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(Hapsburg) Law and (Bourbon) Order: State Authority, Popular Unrest, and the Criminal Justice System in Bourbon Mexico City*

Published online by Cambridge University Press:  11 December 2015

Michael C. Scardaville
Michael C. Scardaville*
Affiliation:
University of South Carolina, Columbia, South Carolina
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Extract

The relative absence of riots in colonial Mexico City is an intriguing phenomenon which has attracted the recent attention of scholars interested in questions of social stability and conflict. While the Mexican countryside experienced over 130 rebellions in the eighteenth and early nineteenth centuries, the cities by comparison remained calm. The most cogent explanation of urban lower class passivity during the late colonial period has been formulated by Eric Van Young, who suggests that a number of short- and long-term social and economic forces converged to keep the cities, most notably Mexico City, relatively quiet during the wars for independence. Among those he noted were the existence of urban social service and food-distribution institutions, the presence of security forces, an atomized and fluid social order, the lack of traditional communal rights to defend, and weak organizational means to focus discontent.

Type
Research Article
Information
The Americas , Volume 50 , Issue 4 , April 1994 , pp. 501 - 525
Copyright
Copyright © Academy of American Franciscan History 1994

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Footnotes

*

The author wishes to thank Elaine Lacy, Joan Meznar, Kenneth Gouwens, Lawrence Glickman, and the many participants of the Carolinas-Virginias Seminar on Colonial Latin American History for their comments on an earlier version of this essay.

References

1 Coatsworth, John H. “Patterns of Rural Rebellion in Latin America: Mexico in Comparative Perspective,” in Riot, Rebellion, and Revolution: Rural Social Conflict in Mexico, ed. Katz, Friedrich (Princeton: Princeton University Press, 1988), pp. 24,Google Scholar 57; Knight, Alan “The Peculiarities of Mexican History: Mexico Compared to Latin America, 1821–1992,” Journal of Latin American Studies, 24 (Suppl. 1992): 105,CrossRefGoogle Scholar n. 31; Jaime, Rodríguez O., ed., Patterns of Contention in Mexican History (Wilmington, DE:, Scholarly Resources, 1992).Google Scholar

2 Young, Eric Van “Islands in the Storm: Quiet Cities and Violent Countrysides in the Mexican Independence Era,” Past & Present, 118 (1988): 130–155.CrossRefGoogle Scholar

3 Van Young admittedly focuses on the period between 1810 and 1821 when the colonial authorities undertook more extensive repressive measures to contain the likelihood of lower-class insurrection in Mexico City.

4 The failure of the food distribution system and inadequacies of the police and militia forces help explain the outbreak of the 1692 riot. See Guthrie, Chester L. “Riots in Seventeenth-Century Mexico City: A Study of Social and Economic Conditions,” in Greater America: Essays in Honor of Herbert Eugene Bolton (Berkeley: University of California Press, 1945), pp. 243–258;Google Scholar and Feijóo, Rosa “El tumulto de 1692,” Historia Mexicana, 14 (1965): 656–679.Google Scholar Similarly, weakened state authority, as evidenced by a split between the archbishop and viceroy, directly contributed to the 1624 uprising in Mexico City. In addition to Guthrie, see Israel, J.I. Race, Class and Politics in Colonial Mexico, 1610–1670 (Oxford: Oxford University Press, 1975), pp. 135–160;Google Scholar and Feijóo, , “El tumulto de 1624,” Historia Mexicana, 14 (1965): 42–70.Google Scholar Issues of state continue to be pivotal factors into the early Republic. Arrom, Silvia asserts that the 1828 Parián riot in Mexico City “coincided with partisan struggles among the elites that weakened the central authority.” “Popular Politics in Mexico City: The Parián Riot, 1828,” Hispanic American Historical Review, 68 (1988): 263.CrossRefGoogle Scholar Moreover, in his study of peasant violence in early nineteenth century Chalco, John Tutino acknowledges the relationship between rural uprisings and the nature of the state. “Agrarian Social Changes and Peasant Rebellion in Nineteenth-Century Mexico: The Example of Chalco,” in Riot, Rebellion, and Revolution, pp. 65–140. Taylor, William briefly discusses the correlation between state legitimacy and peasant political violence in Drinking, Homicide and Rebellion in Colonial Mexico (Stanford: Stanford University Press, 1979), pp. 148–149.Google Scholar

5 Green, Leslie The Authority of the State (Oxford: Clarendon Press, 1988), pp. 73,Google Scholar 75. Green does acknowledge, however, that while the state cannot “hope to coerce everybody, … there may be circumstances in which standing threats of coercion would be enough to motivate valuable forms of social organization.” (p. 151).

