American Society for Legal History The Board of Trustees of the University of Illinois Press

Slave Law and Claims-Making in Cuba: The Tannenbaum Debate Revisited Author(s): Alejandro de la Fuente Source: Law and History Review, Vol. 22, No. 2 (Summer, 2004), pp. 339-369 Published by: University of Illinois Press for the American Society for Legal History Stable URL: http://www.jstor.org/stable/4141649 . Accessed: 29/05/2011 19:44
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FORUM: WHAT CAN FRANK TANNENBAUM STILL TEACH US ABOUT THE LAW OF SLAVERY?

Slave Law and Claims-Makingin Cuba: Debate Revisited The Tannenbaum

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 sophisticated 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, arrayof 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. of de Alejandro la Fuenteis an associateprofessorin the department historyat the The <fuente2@pitt.edu>. authorwishes to thankGeorge Universityof Pittsburgh Reid Andrews, Max Bergholz, Susan Fernandez, Gabrielle Gottlieb, Walter Turits,KevinYelvington,andMichaelZeuskefor Johnson,Sue Peabody,Richard He theircommentsandcriticism. owes specialthanksto RebeccaScott,whose suggestions improvedthe articlein more ways than can be acknowledgedhere. He also thanksthe five anonymousreviewersand the editorof Law and HistoryReview for their comments. Earlierversions of this article were presentedat the PrincetonUniversityProgramin LatinAmericanStudies (2001), the 2002 ConAssociationfor LatinAmericanand Caribbean ference of the Canadian Studies, the 2002 AnnualMeetingof the AmericanSociety for Legal History,the Center for ComparativeSocial Analysis Workshop,UCLA (2003), and the Workshop and Claims-Making, the Law,"Universityof Pittsburgh "Slavery, Emancipation, (2003). This researchwas partiallyfunded by a Small Grant,CentralResearch and grant#0136558, DevelopmentFund,Universityof Pittsburgh, by the research NationalScience Foundation. Law andSocial Science Program, Writinghas been for by supported a Fellowshipfor UniversityTeachers,NationalEndowment the Humanities.
Law and History Review Summer 2004, Vol. 22, No. 2 O 2004 by the Board of Trustees of the University of Illinois

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Earliergenerationsof scholarscompiled,classified,and studiedthisbody of positive laws.1Their work was limited in at least two ways, however. First,they privilegedthe study of the laws passed by the Consejode Indias and otherorgansin the higherechelons of the institutional hierarchy of the state.Regulations passedby local organsof power,thosethatreflected betterthe concernsof the slave holdersin the colonies, receivedless attention. Second,positive laws were frequently analyzedwith littlereference to social conditionsand to the actualexperiencesand initiativesof slaves, masters,and colonial administrators. The centrality the law to understanding of slaveryin LatinAmericawas underlinedby FrankTannenbaum's influentialbook Slave and Citizen, publishedin 1946. Tannenbaum arguedthat differencesin race relations in the UnitedStatesandLatinAmericastemmedfromtheirrespective slave and systems,whichhaddevelopedunderdissimilar"moral legal settings." A long legal tradition came through Justinian that the code andrecognized that slavery was againstnatureand reason informedthe developmentof America.Slaves were consideredworslaveryin Spanishand Portuguese in had thy of participating the Christian community, the rightto receivethe and sacraments, theirmarriagesand families were protectedby law, custom, andthe church.In the BritishWestIndiesandtheAmericancolonies, by contrast,the lack of legal traditions concerningslaveryallowedplanters to define slaves as chattel. Blacks lacked "moralpersonality," their and whereas Furthermore, marriages familiesenjoyedno legal protection. legal and religious traditionswere "biasedin favor of freedom"in Latin America,thus opening avenues to manumission,all sorts of legal obstacles plaguedthe roadto freedomin the UnitedStates."Thefrequency and ease of manumission," Tannenbaum asserted,"morethanany otherfactor, influencethe character ultimateoutcomeof the two slave systemsin and this hemisphere."2 Slave and Citizenthus containedtwo centralclaims. First,thatin contrastto the Britishcolonies, slaves in Iberian Americansocieties wereendowed with a legal and moralpersonality. Second, that these differences
1. For a few significant Ortiz,Los negrosesclavos (1916;Havana: examples,see Fernando Editorialde CienciasSociales, 1975);Luis M. Diaz Soler,Historiade la esclavitudnegra en PuertoRico (1493-1890) (Madrid: Revistade Occidente,1953);CarlosLarrazibal Blanco, 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); JavierMalag6nBarcel6, C6digoNegro Carolino(1784) (Santo Domingo:Editora Taller,1974).

Beacon Press,1992),69.

2. Frank Tannenbaum, Slave and Citizen: The Negro in the Americas (1946; Boston:

Slave Law and Claims-Makingin Cuba

341

in the moralandlegal settingsof each slave system preconfigured preor determined race relationsin each area. postemancipation Both arguments came underattack,with some scholarsgoing so far as to claimthatthe studyof the law hadlittle to contribute ourunderstandto of the slave experiencesin LatinAmerica.Yet this critiquereinforced ing the centralityof Tannenbaum's work for the study of slaveryand the law in the region.As legal scholarRobertCottrolhas asserted,the scholarship on comparative has largelybeen dominated framesof referencethat law by were establishedby sociologist FrankTannenbaum the 1940s.3 in Given the centralityof Slave and Citizen,in the following pages I review the controversy book to analyzethe scholsparked Tannenbaum's by arshipon slaveryand the law in SpanishAmericaduringthe last few decades.I questionthe validityof some of the criticismagainstTannenbaum's workandclaim thatsome of his arguments remainvalid, in the sense that of to slaves' highexpressions the law arenot sufficient understand although everydaylives, they can not be ignoredeither.I concurwith Cottrolthat Tannenbaum's its not study"retains importance" only for settingthe terms of the debate,but also "forpresenting case for the importance legal the of normsin determining often contrasting the conditionsunderwhich slaves lived."4 statutesof Castile that, as Among these laws were the traditional Tannenbaum noted, continuedto be invokedby the courtsduringthe colonial period.The potentialuse and applicability these laws were sancof tioned numeroustimes by authorities the courtsas they attempted and to regulatesocial relationsin the colonies and to constrainslaves' attempts to improvetheirlives or to escape their statusaltogether. Tannenbaum, however,gave laws a social agencythatthey did not have. In this articleI use the notion of slaves' claims-making bridgethe gap to between the law as an abstractdeclarationof rights and slaves as social actorswith theirown strategiesandgoals. Ratherthanassumingthatpositive laws endowed slaves with a "moral"personality,as Tannenbaum
3. RobertJ. Cottrol,"TheLong LingeringShadow:Law, Liberalism,and Culturesof RacialHierarchy Identityin the Americas,"TulaneLaw Review76.1 (2001): 40. The and

relevance Tannenbaum's is confirmed thefrequency which of book his with continuing by

For workis explicitlyengagedby recentscholarship. some additional examples,see FrederickCooper, ThomasC. Holt, andRebeccaJ. Scott,BeyondSlavery:Explorations Race, of
Labor, and Citizenship in Postemancipation Societies (Chapel Hill: University of North

Carolina BlackSocietyin SpanishFlorida (Urbana: UniPress,2000), 1-32; JaneLanders, versity of Illinois Press, 1999), 1-2; ThomasN. Ingersoll,Mammonand Manon in Early
New Orleans: The First Slave Society in the Deep South, 1718-1819 (Knoxville: The Uni-

of C. Press,1999),xviii-xix,120-22;Gilbert Din,Spaniards, Planters, versity Tennessee

and Slaves: The Spanish Regulation of Slavery in Louisiana, 1763-1803 (College Station:

TexasA & M UniversityPress, 1999), xiii-xiv. 4. Cottrol,"TheLong LingeringShadow," 41-42.

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wouldputit, I implythatit was the slaves, as theymadeclaimsandpressed for benefits,who gave concretesocial meaningto the abstract rightsreguthese interactions with colonialauthorlatedin the positive laws. Through ities andjudges, slaves acted (and were seen) as subjectswith at least a limited legal standing. I baseddiscusAfterreviewingthe scholarship, focus on an empirically sion of slaveryin Cuba.One of the main critiquesagainstSlave and Citiand zen refersto its geographical chronological vagueness,a criticismthat assertions abouttheLatin I share.I use the Cuban case to testTannenbaum's American"legalsetting"andto discuss some of the ways in whichslaves The were able to use the legal systemto theiradvantage. articlethusdeals first with Tannenbaum's claim, concerningthe centralityof the law to our corof understanding slavery.It does not seek to addresshis problematic relationbetweenslaveryand "racerelations." Slave and Citizen Tannenbaum's insightfulbook generateda passionate,if not alwaysproOne debatein the decadesfollowingits publication. ductive,historiographic and were scrutinized in manycases modified, by one, his mainarguments for The and criticized,or rejectedaltogether. issue of precedents traditions, instance, was challengedearly on by anthropologist Sidney Mintz,who world.Mintz questionedwhetherthey weretrulyabsentin the non-Iberian in found evidence to the contrary the Britishvilleinagelaws, whichwere thattherewas still appliedin sixteenth-century England."Theargument no working traditionfor slavery in the non-CatholicNew Worldis not he entirelyconvincing," argued."Therewas an Englishlegal, andto some for extent even institutional,background BritishWest Indianand North Americanslavery."" Contested,also, was the notionthatthe Romanfounto dationsof Iberianlegal precedentstrulyconferreda moralpersonality slaves. In a 1965 article,ArnoldA. Sio concludedthat,in severalkey areas, therewas "nothing sufficientlydistinctiveto distinguishthe legal status of the slave as propertyin the United States from that in Rome"and
5. Sidney Mintz, CaribbeanTransformations (Chicago:Aldine Publishing,1974), 70. which Mintzhad madethis argument earlier,in a 1961 review of StanleyElkins'sSlavery, A in as was reproduced "Slaveryand EmergentCapitalisms" Slaveryin the New World:
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 theAmericas(Athens:The Universityof GeorgiaPress, 1989), 63-66. Watson quotes a case (p. 11) in which a Virginiacourtstatedin 1826 thatvilleinagecouldnot of be considered"theprototype slavery,as it has alwaysexistedhere."

