Slavery and Marriage: Finding the Applicable Law

International lawyers who study the School of Salamanca have generally focused on the treatment by Francisco de Vitoria and his pupils of the so-called American “Indians,” on the development of law governing the use of force, and more recently on the expansion of property law under ius gentium. In these studies, however groundbreaking, gender is invisible.Footnote ⁶ Also understudied has been the School's view on Black slavery, namely, the enslavement of those referred to at the time as “Ethiopians” (meaning, sub-Saharan Africans) and their forced transportation first to Europe and then to the Americas. In my recent work, I have examined the ways in which jurists and theologians associated with the School of Salamanca—especially those teaching at the prestigious Portuguese universities of Evora and CoimbraFootnote ⁷—analyzed the legitimacy of the slave trade carried out by Portuguese merchants through the concepts of dominium and ius gentium.Footnote ⁸ Even less examined, however, are writings of these jurists and theologians on the validity of marriages of Indigenous people and enslaved Africans in Brazil. And yet, this is where we can have some account of women's lives or experiences in a slavery-based colony.

In exploring the issue of marriage, the jurists and theologians of the School of Salamanca were responding to questions asked of them by Jesuit missionaries in Brazil. The latter had arrived in Brazil in 1549, having been sent by the Portuguese Crown to convert the “Indians” to Christianity and to protect them against settlers, who were seen by the Crown as exploiting ruthlessly the Indigenous population. Having failed to convert the natives through expeditions in the hinterlands (sertão), the Jesuits began developing the aldeamento system, which involved settling Indigenous peoples of diverse origins in supervised coastal villages and Christianizing them there.Footnote ⁹ One question that quickly arose among the missionaries was whether they could baptize (and therefore properly convert) a native even though this person was in a marriage deemed illegitimate or invalid under canon law. This was not a new question for the Catholic Church. During the Crusades, the Church had already recognized that marriage existed in different forms in human societies under natural law and civil law, but insisted that only Christian marriage fulfilled divine law.Footnote ¹⁰ The challenge for Jesuit missionaries in Brazil was to reconcile “unfaithful unions” of new converts with Christianity, especially unions that allowed for polygamy or that were meant to be temporary. The challenge—both theoretical and practical—was enormous. Principles needed to be established in order to make a clear distinction between the local concepts, practices, customs, and rites that could be tolerated after the conversion of the pagan inhabitants to Christianity, and those that should be eradicated. “Then, clever and workable strategies needed to be developed in order to root out unacceptable local traditions, progressively introduce Christian normativity, and replace, little by little, other customs that, even if permissible, were far from desirable.”Footnote ¹¹

For this, ius gentium was set aside, as it was deemed too malleable. Natural law turned out to be a better argumentative tool to draw a line between what was tolerable and what was not, thanks to the division between the first and second principles of natural law. Salamancan scholars generally differentiated between two sets of principles of natural law, viewing the second principles of natural law as those that were not self-evident and could therefore be set aside, while the first principles of natural law were categorized as those inscribed within human reason and self-evident to every rational being. The authoritative reference was the work of Domingo de Soto (1494–1560), who had been one of Francisco de Vitoria's colleagues in Salamanca. He considered masturbation, simple fornication, and polygamy not to be intrinsically or obviously bad. In contrast, he viewed marriage between parents and their own children, as well as marriage between siblings, to be absolutely illicit and immoral.Footnote ¹² Jesuit missionaries were thus told that they could baptize husbands and wife if their marriages were “naturally” valid—that is to say, if they did not violate the first principles of natural law.

Adaptation of canon law was also crucial for allowing existing marriages in Brazil. This was usually done through the use of dispensation (i.e., authorization to do something that would normally be illegal if the competent authority had not granted permission). For instance, Jesuit missionaries in Brazil obtained a papal dispensation in 1563 to discard consanguinity—a classical diriment impediment of marriage—as far as the fourth degree of kinship inclusive (i.e., marriages between first cousins).Footnote ¹³ This dispensation was crucial for the mission's evangelical success, because most Indigenous marital rules—such as the Tupi custom of favoring marriage between a girl and her maternal uncle—were seen to be violating the first principles of natural law.Footnote ¹⁴ Thanks to the dispensation, Indigenous marriages under the laws of nature could be understood as “real but imperfect”Footnote ¹⁵ (i.e., valid and perfectible through the sacrament of matrimony), and the evangelization mission could continue.

Remarriage and Resistance in the Colonies

In the 1580s, the debate concerning the legality of marriages took another direction in Brazil. The prevailing question for the missionaries was no longer the validity of existing unions of native Brazilians, but one about remarriage. Jesuits missionaries began to ask their former professors on the Iberian peninsula as well as the Roman Curiae whether new converts brought from Angola (negros da Guiné) and from the hinterland (negros da terra) could enter into second marriages, given that their first wife or husband was still alive.

