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How Juan and Leonor Won Their Freedom: Litigation and Liberty in Seventeenth-Century Mexico

2005; Duke University Press; Volume: 85; Issue: 1 Linguagem: Inglês

10.1215/00182168-85-1-39

1527-1900

Brian P. Owensby,

American Constitutional Law and Politics

In the early 1660s, a number of slaves in central Mexico sued for their freedom— and won. In the two cases examined here, the slaves pressed their claims following the death of their masters. The transcripts include all procedural wrangling, all court orders, all testimony, the judges' sentences and, in one case, an appeal. In one form or another, case reports such as these have been the piece de résistance of colonial Mexican historiography. Historians have feasted on the content of cases, especially the depositions of witnesses, to satisfy a hunger for insight into the social worlds that gave rise to them. Only rarely have scholars savored the record for the intricacies of procedure, the use of language, the burden of proof, the presentation of evidence, or the modes of legal reasoning—the stuff of law in practice.My goal is to unearth something of the always-contested ways people participated in and shared the experience of law and justice. In doing so, I take my cues from the well-established scholarship of legal anthropology, as well as from newer ideas regarding the ways law is embedded not only in social processes but also in people's reflection on and reasoning about the world.1 I wish to approach the law as a praxis by which the inevitable conflicts of societies—in this case, colonial Mexican society—are naturalized. Law, by its very nature, involves contestation and differing apprehensions of what constitutes a just outcome. This does not mean that we can afford to understand law exclusively in terms of conflict and the power brought to bear in its resolution. As legal scholar Steven Winter notes, "The intuitive sense that people in power get to determine various social issues may well be descriptively accurate—if not, at least, tautologically true. But it leaves entirely obscure the process of mediation by which this occurs."2In this article, I offer two examples of this process as it played out in a type of case where we might least expect "mediation" to have been relevant— slaves suing for their freedom. Precisely because they involve parties at opposite ends of the power spectrum, such cases are excellent testing grounds for a new conceptualization of the role of conflict and contestation in human convivencia. Because these cases deal with libertad—a central principle d of seventeenth-century Spanish law much written about in treatises of the period—they allow us to face the difficult methodological problems involved in understanding how people at all levels of the social hierarchy engaged legal principles and practices in seventeenth-century Mexico.Before confronting the cases themselves, we must consider the broader historiographical and conceptual frames across which they will be stretched. In the first half of the twentieth century, Latin American legal history sought to categorize, order, systematize, and chart changes in the written texts of law—the cédulas, ordenanzas, and bandos promulgated by the king and the Council of the Indies up to 1810, and the constitutions and statutes that followed independence.The study of Spanish law in colonial context—derecho indiano—focused almost exclusively on the institutional-juridical aspects of law and its philosophical foundations. Historians found much to celebrate in Spanish legislation that, at least on paper, protected Indians, regulated slavery, and maintained an enviable social equilibrium.3 Beginning in the 1970s, North American historians such as Woodrow Borah and Colin MacLachlan dug beneath the textual sediment of law in Mexico to the deeper relationship between state and society as mediated by legality. The idea, as Borah put it, was to explore law as a "problem . . . basic to the experience of mankind wherever and whenever two peoples have come into contact for more than very short periods."4As evidence of the gap between real and ideal began to accumulate, a newer approach rapidly displaced the questions posed by Borah, MacLachlan, and others. This line of thinking reacted against the celebratory tone of the earlier literature by pointing to law in actual practice. There, in the dust of fields and the gloom of mines, beneath the hand of the master and the gaze of the gachupín, the law seemed at best silently complicit and at worst a knowing accomplice in the suffering visited upon common people.5 For these historians, law as such held little interest because it was of a piece with elite outrages against ordinary folk. Law was often depicted as little more than a "mask for colonial power and as an inhibitor of more confrontational (and allegedly more effective) ways of confronting colonial power."6Characterized as unjustly capricious and byzantine, colonial law—especially of the