The Americas

Slave Convicts, Fernando De Noronha, and Brazil’s Penal Justice System

One might assume that slave criminals, especially murder suspects, would have been summarily executed. There is anecdotal evidence of Brazilians [End Page 13] lynching suspected slave criminals, but the available data indicates it was not widespread. Law accorded slave defendants the right to a trial by a regular jury of citizens whose members certainly did not consider themselves the peers of bondspersons. Given the cruel methods needed to maintain the discipline of the slave labor regime, it would be startling if law and practice did not make substantial distinctions between slave and free convicts. The punishment of slave convicts provides insight into the lengths that Brazilian authorities went to sustain these distinctions and how they changed over time.⁶

Brazil’s 1824 Constitution forbade courts to punish free citizens convicted of crimes with physical castigations (with the exception of military enlisted men), but law allowed courts to sentence slaves to be flogged. Regional studies indicate that flogging was the most common sentence courts awarded to slave convicts, even when the crime was homicide.⁷ In [End Page 14] this way, Brazilian law preserved old regime penal practices with the intent of punctuating the distinction between slave and free criminals. Given the horrendous conditions in Brazil’s prisons, however, one is tempted to contemplate whether slave convicts got the lighter sentence. For masters, flogging was the preferred punishment. Even though it damaged and could kill their human property, owners stood a chance to recover their slaves after they suffered the prescribed torture and paid the state for its punitive services.⁸ With luck and expenditures for medical care, badly battered slave convicts might still labor for their masters for years to come, and the state saved incarceration costs. Many officials believed that imprisonment was an inappropriate punishment for slaves. As Senator Paulo de Souza put it, “Will the slave who lives bowed under the weight of his labors by any chance have a horror of being incarcerated in a prison where he can abandon himself to laziness and drunkenness, the favorite passions of a slave?” Article 60 of the Código Criminal specified that all slave sentences that were not galés (prison at hard labor) or capital punishment be reduced to flogging, but this directive was not always followed.⁹

The sentence of galés meant that some slave convicts ended up laboring on Fernando de Noronha’s agricultural penal colony located on the main island of an archipelago which measures some 18 square kilometers, 3.5 in width and 10 in length. The Portuguese had founded the colony after they removed a small French settlement from the island in the 1730s. Unable to attract settlers, the crown sent penal exiles and soldiers from Brazil to occupy it and build its infrastructure. After independence in 1822, Brazil claimed the island and continued to remit convicts from across its territory to labor there. Army troops guarded the convicts, and the colony’s commanders were usually commissioned army officers who served one-year stints. Most convicts worked in agriculture and lived in wattle and daub houses of their own construction, though a minority slept in a barracks-like building in Remédios, the main village. A handful of employees and a number of vendors lived alongside the inmates who were held in cellular isolation only if they committed new crimes on the island.¹⁰ [End Page 15]

While many took comfort that slave convicts had to labor, if not on Fernando de Noronha, then in military arsenals or public works, Parliament felt the need to further distinguish the sentences of slaves.¹¹ It enacted an additional law on June 10, 1835, soon after the Malê Revolt’s outbreak in Salvador, Bahia, where slaves and black freemen, inspired by Muslim teachers, plotted a rebellion to overthrow the rule of white masters. Parliament had debated the measure before the Malê Revolt’s outbreak, but the fear it inspired hastened its passage. The new law specified that a slave convicted of killing her or his overseer, master, or an owner’s family member receive a capital sentence with no right to appeal. An 1837 imperial decision limited the law’s scope by extending the right to petition for clemency from the imperial judicial section on the basis of the emperor’s constitutional moderating power. Still, the law gave governors the power to act in the emperor’s stead if they felt a heinous crime demanded immediate reckoning.¹²

João Luiz Riberio shows that the number of convicts sentenced to the gallows, both free and slave, spiked when regional revolts and slave uprisings challenged the central government from 1835 to 1850. In extensive research on the imperial judicial section’s records and local periodicals, Ribeiro counts 199 slave convicts executed between 1833 and 1876, as well as another 135 who were condemned to die, yet whose executions he could not confirm. In contrast, Ribeiro finds that between 1833 and 1860 authorities executed 39 free or freed civilian convicts and 13 imperial military enlisted men, but he could not corroborate the execution of another 30 civilian convicts condemned to die. Ribeiro systematically researched cases for the provinces of São Paulo, Minas Gerais, Rio de Janeiro and the Capital District where more than two thirds of slave executions took place in the 1830s and 1840s. Ribeiro acknowledges that more executions likely took place in other provinces, but he is confident that he has counted the majority of legal hangings based on centralized records in Rio de Janeiro. Perhaps more significantly, Ribeiro found that 523 slaves and 120 free citizens and manumitted slaves had their death sentences commuted to galés perpétuas (literally, perpetual galleys) between 1833 and 1889. The slave Francisco was the last man legally executed in Brazil on April 28, 1876 in Pilar, Alagoas.¹³ [End Page 16]

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Table 1.

Inmates on Fernando de Noronha Island Penal Colony on Nov. 16, 1881 by Classification and Sentence

By 1881 it had been a long time since even the Portuguese had sent convicts to row in naval galleys, but the sentence galés perpétuas hints at the mix of traditional and modern juridical principles that permeated Brazilian law and its reliance on Portuguese precedent.¹⁴ The sentence of galés was distinct from new liberal sentences like “prison with work” or “simple imprisonment” in that it required a convict to work in fetters, a potent manifestation of captivity in a slave society. The use of irons had an old regime flavor more appropriate to a slave society than a leveled citizenry. Juries also sentenced many free convicts to galés, not just slaves. No less than 492 (38 percent) of free and military convicts on the island had been sentenced to galés, slightly less than the number for “simple imprisonment,” but Brazilians strongly associated the sentence with slave status. As one penal expert pithily put it in 1880, “The sentence of slaves is galés. . . .”¹⁵ [End Page 17]

The state dispossessed owners of slaves sentenced to death or imprisonment in Brazil without compensation. Here, the law limited an owner’s private property rights based on de facto expectations of seigniorial responsibility to discipline one’s family and dependents, including one’s slaves. One draft of the June 10, 1835 law included a provision for the state to compensate masters when juries sentenced their slaves to galés or death, but lawmakers struck this language. In British America, by contrast, courts usually compensated owners for slaves sentenced to death or transportation. In 1831 an American navy officer visiting Rio de Janeiro observed fettered convict slaves at labor in the street; he then asked an Austrian friend and long-time resident of Brazil why masters of slave convicts were not compensated. He answered, “They say it is a just punishment for not having taught the slave better.” The astonished American then observed, “Taking away life is a punishment hardly known in Brazil.” After the June 10, 1835 law, however, gruesome public hangings became more common.¹⁶

Why, despite the June 10, 1835 law, were relatively few slaves executed compared to the much larger number who had their capital sentences commuted to galés perpétuas? In 1890, when Brazil’s new republican government proudly scrapped both the sentences of galés and capital punishment, the deposed Emperor Pedro II carped in his memoirs that he was not being given his due. Then in exile, he wrote that he had de facto ended capital punishment in Brazil by commuting all capital sentences in the past thirty years. Pedro overstates the time frame as the last legal public execution had occurred in 1876, but he had greatly reduced executions and then brought them to a halt in the 1870s. As early as 1853, Pedro ordered legal procedures changed to insure that he had the final say on all capital sentences. Since he opposed the death penalty, he began to commute most capital sentences to galés perpétuas, especially after 1860.¹⁷

Most slave convicts on Fernando de Noronha were living testaments to Pedro’s actions. In 1881, 264 slave convicts (more than half of the 523 whose death sentences were commuted in Ribeiro’s count) lived alongside 1,256 free civilian and military convicts. Slave convicts constituted almost 17 percent of the prison population, compared to military convicts, 18 percent, [End Page 18] and civilian convicts, 65 percent. Only 31 of the 1,567 convicts were women (2 percent), and 6 of them were slaves. Slave convict numbers need to be viewed against the backdrop of Brazil’s shrinking bonded population. When the state began to enforce its own laws against the international slave trade in 1850, nearly one third of the nation’s inhabitants were slaves. Brazil’s bonded population depended on imports to sustain it, however, and their proportion of national population diminished to less than one in seven inhabitants by 1872. Brazil’s 1872 census counted approximately 4.2 million free black and mixed race inhabitants (44 percent), 3.8 million whites (40 percent), and 1.5 million slaves (16 percent).¹⁸

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Table 2.

