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Robert J.Cottrol

Excerpted From: Shadow: Law, Liberalism, and Cultures of Racial Hierarchy and Identity in the Americas , 76 Tulane Law Review 11-85 , 11-17, 25-40 (November, 2001) (Footnotes Omitted)

A. Historical Overview

The black experience in the United States is actually a fairly small part of a much larger history of the forced transportation and settlement of Africans in the New World and the histories of their Afro-American and non-Afro-American descendants. Our best information indicates that less than six percent of Africans brought to the Americas settled in what became the United States. The experiences of Portugal, Spain, and later Latin America with African and Afro-American slavery were of a far longer duration than that of British North America, later the United States. African slavery would begin in metropolitan Spain and Portugal early in the fifteenth century before Columbus's voyage to the New World. Latin American slavery would formally end nearly five hundred years later in Brazil in 1888, a generation after Appomattox and the passage of the Thirteenth Amendment. Over four million African captives were brought to Brazil alone. The giant Lusophonic colony and nation received the largest number of Africans from the transatlantic slave trade, more than seven times the 560,000 Africans that are estimated to have come to what would become the United States. The Spanish-speaking regions of the Western Hemisphere received 1,662,400 African captives. The sugar plantation economies of the Americas were the biggest magnet for the African slave trade. Northeastern Brazil and the Caribbean received the largest number of Africans brought during the nearly four centuries of the transatlantic slave trade, and the British and French Caribbean colonies combined received more than three million Africans. The pull of the sugar plantation economy was so strong that Cuba is estimated to have imported over 780,000 African slaves between 1790 and 1867 alone, nearly 140% of the total number of Africans brought to the United States between the seventeenth century and the end of the Civil War.

Africans, it should be stressed, were brought to every New World society and were a visible and significant portion of the population in colonial times. This was the case even in countries that today have relatively small or invisible Afro-American populations. Thus blacks were very visible in Buenos Aires and other parts of Argentina during the colonial era and throughout the nineteenth century. In the twentieth century, the Afro- Argentine population has been so small, at least in relative numbers, that most observers, including most Argentines, claim that the population is nonexistent. Chile had substantial numbers of African slaves working in gold mines, even though there is no visible Afro-Chilean population today. Mexico is estimated to have received somewhere between 200,000 to 250,000 African slaves in the colonial era, greater than the number of Spaniards who came to Mexico during that period. There are still substantial Afro-Mexican populations, especially in the states of Veracruz on the east coast and Guerrero and Oaxaca on the west coast, but their presence is overshadowed by the large Indian and Mestizo populations of Mexico.

From the beginning, the Portuguese and Spanish experiences with slavery differed from the experience in British North America. Very few Portuguese or Spanish settlers came to the Americas. In most American territories the small, predominately male Portuguese and Spanish settler populations uneasily ruled over large Indian populations.For a number of political and religious reasons, both the Portuguese and Spanish governments decided that although Indians would be subject to various forced labor regimes, they would not be formally enslaved. Legal slave status would be reserved for Africans and their descendants. This, of course, added further to the anxieties of Portuguese and Spanish colonists as a growing population of African slaves were brought to the Americas to labor on the plantations and mines of the New World. Asserting and maintaining control over the majority of the population, which was neither Spanish nor Portuguese, was a major preoccupation of the Iberian settlers in a way that dwarfed similar concerns of the British settlers of North America.

If Portuguese and Spanish settlers came to the Americas with somewhat greater fears concerning their slave populations, they also arrived with a tool that their English counterparts initially lacked--an already well-developed body of slave law and law concerning free persons of African descent.Portuguese and Spanish slave codes derived from the slave law of ancient Rome. Spain received Roman law in the thirteenth century during the reign of Alfonso X, the Wise. Roman law, including the Roman law of slavery, was codified into Spanish law in Las Siete Partidas.

In Latin America, Roman doctrine was modified in light of Spanish Christianity. Roman law, for example, was extremely harsh against potential slave rebellions. If a slave killed his master, Roman law specified that all the slaves in the household were to be put to death. The law prescribed that this was to be accomplished before the reading of the deceased master's will so that no slave in the household could be freed and hence be ineligible for execution. Spanish law confined punishment in such cases to the slaves actually responsible for the killing.

