This is a rich and stimulating account of litigation by slaves in colonial Lima. Most cases revolved around questions of marriage and property rights, so the emphasis here is firmly on civil law procedures. Although entirely disenfranchised and utterly exploited, slaves are shown to have been strong and articulate defenders of their own rights, particularly to spousal unity. The resultant analysis is highly insightful, as well as moving. Michelle McKinley provides, with the precision of a lawyer’s eye, a guide to the lived experience of slavery in Lima. Central is the idea of fractional freedoms—that all states of being, free and unfree, were on a spectrum, and contingent upon a series of factors, gender-based, legal, religious, generational and so on. McKinley gives a detailed account of legal procedure, and considers where legal knowledge comes from. This is an important point. With little access to education, and scarce access to legal expertise with its attendant expenses, one might well wonder how slaves could possibly have been able to negotiate the labyrinthine legal procedures of colonial Lima. The slave litigants in the cases she examines were mostly owned by fairly high status families, where they would have had access to knowledge about the law: one wonders what happened to slaves in families where such knowledge was not readily available. Moreover, McKinley points out that legal knowledge is something which can be spread via gossip, local knowledge and community ties. An easy criticism would be that the numbers of slaves involved here are very low. However, as McKinley points out, this does not render the cases considered any less significant (each slave was, after all, an individual), and, in any case, even small numbers of cases could become notorious and provide conceptual and ethical challenges to the phenomenon of slavery. One might also wonder why litigation appealed to slaves when their chance of success was apparently so low—however, as McKinley points out, success is a rather contingent term. Furthermore, law is shown to have operated in conjunction with a range of other normative frameworks: many of the cases considered here concern clerics, and most cases were heard in the ecclesiastical courts. Reputation was key, and other social pressures could be brought to bear. Law was not an autonomous field. Nor was it a hegemonic one. To find society’s most exploited and disempowered groups able to use law and negotiate its complexities, even if the processes often took years, leaving the protagonists in a state of limbo, is striking and salutary in thinking about the social role of law. At the same time, slaves were, of course, painfully aware that law was one of the means of their subjugation in the first place: slavery is a phenomenon sustained by violence, but that violence was most effectively articulated through the law. The degree of ambivalence with which they must have confronted legal mechanisms is effectively addressed here. The resulting analysis is full of insights, and narratives which grip the reader with their sheer human interest. For instance, the story of Lucas Criollo (p. 92)—who tried to enforce his rights to visit his enslaved wife María, whose owner don Juan Squiaca punished her for this with beatings and insults—speaks volumes about patterns of exploitation and abuse, the complexity of marriage within enslaved relationships, gender dynamics, reputation (Squiaca was a procurator engaged in his own high-level litigation) and emotions. Not least conceptually, the recourse to law as the main source provides subtly gradated definitions of slavery, partly in the sense of the fractional freedoms alluded to in the title, and partly in the sense of the overlapping, but sometimes conflicting, definitions offered by ecclesiastical, civil and common law. While the final chapter addresses the complex conceptual and ethical problems inherent in treating persons as property, the book certainly indicates that further research is needed along these lines. Not least, the reader is struck by the degree of agency that many of these slaves were able to exercise, alongside their reduction to items of property. How did contemporaries, slave or free, articulate the logical disjuncture here? What were the implications of acknowledging the humanity of slaves, while effectively attempting to deny that humanity? And what was the role of law in negotiating this tension? Certainly, the perennial question regarding who law is for, provokes complex answers here. Perhaps the view of law which is presented is, in the final analysis, an overly positive one. McKinley does periodically remind us that the time and expense needed to undertake such cases placed many slaves in positions of legal and emotional limbo. Perhaps the greatest challenge is to strike a balance between addressing the appalling subjugation of slaves and acknowledging their humanity and agency: McKinley’s work is striking in this respect, and both ethical and historical imperatives emerge which should inspire future studies. © Oxford University Press 2018. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
The English Historical Review – Oxford University Press
Published: Apr 10, 2018
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