6 See Mouffe, C. and Laclau, E. Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (London: Verso, 1985).Google Scholar Like Green, Gramsci recognizes that on occasion force is also essential in the establishment and maintenance of hegemony. Smart, Barry “The Politics of Truth and the Problem of Hegemony,” in Foucault: A Critical Reader, edited by Hoy, David Couzens (Oxford: Basil Blackwell Ltd., 1986), p. 159.Google Scholar For Michel Foucault, however, the bases of hegemony and social control do not depend on consent, but rather on various forms of punishment which, depending on the historical era, effect compliance either through physical force or through a more subtle modification of behavior by means of sundry institutional forms, such as prisons and schools. Foucault’s historical and theoretical framework does not lend itself to an analysis of human behavior, such as the one argued in this paper, that posits social control as a bi-directional mixture of punishment (or the threat thereof) and voluntary acceptance of authority. Foucault’s views tend to disempower individuals in their relations with the state, marginalizing their decisions and actions and converting them into helpless creatures who seem powerless to respond actively to state policies. Moreover, his understanding of the authority of the state, one that is based on the exercise of close surveillance of the masses, neglects other, more subtle forms of political authority. As aptly noted by Hoy, David Couzens Foucault “presupposes that society is governed by an invisible hand rather than by an accountable, legitimate state power and a rationale rule of law.” Hoy, , “Introduction,” in Foucault: A Critical Reader, p. 10.Google Scholar Hoy’s comments are based on Walzer’s, Michael “The Politics of Michel Foucault,” in Foucault: A Critical Reader, pp. 51–68.Google Scholar

7 Weber, Max Economy and Society, edited by Roth, G. and Wittich, C. (New York: Bedminster Press, 1968), pp. 1,Google Scholar 31.

8 Weberians contend that bureaucratic states claim authority through their legal systems, but admit that law constitutes only one form of political authority since the state shares authority with individuals, such as parents, and other groups, such as the religious institutions. Green, , The Authority of the State, pp. 1,Google Scholar 75–78.

9 Hamilton, Nora The Limits of State Autonomy: Post-Revolutionary Mexico (Princeton: Princeton University Press, 1982), pp. 8–25.Google Scholar For an account of this phenomenon in late colonial New Spain, see Riley, James D. “Crown Law and Rural Labor in New Spain: The Status of Gañanes during the Eighteenth Century,” Hispanic American Historical Review 64 (1984): 259–286.CrossRefGoogle Scholar

10 Nader, Laura “Styles of Court Procedure: To Make a Balance,” in Law in Culture and Society, ed. Nader, Laura (Chicago: Aldine Publishing Company, 1969), pp. 69–91 Google Scholar; Nader, and Todd, Harry F. Jr., “Introduction,” in The Disputing Process-Law in Ten Societies, eds. Nader, Laura and Todd, Harry F. Jr. (New York: Columbia University Press, 1978), pp. 1–40.Google Scholar Also see Harmony Ideology: Justice and Social Control in a Zapotee Mountain Village (Stanford: Stanford University Press, 1990). Parnell, Philip “Village or State?: Comparative Legal Systems in a Mexican Judicial District,” in The Disputing Process, pp. 315–354.Google Scholar

11 Merry, Sally Engle “Law as Fair, Law as Help: The Texture of Legitimacy in American Society,” New Directions in the Study of Justice, Law, and Social Control, prepared by the School of Justice Studies, Arizona State University (New York: Plenum Press, 1990), pp. 167–187.CrossRefGoogle Scholar Also see her Urban Danger: Life in a Neighborhood of Strangers (Philadelphia: Temple University Press, 1981) and “Everyday Understanding of the Law in Working-Class America,” American Ethnologist 13 (1985): 253270.

12 Merry, , “Law as Fair, Law as Help,” pp. 167–168.Google Scholar

13 Merry, , “Law as Fair, Law as Help,” p. 167.Google Scholar

14 Merry, , “Law as Fair, Law as Help,” p. 177.Google Scholar

15 Merry, , “Law as Fair, Law as Help,” p. 186.Google Scholar

16 Goldstone, Jack A. Revolution and Rebellion in the Early Modern World (Berkeley: University of California Press, 1991).Google Scholar The thrust of his argument can be found on pp. xxi–xxvii, 1–62 and 459–482, with elaborations on 63–92, 134–145, 170–196, 249–285, and 349–362.

17 For purposes of this analysis, I have discussed only one aspect of Goldstone’s demographic/structural model, namely the role of state authority and legitimacy in the maintenance of the social order. Goldstone contends that other factors need to be present to convert demographically induced stresses into political violence, specifically the solidarity and organization of the elites and the ability of popular groups to mobilize, either autonomously or with elite direction. His model is valuable in that it helps us understand that the potential for collective violence depends on the interrelationship of three actors: the state, elites, and popular forces. Therefore, even though the potential of mass mobilization may be high, the chance of rebellion is reduced if the state remains strong and has the support of the elites. And conversely, a relatively weak and divided state may be able to withstand pressure from below if popular groups have difficulty in mobilizing and channeling their grievances or if disaffected elites do not appeal to the masses for support. This essay aims to explore more fully the multi-faceted role the state plays in sustaining social cohesion.

18 The estimated population of Mexico City ranged from 98,000 in 1742 to 150,000 in 1810. Florescano, Enrique Precios del maiz y crísis agrícolas en México, 1708–1810 (Mexico City, 1969), p. 171.Google Scholar

19 I contend that, in spite of ethnic and occupational differences, the working classes of Mexico City, from artisans to unskilled laborers, experienced similar degrees of financial exigencies and exhibited similar behavioral patterns in the late colonial period. I based this observation on a reading of testimonies in criminal cases as well as on a preliminary analysis of working-class household structures gleaned from census materials.

