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  • Becoming Free, Becoming Black
  • Race, Freedom, and Law in Cuba, Virginia, and Louisiana
  • Online publication date: January 2020
  • pp 13-38

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Abstract

Chapter One traces the development of local legal regimes in Cuba, Virginia, and Louisiana in which blackness was identified with enslavement and social degradation. We demonstrate that legal and social precedents such as those invoked by Frank Tannenbaum and Alan Watson mattered deeply to the development of these new slave societies, yet not in the way traditional comparisons argued. By the time the Iberians arrived in the New World, they were familiar with the enslavement of sub-Saharan Africans, and set about immediately to establish a racially based society in Cuba. In Virginia, by contrast, distinctions of race were not systematized in law until slave status was set in stone decades after the colony’s settlement. The French arrived in Louisiana at a much later point in the development of their empire, and had already written a code for slaves and “noirs.” Across the regions, colonial legislators established a degraded status for people of African descent, but they did so much more quickly in Cuba and Louisiana.

Chapter 1 “A Negro and by Consequence an Alien” Local Regulation and the Making of Race, 1500s–1700s

In 1561 Beatriz Nizardo, described as “of dark color” (de color morena), approached the town council of Havana to request an urban lot. Havana was then a small town, inhabited by just forty to sixty vecinos, or heads of household; a few hundred slaves, mostly of African origin; and a small but growing community of free blacks, who may have represented between 10 and 15 percent of the total free population. Located at a crucial site in the sea-lanes of the Spanish Empire, the town was on the verge of becoming one of the most important naval and commercial port cities of the early modern Atlantic, a transformation made possible, to no small degree, by the labor and the abilities of enslaved and free Africans and their descendants.1

Nizardo’s request was unusual. According to the minutes of the town council, only four other free black individuals, all women, had registered petitions for urban lots in the previous decade. Through these petitions, free blacks performed rituals of subjecthood and belonging, as they signaled the will and the means to “populate” the lots, to build houses in them, and to reside permanently in town. Such requests represented an important step toward vecindad, loosely translated as “citizenship” or “residency,” a social and legal category that implied standing and membership in a local community. Acts like these turned the abstract idea of “total freedom” promised by formulaic manumission letters into socially meaningful opportunities for respectability and advancement.2 Nizardo married Diego de Rojas, a free black man, and they amassed a small fortune that included several farms – a corral (pig farm) Rio Grande, west of Havana, among them – as well as urban property. A son of Rojas, Diego de Salazar, worked in 1599 as a sugar master and operated one of the many taverns that proliferated in the shadow of Havana’s bustling service economy. Nizardo and Rojas do not appear to have owned slaves, but many free blacks did. In 1600, for instance, Cecilia Velazquez declared in her will that she owned six slaves. Another free black man, Anton de Licona, also listed six slaves in his 1628 will, four adult Africans and two children. Sebastian Vazquez, “of Angola nation, free moreno,” owned two slaves in 1637, Juan Malemba and Catalina Conga. As they accumulated property and standing, Nizardo and her family helped to create a vibrant and enduring community of free people of color in colonial Havana.3

Nevertheless, the limits of freedom are apparent in the response to Nizardo’s own petition. The town council rejected it because the lot was not located “near where the other free blacks are.” As early as the mid-sixteenth century, the local authorities of Havana were crafting a social and residential urban layout that identified blackness with certain areas of the emerging city. Indeed, a petition from 1559 had already made reference to the “neighborhood where the other negras horras [free black women]” lived. It is possible that similar efforts also shaped the allocation of farmland near Havana, as clusters of agricultural units owned by free blacks are evident in the records going back to the early seventeenth century. In 1600, for instance, the morena horra Isabel Perez requested an estancia – a small farm in the outskirts of the city – adjacent to those of Matias and Diego Perez, negros horros. Likewise, the estancia of Sebastian Vazquez, a “free moreno, of the Angola nation,” was located near the farms of two other freed Africans, Juan Bañon and Manuel Congo. Distinctions based on race as well as status were already being built into law and custom in early colonial Havana.4

Compared with Cuba, seventeenth-century Virginia was a small colonial outpost with few white colonists and even fewer Africans, free or enslaved. Anthony Johnson may have arrived in Virginia in the first shipment of “negars” in 1620, but by midcentury he owned property and slaves in Northampton County, on the Eastern Shore in Virginia. He appears frequently in court records, trading cattle, mares, land, and tobacco with other free people of color and white men. Johnson owned upwards of two hundred fifty acres of land and at least two black servants, as well as several herds of livestock. In 1653 his own servant John Casor sued him for his freedom, claiming that he had been indentured for seven years, whereas Johnson insisted he was a slave for life. Several of Johnson’s white neighbors backed Casor’s claim, and the following year Johnson took the aggressive approach of suing one of the neighbors, George Parker, for “detaining” Casor on his property. Johnson won, and Casor returned to bondage. Johnson’s son John received a patent for land after suing a white resident of Northampton who had tried to take possession of the land illegally. In 1667 Johnson was charged with stealing corn from a Native American man and apparently received the same sentence as his two white partners in the crime. And several years after that he was sued by a white man, Randall Revell, and was allowed to testify against Revell after declaring that he was a Christian and understood the meaning of taking an oath.5

Yet by the time Anthony Johnson died, his property could not protect his children from discrimination on the basis of race. His land reverted (“escheated”) to the Crown when he died in 1670 because “he was a Negroe and by consequence an alien.”6 In the late seventeenth century, Virginia’s colonial legislators began to pass laws constituting blackness as a debased condition. By the early eighteenth century, it would have been impossible for Johnson or his son to appear in court to testify against a white man. Statutes spoke of “negroes and other slaves” as though “negroes” were by definition enslaved – and uniquely appropriate for enslavement.

