Till Death Do Us Part: Testamentary Manumission in Seventeenth-Century Lima, Peru
2012; Frank Cass & Co.; Volume: 33; Issue: 3 Linguagem: Inglês
10.1080/0144039x.2012.668302
ISSN1743-9523
Autores Tópico(s)American Constitutional Law and Politics
ResumoAbstract This article joins a long-standing conversation among slavery scholars regarding the tensions that emerged from the legal status of slaves as property and as persons. This feature of quasi-personhood and property was perhaps most pronounced in the testamentary devise of freedom granted by slave owners. Posthumous bequests of freedom simultaneously recognised the property rights of the deceased in human beings, while validating the affective ties of loyalty and devotion spawned by the master–slave relationship. The article traces the efforts of Margarita de Torres, an enslaved woman, who waged a nine-year lawsuit for her freedom against the executrices of her owner's estate. In so doing, the article analyses Margarita's motivations for embarking on a protracted and costly lawsuit, given the odds in favour of, and against, slaves seeking to enforce testamentary promises of manumission in seventeenth-century Lima. More broadly, the article explores the affective relationships between owners and slaves, the conditions that accompanied testamentary freedom and the complexities that arose with the legal treatment of enslaved offspring of free fathers. Acknowledgements Special thanks are due to Maribel Arrelucea Barrantes, Holly Brewer, Susan Gary, Hendrik Hartog, Jane Landers, Rachel O Toole, Josh Stein, and Christopher Tomlins. Research support was provided by the National Endowment for the Humanities, and the University of Oregon School of Law. Notes Archivo General de la Nación [hereafter AGN], Lima, Peru. Real Audiencia, Causas Civiles, leg. 239, año 1682, cuaderno 899. Micaela de Torres, Testament, AGN, Causas Civiles, leg. 239, año 1682, cuaderno 899, f.36. AGN Transcript, testament, Micaela de Torres. f.3. Transcript, carta de libertad, f.3. The promise of testamentary freedom as an incentive for servile efficiency in the imperial period is critiqued at length in K.R. Bradley, Slaves and Masters in the Roman Empire: A Study in Social Control (New York: Oxford University Press, 1984). Ruth Pike, Aristocrats and Traders: Sevillan Society in the Sixteenth Century (Ithaca, NY: Cornell University Press, 1972), 182. Manumission by testament in the United States is the subject of much scholarly inquiry, particularly as it related to the evolution of the law of slavery in the antebellum period and its restriction as tensions mounted before the Civil War. For a more thoroughgoing review, see Guyora Binder, 'The Slavery of Emancipation', Cardozo Law Review 17 (1996): 2063–2102; A. Leon Higginbotham and Michael Higginbotham, '"Yearning to be Free": Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia', New York University Law Review 68, no. 6 (1993): 1213–1271; Reuel Schiller, 'Conflicting Obligations: Slave Law and the Late Antebellum North Carolina Supreme Court', Virginia Law Review 78, no. 5 (1992): 1207–1252; and Adrienne Davis, 'The Private Law of Race and Sex: An Antebellum Perspective', Stanford Law Review 51, no. 2 (1999): 221–288. Other writers have paid attention to legal instruments of emancipation as a way of demonstrating the particular discomfort exhibited towards a freed black population. See John Philip Reid, 'Lessons of Lumpkin: A Review of Recent Literature on Law, Comity and the Impending Crisis', William and Mary Law Review 23, no. 4 (1982): 571–624; Christopher Tomlins, 'Transplants and Timing: Passages in the Creation of an Anglo American Law of Slavery', Theoretical Inquiries in Law 10 (2009): 389–422. Vindicta and censu were state-sponsored interventions: they involved the proclamation of the censor to accept and record the declaration of freed status. In contrast, testamento was a private act of emancipation. See, Alan Watson, Slave Law in the Americas (Athens: University of Georgia Press, 1989); W.W. Buckland, The Roman Law of Slavery (1908; Oxford: Clarendon Press, 1970), chap. XXI. Partida IV, Tit. I–IX. Recent historical work on Mediterranean slavery repudiates Pike's inference about the frequency with which testamentary