20 See, for instance, von Humboldt, Alexander Political Essay on the Kingdom of New Spain, trans. by Black, John (4 vols.; London, 1811), pp. 1,Google Scholar 184.

21 More specifically, population surged by fifty-three percent between 1742 and 1810. Florescano, , Precios del maiz, p. 171.Google Scholar

22 Scardaville, Michael C. “Crime and the Urban Poor: Mexico City in the Late Colonial Period” (Ph.D. diss., University of Florida, 1977), pp. 48–89;Google Scholar Haslip, Gabriel J. “Crime and the Administration of Justice in Colonial Mexico City,” (Ph.D. diss., Columbia University, 1980), pp. 10–74.Google Scholar

23 Based on population estimates correlated with corn prices and in-migration approximations, I have hypothesized that Mexico City grew at an annual rate of 0.3 percent between 1742 and 1790 and at 1.7 percent growth rate between 1790 and 1810, an almost six-fold increase over the pre-1790 rate. It should be noted, however, that significant late colonial demographic growth began before 1790 as in-migration rates noticeably began to rise by the 1770s. Scardaville, , “Crime and the Urban Poor,” pp. 50–55.Google Scholar

24 The Foundling Home and tobacco factory opened in the late 1760s, and the Poor House and Pawn Shop in the mid-1770s. The Hospicio de Pobres also served as an orphanage. The government eased guild restrictions in the late 1790s. Bando, Bucareli, March 5, 1774, Archivo General de la Nación (hereafter cited as AGN) Bandos, vol. 8, fol. 140; “Hospicio de Pobres: Ordenanzas para su govierno,” Bucareli, July 12, 1777, AGN, Bandos, vol. 10, fols. 45–71v; Bando, Azanza, September 19, 1799, AGN, Bandos, vol. 20, fol. 141; Angulo Aguirre, Jorge González Artesanado y ciudad afínales delsiglo XVIII (Mexico City: Siglo XXI, 1983)Google Scholar; Arrom, Silvia M. The Women of Mexico City, 1790–1857 (Stanford: Stanford University Press, 1985), pp. 27–29,Google Scholar 123; Aizpuru, Pilar Gonzalbo “La casa de niños expósitos de la ciudad de México: una fundación del siglo xviii,” Historia Mexicana 31 (1982): 409–430 Google Scholar; Deans-Smith, Susan Bureaucrats, Planters, and Workers: The Making of the Tobacco Monopoly in Bourbon Mexico (Austin: University of Texas Press, 1992).Google Scholar

25 See Florescano, Precios del maiz.

26 For a discussion of the “philosophical matrix” of the Hapsburg and Bourbon states, see MacLachlan, Colin M. Spain’s Empire in the New World: The Role of Ideas in Institutional and Social Change (Berkeley: University of California Press, 1988).Google Scholar Also see McAlister, Lyle N. Spain and Portugal in the New World, 1492–1700 (Minneapolis: University of Minnesota Press, 1984)Google Scholar and Herr, Richard The Eighteenth-Century Revolution in Spain (Princeton: Princeton University Press, 1958).Google Scholar MacLachlan (p. 21) asserts that the crown and its subjects had similar expectations concerning the role of the state.

27 In large part, the impulse to reform legal codes in thirteenth-century Castile was to enhance the authority of the fragile Castilian monarchy. The Siete Partidas, a uniform body of law underwriting the Castilian system of justice, was designed by Alfonso X to strengthen support for the king. Van Kleffens, E.N. Hispanic Law until the End of the Middle Ages (Edinburgh: Edinburgh University Press, 1968), pp. 179–180.Google Scholar MacLachlan notes the close connection between law and political authority in Spain and its colonies as the monarchy used the administration of justice, in both the Old and New worlds, to “further the political objectives of the crown.” MacLachlan, , Spain’s Empire in the New World, pp. 25–26.Google Scholar

28 The Acordada was established in New Spain in the early eighteenth century to combat highway banditry. Initially arbitrary in its operations, the tribunal gradually assumed more standard legal procedures. The extension of its jurisdiction to Mexico City in the 1750s was in response to repeated failures to expand the more traditional law enforcement systems in the capital. MacLachlan, Colin M. Criminal Justice in Eighteenth Century Mexico: A Study of the Tribunal of the Acordada (Berkeley: University of California Press, 1974)Google Scholar; Alarcón, Alicia Bazán “El Real Tribunal de la Acordada y la delincuencia en la Nueva España,” Historia Mexicana 13 (1964): 317–345.Google Scholar On five occasions between 1694 to 1750, the colonial authorities were unsuccessful at reforming and augmenting existing local law enforcement agencies. Macias, Eduardo Báez ed., “Ordenanzas para el establecimiento de Alcaldes de Barrio en la Nueva España. Ciudades de México y San Luis Potosí,” Boletín del Archivo General de la Nación, 2nd ser., 10 (1969): 51–60.Google Scholar

29 MacLachlan, , Criminal Justice in Eighteenth Century Mexico, pp. 78–79.Google Scholar

30 Archer, Christen I. The Army in Bourbon Mexico, 1760–1810 (Albuquerque: University of New Mexico Press, 1977).Google Scholar In 1784, Viceroy Gálvez made the military patrols subject to the civil magistrates in matters of municipal policing. Beleña, Eusebio Buenaventura Recopilación sumaria de todos los autos acordados de la real audiencia y sala del crimen de esta Nueva España, y providencias de su superior govierno (2 vols.: Mexico City, 1787),Google Scholar I, 5th, CCXXIV. Also see circular, Branciforte, October 10, 1795, AGN, Bandos, vol. 18, fol. 130.

