Agüero - On Justice Adn Home Rule Tradition in The Spanish Colonial Order

QUADERNI FIORENTINI
per la storia del pensiero giuridico moderno
41
(2012)
Dott. A. Giuffr Editore Spa - Milano

ALEJANDRO AGERO
ON JUSTICE AND HOME RULE TRADITION

IN THE SPANISH COLONIAL ORDER.
CRIMINAL JUSTICE AND SELF GOVERNMENT
IN CRDOBA DEL TUCUMN
I. Introduction. II. Law and Justice in the pre-contemporary Spanish legal culture.
II.1. Law as a transcendent order and the subordinate place of positive law. II.2.
Factualism, particularism and customary law. II.3. Justice as a preeminent function of
government. The concept of Iurisdictio. II.4. Flexibility and adaptation of the
institutional order. Iurisdictio and arbitrium. III. Criminal justice as a field of
observation. III.1. Religion and Law in criminal justice. III.2. Indulgence,
dissimulation and bargaining. III.3. Utility, custom and convenience. IV. Locali-
zation of law (A first conclusion). V. Justice and home rule tradition. V.1. Kings
justice in the hands of the republic. The Tenientes in Crdoba del Tucumn. V.2. The
Justicia Mayor as Judge of appeal. V.3. The Bourbon reforms and some reflections on
the postcolonial experience. VI. Conclusions.
I. Introduction (*).
As is well known, from the last decades of the 20th century to
the present, the historical study of law and justice in western culture
has received increasing attention by different disciplines related to
history and social sciences. As social historians have recognized the
relevance of legal culture and institutional practice for the compre-
hension of the past (1), scholars enrolled in the tradition of legal
history have abandoned the formalistic approach based on legal
texts (that kind of retrospective dogmatic analysis that was the
(*) The original version of this essay was presented at the International Seminar
on the History of the Atlantic World, Harvard University, in August 2010.
(1) As its been noted, i.e., R. D. SALVATORE, C. AGUIRRE, Writing the History of
Law, Crime and Punishment in Latin America, in Crime and Punishment in Latin
America, a cura di R. D. Salvatore, C. Aguirre and G. M. Joseph, Durham & London,
Duke University Press, 2001, pp. 1-32.

174 QUADERNI FIORENTINI XLI (2012)
traditional approach used by the discipline) to pay more attention to

the cultural background, to the political imaginary weaved by
fundamental belief and values, trying to understand the local
sense of the legal discourse produced by a different culture.
Recognizing the otherness of the past, the deep gap at the level of
meanings opened after the enlightened revolutions in political and
juridical language is one of the most important postulates for the
new legal history. Among other topics, the so called critical legal
history led to a comprehensive review of the modern ages political
institutions putting aside the bias derived from the concept of State
in the description of the pre-contemporary legal culture (2).
However, the image of the old Spanish Monarchy as an
absolute state and the systematic and legalist approach on the
modern legal culture were still for long time present in the back-
ground of many studies about institutional practices in the Hispanic
colonial law (3). As Spanish colonial territories were organized
and governed according to the Castilian legal culture of the early
modern period, research on colonial institutional practices cannot
be separated from the general theoretical debate on law and political
structure of the old Spanish monarchy. (4) Our understanding and
(2) In the Iberian countries these topics were mainly discussed by B. CLAVERO,
Institucin poltica y Derecho. Acerca del concepto historiogrfico del Estado Moderno, in
Revista de Estudios Polticos , 19, 1981, pp. 43-57; A. M. HESPANHA, Para uma teoria
da histria institucional do Antigo Regime, in Poder e Instituies na Europa do Antigo
Regime. Colectnea de textos, a cura di A. M. Hespanha, Lisboa, Gulbenkian, 1984, pp.
7-89; and by the same author, A historiografia jurdico-institucional e a morte do estado,
in Anuario de Filosofa del Derecho , 3, 1986, pp. 191-227. A recent review in, C.
GARRIGA, Orden jurdico y poder poltico en el Antiguo Rgimen, in Istor. Revista de Historia
Internacional , 4, 2004, 16, pp. 13-44. I will use their arguments in the following section.
(3) A critical review on the academic tradition of studies about Spanish colonial
law in L. NUZZO, De Italia a las Indias. Un viaje del Derecho Comn, in Revista de
Estudios Socio-Jurdicos , 10, 2008, pp. 87-126.
(4) I will use the term colonial law to make reference to the normative
language used by the Spanish institutions settled in the colonial domains. I will consider
this language as a part of a larger cultural horizon brought to the New World by the
conquerors, as it is shown by the huge amount of documentation kept in the colonial
archives. I am aware of the relevance of the cultural point of view of the conquered
to understand the whole colonial experience avoiding the risk of reproducing a
Eurocentric speech, but as I am interested in discussing a particular perspective on the
Spanish legal history, that point of view will remain out of my scope in the present study.

ALEJANDRO AGERO 175
interpretations about the law and justice in the colonial world

depend on the theoretical point of view we take in general terms on
the legal and political culture of the Spanish Monarchy. At the same
time, testimonies taken from colonial archives may provide an
interesting observatory to analyze some general topics related to the
characters of the legal culture and the political structure of the
Monarchy (5).
From this perspective, I am going to focus on the relationship
between justice administration (particularly criminal justice) and
local autonomy, discussing the imprints derived from the classical
approach that has described the penal field as an institutional area
that would have been almost entirely under direct royal control
throughout the early modern period (6). I will begin pointing out
briefly some topics related to the different meanings of Law and
Justice in the Spanish pre-contemporary culture. Then I will try to
show the practical implications of this cultural framework in the
administration of criminal justice and in its local adaptation in the
colonial context. At this point I will use the legal doctrine and
archival sources to show that many features of the local practices of
criminal justice can be explained on the basis of the wide range of
discretion granted to the judges by the flexible nature of the Spanish
legal culture and its sensitiveness to local conditions. As a first
conclusion, I will suggest that an effect of localization of the law
and justice could be considered as a common pattern of the Spanish
legal culture of the modern ages. If this made it possible to adapt the
substantive principles to any particular context, it also affected the
standards of the institutional structure. According to this, in the final
(5) On the relationship between law and colonial cultures, see L. BENTON, Law
and Colonial Cultures. Legal Regimes in World History, 1400-1900, Cambridge, Univer-
sity Press, 2002.
(6) M. WEISSER, Crime and Punishment in Early Modern Spain, in Crime and the
Law. The Social History of Crime in Western Europe since 1500, a cura di V. Gatrell, B.
Lenman, and G. Parker, London, Europa Publicaitions, 1980, pp. 77-96, p. 76. In this
line, see also F. TOMS Y VALIENTE, El Derecho Penal de la Monarqua Absoluta, Madrid,
Tecnos, 1969; M. WEISSER, Crime and punishment in Early Modern Europe, Sussex,
Harvester Press, 1982.

point I will try to show how in a peripheral colonial context, like in

Crdoba del Tucumn, the Kings justice remained almost under
local control and fed a home rule tradition that would have left its
imprints on the postcolonial time.
II. Law and Justice in the pre-contemporary Spanish legal culture.
II.1. Law as a transcendent order and the subordinate place of

positive law.
The image of an Absolute State projected on the order of the
Spanish monarchy has been based largely on a voluntarist concep-
tion of law (the law understood as an expression of the sovereign
will of the monarch) that hardly took place in the dominant legal
theory of the Hispanic world during the colonial era. A dense
interpretation of the sources of legal culture of the time shows, on
the contrary, that the notion of law was referred to as a vague
normative camp, consisting in a long textual tradition, whose main
elements were above any act of will of any human authority. The
Law was not identified then with a set of human positive laws, but
with a transcendent order of divine creation, partially revealed by
theologist and jurists, that allowed to qualify as fair or unfair any
act or standard, regardless of the institutional authority that pro-
duced it. Not needing to resort to the discourse of the great
theologists to confirm this assertion. A simple lexicographical
observation shows the persistence of this cultural anti voluntarist
conception of the Law. In the dictionary of the Spanish Royal
Academy of 1732, we find that one of the first meanings of the word
Law (Derecho), as an adjective, is the idea of what is just, well
founded, reasonable . Then, in the same dictionary, the word
law, as a noun, appears to denote the different ways of mani-
festations of that transcendent order in a gradual hierarchy: Law:
What dictates the Nature, what God commanded, what defined our
Holy Mother the Church, constituted people, established the
Prince, the supreme legislator in his domains, or orders the city or
town for its domestic government, or introduced by customs .