seventeenth century—has attracted few scholars.7 The questions first posed by E. P. Thompson and others regarding the relationship between law and social life in the English context have, as a result, not been asked of Latin America.8 Partly this is because whereas Thompson had a Whiggish view of history to rail against—the glories of the common law springing from the loam of English liberty—the presumed lawlessness of Spanish America has made it safe all but to ignore the law, except as a source of discontent among common people. Rebellions and revolts have proven more interesting to historians, producing valuable insights into moments of social breakdown but offering scant sense of how people related to the law under ordinary circumstances.9 Historians of modern Latin America have also paid little attention to the law, in good measure because they see Latin America as unlawed. They, too, have privileged revolution and rupture over the quieter continuities of legal systems. And while there are signs of change for the modern period, law in colonial Latin America, so far beyond the ken of the modern experience, is still largely neglected.10I believe there is a powerful argument for sustained examination of colonial law and legality. If Latin American legal systems continue to puzzle those coming from a contemporary rule-of-law perspective, it is partly because colonial notions of law and justice deriving from the colonial experience remain deeply implicated in modern legal systems structured along liberal lines. Until we understand the expectations, norms, and values of that experience, and how they have been renewed over time, we will be able to see only the "(un)rule of law" in Latin America, an approach that confines thinking about Latin America to what it is not.11One of the overarching conceptual problems in Latin American legal historiography has been its underlying Whiggishness. Colonial law's Thomistic character ill fit the liberal teleology that dominated historical thinking from the eighteenth century forward. Historians of derecho indiano remained a sect apart from those who saw only the absence of a "solid, effective, universal legal system."12 From this perspective, postindependence constitutions and legal systems, apparently liberal on paper, have been seen to defy even the most generous understanding of liberal notions of law. In terms of the canons of legal scholarship, law existed in Latin America in name only.The turn toward sociocultural history and poststructuralist analyses in legal studies represents an epistemological opening conducive to rethinking law's role in colonial Latin America. One of the most crucial insights has been the recognition that law and legality represent an arena of contestation, a place where common people may voice their concerns and even win out over superiors. By breaking free of teleological notions of law's development over time and yielding up the idea that law is either an expression of disembodied, formal rules or of naked power, such an approach implies a set of conceptual tools more in keeping with the multiform history of law in Latin America.This approach accepts both that law is an expression of power and that people pursue their interests through it—but this is merely the starting point and not the end of the matter.13 As Winter argues, to say that the law is finally an expression of power elides the question of what power is and how interests come to be expressed through it. More bluntly, "'[P]ower' cannot work as a foundational account of justice, morality, law, or anything else because at each level and every step of the way, the capacity to exercise power is itself contingent on some complex set of social conventions and understandings."14 The crucial intuition here is that to study the law—or anything else—one must reach toward the social conventions and understandings that underlie it. These, in turn, remain hidden if we insist either that acts are entirely free or else that they are completely determined. Rather, says Winter, "[c]ontingency and constraint are one and the same," for "[o]ur very ability to 'have' a world is dependent on the preexisting social practices and conditions that form both the grounds of intelligibility for and the horizons of our world." And because these practices and conditions are produced at the very level of cognition itself, "there is an important sense in which we unconsciously replicate and maintain our socially constructed contexts."15 Law, in other words, is inherently about contest, but also intrinsically about how "those who live together . . . express themselves through it and with respect to it."16 In short, we cannot make sense of law apart from broader social practices and forms of everyday life—how a community lives, the norms it obeys, the things its members value.17 In this way, I hope to overcome the false and fatal splintering of approaches that reify one aspect of law's role in social life—law as a system of rules, law as power, law as meaning, or