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Lauren A. Benton - The Legal Regime of the South Atlantic World, 1400-1750: Jurisdictional Complexity as Institutional Order - Journal of World History 11:1 Journal of World History 11.1 (2000) 27-56

The Legal Regime of the South Atlantic World, 1400-1750: Jurisdictional Complexity as Institutional Order

Lauren Benton

What were the boundaries of the early modern world? Answers to this question rest upon assumptions about the nature of global interconnectedness. World-systems approaches have explicitly marked participation in global production networks as a criterion for inclusion in the world-economy of the sixteenth century, an emphasis that critics have noted leaves Africa and Asia oddly outside its boundaries. 1 Highlighting trade is an alternative that leads toward different conclusions--for example, toward a greater emphasis on the importance of Asia in the global system. 2 Yet as critics of world-systems history noted decades ago, understanding local-global connections through the analysis of trade invites inadequate attention to local conflicts that appear crucial in structuring regional incorporation in global markets. 3 The alternatives, however, have always appeared badly [End Page 27] flawed. One is to revert to a modified civilizational approach that traces cultural continuities--and that tends to represent increasing global interconnectedness as a function of the spread of Western ideas and institutions. Another possibility is to retreat from systemic kinds of questions altogether. Many studies of the discourse of cross-cultural contact, colonial policy, and representations of metropolitan identity not only refrain from speculating on the relation of local cultural shifts to global trends but also urge us to view any broader narrative as itself a cultural representation. Such a perspective does much good in warning against investigating the global economy as the "real" substratum beneath discursive and supposedly more ephemeral cultural exchanges. But the result is often a surrender of discussions of global structure to scholars with scant interest in cultural dimensions of change.

This article explores another possibility for charting interconnections and uses it to explore other sources of continuity in the early modern world. It builds upon recent approaches to institutional world history and examines the structural similarities of legal institutions in the South Atlantic in the sixteenth and seventeenth centuries. There are two components to the argument. The first, in brief, is that a single legal regime spanned the interconnected regions of the South Atlantic. Structural similarities of different regional systems of law before the expansion of long-distance maritime trade helped to make this expansion possible. Contact, settlement, and the forced migration of Africans to the New World had the effect of reinforcing these similarities. This argument, though institutional in its focus, does not exclude cultural analysis. The main feature of this legal regime (and the second component of my argument) is a shared emphasis on legal distinctions between cultural groups. Without narrowly determining meanings of ethnicity, the law created a space for ethnicity as a social category. Conflicts around legal definitions of cultural difference were simultaneously forms of cultural practice and elements of institutional continuity across Iberia, west Africa, and the colonies of the South Atlantic.

The article explores these interconnections by analyzing jurisdictional tensions and their mutual influence in different legal arenas of the South Atlantic world. I examine first the sources of jurisdictional fluidity in the Iberian empires and, in particular, the ways in which overseas empire exacerbated a jurisdictional fluidity that was built into Iberian law. The article then analyzes legal practices in the African states drawn into trade with Europeans in the early centuries of maritime contact. Although Europeans often misinterpreted or denigrated African legal systems, they also responded to aspects of African law [End Page 28] they found to be quite familiar--especially its jurisdictional complexity. The third section of the article shifts then to an analysis of legal culture in the New World African diaspora and argues that an understanding of European and African models of legal pluralism sheds new light on treaty negotiations between planter regimes and maroon communities. Across these disparate regions and sets of interactions, and in legal systems reliant on different legal sources, the law structured polities in which the existence of multiple legal authorities gave institutional space to culturally and ethnically different groups. The project of structuring this plural legal order itself created a certain institutional consistency that also allowed various kinds of "strangers" to recognize and learn to manipulate the legal processes of foreign, or host, polities. This institutional order did not "create" ethnicity--that complex process of social construction at times worked against rather than within legal boundaries--but did create a social and political space for cultural difference that was present across the South Atlantic world. 4

Given its scope, the article cannot explore the details of particular jurisdictional conflicts, but I refer to micro-studies and draw where possible on selected primary sources. The argument is one of institutional macro-history and historical sociology. The risk of offending regional specialists is balanced, I think, by the benefits of viewing intra-regional jurisdictional tensions in the context of broader patterns in the law that had so much to do with shaping the meaning and structure of local legal conflicts.

Jurisdictional Complexity in Iberian Law

European law in general from the twelfth century on was, as Berman has argued, constructed as a jurisdictional matrix in which the relationship of canon law and state law served as a model over time for the relation between state law and other legal authorities. 5 This was especially clear in the Iberian polities, where sustained contact with non-Christian [End Page 29] communities gave rise to a plural legal order in which Christians, Jews, and Muslims could, under some circumstances, have recourse to separate legal forums but could also, in some instances, be brought under royal jurisdiction. Although much attention has understandably focused on the Spanish crown's growing intolerance--in particular the forced conversion and expulsion of Jews and then Muslims--these actions came after centuries of coterminous jurisdictions. In ending the experiment of religious pluralism, the crown retained legal pluralism in the continued dualism of church and state authorities, a source of fragmentation that was exacerbated under conditions of colonial expansion.

The legal relationship to non-Christians, both in Iberia and overseas, was loosely modeled on the jurisdictional arrangements between canon and state law. In Iberia as elsewhere in Europe, the church claimed jurisdiction over particular classes of people and over categories of actions. Clergy, most prominently, fell under the jurisdiction of ecclesiastical courts, but so did classes of travelers (such as students and soldiers) and of disadvantaged persons (widows, orphans, and the poor). The church claimed, in addition, authority over activities related to spiritual concerns. This was broadly defined to include marriage, inheritance, and family matters in general, as well as certain kinds of commercial and financial activities, such as usury and the administration of church property. The church, of course, sought to exercise the right to judge and punish heresy. With the formation of the Inquisition, a special court (with a divergent legal procedure in which stringent standards of proof were relaxed) was inserted into the plural legal order, creating further complexity in the jurisdictional landscape. 6

More broadly still, canonists developed other rationales for the extension of church legal authority. Litigants were offered the possibility of submitting voluntarily to the jurisdiction of ecclesiastical courts, in part because this was viewed as a possible protection for Christians who had reason to fear biased or harsh treatment in secular courts. Further, canon law theorists--beginning most forcefully with Pope Innocent IV in the thirteenth century--argued that the church had jurisdiction over all infidels de jure but not de facto. 7 It could, [End Page 30] therefore, intervene in cases where the actions of non-Christians, even if consistent with their own law, violated natural law. In making such claims, the church was seeking to establish a special kind of authority in interpreting and protecting natural law.

Jurisdictional tensions resulting from this relationship were salient in early modern Iberian polities and coexisted with other sources of jurisdictional complexity, such as the relationship of local custom to royal law. Legal strategies implied choices of forums and related choices of sources of law. With the significant exception of the Inquisition, church law was widely regarded as more orderly and uniform in doctrine and procedure, and more lenient in its punishments. Secular law was more lax in some areas and provided stricter controls on legal arguments based on local custom. All participants in the legal order adjusted strategies to this "patchwork of customs and law...and of judicial jurisdictions," and the sophistication required by such strategies no doubt contributed to the rising status of legally trained elites and the litigiousness of Iberian society. 8

For Spain, conquest and colonization appeared to offer an irresistible opportunity to simplify this jurisdictional map. Moving into a "jurisdictional vacuum" in the Americas, where neither preexisting seigniorial rights nor established church claims refracted legal authority, the crown did seek aggressively to promote a hierarchical vision of legal administration. 9 The real patronato de las Indias (the arrangements under a succession of papal bulls establishing royal authority over church institutions in the Americas) seemed to provide just this sort of institutional streamlining. Church institutions were left with carefully limited autonomy; after 1606 even the right of the clergy to be tried in ecclesiastical courts was somewhat curtailed with the crown's publication of a papal bull eliminating appeals to ecclesiastical courts in Rome. Even the Inquisition, though retaining significant autonomy from local secular or ordinary ecclesiastical controls, was formally under the authority of the crown since appeals went to the Supreme Council in Spain, a body directly responsible to the king. 10

Yet despite these efforts the legal order of the New World continued to be one of considerable jurisdictional fluidity and openness. In [End Page 31] large measure, continued jurisdictional complexity was the outcome of jockeying over the legal position of culturally different subjects, the American Indians. Theological debates about the legal status of Indians influenced crown policy deeply in the first decades of rule and have been amply treated by historians. 11 Less well known are the ways in which different legal authorities sought to enhance their power by positioning themselves in relation to Indians as legal subjects.