31 “Ordenanzas de la división de México en Quarteles, creación de Alcaldes de Barrio, y reglas de su gobierno, con una mapa de la ciudad,” Mayorga, December 4, 1782, AGN, Bandos, vol. 12, fols. 101–124; Bando, Mayorga, December 7, 1782, AGN, Bandos, vol. 12, fol. 100. In early 1785, the Audiencia extended the jurisdiction of the alcaldes de barrio to cuarteles menores other than their own, thereby in effect giving each alcalde de barrio jurisdiction over the entire city. Archivo Judicial del Tribunal (hereafter cited as AJT), Penal, vol. 3 (1785), exp. 12.

32 Instrucción reservada que el conde de Revilla Gigedo, dio a su successor en el mando, Marqués de Branciforte (Mexico City, 1831), p. 29.

33 “Reglamento para el gobierno que ha de observar en el alumbrado de las calles de México,” Revillagigedo, April 7, 1790, AGN, Bandos, vol. 15, fols. 158–160; Bando, Revillagigedo, April 15, 1790, AGN, Bandos, vol. 15, fol. 175. Although assigned responsibility for a specific set of street lamps, each guardafarolero exercised jurisdiction over the entire city.

34 Archivo General del Juzgado (hereafter cited as AG J), Penal, vol. 2 (1803), exp. 29; vol. 3 (1805), exp. 11.

35 Scardaville, , “Crime and the Urban Poor,” pp. 12–13.Google Scholar

36 Instrucciones que los vireyes de Nueva España dejaron a sus sucesores (2 vols.: Mexico, 1867–1873), I, 237. Until the 1780s, police patrols were not conducted regularly. Such passive law enforcement has its roots in medieval Castilian codes and practice. As stated in the Siete Partidas, judicial action generally commenced with a formal complaint, although the law made provisions to instigate an arrest if a crime was committed in public view. Las Siete Partidas del Rey Don Alfonso El Sabio (3 vols.: Madrid: Ediciones Atlas, 1972), III, Book 7, Title, 8, Law 28.

37 For a discussion of these laws, see Scardaville, , “Crime and the Urban Poor,” chapters 1, 3–6 and “Alcohol Abuse and Tavern Reform in Late Colonial Mexico City,” Hispanic American Historical Review, 60 (1980): 643–671.CrossRefGoogle Scholar

38 See Scardaville, “Crime and the Urban Poor,” chapters one and five. The increase in arrests greatly outdistanced the ca. 15 percent population growth of the city during this period.

39 The Libros de Reos contain summary accounts of arrests as well as informal and formal judicial hearings conducted in the nine lower criminal tribunals of late colonial Mexico City. The Sala del Crimen, the principal criminal body in New Spain, exercised jurisdiction within five leagues of the capital but handled only formal cases. Informal hearings (juicios verbales) were conducted in the city’s lower courts. Of the ten extant inventories which cover the years 1794, 1795, 1796, 1798, 1800, and 1807, six pertain to the courts of the alcaldes ordinarios which exercised jurisdiction over the VII and VIII major administrative districts, two pertain to the police districts of alcaldes de barrio numbers 21, 22, and 23, and two pertain to the jurisdiction of the corregidor who judged all offenders arrested by the guardafaroleros. The Libros de Reos include a total of 7,067 entries of which 6,064 represent police arrests and court proceedings, and 1,003 involve such legal transactions as sentencing a criminal judged by the Sala del Crimen to a public works project. The inventories yield detailed biographical information about the prisoners and judicial information about police and court practices. The Libros de Reos are located in two municipal civil and penal archives in Mexico City, the Archivo Judicial del Tribunal and the Archivo General del Juzgado. The Libros de Reos represent the most statistically valid materials currently available to study crime, social conflict, and the administration of justice in Mexico City during the late colonial period. As criminologists affirm, records collected early in the judicial process yield the most trustworthy sample of actual crime. Consequently, arrest records are a more reliable index than court cases which, in turn, are more reliable than prison statistics. The problem in using formal court cases (causas or procesos criminales) to analyze the incidence and types of crime is that many offenders filter out of the judicial process before reaching this court stage. The sample of criminals and the kinds of crime at this procedural level are incomplete and even misleading. For example, from 1795 to 1807, only 4.9 percent of all arrests led to the formation of criminal cases. The magistrates handled the remainder informally in juicios verbales. Furthermore, the types of crimes the courts prosecuted formally were generally the more serious offenses, such as homicide, aggravated assault, and gambling. A study of crime based solely on formal criminal cases would neglect the vast majority of less serious, but numerically more prevalent criminal and other offenses. With the exception of crimes known to the police, arrest data offers the most reasonably accurate index of crime and social conflict in the community. For a discussion of the reliability of criminal statistics, see Brown, Stephen E. Criminology (Cincinnati: Anderson Publishing Co., 1991)Google Scholar; Sutherland, Edwin H. and Cressey, Donald R. Criminology (10th ed.; Philadelphia: Lippincott, 1978)Google Scholar; Sellin, Thorsten and Wolfgang, Marvin E. The Measurement of Delinquency (Montclair, NJ: Patterson Smith, 1978).Google Scholar

40 Unless otherwise noted, all information concerning court sentences and procedures was based on the analysis of 6,618 cases listed in nine of the most complete Libros de Reos from 1795 to 1807.

