Slaves and the Creation of Legal Rights in Cuba: Coartación and Papel
2007; Duke University Press; Volume: 87; Issue: 4 Linguagem: Inglês
10.1215/00182168-2007-039
ISSN1527-1900
Autores Tópico(s)Cuban History and Society
ResumoOn August 16, 1855, Doña Carlota Dascar, a resident of Santiago de Cuba, initiated a lawsuit against the city’s public advocate (síndico procurador) to prevent the forcible sale of her slave María. Dascar had tried to sell María, whom she described as a healthy criolla without vices, for 700 pesos. The slave, however, “presented” herself before the síndico Miguel Rodriguez — the municipal official charged with the representation of slave interests — to request that he initiate the customary process of assessing her value in order to fix the price at which she would become coartada: the price that she would have to pay, in installments, to purchase her freedom. He invited Dascar to appoint an appraiser, whose valuation would be compared to that of the síndico’s own assessor.1As was frequently the case, the valuations differed significantly and had to be negotiated in court. Dascar’s appraiser assessed María’s value at 600 pesos, while the síndico’s agent valued her at 450. The local judge appointed a third assessor, who ratified 450 pesos as the slave’s correct value and established this as the price at which María would be coartada. Accepting this defeat, Dascar went to the síndico’s house and asked him “to return her slave,” for María had not voiced “any complaints” against her. Instead of returning the slave, however, the síndico “demanded” that Dascar issue María a sale license — “su papel de venta” — that would allow her to seek a new owner. If she failed to comply, he threatened her to take the case to court again.The incensed Dascar claimed that coartación “did not limit in any sense the dominion that masters have over their slaves, and if the slave who is not coartado cannot be sold against his master’s will without just cause, the same must be the case with coartado slaves, who are subject to the same servitude as the others; this is categorical and is not open to doubt or interpretation.” Yet the dominion of the master in this area was anything but categorical, as Dascar would learn to her dismay. In court, the síndico invoked article 35 of the Cuban slave ordinance, the Reglamento de Esclavos of 1842, which in his view “clearly gives the coartado slave the power to sell himself whenever he wants against the will of his master . . . from which it follows that the black woman María Irene, being coartada, is in the position to solicit a new master any time she wishes.”The judge sided with the síndico and ordered Dascar “to give the corresponding paper to her slave so that she could seek a master at her leisure [a su gusto].” Although the owner continued to object, the judge ordered the sale to proceed. María had found someone ready to pay her price, including the taxes on the sale, which were the responsibility of any coartado who wanted to be sold against the wishes of his or her master. Frustrated, Dascar appealed to the captain general, noting that she “had complained and protested in vain against this process” and had “refused to sign or authorize anything, but in vain; everything has moved forward with a rigorous inflexibility.” She also used family connections to bring the case before Santiago’s town council, where her stepdaughter’s husband, Regidor Don Ruperto Ulecia Ledesma, presented a lengthy memorandum depicting the síndico’s actions and the slave’s attempts to force a sale as a “veritable forceful expropriation.” According to the town councilor, two issues merited the attention of the municipal body. The first concerned the process of legally appraising the price of the slave for the purposes of coartación, a process that unlawfully limited owners’ freedom to determine the price they would accept for their property. The second concerned “the outrage of the coartado slave changing owners as many times as he wishes without having just cause,” which was tantamount to expropriation. In both instances, he noted, the “sacred . . . property rights” of masters were “curtailed.”2Dascar’s judicial and extrajudicial efforts were not exceptional. Her complaints were part of a large chorus of grumbling slave owners who, by the 1850s, were trying to resist — through litigation and appeals to authorities — what they perceived as a growing challenge to their dominion over their slaves. They resented municipal officials’ interference in the management of their slaves, as well as the slaves’ successful exercise of legal rights against their owners’ wishes. Not without reason, the owners contended that these prerogatives represented a dangerous concession. The enforcement of what lawyers, justices, and authorities described as derechos (“rights”) had “relaxed slavery completely” and “impaired the subordination” on which slavery was based.The most important of these rights were coartación (gradual self-purchase) and request for