Blackness, Freedom, and the Law in Cuba, Virginia, and Louisiana

Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana radically reorients our perspective on Blackness and slavery in the Americas. As an extension of Martha Jones’s Birthright Citizens: A History of Race and Rights in Antebellum America, this work is the product of prodigious research in the court records of Cuba, Virginia, and Louisiana by two accomplished scholars who each bring to their analyses a multi-perspectival take on race and slavery. The focus of this study is the ways in which enslaved and free people of color used the law to claim freedom and citizenship for themselves and their loved ones. To frame these perspectives, Alejandro de la Fuente and Ariela Gross look closely at three slave societies during the eighteenth and nineteenth centuries to demonstrate that “the law of freedom, not slavery, established whether and how it was possible to move from slave to free status, and whether claims to citizenship would be tied to racial identity,” (4). Laws governing the “lives and institutions of free people of color created the boundaries between black and white, the rights reserved to white people, and the degradations imposed only on black people,” (5).Employing cultural-legal history, the authors look at the way legal practices, emerging not only from doctrines and traditions but also from the participants’ own strategies, shaped institutional change. In particular, Fuente and Gross examine how free persons and slaves articulated notions of rights by acknowledging that legal traditions shape society, but the actions of ordinary people shape the operation of the law. Virginia and Cuba have often been examined by historians as exemplars of British and Spanish colonial systems. Louisiana, with its hybrid legal system, provides a third point of comparison to examine how the enslaved took advantage of shifting legal regimes during the eighteenth and nineteenth centuries. All three areas were interconnected through Atlantic networks of trade, culture, and finance. Virginia was a major exporter of slaves to New Orleans, the largest slave market in the South. Cuba and Louisiana were under shared Spanish control for several decades and intense communication between Havana and New Orleans continued into the nineteenth century (9).

In Cuba, a set of Iberian legal and institutional precedents had already constituted Blacks as socially debased subjects. However, at the same time, “manumission was a well-established practice in Mediterranean Spain that applied to individuals of different religious and ethnic backgrounds,” (220). In this regard, Iberian legal traditions helped to build racial distinctions into law more quickly in Cuba than in Virginia and Louisiana. Yet, they also helped entrench the practices of manumission and self-purchase. In many areas of Virginia and Louisiana, Blackness was the equivalent of slavery. This was not the case, however, in Cuba, where free people of color represented a significant portion of the total population. In Virginia and Louisiana, when people of color challenged their enslavement or their racial designations in court, legal institutions tied their claims of citizenship to whiteness (219). The link between whiteness and citizenship did not crystallize in the same way in Cuba. A free person of color in Cuba could be a rights-bearing subject, participate in public life, and marry across racial lines. Interracial marriages were criminally prosecuted in Louisiana and Virginia by the late seventeenth century, however, the same condemnation did not occur in Cuba (38).

These restrictions became fluid over time as free and enslaved people of color subverted the racial orders by exploiting and sometimes creating ways to escape from enslavement, by contesting the negative features associated with Blackness, and by entering into sexual relations and even marriages across racial lines. In all three places, “these strategies resulted in the creation of intermediate groups that did not fit the discrete categories of free white people and enslaved people of African descent,” (220). Also, enslaved people took advantage of legal reforms, not intended for their benefit, to carve out greater freedoms for themselves. “They sued for freedom using statutes passed for other purposes, shared information with other people of color across distances, labored and amassed property to purchase freedom for themselves and others, and demanded ancillary rights once they had paid a part of their purchase price,” (220-21). Although the law played a crucial role in constituting Blackness as a debased status identified with enslavement, it also produced unexpected and undesirable results for enslavers. By blurring distinctions between Blackness and enslavement, “the law contributed to the formation of black communities and solidarities across barriers of status,” which facilitated long-term alliances between the enslaved and free (37). In all three regions, free people of color used the law to assert their freedom and rights to citizenship.

Becoming Free, Becoming Black provides incisive insight into the current discourse on birthright citizenship. As a sustained discussion of the ways in which people of color acted as historical agents by seeking and shaping liminal spaces in the law, this study underscores their resistance to slaveholders’ efforts to align Blackness with enslavement.