In the distant mission outpost of San Antonio in northern Mexico, a man named Bentura, his brother, Primo, and Primo’s lover, Eulalia, all Indian neofitos (persons newly baptized into the Catholic faith), plotted the murder of Eulalia’s husband, Juan Californio. One night in December 1800, while the victim was sleeping, the men tied a rope around Juan’s neck. One of them sat on his body while the other pulled on the rope and the woman, grabbing her husband by the legs, pulled in the opposite direction. After Juan suffocated, Eulalia ran to the mission and reported that her husband had choked while chewing tobacco. The mission’s priests soon noticed that the death had not been an accident and reported the crime to the authorities in charge of the nearest presidio—a military station in remote frontier areas—in Monterrey.
Eulalia had complained to the mission priests that her husband was abusing her, but they seem to have concentrated instead on stopping her extramarital affair with Primo. Not long before the fatal incident, the priests had flogged her lover (le dieron muchos azotes) and cut off Eulalia’s hair (le tumbaron el pelo). The two lovers seemed determined to be together. Because filing for divorce was a difficult bet that would not even allow them to be legally united, just in concubinage and subject to harassment from Church and civil officials, they saw that their only chance to become a couple was to get rid of Juan Californio.
With the criminal investigation in process, Eulalia promptly sought sanctuary (asilo) in the mission’s church. After the trial, the two brothers were eventually sentenced to death and were publicly executed on December 31, 1801, making them among the few Indian defendants in our case sets who actually received the death penalty. Even rarer was that a firing squad rather than hanging or garroting was the means of execution. Thanks in part to the fact that she had been granted religious asylum, Eulalia’s life was spared, and after consulting with the ecclesiastical authorities the court sentenced her to six years of correctional confinement in an institution (recogimiento) at an undetermined location.1
SIGNIFICANCE: GENDER VIOLENCE; ETHNIC RELATIONS; AND THE CULTURE OF HONOR, LAW, JUSTICE, AND CRIME
Given their intimate connection with individual longings (for companionship, love, and sex) and hurtful feelings and actions (jealousy, deception, betrayal, and violence), stories of spousal murder in the current study such as the one involving Eulalia and her companions have intrinsic human and literary fascination. They are full of drama and tragedy, featuring extramarital affairs; bossy, domineering, and absurdly abusive husbands; independent, outgoing, and challenging wives; men and women lying under judicial oath; bloody crime scenes and cunning attempts by culprits to hide corpses; daring escapes from jail; and highly symbolic punishments and pardons. The various tales of love gone wrong behind the hundreds of cases found in judicial archives in regions on both sides of the Atlantic (and elsewhere) can be morbidly intriguing and tragically entertaining, even colorful.2 But there is more to them than amusement, theater, or tragedy.
For historians, spousal murders are significant for what they reveal about social and family history, in particular the hidden history of day-to-day gender relations, conflicts, crimes, and punishments. In some instances, such as Spanish American colonial societies, the records of murder trials also reveal a great deal about ethnic relations and understandings of “the other,” especially the treatment of subaltern criminal subjects, individuals such as Juan, Eulalia, Bentura, and Primo. In those societies and also in metropolitan settings—in this case, Spain—stories of intimate homicides shed light on family history, gender roles, relations, and tensions while illuminating social hierarchies and the cultural values or worldviews (mentalités) allegedly guiding social behavior—in particular, overt royal and ecclesiastical paternalism, domestic patriarchy, and overall conceptions of honor.
The academic significance broadens when the research includes a focus on the legal and judicial dimensions of the crimes. The legal norms and doctrines concerning crimes associated with spouses and lovers (homicide, battery, adultery, concubinage, abandonment of one’s family), criminal procedures (the phases and mechanics of criminal investigations and trials), legal justifications for and the mechanics of detaining defendants and confiscating their assets, legal understandings of what constituted sufficient evidence of criminal wrongdoing, and—most important—reasons for and varieties of acquittal, pardon, or punishment all speak directly to issues of justice. These considerations reflect conceptions about and the practical operation of justice in particular societies, in our case those under Spain’s old aristocratic and absolutist monarchical order (ancien régime), where its administration was one of the king’s basic attributes and functions, and a key source of royal legitimacy.3 Law and justice were also central to the development of royal hegemony or, in other words, social control largely dependent upon voluntary compliance.4 Let us briefly examine some of these aspects of family life, gender, ethnicity, culture, justice, and law, and their relationship to spousal violence and crime.
Family, Marriage, and Violence
This book examines the phenomenon of spousal murder, a crime known at the time as “parricide,” a broader category involving not just spouses but also parents and other relatives.5 It focuses on the late colonial Spanish Atlantic.6 Addressed in it are incidents occurring in New Spain (colonial Mexico), New Granada (colonial Colombia), and Spain from the 1740s to the 1820s. Besides providing snapshots of several specific cases, the book also looks at broader trends evident in the more than 200 cases consulted. It considers not only the social features of the murders, but also the legal discourses and judicial practices guiding the historical treatment of spousal murders. As noted above, subtexts involving gender, ethnicity, and honor underlay the ways in which the law punished and prosecuted intimate aggressions.
