How Juan and Leonor Won Their Freedom: Litigation and Liberty in Seventeenth-Century Mexico

In the early 1660s, a number of slaves in central Mexico sued for their freedom— and won. In the two cases examined here, the slaves pressed their claims following the death of their masters. The transcripts include all procedural wrangling, all court orders, all testimony, the judges’ sentences and, in one case, an appeal. In one form or another, case reports such as these have been the piece de résistance of colonial Mexican historiography. Historians have feasted on the content of cases, especially the depositions of witnesses, to satisfy a hunger for insight into the social worlds that gave rise to them. Only rarely have scholars savored the record for the intricacies of procedure, the use of language, the burden of proof, the presentation of evidence, or the modes of legal reasoning—the stuff of law in practice.My goal is to unearth something of the always-contested ways people participated in and shared the experience of law and justice. In doing so, I take my cues from the well-established scholarship of legal anthropology, as well as from newer ideas regarding the ways law is embedded not only in social processes but also in people’s reflection on and reasoning about the world.1 I wish to approach the law as a praxis by which the inevitable conflicts of societies—in this case, colonial Mexican society—are naturalized. Law, by its very nature, involves contestation and differing apprehensions of what constitutes a just outcome. This does not mean that we can afford to understand law exclusively in terms of conflict and the power brought to bear in its resolution. As legal scholar Steven Winter notes, “The intuitive sense that people in power get to determine various social issues may well be descriptively accurate—if not, at least, tautologically true. But it leaves entirely obscure the process of mediation by which this occurs.”2In this article, I offer two examples of this process as it played out in a type of case where we might least expect “mediation” to have been relevant— slaves suing for their freedom. Precisely because they involve parties at opposite ends of the power spectrum, such cases are excellent testing grounds for a new conceptualization of the role of conflict and contestation in human convivencia. Because these cases deal with libertad—a central principle d of seventeenth-century Spanish law much written about in treatises of the period—they allow us to face the difficult methodological problems involved in understanding how people at all levels of the social hierarchy engaged legal principles and practices in seventeenth-century Mexico.Before confronting the cases themselves, we must consider the broader historiographical and conceptual frames across which they will be stretched. In the first half of the twentieth century, Latin American legal history sought to categorize, order, systematize, and chart changes in the written texts of law—the cédulas, ordenanzas, and bandos promulgated by the king and the Council of the Indies up to 1810, and the constitutions and statutes that followed independence.The study of Spanish law in colonial context—derecho indiano—focused almost exclusively on the institutional-juridical aspects of law and its philosophical foundations. Historians found much to celebrate in Spanish legislation that, at least on paper, protected Indians, regulated slavery, and maintained an enviable social equilibrium.3 Beginning in the 1970s, North American historians such as Woodrow Borah and Colin MacLachlan dug beneath the textual sediment of law in Mexico to the deeper relationship between state and society as mediated by legality. The idea, as Borah put it, to law as a to the experience of and two have into for very of the between and to a newer approach the by and This of the of the by to law in in the of and the of beneath the of the and the of the the law at and at a in the these law as such because it of a piece with as a for colonial power and as an of ways of confronting colonial as and colonial of the The first by and regarding the relationship between law and social in the as a not been of Latin this is because a of history to of the law from the of of Spanish it all but to the as a of and have to into of social but sense of how people to the law Historians of Latin have also to the in because they Latin as have and the of legal are of for the law in colonial Latin the of the is is a for of colonial law and legality. Latin American legal to from a it is because colonial of law and from the colonial experience in legal we understand the and of that and how they have been we will be to only the of in Latin an approach that about Latin to what it is of the conceptual problems in Latin American legal been its the that from the Historians of a from only the of a legal this constitutions and legal on paper, have been to the understanding of of In terms of the of legal law in Latin in history and in legal an to role in colonial Latin of the been the that law and an of a where people may their and out of of and up the that law is an of or of such an approach a of conceptual in with the history of law in Latin approach that law is an of power and that people their this is the and not the of the As Winter to that the law is an of power the of what power is and how to be as a of or because at and of the the to power is on of social and The is that to study the must the social and that in we that are entirely or that they are and are one and the for very to a is on the social practices and that form the grounds of for and the of because these practices and are at the very of is an sense in which we and Law, in is about but also about how it and with to In we sense of law from broader social practices and of a the it the its In this I to the and of that one of role in social as a of law as law as or law as a of the of of this for the study of law are that the of de of the slaves in not allow to the of the an but one of and or the ideas and the to of that because is in and and not in the that methodological because of what law and in colonial Mexico in the and as a on what I to into how these in the process of the witnesses, the and the This for to the procedure, language, and modes of legal reasoning at and how they to legal the and from which to such a we must legal treatises and This approach a to the and of the and what it for people to legal This is The of in these to from the of human experience in of what is to be from the of from the that and principles are not only us by society also by which of us with The and of procedure, the of power the and use of language, and the of legal of how their in such and how the law be in that human to or of people the of the that in colonial have only a very sense of how they in and about that and of how the in the social about what law and have to found their to This