Provinces that Sentenced Slave Convicts on Fernando de Noronha, 1881

Authorities remitted slave convicts to Fernando de Noronha from all five of Brazil’s major regions, but most arrived from the Southeast (40.9 percent) and Northeast (46.6 percent). The Southeast’s percentage reflected the concentration of slaves on the coffee frontier via Brazil’s continuing internal slave trade after 1850. Even so, northeastern provinces did retain slaves, and their proximity to the island meant that authorities there could more conveniently and cheaply ship convicts to the penal colony. Most convicts en route to Fernando de Noronha passed through the jails of Pernambuco’s main port and capital, Recife, before transfer to the island. Thus, the war minister [End Page 19] shared in the penal colony’s administration with Pernambuco’s governors, as the latter was the most proximate authority and oversaw the supply of the island. In 1877, Parliament moved the penal colony’s administration from the War to the Justice Ministry. Even so, the War Ministry continued to play a role in running the penal colony as it provided troops to guard convicts, and commanders (renamed directors after 1877) continued to be commissioned army officers.¹⁹ Not surprisingly, overlapping jurisdictions between the War and Justice Ministries and the governors of Pernambuco led to disputes.

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Table 3.

Slave Convicts on Fernando de Noronha in 1881 by Region

Brazil’s 1824 Constitution required provincial governments to fund and build their own penitentiaries, and the 1830 Penal Code obliged the construction of penitentiaries capable of carrying out the new sentence of “prison with labor.” Under the empire, only the Capital District, Bahia, Pernambuco, Rio Grande do Sul, and São Paulo built penitentiaries, and even these did not consistently provide conditions to fulfill the sentence of prison with labor.²⁰ While the new prisons added capacity, they could not keep up with growing penal populations and Fernando de Noronha accepted some of the overflow. By the 1860s, Fernando de Noronha became known as Brazil’s “central deposit for civilian convicts” as it loosely wove a patchwork of provinicial jail systems into an imperial entity. Its inmate population grew [End Page 20] rapidly from 187 convicts in 1844 to 333 in 1850 to 1,678 by 1865. Its numbers fell during the Paraguayan War (1864–70) to 1,257 in 1869 when Parliament liberated scores of convicts to fight at the front, but quickly climbed back to 1,688 in 1881; and shrank back to 1,286 by 1888.²¹

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Table 4.

Provincial Representation of Convicts on Fernando de Noronha, 1872 and 1890

A March 5, 1859 decree limited Fernando de Noronha’s penal colony to three types of inmates: free convicts sentenced to prison with work, counterfeiters, and slave convicts with capital sentences commuted to galés perpétuas. It seems that war ministers and Pernambucan governors largely ignored these rules. When the Justice Ministry asked in 1879 how many of the 1,673 prisoners then in the colony fit the 1859 decree’s prescriptions, the director responded that there were 281 free prisoners sentenced to prison with labor, 24 counterfeiters, and 188 “slaves condemned to die whose sentences were commuted to perpetual galleys.” ²² The director reported that it [End Page 21] would be necessary to remove 1,180 convicts from the colony to comply with the 1859 decree, but as the numbers cited in the previous paragraph indicate, a large transfer of convicts back to the provinces did not occur under the empire.

Most penal colony inmates came from Pernambuco’s courts. In 1881, 492 of the free inmates on Fernando de Noronha hailed from Pernambuco or nearly 40 percent of the 1,256 civil and military convicts. Pernambuco’s governors took advantage of their administrative role to dump a large number of convicts onto imperial ledgers. As one penal expert complained in 1880, Fernando de Noronha had become a “complementary prison of Recife’s House of Detention.”²³ Corroborating data culled from matriculation records from 1865 to the 1890s confirms that of 960 inmates (slave and free) Pernambuco remitted 366 (38 percent). Pernambuco’s northeastern neighbors contributed another third (362) and the Southeast, a little more than one-in-ten convicts (108).²⁴

Many slave convicts who were sentenced or who had capital sentences commuted to galés ended up on Fernando de Noronha because authorities wanted slave convicts to be forced to work. The rigor of the penal colony’s work regime, however, was dubious. Frank D. Y. Carpenter’s 1884 novel Round About Rio narrates an American family’s travels in Brazil. Although fictional, Capenter’s narrative showed that he was familiar with Brazil and possessed a good grasp of Portuguese. In it, the narrator observes that slaves in Rio de Janeiro in the early 1880s were aware that a slow process of abolition was afoot, and they had become “idle with impunity” because they knew that their master’s instruments of torture were destined for a “museum shelf.” The narrator claims that in the interior, overseers treated plantation slaves with brutality, but the mistreated bondspersons often murdered their overseers in revenge. This act bettered their lives because “capital punishment did not exist in the Brazils [sic].” Instead, “The murderer is transported to the penal colony on the island of Fernando de Noronha; but since the convict’s work is lighter and his fare is better than the slave’s, his last state is better than the first. In this ocean resort [my emphasis] the slave sees a premium for crime, and, in consequence, a man might as well be a tax-gatherer in Ireland as an overseer in Brazil.”²⁵ [End Page 22]

This off the cuff comparative sociology of oppression inflated the dangers faced by overseers in Brazil and tax collectors in Ireland. Still, the image of impunity for slave convicts on Fernando de Noronha had become a part of master-class folklore, a colorful story to regale upon a foreigner that an American author used to draw out dubious moral equivalencies between two empires’ dealings with restive subjugated populations. The anecdote reveals the growing fears surrounding the decline of slavery and seigniorial authority. Many masters blamed Pedro II’s aversion to execute slaves sentenced to hang for this decline. An 1881 newspaper headline from Minas Gerais fumed that a slave “Matou para ser galés” (Killed to be sentenced to galés). Senator José Inácio Silveira da Mota warned in 1879, “If you do not want the violence of the death penalty, then abolish slavery. . . . The slave that kills his master counts on a commutation of his sentence and that he will have his provision ground (roça) to work on Fernando de Noronha.” Some slaves reportedly did murder their masters or overseers and turned themselves over to authorities declaring: “I killed to serve the king! I killed to escape captivity!” In response to Pedro’s clemency, some members of the master class took justice into their own hands. A jury in Campinas, São Paulo in 1879 denied against clear evidence that a slave defendant had infringed the June 10, 1835 law to sentence him for a lesser crime so that he would be flogged and returned to his owner who would render “the law of Lynch.” These slave lynchings appear to have been less common before the emperor brought about a de facto moratorium of the death penalty. Brazilian observers mostly criticized lynchings as misguided savagery, and references to the law of Lynch carried unflattering comparisons to the practice so widely associated with the United States.²⁶

The 1881 Convict Slave Survey

Just how true or exaggerated were the assertions of Carpenter and others about the behavior of slaves and their attitudes toward Brazilian penal justice? The 1881 slave convict survey provides a means to access them. It also permits an interpretation of what the survey categories and contents reveal about authorities’ perspectives on the status of slave inmates and their place in the penal colony. [End Page 23]

The 1881 survey’s first category listed the slave convict’s name. Like slaves on the mainland, most bonded convicts only had a first name. Among those with surnames, sixteen (6 percent) indicated ethnic or geographic African origins: “Benguella, Nagó, Cabinda, Congo, Muçambique, Manjollo, and Mina.” It is possible that convicts without these names had been born in Africa, but the consistency of their use appears fairly uniform in the documentation.²⁷ Only 28 (10 percent) had second names that indicated Brazilian birth: 19 Crioulos, 7 Cabras, one “Antonio Caboclo,” and one “José Cantagalo” (tried in Cantagalo, Bahia); five second names referred to color, three pardo (brown) and two mulatto; and one appears to refer to age (Joaquim Novo). For prison officials, these naming practices maintained distinctions between African- and Brazilian-born slaves, and apparently they obviated the need for a separate category on birthplace in the survey.

The importance of African birth denoted in a convict’s name is amplified by the fact that the names of Brazilian-born slaves did not systematically classify their place of birth. The only issue of origin treated as a survey category was the province where the slave convict had been tried. For bureaucrats, a slave’s judicial origin was important, but their birth place, if not African, remained a mostly unmarked category of Brazilian-born. In a separate table, officials listed prisoners by status and sentence, but they grouped African-born slaves with Brazilian-born slaves. They excluded the African-born from the tallies of “foreign-born” convicts whose origins were European, Spanish American, or North American (see Table 1). In this instance, slave status trumped foreign birth.

