View the profiles of people named Keila Grinberg. Join Facebook to connect with Keila Grinberg and others you may know. Facebook gives people the power. Keila Grinberg (PhD, Universidade Federal Fluminense), is an associate professor of history at the Universidade Federal do Rio de Janeiro. She is an expert on. Results 1 – 12 of 30 Brasil Imperial Vol. 2: (Em Portugues do Brasil). Jan 1, by Keila Grinberg (Org.) / Ricardo Salles (Org.).
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Re-enslavement, Rights and Justice in Nineteenth-Century Brazil
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Martha went to live in the home of Manoel Rodrigues Vianna. When she eventually decided to go back inshe, along with Sabino, was seized by the heirs. For some time, the historiography of slavery and freedom in nineteenth-century Brazil has focused on the possibility of achieving freedom through the courts, primarily through freedom lawsuits, i.
According to these authors, slaves and their lawyers used freedom suits not only to demand the freedom of individual slaves, but, at least after the s, to reshape social relations between masters and slaves, to expand the rights of slaves and freedpersons, and even to militate for general emancipation. Perhaps due to the undisguised sympathy of historians for the abolitionist cause, little scholarly attention has been given to the practice of re-enslavement in the period.
Yet just as there was an abundance of freedom lawsuits in the nineteenth century, there were also a great many cases brought by masters seeking to regain possession keilq their kella or alleged slaves or by freedpersons seeking to maintain their status in the face of challenges to it.
Over the course of the nineteenth century, the practice of reenslavement apparently lost its legitimacy. This led to an intense legal debate regarding the validity of laws that dealt with enslavement and revocation of manumission.
This article aims to understand the process by which reenslavement came to be regarded as illegitimate by analyzing the arguments of lawyers and judges in the lawsuits involving reenslavement that were heard by the Rio de Janeiro Court of Appeals keilx the nineteenth century.
By emphasizing the role of legal debates that took place in the courts as a crucial arena in the fight against slavery, my goal is to draw attention to the importance of studying the debates over the civil status of a person – free or slave – from the perspective of law. In attempting to understand how Brazilian law was built keil the experience of slavery in nineteenth-century Brazil, I intend to contribute to the historiographical current that focuses on the history of law and legal practice in Brazil without abandoning the methods, themes, and historiographical girnberg of social history.
Ginberg I studied the freedom lawsuits that reached the Court of Appeals of Rio de Janeiro in the nineteenth century several years ago, in addition to analyzing their geographical origins, the period in which they occurred, and their outcomes, I classified them according to the argument that the plaintiffs – slaves – had presented to try to obtain their freedom.
At the time, disregarding the possible differences among the various types grinbert lawsuits, I analyzed only some of the arguments used by the slaves and their lawyers.
Since I was interested in understanding the legal dynamics of the lawsuits, I ended up concentrating only on the best-known cases in the historiography at the time.
I classified them according to the reasons that gave rise to each: Taking a second look at these cases, however, I have subsequently realized that among them were a set of cases that were fundamentally distinct. When I paid attention to the grinnberg expressed in these nineteenth-century classifications, I realized that they were, by their nature, different kinds of freedom lawsuits, because they involved the question of re-enslavement.
In freedom lawsuits, slaves – grihberg, at least, individuals formally taken to be captives — had asked free men to sign petitions for them, arguing that they had reasonable grounds to grinbegg their masters for their freedom.
In contrast, the lawsuits involving the maintenance of freedom were initiated by freedmen who sought to defend in court the grinbrg to maintain their legal status because they felt threatened by the possibility of re-enslavement. The maintenance of slavery lawsuits, in turn, were initiated by masters who wanted to reclaim slaves whom they claimed had been wrongly perceived as free.
These two types of lawsuits will be considered here as re-enslavement lawsuits, although they were not baptized with this name in the nineteenth century. Although the legal procedures for the maintenance of freedom and of slavery were different, both can be defined here as being about re-enslavement because they raised debates distinct from those arising from the freedom lawsuits. In addition to checking the accuracy of the versions told by both parties, as one would in any case, in these cases it was necessary to determine the grounds on which it was possible to overturn a bestowal of freedom, especially when a long time had passed since the individual in question had been released.