In the early decades of colonial administration in New Spain, Indians continued to exercise considerable legal authority in their own communities. Though formally incorporated into the Spanish legal bureaucracy as local judges (alcaldes), Indian leaders frequently administered customary law and entertained legal arguments based on pre-Conquest practices and standards. In much the same way that the legal authority of Muslims and Jews had been weakened on the Peninsula through Christian influences, Indian practices shifted gradually under the influence of Spanish law and procedure. 12 At the same time, Indians perceived quickly the potential benefits of litigation in Spanish courts and multiplied suits over land, inheritance, and other property rights. Decades of conflict between administrative and judicial hierarchies over the control of Indian litigation led in the sixteenth century to the creation of a special forum in New Spain, the General Indian Court, and a separate bureaucracy with paid defenders (protectores de indios) to serve Indian litigants. Significantly, the rationale for this legal policy was fashioned out of a familiar model of church-state relations; Indians were equated with Old World disadvantaged groups requiring special protection from legal abuse. 13 Further, debates about whether Indians should be subjected to trial by the Inquisition, and several celebrated cases of the perceived abuse of this power, contributed to the decision to place Indians outside the jurisdiction of the Inquisition when it was formally introduced in New Spain in 1571. 14 [End Page 32]

By the end of the sixteenth century Indians were clearly marked with a separate legal status in the Spanish colonial order. This legal category was to be continually in tension with other definitions of Indianness. Hispanization of Indians was often a strategic move to improve economic and social position, and it was an unsurprising outcome of continued intermarriage across castas. But Indian identity could also be a valued commodity in civil actions, in any Inquisition investigation, and in political fights to protect communal rights against settler incursions. 15 The legal separation of Indians continued to serve, too, as a focus of contention between church and state authorities, contributing to persistent jurisdictional jockeying that undercut the crown's efforts to streamline legal authority. Church and state fought over the legal representation of Indians; over the power to judge and punish mission Indians; and over the church's use of legal immunity, the fuero eclésiastico, to protect clergy-Indian relations from the regulation of secular courts.

Such fights were not merely the hidden text of colonial society. Jurisdictional claims and counterclaims were central features of legal practice in Spanish America. The jockeying was especially pervasive in the Spanish American borderlands. In New Mexico, for example, jurisdictional conflict was the political leitmotiv between 1610 and 1680, when the Spaniards were expelled after the Pueblo revolt. Franciscans engaged in a long struggle with secular authorities for judicial control over Indian communities. Complaints to the viceroy and, in the second half of the century, to the Holy Office of the Inquisition, focused repeatedly on the narrow issues of violations of ecclesiastical immunity and the usurpation of ordinary ecclesiastical jurisdiction by local authorities. These disputes involved contests, too, over the definition [End Page 33] of social and ethnic boundaries, and over representations of Indianness in the region. Here as elsewhere in Spanish America, jurisdictional divisions were sharpened, and legal positions strengthened, by claims about "discoveries" of Indian idolatry, by Indian accusations of abuse, and by attempts to show that one or another group of Spaniards was becoming culturally tainted by Indian and mestizo influences. 16

If built-in possibilities for jurisdictional fluidity were exacerbated in Spanish America, where the crown made a concerted effort to establish the dominance of royal courts, we should be less surprised to find the same condition in the less centralized Portuguese trading-post empire. The Reconquest had produced a legal order in Portugal that was substantially similar to that of Christian Spain. In the south of Portugal, Muslim offices and administrative boundaries were adapted to Portuguese use. The local unit of judicial administration was the township (conselho), which contained various officials involved in the administration of justice, the most important of whom was the juiz ordinário, or municipal magistrate. Gradually the crown enacted legal reforms to improve its control over local administration of justice. The crown created the office of juizes da fora (judges from outside) in 1352, to oversee local magistrates, and strengthened royal courts of appeal. By the fourteenth century justice "was firmly monopolized by the crown." 17 Further centralization took place in the early sixteenth century, when the crown issued the Ordenaçoes Manuelinas, greatly increased the number of juizes da fora, and extended the authority of corregedores, superior crown magistrates who occupied a next level of royal judicial overview.

Yet the Portuguese legal order had the same forces operating within it to create a certain jurisdictional looseness as did the legal order in Spain. Limited legal autonomy continued to be extended to non-Christian religious communities, and Jews were segregated in designated, self-regulating quarters of the larger cities. Military-religious orders functioned under a separate legal bureaucracy, with officials called ouvidores, appointed by the military order, rather than crown-appointed [End Page 34] corregedores. As in Spain, ecclesiastics enjoyed immunity from secular courts, and they sought jurisdiction over special classes of people and crimes against the faith. This more complex legal landscape helps to explain the crown's willingness to follow ad hoc arrangements for the administration of justice as the Portuguese moved into the Atlantic.

In administering military outposts on the coast of north Africa, Atlantic island settlements in the Azores and Madeira, the islands off the coast of Guinea, the islands of São Tomé and Cabo Verde, and the west African coastal trading factories, the Portuguese combined a strategy of delegating legal authority to captains and privateers with sporadic attempts to assert closer royal supervision. The laws of Portugal were to be applied in the overseas territories. In many outposts captains were awarded summary judicial powers and had ultimate jurisdiction except in the most serious cases. Some captains were permitted to appoint ouvidores, as in the Azores and on Madeira. In Angola and Brazil donatários (nobles who had been awarded control over large tracts of territory) also had judicial authority but could appoint ouvidores. The crown periodically expressed its dissatisfaction with this system and sent corregedores to investigate ouvidores appointed by captains and privateers. 18 This occurred in the Azores and, in 1516, on the islands of São Tomé and Cabo Verde, and the islands off the Guinea coast. The crown showed its readiness to intervene when judicial powers were seriously abused. At Mina, on the west African coast, judges from Lisbon were sent in 1562 to investigate the activities of an outpost commander who, when accused of involvement in illicit trade, had sent the local bailiff to the galleys. 19

Consistent across the Portuguese territories and trading posts, from Brazil to Malacca, was an official reluctance to assert jurisdictional claims outside the Portuguese community of settlers, soldiers, privateers, and crown officials. This did not mean that the line dividing this population from indigenous communities was easily defined. In many of the Atlantic islands, Angola, Goa, and certainly Brazil, the Portuguese administered law to a heterogeneous population of Portuguese-born settlers, indigenous inhabitants who had not been enslaved, non-Portuguese slaves, Portuguese convicts, and a growing population of [End Page 35] mulatto and mestizo residents who spoke Portuguese and considered themselves Christians. Where jurisdictional claims extended outside these groups, it was usually in an attempt to supervise the behavior of Christians who lived outside the bounds of Portuguese towns or posts. 20 A tribunal of the Inquisition was established in 1560 in Goa, which conducted the usual investigations in search of backsliding New Christians in the Portuguese community but also prosecuted some nominal Christians from Portuguese-Indian unions. 21 The issue arose more sporadically elsewhere. In Mina, a fortified outpost devoted to trade, the vicar in 1540 arrested a baptized former slave named Grace, who had gone to live in the nearby African village and, by her own admission, had forgotten her Christian teaching. The Portuguese went to the village and searched her house, where they found fetishes. The vicar had her sent to Lisbon, where she was tried before the Inquisition and sentenced to perpetual imprisonment. 22 Such attempts to extend authority outside the factories occurred rarely, though. In Angola, where the royal family and members of the court converted to Christianity, the Portuguese left judicial affairs of Africans entirely in their hands. Members of the elite traveled to Portugal, where their education would have included canon law, but they were not made part of the Portuguese legal administration on their return, and we have little knowledge of the impact of their training on local administration of justice. The overall pattern remained one of restricted rather than expansionist claims about the boundaries of judicial authority. 23 [End Page 36]

Even in Brazil, where the Portuguese were not able to operate under the same trading-post system but, from the 1530s on, pursued a policy of settlement and plantation agriculture, Portuguese law was applied narrowly to Europeans. Indians were either condemned as living outside the law or treated to virtually unregulated disciplinary excesses if they lived within Portuguese-controlled territory. Private justice and severe ad hoc punishments were administered to Indians suspected of crimes against Portuguese. Sixteenth-century Jesuit writings complained that the Portuguese administered this rough justice to Indians while treating infractions against Indians by Portuguese with great leniency. One Jesuit father wrote that Indians were regularly "hanged, hewn in pieces, quartered, their hands cut, nipped with hot pinchers, and set in the mouth of pieces, and shot away." 24

The Jesuits, of course, were engaged in a long struggle with secular officials and settlers over control of the Indian population. Schwartz describes the legal dimensions of this struggle as involving "constant jurisdictional dispute" in the decades leading up to the ascension of Spanish suzerainty over Portugal in 1580. 25 The Jesuits aligned themselves on some occasions with the ouvidor geral against governors, and governors in turn were known to seize the estates of crown judges and send them back to Portugal. Habsburg reforms after 1580 sought to move Brazil toward a more tightly centralized system, but these efforts were not always effective. In 1609 a new High Court of Brazil, the Relação, arrived in Bahia and soon after published a new law issued in Madrid, making it illegal to employ Indians without paying them a wage and declaring that all Indians captured illegally should be freed. Measures for enforcement included provisions that the governor and High Court chancellor would appoint a special magistrate for each village to adjudicate disputes between whites and Indians. But this new regime was never successfully put in place. Instead, the law was replaced in 1611 with a decree permitting slavery under certain conditions and awarding full judicial powers over Indians to Portuguese captains in each settlement. The law included provisions for appeals to the local ouvidor or to an official specially designated as a magistrate of Indian affairs. But this retreat reestablished the status quo of the [End Page 37] legal marginalization--and effective exclusion--of Indians in Brazil as legal actors.