Perhaps the 1881 survey’s most intriguing element was the expression “ex-escravo de” (ex-slave of) or “que foi escravo de” (who was a slave of) which prefaced the former owners’ names. The phrase in this and other documents emphasized the state’s confiscation of human property. These convicts escaped slavery without finding liberty; they traded captivity for incarceration. As the slave convict Antonio Ferreira’s 1890 petition for pardon succinctly put it, “. . . being born under the cruel rigor of captivity, the supplicant left it unexpectedly by committing a crime.”²⁸ The phrase “ex-slave” set them apart from freedmen and located them somewhere between the slave and the manumitted, though their convict status may have caused many Brazililans to see them beneath the status of law-abiding slaves. Since [End Page 24] some employees and even a few prisoners brought slaves to the island, the distinction between slave and ex-slave (slave convicts) was not entirely eclipsed there.²⁹ A slave who committed a crime underwent yet another counterintuitive legal and status transformation. As the respected jurist Perdigão Malheiro wrote: “Under penal law the slave as a[n] . . . agent of a crime is not a thing. . . . He is a human, a man, equal by his qualities to other free men whose qualities he shares. He is therefore responsible personally and directly for the crimes he commits.” According to this gendered analysis, slaves condemned to death or galés both escaped slavery and became “men.” Slave victims of crime, however, remained “things.”³⁰ This legal transformation could create confusion about the status of slave convicts and their children. For instance, in 1868 the commander wrote Pernambuco’s governor that Josepha Maria de Espírito Santo and Joaquim José de Santa Anna, “both slave convicts,” had a daughter living in their company named Asra. The commander wanted to know whether or not to consider Asra “free.” The governor passed the question onto authorities in Rio de Janeiro, and I did not come across an answer to this query, but because Josepha and Joaquim were “ex-slaves,” it would seem that Asra was born free.³¹

Despite escaping slavery and becoming “men,” slave convicts’ legal identities continued to be linked to their former owners and vice versa. Two hundred and twenty of the 264 entries included the ex-owner’s name, and it was often the only way to distinguish among many slave convicts who shared the same name. Eleven owners are listed as dead or murdered (finado, falecido, or assassinado), and another seven are listed as the former property of the owner’s heirs. Rather than a separate survey category, this was extra information crammed in the boxes for owners’ names. Why would penal colony scriveners who were not the most zealous of public servants (indeed, some were convicts themselves) include this extra information? It seems likely that they recopied it from the convict’s guia: the paperwork that was supposed to accompany all [End Page 25] transferred prisoners.³² The authors of these documents went out of their way to inform readers that those slave convicts had murdered their former owners. This and other evidence shows that Pedro II’s opposition to the death penalty led him to commute the sentences of scores of slave convicts who had realized the slaveowning class’ most dreaded fear, what one might term mastercide.

The ex-owners’ names and titles illuminate their status. Only one master with a noble title appears on the list, the Visconde (Viscount) de Suassuna, although the Baronice (baroness) de Itu is listed as the owner of a slave in a separate petition.³³ Twenty-three ex-owners were women and fourteen of their names were prefaced with the honorary title Dona which suggests the respectability of marriage and membership in the comfortable, propertied class. Fourteen former owners had military ranks, two were priests, one was a Doutor (graduate of a law or a medical faculty), and one had the honorific title Dom. The statuses and occupations of ex-owner’s reflect the democratic patterns of slaveholding characteristic of Brazil and indicate that the state confiscated the slave property of even prominent citizens.

The next survey category records literacy among slave convicts. Only nine (4 percent) were literate. Why did authorities include this category? Likely it was a clerical habit as so many official documents asked whether or not a prisoner, a soldier, a witness, and others were literate. A small penal colony night school offered literacy training to convicts, and to the chagrin of prison inspectors, literate criminals often wrote politicians and newspapers on the mainland about conditions and events on the island.³⁴

The slave convict’s provincial origins reveal once again the preponderance of Pernambuco which accounted for 64 slave convicts, nearly one quarter of the total, but this proportion was much lower than the province’s 38 percent share of free prisoners. The province’s lower share of slave convicts likely reflected the fact that the Northeast’s share of slaves nationwide had diminished, particularly by the 1870s when the internal slave trade reached its peak. After Pernambuco, three southeastern provinces, where the slave population was being reconcentrated after 1850, contributed the most slave convicts: São Paulo, Minas Gerais, and Rio de Janeiro. Perhaps more surprising is that Rio Grande do Sul, with its comparatively small slave population, contributed almost as many slave convicts to the penal colony’s 1881 population as Bahia, the former northeastern hub of the international slave trade. Though [End Page 26] only small numbers of slave convicts came from frontier provinces, all but two are represented in the slave community: the sparsely populated and remote provinces of Goiás and Piauí (Table 2). Fernando de Noronha was in this sense not only Brazil’s “central prison,” but also a national institution in composition, probably outdone in this regard only by the Brazilian army.³⁵ The 1881 survey did not list the towns in which inmates were tried, but many matriculation records did. These records show that only 38 out of 203 slave convict trials took place in Brazil’s most populated cities. Most slave convicts lived in or near small rural municipalities like Bananal, São Paulo; Oliveira, Minas Gerais; and Codó, Maranhão, where they mainly performed agricultural labor. This geographic pattern accords well with the novelist Carpenter’s depiction of mostly rural field slaves escaping slavery by killing their overseers for a better life on Fernando de Noronha.³⁶

Upon establishing judicial origins, the survey turns to the slave convicts’ crimes which were invariably homicide, with the exception of one who combined this crime with robbery. This uniformity makes one wonder why the administrators even bothered to include it as a category. Then again, homicide was the crime of most free convicts on the island, but that population possessed many nonhomicidal convicts such as counterfeiters, thieves, “deflowerers,” and deserters. In contrast, slave convicts had to be convicted of murder to make it to Fernando de Noronha.

The convict’s crime is coupled with his or her sentence. Here there was greater variation, but 252 slave convicts (95 percent) had either been sentenced to galés perpétuas or had had a capital sentence commuted to galés perpétuas. Only two slave convicts who had been sentenced to death had not yet received a commutation, but the fact that officials went to the expense to ship them to Fernando de Noronha indicates that they fully expected them to be spared. Most slave sentences that were not galés perpétuas identified women and minor defendants. Only one of six slave women was sentenced to perpetual galleys compared to three of twenty-five free convict women. In deference to gender, most juries sentenced slave women to prisão perpétua (life imprisonment). Courts condemned eleven slave males to galés temporário, prisão perpétua, or prisão simples. Even though the latter two sentences [End Page 27] did not comport with the Criminal Code’s directives, juries appeared to prefer these sentences for slave minors. In these small ways, courts made slight distinctions among slave criminals, but their sentences were much more homogeneous than their free counterparts (Table 1).³⁷

Since the sentence of galés required work, it is only appropriate that the survey catalogued their work “company.” In most instances, a trusted convict “sergeant” headed each of 15 work companies flanked by two convict “corporals.” Only 20 slave convicts lacked information on their designated company. Sixty-six of the slave convicts were listed as invalids, most of whom were elderly or suffering from debilitating conditions, while 194 were able bodied. Most of them performed agricultural labor, but some worked in specialized companies. One company of cobblers produced shoes, while another of skilled laborers comprised men who practiced a variety of trades (capentry, masonry, etc.) necessary for the penal colony’s upkeep. Another company organized the inmate servants of the administrators, officers, and employees, and still another served as the colony’s convict police force.

The census shows that 191 slave convicts were clearly designated to a work platoon. The smallest concentratation was three slave convicts in one company, and the largest, 22. Ironically, one of the largest concentrations of slave convicts in a work platoon was in the serviço de ronda, or the convict police company, where they worked to prevent crime, disturbances, and escapes. Another 20 served as lookouts who watched over buildings where valuables were stored or beaches where escapes on improvised rafts were common. This data vividly demonstrates that penal colony authorities consciously integrated slave convicts into all companies. Work details determined where a convict lived to a large extent, so this practice also meant that slave convicts spent their leisure time with free convicts. Administrators and free inmates likely continued to view slave convicts as inferior in status, but directors sang their praises as the best behaved group of convicts. Laconic sources make assessments of how free inmates viewed slave convicts difficult, but some escapes on flimsy rafts and criminal activities in the penal colony included free and slave convicts, indicating substantial collaboration and trust among some of them.³⁸ [End Page 28]

Many slaves brought valued skills to the colony that the director enumerated clearly. Indeed, a central factor directors considered in assigning convicts to work companies was the occupational skills (ofício) they brought with them. Eighty-five slave convicts had no skill listed, but 104 were listed as agricultural field workers. In addition, there were also ten masons, eight cobblers, and two cowboys. Convict slave women worked washing clothes and linens for the hospital and infirmary, an occupation “appropriate to their sex” as officials often noted. Other trades with only one slave convict represented included fisherman, baker, leather worker, carpenter, lumberjack, and arsenal worker.

The slaves’ disciplinary record (good, regular, or bad) constituted the next survey category. The director designated only seven slave convicts’ comportment as “bad,” none were regular, 222 had good behavior, and 35 lacked an entry. Compare this to Justice Ministry inspectors in 1879 who reported that of 1,678 convicts only 196 had good behavior; 1,001, regular; and 481, bad behavior.³⁹ The director’s ranking of slave convict behavior put his work to discipline and reform prisoners in a positive light, but he had other motives to emphasize their good behavior.