Looking at intimate aggression allows one to explore a critical dimension of family history. As Lawrence Stone explained years ago, along with family studies focusing on demographic aspects (age at marriage, nuptiality patterns, fertility) and on the size and composition of households, studies of human relationships (sentiments, affect, mutual expectations, attitudes toward sexuality, morality, honor and shame, choice of marriage partners, marital unhappiness, illicit love, betrayal, breakdowns) are essential for a fuller historical understanding of marriage and the family.7 This had already been made obvious, or would soon be confirmed, by the fine works of a host of French, American, and Latin American historians, including authors such as Philippe Ariés, Georges Duby, Jean Louis Flandrin, François Lebrun, Silvia Arrom, Richard Boyer, Ramón Gutiérrez, Asunción Lavrín, Patricia Seed, Susan Socolow, Ann Twinam, Carmen Castañeda, Guiomar Dueñas, Pilar Gonzalbo Aizpuru, Maria Emma Mannarelli, María Beatriz Nizza da Silva, Sergio Ortega, Pablo Rodríguez, and Ronaldo Vainfas.8
The Latin Americanists, in particular, addressed not only the fact that, as numerous incidents of adultery examined in this work confirm, colonial sexuality expressed itself widely through channels other than marriage, but also that marriages at the time were quite different from modern ones. They were not just highly ritualistic religious sacraments and virtually unbreakable legal bonds but also complex economic, social, and cultural pacts. Although the subject has resulted in heated historiographical debate, it is fair to say that in colonial times marriage was not the result of extensive and free courtships, nor was it generally informed primarily by sexual attraction or personal emotions, including affection or romantic love. It corresponded instead to institutional considerations, both religious and secular, of the most appropriate ways to ensure social/sexual order and control, and to familial, parental, or personal considerations of the social or economic value of a specific spouse.
The value placed on one’s spouse was not mainly, if at all, to ensure fulfilling and supportive intimate relations within marriage, but rather to promote familial or personal interests through one or a combination of factors, including access to honorable and socially acceptable mates, convenient partnerships between already-formed families, avenues for upward economic and/or social mobility, attractive dowries, and community harmony, continuity, and stability. After marriage, domestic life could sooner or later become tedious, emotionally and sexually unfulfilling, and generally unbearable. As we shall learn, this is why many spousal disputes could occur over even trivial matters. Of course, a number of other factors (drinking, child rearing, material stress, jealousy, misunderstandings over rights and obligations) also intervened to trigger aggressions, even extreme ones.
Even if by some standards murder may have been rare in the late colonial Spanish Atlantic, spousal murder was not that unusual within the world of homicide. Hundreds of people stood trial for spousal murder in this region during this period. The prosecution of their crimes offers a unique vantage point for understanding the intersection between, on the one hand, cultural practices such as patriarchal authority, honor, and ethnicity and, on the other, the functioning of the Crown, the Church, the law, and justice.9
Public Women: The Long and Conflictive History of Gender
As shall soon become clear, in the Spanish American world—from the colonial period to the present—women have been the regular victims of physical, psychological, and sexual abuse by intimate partners. In turn, women have not infrequently inflicted violence on their intimate partners. Spousal murder, the ultimate form of domestic violence regardless of gender, thus sheds light on the mutual character of domestic aggression and the dynamic and multilayered background and escalation of day-to-day gender disputes and tensions.
Based on past and present records, and in light of the academic research this book builds on, it seems safe to argue that spousal murders are not random and deviant outbursts of aggression but rather systematic gender disputes over autonomy and obedience, deference, sex, money, domestic chores, relations with children and relatives, a mate’s drinking, and general clashes over men’s and women’s understandings of reciprocal marital rights and duties.10 The triggering factors have typically included gender-based conflicts derived from alleged disobedience on the part of women; their response to verbal attacks by male partners; failure to prepare and serve meals correctly or punctually; alleged dereliction of household or child care duties; impertinent questions or comments about drinking, money, or relations with other women; unjustified absence from the domestic space; refusal to have sexual intercourse; and suspicions or actual instances of infidelity. Men and women alike also lashed out physically against one another for the freedom to leave the marriage and be with a lover instead.11 All of these factors have most definitely operated in a socially built misogynist and patriarchal milieu. However, patriarchy did not mean that women lacked any rights, were under absolute subordination, were unable to physically or legally defend themselves, or were not actually the primary attackers.
Women as well as men were the perpetrators of domestic violence, even spousal murder. In New Spain and New Granada, women were three to five times more likely to kill their husbands than to murder anyone else. The research for this book even suggests that women rather than men committed most murders in Spain related to extramarital affairs. On many occasions, these acts were not in self-defense. Motives ranged from a response to male aggression against the female perpetrator or other members of the household to a wife’s desire to leave her husband for a lover. As was the case with men, a variety of random circumstances, including drinking and accidents, also contributed. More important, counter to what previous works have argued, and in line with copious findings by other historians, this study finds that spousal murders committed by women cannot be explained by women’s supposed confinement to the domestic sphere (within which they were thus allegedly compelled to choose their victims).12 This book will confirm that, if anything, significant numbers of women who killed their husbands did so precisely because of extra-domestic behavior and public encounters. It therefore joins the historiography that has extensively documented female participation in the Spanish and Spanish American public realm.
As recent works have demonstrated, in their daily lives women came into regular contact with outsiders, broke away from the isolation imposed on them by their domestic duties, and became active participants in all kinds of public activities and affairs.13 Although patriarchs generally ruled the household, ordinary women, whether single, married, or widowed, participated in a range of economic activities, from textile manufacturing and raising and selling livestock, fruit, and vegetables to domestic service, cooking, laundering, street vending, food and beverage preparation, and peddling, to mention but a few.14 These activities, along with regular attendance at church, parties (fandangos), and visits to the homes of neighbors and relatives, plus a number of other late eighteenth-century celebrations and leisure activities (festivals, comedies and theater, traveling, bullfights), afforded women the opportunity to engage in social (and sexual) exchanges.
Public engagements tended to annoy husbands and put a strain on marriages. The situation was even more frequent in humble rather than elite households, given poor women’s dependence on the income derived from extra-domestic chores. Culturally, these women’s virtue was not as tied to seclusion as was that of women from influential families. This does not mean that women from elite families did not engage in activities outside the household or attack their husbands. Still, we ought to keep in mind that the largest portion of metropolitan and colonial society (perhaps more than 80 percent) comprised low-income groups, which consequently committed the majority of the crimes under consideration. In Spanish America, these sectors predominantly consisted of people of color.
