Scribd Logo
Upload

Welcome to Scribd!

  • Cutter

    Uploaded by

    klescobarh
    20 views11 pages
    Cutter

    Copyright

    © © All Rights Reserved

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    Cutter

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    20 views11 pages

    Cutter

    Uploaded by

    klescobarh
    Cutter

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 11
    Judicial Institutions in Nineteenth-Century Latin America Edited by Eduardo Zimmermann Henin ere ‘Sacoe SEC ‘Dad en Ae Institue of Latin American Studies ‘31 Tavistock Square, London WC1H 9HA ups sas. 2cukflapablit him "Ninetonth-Cenrury Latin Ameria Series ‘The Insiue’s Nineeenth-Contury Latin America series rests from the annual workshop on nineteent-century Latia-Amercan history eld atthe Tnsttte and is aimed at encouraging the study of various aspects of what has largely been a neglected pered inthe modern hsoriography ofthe region. ‘The General Editar of thie series is Eduardo Posaa-Carbo, Senior Lecter ia History atthe Ist of Latin American Stade, Pblications inthe Series No.1 Wars, Pates and Navonaliem: Essays on the Plccs and Society of Ninecendh-Centiry Latin America ‘Eduardo Posade- Carb (ed.)~ 1985 (ou of pine No.2 In Search of a New Order: Essays on the Police and Socieey of ‘inewendh Century Latin America Eduardo Pods. Carb (ed) 1098 No.8 Independence and Revolution in Spanith America: Perspectives and Problems ‘Anthony McFarlane and Eduardo Posada- Carb eds) 1999 No.A_ Judi asians in Ninetoenth- Century Latin America Eduardo Zimerman (ed) ~ 1999, [No.8 The Pali af Religion in an Age of Revival ‘Austen Ierigh (dl) = fortbeoming Insite of Latin American Stes School of Advanced Sty University of London 18BN 1900080303, Instat of Latin American Studien Universi of London, 199, BaF, 8007034 623 Contents, Acknowledgements % [Notes on Contributors a IwrmODUCTION Law, Justice and State-Bul ‘Century Latin America Eduardo Zimmermann 1 cuarren cuapren2 cuaerens cuartens “The Legal Cultire of Spanish America on the Eve of independence Charles R. Cutter 8 Colonial Lawyers; Republican Lawyers and the ‘Administration of Justice in Spanish America Victor M. Uribe Eo Privileged Justice? The Fuero Militar in Early [National Mexico Linda Arnold 49 From Justice of the Peace to Social War in Rio de Jenciro, 1824-1841 Thomas H. Holloway 6 Criminal Justice and State Formation In Early Ninetoenth-Century Buenos Aires (Osvaldo Barreneche 86 “The Education of Lawyers and Judges in ‘Argentina's Organization Nacional (1860-1880) Edvardo Zimmermann 104 cure ‘The Legal Culture of Spanish America on the Eve of Independence’ Charles R. Cuter “The centrepiece of Spain's sonal regime wa egal stem anchored in ‘Real European Eediton and modifed by New Work creumstances St red th basso tn i sda odering othe nen Mes goverment of fonge, an adminvaive appara where sre ery Sppoimted effi eercaed some sr of judical shorty. Mea sae he Bourbon monarchs astumed a more interventionist oe Sa ReY te Habsburgs colonial admininuaton, especially in maters REEL any inthe cighteenth-centry Hlopansc work held dear the aia aun that above ale, the prime funn of the crown was etl jase The legiimacy ascribed wo the legal sytem as mediator kine ds fendemental tothe colonial order, and subjects of the Sr dine theses snd fon ery gl ini tems through spel jursicions, prvleges and recon ‘oem a emit venus of negation beeen te various groups and JRUGAE who comprised ths hierarchic sodey. Over the courte of sar nurs of Spanish rule there developed inthe Inds legal ie “Ganian in opr but ditinavely American in form, which Stachel even te remote pars of empire Greating a legal culture in the Indies In any ofthe major cites of Spanish Ameria, of course, an intellect Commonty of juris gave erudite posh to this colonial legal culture ‘Thanks to de gerly establishment of universes, colleges and other inst- ante om pn ms he Lp tre of Mert Now in 0-110 Avo 1) 1 rien i pte a ewer oetogves FEE Seip creme Cnr y Sos ler pert yest ae nee xc omen pr cn oon a7 pol Bt a a es ns pees ama pn ‘Fahad 1142 Sao Can M MacLachan Sir Ei he Ne si lynne ad Sc Change ere, 1p. 8-8 Bee Co Nn oer nee 481809 100, 1 ‘The Legal Care on he Bre of ndependence ® tutions of higher learning, young men from welhplaced crcl famies fined acest tothe Gghtly controlled world of the juridical elit. In this mosphere, colonials drank in the intellectual and philosophical waditions that underly Hispanic law, they acquired the skills necessary to become ‘members ofthe judicial ete and they imparted this esoteric knowledge 10 rulsequent generations of clo jurists, By the seventeenth centary, ju ‘dilly trained native tone occupied important posdons ay ministers in ludiencas and ss extedricos i universes The exswence ofa cadre of troll nstructed crioo juris was an important dimension of the ealoial legal culture, fort helped legimise, and give resonance to, a New World ‘version of Spanish aw. Imbued withthe guiding principles of che Castian and fue commune traditions, eriallos brought these intellectual systems to ‘ear on circumstances they faced as Americans “Jost as important as an elite community of jurists in the creation of a colonial lege culture was the very approach employed by