Hostname: page-component-586b7cd67f-l7hp2 Total loading time: 0 Render date: 2024-11-30T15:09:17.696Z Has data issue: false hasContentIssue false
  • English
  • Français

Fractional Freedoms: Slavery, Legal Activism, and Ecclesiastical Courts in Colonial Lima, 1593–1689

Published online by Cambridge University Press:  28 July 2010

Michelle McKinley
Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Articles
Information
Law and History Review , Volume 28 , Issue 3 , August 2010 , pp. 749 - 790
Copyright
Copyright © the American Society for Legal History, Inc. 2010

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. SP lib. 4 tit. V. law I: Concerning the Marriage of Slaves.

2. Archivo Arzobispado de Lima (hereinafter AAL) Causas de Negros, Leg. V, Exp. 37, 1629.

3. Tannenbaum, Frank, Slave and Citizen: The Negro in the Americas (New York: Vintage, 1946)Google Scholar.

4. Baade, Hans, “The Gens de Couleur of Louisiana: Comparative Slave Law in Microcosm,” Cardozo Law Review 18 (1996): 538Google Scholar.

5. 13 N.C. 263 (1829). As Judge Ruffin writes: “The power of the master must be absolute, to render the submission of the slave perfect … The slave to remain a slave must be made sensible that there is no appeal from his master… . The Court therefore disclaims the power of changing the relation, in which these parts of our people stand to each other” (ibid., 266–67).

6. Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857). I am referring here to the claim for familial unification and marital integrity that underscored Dred and Harriett Scott's case. See VanderVelde, Lea, Mrs. Dred Scott: A Life on Slavery's Frontier (Oxford: Oxford University Press, 2009)Google Scholar.

7. Tannenbaum's second claim regarding the salubrious effect of the civil law of slavery on the formation of post-Emancipation societies is not addressed here. Indeed, his second claim is not empirically defensible, particularly with regard to Brazil where he directed most of his comparative focus.

8. Konetzke, Richard, Colección de Documentos para la Formación Social de Hispanoamérica 1493–1810, 3 vols. (Madrid: Consejo Superior de Investigaciones Científicas, 1958)Google Scholar (documenting cédulas reales promulgated in 1526, 1527, and 1541 that pertained to slave marriages).

9. Buckland, W. W., The Roman Law of Slavery (Cambridge: Cambridge University Press, 1908)Google Scholar.

10. Franke, Katherine, “Becoming a Citizen: Reconstruction Era Regulation of African American Marriages,” Yale Journal of Law and Humanities 11 (1999): 251–309Google Scholar.

11. SP Title V (Concerning the Marriage of Slaves); Title XXII (Concerning Liberty).

12. Buckland, Roman Law of Slavery, pt. 2, chap. 19–27.

13. Bradley, K. R., Slaves and Masters in the Roman Empire: A Study in Social Control (Oxford: Oxford University Press, 1987)Google Scholar, chap. 3. Bradley acknowledges the liberal conferral of freedom and citizenship to Roman manumitted slaves but also draws attention to the vestigial duties owed between masters and slaves postmanumission. As Bradley notes, “Freedom was the greatest reward a slave could be given, and the factors which governed its acquisition are of cardinal importance for comprehension of the master-slave relationship” (ibid., 84).

14. Watson, Alan, Slave Law in the Americas (Athens: University of Georgia Press, 1989)Google Scholar.

15. The Recopilación was legislation that drew from the Siete Partidas, but it was redacted to deal specifically with Castilian law in the Americas; see Rafael Altamira, Técnica de Investigación en la Historia del Derecho Indiano (Mexico: José Porrua e Hijos, 1939). The Recopilación contained numerous laws for slaves and free blacks, but it only modified the extant laws on manumission in one significant instance. The Siete Partidas conferred freedom on a slave who married a free woman with consent of the owner, provided that his enslaved status was disclosed to his wife (SP Part IV, Tit. V Laws I, III, IV). In 1515, the Crown extended freedom to slaves who married indigenous women in the Indies, but in 1538 it retracted the conferral of freedom through marriage (Watson, Slave Law in the Americas, 48). Underscoring the contrary nature of viceregal lawmaking concerning slave marriage, Watson mentions that another law passed by the royal Audiencia in Hispaniola in 1526 reiterated the provision in the Siete Partidas conferring freedom on the marriage of a slave man and free woman (ibid., 49). The 1526 cédula was passed in conjunction with the importation of 200 slaves—100 men and 100 women into the island, and the Audiencia specifically documented its intention to limit freedom to those who married endogamous partners. The legislation was ambiguous—indeed silent—on how those female slaves would be free so as to confer freedom on their husband in conformity with the Siete Partidas.