Ethnic Relations: Colonial Paternalism Versus Domestic Patriarchy
Many clashes between men and women involved nonwhite couples and individuals living in a colonial context where the color of their skin may have represented a social and legal disadvantage. In addition to providing a look into gender relations and tensions, the study of spousal murders is also helpful for making sense of ethnic relations and conflicts in a colonial society. When royal legislation and justice officials handled homicide cases committed by Indians, blacks, and castas (mestizos, mulattoes, and other half-bloods), their actions reflected cultural values and biases, as well as tensions between the dominant white sectors ruling the Spanish empire and ethnic “others.” Specifically, they embodied the latent contradiction between royal “clemency” and “terror”: the tension between the king’s paternalism toward subjects considered socially and culturally inferior or weak, and the need for royal justice to respond appropriately to abhorrent domestic crimes (while at the same time upholding “natural” patriarchal rights and privileges).15
Some scholars have argued that the monarch had to administer justice without weakening the patriarchal prerogatives accruing to the male heads of households in his realm, whatever their ethnicity, including the right to discipline wives, a legally and socially sanctioned privilege of marriage.16 The solution was for the king to show leniency. This is why, in these scholars’ opinion, such a considerable gap existed between written law (e.g., the death penalty for those who committed atrocious murders) and actual practice (in particular, the great leniency the law showed toward Indians, regarded as “miserable” subjects in need of special legal protection).17
This work argues instead that royal paternalism and a subaltern husband’s patriarchy were complementary. This was true not because of the leniency typical of Spanish law in general and the law of the Indies (derecho indiano) in particular, which made it possible for the king to dispense justice while upholding the patriarchal prerogatives of nonwhites; in fact, the leniency shown toward Indian patriarchs and others stemmed from long-standing doctrines and practices in Western law and jurisprudence that did not necessarily reflect gender or ethnic biases but instead obeyed religious and charitable concern for a variety of defenseless peoples (miserabiles personae). In practice, enforcement of the law did not always favor the victims of crime, whether female, Indian, or otherwise; sometimes, it just favored the “weak” or criminals in general. Furthermore, many of the crimes accorded such leniency were not, as has been alleged, actions committed to safeguard values sacred to the dominant culture. This was the case, for instance, of crimes linked to a defense of honor.
Honor: A Dominant Cultural Value?
For decades, and perhaps longer, historical and cultural texts have presented honor (honra, in early modern Spain) as a dominant value of Spanish and, more generally, Mediterranean culture.18 By extension, the Spanish colonies and other premodern societies fit a similar mold.19 The reputations of families and individuals—in other words, the respect they enjoyed in the eyes of the larger community and the monarchy—were a function of both social condition (legitimate birth, white blood, distinguished social rank, and Old Catholic religious background) and honorable/virtuous behavior. The standards for such behavior varied according to gender. Society expected women to observe chastity and sexual virtue, values that were generally associated with or accompanied seclusion, the preservation of virginity, and public decorum.20 For men, honorable behavior was tied to public service, the ability to command others, strict control over their households, bravery, and manliness in general.21 Therefore, males betrayed by their spouses were expected to take justice into their own hands. After all, they had legal authority to kill the adulteress and her lover to prevent further damage to the husband’s honor.22
Many of the cases under examination here break significantly with the pattern of the betrayed husband/spousal killer portrayed in honor-centered stories and narratives from the time of Golden Age Spanish comedies onward.23 In many of the incidents involving adulteresses, in fact, particularly in Spain, the women were the culprits rather than the victims. Cuckolded husbands were not necessarily prominent among spousal murderers, and these criminals did not seem to be particularly concerned with rarefied notions of honor. If anything, the opposite was true. How the law—and the many litigants and judicial actors who contributed to forge the law—dealt with such crimes shall be of interest to readers, for in many of the cases the legal practices, discourses, and outcomes were most peculiar.
Bringing Back In the History of Law and Justice
Legal and judicial discourses on such matters as a king’s prerogative to forgive his subjects, a husband’s right to “correct” his wife, or a criminal’s right not to suffer any bodily pain if given sanctuary at a Catholic church, assisted in structuring particular “worlds” (colonial, patriarchal, and Catholic, for instance).24 These discourses played an essential role in sociopolitical relations and were central to the exertion of political power and the implementation of social domination and control—understood here both at the macro (state) and micro (familial) levels.25 They were also critical to the historical repression of social deviance.
Many scholars now agree that the law was and is multidimensional and contested, and that it was far from being historically irrelevant in Spain and Spanish America. Therefore, studying the legal doctrines and practices of the time is a valuable approach to understanding ideologies, values, cultures, attitudes, social mores, and day-to-day social exchanges.26 Consensus on this point is relatively recent, however, and some disagreement remains regarding various historical features of law and justice.
The older generation of studies focusing on the law and justice of Spain and colonial Spanish America, including works by such authors as Rafael Altamira, José María Ots Capdequí, Alfonso García Gallo, Ricardo Levene, and Silvio Zavala, understood the law to be mainly the doctrines and institutions that developed from royal statutes compiled at various times (e.g., the thirteenth-century Siete Partidas, the Ordenamiento de Alcalá [1348], the Leyes del Toro [1505], the Leyes Nuevas [1542], the Nueva Recopilación de Castilla [1567], the Recopilación de Indias [1681], and the Novisima Recopilación [1805]). Insightful works by those scholars generally paid greater attention to state-produced formal legal texts and institutions than to practices and implementation.27 More-innovative scholars, in particular Portuguese jurist and historian Antonio Manuel Hespanha, focused instead on the discursive dimensions of the law and the significance of long-standing “textual traditions” that contributed to forge “canonical” truths with impact on daily life.28 For him, as for us, the law matters not as an abstract institution but as a tight, living web of discourses that are part of and shape social reality.