Slave Law and Claims-Makingin Cuba

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thatextensive assimilationof slave rightsto propertyhad takenplace not only in the U.S. andRome, but also in LatinAmerica.Otherstudieselaboratedon these criticisms,questioningwhetherIberianculturaland legal precedentsactuallyrecognizedslaves' humanityand were free from racism. As Sweet contendsin a recentarticle,"theracismthatcame to characterizeAmericanslavery was well establishedin culturaland religious attitudesin Spain and Portugalby the fifteenthcentury."6 Even more powerful than the criticism concerningthe existence and natureof legal andcultural of precedentswas the argument whetherlegislation matteredat all. At the core of this argument were two differentissues. One concernedthe "effectivetransfer" these European of traditions to the colonies, the otherthe actualenforcement the laws. Both points, of his criticsrightlynoted, had been almostcompletelyignoredby Tannenbaumin his analysis. The issue of the effectivetransfer traditions, raisedby Mintzand of first Klein in his comparative developedlaterby Herbert studyof Virginiaand ramifications. begin with, it placed the whole deTo Cuba,had important bate aboutthe natureof slave regimes in an institutionalframework,inand dependentfrom the planters'individualattitudes,character, benevolence. A key element in this analysis was to determinewhere the "center of power"was located-whether in the colonies or acrosstheAtlantic.Did slave owners have the institutionalability to define the surrounding social andlegal environment accordingto theirmost immediateinterestsor was such capacitymediated,even obstructed, an intrusivemetropoliby tan government? Mintz put it, "The English, for instance, appearto As have given their colonists maximumlocal authority-which in practice could meanmaximumpowerto abusethe slaves andto bypass any imperial concern for their protection.In contrast,the Spanish colonies were administered from the metropolis.... Slavery underSpain, consequently, was more subjectto controlfrom afar."7 Even taking into accountthese qualifications,some critics challenged the valueof Tannenbaum's as the approach a whole.They emphasized wide
6. ArnoldA. Sio, "Interpretations Slavery:The Slave Statusin the Americas,"Comof
parative Studies in Society and History 7.3 (April 1965): 296; James Sweet, "The Iberian

Rootsof AmericanRacistThought," William MaryQuarterly The and 44.1 (January 1997):

144.

The importance institutional of differences,alreadypresentin Tannenbaum's work,was discussedby Elkins as well, who notedthatin LatinAmericaseveralcompetingpowersmasters-intervenedin regulating lives of slaves.See StanleyM. Elkins, the Crown,church,
Slavery: A Problem in American Institutional and Intellectual Life (Chicago: University of

7. Mintz, Caribbean Transformations, 69; Herbert Klein, Slavery in the Americas: A Comparative Study of Virginia and Cuba (1967; Chicago: Elephant Paperbacks, 1989).

Press,1968),52-80. Chicago

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from social realitiesand questioned legal formulations gap thatseparated the for usefulnessof law andregulations understanding charthe analytical Harris Marvin of acterandnature slaveregimes.The Crown,anthropologist asserted,"couldpublishall the laws it wanted,but in the lowlands,sugar was king."Both in the United States and LatinAmerica"law andreality bore an equally small resemblanceto each other,"so scholarsof comparconditionsfirst,beforeconcluding ative slaveryhad to examine"material that it was the mystiqueof the Portugueseor Spanishsoul thatmadethe facdifference."' Among those conditions,Harrisfoundthatdemographic tors were key. He arguedthat whereasBritishmigrationto Americahad been largeenoughto accountfor population growthandfor whitesto perform interstitial roles in the economy, Portugueseand Spanishmigration had been muchlower, so race ratioswere the oppositein both areas.As a result,population growthin LatinAmericahadtakenplacemainlythrough and natural increase,with intermediate groupsof mestizos miscegenation economicandmilitaryfunctionsfor which slave laborwas not performing adequate,and for which no whites were available.9 that Harrisfell into a determinism was In his rejectionof Tannenbaum, Yet at least as extremeas thatof the authorhe opposed.10 he was not alone to in his criticism.Otherscholars,includingthosewho subscribed Tannenbaum'smain arguments, agreedthat productionsystems were a key eleinto the analysis. By the 1970s a new ment that had to be incorporated slave systemsin LatinAmerconsensuswas emergingin the scholarship: ica and the United Stateswere not trulydifferentand slaves' experiences in similarwhenthey wereimmersed comparable wereremarkably systems of production.Case studies confirmedthat the dehumanizingeffects of slaverycut acrossethnic andcolonial lines." Regardlessof the plantation
8. MarvinHarris,Patternsof Race in the Americas(New York:Walkerand Co., 1964), relianceon legal preceptswas David BrionDavis, The 76. Also criticalof Tannenbaum's JohnsHopkinsUniversityPress, 1971).Fora morerecent Domingueand Cuba(Baltimore:
example, see Ingersoll, Mammon and Manon in Early New Orleans, xviii, who asserts that 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.

of class or thecondition black "lawsor religionhadlittleor no influenceon eithertheplanter slaves or free blacks." was Patternsof Race, 84-92. Harris's 9. Harris, explanation laterechoedin demographic numerousstudies. For a notableexample, see CarlN. Degler, Neither WhiteNor Black:
Slavery and Race Relations in Brazil and the United States (Madison: The University of

WisconsinPress, 1971), 41-47. and 10. For a thoughtfulcritiqueof Harris,see Genovese,"Materialism Idealismin the
History of Negro Slavery in the Americas," in Slavery in the New World:A Reader in Com-

ed. FonerandEugeneGenovese(EnglewoodCliffs, N.J.:PrenparativePerspective, Laura tice-Hall, 1969), 238-55. Manuel 11. For examples of this scholarshipsee Mintz, CaribbeanTransformations;
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 postemancipation 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 explanation 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 segregation." Emilia Viotti da Costa summarized the new trend when she wrote in 1992: "In the 1980s scholars were abandoning the assumption that different 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), firstpublishedin 1964; Hall, Social Control;Franklin Knight,Slave Society in Cuba During the NineteenthCentury(Madison:Wisconsin PlantationSystem, Dean,Rio Claro:A Brazilian UniversityPress,1970);Warren 1820-1920 Stanford (Stanford: UniversityPress, 1976). See also EugeneD. Genovese,"TheTreatment of Slaves in DifferentCountries: Problems the Application the Comparative in of Method," in Slaveryin the New World, 202-10. 12. The best argument along these lines has been made by Degler, NeitherBlack Nor White,67-75. Concerning legal definitionsof slaves, see also Davis, TheProblemof Slavery, 244-55. 13. Degler, NeitherBlack Nor White,92; JohnW. Cell, TheHighest Stage of WhiteSuin premacy:TheOriginsof Segregation SouthAfricaand theAmericanSouth(Cambridge: Luso-BraCambridge UniversityPress, 1982), xii; EmiliaViottida Costa,"Commentary," zilianReview(Winter modelwas further 1992):147.Thevalueof Tannenbaum's undermined of in by scholarsworkingon the persistence racismandracialinequality LatinAmericaafter the 1950s. This scholarship was particularly solid and sophisticatedin the case of Brazil, once hailed as the paradigmof racial democracyin the Americas.The researchof these scholarsseemedto suggestthatmodemracerelationsin the UnitedStatesandLatinAmerica werenot thatdifferent afterall. Fora discussionof this literature, ThomasSkidmore, see "RaceandClassin Brazil:Historical in Perspectives," Race, Class and Powerin Brazil,ed. Pierre-Michel Fontaine(Los Angeles:CAAS, 1985), 11-24.

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Law and History Review, Summer 2004

nenbaum'sstudywas not based on a false premise.Althoughpostemanciit societieswerenot, as once thought,racialutopias, pationLatinAmerican fromthe UnitedStatesin atleast true is nonetheless thatthey weredifferent As one fundamental segregation. George way: the absenceof institutional Reid Andrewshas stated,this is not a trivialdistinction.In nonsegregated for societiestherewereopportunities individual mobilityand symbolicnathat tionalintegration were absentin the Jim CrowAmericanSouth.14 that effortsto demonstrate slaveregimes Furthermore, despitesignificant differences haveexistedwere and similar thatwhatever wereessentially may remains:the propordistinction a due to "material conditions," significant was in tion of freedmenandfreedwomen the totalpopulation alwaysmuch Americathanin the UnitedStates.What in SpanishandPortuguese higher Bowserwroteseveraldecadesago aboutthe Spanishcoloniesis Frederick of still valid:"Evenin areaswherethe institution slaverywas stronglyenelementin thepopulation."" the trenched, freecoloredwerea veryimportant This strikingdifferencehas been explainedin turnas a functionof demothat include: The and arguments graphic economicconditions. mostfrequent the boom andbust cycles of the colonialeconomyprovidedincentivesfor Americafreedtheold, and in that manumission; masters Spanish Portuguese the ill, or slaveswithlow market value,suchas women;that,givenraceand jobs ratios,in LatinAmericafreeblackswereneededto perform population thatwerenot suitablefor slaves;or thatmost slaves accessedmanumission that a throughself-purchase, clearindication profits,not moralor religious were the slave owners'leadingconcern.16 considerations, Tannendo theirmerit,these arguments not reallyundermine Whatever baum'sinsight that "Thefrequencyand ease of manumission,morethat and any otherfactor,influencethe character ultimateoutcome of the two As slave systems in this hemisphere." StuartSchwartzargues,the ease by whicha personcouldmove fromlegal slaveryto legal freedomwas indeed much This of "anessentialmeasure a slaveregime."17 ease was undoubtedly
in Blacksand Whites Sdo Paulo,Brazil,1888-1988 (Madison: 14. GeorgeReidAndrews, WisconsinUniversityPress, 1991), 4. in 15. Frederick America," NeitherSlaveNor Free:TheFreedBowser,"Colonial Spanish ed. men of AfricanDescent in the Slave Societiesof the New World, David W. Cohenand The JackP. Greene(Baltimore: JohnsHopkinsUniversityPress, 1974), 37. and Mammon ManoninEarlyNew 16. Degler,NeitherBlackNor White, 39-47; Ingersoll, TheCross:The Tannenbaum Orleans,221-34; DonaldG. Eder,"Timeunderthe Southern "The sis Reappraised," History50.4 (October1976):600-14; DavidC. Rankin, Agricultural Thesis Reconsidered: Tannenbaum SlaveryandRace Relationsin AntebellumLouisiana," Studies 18.1 (Spring 1979):5-31. Southern Slave and Citizen,69; StuartSchwartz,Sugar Plantationsin the For17. Tannenbaum, mationof BrazilianSociety:Bahia, 1550-1835 (New York:Cambridge UniversityPress, 1985), 253.

