A Black Jurist in a Slave Society by Grinberg Keila; McGuire Kristin M.;

Author:Grinberg, Keila; McGuire, Kristin M.;
Language: eng
Format: epub
Publisher: University of North Carolina Press

He then summarized the opinions of his colleagues about whether these two scenarios would be identical with regard to the legal status of the slave while fulfilling the stipulated work requirements.

The group concluded, after much discussion, that “the two scenarios were [not only] different, but also at the core of the question; because in the first case the slave was free and in the possession of his freedom at the moment of the bequeather’s death, only with the burden of providing services for a certain time, and in the second, the slave had the right to his freedom, but the enjoyment of this right was dependent on the determined time set, if he was still alive at this time.”44 The members of the Institute of Brazilian Lawyers thus established a difference based on when the letter of manumission was granted, that is, whether the services were performed before or after the granting of manumission. In the case of a verbal agreement, they decided that freedom had already been granted and that the individual maintained full possession of his rights, regardless of how things transpired. Children would also be free from any possible transfer of their mother’s services to them.

This understanding was thus contrary to what the Court of Appeals had decided in the case of Joaquim Rebollo a few years earlier. Teixeira de Freitas had taken this same position, arguing that according to a literal interpretation from Roman law—which, in his view, was the only legitimate interpretation—the children of slaves freed conditionally should remain slaves, at least for as long as the conditions stated.45 When his position was rejected, he left the Institute and severed his relations with several of his preeminent colleagues.

Analyzing the issue some years later, jurist Perdigão Malheiro showed that there were many potential legal solutions to the problem of conditional freedom even more favorable to the idea of freedom than the one adopted by Domingos Figueira.46 Revisiting the Roman concept of statuliber, meaning a slave with conditional freedom, Malheiro argued that, initially, the slave remained in this condition until the service was complete, but that the legislation was modified over time in order to consider him or her a freedperson, or, in Figueira’s words, already in quasi-possession of freedom. Arguing that the statuliber should be considered totally free from the moment of the granting of freedom, Perdigão Malheiro based his belief on the assumption that legislation continued to evolve and, moreover, that manumission should not legally be considered a gift like any other, because it was merely the restitution to the slave of “his natural state of freedom, in which all men are born.”47 This is a good example of how certain meanings can be expanded at particular moments in time—in making these observations, Malheiro was trying to give legal credence to an argument that already had social legitimacy in certain sectors of society.

This is precisely the view that Rebouças did not take. Even when he was legally defending slaves, he considered the question of ownership of human beings the same as ownership of any goods.

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