Later generations of historians became more attentive to the social and economic structures, interests, and conflicts behind juridical texts, principles, and actions. Some, including Fernando de Trazegnies, Herman L. Bennett, Susan Kellogg, Sergio Serulnikov, Steve Stern, and Malick Ghachem, proposed an instrumental view of the law as a tool or a “space” molded or taken advantage of by different social groups—dominant and subaltern alike—intent on promoting particular interests and agendas. They understood the law to be an arena of conflict, acculturation, and accommodation characterized by zero-sum confrontations and eventual winners and losers.29 Some, Ann Twinam and Tanja Christiansen included, even held that justice mattered more than the law and reflected the relative strength or weakness (social and rhetorical) of those presenting disputes before magistrates.30
Other historians, among them Woodrow Borah, Charles R. Cutter, and, more recently, Brian P. Owensby, looked at the law as an intrinsically benevolent mechanism for attaining justice and the protection of subaltern groups, especially Indian communities, which actively engaged it.31 While noting its centrality for colonial rule, Bianca Premo also highlighted the protectionist nature of law in some areas of family relations.32 At least one among this younger generation of scholars, Tamar Herzog, has proposed the revisionist idea that the law did not exist in abstract but only at the moment of its application, making it one and the same as justice. In this view, justice was, in turn, not a top-down command but instead a communal or collective enterprise based much more on social and theological rules and interests than on civil legal norms or principles.33
This work adopts an eclectic perspective, embracing discrete aspects of several of these various streams of thought, none of which is generally exclusive of the other. As older generations of legal historians claimed, laws, formal though they were, mattered, even in the abstract, for they acted as means for the organization of colonial institutions and administrative routines and served as sources of royal legitimacy. As Premo has put it, Spanish colonialism was highly legalistic.34 Laws provided state officials and the community points of reference concerning appropriate behavior and procedure, whether or not they were actually observed. I also endorse the views of scholars who have gone so far to regard laws not just as important texts or discourses, but also as “realities” and “social facts” with “a life and an evolutionary logic of their own.”35 In this view, written laws are social realities and day-to-day conceptual forces that help to further shape other social and cultural relations. However, many rules for organization, behavior, and procedure were not written but customary.36 In addition, they were not pure “legal” texts, if such a thing has ever existed, but were instead, as Herzog holds, a blend of theological and social rules and everyday vernacular meanings.37 This does not mean that they lacked any separate existence or significance aside from justice, just that the ultimate meaning ascribed to them in judicial cases, and the particular manner of their application, was not apparent, univocal, or undisputed.
As Christiansen, De Trazegnies, Ghachem, Hespanha, Kellogg, Premo, Stern, Serulnikov, Twinam, and others claim, laws were subject to contestation, for the law is a social discourse or grammar in need of interpretation and susceptible, perhaps more clearly and legitimately than any other discourse, to rhetorical arguments and counterarguments, claims, and counterclaims. That the disputes were sometimes resolved in favor of, say, members of indigenous communities was at least in part a result of the fact that, as Borah, Cutter, and Owensby argue, legal texts and justice officials may have been inclined to paternalism and the protection of indigenous communities in response to the emphasis in Roman and canon law on sheltering needy people (miserabiles personae). This is not meant to detract from the agency of the natives who learned how to use the legal system and did so regularly and effectively, sometimes combined with physical threats.38 As Serulnikov notes, the courts sometimes found in favor of indigenous people to avoid the threat of communal violence.39
At other times, too, outcomes favorable to particular social groups or individuals resulted from ethical, religious, pseudoscientific, or “jurisprudential” views, even ones derived from long-standing canon law principles whose significance was established decades ago in the remarkable work of Harold Berman.40 However inconsistent, they owed their existence to doctrinal views on a variety of issues, from the nature of evidence to the understanding of causal relations between human actions and death. Of course, outcomes could be the direct result of the words and actions of the various participants, for, as Owensby demonstrates insightfully, the law was a “complex, open-ended interplay between recognized legal principles and the words and actions of all who took part in legal proceedings.” “Legal meaning” was thus not solely about written laws or communal understandings, but was also at least in part the result of the interaction of “complainants, witnesses, advocates, interpreters, notaries and judges.”41
In sum, laws, legal texts, principles, traditions, doctrines, particular conceptions of justice, and judicial procedures were factors in the way that familial relations unfolded and also shaped the way that litigants and authorities addressed domestic violence in both the colonies and the metropolis during the period of this study. Patriarchal customs, ethnic hierarchies, colonial interests, and other dominant cultural values informed and infused these factors, but they cannot by themselves account for the dynamics of family life or the judicial system’s handling of battery and spousal murder. To make better sense of gender, ethnic, and other social relations and conflicts linked to spousal murders, we must bring legal history back in alongside historical sociology and social history.
Therefore, this book discusses gender, familial, ethnic, and cultural relations and practices as well as the meaning of law, legal culture, and royal justice in shaping daily life and responding to crime. It relies not only on actual criminal records but also on an array of legal texts and manuals that were widely referred to by litigants (for an example, see Figure I.1) and sometimes cited by contemporary justice officials. Through both practical instructions for litigants, justice officials, and the public in general, and the forging of routine, such manuals eased access to justice and undoubtedly assisted the Spanish monarchy in establishing colonial control (“hegemony”) in its realm, both at home and overseas. This book also looks at the legal doctrines, customs, and traditions embedded in judicial procedures that appear to have been more or less standardized with the support of ancient, medieval, and more-recent texts and practical manuals that helped legitimate recourse to justice and legal mechanisms, creating “a certain habit (habitus) toward obedience.”42
1. AGN, Mexico, Provincias Internas, 6, fols. 44–85. A recogimiento (casa de recogida or arrepentidas) housed women who had “perverted” themselves and offended God by committing crimes of “dishonesty or impurity.” As in a monastery, the residents lived in community and typically supported themselves through sewing, embroidering, and the making of sweets. On the origin and operation of casas de recogidas, see María Dolores Pérez Baltasar, Mujeres Marginadas: Las Casas de Recogidas en Madrid (Madrid: Gráficas Lormo, 1984); idem, “Orígenes de los recogimientos de mujeres,” Cuadernos de Historia Moderna y Contemporánea, 6 (1985): 13–23; Josefina Muriel, Los recogimientos de mujeres: Respuesta a una problemática social novohispana (México: Universidad Nacional Autónoma de México, 1974); Barry Matthew Robinson, “La reclusión de mujeres rebeldes: el recogimiento en la Guerra de Independencia Mexicana, 1810–1819,” Fronteras de la Historia 15:2 (2010): 225–244. On the complex historical meanings of recogimiento, see Nancy E. van Deusen, Between the Sacred and the Worldly: The Institutional and Cultural Practice of Recogimiento in Colonial Lima (Stanford: Stanford University Press, 2001).