41 As a result of a rapidly expanding municipal public works program in the late colonial period, forced community labor became an increasingly relied upon form of punishment. The courts sent one-third of all male offenders to the public works projects. Of the men arrested for intoxication, 83.5 percent were dispatched to one of the municipal obras públicas. For the early eighteenth century figure, see Haslip, , “Crime and the Administration of Justice,” p. 197.Google Scholar

42 Assignment to a casa de honra and artisan workshop represented 5.4 percent and 0.9 percent of all courts sentences for females and males respectively. Women sent to the casas de honra tended to be Spanish or casta, single, and under twenty years of age. Men sent to work for an artisan were exclusively in their teens, single, and often without any practicing trade (sin oficio).

43 Fines accounted for 28.9 percent of all lower court sentences. Such penalties were most frequently imposed in cases of debt (91.4 percent of all sentences), tavern violations (62.2 percent), aggravated assault (57.7 percent), gambling (31.8 percent), and theft (19.8 percent). The magistrates classified judicial fines into two general types: victim compensation and court costs. The emphasis was on the latter, however, as court costs accounted for over four-fifths of all fines levied by the lower tribunals. At least two-thirds of the monetary penalty went to cover the expenses of running an expanded police force and local judiciary. Fines were burdensome to the poor, although the magistrates devised methods to facilitate payment.

44 Bourbon designs to modify judicial practices did not always meet with success. Although initially approved by Charles IV in 1792, a new legal code for the colonies, the Nuevo código de leyes de Indias, was never implemented because of considerable opposition. The revised code was to have consisted of uniform legal regulations, replacing the compilation of laws that had been embodied in the Hapsburg-era Recopilación de leyes de los reynos de las Indias. MacLachlan, , Spain’s Empire in the New World, p. 119.Google Scholar In spite of efforts to insure uniformity of sentences, the Bourbons were unsuccessful at limiting judicial discretion. See the comment made by Fiscal de lo Criminal to Viceroy Iturrigaray on the illegality of “arbitrary penalties.” AGN, Civil, vol. 2126, exp. 4, fol. 2. Moreover, Viceroy Branciforte was not able to suppress the Juzgado de Indios, a separate tribunal for Indians, in his scheme to rationalize and simplify the colonial judiciary in the late 1790s. Borah, Woodrow Justice by Insurance: The General Indian Court of Colonial Mexico and the Legal Aides of the Half-Real (Berkeley: University of California Press, 1983), p. 389.Google Scholar What these failed efforts suggest is that the Bourbon hierarchy did not fully understand the integrative function of the Hapsburg system of justice.

45 McAlister, , Spain and Portugal in the New World, pp. 24–26,Google Scholar 33–38; MacLachlan, , Spain’s Empire in the New World, pp. 13–18,Google Scholar 97–98, 126. Because of the nature in which Castilian law had developed in the medieval and early modern periods, Spanish colonial criminal law was more of an accumulation of legal texts which date back to the Fuero Juzgo, a seventh century Visigothic code owing its inspiration to both Roman and Germanic legal precedents. Kleffens, Van Hispanic Law until the End of the Middle Ages, pp. 164,Google Scholar 203–206, 227, 235–236, 257–258, 263–265; Guillermo, F. Margadant, S., An Introduction to the History of Mexican Law (Mexico City: Libros Ocotepec, 1981), pp. 163–165;Google Scholar Herget, James E. and Camil, Jorge An Introduction to the Mexican Legal System (Buffalo: William S. Hein & Co., 1978), pp. 3–6,Google Scholar 81; Weckmann, Luis The Medieval Heritage of Mexico (New York: Fordham University Press, 1992), pp. 442–461.Google Scholar

46 These basic principles are embodied in a political philosophy that ordained a special relationship between the king and God through which the monarch manifests divine benevolence and compassion: “(the king) will be to them as a father who brings up his children in love, and punishes them with mercy.” Siete Partidas, 2–10–2.

47 As reflected in the Libros de Reos, the overwhelming number of arrests involved perpetrators and victims from roughly the same social class. The working poor, whether artisans, semi-or unskilled laborers, generally attacked, robbed, raped, and abused others from similar groups. There is little evidence of inter-class conflict in the judicial records. Such behavior, in turn, affected the operation of the lower courts since the magistrates were not as overtly swayed by class biases in the handling of cases. The philosophical underpinning of justice was easier to attain in practice given the reality of most social conflict. This point is crucial in understanding court procedures and sentencing practices in the lower courts of Mexico City, as will be discussed later in this essay.

