Legal personality and the processes of slave liberty in early-modern New Spain

Abstract

This article examines several court cases in which slaves in seventeenth-century Mexico litigated to gain their liberty. Revisiting the Tannenbaum thesis regarding slave moral and legality personality, the article seeks to understand how litigation actually worked and what effects it can be seen to have had in individual slaves' lives. Historians have often referred to the outcomes of legal proceedings, or used court records as libraries of historical detail about the lives of plaintiffs, defendants and witnesses. Less commonly have such documents been read as contingent legal processes driven by procedure and by the decisions and actions of participants. By careful attention to the specifically legal aspects of cases before three different Mexico City tribunals, the chapter proposes a methodological approach that sees outcomes explicitly in terms of the tortuous procedural paths that led to them. The bulk of the article involves a series of close readings of cases in which slave litigants succeeded, failed, ended up with an ambiguous result, or got caught red-handed trying to manipulate the process. Such diverse outcomes suggest the breadth of possibility slaves faced in legal proceedings. They indicate as well law's centrality to defining a sphere of slave autonomy through the idea of slaves' legal personality. Finally, these cases hint at the role law and litigation played in sustaining slaves' moral imaginations and promoting a sense of connection to core values of the colonial social order.

Keywords:

• law
• litigation
• slavery
• colonialism
• Mexico

Notes

 1. Bennett, Africans in Colonial Mexico, 2.

 2. Tannenbaum, Slave and Citizen, viii, 42–3.

 3. See Holt, “Slavery and Freedom”, 33–44; Patterson, Slavery and Social Death.

 4. See, e.g., Bryant, “Enslaved Rebels”; Lewis, Hall of Mirrors; Villa-Flores, “To Lose One's Soul”; Chaves, “Slave Women's Strategies for Freedom”; McKnight, “Blasphemy as Resistance”; Owensby, “How Juan and Leonor Won Their Freedom.

 5. Bennett shows how attentive slaves were to marriage status. See Bennett, Africans, chapters 4 and 5.

 6. Soulodre-La France, “Socially Not so Dead”.

 7. Studies such as Bryant's and McKnight's have begun to point in a new direction. Borah's Justice by Insurance opened up this field with regard to Indian litigants a quarter of a century ago. My own Empire of Law renews Woodrow's concerns and extends them to the cultural and political realm in an effort to understand the indigenous experience of Spanish law in the seventeenth century.

 8. Thibault and Walker, “A Theory of Procedure”.

 9. Las Siete Partidas, vol. III, 533 (prologue to third partida); vol. III, 536 (part. III, tit. II).

10. Tau Anzoateguí, Casuismo y sistema, 40, 53, 57. I do not discount the ever-present threat of corruption, though in the cases I have looked at, I have seen little evidence of it. See also note 17, below.

11. Las Siete Partidas, vol. III, 534 (part. iii, tit. i, law i).

12. This did not imply modern universal equality – slaves were entitled to the rights of slaves – but it did imply a powerful levelling when litigants came before a court of law, where procedure applied equally to all parties. In the New World, the law governing slaves derived partly from the Roman law of slavery. See generally, Buckman, The Roman Law of Slavery and Watson, Roman Slave Law. A general treatment of slave law in the Spanish New World can be found in Watson, Slave Law in the Americas, ch. 3.

13. See, Sandoval, Un tratado; Solórzano y Pereira, Política indiana, vol. I, 180 (lib. 2, cap. 1, no. 21).

14. Las Siete Partidas, vol. III, 788 (part. iii, tit. xxii, law xviii); vol. V, 1478 (part. vi, tit. xxxiv, law i).

15. Recopilación, tomo II, 286r (lib. vii, tit. v, ley viii).

16. There is a geographic bias to the cases examined here. Law was not in principle different outside the hub of central Mexico, though it was less densely present and more often subject to local variation. See Cutter, The Legal Culture.

17. For the Inquisition in the seventeenth century, see Alberro's Inquisición y sociedad and her La actividad del Santo Oficio. The mid-seventeenth century was also a period of challenge, reform and political contest regarding the Inquisition, which had come under investigation for alleged corruption in the early 1640s. See Greenleaf, “The Great Visitas”. The audiencia was the highest secular appeal court in Mexico and in certain cases functioned as a court of first instance.

18. I have written elsewhere regarding what slaves may be thought to have known about legal proceedings. See Owensby, “How Juan and Leonor Won Their Freedom”. Slaves, and especially urban slaves, may have had other ways of becoming familiar with law and its processes. Although a comparable study has not been done for Mexico, Daisy Rípodas Ardanaz has shown that in colonial Buenos Aires law was a matter of wide public knowledge, spoken of in the streets, and featured in theatre, poetry, sermons and even villancicos (popular songs). Nor does this popular knowledge appear to have been confined to the upper strata of society, for as she notes, public performances in theatres, churches and the streets were attended by “ample” and “heterogeneous” sectors of the populace. See Rípodas Ardanaz, “Popularidad de lo jurídico”.

19. Testimonio de los autos hechos a pedimento de Leonor de los Reyes mulata sobre pretender deber ser declarada libre y no sujeta a cautiverio en virtud de ciertos ynstrumentos que le otorgaron Melchor y Francisco Arias Thenorio sus Amos y Dueños del Ingenio de Amanalco, 1660. Archivo General de Indias (AGI)/AHN, Inquisición, 1727, exp. 6/2.