Instead of passing from the status of slavery to the status of freedom, which occurred in the freedom lawsuits, the processes of re-enslavement addressed the possibility and the very legitimacy of the transition from freedom to slavery. Of the lawsuits that went to the Court of Appeals of Rio de Janeiro in the nineteenth century, involved either maintenance of slavery or maintenance of freedom.
Assuming that keioa who had access to the courts were just a tiny portion of the number kila freed or free persons threatened by their former or alleged masters, we must brinberg re-enslavement as a practice that was effective even in the grinbberg nineteenth century.
After alone, for example, twenty cases came to the Court of Appeals of Rio de Janeiro see chart 3. Although these data reveal a great deal, the individual cases raise specific questions about the law. grinerg
In order for re-enslavement to be effective or to give rise to lawsuits, it had to have existed in the law. So it is important to identify the laws that made these lawsuits possible as well as the legal precedents that were used effectively by lawyers, whether arguing in favor of slaves or masters. The cases also lead to historical questions about the nineteenth-century Brazilian justice system: Therefore, it is crucial to know the extent to which an individual claim to force a person living as free to return to slavery was considered legitimate by contemporaries, especially afterwhen the African slave trade was prohibited.
Some authors, including Lenine Nequete,have argued that legislation on enslavement and maintenance of freedom lawsuits was based on the law [decree] of March 10,which instituted repressive measures on the residents of the maroon community quilombo of Palmares.
It is curious that in all of the enslavement lawsuits surveyed, however, this law itself was cited only once, in the case of Martha and Sabino, and only five times in the maintenance of freedom cases. If we count all freedom lawsuits from the Court of Appeals of Rio de Janeiro between andthe law of March 10, was mentioned only sixteen times. Four laws were cited most frequently in the enslavement and maintenance of freedom cases: All four references were related in some way to the matters discussed in these lawsuits.
Article of the Brazilian Constitution, enacted inwhich deals with the inviolability of property, was quoted by advocates of slave owners, to defend the legality of the removal of their property without their consent.
The last two laws already specifically included the issue of re-enslavement. The law of June 6,cited abundantly throughout the nineteenth century, has nothing to do with the enslavement of Africans and their descendants: No direct reference authorized the application of this law in freedom lawsuits related to Africans, but there was also no restriction on its application, and there was no other law that substituted for it.
The use of the first benefited the owners, while the second would be favorable to the slaves. If we look at the distribution of the data over time, however, we see a different situation see chart 4. Lenine Nequete has observed a similar phenomenon, noting that he did not find any reference to the law of March 10, prior to The explanation for this dramatic change in legal arguments can be found in the Supreme Court judgment in case of Rosalina Fernandes de Almeida and her young children.
If uncertainty about the civil status of the population was inconvenient for the government of Brazil init was all the more so in For this reason, the Supreme Court, citing the Law of March 10,recognized that. Here it is necessary to examine more carefully the “special circumstances” of the Law of March 10, Returning to the text of the law, we see that its original purpose was to reinforce the status of captives who were slaves before they arrived in Palmares, as well as those who were born there of slave mothers.
It is in this context that we understand paragraph 3 of the law, which states:. What the Supreme Court did was to interpret the law broadly, disregarding its original significance and removing it from the context of a specific event in time, in order to utilize the reasoning delineated in the letter of the law by updating it. Confusion about the freedom of individuals, in addition to allowing abuse by masters, could be taken again as harmful to the State, so the “question of public interest” was to be considered generically, i.
So, too, was the political decision to set the period of five years for prescription of slavery, and not 10 or 20, as had been discussed up to then. For him, this period was based on Roman slave law, which was rigorous regarding fugitive slaves. If they were caught, no matter how long they had lived as freedpersons, they were returned to captivity. Gradually, however, the law became less rigorous: Justinian established the period of ten years; later still it was reduced to five.