ALEJANDRO AGERO 177
Immediately thereafter, the dictionary adds: Law: It is often used

for Justice (7).
From the order of nature and the mandates of religion to the
statutes or customs of a city, they were all considered different forms
of manifestation of that discursive camp designated as Law. Many
features of institutional practice and administration of justice of the
Spanish monarchy, not only in colonial order, can be explained as a
result of this complex naturalistic and religious conception of law.
Amongst the most significant consequences of such a conception is
that of a necessary and ongoing search for consensus on what could
be considered just or fair, to prevent that the positive laws, including
decisions taken from the top of the royal power, were liable to be
challenged as unjust and then legitimately disobeyed. Of course,
this could ultimately lead to forceful conflicts. However, the possi-
bility of legitimate resistance to the kings law was given by the same
religious foundations of the monarchy. Using the medieval formula
I obey but do not execute was just one of the many consequences
of the principle rooted in Catholic theology whereby an unjust law
or any standard which could be considered against religion or
natural law did not have to be obeyed. But the principle was also
operative in the faculty granted to the royal officers to interpret any
command from the King and suspend its execution at the possibility
of committing an injustice.
The primacy of religion in the definition of that transcendent
order in which Law was identified, led theologians and lawyers to
derive some conclusions that, even when they may be of difficult
application, were entirely coherent with those principles. Thus, for
example, a theologian in a monographic study of criminal justice of
the 16th century argued that the minister of justice, or the execu-
tioner, who thought that the condemned was innocent, was not
bound to obey or execute the sentence (8). The same argument, in a
more complex way, was used by a theologian in Lima, in 1604 to
require the Viceroy of Peru to suspend the execution of a royal
decree (Real Cedula) aimed to prohibit forced labor of the Indians,
(7) On line edition, available on www.rae.es, word Derecho.

(8) A. DE LA PEA, Orden de los juicios y penas criminales (c. 1570/80), BNE
[Spain National Library] manuscript 6379, Libro I, cap. XII, n. 29.

stating that ... in the things that are manifestly unjust or illegal and
against the laws of God, no command of any man even if he is the
King can oblige... And if the Pope must not be obeyed in illicit
things, then even less for the King who is inferior to the Pope (9).
Despite the emerging regalism in the next century, we can see how
these principles were still valid in some Castilian legal treaties from
the 18th century, when they advised royal magistrates to not execute
royals commands from which could result an offence to the royal
conscience (that is to say, to religious standards, mainly), to law
(understood in an objective and transcendental sense) or that may
cause any manifest unjust injury (manifiesta injusticia) to some-
ones acquired rights (10).
These statements only make sense within that strong anti
voluntarist conception of law whereby a positive statute, even if it
was an expression of the Kings will, would only have the force to
oblige if it could be considered held in a superior transcendent order
such as Divine or natural law, whose ultimate determination was to
be resolved rather in a cognitive way (academic discussions, schol-
ars opinion, etc.) than by acts of will. For this reason, it has been
said that the legal culture of the European Ius Commune was a rule
of doctrine. Thus, the intellectual elite, ecclesiastical and secular,
had a predominant weight in the determination of this legal order.
If this could function as a limitation to the power of the monarch, it
could provide the main argument for giving legal force to his laws,
at the same time. Because of this dual role of the doctrinal discourse,
providing legitimacy on the one hand, and setting limitations on the
other, and due to its singular role in shaping the behavior of political
institutions, Antonio Hespanha has noted the ambiguous nature of
the Iberian royal bureaucracy of the modern ages, showing how
(9) M. AGA, Tratado que contiene tres pareceres graves en Derecho sobre
justificacin de una Cedula Real que trata del servicio personal, y repartimientos de indios,
Lima, Antonio Ricardo, 1604, pp. 76-77.
(10) L. SANTAYANA BUSTILLO, Gobierno poltico de los pueblos de Espaa, y el
corregidor, alcalde y juez en ellos (1742), con unintroduzione di F. Toms y Valiente,
Madrid, Instituto de Estudios de Administracin Local, 1979, P. II, cap. V, n. 2, p. 218.

ALEJANDRO AGERO 179
royal officials acted as instruments and obstacles to the deployment

of the kings power on his territories (11).
II.2. Factualism, particularism and customary law.

The anti-voluntarist conception of Law is also linked to an-
other typical feature of the early modern Spanish legal culture:
factualism. With this expression I mean the admitted possibility to
derive normative arguments, an ought or a permission, from
factual conditions. While this is considered today a kind of fallacy by
the dominant ethical theory, it was normally accepted in pre con-
temporary moral language (12), and it justified modifications to
general standards according to local circumstances. Studying medi-
eval legal culture, Paolo Grossi used the notion of reicentrism to
point out the deep connection between a certain conception about
the nature of things (res-rei in Latin) and its central role in shaping
the law. So, within this cultural framework, legal rules appeared
conditioned by what was considered appropriate for each thing
according to its own nature (13). Factualism, rooted in the medieval
culture, is related to two typical features of the Hispanic legal
culture that have a special significance in the New World rule:
casuism and the high normative value assigned to the customary law.
Casuism and the topical structure of reasoning are both essen-
tial patterns of European legal tradition (14). In his studies on
Spanish law in America, the legal historian Tau Anzotegui noted
the close semantic relationship between case and fact and the
central role that both concepts played in the Spanish legal theory of
the modern ages as generators of Law. Factual conditions of the
New World would have exacerbated the possibilities of this kind of
argument, as for the Spanish jurists the Indies were seen as a space
characterized by diversity, mutability and distances that made it
(11) A. M. HESPANHA, Vsperas del Leviatn: instituciones y poder poltico

(Portugal, siglo XVIII), Madrid, Taurus, 1989, p. 414.
(12) A. MACINTYRE, Tras la virtud, Barcelona, Crtica, 2004, p. 104.
(13) P. GROSSI, El orden jurdico Medieval, Madrid, Marcial Pons, 1996, p. 89.
(14) T. VIEHWEG, Tpica y jurisprudencia, Madrid, Taurus, 1986, pp. 95-118.

impossible to enforce general standards (15). The concept of New

Earth was used as well in the same direction by colonial authorities
and jurists to justify exceptions to general standard (16). But it was
due to that common cultural pattern of factualism that these notions
made sense, as it was understood that the transcendent natural
order, even though total and unique in its imaginary composition,
had to be adapted in its concrete manifestations to the specific
conditions of each place. A remarkable tendency to particularism,
expressed in the conviction that each province needs laws, and its
own customs, which conform to it (17), and the high normative
value assigned to the customary law, (understood as a normative
camp factually emerged from the body politic of each community)
were two kinds of consequences derived from that frame of beliefs.
The legalist approach still usual in legal history, which has
focused mainly on what could be considered as a state law, has
traditionally overlapped the normative value assigned by modern
ages legal theory to local customary law. In a treatise by a presti-
gious 16th century Castilian jurist, we can read, for example: mu-
nicipal custom, that from the homeland, is considered as law and it
makes laws and the decrees from the princes shut up... immemorial
custom being founded in reason, even against law, is seen to be
approved by the King... privilege and custom are equal by Law and
custom even has the strength of special privilege... custom is stron-
ger than common law... (18). In the same sense, the most famous
jurist in Indies affairs, Solrzano Pereyra, says that what was
introduced and approved by the ancient custom has always deserved
tolerance, by custom often becomes licit what isnt, and it has the
(15) V. TAU ANZOTEGUI, Casuismo y Sistema. Indagacin histrica sobre el

espritu del Derecho Indiano, Buenos Aires, Instituto de Investigaciones de Historia del
Derecho, 1992, pp. 44-49; 97-108.
(16) J. M. MARILUZ URQUIJO, El concepto de tierra nueva en la fundamentacin de
la peculiaridad indiana, in IV Congreso Internacional de Historia del Derecho Indiano,
Mxico, Universidad Nacional Autnoma de Mxico, 1976, pp. 389-402.
(17) J. DE SOLRZANO PEREYRA, Poltica Indiana, (1647) Madrid, Mateo Sacristn,
1736, Lib. II, Cap. VI, n. 23, p. 79.
(18) J. CASTILLO DE BOVADILLA, Poltica para corregidores y seores de vasallos, en
tiempo de paz, y de guerra ([1597] 1704), facsimilar ed., Madrid, Instituto de Estudios de
Administracin Local, 1978, Lib. III, Cap. VIII, n. 194-196.