paper (pedir papel) to seek a new owner, two institutions with deep roots in the island. Through coartación, masters and slaves agreed on a manumission price that could not be subsequently altered.3 Slaves could then make partial payments toward their freedom. As María’s case illustrates, by the mid – nineteenth century these two legal practices had become linked, and some lawyers, judges, and slaves believed that coartados had the right to change masters at will. However, neither coartación nor the possibility of changing masters appeared as slave rights in Castilian legal codes. Rather, it seems that these prerogatives emerged as a pragmatic response to the frequent litigation initiated by slaves themselves. In this sense Cuba was hardly unique. As the processes of emancipation clearly show, slaves’ initiatives and actions shaped legislation and produced legal consequences across Latin America.4Until the promulgation of the Reglamento de Esclavos in 1842, the practices of coartación and papel were based on little other than custom.5 They fell into the category of customary rights, at best, and were quite vulnerable to the whim of individual masters. But in 1842, when plantation slavery was rapidly expanding in the island, these customary rights were codified and henceforth treated by most judges as true legal rights that could be exercised even against the will of the owners. Furthermore, some jurists and judges claimed that these rights had broad legal effects that gave slaves considerable control over their lives and labor. But how did these rights come to exist, and how did they relate to the traditional codes of Castile and to colonial legislation? And why were these customary rights codified in nineteenth-century Cuba, and codified precisely as slave rights, despite the opposition of the slave owners?I will attempt to answer these questions by focusing, first, on the evolution of the law in order to establish the possible bases for the practices of coartación and papel. Until the Reglamento de Esclavos of 1842, the codes provided only a tenuous foundation for what María and other slaves attempted to claim as personal rights. Slave owners systematically rejected such claims, resulting in litigation that forced judges to define which practices conformed to the law and what entitlements, if any, slaves had under Spanish statutes and customary law. Individual legal cases show that judges did not share a uniform view about these issues. Conflicts surrounding these practices peaked in the 1840s and 1850s, after they were codified unequivocally as slave rights in the Reglamento of 1842, in terms that many masters deemed openly confiscatory. The very codification of these legal practices, potentially favorable to slaves, in a slave society such as Cuba is something of a puzzle. I will treat coartación and the practice of pedir papel not as static, abstract rights but as contested legal institutions in which different interests — those of slave owners, colonial authorities, legal experts, and slaves — clashed.6It is difficult to outline the chronological evolution of these practices with precision. The first debates about their legal contours took place in the 1780s, when the Spanish crown reviewed the slaves’ legal status as part of Bourbon efforts at legal codification. By then, however, the practices of coartación and papel had evolved into customary rights — although they were highly contested and enjoyed little support in written law. This transformation took place during Cuba’s long early colonial period, between the sixteenth and the late eighteenth centuries, when conditions were favorable for the creation of these customary rights. Before the development of plantation slavery in the western section of the island after the late 1700s, Cuba was a society with slaves, and not a slave society, to use a concise (if problematic) distinction.7 A large proportion of slaves were used in the service economy of Havana and other cities, and limited Spanish migration to the island required slaves to perform activities that might otherwise have been closed to them. Such occupations afforded slaves some degree of autonomy and allowed them to participate actively in the mercantile life of the cities. In the sixteenth and seventeenth centuries, slaves and free blacks monopolized important sectors of Havana’s booming service economy. They were also conspicuous in the trades, not just as laborers, but as master artisans with their own shops. An indeterminate but significant number of slaves hired themselves out, lived in their own houses, and operated inns, taverns, and other commercial establishments.8Through their participation in market transactions and other social relations, slaves gained critical knowledge about the market economy and the dominant culture — including the knowledge that, under Spanish law, masters had obligations and slaves had the right to denounce mistreatment or abuse to higher authorities. This may have been the slaves’ “only right,” as a