Because a number of slave convicts were unable to work, the survey recorded illnesses and disabilities. Two hundred and forty slave convicts had no health problems, but nine suffered from hernias, a common ailment given the heavy lifting required of slaves, and four suffered from mental illness. Three were blind, while three more suffered from lung diseases, and three others from “various ailments.” One slave was ill with beriberi and another expired while the survey took place; his illness is listed as “dead.”⁴⁰

There was no category giving a specific age for each slave convict, an odd omission given that other prison records commonly included it, but the [End Page 29] survey did record the age of slave convicts over age sixty. While life in the colony was tough, a few slave convicts lived to a ripe old age for the era. Thirty-nine former slaves were in their sixties; two had reached their seventies; and one was in his eighties. It seems age sixty had come to define what contemporary Brazilians refer to as the “terceira idade,” or the age of retirement when prison authorities stopped requiring older slave convicts to perform rigorous work. This concept would be confirmed by Parliament later in the decade with the passage of the 1885 Sexagenarian Law that provisionally freed slaves age sixty and older.⁴¹ In April 1889, the presidio’s director noted that some 300 convicts were elderly and incapable of performing even moderate labor. He suggested that the emperor invoke his power of clemency to pardon them which would result in “great savings to public coffers.”⁴² The motivation behind some of the pardons granted to slave convicts in the 1880s may have been to rid the colony of unproductive mouths to care for and to feed.

The survey also recorded when slave convicts had been sentenced and when they arrived at the penal colony. Some, especially those from Pernambuco, were sentenced and transported to the island in the same year. But many, especially those from distant provinces, spent years in traditional jails before being transferred. Lorenço José, for example, had been sentenced in Pernambuco in 1837. He arrived at the penal colony in 1848 making him the slave convict with the most time on the island, while Antonio Cabinda, who had been sentenced in São Paulo in 1834, arrived in 1871, making him the prisoner with the longest span of time incarcerated. On average, slave convicts spent eight years in traditional provincial jails before they were sent to the penal colony. This fact casts doubts on assertions by Carpenter and others that slaves who murdered their overseer could soon expect to be tending a provision ground on Fernando de Noronha.

Most slave convicts arrived on the island between 1868 and 1877. The peak year was 1876 when 41 slave convicts disembarked, followed by 1868 when 40 arrived. Earlier records indicate that before the 1860s, slave convicts formed a smaller minority of inmates. From 1835 to 1850, slave convicts were more often executed, but as Pedro II slowed and finally ended capital punishment, slave convicts began to crowd provincial jails. Minas Gerais’ governor complained in 1873 that his jail in Ouro Preto was over-crowded [End Page 30] with 400 prisoners, including some 100 sentenced to galés. Many of these “were slaves who had killed their masters or overseers.”⁴³ Slave convicts from these distant provinces arrived in numbers through coordinated shipments. In 1871, 16 slave convicts arrived from Minas Gerais, while 1868 saw 14 arrive from Rio Grande do Sul, and São Paulo remitted 42 slave convicts in nearly equally divided annual groups from 1871 to 1874. The liberation of scores of convicts to fight in the Paraguayan War opened space for slave inmates in the late 1860s.⁴⁴ Calculating the total number of slave convicts that served time on the island during the empire is complicated by incomplete records. A ball park figure of 300 to 400 slave convicts would be a conservative estimate.⁴⁵

The survey’s final column was reserved for sundry comments on slave convicts, a space used to add information to 23 entries. The first such entry noted that Luduvico, “the ex-slave of the assassinated Domingo Pereira de Azevedo Terra,” was the “the infirmary’s coffee roaster.” It is unclear why this fact deserved comment other than to recognize the apparent importance of coffee for medicinal purposes, or maybe this was a charitable service contributed by Luduvico. The second comment recorded that the “ex-slave Agostinho Primeiro,” who had been sentenced in Sergipe in 1853, “Performed the great service of denouncing a plot for rebellion by convicts in the days when Colonel Luiz José Monteiro commanded the island [in 1865].” Other comments noted if a convict had petitioned for a pardon or the date when a capital sentence had been commuted.

Comments on a few slave convicts, however, showed that they did not contribute to security. José, the “ex-slave of the Visconde de Suassuna,” and Sebastião, the “ex-slave of Pedro Theotonio de Sá Cavalcante,” both committed new murders in the presidio. In José’s case, he had received a second sentence of perpetual galleys. Based on his record, it would be hard to argue that slave convicts had good disciplinary records because they feared the gallows. Overall, however, the 1881 survey went out of its way to emphasize the good behavior and services of the vast majority of slave convicts.

The penal colony director’s use of survey categories reveals much about how he enumerated, valued, and classified slave convicts, but what the survey did not record is also illuminating. For instance, color was not a survey category, a trait included in most convict guias and matriculation [End Page 31]

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Table 5.

Color of Convicts on Fernando de Noronha Island

books. These documents often provided a description of the prisoner which included color, height, size, eye color, lip size, hair type, and so on. Because the 1881 survey only targeted slave convicts, authorities felt that they could assume their color, even though some of their legal names refered to their “brownness.”⁴⁶ Color was reliably found in penal colony documentation from the 1830s through the early Republic, unlike the court records analyzed by Hebe Maria Mattos in Brazil’s Southeast, where references to the color of witnesses began to disappear after 1850. Color remained a valued descriptor in convict records because of the need to describe prisoners if they escaped.⁴⁷ Data from a number of sources confirms a consistent distribution [End Page 32] of color attributions under the empire. As one might expect given the heritage of slavery, men of color are overrepresented in the penal population whereas whites are underrepresented.

Another silence in the survey is marital status, a category unswervingly found in the colony’s convict matriculation books. Married convicts enjoyed an advantage over their single counterparts in the penal colony because they could petition to have their wives and dependents join them on the island, a significant recognition of poor patriarchal privilege and responsibility for dishonored criminals. An American journalist who visited the island in 1875 reported that upon arrival, authorities required convicts to live in a barracks-like building, the aldeia (village). “If well-behaved, they may afterward live outside [the aldeia], build their own hut and cultivate their own garden, Government giving all, whether in prison [the aldeia] or out, a certain allotment of food. If especially well behaved, particularly if married, they may sooner live outside, a boon granted by the Governor on application.”⁴⁸ Data from an unusually detailed 1891 director’s report classed 383 convicts as married, and it counted 112 convict wives on the island. This meant that as many as 29 percent of married men had been accompanied by their wives, but the percentage was probably lower because some inmates married after arriving at the colony. Nearly one in ten inmates lived with a wife and about half that many (44) lived with a consensual lover (amaziado).⁴⁹

Even though the 1881 survey intentionally targeted only slave convicts, one wonders why officials left out marital status. They probably adhered to the stereotype that slaves were “not of family” or that they did not marry, head households, and maintain family ties. One penal expert Conselheiro André Augusto de Padua Fleury gave voice to this stereotype in 1882 when he criticized the policy of Rio’s police chief who sent street urchins to work on plantations because it would expose the boys to “pernicious contact with slavery, that is to men without family, without religion, without morals, brutalized by ignorance, violence, and the stupor (embriaguez) of vices.”⁵⁰ Fleury would play a key role in a debate over how to punish slave convicts in the 1880s. [End Page 33]

Unlike the 1881 survey which did not include marital status, general matriculation records did. In these sources, 198 of 205 slave convict entries include information on marital status. Of these, 31 slave convicts were married, and three were widowed. Since guia records were prepared locally, I assume that only convicts married in a Church ceremony would be legally identified as such. Since some single men and widowers did remarry on the island, the local priest would check a convict’s guia to verify their eligibility. Almost 17 percent of the sample had formed a family before their convictions. Since most slaves married other slaves, it is not surprising that I found no evidence that authorities permitted slave convicts to bring spouses and dependents to the island. Penal colony officials encouraged marriage among convicts, and a minority of free inmates served their time with their families, while a privileged few married on the island, like the free murder convicts Miguel Angelo de Lucena and Senhorinha Maria de Jesus who wedded in 1876 as unimpeded widower and widow.⁵¹ The fact that many slave convicts had married before their conviction reflects what we now know from numerous regional studies that show high rates of slave marriage in southeastern Brazil, though these rates were lower in the Northeast. This data also indicates that marriage did not necessarily create the subservience and restraint among slaves that some masters attributed to the practice. Indeed, as scholars of the slave family have argued, marriage could give a slave new reasons and resources to commit a crime.⁵²

A bondsman’s rights as a married man were limited. Take the 1854 appeal of the slave Caetano condemned to hang in Rio Claro, São Paulo. Caetano had informed his owner that his senhor moço (master’s son) maintained armorous relations with Caetano’s slave wife. When the owner asked his son about the complaint, he denied the allegation. With that, the owner [End Page 34] ordered another slave to bind and whip Caetano for two days. Later, Caetano took his revenge. He killed his young master and the slave who flogged him. In the opinion of one member of the emperor’s judicial section, “the defendant is a slave and a slave, despite being married in the same way as free man. . .only the latter have rights [the slave exercises] pátrio poder and other rights of family that the master permits him. The law does not give the slave husband means to exercise these rights.” He concluded therefore that the sentence be carried out because Abyssus Abyssum (the abysm invokes the abysm). Even so, the Minister of Justice José Tomás Nabuco de Araujo signed an order that commuted the double murder’s capital sentence to galés perpétuas.⁵³

