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Slave Codes

Slave Codes


During the fifteenth century, as Portuguese explorers and traders moved down the Atlantic coast of sub-Saharan Africa, the Atlantic slave trade was legally justified by the papacy of the Roman Catholic Church as an extension of the Spanish Reconquest: a means to convert Muslim and other non-Christian Africans to Christianity. During the first two centuries of the Atlantic slave trade (c. 14401640), the Portuguese crown enjoyed and profited from the monopoly of trade in sub-Saharan Africa sanctioned by the pope.

Iberian law was deeply influenced by Islamic slave law, which was derived from the Qur'an. It was quite complex and contained provisions for humane treatment of slaves. It recognized several distinct, named forms of slavery, including the status of the partially free and their right to own part of their time as well as their production during their free time. Muslims were not to be enslaved. Slaves were usually non-Muslim captives taken in clearly defined, just wars. It gave positive encouragement to manumission.

During the thirteenth century, Toledo, Spain, was a major center for translations of works from Arabic and Hebrew into Latin. These Latin translations were often presented as original works. Although historians have long attributed the slave law of the Siete Partidas of King Alfonso X to Roman and sometimes to Visigothic law, these attributions need to be questioned. In Visigothic law, the distinction between slave and "free" dependents was un-clear. Roman law did not define a "just" war, nor did it touch upon the relationship between masters and slaves or the care or treatment to which slaves were entitled. Roman law gave the master the right to free the slave, but it neither encouraged nor discouraged this process. Roman law focused on defining the slave as a form of property and clearly stated that all the property of the slave belonged at all times and circumstances to the master. This element of Roman slave law can be found in the Siete Partidas, but it is contradicted by other provisions in the same law.

The relevance of the Siete Partidas to Iberian slave law in the Americas has been exaggerated. It dealt with domestic slavery and was grounded in feudal principles. It referred to slaves as "serfs" (siervos) and never used the word "slave" (esclavo). It stated that human beings were naturally free and servitude was contrary to nature. It gave masters full power over their siervos, but they were not allowed to starve them. In addition, they could not wound or kill them without a judge's order unless a slave was caught in sexual relations with the master's wife or daughter, in which case the master had the right to kill him. Slaves who were starved or gravely injured by masters had the right to complain to a judge, who could force them to be sold to another master. Neither Jews nor Moors could own Christian siervos. There were no provisions preventing the separation of families of siervos. The best explanation is that children born in the house of the masters (señores) were automatically free. An echo of this assumption can be found in several manumission documents from Spanish Louisiana that explained that a slave was being formally freed for having been born in the master's house. But the silence in Iberian law about protection of the family resulted in the highest level of slave family breakup in the Spanish American colonies, higher than in French and even in British colonies.

The crowns of Spain and Portugal were merged between 1580 and 1640, and African slavery began to develop in Brazil after this merger. The Siete Partidas of King Alfonso X was in theory relevant to both Portuguese and Spanish America. The Portuguese Manueline Ordinances of 1521 had little relevance to Portuguese America. They required the baptism of all black slaves and contained some very specific marketing regulations applying to finders of lost birds, slaves, and other property, but they were silent about treatment of slaves by masters. Portuguese wealth derived overwhelmingly from taxation of international trade and the creation of far-flung trading posts throughout the world. The bureaucratic and religious reach of the Portuguese empire was therefore weak. In early colonial Brazil, Portuguese settlements remained largely on the coast until the discovery of gold and diamonds in the interior at the very end of the seventeenth century. Laws protective of slaves, including the slave family, were promulgated in Bahia, Brazil, in 1720. They were contained in a large, general code called Constituições do Arcebispado da Bahia de 1720, which emerged from a meeting of priests. It provided that a master could not prevent his slaves from marrying and could not separate the members of slave families. These protective measures arose out of conditions in Brazil, where slaves were frequently married in the church.

In early Spanish America from the earliest years of colonization, the bureaucratic and legal arm of the metropolis reached far into the interior, where mining of precious metals was the major source of wealth. Nevertheless, there were very few laws or legal cases in Spanish America demonstrating royal concern with the protection of black slaves. Spanish law in the Americas focused on protection of Indians, not blacks. Indian slavery was outlawed, and slave law focused almost entirely on the policing rather than the protection of black slaves and on minimizing their contacts with and influence upon Indians. The Spanish slave code of 1789 containing protective regulations for slaves was copied to a great extent from the French Code Noir but without its clauses protecting the slave family. The 1789 Spanish code was successfully and formally abrogated by enraged colonists throughout the Spanish empire shortly after it was promulgated, and its protective provisions continued to be suppressed in the Spanish empire throughout the nineteenth century.

Misinformation has been widely spread by historians who deny the severity of slavery and racism in Latin America. In medieval Iberia, Slavic peoples rather than blacks were viewed as natural slaves. Indeed the word for slave, esclavo, means "Slav." But in Spanish and Portuguese America, slavery quickly became associated with blacks, and antiblack racism became and remains very powerful. Aside from varying legal traditions, the intensity and forms of racism throughout the Americas varied over time and place depending on a number of important factors. White blood in the subaltern population carried much more weight in French, Spanish, and Portuguese America than it did in the British mainland colonies that later became part of the United States. In Spanish and Portuguese America, corporatism was the foundation of law. It made legal and social distinctions based on comparative amounts of white blood within the population and the number of generations individuals were removed from slavery.

