1Book ReviewAndrés Reséndez,
The Other Slavery:
The Uncovered Story of Indian Enslavement in America
Jason Morgan
America is often thought of as a place under the rule of law. The inscription on
the architrave of the Supreme Court building in Washington, DC, “Equal Justice
Under Law,” was not added until the early 1930s, but long before that the American
ideal had been the rule of systems and procedures rather than the arbitrary whims ofa single person or unelected body. One of the main putative reasons that theAmerican Founding Fathers proffered for their desired split from England was thatthe American colonists, in their view, were not being treated fairly within the English
legal system. This mid-eighteenth-century quarrel reveals a much older tradition inEngland, and in the English colonies in North America, of adjudicating cases
equitably, in accordance with the ancient constitution. Indeed, among the formative
documents of this ancient constitution is the Magna Carta（1215）, whereby even anEnglish king was made to acknowledge that he was subject to the rule of law. It was
this spirit of English law that informed the American Revolution and continues toserve as the benchmark for the United States today.
England was not the only European power to move into the New World, ofcourse. If anything, the Spanish Empire which preceded the English in the Americas
had an even stronger legal tradition than did England. The Spanish Empire was ahighly legalistic entity, and the kings and queens of Iberia ruled their holdings, eastand west, through the gauze of laws, a panoply of edicts, decretals, and proclamations
which were rigorously debated by ministers and subjected to intense scrutiny by legal
philosophers and other learned counselors both prior to and after promulgation. Long
before the first English settlers set foot along the eastern seaboard of North America,
the Spanish had been conquering─and marauding in─South and Central America,
1） See, for example, the Spanish Requirement of 1513（the “Requirimiento”）, which was the legal
nicety overlaying the Spanish conquest of Native territories outside of Spain. Cf., e.g., Robert A. Williams,Jr., The American Indian in Western Legal Thought: The Discourses of Conquest（New York: Oxford
University Press, 1990）.

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all under the pretext of codified law. The rule of law has been the ideal of theEuropean overshadowing of the Americas since Columbus（who thought he was inIndia）first arrived in 1492.
But wherever there is an ideal, there is always a neglected reality. Much bruitedin the Americas, this rule of law is, but how do things play out on the ground? Dopeople act as though the law brings equal justice, or merely say that it does so they
can keep doing the unjust things that bring them more tangible rewards than fairness:money, power, and the trappings of office? A new book by Andrés Reséndez, who is aprofessor at the University of California-Davis and a specialist in the history of Mexico,challenges us to think, not just about the English and American shortcomings of theideal of justice under the law, but about similar shortcomings throughout the entire
western hemisphere. Even more important, The Other Slavery prompts a revisiting of
the jurisprudential array as it is currently deployed worldwide. What is law, exactly,
and how have the uses to which the law has been put unsettle some of the received
ideals of countries and societies overall? What can the ongoing defiance of law teachus about justice and the limits of jurisprudence and legislation?
Everyone knows that Africans were enslaved in the Americas. Growing out ofmuch older slaving practices and networks in Africa, which were run by Africans andMuslims and later appropriated by Portuguese traders and raiders, the slave system
was brought by Europeans to points west of the Treaty of Tordesillas line, withAfricans working plantations and generally forced into unrecompensed servitude in
the Caribbean, as well as in North, South, and Central America. The “middlepassage,” the route across which black Africans were transshipped from Africa to theNew World, is well known as a cavalcade of nightmares. Many died along the way
and were thrown overboard. Those who survived took their physical and psychological scars with them to wherever their master, who had purchased them as one
would a wagon or an ox, wished them to go. The entire practice, from kidnapping tosale to forced labor, was morally indefensible, and yet legally permissible. The rule oflaw was tasked with setting in good order a practice ultimately rooted in lawlessness:
human trafficking, not to mention the countless by-crimes attendant thereupon.
While the history of African slavery is familiar to many, less well known is thatAfricans were not the only people enslaved in the Americas. For example, many
whites─Europeans, Slavs, and other Caucasians─worked under conditions ofpermanent or semi-permanent unfree servitude, not only in the Americas but also
throughout Europe and Africa and beyond. But as the slave system hardened in theAmericas, the racial division between black Africans and Caucasians led to aconvenient index of labor status, with skin color coming to stand as a marker for selfownership or the lack thereof. Eventually, white slavery as a practice grew lesscommon, but whites were not the only non-Africans to work as slaves. From theTheOther
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moment of Spanish arrival in the New World, Indians were captured and enslaved.
Indian slavery in the Americas predates black slavery there, and, by all accounts,
exceeded it in scope and also outlasted it in duration.
The premise of Reséndezʼ book is that this “other slavery”─that is, the enslavement of Indians─was somewhat different from black slavery in that Indian slavery
was almost always technically illegal. Columbus took natives with him back to Spainon the return leg of his first voyage to the New World, and after that a wave ofEuropean（mainly Spanish）colonizers and adventurers began trading heavily inslaves, most of them Indians. The Spanish crown reluctantly tolerated this at first, butsoon Queen Isabella forbade the practice as an affront to the dignity of her subjects（among whom she included the Indians）and an encroachment on her royal prerogatives. Subsequent Spanish monarchs took an equally, or even more forceful, line
against slavery. Perhaps most notably, the Dominican friar Bartolomé de las Casas isfamous for arguing in favor of the humanity of Indian slaves. In 1542, and at theurging of de las Casas, Holy Roman Emperor Charles V duly outlawed the practice ofIndian slavery in a landmark legal decree premised upon de las Casasʼ arguments thatIndians were children of God. The name of this decree was, fittingly enough, “TheNew Laws”（Leyes Nuevas）. Only very briefly was Indian slavery ever legal, and eventhen it was an aberration of Church teachings and a distortion of the law.
And yet, Indian slavery was everywhere. In many ways, it was even more
fundamental to American history than was the enslavement of Africans. Indians werebeing reported as effectively enslaved as late as the 1960s, and even today it can beargued that Native American reservations are home to people of attenuated degrees ofautonomy. American judges and the United States Congress legalized this Indianenslavement（cf., e.g., Cherokee Nation v. Georgia, 30 U.S.（5 Pet.）1（1831）, theDawes Severalty Act（1887）, and so forth）, but Spanish and, later, Mexican and other
New World judges were almost always against it. Even so, slavery as an institution
was almost as common as marriage. Domestic slaves, almost always Indian, were astaple of Mexican towns（and even of Spanish towns, as many Spaniards took their
Indian slaves back with them if they chose to return to the Iberian Peninsula）. Courtsand magistrates and bishops and kings repeatedly denounced this practice, and there
were many instances of Indians securing their freedom through legal channels once it
had been established that they were enslaved, but many attempts to outlaw a thing aretacit acknowledgements of the existence of many outlaws, and slavery, in some formor another, remained in de facto effect for centuries. The labor in Mexican andPeruvian silver mines, the domestic helpers for priests and lawyers in New Mexican
frontier towns, the sexual captives of encomienda owners throughout Latin America─these were slaves, or something very much like slaves, and all of this went on as
though invisible to the rule of law, indeed in direct defiance of it.

