Ricardo D. Salvatore is Professor of Modern History at the Universidad Torcuato di Tella in Buenos Aires, Argentina.

Carlos Aguirre is Assistant Professor of History at the University of Oregon.

Gilbert M. Joseph is Farnam Professor of History and Director of Latin American and Iberian Studies at Yale University.

Crime and Punishment in Latin America

Law and Society since Late Colonial Times

DUKE UNIVERSITY PRESS

Copyright © 2001 DUKE UNIVERSITY PRESS
All right reserved.
ISBN: 978-0-8223-2734-9

Contents

List of Tables and Figures…………………………………………………………………………………………………………………viiGILBERT M. JOSEPH Preface………………………………………………………………………………………………………………….ixAcknowledgments…………………………………………………………………………………………………………………………..xxiiiCARLOS AGUIRRE AND RICARDO D. SALVATORE Writing the History of Law, Crime, and Punishment in Latin America…………………………………………1CHARLES F. WALKER Crime in the Time of the Great Fear: Indians and the State in the Peruvian Southern Andes, 1780-1820………………………………35ARLENE J. DAZ Women, Order, and Progress in Guzmn Blanco’s Venezuela, 1870-1888……………………………………………………………….56JUAN MANUEL R. PALACIO Judges, Lawyers, and Farmers: Uses of Justice and the Circulation of Law in Rural Buenos Aires, 1900-1940………………………83LUIS A. GONZLEZ Work, Property, and the Negotiation of Rights in the Brazilian Cane Fields: Campos, Rio de Janeiro, 1930-1950……………………….113CRISTINA RIVERA-GARZA The Criminalization of the Syphilitic Body: Prostitutes, Health Crimes, and Society in Mexico City, 1867-1930…………………..147DAIN BORGES Healing and Mischief: Witchcraft in Brazilian Law and Literature, 1890-1922………………………………………………………….181KRISTIN RUGGIERO Passion, Perversity, and the Pace of Justice in Argentina at the Turn of the Last Century…………………………………………211PABLO PICCATO Cuidado con los Rateros: The Making of Criminals in Modern Mexico City…………………………………………………………….233DIANA PATON The Penalties of Freedom: Punishment in Post-emancipation Jamaica…………………………………………………………………..275RICARDO D. SALVATORE Death and Liberalism: Capital Punishment after the Fall of Rosas……………………………………………………………308CARLOS AGUIRRE Disputed Views of Incarceration in Lima, 1890-1930: The Prisoners’ Agenda for Prison Reform…………………………………………342DONNA J. GUY Girls in Prison: The Role of the Buenos Aires Casa Correccional de Mujeres as an Institution for Child Rescue, 1890-1940…………………369LILA M. CAIMARI Remembering Freedom: Life as Seen From the Prison Cell (Buenos Aires Province, 1930-1950)………………………………………….391DOUGLAS HAY Law and Society in Comparative Perspective……………………………………………………………………………………….415Contributors……………………………………………………………………………………………………………………………..431Index……………………………………………………………………………………………………………………………………435

Chapter One

Crime in the Time of the Great Fear: Indians and the State in the Peruvian Southern Andes, 1780-1820

CHARLES F. WALKER

From late 1780 until the middle of 1781, the Tupac Amaru rebellion reverberated throughout the southern Andes of Peru. Led by Jos Gabriel Condorcanqui, who assumed the name of Tupac Amaru II, rebels imprisoned, humiliated, and executed authorities, destroyed textile mills and haciendas, and planned or dreamed about what to do on overthrowing the colonial state. Although the leaders were executed in 1781, insurgency continued to the south and motivated malcontents throughout South America. The rebels stunned Spaniards and other observers. Yet rebellion was not the only strategy used by the lower classes in this period. In the years preceding and following the uprising, Indians of the Cuzco region, the key social base of the rebellion, also addressed their grievances in the courts. Through the protector de indios, the legal representative of the Indians, they filed lawsuits against authorities whom they considered abusive. In these cases, they pledged their support to the King and implicitly and at times explicitly recognized Indians’ inferior position in colonial Peru. In this essay, I examine the seeming contradiction between members of the same social group-and at times the very same individuals-taking such dramatically different routes.

The legal system constituted a crucial meeting ground in colonial Spanish America. In the courts, the state inculcated and enforced its notions of hierarchy and social order. Yet, as many analysts have shown, subaltern groups also used the courts to address grievances, point out contradictions, and even challenge aspects of colonial rule. The legal system buttressed social and racial distinctions while also providing the means for groups to soften or question these hierarchies. It constituted a contact zone or “contested terrain” in which the rules of colonialism were imposed yet at the same time contested.

The analysis of crime and society in Cuzco during the decades that bridge the eighteenth and nineteenth centuries, and thus the transition from colony to republic, sheds light on a pair of related questions. What did the massive use of the legal system by Indians mean in terms of Spanish control? In this regard, did the Indians’ efforts in the courts strengthen Spanish rule by reinforcing colonial codes of behavior and discourse? Specifically, did this reliance on the courts and its ideology dovetail with the anti-Indian measures and discourse imposed by the state after the defeat of the Tupac Amaru rebels? Second, did this reliance on the courts preempt other forms of political behavior, above all collective action such as rebellions? Late colonial Cuzco represents a particularly rich case for studying the relationship between the use of the legal system and rebellions. The court cases reviewed here are nestled between the massive Tupac Amaru rebellion and the series of uprisings that ultimately made up the War of Independence in the southern Andes.