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greaterin the Spanishcolonies and Brazil than in the United States and some of the arguments used to undermine significanceof this crucial the differencearehardlysustainable. Thereis little evidence,for instance,that old andunproductive slaves were systematically for targeted manumission. thereis abundant evidencethatin "gracious" those Rather, manumissions, which did not involve self-purchase,childrenandyouths were the majority. The rates of self-purchasewere higherfor women than for men, but this was not a functionof theirlower value. It was a reflectionof the economic and social opportunities female slaves found in urbanand dothat mestic occupations.Besides, at least in some areas,young women had a marketvalue higherthanmen."18 Harris's whichnumerous authors have insightfuldemographic argument, later,has greatvalue at the macro-structural reproduced level, but it does not really disprovesome of Tannenbaum's centralclaims. It is difficultto slaveownersgranted freedomto one or more imaginehow,whenindividual of theirslaves, they would have abstract considerations and demographic populationratios in mind. What concernedslave owners, in additionto profits,was God's service. These two categorieswere by no means contradictory,nor did economic motifs preclude religious concerns. As Schwartzrightlyasserts,referring Brazil,slave exploitation"wasset in to an ideologicalcontextin which the metaphors family, obligation,fealof In ty, and clientage predominated." the act of manumission,the "unity betweenprofitandpaternalism madeclear.Althoughwe may findthis was to be a contradiction, slaveowners... did not."19 the Thereis also some limited evidence thatchanges of metropolishad an effect on colonial slave regimes. Louisianais, of course, a case in point, one thathas been actuallyused to test Tannenbaum's main theses. By the time of the Spanishoccupationafterthreedecadesof Frenchrule, Louisiana'sfree coloredsrepresented only 3.5 percentof the total blackpopulation. Four decades later, when the colony shifted momentarilyback to France,then was purchased the U.S. andbecame a state of the Union, by the proportion increased 12 percent. had to Thisgrowth,one historian notes, not "occurred because mastersrecognizedthe moralright of their slaves to freedom,as Tannenbaum becausethey recognized suggested,butrather
18. Frederick Bowser,"TheFreePersonof Colorin Mexico City andLima:ManumisP.
sion and Opportunity, 1580-1650," in Race and Slavery in the Western Hemisphere: Quan-

L. "Manumission Colonial in Buenos Press,1975),331-68;Lyman Johnson, University

Aires, 1776-1810,"HispanicAmericanHistoricalReview59.2 (1979): 258-79; Schwartz, "TheManumission Slaves in ColonialBrazil:Bahia, 1684-1745," HispanicAmerican of HistoricalReview54.4 (1974): 603-35.
19. Schwartz, Sugar Plantations, 257.

titativeStudies,ed. StanleyL. Engermanand EugeneD. Genovese (Princeton: Princeton

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Law and History Review, Summer 2004

the productsof theirsecret(andsometimesnot so secret)sex lives."20Although this might have been the case, it does not necessaryfollow that Tannenbaum's argumentsare left without defense. To begin with, why would the mastersbegin to recognize the fruits of their sexualityunder Spanish rule and not before? Sexual liaisons with female slaves surely of slave owners'recognition the predated Spanishpresence.Furthermore, conferfreedomon theiroffspringwith slave womendid not automatically theirchildren,who of coursefollowed the social conditionof the mother. Mastershadnot only to recognizethe productsof theirsex lives; they also had to eithergrantor purchasethe freedomof theirchildren. Critics are on much more solid ground when they question Tannenbaum'srelianceon legal preceptsto characterize slaverywithoutreference to their effective transfer-in the case of "precedents"-or applicability, canandenforcementin the colonies. But even in this areahis arguments violatnot be easily dismissed.Legal statutesmay have been customarily ed or ignoredin practice,but they still offered,as David Rankinnotes, "a convenientand precise definitionof society's values."21 Coloniallegislation, however,frequentlyreflectedthe "values"and ideologicalconcerns of the central state ratherthan those of the dominantgroups withinthe colonies, where such laws were supposedto be applied.In fact, local regulationswere invariablyharsherin 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 orderto prevent the publicationof regulationsthat they or favorableto the slaves? If no application deemed to be unreasonably and enforcementwas expected,how could these laws disruptproduction the colonies' social fabric?22 has of the Although application slavelaws in LatinAmerica notbeenstudslaves thereis evidencethatundercertaincircumstances ied systematically,
that of 20. Rankin,"TheTannenbaum Thesis,"23. Otherstudents Louisiana acknowledge or considerations other underSpanishrule manumissions increased,but emphasizemarket and factorsin theirexplanation.See Ingersoll,Mammon Manonin EarlyNew "material" An in "The AfricanPresence ColonialLouisiana: Essay M. Orleans,211-39; Thomas Fiehrer, on the Continuityof Caribbean Culture,"in Louisiana's Black Heritage, ed. RobertR. Louisiana StateMuseum,1979), F JohnR. Kemp,Edward Haas(New Orleans: Macdonald, 3-31.

D. 6. Tannenbaum "The 21. Rankin, claim,see Winthrop Jordan, Thesis," Fora similar
White over Black: American Attitudes Toward the Negro, 1550-1812 (New York: W. W.

Norton, 1977),588.

Carolino. ManSee the that concerns 1789realcddula enacted C6digo the colonies Negro
uel Lucena Salmoral,Los c6digos negros de la America espaiiola (Madrid:Ediciones

of 22. The most notoriouscase of resistanceto the application Spanishslave law in the

UNESCO, 1996),108-23.

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were ableto seek legal redressfromcolonialcourtsandauthorities. a piIn in the eighslavelegislation New Granada during oneering studyconcerning teenthcentury, Norman demonstrated crucialpoints.First, four Meiklejohn the traditional Iberianlegislationgoverningslaves' lives, particularly the in remained full effect. Second,at least some slaves usedthe Siete Partidas, and law to claim rightsin court,such as in cases of manumission the denunciation cruelmasters.Third,a local official,the sindicoprocurador, of role in the protectionof slaves' rights.Last, but cerplayed an important foundin favorof the slaves.23 tainlynot least, the courtsfrequently for broad mayhave been unusually Opportunities slaves'claims-making in New Granada, they were not unique.Even in areaswhere slavery but was firmly entrenched,slaves situated closer to the centers of colonial administration to the cultureandways of the dominant and groupused the Spanishjudicial and legal system to claim similarrights. Recent studies conductedin such dissimilarcolonies as PuertoRico, Ecuador, Peru,Guatemala,and Cubahave confirmednot only that traditional Spanishlegislation was applied in the colonies, but that undercertaincircumstances slaves were able to use it to theiradvantage.24 shouldnot be surprisThis ing. Justas the Spanishlegal system helped to tie indigenouspeoples "to theirrights, the systemthatalso oppressed them"by occasionally protecting reliance in intervention the case of slaves wouldhave likewise encouraged otherformsof resistance,thus on colonialinstitutionswhile discouraging In to contributing social stabilityand peace.25 both cases some degree of could serve well the largerconcernsof the empire. state intervention
of 23. NormanA. Meiklejohn,"The Implementation Slave Legislationin EighteenthCentury New Granada," in Slavery and Race Relations in Latin America, ed. Robert Brent

Greenwood Press, 1974), 176-203. Toplin(Westport:

24. Benjamin Nistal Moret, Esclavos pr6fugos y cimarrones: Puerto Rico 1770-1870 (Rio

Piedras: Editorialde la Universidad PuertoRico, 1984);ManuelLucenaSalmoral,Sande

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:Universityof California Press, 1994);ThomasFiehrer, "Slavesand Freedmenin Colonial CentralAmerica:Rediscoveringa 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 (Stanford: Stanford University Press, 2000); Gloria Garcia, La esclavitud desde la esclavitud: la

de visionde los siervos(MexicoCity:Centro Investigaci6n 1996);Digna 'Ing.JorgeTamayo,' in "TheFemaleSlave in Cubaduringthe FirstHalf of the NineteenthCentury," Castafieda,
Engendering History: Caribbean Women in Historical Perspective, ed. Verene Shepherd,

and BridgetBrereton, Barbara Bailey (New York:St. Martin'sPress, 1995), 141-54.

25. Ward Stavig, The Worldof Tupac Amaru: Conflict, Community, and Identity in Colo-

nial Peru (Lincoln:Universityof NebraskaPress, 1999), 85. On the complex interaction betweenthe colonial stateandthe indigenouscommunities, also Steve J. Stern,Peru's see

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The findingsof this scholarship on suggestthatTannenbaum's emphasis andinstitutions not withoutvalue. Slavesmayhavebeen was legal precepts "effectivelybeyond the reach of the colonial state,"as Robin Blackburn has claimed,but the colonial state was not necessarilybeyond the reach of enterprising slaves.26Recent studiesaboutthe NorthAmericanSpanish colonies confirmthis assertion.In her investigationof slaveryin Florida, for instance, Jane Landersdemonstratesthat slaves of African descent, particularlywomen, "learnedto manipulateSpanish law, customs, and to Her confirm Tannenbaum's genderconventions theiradvantage." findings centralclaim, namely that "Spanishlaw and custom grantedthe slave a moralandjuridicalpersonality, well as certain as not rightsandprotections foundin otherslave systems."27 Studiesof slave law in Louisianacoincide with this assessment.Under of Spanishrule,anddespitethe continuing applicability Frenchlegislation, slaves' rightsto self-purchase were at least occasionallyenforced,resulting in a notableincreaseof the free populationof color.28The acquisition of the colony by the Americanunion, in turn,"initiatedan era of diminished rightsfor slaves as Louisianaplanterssuddenlyfoundthemselvesin a position to make their own laws." With the "Americanization" the of slave rightswere colony andits legal system,threeof the most important eliminatedor greatlyrestricted. These includedthe rightto self-purchase, the rightto own property, the rightto recourseagainstcruelmasters. and Two yearsaftertheAmericanacquisition,writesJudithSchafer,"manyof the relativelybenigntracesof Spanishlaw had disappeared."29 The opportunities claims-makingthatslaves createdunderSpanish for law were largelya functionof the interplayamongthe differentelements of the complex institutionalhierarchy the colonies. This hierarchy of began in the local organsof power,as represented the cabildos,andendby ed up in Madrid.The degreeto which slave ownersenjoyedthe monopoly of power and authoritywas, to put it in a simplified way, inversely relatedto the opportunities slaves hadto benefitfromlegislation. a rule, As in SpanishAmericamastersnever enjoyeda monopolyof powerandhad
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. HansW. Baade,"TheLaw of Slaveryin SpanishLouisiana,1769-1803,"in Louisiana 's Legal Heritage,ed. EdwardF. Haas (Pensacola: The PerdidoBay Press, 1983), 4386; Judith K. Schafer, Slavery, the Civil Law, and the Supreme Court of Louisiana (Baton

Rouge:LouisianaStateUniversityPress, 1994). 29. Schafer,Slavery,6.