16. Watson, Slave Law in the Americas, chap. 3. See also Buckland, Roman Law of Slavery, pt. 1 (commenting on the inconsistency of Justinian's claim that slavery was against the law of nature yet admissible under the law of nations). Buckland's compendium examines in depth the Roman laws of manumission.

17. Tannenbaum, Slave and Citizen, 61.

18. For a recent review of the Tannenbaum debate, see “Forum: What Can Frank Tannenbaum Teach Us about the Law of Slavery?” Law and History Review 22 (2004).

19. For a materialist criticism of the Tannenbaum thesis, see Genovese, Eugene, “Materialism and Idealism in the History of Negro Slavery in the Americas,” in Slavery in the New World, ed. Foner, Laura and Genovese, Eugene (Englewood Cliffs, N.J.: Prentice-Hall, 1969), 238–55Google Scholar.

20. For the Slave Codes in the civil law tradition in Louisiana, see, for example, Ingersoll, Thomas, Mammon and Manon in Early New Orleans: The First Slave Society in the Deep South 1718–1819 (Knoxville: University of Tennessee Press, 1999)Google Scholar; Din, Gilbert, Spaniards, Planters and Slaves: The Spanish Regulation of Slavery in Louisiana,1763–1803 (College Station: Texas A&M University Press, 1999)Google Scholar. cf. Landers, Jane, Black Society in Spanish Florida (Urbana: University of Illinois Press, 1999).Google Scholar

21. Rankin, David, “The Tannenbaum Thesis Reconsidered: Slavery and Race Relations in Antebellum Louisiana,” Southern Studies 18 (1979): 5–31.Google Scholar

22. Harris, Marvin, Patterns of Race in the Americas (New York: Walker, 1964)Google Scholar. Genovese chided Harris's critique of Tannenbaum as an example of “a savage polemical excursion” that “confused ideological zeal with bad manners” (Genovese, “Materialism and Idealism,” 239).

23. de la Fuente, Alejandro, “Slave Law and Claims-Making in Cuba: The Tannenbaum Debate Revisited,” Law and History Review 22 (2004): 340–69, 341CrossRefGoogle Scholar.

24. Eugene Genovese, “The Treatment of Slaves in Different Countries: Problems in the Application of the Comparative Method,” in Foner and Genovese, Slavery in the New World, 203.

25. James Muldoon has written extensively in the area of canon law and the development of Iberian public international law jurisprudence; see, for example, “Papal Responsibility for the Infidel: Another Look at Alexander VI's Inter Caetera,” Catholic Historical Review 64 (1978): 168–84; “The Contribution of the Medieval Canon Lawyers to the Formation of International Law,” Traditio 28 (1972): 483–97, and The Americas in the Spanish World Order (Philadelphia: University of Pennsylvania Press, 1994).

26. Brundage, James, Medieval Canon Law (London: Longman, 1995), 3Google Scholar.

27. Benton, Lauren, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2002)Google Scholar.

28. For sources on Church action and slave families, see Bennett, Herman L., Africans in Colonial Mexico: Absolutism, Christianity, and Afro-Creole Consciousness, 1570–1640 (Bloomington: University of Indiana Press, 2003)Google Scholar; Martín, José Ramón Jouve, Esclavos de la Ciudad Letrada: Esclavitud, Escritura y Colonialismo en Lima, 1650–1700 (Lima: Instituto de Estudios Peruanos, 2005)Google Scholar; Hünefeldt, Christine, Paying the Price of Freedom; Family and Labor Among Lima's Slaves, 1800–1854 (Berkeley and Los Angeles: University of California Press, 1994)Google Scholar; Galindo, Alberto Flores, La Ciudad Sumergida: Aristocracia y Plebe en Lima, 1760–1830 (Lima: Editorial Horizonte, 1991)Google Scholar; Lavallé, Bernard, Amor y Opresión en los Andes Coloniales (Lima: Institut Français d'études Andines, 2001)Google Scholar.

29. The consolidation of royal court power within the thirteenth and fourteenth centuries created an “expedited” review of complaints and grievances brought by desamparados (widows, orphans, prisoners, legal minors, and infirm patients) who could opt out of the jurisdiction of their local courts and seek recourse from Crown-appointed Ombudsmen in Castile; see Borah, Woodrow, Justice By Insurance: The General Indian Court of Colonial Mexico and the Legal Aides of the Half-Real (Berkeley and Los Angeles: University of California Press, 1983)Google Scholar; Benton, Law and Colonial Cultures.