ALEJANDRO AGERO 181
presumption that is convenient and useful (19). This last reference

to what is convenient should be read under the hermeneutic frame
of a long semantic tradition that linked what was considered appro-
priate by nature for each thing (convenientia rerum) with the central
concept of aequitas, from which, in turn, were derived the notions
of justice and law (20). The concept of aequitas, which catholic
theologians ultimately identified with God, provided arguments to
link the transcendent natural order to what could have been con-
sidered as convenient and useful for each thing in its context.
II.3. Justice as a preeminent function of government. The

concept of Iurisdictio.
The concept of justice played a central role in the institutional
structure of the Hispanic order. Semantic changes here also bring us
to a completely different concept to that which emerged after the
illustrated revolutions. Institutional justice in the Hispanic pre-
contemporary world was not designed as a branch for applying
positive rules, but as a device for government aimed to preserve the
natural and social order (which was also considered part of the
natural order). Justice becomes an exclusive function of political
power in that the virtue which naturally tends toward the conser-
vation of pre-established equilibriums and proportions is therein
identified. Certainly, this discourse of power cannot be compre-
hended if one forgets the religious nature of the fundamental prin-
ciples that gave it sense. For the jurists of a Monarchy defined as
Catholic, the old medieval doctrines that grounded justice in those
religious foundations were still valid even in the late eighteenth cen-
tury, despite the emergence of new ideas concerned with a voluntarist
conception of law. For example, a legal manual published in 1785 in
Spain began with a definition of justice in these terms:
(Just) As God our Lord is the beginning, middle and end of
all things, so is He also infinitely good, wise and just, and in the holy
(19) J. DE SOLRZANO PEREYRA, Poltica, cit., Lib. II, Cap. VI, n. 14, p. 77.
(20) Aequitas est rerum convenientia quae in paribus causis paria iura desiderat.
Item Deus, qui secundum hoc quod desiderat, aequitas dicitur. Nihil autem est aequitas
quam Deus, P. GROSSI, El orden jurdico, cit., p. 180.

Scripture He is called Fount and Sun of Justice. For this reason our
Spanish Code of Las Partidas states that after God in his great
wisdom made all things, He maintained each one in its state, therein
showing His great goodness and Justice, and how those who are
appointed to do so on earth must uphold it (21).
To do justice on earth was nothing else but to keep things as
God had created them giving to each one what was due to it
according to its nature. The definition was held in the authority of
the most important legal text of the medieval Castilian tradition (Las
Siete Partidas, from the 13th century). Medieval as well (and still
operative) was the theological reading (from Roman classical texts)
that identified the cardinal virtue of Justice with the will to give to
each what rightfully belongs , as the assertion also held in the
modern moral literature, that the inviolable observance of justice
was the principal foundation of the monarchy of Spain , or
finally, that the real duty of the King was to carry out Justice in His
Kingdom (22).
According to that medieval doctrine, when human power
enters into action, society is already constituted and arranged ac-
cording to rules that affect the whole of creation. In this sense,
Justice may be much more than giving to each one what he
deserves, or in a broad sense, this expression may mean more than
our present perspective can imagine at first sight. Justice may be
all that which fits in with the harmonious pre-understanding of
creation instilled by Catholic socialization. That is why the late to
18th century practical jurist deemed it appropriate to refer in his
text to the authority of the Partidas again in order to state that
Justice was, for example, mistress of life, destroyer of vices, source
of the states peace, defender of the fatherland, protector of the com-
mon people, peoples strength, medicine for ailments, joy of vassals,
mildness of the air, calm of the sea, richness of the earth... (23). What
(21) L. GUARDIOLA Y SEZ, El corregidor perfecto y juez exactamente dotado de las

calidades necesarias y convenientes para el buen gobierno econmico y poltico de los
pueblos y la ms recta administracin de Justicia en ellos, Madrid, Imp. de Alfonso Lpez,
1785, pp. 1-2.
(22) Ivi, pp. 16; 35.
(23) Ivi, p. 19.

ALEJANDRO AGERO 183
may sound nowadays like a poetic metaphor possessed at that time the
full sense of moral truth in a text aimed at local judges and written,
according to its title, for the correct economic and political gov-
ernment of the towns, and the most upright administration of Justice
in them .
The purpose of that moral truth was none other than to
establish the ultimate reference field for determining what was just
and unjust in a moment necessarily prior to any human act of power.
The old roman concept of Iurisdictio was modified by medieval
jurists to link the exercise of power to the aforesaid theological
concept of justice. Defined as the power to declare the law and
establish fairness (aequitas), the notion of Iurisdictio designates
both the public power to settle a dispute (declaring the law) and that
of issuing general precepts (establishing fairness). A judges sentence
(quasi particularis lex) and a lex (custom, statute, ordinance, etc.) are
acts of jurisdiction and as such their normative value consists of
reflecting, in a specific context, some aspect of a higher normative
order. The value of such acts of jurisdiction does not derive so much
from the institutional nature of the authority which issues them, as
from the fact that they are held as the result of a process of
interpretation of the natural order of things. Juridical dynamics
are portrayed as an essentially interpretative activity that always
refers to that higher order (divine, natural, order of rudis aequitas)
which defines the framework for the possibility of a general or
particular human law (aequitas constituta) (24).
This was the conceptual matrix used by Castilian jurists of the
modern ages to create and rule political institutions which provided
the model of colonial rule. We can see this background reflected in
the institutional structure of the royal power (royal iurisdictio) in the
preeminent role assigned to those royal officers invested of ordinary
jurisdiction who were intended not only to settle judicial disputes
between private litigants and punish crimes, but also to rule and
govern the community by issuing local statutes (autos de buen
(24) J. VALLEJO, Ruda equidad, ley consumada. Concepcin de la potestad norma-

tiva (1250-1350), Madrid, Centro de Estudios Constitucionales, 1992. On the medieval
concept of Iurisdictio, P. COSTA, Iurisdictio. Semantica del potere politico medioevale
(1100-1433), Milano, Giuffr, 1969.

gobierno) and represent it as head of its body politic. All these

functions could be included in one definition of justice in institu-
tional terms. Quoting the word of one of the most known Castilian
jurists of the late 16th century: Justice is good and right governing
of Corregidor (the royal officer) to protect his subjects in welfare
and relieve them from evil and give each one what they deserve, and
what is theirs, distinguishing just from unjust, according to the
laws (25). The definition encompassed both the so called judicial
justice and the civil justice, also known as govern by justice (26). If in
the theoretical level Justice and Iurisdictio played as key concepts, in
the practical field of political power institutions, every public au-
thority was conceived as a magistrate set not to apply positive rules
but to keep order and govern his community.
Although from the sixteenth century a distinction between
matters of governance and justice was increasingly used, to give
priority to certain areas (finance, war, etc.) that required a more
expeditious way of action than doing justice, due to its own
discursive foundations a clear and definitive separation was impos-
sible (27). As a consequence of the primacy of justice in the institu-
tional settings of the Spanish Monarchy, every act of any public
authority could be taken to a court of justice to be revised in case of
injustice or injury to someones acquired rights. That happened not
only with the acts of a governor or a corregidor, but also with the
decrees of a Viceroy, whose decisions could be reviewed by a royal
court, a Real Audiencia, by way of appeal. This gave the chance for
those subjects socially capable of mobilizing the apparatus of justice,
to open a contested trial against government decisions that might
harm their status. Even in times of Bourbon reformism, this primacy
(25) J. CASTILLO DE BOVADILLA, Poltica, cit., Lib. II, Cap. II, n 13, t. 1, p. 225.
(26) About the concept of govern by justice in the Indies, GARRIGA, C. Sobre el
gobierno de la justicia en Indias (siglos XVI-XVII), in Revista de Historia del Derecho ,
34, Buenos Aires, 2006, pp. 67-160.
(27) To this conclusion arrived the Junta General de los Consejos, in 1568, when
the question was submitted to the King by colonial authorities, F. MURO ROMERO, Las
Presidencias-Gobernaciones en Indias (Siglo XVI), Sevilla, Universidad, 1975, pp. 133-
134. On the theoretical grounds of this inextricable connection, L. MANNORI, Per una
preistoria della funzione amministrativa. Cultura giuridica e attivit dei pubblici apparati
nellet del tardo diritto comune, in Quaderni Fiorentini , 19, 1990, pp. 323-504.