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to deal with the intromissionof colonial authoritiesand the Church.Yet withinthis generalization therewere significant variations-so greatin fact as to renderthe whole statementvirtuallyuseless. Just as any attemptto define "thenature" slavery in a given colony is perilous, attributing of a to generalcharacter the relationsof power betweenthe metropolisandits colonies must be of limited value. Constantshifts in these hierarchiesof and authoritycreatedchangingopportunities, limitations,for both slaves and slave owners. Thus a discussionof the important his questionsraisedby Tannenbaum, followers, andhis criticsmustbe done in referenceto a concreteslave society andlinkedto specificphasesof its politicaland economicevolution. Even sympathetic scholarsagree that one of the main flaws of Slave and and Citizenwas its chronological geographical vagueness.It is with this in mindthatI now turnto the studyof slaveryin Cuba.The islandis an excellent case studyfor at leasttwo reasons.First,slaverywas the dominant form of laborin the colony for over three hundred years. Second,by the early nineteenth slave-basedplantacenturythe islandhadbecomea flourishing tion society and a worldleaderof sugarproduction. in Therefore, the Cubancase it is possibleto assess,withina singlecolony,whether Iberian slave laws were transferred all duringthe early colonial period and, if so, to at if determine they survivedthe dehumanizing impulseof commercialagrihas culture.Indeed,the Cubanexperience beenusedby bothsupporters and of Some authors detractors Tannenbaum. have employedit to demonstrate the role thatthe colonial state andthe churchplayedin temperingthe exof believethatCubaexemplifies however, ploitation the slaves.Mostauthors, the inaccuracyof Tannenbaum's ideas, on the groundthat the rise of the the plantation economydehumanized slaves, to put it in Mintz'smuchrepeatedwords,to a degreesimilarto thatof JamaicaandNorthAmerica.30 Partof the problemhas restedon a selective use of evidence fromquite differentperiodsin the island'sdevelopment,or from areaswith dissimilar linkagesto the exporteconomy.As in Brazil,wherestudiesof colonial on in societyhavecentered monoculture, slavery,andlatifundia, Cubathere hasbeen a tendency identifyslaverywiththeplantation to economy.31Some featuresof plantationagrihistorianshave extrapolated dehumanizing the "the"slave experiencein the island, regardlessof cultureto characterize
31. has 30. Mintz,"Slavery Emergent and Capitalisms," Mintz'sstatement been frequently of 307, andEder,"Timeunderthe quoted.Forexamples,see Sio, "Interpretations Slavery," is baum'sarguments Klein's Slaveryin theAmericas. A 31. For a discussionof this problemin Brazil, see B. J. Barickman, Bahian Counterpoint: Sugar, Tobacco, Cassava, and Slavery in the Reconcavo, 1780-1860 (Stanford: Stan-

TannenSouthern 612. Cuban Cross," By farthebestscholarship concerning slavery along

fordUniversity Press,1998).

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Such an approach chronologicalor regionalvariations.32 ignoresthe crucial fact that, in the island, the plantation did not develop until economy the last quarter the eighteenthcentury. of The late arrivalof the plantation economy to Cubaimplied that the new orderhad to be imposedon, and somehowreconciledwith, previousculturaltraditions social mores. and Thus a betterknowledgeof slaveryin the islandduringthe long period agriculpriorto the late 1700s is crucialto assess the impactof plantation ture on traditional forms of slave use and on whateveropportunities for Cuba.The rise and fall of plantamobilityhad developedin preplantation tion slavery must be analyzedin relationwith, not in isolation from,the developmentof slaveryduringthe early colonial period.Since this is by farthe least studiedperiodof Cubanhistoryin general,andof Cubanslavmost of the remainder this articleis devotedto it.33The of ery in particular, next section shows thatduringthis periodsome opportunities slaves' for and claims-making social mobilityexisted in the colony.A finalconcluding sectionbrieflyexplores some of the effects thatthe plantation system had on slaveryin the island. I should state at the outset that althoughmy analysis of early colonial on slaveryis largelybasedon my own archivalresearch,I drawprimarily the secondaryliterature the 1790-1860 period.It shouldalso be noted for thatthe following discussiondoes not attempt providea comprehensive to scholarsummaryof the evolutionof slaveryin Cubaor of the abundant
32. This view is not uncommonin Cubanhistorymanuals.For examples, see Julio Le EditoraPolitica,1984);SerRiverend,Selecci6nde lecturasde historiade Cuba(Havana: EditorialNacional, 1966);JesdsGuanche, gio Aguirre,Historiade Cuba,3 vols. (Havana: Procesosetnoculturales Cuba(Havana: de Editorial LetrasCubanas,1983); CalixtoMas6 Velizquez, Historiade Cuba(Miami:EdicionesUniversal,1976). Otherhistorians speak in of sugarplantations early colonial Cuba.For examples,see Eduardo and Torres-Cuevas EusebioReyes, Esclavitudy sociedad: notasy documentos para la historiade la esclavide tudnegraen Cuba(Havana: Editorial CienciasSociales, 1986);Francisco CastilloMel6ndez, "Un afio en la vida de un ingenio cubano(1655-1656)," Anuariode EstudiosAmericanos 39 (1982): 449-63. 33. Although thereis nota comprehensive the studyof preplantation slaveryin Cuba, topic worksof scholarship. has beencoveredin severalimportant usefulare,in addiParticularly tion to Klein'sSlaveryin theAmericas,Levi Marrero, Cuba:economiay sociedad(Madrid: EditorialPlayor, 1975-1992), especially 2:346-70, 5:25-42; Isabelo Macias, Cubaen la 1978); primera mitad del siglo XVII (Sevilla: Escuela de Estudios Hispanoamericanos, Castillo Meldndez,"Un afio en la vida de un ingenio cubano,"449-63. Althoughdated, Hubert Putman's Aimes,A Historyof Slaveryin Cuba,1511 to 1868 (New York: Sons, 1907) andOrtiz,Los negrosesclavos are still valuablecontributions. slave community has A that receivedsignificantattentionis thatof El Cobre,studiedby Jos6 LucianoFranco,Las minas de Santiagodel Pradoy la rebelirnde los cobreros,1530-1800 (Havana: de Editorial CienciasSociales, 1975);Levi Marrero, esclavos y la virgendel Cobre(Miami:EdiLos ciones Universal,1980);andDiaz, TheVirgin, King,and the Royal Slavesof El Cobre. the

Slave Law and Claims-Makingin Cuba

353

ship aboutthe subject.Whatit does attemptis to identify some of the opthat and created portunities variousinstitutional productivearrangements for slaves'legal claims-making for theiraccess to colonialinstitutions, and particularly duringthe long preplantation period. Slavery in Preplantation Cuba (1550s-1770s) Africanslaves constitutedthe main sourceof laborin the island from the mid-sixteenth A of centuryonward. few hundred themhad 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 ruraloccupationsin whichthey could carveout a modicum of personalandeven financialautonomy. In the main urbancenters,where a largeproportion the slaves lived, of therewere some opportunities mobility.Slaves andthe growingsector for of free blacks and mulattosnearlymonopolizedHavana'scrucialtertiary sectorin the late 1500s andthe 1600s. A majorportcity, Havanawas visited annually by the fleets of Nueva Espafia and TierraFirme, which of broughtwith themthousands consumerswho hadto be fed, lodged, and entertained.These cyclical burstsof populationand cash had a marked inflationary impacton the local market,whereall servicesand goods were chargedat a premiumwhile the fleets were stationedin the port. Indeed, Havana'sresidentsreferredto the interfleetperiod as "the dead season" (tiempomuerto),the same expressionthatwould laterdesignatethe period betweenthe sugarharvests.34 Since manyof these serviceswereprovided blacks,free andenslaved, by blackwomthey were ableto benefitfromthese opportunities. Apparently, en filledmanyof theseeconomicspaces.Local authorities comfrequently plainedthatthey 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. Forthe development Havana'sserviceandmaritime of de economy,see Alejandro la Fuente,C6sarGarciadel Pino, andBernardo and Iglesias Delgado, "Havana the Fleet System:TradeandGrowthin the Periphery the SpanishEmpire,1550-1610," ColonialLatof
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 Ayuntamiento la Habana,originales,1672-1683, fol. 45. Local authorities de constantly complainedaboutthe largenumberof female slaves who devotedthemselvesto service activitiesandtriedrepeatedly curbtheirautonomy. to Localregulations devotedspecifically

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Slaves also performednumerousskilled jobs and reachedthe highest levels withinthe tradesas officersand mastercraftsmen,even openingas Havana'sprocurador(petitioner)denouncedin 1650-their own public shops. Roughlya centurylater,in 1761, MartinF61ixde Arrateassertwere ed in his notablechronicleof Havanathat the "negrosand pardos" to mechanictrades, whichtheyfrequentableandcapableto perform "very not masters, only in thelowest becomingdistinguished ly applythemselves, but ones such as shoemakers, tailors,masons,andcarpenters, also in those which requiremore abilityandgenius, such as silversmiths's craft,sculpture,painting,and carving,as denotedby theirmarvelousworks."36 A large numberof these slaves worked underthe hiring-outsystem, as the whichwas commonin Cubancities through nineteenth century, well slaves had to pay a daily as in other colonies. Under this arrangement, and but to amount theirmasters, wereobligedto findtheirown occupations as if they were free workers.In the process, slaves could employers,just conand maximizetheirpersonalandfinancialautonomy acquirevaluable tacts and knowledgeaboutcolonial institutionsand theirfunctioning. were greatestfor slaves employedin the urban Althoughopportunities as in areas,some ruralslaves found ways to participate the urbanmarket "rural" well. Until well into the seventeenthcentury,the line separating areaswas itself fairly porous.Most slaves not employedin from "urban" the cities livedin the smallestanciasthat,like an agricultural surroundbelt, ed the urbancenters.Since the maineconomicpurposeof these unitswas to supply foodstuffsto the local market,easy access to the city was crucial. The same was trueof some sugarmills, which were close enoughto to the urbanareasfor Churchauthorities decree as late as 1681 that,unless a churchwas availableon the premises,the slaves employedin them to In to shouldbe brought town to hearmass every Sunday.37 addition their that closenessto the cities andtowns,local authorities complained physical
to black women were approvedin 1553, 1557, 1599, 1601, 1620, 1654, and 1698.Actas trade del 1937-1946), 1.2: 75, 150;AMCH,Actas Capitulares Ayuntamiento la Habana, suntadas ACAHT),1599-1604, fol. 474v, 521; 1616-1624, fol. 126; 1648-1654, (hereafter werealso referred in regulations to fol. 874; 1691-1702,fol. 207.Women dealingwithslaves' urbanactivitiesin general.See Table1 below. 36. AMCH,ACAHT,1648-1654, fol. 618; Jos6Martin Llavedel Nuevo F61ixde Arrate, Mundo(Mexico City: Fondode Cultura Econ6mica,1949), 95. On the growingsectorof S. in artisans Havana,see Leandro Romero,"Fichero ilustrado," (AuRevoluci6n Cultura y de Universidad la habanera las islas canarias," en gust 1975):78-82; Romero,"Orfebreria Habana222 (January-September 1984):390-407. 37. See the Lib. 2, Tit. 1, Const.4 of Diocesan Synod of 1680 in JuanGarciade PalaOficinade Arazozay Soler, 1814), 46. cios, SinodoDiocesano (Havana:
Capitulares del Ayuntamiento de la Habana, 1550-1578 (Havana: Municipio de la Habana,