30. Stern, Steve, The Secret History of Gender: Women, Men & Power in Late Colonial Mexico (Chapel Hill: University of North Carolina, 1995)Google Scholar.

31. See Lazarus-Black, Mindie and Hirsch, Susan, eds., Contested States: Law, Hegemony and Resistance (New York: Routledge, 1994)Google Scholar.

32. France, Renée Soulodre-La, “Socially Not So Dead! Slave Identities in Bourbon New Granada,” Colonial Latin American Review 10 (2001): 87–103CrossRefGoogle Scholar; Aguirre, Carlos “Working the System: Black Slaves and the Courts in Lima Peru, 1821–1854,” in Crossing Boundaries, ed. Hine, Darlene Clark and McLeod, Jacqueline (Bloomington: University of Indiana Press, 1999), 202–22Google Scholar; Bryant, Sherwin, “Enslaved Rebels, Fugitives, and Litigants: The Resistance Continuum in Colonial Quito,” Colonial Latin American Review 13 (2004): 7–46CrossRefGoogle Scholar; Flores Galindo, La Ciudad Sumergida; Hünefeldt, Paying the Price of Freedom; Lane, Kris, “Captivity and Redemption: Aspects of Slave Life in Early Colonial Quito and Popayán,” The Americas 57 (2000): 225–46CrossRefGoogle Scholar; Lavallé, Amor y Opresión en los Andes Coloniales; Mindie Lazarus-Black, “Slaves, Masters and Magistrates: Law and the Politics of Resistance in the British Caribbean, 1736–1834,” in Lazarus-Black and Hirsch, Contested States, 252–81.

33. According to both Orlando Patterson and Moses Finley, slaves, upon being violently wrested from their social environments and forcefully transplanted into new, hostile ones with no propensity for their assimilation, become the ultimate exemplars of deracinated, socially dead beings; see Patterson, Orlando, Slavery and Social Death (Cambridge, Mass.: Harvard University Press, 1982)Google Scholar, and Finley, Moses I., Ancient Slavery and Modern Ideology (New York: Viking, 1980)Google Scholar.

34. Gordon, Robert, “Critical Legal Histories,” Stanford Law Review 38 (1984): 57–126, 103CrossRefGoogle Scholar.

35. On the dualism of slavery, property, and personhood in Western moral philosophy, see Davis, David Brion, The Problem of Slavery in Western Culture (New York: Oxford University Press, 1966)Google Scholar.

36. See, for example, Kagan, Richard, Lawsuits and Litigants in Castile, 1500–1700 (Chapel Hill: University of North Carolina Press, 1981), 16Google Scholar. Medieval litigiousness led to the professionalization of the administration of justice, the development of private law and courts, and an emphasis on legal intermediaries, which was transplanted to the New World as part of the colonization process; see Mirow, M. C., Latin American Law: A History of Private Law and Institutions in Spanish America (Austin: University of Texas Press, 2004)Google Scholar; Herzog, Tamar, “Sobre la cultura jurídica de la América colonial, Siglos XVI–XVIII,” Anuario de historia del derecho español 65 (1995): 903–11Google Scholar; Herzog, Tamar, La administración como un fenómeno social: La justicia penal de la ciudad de Quito 1650–1750 (Madrid: Centro de Estudios Constitucionales, 1995)Google Scholar; and Cutter, Charles, The Legal Culture of Northern New Spain, 1700–1810 (Albuquerque: University of New Mexico Press, 1995)Google Scholar.

37. See, for example, Spalding, Karen, Huarochirí: An Andean Society under Inca and Spanish Rule (Palo Alto, Calif.: Stanford University Press, 1984)Google Scholar; Borah, Justice by Insurance.