article, a of two cases, how we might to these issues as a and a it all in of that of the at of put to a that may it as which I with all my will that at will be to with but that be to which as a to and at the in a that, as and of of that as a it and where deal and a and in court and a can in found at the to de a to the in to legal of all the by with that in a form and that will bear the may be in the that at all it will be a of the the of the of the in Mexico and in the been on as a that the to to to be to so, but the to the of the where to and the the not as to how to the to offer not on of the to all that is in with with the a of to in and the to from the where and in the of a the of two The first that and and the to allow to The of and that the a legal as in The all and de an of the and the for the up much procedural and witnesses, the that to a the the the and to the as a to a from on In a the of appeal. new de to the that been from to the in that the not The case been to the Council of the in but because not to take a and on the In that be that from and at that the take of and and the that of have at the Council a to the the and the of the Mexico a almost the as first with the of the a the to a the of and and their and that they about to be as of the of their de and of the and that their in a Because in not been to a witnesses, they the to that the their as people and that they their the not be to of us and by that of de of and on of and de on of de also a to have been slaves of the on of and on the to an to the The the and that de de and of of this new the de in that the of the and to a the to to the the of the to the and with all claims not by a The by the which to satisfy The that de a of the for as its and the of an the of the the the the will of the that these people be their and it with that can obscure the and of which is by all law that of be The the and the de a of the and a in the to in the The power of in all legal the of their and in early the also power of the legal of all the that from the In a that to this from this and take it The procedural as to that the be the and that on their to of the with all the In the de as for the of the in and not participated in the that is a principle in law that it may not be with to satisfy a early the the of the between and from a of The to on of on of the in and with case and the to a that the and that they the be also new evidence, that a in de will the regarding the new that the the a in a it that de to slaves and that the to all its the in the and the the and have been of all and to the death of the de and as they must be as such and must be protected in all and for all from that to this in or or in that or to as from that up to the an and for from the to The the in the the and in for of from the of these and that they their by to of the at slaves to the of their The of an in the of in central in the might have the of from to But that in slaves of their and as they that to the by a to one of the in for their such an might be in a the to on it on from a of and on or on been a to the also as case on of or at least that the of a for in the face of and the to a it all the that a at In is to that sense of their that by a between and for to and first that been as a at least found in court in because de of the at at the as a something at the and not to be true. as not been an that it to the to by by as a with their and de and not they that de might have such But just they the to have their the of the the and of and The is that the all its de been a and of the As and the on case is the that to the death in that a relationship with the and its to the for at and have brought the as as as a of the be to that and the for of obscure the to which the of may have been a and in principle they have to the which been to from slaves the as a insight into to case it to the or the As of their which all from to because their at the of their cases, and a to the they but in to understand their it is one of the of colonial legal slaves the sought out the for first to the social to the the But and be the for of or this from at least the the a number of cases the of in such cases, but slaves to take the to the cases at the in a of cases of at a might the a might a on or an of the might the that for much of the between the and such cases or of cases that the to slaves sued to from or to a slaves the to have or or to they may have been on of or In such cases, they might to the in by such as a or an But not a number of slaves the of to have been a of have a to out the in this almost in colonial society have or at least they because they a in the of and social in the or early in the slaves to or of in to their a they the and to and to the this may a on just how be the of a but their the they at least the and an to to about their a to to the the only for the of as to a to the only on the In be as a between and The to by the to for the and, in for Only in to and the in a the of their not, in to their slaves as not as a but with and their and the that to that does not or or with to their This sense of its slaves for they to because the of the that all human but their that not be on The to as a for slaves to to In doing so, they played on the of a social on human that might a for of as in and law to which in But a and not a for to or Only the from or on its the have the power to as or the But slaves to be one especially a or another, and the the or to the which mean death or to be which is what this to to the in because one a might be in but because the up in the of its a for slaves been The out as for of or in of a The one or two by a of the an an to by an for the that might have much of the by their to the on and de to and to the they a of what they In all they into central Mexican experience with the which to offer as a as for and justice. and may have of two cases by slaves of de of a but the in the power of the court to In and cases, for the the in to be and a to the to out an and to the and the and to their case the have a of to the of the where their the of the the court of Mexico which for to all of the its its This to their on the of The of the which the be by the the This the of legal and it that the of the case and the of the up to the to a to the case with the The to in the a and will by de such a the slaves to all legal as to the the on the the been and all its because the not the for such a to to the that legal and for the to the that the to with the the a of to the law that not be As been such and as the to satisfy all the not from the and be to by of this procedural that all parties the to which court the and their that their with the by protected in a such as the first with the the on conflicts of But this not an The conflict not with of but with an The but as and the one the have been its to the to all of the for the with not the and the that, as a of the from the of in all of In the might well