November 22, 2020

The Spaniards and the Portuguese were the protagonists of the first phase of the colonization of the New World. When they arrived in America, they immediately realized the potential of the conquered lands. The resources seemed never to end: silver, gold, precious stones, immense latifundia.

The native populations were subdued with relative easiness, being enslaved. However, the enslavement of the natives did not bring the desired results to the Europeans. Their frail constitution did not make them a workforce capable of satisfying the conquerors: thousands of them were employed in mines and plantations and soon died of hardship and fatigue.

Moreover, the Indians were particularly susceptible to the diseases brought by the Europeans: the smallpox epidemics alone were responsible for several hundred thousand deaths among the natives.

The high mortality rates among the Amerindians soon forced the colonists to look for an alternative workforce. The choice fell, after some initial hesitation, on [enslaving Africans] who had been employed with good results in the colonies that the Spanish and the Portuguese had created in the Canaries, Madeira and São Tomé.

In the Spanish Empire, the massive import of slaves from the [African] Continent began in 1518, when Charles V granted the asiento de negro to the Flemish nobleman Laurent de Gouvenot and the Portuguese merchant Jorge de Portugal.

As Elliot wrote, the signature of these contracts implied the definitive opening of the Spanish Empire to the Atlantic trade. The possessions of the Spanish Crown were soon filled with African slaves. In his Historia de las Indias, Bartolomé de las Casas says that after the year 1520 in the West Indies, about 100,000 [captured Africans] landed from the African coast, 30,000 of which landed on the island of Santo Domingo. Probably the number of the [enslaved people] was lower than the one indicated by the Dominican father, but their arrival had a significant impact on the Spanish colonial society and in particular on the Dominican one. The importation of [captured] Africans for slave labor further worsened the already precarious living conditions on the island. Food rations became more scarce and violence perpetrated against [the enslaved] became more frequent. The mistreatment and harassment suffered by the latter would soon lead them to turn against their oppressors.

Between 1519 and 1521, there were several slave revolts on Santo Domingo. One of these occurred in the plantations owned by Viceroy Diego Colombo, the eldest son of the famous explorer, governor of the island. The slaves who rose on Christmas Day 1521…assault[ed] the owners’ property and murder[ed] [their oppressors]. The [freedom fighters] were almost immediately defeated and killed by the Spanish armies, but the ferocity with which they acted led Columbus to issue special regulations to control and discipline the black slaves who lived in the Dominican colony.

The ordinance that he promulgated on January 6, 1522, entitled Provisión del virrey Diego Colon, can be considered one of the first examples of Black Code in colonial America.

In the provision, the governor paid attention to the behavior that the [enslaved African] had to adopt in the public sphere, severely punishing the delinquent actions considered dangerous for the survival of the colony and especially the possession of weapons, rebellion, and the runaway of [enslaved Africans]. In order to prevent any further turmoil, through the ordinance the governor constituted a sort of colonial police force that had the responsibility of constantly monitoring the [enslaved African] population. With the same aim of enhancing the effectiveness of the control and to maintain public order, the viceroy ruled that the [enslaved African] should no longer have the freedom to move within the colony: every movement of the [enslaved African] should be approved, with a special permit, by the master. Very harsh were the punishments imposed on the subjects who held weapons: depending on the degree of violation committed, slaves could be punished by public flogging. Equally severe were the punishments of the…cimarrones, the [enslaved African] who ran away from their master: those who refused to return to work, within a maximum of 10 or 20 days, could also be sentenced to death by hanging (“incurra el dicho esclavo en pena de muerte, la cual le sea dada de horca”).

The Provisión can, in a certain sense, be considered the archetype of all the slave legislations that was promulgated between the sixteenth and eighteenth centuries in the Spanish colonies. Some of the principles contained in it (the prohibition to carry weapons, the ferocious persecution of cimarronaje, and the establishment of police forces to ensure the monitoring of [enslaved Africans] were included in each of the subsequent codes. For example, Las Ordenanzas para la sujeción de los esclavos negros, issued by the Cabildo of Santo Domingo on October 12, 1528, and judged by Marcos Andrade Jaramillo the first black code in America,, were nothing more than a careful revision and integration of what the Viceroy Provisión of 1522 had already established.