38. Colonial historians of the family have examined numerous cases in which women turned to the ecclesiastical courts to impose sanctions on adulterous, violent, and negligent husbands and lovers. Cases abound in the Archbishopric's Archives of Lima and Mexico City brought by women who revealed their loss of honor and their sexual improprieties by suing men who had jilted them out of marriage, or had left illegitimate children without support. Drawing on the pioneering work of Silvia Arrom and Patricia Seed, we have a range of excellent studies regarding women's use of the ecclesiastical courts in Latin America to vindicate their rights and expand their menu of entitlements; see Arrom, Silvia, The Women of Mexico City: 1790–1857 (Palo Alto, Calif.: Stanford University Press, 1985)Google Scholar; Seed, Patricia, To Love, Honor and Obey in Colonial Mexico: Conflicts over Marriage Choice, 1574–1821 (Palo Alto, Calif.: Stanford University Press, 1988)Google Scholar; Lavrin, Asunción, Sexuality and Marriage in Colonial Latin America (Lincoln: University of Nebraska Press, 1992)Google Scholar; Kellogg, Susan, Law and the Transformation of Aztec Culture, 1500–1700 (Norman: University of Oklahoma Press, 1995)Google Scholar; Twinam, Ann, Public Lives, Private Secrets (Palo Alto, Calif.: Stanford University Press, 1999)Google Scholar; Chambers, Sarah, From Subjects to Citizens: Honor, Gender and Politics in Arequipa, Peru, 1780–1854 (University Park: Pennsylvania State University Press, 1999)Google Scholar; and Hünefeldt, Christine, Liberalism in the Bedroom: Quarreling Spouses in Nineteenth-Century Lima (University Park: Pennsylvania State University Press, 2000)Google Scholar, Mannarelli, María Emma, Pecados Públicos: La Ilegitimidad en Lima, Siglo XVII (Lima: Centro de la mujer peruana Flora Tristán, 2004)Google Scholar.

39. Bennett, Africans in Colonial Mexico, 2.

40. Comaroff, John, “Colonialism, Culture and the Law: A Foreword,” Law and Social Inquiry 26 (2001): 305–14CrossRefGoogle Scholar.

41. See Díaz, María Elena, The Virgin, the King, and the Royal Slaves of El Cobre: Negotiating Freedom in Colonial Cuba, 1670–1780 (Palo Alto, Calif.: Stanford University Press, 2000), 13Google Scholar.

42. See Jouve Martín, Esclavos de la ciudad letrada, for an analysis of intertextuality and the coproduction of pleadings with slaves who were largely unlettered and their notaries or scribes.

43. AAL, Causas de Negros, Leg. 2, exp. 17, 1611.

44. See Owensby, Brian, “How Juan and Leonor Won Their Freedom: Litigation and Liberty in Seventeenth-Century Mexico,” Hispanic American Historical Review 85 (2005): 39–72CrossRefGoogle Scholar. Owensby argues that libertad carried with it a powerful moral meaning within seventeenth-century Spanish law, as a “God-given faculty of human beings who had been created with free will” (ibid., 72).

45. AAL, Causas de Negros, Leg. 19, exp. 11, 1678.

46. AAL, Causas de Negros, Leg. 19, exp. 28, 1679.

47. AAL, Causas de Negros, Leg. 16, exp. 21, 1672.

48. Censuras refer to the process in which litigants compelled witnesses to come forth and testify to court notaries about their knowledge in the case for which evidence was being sought. Censuras generales were often read in a parish church or chapel and proved an effective way of summoning witnesses to testify in cases of contested manumission or paternity.

49. Cartas de libertad were formal legalized documents that proclaimed the emancipation of a slave in which the conditions of freedom—whether through manumission or self-purchase—were explicitly enumerated. In the case of self-purchase, an appraisal fixed and notarized the price of self-purchase. For an interesting case study of a disputed appraisal, see de Trazegnies, Fernando, Ciriaco de Urtecho, Litigante por el Amor (Lima: PUCP Fondo Editorial, 1995)Google Scholar. Legal formalities were of vital importance since owners had the upper hand in setting prices that varied according to age, gender, education/training, fertility, and affective ties. Slaves and owners agreed on the proportional rate of jornal earnings that were deposited on a monthly basis towards the self-purchase price. Not surprisingly, disputes over misunderstandings of purchase price and jornal accumulation accounted for a great deal of litigation between masters and slaves. Once the purchase price was accumulated, it behooved slaves to move swiftly towards legally recognized manumission in the form of a notarized carta de libertad. Jornalero slaves carried around with them another formal document called a conque, which was a legal document detailing the purchase or sale of a slave. The conque was an important piece of identification, since undocumented slaves were liable to be arrested as runaways (cimarrones) and put to work in the city's notoriously arduous public bakeries and other forms of corvée labor.

50. AAL, Causas de Negros, Leg. 13, exp. 16, 1659. This proceeding has been analyzed by Jouve Martín, Esclavos de la Ciudad letrada, 105–8.

51. Barrantes, Maribel Arrelucea, “Poder masculino, esclavitud femenina y violencia: Lima 1760–1820,” in Mujeres, Familia y Sociedad en la Historia de América Latina, Siglos XVIII–XXI, ed. Godoy, Scarlett O'Phalen and Zegarra-Flórez, Margarita (Lima: IFEA-PUCP, 2006), 147–70Google Scholar.