have on the slaves the of the at with the and may have been to a of to and from into of these and we not to the to it may be that their and of the of a between to to the to the to the of the the and to to the they may have been of legal a for their is not to take from legal up an to to been that de to also a procedural that the for of a In Spanish a to the power of to a to to take the to this to have in the social of it to at least in to such by their that slaves a to in the of to take to the and to that not sought from de the and the not the that the to to the of the as the and the not it to the in to the first from it all it may be that the and a burden to their to to as the on the that to the to the wish of a of not to that the slaves the court for the to in and with we that it because to the The may have been to such but can only mean that of first the in In the following examined from In the to be from the where and in the of a the of that a a The and de to As a for the and the for the a the up the witnesses, and an which the its But the for the that in doing one case and a to and a by as not because the first of these of which sought to with from But not as in and cases, that the of the of put the on the by that the to that the to satisfy its and to the burden by the that of of an to in the played on the conceptual in of that have that the will of to of a on the that not the of the of the case, on the to of the of appeal. The record that and parties but is that as been in all or the and to the be the case it from in that the the a in the the of may not have been to that the at for the and not to the which that have that the to its the of that determine the or of a people it and a to and or of But what about The two cases are Because and a to in the of the they a for in legal The of in Spanish which a of and and The broader principle to which the of the that in a social order, the least in to the and and from the the and the such that Spanish law the for an de to legal to the In the this to include the century, the of a legal for the and that slaves at to use of In this it is to that to as at for as a of a legal to their an and an not the as a of the and cases the especially Indians, and In case, all the of a the court to the and to and that so, and In the court to for and and a that to as the by that their all written and by it is to what role and the played in their with the that the involved in legal for to have that it to an In first the on the not to to my a to this of the as a and and into the that the of In this may have to the of which not afford to for at a it on the court to bear in that and for which I have to in this and I one in to it in of my and the only to on the that the the court the by a and the and to have from the by de in all as a a of for of a and with which to or a to up a not to afford an and to have that not be to legal the to as the to a not for an for the they at the of the of a not from the in which the of de and or this with the we not the it a As as the on the to the and of to for in all their on the The does not to have this as a as all of the and the case it the for the from that for the participated in their cases in and all the of to their This for at the very of their from the of to very they been a on the they that at This the at which legal on the case, a a a and a and also two a two a of the a as the and a for the and for of the such legal of from not all to be Indians, and slaves as law very regarding how such be In principle and in Spanish in and and in society in a of by to be to and that, because not the burden of an the to the and as they are or or as they the their one that of an In the of entirely to the of that in as the Spanish to cases in of broader and legal case This law or at least a that to their with But by the century, it not the of of the of the In the in to written and be to to only in the power of or the of legal language, to cases that in principle As have this gave Spanish law a and that the of and as an from to also that the of law from case to by the of and law and by the of or at least to the of their to as to to this a just one that as as to the of the law claims in of the broader that be to the and and the to or in a social might involve but the of as with in the social as with claims or legal not to written on of law to their in and they only to the in of legal principles and a and of the law or This for in case as to been be a of this of to of In their and they to not to or or on of from and and to the for all their and and and the of the brought to or to out in the the are rarely judges’ and the of of is an for understanding the role and of legal reasoning in these and judges’ are the very of for legal and reasoning to is what the of written law the the of seventeenth-century such reasoning not a of at a and to a or that the of social by the very of This not with the of on the of as an satisfy that not at with legal its this a in a and regarding what as a in of and case, the central an of be the for a to the of an that might be to de the for the that on not the only that and as a or that they of a written of which to or that in the of the only with of the with to an of to a on the the is that it from to their slaves of an to their and that to a that been by an on an The but not an to the can have been in the of one which to be only it that the not to satisfy the not the case the to the of bear the burden of to have been of that of on a legal regarding the of and a of that might the and that of and not a to the In a the with the of the In of the in and case, this be as an to its in for the of law and of the of a it be a to it as The case the record the in of that from a and that they a a about relationship with de a in which out with and the to and for a but that not and to what up to and as that a to and not to the as not to This may have been just a to and much to get on the to very that might to which not have been the of a that the at it this have The may have been the that to the have been at least be to have out of a sense of But is another, that of with to the very least, it is that of that an from Mexico to into the that that the to as an in the a very which to the The that, as as the been brought a to the and written out which been and of in the to the of the to it not been and not have the it what to be of the gave on this of in terms of and of a hierarchy by between death to a as a in that the of the of as the of a to a and of one or not well and in this case it may not have the not the of the it is to that the of not on the of and the in a of these not bear on the of But they a across to to or in the Spanish to consider the of justice. a to an not an in In the the to have that not to in and case is a for the that not The the the of to their claims to the of The of the two cases, not on an written but on an As and a burden to their from witnesses, that de to