By marking out areas of public life reserved for white people, and relegating even free people of African descent to a degraded position in colonial society, colonists in both Cuba and Virginia created race through law – as did the French colonists settling Louisiana a century later. Legal race making became a distinctive feature of Atlantic slave societies, reducing Africans and their descendants to “negroes,” “negros,” “nègres,” or “noirs,” subjects without history, honor, or genealogy. Blackness obliterated and flattened a multitude of cultures, languages, histories, and experiences into a single legally defined, socially constituted category of degradation.7 Across linguistic and imperial barriers, the law constituted “blacks” as social outcasts, conflating their social existence with enslavement. Legal prohibitions that applied to “all black men and women, free or enslaved,” or defined certain actions by “any black or mulatto” against “whites” as a crime, made blackness, rather than enslavement, the mark of degradation.8

Across the Americas, slaveholding elites began the process of legal race making almost as soon as they arrived in the colonies. The Iberians, however, had a head start. Unlike the British and the French, by the sixteenth century the Iberians had already advanced considerably in the creation of a legal doctrine that identified negros (and occasionally mixed-race mulatos or pardos as well) with slaves, and that rendered people of African descent socially degraded and culturally inferior. By the time they arrived in Havana, Spanish colonists could draw on Iberian social and legal precedents that had already settled key questions concerning slaves, such as the heritability of slave status, the compatibility of slavery and baptism, and the indelible social stains associated with enslavement. French colonists arrived in Louisiana in the early eighteenth century with decades of experience enslaving Africans in the Caribbean. By contrast, Virginia’s colonists lacked clear legal precedents for slavery, and thus important questions about the relationships among Christianity, African origin, and enslavement remained unsettled and open to interpretation in Virginia. This created opportunities for slaves and free blacks that were absent in the Spanish and French colonies. Although it is true that Iberians arrived in the New World with a slave code, the Siete Partidas, that referred to the slave “as a human being,” whereas British planters could define slaves as “chattel,” the practical effect of Iberian legal and social precedents was to arrive even more quickly at hardened racial distinctions in the law.9

The Spanish colonists in Havana built on their experience of slavery on the Iberian Peninsula. Although the number of “white slaves” (from North Africa or the eastern Mediterranean) in Iberia was far from negligible in the sixteenth century, the proportion of sub-Saharan Africans was growing fast, and they represented the overwhelming majority of the enslaved in the colonies. By as early as the sixteenth century, “negros” were deemed to be people “without honor and faith” and described as ugly, barbarous, and savage. Hell itself was associated with blackness. As a tutor to the prince of Portugal explained in 1535, when he arrived in Portugal he felt he had been “transported to a city in hell; indeed, everywhere [he] looked [he] saw nothing but blacks.” The Spanish concept of limpieza de sangre, or purity of blood, developed in the fifteenth century to distinguish between “Old Christians” and those of Jewish, Muslim, or heretical origin, also shaped Iberian ideas of difference between Africans and Europeans. When Spaniards traveled to the New World, ideas of purity of blood as applied to Africans contributed to early modern conceptions of race.10

Iberian legal ordinances blurred the line between social status and skin color or African ancestry. In early sixteenth-century Lisbon, for instance, a variety of prohibitions applied to black people both free and enslaved. As of 1515, “black women,” either slave or free, “could sell their wares only” in certain designated spaces, and by midcentury these black petty traders, again regardless of social condition (and this time, also regardless of gender), were subject to special penalties when they defrauded customers. “Blacks” were also forbidden from holding dances and gatherings. Laws segregated the city’s municipal fountain according to race, with separate spouts for whites and for all others, enslaved or free.11 Slaveholders in Havana and other Spanish colonies ruthlessly and expeditiously built on these precedents to create racially discriminatory legal systems for los negros.

Building on local legal precedents and racialized understandings of blood purity, the Iberians pioneered the creation of racist legal regimes in the Americas; by the early eighteenth century, British and French colonies had caught up to them.12 From their institutional bases of power, in the cabildos (town councils), in the courts, and, later, in consultative bodies such as the Real Consulado de Agricultura y Comercio, slaveholders in Cuba created a racist slave legal regime that prefigured the slave codes of Virginia and Louisiana.13

Legal Borrowings

None of these legal regimes developed in isolation. The Europeans who introduced African slaves and slavery into the New World built on practices and principles that circulated around the Atlantic. Many of the Spanish colonizers came from (or through) cities such as Seville, Lisbon, and Valencia, the slaveholding capitals of sixteenth-century Western Europe. Northern Europeans were less familiar with both slavery and African peoples, but even they knew about the institution. Trade and exchanges with the Iberian Peninsula through the late Middle Ages had spread information about slavery and Africans. By the fifteenth century some basic principles, such as the impropriety of enslaving fellow Christians, were widely shared and respected.14

Colonizers and lawmakers in new colonies borrowed slave regulations from other colonial legal regimes. Enslaved people also drew on their experiences in other colonial settings as they made claims on legal institutions, invoking different understandings of law and rights as they moved around the New World. When a slave named Fernando sued his Virginia master in 1667 for wrongful enslavement, for example, he used legal strategies that he probably had acquired in an Iberian colony, “pretending hee was a Christian and … present[ing] several papers in Portugell or some other language which the Court could not understand which he alledged were papers From several Governors where hee had lived as a freeman.” Many of the first Africans imported into Virginia had spent some time in Caribbean colonies first, not only Barbados but also Spanish holdings, as evidenced by the Spanish names of some early enslaved and free men of color on the Eastern Shore of Virginia. Judicial authorities in Virginia did not have a clear body of slave law to rely on, as the Spanish colonists did, but they appealed to established legal practices elsewhere and drew from the English legislation on vagabonds and other masterless subjects.15