Spain in the ‘ministration ofits empire, for it wae largely juridical im nature. The primacy of law ar an instrument of politcal and social eontrl was evident om the earliest moments of Spain's New World endeavour, Indeed, the ‘tablishment in 1508 of the Audiencia of Santo Domingo set che tone for ® jurical cast to royal administration inthe Indies. ears ago, CH. Har- ing aply characterised the audiencia ache most important. insitation inthe government of the Spanish Indies’ precisely because it stood ‘atthe centre the coe, ofthe administrative system's As che colonial state devel ‘oped, New World audiencas played a much more conspicuous role and ‘weided considerably more power than ther peninsular counterparts, the ‘hancilerfas The pronounced juridical character of New World admin ‘eration is readily apparent a this upper echelon of government. Spanish administration, however, reled not only on well-trained jurists who terved a8 ofdores in the audinias, but also — and perhaps to an ‘ren greater extent — on a hort of other offials to whom the crown en ‘ranted withthe care and wellbeing of the monarchy. From the powerful ‘cero to the loi juez de aguas, network of mulicompetent personnel cxisted that ensured the presence of the crown throughout the Indies, Although most lacked formal legal wainin, these men invariably wieked the crowa’s vara de justi, and they adminisered their respective jure ‘ions largely through legal mechanisms. as magistrates in court, of 5 se ce eat az Js Rrsienion Grandin crs je Naess ‘ee eich, 0, wh cy ina he ery eden. On nti Te Senha be con rg 5 naa Ete ee adres lena (89) pp 278-000 ne cane (Citing. The Span pein erin en Yok 197), p 128. 10 Jui Icatons in Netenth Century Latin Ameria ‘cours, they prosecuted criminal activity, resolved confict among dssate- fied pares and maintained socal order. I attending to other responsi- bites, to, they uilised juridical forms and models. Indeed, documents that we today might consider to be eseenially administrative reports yp cally assumed the format ofa legal proceeding — one need only think of the’ asic administrative instruments of the colonial period, the uo or the dieamen. In sum, the essence, the very form of Spanish colonial ad ministration helped create a colonial legal culture — that i, certain shared Values, eneral knowledge and expectations about the law — that touched all svat of socety inal pars ofthe Indie. In this pee, T wish to focus om this more generalised and quotidian level ofthe colonial legal cute. How did ordinary colonial subjects un- derstand and approach the law tha held sway in che Indies, che legal cor- pus known 25 derecho indiano? How did derecho indiano function on 3 aly bass? By examining the construction and spirit of derecho indiana, wwe can appreciate how this fluid and malleable legeleystem met both the needs of the crown and the expecations of local subjects The construction of derecho indiano Init fils sense, derecho indiano encompassed all lw that applied tothe [New Worl, and it temmed from a variety of soures, These can be catego: ried into two major groupings — one of peninsular provenance, the other of "New World origin. Inthe Sst group was legiation that rested upon the Car- Skin normative system as established inthe Ordenamiento de Akal (1848) and relied inthe Leyes de Toro (1808), Nueva Reaopilacion de Cally (0867) and Novia Reeoplscion de Case (1805). Tis juridical ordering spre preeminence w royal legiation, and it had_ general application throughout the realm. Beneath royal laws cime the lal feos or municipal ‘ares to which judges were to reser ifno specific royal aw applied. On the ‘hirer, applicable only inthe absence of royal law or municipal fer, sod {he Site arias a thirteenth-oentury text attributed to Alfonso X of Castle ‘har sustained the jordical notions of Roman and canon law. I was through this egtimisaon ofthe Farias that cerain aspeas of European ius com _mune— especialy procedural elements — became fixed in Castilian lav Because the Indies were the patrimony of the crown of Castle, the Castilian normative system served ss the general model forthe New World and, initaly, af Casiian law had automatic force inthe Indies. A major turning point in the creation of discrete body of derecho indiano oc- ‘curred in 1614, however, when, in recogeition of New World dsincsve- ness Pip IIT determined chat only laws formulated specially forthe 5 msc Tay Valo, nul de sr ce rc plo a 18,5. '26°7 One cms rounding ona dle he Pre oep BP AE The Legal Cute onthe Bee of Independence u Indies would ave force there2 The appearance of he Recon de ‘nda (180) signalled the consoldation of paris legl ordering or dhe ealonieseoblematicofs dine: American sent i conrit to la that emanated fom the pennala were tote of New World origin, what some have termed ‘derecho dadiano cro’ Royce and inatntons — viceroy, audenday, governor, coreg (ores and alates mayores iued much ofthis leglaton, but wes Sho tad stand in shaping tis ulramarine dimension of derecho indiana. pedal prominent war the acy of municipal exiles regulating toe urban afi, Indigenous lam, to, carried weight ina supplemental (Gyn, a long si hd oe cont wth royal legiaton oF European fon of region’ Aste elnialpriod unfolded and at mbt and royal