In citing it, he knew he was changing its original intent; however, it served to explicitly support his argument in a disagreement with Correia Telles, who had defined the term as ten years. As Silvia Lara has stressed, what these lawyers and jurists were doing was much more than a “political reading of colonial law. The Supreme Court magistrates returned to this issue inwhen they delivered another judgment based on the law ofbestowing on the letter of the law an even broader interpretation than that of The case was as follows: Costa Leite was the owner of the slave Sebastiana, whose daughter, Anastasia, had escaped eighteen years earlier, in The Brazilian Supreme Court, however, overturned these decisions, finding them “manifestly invalid and notoriously unjust.
The other reason, however, is more surprising: It mattered little to the Court that she was an escaped slave, or that, throughout this period, the owner had taken all reasonable steps to capture her, including having registered her as a runaway. The judges also ignored the question of whether the slave had ever enjoyed a “peaceful freedom,” a condition required by the original law.
In fact, Anastasia had only left the maroon community where she had taken refuge when it was destroyed by the authorities.
Regardless, the Court considered the enslavement lawsuits unfounded, because they were filed outside of the statute of limitations for re-enslavement. And the grandchildren of Sebastiana were freed. The two decisions of the Supreme Court – regarding the case of Rosalina in and of Anastasia in – as was to be expected, caused great controversy.
An argument was also put forth, by the very famous lawyer Teixeira de Freitas, that the statute of limitations— which for him should continue to be for ten years – would only be valid if the slave had been living as free with the consent of his master, and had not been “removed from slavery,” because “bad faith destroys this and all statutes of limitation. Despite the objections lodged by jurists, the effects of the jurisprudence established by the Supreme Court seem to have been substantial.
Except for one fromall were filed after The hypothesis I wish to defend here is that it was not by chance that, precisely in the s, Supreme Court justices abruptly remembered to use a law already two hundred years old.
For the last two, it certainly was not. But although the institution of slavery was still acceptable, it was increasingly difficult to justify the possibility of re-enslavement, mainly because, in Brazil, freedom also implied the acquisition of citizenship rights. It seems that the diagnosis of Malheiro about the “reason and conscience” of each judge “in the times in which we live” made sense.
In effect, by the s, judges had come to accept certain arguments as valid, even seeking legal precedents that did not correspond directly with the case in question, such as the law of Perhaps for this reason, the number of cases that had re-enslavement as a central theme grew see chart 5.
Also, as shown in the chart 6, the number of maintenance of freedom lawsuits grew very sharply fromwhile the re-enslavement lawsuits followed a trend quite different: The analysis of these two charts allows us to reach two important conclusions. The first is that, aftermore slaves filed maintenance of freedom lawsuits in the courts than masters initiated re-enslavement lawsuits.
Although these data indicate the occurrence of effective practices of re-enslavement, they cannot measure the full extent of the practice, which grunberg have been in decline. It may salso be that slaves were aware of their chances of getting manumission in the grimberg, and willing to invest scarce resources in the effort.
This is the second and more important conclusion: That is why these data tells us a lot about the legal legitimacy of slavery in the second half of the nineteenth century: Here we can return to the case of grinbery persons formally known to have been slaves, Martha and Sabino, who were considered captives after years lived as free, by the judge of Curvelo in With the appeal of the sentence, the case ended up in the Court of Appeals of Rio de Janeiro.
They no longer wanted to prosecute Martha and Sabino, who were, respectively, their nephew and cousin. Sabino, being the son of Martha, was also the nephew of his master. To Azevedo and Mello manumission was a form of grinbeeg, which dealt with the transfer of kwila.
Thus, the only difference between the donation of freedom and the other existing grants was that the grantee could not refuse it. We have faith, and in its presence, beautiful theories and eloquent discussions are worthless. The lawyer for the alleged owners must have been trying to avoid a judgment based on the exceptional nature of regulations involving slavery and freedom, especially when these involved family relationships between masters and slaves.
The Court of Appeals of Rio de Janeiro not only recognized that, from a legal standpoint, the freed appellants were right, but also emphasized that the judge of Curvelo, in deciding to re-enslave Martha and Sabino, had committed what was then called “notorious injustice”: