Sueann Caulfield is Associate Professor of History at the University of Michigan. She is the author of In Defense of Honor: Sexual Morality, Modernity, and Nation in Early Twentieth-century Brazil, also published by Duke University Press.

Sarah C. Chambers is Associate Professor of History at the University of Minnesota. She is the author of From Subjects to Citizens: Honor, Gender, and Politics in Arequipa, Peru, 1780–1854.

Lara Putnam is Assistant Professor of History at the University of Pittsburgh. She is the author of The Company They Kept: Migrants and the Politics of Gender in Caribbean Costa Rica, 1870–1960.

HONOR, STATUS, AND LAW IN MODERN LATIN AMERICA

DUKE UNIVERSITY PRESS

Copyright © 2005 Duke University Press
All right reserved.
ISBN: 978-0-8223-3575-7

Contents

Acknowledgments…………………………………………………………………………………………………………………………………………..viiIntroduction: Transformations in Honor, Status, and Law over the Long Nineteenth Century Lara Putnam, Sarah C.Chambers, and Sueann Caulfield…………………………..1Private crimes, public order: honor, gender, and the law in early republican Peru Sarah C. Chambers……………………………………………………………….27Community service, liberal law, and local custom in indigenous villages: Oaxaca, 1750-1850 Peter Guardino………………………………………………………….50The “spirit” of Bolivian laws: citizenship, patriarchy, and infamy Rossana Barragn……………………………………………………………………………..66Interpreting Machado de Assis: paternalism, slavery, and the free womb law Sidney Chalhoub……………………………………………………………………….87Slavery, liberalism, and civil law: definitions of status and citizenship in the elaboration of the Braziliancivil code (1855-1916) Keila Grinberg………………………109Trading insults: honor, violence, and the gendered culture of commerce in Cochabamba, Bolivia, 1870s-1950s Laura Gotkowitz…………………………………………..131Sex and standing in the streets of Port Limn, Costa Rica, 1890-1910 Lara Putnam………………………………………………………………………………..155Slandering citizens: insults, class, and social legitimacy in Rio de Janeiro’s criminal courts Brodwyn Fischer……………………………………………………..176Courtroom tales of sex and honor: rapto and rape in late nineteenth-century Puerto Rico Eileen J. Findlay………………………………………………………….201The changing politics of freedom and virginity in Rio de Janeiro, 1920-1940 Sueann Caulfield……………………………………………………………………..223The plena’s dissonant melodies: leisure, racial policing, and nation in Puerto Rico, 1900-1930s Jos Amador de Jess………………………………………………..249Prostitutes and the law: the uses of court cases over pandering in Rio de Janeiro at the beginning of the twentieth century Cristiana Schettini Pereira…………………273The stigmas of dishonor: criminal records, civil rights, and forensic identification in Rio de Janeiro, 1903-1940 Olvia Maria Gomes da Cunha…………………………..295Contributors……………………………………………………………………………………………………………………………………………..317Index……………………………………………………………………………………………………………………………………………………321

Chapter One

LIBERALISM, STATUS, AND CITIZENSHIP

Private crimes, public order: honor, gender, and the law in early republican Peru Sarah C. Chambers

During the republican revolutions of the eighteenth and nineteenth centuries, the political concept of separate spheres became a central concern of philosophers and statesmen. The transition from a monarchy to a republic in Peru similarly heightened the division between public and private, at least in political theory. In practice, however, throughout the nineteenth century, the state extended its regulatory reach into citizens’ everyday lives. Lawyers and judges in early republican Arequipa hotly debated what constituted a “public” crime, and hence one that could be prosecuted directly by the state. This essay will analyze how the negotiation of that legal boundary between public and private revealed understandings of honor and gender.

The most basic distinction between public and private crimes in Peruvian legal codes was that the former affected the state or society, while the latter harmed only individuals. All civil cases were considered private. Nevertheless, most jurists recognized that drawing a clear line in penal law was made more difficult by the fact that crimes against persons could cause enough fear among others to disturb public order. In general, republican prosecutors (fiscales) and judges in Arequipa pursued significantly more cases on their own initiative (de oficio) than had been the case in the late colonial period. In particular theft and serious physical injuries, which had previously been prosecuted only at the initiative of the plaintiff (de parte), came to be considered public crimes. Crimes related to honor (such as slander or rape), however, continued to be tried only at the initiative of the persons affected (the victim or family members), who had not only to file a complaint but follow through with the calling of witnesses and the formal accusation. One of the justifications most frequently offered for such a requirement was that plaintiffs should be able to decide whether the crime itself or the bringing of it to the court’s attention constituted greater harm to their honor. A related concern was to protect patriarchal authority over the household. As Francisco Garca Caldern averred, even though there could be circumstances in which rape or seduction would disturb society enough to make it a public crime, to give prosecutors the power to file charges would “disturb the peace and secrecy that should exist in the domestic sphere.” For the same reason, physical injuries resulting from the “punishment” of dependents (servants, wives, and children) were usually considered “private” crimes, and the rights of the perpetrators carried more weight than the protections due to the victims, who were not, after all, citizens.