52. Morón, Melecio Tineo, Vida Eclesiástica Perú Colonial y Repúblicano: Catálogos de Documentación sobre Parroquias y Doctrinas de Indios, Arzobispado de Lima, Siglos XVI–XX, 2 vols. (Cuzco: Centro Bartolomé de las Casas, 1997)Google Scholar.

53. Camilla Townsend documents the case of Angela Batallas's struggle to secure her freedom, using the language and impetus of independence as Bolívar's rhetoric gained inroads into popular consciousness; see Townsend, Camilla, “‘Half My Body Free, the Other Half Enslaved’: The Politics of the Slaves of Guayaquil at the End of the Colonial Era,” Colonial Latin American Review 7 (1998): 105–28CrossRefGoogle Scholar.

54. The reasons for slower importation during the early stages of Conquest were primarily financial. The importation of slaves from Africa was costly, and slaves were steadily and more cheaply procured from elsewhere on the continent and from the Iberian peninsula. Moreover, the Spaniards believed they had an ample available source of indigenous labor that they could marshal through tribute and the workforce corralled into the encomiendas (Restall, Matthew, “Black Conquistadors: Armed Africans in Early Spanish America,” The Americas 57 (2000): 171–205CrossRefGoogle Scholar; Gerhard, Peter, “A Black Conquistador in Mexico,” Hispanic American Historical Review 58 (1978): 451–59CrossRefGoogle Scholar). Indigenous communities experienced waves of decimation through disease and removal throughout the sixteenth and seventeenth centuries, but the hardest hit communities in terms of demographic decline were coastal chieftaincies. The coastal city of Lima was populated, for the most part, by those who were forcibly relocated (i.e., slaves) and those who came voluntarily: Spanish colonists called chapetones or peninsulares seeking fame and fortune in the New World.

55. Bowser, Frederick, The African Slave in Colonial Peru, 1524–1650 (Palo Alto, Calif.: Stanford University Press, 1974)Google Scholar.

56. Harth-Terré, Emilio and Abanto, Alberto Márquez, El artesano negro en la arquitectura virreinal Limeña (Lima: Archivo Nacional del Perú, 1961)Google Scholar.

57. Lockhart, James, Spanish Peru, 1532–1560: A Colonial Society (Madison: University of Wisconsin Press, 1968)Google Scholar.

58. Bowser, African Slave in Colonial Peru, 341. This tripartite classification of social categories of “race” (blacks, Spaniards, and mulattos/mestizos) would fragment into infinitely more complex fractions within the eighteenth century. By the eighteenth century, colonial caste categories included: blancos (whites)—persons of Spanish descent; negros (blacks)—persons of African descent; indios (Indians)—persons indigenous to the region; mestizos—children of blancos and indios; mulatos—children of negros and blancos; zambos—children of indios and negros; zambos prietos—children of negros and zambos; tercerones—children of mulatos and blancos; cuarterones—children of tercerones and blancos; quinterones—children of cuarterones and blancos; salto atrás—children who were darker than their mothers; see Cahill, David, “Colour By Numbers: Racial and Ethnic Categories in the Viceroyalty of Peru, 1532–1824” Journal of Latin American Studies 26 (1994): 325–46, 339CrossRefGoogle Scholar.

59. African-born slaves known as bozales were identified by the area of Africa in which they were born or procured. Brán was the surname ascribed to slaves from Senegambia and Guinea-Bissau; see Bowser, African Slave in Colonial Peru, 40.

60. See Lavallé, Amor y Opresión en los Andes Coloniales, for seventeenth-century annulment cases.

61. AAL, Causas de Negros, Leg. 4, exp. 14, 1621.

62. AAL, Causas de Negros, Leg. 2, exp. 15, 1611.

63. AAL, Causas Criminales de Matrimonio, Leg. 7, exp. 22, 1689.

64. Meiklejohn, Norman, “The Implementation of Slave Legislation in Eighteenth-Century Nueva Granada,” in Slavery and Race Relations in Latin America, ed. Toplin, Robert Brent (Westport, Conn.: Greenwood, 1974), 176–203Google Scholar.

