The ‘Ferociously Contested’ Story of How Blackness Became a Legal Identity

In Cuba, Virginia, and Louisiana, Colonial Laws Defining ‘Freedom’ Still Affected the Status of Citizens Centuries Later

The ‘Ferociously Contested’ Story of How Blackness Became a Legal Identity | Zocalo Public Square • Arizona State University • Smithsonian

A late-18th century collage painting of a free woman of color in New Orleans, Louisiana. Courtesy of Wikimedia Commons.

How did Africans become “blacks” in the Americas?

Those who were forced into the ships of the infamous slave trade probably thought of themselves using ethnic and territorial terms that have been lost to us. But across the ocean, enslavers and local elites lumped Africans of many different backgrounds into a single category of debasement, “Negroes,” and sustained this category through laws that regulated freedom.

But the creation of racial identity through legal means took some surprising turns.

From the beginning, enslaved people and free people of African ancestry used those same laws to claim freedom and citizenship for themselves and their loved ones. They created spaces for communities where “blackness” and freedom were not only possible, but foundational.

Although free people of color were few in number compared to enslaved people, and lived on the margins of plantation societies in many ways, the contests over their identities, status, and rights were the terrain on which race was made. Legal contests over freedom determined whether and how it was possible to move from slave to free status, and whether claims of citizenship would be tied to racial identity.

By the early 18th century, Cuba, Virginia, and Louisiana (all colonies themselves, of the Spanish, British, and French Empires, respectively), had legal regimes that constituted blackness as a debased category equivalent to enslavement. But 150 years later, by the mid-19th century, the social implications of blackness in each of these regions were fundamentally different.

In Cuba in the 1850s, a free man of color could marry a white woman, attend public school, and participate in a religious association that gave him opportunities to be part of public life. But, in 1850s Louisiana or Virginia, a free man of color saw his churches and schools being shut down, faced prosecution for marrying across the color line, and ran the risk of being kidnapped, imprisoned, and even re-enslaved for remaining in the state in which he was born.

In Louisiana or Virginia, when a person sought to prove in court that he was not a person of color, he would bring evidence of civic acts, because citizenship and whiteness were so closely linked in political thought and legal doctrine that a citizen must be a white man, and only a white man could be a citizen. In Cuba, similar conduct was not necessarily incompatible with blackness.

The key to understanding these divergent trajectories lies in the law of freedom. Different approaches to freedom were rooted in various legal traditions. The right to manumission, for example, was firmly entrenched in the Spanish law of slavery, and so in Cuba manumission, or release from slavery, was not tied to race, a crucial difference from both Louisiana and Virginia.

One turning point in this story was the Age of Revolution. The populations of free people of color, who claimed freedom in rising numbers, exploded in all three jurisdictions, and the example of the Haitian Revolution inspired the enslaved as it struck fear in the hearts of enslavers.

In Cuba in the 1850s, a free man of color could marry a white woman, attend public school, and participate in a religious association that gave him opportunities to be part of public life. But, in 1850s Louisiana or Virginia, a free man of color saw his churches and schools being shut down, faced prosecution for marrying across the color line, and ran the risk of being kidnapped, imprisoned, and even re-enslaved for remaining in the state in which he was born.

But the expansion of freedom meant different things in the Spanish empire and in the U.S. republic. Communities of people of color in Cuba and Spanish Louisiana owed their existence to legal understandings and customary practices anchored in traditions of the ancien regime. Enslaved people who managed to purchase their freedom or, more rarely, obtained manumission through other means, became members of highly stratified societies. Black freedom did not imply social equality and republican rights.

By contrast, in Virginia during the Age of Revolution, the expansion of manumission, and the increase in freedom lawsuits, were tied to questions of citizenship, and of black participation in the new political order under conditions of equality. Enslaved and free people of color alike infused these questions with a sense of urgency, as they made use of every available legal loophole to purchase or make claims for their own freedom. Their actions produced dramatic results: by the early 19th century, the proportion of free people of color in Virginia had increased significantly.