Even as republican judicial officials tried to balance the demands of public and domestic order, they continued a trend, begun with the Bourbon reforms, of increasingly claiming jurisdiction in those cases pertaining to marriage, family, and sexual honor, in which the affected parties did press charges. Formerly, such cases had fallen primarily within the jurisdiction of the church. Almost all the reported cases of domestic violence in Arequipa from the final decades of the colonial period, for example, can be found in the ecclesiastical archives. After independence, such complaints from wives decreased dramatically, and there is some evidence that church officials referred women instead to the secular authorities. Similarly, there are only three extant trials for rapto (the abduction and deflowering of a young woman) in the secular courts between 1784 and 1824; of these, two were for the kidnapping of a slave and a domestic servant; in the third, the mother was initially advised not to bring charges, and the case ended with no result. By contrast, nine rapto trials remain for the period between 1825 and 1854. More significantly, only after independence were there any trials for estupro (technically defined as the deflowering of virgins, but applied to rape in general), and most of these eighteen cases were pursued by the public prosecutor rather than the plaintiffs.

Evidence for this essay is drawn from the 184 extant criminal cases heard by the royal intendant (governor) between 1784 and 1824, and the 1,205 cases tried by either republican judges of first instance or the regional superior court between 1825 and 1854. The following brief comments on Arequipa provide a context for the analysis of those cases. With an urban population of about twenty-four thousand in 1792, the city was an important agricultural and commercial hub in southern Peru, and the region became a key player in the nation’s early republican politics and civil warfare. The men and women who appeared in criminal court ranged from agricultural laborers to landowners and merchants, with the largest single group drawn from the ranks of artisans. Surprisingly, given the racial prejudices of the period, local practice ignored Spanish regulations that the ethnicity of all parties be recorded in legal documents. According to official censuses, the city’s population was predominantly white, with minorities of indigenous, African, and mixed descent; given the ambiguities of identity, however, many mestizos and mulattoes were included in the “Spanish” population. In particular, the label mestizo was seldom used in local documents, and in those rare instances it referred to those who exhibited indigenous traits of language or dress.

During the transition from colonial to republican rule in Arequipa, growing concerns about crime and disorder spurred the development of a police force and a more activist criminal justice system. At the same time, however, political leaders and judges espoused liberal ideas that arrived with independence and were enshrined in the constitutions. Members of the popular classes who listened to speeches or read newspapers were not blind to such contradictions. With the help of lawyers, they seized upon these new principles to protest arrests and charges of criminality and to insist upon their right to be treated as citizens. In the process, they linked rights to their understanding of honor, shifting the emphasis away from status toward the concept of virtue. Although judges frequently recognized such claims, they simultaneously tried to reestablish social order by balancing rights with responsibilities. In addition to the differing definitions of respectability based upon class, honor was of course also highly affected by gender. Men were more successful at claiming protections of their civil liberties in return for fulfilling their duties within the public sphere. Women, in contrast, were expected to demonstrate their virtue within the private sphere, according to standards that were difficult to meet.

Personal independence had long enhanced male honor; now it also determined citizenship status. According to the constitutions in effect during this period (namely, those of 1823, 1826, 1828, 1834, and 1839), only men who were either married or of majority age (which varied between 21 and 25) and who either owned property, exercised an independent profession, or paid taxes were granted the privileges of citizenship. Such requirements excluded many poor and nonwhite men and all women. Despite their dependent legal status, many women were self-supporting; as much as 44 percent of households in one neighborhood census had female heads, and of women who dictated wills between 1780 and 1850, 25 percent were widowed, and 33 percent had never married. Strict norms of morality also affected citizenship. Notorious gamblers, drunkards, “and others who offend public morals with their scandalous life,” were subject to suspension of their citizenship. Such a penalty was also imposed on those undergoing criminal prosecution or “for not having employment, an occupation, or known way of life.” Finally, in order to enjoy the rights and privileges of citizenship, men had to serve in the military when called.

Presumably, such restrictions were strictly applied in determining suffrage. In judicial proceedings, however, there seems to have been more latitude in determining who was independent and respectable, and thus enjoyed civil rights. Before the formulation of new republican codes, judges had to base their decisions upon the existing laws (when these did not contradict constitutional articles), but Spanish law provided for discretion in determining standards of evidence, the severity of the crime, and appropriate punishment. Ultimately, I contend, the negotiation of rights using the language of honor, which occurred in the courts after independence in 1824, influenced the formulation of a new penal code in 1862. Its drafters, several of whom had practiced law in Arequipa, defined private and public crimes in accordance with gendered notions of honor and the sanctity of patriarchal authority.