The limited legal authority of the crown in Brazil was reproduced in outlying regions. Here the crown's attempts to provide for the administration of justice were desultory. The interior region of the sertão had a reputation as a place of lawlessness--a refuge, in fact, for fugitives. In the south, slave raiding against Indians in the interior was difficult to control, and royal officials found that "intentional disregard" served their own interests better. 26

It is important to note that despite the difference in settlement patterns in Brazil and Africa, Portuguese officials treated the regions as part of the same legal realm. Portuguese degregados, or condemned criminals, were exiled from Brazil to Angola; even African slaves were sometimes punished in this way. In the mid-sixteenth century the crown officially extended Brazilian legal jurisdiction to include parts of west Africa. Although Angola was never formally placed under the authority of the High Court of Bahia, this measure was suggested, and some judicial oversight, mainly in the form of supervision of reviews of royal officials in Africa, was instituted. 27 This perception on the part of Portuguese officials that they were operating in a single judicial field is significant in and of itself. The limits placed by Portuguese policymakers in Brazil on the expansion of the judicial bureaucracy and on its authority must be understood in this wider Atlantic context, in which the Portuguese were accustomed to operating as one of many competing judicial authorities with relatively narrow purview.

This is not to say that the Portuguese did not view law as crucial to overseas empire. 28 As in Spanish America, though, colonial conditions exacerbated sources of jurisdictional tension between the crown and the church, and institutional controls dissipated on the frontier. In addition to these forces, the Portuguese were influenced by their insertion into a legal universe in Africa that was itself structured [End Page 38] around the coexistence of multiple legal authorities. This homology--rather than any striking difference with African legal institutions--framed Portuguese-African legal interactions and strategies.

Legal Pluralism in Africa

The continuing jurisdictional complexity and fluidity of the Iberian legal orders must be kept in mind when evaluating the tendency of some scholars to emphasize fundamental differences in the nature of legal authority in Europe and Africa in the early centuries of maritime trade. Thornton, for example, has argued that the distinctiveness (and unity) of African legal traditions is key to an understanding of European-African relations between 1400 and 1680. In particular, the expansion of the maritime slave trade had only a controlled effect on Africa because slavery not only already existed but was fundamental in African economic and legal systems. Thornton writes that slavery "was widespread in Atlantic Africa because slaves were the only form of private, revenue-producing property recognized in African law. By contrast, in European legal systems, land was the primary form of private, revenue-producing property, and slavery was relatively minor." 29 Thornton concludes that Africa was not "backward or egalitarian," only "legally divergent." 30 Europeans were so conditioned by the experience of their own, very different legal institutions that they failed to understand this fundamental difference and behaved, at times, as if Africans also had a market in land and measured both wealth and political authority in terms of control over land. 31

Although such a view represents a substantial improvement on approaches that would ignore African institutions or represent them as irrevocably damaged by contact with Europeans, it exaggerates the differences between European and African institutions and overlooks substantial similarities and even some direct connections. In drawing the distinction between African and European systems of law, Thornton makes much of the central place of landholding in European legal [End Page 39] traditions, even calling "the concept of landownership...the fundamental starting point of law." 32 He notes that the Siete Partidas states clearly that all land should have an owner, either private persons or the state. Yet, as we have seen in outlining legal tensions in early modern Spain, such a statement was not incompatible with the continued influence of forms of personal law. Indeed, even where the definition of property was concerned, it is not clear that the concept of ownership was radically different in Iberia from what it appears to have been in many African kingdoms. Thornton notes that conquest in precolonial Africa generated income in tribute and taxes, not rights to landed property, per se. African "nobles" thus "ultimately derived their rights from their position in the state and not as landowners in the European sense." 33 But this statement would also describe both Portuguese who were awarded captaincies in the Atlantic islands or in Brazil and Spanish encomenderos in the Americas. In the latter case, the crown's reluctance to approve a legal equation of encomienda rights with rights to land was at the heart of colonial political conflicts for much of the sixteenth century. The creation of both institutions grew out of practices in place in the Iberian Reconquest, and they could hardly be considered as inconsistent with the European legal order. 34

The historical experience of the Reconquest also shaped Iberian notions of sovereignty in ways that suggested a certain homology with the African legal system's emphasis on the protection of "rights to people." To begin with, it is important to note that raiding was a very familiar modus operandi for Iberians. It was the central activity of the Reconquest, with actual conquest and settlement following long rounds of raiding and retreat. Seizures of people as slaves in raids was a "persistent and ordinary" feature of the Mediterranean world from antiquity through the nineteenth century. 35 Although, as Thornton [End Page 40] notes, raiding gradually gave way to regulated trade by Europeans in Africa, this does not mean that the raiding Thornton views as central to African understandings of conquest was in any sense foreign to Iberians. Raiding continued as a prominent activity of entrepreneurial Spanish and Portuguese settler-merchants through the eighteenth century in the Americas, particularly in frontier regions in contact with non-Christian and semi-nomadic indigenous peoples. The fact that raids were less practical in the African context did not make them institutionally anomalous. 36

There are other reasons to suggest a homology between European and African legal practices that relied on either substantive or structural similarities. To begin with, the mutual influence in Iberia and Africa of Islamic law has undoubtedly been underestimated. A common assumption of Western legal historians is that the influence of Roman legal sources was so profound as to overshadow any significant direct influence by Islamic law. Seed has found, however, that the Spanish Requerimiento, the statement of rights to conquest that was read by conquistadors to uncomprehending Indians in the Americas, was drafted for the crown by jurists informed by Islamic legal proscriptions on the announcement of jihad. 37 Historians of north and west Africa, for their part, have commented on the substantial similarities in some aspects of legal practice in Europe and Islamic Africa. Most prominently, the legal status and treatment of slaves were similar in many respects, despite the difference in legal sources for slave law. 38 [End Page 41] No doubt such connections between European and Islamic law deserve greater scrutiny; it would be surprising, given what we know about the dynamics of legal change elsewhere, if centuries of coexisting adjudication in Iberia and cross-cultural contact in the Mediterranean did not produce significant mutual influence. 39

But it is not necessary to rely on conjectures about undiscovered Islamic influences; Islam was a unifying influence in another way. The long history of contact with and incorporation of Muslims in Iberian territories accentuated the dualism that was already implicit in the overlapping jurisdictional claims of church and state. This same force was also at work in African territories where Muslim traders had established communities in diaspora. These communities were self-regulating. Qadis judged disputes within merchant communities even where local sovereigns remained non-Muslim. 40 The situation created in some settings a form of governance that was openly divided, as for example in the medieval kingdom of Ghana, where Muslim travelers noted, as early as the eleventh century, the parallel existence of Muslim and non-Muslim legal functionaries. The Muslim geographer al-Bakri describes the physical and administrative separation of two towns, one inhabited by Muslims "with their imams, their muezzins, their readers (of the Coran)," and their scholars and jurists. 41 In the king's town, Muslims were readily received and could presumably bring disputes before the king, who personally oversaw the settlement of legal disputes involving his coreligionists. The two populations signaled [End Page 42] their subservience to the king in different ways: "[The king] holds an audience to repair injustices....The beginning of the audience is announced by beating on a drum, called a daba, which is a long piece of wood (evidee). The people begin to assemble right away. His co-religionists, when they approach, throw themselves on their knees and touch the ground with their heads: this is their way of saluting the king. As for Muslims, they are content to clap their hands." 42

This recognized existence of multiple legal authorities was common even outside areas of Muslim influence. African cities and towns were structured to admit the settlement of outsiders. The accommodation was a practical one; long-distance trade was mainly in the hands of diasporic communities held together by ethnic and kinship ties. It was expected that these communities would obey local laws in interacting with local residents, but that they would also provide their own legal controls. The system fit well with the institutions of rule of local populations, in which wards were typically the site of judicial control in the first instance, with appeals possible to higher authorities. Special wards set aside for outsiders coincided with an existing level of legal supervision. 43