law as a spring of shared, contested values—at the expense of others.The implications of this view for the historical study of law are profound. It suggests that the decision-making powers of Leonor de los Reyes (one of the slaves in question)—or anyone else—did not allow her to escape the constraints of the normative universe she inhabited.18 Leonor was an individual, but one circumstantially situated, like any other person of her time and place, whether slave, master, or judge. What she could think, the ideas she could envision, and the circumstances she could aspire to were products of that situation, because cognition itself is grounded in constraint and contingency and not in the phenomenological autonomy that roots methodological individualism.19 Leonor could pursue her freedom because of what law and libertad meant in colonial Mexico in the 1660s and because, even as a slave, she could draw on those meanings.In what follows, I seek to bring into relief how these meanings were negotiated in the process of litigation—by Leonor, her lawyers, the witnesses, the opposing lawyers, and the judges. This calls for painstaking attention to the procedure, language, and modes of legal reasoning at play and how they related to legal principle. To discover the similarities and differences from which to draw such a relation, we must review recondite legal treatises alongside actual petitions, depositions, arguments, and verdicts. This approach demands a probing sensitivity to the nuances and context of the law's "immense expressive range" and what it meant for people to speak through legal process.20 This is no straightforward matter. The dominating presence of institutional arrangements in these tightly choreographed dramas tends to divert attention from the more shadowed precincts of human experience in favor of what is assumed to be more easily knowable. These arrangements too easily deflect attention from the relational side of law, from the idea that "legal precepts and principles are not only demands made upon us by society . . . [but] also signs by which each of us communicates with others."21 The apparent regularity and formulaic predictability of procedure, the shrouded conspicuousness of power relations, the stilted and falsely precise use of language, and the assumed fixity of legal precepts muffle questions of how participants understood their roles in such proceedings and how the law could be "a resource in signification" that enabled human beings to "submit, rejoice, struggle, pervert, mock, disgrace, humiliate, or dignify."22Thousands of people over nearly three centuries crossed the threshold of the rambling mansion that was derecho indiano in colonial Mexico. We have only a very incomplete sense of how they lived in and moved about that mansion and of how the mansion's presence in the social landscape influenced collective life more generally.23 We know even less about what law and justice could have meant to those who found their way to it. This article, through a close reading of two cases, suggests how we might begin to think these issues through.For Leonor Reyes, variously described as a "mulata" and a "negra," it all began in 1650. On April 17 of that year, her owner, Melchor Arias Thenorio, owner of the sugar mill at Amanalco outside of Cuernavaca, put hand to a paper granting her "liberty so that she may enjoy it so long as she shall live which I give her with all my will so that at no time will anyone be able to interfere with said liberty but rather that she be able to enjoy it."24 Eight years later, during which time Leonor claimed she had lived as a free person attached to and laboring at the mill, Francisco Arias Thenorio ratified his brother's wishes in a document stating that, as heir and executor of his brother's estate, he approved of Leonor's liberty, "so that as a free person she could enjoy it and go where she cared to, deal and make contracts, make a testament, and appear in court and do everything a free person can do."25Despite this, in 1658 Leonor found herself working at the San Vicente paraje, unable to leave. On May 21 she appeared before captain Hernando Ponze de Viruéz, a lieutenant to the alcalde mayor r in Cuernavaca, to secure legal recognition of her liberty. "With all due solemnity," she submitted the 1650 document signed by her deceased master, together with his brother's ratification, signed six days earlier, "so that authorized in a public form and manner that will bear faithful witness the originals may be filed in the registry so that at all times it will be a matter of record."26Just five days before Christmas 1660, the matter came before the Tribunal of the Holy Office of the Inquisition in Mexico City, Dr. Mañozca and Lic. Higuera presiding in the morning session. Leonor had been so insistent on her status as a free person that the tribunal ordered her to produce witnesses to substantiate her claim. She asked to be released to do so, but the tribunal ordered her to stay put. Instead, Lic. Andrés Gamero León, the