The Ordenanzas issued on Santo Domingo constituted the legal basis of the great slave codes that appeared in Spanish America during the eighteenth century. Among these, according to Manuel Lucena Salmoral, the most important were: the Ordenanzas dirigidas a establecer las más proporcionadas providencias así para ocurrir a la deserción de los negros esclavos como para la sujeción y asistencia de éstos, better known as Código de Santo Domingo (April 25, 1768); the Código de legislación para el gobierno moral, político y económico de los negros de la isla española, also known as Código Negro Carolino (December 14, 1784); and the Real Cédula Instrucción circular sobre la educación, trato y ocupaciones de los esclavos en todos sus dominios de Indias e islas Filipinas (May 31, 1789). Each of the above-mentioned codes, as Sala-Molins has well pointed out, were re-elaborations of the slave laws enacted in the Spanish colonies between the sixteenth and seventeenth centuries.

The eighteenth-century codes above mentioned, partly a result of Bourbon reformism, had the objective of drawing up a slave laws apparatus that would make it possible to improve the efficiency of the system of exploitation in the overseas colonies, imitating what had been done by another…colonizing power: France.

The eighteenth-century Iberian Codes tried to regulate slavery by making it “more human” and acceptable: the sovereignty of the master over the slave was largely limited and placed under the supervision of colonial and metropolitan governing bodies. The draconian punishments imparted to the [enslaved African] were moderated, and some rights were granted to them (they had to be dressed, fed, and educated to the precepts of the Catholic religion and they could denounce any abuses suffered). The enactment of such measures provoked real upheavals in the colonial ruling classes:

in the view of the slave owners, [the] grant [of] rights to the [enslaved African] could be very dangerous and could led to the destruction of the established system of exploitation, based essentially upon the abuse and social alienation of slave workforce.

An exception to this general trend is the Código de Luisiana (1769), issued by the Spanish Governor Alejandro O’Reilly after the sale of the colony from France to Spain, which took place with the secret Treaty of Fontainebleau (1762). The text was essentially identical to the French Black Code issued in Louisiana in 1724. O’Reilly decided to adopt this code because it was considered more efficient than the Spanish one, in terms of perpetuation of the slave system born in the former French colony. During his mandate, the governor decided to include only few measures to implement the old code, one of which concerned the right granted to [enslaved people] to buy their freedom, the so-called derecho de coartación, which was not contemplated in the 1724 Code Noir. This concession alarmed the colonial ruling class, which tried in every way to obtain the revocation of this privilege. The protests, raised by the owners of the plantations, led to a new reformulation of the slave legislation in the colony. In 1777, King Charles III, who was quite disappointed by the discontent of the slave masters, agreed that the laws on slavery should be rewritten. Hence, the King charged the Governor Bernardo de Gálvez to proceed with the drafting of a new code. Gálvez commissioned Francisco María de Reggio and Joseph Ducros, both high-ranking officials of the New Orleans Cabildo and owners of large plantations within the colony, to draw up the legislative body. After a few months of study and research, the two officials presented to the Cabildo a text entitled Code noir ou Loi municipale, servant de règlement pour le gouvernement & l’administration de la justice, police, discipline & le commerce des esclaves négres, dans la province de la Louisianne. In this text, de Reggio and Ducros affirmed the need to leave all questions concerning the management of [captured Africans] to the will of the master.

In order to protect the interests of the ruling class, the code legitimized all sorts of abuses and oppressions: the master could torture, humiliate and hunger his slaves without suffering any consequences in the courts of law. In other words, the master’s will was above the law.

The precepts contained in the Code noir ou Loi municipale represented a fundamental legal source for all the other slave laws that were adopted in Louisiana between the eighteenth and nineteenth centuries. When this possession was acquired by the United States, in fact,

the regulations of de Reggio and Ducros, together with the 1724 Code Noir, were the models for the first United States Black Codes issued in the colony. Even in this, the ruling class had a sort of “absolute power” over the slave workforce.

The question of the master’s sovereignty is an important element to keep in mind in order to understand the phenomenon of slave legislation in European colonial possessions. Even if in some cases the authorities tried to interfere with the authority of the dominus, to moderate the mistreatment and to make the [enslaved person’s] condition more acceptable, the master’s will remains the only true code actually in force. Within his plantations, in his farms, the slave owner had no superior authority. The experience of slavery in the ultramarine empires was therefore, according to the contexts examined, even significantly harder than the one prescribed and contemplated by the law. Any slave owner, facing the possibility of losing his/her life or seeing his/her interests being severely damaged, would have no hesitation in violating or circumventing the existing laws. Although this fact was well known to colonial and metropolitan administrations, none of the states that took part in the colonial expansion renounced the attempt to regulate the newborn overseas slave societies.