ALEJANDRO AGERO 185
of justice over governmental decisions was maintained. The power

traditionally granted to the Reales Audiencias to take the ultimate
decision about whether an issue should be considered as a matter of
government or justice and to review in instance of appeal the
Viceroys acts, was expressly ratified by a royal decree in 1806 (28).
II.4. Flexibility and adaptation of the institutional order. Iu-

risdictio and arbitrium.
Due to those characteristics, briefly mentioned before, the
institutional order of law that Spaniards brought to the New World
was flexible and adaptable. This was a consequence of its own
cultural background rather than a result of a special Crown policy
aimed to rule her colonial domains. Certainly, colonial factual
conditions may have often influenced in taking the inherent elasticity
of the Hispanic legal culture to an extreme degree but, in turn, that
flexibility played a key role in making possible the institutional
organization of the New World, helping the Monarchy keep the
loyalty of the colonial elites on its side almost until the fall of the
Spanish Atlantic Empire. Being a totalitarian order at the level of its
religious foundations (that provided the main cohesion factor and
the basic settings of its social structure), the legal field was like an
open arena for argumentation, apt to be shaped according to
common beliefs and values, and even to local or party interests
elevated to the category of convenience or public utility. Thus,
flexibility could be stretched both from above, that is to say from the
theoretical normative frame provided by religion, divine or natural
law, that allowed to invoke superior principles of justices and
fairness, and from below, through the customary law and the
possibility of justifying exceptional measures from factual conditions
and from the common needs in a certain social context.
Along with the concept of iurisdictio, the notion of arbitrium
iudicis forged by the late medieval legal theory strengthened even
further if possible the moment of judicial interpretation in the
(28) C. GARRIGA, Patrias criollas, plazas militares: sobre la Amrica de Carlos IV,
in La Amrica de Carlos IV, a cura di E. Martir, Buenos Aires, Instituto de Investiga-
ciones de Historia del Derecho, 2006, pp. 35-130, p. 107.

presence of the normative value of general precepts. It is impossible

to comprehend the activity of the Ancien Regime courts and mag-
istrates, the innovative force (in both formal and substantial aspects)
of the judicial style, the permanent synergy between doctrine and
praxis, if we dont have in mind the role played by the notion of
arbitrium iudicis. In areas of judicial practice that were considered
especially sensitive to factual conditions, as in criminal matters, there
might exist the impression that arbitrium in iudice nihil aliud est
quam iurisdictio (29), that is to say that in criminal matters the
power of judges was assimilated to that wide capacity to decide
according to the concrete circumstances of the case. Iurisconsul-
tum omnes poenas considerans et causas imponenedi dicit hodie
arbitraria , stated Cino Pistoiensis, one of the most important
jurists of the European Ius Commune of the 14th century. This
statement was in the background of the progressive transformation
in the substantive and adjective measures of punishment from the
late medieval to the early modern European culture. By arbitrium
not only an offence not provided in the ancient statutory law could
be punished, but its use affected also the kind of punishment (poena
arbitraria) and the standards of proof required (30).
The increasing justification of the arbitrium iudicis by the
doctrine made possible that changing process while the ancient
positive laws remained often unmodified but constantly and casuis-
tically adapted to new circumstances. Arbitrium was helpful for a
legal order that, faced with the natural and casuistic diversity
dictated by its own image of the world, had to hold its judges
responsible for the precise task of normative determination. If on
the one hand, abritrium would have helped to increase the effec-
tiveness of the criminal justice administration in the early modern
Europe, on the other, it opened another space for judicial discretion
(29) M. MECCARELLI, Arbitrium. Un aspetto sistematico degli ordinamenti giu-

ridici in et di diritto comune, Milano, Giuffr, 1998, p. 13.
(30) B. SCHNAPPER, Les Peines arbitraires du XIII au XVIIIe sicle (Doctrines
savantes et usages franais), [1st part], in Revue dHistoire du Droit , 41, 1973, pp.
237-277 and [2nd part] 42, 1974, pp. 81-112. See also, J. LANGBEIN, Torture and the Law
of Proof: Europe and England in the Ancien Rgime, Chicago, University of Chicago
Press, 1977.

ALEJANDRO AGERO 187
that was often used to moderate decisions, according to superior

values like mercy or compassion or even to what we could call today,
reasons of opportunity and convenience depending on the social
context in which the decision had to be taken. This was perfectly
coherent in a political structure in which the functions of gover-
nance and justice rested, by definition, on the same institutional
devices and discursive grounds. That is why, it has been said, that
this was a rule of judges, not of laws (31).
III. Criminal justice as a field of observation.

To the extent that the Spanish colonial rule in the Indies
reproduced that institutional structure of a government by judges,
judicial records of colonial courts provide an interesting field to
analyze much of the practical implications of that cultural frame-
work whose main features have been briefly characterized before.
Through the analysis of the normative language used by litigants and
judges we can see how far that transcendent conception of law was
operative in the daily levels of institutional activity. At the same time,
records show that officers in charge of carrying out justice in the
name of the king acted with a wide margin of discretion which not
only allowed but actually required them to include considerations of
convenience directly linked to the social context in which they had
to exercise their power.
Of course, if we read these archival sources from a legalist and
statalist point of view we would find that certain types of proceed-
ings can hardly fit with the image of a centralized criminal justice
system at the service of an Absolute State. So, we could be inclined
to consider that they show local deviations adopted by peripheral
and mostly lay judges. But if we consider those cultural grounds that
Ive mentioned before and that were usually expressed in the works
of jurists and theologians, we would find that the institutional
practice recorded on this sources was perfectly consistent with the
frame of possibility offered by the Hispanic legal culture. So I think
that these testimonies, although marginal, are useful to think in
(31) Cfr. De justicia de jueces a justicia de leyes. Hacia la Espaa de 1870, a cura
di M. Lorente, Madrid, Consejo General del Poder Judicial, 2007.

general and comparative terms, about the nature of Spanish law and
justice and its adaptations in the Indies.
III.1. Religion and Law in criminal justice.

In one of his latest essays, Franois-Xavier Guerra pointed out
the poor sensitivity of the secularized present to religious argu-
ments in the field of political thought, highlighting the remarkable
presence of biblical references in the debates that arose in con-
nection to the processes of Independence in Hispanic America (32).
Of course it is not new to say that the western legal tradition was
grounded in the Christian medieval thinking and in the institutional
development of the Catholic Church (33). But in institutional studies
the legalist approach tends to present the secular law as a separate
field legislatively defined overlapping the full implication of those
religious grounds in the pre-contemporary legal culture. Looking at
the legal field without the biases of the legalistic approach, scholars
of critical legal history have stressed the religious determination of
Law in the modern ages, underlying its configuration through a
textual tradition mobilized more by cultural agents than by political
authorities (34). From this point of view, thinking about the Law as
a separate normative field from religion is a retrospective projection
derived from our current categories. Beyond the differences that
were then recognized, religion and law made up a single textual
field from which it was possible to derive normative arguments to
be used in a secular court, because of the belief in a unique and
transcendent order. For this reason, in modern legal literature
(32) F.-X. GUERRA,Polticas sacadas de las sagradas escrituras. La referencia a la

Biblia en el debate poltico, siglos XVII a XIX, in lites intelectuales y modelos colectivos.
Mundo Ibrico, siglos XVI-XIX, a cura di M. Quijada, J. Bustamante, Madrid, CSIC,
2002, pp. 155-198.
(33) H.J. BERMAN, La formacin de la tradicin jurdica de occidente, Mxico,
Fondo de Cultura Econmica, 1996; P. PRODI, Una historia de la justicia. De la pluralidad
de fueros al dualismo moderno entre conciencia y derecho, Buenos Aires, Katz, 2008.
(34) B. CLAVERO, Textos Antigos em Tempos Modernos: a Determinao das
Transgresses, in Penlope, Fazer e Desfazer a Historia , 6, 1991, pp. 41-46; B.
CLAVERO, Delito y Pecado. Nocin y escala de transgresiones, in Sexo barroco y otras
transgresiones premodernas, a cura di F. Toms y Valiente et. al, Madrid, Alianza
Universidad, 1990, pp. 57-89.

ALEJANDRO AGERO 189
lawyers and judges were assimilated to priests ( because they serve

God who is the author of Justice ) (35). This had practical
implications in the institutional order. The framework of possibility
of institutional action was defined by textual fields that were not
entirely controllable through the exercise of a centralized political
will.
Lets see, for example, how crime was defined in a Castilian
manual designed to instruct local judges: In all criminal prosecu-
tions the body of the crime must be proved (corpus delicti) and in all
of them crime is fact, or facts, against Divine or human laws done in
detriment of a third party (36). The substantive definition points
out the importance of the religious field, which opened an inex-
haustible source of potential causes of incriminations beyond the
specific definitions introduced by human laws. The reference to the
injury to a third party provided a criterion to discern between the
so called forum of conscience (the ecclesiastical jurisdiction to
punish sins) and the external forum, however the notions of sin and
crime were so closely linked in the Hispanic legal semantics that
both concepts were taken almost as synonyms (37). Hence, the
criminal law of the modern ages was much more than a set of royal
laws defining crimes. The governors and magistrates of the Indies,
for example, were instructed to punish public sins (38). But what
were these public sins? A Spanish jurist, in the late eighteenth
century, noted that such public sins were those that ... are not
the particular crimes that have their names... but sins that offend
(35) F. BERMDEZ DE PEDRAZA, Arte legal para estudiar la jurisprudencia (1612),

Madrid, Civitas, 1992.
(36) G. FERNNDEZ DE HERRERA VILLARROEL, Prctica criminal (1672), Madrid,
Viuda de Juan Muoz, 1756, Lib. I, Cap. V, 17, p. 27.
(37) S. COVARRUBIAS, Tesoro de la Lengua Castellana (1611), Madrid, Turner,
1979, word Delito. See also, B. CLAVERO, Delito y pecado, cit., pp. 61-62.
(38) Instrucciones para asistentes, gobernadores, corregidores y otras justicias
de las Indias de 1530, in A. ZORITA, Leyes y ordenanzas reales de las indias (1574), a cura
di M. A. Porra, Mxico, Secretara de Hacienda y Crdito Pblico, 1983-1984, Lib. III,
tt. II, ley 1, n. 22 p. 218. Also, D. ENCINAS, Cedulario Indiano (1596), ed. facsimilar a
cura di A. Garca Gallo, Madrid, Cultura Hispnica, 1945-1946, II, f. 23.