manumission was granted. Debra Blumenthal shows that for fifteenth-century Valencia, out of 417 contracts of sale for slaves, only 57 were recorded as freed through manumission. See Debra Blumenthal, 'The Promise of Freedom in Late Medieval Valencia', in Paths to Freedom: Manumission in the Atlantic World, ed. Rosemary Brana-Shute and Randy J. Sparks (Columbia: University of South Carolina Press, 2009), 51–68. Acts prohibiting manumission were passed to prevent a new class of public charges – following the logic that owners were obliged to provide their slaves with food, clothing and shelter. These Acts were also related to the fear and distrust of 'idle and slothful' freed blacks. Other Acts required that the testator also have enough assets to satisfy his debts. In the case of inter vivos manumission, statutes obligated owners to transport their newly freed slaves out of the state or post bond to guarantee their 'orderly behavior'. VA Act of May 1782, Commonwealth Chap. XXI. 'An Act to Define and Punish Vagrancy in Free Persons of Color' (17 December 1859). See also 'An Act to Prevent Free Persons of Color, Commonly known as Free Negroes, from being Brought or Coming into the State of Georgia' (1859). Although self-purchase was the most common route to freedom in colonial Lima, testamentary manumission was granted with much greater frequency to female domestic slaves. José Ramón Jouve Martín notes that out of the 3120 individuals who were enumerated as 'freed blacks' in seventeenth-century Lima, 1762 were women and 553 were men. This stark gender imbalance in the rates of manumission undoubtedly had to do with family strategies privileging women's freedom, and also the affective relationships between enslaved women and their owners. See José Ramón Jouve Martín, 'Death, Gender and Writing', in Afro-Latino Voices: Narratives from the Early Modern Ibero-Atlantic World, 1550–1812, ed. Kathryn J. McKnight and Leo Garofalo (Indianapolis: Hackett, 2009), 105–125 (106). Many scholars have examined the correlation between testamentary manumission and affective relationships between male owners (particularly clerics or single men) and their domestic slaves. See, for example, Christine Hünefeldt, Paying the Price of Freedom: Family and Labor among Lima's Slaves, 1800–1854 (Berkeley: University of California Press, 1994). For these scholars, the sources suggest that sex was bartered for the delayed promise of freedom for both enslaved women and their children – or at a minimum a lowered purchase price. The sources also suggest that delayed manumission, pursuant to legal action urging freedom, was a 'default' arrangement of less economically fortunate owners and their domestic slaves. In other words, enslaved women could have used the legal process to prompt their owners to make good on promises of freedom exchanged for sex. This is consonant with the idea that recourse to the court was intended as one particular kind of stimulus to bring about eventual freedom. While we cannot speculate about the degree to which these were consensual or forced relationships, we surmise that higher rates of manumission for women in domestic servitude – whether testamentary or self-procured – were a result of affective ties. These clearly included bargains for sexual services or long-standing relationships, like the one described herein, in which affect – not sex – was the basis of testamentary manumission. On non-sexual affective ties, see Frank T. Proctor III, 'Gender and the Manumission of Slaves in New Spain', Hispanic American Historical Review 86, no. 2 (2006): 309–336. Scholars also increasingly dispute the automatic associations of sex with freedom. For instance, Kathleen Higgins notes in testaments for eighteenth-century Minas Gerais that in many alliances between enslaved women and Portuguese colonists, fathers bequeathed their property to their illegitimate children – often without freeing the mother through testamentary manumission. See Kathleen Higgins, 'Licentious Liberty' in a Brazilian Gold-Mining Region: Slavery, Gender, and Social Control in Eighteenth-Century Sabará, Minas Gerais (University Park: Pennsylvania State University Press, 1999). Portuguese laws of inheritance allowed men to transmit property to