In some cases, merchant diasporas extended their jurisdiction beyond their own community borders. This was not always the result of conscious policy but was nevertheless consistent with both religious goals and commercial interests. Muslim merchants who brought Islam into non-Muslim parts of Africa benefited when rulers converted. As in other areas of Islamic expansion, Muslim justice undoubtedly also appealed to some litigants on nonreligious grounds, for the relative certainty and authority of judgments. 44 This possibility of transforming the law of a diaspora into a central institution was not, however, limited to Muslim communities. The Aro, a trading diaspora of Iboland [End Page 43] in what is now southeastern Nigeria, benefited commercially and politically from the acceptance among non-Aro groups of the Aro's oracle at Arochukwu, in Aro territory. Non-Aro peoples increasingly sought out the oracle as a means for settling disputes, sometimes making long trips to Arochukwu. This gave the Aro the curious status in many regions of a community of outsiders with religious prestige and, as a result, with considerable practical legal authority. 45

Separate legal authorities for different corporate groups existed not just for trade diasporas but also for subordinate or conquered corporate groups within loosely confederated African states. As Thornton points out, smaller conquered states typically continued to exercise local authority, including legal authority, and could effectively check the power of larger states in some circumstances. 46 Curtin notes that this fragmented legal authority was also a feature of a Senegambian political structure in which corporate groups defined by lineage retained authority despite formal subordinate status in relation to larger state structures. 47 Related to the recognition of the (limited) sovereignty of outsiders and constituent polities, African states also operated in an established system of international relations. The recognition of immunity for ambassadors was fairly widespread in precolonial west Africa, as were regulations for the conduct of warfare. 48 It was the existence of this system that allowed the Portuguese and, later, other European powers to set up trading relations and factories along the African coast. The Portuguese sent regular embassies to local rulers before establishing trading posts. 49 Although it is possible that Africans and Europeans misunderstood the meaning of Portuguese tenure on these relatively small holdings, different interpretations of landholding were hardly significant at this stage. More important was the understanding on both sides that the factories did not establish Portuguese authority over Africans themselves. This limited jurisdiction was familiar to both sides; on the one hand, it fit with existing patterns of merchant diasporas [End Page 44] and, on the other, it was part of a repertoire of practices used in interactions with non-Christian populations on the frontier. 50

The existence of a precolonial system of international relations was linked, too, to broad patterns of customary procedures and law that cut across cultural and political boundaries. Despite the emphasis among Europeans on written sources in European law, Portuguese traders learned that Africans recognized unwritten contracts, sanctified by oaths or other unwritten practices, and these lent a certain stability to early coastal trading relations. 51 However, Europeans also misinterpreted African political and legal structures, and they consistently portrayed them as inferior to European law. Thus European chroniclers often mistakenly interpreted the rule of African kings as being "above the law." Though longer contact revealed community acceptance of rule and cooperation in the enforcement of law--familiar limitations of sovereignty for European powers--as unifying features of west African polities, it was also commonplace for Europeans to characterize African legal practices as uncivilized and inferior. This attitude was consistent with the Africans' status as non-Christians. It contributed, too, to formal policies of exclusion of Africans or Afro-Portuguese from positions of legal administration. 52

Yet these representations did not disturb the fundamental perception among European chroniclers that African polities were indeed [End Page 45] sites of legal administration, however autocratic or arbitrary. Jurisdictional disputes arose from time to time involving crimes committed across the borders of fortified European posts. In a 1577 case in Mina, a Portuguese captain killed two sons of the Efutu ruler after a dispute. The Efutu demanded that the Portuguese punish the captain, and the conflict escalated to a costly battle. The reverse situation occurred when the Portuguese sought to have "rebels" from the nearby town of Caia "handed over to [Portuguese] justice" and threatened to punish the whole town. 53 These sorts of jurisdictional disputes were familiar elements of frontier politics for both sides.

Another unifying feature of African legal systems existed in the institution of slavery. Enslavement of Africans by Africans, though not universal on the continent, was a widespread and well-established practice before European demand for slaves to transport to the Americas prompted a radical shift in scale of this activity. Despite regional variations in the economic importance of slavery and in the specific terms and conditions of bondage, institutional similarities extended to quite different regions. The mechanisms for enslavement--economic (the purchase of slaves), political (taking slaves as war captives), and judicial (the awarding of slaves as part of legal judgments)--formed a familiar repertoire with widespread legitimacy, if different frequency. In a more fundamental sense, as Miers and Kopytoff have argued, slavery existed as an institutional category in which, independently of different terms and conditions of bondage, slaves were marginalized from the status of community insider. Thus, even though some African slaves were incorporated into kinship groups and households, these steps moved them toward a status of "belonging" (more meaningful in the African context than the status of "freedom") but did not remove their stigma as outsiders. 54

Distinctions between economic enslavement and military or political enslavement that resulted from warfare increasingly became blurred as decisions to go to war were influenced by economic interests. Judicial mechanisms for enslavement declined in relative importance, though their use also increased in response to the rising demand. Nevertheless, it is significant that the rise in slave raiding did not lead African states to abandon a legal basis for slavery. Enslaving [End Page 46] war captives was itself recognized as legitimate, and justifications for war could always be produced. A seventeenth-century advisory letter to the then unified Spanish-Portuguese crown reported that African traders were aware of papal restrictions on slavery and would "falsely assert that the persons whome they bring to be sold are captured in a just war." 55 In at least some cases, captives or their former patrons themselves challenged the legality of their enslavement by questioning the legitimacy of acts of aggression. In sixteenth-century Kongo, legal institutions were strengthened in an effort by the king to continue to control distributive wealth, as slave raiding and trading expanded and threatened that authority. Kongolese elites found they could use the courts simultaneously to improve their own access to slaves and to challenge the legality of ownership of slaves by others. While increasingly seeking slaves as legal remedies, elites also forwarded their own interests by taking charge of slaves whom they had induced to "free" themselves from less powerful masters. The latter challenged these actions in court but with little success. In the early sixteenth century the Kongolese ruler Afonso had used the courts to challenge Portuguese trading that bypassed his control. Afonso appointed three judges to rule on whether slaves purchased by the Portuguese had been captured in legitimate wars or were merely being kidnapped. 56

Europeans, for their part, responded to shortages of labor in west African outposts by increasing forms of judicial enslavement using quite similar mechanisms. Suggesting responses to the dire need for galley slaves so that the Portuguese could effectively patrol the Mina coast, for example, a sixteenth-century report suggests condemning criminals in São Tomé and the Island of Fogo to service in the galleys "either for a limited period or for life." It warns that cases should be removed from the hands of African judges as much as possible because they are too lenient. 57 The exile of criminals from Portugal and Brazil to Angola became a central feature of the imperial penal system. And in Brazil the possibility of declaring Indians slaves through declaration of just war outlived Spanish reforms. It hardly matters for our purposes whether African and Portuguese mechanisms of judicial enslavement were precisely the same; they coexisted, with substantial similarities, [End Page 47] through the first three centuries of Atlantic contact and commerce, and constituted another element of mutual recognition.

The legal features of precolonial Africa surveyed here--limited legal autonomy of religious communities, established norms for interstate relations, and a separate legal status for captives and slaves--were hardly foreign to European powers trading along the African coast from the fifteenth century on. Indeed, the familiarity of the legal order permitted Europeans to pursue the only possible expansionist strategy, given the high costs of military protection and the obstacle of Africa's hostile disease environment. On the one hand, the trading-post networks minimized internal jurisdictional complexities. These emerged forcefully only in places where significant groups of European settlers and descendants, or of Christian converts, challenged the neat designation of Europeans as yet another community living in Africa in diaspora, with limited legal autonomy and authority. On the other hand, jurisdictional complexity was implicit in the patchwork of African polities and small European outposts. The legal status of slaves, who were outsiders under the complete authority of culturally different societies and masters, must be understood as the negation of the rights of outsiders to membership in corporate communities with their own legal authorities. These shared features of plural legal orders were to continue to influence legal politics in the Americas.

Marronage as a Legal Status

Recognizing the structural similarities of Iberian and African legal orders provides us with another perspective on the legal relationship of Africans and Iberians in the New World. In emphasizing the continuity of legal categories from one side of the Atlantic to the other, we need not fall into the pattern either of tracing African cultural "survivals" or of asserting the transformative influence of the experience of slavery. Certainly the historical conditions of slavery in the New World were unique. But it is significant that Africans who became slaves both possessed political theory, based on prior understandings of captivity as a legal category, and developed a reading of Portuguese (and Spanish) legal orders that would have shifted but not dramatically altered these ideas.

From the narrow perspective of sources of law, the law of slavery of the South Atlantic is uncomplicated. Both Portuguese and Spaniards adopted legal statutes that were derived with relatively minor changes from Roman law. Slaves did not have legal personality: they could not be parties to lawsuits and could appear as witnesses only under very [End Page 48] limited circumstances. As in Roman law, masters were awarded nearly complete control over their slaves, with restrictions added that only moderate punishment would be permitted and that slaves would be remitted to government officials for more serious punishment. These restrictions, however, resulted in few interventions in masters' treatment of slaves and in relatively little local legislation until the first decades of the nineteenth century. 58 In one sense, slavery itself fortified jurisdictional divisions in the plural legal order by awarding considerable judicial power to slave masters and limiting circumstances for intervention by, or appeal to, state courts.