Later slave legal regimes had the advantage of hindsight and could build on previous practices and solutions. By the time the English settled Virginia in the early seventeenth century, the enslavement of Africans had already spread across the New World. In adjudicating the status of Africans and their descendants, such as Fernando, the English colonists could follow the lead of the Iberians and conclude that slavery was a permanent condition, and apply the principle of partus sequitur ventrem, according to which slave status passed from mother to child. By the time African slaves arrived in Louisiana, the French had already accumulated significant experience with slavery in the Caribbean colonies of Martinique and Guadeloupe. French legislation and legal principles concerning slaves were readily transplanted to Louisiana. Like the English, the French borrowed Iberian legal practices that settled some of the thorniest questions concerning slaves, such as those addressing conversion to Christianity and baptism. As the Dominican friar Jean-Baptiste Du Tertre casually acknowledged, French slaveholders were attentive to how other Christian nations managed their slaves.16

The Virginia colonists lacked the direct cultural and legal references available to the Spanish and French. Although it is now well established that the British imported Africans from the first as slaves, Virginia during the early decades of the colony was characterized by a high degree of uncertainty about many of the basic rules regarding slavery. There were no provisions for slavery in English common law because slavery had disappeared there several centuries earlier. Villeinage, the British form of serfdom, was not seen as a suitable precedent for the regulation of slaves. Although apprenticeship, which bound a servant to a master for a period of years, bore some similarities to slavery, and early colonial statutes sometimes lumped together English indentured servants with African slaves, the law of master and servant left open important questions. The first British colony to develop a slave code, Barbados, did so in 1661, decades after the first slaves had set foot in Virginia. The Barbadian code drew on French and Spanish colonial slave laws as well as English master-servant law, but Virginia’s lawmakers did not borrow wholesale from Barbados as their fellow colonists in South Carolina did, waiting instead until 1691 to pass their first comprehensive slave code. Thus Africans in early colonial Virginia had an ambiguous legal status that was unthinkable in the Spanish colonial world.17

When the French sought a legal basis for slavery in Louisiana a century later, they drew on a different set of legal precedents – the 1685 Code Noir for the French colonies in the Caribbean, as well as local regulations – to draft the Louisiana Code Noir of 1724. Antillean officials had drafted the first Code Noir in 1685, based on the first fifty years of French experience with slavery. Like Spanish law, it established certain protections for slaves, including the right to observe Sundays free from work, and the right to petition in cases of abuse. Masters over the age of twenty had the right to manumit their slaves for any reason and without permission, and freed people gained all “the same rights, privileges, and liberties enjoyed by persons born free,” although they were also required to “retain a particular respect for their former masters, their widows, and their children.” Any insult to the former master’s family would be “punished more severely tha[n] if it had been done to another person.” This code was in force in Saint-Domingue, Martinique, and Guadeloupe for nearly forty years before the colony of Louisiana was established. Thus, the French already had a great deal of practice when it came to the regulation of African and Indian slaves.18

2. Carte de la Louisiane, 1755. On this “map of Louisiana and its neighbors,” Jacques Nicolas Bellin drew topographic features and also indicated the locations of Indian tribes. Jacques Nicolas Bellin, Carte de la Louisiane et des pays voisins (Paris? between 1755 and 1762).

Map, Library of Congress, Geography and Map Division, www.loc.gov/item/73693831/.

Unlike the Spanish colonists in Cuba, who brought legal and social precedents for African slavery with them from Iberia, the colonists in Louisiana and Virginia drew on legal precedents with Atlantic colonial roots and were particularly susceptible to the influence and preferences of slave owners. The systems in both Virginia and Louisiana were based on colonial experience and both owed their creation to the efforts of colonial legislatures populated by slave owners. As in the French Caribbean during the seventeenth century, slavery was “a practice” long before it was “an institution” in Virginia.19 By contrast, long before slavery was practiced in Cuba, slavery was a well-known and well-defined institution in the Iberian world.

Legislating Blackness in Cuba

Spanish colonists in Havana acted immediately upon arrival. Efforts to legislate a subordinate place for “negros” regardless of their legal status, can be documented as early as local municipal ordinances become available, in 1550.20 These efforts built on police regulations and municipal ordinances produced in the slave centers of Mediterranean Spain and Santo Domingo, the first colonial slave society in the Americas. The town council of Santo Domingo produced the first slave code indigenous to the Americas in 1522. It was titled “Ordenanzas de los negros,” even though not all slaves on the island were black. The ordinances acknowledged the existence of slaves who were “blancos e canarios” (white and from the Canary Islands), but nonetheless conflated the categories of slave and negro in several of its articles. The article dealing with the prohibition on carrying weapons, for instance, made reference to “los dichos negros y esclavos,” as if all “negros” were presumed enslaved. Other articles reinforced the connection, making reference to “negros y esclavos” who were drunkards and thieves. The conflation of negro and esclavo was reinforced and in fact amplified by subsequent statutes. An ordinance approved in 1535 mentioned the “negro huído” (runaway black), “negros alzados” (insurgent blacks), or simply “negros” and established prohibitions and punishments that sometimes referred to negros and Berber slaves as if “negro” did not require such a qualification. By 1544, when the town council of Santo Domingo approved new regulations concerning slaves, it referred to the laws as “ordenanzas cerca del trato de los negros,” or “ordinances concerning the treatment of blacks.”21

3. Cuba 1707. This map of Cuba and Jamaica with portions of Florida and Hispaniola, “as populated by the Castilians,” depicts the centrality of Cuba in the Caribbean.

John Carter Brown Library Map Collection, Brown University.