illegitimate children with few entails on their estate. This ensured that property could be transmitted without the messiness of marriage or even testamentary bequests to the mother and her family. Because of womb enslavement, illegitimate children inherited property in a condition of mixed status – technically enslaved but propertied. Michelle McKinley, 'Fractional Freedoms: Slavery, Legal Activism, and Ecclesiastical Courts in Colonial Lima, 1593–1689', Law and History Review 28, no. 3 (2010): 749–790. Ford v. Ford, 26 Tenn. 95–96 (1846). Henry S. Maine, Ancient Law (1861; New York: Dorsett Press, 1986), chap. VI. The distinction between the restraints on testamentary freedom in the civil law vis-à-vis the common law is well documented, but the distinction is possibly overdrawn. For a critical analysis of the putative divide between common law and civil law on individual testamentary freedom, see Susanna Blumenthal, 'The Deviance of the Will: Policing the Bounds of Testamentary Freedom in Nineteenth-Century America', Harvard Law Review 119, no. 4 (2006): 959–1034. For a comprehensive review on forced heirship in the civil law, see George Pellettier and Michael Sonnenreich, 'A Comparative Analysis of Civil Law Succession', Villanova Law Review 11 (1966): 323–356. The percentage left to a testator's discretion varies in the civil law, depending on the code, country and historical time period. In seventeenth-century Lima, the discretionary portion was called the quinto, corresponding to one-fifth of the estate. This seemed to prevail in the Spanish colonies, derived from the Partidas. See Joseph Dainow, 'The Early Sources of Forced Heirship: Its History in Louisiana and Texas', Louisiana Law Review 4 (1941): 42–69; Joseph McKnight, 'Spanish Legitim in the United States – Its Survival and Decline', American Journal of Comparative Law 44, no. 1 (1996): 75–108. See, for example, Susan Kellogg and Matthew Restall, eds., Dead Giveaways: Indigenous Testaments of Colonial Mesoamerica and the Andes (Salt Lake City: University of Utah Press, 1998). The formulaic nature of the testament was part of the church's insistence on uniformity and standardisation after the Council of Trent. Both confessional manuals and model testaments were disseminated widely in the Americas to facilitate the conversion efforts of the Spanish. Susan Cline's study of Fray Alonso de Molina's 1569 model testament circulated in New Spain demonstrates the key role of will-making in evangelisation, and its integration into more pluralistic forms of belief surrounding indigenous mortuary rites and processes. See Susan Cline, 'Fray Alonso de Molina's Model Testament and Antecedents to Indigenous Wills in Spanish America', in Kellogg and Restall, Dead Giveaways, 13–33. Transcript f.8. Scholars have disagreed as to whether manumission is a gift or a contractual promise to convey freedom. Many courts have chosen to regard testamentary manumission as a bequest to the slave. In the self-purchase context, however, where money was paid towards one's freedom, disputes were clearly governed by contract law. Orlando Patterson has dismissed these legal fictions. For Patterson, the more significant question is whether the act of possession – the experience of power and domination inherent in the condition of enslavement – could be passed on from master to slave. Along with other slavery scholars, I construe the myriad forms of manumission attendant to slave systems as reflecting a fundamental antagonism between liberty and bondage, and the law's inability to control the slave's double character. See, for example, David Brion Davis, The Problem of Slavery in Western Culture (Ithaca, NY: Cornell University Press, 1966). But Patterson sees manumission as doing the ideological 'dirty work' of slavery. He suggests that the dialectic between manumission and slavery rendered manumission 'central to the invention and social construction of the most important secular value in Western civilization, namely, freedom'. See Orlando Patterson, 'Three Notes of Freedom: The Nature and Consequences of Manumission', in Brana-Shute and Sparks, Paths to Freedom, 15–29 (26). The writ of amparo was a request for protection. In the seventeenth century, these proceedings sought the