Indians and the Courts

In the wake of the Tupac Amaru rebellion, authorities punished anyone suspected of supporting the rebels and repressed key elements of indigenous culture. Jos Gabriel Tupac Amaru, his wife and key military strategist Micaela Bastidas, other family members, and the movement’s inner circle were executed in grisly public rituals in April 1781, their body parts displayed for months. In some towns, soldiers forced all adult men into the plaza and killed one out of every five. The Bourbon state removed indigenous authorities, caciques, believed to be loyal to Tupac Amaru, himself a cacique. They also banned a central text in eighteenth-century Inca nationalism, Inca Garcilaso de la Vega’s Royal Commentaries of the Incas and General History of Peru, and prohibited dances, clothing, and artwork associated with the Incas and Indian culture. Authorities lobbied for the “extirpation” of the Indian language Quechua and the Castilianization of the Andes. The massive uprising had enraged representatives of the state and they were anxious to punish and prevent, efforts supported by non-Indian groups.

In this somber context, “the Great Fear,” Indians from communities or ayllus employed a host of strategies to defend their political autonomy and economic resources, including horizontal and vertical alliances, threats of violence, passive resistance, and, above all, lawsuits. In hundreds of trials, Indians denounced mistreatment by local authorities, often questioning these individuals’ right to hold office. In a period when residents of Cuzco were constantly reminded of the physical, economic, and cultural costs of a failed rebellion, Indians took advantage through the legal system of the state’s fear of another uprising and its determination to constrain local officials. Their repeated use of the legal system reflected their belief that it worked. By countering the post-Tupac Amaru Bourbon “reconquest” through lawsuits, Indian peasants not only contested the reforms but reshaped relations among local authorities, the state, and themselves.

I examined more than one thousand trial records, causas criminales, from 1783 to 1823: 575 from the Real Audiencia, 389 from the Intendencia, 218 from the Cabildo, and 71 from Intendencia-Provincia. In theory, the Audiencia should have served as an appeals court for cases viewed in the Intendencia (introduced in 1784), the main legal institution, and the Cabildo, which handled nonviolent urban transgressions. Yet many cases proceeded directly to the Audiencia, founded in 1787. In general, it judged the more serious crimes. Cases were found from every partido of Cuzco as well as Huamanga, Guayaquil, La Paz, and Arequipa. Almost half the cases tried in the Real Audiencia, the Intendencia, and the Intendencia-Provincia were crimes committed within the city of Cuzco. Other prominent areas were Quispicanchis, Canas y Canchis, Chumbivilcas, and Abancay. Not surprisingly, these were economically important areas with two nuclei of criminal activities: obrajes (textile mills) and trade routes. Higher populations, greater economic activity, proximity to the courts, and generally stronger links to the state’s operations and discourse explain here as elsewhere the higher percentage of crimes in urban and economic centers. However, as the cases involving remote, predominantly Quechua monolingual communities demonstrate, the legal system, both its redressive and repressive components, reached deeply into Cuzco’s rural society in the late colonial period.

The analysis here focuses on roughly 20 percent of the total cases, those involving behavior by authorities considered by the colonial state and/or members of local society to be abusive and inappropriate. This included tax fraud and unjustified imprisonment, but most were described generally as “abuses.” Of course, many cases of abuse never reached the courts. Fear of retribution discouraged many from lodging a complaint. Many conflicts were resolved (or dropped) at a local level. Abusive conduct was thus much more extensive than that reported in the trials, but by the same token, the means of recourse for civil society were not limited to lawsuits. In almost all of these trials, a great deal of negotiation and accommodation took place prior to the lawsuit.

Several important limitations of criminal trials as historical sources need to be noted. First, despite the use of the courts by every sector of society, a great deal of criminal behavior was not tried in the formal legal system. Local authorities-caciques, Spanish mayors, and Indian mayors-were authorized to punish petty transgressors without formal trial. Violent, seemingly arbitrary behavior that served to buttress the powerful frequently characterized these efforts at local “law enforcement” and social control. Much criminal behavior was punished without the intervention of the state, local or viceregal. Court records contain numerous references to private jails in haciendas and obrajes. The elite was not alone in taking justice into its own hands. The local population, including the peasantry, dealt quite harshly with thieves and other transgressors. Although some criminals such as infamous rustlers were handed over to colonial authorities, most crimes involving people of the same community were managed directly. The trial records reviewed here thus slight intraclass crimes.