Municipal officials in Havana were therefore traversing familiar territory when they set to the task of creating a legal order that placed negros and slaves, two categories frequently used interchangeably, at the bottom of the social order. To that end, colonial officials often wrote regulations referring only to “negros,” even though they clearly targeted slaves. For example, the Havana cabildo, or town council, issued an ordinance on January 28, 1554, after local officials bemoaned that “some blacks, men and women” (“negros y negras”) lived in houses “separate from the house of their masters,” where suspicious gatherings of blacks “and even Spaniards” took place. The cabildo ordered “that no black man or woman could have his own house to live [in] outside the houses of his master.” Another municipal ordinance from 1620 concerning self-employed female slaves spoke of “negras ganadoras.”22 Like the regulation of 1554, it did not directly refer to slaves, but both laws made reference to “masters,” which suggests that the regulations dealt primarily with slaves (although, as we shall see, masters were sometimes mentioned with reference to freedmen as well). Regulations of this sort implied that the term “negro” could be used as an unproblematic substitute for “slave,” blurring possible distinctions between the two and contributing to the social debasement of blackness.

Other Havana regulations, including municipal ordinances, police regulations, and gubernatorial bandos or decrees, targeted “negros,” whether free or enslaved, creating legal distinctions based only on race. “In this town,” the town council complained in 1553, “some negras have lodging houses and serve food and sell wine which is of great damage to this town.”23 In 1561 the council ordered the confiscation of weapons that “many negros of this town have in their houses and estancias.” The council also forbade wine sales to “blacks … given that there is little wine.” A 1612 regulation prohibited sales of meat, except at authorized butcher shops, to all persons “of any quality or condition,” but stipulated different penalties for Spaniards and for “negras y mulatas.” A 1550 ordinance banned negros from cutting trees around the town, under penalty of 300 lashes and ten days in jail.24 In the 1750s, the colonial governor prohibited “gatherings of blacks and other degraded people.” A 1765 regulation condemned “los negros” who threw litter from the docks to six months of forced labor in the forts. Another ordinance in 1773 forbade the use of fireworks when “blacks gather for their dances” in their cabildos or brotherhoods, during local festivities, and a 1786 law established a curfew for “las negras” who sold pastries during religious festivals. By 1799, a gubernatorial bando established limits on trading and marketing that applied to all “people of color,” or “gente de color,” regardless of status.25

Several ordinances explicitly included free and enslaved blacks under the same legal regime. Unlike the previous set of regulations, which spoke of negros (or, later, of “gente de color”) without reference to status, these established similar legal treatment for both free and enslaved blacks. In other words, in these regulations race trumped status. One 1556 ordinance, for instance, made reference to “those who have been recently manumitted” as “free slaves.” A 1551 ordinance prohibited the sale of crabs and fruits to slaves who hired themselves out “and to any other negro.” One in 1565 banned blacks, “slave and freed,” from hunting on their own. Another in 1570 forbade black “freedwomen and captives” from selling wine. In 1589, a regulation stipulated that a “person slave or black” selling corn tortillas at unfair prices “should be jailed until her master” paid a penalty. A 1599 ordinance prohibited “negras captives and freed” from going to the estancias to make a living. One in 1621 stipulated that no black man, either “captive or freedman,” was allowed to sell meat in the streets, under penalty of 200 lashes. In 1766 Governor Antonio Maria Bucarelli prohibited “all black men and women, free or enslaved” from selling merchandise in the streets. Another gubernatorial decree, this one from 1792, asserted that no “black, free or slave” could carry weapons, and established identical punishments for those who did, regardless of status. All of these laws demonstrated how tenuous the line could be separating freedmen from slaves.26

Another group of rules specifically targeted the “negros horros,” or free blacks. Theoretically, a freed slave became a vassal of the king and could enjoy all the privileges associated with free status. But in Spanish colonial society, the lowly origin and tainted lineage of free blacks became formidable obstacles for gaining social standing and mobility. Colonial officials and local elites inscribed these differences in social worth and status in the law. For instance, as free men who served in the military and who owned houses and land, free blacks claimed the category of vecinos, which indicated that “they were socially and politically members of the local community.” Among the privileges linked to vecindad was participation in municipal elections and in open town council meetings – the so-called cabildos abiertos. Claiming in 1621 that the number of free blacks was too large, and that there was a real danger that a member of this group could end up being elected, colonial officials and the town councilors of Havana created new electoral procedures that effectively barred free black men from municipal office.27

This was not an isolated incident. Free black men complained that local colonial officials and members of the elite systematically humiliated them in public and denied them the privileges to which they were entitled as vassals of the king. In the 1670s, the Marquis of Varinas warned that the “ill treatments given in this city [Havana] to the free blacks and mulattoes” were bad policy for a city with such a large free black population. Efforts to mark the social inferiority of free blacks were reflected in a variety of police regulations. One in 1565 prohibited free blacks from hosting slaves in their homes, a prohibition that was renewed in 1632 and again in a gubernatorial decree of 1777. A 1603 ordinance against vagrancy ordered all “mulatto youngsters and freedmen to take on a master in the following month” and settle on farms.28 This regulation placed “freedmen” and “masters” in the same sentence – another example of the authorities’ desire to reduce the distance between slaves and freedmen.29 The same goal informed a 1611 regulation that ordered all free blacks to register with local authorities and to declare their place of residence, under penalty of becoming royal slaves. Reproducing discriminatory sumptuary laws approved elsewhere in Spanish America, a 1623 ordinance restricted freedwomen’s ability to wear gold and silk, symbols of high social status. Free blacks and mulattoes were also barred from entering honorable professions and certain bureaucratic institutions, attending universities, or joining the clergy, all of which required purity of blood, or proof of a “clean” Catholic lineage. The occasional exceptions did not undermine this socioracial order. Some colonial authorities complained, for instance, that clerics were being ordained without observing the necessary formalities concerning lineage, allowing mulattoes to access the clerical orders. One extreme example was that of Juan del Rosario, son of a “negra bozal esclava” (black African female slave who did not speak Spanish), who was described as “not just mulatto, but of such dark color that [it] creates irreverence.”30

