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FORUM: RESPONSE


Slavery and the Law: A Reply

Alejandro de la Fuente


I have come to learn that unless one does it in unabashedly critical terms, including "slavery" and "Tannenbaum" in the same sentence is an intellectual exercise fraught with perils. The sole mention of Tannenbaum elicits images of benevolent Spanish and Portuguese masters in contrast to cruel Anglo-Saxon slaveowners, or of rigid dichotomies between racist North America and racially harmonious Latin America. These images clearly influence the comments of my critics, even though they have limited relevance for the central arguments of my article.1 1
      First of all, a confession: I am not personally invested in a defense of Frank Tannenbaum or of his scholarship. I use his work because since its publication Slave and Citizen has shaped much of the debate concerning the relationship between slavery and the law in Latin America—my subject of interest. I believe that, in this debate, the critics of Tannenbaum often went too far, some of them claiming that legal structures were basically irrelevant to understanding the experience of slaves in Latin America. Others emphasized the commonalities of slavery across the Americas to such a degree that the very "variability and contingency" that Christopher Schmidt-Nowara rightly calls for was sacrificed. 2
      Second, a disclaimer. My colleagues give me too much credit when they assert that my article opens "a new round" of this debate, as María Elena Díaz puts it. As I mention there, Tannenbaum's ideas are part of the academic conversation today. Scholars of slavery in Latin America (and Florida and Louisiana) frequently refer to some of his arguments, and not always to dismiss them. In this sense we are not "beyond Tannenbaum," to use Díaz's expression. 3
      And for good reasons. Tannenbaum's emphasis on the law was not without merits, for the legal order was part of the larger structures of power in which slaves, masters, colonial authorities, and others operated. This is one of the central arguments of my article, one that curiously neither Schmidt-Nowara nor Díaz openly dispute. Instead, the former concentrates on the comparative dimension of Tannembaum's work, which I think is fair to say is not central to my approach. Schmidt-Nowara also raises important questions concerning the plantation economy in Cuba, some of which I will try to address below. Díaz, on the other hand, comes closer to disputing the value of the law to study slavery when she refers to "ancient peninsular law," to sacraments such as baptism and marriage, and even to manumissions as "standard questions" that, one gets the impression, are not worth asking. 4
      Yet, particularly for many slaves, these issues were crucial. The laws by themselves may not have meant much (and even this is debatable) but enterprising slaves or those lucky enough to have a privileged occupation or position in society could activate some legal resorts to their advantage. Slave laws sought to enforce social (and frequently racial) hierarchies that confined black slaves to the bottom of society and marked their inferiority. But they could be turned into opportunities by slaves pressing for rights, seeking a modicum of protection versus the most extreme forms of abuse, and perhaps even trying to escape slavery altogether. I use the notion of claims-making to place the emphasis on slaves' initiatives and to try to bridge the gap between the prescriptive aspects of the law and its concrete application and social effects. 5
      Slaves were able to create opportunities under the law partly because of "the inherent contradiction of slavery," as David Brion Davis called it. These laws dealt with the intractable problem of how to regulate the lives of persons who had been turned into "conveyable possessions."2 But these opportunities were also related to the persistent invocation and applicability of Castile's traditional slave codes in the colonies. Some of these codes—the Siete Partidas are of course the prime example for this—dated back to medieval Castile and were created to regulate slavery in a seigneurial society. They were the product, as Blackburn puts it, of a society where slavery was "mainly domestic and temporary in character."3 Many immigrants in the New World came from areas where these forms of domestic slavery were widespread: Andalusia or Valencia in Spain, the Algarve or Lisbon in Portugal, Venice or Genoa in the Italian peninsula.4 These immigrants were familiar with Mediterranean urban slavery and with the legal cultures and mores that such societies had produced. 6
      In this sense, my argument can be hardly interpreted, as Schmidt-Nowara proposes, as one that places slavery in Cuba "into hermetically sealed times and spaces." Quite the contrary, I argue that these legal traditions matter, that they too crossed the Atlantic, and that there is sufficient evidence to claim that they were part of the legal arsenal invoked by the courts in the colonial world. As William D. Phillips, Jr., notes, this legal system was among the factors that "helped shape the development of ... slavery in the Americas."5 This is one of the central arguments of my paper, and it is one of Tannenbaum's main contributions. As the recent work of Olga López Vera shows, as late as the nineteenth century the Spanish Supreme Court routinely invoked the Partidas in cases concerning slavery.6 7
      There is another sense in which time and space are not "sealed" in my study. Instead of assuming that the growth of the plantation economy wiped out previous cultural mores or traditional forms of slave use, I argue that they persisted in nineteenth-century Cuba. Traditional forms of slave exploitation coexisted with the harsh economic and social realities of plantation agriculture. Time-honored legal and social customs did not vanish overnight. They continued to be practiced not only in eastern Cuba, where plantation agriculture had made little if any inroads by mid-century, but also in the urban centers of the west. Concerning the inside world of the plantations, or the interactions between plantation and nonplantation sectors, I agree with Schmidt-Nowara that important questions remain and that empirical research is badly needed to elucidate them. But nowhere in my article do I suggest that Cuba's "authentic" slavery was that of the cities or of the nonplantation countryside. These are Schmidt-Nowara's words, not mine. 8
      Let me finish with one brief example that illustrates the complex interactions between slaves, colonial authorities, and the law. On July 15, 1846, José Feliciano, described as criollo, José Rosario and Nazario, lucumís, Seferino, Matías, and Gabino, all carabalís, and Alejandro and Diego minas, walked out of the San Miguel sugar mill and presented themselves before the local justice in the town of Corral Falso, in Matanzas. The slaves had come "to complain against the administration" of the mill, arguing that they did not receive enough food, that they were forced to perform "excessive work," and that they did not get clothing or medical attention.7 9
      That slaves in a sugar mill at the peak of plantation agriculture in western Cuba felt that they were not being treated properly is of course not surprising. Yet the case is telling for various reasons. First, following an ancient tradition, the slaves felt entitled to appeal to a local justice for protection and redress. The local justice initiated a dossier taking the slaves' deposition in the presence of witnesses, as local justices in Spain and the colonies had done for centuries. But unlike his predecessors, he did not have the power to conduct judicial inquiries in rural estates without higher authorization. The impact of plantation slavery on the legal order is fairly obvious here. An 1842 circular issued by the captain general stated that the slave code of the same year, which prescribed the "good treatment" of slaves, did not allow justices to conduct formal inquiries in rural units or to interfere with their operations. In our case, however, the local justice's report resulted in a fact-finding visit by a higher official from the city of Cárdenas, who in fact intervened in the administration of the mill and addressed some of the concerns of the complaining slaves. The visiting official inspected the infirmary and the mill's food supplies, reporting that they were so spoiled that he had them thrown away. He also instructed the local justice—the same who had met with the slaves first—to buy new provisions and to charge them to the mill. But even a sympathetic official could only go that far, as his report resulted only in a warning to the owner of the mill that, in case of further complaints, the colonial government would proceed legally against him. 10
      In the most immediate realm, the brave slaves who had dared to complain had achieved at least a partial victory. Authorities had looked into the mill, the owner had been officially notified, better food was now available. But not without a price: once returned, the slaves had been punished, even though the administrator had been warned not do so. Those haunted by disturbing images of generous masters need not worry: making legal claims was as much a function of the slaves' courage and initiative as of a legal order which we need to understand much better. 11