Virginia’s white citizens witnessed these trends with horror and petitioned to outlaw manumissions. It was, literally, a reactionary request: to restore the colonial law of freedom. The 1806 law requiring freed slaves to leave the state fell short of that goal, but marked the first step towards a social order in which blacks could only exist as slaves.

After Nat Turner’s rebellion in 1831, whites’ political will to exclude free blacks intensified. Slaveholding states in the U.S. South responded to threats of rebellion, and to Northern abolitionists’ demands for immediate emancipation, with a defense of slavery as a positive good: the best possible condition for debased “Negroes.” To galvanize the support of non-slaveholding whites, Southerners cemented white solidarity by defining citizenship and voting rights along racial lines.

This movement created a paradox: egalitarian democracy would go hand-in-hand with the expansion of racist practices and ideologies. As slaveholders appealed to non-slaveholders with the promise of broad citizenship rights for all white men, free people of color became increasingly anomalous, and even dangerous to the polity. That is why colonization efforts that sought to remove free blacks to a distant location in Africa prospered in 19th-century Virginia and Louisiana (which changed hands to the United States in 1803), but not in Cuba.

That is also why Virginia and Louisiana acted in the 19th century, especially in the 1850s, to end the possibility of manumission, self-purchase, or freedom suits. By 1860, free people of color in Virginia and Louisiana were increasingly forced to leave the state upon emancipation or to live under threat of prosecution. A few even chose “voluntary” re-enslavement in order to remain with their families.

Free people of color continued to claim freedom in court, and fought tenaciously for the basic rights to a homeland, to remain close to friends and kin, and to live in their communities of origin. Yet they saw their militia and schools shut down, and their churches survived only under white leadership. Increasingly contested battles in court over racial identity attested to the growing anxiety over black citizenship and the need to prove whiteness in order to claim basic rights.

By 1860, Cuba had diverged significantly from Louisiana and Virginia—not in its legal regime of slavery, but rather in its regime of race. Enslaved people in Cuba took advantage of legal reforms that were not intended for their benefit to carve out greater freedoms for themselves. But in Virginia and Louisiana, where the status of communities of color was reduced to something closer to slavery, race rather than enslavement became the true “impassable barrier,” in the words of Justice Roger B. Taney. In Cuba, where free people of color could be rights-bearing subjects, enslavement was the dividing line.

Laws regulating free people of color also served as a template for post-emancipation societies seeking ways to keep black people in their place. Slavery laws did not translate forward in the same way that regulations based on race did. When Southerners sought to restore the antebellum order after the Civil War, they could not re-impose slavery, but they passed Black Codes whose language echoed the laws regarding free people of color almost exactly. Under the Black Codes, freedmen could enter into contracts, own property, and appear in court on their own behalf. But in myriad other ways, their lives were constricted, just as they would have been if emancipated before 1861.

In the U.S., laws limiting the immigration of free people of color from one state into the other were the first immigration restrictions. These statutes echo into the 20th century—and to the present day—in limitations on the right to immigrate into the U.S. based on racial and national identity. In Cuba, on the other hand, legal racial barriers came under increasing attack even before final emancipation in 1886. In the 1880s, limitations on interracial marriages were eliminated and racial segregation in public services and education was outlawed. These changes were an imperial imperative. As the colonial state of Spain sought to retain control over its restive colony of Cuba, it had to cultivate the political support of the free black population. By 1898, the island’s short-lived political regime of “autonomy” recognized black males as voting subjects with equal rights.

The transition from black slavery to black citizenship was neither linear nor preordained. It was as contentious and ferociously contested a process in Cuba as it was in Virginia and Louisiana. But the new struggles for standing and citizenship took place against the backdrop of significantly different legal regimes of race. From being enslaved to being a citizen, the connecting tissue before and after emancipation for black people was not “from slave to citizen,” but from black to black.


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