The JohnsHopkins University Press, 1974), 37. 16. Degler,Neither Black Nor White,39-47; Ingersoll,Mammon and Manonin EarlyNew Orleans,221-34; DonaldG. Eder,"Time under the SouthernCross: The TannenbaumThe- sis Reappraised,"Agricultural History 50.4 (October1976): 600-14; David C. Rankin,"The TannenbaumThesis Reconsidered:Slavery and Race Relationsin AntebellumLouisiana," SouthernStudies 18.1 (Spring 1979): 5-31. 17. Tannenbaum,Slave and Citizen,69; StuartSchwartz, Sugar Plantationsin the For- mationof BrazilianSociety: Bahia, 1550-1835 (New York:Cambridge University Press, 1985), 253. Slave Law and Claims-Makingin Cuba 347 greaterin the Spanish colonies and Brazil than in the United States and some of the argumentsused to underminethe significanceof this crucial differenceare hardly sustainable. There is little evidence, for instance,that old andunproductive slaves were systematicallytargeted for manumission. Rather,there is abundantevidence thatin "gracious"manumissions, those which did not involve self-purchase,children and youths were the major- ity. The rates of self-purchasewere higher for women than for men, but this was not a functionof theirlower value. It was a reflectionof the eco- nomic and social opportunitiesthat female slaves found in urbanand do- mestic occupations.Besides, at least in some areas, young women had a marketvalue higherthan men."18 Harris'sinsightful demographic argument, which numerous authors have reproducedlater, has greatvalue at the macro-structurallevel, but it does not really disprovesome of Tannenbaum'scentral claims. It is difficultto imaginehow, when individual slave ownersgranted freedom to one or more of their slaves, they would have abstractdemographic considerations and populationratios in mind. What concernedslave owners, in additionto profits,was God's service. These two categorieswere by no means con- tradictory,nor did economic motifs preclude religious concerns. As Schwartzrightly asserts, referring to Brazil, slave exploitation"was set in an ideological context in which the metaphorsof family, obligation,feal- ty, and clientage predominated."In the act of manumission,the "unity betweenprofit and paternalism was madeclear. Although we may findthis to be a contradiction,the slaveowners... did not."19 Thereis also some limited evidence that changes of metropolishad an effect on colonial slave regimes. Louisianais, of course, a case in point, one thathas been actuallyused to test Tannenbaum'smain theses. By the time of the Spanishoccupation after three decades of Frenchrule, Louisi- ana's free coloredsrepresented only 3.5 percentof the total black popula- tion. Four decades later, when the colony shifted momentarilyback to France,then was purchasedby the U.S. and became a state of the Union, the proportionhad increased to 12 percent.This growth, one historiannotes, "occurrednot because mastersrecognized the moral right of their slaves to freedom,as Tannenbaumsuggested, but ratherbecause they recognized
18. FrederickP. Bowser,"The Free Person of Colorin Mexico City andLima: Manumis- sion and Opportunity, 1580-1650," in Race and Slavery in the Western Hemisphere: Quan- titative Studies,ed. Stanley L. Engermanand Eugene D. Genovese (Princeton:Princeton UniversityPress, 1975), 331-68; Lyman L. Johnson,"Manumission in ColonialBuenos Aires, 1776-1810,"Hispanic American Historical Review 59.2 (1979): 258-79; Schwartz, "The Manumissionof Slaves in Colonial Brazil: Bahia, 1684-1745," HispanicAmerican HistoricalReview 54.4 (1974): 603-35. 19. Schwartz, Sugar Plantations, 257. 348 Law and History Review, Summer 2004 the productsof theirsecret (and sometimesnot so secret)sex lives."20Al- though this might have been the case, it does not necessary follow that Tannenbaum'sarguments are left without defense. To begin with, why would the mastersbegin to recognize the fruits of their sexuality under Spanish rule and not before? Sexual liaisons with female slaves surely predatedthe Spanishpresence. Furthermore, slave owners'recognition of theiroffspring with slave women did not automaticallyconfer freedom on theirchildren, who of course followed the social conditionof the mother. Mastershad not only to recognizethe productsof theirsex lives; they also had to either grantor purchasethe freedomof theirchildren. Critics are on much more solid ground when they question Tannen- baum'sreliance on legal preceptsto characterizeslavery without reference to their effective transfer-in the case of "precedents"-or applicability, and enforcementin the colonies. But even in this areahis argumentscan- not be easily dismissed.Legal statutesmay have been customarilyviolat- ed or ignoredin practice,but they still offered, as David Rankinnotes, "a convenientand precise definitionof society's values."21Colonial legisla- tion, however, frequentlyreflected the "values"and ideological concerns of the central state ratherthan those of the dominantgroups within the colonies, where such laws were supposedto be applied.In fact, local reg- ulationswere invariablyharsher in definingthe social activitiesof slaves and free persons of color. But this does not rendercolonial legislation meaninglessto slave regimes in the colonies. If laws were to be ignored as a matterof fact, as some authorssuggest, why did the plantersbother to mobilize in order to prevent the publication of regulationsthat they deemed to be unreasonablyfavorable to the slaves? If no applicationor enforcementwas expected,how could these laws disruptproduction and the colonies' social fabric?22 Althoughthe applicationof slavelaws in LatinAmerica has notbeen stud- ied systematically,there is evidencethat under certain circumstances slaves
20. Rankin,"The Tannenbaum Thesis," 23. Otherstudents of Louisianaacknowledge that underSpanish rule manumissionsincreased, but emphasizemarket considerations or other "material"factors in theirexplanation. See Ingersoll,Mammon and Manon in EarlyNew Orleans,211-39; ThomasM. Fiehrer,"The African Presence in ColonialLouisiana: An Essay on the Continuityof CaribbeanCulture," in Louisiana's Black Heritage, ed. RobertR. Macdonald,John R. Kemp,Edward F Haas(New Orleans:Louisiana State Museum, 1979), 3-31. 21. Rankin,"The Tannenbaum Thesis," 6. Fora similarclaim, see WinthropD. Jordan, White over Black: American Attitudes Toward the Negro, 1550-1812 (New York: W. W. Norton,1977), 588. 22. The most notoriouscase of resistanceto the applicationof Spanishslave law in the coloniesconcerns the 1789real cddula that enacted the C6digo Negro Carolino. See Man- uel Lucena Salmoral,Los c6digos negros de la America espaiiola (Madrid:Ediciones UNESCO,1996), 108-23. Slave Law and Claims-Makingin Cuba 349 were able to seek legal redressfrom colonial courts and authorities. In a pi- oneeringstudy concerning slave legislationin New Granadaduring the eigh- teenthcentury, Norman Meiklejohn demonstrated four crucial points. First, the traditionalIberian legislation governingslaves' lives, particularlythe Siete Partidas,remained in full effect. Second,at least some slaves used the law to claim rightsin court, such as in cases of manumissionand the de- nunciationof cruelmasters. Third, a local official, the sindicoprocurador, played an importantrole in the protectionof slaves' rights. Last, but cer- tainlynot least, the courtsfrequently found in favor of the slaves.23 Opportunitiesfor slaves'claims-making may have been unusuallybroad in New Granada,but they were not unique.Even in areas where slavery was firmly entrenched,slaves situated closer to the centers of colonial administrationand to the cultureand ways of the dominantgroup used the Spanishjudicial and legal system to claim similarrights. Recent studies conductedin such dissimilarcolonies as PuertoRico, Ecuador,Peru, Gua- temala, and Cubahave confirmednot only that traditionalSpanish legis- lation was applied in the colonies, but that under certain circumstances slaves were able to use it to their advantage.24This shouldnot be surpris- ing. Just as the Spanishlegal system helped to tie indigenouspeoples "to the systemthat also oppressedthem" by occasionallyprotecting their rights, interventionin the case of slaves would have likewise encouragedreliance on colonial institutionswhile discouragingother forms of resistance,thus contributingto social stabilityand peace.25In both cases some degree of state interventioncould serve well the largerconcerns of the empire.
