Barker on Fuente and Gross, 'Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana'

Author: 
Alejandro de la Fuente, Ariela Julie Gross
Reviewer: 
Patrick Barker

Alejandro de la Fuente, Ariela Julie Gross. Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana. Cambridge: Cambridge University Press, 2020. 294 pp. $24.95 (cloth), ISBN 978-1-108-48064-2

Reviewed by Patrick Barker (Yale University) Published on H-Slavery (September, 2020) Commissioned by Andrew J. Kettler (University of California, Los Angeles)

Printable Version: http://www.h-net.org/reviews/showpdf.php?id=55043

Collaboratively researched and written, this is a richly detailed and carefully argued book that traces the evolution of distinct racial regimes in three Atlantic slave societies, namely Cuba, Louisiana, and Virginia, over the longue durée. From their foundation as colonies of the Spanish, French, and English empires, respectively, through to the late 1850s, de la Fuente and Gross demonstrate how laws of race and freedom came to shape the emergence of different racial regimes in what became the United States and what remained Spanish Cuba. In each of these jurisdictions, slaveholding elites racially ordered their localized legal regimes in ways that heavily discriminated against Afro-descended peoples. However, by the 1850s, the legal link between “whiteness and citizenship”—and by extension, Blackness and slavery—was most clearly expressed in anti-Black laws of freedom and race in Louisiana and Virginia. While anti-Blackness had found legal expression in the earliest laws governing slave society in Spanish Cuba, by the 1850s, the colony’s law still permitted free communities of color to participate meaningfully as rights-bearing subjects in ways that were roundly suppressed by lawmakers in Louisiana and Virginia. Resultantly, for free communities of color, the racial barriers to belonging were “much farther advanced” in Louisiana and Virginia than in Cuba on the eve of the US Civil War (p. 222).

De la Fuente and Gross provide a compelling and original argument as to how and why these distinct racial regimes came into being by the late 1850s. Harnessing comprehensive insights from an extensive range of legal documentation housed in Cuban, Spanish, and US archives, the authors argue it was the “law of freedom” and “not the law of slavery” that proved “most crucial” in creating racial regimes in each of these societies (p. 4). In particular, it was the degrees of racialized severity with which slaveholding elites could—or could not—regulate manumission, interracial unions, and the rights of free communities of color over the longue durée, which effectively shaped the contours of these distinct legal regimes of anti-Blackness in the US south and Cuba by 1860.

As the authors make clear, however, even in Louisiana and Virginia, slaveholding elites were never fully able to enact what de la Fuente and Gross call the “dichotomous world that they envisioned”—namely a world in which African ancestry was made entirely synonymous with degradation and slavery (p. 220). De la Fuente and Gross explain that white slaveholding elites could never fully exact this racial ordering project because across every era and with varying degrees of success, people of African descent always found ways to pursue and secure legal freedom in each jurisdiction. Once free, communities of color struggled to make their freedoms meaningful despite the racist laws that so often restricted their public lives and haunted their private relationships. In doing so, free people of African descent, particularly in Cuba and in specific eras in Louisiana and Virginia, were able to form numerically significant and lasting free communities of color that stood in defiance of slaveholders’ long-standing efforts to equate Blackness with slave status. Becoming Free, Becoming Black is thus not merely a study of how elite slaveholders crafted anti-Black laws to suit their own political and economic goals. Through a multigenerational analysis of enslaved peoples’ manumission and litigation strategies, the authors illustrate how people of African ancestry negotiated and gave shape to the laws of freedom and race and did so in often remarkable and creative ways. This theme of study has of course animated much of the most recent and exciting historical scholarship on race and the law in Americas, but Becoming Free, Becoming Black adds to that body of work by excavating a deep history of Black manumission and litigation strategies in legal systems informed by different legal precedents and imperial legacies.[1]