These laws eroded distinctions between Africans and their descendants who were legally free, and those who lived under slavery. Free blacks navigated this restrictive legal regime the best way they could, obtaining specific licenses or permits to perform occupations that were otherwise closed to them. In 1565, for instance, the cabildo acknowledged that Catalina Rodriguez, Juana Garcia, and Angelina Martin, “negras horras” (freedwomen), as well as “Diego negro,” had been selling wine lawfully for years and authorized them to do so in the future. Yet, when a few years later Juana Garcia tried to be exempted from a prohibition against selling wine in the neighboring village of Guanabacoa, on the ground that she was free by birth, that she was married to a Spaniard, and that she had “lived well and in favor of this republic,” her request was denied.31 Though the cabildo mostly lacked enforcement power over its regulations – hence their repetition – every new ordinance reinforced the inexorable association of blackness with slavery and dishonor.

These legal initiatives were precocious and systematic. By the late sixteenth century, these regimes were in place in all Spanish colonies, and there were no doubts about the degraded place that negros occupied. That is why colonial officials and chroniclers frequently enumerated the categories of Spaniards, vecinos, and negros, as though they were exclusive, although in practice many vecinos were in fact negros.32 Spanish monk and chronicler Antonio Vázquez de Espinosa reported in 1628 that Havana had 1,200 “Spanish vecinos” and “a large number of people of service blacks and mulattoes.”33 Grouping blacks into a single population group without status distinctions reinforced the primacy of race in marking social cleavage.

Fluidity and Codification in Virginia

Virginian colonists also created a racial legal regime closely associating blackness with slave status. Its creation was slower and more fitful, however, because the lack of legal precedents in English law concerning slaves and blacks allowed for a degree of ambiguity and uncertainty that was unthinkable and unnecessary in Havana. From the initial decades of colonial settlement through at least the mid-seventeenth century, “negroes” were not legally defined as slaves and at least some of them enjoyed privileges and rights later reserved for Englishmen. Virginia’s racial legal regime was built over decades, as colonists grappled with such basic questions as whether enslavement was a permanent and inheritable condition, how slave status would be transmitted to children, and whether Christian baptism was compatible with enslavement. None of these questions had posed serious doctrinal or logistical quandaries to Iberian slave owners. In the last decades of the seventeenth century, legal innovations linked black people to lifelong servitude, making slavery a heritable condition, and reducing black people’s privileges and rights. Colonists set moral and religious scruples aside, writing laws that associated enslavement with non-Christian origins, rather than heathenism. By the early eighteenth century, Virginians had codified a legal regime that deprived even free black people of basic civil rights and prevented them from holding any public office.34

The early status of Africans in Virginia is difficult to pin down. From the beginning, the legal records include a notation of racial status only for “negroes” or “Indians,” mentioning white people by name or nationality but without a racial designation, which suggests a distinction between Europeans and others that slowly made its way into the language of the law. Yet the first statutes and legal decisions to refer to “negroes” were not obviously discriminatory. For example, the first such statute was a 1639 act excluding “Negroes” from a state subsidy for arms and ammunition: “All persons except Negroes are to be provided with arms and ammunition or be fined at the pleasure of the governor and council.” Some historians have interpreted this act as barring blacks from bearing arms, but the language of the statute does not justify such a conclusion. The act of 1639 directed that “all masters of families … use their best endeavours for the f[u]rnishing of themselves and all those of their families which shall be capable of arms (excepting negroes) with arms both offensive and defensive.” The statute neither prevented all blacks from bearing arms nor made it illegal for blacks to engage in offensive or defensive warfare, and it appears to have been more focused on the taxation of arms than on keeping arms from the hands of black people. The legislature did not reconsider the question of black people bearing arms for another two decades.35

4. John Smith’s Virginia. Captain John Smith’s map of Virginia, the first detailed map of the colony, was used for most of the seventeenth century. John Smith and William Hole, Virginia (London, 1624).

Map, Library of Congress, Geography and Map Division, www.loc.gov/item/99446115/.

In criminal cases, as well, the written decisions of Virginia’s General Court leave unclear the distinctions between European and “negro” offenders. In 1640, three of Hugh Gwyn’s servants were punished for running away together. Two Europeans, a “Dutchman and a Scotchman,” were each sentenced to additional years of servitude, while “negro … John Punch” was sentenced to serve for his natural life. A few weeks later, servants of Captain William Pierce plotted to run away. Christopher Miller, identified as a Dutchman, was sentenced to whipping, branding with the letter R, working with a shackle on his leg for one year, and giving an additional seven years of service; Peter Wilcocke was sentenced to whipping, branding, and giving three years of additional service; Richard Cookson, an additional two and a half years of service; Andrew Noxe, whipping; and John Williams, working seven additional years. The only servant who was named with a racial label, “Emanuel the Negro,” was sentenced to whipping, branding, and working with a shackle on his leg for at least one year.36

How can we interpret these sentencing decisions? It is certainly plausible to infer that a presumption was already developing that Africans would serve their masters for life while Europeans would serve only for a period of years, but that is not the only possible conclusion. Although it was possible that only Emanuel was already serving Captain Pierce for life, Christopher Miller, the Dutchman, as well as Wilcocke, received sentences similar to Emanuel’s. In this case we have clear evidence that people designated as “negroes” as well as those identified by their European nationality or unidentified by race (and therefore presumably accepted as white) ran away together or conspired to run away together, along with ambiguous evidence that negroes may have been viewed as more appropriately serving their masters for life rather than for a period of years. This interpretation grows stronger when read in light of later statutes that make direct reference to cases in which negroes could not serve additional years because they were already serving for life.37 When one compares these cases to later decisions, however, most striking is how minimally the “negro” is singled out for differential treatment.