23. NormanA. Meiklejohn,"The Implementationof Slave Legislationin Eighteenth- Century New Granada," in Slavery and Race Relations in Latin America, ed. Robert Brent Toplin(Westport: Greenwood Press, 1974), 176-203. 24. Benjamin Nistal Moret, Esclavos pr6fugos y cimarrones: Puerto Rico 1770-1870 (Rio Piedras:Editorial de la Universidadde PuertoRico, 1984);Manuel Lucena Salmoral, San- gre sobre piel negra: la esclavitud quitefia en el contexto del reformismo borb6nico (Quito: Ediciones Abya-Yala, 1994); Carlos Aguirre, Agentes de su propia libertad: los esclavos de Lima y la desintegracidn de la esclavitud, 1821-1854 (Lima: Pontificia Universidad Cat61lica del Perd, 1993); Christine Hiinefeldt, Paying the Price of Freedom: Family and Labor among Lima'sSlaves, 1800-1854 (Berkeley:University of CaliforniaPress, 1994);Thomas Fiehr- er, "Slaves and Freedmenin Colonial CentralAmerica: Rediscovering a ForgottenBlack Past," Journal of Negro History 64.1 (1979): 39-57; Maria E. Diaz, The Virgin, the King, and the Royal Slaves of El Cobre: Negotiating Freedom in Colonial Cuba, 1670-1780 (Stan- ford: Stanford University Press, 2000); Gloria Garcia, La esclavitud desde la esclavitud: la visionde los siervos(Mexico City: Centro de Investigaci6n'Ing. Jorge Tamayo,' 1996); Digna Castafieda,"The Female Slave in Cubaduring the FirstHalf of the NineteenthCentury," in Engendering History: Caribbean Women in Historical Perspective, ed. Verene Shepherd, BridgetBrereton, and BarbaraBailey (New York:St. Martin'sPress, 1995), 141-54. 25. Ward Stavig, The World of Tupac Amaru: Conflict, Community, and Identity in Colo- nial Peru (Lincoln:University of NebraskaPress, 1999), 85. On the complex interaction betweenthe colonial state and the indigenouscommunities, see also Steve J. Stern,Peru's 350 Lawand HistoryReview, Summer 2004 The findingsof this scholarshipsuggest that Tannenbaum's emphasis on legal preceptsand institutions was not withoutvalue. Slaves mayhave been "effectivelybeyond the reach of the colonial state,"as Robin Blackburn has claimed, but the colonial state was not necessarilybeyond the reach of enterprisingslaves.26 Recent studiesabout the NorthAmerican Spanish colonies confirmthis assertion.In her investigationof slavery in Florida, for instance, Jane Landersdemonstrates that slaves of African descent, particularlywomen, "learnedto manipulateSpanish law, customs, and genderconventions to theiradvantage." Her findings confirm Tannenbaum's central claim, namely that "Spanishlaw and custom grantedthe slave a moraland juridical personality, as well as certainrights and protections not found in otherslave systems."27 Studiesof slave law in Louisianacoincide with this assessment.Under Spanishrule, and despite the continuingapplicability of Frenchlegislation, slaves' rightsto self-purchasewere at least occasionallyenforced, result- ing in a notableincrease of the free populationof color.28The acquisition of the colony by the Americanunion, in turn,"initiated an era of dimin- ished rightsfor slaves as Louisianaplanters suddenly found themselves in a position to make their own laws." With the "Americanization"of the colony and its legal system, three of the most importantslave rightswere eliminatedor greatlyrestricted. These includedthe rightto self-purchase, the right to own property,and the right to recourseagainst cruel masters. Two years afterthe Americanacquisition, writes Judith Schafer, "many of the relativelybenign tracesof Spanishlaw had disappeared."29 The opportunitiesfor claims-makingthat slaves createdunder Spanish law were largely a functionof the interplayamong the differentelements of the complex institutionalhierarchy of the colonies. This hierarchybe- gan in the local organsof power, as representedby the cabildos, andend- ed up in Madrid.The degree to which slave owners enjoyedthe monopo- ly of power and authoritywas, to put it in a simplified way, inversely relatedto the opportunitiesslaves hadto benefitfrom legislation. As a rule, in SpanishAmerica masters never enjoyeda monopolyof power andhad
Indian Peoples and the Challenge of Spanish Conquest (Madison: University of Wisconsin Press, 1982). 26. Robin Blackburn, The Making of New WorldSlavery: From the Baroque to the Mod- ern, 1492-1800 (London:Verso, 1997), 18. 27. Landers, Black Society in Spanish Florida, 2, 139. 28. Hans W. Baade, "TheLaw of Slaveryin SpanishLouisiana, 1769-1803," in Louisi- ana 's Legal Heritage,ed. EdwardF. Haas (Pensacola:The PerdidoBay Press, 1983), 43- 86; Judith K. Schafer, Slavery, the Civil Law, and the Supreme Court of Louisiana (Baton Rouge:Louisiana State UniversityPress, 1994). 29. Schafer,Slavery, 6. Slave Law and Claims-Makingin Cuba 351 to deal with the intromissionof colonial authoritiesand the Church.Yet withinthis generalizationthere were significantvariations-so greatin fact as to renderthe whole statementvirtually useless. Just as any attemptto define "thenature" of slavery in a given colony is perilous, attributinga generalcharacter to the relationsof power between the metropolisand its colonies must be of limited value. Constantshifts in these hierarchiesof authoritycreated changing opportunities, and limitations,for both slaves and slave owners. Thus a discussionof the importantquestions raised by Tannenbaum,his followers, and his criticsmust be done in referenceto a concreteslave so- ciety and linkedto specificphases of its political and economic evolution. Even sympatheticscholars agree that one of the main flaws of Slave and Citizenwas its chronologicaland geographicalvagueness. It is with this in mind thatI now turnto the studyof slaveryin Cuba.The islandis an excel- lent case studyfor at leasttwo reasons.First, slavery was the dominantform of labor in the colony for over three hundredyears. Second, by the early nineteenthcentury the islandhad become a flourishingslave-based planta- tion society and a world leaderof sugarproduction. Therefore, in the Cu- bancase it is possibleto assess,within a singlecolony, whether Iberian slave laws were transferredat all duringthe early colonial period and, if so, to determineif they survivedthe dehumanizingimpulse of commercialagri- culture.Indeed, the Cubanexperience has been used by both supportersand detractorsof Tannenbaum.Some authorshave employedit to demonstrate the role thatthe colonial state and the churchplayed in temperingthe ex- ploitationof the slaves.Most authors, however, believe that Cuba exemplifies the inaccuracyof Tannenbaum'sideas, on the groundthat the rise of the plantationeconomy dehumanizedthe slaves, to put it in Mintz'smuch re- peatedwords, to a degree similarto that of Jamaicaand NorthAmerica.30 Partof the problemhas restedon a selective use of evidence from quite differentperiods in the island's development,or from areaswith dissimi- lar linkagesto the exporteconomy. As in Brazil,where studiesof colonial society have centeredon monoculture,slavery, and latifundia, in Cubathere has been a tendencyto identifyslavery with the plantationeconomy.31 Some historianshave extrapolatedthe dehumanizingfeatures of plantationagri- cultureto characterize"the" slave experiencein the island, regardlessof
30. Mintz,"Slavery and Emergent Capitalisms," 31. Mintz'sstatement has been frequently quoted.For examples,see Sio, "Interpretationsof Slavery,"307, andEder, "Time under the SouthernCross," 612. By farthe best scholarship concerning Cuban slavery along Tannen- baum'sarguments is Klein's Slaveryin the Americas. 31. For a discussionof this problemin Brazil, see B. J. Barickman,A Bahian Counter- point: Sugar, Tobacco, Cassava, and Slavery in the Reconcavo, 1780-1860 (Stanford: Stan- fordUniversity Press, 1998). 352 Law and History Review, Summer 2004 chronologicalor regional variations.32Such an approachignores the cru- cial fact that, in the island, the plantationeconomy did not develop until the last quarterof the eighteenthcentury. The late arrivalof the plantation economy to Cuba implied that the new orderhad to be imposed on, and somehow reconciledwith, previouscultural traditions and social mores. Thus a betterknowledge of slaveryin the island duringthe long period priorto the late 1700s is crucialto assess the impactof plantationagricul- ture on traditionalforms of slave use and on whateveropportunities for mobilityhad developedin preplantationCuba. The rise and fall of planta- tion slavery must be analyzed in relationwith, not in isolation from, the developmentof slavery duringthe early colonial period. Since this is by far the least studiedperiod of Cubanhistory in general,and of Cubanslav- ery in particular,most of the remainderof this articleis devotedto it.33The next section shows that duringthis period some opportunitiesfor slaves' claims-makingand social mobility existed in the colony.A final conclud- ing section brieflyexplores some of the effects thatthe plantationsystem had on slaveryin the island. I should state at the outset that althoughmy analysis of early colonial slaveryis largelybased on my own archivalresearch, I drawprimarily on the secondaryliterature for the 1790-1860 period.It should also be noted thatthe following discussiondoes not attemptto providea comprehensive summaryof the evolution of slavery in Cubaor of the abundantscholar-
32. This view is not uncommonin Cubanhistory manuals. For examples, see Julio Le Riverend,Selecci6n de lecturasde historiade Cuba(Havana: Editora Politica, 1984);Ser- gio Aguirre,Historia de Cuba,3 vols. (Havana:Editorial Nacional, 1966);Jesds Guanche, Procesos etnoculturalesde Cuba (Havana:Editorial Letras Cubanas, 1983); CalixtoMas6 Velizquez, Historia de Cuba (Miami:Ediciones Universal, 1976). Otherhistorians speak of sugarplantations in early colonial Cuba.For examples,see EduardoTorres-Cuevas and Eusebio Reyes, Esclavitudy sociedad: notas y documentospara la historia de la esclavi- tudnegra en Cuba(Havana: Editorial de CienciasSociales, 1986);Francisco Castillo Mel6n- dez, "Un afio en la vida de un ingenio cubano(1655-1656)," Anuariode EstudiosAmeri- canos 39 (1982): 449-63. 33. Althoughthere is not a comprehensivestudy of preplantationslavery in Cuba,the topic has been coveredin severalimportant works of scholarship.Particularly useful are,in addi- tion to Klein'sSlavery in theAmericas, Levi Marrero,Cuba: economia y sociedad(Madrid: EditorialPlayor, 1975-1992), especially 2:346-70, 5:25-42; Isabelo Macias, Cubaen la primera mitad del siglo XVII (Sevilla: Escuela de Estudios Hispanoamericanos,1978); Castillo Meldndez,"Un afio en la vida de un ingenio cubano,"449-63. Althoughdated, HubertAimes, A Historyof Slaveryin Cuba,1511 to 1868 (New York:Putman's Sons, 1907) and Ortiz,Los negrosesclavos are still valuablecontributions. A slave communitythat has received significantattention is that of El Cobre,studied by Jos6 LucianoFranco, Las mi- nas de Santiagodel Pradoy la rebelirnde los cobreros,1530-1800 (Havana:Editorial de Ciencias Sociales, 1975); Levi Marrero,Los esclavos y la virgendel Cobre(Miami: Edi- ciones Universal,1980); andDiaz, TheVirgin, the King,and the Royal Slaves of El Cobre. Slave Law and Claims-Makingin Cuba 353 ship aboutthe subject.What it does attemptis to identify some of the op- portunitiesthat variousinstitutional and productivearrangements created for slaves' legal claims-makingand for theiraccess to colonial institutions, particularlyduring the long preplantationperiod.