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355

the slaves' own productswere channeledto the local market slaves and by free blackswho madea living touringthe estanciasandbuyinggoods that they resold in the cities.38 The purposeand structure these early colonial ruralunits were vastof fromthoseof nineteenth-century Devotedto growly different plantations. ing food for local consumption,the estancias typically employed one or two slaves who lived in the unitwith the ownerandhis family.In the 15781610 period, only 14.5 percentof all estancias in Havanaused slaves at all. The averagenumberof slaves employed by these units remainedunfromthe cities,cattle Moredistant changedin the earlyeighteenth century.39 farmswere mannedby an equally small numberof slaves who lived in a state of virtual autonomy.Their main occupationwas the productionof hides and the periodictransportation, particularly duringthe visit of the transatlantic in of fleets,of cattleto be butchered the city.Inventories these farmsrarelymentionwhite overseersor administrators.40 Even in the sugarmills, which were of course the units requiringthe of the largestconcentrations workers, numberof slaves perestatewas very low compared sugarplantations to elsewhere,or laterin Cubaitself.A study of fortymills in the Havana jurisdiction duringthe 1650-1699 periodfound that typically sugarmills used between fifteen and twenty slaves. It was not until the 1770s thatthese numbersbegan to change.Accordingto anotherstudyof twenty-onemills, in the 1704-1766 periodthe averagenumber of slaves remainedthe same and only one sugarmill employedmore thanthirtyslaves.As in the previouscentury,the largestingenioused thirty-eight slaves.41 Thus in the long periodthatprecededthe emergenceof the sugarplantation economy in westernCuba, slaves were not subjectto the extreme circumstances plantation of LimitedSpanishmigrationto the agriculture. island requiredslaves to performeconomic activitiesthatmay have been otherwiseclosed to them and that implied some degree of autonomyfor the workers.Throughtheirparticipation markettransactions other in and
38. AMCH,ACAHT,1599-1604, fol. 474v.; 1648-1654, fol. 874; 1691-1702, fol. 207. 39. The 1578-1610 estimateis takenfrom a database 271 contracts inventoriesof of and ruralproperties basedon datafromHavana'snotarial records.Forthe earlyeighteenthcende tury,see Fe Iglesias Garcia,"Laestructura agraria La Habana,1700-1775,"in Las raices hist6ricasdel pueblo cubano,ed. ConsueloNaranjoOrovioandMiguelA. Puig-Samper

Arbor, (Madrid: 1991),91-112.

41. Alejandro la Fuente,"Losingeniosde azficar la Habana siglo XVII:estrucde en del turay manode obra," Revistade HistoriaEcon6mica9.1 (Winter1991):35-67; Mercedes habaneros siglo XVIII,"in Las raices hist6ricasdel puebdel GarciaRodriguez,"Ingenios lo cubano, 113-38.

after Escribania PNH), Fornaris, 1693,fol. 192;1694,fol. 169,508v.

40. ArchivoNacionalde Cuba(hereafter Notariales la Habana de ANC). Protocolos (here-

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econosocial relations,slaves gainedcriticalknowledgeaboutthe market was the culture.Includedin this cultural andthe dominant background my knowledgethatunderSpanishlaw slaveshadnot only some rights,butalso thatthey were allowedto appealto authorities--toan authority higherthan theirmaster--to enforce them. As is well known, the main code regulatingslavery in Castilewas the of code thirteenth-century Las SietePartidas AlphonseX theWise.Inspired Romansources,this remarkable legal code containednot only specific by variousaspectsof slaves'lives, butalso general legal concerning regulations These principlescouldbe sumandmoralprinciplesaboutthe institution. marizedin threebroadassumptions. First,slaverywas againstnatureand From statusof men andtheirmostvaluableattribute. freedom-the natural this it followed thatjustices and laws should favor freedom. Second,alhad goods thoughmasters totalcontrolovertheirslaves,includingwhatever received,masters'rightswere limitedin severalways, notablywhen they for it came to the personalintegrityof the slaves. In the case of murder, the law did not distinguishbetween free persons and slaves as example, These victims.Third,some rightsof slaves wererecognizedandprotected. includedrightsthatwere largelyconditionalon the master'swill, such as and of the ownership goods andthe rightto self-purchase, rightsthatcould be exercisedeven againstthe will of the master,such as thatof marriage.42 almost It is difficult to establish whetherthis code "was transplanted intactto the New World,"as Klein asserts,but thereis little questionthat Cuba.43 thislegislationwas enforcedto at leastsome degreein preplantation of For instance,slaves' access to the Catholicsacraments baptismand Havana(1585-1644) was marriage fairlycommon.In seventeenth-century a of in slaves participated one-fourth all marriages, percentagethatseems of in with theirproportion the adultpopulation the city. roughlycongruent in In SanctiSpiritus,a town in centralCuba,slaves participated one-fifth between 1621 and 1670.44 of all marriages Slaveswere also well represented in baptisms.The childrenof slave motherscomprised16 percentof all the child baptismsregisteredin Havanabetween 1590 and 1610 and 12
42. For a discussionof the slave provisionsof Las Siete Partidas,see Davis, TheProbin contained Los cddigosespahioles vos, 309-16. I haveused herethe versionof the Partidas La concordados anotados, 12 vols. (Madrid: Publicidad,1847-1851). y de 44. For a discussionof the Havanafigures,see my "Losmatrimonios esclavos en la
Habana, 1585-1645," Ibero-Amerikanisches Archiv 16.4 (1990): 507-28. The figures from 43. Klein, Slavery in the Americas, 59. lem of Slavery, 102-6; Watson, Slave Law in the Americas, 40-47; Ortiz, Los negros escla-

de SanctiSpiritusarebased on LibroPrimerode Matrimonios Blancos y de Color.ParroSanto,SanctiSpiritus,1623-1739.ArchivoNacionalde Cuba,FondoValle quialdel Espiritu Iznaga.

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also percentin SanctiSpiritusbetween 1597 and 1659. Churchauthorities the administered sacrament a large numberof adultAfricanslaves. In to for of these slavesaccounted one quarter all baptisms in Sancti and Havana, Spiritusfor 13 percent.45 These sacramentsgave slaves some access to the "moralcommunity" and allowed them to establishsocial andreligious links with otherslaves or withindividuals abovethemin the socio-racial Blacks'recruithierarchy. ment of white godparents their childrenand their marriagessuggests for not only the existence of cross-racialsocial networks,but also that such contactswere seen as potentiallybeneficialfor themselvesand their offThese sponsorscouldbe valuable,particularly when slaves came spring.46 in contactwith colonial institutionsto press for rightsunderSpanishlaw. freedomwas the most important these rights,one firmly of Purchasing establishedand protectedin Spanish legislation and claimed by slaves throughout SpanishAmerica.In Cuba,as elsewherein the region, access to freedomwas a functionof severalfactors.Ratesof manumission, either or weremuch through self-purchase as a graciousconcessionby the master, higherfor creole slaves (as opposedto Africans),for women, andfor mulattos.Contrary whatsome of the criticsof Tannenbaum to have suggested, half of the slaves obtainingfreedomin Havanawere youngerthanfifteen of years old. Threequarters these young slaves were describedas "mulasexualrelationships, mayhave received and to,"the offspringof interracial the support theirparentsor otherwhite relativesto obtainfreedom.47 of Havanawhites paid or lent money Indeed,in early seventeenth-century 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 Parroquial Mayorde la Villa de Sancti Spiritus,LibroPrimerode Bautizos,in ArchivoNacionalde Cuba,FondoValle Iznaga. 46. Forty-onepercentof the godparents slave childrenin Havanaand 52 percentin of of SanctiSpirituswere white. Conversely, overwhelming the majorityof godparents adult slaves were also slaves (78 percentin Havana;59 percentin Sancti Spiritus).Forty-one in in percentof the witnessesandgodparents slave marriages Havanawere also white. My of in findingsconcerning patterns godparentage earlycolonial Cubacoincideroughlywith
those of Schwartz, Slaves, Peasants, and Rebels: Reconsidering Brazilian Slavery (Urbana:

Universityof Illinois Press, 1992), 137-60. 47. Fora discussionof manumission earlycolonialHavana,see de la Fuente,"Aalforin conclus6es,"EstudosEcondmicos20.1 ria de escravosem Havana,1601-1610: primeiras manu(Jan.-April1990): 139-59. I have also used resultsfrom a sampleof threehundred missionletterstakenfromANC, PNH,Escribania Fornaris,1690-1694. For the eighteenth de andnineteenth "Peculiaridades la esclavituden centuries,see ManuelMorenoFraginals, Cuba,"Del Caribe4.8 (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 UniversityPress, 1995), 131-41.