Yet we should take care not to view the legal context of slavery as overdetermined by Roman legal sources or isolated from change because of the severe limitations on slaves as legal actors. The background of legal pluralism in Africa and Europe informed both masters and slaves about the fit of slavery within a larger array of legal possibilities, and these continued to exert an influence on slave strategies and planter responses. Indeed, the perspective gained by this exercise helps to shed light on the "problem" posed for historians by slaves who embraced "comparatively moderate ambitions" or who "visualized freedom" in ways that seemed oddly incomplete. 59 The approach helps to explain, too, the puzzle of maroon communities that seemed to relinquish too much, too easily, in treaties with plantocratic polities, while undermining their separatism in other ways by staying "curiously close" to settled plantations. 60 Rather than viewing attempts to define a political space for semi-autonomous communities as politically naive or necessarily doomed, we can find in shared understandings of plural political and legal authority the logic that presented such strategies as workable, even if potentially unstable over the long term.

Consider the legal response to marronage. Under the slave law [End Page 49] shaped in the Americas largely out of Roman law sources, slaves who were fugitives were simply criminals, and actions to help slaves escape or to hide fugitives were also criminalized. Various provisions in slave laws thus permitted harsh punishments for fugitives and in many places made assisting escape a capital offense. Living in settlements where Europeans were heavily outnumbered by enslaved Africans, sugar planters considered harsh penalties for runaways and rebellious slaves essential to their safety. They feared the influence of maroon communities and everywhere sought first to destroy these settlements and recapture the fugitives. In Jamaica, maroon communities in the mountainous interior were targets of repeated military campaigns. In Brazil, where an extensive network of villages, or mocambos, was linked in the largest maroon polity of the Americas, Palmares, the first response was also a series of military campaigns to burn villages and recapture slaves. In an expedition against Palmares in 1676, the commander told a force of 185 whites, mestizos, and Indians that "the blacks fought as fugitives" and the troops were "hunting them down as lords and being a disgrace for every Pernambucan to be whipped by those whom they had themselves so many times whipped." 61

The undisputed label of fugitive slaves as criminals did not prevent colonial authorities from also imagining the existence of a tight political structure within runaway slave communities. In many places, chroniclers reported that maroons lived under the control of powerful kings, or chiefs. In Palmares, for example, the political order was described as comprising a network of "rulers and powerful chiefs" in dispersed mocambos, who were in turn under the authority of a king, Ganga Zumba. 62 Maroon leaders elsewhere were described in similar terms. 63 As in European representations of African polities, this portrayal coexisted with descriptions of maroons as uncivilized or lawless. 64 Historians, too, have sometimes reproduced these contradictory images of maroon life. In characterizing maroon communities as re-creations of African polities in the Americas, some historians have emphasized [End Page 50] the monarchical character of rule in these communities while also representing marronage as part of a "restorationist project" intended to rekindle egalitarian impulses of a romanticized African past. 65

Yet as Price has pointed out, political centralization in maroon communities was exaggerated both by European observers and strategically by maroons themselves. Price notes that Europeans found representations of monarchical rule understandable in terms of European political models; the discussion in the previous section shows that such representations had already become standard (and equally misleading) in descriptions of states in Africa, and this precedent was probably influential. More important, Price tells us that, at least in the case of the Saramaka of Surinam, political centralization was never as strong as it appeared and that the maroons themselves played an important part in misrepresenting the nature of political authority to Europeans. 66 Price suggests that a similar combination of purposeful misrepresentation and misreading probably took place in Portuguese dealings with Palmares. 67 Certainly there is evidence from here and elsewhere that political authority was quite dispersed, giving rise in times of crisis to intense rivalries that were capable of splitting the groups apart. Lines of division included ethnic boundaries of groups from different regions (and different areas from within the same regions) of Africa and rifts between creole and African-born slaves. Such divisions remind us, as Price puts it, that the communities were necessarily in the midst of shaping a new culture out of a confluence of African and American influences, a process he calls "creolization-while-in-a-state-of-war." 68

It is possible, then, to understand the influence of African political and cultural practice without devoting ourselves to a search for African cultural "survivals" or ignoring the impact of American realities. Extending this approach to an understanding of representations of legal order leads to the observation that the continuing homology between African and European representations of plural political and [End Page 51] legal orders--and not just failed separatist strategies--underlay the political negotiations of maroons and planters. That is, both sides had in mind recent and working models of limited judicial control. Maroon communities could be redefined as having both independent political authority and recognized subordination to European power. In legal terms, this meant jurisdiction over all matters except the most serious capital cases, which were to be referred to colonial courts. This relation reproduced familiar African political arrangements whereby communities in diaspora controlled their own internal affairs while referring specific sets of disputes and criminal prosecutions for specific types of offenses to resident rulers. At the same time, the relationship reproduced for planters the jurisdictional arrangements under which they themselves held local legal authority. Nearly complete legal authority was limited by specific guidelines for referrals to both crown and church. Viewed in this context, the treaties signed by maroons appear as neither purely compromising documents nor restorationist projects; they built on widely shared understandings of the structure of political authority and responded to the exacerbated jurisdictional fragmentation of colonial legal administration.

In Jamaica, colonial authorities authorized a fifteen-article peace treaty with the maroons in 1739. It contained the usual provision that the maroons agree to return runaways, including those who had joined the community within the previous two years. 69 Legally, the treaty awarded Cudjoe, the maroon leader, judicial authority within the maroon community except in capital cases, which would be referred to the colonial judiciary. 70 Maroons in such cases would be tried by "proceedings...equal to those of other free negroes." Other jurisdictional guidelines were also familiar, and limited maroons' authority. Whites committing offenses against maroons would not be subject to their [End Page 52] courts but would respond to complaints brought before "any commanding officer or magistrate in the neighborhood," while maroons who injured whites could be brought before colonial courts. 71

In Palmares, European chronicles describe the signing of the treaty of 1678 as an act of submission. The men coming from the quilombo to negotiate the treaty with the governor, Don Pedro de Almeida, "prostrated themselves at D. Pedro's feet, striking their palms together as a sign of surrender and to acknowledge his victory." 72 The governor, advised by the members of the city council, the high judge, the royal treasury officer, and two military commanders, agreed to a treaty requiring cooperation in the capture of fugitives and relinquishment of recent arrivals, in exchange for a place of settlement and freedom for all those born in Palmares. The treaty included two clauses that would seem contradictory: that the residents of Palmares "would remain obedient to the orders of the government" and "that their king would continue as commander of all his people." 73 As in Jamaica, the arrangement was clearly a familiar one of limited autonomy, the division of authority over internal and external affairs, and over routine versus exceptional cases.

Such treaties have often been blamed for the subsequent weakness of maroon communities. Craton argues, for example, that the treaties enabled colonial agents "to argue that the establishment of physical boundaries, the definition of maroon autonomy, and the right to send in liaison officers implied that ultimate suzerainty resided with the colonial regime." 74 Yet, though the treaties did implicitly recognize colonial sovereignty, the relation must be understood in the context of a concept of the state as less than completely dominant. Certainly sixteenth- and seventeenth-century maroons, like the Europeans they negotiated with, were accustomed to a world in which fragmented authority was a normal part of the political order, easily understood and not necessarily unstable. Neither side would have confidently predicted either the gradual erosion of maroon autonomy that took place in Jamaica or the return to hostilities that occurred in the case of Palmares. [End Page 53] But both sides would have understood these as possible outcomes of arrangements of divided authority.

Under some circumstances, planters also reproduced the logic of jurisdictional claims made for the express purpose of "civilizing" non-Christians. In colonial Mexico, runaway slaves formed palenques in the mountains of Veracruz from the earliest beginnings of plantation agriculture in the region. A series of especially violent rebellions, in 1725, 1735, 1741, 1749, and 1768, led to the creation of a string of new settlements; the 1735 revolt alone gave rise to the formation of six new mountain strongholds. In 1769 the residents of one palenque petitioned the royal audiencia for freedom. Negotiations and a series of depositions taken in connection with the case revealed that the ex-slaves had an intricate web of relationships with the surrounding communities, including serving as intermediaries between the district magistrate and local Indians. The alcalde, in turn, aided the rebels by helping to draft their petitions to the audiencia and by arguing, in an extra-official capacity, the merits of their case for freedom. 75 The reasons given by local officials in support of a pardon included their desire to bring the maroons under state legal authority. The "unfortunates" had been living "abandoned to vice...and in a word, without Christian or political governance." After being given liberty, it would be possible for them to "elect an alcalde, or alcaldes, and other officials, however many the law entitles them to according to the number of families," and the mountain communities would be reconstituted as officially recognized towns. 76 This argument reproduced in a different context the logic of thirteenth-century canonists describing a rationale for extending crown jurisdiction into heathen lands. The perspective continued to provide background to the accommodation of maroons in the colonial order.