Spanish and Portuguese law was concerned with far more than simply establishing a disciplinary code for slaves, as important as that was. The law was also concerned with the assignment and preservation of status. It specified how a slave might be set free, preserving much of the Roman law doctrine on this topic. Portuguese and Spanish law, especially municipal ordinances, sought to control the behavior of slaves and free blacks who lived and worked in cities like Lisbon and Madrid, or who toiled on the sugar plantations in the Azores and Cape Verde islands. There were even ordinances in Lisbon, Madrid, and the other cities of Portugal and Spain that strangely anticipated the Jim Crow regulations of the U.S. South in the early twentieth century. There existed laws forbidding free Negroes from wearing clothing above their station, or carrying swords, and other kinds of status regulations.

Portuguese and Spanish laws regulating slaves and free people of color were adapted to meet immediate needs. Both nations, even before Colombus's voyages of exploration, were in a process of expanding from a system of domestic slavery, where slaves were employed to expand the household labor force, to a system of what some historians have termed industrial slavery, where slaves would supply the principal labor force for an expanding export economy built around plantation agriculture or mining. The development of sugar plantation agriculture in the Azores and in the Canary and Cape Verde islands, made slavery more important to the economies of Portugal and Spain. It also brought significant numbers of Africans into both nations, making questions of race and status more critical.

Although the slave laws of Portugal and Spain were concerned with the immediate question of governing the growing African populations of the two nations, there is one way that the law of slavery made an enduring contribution to the culture of race relations in Latin America: the laws of Spain and Portugal reflected a stringent concern with group classification. This concern would increase with the Spanish and Portuguese settlement of what would become Latin America. Spanish and Portuguese settlers in the Americas, aware of their minority status, sought to maintain rigid separations among the different African, Indian, and mixed peoples that they ruled. This was to be accomplished through codification, the development of a highly precise system of racial classification through law. Spanish lawmakers were particularly artful at this, importing racial categories developed in Spain and adding to them classifications developed in the New World. Mexican anthropologist Gonzalo Aguirre Beltr�n reported on one such scheme employed in eighteenth-century Mexico. The codified categories indicated the designation and status of individuals according to the race and color of an individual's parents. The offspring of a:

1. Spaniard with an Indian woman is a Mestizo;

2. Mestizo woman with a Spaniard is a Castizo;

3. Castizo man with a Spanish woman is a Spaniard;

4. Spaniard man with a Black woman is a Mulatto;

5. Mulatto woman with a Spaniard is a Morisco;

6. Morisco man with a Spanish woman is a Chino;

7. Chino man with an Indian woman is a Step Backward;

8. A Step Backward man with a Mulatto woman is a Wolf;

9. A Wolf man with a Chino woman is a Gibaro;

10. A Gibaro man with a Mulatto woman is a Leper;

11. A Leper man with a Black woman is a Cambujo (very dark);

12. A Cambujo man with an Indian woman is a Zambaigo;

13. A Zambaigo man with a Wolf woman is a Calpa Mulatto;

14. A Calpa Mulatto man with a Cambujo woman is a Stay in the Air;

15. A Stay in the Air man with a Mulatto woman is an I Don't Understand Thee; and

16. An I Don't Understand Thee man with an Indian woman is a Step Backwards.

This and other similarly meticulous classification schemes were developed in part to strengthen Portuguese and Spanish rule in the Americas. Spanish colonial law in particular attempted to group the different racial categories into different castes with differing sets of legal privileges. This was done as part of a divide-and-rule strategy. Spanish and Portuguese colonial administrators were particularly concerned with preventing the subject peoples in their American colonies, the African, Indian, and mixed race populations, from making common cause. Their idea was that a strictly codified caste system--the Spanish actually used the word casta or caste--would foster a strict separation of the differing groups, facilitating Spanish or Portuguese rule.

The legal attempt to make fine racial distinctions had an ironic consequence. Far from strengthening the boundaries between the different subordinate groups, the multiplicity of racial classifications actually contributed to a culture of racial mobility and what, to North American eyes, appears to be a culture of racial ambiguity in Latin American societies. It would become possible to improve one's racial standing with the improvement of one's social standing. If being white meant that one was at the top of the social pyramid, while being black meant that one was at the bottom, these were not legally immutable characteristics. The successful individual, the military captain, the person who struck it rich in the gold fields, those whom fortune smiled upon, could aspire to be white. In some cases, legal recognition of one's "whiteness" could actually be purchased. Even if whiteness might be beyond an individual's grasp, a free person of African descent might aspire to be recognized as a Mulatto, a Morisco, or some other mixed category.