Slavery in Preplantation Cuba (1550s-1770s)
Africanslaves constitutedthe main source of laborin the island from the mid-sixteenthcentury onward. A few hundredof them had been imported to begin to compensatefor the loss of the indigenouspopulation, which had been largely wiped out by 1550. After the collapse of the ephemeral mining cycle of the early 1500s, most of these slaves were used in urban activitiesor in ruraloccupations in which they could carve out a modicum of personaland even financialautonomy. In the main urbancenters, where a large proportionof the slaves lived, therewere some opportunitiesfor mobility.Slaves and the growing sector of free blacks and mulattosnearly monopolized Havana's crucial tertiary sectorin the late 1500s and the 1600s. A majorport city, Havanawas vis- ited annually by the fleets of Nueva Espafia and Tierra Firme, which broughtwith themthousands of consumerswho had to be fed, lodged, and entertained.These cyclical bursts of populationand cash had a marked inflationaryimpact on the local market,where all services and goods were chargedat a premiumwhile the fleets were stationedin the port. Indeed, Havana'sresidents referred to the interfleetperiod as "the dead season" (tiempomuerto), the same expressionthat would later designatethe peri- od between the sugarharvests.34 Since manyof these serviceswere provided by blacks,free andenslaved, they were able to benefitfrom these opportunities.Apparently, black wom- en filled manyof these economicspaces. Local authoritiesfrequently com- plainedthat they owned or operatedmost tavernsand lodging facilities in the city, which by 1673 numberedas many as eighty. Female slaves and free black women also served the needs of Havana'sgrowing garrison, workingas laundresses,cooks, and prostitutes.35
34. For the developmentof Havana'sservice and maritime economy, see Alejandrode la Fuente,C6sar Garcia del Pino, and BernardoIglesias Delgado, "Havanaand the Fleet Sys- tem:Trade and Growthin the Peripheryof the SpanishEmpire, 1550-1610," ColonialLat- in American Review 5.1 (1996): 95-115; Marrero, Cuba, 2:138-64. 35. Archivodel Museo de la Ciudadde la Habana(hereafter AMCH), Actas Capitulares del Ayuntamientode la Habana,originales, 1672-1683, fol. 45. Local authoritiesconstant- ly complainedabout the large numberof female slaves who devotedthemselves to service activitiesand tried repeatedly to curbtheir autonomy. Local regulationsdevoted specifically 354 Lawand HistoryReview, Summer 2004 Slaves also performednumerous skilled jobs and reachedthe highest levels within the tradesas officers and mastercraftsmen, even opening- as Havana'sprocurador (petitioner) denounced in 1650-their own pub- lic shops. Roughlya centurylater, in 1761, MartinF61ix de Arrateassert- ed in his notablechronicle of Havanathat the "negrosand pardos"were "veryable andcapable to performmechanic trades, to whichthey frequent- ly applythemselves, becoming distinguished masters, not only in thelowest ones such as shoemakers,tailors, masons, and carpenters, but also in those which requiremore ability and genius, such as silversmiths'scraft, sculp- ture, painting,and carving,as denotedby theirmarvelous works."36 A large numberof these slaves worked under the hiring-outsystem, which was commonin Cubancities throughthe nineteenthcentury, as well as in other colonies. Under this arrangement,slaves had to pay a daily amountto theirmasters, but were obligedto findtheir own occupationsand employers,just as if they were free workers.In the process, slaves could maximizetheir personal and financial autonomy and acquire valuable con- tacts and knowledgeabout colonial institutionsand their functioning. Althoughopportunities were greatestfor slaves employedin the urban areas, some ruralslaves found ways to participatein the urbanmarket as well. Until well into the seventeenthcentury, the line separating"rural" from "urban"areas was itself fairly porous.Most slaves not employedin the cities lived in the smallestancias that, like an agriculturalbelt, surround- ed the urbancenters. Since the main economic purposeof these unitswas to supply foodstuffsto the local market,easy access to the city was cru- cial. The same was true of some sugarmills, which were close enoughto the urbanareas for Churchauthorities to decree as late as 1681 that,un- less a churchwas availableon the premises,the slaves employedin them shouldbe broughtto town to hearmass every Sunday.37In additionto their physicalcloseness to the cities andtowns, local authoritiescomplained that
to black women were approvedin 1553, 1557, 1599, 1601, 1620, 1654, and 1698.Actas Capitulares del Ayuntamiento de la Habana, 1550-1578 (Havana: Municipio de la Habana, 1937-1946), 1.2: 75, 150; AMCH,Actas Capitularesdel Ayuntamientode la Habana,tra- suntadas(hereafter ACAHT), 1599-1604, fol. 474v, 521; 1616-1624, fol. 126; 1648-1654, fol. 874; 1691-1702,fol. 207.Womenwere also referredto in regulationsdealing with slaves' urbanactivities in general.See Table 1 below. 36. AMCH,ACAHT, 1648-1654, fol. 618; Jos6 MartinF61ix de Arrate,Llave del Nuevo Mundo(Mexico City: Fondo de CulturaEcon6mica, 1949), 95. On the growingsector of artisansin Havana,see LeandroS. Romero,"Fichero ilustrado," Revoluci6n y Cultura(Au- gust 1975): 78-82; Romero,"Orfebreria habanera en las islas canarias,"Universidad de la Habana 222 (January-September1984): 390-407. 37. See the Lib. 2, Tit. 1, Const. 4 of Diocesan Synod of 1680 in JuanGarcia de Pala- cios, SinodoDiocesano (Havana:Oficina de Arazozay Soler, 1814), 46. Slave Law and Claims-Makingin Cuba 355 the slaves' own productswere channeledto the local marketby slaves and free blacks who made a living touringthe estancias and buyinggoods that they resold in the cities.38 The purposeand structureof these early colonial ruralunits were vast- ly differentfrom those of nineteenth-centuryplantations. Devoted to grow- ing food for local consumption,the estancias typically employed one or two slaves who lived in the unitwith the ownerand his family.In the 1578- 1610 period, only 14.5 percentof all estancias in Havanaused slaves at all. The averagenumber of slaves employed by these units remainedun- changedin the earlyeighteenth century.39 More distant from the cities, cattle farms were mannedby an equally small numberof slaves who lived in a state of virtual autonomy.Their main occupationwas the productionof hides and the periodic transportation,particularly during the visit of the transatlanticfleets, of cattleto be butcheredin the city. Inventoriesof these farmsrarely mention white overseersor administrators.40 Even in the sugar mills, which were of course the units requiringthe largestconcentrations of workers,the numberof slaves per estatewas very low comparedto sugarplantations elsewhere, or laterin Cubaitself. A study of fortymills in the Havanajurisdiction during the 1650-1699 periodfound that typically sugarmills used between fifteen and twenty slaves. It was not until the 1770s that these numbersbegan to change.According to an- otherstudy of twenty-onemills, in the 1704-1766 periodthe averagenum- ber of slaves remainedthe same and only one sugarmill employed more thanthirty slaves. As in the previouscentury, the largestingenio used thir- ty-eight slaves.41 Thus in the long periodthat preceded the emergenceof the sugarplan- tation economy in westernCuba, slaves were not subjectto the extreme circumstancesof plantationagriculture. Limited Spanish migration to the island requiredslaves to performeconomic activitiesthat may have been otherwiseclosed to them and that implied some degree of autonomyfor the workers.Through their participation in markettransactions and other