Honorable Citizens in the Public Sphere

Liberal legal theory notwithstanding, honor had always been as much a public and political concept as a private trait. During the colonial period, the code of honor had emphasized status derived from family lineage, property, racial purity, and, for women, sexual reputation. Colonial honor, moreover, was based upon the monarchical system: the king, as the head of state, was not only the most honorable person within the hierarchical ranking but also the source of honor for all others. With Peruvian independence from Spain, the king’s role as guardian of honor and its attendant ceremonies passed to the constitutions; as processions wound their way through the city, criers stopped in the main plazas to read these charters. The crowd heard that all Peruvians were equal before the law and that hereditary privileges and offices had been abolished. While lawyers would help people claim their new rights, it is no coincidence that those most often invoked-such as the right to one’s reputation or patriarchal control of the household-coincided with the long-cherished value of honor.

The early constitutions explicitly recognized every citizen’s right to his honor, guaranteeing “the good opinion, or reputation of the individual, as long as he is not declared a delinquent according to the laws.” Don Jos Mara Portugal cited this article directly in a lawsuit for libel, but more commonly it was used by defendants and their lawyers to win release from jail, since incarceration was considered to be dishonoring. For example, cigar maker Victoriano Concha, arrested in 1829 on the suspicion of being a thief, was released when even the prosecutor asserted that the evidence against him was insufficient “to have persecuted a man damaging him in his person and honor.” Even more defamatory than imprisonment was the punishment of lashes; in the colonial period slaves and Indians had been whipped but “Spanish” people protested vociferously if subjected to the same treatment. After independence, local judicial officials zealously enforced an 1821 decree protecting all free people from the lash as a fundamental republican principle. Prosecutor Jos Gregorio Paz Soldan argued in one case that “with the lashes given to a citizen all the principles were trampled, the entire public was insulted in [the body of] one man, the Government, the Constitution and the dignity of the Republic were violated.” Cases of honor, even if they targeted an individual, could have public consequences.

In addition to protecting a person’s reputation, the early constitutions guaranteed that “the house of every Peruvian is an inviolable sanctuary.” To be insulted in one’s own home had always been considered a particularly serious affront; the violation of a patriarch’s house was one of the factors that made the abduction of daughters (rapto) such a serious affront. Under the republic, arequipeos strongly defended their right to privacy, seizing upon this constitutional guarantee to charge both officials and civilians with illegal breaking and entering. In 1832 a group of youths pretending to be the police broke into the home of a shoemaker. The judge cut the case short, but the prosecutor protested that the crime was serious: “whatever the condition and wretchedness of the shoemaker Lzaro may be, and the poverty of his shack or house, it is a haven which should be considered according to the law as safe as that of the first magistrate of the Republic.”

The recognition of common men such as artisans and other manual laborers not only as honorable but as citizens deserving legal protections was a dramatic change from the colonial period. Nevertheless, officials were selective in identifying who qualified. When plebeian men claimed honor based upon their conduct, the authorities raised the standards of virtue. Even for humble men, civic virtue could be demonstrated on the battlefield, and soldiers were rewarded with the right to wear special insignias, inscription in official books of “meritorious citizens,” and membership in Legions of Honor. When farmer Nicanor Chvez was charged with insubordination for refusing to donate a mule to the army, he claimed an exemption based upon his military services. In defense of his claims, he presented a piece of paper on which the prefect had written: “The Governor of Tio shall treat with the highest consideration the citizen Nicanor Chvez, as he is a most honorable patriot.” Even as working men volunteered to defend the city, they avoided and protested forced impressment, and judicial officials often came to their defense against abuses by both real and imposter military officials.

Military service was linked to honor and citizenship, but the region’s landowners were increasingly concerned that conscription contributed to a labor shortage. Hard work, therefore, was promoted as another way that common citizens could contribute to the public good. “The citizen with a hoe in his hand is as useful as he who grasps a sword to defend the Fatherland,” declared politician Miguel Abril in support of draft exemptions for workers. Artisans and laborers referred to their dedication to work, therefore, to defend themselves against criminal charges. In 1831 Jos Mara Madaleno and Jos Torres, men of color who had migrated to the city from the coast, were picked up by a patrol as “suspicious” characters. They were able to present character witnesses to support their claim to have “always maintained themselves with honor and by means of their labor.” Despite their history of temporary and unskilled labor, the judge found them to be “honest men behaving themselves with honor and without any stain on their reputations.” Indignant that they had suffered because of an unjust suspicion, he absolved them, “restoring them to their former good reputations and fame.”

Judges could be indignant when working people were arrested on mere suspicion, but the opposite was also true. In 1831 Victoriano Concha, who previously had been cleared on charges of suspicious behavior, was arrested a second time for complicity in a theft. As in the earlier case, the prosecutor admitted that there was little evidence against him but this time argued that his unemployment was proof enough. “A man without an occupation nor a known way of life,” he asserted, “will most likely transgress in all matters.” When Enrique Nues complained that he had been illegally imprisoned, Judge Pascual Francisco Suero similarly retorted that he was a “vagrant, ne’er-do-well without an occupation, and therefore, not a citizen.” Poor men faced a more intrusive and punitive state after independence, but those who could present sufficient evidence of military service or employment could defend their civil liberties, including the rights to honor and privacy.

(Continues…)

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