Racial mobility, of course, can only exist where there is a clear notion of racial hierarchy or stratification. Firm notions of the proper place and status of the three races existed in Spanish and Portuguese thought. Whites were deemed superior. Indians, as a group, were seen as nobler than Africans. As might be expected, this picture became more complicated when cultural issues and racial mixtures came into play. As Africans, and more particularly their Afro-American descendants, adapted to the Portuguese and Spanish cultures, they became part of Latin American colonial societies. Because Africans were enslaved, more of them were likely to adopt the principal features of the Portuguese and Spanish cultures, particularly language and religion, than Indians, many of whom were effectively beyond the control of their nominal European masters. This helped to create a system of racial stratification, a pyramid if you will, which persists to the present day in most Latin American nations. Whites generally have a superior status. People of Indian racial background whose cultural practices are mainly of Portuguese or Spanish derivation--Portuguese or Spanish is their first language, Catholicism is largely unmixed with indigenous religious practices-- would be next on the social ladder. Mestizos, people of mixed indigenous and white background, would have a higher rating than those of largely Indian background. At the bottom of the social pyramid would be Afro-Americans, with mulattoes occupying a higher social status than blacks. Indians who retain indigenous cultural patterns--and in most nations Indians are defined culturally, not racially-are frequently viewed as being outside the society's social structure, frequently with devastating results. It was in this hierarchical framework that law in colonial Latin America provided a formal legitimization to the notion of racial mobility.

It should be quickly acknowledged that the law's role in creating this culture of racial mobility, although real, was probably of somewhat minor importance. More than any other reason, demography dictated that Brazil and the Spanish colonies adopt a fluid view of racial classification. With their small European populations, Latin American colonial societies could not have functioned without allowing significant numbers of people of African and indigenous descent to rise within the different societies. The military and economic needs of those colonies dictated the rise of large free Afro-American populations, mostly (but not exclusively) from the ranks of those of mixed racial backgrounds. These needs also dictated that the population be allowed to join the ranks of citizens and that a certain fluidity in racial definition be permitted.

The history of Afro-American slavery in Latin America is a long and complex one that cannot be examined here. The system of African household and industrial slavery that began in Spain and Portugal early in the fifteenth century would ultimately end in Latin America in the nineteenth. Here the histories of Brazil and the Spanish-speaking nations of the hemisphere took very distinct paths. Spain's American colonies began the process of emancipation as part of their struggles for independence from Spain. Some of the emerging nations abolished slavery outright when they attained independence and adopted new constitutions. Others developed gradual emancipation schemes that put an end to formal chattel slavery within a generation after the attainment of independence. Puerto Rico and Cuba, which would remain Spanish colonies until the end of the nineteenth century, would retain slavery throughout most of the nineteenth century.

Brazil would have the longest experience with Afro-American slavery. Although Brazil would attain independence in 1822, it would become independent as an empire, complete with an emperor and an economy very much centered around plantation agriculture and slavery. Brazil would resist much of the antislavery currents of nineteenth-century liberal thought. The Brazilian Empire would only reluctantly agree to end the slave trade in 1850, more than forty years after Britain and the United States had outlawed the trade. Slavery was finally abolished in Brazil in 1888. The circumstances of abolition and its relationship to postemancipation race relations will be discussed below.

B. Race and Contemporary Afro-Latins: The Elusive Problem

Slavery has left a mixed legacy to the American hemisphere. There are visible Afro-American populations throughout the hemisphere. Every nation in the Americas numbers among its citizens descendants of African slaves, most who are classified as black or mulatto, and some who are numbered among the white or mestizo populations of their nations. Here, just as in our previous discussion with slave importation, it might be useful to attempt to contrast the size of the black population of the United States with the Afro- American population in the hemisphere as a whole. This is a somewhat difficult task. While the records of slave-trading companies, combined with tax records, have given demographic historians a reasonably accurate portrait of the size of the slave trade and the destinations of the African captives who came to the Americas, the data are much less firm on contemporary Afro-American populations.

The first problem is one of definition. Who should we count as Afro- Brazilian, Afro-Mexican, or Afro-Colombian? To North Americans, that seems like an incredibly easy question. We are accustomed to viewing anybody with traceable African ancestry as black. Surely, even conceding to Latin Americans that blacks and mulattos are distinct groups and that our notion of hypo- descent is carrying things a bit far, we should be able to determine if there is a proximate black ancestor, perhaps drawing the line at grandparents or great-grandparents, and thus, decide if an individual might fall into an Afro- American category. This should not be too difficult. It is. Concepts that either developed or intensified during slavery, views of black inferiority, and notions of racial mobility complicate the task of determining who should be included in the Afro-American population of Latin America. If U.S. history and culture dictated that anyone with traceable African ancestry was to be included in the black population, circumstances during slavery and after emancipation in Latin America dictated almost exactly the opposite--people of mixed background or even people largely of African ancestry above a certain social standing were to be counted as something other than black.