20. AGI/AHN, Inquisición, 1727, exp. 6/2, 16v–18v.

21. Demanda de Juan Clemente y otros esclabos que fueron de Pedro de Soto López, Alguacil maior deste Sancto Oficio, ya difunto contra los bienes de dicho Alguacil maior sobre su libertad. AGI/AHN, Inquisición, 1727, no. 2.

22. They went to the Inquisition chiefly because their master had been a “familiar” of the Inquisition, and was thus subject to the Inquisition's jurisdiction.

23. Solórzano y Pereira, Política indiana, vol. II, 1051 (lib. 3, cap. 26, no. 43).

24. AGI/AHN, Inquisición, 1727, no. 2, 54r–55v.

25. See the following cases in which the Real Fisco determined the monetary value of a slave: Archivo General de la Nación (AGN)/Real Fisco de la Inquisición (RFI): vol. 17, exp. 15, ff. 249; vol. 18, exp. 1, ff. 1–16; vol. 20, exp. 5, ff. 93–97; vol. 49, exp. 4, ff. 40–67.

26. Villa-Flores, “To Lose One's Soul”, 448.

27. AGI/AHN, Inquisición, 1727, exp. 6/2, 9r.

28. AGI/AHN, Inquisición, 1727, no. 2, 106r–122r.

29. AGI/AHN, Inquisición, 1727, exp. 6/2, 56v.

30. Francisco de Haro becino y mercader desta ciudad contra Los bienes de Juan de Morales Sosa y doña María González su muxer sobre la libertad de Phelisiana negra en birtud de escriptura presentada que otrogo Marcos Perez bezino y mercader desta dicha ciudad. AGN, RFI, vol. 41, exp. 20, f. 200r–234r.

31. We cannot know what prompted this apparent generosity. We can conjure any number of scenarios: that Feliciana was Pérez's daughter with Ysabel; that Ysabel and Pérez became lovers after Feliciana's birth and that Ysabel had prevailed upon Pérez to free her daughter; that Pérez had intimations of mortality and decided to do something that God would later look favourably on. These are the sorts of things that are almost always beyond the record.

32. AGN, RFI, vol. 41, exp. 20, f. 203r–v. Roman law debated the question of conditional grants of liberty, though few of the legal subtleties of those doctrines appear here. See Buckman, The Roman Law, 621–36.

33. AGN, RFI, vol. 41, exp. 20, f. 209r–210r, 212v.

34. AGN, RFI, vol. 41, exp. 20, f. 215r.

35. AGN, RFI, vol. 41, exp. 20, f. 218r.

36. This term, statu libera, has its roots in Roman law. See Buckman, The Roman Law, 286ff and Watson, Roman Slave Law, 34 and 71. It is worth noting that Haro invoked this principle even though he was not himself a trained procurador. He may have been trying to impress the court with his erudition in order to strengthen his position. This hints at the centrality of Roman legal principles in Spanish America's legal understanding of slave law. I am grateful to an anonymous reviewer for raising this intriguing possibility.

37. AGN, RFI, vol. 41, exp. 20, f. 221r–222r.

38. AGN, RFI, vol. 41, exp. 20, f. 223r–224v.

39. AGN, RFI, vol. 41, exp. 20, f. 233v.

40. Leonor Negra esclava que fue de Pedro de Soto escrivano real sobre Pretender la libertad de un hixo suyo. AGN, Bienes Nacionales (BN), leg. 79, exp. 14, f. 2v.

41. AGN, BN, leg. 79, exp. 14, f. 15r–17v.

42. AGN, BN, leg. 79, exp. 14, f. 14r.

43. AGN, BN, leg. 79, exp. 14, f. 22r–23v.

44. Proceso y causa contra Ramon Gonzalez mulato esclavo de Jullian Ruiz de Posada por blasfemo y perjuro. AGN, Inquisición (Inq.), vol. 583, exp. 4, f. 390r–519r.

45. On slave blasphemy, see Alberro, La actividad del Santo Oficio; McKnight, “Blasphemy as Resistance”.

46. AGN, Inq., vol. 583, exp. 4, f. 391r–v.

47. AGN, Inq., vol. 583, exp. 4, f. 436r–438r.

48. AGN, Inq., vol. 583, exp. 4, f. 493v.

49. AGN, Inq., vol. 583, exp. 4, f. 506r.

50. We cannot know if they planned to keep that promise.

51. It is unlikely in the extreme that Ramón was telling the truth about his “enemies”, and that when threatened with torture he simply decided to tell the inquisitors what they wanted to hear. It is possible that, in his excitement at the prospect of liberty, he heard more than Díaz had said and then embellished it in telling the tale to others; after all, the inversion of a master and his son kneeling before a slave, putting themselves at his mercy while offering him freedom, is almost an archetypal slave fantasy.

52. AGN, Inq., vol. 583, exp. 4, f. 457r–v.

53. AGN, Inq., vol. 583, exp. 4, f. 456r.

54. See note 8, above.

55. Bennett, Africans, 27.

56. See, e.g., Bryant, “Enslaved Rebels”; Gutiérrez Brockington, “The African Diaspora”; Townsend, “Half My Body Free, the Other Half Enslaved”; Lavalle, “Lógica esclavista y resistencia negra”; Townsend, “En busca de la libertad:”; Klein, African Slavery, 189–215; Davidson, “Negro Slave Control”.

57. I cannot take up the controversy regarding the comparative element of Tannenbaum's thesis. I leave this issue to Holt (“Slavery and Freedom”) and others.