38. AMCH,ACAHT, 1599-1604, fol. 474v.; 1648-1654, fol. 874; 1691-1702, fol. 207. 39. The 1578-1610 estimateis takenfrom a databaseof 271 contractsand inventories of ruralproperties based on datafrom Havana's notarial records. For the earlyeighteenth cen- tury,see Fe Iglesias Garcia,"La estructura agraria de La Habana,1700-1775," in Las raic- es hist6ricasdel pueblo cubano,ed. ConsueloNaranjo Orovio and Miguel A. Puig-Samper (Madrid:Arbor, 1991), 91-112. 40. ArchivoNacional de Cuba(hereafter ANC). ProtocolosNotariales de la Habana(here- afterPNH), Escribania Fornaris, 1693, fol. 192;1694, fol. 169,508v. 41. Alejandrode la Fuente,"Los ingenios de azficaren la Habanadel siglo XVII: estruc- turay mano de obra,"Revista de HistoriaEcon6mica 9.1 (Winter1991): 35-67; Mercedes GarciaRodriguez, "Ingenios habaneros del siglo XVIII,"in Las raices hist6ricasdel pueb- lo cubano, 113-38. 356 Lawand HistoryReview, Summer 2004 social relations,slaves gainedcritical knowledge about the marketecono- my andthe dominantculture. Included in this culturalbackground was the knowledgethat under Spanish law slaves hadnot only some rights,but also thatthey were allowedto appealto authorities--toan authorityhigher than theirmaster--to enforce them. As is well known, the main code regulatingslavery in Castile was the thirteenth-centurycode Las Siete Partidasof AlphonseX the Wise.Inspired by Romansources, this remarkablelegal code containednot only specific regulationsconcerning various aspects of slaves'lives, but also generallegal and moralprinciples about the institution.These principlescould be sum- marizedin threebroad assumptions. First, slaverywas againstnature and freedom-the naturalstatus of men andtheir most valuableattribute. From this it followed thatjustices and laws should favor freedom. Second, al- thoughmasters had total control over their slaves, including whatever goods they received, masters'rights were limited in severalways, notablywhen it came to the personalintegrity of the slaves. In the case of murder,for example, the law did not distinguishbetween free persons and slaves as victims.Third, some rightsof slaves were recognizedand protected. These includedrights that were largelyconditional on the master'swill, such as the ownershipof goods andthe rightto self-purchase,and rights that could be exercisedeven againstthe will of the master,such as thatof marriage.42 It is difficult to establish whetherthis code "was transplantedalmost intactto the New World,"as Klein asserts,but thereis little questionthat this legislationwas enforcedto at leastsome degreein preplantationCuba.43 For instance,slaves' access to the Catholicsacraments of baptismand marriagewas fairlycommon. In seventeenth-centuryHavana (1585-1644) slaves participatedin one-fourthof all marriages,a percentagethat seems roughlycongruent with theirproportion in the adultpopulation of the city. In Sancti Spiritus,a town in centralCuba, slaves participatedin one-fifth of all marriagesbetween 1621 and 1670.44Slaves were also well represent- ed in baptisms.The childrenof slave motherscomprised 16 percentof all the child baptismsregistered in Havanabetween 1590 and 1610 and 12
42. For a discussionof the slave provisionsof Las Siete Partidas,see Davis, TheProb- lem of Slavery, 102-6; Watson, Slave Law in the Americas, 40-47; Ortiz, Los negros escla- vos, 309-16. I have used herethe versionof the Partidascontained in Los cddigosespahioles concordadosy anotados, 12 vols. (Madrid:La Publicidad,1847-1851). 43. Klein, Slavery in the Americas, 59. 44. For a discussionof the Havanafigures, see my "Los matrimoniosde esclavos en la Habana, 1585-1645," Ibero-Amerikanisches Archiv 16.4 (1990): 507-28. The figures from Sancti Spiritusare based on LibroPrimero de Matrimoniosde Blancos y de Color.Parro- quialdel EspirituSanto, Sancti Spiritus, 1623-1739. Archivo Nacional de Cuba,Fondo Valle Iznaga. Slave Law and Claims-Makingin Cuba 357 percentin Sancti Spiritusbetween 1597 and 1659. Churchauthorities also administeredthe sacramentto a large numberof adultAfrican slaves. In Havana,these slaves accountedfor one quarterof all baptismsand in Sancti Spiritusfor 13 percent.45 These sacramentsgave slaves some access to the "moralcommunity" and allowed them to establishsocial and religious links with other slaves or withindividuals above them in the socio-racialhierarchy. Blacks' recruit- ment of white godparentsfor their childrenand their marriagessuggests not only the existence of cross-racialsocial networks,but also that such contactswere seen as potentiallybeneficial for themselves and their off- spring.46These sponsorscould be valuable,particularly when slaves came in contactwith colonial institutionsto press for rights underSpanish law. Purchasingfreedom was the most importantof these rights,one firmly established and protectedin Spanish legislation and claimed by slaves throughoutSpanish America. In Cuba, as elsewhere in the region, access to freedomwas a functionof severalfactors. Rates of manumission,either throughself-purchase or as a graciousconcession by the master,were much higherfor creole slaves (as opposedto Africans),for women, and for mul- attos.Contrary to what some of the criticsof Tannenbaumhave suggested, half of the slaves obtainingfreedom in Havanawere youngerthan fifteen years old. Three quartersof these young slaves were describedas "mula- to,"the offspringof interracialsexual relationships, and may have received the supportof theirparents or otherwhite relativesto obtainfreedom.47 Indeed,in early seventeenth-centuryHavana whites paid or lent money to pay for the slave's freedomin 25 percentof all self-purchases.Familiar relationsand social networkssuch as those mentionedabove could have
45. These figures are based on Archivo de la Catedralde la Habana,Libro Barajasde Bautismosde Espafioles,1590-1610; Archivode la ParroquialMayor de la Villa de Sancti Spiritus,Libro Primero de Bautizos,in ArchivoNacional de Cuba,Fondo Valle Iznaga. 46. Forty-onepercent of the godparentsof slave childrenin Havanaand 52 percentin Sancti Spirituswere white. Conversely,the overwhelmingmajority of godparentsof adult slaves were also slaves (78 percentin Havana;59 percentin Sancti Spiritus).Forty-one percentof the witnesses and godparentsin slave marriagesin Havanawere also white. My findingsconcerning patterns of godparentagein early colonial Cubacoincide roughly with those of Schwartz, Slaves, Peasants, and Rebels: Reconsidering Brazilian Slavery (Urbana: Universityof Illinois Press, 1992), 137-60. 47. Fora discussionof manumissionin early colonialHavana, see de la Fuente,"A alfor- ria de escravosem Havana,1601-1610: primeirasconclus6es," Estudos Econdmicos 20.1 (Jan.-April1990): 139-59. I have also used resultsfrom a sampleof threehundred manu- mission letterstaken from ANC, PNH, EscribaniaFornaris, 1690-1694. For the eighteenth andnineteenth centuries, see ManuelMoreno Fraginals, "Peculiaridades de la esclavituden Cuba,"Del Caribe 4.8 (1987): 4-10. For the 1790-1880 period, see LairdW. Bergad,Fe Iglesias Garcia, and Maria del Carmen Barcia, The Cuban Slave Market, 1790-1880 (New York:Cambridge University Press, 1995), 131-41. 