God and the Republic because of the bad example to the oth-
ers (39).
Probably, in a Catholic society the notion of sin was much
more effective to shape the behavior of its members than that of
crime derived from human positive laws. In the criminal records that
I have observed it is a common pattern that judges ask the defen-
dant, for example, if he did not know that such things [the crime
he was accused of] are mortal sins and offenses against God (40).
Even the Crown had to resort to the notion of sin to encourage the
obedience of her laws. The strength of penal law was a matter long
discussed by Catholic theologians (41). But a simple example taken
from the colonial laws can help us to understand the full implication
of what I am saying. In 1776 the Crown sent a royal letter to order
to the clergy of the Indies that, from pulpits and confessionals,
should be banished the mistake of believing that smuggling is not
a sin. The royal text urged religious authorities to convey to
subjects the certainty that those who committed smuggling were
unfaithful to the King and not only broke the human laws but also
the commandments of God (42).
(39) J. LVAREZ Y POSADILLA, Practica criminal por principios, modo y forma de

instruir los procesos criminales en sumario de las causas de oficio de justicia contra los
abusos introducidos, Valladolid, Viuda e Hijos de Santander, 1794, III, p. 171.
(40) AHPC, E, 1, 182, 4, 1695, f. 45 v. Archival collections from the Provincial
Historical Archive of Crdoba are quoted as AHPC, followed by the letter that identifies
the series as follows: C, for documents taken from the series called Crime, which
contains judicial records of criminal trials from the 17th to the 19th centuries. Then the
numbers of the folder, file and the year in which the case took place are indicated,
followed by the number of the folio when it is possible (sometimes documents lack of
these numbers); E, for documents taken from the series called Escribanas which
contains the formal registries of the public notaries of the City (Escribanos). This series
also contains judicial trial records, and the folder, file and year are quoted in the same
way; G, for documents taken from the series called Gobierno, which contains
governmental papers and acts, issued by Governors or Tenientes. In this case, the first
number after the G, indicates the Box, followed by the number of the file and the year.
(41) A. DE CASTRO, De potestate legis poenalis, (1550), edizione latina-spagnola a
cura di Laureano Snchez Gallego, Murcia, Sucesores de Nogus, 1931.
(42) J. J. MATRAYA Y RICCI, Catalogo cronolgico de Pragmticas, Cdulas, Decre-
tos, Ordenes y Resoluciones Reales (1819), con unintroduzione di J. M. Mariluz Urquijo,
Buenos Aires, Instituto de Investigaciones de Historia del Derecho, 1978, n. 1104, p.
357.

ALEJANDRO AGERO 191
Invoking divine law or the textual sources of the catholic

tradition to support an argument in a criminal case was also a
common action among litigants and judges. The principle about the
ignorance of law was not preached in relation to positive law, but to
the common language of sins and acts that offended God. Thus, for
example, to reject a defensive argument based on the ignorance and
rusticity of the defendant, a prosecutor said, in 1708, that every
Catholic knows that to kill goes against the fifth divine command-
ment and that it should not be done under penalty of being
punished (43). Moreover, it was enough to be a rational creature
to be bound by what God had commanded. In the case against a
drunk mulatto, accused of brawls and knife attack, the prosecutor
argued that it is known among us that are rational creatures the
precept we have by divine law that we should not drink such
liquor... because of the damage that it cause to the human body and
to other people ... , claiming the judge to act with his usual zeal
so in the divine as in the human... (44).
The Catholic Bible was cited as a direct normative source in
litigation before the secular justice. A prosecutor justified his request
of death penalty for some prisoners accused of rebellion, invoking
the penalties imposed by the Divine and Supreme Judge to those
who, rebelled against his commandments... as it is told in the Holy
Scripture (45). The sacred texts were also used to support argu-
ments of procedural law. A defender invoked St. Matthew and St.
John to hold an axiomatic rule of procedural law of the Ancient
Regime: dictum unius est dictum nullius because, said the alle-
gation, according to the chapters of St. Matthew and St. John: In
ore duorum vel trium stabit omne berbum (sic) (46). With the same
purpose another defender also pleaded fragments of the Old Tes-
tament (Deuteronomy) to say that one single witness was not enough
to convict. Besides the scriptures, the argument was held in the
(43) AHPC, C, 2, 4, 1707, f. 234 v.

(44) AHPC, C, 8, 21, 1755.
(45) AHPC, C, 30, 15, 1775, f. 83 r.
(46) AHPC, C, 17, 3, 1762. See Gospel of St. Matthew, 18, 15-16. About the
Castilian procedural law, M. P. ALONSO ROMERO, El proceso penal en Castilla. Siglo
XIII-XVIII, Salamanca, Universidad de Salamanca, 1982, p. 230.

common opinion of doctors , that is to say, the dominant doctrine

among the scholars, and in the natural law (47). These arguments
were fully consistent in a legal culture that grounded the basic
elements of procedural law in the divine and natural law (48).
Finally, I would like to make brief reference to the goals that
encouraged the institutional action of criminal justice. Punishing
public sins and carrying out justice to maintain peace in every town
was considered an obligation imposed by the divine providence to
avoid collective misfortune derived from Gods displeasure. The
crown used to send orders to the colonial authorities to encourage
the punishment of public sins to achieve Gods mercy and the
common happiness, especially in times of need (49). In a small town
like Cordoba, the same providentialism was manifest, for example,
when a drought threatened the harvest of the crops of the city; the
council decided to carry out processions and prayers and punish
public sins to reverse this state of disgrace (50). By that time, in
1650, the provincial governor encouraged the authorities of the city
(47) AHPC, C, 5, 5, 1746. In this case, the reference was to Deuteronomy 17,
6 and 19, 15.
(48) M. P. ALONSO ROMERO, El solemne orden de los juicios. La lentitud como
problema en la historia del proceso en Castilla, in Derecho y proceso. Anuario de la
Facultad de Derecho de la Universidad Autnoma de Madrid, 5, a cura di Juan Damin
Moreno, Madrid, UAM-BOE, 2001, pp. 23-53, p. 42. On the natural law foundations of
procedural principles, M. SCHMOECKEL, Procedure, proof, and evidence, in, Christianity
and Law. An introduction, a cura di, J. Witte Jr., F. S. Alexander, Cambridge, University
Press, 2008, pp. 143-162; G. GORLA, Iura naturalia sun immutabilia. I limiti al potere del
Principe nella dottrina e nella giurisprudenza forense fra i secoli XVI e XVIII, in Diritto
e potere nella storia europea. Quarto Congresso Internazionale della Societ Italiana di
Storia del Diritto, v. 2, Firenze, L.S. Olschki, 1982, pp. 629-684, pp. 639-640.
(49) Taken from a royal letter sent in 1677 to the Viceroy of Peru and to all royal
authorities in the Indies in 1679, in Cedulario Americano del Siglo XVIII: Coleccin de
disposiciones legales indianas desde 1680 a 1800, contenidas en los Cedularios del Archivo
General de Indias, a cura e con unintroduzione di A. Muro Orejn, Sevilla, Escuela de
Estudios Hispano-Americanos de Sevilla, 1956, I, doc. 6 pp. 13-15. Similar texts
ordering to punish public sins as a mean to obtain Gods grace, can be seen in royals
letters of 1633, 1658 y 1668, in M. J. de AYALA, Diccionario de gobierno y legislacin de
las Indias (1792), a cura di M. M. del Vas Mingo, Madrid, Cultura Hispnica, 1988-1996,
t. XI, pp. 86-87.
(50) Actas capitulares. Libro noveno, Crdoba, Archivo Municipal de Crdoba,
1952, p. 301.

ALEJANDRO AGERO 193
to take care of the divine worship service claiming for public

sins to be punished and for peace to be preserved because
doing this our Lord God will be served and will use His divine
mercy with this city, mostly in times of calamities and misfor-
tune... (51). Still in the manual for local judges of the 18th century,
which I have mentioned before, the punishment of public sins
was described as the most adequate measure to ensure peace in the
towns (52).
With these brief references I do not mean to deny what from
our current perspective are the well known cruelties of the Hispanic
justice of the Ancient Regime. I just intend to remark that the legal
order was so closely linked to a set of cultural foundation provided
by religion, that it can hardly be described in terms of a state law.
Although this was in line with the religious totalitarianism that
defined one of the constitutive features of the Catholic monarchy, it
opened the legal reasoning to textual fields, rules and values that
were not easily controlled by a central legislative authority. Hence,
institutional decisions depended on the interpretative consensus of
the intellectual and social elites and on the factual context within
which judges had to act.
III.2. Indulgence, dissimulation and bargaining.