administrator of the estate where she worked, was to find and interview the witnesses she named. Gamero accepted the commission, though not without some doubt as to how to proceed, since Leonor "es tan ladina"—so shrewd—and, he said, the evidence she planned to offer did not touch on matters of faith.27 He asked the tribunal to direct him "in all that is in keeping with justice," promising his obedience.28By April 1661, Gamero had interviewed four witnesses. Unhappy with the results, Leonor filed a series of petitions, suggesting she had decided to dig in her heels and fight. On December 9, 1661, she asked the tribunal to remove her from the paraje where she was working and place her in the home of Lic. Joseph Arias Rio Frio, a clergyman, pending the outcome of her case. On December 23, she advanced two further petitions. The first claimed that she was "oppressed and without power" and asked the tribunal to allow her to call more witnesses. The second, "in light of [her] impossibility and poverty," requested that the tribunal appoint a legal advocate as her representative in court. The tribunal granted all three petitions, and Don Joseph de Cabrera, an attorney of the Real Audiencia and the appointed prisoners' advocate for the Holy Office, took up her case.29In April 1662, after much procedural wrangling and many more witnesses, the tribunal ruled that Leonor had failed to prove her claim, a ruling she appealed. Over the prosecutor's objection, the tribunal accepted the appeal and returned her to the Amanalco mill, as a slave, to await a decision from Madrid. Eight years passed without word on her case. In June 1670, she filed a petition inquiring after the status of her appeal. Her new attorney, Nicolás de Amezqueta, explained to the tribunal that she had been spirited away from jail back to the sugar mill so suddenly in 1662 that the tribunal's order accepting her appeal had not reached her. The case had been sent to the Supreme Council of the Inquisition in Madrid, but nothing had happened because she had not known to take action. Her previous counsel, Cabrera, was a busy man and had fallen down on the job. In August 1670, Amezqueta requested that Leonor's appeal be renewed. Noting that she was "suffering from great work and bad treatment" at Amanalco, he pleaded that the tribunal take notice of "the extreme and notorious necessity she suffers and the privilege that matters of liberty have at law." Once word reached Madrid, the Supreme Council appointed a lawyer to review her case. On January 10, 1673, the council accepted the lawyer's recommendation and overturned the initial 1662 ruling of the Mexico City tribunal. Leonor was declared a free person.At almost the same time as Leonor filed her first petition with the tribunal of the Inquisition, a free mulatto named Francisco Camargo appeared before the same tribunal to present a petition concerning the liberty of Juan and Ursula Clemente, "negros," and their children, Lucía and María. On July 16, 1661, fearing that they were about to be "embargoed" as part of the property of their deceased master, Pedro de Soto López (former accountant and alguacil mayor of the tribunal), Juan and Ursula insisted that their r master had freed them in a deathbed declaration. Because he was in extremis during his last days, he had not been able to draft a properly notarized document. Nevertheless, numerous witnesses, they assured the tribunal, would attest to his declaration. They urged that the tribunal recognize their status as free people and that while they proved their contention, the executor not be allowed to "dispose of us, nor treat us badly." Juan and Ursula's petition was joined by that of Clara de Soto, wife of Francisco Camargo, acting "por mi derecho" (by her own right) and on behalf of her minor children Juan Pedro, Thomás, and Joseph de Soto. Another petition was presented on behalf of Sebastián de Soto, also a minor. All claimed to have been slaves of the deceased until he manumitted them shortly before his death. Clara, on behalf of her children, and Sebastián on his own behalf, requested the tribunal to appoint an advocate ad litem to protect the children's interests. The tribunal received the petitions and ordered that captain Phelipe de Nabarijo— Pedro de Soto López's executor and holder of his goods—be notified of this new matter against the estate.30Nabarijo's attorney, Pedro de Castro, argued in response that the plaintiffs were part of the deceased's property and thus subject to a probate proceeding. He asked the tribunal to relinquish jurisdiction to the Real Fisco, the branch of the Holy Office responsible to the royal treasury and charged with settling all financial claims against estates not governed by a properly executed will.31 The slaves' freedom, Castro asserted, prejudiced creditors by diminishing the assets against which to satisfy debts. The plaintiffs answered that since Pedro de Soto López was a familiar of the Inquisition, serving for many years as its alguacil mayor, and Francisco