administators eased algal order tot tcr world, the mum fers of lava specie tothe indies grew impresivy. By the cghtecnth century, doredio indiana had scqtedwchaacer quite din to at of Garon fw While these two sce of written law —Casilan and Toa in tvigin served asthe foundation for derecho indo, tere wa much ‘tore ta derecho indano tan mere legato. Dept fandamental role heping ad ding sey, Spanish cola lav bas remsoedsrseting o's syn to mer cir. Pe fp becuse tthe gest cronlopal an sso tance between turelres and the aniguo réginen, modern Nsorans have often, ined Sth lneteendyceniy parses and foreign cher n denouncing he Cobol egal sym. fal administration ial fen depied as pow: eros, rani array andl corrupt* More afl scrutiny of he Bi torial refrd eves an inate legal yt hat proved tobe adaptable to the peailar needs ofthe diverse regions of empire Lol modieaon of igi lw derecho ugar" waa npn etre of hi exiy tn consttted euiate xprenion of los goreraanc. Temas y Vato, aml pp $5040, * Forel Abdo avg Manual de Air dl derecho aren Buenos A toring tom ech Cl, Meg sn recs ak o(Senoge, 172 po * eam Kan Hr of at eri son) pp 101-2 Chars Gon Spina “aren Yr 19 10 Saney | Seman tr Sun, The Gt erage of ‘arma le Yr, 1070, 1 San cap neem cen we ny Seta Te Go Meta iy ey Yo wd x 0, 3 Emme Mes ra Cee aa rt A ‘meacttaotwactedy Ww WH bos Gye Node and erp ‘itp: in 18). 6 rh ne aie ear ‘Siting wie te of he on So a DoJ Lana Law and Comma onthe Nea Catteni an dagen Expr sbd te Ca of Leal Tn, eet on, Th peal p52 12 Judit Incatonsin Nineteenth Coury Latin Amerie No doubt the misguided view of Spanish colonial law —and the conse- quent allure to recognize derecho vulgar — stems not only fom eultral distance, but also, for Englsh-speakers, fom language problems. In truth, there exists no exact English equivalent for the Castlan word “derecho, though the word justice’ might come dose Roman law, which great in- ‘luenoed Spanish aw ofthe early modern period, made a ear dtinction bbenveen fas that which i just — and lex — a duly promulgated norm, ‘usualy written, So, to, did the various Iberian legal systems hough the vernacular derecho came to replace is)" Heirs to Castian institutions, juris in the New World approached the ask of making and interpreting Taw in much the same way a their peninsular counterparts" The lewado ‘community certainly distinguished between ‘ey’ and “derecho. So, 100, ‘id the general population. One rarely argued thatthe “ley was on his oF her sie; instead & gant approached the cout seeking ane’ justice, or “au derecho’ Joris and community alike conceived of Spanish colonial lnw inthis wider sense. People expected their proper ‘derecho, and mage inraes endeavoured "to give to each his own’ In general terms colonial magistrates were to exercise their experience, knowledge and prudence in meting out justice” More specie, they drew ffon system that sought justice somewhere in the convergence of ‘writen law, doctring (dhe opinions of juris), custom and equidad (a Communal defined sense of fairness). Under the rubric of written lav fone must inciude not ony true Jeyes rales (iechnically only the Castilian Cortes could inate these), bu also ocher writin statutes that had the ef in Ne Ponancing Dona a the Spanish and EaghsLngunges New Yor ao {po 180), Vlas ties er age am, "Se hit Gra Call, Mua ohare dr ano 0 eae, 198, eLlogp, ll-tand vb 8 pp. a0 ‘Flin Spay fr the nish ok reenter Cain Inu de Cro wl sgt company betes theo yes Se rosa, ‘apn de nds 4218 ns nar vn, 31.2. For's doer ny fs learns Sen Lire derecho indian re arene den can 7 Pope i yrs a bo apt at 8) py 98 ‘Benn Sah Aref New Mec (SAND 100, Mar Mara. Las pes 30 spn May ‘hen etc in aprochng he at fjords perc a the Par Chron ered wal tthe nintcch cnet. nae 3.90 fr example tt [rigs beac tues fins Es maa cin E que oan eabdr,prs oop lo ete nor eee te an mann Ee eld sud mi be eof i he mre crow eine uo geal nile: Parcay important srkn naling he componcn of Src nro are ‘Vane Tot Annie a nln de ky co Asta Hoans dre nage VCE VII, Aner de rola pry oa we 098), Pp. I-29 ad Aberga Le ‘ag comp el dye sean ces dh Seu ei de Boe es (TBC item ce Vi! Congo del Inst Vrmcon de ri de Deco ‘nde Revs Choa de toad! techs 6), po, The Legal Gukure onthe Bre of Independence » fective force of royal law — pragidsicas, mandamientes de gobierno, pro- slones,ofduls, drdenes,cartas, sobrecarias and s forth. Docrina en Compatsed the written opinions ofboth national and international jurists Who commented not only on Roman and canon law, but also on royal Tew" Local rage and long-standing practice also earied the weight of authority under the Hispanic system, This respect for local partcularism, ‘even when contra legem, has been perhaps the mos overlooked dimen- Son ofthe Spanish colonial legal ester.” Finally, judidal dedsions were to be equitable solutions that not only satisfied the aggrieved party, but tbo considered the welleing and harmony ofthe community. Ima srai- fied eighteenth-century colonial society, ideas about equty might well dit fer from ours, Yet a clearly identifiable ray of distributive justice served as 2 gulding light for colonial magistrates to give to each his own’ Keeping, these various elements of derecho in mind, magistrates were to consider ‘he merits of each