When using trial records as an historical source, the context of the courtroom must be taken into account. In his study of colonial Mexico, William Taylor points out a series of inherent distortions of criminal trials. Colonial employees transcribed, summarized, edited, and, in the case of Peru, often translated the testimonies in the trials. More importantly, the strategies and terminology employed in the courts were shaped by and designed to conform to colonial notions about law and society. Therefore, the explanations provided by the defendants, particularly about their motives, must be interpreted cautiously. The gap between peasant society and official colonial discourse and practice was even greater in Peru than in Mexico. This is evident in the shoddy statistical data found in the Peruvian trials compared to those reviewed by Taylor. Not only was the state seemingly unable to register information on rural society (except for tax rolls) but in the trials it demonstrated little interest. When Indian litigants or witnesses testified, a rough calculation of his or her age was made and often no profession was listed. The predominant notions about Indians as a homogenous social group, and the indolence of state officials, explain this comparative inattention to sociological detail. Although Quechua translators were provided, the courtroom in Cuzco represented a foreign and intimidating site for a highlands peasant. It should be kept in mind, however, that Andean Indians had a centuries-long tradition of court battles and that many of the Indians participated as willing plaintiffs. Coercion against the defendants was apparently infrequent. In colonial criminal trials, a surprising and welcome amount of forthright statements about local society can be found.

Caciques and Politics: Bloods versus Newcomers

Caciques were the primary defendants in the trials in late colonial Cuzco against abusive authorities. In the Real Audiencia, they were accused in 44 percent of the cases (37/84) while subdelegates were accused in 20 percent, recaudadores or tax collectors in 20 percent, and mayors in 11 percent. In the Intendencia (including Intendencia-Provincias), caciques were accused in 36 percent of the cases (22/58); mayors in 22 percent; priests, subdelegates, and members of the military in 12 percent each; and recaudadores in 10 percent. These cases reflected the enduring struggles over the cacique office. Throughout the eighteenth century, ethnic caciques faced pressure from above, the demanding Bourbon state, as well as below, as their Indian constituents resisted increasing demands channeled through the caciques and questioned their legitimacy. The Tupac Amaru rebellion accelerated efforts by the state to replace ethnic or hereditary caciques. Unfortunately, it is not always clear whether the accused cacique was hereditary (de sangre, “blood”) or a newcomer (interino). In eleven of the thirty-seven cases in the Real Audiencia against caciques, explicit mention was made about their status as interinos. These include some of the cases with the most flagrant and systematic abuses. Indians were the plaintiffs in 72 percent of the Real Audiencia cases and 48 percent of those in the Intendencia. The protector de indios lodged these suits, but the indigenous plaintiffs testified in every case. Often they were supported by other authorities such as priests or contending caciques.

Two major types of abusos challenged in the courts stand out. The first was systematic exploitation: usurpation of land, tribute fraud, coerced labor, and the forced sale of goods (reparto, banned in 1780). The allegations often included reports of wanton violence and “immoral behavior” such as adultery or polygamy. Usually concentrating on a particular authority, the accusations generally mentioned the complicity of others. The second major category was violence or imprisonment by an authority against a commoner. The fact that the beating or imprisonment was often preceded (provoked according to the defendant) by a confrontation over the authority’s misbehavior indicates that these two categories were related: exploitative practices were often backed up by violence while economic gain and coercive social control constituted integral elements of local power.

Almost every possible combination of abuses can be found. In fact, it was unusual for a single allegation to be lodged, as these practices were usually related. For example, a subdelegate in Quispicanchis was accused of forcing Indians to work for him at a textile mill and at his house for free, charging exempt Indians the head tax in order to pocket the money, and replacing authorities with his friends and relatives. Another subdelegate reportedly worked with an accountant and a cacique to sell unwanted or overpriced mules, dried potatoes, corn, and coca leaves to Indians. This enterprise allowed him to demand free labor and the use of extensive community lands. The alcalde mayor-recaudador-cacique of Ocongate sent Indians to work in coca plantations in the Paucartambo valley, sold mules, iron, and other goods in exchange for the best livestock at “very low prices,” and excluded Indians from the tax rolls despite charging them tribute. His father was rumored to have conducted similar operations, “keeping the courts always busy.”

In a 1792 case against Don Pedro Villavicencia, cacique interino of Sangarar, Quispicanchis, and his ally, the priest Don Manuel Mariano Alvarez, Indians from six ayllus testified that the cacique would not allow them to work on highland estates to earn their tribute money. He forced them, instead, to labor on his “opulent estate” under much worse conditions. The list of complaints against Villavicencia also included overpriced repartos that had to be paid in cash, forced donations during religious festivals, fines for those who did not dress properly in these festivals, arbitrary taxes during the redistribution of land, imprisonment of debtors when they attended mass, forced donations of potatoes by the heads of the ayllus, whippings, and demands for many free laborers. The defendants saw the hand of a former cacique behind the accusation. In the end, Villavicencia was apparently suspended as cacique. This and other trials depict the close relationship among the different types of exploitation. Authorities used the returns in one of these activities to reinforce another. For example, they channeled profits from tribute collection and fraud into commercial activities, while transforming debts into free or cheap labor. “Power” was not constituted in this period by the control of a single economic resource such as land but rather by combining economic gain through a number of enterprises with efforts to monopolize political dominance.

(Continues…)

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