Why did this change occur? The 1580s are seen a turning point in Brazilian history. The production of sugar prospered. Settlers demanded an even larger workforce from the Crown in order to run their plantations. Jesuits were also becoming involved in sugar production and therefore required more workers. As a result, the Jesuits promoted ventures in the hinterland (sertão) to capture Indigenous people, and relied increasingly on enslaved Africans who were brought directly from Angola. The Jesuits did not see this as contradicting their evangelical mission; they continued to save the souls of the local/enslaved population, despite being open to acquiring such persons through dominium. As the historian Charlotte de Castelnau L'Estoile has shown,Footnote ¹⁶ the change of focus from marriage to remarriage was closely linked both to the increasing number of enslaved people who were brought directly from Angola to work on sugar plantations and fazendas, and to the expanding capture of Indigenous people in the hinterland (sertão) and their forced placement in aldeamentos. Questions arose as to whether the sacrament of marriage should be administered by Jesuits to newcomers (from Angola or the Brazilian sertão), even though they had been married previously in the place from which they had been forcibly taken. On the Iberian peninsula, Jesuit professors understood the need for remarriage, but disagreed on the justification for its legality.Footnote ¹⁷ For some, the “Pauline Privilege”—an important component of the Church's law on the indissolubility of marriage—was sufficient, because it allowed the dissolution of a marriage between persons who were not baptized at the time the marriage occurred. One could therefore argue that a marriage was invalid because the partner left in Angola or the Brazilian sertão had not been baptized. For others, this legal basis was not strong enough, because the initial marriage was still valid under natural law. They urged the pope to clarify the matter. So did he: in 1585, “in response to Jesuit missionaries,”Footnote ¹⁸ Gregory XIII issued Populis ac nationibus asserting the papal power of dissolving the marriage of unbelievers “if necessity urges.”Footnote ¹⁹ The power was delegated to Jesuit confessors “in Angola, Ethiopia, Brazil, and other parts of the Indies”; they could dissolve previous marriages on behalf of enslaved Brazilians and Africans who were “unable to communicate” with their first spouses, but who wanted to convert and remarry.Footnote ²⁰

Jesuit missionaries tried to use remarriage as an instrument to keep negros da terra and negros da Guiné dependent on them. They faced strong opposition from owners of sugar plantations and fazendas who also tried to gain more control over negros da terra and negros da Guiné by having their own negros remarry individuals who were under Jesuit jurisdiction. When this occurred, the newly married couple would move together to the settler's property and work for him. But the new laws of remarriage were also used by Indigenous people—both men and women. Even though most were not legally slaves, the natives living in the aldeamentos were nonetheless subjected to conditions of forced labor: they worked in plantations or fazendas; they worked for the Crown building fortresses; they were part of the colony's armed forces, etc. In some cases, the aldeamentos represented an alternative to slavery and personal dependence on the settlers. In other cases, it was the opposite. In São Paulo, for instance, where Indigenous slavery predominated, the aldeamentos were not seen by the natives as effective protection against slavery.Footnote ²¹ There, remarriage provided a certain amount of autonomy. Given that marriage was one of few rights recognized by law, it offered a way of moving and a means of protection from white oppression. Under Las Siete Partidas, enslaved couples could not be separated against their wills; the couple could even sue—at least in theory—masters who threatened to separate them.Footnote ²² Remarriage thus became “the center of the missionary project of Indigenous transformation and [was] the same as the center of indigenous resistance or negotiation.”Footnote ²³

Effects of Colonial Policies at the Empire's Center

The effects of slavery and the slave trade—an international legal institution—were not only visible in the private sphere of the family in the colonies. They were also felt at the center of the Portuguese Empire. This corresponds with one of Knop's insights in “Gender and the Lost Private Side of International Law”: “private international law shifts attention to the ‘fear that whatever occurred, in no matter how distant a corner of the globe, would inevitably have consequences for what took place in the metropolis.’”Footnote ²⁴

These dynamics are visible in the treatise published by João Baptista Fragoso (1559–1639), a Jesuit who had studied law before becoming a professor of theology at the Colégio de Santo Antão in Lisbon and at the University of Evora. In the tenth book (Volume III) of his massive Regiminis Republicae Christianae, two disputatio are devoted to questions of dominium of the owner over the slave and their reciprocal obligations, as well as to the issue of the slave trade. Immediately thereafter, in the third disputatio, Fragoso turns his attention to difficulties that arise “Concerning marriages of slaves, both faithful and unfaithful.” He states, among others things, that he is in favor of remarriage of slaves based on the Pauline Privilege: “if a married Ethiopian converts and his or her spouse remains among the infidels without there being any reason to believe that he or she will convert soon, and without it being possible to ask him or her if he or she is ready to convert due to distance and other circumstances, then this Ethiopian may contract a second marriage.”Footnote ²⁵ This shows how important the legal discussion of the basis for remarriage in the colonies was for the jurists and theologians of the peninsula.

I would also like to stress the last “difficulty” of the third disputatio. There, Fragoso's style becomes more casuistic and hypothetical; he wants to address a difficulty that could emerge anywhere, i.e., not only in the colonies. He asks a question: “if a married man or woman sells himself or herself into slavery, is the marriage still valid despite the enslavement?” For the husband, the answer is yes. A man can sell himself and keep his wife, because “he is not obligated to her in everything, only in what his conjugal duties require: for the rest, he has a right over himself.” Regarding the wife, Fragoso takes a different position: “it is certain that she cannot legally sell herself without her husband's consent, because beyond their mutual obligation to live together and the other duties of marriage, she is also subject to her husband's commands.” Even though Fragoso adopts (like his fellow Salamancans) an abstract style, we can understand what he has in mind—namely, remarriages. In the next paragraph, Fragoso makes it clear that these rules do not apply on the Iberian Peninsula. Under the “latest Spanish royal law”Footnote ²⁶ (lege Regia), he writes, a married Spaniard cannot enslave himself (to escape his current marriage); such a sale must be declared invalid and may be annulled at the wife's request. What Fragoso is saying is that remarriage was a practice allowed in the colonies (for pragmatic reasons, i.e., the increasing need for workers, which by the end of the sixteenth century would be answered by the slave trade)—but remarriage was not allowed at home.