Although treaties with maroons were frequently broken, and a return to a state of war was a constant threat, a surprising number of settlements did make the transition to legally constituted communities that were either partially or completely incorporated in the colonial legal order. 77 This was not an impossible outcome, and given the [End Page 54] models of jurisdictional complexity available to participants, neither was it an irrational goal. Had the demographic and political conditions of slavery in the New World been different, the threat posed by marronage would have been greatly lessened and the possibilities greatly increased for multiplying a model that treated maroon settlements as one of a series of corporate communities within a fragmented colonial order.

An International Legal Regime

Our discussion has ranged from the relation between ecclesiastic and state law in the Iberian Peninsula, to European interactions with Africans in the early centuries of maritime trade, to pacts between maroon communities and colonial authorities in the Americas. The connecting thread is that these disparate sets of relations were shaped out of the same legal matrix: a structuring of multiple legal authorities that permitted both parallel and independent adjudication and, under specific and clearly defined circumstances, an appellate or controlling authority for state's law. Europeans relied closely on the model of jurisdictional arrangements between church and state, and between crown and nobility, in crafting legal relations with non-Christians. Africans, for their part, had long experience with plural legal orders. This was especially apparent in west Africa, where trade diasporas central to the region's economy established a pattern of dual legal authority across the region. Africans in the New World were in effect responding to opportunities of jurisdictional complexity in widespread attempts to create communities that were simultaneously subordinate to, and independent from, colonial government. Rather than representing self-defeating compromises, such strategies were a logical response to a familiar institutional landscape.

Asserting this institutional continuity in the South Atlantic does not require finding cultural continuity. There is, though, a cultural connection. One of the impulses for the perpetuation of jurisdictionally complex legal orders--and one of its outcomes--was that legal boundaries were closely associated with the production of cultural boundaries. In Spanish America, the creation of a separate legal status for Indians paralleled the formation of an ethnic identity for Indians that separated them from the growing numbers of mestizos and others identified as culturally and racially "mixed." The legal boundaries did not precisely parallel ethnic boundaries, but they existed as an important constraint and rhetorical resource used in shaping a separate ethnic [End Page 55] identity for Indians. In the South Atlantic more broadly, conceptualizing other polities as possessing a legal status that could, under some circumstances, be continued within the territory of another polity placed cultural difference at the center of political theory and practice. In Africa and the New World, slavery represented the negation of this legal status, the complete subordination of an outsider to the control of a culturally different society and master. The theoretical possibility of reversing this shift--not just for individuals through manumission, but for whole communities through negotiated settlements--was important both to the strategies of Africans in the New World and to Europeans' responses to marronage. Jurisdictional autonomy of a limited kind for communities of runaway slaves created a legal boundary around a space of cultural production; where the boundary remained in place, it came to define not just a political but also an ethnic community.

This view of legal models and arrangements in the period from the fifteenth century through the middle of the eighteenth century in the South Atlantic world suggests a different shape and meaning of global interconnectedness in this period. Rather than mapping long-distance trade, modeling core-periphery relations, or tracing civilizational or regional evolutions, a comparative institutional analysis suggests that the world stretching from the Iberian Americas, to Christian Europe, coastal and Islamic Africa, and into the vast Indian Ocean world formed part of a single international legal regime. Broad structural similarities in the ways that power and identity were defined in the institutional order made these culturally diverse regions mutually intelligible for travelers and traders, thus undergirding (rather than merely following) global economic interconnections. By pulling at and exacerbating jurisdictional legal complexity, continued contests over cultural and ethnic identities themselves constituted a feature of international order.

New Jersey Institute of Technology and Rutgers University, Newark


1. This criticism was raised in reviews in 1977 of the first volume of Wallerstein's trilogy on the world-system. For an overview of these critiques, see Benton, "From the World Systems Perspective to Institutional World History: Culture and Economy in Global Theory," Journal of World History 7 (1996): 261-95.

2. See A. G. Frank, ReOrient (Berkeley: University of California Press, 1998).

3. Mintz commented on this "local response objection" in a review of the first volume of Wallerstein's The Modern World System. S. Mintz, "The So-Called World System: Local Initiative and Local Response," Dialectical Anthropology 2 (1970): 253-70. The most complete development of this line of critique came from Brenner, who argued persuasively that class conflict internal to a region is key to shaping regional insertion into long-distance trade. See Robert Brenner, "Agrarian Class Structure and Economic Development in Pre-Industrial Europe," Past and Present 70 (1976): 30-75. For a summary of early and persistent critiques of Wallerstein, see Benton, "From the World Systems Perspective to Institutional World History."

4. This article argues for institutional continuity across the South Atlantic, but I would also expand the argument to suggest that the fluid character of early modern legal systems extended further and encompassed the Islamic empires and much of the Indian Ocean world. See L. Benton, "Colonial Law and Cultural Difference: Jurisdictional Politics and the Formation of the Colonial State," forthcoming in Comparative Studies in Society and History, on the ways in which this shared legal regime was the basis for parallel processes giving rise to the interstate order over the course of the "long" nineteenth century.

5. See Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass.: Harvard University Press, 1983).

6. For a good summary of the shifting relations of canon and state law, see James Brundage, Medieval Canon Law (New York: Longman, 1995). See also Berman, Law and Revolution.

7. Quoted in James Muldoon, Popes, Lawyers, and Infidels: The Church and the Non-Christian World, 1250-1550 (Philadelphia: University of Pennsylvania, 1979), p. 10. Muldoon's work remains the best study of debates about the legal incorporation of non-Christians.

8. Woodrow Borah, Justice by Insurance: The General Indian Court of Colonial Mexico and the Legal Aides of the Half-Real (Berkeley: University of California Press, 1983), p. 8. On the litigiousness of Spanish society in the sixteenth century, see Richard Kagan, Lawsuits and Litigants in Castile, 1500-1700 (Chapel Hill: University of North Carolina Press, 1991).

9. Borah, Justice by Insurance, p. 16.

10. For a general discussion of the real patronato, see L. Lloyd Mecham, Church and State in Latin America: A History of Politico-Ecclesiastical Relations (1934; reprint, Chapel Hill: University of North Carolina Press, 1966).

11. See especially Colin M. MacLachlan, Spain's Empire in the New World: The Role of Ideas in Institutional and Social Change (Berkeley: University of California Press, 1988); and Robert A. Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990).

12. The best discussion of this shift is Susan Kellogg, Law and the Transformation of Aztec Culture (Norman: University of Oklahoma Press, 1995).

13. Borah, Justice by Insurance, is the authority on the formation and operation of the General Indian Court.

14. See Richard Greenleaf, "The Inquisition and the Indians of New Spain: A Study of Jurisdictional Confusion," The Americas 22 (1965): 138-66. Greenleaf argues persuasively that the decision to exempt Indians created new jurisdictional confusion, since other ecclesiastical forums continued to have jurisdiction over Indian crimes against the faith and in some places imitated the Holy Office to such a degree that the institutions became indistinguishable. Klor de Alva has argued that the decision to exempt Indians from the Inquisition was taken only because other disciplinary measures had proven more effective. Jorge Klor de Alva, "Colonizing Souls: The Failure of the Indian Inquisition and the Rise of Penitential Discipline," in Cultural Encounters: The Impact of the Inquisition in Spain and the New World, ed. Mary Elizabeth Perry and Anne J. Cruz (Berkeley: University of California Press, 1990), pp. 3-22. It should be noted that one of the events that attracted attention to the problem of Indian trials under the Inquisition was the controversy surrounding the violent purging of idolatry in Yucatán by the Franciscan Diego de Landa, a campaign carefully chronicled by Inga Clendinnen in Ambivalent Conquests: Maya and Spaniard in Yucatán, 1517-1570 (New York: Cambridge University Press, 1987).

15. Greenleaf ("The Inquisition and the Indians of New Spain," p. 149) argues that after 1570 it was common for "bigamists, blasphemers, and sorcerers" to claim to be Indians in order to avoid the Inquisition. Cope chronicles, too, the frequency with which plebeian residents of colonial Mexico City represented themselves as Indian in one context and mestizo in another. R. Douglas Cope, The Limits of Racial Domination: Plebeian Society in Colonial Mexico City, 1660-1720 (Madison: University of Wisconsin Press, 1994).

16. For a detailed account of these tensions in seventeenth-century New Mexican politics, see the two works by France Scholes, Church and State in New Mexico, 1610-1650 (Albuquerque: University of New Mexico Press, 1937), and Troublous Times in New Mexico (Albuquerque: University of New Mexico Press, 1942). More recent scholarship focusing on the region has tended to see jurisdictional disputes as symptomatic of "deeper" economic or cultural conflicts. For a discussion and critique, see L. Benton, "Making Order out of Trouble: Jurisdictional Politics in the Spanish Colonial Borderlands," Law and Social Inquiry, forthcoming.