358 Law and History Review, Summer 2004 been crucialin cases like these. As a slave owner who purchasedthe free- dom of a mulattoslave declaredin 1604, he did so to serve God and be- cause the fatherof the slave was "anhonorable man and my friend."48In 1691 the freedomof Pablo, a seven-year-oldslave, was purchasedby his godparentNicolas de Landueta,who was white.49 Purchasingfreedom was facilitatedby a legal customthat had developed in the island, and perhapsin other Spanish colonies, since the sixteenth century:coartacirn. Through coartacidn slaves were allowedto agreewith theirmasters on a fixed price for theirfreedom and to makepayments to- wardit. In otherwords, they could buy freedomthrough installments. Such agreementswere legally binding and restrictedthe master'scapacity to dispose of the slave in several importantways. A slave who had paid a fractionof the price could not be mortgagedor sold for a highervalue. In 1690, for instance,the slave Juan,a seventeen-year-oldcreole, was sold four times, always on conditionthat he was to be freedas soon as he was able to pay the 200 pesos remainingfor his total value. In practice,only a portionof Juanwas being sold. He owned a portionof himself.50This was not mere legalism. Buyers were instructedthat they could only "use"the portionof the slave thatthey were payingfor. If they were to use his labor full time, then they had to apply a proportionalpart of that labortoward his freedom.Thus when a mulattofemale slave who had paid half of her price was sold in 1690, the contractstipulated that she was entitledto half of her labor and that the sale was "only on half of the said mulata."51 The origins and evolutionof this remarkablelegal figureremain elusive to researchers,but seemto go backto the traditionallegal statutesof Castile. A law contained in Las Partidasregulated a form of conditionalsale in which the slave was to be manumittedunder certain circumstances. Such conditionscould not be altered-one of the main elementsof the institu- tion as it evolved later.52It has been frequentlyclaimed that this was a purely Cubanpractice that emergedin the eighteenthcentury.53 In fact, it
48. ANC, PNH, EscribaniaFornaris, 1604, fol. 452. 49. ANC, PNH, EscribaniaFornaris, 1691, fol. 273. In othercases, it was the white fa- therwho himself purchased the freedom of hischildren. For an example, see the will of Isabel Valderasin ANC, PNH, EscribaniaRegueira, 1606, fol. 207. 50. ANC, PNH, EscribaniaFornaris, 1690, fol. 140, 144, 262, 363. 51. Ibid., fol. 44. 52. L. 45, Tit. 5, P. 5, in Los C6digos, 3: 614. But no specific law regulatedcoartaci6n, which seems to have been a customarylegal practice.See Watson,Slave Law in theAmer- icas, 51; Manuel Lucena Salmoral,"El derechode coartaci6ndel esclavo en la Amdrica Espafiola,"Revista de Indias59: 216 (May-August 1999), 357-74. 53. Ortiz, Los negros esclavos, 285-90; Rolando Mellafe, Breve historia de la esclavitud en AmericaLatina (Mexico City: Secretariade Educaci6n,1973), 136;Carlos E. Deive, La esclavitud del negro en Santo Domingo, 1492-1844 (Santo Domingo: Museo del Hombre Slave Law and Claims-Makingin Cuba 359 was widely used in the islandfrom the 1590s onward-the firstcase I have seen is datedin 1597-and was acknowledgedin seventeenth-centuryroyal regulations.A real c6dulaof 1673 concerningthe king's slaves in the com- munityof El Cobreordered royal officials to allow them to cortarse,even if they were to pay for theirfreedom in installments.More telling, perhaps, is the fact that the 1729 edition of the Diccionario de la Lengua Castella- na defined "cortarse"as the action by which a slave "adjusted"with his masterthe terms of his freedom.54 It seems that,to some degree,the traditionalprinciples of Iberianlegis- lation concerningfreedom and marriage, two of the most importantrights in slave law, wereupheld and applied in the colonialworld, as Tannenbaum suggested years ago. Furthermore,subsequent legislation confirmedthat such rights were to be observed.The Crowninsisted that slaves' rights to marryfreely shouldbe upheldeven againstthe wish of their mastersand confirmed,as the Partidasasserted, that marriagedid not constitutea mo- tive for freedom. This policy was not based on religious considerations alone. Numerousroyal decrees clearly stated that marriageswere to be encouragedso the slaves wouldbe peacefuland "secure."As Davidsonhas noted,"a protected marital life was not only a Christianobligation but also an essentialmean of insuringslave tranquilityand stability."55 Coloniallegislation also ratifiedthe principlesthat masters had the right to grantmanumission to their slaves and that slaves shouldbe allowed to purchasetheir freedom. A real c6dulaof 1529 askedthe governorof Cuba whetherit was expedientto give freedom to slaves after they had served sometime andpaid a given amount.When the king was informedthat many soldiersin Havanahad fatheredchildren with slaves duringthe late 1500s, he quickly instructedthat these soldiers be given preferencein any sales "if"'their intention was to liberate them. The Crown also reiteratedthe slaves' right to initiatea legal process for their freedom.56
Dominicano,1980), 2:409. For a recentexample in which the alleged latenessof the coart- aci6n policy is centralto a critiqueof Tannenbaum'sapproach, see Ingersoll,Mammon and Manon in Early New Orleans, 221-32. 54. ANC, PNH, EscribanfaRegueira, 1597, fol. 134; Ortiz de Matienzo to the King, Havana,23 November,1673. ANC, Academiade la Historia,leg. 89, no. 548; Real Aca- demia Espafiola, Diccionario de la Lengua Castellana (Madrid: Imprenta de Francisco del Hierro,1729), 626. 55. DavidM. Davidson,"Negro Slave Control and Resistance in ColonialMexico, 1519- 1650,"in MaroonSocieties, ed. RichardPrice (Baltimore:The Johns HopkinsUniversity Press,1979), 85. Fora discussionof someof thislegislation, see de la Fuente,"Los matri- monios de esclavos en la Habana,"507-28. 56. R.C. 9-11-1526, Colecci6n de Documentos, 1:355; R.C. 31-3-1583, Konetzke, Colec- ci6n, 1: 547; R.C. 15-4-1540,later L. 8, Tit. 5, Libro7 of the Recopilaci6n. 360 Law and History Review, Summer 2004 This the slaves did. Thereis evidencethat in some cases slaves wereable to use the law to makeclaims andto createopportunities for advancement. And there is also evidence that, at least occasionally,colonial courtsand royal officialshad no choice but to enforcethe law. On the otherhand, the documentssuggest thatmany masters did everythingin theirpower to cir- cumscribeslaves' autonomyand mobility. In twenty-fourappeals concern- ing the freedomof slaves locatedin Havanabetween 1668 and 1698,four- teen were carriedout by slave owners againstsentences favorableto the slaves in the lower courts.57In eighteenth-centuryHavana, according to MorenoFraginals, 8 percentof all the manumissionsincluded in his study resulted in legal disputes in which slaves received favorable verdicts.58 When, duringthe litigations,one of the judges appointedwas supposedto be partialto the master,slaves had the right to challenge him and to ask that a new judge be appointedto hear their case.59At least in principle, slaves had the right to take their cases to higherjudicial authorities,al- thoughthe costs involvedwould probably make such procedures infrequent, if not exceptional.Despite these difficulties,in 1693 DomingoFernandez, an African slave describedas loango, appealedthe negative sentenceof local authoritiesbefore the Audienciade SantoDomingo.60 Opportunitiesfor claims-makingshould not be exaggerated,for only those cases in which slaves were at least initially successful remainvisi- ble to researchersand, as some of the examplesmentioned above suggest, they frequentlyhad to do legal battle with their masters.61But even if in- stances of legal claims-makingwere a minority,they still representedav- enues for advancementand goals for other slaves strugglingfor freedom. They also demonstratedthat it was possible to challengethe master'sau- thorityin court.Some slavesused this legal frameworkto pressclaims even when theirrights were unclear.62