48 According to Herbert Jacob, traditional political cultures, in which conflicts are more likely to be handled through existing private relationships, place greater trust in informal and community means of dispute settlement. More modern political cultures, in which societies are more heterogeneous and interpersonal relations are more distant, are more likely to seek more formal and governmental forms of conflict resolution. Jacob, , Debtors in Court: The Consumption of Government Services (Chicago: Rand McNally, 1969), p. 92.Google Scholar Studies of twentieth-century peasant communities demonstrate that most disputes in the villages are managed through non-legal mechanisms in order to minimize outside intervention and maintain village autonomy. Nader and Todd, “Introduction,” pp. 27–28 and Parnell, “Village or State?,” pp. 317, 328.1 would suggest that the expanded criminal judiciary of late colonial Mexico City, most notably through the juicios verbales, replicated many features and objectives of village courts, thereby enabling the state in an urban setting to usurp functions that had been once in the domain of the indigenous sector. See Nader, , “Styles of Court Procedure: To Make a Balance,” pp. 85–90.Google Scholar

49 In his study of a late twentieth-century Zapotee district, anthropologist Philip Parnell notes that villager use of the state courts, as compared to the community mechanisms of dispute resolution, affirmed the legitimacy of the state system. Parnell, , “Village or State?,” p. 317.Google Scholar

50 Merry’s recent observations in Massachusetts concerning the relationship between class and use of the legal system are equally valid for late colonial Mexico City. That is, the poor and working-classes tended to rely on the criminal courts to resolve their personal and business problems whereas the more affluent avoided these courts in favor of civil litigation in matters dealing with interpersonal and, commercial misfortunes. Merry, , “Law as Fair, Law as Help,” pp. 183–185.Google Scholar

51 Most formal complaints were filed in the eight courts associated with the cuarteles menores. The ninth tribunal, that of the guardafaroleros, responded mainly to offenses against the public order, most notably intoxication and curfew violations. More precisely, 36.5 percent of all arrests in the eight tribunals were made at the request of an injured party.

52 The percentages of arrests made in certain offenses after a complaint had been filed are as follows: debt (98.9 percent); family offenses, including spouse abuse and desertion (69.0 percent); vagrancy (57.7 percent); theft (55.2 percent). Unfortunately, the Libros de Reos do not give detailed biographical information about the person filing the complaint other than the relationship to the defendant.

53 Early modern Iberian legal traditions, and by extension their colonial counterparts, were based on a mixture of Roman and medieval judicial practices. For instance, proceedings were inaugurated by an appropriate authority, such as a bishop or royal minister, not a grand jury. The resulting case was gradually built by the magistrate and other judicial officials by reducing the evidence to writing in a series of hearings. Therefore, there was no real trial as such other than the last hearing which resulted in a decision. In contrast to the common-law tradition of England and colonial America, the Spanish and Mexican courts did not serve in the capacity of referee, but rather as an active examiner attempting to discover the truth. Herget, and Camil, , An Introduction to the Mexican Legal System, pp. 75,Google Scholar 81. This procedure also defined the actions of the lower courts of Mexico City in their handling of informal cases (juicios verbales), although the steps were expedited and, unless circumstances warranted, testimony was not as extensively recorded. The Siete Partidas established the authority for this well-developed procedural law which was based on the work of canon law scholars. As Van Kleffens notes, church legalists developed a new system of procedures for the ecclesiastical courts in the twelfth and early thirteenth centuries. This system was adapted by the legal advisors of Alfonso, X in writing the Siete Partidas. Hispanic Law until the End of the Middle Ages, pp. 204–206.Google Scholar Also see Berman, Harold J. Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), pp. 250–253.Google Scholar Enlightenment penal reformers such as the Milanese-born Cesare Beccaria (1738–1794) and the Mexican-born Manuel de Lardizábal y Uribe (1739–1820) did not significantly influence court procedures and punishments in Spain and New Spain until the passage of the liberal Constitution of 1812. Blasco, Francisco y de Moreda, Fernández Lardizábal: El primer penalista de América Española (Mexico City: Imprenta Universitaria, 1957)Google Scholar; Robinson, O.F. Fergus, T.D. and Gordon, William An Introduction to European Legal History (Abingdon, GB: Professional Books Limited, 1985), p. 409 Google Scholar; Phillipson, Coleman Three Criminal Law Reformers: Beccaria, Bentham, and Romilly (Montclair, NJ: P. Smith, 1970).Google Scholar

54 In causas criminales, the magistrates assumed the guilt of the offender before the formal legal proceedings commenced. In informal cases, however, the lower tribunals generally respected the defendant’s rights, and the magistrates conducted the hearings in accordance with rules of evidence. Assisted by court clerks, legal advisors, and alcaldes de barrio, the judges took all the necessary measures to ensure an impartial hearing. To a certain extent, a verbal hearing in the lower courts served as an investigative stage to the more formal hearing conducted by the Sala del Crimen. If this preliminary stage determined that the offense was serious enough to warrant more careful attention, the magistrate of the lower tribunal would form a causa criminal and direct the case to the higher court. See Herget, and Camil, , An Introduction to the Mexican Legal System, pp. 83–84.Google Scholar