When the slave trade, between the sixteenth and seventeenth centuries, became a global phenomenon, almost all states with colonies in the New World adopted slave codes. Several of these were inspired by those already enacted in Spanish possessions during the sixteenth century. Portugal, for instance, during the period in which the Portuguese and Spanish crowns were united (1580–1640), adopted Spain laws into its own legislation.

The Ordenações Filipinas, promulgated by Philip I in 1603, were the most important demonstration of the process described above. This body of laws is the most organic and structured example of the slave code in force in Portuguese possessions until the nineteenth century. In Brazil, where the use of forced labor was fundamental for the maintenance of the colony, the code remained in force until 1822, when the Brazilian possession gained independence from the mother country. Even after independence, many of the precepts contained in the Philippine corpus continued to represent the legal basis for regulating the relations between slave and master within the country, at least until 1888, when the slave system was definitively abolished.

The principles on slavery stated in the Philippine ordinances were very similar to those contained in the Spanish Codes issued between the sixteenth and seventeenth centuries: there were numerous articles aiming at sanctioning the prohibition of the possession of weapons, the restrictions on freedom of movement and, more generally, the absolute social alienation of the [captured Africans]. In exchange of the full control on his own workforce, the Philippine ordinances required from the master a certain moderation in his behavior: he should not punish the [enslaved] in an unmotivated way, and he should not either torture or physically abuse [him/her]. Even if in the Code the enslaved person was not considered as a human being but as a good, and as such had to be inventoried, the Ordenações Filipinas tried to preserve his [or her] safety, by limiting the violence that [s/he] was often forced to suffer. Such conduct may perhaps have been useful in avoiding the outbreak of riots and unrest, but it was more likely to be conceived as a way to impose a limit on the sovereignty of the ruling class: through the law the state and its organs had to supervise and stop episodes of uncontrolled violence.

These attempts to delimit the power of the masters had very little impact on overseas slave societies. As Batista and Zaffaroni wrote, reflecting on the Brazilian colonial reality, at a local level, there was a sort of “poder punitivo doméstico”, essentially based upon the master’s arbitrariness. Batista and Zaffaroni’s consideration can be judged suitable not only for Brazil but also for all Lusitanian domains and, more generally, for all European ultramarine possessions where an economic system based upon the exploitation of slavery was created.

This failure to delimit the master’s arbitrariness had repercussions on the real effectiveness of the slave laws, which were—according to necessity—ignored, reinterpreted or deceived. For this reason, for example, the authorities—both metropolitan and colonial—were often forced to reaffirm, remodel and strengthen through specific measures some precepts that had already been widely stated in the issued Codes. Regarding the Portuguese colonial experience, this operation was carried out through the so-called Legislação Extravagante, that is, series of ordinances, provisions and decrees enacted in order to intervene on particular issues that arose in a particular possession.

The provisions on slavery contained in the Legislação Extravagante tried to intervene on the most disparate aspects of the [enslaved individual’s] life: from [their] treatment to [their] nourishment, from [their] transport to [their] employment within the colonial realities. Reading these ordinances, it is easy to understand how almost all the royal laws or provisions, promulgated with the intention of restraining abuse, did not find any acceptance in the daily life of colonial life. Merely as an example, we can mention the royal provisions issued by Afonso VI (September 23, 1664) and Pedro II (March 18, 1684) in order to regulate the transport of slaves taken from the African coasts. In these documents, attention was paid to the measures to be taken in order to ensure that navigation was not fatal for the [enslaved persons] on board;

in particular, the sovereigns established the minimum quantities of water and food that should be available on the slave ships in order to avoid the numerous deaths—due to hunger and dehydration—that sadly characterized the so-called middle passage.

The royal prescriptions, as already mentioned, had a very modest impact on what were the behaviors of the Portuguese slave traders. Indeed,

between the seventeenth and eighteenth centuries, due to the growing demand for workforce from the New World, the number of [enslaved] [im]ported increased significantly and the conditions in which they were transported worsened. Despite the provisions, it rarely happened that more than two-thirds of the slaves loaded on the slave ships could see the colony of destination. Many of these deaths, recorded during the crossing, continued to be attributable to a lack of water.

What was said about the measures concerning the slave trade and transport can be extended to any other aspect that the slave legislation tried to regulate. Although the Philippine ordinances and the instructions given through the Legislação Extravagante categorically prohibited harassment and abuse, even in the nineteenth century (in the wake of the abolitionist era), the colonial ruling class continued to torture, mutilate, brand and whip its slaves even for apparently futile reasons, acting in total impunity.

Source: Slavery and Slave Codes in Overseas Empires by Giuseppe Patisso and Fausto Ermete Carbone.

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