The 1881 slave convict survey is distinct from the 1835 census of Iguape, Bahia examined by B. J. Barickman. The latter encompassed the local free and slave population who were organized by household units. As Barickman noted, there were two visions of society expressed in the Iguape census: one of the individual and the other of households. The tension that exists between these two visions is not present in the 1881 slave convict survey. By default, it implies that slave convicts are without family. As Barickman observes of the Iguape census, “in no instance does a slave senzala rank as a ‘fogo’ (household).”⁵⁴ Nor does the 1881 survey hint at the possibility that slave convicts headed households. The only evidence of family association in the survey is expressed in owners’ names; twelve groups of slave convicts shared a former master. The omission of marital status as a survey category accords well with the logic of Brazil’s patriarchal society. As Barickman and others argue, being head of a household entailed privileges and responsibilities that were incompatible with slave status.⁵⁵

Other documents belie the 1881 survey’s silence and show that some slave convicts founded households and had children on the island. For [End Page 35] example, the director forwarded an 1884 petition for pardon for “Luis, the ex-slave of Joaquim Theodoro Teixeira.” Luis’ matriculation record shows that he had been born in Rio de Janeiro but was sentenced in Campinas, São Paulo in 1865 and arrived on Fernando de Noronha in 1871. Luis practiced carpentry, which may have won him a favorable recommendation from the director. His color is described as Fula or dark black, and by 1884, he was nearly fifty years old. In favor of his petition, the director mentioned that Luis had a long record of good behavior and that he “has family and is old and poor.”⁵⁶ Luis’ matriculation record shows that he was a bachelor upon his conviction, but the director’s petition for pardon indicates that he had married or maintained a consensual union since his arrival on Fernando de Noronha. While the petition failed to win Luis a pardon immediately, he was among a large group of slave convicts released on February 19, 1891. Similarly, an 1890 ship manifest that listed slave convicts who had been pardoned recorded that children accompanied some of them: “Januario Clementino ex-escravo de João Nepumuceno de Mello who brings with him five children” and “Benedicta, ex-escrava de Manoel Ferreira da Rocha, brings two children.” The matriculation records of Benedicta and Januario show them to have been single when convicted, so they must have formed families while prisoners. This piecemeal evidence indicates that a few slave convicts formed consensual heterosexual unions or married, and others formed same sex partnerships, like Ricardo and Zé Moleque in José Lins do Rego’s A Usina.⁵⁷

The 1881 survey’s silence on marriage and color as well as the categories it delineated illuminates the liminal position of slave convicts as “ex-slaves.” Subsequent correspondence shows the vulnerability of their position as the Justice Ministry intended to use the survey to support reforms that the penal colony’s directors opposed.

New Orders

In 1879 Justice Ministry inspectors Conselheiro Padre André Augusto de Padua Fleury and Dr. Antonio Herculano de Souza Bandeira Filho arrived [End Page 36] on Fernando de Noronha. Fleury, whose gripes about the insidious influence of slaves are cited above, had served short terms as the governor of several provinces. He was named director of São Paulo’s prestigious Law School in 1883 and elected a deputy for his home province of Mato Grosso in 1885. His colleague Souza Bandeira was born in Recife and worked as a lawyer, diplomat, and essayist. Both Fleury and Souza Bandeira had made trips to Europe to study prison systems. The Justice Ministry charged these highly-educated and well-regarded men with making recommendations to improve the penal colony’s administration, productivity, and reformative capacity.

To these honorable observers, life in the penal colony seemed a burlesque of mainland norms. According to the inspectors, slave inmates and other convicts worked only from 9:00 AM to 2:00 PM each day, and to their dismay, slave convicts labored unimpeded by the fetters mandated by the sentence of galés. The inspectors noted that numerous free convicts sentenced to galés were not shackled, but they, especially Fleury, focused on applying the rigor of galés to slave convicts. Souza Bandeira observed that galés represented ten of 15 company sergeants and 16 of 30 corporals, but he does not clarify if any of these galés were slave convicts. The interpretation of the inspectors’ reports is complicated by the fact that they often use the term galés as a synonym for slave convicts. For instance, Fleury wrote: “Besides establishing a harsher regimen for galés, where the condition of being a criminal slave is not superior to the condition of an innocent slave, [the penal colony should] provide for hygiene, apply the rule of silence, prohibit correspondence, ban the use of tobacco and alcohol, require work for 12 hours a day, and furnish religious instruction with an appropriate system of rewards for improvement and other measures to lessen the evil of impunity that these malfactors enjoy.” The inspectors grimly warned that if news of the relative ease of a slave convicts’ life on Fernando de Noronha spread to the mainland, it would give slaves an incentive to commit heinous crimes to escape the rigors of slavery.⁵⁸

Among the inspectors’ suggestions for reform were requirements that slave convicts labor for at least 12 hours per day and, unlike free convicts, be subject to corporal punishments. The flogging of prisoners had been regulated in 1865 to avoid “frivolous” abuses of the “gameleira” (a term that referred to the tree whose root was used to castigate prisoners), but the rule was often observed through its breach. In 1871, for instance, Pernambuco’s governor urged that corporal punishments on the island be applied with greater moderation. According to an American who visited the island in 1875, “This lash is quite often and freely used in the square, and every [End Page 37] convict must be present to see it administered. For laziness they get from fifty to one hundred strokes, but sometimes from 150 to 300. Very recently 1,500 were administered to a Brazilian convict for stabbing his wife.” In May, 1879, the Justice Ministry banned corporal punishment (even for slave convicts), much to the inspectors’ chagrin. The inspectors approvingly reported that after five “atrocious” murders in the months following the ban on flogging, the director began flogging again despite Ministry provisions against it.⁵⁹

By abolishing flogging and other measures, the Justice Ministry sought to put a new civilian stamp on the penal colony’s administration which they had assumed in 1877. They drafted regulations and sent special instructions for handling the slave convicts on the island, which required the director to enforce the sentence of galés for slave convicts. They were to be fettered and isolated from the free prisoners in two slave convict work companies located in outlying villages, where they would perform the most unpleasant and arduous work on the colony. Thus, the Justice Ministry hoped to discourage “mastercide” by making slave convict punishment distinctive and more disagreeable.

The Justice Ministry officials hoped the 1881 survey would support their plans, but the presidio’s director opposed them, and this bureaucratic conflict had shaped how the director constructed the survey. In response to the director’s new orders, he wrote that “the ex-slave convicts here number 263, 21 are artisans, 57 invalids, and others are of advanced age, including three who are blind and five, insane, leaving only 185 able-bodied field workers.” Thus, the survey on slave convict health and skills served the director as an instrument to limit who would be affected by the orders. The director reported that he had sent the able-bodied slave convicts to work and to live in isolation from free convicts in the rural settlements of Sueste and Sambaquixaba, which were distant from the main village, Remédios. He then noted that “most of these prisoners [slave convicts], with rare exceptions, are those with the best discipline records, and there are many who have performed good services, including . . . Agostinho, who denounced a plot for a general uprising by prisoners in August, 1865 in time for it to be quelled.” Here, the director repeated findings in his own survey to argue against the Justice Ministry’s reforms. [End Page 38]

The director declared, moreover, that he had not complied with orders to fetter slave convicts because these would impede productivity. He noted that his predecessors had “never” shackled the “unhappy slave,” nor separated them from their “comrades in the expiation of punishment, be one sentence to perpetual galleys or simple temporary imprisonment.” He waxed on, “. . . how could this be in our beloved nation whose destiny is guided by a state that maintains liberty, having at its head a magnaminous monarch, who combines wisdom and virtue, and the least favored class, the most tortured in its jails, where only a misfortune put them there, and just when the whole country is uniting to fight for the liberty of their brothers in captivity?” He concluded that “the absolute separation of the slave convicts from other prisoners is not proper nor is their shackling . . . neither would improve discipline in the presidio.”⁶⁰ Here, the director stressed that the segregation of slave convicts was not only morally wrong but also dangerous.