Thus, Iberian law made important distinctions among nonwhites, a very efficient mechanism of social control in societies where the Spanish and Portuguese were usually a small minority. Except in strategic colonies and at times and places where blacks and mixed bloods were especially needed for police and military reasons, the enforcement of legal protection of slaves and encouragement of manumission by colonial authorities were spotty. During the Latin American wars for independence, many mixed-blood and black slaves were manumitted by both sides in return for military service. Thus, colonial administrators in Ibero-American colonies used free black and mixed-blood layers within the subaltern population to control the slaves. Unlike Ibero-America, British America tended to lump all peoples with any degree of African ancestry together. Some scholars from the United States, impressed by these formal contrasts with racism in their own country, have at times unjustifiably accepted Spanish, Portuguese, and elite Latin American myths of mild slavery and benign race relations in Latin America. But throughout the Americas, restrictions on manumissions and racially exclusive attitudes increased over time.

British colonizers in the Americas lacked a tradition of slave law upon which to build. British law was based on common law rather than legal codes. British slave law was established over time through precedents set by case law. Early preoccupations were the distinction between slavery and indentured servitude and whether slaves who converted to Christianity must be freed. Once slaves were defined as property, what kind of property were they? Were they real estate attached to the land, or were they chattel to be mortgaged, inherited, and/or sold separately from the land, a process that undermined primogeniture? Could slaves brought to England, where slavery did not exist, be forced to return to America with their masters and returned to slavery against their wills?

French slave law was again different. Slavery did not exist in France, and the influence of Roman slave codes was not great. The Code Noir was first promulgated in 1685 for the French West Indies after a careful study of the conditions existing in these colonies. This code was eminently practical. It focused upon how to control the slaves through police measures, established the obligations of masters to feed and clothe their slaves, and restricted the master's right to punish the slave. These protective measures did not stem from humanitarian concerns. They were aimed at controlling mistreatment and exasperation of slaves to avoid theft, running away, and revolts. The original Code Noir encouraged manumission of slaves and gave full rights of French citizenship to all slaves manumitted in French colonies. It provided that masters, regardless of race, had to free and marry their slave concubines and free the children born of these unions or they would be confiscated for the benefit of charity. The first version of the Code Noir was promulgated when effective occupation was the basic principle determining which European power would possess a particular Caribbean colony. It was intended to increase the population considered French.

The Code Noir was modified for Louisiana in 1724. It was reissued several times and changed by royal decree for French colonies throughout the eighteenth century. Manumission became increasingly restricted over time. Nonwhites were increasingly discriminated against and could not, in theory, inherit property from whites, a provision that was totally ignored in Louisiana, as well as in the French West Indies. Mixed-blood elites arose in both Louisiana and in the French Caribbean, creating three-tiered societies in which the colored elite played a major role in the economy and culture. The free colored elite in Saint Domingue/Haiti initiated the Haitian Revolution, attempting to use the slaves for their own military purposes. But the slaves revolted against both the white and colored elites, destroyed slavery, and declared the second independent nation in the Americas. One of the greatest achievements of the French Revolution, inspired and enforced by the slave revolt in Saint Domingue/Haiti, was the unanimous vote in the French General Assembly in 1794 outlawing slavery in all French colonies and giving full rights of French citizenship to the former slaves. This legislation was annulled by the Napoleonic reaction in France. Fear of slave revolts inspired by the Haitian Revolution became a major factor in sharply restricting manumission of slaves and increasing racial discrimination during the nineteenth century in the United States and in Cuba as their slave plantation systems reached their highest levels of wealth, power, and influence.

Criticism of the widely held myth of benevolent slavery and mild race relations in Latin America is growing. This myth arose as a justification for slavery in Latin America. It has been widely disseminated by mainly white historians in the United States, as well as by a few scholars in Latin America. This myth makes it hard to combat antiblack racism in Latin America because its very existence is denied. It is now being forcefully rejected by the Afro-Latino population throughout America, including in the United States.

See also Black Codes

Bibliography

Finkleman, Paul, ed. Slavery and the Law. Madison, Wis.: Madison House, 1996.

Hall, Gwendolyn Midlo. Social Control in Slave Plantation Societies: A Comparison of St. Domingue and Cuba. Baltimore, Md.: Johns Hopkins University Press, 1971. Reprint, Baton Rouge: Louisiana State University Press, 1996.

King, P. D. Law and Society in the Visigothic Kingdom. Cambridge, UK: Cambridge University Press, 1972.

Lang, James. Portuguese Brazil: The King's Plantation. New York: Academic Press, 1979.

Ordenações Manuelinas (Manueline Ordinances). Complete text in Portuguese available from <http://www.uc.pt/ihti/proj/manuelinas>.

Pottonaiis, Dandrea de. Las Siete Partidas. Vol. 2, Partida Quarta. Salamanca, Spain: 1555.

Watson, Alan. Roman Slave Law. Baltimore, Md.: Johns Hopkins University Press, 1987.

Willis, John Ralph, ed. Slaves and Slavery in Muslim Africa: Islam and Ideology of Enslavement. London and Totowa, N.J.: F. Cass, 1985.

gwendolyn midlo hall (2005)

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