The connections between race and status began to be clarified after 1660, although the first full slave code did not appear until 1691. The new laws establishing more firmly the debased status of people of African origin may well have been a response to the rising population of free people of color, as well as to political pressure. As many as one-third of the people of color in some Virginia counties in the late seventeenth century were free, and white elites increasingly feared the formation of political alliances among white indentured servants, blacks, and Indians.38 This fear came to a head in the aftermath of Bacon’s Rebellion, an uprising of servants against elites that involved Indians as well as Europeans and Africans.

The first direct reference to “negroes” as slaves in Virginia legislation appeared in a 1659 statute imposing reduced import duties on slave merchants. In 1662, the Virginia General Assembly adopted the rule of partus sequitur ventrem, already universal in other parts of the Americas, that a child’s slave or free status would follow the condition of the mother. The assembly members explained, “Whereas some doubts have arisen whether children got by any Englishman upon a negro woman should be slave or free, Be it therefore enacted and declared by this present grand assembly, that all children born in this country shal[l be] held bond or free only according to the condition of the mother.” The law went on to double the fine for fornication if it occurred between a “Christian” and a “negro man or woman.” The first clear statutory racial distinction among free people was a 1668 law proclaiming that negro women were not exempted from the head tax because, though free, they “ought not in all respects to be admitted to a full fruition of the exemptions and impunities of the English.” These first laws engendered racial difference by designating different consequences for production and reproduction by black and white women.39

In 1667 the Virginia legislature severed the link between Christianity and freedom, decreeing that even baptized slaves would not be “exempt … from bondage.” Three years later, it added the further restriction that “noe negroe or Indian though baptised and enjoyned their owne ffreedome” would be allowed to buy Christians, although they could buy “any of their owne nation.” Finally, the legislature clarified that non-Christian servants who arrived in the colony “by shipping” became slaves for life, whereas those who arrived on land – namely, Indians – would be indentured servants.40

A 1669 case hints at the multiple dimensions of racial status in early colonial Virginia, yet leaves many questions unanswered: “Hannah Warwick’s case extenuated because she was overseen by a negro overseer.”41 From this single-sentence record, we do not even know Hannah Warwick’s crime. Because Hannah’s racial status was not noted, it is likely that she was white. On the one hand, we observe that it was possible for a white servant to work under a “negro,” while on the other hand, the extenuation of her case suggests a belief that a white person working under a “negro” was a violation of the natural racial order. But the sparse record does not allow us to draw firm conclusions.

Several late-seventeenth-century acts reinforced the notion that “negroes” and “slaves” belonged in the same legal category. In 1672 Virginia’s first comprehensive act for apprehending and suppressing “runaways, negroes, and slaves” was passed. A 1680 statute complained about “the frequent meetings of considerable numbers of Negro slaves under pretense of feasts and burials” and determined that “no Negro or slave may carry arms.” The same statute prescribed severe punishments, even death, for “any Negro [who] lift up his hand against any Christian.” A 1691 act referred to troubles caused by “negroes, mulattoes, and other slaves” who “unlawfully absent themselves from their masters and mistresses service,” while one of 1692 established expedited proceedings for the prosecution of “negroes and other slaves.” These statutes make it clear that there were still “other slaves,” namely Indians, and that there were “negroes” who were not slaves, yet also that the legislators viewed African heritage as peculiarly related to enslavement.42

By establishing a clear and rigid distinction between “negro” and “Christian,” the act of 1680 also exemplified how the legislature navigated the thorny question of slaves’ conversion to Christianity and the enslavement of coreligionists. At least some of the black people living in early colonial Virginia were Christians who claimed rights and even freedom on that basis. Slaveholders became reluctant to baptize enslaved children, fearing that they might then demand privileges and rights. The 1667 law put an end to these doubts, severing once and for all the link between Christianity and freedom. The slave code of 1705 reiterated that conversion would not emancipate a slave:

All servants imported and brought into this country, by sea or land, who were not [C]hristians in their native country, (except Turks and Moors in amity with her majesty, and others that can make due proof of their being free in England, or any other [C]hristian country, before they were shipped, in order to transportation hither) shall be accounted and be slaves, and such be here bought and sold notwithstanding a conversion to [C]hristianity afterwards.43

The slave code of 1705 also expanded significantly the rights of “[C]hristian white servants.” Through these legal maneuvers, the legislature helped to solidify and naturalize distinctions between whites, especially those of the lower social strata, and blacks, regardless of status. The law made it illegal to “whip a [C]hristian white servant naked” and offered detailed instructions for how to feed, clothe, and care for servants: “That all masters and owners of servants, shall find and provide for their servants, wholesome and competent diet, clothing, and lodging, by the discretion of the county court; and shall not, at any time, give immoderate correction.” The law also provided mechanisms for servants to file complaints with justices of the peace, who in turn were instructed “to adjudge, order, and appoint what shall be necessary as to diet, lodging, clothing, and correction.” These provisions applied to “all servants (not being slaves).”44