De la Fuente and Gross draw their many insights from an extensive multilingual study of legal documentation produced over more than three centuries and housed in Cuban, Spanish, and US archives. To understand how, when, and why slaveholding elites imposed racialized regulations on people of African descent and the laws of freedom, de la Fuente and Gross analyze sources produced at a range of administrative levels of power. Such sources include municipal and policing ordinances, assembly records, state laws, imperial codes, and royal edicts. The authors’ assessment of enslaved claims-making and litigation strategies is made possible by close readings of individual claims and court cases, along with aggregate analyses of the strategies pursued by the enslaved over time, where the available data permits. For this element of the project, the authors collected and analyzed a remarkable range of legal documents, including legislative minutes, court records, trial records, notarial deeds, and wills, among other types of sources. Complementing their analyses of these archival sources, the book’s clarity of argument and its endnotes demonstrate a deep engagement with a large body of comparative historical literature on race and slavery in the Americas, charting back to sociologist Frank Tannenbaum’s Slave & Citizen, first published in 1946.

The book consists of five chapters, each comparative in form. The first chapter explores to what degree legal and social precedents informed the laws of race during the earliest stages of colonial settlement in each society. De la Fuente and Gross show how early settlers in Cuba and Louisiana inscribed African ancestry as a distinct marker of social degradation. Several ordinances between the 1550s and early seventeenth century demonstrate that anti-Black ideology was a fixture in early Spanish Cuba’s law. Local ordinances governing crime, commercial life, political participation, and so-called vagrants contained racially discriminatory provisions that prescribed disproportionate policing and punishment for people of African descent. In developing Cuba’s early racial regime, the authors explain that Iberian settlers were drawing on racialized ideas about blood purity (limpieza de sangre) and racial codes already enacted in the Iberian Peninsula. Some of Cuba’s earliest municipal ordinances bore a remarkable similarity to the legal codes policing racial order in slaveholding Iberian cities like Lisbon, Seville, and Valencia, where African slavery and free communities of color were already visible elements of urban life. While Cuba’s authorities created localized racial ordinances that embodied Iberian legal precedent, French Louisiana’s slaveholding elites borrowed from and then expanded the racialized regulations contained within the French empire’s Code Noir of 1685 when making Louisiana’s first anti-Black civil code, the Code Noir of 1724. The Louisiana code contained numerous provisions not listed in the French Antillean code of 1685 and prescribed discriminatory punishments for freed Black transgressors of the law, racial restrictions on interracial marriage and sex, and even attempted to constrain Black social mobility by banning donations and legacies from white settlers.

The early colonial process of race-making, as de la Fuente and Gross show, was more gradual in English Virginia than in French Louisiana and Spanish Cuba. When English settlers disembarked in what became Virginia in 1607, they “lacked clear precedents” for the legal enslavement of people of African descent and therefore did not have a clear legal distinction of race from which they could draw. According to the authors, the laws governing racial status in English Virginia “remained unsettled and open to interpretation” in the colony during the earliest decades of settlement (p. 16). Before the late 1650s, some Black subjects were able to win their freedoms and enjoyed rights later available to only white English settlers. Virginia’s legal system would begin to change in 1659, as a statute that reduced import duties for slave traders simultaneously discussed the importation of “negroes” rather than slaves, suggesting lawmakers had already begun conflating African ancestry with slave status. However, the lack of clear legal and social precedent in Virginia did not prevent slaveholding elites from borrowing legal principles from other legal regimes. Just three years after the 1659 law, Virginia’s legislators adopted the partus sequitur ventrem (offspring follows belly) principle, which instituted that slave status was inheritable via the maternal line.[2] By introducing this principle, Virginian lawmakers had subverted English legal doctrine and replaced it with a Roman principle already practiced in Iberian and French colonies. Virginia slaveholding elites began to develop more explicitly anti-Black laws, the authors argue, not because of a particular event such as Bacon’s Rebellion. Instead, slaveholders began to restrict laws of freedom and racialize existing legal codes in ways that discriminated against people of African descent because of longer-run structural changes in Virginia’s demography and economy.[3] As the migration of English servants slowed down and the plantation economy expanded in the latter half of the seventeenth century, Virginia’s lawmakers—in effect—sought to maintain and more tightly control their captive African labor force. To support those aims, lawmakers began to more deliberately use “race as a marker of degradation” (p. 58).