Evidence of what I have been saying is the wide range of ar-
guments used in judicial reasoning related to virtues such as love and
piety, preached as values that necessarily had to guide the task of the
judges and that served to justify institutional decisions (that is to say,
that played a normative function). The systematic use of arguments
that appealed to the pity or commiseration that the judge had to have
towards the defendants, though commonly linked to some pejorative
condition assigned to them (rustic, ignorant, new in the faith, etc.),
often achieved the successful outcome of closing the case without
reaching the sentence or moderating the punishment or simply re-
placing it by a warning, a specific measure of compensation or by
(51) Actas capitulares. Libro dcimo, Crdoba, Archivo Municipal de Crdoba,

1953, p. 26.
(52) L. SANTAYANA BUSTILLO, Gobierno poltico, cit., II, p. 245.

prison time that the defendant had served during the process (53).
Historians familiar with colonial records have highlighted this lenitive
quality of colonial criminal justice as a curious and surprising feature,
which is common in the proceedings of colonial judges (54).
If the social conditions of small colonial communities could
encourage this lenient behavior of judges, as it has been suggested,
we should look for its normative grounds in the central role that the
Catholic tradition awarded to the power of grace. The recurrent
use of royal pardons and the many topics of legal and theological
literature that gave the judges the duty of acting compassionately,
moderating justice with mercy, were based on the normative value of
that virtue. This allowed any judge, at any level of the institutional
hierarchy, to play the image of a King who, as God, had to use both
Justice and Mercy. The inextricable link between piety and justice,
or compassion and punishment, was a guiding principle for the
exercise of criminal jurisdiction by which obedience was sought to
be held through the bond of love (55). Justice and mercy appeared as
(53) A. AGERO, Clemencia, perdn y disimulo en la justicia criminal de antiguo

rgimen. Su praxis en Crdoba del Tucumn, siglos XVII y XVIII, in Revista de Historia
del Derecho , 32, 2004, pp. 33-81, pp. 33-81.
(54) A. LEVAGGI, Las instituciones de clemencia en el derecho penal rioplatense,
in IV Congreso Internacional de Historia del Derecho Indiano, Mxico, Universidad
Nacional Autnoma de Mxico, 1976, pp. 243-297. See also B. TAYLOR, Drinking,
Homicide, and Rebellion in Colonial Mexican Villages, Stanford, Stanford University
Press, 1979, pp. 101-102; C. CUTTER, The legal culture of northern New Spain 1700-1810.
Albuquerque, University of New Mexico Press, 1995, p. 145; T. HERZOG, La adminis-
tracin como un fenmeno social: la justicia penal de la ciudad de Quito (1650-1750),
Madrid, Centro de Estudios Constitucionales, 1995, p. 246. Also in Castile the use of
pardons was a systematic feature of the penal praxis, J. L. DE LAS HERAS SANTOS, La
justicia penal de los Austria en la Corona de Castilla, Salamanca, Universidad de
Salamanca, 1994, p. 37.
(55) As Castillo de Bovadilla said in the late 16th century, Since justice must be
performed on wrongdoers, but not so severely that the praiseworthy door of clemency is
closed, which makes judges loved, and if loved then feared, for no one loves another
without fearing to anger him, J. CASTILLO DE BOVADILLA, Poltica, cit., Lib. II, Cap. III,
n. 6. About this topic, A. M. HESPANHA, La gracia del derecho. Economa de la cultura en
la Edad Moderna, Madrid, Centro de Estudios Constitucionales, 1993, pp. 203-273;
1997; A. M. HESPANHA, La senda amorosa del Derecho: Amor y Justicia en el discurso
jurdico moderno, in Las pasiones del jurista. Amor, memoria, melancola, imaginacin, a
cura di C. Petit, Madrid, Centro de Estudios Constitucionales, 1997, pp. 23-74.

ALEJANDRO AGERO 195
two intimately linked concepts, even in the practical literature

towards the end of the 18th century (56). Still in that time, a manual
for judges recalled that harsh penalties provided by royal laws were
introduced only ad terrorem, and that penalty should always be
tempered having a just cause (57).
Another possibility to justify lenient behavior of the judges was
provided by a meaningful concept whose signifier was quite explicit
about it: dissimulation. Following the canonical tradition, theolo-
gians and lawyers admitted that in some cases where the punishment
might result in a greater harm to the community and when the
injured party was in some ways satisfied, the punishment could and
still had to be dissimulated (58). In 1698, a Mexican theologian,
Agustin de Vetancurt, exposed a perfect synthesis of this doctrine,
arguing that in some cases, Princes and Lords should use dissimu-
lation because if they would want to ban all sins, to avoid some of
them, bigger ones could follow... . For reasons of prudence, the
Prince had to tolerate and dissimulate some sins, that is, not to
punish men who committed them , especially when those sins did
not disturb the Republic (59). All these cultural elements can help
us to explain some common patterns observed in the archive, like
the frequent suspension of proceedings, the appeal to compassion
to justify a moderate punishment, or the systematic claims addressed
to judges to act by way of mercy. The values that inspired the
doctrine of dissimulation authorized the judge to suspend a process,
for example, when the honor of a leading member of the community
was compromised. As a judge did in Cordoba in 1750, after he
(56) And it must be remarked that vindictive Justice, when born, not of
cruelty, ambition or vengeance, but of zeal for the public good, does not oppose or
contradict the moral virtue of mercy; because although seeming in some way contrary,
they are nevertheless as united as sisters... , L. GUARDIOLA Y SEZ, El corregidor perfecto,
cit., p. 9.
(57) L. SANTAYANA BUSTILLO, Gobierno poltico, cit., p. 232.
(58) J. DE MATIENZO, El gobierno del Per, (1567), a cura e con unintroduzione
di G. Lohmann Villena, Paris, Institut Franais dEtudes Andines, 1967, II, cap. XXIII,
pp. 322-323.
(59) A. VETANCURT, Teatro Mexicano: descripcion breve de los sucessos exem-
plares, historicos, politicos, militares, y religiosos del nuevo mundo Occidental de las Indias,
Mxico, Viuda de Iuan de Ribera, 1698, II, tratado III, cap. XIII, n. 84, p. 89.

found out that a priest and a woman of noble family were under
suspect. The judge justified his decision on the delicate nature of
the issue and on that the good name of religious people and of a
woman of good quality may be exposed to risk (60).
Criminal justice appeared susceptible to the characteristic
social hierarchies of Hispanic communities. And so it was to the
extent that the intervention in criminal proceedings of people of
high social hierarchy to ask the judge to act with mercy or to
persuade the parties to agree a peace deal to end the prosecution was
legitimately admitted. In 1736, for example, a judge of Cordoba
decided to suspend a criminal prosecution for the theft of jewels
from a church, imposing as a lenient sentence on the accused the
duty to return to his village to live with his family. Among the
considerations justifying his decision, the judge noted that people
of great entity and jealous of the public peace had interceded to
resolve the case using his compassion (61). The parents of a boy
murdered in 1795, in a deed granting a pardon for the accused, after
asking the judge to act compassionately, expressed that they had
been persuaded to forgive the crime by persons of authority
letters, and virtue (62). Although these kinds of interventions of
important people of the community to intercede in a criminal
prosecution do not usually appear in the legalist descriptions of the
Hispanic criminal justice system of the modern age, as they are often
more concerned with its inquisitive aspects, we can also find their
normative foundations in the Castilian legal literature. For example,
in the aforementioned work by Castillo de Bovadilla, who had been
a judge in Castile for a long period during the 16th century, he says:
... in criminal cases with prisoners, where piety has a place if there
is no offense to the Republic, the gentleman, and religious, and
anyone else who begs and asks the judge to moderate and lessen the
severity of the penalty, must be admitted... . The normative
grounds for this advice were in the sacred texts, specifically in the
Exodus and in letters to the emperor of Macedonia sent by St.
(60) AHPC, E, 1, 309, 3 1750, f. 43r.-v.

(61) AHPC, E, 1, 279, 8, 1736, auto del 9 de abril de 1736.
(62) AHPC, C, 66, 1, 1795.