2. Good examples are found in micro-histories (studies of the past on a very small scale—for example, of a single criminal incident or peasant village) addressing cases in eighteenth-century France, Spain, the United States, Italy, and the Netherlands, respectively: Benoit Garnot, Un Crime Conjugal au 18e Siecle: L´Affair Boiveau (Paris: Imago, 1993); Tomás Mantecón, La muerte de Antonia Isabel Sánchez: Tiranía y escándalo en una sociedad del Norte español en el Antiguo Régimen (Alcalá de Henares: Centro de Estudios Cervantinos, 1997); Deborah Navas, Murdered by His Wife: An Absorbing Tale of Crime and Punishment in Eighteenth-Century Massachusetts (Amherst: University of Massachusetts Press, 1999); Tommaso Astarita, Village Justice: Community, Family and Popular Culture in Early Modern Italy (Baltimore: Johns Hopkins University Press, 1999); and Pieter Spierenburg, Written in Blood: Fatal Attraction in Enlightenment Amsterdam (Columbus: Ohio University Press, 2004).
3. On the significance of colonial justice for the operation of the monarchy, see Sarah Chambers, “Citizens Before the Law: The Role of Courts in Postindependence State Building in Spanish America,” in Miguel A. Centeno and Agustin E. Ferraro, eds., State and Nation Making in Latin America and Spain: Republics of the Possible (Cambridge: Cambridge University Press, 2013), 356–374; Tamar Herzog, Upholding Justice: Society, State, and the Penal System in Quito (1650–1750) (Ann Arbor: University of Michigan Press, 2004); and Brian Owensby, Empire of Law and Indian Justice in Colonial Mexico (Stanford: Stanford University Press, 2008). For the relatively comparable Portuguese case, see Antonio M. Hespanha, La gracia del derecho: Economía de la cultura en la edad moderna (Madrid: Centro de Estudios Constitucionales, 1993), 210–211.
4. Hegemony, a concept derived from the work of Marxist Italian philosopher Antonio Gramsci, can be understood as a dynamic and permanently in flux process of social and cultural domination by some over other individuals and social groups who willingly obey or consent, believing the situation to be natural, legitimate, inevitable, and even beneficial. Their beliefs and patterns of behavior are shaped in particular by religion, the legal system, the media, and education. See Antonio Gramsci, Prison Notebooks (New York: Columbia University Press, 1992), 233–238. For a dense account of the concept’s nuances, character, intellectual development, and relevance to contemporary politics, see Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy (London: Verso, 1986). For a reader-friendly general discussion of this notion, see John Charles Chasteen, Born in Blood and Fire: A Concise History of Latin America (New York: Norton, 2011), 56–62.
5. Alamiro Avila Martel, Esquema del derecho penal indiano (Santiago: Universidad de Chile, 1941), 77–78.
6. I owe the use of this expression to the suggestion of Bianca Premo, whose comments on this introduction were of great benefit to me. For a historiographical essay on the complexities behind an Atlantic perspective, see Premo, “On Currents and Comparisons: Gender and the Atlantic ‘Turn’ in Spanish America,” History Compass 8.3 (2010): 223–237.
7. Lawrence Stone, Road to Divorce: England 1530–1987 (Oxford: Oxford University Press, 1990), 8–11.
8. Philippe Ariés, Centuries of Childhood: A Social History of Family Life (New York: Knopf, 1962); Georges Duby, Love and Marriage in the Middle Ages (Chicago: University of Chicago Press, 1996); Jean Louis Flandrin, Familles: Parenté, maison, sexualité dans l’ancienne société (Paris: Hachette, 1976); idem, Sex in the Western World (New York: Routledge, 1991); François Lebrun, La vie conjugale sous l’Ancien Régime (Paris: Armand Collin, 1985); Silvia M. Arrom, The Women of Mexico City, 1790–1857 (Stanford: Stanford University Press, 1985); Richard Boyer, Lives of the Bigamists: Marriage, Family and Community in Colonial Mexico (Albuquerque: University of New Mexico Press, 1995); Ramón Gutiérrez, When Jesus Came, the Corn Mothers Went Away: Marriage, Sexuality and Power in New Mexico, 1500–1846 (Stanford: Stanford University Press, 1991); Asunción Lavrín, ed., Sexuality and Marriage in Colonial Latin America (Lincoln: University of Nebraska Press, 1989); Patricia Seed, To Love, Honor and Obey in Colonial Mexico (Stanford: Stanford University Press, 1986); Susan Socolow, The Women of Colonial Latin America (Cambridge: Cambridge University Press, 2000); Ann Twinam, Private Lives and Public Secrets (Stanford: Stanford University Press, 1999); Carmen Castañeda, Violación, estupro y sexualidad: Nueva Galicia, 1790–1821 (Guadalajara: Editorial Hexágono, 1989); Guiomar Dueñas, Los hijos del pecado: Ilegitimidad y vida familiar en la Santafé de Bogotá colonial (Bogotá: Editorial Universidad Nacional, 1997); Pilar Gonzalbo Aizpuru, Familia y orden colonial (México: El Colegio de México, 1998); Maria Emma Mannarelli, Pecados públicos: La ilegitimidad en Lima, Siglo XVII (Lima: Ediciones Flora Tirstán, 1993); María Beatriz Nizza da Silva, Sistema de Casamento no Brasil Colonial (São Paulo: Editora da Universidade de São Paulo, 1984); Sergio Ortega, De la santidad a la perversión o de porque no se cumplía la ley de Dios en la sociedad novohispana (México City: Grijalbo, 1986); Pablo Rodríguez, Sentimientos y vida familiar en el Nuevo Reino de Granada (Santafé de Bogotá: Editorial Ariel, 1997); Ronaldo Vainfas, org., História e sexualidade no Brasil (Rio de Janeiro: Graal, 1986); idem, Trópico dos pecados (Rio de Janeiro: Campus, 1989). For a more recent example, see Nicole Von Germeten, Violent Delights, Violent Ends: Sex, Race, and Honor in Colonial Cartagena de Indias (New Mexico: University of New Mexico Press, 2013).