Camargo was the husband of an interested party, the tribunal of the Inquisition was the proper venue. To change venues, the claimants argued, would "contravene the express will of the deceased" that these people be granted their liberty and instead "erase it with subterfuges that can obscure the truth and justice of our petition, which is so favored by all law that none of his vaguely alleged reasons should be attended to." The tribunal accepted the plaintiffs' argument and retained jurisdiction.32In August, the tribunal appointed Juan Félix de Galbes, a vecino of the city and a procurador in the Real Audiencia, to represent t r he children in the case. The children granted him power of attorney in all legal proceedings concerning the matter of their liberty, and in early September 1661, the adult plaintiffs also granted him power of attorney, effectively making him the legal representative of all the plaintiffs.33 Galbes immediately made sure that his clients's names were stricken from the estate's inventory lists. In late October 1661, he filed a petition noting that Nabarijo "seeks to remove this cause from this Tribunal and take it before ordinary justice." The procedural battle raged through December, as Galbes continued to insist that the matter should be heard before the tribunal. Nabarijo and Castro stalled, recognizing that any response on their part amounted to tacit acceptance of the tribunal's jurisdiction. Their dilatory tactics earned them repeated contempt citations, with all fines being charged against the estate itself. In mid-December, the tribunal appointed Juan de Cabalza as attorney for the heirs of the estate, who lived in Seville and had not participated in the proceedings thus far. Galbes argued that liberty is so "favored" a principle in law that it may not be dispensed with to satisfy a few debts.34In early March 1662, the tribunal opened the evidentiary phase of the case. Galbes deposed eight witnesses between July and October, meeting resistance from a couple of fairly prominent people. The tribunal nevertheless compelled them to cooperate, on pain of contempt. Cabalza deposed witnesses on behalf of the heirs in October and November. By December, Galbes was satisfied with his case and asked the tribunal to render a decision. Cabalza objected, insisting that the plaintiffs had proven nothing and arguing that if they succeeded the creditors would be defrauded. He also introduced new evidence, alleging that a clause in de Soto López's will flatly contradicted the plaintiffs' argument regarding intent. After admitting the new evidence (over Galbes's objection that the evidentiary phase was closed), the tribunal rendered a decision in March 1663.In a six-page sentence, it ruled that Galbes had established de Soto López's intent to free his slaves and that there was no fraud against creditors, since the estate was sufficiently large to settle all its debts without including the plaintiffs in the inventory. Juan Clemente and the others, the ruling concluded, "are and have been free of all captivity and subject to no servitude whatever since the death of the said Pedro de Soto López and as free persons they must be held as such and must be protected in all and for all from that time to this without any person having had any right in or dominion over them or in any thing that properly pertains or has pertained to them as free persons from that time up to the present."35 Cabalza interposed an appeal and asked for money from the estate to perfect it. The tribunal granted the request, but, in the end, the appeal languished and died in Madrid for lack of action.An obvious question leaps from the pages of these cases: How could Leonor and Juan imagine that they could secure their freedom by going to court—the tribunal of the Holy Inquisition, at that? They were slaves after all, subject to the whim of their owners. The beginnings of an answer lie in the variegated nature of slavery in Mexico's central valley in the seventeenth century. An individual slave might have the misfortune of cutting cane from dawn to dusk. But he likely knew that in larger cities, some slaves lived independently, retained part of their income, and even attended fiestas as though they were free.36 Recall that Juan's initial petition to the tribunal was delivered by Francisco Camargo, a free mulatto married to one of the other petitioners. Some slaves, in other words, enjoyed real (if limited) possibilities for improving their situations. When such an opportunity arose (which might be once in a lifetime), the ability to capitalize on it could depend on goodwill earned from a life of obedience and loyalty, on skills acquired during service, or on having been a credit to the master's status. It could also hinge, as Leonor's case suggests, on ties of affection, or at least obligation, that transcended the more monotonous instrumentality of most slave-master relationships. Either way, a hope for betterment could counsel patience, calm in the face of provocation, and the