17. A. H. de Oliveira Marques, History of Portugal, 2 vols. (New York: Columbia University Press, 1976), 1:99.

18. The crown also had a standing interest in trying to control the conduct of illicit trade. A royal official called the Judge of Guinea and India had authority to take depositions from returning ships' crews and to order arrests or fines for any deviations from sailing orders. John Vogt, Portuguese Rule on the Gold Coast, 1469-1682 (Athens: University of Georgia Press, 1979), pp. 38-39.

19. See Vogt, Portuguese Rule on the Gold Coast, for a discussion of this case of 1563.

20. Even in the case of Christians, attempts to extend jurisdiction outside of tightly controlled Portuguese settlements were only sporadic and were championed mainly by the church. This was the case on the Malabar coast, where the Portuguese found a community of Syrian Christians. The crown resisted claiming authority over these Christians until the Jesuits pushed hard to bring them under the authority of Rome. See K. M. Panikkar, Malabar and the Portuguese (Bombay: D. B. Taraporevala Sons, 1929), p. 187.

21. The administration of justice by the Portuguese in the Indian Ocean is outside the scope of this article. Except at Goa, Portuguese claims to territory or political control over Asian populations were minimal as the trading-post model was extended. On the administration of justice, see Carlos Renato Pereira, História da Administração da Justicia no Estado da India, Século XVI, 2 vols. (Lisbon: Agencia-Geral do Ultramar, 1964-65).

22. Vogt, Portuguese Rule on the Gold Coast, p. 56.

23. The only territory over which the Portuguese attempted to extend tighter control was in the seas. Here Portuguese claims were understood to justify all manner of interventions, from seizures of ships' cargoes to blockades. In asserting these claims, the Portuguese relied on papal bulls recognizing their control of ocean trade. But the Portuguese were painfully aware of its limitations. Africans, Asians, and other Europeans plied "Portuguese" waters with persistent regularity, and Portuguese renegades themselves skirted crown controls over trade. Although Seed makes much of the Portuguese tendency to claim possession of sea lanes delineated by navigational markers, this claim was a useful fiction, much like land ownership in coastal enclaves. Patricia Seed, Ceremonies of Possession in Europe's Conquest of the New World, 1492-1640 (New York: Cambridge University Press, 1995). More important to the world of the Portuguese was their sense that legal authority extended over people who in one sense or another belonged to the community of the Portuguese, as Christians, subordinates, or slaves.

24. Stuart B. Schwartz, Sovereignty and Society in Colonial Brazil: The High Court of Bahia and Its Judges, 1609-1751 (Berkeley: University of California Press, 1973), p. 31.

25. Schwartz, Sovereignty and Society in Colonial Brazil, p. 39.

26. Schwartz, Sovereignty and Society in Colonial Brazil, p. 166.

27. Schwartz, Sovereignty and Society in Colonial Brazil, p. 254. Schwartz points out that some Portuguese officials who were sent to Africa in judicial posts were given titles as officials of the High Court of Bahia, though they never set foot in Brazil. In 1744, he reports, leaders of a São Tomé slave rebellion were sent to Bahia, where the High Court was expected to sentence them. The Court refused, claiming it had no jurisdiction over Africa.

28. Boxer reports that "maladministration of justice (a falta de justiçia) was the theme of continued complaints in both official and unofficial correspondence" from all corners of the Portuguese overseas world over several centuries. Portuguese chroniclers observed the corrosive effects of the widespread flaunting of judicial procedure on perceptions of Portuguese rule among non-Europeans. See C. R. Boxer, The Portuguese Seaborne Empire, 1415-1825 (New York: A. A. Knopf, 1969), p. 144.

29. John Thornton, Africa and Africans in the Making of the Atlantic World, 1400-1680 (New York: Cambridge University Press, 1992), p. 74. Thornton does note in regard to slavery in Europe and Africa that "legally the institutions were indistinguishable" (p. 86n.58), but he insists that the different treatment of land made the institutions function in strikingly different ways.

30. Thornton, Africa and Africans in the Making of the Atlantic World, p. 76.

31. Thornton, Africa and Africans in the Making of the Atlantic World, pp. 76-77. See also pp. 95 and 105.

32. Thornton, Africa and Africans in the Making of the Atlantic World, p. 76.

33. Thornton, Africa and Africans in the Making of the Atlantic World, p. 80.

34. In an interesting parallel argument, Subrahmanyam asserts that differences between the legal order of agricultural empires in Asia in the same period (most notably the Ottoman state) and small-scale, coastal Asian states are also often overstated. The latter are typically described as trade-based and the former as supported by revenue collection from landed estates. But, he argues, it is difficult and perhaps impossible to distinguish between revenues from "land" and those from "trade." Land "was a convenient category for purposes of assignment, since it concealed the fact that what was being parceled out was the right to use coercive force." Sanjay Subrahmanyam, The Portuguese Empire in Asia, 1500-1700: A Political and Economic History (New York: Longman, 1993), p. 12.

35. James William Brodman, Ransoming Captives in Crusader Spain: The Order of Merced on the Christian-Islamic Frontier (Philadelphia: University of Pennsylvania Press, 1986), p. 1, and the rest of chap. 1.

36. The Portuguese, in fact, transported an emphasis on raiding to African shores in early encounters. As one historian notes, "north Africa had always been associated politically and culturally with Hispanic Islam," and early chronicles of voyages to Africa feature descriptions of raids on the villages of "Moors" to seize captives (Brodman, Ransoming Captives in Crusader Spain, p. 3). For an example of these detailed accounts of raids in north Africa, see the excerpt from the Portuguese history by Gomes Eannes de Azurara, reprinted in Robert Edgar Conrad, ed., Children of God's Fire: A Documentary History of Black Slavery in Brazil (University Park: Pennsylvania State University Press, 1994), pp. 5-11.

37. Seed, Ceremonies of Possession in Europe's Conquest of the New World, chap. 3.

38. Fisher and Fisher, for example, note that both Iberians and north African Muslims had come to associate slaving with the conquest of religiously different peoples. In Islamic north Africa, as in Iberia, slaves were rarely coreligionists (at the moment they were enslaved); their capture was justified as an outcome of religious war; and similar restrictions limited recognition of slaves as legal actors. Allan B. Fisher and Humphrey J. Fisher, Slavery and Muslim Society in Africa: The Institution in Saharan and Sudanic Africa and the Trans-Sahara Trade (London: C. Hurst, 1970), pp. 6, 17, 39. Lovejoy also argues that Islamic links were important in structuring early Portuguese slave trading in west Africa. Paul Lovejoy, Transformations in Slavery: A History of Slavery in Africa (New York: Cambridge University Press, 1983). It should be noted that asserting institutional continuities between Muslim and European slave trading should not be mistaken for a "cultural" or "noneconomic" explanation of the expansion of the African slave trade. The institutional connection helped establish a framework for trade but did not create demand or set prices. Manning overstates criticism of institutional approaches to slavery on these grounds. See Patrick Manning, Slavery and African Life (New York: Cambridge University Press, 1990).

39. One quite plausible possibility of overlap that would have been directly transmitted to colonial settings is in the area of adjudication of water rights; the Moorish origins of irrigation systems in Iberia, and the continued presence of mudejar cultivators, would have created the perfect conditions for the transmission of both legal concepts and procedures. (Thomas Glick has found such influence in the regulation of water rights and irrigation in Valencia; I am indebted to Lawrence Rosen for mentioning the apparent similarities between some aspects of adjudication of water rights in Morocco and in the southwestern United States.) Even if such Islamic influences were muted over time, this sort of intermingling of legal traditions would have influenced legal definitions of property and would have created another, more direct connection between Iberian and African legal practices.

40. Curtin notes, "Throughout the Western Sudan, Muslim clerics were often found with their own ward in a town, sometimes with a separate town alongside the secular town, or simply with the right to apply Muslim law to Muslims with the non-Muslims following their own customs." Philip Curtin, Economic Change in Pre-Colonial Africa: Senegambia in the Era of the Slave Trade (Madison: University of Wisconsin Press, 1975), p. 44.

41. Joseph M. Cuoq, ed. and trans. (from the Arabic), Recueil des sources Arabes concernant l'Afrique occidentale du VIIIe au XVIe siècle (Bilad Al-Sudan) (Paris: Éditions du Centre National de la Recherche Scientifique, 1975), p. 99.