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been crucialin cases like these.As a slave ownerwho purchased freethe dom of a mulattoslave declaredin 1604, he did so to serve God andbecause the fatherof the slave was "anhonorableman andmy friend."48 In 1691 the freedomof Pablo, a seven-year-oldslave, was purchased his by Nicolas de Landueta, who was white.49 godparent freedomwas facilitated a legal customthathaddeveloped by Purchasing in the island, and perhapsin other Spanishcolonies, since the sixteenth slaves wereallowedto agreewith coartacidn century: coartacirn.Through theirmasterson a fixed price for theirfreedomandto makepaymentstowardit. In otherwords,they couldbuy freedomthrough installments. Such were legally binding and restrictedthe master'scapacityto agreements dispose of the slave in several importantways. A slave who had paid a fractionof the price could not be mortgaged sold for a highervalue.In or 1690, for instance,the slave Juan,a seventeen-year-old creole, was sold four times, always on conditionthathe was to be freedas soon as he was for able to pay the 200 pesos remaining his total value. In practice,only a of Juanwas being sold. He owned a portionof himself.50 was This portion not mere legalism. Buyerswere instructed thatthey could only "use"the portionof the slave thatthey were payingfor. If they wereto use his labor full time, then they had to apply a proportional partof that labortoward his freedom.Thus when a mulattofemale slave who had paid half of her thatshe was entitledto half price was sold in 1690, the contractstipulated of her laborand thatthe sale was "onlyon half of the said mulata."51 The originsandevolutionof this remarkable legal figureremainelusive to researchers, seemto go backto the traditional but of legal statutes Castile. A law containedin Las Partidasregulateda form of conditionalsale in which the slave was to be manumitted undercertaincircumstances. Such conditionscould not be altered-one of the main elementsof the institution as it evolved later.52 has been frequentlyclaimed that this was a It In purelyCubanpracticethatemergedin the eighteenthcentury.53 fact, it
48. ANC, PNH, Escribania Fornaris,1604, fol. 452. 49. ANC, PNH, Escribania Fornaris,1691, fol. 273. In othercases, it was the white fa-

Valderas ANC, PNH, Escribania in Regueira,1606, fol. 207. 50. ANC, PNH, Escribania Fornaris,1690, fol. 140, 144, 262, 363. 51. Ibid.,fol. 44. 52. L. 45, Tit. 5, P. 5, in Los C6digos,3: 614. But no specificlaw regulated coartaci6n, which seems to have been a customary legal practice.See Watson,SlaveLaw in theAmericas, 51; ManuelLucenaSalmoral,"El derechode coartaci6ndel esclavo en la Amdrica Revistade Indias59: 216 (May-August1999), 357-74. Espafiola,"
53. Ortiz, Los negros esclavos, 285-90; Rolando Mellafe, Breve historia de la esclavitud

who of For ther himself the see purchased freedom hischildren. anexample, thewillof Isabel

de enAmericaLatina(MexicoCity:Secretaria Educaci6n,1973), 136;CarlosE. Deive, La

esclavitud del negro en Santo Domingo, 1492-1844 (Santo Domingo: Museo del Hombre

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359

was widely used in the islandfromthe 1590s onward-the firstcase I have in seen is datedin 1597-and was acknowledged seventeenth-century royal A realc6dulaof 1673 concerningthe king's slaves in the comregulations. munityof El Cobreordered royal officials to allow themto cortarse,even Moretelling,perhaps, if they were to pay for theirfreedomin installments.
is the fact that the 1729 edition of the Diccionario de la Lengua Castella-

na defined"cortarse" the action by which a slave "adjusted" with his as masterthe termsof his freedom.54 It seems that,to some degree,the traditional principlesof Iberianlegislationconcerningfreedomandmarriage, two of the most important rights in slavelaw, wereupheldandappliedin the colonialworld,as Tannenbaum suggestedyears ago. Furthermore, subsequentlegislation confirmedthat such rightswere to be observed.The Crowninsistedthat slaves' rightsto marryfreely shouldbe upheldeven againstthe wish of theirmastersand did confirmed,as the Partidas asserted,thatmarriage not constitutea motive for freedom. This policy was not based on religious considerations alone. Numerousroyal decrees clearly stated that marriageswere to be so As encouraged the slaves wouldbe peacefuland"secure." Davidsonhas marital was not only a Christian life noted,"aprotected obligationbut also and an essentialmean of insuringslave tranquility stability."55 Coloniallegislationalso ratifiedthe principlesthatmastershadthe right to to grantmanumission theirslaves and that slaves shouldbe allowed to theirfreedom.A real c6dulaof 1529 askedthe governorof Cuba purchase whetherit was expedientto give freedomto slaves afterthey had served that sometime andpaida given amount. Whenthe kingwas informed many soldiersin Havanahadfathered childrenwith slaves duringthe late 1500s, he quicklyinstructedthat these soldiers be given preferencein any sales "if"' their intentionwas to liberatethem. The Crown also reiteratedthe slaves' rightto initiatea legal process for theirfreedom.56
Dominicano,1980), 2:409. For a recentexamplein which the allegedlatenessof the coartsee and aci6n policy is centralto a critiqueof Tannenbaum's approach, Ingersoll,Mammon
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-

Hierro, 1729),626. 55. David Davidson, M. and in SlaveControl Resistance Colonial Mexico,1519"Negro
moniosde esclavos en la Habana," 507-28.

demia Espafiola, Diccionario de la Lengua Castellana (Madrid: Imprenta de Francisco del

"Los matrisee of Press,1979),85. Fora discussion someof thislegislation, de la Fuente,

56. R.C. 9-11-1526, Colecci6n de Documentos, 1:355; R.C. 31-3-1583, Konetzke, Colecci6n, 1: 547; R.C. 15-4-1540,laterL. 8, Tit. 5, Libro7 of the Recopilaci6n.

The JohnsHopkinsUniversity 1650,"in MaroonSocieties, ed. RichardPrice (Baltimore:

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This the slavesdid.Thereis evidencethatin some cases slaveswereable to use the law to makeclaimsandto createopportunities advancement. for And thereis also evidence that,at least occasionally,colonial courtsand royal officialshad no choice but to enforcethe law. On the otherhand,the documentssuggestthatmanymastersdid everythingin theirpowerto circumscribeslaves'autonomyandmobility.In twenty-four appealsconcernthe freedomof slaves locatedin Havanabetween 1668 and 1698,fouring teen were carriedout by slave owners againstsentencesfavorableto the In slaves in the lower courts.57 eighteenth-century Havana,accordingto MorenoFraginals,8 percentof all the manumissions includedin his study resulted in legal disputes in which slaves received favorableverdicts.58 was supposedto When, duringthe litigations,one of thejudges appointed be partialto the master,slaves had the right to challengehim andto ask that a new judge be appointedto hear their case.59 least in principle, At alslaves had the right to take their cases to higherjudicial authorities, makesuchprocedures infrequent, thoughthecosts involvedwouldprobably if not exceptional.Despitethese difficulties,in 1693 DomingoFernandez, an Africanslave describedas loango, appealedthe negative sentenceof local authorities before the Audienciade SantoDomingo.60 for Opportunities claims-makingshould not be exaggerated,for only those cases in which slaves were at least initially successful remainvisible to researchers and,as some of the examplesmentionedabove suggest, they frequentlyhad to do legal battle with theirmasters.61But even if inavstancesof legal claims-making were a minority, they still represented and enues for advancement goals for otherslaves strugglingfor freedom. that They also demonstrated it was possible to challengethe master'sauto thorityin court.Some slavesusedthis legal framework pressclaimseven when theirrights were unclear.62
58. Moreno 7. "Peculiaridades," Fraginals, see 1159. Forexamples, thepetitions Luisa of 11-23-1671 Maria and Guiomar, Murga, Both in for fol. 27-1676 their 1667-1672, 748 ACAHT, legalprocesses freedom. inAMCH,
in 57. These appealsare registered AMCH,ACAHT.

and 1672-1683, fol. 150. 60. ANC, PNH, Escribania Fornaris,1693, fol. 49. 61. For cases in which slaves had to surmount significantobstaclesto obtaintheirfreedom even with a freedomletterfrom their deceasedmasters,see ANC, PNH, Escribania dated 1-1-1677);AMCH,ACAHT,1672-1683,fol. 150; Junco, 1677-1678, s/f (declaration ANC, PNH, Escribania Fornaris,1691, fol. 343. freedombecauseshe had"escaped 62. For instance,in 1681 the slave Felipa demanded and The from Jamaicain power of the British" come to His Majesty'sCatholicterritories. slave foundin favorof the slave,a verdictthatherallegedmasterappealed. Another governor requestedfreedomfrom Havana'stown council in 1597 alleging that he had rendereda valuable service by discoveringand denouncingthose who had committedthe "pecado

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ThatSpanishtraditional laws wereinvokedto regulatesocialrelations is, of however,out of the question.Indeed,in theirapplication Castilianlaws to slavesjudicialauthorities faced situationsin whichthey hadto reconcile contradictory legal principlesand customs.For instance,accordingto the 1505 Leyes de Toro,whichregulated married womenwere familyrelations, to obtaina special"license" fromtheirhusbands sign contracts perto and formotherlegal transactions. colonialauthorities residents But and encounin teredsituations which an enslavedhusbandwas married a free womto an. Indeed,between 1585 and 1644, 6 percentof all marriages registered in Havanawere of this type. In these cases, judicial authorities upheldthe license, but since slaves did not enjoy Ley de Torodealingwith the marital full legal capacity,they were requiredin turnto obtainanother"license" fromtheirmaster.63 is, masters That licensedtheirmale slavesso they could authorize theirfree 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 authorization his master,in 1591 Gasparzape hireda lawyerto recover of "somehousesanda parcelof land"thata deceasedresidentof Havanahad purchasedwith Gaspar's "own money and for him." In 1595 Maria, a mulattoslave, declaredthatshe "owned"a house in El Ejido,a residential areaof Havanawheremanyfree blacks lived. A year laterthe slave Francisca Velazquezsold a lot with two wooden housesin the same area.64 The master'slicense allowedslaves to inheritgoods, fightlegally for theirpossession, and dispose of them.65 Included among these goods were other slaves. When Francisca de criolla from New Spainwho workedas a Miranda,a thirty-five-year-old cook for the soldiers,boughther freedom in 1585, she paid with one of the two slaves thatshe "owned"-a Catalina angola, twenty-fiveyearsold. In 1690 a female slave purchased freedomof her daughter the Ines, eighteen years old, by selling a slave that she had "owned"for some time. A

nefando" this in as for (sodomy). Although wasnotincluded LasPartidas a cause freedom,

they did stipulatethat when slaves renderedsome valuablesocial servicesthey shouldbe set free. Thefinaloutcomeof bothprocessesis unknown.See AMCH,ACAHT,1672-1683,

fol. 329v;1584-1599, 405;L. 3, Tit.22, Partida in LosC6digos, 522. fol. 3: 4, 63. Forconcrete see case General, 319,no.15,420 examples, a 1641 inANC,Gobiemo leg. andANC,PNH,Escribania 1609,fol. 198. Regueira,
64. ANC, PNH, Escribania Regueira,1591, fol. 191; 1595, fol. 424v.; 1596, fol. 331. 65. ANC, PNH,Escribania Fornaris, Regueira,1596, fol. 331; 1610, fol. 349; Escribania 1694, fol. 201v; Escribania Ortega,1653, fol. 2.