distinc case and make a decision cordingly.” Because ofthis esisc approach, the precise formula fr meting out jue sce might change, i ever so sigh, with every cae The colonial magistrate, ‘wether learned aidar ora local alae exercised a great deal of personal ‘serdon in the judicial proces, especialy in pronouncing sentenee. Known ts arbi jd, or jada wl, his feature of these figures asthe key to the xiii of Spanish eclonial legal administration. The ambiguity of ju fora filler went fhe range and yee of ae Alon Gar Gal, a ey (pods 22h pp 16-25 : (Pg YporT cep ua dacroe deo mores oe nde echo cine int Rann de tl Derecho 71980) pp. 308. "pat werk in en de nth erp by Vino Tay Among‘ comune ons cts dl depo nda en age VU) UIT ease de aber ‘iif dela Mata Coy Toco 1 Conroe! Int nema de ria de Det Inne eds pe. 19-B or he Aer true ade pan Sets hr mea inp ian ran [Bp Sun and Menton Land Gran an th (Maat, Kans), Fut Maken ght‘ Monean Lan Grn The Lage achgounyChare Lag a Nh Lind ar nd Cs pi The aon th presi ue war ars noo eo appears exen cn the orien ener of New Spam sepenytoghout he Hip wei of eae ‘nc SS 16 cut chon 2A pet 7, Ieecanmcns nsec E-cguny qe fon fg a ie Sat ao tera que [Eve deren sen Jou Js) Cai, Irae atin de aban bogs 7 eerie fg intros Mu) py a saw cone y ‘upset ro ue Jae Mart Alec, Iti de “rth lc hata Sodas en Yok, 1: ae ep Meo Cy,EE, pi edn re ema ego cenca AS cng. coco del deresio eg on uae pp. 30-82 M4 Judit tnstatons in Nineteenth Conary Latin America ical authority perhaps bothers modern jurists and scholars more than their colonial counterparts, ho understood the purpas of arbi judicial Targely misinterpreted as mere whimy of eapriiousnes, arbitia ju afallowed Spanish law to be much more than the mechanical aplication ‘of judicial prescriptions (dhe tend in Latin American and Spanish law ‘during the nineteenth century was towards codification that sought in large measure to eliminate the discredonary powers of the judiciary)" ‘Through this device, law became a living, organic entsy chat the Toeal population — ctzens and administrators alike — might mould eo meet Situations peculiar wo the region. This mechanism, at well a8 others, em Powered Spanish subjecs to modify legiaton that they deemed tobe un ‘easonabl, unjust or haraful to the community Locale eften payed & significant rlein shaping the egal cltue ofa particular region Derecho indiano in action Given the range of possiilies, upon which ofthe various strands of dare. ‘oho indiano did colonial magistrates rely? Certainly, the odor who sat on lone ofthe thirteen late-colonil audiendss had a much richer repertoire — ‘extally and ineecally — chan di a magistrate atthe lca level. Highly trained professionals invoked the authority of all pertinent sources of dere- ‘ho indiano — law, docrina, custom and equidad — and drew from the Sources that semed to bes fit a particular cate” It shouldbe noted that we an never be sure of the exact judicial reasoning inthe eed, because the Casilian and, by extension, eclonial legal systems forbade magistrates fram 5 Ser Li deve nda y ria eropen, pp. 61-19 cn he acon [rosin pin, Torey Valent Mana pp 6-098 Ei a aor eon mab spd, wh sd ‘able, queen a caxo permits, que haviedo Tapar de derecho, ypicon, €inerpo- ‘ec per que, y como dab, pan stvocer en cope ee aa ‘dfn 2127 Nuersrecpian€ 143; Novia epee 18 0- 51. On athe nechins or sring esto ne Vier Fu say “Se ob Gu pra nse cpl Eo septate at sen ete A tie Hina arta Earn v 8 158) pp. 170 On he a ot he a ‘exon Lug concep dl nett Veet thei sigh an Be {fond in Cac aa, aaa de rs ce derecho ca 2 pp 1o-& the heh de Roe Ars ne ncapca eur ars tangle shell cpr dl Se Ole cate marcy ie be Can ‘na iar tune te el endo Mori Mar lt ngs oon ‘Mean ty jun de Tours vod inte Ris aoa ad TE "er segacone frida go ied D Joan Aneied Tongue Aton Se [i wna de st ere Epa inne aes cto nde ea ee Chinen na delgado, y dion can, 28 The Legal Cutare onthe Bve o Independence 8 ‘suing @ writen explanation (sentenciz fundads) oftheir decision” From. ll evidence, however, these learned judges remained faithful to wedtional modes of procedure and mainained their prerogative of arbi judi! ‘renin te ciate of enlightened despot and increasing regal contrl in the late eighteenth and early nineteenth centuries" In a sense they refused to become mere judidal bureaucrats who applied the writen law and in Sed, nstead, on remaining tre judges who dispensed justice. ‘While magistrates in the busy centres of empire had 2 fall arsenal of tex ‘ool and inatuonalresuoes a thet disposi, those on the peripheries dd pot Economies that could not support centres of learning, great Ubrares and mules of judicial fnetonares simply did without In ft, moseprovines {of New Spain and other vieroyalis made do without afl staffed jucic- lay” Honed to the esental, jodial administration in these extensive mar- fGnal areas nevertheless squared unmistakably wit che Spanish legal adn, And in these peripheral mes we can perhaps beter appreciate the tremendous siength and fealty of the Hispanie legal culture Tn the fo lowing discussion, the primary focus is on New Mexico and Texas, two prow incr in dhe far north Of New Spain, but my subsequent research on judi ‘ministration in ther regions within the jurisdicion ofthe Auda de ‘Guadalajara seems to confirm a generalised approach to legal alli. ‘Saeamined and smplied, nearly all phases of the judial process in northern New Spain lay inthe hands of local magistrates, due mest important tt whom was the provincal governor. For the mst prt, fonter governors were proven miliary Sgures a prime aliibute in 2 region on chronic mil tary alert Able and educated they may have been, but no evidence suggests thatthe governors of New Mexico or Teaas had any formal instruction in tw hor in contrast o ther areas, did they enjoy ready aces oa legal adviser (aver letrado,® Other lca magistrates (aealdes mayores or akaldes or ‘rig, drat from the dian population, had even les Sha paps omc, pr pen en Ch ig IXY) ac ease epee Sa cea leno ae = "ep Scones ante se eta is Bh Ob el he Shee Maris nim bunch marten se resent apache sence p edge Dae ba tea Sion th Serer minch scanned ae hr ee sii neftes empunart eames psa ‘pale the Sore ene! oly Alt Legh me Tae Sep 1a cnuine cians es aa tee aoe ae rea oy females pres Che Do Shute me Ga Cary 1s mga ac me Nae Ets Bleue de Nueve Mei, nar Nea de Hier el Dee 4 (12) 29-98, Pat actanr ay ice et crore We Gey en ee prepa iS went poe 10 Julians in Nineteenth Centar Latin America Not surprisingly, magistrates in northern New Spain — and, fr that mat ter, in many other pars of the empire — approached legal administration ‘ith les sophistication than ther learned urban counterparty” The scholatly crudtion and clegant Lain employed by praciioners of the mas iis surely were lot on many a fonder magisuate Thus, drna usualy played ‘leser ol in local jd, but was nt entirely absent Wiile some have argued or insinuated that local magistrates were oblivious to the fundamental legal texts, doser examination reveals the fervor of these asertions.* There were many such texts in dreulation in ‘orthern New Spain that canbe dasified a egal commentary or docrina (hough admiucdly writen in Castlian, rather than Latin and, hence, ar- sgeted ata les refined judiciary), Habeburgeera tes such as Poe ld fanz by Juan Solérzano Pereira, Curis phillppicr by Juan de Hevia Bolafies, nstruccién poles y pricica judicial by Alonso de Viladieg, standard fare in any colonial judicial library, also found their way to northern New Spain. $0, oo, did the works of later, more practal- ‘minded jurists, who shied away ftom using Latin and who focused more fn royal law than om Roman and canon law One sich work, Instroccin Jura deeseribanes, bogus, jceesordinarios de jagadosinferores by Jost Juan y Col6n, curned up in both New Mexico and Texas in the ate eighteenth and carly ninewenth centuries™ While admittedly sparse, documentary evidence demonstrates the existence and use of these wxts in northern New Spain. More striking sil, tigans on ocasion invoked the ‘panic Banas he, 18), pp 9-8. Aough the prominent ofthe aso Ko ‘atin eigen cotry e goleronsta ch Bg an ee ae 5 aie eal, ger salad er ig obo ‘ery cnn eth te afi se Jn erly al nara de ater ‘rs gu tho gs! yf acct ci 5. ‘Tete Vo Rey, Tr erin rd pas ey uh a (Perec pa oa, WE ep Nee, ps 4 indo alone nn oto ns Mat Simona ps Cornet ‘in New Men ue, 160 ps ned re ey, age wad oe ‘one est Cis rent p28, wh cas Meta w Beos one Hpac Pontes p. Te Foran eened ema on co ‘oi jal ogaphy se Jer Malin Btls Es eres rex sp de ‘Sp de Oro en Noe fiat te Cy, 18) Us dcusons fhe eran ‘er of opel wing re foo rave Lr eet ao ye at ‘Sropent pp 0-9 and Took Valo E!doeco feel pp 8-1 {nb lef wr in ani. o, Su 8 eet of tat of ane! Dgtn vena’ 25 Sept 1, as i Ca de reo ‘Governor Jota de Rel Nena there one th rm ihn dae Ashe Se Cotas Réel Eade Jes (hath, Cran 5-8-102,ogun del Re Ate to Scores Se aR aden [de Canta Saa uly 1H Tn ny nel elena ew of fon Jour Calie, bower batt thea emp ya Cl den aor Ie depts nd i, The Legal Cukaré onthe Bre of ladependence ” authority ofthe doctores in their arguments Contary to the conven {dona wew of universal judicial ignorance, some frontier magistrates di, indeed, consider doctriain their judgements ‘Writen law, however, figured more prominently than doctrine in the ‘onstruction of derecho indiana Nearly every territorial juradiction of the Spanish empire had at its dispotal the fundamental compilations of laws and ordinances — the Recypilcién de Indis, Nueva Recopilacion de (Casl, Novisina Recopiacion, Ordenanaas de Tatendenes and $0 forth [Northern New Spain was no excepdion*™ Contemporary cour proceedings indlude fequent allusions to ‘these laws ofthe Indies wo ‘the royal lave ‘or less equentl, 1 specific piece of legislation ® This evidence suggests fot only that magistrates (and ltigans) were avare ofthese basi juridical text, but aio that they consulted them. In addition, one must keep in fnind the neverending stream of edu, orders and decrees sent. all, Jutedictons of New Spain. Since pubic proclamation of new legislation ‘war one of his function, the alclde certainly would be well informed on. many affairs, incuding judicial matters. Simlrly, local magistrates were Siar wit he various andor de fen gobiero, ued period by either the cabildo or the provincial governor. ‘The acces ory of ten lw entred that Clonal sagaras consid ‘when making thir judicial decisions. Astertions that these officials were Unaware of writen laws are illfounded. ‘While dectrina