57. These appealsare registeredin AMCH,ACAHT. 58. MorenoFraginals, "Peculiaridades," 7. 59. Forexamples, see thepetitions of LuisaMurga, 11-23-1671 and Maria Guiomar, 11- 27-1676in theirlegal processes for freedom. Both in AMCH, ACAHT, 1667-1672, fol. 748 and 1672-1683, fol. 150. 60. ANC, PNH, EscribaniaFornaris, 1693, fol. 49. 61. For cases in which slaves had to surmountsignificant obstacles to obtaintheir free- dom even with a freedomletter from their deceased masters,see ANC, PNH, Escribania Junco, 1677-1678, s/f (declarationdated 1-1-1677);AMCH, ACAHT, 1672-1683, fol. 150; ANC, PNH, EscribaniaFornaris, 1691, fol. 343. 62. For instance,in 1681 the slave Felipa demandedfreedom because she had "escaped from Jamaicain power of the British"and come to His Majesty'sCatholic territories. The governorfound in favorof the slave,a verdictthat her alleged master appealed. Another slave requestedfreedom from Havana'stown council in 1597 alleging that he had rendereda valuable service by discoveringand denouncingthose who had committedthe "pecado Slave Law and Claims-Makingin Cuba 361 ThatSpanish traditional laws were invokedto regulatesocial relationsis, however,out of the question.Indeed, in theirapplication of Castilianlaws to slavesjudicial authorities faced situationsin which they hadto reconcile contradictorylegal principlesand customs. For instance,according to the 1505 Leyes de Toro,which regulated family relations, married women were to obtaina special "license"from their husbands to sign contractsand per- formother legal transactions.But colonialauthorities and residents encoun- tered situationsin which an enslavedhusband was marriedto a free wom- an. Indeed,between 1585 and 1644, 6 percentof all marriagesregistered in Havanawere of this type. In these cases, judicial authoritiesupheld the Ley de Torodealing with the maritallicense, but since slaves did not enjoy full legal capacity,they were requiredin turnto obtain another"license" fromtheir master.63 That is, masterslicensed their male slaves so they could authorizetheir free wives to engage in legal transactions. These licenses allowed slaves to performlegal acts in ways similarto other dependentsof the house head and some of these legal transactions seem incompatiblewith the slave's social status. For instance, with the authorizationof his master,in 1591 Gasparzape hireda lawyerto recover "somehouses and a parcelof land"that a deceasedresident of Havanahad purchasedwith Gaspar's "own money and for him." In 1595 Maria, a mulattoslave, declaredthat she "owned"a house in El Ejido,a residential area of Havanawhere many free blacks lived. A year laterthe slave Fran- cisca Velazquezsold a lot with two wooden houses in the same area.64The master'slicense allowedslaves to inheritgoods, fightlegally for theirpos- session, and dispose of them.65 Included among these goods were other slaves. When Francisca de Miranda,a thirty-five-year-oldcriolla from New Spain who workedas a cook for the soldiers, bought her freedom in 1585, she paid with one of the two slaves thatshe "owned"-a Catalinaangola, twenty-fiveyears old. In 1690 a female slave purchasedthe freedomof her daughterInes, eigh- teen years old, by selling a slave that she had "owned"for some time. A
nefando"(sodomy). Although this was not included in LasPartidas as a causefor freedom, they did stipulatethat when slaves renderedsome valuablesocial services they should be set free. The finaloutcome of bothprocesses is unknown.See AMCH,ACAHT, 1672-1683, fol. 329v;1584-1599, fol. 405;L. 3, Tit.22, Partida4, in LosC6digos, 3: 522. 63. Forconcrete examples, see a 1641case in ANC, Gobiemo General, leg. 319, no. 15,420 andANC, PNH, Escribania Regueira, 1609, fol. 198. 64. ANC, PNH, EscribaniaRegueira, 1591, fol. 191; 1595, fol. 424v.; 1596, fol. 331. 65. ANC, PNH, EscribaniaRegueira, 1596, fol. 331; 1610, fol. 349; EscribaniaFornaris, 1694, fol. 201v; EscribaniaOrtega, 1653, fol. 2. 362 Law and History Review, Summer 2004 royal slave named Felipe, employed in the constructionof forts, bought Maria angola for 250 ducadosfrom a free black woman in 1595.66 These examplessuggest that slaves-including notablyAfrican slaves- managedto participateactively in the urbanmarket economy andin com- plex social networksthat included individuals of differentsocial andracial status.67Along with this, at least some slaves becamefamiliar enough with the dominantculture as to carve out a modicumof personaland financial autonomyand to press for rightsbefore colonial authoritiesand the courts. It is precisely because slave owners despairedover their relativeinca- pacity to control the social and productiveactivities of their laborforce that local regulations concerning slavery were invariably harsherthan metropolitanlaws. Regulating slave urbanlabor was a majorconcern of Havana'ssecular and religious authorities,as Table 1 shows. After ma- roonage,which was of course an importantissue in slave owners'efforts at social control, the largest proportionof regulationsdealt with slaves' urbanactivities and attemptedto curb their autonomyas much as possi- ble. Many of these regulationsreferred to slaves' retail activities, partic- ularly selling wine, to their having theirown houses, separatefrom those
Table 1. Percentage distribution, regulations concerning slaves and blacks issued by the local authorities of Havana, 1550-1699 (N = 175)
Retail, bartenders,innkeepers 17.7 Hiring out 4.6 Separatehousing 7.4 Other urbanactivities 10.9 Possession of weapons 5.1 Maroonage 33.7 Marriageand religion 9.7 Others 10.9
Sources: Archivo del Museo de la Ciudadde la Habana,Actas Ca- pitulares del Ayuntamiento de la Habana, 1550-1699; Diocesan Synod of 1680 in Juan Garcia de Palacios, Sinodo Diocesano (Ha- vana: Oficina de Arazoza y Soler, 1814).
66. Maria T. de Rojas, Indice y extractos del Archivo de Protocolos de la Habana, 1578- 1585 (Havana: n. p., 1947), 1: nos. 652-54; ANC, PNH, Escribania Fornaris, 1690, fol. 264; ANC, PNH, Escribania Regueira, 1595, fol. 995. 67. For a good example, see the will of Ana bioho, who lists credits with various individ- uals, including whites, free blacks, and other slaves. Among the debtors was her own mas- ter, who had received money towards her manumission. See ANC, PNH, Escribania Regueira, 1604, fol. 318. Slave Law and Claims-Makingin Cuba 363 of the masters,and to what slave owners perceived as social ills generat- ed by the hiring-out system.68 Yet the very frequencywith which these regulationswere passed is a good indicatorthat their success was, to say the least,modest. The key point is that,lacking a monopolyof power,slave owners were never able to en- force their own regulations,which had to be approvedby higher authori- ties. Furthermore,slaves learnedthat they could appealto colonial author- ities and did so even in cases where no laws were being violated. For instance,in 1688, they askedthe governorto decree a loweringof the dai- ly rentthat slaves workingin the hiring-outsystem had to pay, arguingthat the amountdemanded by masterswas abusive.69In these legal battlesthey could rely on the assistanceof some of theirpeers, for underSpanish law slaves were entitledto appearin court as witnesses.70 Thesetraditions had become entrenched by the time the plantationecon- omy began to take over westernCuba in the last quarterof the eighteenth century.The impactof these productiveand social customson social rela- tions was furthermagnified by the presence of a sizeable communityof free people of color. By 1792, aroundthe dawn of the plantationecono- my, free blacks and mulattosrepresented 38 percentof the nonwhitepop- ulationin the island and 20 percentof the populationas a whole. Although the integrationof this groupinto colonial society was mediatedby hierar- chical notions of ancestry,culture, and purityof blood, there is solid evi- dencethat they were able to accumulateproperty and to participatein some of the civic ritualsof the city. The visibility and relative mobility of this groupwas magnifiedas well by their prominentpresence in the militias, where since the late sixteenthcentury pardos and morenoswere grouped in separatecompanies and battalionswith their own officers. These free colored soldiers represented29 percentof the militaryforces in the colo- ny in 1770.71 These were the foundersof what by the nineteenthcentury had become a sizeable petit bourgeoisieof free blacks and mulattos.