Cuban official stated, but it was a critical one.9 The practice of papel, by which slaves requested permission to force their sale away from abusive masters, seems to have evolved as a consequence of this right of petition.Slaves contributed to the definition of coartación as well. It is logical that slaves would want their manumission price to be fixed once they had reached an agreement with their masters. It is also understandable that they would seek to inscribe such agreements in the public sphere by noting them in sale contracts. As early as the 1590s, some contracts noted that slaves were entitled to freedom once they had paid a stated amount. Slaves who had begun to make payments toward manumission, in turn, began to claim that this constituted the purchase of a portion of their time and labor, and they thus were entitled to some autonomy. By the late seventeenth century, some contracts confirmed this belief and implied that coartados had, in fact, purchased a portion of themselves. A century later, some coartado slaves claimed that any limitation on their ability to complete payments constituted abuse and thus, they concluded, entitled them to request papel and change owners. Each suit created a precedent that strengthened subsequent suits and added to what Sherwin Bryant calls “a corpus of case law.”10 Thus, by the eighteenth century these two practices were frequently linked.These practices did not vanish in the wake of the transformations that Cuba experienced during the early nineteenth century, when the island became a leading producer of sugar. They were part of a “heritage” that, as Rebecca Scott states, “would influence society in the nineteenth century.” To be sure, recently imported Africans in the deep plantation zones had limited access to authorities and the law, but as I have asserted elsewhere, the new economic and social order was nevertheless superimposed on existing customs and social mores and had to be reconciled with them.11The creation of the office of síndico procurador in the 1760s increased slaves’ opportunities to press for claims. A municipal institution transplanted to the colonies in 1766, the síndico was to provide legal representation for slaves and mediate in their conflicts with masters. The Real Cédula of 1789, “on the education, treatment, and occupation of the slaves,” referred to the síndico as the “slaves’ protector” and established that no slave could be criminally prosecuted without his intervention. He was also responsible for entering charges against slave owners and overseers in cases of excessive punishment. Since the síndico was elected by the town council and the position considered an honorable public duty, we can assume that many were themselves slave owners and not particularly concerned with the well-being of the slaves.12 At the same time, the institution represented a clearly delimited institutional channel through which enterprising slaves could claim rights, and it expanded state involvement in the master-slave relationship. As we will see, over time síndicos seem to have developed procedures and values that many owners deemed intolerable. In the midst of Cuba’s slave society, síndicos’ actions not only sustained customary legal practices such as coartación and papel but also cloaked them with a mantle of legality.13In trying to understand how slaves positioned themselves as legal subjects and tried to take advantage of the limited legal recourse available in colonial societies, this article joins a fast-growing body of scholarship concerning slavery and the law in Latin America. In contrast to a previous generation of scholars who, in reaction to celebratory accounts of Iberian legal culture, were skeptical if not cynical, about the importance of the law to the study of slavery, the most recent scholarship concentrates on the slaves themselves and on their attempts to find cracks within the Spanish normative system.14 These scholars have found that under Spanish absolutism, slaves were constituted as subjects who were “socially not so dead”; civil and religious authorities encroached on the masters’ control over slaves, and slaves learned how to navigate the contradictory Spanish legal maze and to use it to their advantage.15Many slaves seeking to take advantage of these normative cracks were women.16 The predominance of slave women in the urban labor force facilitated the development of valuable networks within and without their social group, increased their chances to purchase freedom, and, above all, gave them easier access to authorities and legal intermediaries such as the síndicos procuradores.17 Gender ideologies and family considerations informed their legal strategies and opportunities. The Spanish legal tradition contained significant ambiguities with respect to slave families, so slaves sought to use these to their advantage. Some slaves and free blacks invoked the sanctity of marriage to press claims on behalf of their enslaved spouses. Others invoked paternal or maternal bonds to