An 1881 petition from a slave convict is a telling testament to the relatively undifferentiated treatment given to slave inmates on Fernando de Noronha before the Justice Ministry’s reforms. Gregorio Pereira Leite petitioned the justice minister and the governor of São Paulo to send documentation to prove he was a freedman when he had been sentenced to galés in Areias, São Paulo in 1861. Gregorio had arrived on Fernando de Noronha in 1871, so for more than ten years, he felt no need to have his official status as a slave convict on the island corrected. When the director sent slave convicts to serve in segregated companies, however, he had reason to have his freedman status recognized. A response confirms that his letter of liberty arrived on Mar. 2, 1882 relieving Gregorio from his life of penal segregation.⁶¹

In 1884 a new director reiterated warnings about the danger and prejudice of the Justice Ministry’s new policies. First, the director argued that many slave convicts were excellent skilled workers, and the new policy meant that the penal colony would go without their valuable skills, which undermined productivity. More pointedly, he stressed the dangers of their isolation which “segregates and unifies them [slave convicts], like a race of vile pariahs, [End Page 39] which awakens in them amor proprio (egotism) and resentment, even more so because this island is a presidio in which comportment was always the only distinction made among prisoners.” In the director’s depiction of the island’s history, authorities enforced a true penal meritocracy among convicts. Furthermore, he argued that the policy was an injustice to slave convicts who have for “ten, twenty, or more years [in the presidio] always maintained good comportment, demonstrating themselves to be always subordinate and true elements of order.”⁶² The policy did mean real hardships, as many veteran slave convicts had to leave homes they had built in the main village of Remédios for less comfortable quarters and may have lost access or the time to cultivate provision grounds. Thus, many slave convicts lost privileges earned through years of good behavior. In the text, the director depicts the policy as backward when he states, “the mere fact that because they were slaves they will suffer from an improvised reform, such a transcience—transcience of a kind that finds itself diametrically opposed to generally accepted modern principles.” Here, he seemed to refer to the liberal principal of equality before the law, and he emphasized the irony of such a measure in “an era [in which] the voice of emancipation raises itself up in every corner of the empire.” Like his predecessor, he refused to enforce orders to fetter slave convicts. He noted that since “primitive times,” galés on the island were not fettered; this [penalty] having been reserved as a punishment for prisoners who committed new crimes. For the director, precedent seemed more important to maintain order and production than the harsh punishments prescribed by outdated, cruel laws.⁶³

The views expressed by the two penal colony directors reflected broader political and social trends in Brazilian society in the 1880s, most notably the rise of the abolitionist cause. In 1884 the provinces of Ceará and Amazonas abolished slavery, and by 1886, the abolitionist movement’s popularity threatened slavery nationally. Parliament finally abolished slavery without compensation throughout Brazil on May 13, 1888. Abolitionism had stronger purchase in certain regions and sectors of society. Factions of the army’s commissioned ranks in particular had become vocal proponents of abolition, so it is not surprising that two directors questioned the justice of punishing slave convicts differently from their free counterparts. Tensions between military officers and Justice Ministry employees regarding Fernando de Noronha may have been exacerbated by fractious civil-military relations in the 1880s that came to a head during the so-called Military Question of 1883. Some officers were arrested for publishing editorials critical [End Page 40] of civilian politicians without obtaining approval from the war minister. Officers protested this censureship and referred disparagingly to civilian politicians as casacas (frock coats).⁶⁴

The efforts to maintain segregation between slave and free convicts lasted for only a few years. Orders to shackle all slave convicts were never implemented. For most of its history as an imperial penal colony, slave convicts performed comparable work and lived in similar conditions to the majority of their free counterparts. While Justice Ministry officials had implemented some policies that laid out clear distinctions between the punishment of slave and free convicts in the early 1880s, by the end of the decade, slave convicts turned the tables. In 1878, new rules dropped requirements that indigent convicts who desired to petition for a pardon or commutation buy imperial stamps to register their missives. This made filing a petition much less onerous for most convicts, and they began to petition with greater frequency.⁶⁵

In 1885, the slave convict Josepha, whose capital sentence was commuted to perpetual imprisonment in 1862, petitoned for a pardon. In her favor, the director remarked that Josepha had a record of good conduct in the 19 years since she had arrived on the island, and in addition to her work as a laundress, she served as a midwife and earned the gratitude of the presidio’s inhabitants. For these reasons and the many years she had served on the island, the director felt that her petition should be granted. A reply on the petition indicated that she was pardoned on Feb. 4, 1889, but her matricula record shows that she was returned to the mainland on June 17, 1889, only a few months before a bloodless coup ended Brazil’s constitutional monarchy.⁶⁶

Similarly in 1885, José, “ex-slave of João Matheus,” petitioned for pardon. The director noted that he had had a good disciplinary record since arriving at the presidio in 1864. Furthermore, José had applied himself to his work with much “subordination.” The director added that it was true what the slave alleged in his petition, that he had murdered to defend the [End Page 41] honor and dignity of his young mistress, who was also his owner. Free husbands who murdered their wives for reputedly engaging in adulterous affairs most commonly employed the defense of honor plea in court, and many juries exonerated them from murder charges. In this case, we find a slave convict exculpating his crime as a valiant defense of his mistress’ honor. If the assertion was true, as the director believed it was, the jury who condemned him was not willing to grant a slave such leniency, but their clemency might have been hampered by the restrictions of the June 10, 1835 law. Perhaps his overseer had made unwanted advances toward his mistress, but unfortunately, the petition does not reveal these details. José was pardoned, and he returned to the mainland on the same ship as Josepha.⁶⁷

A few slave convicts were pardoned and freed before slavery’s abolition on May 13, 1888. Authorities did not return these slaves to their former owners, a fact which highlights the finality of the state’s confiscation of private property and the defendant’s liberation from slavery upon conviction. On May 20, 1887, the director wrote that he had “embarked Frederico Cabinda who here served a sentence of perpetual galleys . . . because he was pardoned . . . on April 10, 1887.”⁶⁸ In Frederico’s case, his African birth did not seem to be an impediment to his pardon and ultimate release. But because of his African birth, he would not be a citizen under the laws of the empire, since he was still considered a foreigner who would have to be naturalized to become a Brazilian citizen.

Petitioners and the directors who evaluated them emphasized a few key elements to support their cases for pardon. On the one hand, they stressed good behavior, obedience, subordination, and dedication to work; on the [End Page 42] other, they stressed the many years that the petitionors had already suffered imprisonment. They also mentioned whether petitioners were attentive to the needs of families: be it their own, those of their owners, or in the case of Josepha, those of the broader community.

The years 1888 and 1889 saw what had been a trickle of slave convict petitions for pardon become a stream. There is no doubt that the abolition of slavery stimulated many slave convicts to capitalize on the demise of bondage. The promulgation of a republic also brought swift change to the colony; a little over a month after the army coup that promulgated Brazil’s Republic, a new director named by the provisional government had assumed command of Fernando de Noronha.⁶⁹ These transitions also influenced the petitions slave convicts wrote to support their cases for pardon. Despite abolition and the promulgation of a republic, the title “ex-slave” and the names of former owners continued to accompany their petitions for clemency.

In 1890, a scrivener wrote the former slave Francisco de Assis’ petition which implored the “Imminent Chief of the Provisional Government to . . . pardon him—recognizing that 16 years of rigorous privations sufficient for his complete repentance for an act committed in a delirious state in which he found himself, due to his captivity.”⁷⁰ Similarly, the former slave convict Manoel de Miranda had a scrivener write in 1890, “This citizen [my emphasis] supplicant who beyond being one who had been subject to cruel captivity, finds himself condemned to serve a sentence of 17 years.” These petitions and others make a parallel between time served as a slave with that served in prison to emphasize that the convict had suffered punishments that were not commiserate with his or her crime. Manoel ended by noting his good disciplinary record, and then in a patriotic flourish he asked, “in the name of justice and the two most glorious dates for Brazil, the 13th of May [slavery’s abolition] and the 15th of November [the republic’s promulgation], I ask for your clemency and mercy for my sufferings.”⁷¹ This convict boldly assumed the title of citizen as a sign of slavery’s abolition and the dawn of a republic, but he embraced the fact that he had been subject to the cruelty of slavery and the old regime’s unjust laws. A slave past had become an exculpatory factor and a justification for clemency. [End Page 43]

A few slave convict petitions went into great detail to describe their crimes. Perhaps the most moving was the slave convict Damião’s. The 1890 petition mentions that his “ex-senhor” João Beserra Chaves esteemed Damião who, “with the proper humility and submissiveness of his captivity of the time, performed all the duties that were demanded from him.” Here Damião’s scrivener plays on the idyllic image of the good master, his dedicated slave servant, and then adds the stereotype of the cruel overseer. “One day the savage overseer pitilessly castigated his [Damião’s] mother in front of him and beyond not listening to her son’s pleas to stop brutalizing his mother . . . the barbarian overseer then attacked him with the deliberate intention of giving him the same beating meted out to his unhappy mother. It was on this occasion that destiny led the slave Damião to become a murderer, and the spontaneous desperation generated by the castigations inflicted on his mother, to whom he dedicated the most exteme love of a son (amor filial), caused temporary insanity as would identical circumstances affect any child in his position.” He then noted that “his nation’s old laws” and his jury had not taken into account the attenuating circumstances that had driven him to kill. He then appealed with the “greatest submission” to the “most distinguished functionary of his country and to the most celebrated citizen among his generation for his glorious deeds which will never be forgotten by succeeding centuries. Great citizen pardon the miserable ex-slave and galés, for him show clemency for your glory, your posterity, and your deeds.”⁷²

Damião’s appeal is fascinating because it plays on so many registers. It certainly appeals to guilt over the horrors of slavery. In this, it echoes other slave convict appeals which counted slavery as a punishment pre-dating conviction and an attenuating circumstance for crime. It resonates with one of the main themes of abolitionist literature, the disagragation of the slave family.⁷³ This missive praises the enlightened laws of the new republic and contrasts them to the injustice of the empire. Even so, it also couches this critique in the language of “submission” and praise of the great patron President Marshal Deodoro da Fonseca. In the past, similar petitions appealed to Pedro II’s wisdom and mercy. Damião seems to be the model of the urban legend that Carpenter described in his travel novel, a rural slave who killed his abusive overseer and subsequently came to live a better life in Fernando’s penal colony. Damião’s petition, however, indicates that life on Fernando [End Page 44] was no substitute for freedom. He and most other slave convicts struck for their freedom as soon as the political winds shifted.

