UnderminingPartus Sequitur Ventrem
The American War of Independence helped sow the seeds of doubt that undermined the doctrine of partus sequitur ventrem. The first debates on abolishing slavery in the thirteen British colonies started before the war, but most of the legislation aimed at gradually ending slavery in the North of the region that became the United States of America was progressively enacted only after the end of the conflict.
In the Northern states where the enslaved population was rather small, enslaved babies born to enslaved women after the enactment of gradual abolition legislation were to be emancipated upon reaching adulthood. For example, in 1777, the constitution of the new state of Vermont declared that enslaved male and female newborns would be declared free, respectively, at twenty-one years and eighteen years of age.50 The fourth section of Pennsylvania’s Act for the Gradual Abolition of Slavery of 1780 included several measures to gradually abolish slavery, including the prohibition of the importation of new enslaved persons and the creation of a slave register. However, the act also established that newly born enslaved children would remain enslaved for twenty-eight years.51 Although this was still a very long period, slave owners took measures to bypass the legislation. In addition to continuing to import enslaved people to Pennsylvania, they transported pregnant bondswomen to give birth to their children in states where partus sequitur ventrem remained in force.Enslaved mothers in other Northern states of the newly independent United States could also foresee a ray of hope for their enslaved children. Rhode Island adopted legislation stating that the children of enslaved women born after March 1784 were to be freed upon reaching twenty-one years of age if they were male or eighteen years of age if they were female.52 Likewise, in March 1784, Connecticut passed the “Act Concerning Indian, Mulatto, and Negro Servants and Slaves,” which emancipated the offspring of enslaved mothers born after the date of its passing and upon reaching twenty-five years of age.53 An act adopted in May 1797 reduced the emancipation age to twenty-one.
In the decades that followed, Northern states with larger enslaved populations also passed legislation freeing newborns. On July 4, 1799, New York, the US Northern state with the largest number of bondspeople, passed legislation establishing that males born to enslaved women were to be freed at age twenty-eight and females at age twenty-five. On July 4, 1804, New Jersey eventually adopted similar legislation freeing newly born children to enslaved mothers. But there were always age restrictions. Enslaved women would be fully emancipated at twenty-one years and enslaved men at twenty-five years of age.54 Ultimately, in all these Northern states, enslaved mothers may have been relieved to know that their infants would not spend their entire lives in bondage even though that had no immediate impact on them.During the nineteenth century, as Spanish colonies in the Americas acquired independence and gradually separated themselves to become sovereign countries, they enacted free womb laws that unsettled the principle according to which children of enslaved women inherited the slave status of their mothers. In 1811, Chile enacted legislation freeing newborns right away. Yet all the other regions made these infants “Free Womb captives,” a term coined by historian Yesenia Barragan to underscore that these “children were free yet captive.”55 For example, Buenos Aires, a part of the region of the United Provinces of RĂo de La Plata, in 1813 ratified a law gradually emancipating newly born children to enslaved mothers. Yet, these freed children had to provide unpaid work to their owners until the age of fifteen, when they started receiving a remuneration of one peso per month. Full emancipation only occurred after they married or when they reached majority age, twenty years old for men and sixteen years old for women. Moreover, slave owners could sell, buy, and bequeath these freed young individuals until they came of age.56
Enslaved mothers became acquainted with the new legislation limiting the time that their newly born children would live in bondage in various regions of the Americas.