9. See Victor M. Uribe-Uran, “Innocent Infants or Abusive Patriarchs? Spousal Homicides, the Punishment of Indians and the Law in Colonial Mexico, 1740s–1820s,” Journal of Latin American Studies 38.4 (2006): 793–828; idem, “Colonial Baracunatanas and Their Nasty Men: Spousal Homicides and the Law in New Granada, 1750–1810,” Journal of Social History 35.1 (2001): 43–72; and Richard Boyer, Colonial Lives: Documents on Latin American History (Oxford: Oxford University Press, 1999), 54–76, 185–200. See also Blanca Llanes Parra, “El enemigo en casa: El parricidio y otras formas de violencia interpersonal doméstica en el Madrid de los Austrias (1580–1700),” Nuevo Mundo-Mundos Nuevos, Coloquio 2008, 1–15, available at http://nuevomundo.revues.org/index24382.html; Scott K. Taylor, Honor and Violence in Golden Age Spain (New Haven: Yale University Press, 2008), 198; Lori Heise and Claudia Garcia-Moreno, “Violence by Intimate Partners,” in Etienne G. Krug, Linda L. Dahlberg, James A. Mercy, Anthony B. Zwi, and Rafael Lozano, eds., World Report on Violence and Health (Geneva: World Health Organization, 2002), 87–113.
10. Catherine Komisaruk, Labour and Love in Guatemala: The Eve of Independence (Stanford: Stanford University Press, 2013), 196–206; Steve Stern, The Secret History of Gender: Women, Men and Power in Late Colonial Mexico (Chapel Hill: University of North Carolina Press, 1995), 57–59, 112; Heise and Garcia-Moreno, “Violence by Intimate Partners,” 95.
11. Besides the ones already cited, some of the most significant monographs that address domestic conflicts and gender violence in the late colonial and early postcolonial periods include Raul A. Molina, La familia porteña en los siglos XVII y XVIII: Historia de los divorcios en el período hispánico (Buenos Aires: Fuentes Históricas y Genealógicas Argentinas, 1991); Eugenia Rodríguez Sáenz, Hijas, novias y esposas: Familia, matrimonio y violencia en el Valle Central de Costa Rica (Heredia: Editorial Universidad Nacional, 2000); Viviana Kluger, Escenas de la vida conyugal: Los conflictos matrimoniales en la sociedad virreinal rioplatense (Buenos Aires: Editorial Quorurm–UMSA, 2003), 245–246; José Luis Moreno, Historia de la familia en el Río de la Plata (Buenos Aires: Editorial Sudamericana, 2004), chapter 4; Arlene J. Díaz, Female Citizens, Patriarchs, and the Law in Venezuela, 1786–1904 (Lincoln: University of Nebraska Press, 2004); Beatríz Patiño, Criminalidad, ley penal y estructura social en la provincia de Antioquia, 1750–1820 (Medellín: IDEA, 1994), 375–377; Hermes Tovar Pinzón, La batalla de los sentidos: Infidelidad, adulterio y concubinato a fines de la colonia (Bogotá: Fondo Cultural Cafetero, 2004); Sarah Chambers, From Subjects to Citizens: Honor, Gender, and Politics in Arequipa, Peru, 1780–1854 (University Park: Pennsylvania State University Press, 1999), 101–103; Ana María Alonso, Thread of Blood: Colonialism, Revolution, and Gender on Mexico’s Northern Frontier (Tucson: University of Arizona Press, 1995), 213–230; Kimberley Gauderman, Women’s Lives in Colonial Quito: Gender, Law and Economy in Spanish America (Albuquerque: University of New Mexico Press, 2003), chapter 3; and Chad Thomas Black, The Limits of Gender Domination: Women, the Law and Political Crisis in Quito, 1765–1830 (Albuquerque: University of New Mexico Press, 2010), chapter 2.
12. This traditional explanation is summarized in J. A. Sharpe, “Domestic Homicide in Early Modern England,” Historical Journal 24 (1981): 29–48, esp. 36.
13. For a pioneering work in this regard, see Arrom, The Women of Mexico City, chapter 4. Abundant evidence of women’s public engagement and activities, economic and otherwise, can be found in Gauderman, Women’s Lives in Colonial Quito; and Black, The Limits of Gender Domination. See also Susan Socolow, The Women of Colonial Latin America (Cambridge: Cambridge University Press, 2000).
14. See Arrom, The Women of Mexico City, chapter 4; Rodríguez Sáenz, Hijas, novias y esposas, chapter 2; Gauderman, Women’s Lives in Colonial Quito, chapter 4; Pedro Pérez Herrero, “Evolución demográfica y estructura familiar en México 1750–1850,” in Pilar Gonzalbo Aizpuru, ed., Familias novohispanas: Siglos XVI al XIX (México: El Colegio de México, 1991), 345–371, esp. 357–359; Carmen Castañeda, “La formación de la pareja y el matrimonio,” in ibid., 73–90, esp. 81–82; Chambers, From Subjects to Citizens, 101–103; Susan Schroeder, Stephanie Wood, and Robert Haskett, eds., Indian Women of Early Mexico (Norman: University of Oklahoma Press, 1997), chapter 11; Komisaruk, Labour and Love in Guatemala, 9, 39–50, 54, 61–66, 114–129, 145–156, 187–192.
15. Hespanha, “De Iustitia a Disciplina,” in idem, La gracia del derecho, 203–273, esp. 232. For comparative purposes, see Douglas Hay, “Property, Authority and the Criminal Law,” in Douglas Hay et al., eds., Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (New York: Pantheon, 1975), 17–63, esp. 40–49.