By the early eighteenth century, the association in law between negro and slave was clearly established. Initial questions concerning the terms of servitude had been settled, in the case of Africans by rendering them slaves for life. The legislature of Virginia had also clarified that this condition was heritable and transmitted through the maternal line. On this aspect the legislature had turned against traditional English doctrine, which held that the status of the child was determined by the status of the father. Now, like other slave societies, including the Spanish and French, Virginians followed the Roman principle of partus sequitur ventrem. Virginia legislators also decided that conversion to Christianity did not imply freedom, an idea well established in the Catholic Mediterranean world, where baptizing slave children was customary and prominent theologians had ruled that baptism affected sin, “but not the circumstances or obligations of men.” Once these principles were established in the early eighteenth century, later acts and regulations mostly just reiterated and elaborated them, especially a series of limits on the rights of “free negro[es], mulatto[es], or Indian[s],” including the right to vote, bear arms, or intermarry with white men and women.45

Unlike in Cuba, however, racial differentiation took hold only gradually in seventeenth-century Virginia. There were three legal mechanisms for racial formation: regulations of sexual conduct and reproduction; laws distinguishing negroes, regardless of social status, from Indians and white servants; and statutes severing racial status from religious affiliation. Together, such legislation firmly established African slavery and the legal subordination of blacks in the legal system. In the same period, the tobacco economy guaranteed that the institution of slavery would grow. Between 1700 and 1740, the number of slaves grew tenfold, to sixty thousand, and by the time the first census was taken in the new republic in 1790, slaves made up 44 percent of the population of Virginia.46

Louisiana’s Code Noir

In contrast to Virginia, by the time French colonists settled Louisiana in the early eighteenth century, few doubts existed about the place that Africans and their descendants were to occupy in the colony’s social structure. There is some debate among scholars concerning the centrality of race in the evolution of Louisiana’s slave law, however. Some have argued that the Code Noir of Louisiana did not establish a racial order. Instead, they contend, the extension of equal rights to free blacks undermined the creation of such an order.47 But there is considerable evidence that Louisiana planters and legislators sought to associate slavery with blackness. Ordinances and police regulations that spoke of “negroes” when referring to slaves, or that imposed specific and harsher punishments on black offenders, illustrate this trend.

The Code Noir’s very name suggests the will to connect slavery with race.48 The code dealt in fact not just with esclaves nègres but also with freed and free-born Africans and their descendants. As in Havana and Virginia, some regulations concerning slaves spoke of negroes, as if both words meant the same thing. Article 31 held masters liable for thefts committed by their slaves unless they preferred to surrender ownership of their “negroes.” Article 15 forbade “negroes to sell any commodities, provisions, or produce of any kind” without a written authorization from “their masters.” According to article 4, “negroes” placed under the care of non-Catholics were liable to confiscation.

The code also marked out a degraded status for freed slaves, thereby building racial distinctions into the law. As was the case in Havana and Virginia, the code stipulated harsher, racially specific punishments for black transgressors and introduced legal handicaps that applied only to free people of African descent. The fines that freedmen or “free-born negroes” paid for hosting a fugitive slave, for example, were three times higher than those paid by “all other free persons, guilty of the same offense.” Article 34 of the code also asserted that black persons who could not pay their fines would “be reduced to the conditions of slaves, and be sold as such.” The law prohibited all free blacks, regardless of whether they had been born free or enslaved, from receiving any donations or legacies “from the whites.” This measure limited black people’s opportunities for accumulation and mobility, by inserting a barrier against interactions between “negroes” and “whites.” The same concern animated the prohibition against interracial marriage and interracial sex. These prohibitions were not included in the 1685 Code Noir; they came later, in answer to French Caribbean colonists’ growing anxiety about the preservation of the racial order. The code’s regulation on marriage was couched in specifically racial terms, forbidding “white subjects, of both sexes, to marry with the blacks” and priests and missionaries “to sanction such marriages.” Concubinage between “white subjects” and “blacks” was also prohibited, and in cases of interracial sex between a white master and his slave, any children were to be confiscated and could never become free. The situation was different if an unmarried free black man and an enslaved woman had a child together. In such cases, their subsequent marriage could emancipate both mother and child, bestowing legitimacy on the child. This radical divergence in the fortunes of mother and child, depending on whether or not she crossed racial lines, helped to make the Louisiana Code Noir “the most racially exclusive colonial law of the French Empire.”49

The colonial governor issued a set of police regulations in 1751 that further entrenched racial distinctions.50 As in Havana and Virginia, these laws often conflated “negros” and slaves, or referred to them interchangeably. Article 24, for instance, made reference to “any Negro or any slave.” It empowered whites to stop them at any time to verify that they were in possession of a written pass to be in the streets of New Orleans or on the “public roads.” Another section decreed that “all the negroes and other slaves” should attend an early mass, apparently separate from whites. The 1751 laws also elaborated on “the respect and submission” that “any negro or other slave” owed “to white people.” Any white person who met a black person carrying a stick, or considered the black person insolent in any way, was exhorted to whip the slave, or even to have him branded on his backside with a fleur-de-lis. Like the ordinances of Havana and Virginia, many regulations in the code referred to slaves as “negroes”: for example, the law instructing slaveholders to “punish [their] negroes with moderation.”51 Later laws also prescribed special punishments for slaves who committed crimes, using the language of race rather than status.52 By the time Louisiana changed hands from the French to the Spanish in 1763, racial distinctions had been firmly established in the colony through regulations that limited the reach of manumission, created distinct rules for “negroes” and “freed or free-born negroes,” and blurred the lines between “negroes” and slaves.