demand the manumission of a child. After all, as Bianca Premo states, “Spanish law preserved a measure of patriarchal authority within the slave family itself,” so slaves could petition the courts to uphold their authority over their own children.18 Under some circumstances, masters actually agreed, although in such cases, they argued, the enslaved mothers — not the masters — should be financially responsible for the child. State authorities had their own views on this as well, for these children were also subjects of the king and were entitled to his benevolence and protection. These cases witnessed the clash of different notions of patriarchy, property rights, and family rights — a conflict that slaves and their legal representatives sought to use for their own purposes. As historian Herman Bennett puts it, “[T]he enslaved gained an acute awareness of competing obligations and rights, a form of ambiguity they willingly exploited by deploying regulatory devices in a manner that the Spanish monarchs never intended.”19This is precisely what happened with the little-studied practices of pedir papel and coartación. Historians of slavery in Cuba have known of coartación for a long time, but debates have centered on its frequency and on the institution’s role in facilitating the integration of Africans into colonial society.20 Determining the proportion of coartado slaves is nearly impossible, for it is likely that only a fraction of the slaves under coartación ever completed their payments and obtained their freedom. According to the census of 1871, only 2,137 slaves were coartados, out of a slave population of over 280,000. In their study of the Cuban slave market, however, Laird Bergad and his colleagues found that out of a random sample of notarized sales between 1790 and 1880, 13 percent were coartados. “Significant numbers of slaves became coartados, and this was no doubt critical for the hopes and aspirations of slave communities.” Some contemporaries shared the view that significant numbers of slaves were becoming coartados, although their perceptions were no doubt tinged by the fear of losing control over slaves in general. “It happens with frequency,” asserted a lawyer in 1830. “Slaves are becoming coartados in large numbers” concurred a town councilor from Santiago in 1855.21Whatever the numbers, it is difficult to sustain the claim that coartación represented a quantitatively significant avenue toward freedom in nineteenth-century Cuba. According to various sources, each year during the 1850s and early 1860s some two thousand slaves were manumitted on the island. This suggests an annual rate of less than 1 percent.22 Since this figure includes manu-missions of all sorts and not just gradual self-purchase, the number of slaves obtaining freedom through coartación each year would have been even less.But the significance of coartación goes beyond the number or percentage of slaves who successfully availed themselves of it. As with marronage or revolts — which always involved a small proportion of total slaves — the impact of coartación cannot be reduced to mere statistics.23 Slave owners resented coartación and its concomitant practice of papel not so much because large numbers of slaves used it to obtain freedom, but because they could do it without their masters’ consent. Manumission through coartación did not reflect the owner’s generosity, nor did it constitute a pious act in God’s service, as was frequently stated in letters granting voluntary and gratis manumission. Through coartación, manumission was imposed on masters by entrepreneurial slaves, not given to slaves by God-fearing and humane masters. To make matters worse, coartación produced (or at least in the eyes of some slaves and justices was understood to produce) a number of poorly defined and contestable rights that gave slaves significant control over their labor and personal lives, including the alleged right to change masters at will, the source of much litigation in nineteenth-century Cuba. For the slave owners, at least, coartación represented a serious attack on their property rights as masters.The masters’ outrage was not without foundation; as they repeatedly claimed, the rights that some slaves claimed and some judges attempted to impose were not explicitly laid out in Spanish law. Although Castilian codes and legal traditions had long recognized the possibility of manumission, it was always dependent on the goodwill and benevolence of the master: a master’s prerogative, not a slave’s right. Castilian codes granted slaves a few rights that were not conditional on their masters’ consent — such as the right to marry and to petition authorities in cases of abuse — but these were the exception, rather than the rule.The codes did, however, systematically regulate the obligations of a master. In addition to religious instruction, the master’s most important duty concerned the physical well-being of the slave. According to law 6, title 21, of the fourth Partida, a master had “complete