16. See María Teresa Mojica Rivadeneira, “El derecho masculino de castigo en la colonia,” in René Salinas Mesa and María Teresa Mojica Rivadeneira, Conductas ilícitas y derecho de castigo durante la colonia: Los casos de Chile y Colombia (Bogotá: Universidad Externado de Colombia, 2005), 87–194. I thank Colombian historian Mabel López for this valuable reference.
17. Juan Javier Pescador, “Del dicho al hecho: Uxoricidios en el México central, 1769–1820,” in Pilar Gozalbo Aizpuru and Cecilia Rabell Romero, eds., Familia y vida privada en la historia de Iberoamerica: Seminario de historia de la familia (México: Centro de Estudios Históricos del Colegio de México-Instituto de Investigaciones Sociales de la UNAM, 1996), 373–386. John Leddy Phelan also stresses the gap between law and practice in the classic essay “Authority and Flexibility in the Spanish Imperial Bureaucracy,” Administrative Science Quarterly 5 (1960): 47–61. See also comments by Silvia Arrom, “New Directions in Mexican Legal History,” Americas 50.4 (1994): 461–465.
18. See Alfonso García Valdecasas, El hidalgo y el honor (Madrid: Editorial Revista de Occidente, 1948), 198–214; Bartholomé Bennassar, The Spanish Character: Attitudes and Mentalities from the Sixteenth to the Nineteenth Century, translated and with a preface by Benjamin Keen (Berkeley: University of California Press, 1979), chapter VIII; J. G. Peristany, Honour and Shame: The Values of Mediterranean Society (Chicago: University of Chicago Press, 1966); J. G. Peristany and Julian Pitt-Rivers, eds., Honour and Grace in Anthropology (Cambridge: Cambridge University Press, 1992); Taylor, Honor and Violence in Golden Age Spain. An insightful analysis of the concept itself and its historiography can be found in Tomás A. Mantecón Movellán, “El honor Mediterráneo desde la España moderna: Un traje nuevo del emperador?” Cuadernos de Historia de España, LXXXV–LXXXVI (2012): 435–458.
19. For a comparative volume on the colonial period, see Lyman Johnson and Sonya Lipsett-Rivera, eds., The Faces of Honor: Sex, Shame and Violence in Colonial Latin America (Albuquerque: University of New Mexico Press, 1999). See also Komisaruk, Labour and Love in Guatemala, 222–240. For the modern era, see Sueann Caulfield, Sarah C. Chambers, and Lara Putnam, eds., Honor, Status, and Law in Modern Latin America (Durham: Duke University Press, 2005). Several individual monographs touching on both male and female honor in Latin America are now available. For two recent ones on the period of our interest, see Lyman Johnson, Workshop of Revolution: Plebeian Buenos Aires and the Atlantic World, 1776–1810 (Durham: Duke University Press, 2011), esp. chapter 2; Sonya Lipsett-Rivera, Gender and the Negotiation of Daily Life in Mexico, 1750–1856 (Lincoln: University of Nebraska Press, 2012), 12–15 and chapters 6 and 8. See also Von Germeten, Violent Delights, Violent Ends.
20. Unquestionably, this was a relatively more fluid situation than was originally believed. See Twinam, Private Lives and Public Secrets; Komisaruk, Labour and Love in Guatemala, 222–240; Allyson M. Poska, Women and Authority in Early Modern Spain: The Peasants of Galicia (Oxford: Oxford University Press), esp. chapter 3; Von Germeten, Violent Delights, Violent Ends.
21. See Renato Barahona, Sex Crimes, Honour, and the Law in Early Modern Spain: Vizcaya, 1528–1735 (Toronto: University of Toronto Press, 2003); Taylor, Honor and Violence in Golden Age Spain; Lyman Johnson and Sonia Lipsett-Rivera, eds., The Faces of Honor; Caulfield, Chambers, and Putnam, eds., Honor, Status, and Law; Johnson, Workshop of Revolution, 68; Pieter Spierenburg, Violence and Punishment. Civilizing the Body Through Time (Cambridge: Polity, 2013), esp. 3–7; idem, A History of Murder: Personal Violence in Europe from the Middle Ages to the Present (Cambridge: Polity, 2008), 7–10, 68–70, 108–110, 116.
22. This went several centuries back. See, for instance, Francisco Javier Sánchez-Cid, La violencia contra la mujer en la Sevilla del Siglo de Oro (1569–1626) (Sevilla: Universidad de Sevilla, 2011), 55–58. See also Pablo José Abascal Monedero, La infidelidad y el adulterio en España (estudio histórico-legal) (Cordoba: Servicio de Publicaciones Universidad de Cordoba, 2009), 71–129.
23. Mathew D. Stroud, Fatal Union: A Pluralistic Approach to the Spanish Wife-Murder Comedias (Lewisburg: Bucknell University Press, 1990); Marcelin Defourneaux, Daily Life in Spain During the Golden Age (Stanford: Stanford University Press, 1966), 146–148; Sánchez-Cid, La violencia contra la mujer en la Sevilla del Siglo de Oro, 67–80, 91–99.
24. Colonialism is marked by a “politics [and legality] of difference” that, albeit contested and porous, is imposed by alien occupiers on the peoples they nominally control. See Frederick Cooper, Colonialism in Question: Theory, Knowledge, History (Berkeley: University of California Press, 2005). Patriarchy is here understood as a historical system of political and social relations and cultural values whereby some men concentrate power, status, and authority in both public and private (household) spaces, deriving as a result sexual, economic, political, social, and cultural benefits. This does not mean that women lack any rights or are under absolute subordination. See Elizabeth Dore, “One Step Forward, Two Steps Back: Gender and the State in the Long Nineteenth Century,” in Elizabeth Dore and Maxine Molyneux, eds., Hidden Histories of Gender and the State in Latin America (Durham: Duke University Press), 3–32, esp. 11–12. For more-elaborate definitions, see Bianca Premo, Children of the Father King: Youth, Authority, and Legal Minority in Colonial Lima (Chapel Hill: University of North Carolina Press, 2005), 9–10; Stern, The Secret History of Gender, 21. For a feminist historical and theoretical critique distinguishing various modalities of feminism, see Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988), esp. 21–30 and chapter 2 overall. For controversial and rather selective works questioning the validity of this concept in colonial Spanish America, see Kimberley Gauderman, Women’s Lives in Colonial Quito; and Black, The Limits of Gender Domination.