42. Cuoq, ed. and trans., Recueil des sources Arabes, p. 100.

43. This physical and legal separation was also applied to communities of "white" Muslims--that is, light-skinned north Africans and Egyptians--in the capital of Mali in the fourteenth century and in the Niger River city of Gao. See Richard W. Hull, African Cities and Towns before the European Conquest (New York: Norton, 1976), p. 82. Subrahmanyam, Portuguese Empire in Asia, 1500-1700, p. 46, notes that jurisdictional subdivisions for culturally different groups were common to medieval cities of Europe and Asia; with numerous resident foreigners, the cities "tended to develop systems of internal regulation for these foreign communities, which at times gave them considerable social and judicial autonomy."

44. On the influence of Muslim legal institutions, see Hull, African Cities and Towns before the European Conquest, pp. 84-85. There are numerous studies of the legal treatment of religious minorities in the Ottoman empire, and their strategic use of qadi courts. See, e.g., Benjamin Braude and Bernard Lewis, eds., Christians and Jews in the Ottoman Empire: The Functioning of a Plural Society (New York: Holmes and Meier, 1982).

45. For a brief discussion of the Aro (and a broader discussion of the importance of institutions in tying together communities in diaspora), see Philip Curtin, Cross-Cultural Trade in World History (New York: Cambridge University Press, 1984), pp. 46-49.

46. Thornton, Africa and Africans in the Making of the Atlantic World, p. 91.

47. Curtin, Economic Change in Pre-Colonial Africa; and see note 50 below.

48. Robert S. Smith, Warfare and Diplomacy in Pre-Colonial West Africa (Madison: University of Wisconsin Press, 1976), pp. 3-4.

49. See A. J. R. Russell-Wood, A World on the Move: The Portuguese in Africa, Asia, and America, 1415-1808 (New York: St. Martin's Press, 1992), p. 21, who notes that the Portuguese in Africa used force "usually only as a measure of last resort" and relied instead on negotiations with local rulers.

50. Curtin notes, for example, that Senegambian leaders dealt with European traders as if they were simply another corporate group. "If the Europeans asked permission to build a factory or set up a town of their own, Senegambian practice had plenty of precedents with dealing with aliens through their own chiefs. From the African point of view, a European trading post was not ceded territory, merely another religious minority, more easily dealt with by letting it live under its own laws." Curtin, Economic Change in Pre-Colonial Africa, p. 45.

51. See Smith, Warfare and Diplomacy in Pre-Colonial West Africa, on these understandings as an aspect of African international law.

52. Texiera da Mota and Hair comment that Europeans "were content to believe that African rulers were more autocratic than contemporary rulers in Europe, whereas they were most probably often a good deal less autocratic." A. Texeira da Mota and P. E. H. Hair, East of Mina: Afro-European Relations on the Gold Coast in the 1550s and 1560s: An Essay with Supporting Documents (Madison: University of Wisconsin Press, 1988), p. 21. Officially, "purity of blood" was necessary for appointment to judicial posts in the empire, though in practice this requirement had to be relaxed in some places. For example, at São Tomé in 1528 the governor was instructed by the king not to oppose the election of mulattoes to the town council (Boxer, Portuguese Seaborne Empire, p. 280). Relaxing this requirement did not seem to affect views about the unsuitability of non-Portuguese-born residents for legal posts. An anonymous report from Mina written in 1572 suggests that settlers should be encouraged from the Azores and São Tomé but should not be entrusted with the administration of justice "unless they are home-born Portuguese...[because] the older folk do not, as a rule, speak highly of their worth and honesty." Document translated in Texiera da Mota and Hair, East of Mina, p. 82.

53. The first incident is described by Vogt, Portuguese Rule on the Gold Coast; the second is described by the anonymous report from Mina reproduced and translated in Texeira da Mota and Hair (East of Mina, p. 87).

54. Suzanne Miers and Igor Kopytoff, "Introduction," in Slavery in Africa: Historical and Anthropological Perspectives (Madison: University of Wisconsin Press, 1977).

55. "Proposta a Sua Magestade sobre a escravaría das terras da Conquesta de Portugal," in Conrad, Children of God's Fire, p. 12.

56. Anne Hilton, The Kingdom of Kongo (New York: Oxford University Press, 1985), pp. 85, 122-25.

57. Anonymous report from Mina in Texeira da Mota and Hair, East of Mina, p. 74.

58. Watson argues that this heavy reliance on Roman law extended to the English colonies and was imported through common references to civil law sources. Further, he questions the distinction made by Klein and others between legal views of slaves as chattel in the English colonies and the extension of legal personality to slaves in Spanish and Portuguese America. In the Iberian colonies, he argues, close adherence to Roman law meant the adoption, with only minor variation, of the view that slaves did not possess legal personality, though they could be treated as "thinking property" in ways that distinguished them from inanimate objects. We could rely on Watson's arguments to buttress our case of an interrelated legal order in the Atlantic world, but to do so would be to rely too narrowly on the importance of legal sources. As Watson himself points out, his analysis shows "how difficult it is to deduce much about a society from an examination of its legal rules." See Alan Watson, Slave Law in the Americas (Athens: University of Georgia Press, 1989), especially pp. 121-22, and quotation on p. 129.

59. Michael Craton, Empire, Enslavement and Freedom in the Caribbean (Princeton, N.J.: M. Wiener Publishers, 1997), pp. 277-78.

60. Craton, Empire, Enslavement and Freedom in the Caribbean, p. 64.

61. From a manuscript written in the late seventeenth century by an anonymous chronicler of the war against Palmares, translated in Conrad, Children of God's Fire, p. 372.

62. Phrase quoted in Conrad, Children of God's Fire, p. 369.

63. I refer in my account to a few examples; for comparative cases that bear out these generalizations, see Richard Price, Maroon Societies: Rebel Slave Communities in the Americas (Baltimore: Johns Hopkins University Press, 1979); for Brazil, João José Reis and Flávio dos Santos Gomes, Libertade por un fio: História dos quilombos no Brasil (São Paulo: Companhia das Letras, 1996); and for the Caribbean, Michael Craton, Testing the Chains: Resistance to Slavery in the British West Indies (Ithaca, N.Y.: Cornell University Press, 1982).

64. See, for example, my discussion of local officials' portrayal of palenques in New Spain, below.

65. The trend is discussed in Reis and dos Santos, "Introdução--Uma história da libertade," in Reis and dos Santos, Libertade por un fio, pp. 9-25, especially p. 11. For an early and prominent example of this argument, see R. K. Kent, "Palmares: An African State in Brazil," Journal of African History 6 (1965): 354-56.

66. See R. Price, First Time: The Historical Vision of an Afro-American People (Baltimore: Johns Hopkins University Press, 1983); and Price, Alibi's World (Baltimore: Johns Hopkins University Press, 1990).

67. R. Price. "Palmares come poderia ter sido," in Reis and dos Santos, Libertade por un fio, pp. 52-59

68. Price, "Palmares come poderia ter sido," p. 57.

69. They were to be returned to their former masters, though, only if they were willing to go; otherwise they were to "remain in subjection to Captain Cudjoe," the maroon leader, and thus were required to abide by the peace. Craton, Empire, Enslavement and Freedom in the Caribbean, p. 89. Price points out that these familiar clauses in maroon treaties were probably much less effective than one might assume. Saramakan maroons harbored a significant "illegal" population of recently freed slaves, while also finding other ways around the requirement that they not assist fugitives. Such strategies would have been available to other maroons, too. Price, "Palmares come poderia ter sido."

70. This pattern had already been applied in dealing with maroons on the island. When the English took Jamaica from the Spaniards, one of the first English governors offered an alliance with a palenque leader, Lubolo, proposing that he be made "colonel of the black regiment of militia, and he and others appointed magistrates over the negroes to decide all cases except those of life and death." Quoted in Richard Hart, Slaves Who Abolished Slavery, vol. 2, Blacks in Rebellion (Kingston, Jamaica: Institute of Social and Economic Research, University of the West Indies, 1985), p. 6.

71. Craton, Testing the Chains, p. 90.

72. Anonymous chronicle of Palmares war, Conrad, Children of God's Fire, p. 375. Note the similarity of this gesture to the actions of Muslim traders coming before the Ghana king as vassals who maintained a separate polity-within-the-polity (described above). The actions described by the Portuguese could have signified a recognition of subordination, but not surrender.

73. Treaty as described by anonymous seventeenth-century chronicler, quoted in Conrad, Children of God's Fire, p. 376.

74. Craton, Testing the Chains, p. 65.

75. See Patrick Carroll, "Mandinga: The Evolution of a Mexican Runaway Slave Community, 1735-1827," Comparative Studies in Society and History 19 (1977): 488-505.

76. Archivo de la Nación, México, Tierras tomo 3543, exp. 1, 1769. I am grateful to Herman Bennett for allowing me access to his copy of this document.

77. Carroll, "Mandinga," notes that twelve such cases have been well documented in the South Atlantic. It is probable that other examples exist but have not received scholarly attention because of the small number of runaways involved or the unofficial routes taken to achieve legal integration, such as settlement in established communities.

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