ALEJANDRO AGERO 197
Augustine, who for his great clemency often interceded for the
felons (63).
In disputes between parties, love, friendship and kinship were
invoked as decisive reasons by the offended to pardon the accused,
or to desist from the prosecution or to settle the conflict by an
agreement or negotiation (64). Pacts of peace, concords, and par-
dons, were usual among the conflicts characterized by relative social
equality between the parties (65). They were often the result of out
of court agreements and not always formalized in written acts.
However, some evidence has enabled us to learn about this kind of
ritual. It involved local judges and domestic authorities (the father of
the victim, the father in law of the aggressor, etc.) who deliberated
and agreed on the need to make peace. Then the parties were called
to seal the deal with a hug (66). Even though some scholars have
considered this kind of social rituals as a practice used to escape
from what would be the legal system of justice (and so they speak
of infrajustice or parajustice) (67), once again the legal literature helps
us to understand the cultural basis of these social practices and their
inclusion within the possibility framework offered by the legal
culture to a local magistrate, who was advised that will always
show his will and happiness that there will be agreement among the
disparate subjects to avoid lawsuits and disputes, ... because thus
God is served, and because it is at the Republics convenience to
avoid and shorten litigation, since the goal of justice is the
(63) J. CASTILLO DE BOVADILLA, Poltica, cit., Lib. III, Cap. X, n. 16, t. 2, p. 211.
(64) M. CLANCHY, Law and Love in the Middle Ages, in Disputes and settlements.
Law and human relations in the West, a cura di J. Bossy, Cambridge, Cambridge
University Press, 1983, pp. 47-67; N. CASTAN, The Arbitration of Disputes under the
Ancien Rgime, in Disputes and settlements, cit., pp. 219-260; J. VALLEJO, Amor de
rbitros. Episodio de la sucesin de Per Afn de Ribera el Viejo, in Fallstudien zur
spanischen und protugiesischen Justiz 15. bis 20. Jahrhundert, a cura di J. M. Scholz,
Frankfurt am Main 1994, V. Klostermann, pp. 211-269.
(65) About this kind of conflicts, S. ROBERTS, The Study of Dispute: Anthropo-
logical Perspectives, in Disputes and settlements, cit., pp. 1-24.
(66) AHPC, C, 4, 27, 1736.
(67) B. GARNOT, Justice, infrajustice, parajustice et extrajustice dans la France
dAncien Rgime, in Crime, Histoire & Socits/ Crime, History & Societies , 4, 2000,
1, pp. 103-120.

peace (68). Despite the prevalence of the inquisitive aspect to

which institutional historiography has paid greater attention, the
possibility of agreements between parties in any criminal case was an
institutional practice acknowledged and supported by the late Ius
Commune culture (69).
III.3. Utility, custom and convenience.

A well known feature of the Hispanic (and European) old
criminal justice is the strong utilitarian character that it acquired in
the transition from the late middle ages to the early modern times.
The commutation of blood sentences (death or mutilation) for the
increasing use of punishment consisting in the exploitation of the
workforce of the offenders (galleys, mines, armies, etc.) has been one
of the most important pieces of evidence for this argument (70).
While these forms of punishment are usually associated with the use
of criminal law in the state-building process of the Absolute
Monarchy, it is often put aside the fact that, by invoking the customs
or what could be regarded as more convenient for each place,
according to its factual or human conditions, criminal utilitarianism
could have become a powerful tool for the services of local elites as
well.
A typical colonial example is the process by which the Spanish
in the Indies achieved to use the forced labor (servicio personal) of
the Indians as a kind of punishment, despite the many royal laws
that attempted to ban this practice. Faced with these prohibitions, in
the mid-sixteenth century, the settlers argued that the forced labor
of the Indians should be permitted as a kind of penalty, because,
among other reasons, in America there were no galleys or borders
or other places where they can be forced to serve... and because
(68) J. CASTILLO DE BOVADILLA, Poltica, cit., Lib. III, Cap. XV, n. 87.
(69) Giulio Claro, of great influence in the legal culture of early modern Spain,
acknowledged that by general custom of Italy licitum est facere pacem pro quocunque
crimine, quoted in I. BIROCCHI, La giustizia di tipo egemonico: qualche spunto di
riflessione, in Penale, Giustizia, Potere. Per ricordare Mario Sbriccoli, a cura di L. Lacch,
C. Latini, P. Marchetti e M. Meccarelli, Macerata, EUM, 2007, pp. 179-211, p. 191.
(70) R. PIKE, Penal Servitude in Early Modern Spain, Madison, University of
Wisconsin Press, 1983.

ALEJANDRO AGERO 199
there was no way to control the penalties of banishment (due to the

features of the territory). In addition to this, they argued that Indians
didnt suffer whipping penalties in the same way the Spanish did
(because they lacked the same sense of honor) and that forced labor
was even convenient for Indians themselves because during this time
they could learn skilled trades and good manners. The Crown
responded by sending a royal letter to her Reales Audiencias in the
Indies stating for everyone in their district to do and provide what
they may see as more convenient and just according to what they can
and ought to do with only one limit: forced labor imposed as a
penalty couldnt be perpetual (71). This decision, along with similar
ones sent thereafter, was included in the compilation of royal laws of
1680. The Crown had to accept that the penalties of forced labor
imposed on the Indians were applied to the needs of the Repub-
lic (72). In spite of the limit fixed by the royal law, I have found,
among the records of Crdoba del Tucumn, cases in which per-
petual forced labor was imposed as a grace measure of the judge
to Indians or mestizos who deserved the death penalty (73).
Given the difficulties in applying penalties like galleys in the
districts of the hinterland, as was the case of Crdoba, and given the
lack of presidios, a prosecutor argued that the punishment should
fit the comfort of each place for that crimes do not rest unpun-
ished, and added: as it is clearly seen in this city the practice
followed with the prisoners sentenced to die at the gallows, as there
is no executioner or other person to take over, they are sent to be
shot and after that the death body is hung from the gallows... (74).
The normative function played by factual circumstances and cus-
toms allowed the judges to adjust the punishment to the different
conditions under which they had to act. The value of customary law
was well known to the litigants. In 1762 a woman claimed she was
(71) A. ZORITA, Leyes y ordenanzas, cit., Lib. VIII, tt. VI, ley 3, p. 355-356.
(72) Recopilacin de las leyes de los Reynos de las Indias (1680), 4 imp. 1791, ed.
facs., Madrid, Centro de Estudios Polticos y Constitucionales-Boletn Oficial del
Estado, 1998. [quoted as R. I., followed by the number of Book, title and law], R. I., 7,
8, 10.
(73) AHPC, E, 1, 6, 8, 1598, f. 207r; AHPC, C, 2, 13, 1708, 291r-v; AHPC, C,
3, 12, 1714, f. 293v - 294r.
(74) AHPC, C, 7, 15, 1753.

entitled to defend her husband accused of a crime and being a

fugitive, despite the positive laws that required the presence of the
accused to hear his defense. She invoked in her allegation the very
laudable, prescribed and well established custom in this city and its
courts, according to which since more than ten years up to now,
have admitted to hear the wives of an absent defendant in cases of
this nature... . In her arguments she recalled that for the old and
new law of these kingdoms, [the King] approves and declares that
the customs of the cities and places are special law and that custom
is even more valid when it is [more] opposed to positive law, cause
with it privileged force repeals it, according to the Law and to the
common opinion of the doctors... . The Real Audiencia from
Charcas supported her argument after reviewing the case in ap-
peal (75). These words seem to have been literally taken from some
of the legal manual I mentioned above, although there is no a
specific reference in the document.
Like customary law, the reasons of convenience provided a
strong argument to justify decisions related to the interests and
needs of each location. In Crdoba, during the eighteenth century,
with the encouragement of the Bourbon reforms, penalties of forced
labor applied to public works in the city had a marked increase. The
same happened with penalties aimed at providing manpower for the
fortress in the borderlines of the city district. A new kind of
punishment, consisting in banishment with the obligation for the
convict and his family to settle in a town or village close to the
frontiers was also introduced. In this same context, local urgencies
were invoked to justify the application of sentences of flogging and
hard labor for low-status individuals without complying with the
procedural steps required by the Law. A measure imposing a
compulsory labor relationship to anyone who had been subjected to
a criminal prosecution was implemented (obligacin de conchavo): as
a condition to be released after serving the penalty, every convicted
had to undergo work for a landowner or for an honorable man,
(75) AHPC, C, 17, 3, 1762. About the strength of customary law in colonial
Hispanic America, V. TAU ANZOTEGUI, El poder de la costumbre. Estudios sobre el
derecho consuetudinario en Amrica Hispana hasta la emancipacin, Buenos Aires,
Instituto de Investigaciones de Historia del Derecho, 2001.

ALEJANDRO AGERO 201
who would be in charge to watch over him. During the first half of
the nineteenth century this measure was extended to anyone who,
not being able to justify an independent way of living, could be
qualified as a bum (76). Convenience, however, was still also invoked
to admit the need to forgive certain crimes, as happened in 1806
when the city council requested the Viceroy to pardon deserters
from the militia that had to go to defend the port of Buenos Aires.
The city council claimed that the fact that so many people fled the
city to avoid the punishment for this desertion had caused great
damage to the community. The Viceroy granted the requested
indult (77).
IV. Localization of law (a first conclusion).