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royal slave namedFelipe, employed in the constructionof forts, bought Maria angola for 250 ducadosfrom a free black womanin 1595.66 These examplessuggestthatslaves-including notably Africanslavesin the urbanmarketeconomy andin comto participate managed actively of plex social networksthatincludedindividuals differentsocial andracial status.67 with this, at least some slaves becamefamiliarenoughwith Along the dominant cultureas to carve out a modicumof personaland financial andto pressfor rightsbeforecolonialauthorities the courts. and autonomy It is precisely because slave owners despairedover theirrelativeincapacity to control the social and productiveactivities of their laborforce that local regulations concerning slavery were invariablyharsherthan laws. Regulatingslave urbanlaborwas a majorconcernof metropolitan Havana'ssecular and religious authorities,as Table 1 shows. After maissue in slave owners'efforts roonage,which was of course an important at social control, the largestproportionof regulationsdealt with slaves' urbanactivities and attemptedto curbtheir autonomyas much as possible. Many of these regulationsreferredto slaves' retail activities, particularlyselling wine, to theirhavingtheirown houses, separatefromthose
Table 1. Percentage distribution, regulations concerning slaves and blacks issued by the local authorities of Havana, 1550-1699 (N = 175) Retail, bartenders,innkeepers Hiring out Separatehousing Otherurbanactivities Possession of weapons Maroonage Marriageand religion Others 17.7 4.6 7.4 10.9 5.1 33.7 9.7 10.9

Actas CaSources: Archivo del Museo de la Ciudadde la Habana, pitulares del Ayuntamiento de la Habana, 1550-1699; Diocesan Synod of 1680 in Juan Garciade Palacios, Sinodo Diocesano (Havana: Oficina de Arazoza y Soler, 1814).

66. Maria T. de Rojas, Indice y extractos del Archivo de Protocolos de la Habana, 15781585 (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 individuals, including whites, free blacks, and other slaves. Among the debtors was her own master, who had received money towards her manumission. See ANC, PNH, Escribania Regueira,

1604, fol. 318.

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of the masters,and to what slave ownersperceived as social ills generated by the hiring-outsystem.68 Yet the very frequencywith which these regulationswere passed is a that good indicator theirsuccesswas, to say the least,modest.Thekey point is that,lackinga monopolyof power,slave ownerswere never able to enforce theirown regulations,which had to be approvedby higherauthorislaves learnedthatthey could appealto colonialauthorties. Furthermore, ities and did so even in cases where no laws were being violated. For instance,in 1688, they askedthe governorto decreea loweringof the daithat systemhadto pay,arguing ly rentthatslaves workingin the hiring-out In the amountdemanded masterswas abusive.69 these legal battlesthey by could rely on the assistanceof some of theirpeers, for underSpanishlaw slaves were entitledto appearin courtas witnesses.70 econhad Thesetraditions becomeentrenched the time the plantation by of to take over westernCubain the last quarter the eighteenth omy began The impactof these productiveand social customson social relacentury. tions was furthermagnifiedby the presence of a sizeable communityof free people of color. By 1792, aroundthe dawn of the plantationecono38 my, free blacks andmulattosrepresented percentof the nonwhitepopulationin the islandand20 percentof the populationas a whole.Although of the integration this groupinto colonial society was mediatedby hierarchical notions of ancestry,culture,and purityof blood, thereis solid eviin and dencethatthey were ableto accumulate property to participate some of the civic ritualsof the city. The visibility and relativemobility of this groupwas magnifiedas well by theirprominentpresencein the militias, where since the late sixteenthcenturypardos and morenoswere grouped in separatecompaniesand battalionswith their own officers. These free 29 coloredsoldiersrepresented percentof the militaryforces in the coloin 1770.71These were the foundersof what by the nineteenthcentury ny had become a sizeable petit bourgeoisieof free blacks and mulattos.
variousaspectsof slaves'lives under"Others" 68. I have grouped concerning regulations clothandof free blacks as well. Amongthese were ordinancesdealingwith nourishment,

and ing,recreation, so on.

General de 1690.Archivo See del diasin Madrid. Informe licenciado Ger6nimo C6rdova,
de Indias,Seville (hereafter AGI), SantoDomingo,leg. 65, no. 4; Diego Antoniode Viana de de Demandade naturaleza EnriqueMdndezy Diego de Norofia,1608. AGI, Escribania

the 69. The slaves' complaintsconcerning daily rentwere elevatedto the Consejode In-

de to 1688.ANC,Academia la Historia, 90, no. 641. leg. Hinojosa theKing,Havana, see in slavetestifies a process in an 70. Foranexample which African whites, involving Cfimara, 74A. leg.
71. Klein, Slavery in the Americas, 217-18; Pedro Deschamps Chapeaux, Los batallones

Arte y Literatura, Editorial de pardosy morenoslibres (Havana: 1976);FranciscoCastillo

Mel6ndez, La defensa de la isla de Cuba en la segunda mitad del siglo XVII (Sevilla:

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Plantation Slavery Neither these traditional legal and social customs, nor the presenceof a sizeable communityof free people of color, could deterthe expansionof of But plantation slaveryandits by-products social andracialpolarization. forserved,to a certainextent,to subvertthe unobstructed they probably mationof a plantationsociety like those in otherCaribbean In territories. this sense, the Cubanexperience was unusual in the colonial world. In colonies such as Jamaicaand Barbadosplantationscame to define colonial societies soon aftertheiroccupation the Europeans. the timethe by By in plantation economydeveloped Cuba,slaveryhadbeenpartof theisland's social and economic life for over two hundredyears. In Cuba,as elsewhere,the plantation economyhada devastating impact on social andracialrelations.Between 1790 and 1860 moreAfricanswere into the islandthanin the two anda half previouscenturies comimported Those sent to the sugarplantations becamefactorsof production, bined.72 theirhumanitylargelyobliterated the impersonalneeds of commercial by the as Furthermore, emergent "sugarocracy," ManuelMoreno agriculture.73 Fraginalsreferredto the new planterclass, had enough power to resist of in to successfully the encroachment colonial authorities theirattempts to regulatetheirimmediateworld.Whenthe Crownattempted publishits relativelybenign 1789 black code in the island, for instance,the planters mobilizedto impede the promulgation the new law on the basis thatit of wouldundermine slave disciplineandmorale.Some traditional rightswere such as the possibilityof interracial which after1805 restricted, marriages, The required specialpermission the authorities. rightsandrelativeprivby in ileges of the free black communitywere assaulted.Black participation the militiaswas temporarily bannedin 1844, "theyear of the lash,"when an alleged collaboration free blacks with a slave conspiracyservedas of excuse for the repressionof hundreds free blacks and mulattos.74 of
aboutthefreepopProvincial, Cuba,5:28-30. Figures 1986), 194-201;Marrero, Disputaci6n ulationof color have been takenfromKennethKiple,Blacksin ColonialCuba1774-1899 72. DavidEltiset al., TheTrans-Atlantic SlaveTrade: Databaseon CD-Rom A (NewYork:

The Presses Florida, of (Gainesville: University 1976).

dos a Cuba?(Havana: Editorial CienciasSociales,1977),estimates up to 1790around de that to 100,000 slaves enteredthe island,compared some 700,000 duringthe 1800s. 73. On this, see the interesting debatebetweenMorenoFraginals, ingenio,2:7-90, and El 74. Moreno El SlaveSociety, 59-126; Robert Fraginals, ingenio,1:126-33,2:7-90; Knight, Paquette, Sugar Is Made with Blood: The Conspiracy of La Escalera and the Conflict between

Cambridge University Press, 1999); Juan Perez de la Riva, j Cudntos africanosfueron traf-

Princeton Press,1985). (Princeton: University

Rebecca J. Scott, Slave Emancipation in Cuba: The Transition to Free Labor, 1860-1899

Slave Law and Claims-Makingin Cuba

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The impactthatplantationslaveryhad on colonial society can be hardBut ly overemphasized. it would be erroneousto assume that traditional It legal andsocial customsvanishedovernight. is in this areathatadditional research badlyneeded.The availablescholarship, is however,has empirical established threeimportant thatbearon this analysis.First,the planpoints tationsystem was never able to cover the island as a whole. In partdue to the limitationsimposed by the British on the slave tradefrom the early nineteenth century,slave importsinto Cubacame to a halt in the 1860s.75 Fromtheiroriginallocationin Havana's hinterland, sugarplantations spread towardMatanzasand southernLas Villas, in the centerof the island, but were almostnonexistentin the easterndepartment. the easternprovincIn es of Camagileyand Orientesugarwas not massively produceduntil the earlytwentiethcentury.By the 1850s, only 5 percentof Cubansugarwas producedin these provinces.76 Not surprisingly, demographic the makeupof the easternprovinceswas very differentfromthatof westernCuba.Between 1792 and 1861 the prodeclinedsignifiportionof freedmenandwomenin the westernpopulation cantly,from 19 percentto 13 percent.Conversely,in the east the relative of importance the free populationof color increasedduringthe nineteenth to century, 29 percentin 1861. In this area,conditionsremainedfavorable for traditional formsof slave exploitation subsistwell into the nineteenth to refersto slaveryin nonplancentury.Indeed,CubanscholarJorgeIbarra tationOrienteas "patriarchal."77 Second, free blacks and mulattoscontinuedto representa sizeable, alof thoughdecliningproportion the totalpopulationof the colony.Between the 1820s and 1840s theirpercentage the population a whole declined in as to 15 percent-the lowest in nineteenth-century Cuba-but the community kept growing in absolute terms. This cannot be attributedto natural growth alone. Despite the expansion of plantationslavery and growing racialpolarization, rightto self-purchase the continuedto be exercisedin Cuba.In theirstudyof the slave market Cuba(1790in nineteenth-century 1880), Bergad,Iglesias, and Barciafound thatcoartado slaves represented 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 Racial 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, ingenio,3:59. El 77. JorgeIbarra, en orientaly "Regionalismo esclavitudpatriarcal los departamentos y centralde Cuba," Anales del Caribe6 (1986), 22-52.