ad writen aw consid important bases fr legal practice in colonial Spanish America, cxzom and equidad loom as perhaps the most an cample of we ater sophia none of wha ome deco appear ‘SiNiAG,etoa a Diego Tere Sarton Ted Antonio de Ss, Monel Ve {Ein ad Nino! Mri, taal ely 0 mec emary, These men Srged ht thr pion we spp yy, ahora dein pinion, eh {Eich cd some, ono Thy eo Gel Joa Slee Recs De dara Ibe bosh caper an ne. : Lunar, Spt elecnnn. Meigs "aw Bos on he Hope Frente pa See ‘or Bator arn Prac. Sc "oa Ne Mes T6010 ew ‘est ior! Review ul 96) pp. 2670, and by he tne sue“ lima New Meso ras, 198106, Ne Mes Mra! Reve vl 18 Tot, be, beac eesich hm cm ove en rey ane apart {toate Steed eco Raln de Gem 81-9 Nr el ‘pon lara ie hr de ana a ey 0 [nmune dda haan dap era de Zinder Mone de Cand on ca ‘Ma 10s inn Cons at Yate io ate Fo aq ‘Amo Pov Vad aaa et Pode Nan de ur og. 25 Jone? aga TiS: Aco Cone cde acd soy (ACNM) Proving nea 3, exp 1, Ao C10 Cut mia heh pr tweed Ma Poa cnt Pape Se iewen ce pict My TS. An aon so Ae 2 of he Como 120 EISir he, Oetschuer. Jong Pie 12 18 Judit Insatons in Nnetoent Cota tin meri ital elements of derecho indano and surely served a the wellpring of dar- ‘oho vulgar AS noted ear, custom was the vehide by which local enties throughout the empire might modify or reshape generalised judicial practice ‘And although the conventional view is hat of an aboluist imperial Spain, the ‘sawn never imposed complete control Indeed, a surprising degree of se {government existed at local levels during the angguo regimen. “Custom — thats reasonable and just activity that over ime aires le- sl sancion — found expresion in various ways. One obvious and impor- {ant form of judicial custom resulted from time-honoured local practice or tusge?" Throughout the Indies, legal experts — some of whom flint the regal camp—~ consistently recognised the legacy of custom as 2 source for colonial law Not only the clits, however, but aso the lester light of ‘clonial society had hand in establishing and defining customary practice. ‘While imperial administrators and che ‘beuer sorts’ of colonists may have teen guardians ofthe dominant culture, the constant negotiation between various rata created, even in the formal setting ofthe lav, what might be termed the consensual hegemony of Spanish rule For example, ike in- figenous subjects throughout the empire, the pueblo indians learned to ply the legal game in admirable fashion. The continual acy in the fourtroom led to the incorporation of certain customary rights into the legal tlkure of the province, The so-called ‘pueblo league’ isthe prime example For years scholars and jorsts have debated the substantive bas ofthis tothe puch of New Mexico of ne league from a central point — ‘often the vilage church — in each ofthe cardinal recon a measurement ‘ot cornmon to all of New Spain. In central Mexico, the teritoial norm for Indian peter was six hundred vara (Ivara = 0886 metres}, Indian vllages in moat of Nueva Gaia received one-half league (1 Hague = 4,179.5 metres) in each direcson2” Why and when indigenous wilages in New Mexico were ‘ts granted a ful league remsins hay. Is clear, howeves, tha by the early 2S ee ite mete 5 Se ng cnn pc ch eat of gs de cs. ‘and pn be eof orn oa pbs ae deri leo tovds ducati ty bye fr deel ported er argent ah appese © ‘Soya er dt ol loging pu So Bg, Chara So ‘Brn Mens Te Da hana, 76-10, 1098 po 28-4 Fo mn concn genom on apo Ano amar cal enya ‘ur kagome ani ped ht dominant enter or enor lowe en re lcd als gg pon nena Cams Pale nd Clea They try ih, Earns a ek (al hopemany code. Jaton Lars -The Cotep of Cala Hegemony. Prolene wa For Arran Hosa Resin va 80 ane 188), pp. 8 md baa an Soperartuein Mas CataralTheny. New Ef Renew 1500 November Deer 1979, pp. 16 oes ns On, gi dpi “The Legal Core on the Bre of independence 9 cighteenth century, colonial society in New Mexico recogised the legitimacy Of these tertoral boundaries. While Spanish conceptions of munipal ‘oundaries may have lid the foundations for this measurement, t was the repeited picbloindsence that Spaniards ive upto de ‘rules ofthe game’ that help inscribe ths territorial dimension as the norm ia New Mexico" {in 1704, fr insanee, two Hispanic setders petioned for farmland along the Tio Grande near San Felipe pueblo Sigalcanl, the pettioners argued tht the land in question lay ouside the pueblo league and thus shou be aval thle for setdement™” Similarly, during the decade ofthe 1780s, the natives of both Santa Clara and San Udefoneo pucblor found Ghemseves in Higaton sith encroaching Hispanic vecins The succesful legal swatgy of the natives, ested om pushing Spanish authoriies to refi the guarantce ofa fall league" Like indigenous subjects elsewhere in the Spanish colonial world, then, the pueblorsed the legal system asa venve fr negotiation and thereby Ile in some way to establish de egal norms ofthe colon’ ‘Another sgnfcant, though more subde, form of judicial custom lay in the way that fonder magistrates acquired and passed on their judicial ex pertie. In an atea that lacked formal eduction of any kind, transmission Of judicial Knowledge occurred in an informal manner They learned by Going. Having gained an elementary education in the home, the sons of the fotierIterai began ther juridical formation in erly adulthood in a mos pracical way. Felipe Tafoya, for example, served in various offical {Gpsies in New Mexico and gained considerable experience in legal af fats, cerving in later years ax both a magistrate and a aselfstyed legal representative (procuradon), Tafoya and his cohort of loca public servants formed the backbone of provincial administration, and they proved to be an indispensable souree for staffing the king's judidary.