25. For a nuanced perspective on law as a means of domination, see Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), 556.
26. See Carlos Aguirre and Ricardo Salvatore, “Introduction: Writing the History of Law, Crime and Punishment in Latin America,” in Ricardo Salvatore, Carlos Aguirre, and Gilbert M. Joseph, eds., Crime and Punishment in Latin America (Durham: Duke University Press, 2001), 1–32; Mindie Lazarus-Black, Everyday Harm: Domestic Violence, Court Rites and Cultures of Reconciliation (Urbana: University of Illinois Press, 2007), 3, 159–176.
27. See, for instance, Rafael Altamira, Historia del derecho español (Madrid: Librería General de V. Suáres, 1903); idem, Manual de investigación de la historia del derecho indiano (México: Instituto Panamericano de Geografía e Historia, 1948); Ricardo Levene, Historia del derecho argentino, 5 vols. (Buenos Aires: Editorial Guillermo Fraksty Ltda., 1945); José María Ots Capdequí, El estado español en las Indias (México: Fondo de Cultura Económica, 1946); idem, Historia del derecho español en América y del derecho indiano (Madrid: Aguilar, 1969); Alfonso García Gallo, Estudios de historia del derecho indiano (Madrid: Instituto Nacional de Estudios Jurídicos, 1972); Silvio Zavala, Las instituciones jurídicas en la conquista de América (México: Editorial Porrúa, 1988).
28. See Hespanha, “De Iustitia a Disciplina,” 207.
29. See, for instance, Steve J. Stern, Peru’s Indian Peoples and the Challenge of Spanish Conquest: Huamanga to 1640 (Madison: University of Wisconsin Press, 1993); Fernando de Trazegnies, Ciriaco de Urtecho: Litigante por Amor (Lima: Pontificia Universidad Católica, 1995); Susan Kellogg, Law and the Transformation of Aztec Culture, 1500–1700 (Norman: University of Oklahoma Press, 1995); Sergio Serulnikov, Subverting Colonial Authority: Challenges to Spanish Rule in Eighteenth-Century Southern Andes (Durham: Duke University Press, 2003); Herman L. Bennett, Africans in Colonial Mexico: Absolutism, Christianity, and Afro-Creole Consciousness, 1570–1640 (Bloomington: Indiana University Press, 2005); and Malick W. Ghachem, The Old Regime and the Haitian Revolution (Cambridge: Cambridge University Press, 2012).
30. See Twinam, Public Lives and Private Secrets, 232; and, for a later period, Tanja Christiansen, Disobedience, Slander, Seduction and Assault: Women and Men in Cajamarca, Peru, 1862–1900 (Austin: University of Texas Press, 2004), 16–17.
31. See Woodrow Borah, Justice by Insurance: The General Indian Court of Colonial Mexico and the Legal Aides of the Half Real (Berkeley: University of California Press, 1983); Charles R. Cutter, The Legal Culture of Northern New Spain, 1700–1810 (Albuquerque: University of New Mexico Press, 1995); and Owensby, Empire of Law and Indian Justice.
32. Premo, Children of the Father King, 6, 20.
33. Herzog, Upholding Justice.
34. Premo, Children of the Father King, 6.
35. See Hespanha, “De Iustitia a Disciplina,” 204–205. Hespanha also insists on the powerful “intertextuality” of legal texts, a complex concept discussed later. See also Berman, Law and Revolution, especially its conclusion. On these texts’ institutional nature and weight in economic development, see Jeremy Adelman, Republic of Capital: Buenos Aires and the Legal Transformation of the Atlantic World (Stanford: Stanford University Press, 1999).
36. For insightful comments on the customary nature of many laws and legal “rusticity” in general, see Antonio M. Hespanha, “Sabios y rústicos: La dulce violencia de la razón jurídica,” in Hespanha, La gracia del derecho, 17–60. On the significance of custom for the formation of legal rules, see Berman. Law and Revolution, 555–556. See also Victor Tau Anzoategui, El poder de la costumbre: Estudios sobre el derecho consuetudinario en América hispana hasta la emancipación (Buenos Aires: Instituto de Investigaciones de Historia del Derecho, 2001).
37. It seems more accurate to say, though, as Berman insightfully established, that law is “custom transformed.” Law tends to originate as “unsystematized . . . informal . . . relations within communities.” The outgrowth of such customs turns into systematic legal rules of some kind. See Berman, Law and Revolution, 555–556.
38. See, for instance, Saliha Belmessous, ed., Native Claims: Indigenous Law Against Empire, 1500–1920 (Oxford: Oxford University Press, 2011), 3–16.
39. Serulnikov believes that “mass violence and juridical strategies were inextricably entwined and cannot be understood in isolation.” See Serulnikov, Subverting Colonial Authority, 138. See also Colin MacLachlan, Spain’s Empire in the New World: The Role of Ideas in Institutional and Social Change (Berkeley: University of California Press, 1988), 124; and Hay, “Property, Authority and the Criminal Law.”
40. Berman also stressed the multifaceted nature of Western law, which mixes dominant ideologies, protective mechanisms born out of custom, and canon law principles. Berman, Law and Revolution, 556–557.
41. Owensby, Empire of Law, 8. This is close to Herzog’s view. See Herzog, Upholding Justice, passim.
42. Hespanha offers an insightful discussion of the power and force of “textual traditions” in “De Iustitia a Disciplina,” 207–209, 232–234, 236, and 242.
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