55 Bando, Bucareli, February 14, 1773, AGN, Bandos, vol. 8, fols. 49–51.

56 As seen in the Libros de Reos from 1795 to 1807, the lower tribunals endeavored to prove criminal culpability. Acquittal rates for both Spanish and Indian men charged with petty theft varied considerably over the years, ranging between 18.2 percent and 54.5 percent for Spaniards and between 20.9 percent and 77.8 percent for Indians. The most striking example of the concern for evidence is seen in the sentences given in the tribunals of the corregidor and the ranking alcalde ordinario in 1798, tribunals headed by the same magistrate. Instead of the expected regularity, the percentage of Spaniards and Indians released fluctuated considerably (18.2 percent to 30.8 percent for whites and 34.0 percent to 51.7 percent for Indians). Lack of proof, not racial background of the offender, was the determining factor. In both courts, the acquittal rate for Indians was higher than that for Spaniards.

51 MacLachlan, notes that “without (this) concession, the social cooperation necessary to enable the state to impose its authority could not have been elicited.” Criminal Justice in Eighteenth Century Mexico, p. 44.Google Scholar The rights of the accused were not guaranteed by law, but were accorded through a criminal procedure that had evolved since the seventh century. Such examples of de facto rights include a court appointed public defender at the beginning of the case, the court’s ability to compel testimony and obtain and examine evidence, and the practice of having the accused personally confront those who testify against him or her. This de facto granting of rights is evident in both informal and formal cases prosecuted in the courts of late colonial Mexico City.

58 These figures do not include the small number of formal criminal cases (only 5 percent of all anjests) developed in more serious offenses which were to be reviewed by the Sala del Crimen. The formal system of justice operated at a slower speed. The median time elapsing between arrest and sentence in formal cases was slightly less than two months, as compared to the one day median time in informal hearings. This analysis was based on a study 120 formal cases located in AJT, Penal, vols. 2–12; AGJ, Penal, vols. 1–5.

59 Bando, Sala del Crimen, February 24, 1772, AGN, Bandos, vol. 8, fol. 53v; Beleña, , Recopilación sumaria, 1,Google Scholar 5th, XCII.

60 Prosecuting the thousands of arrests as formal cases would have encumbered the lower courts. The magistrates, not possessing the necessary resources to conduct full hearings into all cases, instead relied upon an informal judicial system to judge the vast majority of offenders.

61 Acquittal and probation accounted for almost one-quarter of all sentences, the most frequently used judgements in the lower tribunals after monetary penalties. Acquittal in this sense includes all offenders whom the courts released at various stages in the judicial process. The two related sentences represented over one-half of all sentences in simple assaults, sex and family offenses, disorderly conduct, and curfew violations.

62 The judges occasionally tailored the judicial penalties to comply with the wishes of the complainant, particularly in violent crimes, sex and family offenses, and vagrancy. See, for instance, LR: AO (1795), fols. 6v–7, 43; LR: AO (1796), fols. 47, 72v, 145v; AJT, Penal, vol. 2 (1783), exp. 55; AGJ, Penal, vol. 3 (1805), exp. 8.

63 As stated in the Siete Partidas, magistrates were expected to take a variety of factors into consideration, such as status of the offender, gravity of the crime, and mitigating circumstances, before assigning punishment: “After the judges have diligently and carefully considered all the matters aforesaid, they can increase, diminish, or dispense with punishment, as they think proper, and they should do so.” Siete Partidas 7–21–8.

64 The lower courts sentenced 6.9 percent of all offenders to the municipal jail and 0.2 percent to a depósito. The magistrates would occasionally use incarceration in cases of intoxication (23.1 percent of all sentences), rape (10.0 percent), disorderly conduct (8.0 percent), simple assault (6.8 percent), and sex offenses (6.7 percent). Female offenders were much more likely to be confined to jail. Whereas imprisonment represented almost 30 percent of all sentences given to women, it accounted for less than 4 percent of the sentences for men. Imprisonment was most often assigned to women arrested for intoxication, and therefore served as the equivalent of public works sentences for men. While in jail, women ground corn to make tortillas and atole and performed other duties. AJT, Penal, vol. 12 (1810), exp. 68; dictamen, Junta de Gobierno del Consulado, May 30, 1807, AGN, Civil, vol. 2126, exp. 2, fol. 19; AJT, Penal, vol. 8 (1801), exp. 68; vol. 9 (1803), exp. 62; LR: AO (1796), fol. l09v; LR: AB (1800), fol. 16v.

65 An unmistakable trend in the late eighteenth and early nineteenth centuries was the decreasing use of capital punishment by the Acordada and Sala del Crimen. Established in an era of waning enthusiasm for capital punishment, the lower tribunals of the capital sentenced convicted murderers to the public works projects or released them after a prolonged investigation. Even the brutal homicide of a police officer did not merit the death penalty. AGJ, Penal, vol. 1 (1802), exp. 27; vol. 2 (1803), exp. 13 and 28; vol. 3 (1805), exps. 9 and 11; AJT, Penal, vol. 12 (1809), exp. 32; LR: AO (1796), fols. 102v, 105. Greater use of public work sentences in accordance with royal and viceregal wishes lessened reliance on corporal punishment in the late colonial period. Frequency of corporal punishment dropped from 8.3 percent of all sentences in 1795 and 1796 to only 0.2 percent in 1807.