Notes

1. See María Elena Díaz, "Beyond Tannenbaum," and Christopher Schmidt-Nowara, "Still Continents (and an Island) with Two Histories?"Law and History Review 22 (2004): 371–76, 377–82.

2. David Brion Davis, The Problem of Slavery in Western Culture (Ithaca: Cornell University Press, 1966), 62.

3. Robin Blackburn, The Making of New World Slavery: From the Baroque to the Modern, 1492–1800 (London: Verso, 1997), 51.

4. There is a growing scholarship about Mediterranean slavery that scholars of slavery in Latin America should become familiar with. For Spain see Alessandro Stella, Histoires d'esclaves dans la péninsule Ibérique (Paris: École des Haute Études en Sciences Sociales, 2000); William D. Phillips, Jr., Historia de la esclavitud en España (Madrid: Editorial Playor, 1990); José L. Cortés López, La esclavitud negra en la España peninsular del siglo XVI (Salamanca: Ediciones Universidad de Salamanca, 1989); Alfonso Franco Silva, La esclavitud en Andalucía, 1450–1550 (Granada: Universidad de Granada, 1992); Franco Silva, La esclavitud en Sevilla y su tierra a fines de la Edad Media (Sevilla: Diputación Provincial, 1979); Carlos Asenjo Sedano, Sociedad y esclavitud en el Reino de Granada S. XVI: las tierras de Guadix y Baza (Granada: Colegio Notarial, 1997); Debra Gene Blumenthal, "Implements of Labor, Instruments of Honor: Muslim, Eastern and Black African Slaves in Fifteenth-century Valencia (Spain)" (PhD diss., University of Toronto, 2000). For Portugal, see A. C. de C. M. Saunders, A Social History of Black Slaves and Freedmen in Portugal, 1441–1555 (Cambridge: Cambridge University Press, 1982); Jorge Fonseca, Os escravos em Evora no século XVI (Evora: Câmara Municipal, 1997). For Italy, see Steven A. Epstein, Speaking of Slavery: Color, Ethnicity, and Human Bondage in Italy (Ithaca: Cornell University Press, 2001).

5. William D. Phillips, Jr., "The Old World Background of Slavery in the Americas," in Slavery and the Rise of the Atlantic System, ed. Barbara L. Solow (Cambridge: Cambridge University Press, 1991), 43–61. The discussion concerning the continuities of this legal system can be framed within the larger context of the debate concerning the European precedents for the Atlantic Slave System. For an introduction to this debate see David Brion Davis, "Looking at Slavery from Broader Perspectives," American Historical Review 105 (2000): 452–66; Blackburn, The Making, 31–93; Philip D. Curtin, The Rise and Fall of the Plantation Complex: Essays in Atlantic History (Cambridge: Cambridge University Press, 1990), 3–28.

6. Olga López Vera, "La esclavitud en la jurisprudencia civil del Tribunal Supremo" (PhD diss., University of Navarra, 2001). I am grateful to the author and to her advisor, Professor Luis I. Arechederra, for sharing this valuable work with me.

7. Expediente sobre haberse presentado al capitán de Macurijes ocho negros del ingenio San Miguel. 1846. Archivo Nacional de Cuba, Gobierno Superior Civil, leg. 944, no. 33,303.

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