The maneuvering was ultimately successful as most slave convicts were pardoned or freed because of the sentencing rules approved by the new republican government. The 1890 Penal Code spelled out new uniform sentences with 30-year maximum sentences in the case of aggravated crimes. New laws set guidelines that limited most homicide convictions to sentences that varied from ten to twenty years. This rule benefited many slave convicts who had already served years in jail or in the penal colony. By 1892 most of those who had survived the decade following the 1881 survey had been returned to the Brazilian mainland as free citizens. In 1894 the republic’s federal charter moved Congress to close Fernando de Noronha as a national prison, though it continued to be a jail for the state of Pernambuco. In 1897 a navy ship returned prisoners who had been convicted in states other than Pernambuco to the jurisdictions where they had been convicted.⁷⁴

The petitions for pardon show how quickly slave convicts adapted their appeals to the changing political environment. Pedro II and Princess Isabel may have been popular in the black and brown communities of Little Africa in Rio de Janeiro because of the passage of the Golden Law of May 13, 1888 that abolished slavery, but among slave convicts on Fernando de Noronha, the Republican era was welcomed with patriotic elocutions. ⁷⁵ In less than a decade, the status of slave convict on Fernando de Noronha had moved from being a liability to an advantageous argument for a pardon or commutation.

Conclusions

The history of slave convicts illuminates the importance of moving beyond statistics on arrests, trials, convictions, and sentences to examine how slave and free individuals faired in prison. Unlike the penal colony directors of the early 1880s, I do not argue here for what one might term a [End Page 45] “democracy of civil condition” among penal colony convicts, much less a racial democracy. However, it is significant that slave convicts were not treated as differently as the law and their sentences would lead one to believe. Penal colony authorities balked at Justice Ministry reforms that treated slave convicts distinctively from their free inmates. In the 1880s, abolitionism’s popularity gave directors a new rationale to defend practices of integration regardless of civil condition, let alone color, which began decades earlier when practical considerations of discipline and production on a dangerous island frontier led army officers to adopt them.

Given these findings, how accurate is the novelist Carpenter’s portrayal of growing slave violence? The Justice Ministry’s actions lend some credibility to Carpenter’s account in that its representatives felt it necessary to segregate, fetter, and make slave convicts work longer hours to deter slave crime. Still, even these efforts were only partially implemented and ephemeral. A few slaves may have killed their overseer or master in the hopes of improving the quality of their lives on Fernando de Noronha as some newspapers claimed. However, if most slaves believed this, one would expect considerably more murders and trials given the 1.5 million slaves in Brazil in 1872. The relatively low number of slave convicts prosecuted under the June 10, 1835 law (some 857 according to João Luiz Ribeiro’s count) indicates that few slaves believed that murdering a master or an overseer would guarantee a ticket to Fernando de Noronha and a provision ground.⁷⁶ Once on the island, usually after spending years in a fetid, crowded jail cell, slave convicts might congratulate themselves on their relative good fortune. As soon as the opportunity to strike for freedom arose, however, most slave convicts did not hesitate to petition for their release from what Carpenter dubbed their “ocean resort.”

Pedro II’s stance against the death penalty shows that the roots of the Brazilian Republic’s prohibition of capital punishment lay deep in the empire. This disposition against the death penalty came about not only because politicians began to find public executions uncivilized, but also because, like their counterparts in Argentina, they worried that public executions and floggings could inspire further disorders. Slavery would contribute an additional discomfiture, however, in a way that distinguished Brazilian attitudes toward capital punishment from nations like Mexico, Colombia, Argentina, Venezuela and most saliently, the United States.⁷⁷ [End Page 46]

In the United States capital punishment continued to be practiced after abolition in most states, despite a brief national respite from 1972 to 1976 resulting from a Supreme Court decision. Conversely, the Brazilian state and public have never seriously wavered in their legal repudiation of the death penalty since the 1890 Penal Code. One must wonder about the origin of such a stark contrast in attitudes toward the death penalty. The answer cannot be laid at the feet of a history of slavery, but I argue that it lies primarily in their different paths to abolition and their legal and cultural traditions.

As the result of a devastating Civil War, the Union abolished slavery and after Reconstruction, tolerated formal and informal practices of disenfranchisement and segregation based on color, particularly in southern states. Southern whites wrestled power away from black Republican Party representatives and their allies through violence, including illegal lynchings and legal executions, while outside this region, former slaves and their descendents were usually marginalized in more subtle ways. The crime of lynching became so internationally associated with the United States that Mark Twain comically referred to it as the “United States of Lyncherdom.”⁷⁸

The Brazilian Empire and Republic, conversely, were not renowned for lynching slaves, former slaves, or free born men. No doubt, there were plenty of assassinations in Brazil for economic, political, and personal reasons, and many slaves died at whipping posts and suffered cruel tortures that resulted in their deaths, but ritualized lynching was not a prominent part of Brazil’s cultural grammar of popular justice. Moreover, Brazil’s free population of color enjoyed, at least on paper, legal equality with most of the free poor white population. Even Brazilian-born freedmen could vote, if they met electoral [End Page 47] requirements which were not overly restrictive (even after the 1881 electoral reforms), but their votes were indirect. Voters selected “electors” (a privilege that required free born status and an income twice that of a voter). Electors then cast ballots for candidates to offices such as provincial or imperial senator or deputy. Freedman could hold some lower-level government posts such as alderman and noncommissioned ranks in the imperial Army, Navy, or National Guard.⁷⁹ Despite their ability to participate to a limited extent in politics, former slaves in Brazil did not form an influential voting block, nor did nonwhite Brazilians form color or race-based political parties until the 1930s, long after abolition. Such color-based political activism could have triggered “white” violence to prevent them from organizing as it did in Cuba in 1912. Unlike black Republican politicians under Reconstruction, Brazilian men of color were rarely elected to high public offices, and when they were, they did not win election as representatives of “nonwhite” or former slave constituencies. The corrupt, oligarchic, and state-based political party system of Brazil’s Old Republic (1889–1930) apparently discouraged the organization of color-based political parties.⁸⁰

In Brazil, the abolitionist movement progressed gradually and much more peaceably than in the United States, but it also occurred much later, which isolated Brazil as the only independent nation in the Western hemisphere to tolerate slavery after 1865. Brazilian intellectuals did not produce a moral or racial defense of slavery in the tradition of the U.S. South; rather, many rationalized it as a lamentable economic necessity.⁸¹ Embarrassment over Brazil’s continued use of slave labor pushed leaders, intellectuals, and Emperor Pedro II to find other ways to demonstrate their refinement and civilization as world opinion turned against the brutality of slavery and harsh punishments.