Chapter 2 shifts to consider the legal contours of manumission and interracial marriage in each society before the 1770s. By seeking freedom through any legal means available, de la Fuente and Gross argue in this chapter, “slaves breached the racial order” and were not passive recipients of freedoms granted by white slaveholders (p. 41). However, the possibilities available to the enslaved for pursuing legal freedom differed considerably across these societies. Manumission was part “of the traditional architecture of slavery” in Iberian society (p. 43). Additionally, interracial marriage was legally unregulated in Cuba until 1778. Unlike early Spanish Cuba’s racialized municipal ordinances, which explicitly discriminated against Cubans of African descent, lawmakers never restricted the colony's manumission laws, nor did they tie those laws to race. Instead, Spanish officials and slaveholders viewed manumission as an “ordinary practice” safeguarded by long-standing Roman principles in the law of Iberian slavery (p. 45). Enslaved people in Cuba could make use of manumission by will, faithful service, and self-purchase practices, including that of coartación, a commonly deployed form of incremental self-purchase, across the entire period of study. Women in Cuba were also consistently the most likely to obtain their legal freedoms through manumission, as they were in Louisiana and Virginia. At the turn of the seventeenth century, women constituted as many as 65 percent of people manumitted in Havana, a trend that only continued into the eighteenth century. Most freed peoples in Cuba won their freedom through self-purchase. Because Cuba’s race laws—like French Louisiana and after 1662, Virginia—adhered to the principle of partus sequitur ventrem, children also inherited freedom through the maternal line. Longer-term, manumission unrestricted by race and the prevalence of women claimants meant Cuba’s free communities of color grew to a far higher proportional rate than in French Louisiana and what became British Virginia before 1770.

In French Louisiana and what became British Virginia, on the other hand, lawmakers succeeded in racializing and tightly restricting manumission practices in ways that discriminated against people of African descent. As plantation slavery expanded in English Virginia during the latter half of the seventeenth century, the colony’s legislators increasingly restricted manumission and marriage practices based on race. The colony’s first comprehensive slave code in 1691 described freed peoples as an “inconvenience” and imposed mandatory fines on slaveholders who manumitted enslaved people of African ancestry (p. 60). By the early eighteenth century, slaveholders tightened the laws even further. In 1723, Virginia’s legislature banned manumission in all cases except for “meritorious service” and mandated that the colony’s governor and council mediate all manumissions. As in the well-known case of James Papaw, some enslaved people still managed to obtain their freedom despite such deliberately onerous stipulations. However, in practice, most manumissions were few and far between, and mostly enacted through wills for what slaveholders called “faithful service” (pp. 60-61). As in Virginia, French Louisiana’s lawmakers restricted manumission in deliberately onerous and racially discriminatory ways. Slaveholding elites’ efforts to suppress manumission and interracial union in both societies were not always successful. Nevertheless, by 1770 slaveholding elites in French Louisiana and British Virginia had developed legal systems of race and freedom that aimed to suppress the formation of free communities of color using techniques not implemented in Cuba.

The book’s third chapter explores how enslaved people negotiated manumission and the courts during the Age of Revolution, an era of great paradox. As the pressures to end or reform slavery grew in each society from within and without, slaveholding elites sought ways to protect the institution’s future. Slaveholders succeeded in expanding racial slavery in each society. At the same time, reformers and revolutionaries installed new legal apparatuses through which enslaved claimants could seek their freedom, often opening up opportunities unavailable to claimants in the prerevolutionary era. Throughout the era, free communities of color grew in size as enslaved people took advantage of the still limited but significant opportunities the laws of freedom afforded them in each society. During this period, manumissions increased in Virginia, and so too did the size of the state’s free communities of color. National legislation expanded the laws of freedom, while Virginia’s court system grew considerably in the last decades of the eighteenth century. These changes to the state’s legal system were exploited by enslaved claimants who sought their freedom through manumission and the courts. The Manumission Act of 1782, despised by many Virginia slaveholders, permitted freed peoples to remain in Virginia after claiming their freedom and mandated that manumissions no longer required legislative approval. The Freedom Suit Act of 1795 enabled enslaved people to sue for freedom themselves, without a legal guardian required in the court. Other laws, not originally designed to encourage freedom suits among the enslaved, nonetheless prompted enslaved claimants to litigate for their freedom. For instance, the Importation Act of 1778 banned imported captives from Africa or other states. After learning that slaveholders’ penalties for illegal importation included the emancipation of trafficked captives, enslaved litigants sued for their freedom, especially in Virginia’s border counties. Enslaved people also made use of a growing county court system to sue for their freedom. After learning of a series of cases in the 1770s that “affirmed that Indians could only have legally been held as slaves between 1682 and 1705,” numerous claimants began to invoke their indigenous ancestry and press for freedom in Virginia’s expanded court system.[4] In Accomack County, de la Fuente and Gross argue, this legal argument formed the “most common basis for freedom suits” (p. 95).