® Ds ly iC Ger in ig at us fale [Bet pci dina: cy Eiri ep 38 ~ ESN te Pope de Xpal Raa or Yada eS He 6 Feary 1704 The [pti ou denied by Coveror Dig de Var T'SANW Ela, hv Sepun por low Yio det Pode Vd con os le de Join Laan Gomes del Cnt Rear 176, SANM 1, [EShepdtst de Sai Clry Sn idee wo Governor Jon But de Am, Santa Fe, ny 196 Se so, Myrtle Jin Spi Land Canin he Tew Ae New ens ree ak ie 12), pp. 8-3 PTS Comin Fs de Co dnd mands dev aco ‘Stats en nde lp vesumchwarpo de oo 6 Sepener 1 SAM 1 eS re a AN 188, en wr Sen OdakE oneness Ptano Spina Sites onthe Nether Fron ew Sip (Sonn, mae hp. 857 a 389 pint the abe hpi nls {Tur and New Mano tlhe cna he po an epeing ee ieent ‘Suns Nec ric tone ons ger arg ‘Star moron Fg Tle se Ce, Lge iter a Norn New Spin, 8-8 20 ict Inettons in Ninetent Century Latin Ameri “These provincialy-tained magistrates had in ther repertoires the accu- mulated judicial experte and. practice of previous generations. The suthorityof legal instruments such as will and tesaments depended on frie compliance with prescribed formulas And, when dealing with this derecho prvado, Frontier magistrates took care to retain the solemnity of language and form that such documents required. The sphere of derecho ‘plbice, however, proved tobe much more Hid. Inthe vast peripheries of ‘New Spain, the own permiued local magistrates to resort to simplified ‘inal and cil procedure, relying mainly on known truth and good faith lepe. The socaled juico sumaro, which dispensed with the solemities ofthe lw, thus became the usual procedural form in much of the colonial ‘world.© In tar, the cumulative judical sje ofa local magistracy — al ‘ways tempered, of course, by efown administrators — became the estab- Tshed method for dispensing justice. "Juste custom formed crucial ingredient in the legal culture of New ‘Spi, so too did che notion of equidad forthe common good. Because af the non-adversarial nature ofthe legal system, the primary alm ofthe ju- diary was to provide justice, not to determine courtroom winners and losers In a corporat world where unbridled individualism was not a virtue, the ideal of community wellbeing took precedence over personal tain, Magistrates consistently exerdsed their arbizio judicial vo push for ‘ompromise and harmony between contending parties — solutions that, ‘implicily, conformed to community expectations of ines. ‘Consider the case of Antonio de Cardenas, a New Mexican who had worked for Juan Lujin ffom 1728 to 1752 ata slay of six pesos 4 month ‘When the latter died, Cirdenas sought to collet an unspected amount back pay from the heirs of Lujén, Unsucocsfal in this endeavo ‘turned fo the provincial governor, Gervaio Gruzat y Géngora, as ‘padre de pobreé to rectify the station, The judicial decision of Cruzat i note- ‘worthy. After reviewing the paperwork, che governor observed that no- ‘where in the expediente was there 2 contrac stipulating the terms of ‘Employment. By law, the plansif had no case. Nevertheless, Governor CChuzat y Géngora ordered the heirs to pay Cirdenas.™ Although not stated explicit, equidad surely Sgured in thie deon. que fom ARAG Ge 21-15-8964, cmd del pode Cah, £85. Aen tego Meco Cyan in Guna ce ac rows rounc permis ie ‘pl orm thmoghouc New Spm Sx Catr Lz mags capt For {attr ee Marl Reg Cons sd Tas Lm," amin en Seen a nn ssp SB *Onthe oer ora na Bento kl cre dept er ‘lata Poo Cars Par ade ge ‘TSanar ison ny demands psa Anon de cee ia hres de Joan nan bebe targa cen joe Speier The Legs Catron the Br of Independence a Did magistrates in New Spain's far north fully appreciate the role of cquidad in the construction of derecho indianc? Apparently some did. In ‘deciding a case that invalved ‘indecorous language’ for example, Gover- nor Joaquln Codallos y Rabal observed that the defendant had used ‘none of te five [words] deemed to be gravely offensive in lw. Codallosnever- theless specifically invoked equidad (ussando de eguidac) and condemned the man to pay court cos of en pesos. ‘Aply iustating the emphasis on community harmony isan inddent that curred at Chama, New Mexico, in 1745. Juan Antonio Salazar and Manvel Valerio, neighbours who aso happened tobe relative, had come to a disagreement over that most precious of resoures, wate. After consider ing the ater, the provincial governor ordered his leutenant to urge the two men t meet public to sete their dispute. Both would have aright 10 ‘he water. Lawsults such as this, reasoned the magistrate, were not only costly but they created ‘other pernicious consequences, which between rli- tives and neighbours are scandalous. For the sake of community harmony, the governor urged the two to pardon one another and to reach an amica™ ble agreement that neither would break ‘in deed oF in word, now ot for- ver And #0 they did. The litigant ‘embraced