protection of the court against inflictions of physical harm, particularly from superiors, or intervention on behalf of weaker parties. Jurisdiction was delegated to the Real Audiencia and ecclesiastical courts to act swiftly on behalf of the aggrieved. See Andrés Lira González, El amparo colonial y el juicio de amparo mexicano: antecedentes novohispanos del juicio de amparo (Mexico City: Fondo de Cultura Económica, 1971). Partida IV, Tit. IX. As Ann Twinam points out, elite parents who had mixed-status children worried constantly about legitimating their offspring for inheritance purposes. If it were possible by administrative fiat, deception or clerical collusion, adulterous parents sought to categorise their children as hijos naturales, a category which, though socially disreputable, did not complicate their inheritance. Others registered their children as expósitos or as hijos de padres no conocidos (children of unknown fathers -- expositos are children of unknown parentage who are abandoned into religious institutions), which left the birth condition deliberately vague and did not foreclose inheritance or subsequent legitimation. See Ann Twinam, Public Lives, Private Secrets: Gender, Honor, Sexuality, and Illegitimacy in Colonial Spanish America (Palo Alto, CA: Stanford University Press, 1994). Transcript, f. 53. Juan Gales was present as a padrino, who paid the baptismal fee, although according to Margarita and subsequent witnesses, this was Ana's real father. Transcript, f. 61. On contemporary theories of legal mobilisation, see Anna Maria Marshall and Scott Barclay, 'In Their Own Words: How Ordinary People Construct the Legal World', Law and Social Inquiry 28, no. 3 (2003): 617–628. On subaltern legal consciousness and court action more broadly, see Sally Engle Merry, Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans (Chicago: University of Chicago Press, 1990); Frances Kahn Zemans, 'A Framework for Analysis of Legal Mobilization: A Decision-Making Model', Law and Social Inquiry 7, no. 4 (1982): 989–1071. For the classic work exploring plebeian legal consciousness, see E.P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975). In demonstrating the enthusiasm that plebeians had for laws which clearly were not in their own interest, Thompson disputed the idea that law was simply imposed on poor subjects. Subalterns also trafficked in their own visions of legality. See Sherwyn Bryant, 'Enslaved Rebels, Fugitives and Litigants: The Resistance Continuum in Colonial Quito', Colonial Latin American Review 13, no. 1 (2004): 7–46; Renée Souloudre-La France, 'Socially Not So Dead! Slave Identities in Bourbon Nueva Granada', Colonial Latin American Review 10, no. 1 (2001): 87–103; María Elena Díaz, The Virgin, the King, and the Royal Slaves of El Cobre: Negotiating Freedom in Colonial Cuba, 1670–1780 (Palo Alto, CA: Stanford University Press, 2000); Manuel Barcia, 'Fighting with the Enemy's Weapons: The Usage of the Colonial Legal Framework by Nineteenth-Century Cuban Slaves', Atlantic Studies 3, no. 2 (2006): 159–181; and Maribel Arrelucea Barrantes, Repleantando la esclavitud: estudios de etnicidad y género en Lima Borbónica (Lima: Centro de Desarrollo Étnico, 2009). Though not with specific regard to legal agency, for a thoughtful critique, see Walter Johnson, 'On Agency', Journal of Social History 37, no. 1 (2003): 113–124. On the absolutist colonial state, see Alejandro Cañeque, The King's Living Image: The Culture and Politics of Viceregal Power in Colonial Mexico (New York: Routledge, 2004); Herman Bennett, Africans in Colonial Mexico: Absolutism, Christianity and Afro-Creole Consciousness, 1570–1640 (Bloomington: Indiana University Press, 2003); and Alejandra Osorio, 'The King in Lima: Simulacra, Ritual, and Rule in Seventeenth-Century Peru', Hispanic American Historical Review 84, no. 3 (2004): 447–474. Hünefeldt, Price of Freedom. See Jeremy Mumford, 'Litigation as Ethnography in Sixteenth-Century Peru', Hispanic American Historical Review 88, no. 1 (2008): 5–40. The panel comprised four prominent members of the Cabildo (City Council): Juan Ximénez de Lobatón, Juan de Peñalosa, Mateo de Mata and Pedro Francisco. On 30 August 1689, we see a notarised statement from Ana Gales testifying