66 Gender did not make a difference in how the court handled family-related offenses, such as desertion and non-support, as both male and females offenders generally were returned to their families. The intent of the courts was to maintain the family unit, not necessarily formally punish the transgressor.

67 LR: AO (1796), fols. 112v and 141; LR: C (1796), fol. 11; bando, Audiencia, March 29, 1784, AGN, Bandos, vol. 13, fol. 58; de San Miguel, Juan Rodríguez comp. Pandectas hìspano-megicanas o sea Código general compresivo de las leyes generales, útiles y vivas de las Siete partidas, Recopilación novísima, la de Indias, autos y providencias conocidas de Montemayor y Beleña, y cédulas posteriores hasta el año de 1820 (3 vols.: Mexico City, 1839–40), 3, 360.Google Scholar There is no evidence that sentences of the lower courts were appealed to the Sala del Crimen. Whether appeals of juicios verbales were prohibited or whether their absence meant a high degree of acceptance of judicial authority is not certain. What is certain, however, is that even in a system that might not allow appeals, miscarriages of justice seemed rare.

68 Equality before the law was an alien concept in the administration of colonial criminal justice. Reflective of an early modern hierarchical social order, differential treatment of offenders was inherent in the law. Most laws required the imposition of sentences in accordance with the sex, race, and occupation of the criminal. Even in crimes for which the laws did not specify the punishment, the courts still sentenced offenders with regard to their status. For a discussion of how gender, race, and class influenced sentencing practices, see Scardaville, , “Crime and the Urban Poor,” pp. 304–308.Google Scholar

69 With limited cash reserves, the majority of offenders obligated to pay a fine were unable to settle immediately, and consequently the magistrates relied on other means for repayment. The most common was for the offender to procure a bondsman (fiador) who guaranteed payment to the court or creditor. LR: AO (1795), fols, llv and 32–32v; LR: AO (1796), fols. 46v, 48 and 92v; bando, Revillagigedo, October 29, 1790, AGN, Bandos, vol. 15, fol. 235.

70 There are documented examples of bribes on the part of alcaldes de barrio, guardafaroleros, and prison officials. See, for instance, AJT, Penal, vol. 12 (1810), exp. 68; vol. 2 (1783), exp. 56; Instrucción … Revilla Gigedo, 30; Gazetas de México, November 29, 1791, 439–440; Beleña, Recopilación sumaria, I, 4th, I; Alzate to Branciforte, July 8, 1797, AGN, Historia, vol. 44, exp. 18, fols. 452–452v; Mesia to Branciforte, July 22, 1797, AGN, Historia, vol. 44, exp. 18, fols. 463v–464.

71 Merry, , “Law as Fair, Law as Help,” p. 186.Google Scholar In this respect, Merry is critical of the Weberian and Goldstonian notions that an authority must be “just” in order to be legitimate. Merry contends that, at least among subordinate groups, effectiveness is more critical than justice in securing allegiance to the state.

72 For instance, Haslip posits that the police and courts existed essentially to protect elite interests and that the lower classes held the municipal judicial system in contempt. See “Crime and the Administration of Justice,” pp. 198–199.

73 See, for instance, Woodrow Borah Justice by Insurance and Stern, Steve J. Peru’s Indian Peoples and the Challenge of Spanish Conquest: Huamanga to 1640 (Madison: University of Wisconsin Press, 1983).Google Scholar

74 Vago, Steven Law and Society. 2nd ed. (Englewood Cliffs, NJ: Prentice Hall, 1988), p. 199.Google Scholar

75 Taylor, , Drinking, Homicide and Rebellion, 170.Google Scholar Also, Tutino, believes that “repeated recourse to the Spanish state suggests that they (the peasants) perceive the courts as effective mediators between the interests involved.” “Agrarian Social Changes and Peasant Rebellion,” p. 101.Google Scholar

76 Nader, , “Styles of Court Procedure: To Make a Balance,” p. 72.Google Scholar

77 There are other key differences between city and countryside that have a bearing on patterns of collective behavior. The presence of the colonial state, for instance, varied between ciudad and campo in that law enforcement mechanisms were not as extensively developed outside of larger settlements and off major transportation routes. As a result, repressive forces were not as immediately available in most rural areas as they were in the urban centers. As Taylor notes in his study of peasant rebellions, the state usually allowed the village uprisings to run their course, calling in the “small and often ill equipped” militia after the tumulto had subsided. Drinking, Homicide and Rebellion, pp. 119–120.

78 Thompson, E.P. Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1976), p. 262.Google Scholar

79 Hay, Douglas “Property, Authority and the Criminal Law,” in Albion’s Fatal Tree: Crime and Society in Eighteenth Century England, edited by Hay, Douglas Linebaugh, Peter Rule, John G. Thompson, E.P. and Winslow, Cal (New York: Pantheon Books, 1975), p. 56.Google Scholar

80 Thompson, , Whigs and Hunters, p. 265.Google Scholar