***

The debasement of all “blacks” in the legal regimes of Cuba, Virginia, and Louisiana revealed itself most dramatically in the draconian system of repression against cimarrones, or runaway slaves. Legislators across imperial, cultural, and linguistic lines described slave resistance in racialized terms – most regulations dealing with runaway slaves made reference to “black” cimarrones, or runaways. As early as 1534 the governor of Cuba reported on “negros alzados,” or insurgent blacks. In the late sixteenth century, when the town council of Havana held hearings on the problem of runaway slaves, it referred to the “large quantity of male and female black runaways” (“negros y negras cimarronas”).53 The first municipal ordinances concerning runaway slaves, approved by the council and ratified by the governor in 1600, were titled “Ordinances for the Reduction of Black Runaways” (“negros cimarrones”).54 Punishments included flogging, mutilation of nose and ears, and death by hanging. Subsequent regulations made reference to “the blacks who have escaped” (“negros que huidos andan”) and “black fugitives” (“negros fugitivos”). Similar language was used in a new ordinance “for the capture of black runaways” passed by the town council in 1690 and in 1796, which spoke of negros as if a law regarding runaway slaves could encompass free blacks as well.55

In Virginia, both an influx of new African slaves and the experience of Bacon’s Rebellion, in which slaves and servants revolted against masters, led legislators to take steps against conspiracies and rebellions. In 1680, a new “Act for Preventing Negroes[’] Insurrections” established limits on slaves’ mobility, their right to carry weapons, and their social gatherings, which were perceived as breeding grounds for insurrectionary plots. County sheriffs were authorized to prosecute “marauding” blacks, to hold them in irons, and whip them if found guilty. In 1692, the colonial assembly passed a new law “for the speedy prosecution of negroes and other slaves,” removing procedural obstacles in capital cases. Convicted blacks suffered harsher punishments than whites, including torture, whipping, dismemberment, burning, beheading, and hanging.56

The growth of the slave population in Louisiana prompted similar concerns and regulatory efforts. The slave population of the colony multiplied sevenfold between 1721 and 1731, when the French Company of the Indies returned the control of the colony to the French monarchy. By mid-decade, colonial officials were advocating sweeping action against maroons (runaways), “lest soon the community be raided by whole gangs thereof.” As in Havana and, later, Virginia, the officials advocated “stringent” punishments against “ringleaders,” including capital punishment. Article 32 of the Code Noir provided punishments similar to those stipulated by Havana’s colonial legislators a century earlier. Slaves who had been absent for a month would suffer mutilation of the ears and branding for their first offense, and would be hamstrung and branded again for a second offense. The punishment for a third time was death. Although in criminal cases slaves were to be tried using “the same rules, formalities, and proceedings observed for free persons,” the code made an exception in the case of runaways, who had no recourse to appeal. And “free or free-born negroes” who harbored fugitive slaves would pay higher fines than “all other free persons.” If free blacks could not pay the fine, they would “be reduced to the conditions of slaves, and be sold as such.”57

Virginia stands out, in its early years, as the most experimental and open with regard to the status of Africans. As late as 1681, a Virginia slaveholder claimed that slavery’s identification with a permanent status was something of an innovation: “now … [that blacks] continue to be slaves forever.”58 No such doubts existed in sixteenth-century Havana or in eighteenth-century Louisiana. But by the early eighteenth century, all three colonies had established firm racial distinctions through legal regulation. It took longer in Virginia, but by the turn of the eighteenth century they all sought to make race and status coterminous, drawing the links between blackness and enslavement.

These discriminatory legal regimes represented formidable obstacles to social mobility, family reproduction, and community life for the Africans and their descendants, even if they were free. The essence of the racist legal regimes built in the Americas during the early colonial period – in Cuba, in Virginia, and in Louisiana – rested on the assumption that slaves were black, and that black people should be slaves. This assumption was never fully realized, however. The existence of free blacks challenged the notion that blackness was synonymous with enslavement.

The law played a critical role in constituting blackness as a debased status identified with enslavement, but this conflation also produced unexpected and undesirable results, at least from the perspective of white slaveholding elites. By blurring distinctions between blackness and enslavement, the law contributed to the formation of black communities and solidarities across barriers of status, in the long term facilitating alliances between the enslaved and the free. The cabildo of Havana may have pushed free blacks such as Beatriz Nizardo to special areas of the emerging city, but by doing so it facilitated the formation of free black residential communities that frequently functioned as safe havens for the enslaved. Prohibitions against free blacks hosting slaves in their homes, and against social gatherings of free blacks with slaves, reflected slaveholders’ fears about those communities. Indeed, by 1657 the Havana town council acknowledged that black neighborhoods such as Campeche and Ejido – areas that the cabildo had created as part of its racialized layout of the city – provided refuge to numerous slaves “who are ordinarily absent and fugitive from the service of their masters.”59 Not only in Cuba but also in Virginia and Louisiana, these free black communities became an important reservoir of support for the enslaved, an alliance that slaveholders across jurisdictions would come to dread. In other words, by creating a legal category of “black” that came to be a stronger dividing line in society than slave status, white colonists perhaps inadvertently facilitated the creation of black communities that later constituted a threat to slavery.

Yet free black communities did not develop at the same rate across all jurisdictions. Despite key similarities, there were two main differences between the Spanish legal regime, on the one hand, the French and British, on the other. The first was the law of manumission – that is, a master’s right to bestow freedom on his slaves, either in exchange for money or services, or in recognition of past services and good conduct. The second concerned interracial unions and the treatment of racially intermediate groups of “mulatos,” “mulastres,” or “mulattoes.” Such groups came into existence in each colonial territory, as it was impossible to impose a strict regime of sexual segregation among different racial groups. Interracial marriages, and sometimes even interracial sex, were criminally prosecuted in Louisiana and Virginia by the late seventeenth century, but such unions did not trigger the same condemnation in Cuba. The next chapter explores the effects of these key distinctions in the three legal regimes, as well as their profound and lasting consequences.