one another, and they greed on the disputed matter in mest admirable fashion" "Amagitrate’s concern for cammunity harmony might be found not cay in ‘rg concllason a various sages ofa legal dispute, bu also at the ine of pronouncing Sentence. The aio judi exercised by local oficial at this ‘ita junctre offen reflected the values of te Hispanic community. Ofend- fs who disrupted community anguiity and who oversepped the Bounds of ‘zcepable behaviour might find themselves exuded ffom the group. In ‘Teas New Mein, and throughout the Hispanic world, crimes such a adu- tery oF fornication ten resulted in banishment” In San Antonio, for example, Juan Joué Vergara — twenty.ve years of age, unmarved, “spat! — and ‘Mara Carta had carrie onan ict relaorhip for years. Although una "ed, dhe union had produced ‘one or two’ chldren and had continued despite official warrings As ostodian of puble morality, alee ordinaro José de a Santa took t upon himself w proceed judially agains the wayward coupe ‘Mier determining hat this ‘wanda? armed the community, Alcalde Sata sentenced Vergara tobe banished fortwo year from within forty leagues ofthe ann 68, ogg do Bus Ake mys yp Gara dl Pao de Yemery ‘sft de Caes nie Vc Ss Rg de Aber Sv atc primo con ple deen on emu se pores 1 [ech cdg tthe Note Bop Gath 25) pce rds ee (eS moi i to en sconce eV Sr Er Caen erie gH ee {Pamchor dean cnt ma gue aenoo nee sepeis 1 ng st np Ja ey a asi en 22 Judi nitatons in Nineteeth-Contary Latin America vile, The woman recived not the ‘punishment sbe deserved, but only a tearing becaise a thesealde noted, her husband was about to renumnto San [Antonio afer a elve-year absence. Inthe future te woman wast liven ap- propriate ecason and modesty’ and to mainin a good reputation foreed rooelaion with a seemingly negligent husband may eppear odd to owen ‘lvcentry sensible, bu St the patriarchal ideal of proper order in the family that cghtenth-cenry tjano shared withthe Hispanic world, ‘Considerable evidence indkeates that colonial subjets not only expected authorities to take appropriate action to stop improper behavior, bt aso that community members themselves often berame direct agents ofthe stem by requesting spedic punishments or judi soluons. The partspation of Dpueble gous has been indicated above, and other examples abound. In {ra for instance, the brothers and uncles of Ana Mara Trinidad Games ap- peated before Governor Domingo Cabello requesting that he impede the Ffminene mariage ofthe woman toa mision Indian. Akbough the woman teas ult dhe men Beleved that a union with Urbano Ynojsa would te- ect pooryon dhe ene family, ‘The plaints must have reagnisd the Hke- linood hat Cabell would maintain the existing social barriers that hindered racial intermarriage, Indeed, Cabello seemed to display sympathy forthe po- tential injury to one's presige that such a social mismatch might yield. Before 2 judicial decision, however, the Cames Hern‘ndez dan dropped the suit tren Ynojon dered formally that he wished to marry an Indian woman From the mission rather than Ana Maria Trinidad Games. In this particular ‘ase, the visions of paviarchy and monarchy coincided, and the system ‘worked to uphold the prescribed social orde.* "To maintain harmony, the law had to provide not only for elites but aso for subordinate members of sory. They too, held certain expect tions ofthe egal system. Seeking redress fr their grievances, for example, two geatzaa servants complained in 1763 of mistreatment to New Mexico Governor ‘Tomis Véler Cachupia.* The judical investigation revealed that their Spanish masters had not only neglected to provide properly for the ewe women bot also had filed to istrict them in the Christan fth. Furthermore, one of the servants had been raped while in the fields prc 16 pomp pin fo Vegan rele ede nobel Cues oe hae Epi geumere! New Mea were ingens pepo ayo Phy ri io tence re bop by Spm sce snd ree sy ‘Tape, te any pear eae Hoe by he en te SEES fod impor omni est nthe for of he prove. Set Pep pas Chen Centar Alon Or) aoa Nee Amen fe a ttaingen, D073 p. 66-20 fora tet acme of lea he PRE Eta apm Te Cntr agree Spr New en RPh Fier oe ender) Sp ae ean ea ‘funk Ripa nd St rat Pam Coma Oye. 3D ‘The Legal Caltrcon the Eve of Independence = tending sheep (a tak deemed unsuitable for women, In his decision, the rat once ameliorated the plight of the servants and reminded the ‘Fetes ofthe responses that accompanied ther station. He removed the two Servants from under the cae of their negligent masters and placed the women in homes ‘where they might be instructed in the Christan Goctrine and customs and be fed and clothed through household chores Sppropriate to thee sex” Tor Antonia Lusgardia Hernndes, an unmarried “muta Ure! Texas {Governor Manvel de Sandoval embodied the judial ides of ‘protccén de {os pobresand in Y738 she appealed to him forthe return of ber young 0, gnaco. Eight or nine years previously, explained Heraznder, she had en. ‘ered the household of Miguel Nifez Morilo a 2 servant She had lt, how fer, beause of her masey’s mistreatment and negligence in dothing her propel taking with her evo infans — ‘one that I brought ino the house of Said don Miguel, the other that I gave birth to in his house. Now, she

    You might also like