During the Age of Revolution, free communities of color also grew numerically in Louisiana and Cuba. As the authors argue, unlike in Virginia, this process was “not the product of revolution,” but rather a result of the Spanish crown’s more gradual efforts to expand its colonial legal apparatus and raise imperial revenues under Bourbon rule (p. 11). Following the Seven Years' War, the Spanish empire governed Louisiana between the 1760s and early nineteenth century. The transfer of governance from the French to the Spanish empire brought with it an expanded legal apparatus for Black claims-making, as the colony's laws of race and freedom came to mirror those long in force in Spanish Cuba. Enslaved people soon learned how to negotiate the Spanish legal system in the colony. By the end of the century, manumissions increased, especially those involving gracioso, self-purchase, and enslaved people also made use of coartación. In Cuba, enslaved people exploited new institutions such as the síndico procurador, or slaves’ protector, while also utilizing older customary practices like self-purchase. 

However, the growing presence of free Black communities in all of these societies during the Age of Revolution prompted a fierce backlash from slaveholding elites in each society. As chapters 4 and 5 show, slaveholding elites between the 1830s and 1850s viewed free communities as hotbeds of abolitionist radicalism and potential rebellion. The very presence of sizeable numbers of freed peoples worked to subvert the binary racial orders imagined by slaveholders as necessary to defend slavery’s future. In the United States, slaveholding elites were more able to realize their visions of firmly equating Blackness with slavery in the late antebellum era. In contrast, Iberian legal precedent and the comparatively large size of Cuba’s freed communities of color prohibited Cuban officials from attempting to reform the colony’s law of freedom. Set against rising antislavery pressures in the North and the threat of Black insurrection in their midst, chapter 4 shows how slaveholding elites in Louisiana and Virginia sought to protect US slavery’s future by suppressing manumission and promoting campaigns to expel free people of color. Lawmakers in both jurisdictions also restricted the manumission practices introduced during the Age of Revolution. In Virginia, the state legislature overturned revolutionary-era reforms that allowed freed people to remain in the state after earning their freedom from slavery. In 1851, the Virginia state constitution “reiterated that slaves emancipated after that date” would “forfeit their freedom” if they remained in the state for more than a year (p. 162). In 1857, lawmakers in Louisiana banned manumissions altogether. While Cuban slaveholding elites admired these US legislators’ efforts and complained about enslaved peoples’ use of the colony’s court and manumission systems, officials “stopped short of insinuating that manumission policies should change” (p. 171). Cuba’s authorities discussed the expulsion of Black Cubans in the 1830s, but never publicly promoted campaigns like those of their North American counterparts. Cuban lawmakers did not avoid supporting such campaigns due to their affinity for free communities of color. Instead, officials were afraid that support for such campaigns would provoke resistance from a numerically significant class of free Black people in a colony already threatened by slave rebellion.

The fifth and final chapter primarily concentrates on the laws regulating the civic and social lives of free people of color in the decades preceding the US Civil War. By the late 1850s, lawmakers had introduced numerous regulations in Louisiana and Virginia that racially restricted the freedom to educate, freedom to marry and inherit property, freedom to worship, and freedom to participate in civic life. In these US states, Black freedom’s meaning and its already precarious future were under full and frontal assault by the eve of the Civil War. Black educational and religious institutions, in particular, were favored targets of slaveholding lawmakers in the United States. Conversely, in Cuba by the 1850s, it was still possible for free people of color to participate publicly in public religious and social life and to possess honor and civic virtue in the eyes of white governing officials. Cuban officials and slaveholding elites still tried to regulate Black social mobility during this period. By the 1830s, for example, slaveholding elites in Havana segregated Havana’s schools and eliminated most Black teachers from the education system. However, Cuban officials were never able to restrict long-standing institutions of free Black religious and social life to the degrees enacted in Louisiana and Virginia.