65. Hünefeldt, Paying the Price of Freedom, 16.

66. As Patricia Seed argues, the Church's independence in the colonies in the sixteenth century enabled the ecclesiastical courts to zealously assert control over marriage and to vociferously protest incursions into their authority by secular courts. As the criollo elite consolidated its hold over local affairs, it grew increasingly impatient at metropolitan control and tried to recruit the Church as an ally. The Church astutely played one party off against another to maintain their position, but in the early republican period, it weighed in on the side of the conservative criollo elite, promoting its role as a stabilizing force in the transition to Independence; see Seed, To Love, Honor and Obey.

67. Bennett, Africans in Colonial Mexico, 2.

68. Ibid.

69. See Owensby, “How Juan and Leonor Won Their Freedom.” Owensby makes a similar procedural argument about forum shopping in following the ten-year litigation of Juan and Leonor to win their freedom through the Inquisition Court in New Spain.

70. Bennett, Africans in Colonial Mexico, 4–5: “The African diaspora—a lived experience—also constituted a field of identities made possible by the complexity of Spanish imperial ideology and Christian political thought, which assigned Africans discrete juridical identities as slaves, royal subjects, and persons with souls.”

71. AAL, Causas de Negros, Leg. 2, exp. 2, 1610.

72. Díaz, Virgin, the King, 15–17.

73. As Nancy van Deusen points out, status, caste, and enslavement determined the types of recogimiento arrangements that were available to women seeking an ecclesiastical divorce. “Spaniards and wealthy women went to the Hospital de la Caridad and the Recogimiento de las Divorciadas. Casta women went to Las Divorciadas (usually on the condition that they work), or a beaterio. Enslaved women were employed as laborers throughout the term of their deposit in hospitals, beaterios, or recogimientos. If there was any danger to them escaping, they were sent to panaderías (bakeries)” (van Deusen, Nancy, “Determining the Boundaries of Virtue: The Discourse of Recogimiento Among Women in Seventeenth-Century Lima,” Journal of Family History 22 (1997): 373CrossRefGoogle Scholar).

74. Mirow, Latin American Law, 28.

75. Mannarelli, Pecados Públicos, chap. 3–4.

76. The Siete Partidas dealt extensively with rules for accusations of adultery. See Partida IV, Title IX, Laws VII–XIII.

77. AAL, Causas Criminales de Matrimonio, Leg. 2, exp. 15, 1646.

78. AAL, Causas de Negros, Leg. 25, exp. 9, 1701.

79. In medieval canon law, the evidentiary weight of witness statements was dealt with under the rubric of fama. Fama is analogous to contemporary notions of hearsay, but the credibility of a witness's testimony depended very much on the personal reputation of that witness; see, for example, Wickham, Chris, “Fama and the Law in Twelfth-Century Tuscany,” in Fama: The Politics of Talk & Reputation in Medieval Europe, ed. Fenster, Thelma and Smail, Daniel Lord (Ithaca, N.Y.: Cornell University Press, 2003), 15–16Google Scholar. Medieval jurists struggled to determine the veracity of witness statements by finding consensus in what people commonly knew about the characters or events in legal proceedings. Fama signified commonly held knowledge, “which was more stable than rumor, and often more depersonalized than reputation. It was what everyone knew, so it was socially accepted as reliable” (ibid, 16).

80. This proceeding has been analyzed by Mannarelli, Pecados Públicos, 110.

81. AAL, Causas de Amancebamiento, Leg. 3, exp. 33, 1632.

82. Mannarelli, Pecados Públicos, 114, 123–24.

83. Mannarelli points out that amancebamiento accusations overwhelmingly involve casta women, and that both enslaved and elite women were virtually absent in these folios. However, slave women were also indicted for concubinage, although these appear under causas criminales de matrimonio and causas de negros.

84. Martínez-Alier, Verena, “Elopement and Seduction in Nineteenth-Century Cuba,” Past & Present 55 (1972): 91–129CrossRefGoogle Scholar.

85. Ibid., 126.

86. Lavrin, Sexuality and Marriage; Twinam, Public Lives, Private Secrets; Mannarelli, Pecados Públicos.

87. Amancebamiento refers to couples living in semipermanent concubinage, known alternatively in the legal literature as barraganía. James Brundage argues that prior to the Council of Trent, canon lawyers were predisposed to construe intent to form a marriage from concubinage, especially if there were no legal impediments to marriage, if the couples' sexual relationships were exclusive, and if the broader community “accepted” the couple as a functioning marital unit. After the Council of Trent adopted the constitution Tametsi in 1563, the official position on concubinage crystallized into a formal abolition of the practice, with excommunication as the punishment for accused couples. For purposes of inheritance, the status of illegitimate children was drastically affected. This shift from flexibility to the post-Tridentine rigidity coincided with the Church's growing insistence on the sanctity and indissolubility of marriage, and of increasing public control over marriage (Brundage, James A., “Concubinage and Marriage in Medieval Canon Law,” in Sex, Law and Marriage in the Middle Ages [Aldershot: Variorum, 1993], 1–17Google Scholar).