that her sister Ysabel died and naming her as the albaçea of her estate. See Transcript, f. 312. Micaela's assets were not sold at public auction until 1687, and the formal liquidation was dated 18 June 1689. See Transcript, f. 309. Nine hundred pesos was an inflated appraisal for Margarita and her children. Prices for slaves increased exponentially in the seventeenth century after the dynastic shifts in the Portuguese monarchy in 1640 and the brief cessation of the slave trade between 1615 and 1640. See Enriqueta Vila Vilar, Hispanoamérica y el comercio de esclavos (Seville: Escuela de Estudios Hispano-Americanos, 1977). Rachel O'Toole's thorough review of slave sales in Trujillo, for instance, demonstrates that Peruvian planters paid, on average, 650 pesos for an able-bodied male slave between 1640 and 1730 (personal communication). Slave scarcity led to contraband slaving, primarily supplied by the Dutch, who capitalised on the political unrest between Spain and Portugal to gain a greater share of asientos (royal licenses issued for the importation of slaves). The Dutch opened up new markets in Luanda and Benin, and used their strategic location on the island of Curaçao as a base for contraband slaving after 1634. Local economic booms within Upper Peru – precisely in the agrarian valleys where Micaela's lands were located – depended on unpaid, tributary or low-wage labour. Despite the pressing labour needs of the region, purchase records for slaves have not shown such a high premium paid for a female (presumably) unskilled slave. Micaela left three other slaves who were old and sickly in her estate, who were sold for 100 pesos each. But there appeared to be no real exchange of money, since the bill of sale was registered as a transfer of property to Micaela's executor and daughters. Berrocal assigned Diego de Mendieta as tasador. Mendieta was also the person who posted Margarita's bond in 1682. There were two severe earthquakes in Lima in 1687, and one did, in fact, occur on 20 October, as Margarita testified. Transcript, testament of Ynez Barreto, f. 342. Huaura's fertile valleys attracted Spanish settlers and investors eager to profit from a booming internal market. As economic historian Kenneth Andrien reminds us: 'the growing demand for foodstuffs, the widespread network of markets established by the Europeans in the highlands and along the coast, the availability of good land, and the eagerness of Spaniards to gain the wealth and prestige that landholding promised, all led to the growth of the rural economy. These profitable agricultural and pastoral enterprises made a vital contribution to the prosperity and self-sufficiency of the vice-regal economy'. See Kenneth Andrien, Crisis and Decline: The Viceroyalty of Peru in the Seventeenth Century (Albuquerque: University of New Mexico Press, 1985), 19. The high mortality rate of her offspring is confirmed by other statistics showing abysmally low survival rates for newborn babies. Records show that birth rates on Jesuit haciendas were also low, where slaves' health conditions were thought to be relatively favourable. See Pablo Macera, Instrucciones para el manejo de las haciendas jesuitas del Perú, ss. XVII–XVIII (Lima: Universidad Nacional Mayor de San Marcos, 1966). See, for example, J.B. Owens, By My Absolute Royal Authority: Justice and the Castilian Commonwealth at the Beginning of the First Global Age (Rochester, NY: University of Rochester Press, 2005); Michael Scardaville, 'Justice by Paperwork: A Day in the Life of a Court Scribe in Bourbon Mexico City', Journal of Social History 36, no. 4 (2003): 979–1007; Linda Arnold, 'Vulgar and Elegant: Politics and Procedure in Early National Mexico', The Americas 50, no. 4 (1994): 481–500; and Reuben Zahler, 'Liberal Justice: Judicial Reform in Venezuela's Courts, 1786–1850', Hispanic American Historical Review 90, no. 3 (2010): 489–522. With particular regard to slaves' protections and absolutist justice, see Bennett, Africans in Colonial Mexico. Additional informationNotes on contributorsMichelle A. McKinleyMichelle A. McKinley is Associate Professor of Law, University of Oregon School of Law, 1515 Agate Street, Eugene, Oregon 97403-1221, USA.
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