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to the percentageof coartadosin the slave populationat large,thentradiin tional avenuesfor freedomremainedentrenched Cubancolonial socieven at the height of the plantationperiod. Only a fractionof these ety their to slaves wouldbe able to completethe paymentsrequired purchase customremainedin full effect and total freedom,but this traditional legal seems to have been widely used.78 Third,it seems clear that most of these coartados were urbanslaves. withintheisland, not Plantation slaverymagnified only regionaldisparities butcreatedbasicallya dualslave systemeven withinwesternCuba.Slaves to on plantations generallyhad few opportunities claim any rights,while to those employedin the urbanareascontinued access colonialinstitutions had with some success.As Knightremarks, "legalregulations some meanand effect in the towns."Urbanslaves were a significantminorityin ing Cuba:about20 percent,accordingto the various mid-nineteenth-century of estimatescompiledby Knight.The unequalgeographicdistribution the for further enhancedits visibility andimportance, almosthalf of all group urbanslaves in the islandlived in Havana.79Manyof these slaves continued to makea living throughthe hiring-outsystem and some were able to save enoughto purchasetheirfreedom,as they had done in previouscenand theiraccess turies.Theircloseness to colonial institutions authorities, in and to Africancabildos and religious brotherhoods, theirparticipation into colonial the monetaryeconomy togetherfacilitatedtheir integration society, symbolizedabove all by the sizeableclass of small entrepreneurs of color who lived in the main urbancenters.80 for domainsome opportunities slave claimsOutsidesugar'simmediate evidenceindicatesthat,in the citcontinuedto exist. Fragmentary making in ies, some slaves continuedto appealto colonial authorities pursuitof to Whenin 1855a royalofficialcomplained the towncountheirfreedom.81 cil of Santiagode Cubathat slaves obtainedtheir coartaci6ntoo easily, that authorities royaldecrees responded theywereonly enforcing municipal
78. Bergad,Iglesias,andBarcia.TheCubanSlaveMarket,122-31. Visitorsto the island For referred this institution. some examples,see LouisA. Perez,Slaves,Sugto frequently
ar, and Colonial Society: Travel Accounts of Cuba, 1801-1899 (Wimington: SR Books,

1992). 79. Knight,Slave Society,62-63; Marrero, Cuba,9:208. El the 80. Concerning urbanfree populationof color, see PedroDeschampsChapeaux,
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

and five hundred cases in which slaves petitionedauthorities the courtsin the 1770-1870 Civil. ThesepetitionsusuSuperior periodin just one sectionof theANC, thatof Gobierno ally revolvedaroundtwo issues: theirfreedomor coartaci6nand changingownersdue to abusesor otherreasons.

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367

and laws about the subject.82 These laws, the developmentof plantation continuedto upholdthe traditional legal princislaverynotwithstanding, theirfreedomandhadthe rightto thatslaves were entitledto purchase ple Following the spiritof the suspended1789 appealto colonial authorities. black code, a slave ordinanceapproved the captaingeneralof the colby of ony in 1842 stipulatedthe appointment an official protectorof slaves, themin litigationsandother the sindico procurador, was to represent who officialacts.Althoughit is impossibleat this pointto evaluatehow frequent or effectivewas the intervention thesesindicos,it is clearthatsomeurban of At slaves managedto engage their support.83 least in theory,the sindicos were obliged to pursueany requestfor freedom.As a sindico in Santiago de Cubaassertedin 1829, once he had been informedaboutthe possible rightto freedomof a slave, he "couldnot overlookit."84 It is also worthnotingthat,although plantation slaveryhad transformed doctrinal the island,slave laws continuedto show a remarkable continuity The 1842 ordinance with the Iberiantraditional statutes. upheldthe whole and rights:self-purchase coartaci6n, panoplyof slaves' limitedtraditional Furmarriage, baptism,andto changeownersin case of physicalabuse.8" as thermore, late as the mid-nineteenth centuryCubancourtsinvokedLas That historiccodesin theirverdicts.86 sugarplanPartidas otherSpanish and traditional formsof slave claims-making tationswere not ableto obliterate studied Rebecca is evidenced theveryprocessof abolition, by by masterfully and Scott.A processthatcolonialauthorities soughtto enactgradually under strictcontrolfrom above was sped up by the slaves themselves,who resourcesin conjunction with extraleused availablelegal andinstitutional
82. Emilio Bacardiy Moreau,Cr6nicasde Santiagode Cuba(Madrid: 1973), Breogain,

3: 159.

la Francisca Paula,1830.ANC, de 83. Fora few examples,see Libertad pretende parda que Audienciade la Habana, 24, no. 312; Dimas Chavezpor la libertadde su madre,1866. leg. de al ANC,Gobierno Civil,leg. 968, no. 34211;Incidente intestado Dn. LuisMinet, Superior In1833. Archivo Provincialde Santiagode Cuba(hereafter APSC), Juzgadode Primera Audienciade la Habana,leg. 1, no. 65.

de criminal lesiones la negra 1879. Criolla, ANC, stancia, 379,no.9;Causa Agripina leg. por la Nicolas. de Procurador General reclama libertad negro del 84.ElSindico Santiago Cuba,
1829.APSC, Juzgadode Primera Instancia, 379, no. 3. leg. de 85. For a discussionof the "Reglamento esclavos"of 1842 see Knight,Slave Society, 126-32; Ortiz,Los negrosesclavos, 339-43, 439-52.
venido Cano and Federico de Zalta, Libro de los Sindicos de Ayuntamiento y Juntas Protec-

dr6sy JustoMena,"Havana1864. ANC, Miscelinea de Expedientes,leg. 1391, A; Bien-

criminal Ancontra 86.Fora few examples criminal cases,see "Expediente concerning

del torasde Libertos(Havana: Azoy, Colecci6n Imprenta Gobierno,1875);AntonioAndr6s El de causas criminales,2 vols. (Matanzas: 1868); Ortiz,Los negros Imprenta Ferrocarril,

349. esclavos,

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LawandHistory Summer 2004 Review,

gal strategies.Clearly,some slaves had the knowledgeand culturalskills of neededto seek the enforcement these potentiallyfavorablelaws.87 One need not romanticizethe experienceof slaveryin the Spanishcolonies to realize that underSpanishlaw slaves, dependingon theirlocation in the productivestructure the specific phase of developmentof and the slave system, were able to claim some rights and to createsome avenues for advancement.Slave law was never able to effectively protect theirphysicalintegrityor well slaves fromabuses,muchless to guarantee But those slaves who became familiar with colonial institutions being. could, despitesignificantobstacles,appealto an authority higherthantheir master to press for some of the rights containedin Spanish law. As an Americanvisitor to the island exclaimed in 1855, in Cuba therewas "a master.., above the masters."88 These laws, and the potentialfor slave claims-making thatthey generated, did not exist in BritishAmerica or in the United States South, as Tannenbaum were pointedout. In the Iberiancolonies these opportunities limited,even for slavesnot subjectto the dehumanizing always experience of plantation but agriculture, they existed. UnderEnglishlaw, conversely, slaves had "no legal identity,no right to family life, leisure time or religious instruction,and no access to legal institutionsfor purposesof protest or litigationagainstmasters."89 Unlikethe UnitedStateswhere,according to Ira Berlin, masters'rights to free their slaves "shrankas slavery in not expanded," Cubathis powerwas neverrestricted, even at the height of the slave-basedplantation system.ThusBritishAmericadid not develof op, as the Spanishcolonies andBrazil did, a large free population color.90 the Spanishcolonies self-purchase manumission In and were always
87. Scott, Slave Emancipation.

88. WilliamH. Hurlbut,Picturesof Cuba(London:Longman,1855), 102. in in 89. HilaryMcD. Beckles, "SocialandPoliticalControl the Slave Society," TheSlave Societies of the Caribbean,ed. Franklin Knight(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: UniversityPress,1981);ThomasD. Morris,Southern Slaveryand the of Slave Law,1619-1860 (ChapelHill:The University NorthCarolina Press, 1996);Watson,
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 Southand the
Nation," The Journal of Southern History 59 (1981): 969-98; Ariela J. Gross, Double Character: 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:

Pantheon on see Books, 1974), 138. On restrictions manumission, also Arthur Howington, "'A Property Special andPeculiarValue':The TennesseeSupremeCourtandtheLaw of of
Manumission," in Law, the Constitution, and Slavery, ed. Paul Finkelman (New York: Gar-

assessmentof this questionin LatinAmerica,see land, 1989), 210-23. For a comparative

Slave Law and Claims-Makingin Cuba

369

a possibility,protectedby the laws and social customs.This impliedthat slavery was not an inexorablepermanentstatus. Even in the nineteenth centuryit is difficult to imagine a court in Cuba declare, as a judge in Georgia did in 1839, that "neitherhumanity,nor religion, nor common to justice,requiresus to sanctionor favordomesticemancipation, give our slaves theirliberty."91 Whetherthese conditionsguaranteed the transition that from slaveryto also citizenshipwould inexorablytake place, as Tannenbaum claimed,is an altogetherdifferentquestion.Emancipation not resultin the extendid sion of even the most basic rights of citizenshipto the formerslaves and theirdescendants most of LatinAmerica.In Cubathis transition take in did place, but only afterthirtyyears of anticolonialstrugglein which whites and nonwhites participated.The wars creatednew grounds for claimsmakingand reinforcedold ones. As the nationalistleadershipand the colonial government of competedfor the support blacks,the slaves andtheir descendantsfound ways to access new social spaces and to assertrights 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). 92. For a discussionof the complexintersections betweenthe wars of independence, the and process of slave emancipation, the creationof a cross-racialnationalistcoalition, see For of Press,1999);Scott,SlaveEmancipation. a discussion blacks' versityof NorthCarolina activismandclaims-making the earlyyearsof the republic,see the recentvolume edited in MartinezHeredia,RebeccaJ. Scott, and OrlandoF. GarciaMartinez,Espaby Fernando See also RebeccaJ. Scott, "Reclaiming Mule:The Meaningsof Freedomin the Gregoria's ArimaoandCaunaoValleys,Cienfuegos,Cuba,1880-1899,"Past andPresent170 (Februin ary2001): 181-217, andRebeccaJ. Scott andMichaelZeuske,"Property Writing, Propof erty on the Ground: Pigs, Horses,Land,andCitizenshipin theAftermath Slavery,Cuba,
1880-1909," Comparative Studies in Society and History 44 (2002): 669-99. cios, silencios y los sentidos de la libertad: Cuba entre 1878 y 1912 (Havana: Uni6n, 2001). Ada Ferrer, Insurgent Cuba: Race, Nation, and Revolution, 1868-1898 (Chapel Hill: Uni91. Quoted in Tushnet, The American Law of Slavery, 21.