88. See Seed, Patricia, “Marriage Promises and the Value of a Woman's Testimony in Colonial Mexico,” Signs 13 (1988): 253–86CrossRefGoogle Scholar.

89. Van Deusen, “Determining the Boundaries of Virtue.”

90. Patricia Seed notes that the move in the seventeenth-century colonies from oral to written notices of intent to marry left many women who believed in their suitor's oral promises without legal recourse (Seed, “Marriage Promises”).

91. Even when there was no impediment to marriage, canon lawyers were loath to enforce an order of marriage between “unequal” couples; see Nazzari, Muriel, “Sex/Gender Arrangements and the Reproduction of Class in the Latin American Past,” in Gender Politics in Latin America: Debates in Theory and Practice, ed. Dore, Elizabeth (New York: Monthly Review Press, 1997), 134–48Google Scholar.

92. AAL, Causas de Amancebamiento, Leg. 4, exp. 19, 1646.

93. Martínez-Alier, “Elopement and Seduction,” 110.

94. The causas de amancebamiento are archived in five folios and encompass investigations brought between 1589 and 1825. Each folio has on average forty-five investigations, with a “spike” of sixty-two investigations undertaken between 1641 and 1654. They total 260 investigations—a modest number compared to the vast amounts of divorce or annulment litigation. Because these were investigations undertaken at the discretion of the visiting procurator, we do not know how many accusations were actually received within the parish. As mentioned earlier, amancebamiento accusations also appear in Causas de Negros, although they are not archived with slave cases.

95. AAL, Amancebados, Leg. 2, exp. 23, 1616. Seven witnesses, the majority of whom were slaves testified against Flores. It is reasonable to presume Nicolás's freed status, given that he stated his age, occupation, marital status, and residency (twenty-six years old, laborer, legitimate husband of María Gallardo, and resident of Cañete).

96. Starr, June and Collier, Jane, eds., History and Power in the Study of Law (Ithaca, N.Y.: Cornell University Press, 1989), 8Google Scholar.

97. For a discussion on the performance of enmity in a court forum, see Smail, Daniel Lord, The Consumption of Justice: Emotions, Publicity, and Legal Culture in Marseille, 1264–1423 (Ithaca, N.Y.: Cornell University Press, 2003)Google Scholar.

98. Hünefeldt, Liberalism in the Bedroom.

99. Mannarelli, Pecados Públicos, 120. In my review of the five folios of Amancebados cases, at least 30 percent were brought against reincidentes (repeat offenders). But they were vigorously investigated. Nicolás Flores's case, for example, was a hefty folio with over 150 pages of testimony.

100. AAL, Causas de Amancebamiento, Leg. 11, exp. 6, 1614.

101. The question of honor codes among plebeians and the honor/shame paradigm is the focus of much intellectual rethinking. Whether it is a prescriptive paradigm for sexuality or an ethnographic imposition of Western observers on Mediterranean behavior is also subject to debate.

102. See Garofalo, Leo, “La sociedad plebeya en las pulperías y tabernas de Lima y el Cuzco, 1600–1690,” in Más Allá de la Dominación y la Resistencia: Estudios de historia peruana, siglos XVI–XX, ed. Drinot, Paulo and Garofalo, Leo (Lima: IEP, 2005)Google Scholar.

103. Lima's pulperas appear to have been unique in that they consolidated ties with sugarcane communities, leading to a predominance of Afro-Peruvian castas as suppliers, workers, and proprietors. In the city of Cuzco, Garofalo notes that chicherías were dominated by indigenous women who mobilized their kinship networks with corn-producing communities. In studies of other seventeenth-century colonial sites, pulperos refer to Spaniard petty commercialists with complex social identity—at once socially ascendant but decidedly not elite (Seed, Patricia, “Social Dimensions of Race in Mexico City: 1753,” Hispanic American Historical Review 62 (1982): 569–606CrossRefGoogle Scholar).

104. Garofalo recounted that viceregal licenses were issued for 270 pulperías in 1632 in Lima—a number that corresponds to the chronicler Bernabé Cobo's observation that there was a pulpería on every street corner in Lima (Cobo, Bernabé, “Historia de la Fundación de Lima,” in Monografías Históricas sobre la Ciudad de Lima [Lima: Imprenta Gil, [1639] 1935]Google Scholar).