Becoming Free, Becoming Black is a formidable accomplishment. While the book primarily speaks to historians of comparative race and the law, its arguments will also interest social and cultural historians of race and slavery in colonial Latin America, colonial North America, and the US South. Scholars of gender, sexuality, and women’s history will find the text’s emphasis on the critical importance of Black motherhood and women’s litigation strategies of interest. Historians of post-emancipation race and Black belonging in the Americas will also find the book of interest. 

The comparative study of race and the law has long lived in the shadow of Tannenbaum’s much-criticized Slave & Citizen, a point made by de la Fuente and Gross in a co-authored literature review published a decade ago, but a claim that nonetheless remains true today.[5] Like Tannenbaum, de la Fuente and Gross ask fundamental questions about how and why distinct racial regimes emerged in the Americas. Unlike Tannenbaum, de la Fuente and Gross never allow legal precedent or binary concepts of culture to stand in as explanations for the messy, nonlinear, and contested processes of race-making on the ground. Instead, legal and cultural precedents were two of several important variables informing the legal practices governing race, freedom, and the laws regulating free people of colors’ lives. The authors also pay special attention to how broader metapolitical and economic transformations in the Atlantic world shape the laws of race and freedom in Cuba, Louisiana, and Virginia to varying degrees over time. This integrative approach allows the authors to respectfully negotiate decades of debate concerning the origins of distinct racial regimes in the Americas while offering a novel assessment of which variables mattered most in this story.

Notes

[1]. Some examples of this tradition include Adriana Chira, “Affective Debts: Manumission by Grace and the Making of Gradual Emancipation laws in Cuba, 1817-68,” Law and History Review 36, no. 1 (2017): 1-33; Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America (New York: Cambridge University Press, 2018); Bianca Premo, Enlightenment on Trial: Ordinary Litigants and Colonialism in the Spanish Empire (New York: Oxford University Press, 2017); Michelle A. McKinley, Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (Cambridge: Cambridge University Press, 2016); and Rebecca J. Scott and Jean M. Hébrard, Freedom Papers: An Atlantic Odyssey in the Age of Emancipation (Cambridge, MA: Harvard University Press, 2014).

[2]. For more on this principle in Virginia, see also Jennifer L. Morgan, Partus Sequitur Ventrum: Law, Race, and Reproduction in Colonial Slavery,” Small Axe 22, no. 1 (March 2018): 1-17.

[3]. This argument is made by de la Fuente and Gross in distinction to Edmund S. Morgan, who famously viewed Bacon’s Rebellion as a turning point in the history of race in colonial North America. See American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W. W. Norton & Company, Inc., 1975), esp. 250-70.

[4]. A subsequent law in 1807 “narrowed this window to 1682-1691,” as the authors show (95). 

[5]. Alejandro de la Fuente and Ariela J. Gross, “Comparative Studies of Law, Slavery, and Race in the Americas,“ Annual Review of Law and Social Science 6 (2010): 469-85; helpful introductory essays on the historiographical debates surrounding Tannenbaum’s text include George Reid Andrews, “Brazilian Racial Democracy, 1900-1990: An American Counterpoint,” Journal of Contemporary History 31, no. 3 (1996): 483-507; and Alejandro de La Fuente, “From Slaves to Citizens? Tannenbaum and the Debates on Slavery, Emancipation, and Race Relations in Latin America,” International Labor and Working-Class History, no. 77 (2010): 154-73.

Citation: Patrick Barker. Review of Fuente, Alejandro de la; Gross, Ariela Julie, Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana. H-Slavery, H-Net Reviews. September, 2020. URL: http://www.h-net.org/reviews/showrev.php?id=55043

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