68. I have groupedunder "Others" regulations concerning various aspects of slaves' lives and of free blacks as well. Among these were ordinancesdealing with nourishment,cloth- ing,recreation, and so on. 69. The slaves' complaintsconcerning the daily rentwere elevatedto the Consejode In- diasin Madrid.See Informedel licenciadoGer6nimo de C6rdova,1690. Archivo General de Indias,Seville (hereafterAGI), SantoDomingo, leg. 65, no. 4; Diego Antoniode Viana Hinojosato theKing, Havana, 1688. ANC, Academia de la Historia,leg. 90, no. 641. 70. Foran example in whichan African slave testifies in a processinvolving whites, see Demandade naturalezade EnriqueMdndez y Diego de Norofia,1608. AGI, Escribaniade Cfimara,leg. 74A. 71. Klein, Slavery in the Americas, 217-18; Pedro Deschamps Chapeaux, Los batallones de pardosy morenoslibres (Havana:Editorial Arte y Literatura,1976); FranciscoCastillo Mel6ndez, La defensa de la isla de Cuba en la segunda mitad del siglo XVII (Sevilla: 364 Law and History Review, Summer 2004 Plantation Slavery
Neither these traditionallegal and social customs, nor the presenceof a sizeable communityof free people of color, could deterthe expansionof plantationslavery and its by-productsof social andracial polarization. But they probablyserved, to a certainextent, to subvertthe unobstructedfor- mationof a plantationsociety like those in other Caribbeanterritories. In this sense, the Cuban experience was unusual in the colonial world. In colonies such as Jamaicaand Barbadosplantations came to define colo- nial societies soon aftertheir occupation by the Europeans.By the timethe plantationeconomy developed in Cuba,slavery had been part of the island's social and economic life for over two hundredyears. In Cuba,as elsewhere,the plantationeconomy had a devastatingimpact on social andracial relations. Between 1790 and 1860 moreAfricans were importedinto the islandthan in the two and a half previouscenturies com- bined.72Those sent to the sugarplantations became factorsof production, theirhumanity largely obliterated by the impersonalneeds of commercial agriculture.73Furthermore, the emergent"sugarocracy," as ManuelMoreno Fraginalsreferred to the new planterclass, had enough power to resist successfully the encroachmentof colonial authoritiesin their attemptsto regulatetheir immediateworld. When the Crownattempted to publishits relativelybenign 1789 black code in the island, for instance,the planters mobilizedto impede the promulgationof the new law on the basis thatit wouldundermine slave disciplineand morale. Some traditionalrights were restricted,such as the possibilityof interracialmarriages, which after1805 requiredspecial permission by the authorities.The rightsand relative priv- ileges of the free black communitywere assaulted.Black participationin the militias was temporarilybanned in 1844, "theyear of the lash,"when an alleged collaborationof free blacks with a slave conspiracyserved as excuse for the repressionof hundredsof free blacks and mulattos.74
Disputaci6nProvincial, 1986), 194-201;Marrero, Cuba, 5:28-30. Figuresabout the free pop- ulationof color have been takenfrom KennethKiple, Blacks in ColonialCuba 1774-1899 (Gainesville:The University Presses of Florida,1976). 72. DavidEltis et al., TheTrans-Atlantic Slave Trade:A Databaseon CD-Rom(New York: Cambridge University Press, 1999); Juan Perez de la Riva, j Cudntos africanosfueron traf- dos a Cuba?(Havana: Editorial de CienciasSociales, 1977),estimates that up to 1790around 100,000 slaves enteredthe island,compared to some 700,000 duringthe 1800s. 73. On this, see the interestingdebate between Moreno Fraginals, El ingenio,2:7-90, and Rebecca J. Scott, Slave Emancipation in Cuba: The Transition to Free Labor, 1860-1899 (Princeton:Princeton University Press, 1985). 74. MorenoFraginals, El ingenio,1:126-33, 2:7-90; Knight,Slave Society, 59-126; Robert Paquette, Sugar Is Made with Blood: The Conspiracy of La Escalera and the Conflict between Slave Law and Claims-Makingin Cuba 365 The impactthat plantation slavery had on colonial society can be hard- ly overemphasized.But it would be erroneousto assume that traditional legal andsocial customsvanished overnight. It is in this areathat additional empiricalresearch is badlyneeded. The availablescholarship, however, has establishedthree important points that bear on this analysis.First, the plan- tationsystem was never able to cover the island as a whole. In partdue to the limitationsimposed by the British on the slave trade from the early nineteenthcentury, slave importsinto Cubacame to a halt in the 1860s.75 Fromtheir original location in Havana'shinterland, sugar plantations spread towardMatanzas and southernLas Villas, in the centerof the island, but were almostnonexistent in the easterndepartment. In the easternprovinc- es of Camagileyand Orientesugar was not massively produceduntil the early twentiethcentury. By the 1850s, only 5 percentof Cubansugar was producedin these provinces.76 Not surprisingly,the demographicmakeup of the easternprovinces was very differentfrom that of westernCuba. Between 1792 and 1861 the pro- portionof freedmenand women in the westernpopulation declined signifi- cantly,from 19 percentto 13 percent.Conversely, in the east the relative importanceof the free populationof color increasedduring the nineteenth century,to 29 percentin 1861. In this area,conditions remained favorable for traditionalforms of slave exploitationto subsistwell into the nineteenth century.Indeed, Cubanscholar Jorge Ibarrarefers to slavery in nonplan- tationOriente as "patriarchal."77 Second, free blacks and mulattoscontinued to representa sizeable, al- thoughdeclining proportion of the totalpopulation of the colony. Between the 1820s and 1840s theirpercentage in the populationas a whole declined to 15 percent-the lowest in nineteenth-centuryCuba-but the communi- ty kept growing in absolute terms. This cannot be attributedto natural growth alone. Despite the expansion of plantationslavery and growing racialpolarization, the right to self-purchasecontinued to be exercisedin nineteenth-centuryCuba. In theirstudy of the slave marketin Cuba(1790- 1880), Bergad,Iglesias, and Barciafound that coartado slaves represent- ed 13 percentof all sales. If this ratiowas, as the authorssuggest, "close"
Empiresover Slavery in Cuba (Middletown:Wesleyan University Press, 1988); Verena Martinez-Allier, Marriage, Class, and Colour in Nineteenth-Century Cuba: A Study of Ra- cial Attitudes and Sexual Values in a Slave Society (New York: Cambridge University Press, 1974); Klein, Slavery in the Americas, 220-22. 75. Bergad, Iglesias, and Barcia, The Cuban Slave Market, 47-52. 76. MorenoFraginals, El ingenio, 3:59. 77. JorgeIbarra, "Regionalismo y esclavitudpatriarcal en los departamentosoriental y centralde Cuba,"Anales del Caribe6 (1986), 22-52. 366 Lawand HistoryReview, Summer 2004 to the percentageof coartadosin the slave populationat large, thentradi- tional avenues for freedomremained entrenched in Cubancolonial soci- ety even at the height of the plantationperiod. Only a fractionof these slaves would be able to completethe paymentsrequired to purchasetheir total freedom,but this traditionallegal customremained in full effect and seems to have been widely used.78 Third,it seems clear that most of these coartados were urbanslaves. Plantationslavery magnified not only regionaldisparities within the island, but createdbasically a dualslave systemeven withinwestern Cuba. Slaves on plantationsgenerally had few opportunitiesto claim any rights,while those employedin the urbanareas continued to access colonialinstitutions with some success.As Knightremarks, "legal regulations had some mean- ing and effect in the towns."Urban slaves were a significantminority in mid-nineteenth-centuryCuba: about 20 percent,according to the various estimatescompiled by Knight.The unequalgeographic distribution of the groupfurther enhanced its visibility andimportance, for almosthalf of all urbanslaves in the island lived in Havana.79Many of these slaves contin- ued to make a living throughthe hiring-outsystem and some were able to save enoughto purchasetheir freedom, as they had done in previouscen- turies.Their closeness to colonial institutionsand authorities,their access to Africancabildos and religious brotherhoods,and their participationin the monetaryeconomy togetherfacilitated their integrationinto colonial society, symbolizedabove all by the sizeable class of small entrepreneurs of color who lived in the main urbancenters.80 Outsidesugar's immediate domain some opportunitiesfor slave claims- makingcontinued to exist. Fragmentaryevidence indicates that, in the cit- ies, some slaves continuedto appeal to colonial authoritiesin pursuitof theirfreedom.81 When in 1855 a royalofficial complained to the towncoun- cil of Santiagode Cuba that slaves obtainedtheir coartaci6n too easily, municipalauthorities responded that they wereonly enforcingroyal decrees