authority” over his slave “to dispose of him as he pleases.” But he was not to wound, kill, or mutilate his slaves, at least not without proper judicial order, nor starve them to death. In cases of severe abuse, which the law defined as starvation or intolerable physical punishments, slaves could make a petition to a judge. If the judicial inquiry corroborated the accusation, the judge could then order the forcible sale of the slave to another master.24These three principles — that masters should not abuse their slaves, that slaves could complain to a judge, and that judges should hear these claims and proceed accordingly — were ratified by numerous subsequent regulations. The obligation to feed, house, and care for infirm slaves was confirmed in the ordinances issued by the Audiencia of Santo Domingo in 1528 and 1535, by the town council of the same city in 1768, and in the Código Negro of 1784. The ordinances issued by the audiencia also charged municipal officials with visiting farms and gathering information about excessive punishments, “ill treatments,” and inadequate rations. Upon finding violations, they were to notify local authorities, and judges were to proceed “according to justice.” The 1784 code referred to the usefulness of these visits, which were “frequently” carried out.25 Whether justices actually ordered the sale of abused slaves is not known. The old principle contained in the Partidas was also reproduced in regulations issued by the crown for the colonial territories, the so-called Leyes de Indias.26The first comprehensive ordinances for Cuban villages, issued in 1574, replicated the language that the Audiencia of Santo Domingo had used in its own regulations. This is not surprising, since the Cuban regulations were drafted by a visiting judge from that court, the oidor Alonso de Cáceres y Ovando. His “ordenanzas” referred to two forms of “ill treatment”: inadequate rations or clothing, and cruel punishments, particularly excessive flogging or “burning with different types of resins.” To prevent these abuses, Cáceres ordered municipal officials to visit the farms in their jurisdiction twice a year. As in La Española, these visits were a way to gather information concerning “the treatment” of slaves and the level of compliance with ordinances concerning food and clothing. Reiterating the stance of the fourth Partida, justices were instructed to force the sale of slaves subjected to cruelty or “excessive punishments” and to proceed legally against the owner.27It is difficult to establish whether these visits were performed in Cuba as often as mandated and whether municipal officials inquired about the treatment of slaves as they were supposed to do. But two things should be noted. First, the ordenanzas continued to be invoked as the law of the land well into the late eighteenth century. Second, by then the visits continued to be seen as one of the responsibilities of town councilors. For instance, in 1762 a colonial official noted that these visits allowed authorities to “watch over the good treatment of slaves, whether they are attended to in terms of food and clothing, matters that require the presence and authority of the judge himself.” Ten years later the custom was still observed. In January of 1772, the governor commissioned one of the councilors to visit the farms to “inspect the slaves . . . and see if they were well dressed and treated as stated in ordinance sixty” of the 1574 Cáceres regulations. A 1754 inspection revealed a case of egregious abuse, and the visiting judge initiated a case ex-officio against landowner Fernando Ramos for mistreating one of his slaves, a child five or six years old whom he had “punished with fire and other cruelties.”28Justices continued to uphold the centuries-old notion that masters were to treat their slaves properly, and local regulations reproduced the traditional mandates of adequate nourishment and clothing and prohibition of cruel punishments. The 1789 Real Cédula on the treatment of slaves similarly identified the physical well-being of the slaves with, among other things, a given quantity and quality of food and clothing. Following the letter of the Partidas, excessive punishment would result not only in the forcible sale of the slave but also criminal prosecution against the master “as if the injured party were free.”29Thus, by the late eighteenth century colonial law encompassed well-established principles regarding acceptable treatment of slaves, as well as the authority of local officials to interfere when these principles were violated and to force the sale of the slave if necessary. A subtle but telling distinction had taken place since the Partidas established this doctrine, however. Although still preoccupied with the physical well-being of the slave, the colonial ordinances and the Real Cédula of 1789 shifted the initiative from the slaves themselves to judges and local officials. What the Partidas had envisioned as a limited slave prerogative later regulations treated