boldness to seize a chance when it came—knowing all the while that life was, finally, a crapshoot at best. In short, there is good reason to believe that many slaves' sense of their subjection was far more nuanced than that permitted by a simple dichotomy between free and unfree.37The chance for libertad came to Juan and Leonor differently. Leonor's first petition claimed that she had been living as a free person since at least 1650. She found herself in court in 1660 because Andrés Gamero de León, administrator of the sugar estate at Amanalco, was holding her at the paraje San Vicente as a slave, against her will, something she insisted everyone at the hacienda and many others knew not to be true. So long as her master was alive, her status had not been an issue. Now that he had gone, it was. She had come to the tribunal to protect what, by her lights, she already possessed. Juan, by contrast, had lived his entire life as a slave, along with Ursula, his wife, their children, and Clara de Soto and her children. We do not know whether they had any inkling that Pedro de Soto López might have considered manumitting them, though such acts were common enough. But just before dying, they claimed, he had freed them all. They were before the tribunal to have their recently granted liberty recognized.Why the Tribunal of the Holy Inquisition, the scourge and terror of heretics and witches? The most immediate answer is that the tribunal had original jurisdiction over all disputes involving its own people. Pedro de Soto López had been a public accountant and alguacil mayor of the tribunal. As such, he and his family, including his slaves, fell within the Holy Office's jurisdiction on most matters. Leonor's case is less clear, though the fact that her master's estate passed to the Holy Office upon his death in 1658 strongly suggests that he too had enjoyed a close relationship with the Inquisition and so fell within its jurisdiction.38 And even if his estate passed to the Inquisition for outstanding debts, Leonor's presence at Amanalco and San Vicente would have brought her within the tribunal's ambit as soon as Gamero claimed her as a slave of the estate.It would thus be easy to conclude that Leonor and Juan simply accepted the tribunal's jurisdiction for lack of alternatives. To do so would obscure the extent to which the choice of venue may have been a deliberate and astute one; after all, in principle they could have gone straight to the Audiencia, which since 1540 had been charged to hear petitions from slaves seeking libertad.39 Moreover, merely assuming the tribunal's jurisdiction as a given would provide little insight into why Juan Félix Galbes, Juan Clemente's attorney, fought so hard to keep his clients' case there, rather than let it go to "justicia ordinaria" (probably the Audiencia or the Real Fisco). As members of their masters' "families"— which included all dependents, from wives to slaves—and because their masters' testamentary intent was at the heart of their cases, Leonor and Juan had a strong claim to the tribunal's jurisdiction. We cannot know whether they considered other options, but in trying to understand their situation, it is worth lingering over one of the curious twists of colonial legal history: slaves were among the few who actively sought out the Inquisition for reasons others than denouncing another person.The Inquisition's first responsibility was to protect the body social against affronts to the faith.40 By law, Indians were beyond the tribunal's reach. But everyone else, including Spaniards, blacks, castas, and slaves, could be hauled before the Inquisition for accusations of heresy, blasphemy, witchcraft, idolatry, demonic pacts, or apostasy. Despite this seemingly limited jurisdiction, from at least the late sixteenth century the Inquisition heard a substantial number of cases concerning the mistreatment of slaves. Civil courts had clear jurisdiction in such cases, but slaves often chose to take the matter to the Holy Office.Slaves' cases arrived at the tribunal in a variety of ways. When cases of abusive treatment were at issue, a third party might denounce the master, a slave might file a complaint on his own behalf, or an officer of the Inquisition might pursue the matter ex oficio. Evidence suggests that for much of the period between the mid–sixteenth and mid–seventeenth centuries, few such cases became procesos, or official judicial proceedings.41 One set of cases suggests that the tribunal tended to look favorably upon slaves who sued to keep family members from being sold away or to marry over a master's objection.42While slaves commonly came before the tribunal alleging mistreatment, to have family relationships recognized or enforced, or to secure liberty, they may more frequently have been there on charges of heresy, apostasy, blasphemy, or witchcraft. In such cases, they might come to the Holy Office's attention in ordinary ways—for example, being denounced by someone else, such as a fellow slave or an inquisitor. But no