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To be sure, North American slavery in native populations grew out of a mucholder and indigenous practice. Indians had been enslaving Indians for centuries, atleast, before the arrival of Europeans, and Europeans quickly entered into a symbiosis
with Indian slavers whereby, say, Apache or Comanche or Navajo raiders suppliedlabor by kidnapping Pueblo or Pawnee or Utes and selling them off, under brutalconditions, at European trading posts. At first glance this may seem to lend credence
to the Spanish claim of civilizing the natives by way of superior cultural practices, suchas the rule of law. However, the Indian enslavement of other Indians actually
undermines the argument that Europeans civilized North America by imposing law onanarchy. The Europeans may have put an end to human sacrifice among the Aztecs,
for example, but the sacrificial victims were prisoners of war, and the Spanish simply
found them to be more useful alive than dead. The altars to Tezcatlipoca may havestopped running with blood, but human trafficking went on apace. The rule of law did
not civilize the Americas so much as repurpose the practice of slavery and provide itwith a convenient cover, ironically, of denied legal sanction.
The law, then, and those who practice, make, and enforce it, waged a halfmillennium-long battle to uproot slavery by legal means. The failures outweighed thesuccesses until the very end. （Human trafficking, tragically, continues to this day,and not only in the Americas, but in other countries also ostensibly under the rule oflaw.）This would seem to cast in dubious light the entire legal system. I suggest here
turning to Hiroike Chikuroʼs conception of law for a different perspective on law andjustice, and as a possible hint toward an alternative to pure, or mere, rule of law.
As Hiroike lays out in Chapter Fourteen, “The Principle, Substance and Contentof Supreme Morality,” of his collected works, the Chinese ideograph which expresses
the concept of “law”（fa; J. h 法）is a simplification of a much older ideograph whichmore accurately expresses the complex etymology of the character. As Hiroike
explicates the origin of the term, fa was “used in the sense of the golden mean and2）
average or equilibrium”. In other words, while in the European and Euro-American
context law and practice could be conceptually and practically dissevered, so that thelaw could remain unadulterated, but impotent, while outrageous violations of the law
continued unabated, in the Chinese conception of the law justice as a mean wasliterally embedded in the ideographical etymology of the term for “law” itself. To havelaw, in other words, was to do law, that is, to act justly case by case. One could not
Platonize the law; one had to see the case in its own light and render judgment
accordingly.
The Other Slavery presents a multi-century history of an abject failure of law to2） Chikuro Hiroike, LL.D., Towards Supreme Morality: An Attempt to Establish the New Science ofMoralogy, vol. 3（Kashiwa, Japan: The Institute of Moralogy, 2002）, 28 ─ 29.

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America5effect justice. I suggest that a Hiroikean approach to law─taking into account not
only the practice of slavery under cover of law but the many other violations of justice,such as abortion, which have found and continue to find justification in the black letterof legislation and regulation─is a way forward beyond the easy dichotomy of law andpractice under the current Western legal framework. The Other Slavery, in otherwords, points toward another kind of law, a moral law rooted not in proclamations, notin words at all, but in justice intuited and acted upon.
（Boston & New York: Houghton Mifflin Harcourt, 2016）