105. Saundra Lauderdale Graham describes the ambiguity of colonial public and private spaces by contrasting the domesticity of the house and with the dangers and diseases of the street. However, for women in domestic servitude, the street offered recreation, solidarity, and respect as long as enslaved women legitimated their public excursions as part of their domestic occupation. Pulperías were semidomestic and semistreet spaces, where enslaved women and men could meet friends, acquaintances, or lovers while procuring food, or doing errands for their owners (House and Street, pt. 2).

106. For men, upward mobility and financial security pivoted around their entry into artisan guilds and lesser-ranked oficios menestrales. Entry and participation into these associations was jealously guarded (cf. Harth-Terré and Márquez, El artesano negro, alluding to the oficios as relatively open professional associations for casta apprentices and artisans in sixteenth-century Lima).

107. Konetzke, Colección de Documentos; Bowser, African Slave in Colonial Peru.

108. “Cuarita Castilla, china libre, mujer legítima de José Barrena … por la cruel sevicia y mala vida que me da a causa de sus corrompidas costumbres … y contrayéndole esta a las enormes infurias, golpes y atrocidades con que ha intentado quitarme la vida y cautelándome de experimentar semejante infortuna y desgracia, tomé por auxilio la casa de la Señora Castilla, mi ama que fue donde me hallo acogida … que solicito que me contribuya mi marido José … los premios y alimentos a mi persona como para sus tres hijos que mantengo a mi lado.”

109. Under canon law, ecclesiastical divorce was granted on the grounds of heresy, mutual decision to enter religious orders, adultery, and sevicia—cruel and inhuman punishment. The parties were not free to remarry.

110. AAL, Divorcios, Leg. 2, 1569.

111. Van Deusen, “Boundaries of Virtue”; Arrom, Women of Mexico City; Lavrin, Sexuality and Marriage.

112. “Cuando se vendieren los hijos de españoles en esclavos se diese preferencia a sus padres si los querían comprar para libertarlos” (Recopilación de las Leyes de Indias, Lib. 70, Tit. 50, Ley 60). Two other pieces of royal legislation expressed concern over Spanish children who “wandered around lost” in their mother's communities lacking the guidance and instruction of their Spanish fathers (R.C. 80, 1533, “Que los hijos de españoles habidos en indias y andando fuera de su poder sean recogidas”; R.C. 93, 1535, “Para que los que tuvieran hijos en indias los puedan recoger y tenerlos consigo,” reprinted in Konetzke, Colección de Documentos, 147, 168).

113. Premo, Bianca, Children of the Father King: Youth, Authority and Legal Minority in Colonial Lima (Chapel Hill: University of North Carolina Press, 2005)Google Scholar. “Child support” is a misleadingly modern term for these cases. Attempts to secure premios y alimentos could involve pleas for better clothing, intervention on behalf of sons for occupational opportunities, and money from wealthier fathers.

114. Scarlett O'Phalen Godoy, “Entre el afecto y la mala conciencia. La paternidad responsable en el Perú borbónico,” in Godoy and Zegarra-Flórez, Mujeres, familia y sociedad, 37–56.

115. Premo, Children of the Father King; Harth-Terré and Márquez, El artesano negro, (showing the elaborate apprenticeship agreements that were redacted to stipulate responsibilities for clothing, food, health care, and transmission of knowledge that devolved to the maestro who became in loco parentis for his young charge.)

116. Kathleen Higgins stresses the interplay of sexual relationships in female slaves' wage-earning potential in the quest for freedom (Higgins, Kathleen, “Licentious Liberty” in a Brazilian Gold-Mining Region: Slavery, Gender, and Social Control in Eighteenth-Century Sabará, Minas Gerais [University Park: Pennsylvania State University Press, 1999]Google Scholar).

117. For self-manumission in Peru, see Aguirre, Carlos, Agentes de su propia libertad (Lima: Fondo Editorial PUCP, 1995)Google Scholar; Harth-Terré and Márquez, El artesano negro; Hünefeldt, Paying the Price of Freedom (all showing that women were more often manumitted through testamentary means than men, but both achieved self-manumission at equal rates).

118. Socolow, Susan, The Women of Colonial Latin America (Cambridge: Cambridge University Press, 2000), 138CrossRefGoogle Scholar. See also Townsend, “‘Half My Body Free,’” 113. The case Townsend analyzes between Angela Batallas and her owner documents the exchange of sex in return for freedom.