There is yet another level of complexity that must be added to the question of who should be counted as an Afro-American within the Latin American context. After awhile, the North American researcher begins to get the hang of things. There is a strong distinction between blacks and mulattos. There are individuals with admitted black ancestors who regarded themselves, and are regarded by others, as white or mestizo. Racial mobility is possible--you need not remain a member of the racial group into which you were born. Just as you get used to these ideas, certain facts throw a curveball or two your way. If it is true that phenotype and social position determine race--and not remote ancestry, as has been the case in the United States--why is the tragic mulatto story a genre in Latin American as well as North American fiction? Or why does one occasionally encounter individuals who are phenotypically white or Indian who nonetheless identify themselves as Afro- Colombians or Afro-Mexicans? These seeming counterexamples tend to make the North American student of race even less surefooted when traversing the difficult terrain of race and status in Latin America.

In some cases African ancestry is denied altogether, even when it is apparent. The population of the Dominican Republic, for example, is predominately of African descent. Only a minority of the population is phenotypically white, and a majority of that group probably has some African ancestry. Despite this, it has been customary among some Dominicans, until relatively recently, to define themselves as Indians, or descendants of Indians, and not as Afro-Dominicans. Blacks have frequently used the term Indio Oscuro, or Dark Indian, while mulattos have tended to use the term Indio Claro, or Light Indian. This tendency has in part reflected the traditional higher status for people of Indian descent in Latin America, as well as the fact that Haitians have traditionally been seen as the "other" in Dominican society.

All of this makes determining the size and scope of the Afro-American population in the Western Hemisphere a somewhat difficult undertaking. This task is made yet more difficult because, with the exception of Brazil, most of the nations of Latin America have not kept systematic records of their African- descended populations in national censuses. Angel Rosenblat's population estimates, done in the late 1940s, are frequently taken as a point of departure for estimates of racial groups in the Americas.Rosenblat's estimates indicated that in 1950, throughout the hemisphere, there was a black population of nearly 29 million and a mulatto population of a little over 19 million. This would make an Afro-American population of approximately 48 million in a hemisphere that then had a little more than 326 million inhabitants. Thus, according to Rosenblat's estimates, Afro-Americans counted for nearly 15% of the inhabitants of the Americas. However, a study done by the Interamerican Development Bank (IDB) in 1996 indicated a population of some 150 million persons of African descent in Latin America out of an estimated 471 million persons in the region. These figures would make the Afro-American population roughly 32% of the population of the region as a whole. The differences between the Rosenblat and IDB estimates can in part be attributed to the difficult question of who should be counted as Afro-American within the Latin American context.

By any estimate the Afro-American population of Latin America is substantial. In some countries, including Brazil, Colombia, Cuba, the Dominican Republic, and Venezuela, people of visible African descent make up one-third or more of the population. In other nations, Mexico and Peru for example, there are substantial Afro-American populations, but their presence tends to be overshadowed by the large indigenous populations and the tensions between the white and mestizo populations and those who retain an indigenous culture. In a number of Latin American nations, the Afro-American population is quite small, and there has been a tendency to claim that they have disappeared altogether. This has been true, to varying degrees, of Argentina, Chile, and Uruguay in the twentieth century. In some countries, the Afro-American population is largely an immigrant population, particularly in many Central American nations, where there has been large English-speaking Afro-Caribbean immigration in the twentieth century. In a number of nations, this has added an overlay of cultural conflict in addition to their racial conflict.

Despite significant variations in the different nations, certain common patterns with respect to race and discrimination regularly appear in the historical and social science literature discussing Afro-Americans in Latin America. Racial hierarchy, a social pyramid with blacks on the bottom and whites on top, the idea of relative fluidity in racial classifications, and the concept of racial mobility have all been reasonably well-explored in the recent social science literature. A generation or two ago, historians and social scientists, partly influenced by the contrast with the Jim Crow United States, were likely to describe racial interactions in Latin America in terms of the concept of "racial democracy," attributing the different conditions under which blacks and whites lived to class differences, not racial discrimination. Today there is a much greater willingness in the literature to recognize the extent of Latin American racial discrimination in areas like employment, public accommodations, receipt of government services, and even areas like public stereotyping and racial insult. There are efforts in some Latin American countries to strengthen antidiscrimination laws.There is also a debate over how much might be learned from the U.S. experience in this area.