78. Bergad,Iglesias, and Barcia.The CubanSlave Market,122-31. Visitorsto the island frequentlyreferred to this institution.For some examples,see Louis A. Perez, Slaves,Sug- ar, and Colonial Society: Travel Accounts of Cuba, 1801-1899 (Wimington: SR Books, 1992). 79. Knight,Slave Society,62-63; Marrero,Cuba, 9:208. 80. Concerningthe urbanfree populationof color, see PedroDeschamps Chapeaux, El negro en la economia habanera del siglo XIX (Havana: UNEAC, 1971) and Rafael Duharte, El negro en la sociedad colonial (Santiago de Cuba: Editorial Oriente, 1988). 81. Duharte, El negro en la sociedad colonial, 56-58. So far I have identified more than five hundredcases in which slaves petitionedauthorities and the courtsin the 1770-1870 periodin just one section of the ANC, thatof GobiernoSuperior Civil. These petitionsusu- ally revolved aroundtwo issues: their freedomor coartaci6nand changingowners due to abusesor otherreasons. Slave Law and Claims-Makingin Cuba 367 and laws about the subject.82These laws, the developmentof plantation slaverynotwithstanding, continued to uphold the traditionallegal princi- ple that slaves were entitledto purchasetheir freedom and had the rightto appealto colonial authorities.Following the spiritof the suspended1789 black code, a slave ordinanceapproved by the captaingeneral of the col- ony in 1842 stipulatedthe appointmentof an official protectorof slaves, the sindico procurador,who was to representthem in litigationsand other officialacts. Although it is impossibleat this pointto evaluatehow frequent or effectivewas the interventionof these sindicos,it is clearthat some urban slaves managedto engage their support.83At least in theory,the sindicos were obliged to pursueany requestfor freedom.As a sindico in Santiago de Cuba assertedin 1829, once he had been informedabout the possible rightto freedomof a slave, he "couldnot overlook it."84 It is also worthnoting that, although plantation slavery had transformed the island, slave laws continuedto show a remarkabledoctrinal continuity with the Iberiantraditional statutes. The 1842 ordinanceupheld the whole panoplyof slaves' limitedtraditional rights: self-purchase and coartaci6n, marriage,baptism, and to changeowners in case of physical abuse.8"Fur- thermore,as late as the mid-nineteenthcentury Cuban courts invoked Las Partidasand other Spanish historic codes in theirverdicts.86 That sugar plan- tationswere not able to obliteratetraditional forms of slave claims-making is evidencedby the veryprocess of abolition,masterfully studied by Rebecca Scott.A processthat colonial authoritiessought to enactgradually and un- der strictcontrol from above was sped up by the slaves themselves,who used availablelegal andinstitutional resources in conjunctionwith extrale-
82. Emilio Bacardiy Moreau,Cr6nicas de Santiagode Cuba (Madrid:Breogain, 1973), 3: 159. 83. Fora few examples,see Libertadque pretende la pardaFrancisca de Paula,1830. ANC, Audienciade la Habana,leg. 24, no. 312; Dimas Chavezpor la libertadde su madre,1866. ANC, GobiernoSuperior Civil, leg. 968, no. 34211;Incidente al intestadode Dn. Luis Minet, 1833. Archivo Provincialde Santiagode Cuba (hereafterAPSC), Juzgadode PrimeraIn- stancia,leg. 379, no. 9; Causacriminal por lesiones de la negraAgripina Criolla, 1879. ANC, Audienciade la Habana,leg. 1, no. 65. 84.El SindicoProcurador General reclama la libertaddel negro Nicolas. Santiago de Cuba, 1829. APSC, Juzgadode PrimeraInstancia, leg. 379, no. 3. 85. For a discussionof the "Reglamentode esclavos"of 1842 see Knight,Slave Society, 126-32; Ortiz,Los negrosesclavos, 339-43, 439-52. 86. Fora few examplesconcerning criminal cases, see "Expedientecriminal contra An- dr6sy Justo Mena,"Havana 1864. ANC, Miscelinea de Expedientes,leg. 1391, A; Bien- venido Cano and Federico de Zalta, Libro de los Sindicos de Ayuntamiento y Juntas Protec- torasde Libertos(Havana: Imprenta del Gobierno,1875); Antonio Andr6s Azoy, Colecci6n de causas criminales,2 vols. (Matanzas:Imprenta El Ferrocarril,1868); Ortiz,Los negros esclavos,349. 368 Lawand HistoryReview, Summer 2004 gal strategies.Clearly, some slaves had the knowledge and culturalskills needed to seek the enforcementof these potentiallyfavorable laws.87 One need not romanticizethe experienceof slavery in the Spanishcol- onies to realize that under Spanish law slaves, dependingon theirloca- tion in the productivestructure and the specific phase of developmentof the slave system, were able to claim some rights and to createsome ave- nues for advancement.Slave law was never able to effectively protect slaves from abuses, muchless to guaranteetheir physical integrityor well being. But those slaves who became familiar with colonial institutions could, despitesignificant obstacles, appeal to an authorityhigher than their master to press for some of the rights contained in Spanish law. As an Americanvisitor to the island exclaimed in 1855, in Cuba there was "a master.., above the masters."88 These laws, and the potentialfor slave claims-makingthat they gener- ated, did not exist in British America or in the United States South, as Tannenbaumpointed out. In the Iberiancolonies these opportunitieswere always limited,even for slaves not subjectto the dehumanizingexperience of plantationagriculture, but they existed. UnderEnglish law, conversely, slaves had "no legal identity,no right to family life, leisure time or reli- gious instruction,and no access to legal institutionsfor purposesof pro- test or litigationagainst masters."89 Unlike the UnitedStates where, accord- ing to Ira Berlin, masters'rights to free their slaves "shrankas slavery expanded,"in Cubathis powerwas neverrestricted, not even at the height of the slave-basedplantation system. Thus BritishAmerica did not devel- op, as the Spanishcolonies and Brazil did, a large free populationof col- or.90In the Spanishcolonies self-purchaseand manumissionwere always
87. Scott, Slave Emancipation. 88. WilliamH. Hurlbut,Pictures of Cuba(London: Longman, 1855), 102. 89. HilaryMcD. Beckles, "Socialand Political Control in the Slave Society,"in TheSlave Societies of the Caribbean,ed. FranklinKnight (London: UNESCO, 1997), 201. On slave law in the U.S. South, see Mark V. Tushnet, The American Law of Slavery, 1810-1860 (Princeton:Princeton University Press, 1981);Thomas D. Morris,Southern Slavery and the Law,1619-1860 (ChapelHill: The Universityof NorthCarolina Press, 1996);Watson, Slave Law in the Americas, 63-90; Paul Finkelman, ed., Slavery and the Law (Madison: Madison House, 1977); Eugene D. Genovese, "Slaveryin the Legal History of the South and the Nation," The Journal of Southern History 59 (1981): 969-98; Ariela J. Gross, Double Char- acter: Slavery and Mastery in the Antebellum Southern Courtroom (Princeton: Princeton UniversityPress, 2000). 90. Ira Berlin, Slaves without Masters: The Free Negro in the Antebellum South (New York: PantheonBooks, 1974), 138. On restrictionson manumission,see also ArthurHowington, "'A Propertyof Special andPeculiar Value': The TennesseeSupreme Court and the Law of Manumission," in Law, the Constitution, and Slavery, ed. Paul Finkelman (New York: Gar- land, 1989), 210-23. For a comparativeassessment of this questionin LatinAmerica, see Slave Law and Claims-Makingin Cuba 369 a possibility,protected by the laws and social customs. This implied that slavery was not an inexorablepermanent status. Even in the nineteenth century it is difficult to imagine a court in Cuba declare, as a judge in Georgia did in 1839, that "neitherhumanity, nor religion, nor common justice, requiresus to sanctionor favordomestic emancipation, to give our slaves theirliberty."91 Whetherthese conditionsguaranteed that the transitionfrom slaveryto citizenshipwould inexorablytake place, as Tannenbaumalso claimed, is an altogetherdifferent question. Emancipation did not resultin the exten- sion of even the most basic rights of citizenshipto the formerslaves and theirdescendants in most of LatinAmerica. In Cubathis transitiondid take place, but only after thirtyyears of anticolonialstruggle in which whites and nonwhites participated.The wars created new grounds for claims- makingand reinforcedold ones. As the nationalistleadership and the co- lonial governmentcompeted for the supportof blacks,the slaves andtheir descendantsfound ways to access new social spaces and to assert rights with renewedvigor.92
David W. Cohen and Jack P. Greene, eds., Neither Slave nor Free: The Freedmen of African Descent in the Slave Societies of the New World (Baltimore: The Johns Hopkins University Press, 1972). 91. Quoted in Tushnet, The American Law of Slavery, 21. 92. For a discussionof the complex intersectionsbetween the wars of independence,the process of slave emancipation,and the creationof a cross-racialnationalist coalition, see Ada Ferrer, Insurgent Cuba: Race, Nation, and Revolution, 1868-1898 (Chapel Hill: Uni- versityof NorthCarolina Press, 1999); Scott, Slave Emancipation. For a discussionof blacks' activismand claims-making in the early years of the republic,see the recentvolume edited by FernandoMartinez Heredia, Rebecca J. Scott, and OrlandoF. GarciaMartinez, Espa- cios, silencios y los sentidos de la libertad: Cuba entre 1878 y 1912 (Havana: Uni6n, 2001). See also RebeccaJ. Scott, "ReclaimingGregoria's Mule: The Meaningsof Freedomin the Arimaoand Caunao Valleys, Cienfuegos, Cuba, 1880-1899," Past and Present 170 (Febru- ary 2001): 181-217, andRebecca J. Scott andMichael Zeuske, "Propertyin Writing,Prop- erty on the Ground:Pigs, Horses,Land, and Citizenship in the Aftermathof Slavery,Cuba, 1880-1909," Comparative Studies in Society and History 44 (2002): 669-99.