Opposition to the death penalty and even abolitionist sentiment offered arenas for the emperor and others in his circle to showcase Brazil in a more favorable light to foreigners, despite its isolation as a slaveholding nation. It is telling that in 1866, the emperor persuaded his cabinet to make a surprise response to an abrasive letter from the French Committee for the Abolition [End Page 48] of Slavery signed by some of Gaul’s most respected intellectuals. In this missive, the cabinet wrote that after the War of the Triple Alliance (1864–1870), Brazil’s leadership would prioritize the issue of slavery’s abolition. Pedro duly used his influence to press Parliament’s passage of his version of the 1871 Free Womb Law, which became law while he happened to be traveling in Europe for the first time. During a second trip to Europe in 1876, Pedro met with major French figures who opposed capital punishment and slavery such as Adolphe Franck and Victor Hugo. Pedro and Adolphe Franck had a conversation about the death penalty which contributed to his decision to end capital punishment that year.⁸² Pedro and those in his political circle consciously sought to impress influential foreign figures with their concern for penal reform and abolition, but eliminating the death penalty was much less contentious than bringing and end to slavery. The 1878 novel Mota Coqueiro ou a pena de morte (Mota Coqueiro or the death penalty) pleased Pedro, because it assailed the death penalty without directly attacking slavery. Authored by the “Tiger of Abolition,” José do Patrocínio, the novel narrated the trial and execution of Mota Coqueiro, a “white” landowner condemned for murdering a sharecropper family. Years after Mota Coquiero’s execution, another man confessed that he committed the crime. This novel, which was based on a true story, popularized opposition to the death penalty in Brazil.⁸³

The emperor did not have to take this stance against capital punishment, which earned him the ire of many slaveowners. Still, the deep roots of Brazilian opposition to the death penalty anchored in the discomfiture of being the last nation in the Western Hemisphere to abolish slavery, a laggard in the competitive race among nations to outdo one another in the advancement of human rights. If Brazilians could not beat the United States or even the Spanish Caribbean in a race to abolish slavery, they could be out in front on the death penalty’s de facto abolition.⁸⁴ [End Page 49]

The Brazilian case contrasts starkly with the punishment of convict slaves in the ante- and postbellum American South. Like Brazil, most southern states did give slaves accused of capital offenses the right to a trial by jury, although many required it to be composed of slaveowners.⁸⁵ In Virginia, the state fully compensated owners whose slaves were executed based an appraiser’s assessment. Mississippi, Alabama, South Carolina, Louisiana, Texas, Delaware, Maryland, and Kentucky offered different forms of partial compensation to owners. Similarly, slave law in the British Caribbean empowered juries to determine just compensation for the owners of slave convicts sentenced to death or transportation. These courts offered compensation as an incentive for masters to turn over slave suspects and to discourage owners from selling them to buyers in other states or territories to avoid financial loss.⁸⁶ The French in Louisiana taxed slaves to create a fund to compensate owners whose slaves were executed or exiled. The Spanish established the concept of compensation for slaves sentenced to death in the 1768 Black Code of the Audiencia of Santo Domingo, but in practice Spanish courts did not compensate owners for executed slaves.⁸⁷ In this sense, laws in much of the slave-holding Americas were more respectful of private property than Brazilian law. [End Page 50]

Phillip J. Schwarz shows that to defray the costs of compensation, Virginia’s leaders began to commute most capital sentences for slaves destined for sale out-of-state in the nineteenth century. While Fernando de Noronha similarly served as a site of penal exile for slave convicts, the Brazilian state did not resell them but forced them to work, if they were physically able. Despite the strong financial disincentive, Virginia’s courts still executed more slaves than Brazil’s did. If Ribeiro’s count of 199 slave executions across Brazil from 1830–1876 is accurate, it seems rather low when compared to Virginia’s record for a comparable span of years from 1820–1864 in which 388 slaves were executed. Even if one includes the 135 cases where Ribeiro found a capital sentence but could not confirm an execution, Virginia, a single American state, still put to death more slave convicts than all of Brazil’s provinces combined.⁸⁸

This difference is also linked to divergent imperial legal legacies. The Portuguese crown was loath to use capital punishment because of its small population relative to competitors in the struggle for supremacy among seaborn empires. The Crown preferred to use convicts as penal exiles to maintain a strategic presence, especially in less attractive colonial frontiers like Angola. A telling indicator that execution was not a fully accepted practice in Brazil was the difficulty authorities had in finding men, even among convicts, willing to serve as executioners. Officials had to send the few willing to perform this duty to distant locations to realize executions in the communities where the crimes had been commited. This slowed down and increased the costs of executions considerably. One slave convict claimed to have served as hangman for 87 executions across Minas Gerais and Rio de Janeiro. He had to be jailed in isolation because he was once stabbed by other prisoners who found his work repugnant.⁸⁹ In more populous Britain, authorities grew quite comfortable executing convicts in the late eighteenth century, even for relatively minor crimes against property, until transportation to Australia and the construction of modern penitentiaries afforded less lethal alternatives. In Britain, executions were a much more common and vibrant part of popular culture, as indicated by the euphemism “Tyburn Fair” for Tyburn gallows.⁹⁰ [End Page 51]

Luso-Brazilian and Anglo-American law also differed in the degree to which they embraced the individualism of liberal jurisprudence. The Brazilian state’s confiscation of slave property without compensation held owners partly responsible for their bondsperson’s crimes. This reflected patriarchal cultural expectations that held a head of household responsible for the actions of his or her dependents. This differs from the more individualistic Anglo-American policy of compensating owners for slaves sentenced to death or transportation which, to a much greater extent, uncoupled master and slave culpability.⁹¹

Unlike their U.S. counterparts, Brazilian courts did not execute slaves for rape or crimes against property, but reserved the death penalty for homicide and rebellion. American fears of racial miscegenation and rape distinguished it from Brazil where intellectuals embraced race mixture as the means to “whiten” the national population in the late nineteenth century. It seems that privileged Brazilian white men remained secure that their dalliances with women of color would be the norm, not the inverse, so the policing of a sexual color line was not as potent a cultural anxiety. In the U.S., whites often lynched or legally executed black men who stood accused of the rape or attempted rape of white women. By contrast, the observed cases of slave lynching in Brazil was a response to the emperor’s resolve to commute capital sentences.⁹²

Another glaring contrast with the United States that this case study highlights is the palpable differences in attitudes about segregation on the basis of condition and color. In the U.S. South after the Civil War, the penitentiary projects embarked on by most southern states were abandoned in large part because, under Reconstruction, they would have led to the integration of white and black convicts. Instead, most southern states opted for convict [End Page 52] lease systems, followed by chain gangs and state farms. These new penal labor systems mostly maintained racial segregation as a guiding principle.⁹³

On Fernando de Noronha, authorities preferred to integrate slaves in convict companies to bolster their control over a penal population, which, like Brazil’s larger population, was mostly non-white. Even the colony’s inmate police company included slave convicts responsible for enforcing rules against far more numerous free inmates. Directors warned in 1881 and 1884 that the policy of segregating slave convicts would create a common bond among them as members of a “pariah race.” One might mistake these words on the dangers of segregation for flourish or see them as a result of unique conditions on an isolated penal colony island, but following the lead of novelist José Lins do Rego, I employ Fernando de Noronha as a foil. Mainland Brazilian prison authorities did not consistently segregate slave convicts from free ones, much less worry whether convicts of color lived and worked alongside white convicts. Similarly, the army integrated mostly dragooned brown, black, and liberto soldiers in the second half of the nineteenth century. The Brazilian Army’s great patron hero, the Duke of Caxias, oversaw the disbanding of the all black volunteer Zuavo units from Bahia and Pernambuco at the Paraguayan front in 1867. In addition, the government bought and owners sold or donated hundreds of slaves to fight at the Paraguayan front. In turn, the state awarded mobilized slaves with conditional letters of liberty. Both Zuavos and freedmen soldiers were intentionally integrated, not segregated, in army units.⁹⁴ It seems more than probable that the officers who developed the penal colony’s practices drew on their experience of disciplining and motivating often unruly and decidedly motley Brazilian enlisted men. [End Page 53]

Compared to the United States, Brazilian authorities demonstrated much less enthusiasm and did not expend comparable resources to defend the privileges of free birth status, let alone “whiteness,” among the ranks of poor Brazilians. As on Fernando de Noronha, integration stemmed from practical considerations as well as evolving perceptions of slave status, color, race, morality, and modernity. These attitudes may have derived to a considerable extent from the much larger size of Brazil’s non-white population, which made the costs of protecting the honor of poor whites through policies of segregation too costly or impracticable after 1850. When a Brazilian of color ascended the social scale and assumed putative “whiteness,” however, social barriers and jocular references to one’s racial forebears could surface to contain or obstruct that mobility.⁹⁵

In the United States, government, business, and labor union leaders worked much harder and went to considerable expense to police the evolving borders of whiteness. U.S. authorities in the states even preoccupied themselves with the dignity of dishonored white convicts by maintaining segregation in penal institutions well into the twentieth century. Even at the federal level, “white” soldiers remained segregated from black troops until the Korean War (1950–1953).⁹⁶ The disposition of Brazilian and U.S. authorities toward integration in basic institutions reveal different assumptions about how to manage the transition of an economy heavily dependent on slavery to one based on “free” labor.

These reflections shine a light on a poorly illuminated legal corner in the on again, off again debates of Frank Tannenbaum’s Slave and Citizen (1946). In no way do I endorse the concept of milder Ibero-American slavery, which any invocation of Tannenbaum risks, but this case study takes a different tact. Generally, Tannenbaum’s critics show that laws protecting slaves in Ibero- and Franco-America did not shield them from the abuses of [End Page 54] their masters or other more powerful actors. In this case study, however, the law is harsher than the actual punishment rendered in most instances. Does this mean that Brazilian slavery was milder or that masters were more compassionate than their counterparts in Protestant America? Certainly not, but it does highlight the importance of different legal and cultural traditions surrounding capital punishment and institutional segregation linked to diverging paths toward slavery’s abolition.⁹⁷ [End Page 55]