In the Northern colonies of the United States, these mothers had very limited resources to fight slave owners who denied their infants’ freedom even after the passage of free womb laws. Moreover, many children born to bondswomen after the enactment of free womb laws did not know their place of birth and exact age. Therefore, they could hardly claim their freedom even once they reached adulthood and were eligible to be fully emancipated. Despite these major obstacles, some enslaved women used this legislation to fight for their children’s emancipation. When slave owners circumvented the new laws in Latin America, bondswomen went to the courts to claim the rights of their children.One particular case, uncovered by historian Magdalena Candioti, illustrates the ways the free womb legislation affected enslaved mothers in what is now Argentina. In 1823, Ana Monterroso, a woman from Buenos Aires, purchased Petrona, an enslaved woman in her early twenties who lived and worked in the small town of Santa Fé. After the purchase was concluded, Petrona was sent to join her new owner in Buenos Aires, 300 miles south east of Santa Fé. Upon Petrona’s arrival, Monterroso started arranging her relocation to Montevideo, the capital of present-day Uruguay, a region that remained under Portuguese control from 1816 to 1828. Although this kind of move was not uncommon in the region, after the enactment of legislation prohibiting the slave trade to Buenos Aires and freeing newborns, relocation became a widespread strategy among slave owners seeking to avoid the restrictions imposed by gradual abolition of slavery. Petrona had reason to protest her owner’s relocation because she was pregnant. Whereas in Buenos Aires the free womb law had been in force since 1813, in then Portuguese-controlled Montevideo, newborns were to remain enslaved.57 Petrona’s owner gave her a letter manumitting the unborn child, but the enslaved woman continued to resist relocation.
In response, her owner put her up for sale, which led Petrona to go to court to contest her relocation because it would directly affect the legal status of her child. The case generated a rich legal debate regarding the status of the unborn child as free or freed.58 As the legal case evolved, Petrona’s boy was born, baptized, and registered as a freed person. Through her fight, she avoided giving birth in Montevideo, where her baby would have had the legal status of a slave. Yet like all enslaved women’s children born after the adoption of free womb laws, the boy remained under the control of Petrona’s owner until reaching twenty years of age.As other parts of South America became independent, they also passed free womb legislation. On July 21, 1821, Gran Colombia (a region corresponding to today’s Ecuador, Colombia, Venezuela, and Panama) passed legislation freeing newborns after they reached eighteen years old.59 As an independent country, Uruguay enacted free womb legislation in 1825; whereas both Bolivia and Paraguay passed laws freeing newly born infants in 1831 and 1842, respectively. In all these countries, as in the North of the United States, slave owners resisted the new legislation. In several newly independent nations, when free womb captives approached the age to be fully emancipated, slave owners managed to delay the age of majority. For example, independent Peru increased the emancipation age to fifty years old in 1839. In 1839 and 1843, respectively, Venezuela and Ecuador delayed the age of full emancipation to twenty-five years.60 Moreover, Colombia passed new legislation in 1842 imposing on free womb captives who were once expected to be fully emancipated in 1839 an apprenticeship system until the age of twenty-five. In societies where life expectancy was approximately twenty-five years, these new restrictions virtually imposed lifetime bondage on free womb captives.61
On July 4, 1870, the Spanish Parliament passed the Moret Law that started the process of gradual abolition of slavery in Puerto Rico and Cuba.
Two articles of the law concerned children of bondswomen.62 The first article declared freed all newborns to enslaved mothers after the law’s adoption, and the second article emancipated all slaves born after September 17, 1868. But this new legislation also created a patronato (patronage) system determining that libertos (freedpeople) were to remain working for the enslaved mother’s owner for twenty-two years.63 Brazil also enacted the Rio Branco Law or Free Womb Law (Law no. 20140) on September 28, 1871.64 Similarly to legislation emancipating newly born infants of enslaved mothers enacted in other parts of the Americas, the first article of the law established that the child would remain in the custody of the enslaved mother’s owner until age eight, when the owner could decide either to free the child and receive financial compensation from the Brazilian state or to continue using the child’s services for free until they were twenty-one.65 In this context, free womb captives remained under the tutelage of their mothers’ owners and were even listed as their property in postmortem inventories.66 In Cuba, the Moret Law prevented the separation of enslaved mothers from their free womb children. But if bondswomen managed to purchase their own freedom within the period of twenty-one years but were not able to amass the necessary amount to pay for the freedom of their offspring, they could be separated from their children.67 As all these cases show, all over the Americas, even if gradual abolition slowly evolved starting in the late eighteenth century, enslaved mothers kept fighting for the freedom of their children.