as a duty of municipal officials.In Cuba and elsewhere in the Iberian colonial world, however, slaves did not wait for local officials to detect and prosecute abuse and mistreatment; they seized the initiative and approached judges to complain about abusive masters and seek redress. In some cases, this redress consisted simply of mediation by an outsider to improve working conditions or replace an abusive overseer, but in other cases slaves’ demands went further. What all these cases had in common, however, was that slaves attempted to transform what the law had envisioned as masters’ obligations into slaves’ rights.Particularly for rural slaves, presenting a complaint before local authorities was not an easy task. They had to abandon the farm where they worked, walk for hours or days, find a justice in a nearby town, and elicit his sympathy. Extant cases in nineteenth-century Cuban records suggest, however, that rural slaves did occasionally complain to authorities, using words that echoed the dominant legal culture. For example, in 1846 eight slaves walked out of the San Miguel sugar mill and presented themselves before the local justice in the town of Corral Falso, Matanzas. The slaves had come “to complain against the administration” of the mill, arguing that they did not receive enough food, were forced to perform “excessive work,” and did not get proper clothing or medical attention. Similarly, in 1879 19 slaves escaped from the Buenavista sugar mill, in the municipality of Trinidad in central Cuba, to complain to authorities that the overseer abused them and gave them “bad food.” And in 1865, a slave from the Caridad sugar mill in the municipality of Colón presented himself before a local official to lodge a complaint against his overseer, whom he claimed had punished him excessively by giving him over one hundred lashes, as well as abusing the slaves in a variety of ways. Asked to elaborate on the conditions at the mill, the complainant Pablo declared that the overseer and the driver had mutilated two slaves in the past “without anybody notifying the authorities” and that slaves only got plantains and rotten jerked meat twice a day.30 In his deposition, Pablo testified that the overseer had punished those slaves who sought the patronage and protection of local authorities (the verb he used was “apadrinarse”). He specifically mentioned the case of Secundino Criollo, who had asked a local authority to intercede on his behalf to avoid a punishment. Even though the authority had called the overseer and reprimanded him, Secundino had been shackled and punished “a lot” as a result.Pablo’s testimony suggests that even though sympathetic authorities could not guarantee the protection of the slaves, the latter were very much aware of the existence of these authorities and of the possibility of seeking their patronage and mediation. It is possible that slaves reserved this recourse for extreme situations, such as conflicts that could result in life-threatening punishments or severe physical abuses. In any case, local justices seem to have treated these as routine cases. They opened dossiers, took the slaves’ depositions in the presence of witnesses, and called on medical experts to examine the complainant, as justices had done for centuries. Nowhere in the proceedings do we get the sense that these cases were exceptional or that the local justices were outraged by the insolence of the slaves. As one judge reported, appealing to authorities in cases of abuse was the slaves’ “único derecho” — their only right.31Although the Partidas and subsequent regulations allowed judges to force the sale of abused slaves, nowhere did they suggest that slaves themselves were entitled to pursue a change of owners under such circumstances. By the late eighteenth century, however, slaves took their initiatives a step further, requesting authorities’ assistance to change owners by means of a “papel,” as if the masters’ negligence of their legal duties entitled slaves to select a new owner. The evidence suggests that this practice was much more common in the cities than in rural areas, where opportunities for mobility and for the creation of the social networks needed to elicit the interest of a new (and potentially more favorable) buyer were more restricted. But some rural workers nevertheless attempted to force a change of owners when abused or neglected. For example, in 1795 the slave Manuel de la Trinidad escaped the sugar mill where he worked. He wanted his master to “give him paper to find another whom he would serve, for they do not attend to him as is required and they give him too much work.”32 Trinidad’s reference to the “attention” that owners were “required” to give follows closely the letter of the law. In addition to excessive work, he denounced the lack of “necessary food” and “the cruelest treatment that can be imagined.” Similarly, in 1850, the slave Andrés Criollo, who worked on a tobacco farm in western C
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