With these brief references I have only sought to emphasize
that the normative value of local customs and the possibility of
invoking reasons of convenience produced an effect of localiza-
tion of the law and justice that was fully consistent with the
Hispanic legal tradition. According to this, judges were not just able
to apply the laws, but to maintain the order and to keep the peace,
as what was expected from them was to accomplish their mission
punishing and forgiving when it is convenient for the Republic (78).
That localization was a kind of byproduct derived from the long
lasting cultural framework that shaped the possibilities of justifying
an institutional action within the Spanish legal tradition. This con-
clusion is much more relevant if we consider that local magistrates
were normally integrated into, or they were even part of, the social
elite in the republics.
The integration of royal judges into the local elites is another
field where flexibility derived from that cultural framework can
show us one of its most outstanding implications in terms of the
(76) A. AGERO, La justicia penal en tiempos de transicin. La repblica de

Crdoba, 1785-1850, in Historia y constitucin. Trayectos del constitucionalismo hispano,
a cura di C. Garriga, Mxico, CIDE-Instituto Mora, 2010, pp. 267-305.
(77) Actas capitulares. Libros cuadragsimo tercero y cuadragsimo cuarto, Cr-
doba, Archivo Municipal de Crdoba, 1969, pp. 138-139 y 160-161.
(78) J. CASTILLO DE BOVADILLA, Poltica, cit., Lib. II, Cap. III, n. 34, t. 1, p. 258.

political structure. The process by which Creole elites took the

highest positions in the colonial royal courts during the 17th century
is well known and it has been related to the sale of publics offices
undertook by an impotent Monarchy (79). However, that process
can be traced back to the lesser levels of royal authorities and, as I
expect to show, for the case of Tucuman province at least, that kind
of home rule was not linked to the sale of public offices but to
some casuistic decisions relied in reasons of justice derived from
factual conditions, local customs and considerations on the welfare
of the republics.
V. Justice and home rule tradition.

Studies on institutional history of the Spanish modern age have
traditionally been focused on the so-called process of state-building.
From this point of view, the analysis favored traits denoting the
triumph of the centralized royal power over the old medieval
traditions which had guaranteed a large measure of autonomy to the
cities during the times of the so called Reconquista. These historio-
graphical perspectives were projected on the institutional develop-
ment of the Spanish New World. While it was admitted that during
the period of conquest the crown granted to the new cities founded
in America the same freedoms that had been used during the Middle
Ages in the conquest of the Iberian Peninsula, following the statist
approach, it was understood that with the consolidation of the
Absolute Monarchy colonial cities lost, like the Castilians, any hint
of self-government (80).
As I said before, I think this approach is still present in many
studies related to the institutional and legal field of the colonial
world, although its explanatory value has been seriously questioned.
(79) M. A. BURKHOLDER, D. S. CHANDLER, De la impotencia a la autoridad. La

Corona espaola y las Audiencias en Amrica 1687-1808, Mxico, Fondo de Cultura
Econmica, 1984.
(80) J. P. MOORE, The Cabildo in Peru under the Hapsburgs: a study in the origins
and powers of the town council in the Viceroyalty of Per, 1530-1700, Durham, Duke
University Press, 1954, chap. I; J. LYNCH, Spanish colonial administration, 1782-1810. The
intendant system in the Viceroyalty of the Ro de la Plata, New York, Greenwood Press,
1969, p. 204.

ALEJANDRO AGERO 203
These criticisms began questioning the real dimension and the

effective scope of the absolutism and the so called centralization
process of the European monarchies in the modern age (81). A
central argument for these new approaches has been focused on the
long survival of a cultural dimension that, in spite of the many topics
of legal and political literature asserting the absolute power of the
prince, identified in every human community the natural space of
political life and institutional action. Accordingly, the common
loyalty to the Monarch which gave a sense of unity and common
belonging to these various political bodies and the acceptance of the
symbolic role of the prince as a guarantor of justice in his kingdoms,
did not involve the unification of the political space or the extinction
of that natural source of power located in the political identity of
each corporate subject, each republic (82). Rediscovering the role
played by the concept of Republic in the European political thought
of the modern ages has been one of consequences of this change of
perspective (83).
From this point of view, and looking at the legal discourse, the
legitimacy of political power in the Monarchy of the modern ages
was held in two different but interconnected arguments, based on
the same mythical origin. On the one hand, on the assertion of the
supremacy of the prince, as the source of all jurisdictions (fons totius
iurisdictio) which, exalted by royalist tendencies at different times,
justified the institutional deployment of the monarchy on its terri-
(81) G. OESTREICH, Problemas estruturais do absolutismo europeu, quoted here by

the Portuguese version, in Poder e Instituies na Europa do Antigo Regime. Colectnea
de textos, a cura di A. M. Hespanha, Lisboa, Fundao Calouste Gulbenkian, 1984, pp.
179-200, esp. pp. 185-186.
(82) P. COSTA, Civitas. Storia della cittadinanza in Europa. T. 1. Dalla civilt
comunale al settecento, Roma-Bari, Laterza, 1999, pp. 66-73. For the Castilian case, J. I.
FORTEA PREZ, Les villes de la Couronne de Castille sous lancien rgime: une histoire
inacheve, in Revue DHistoire Moderne et Contemporaine , 41, avril-juin 1994, 2,
pp. 290-312.
(83) As example, J. F. SCHAUB, El pasado republicano del espacio pblico, in Los
espacios pblicos en Iberoamrica. Ambigedades y problemas. Siglos XVIII-XIX, a cura di
F-X. Guerra, A. Lemprire, et al., Mxico, Centro Francs de Estudios Mexicanos y
Centroamericanos, 1998, pp. 27-53; A. LEMPRIRE, Entre Dieu et le Roi la Rpublique.
Mexico, XVIe - XIXe sicles, Paris, Belles lettres, 2004; Monarchie et rpublique au XVIIe
sicle, a cura di Y. Ch. Zarka, Presses Universitaires de France, 2007.

tories and ensured its position as the highest arbiter of its kingdom.
On the other, on the strong cultural conviction according to which
every human community was conceived as an organic body endowed
with a natural aptitude of self-government that supported the per-
sistence of the autonomy and political identity of every republic.
The common mythical origin was located in a topic of Roman law,
used by lawyers to explain that the Roman people had given all the
power to the prince (translatio imperii). This argument was used
both to explain the supremacy of the prince (because he had
received the Empire from the people), and to recall that the origin
of the Princes power was in the people (in each republic) who had
conserved a part of that power (84).
Among other consequences, this meant a double order of
institutions, those that belonged to the king and those belonging to
the republics. While Justice, as the most powerful expression of
political power was awarded to the King, the power of the republics
was identified as a type of domestic power, similar to that exerted by
parents in a family. For this reason it was called economic (that is
to say, domestic) governance and, in theory, it did not encompass
jurisdiction. Only in the absences of an act of the Prince, the cities
could exercise by natural law the power to appoint their own
judges. But this theoretical assessment of the royal discourse did not
extinguish the aspirations of many cities to maintain their customs
and their own judges. By custom, prescription or special privilege,
many cities maintained their rights to appoint their own judges and
other officers to govern the republic (85). Thus, despite the
undisputed power of the kings to appoint royal judges in all the
(84) The following statement was a common place among Hispanic jurist of
modern ages: Although the Roman People transferred to the Principe the jurisdiction
to make laws, the power of the sword, and the election of the magistrates, still reserved
for themselves the administration of other things concerning to minors governments of
the Republic, in which the People have hand and power, though subordinated and
subjected to the censorship of the Principe and His Courts of Justice . Hevia Bolaos,
J., Curia Philipica, (1603), Madrid, 1771, P. I, 1, n. 7, p. 3.
(85) B. CLAVERO, Tutela administrativa o dilogos con Tocqueville (a propsito de
Une et indivisible de Mannoni, Sovrano tutore de Mannori y un curso mo), in Quaderni
Fiorentini , 24, 1995, pp. 419-465; A. AGERO, Ciudad y poder poltico en el antiguo
rgimen. La tradicin castellana, in Cuadernos de Historia , 15, 2005, pp. 237-310.

ALEJANDRO AGERO 205
places of their kingdoms, in most of the cities, towns and villages,

the old self-government tradition survived and was even consoli-
dated by the customary law or by the acquisition of special privileges
during the modern ages (86).
Faced with this, the juridical language sought to reconcile the
extremes, reinforcing the royal position and protecting the tradi-
tional practices of corporative society. If we look at a mid-18th
century juridical manual, well see a complex description composed
to encompass that wide range of possibilities: In Spain only the
King has authority to appoint the republics offices; because in
creating their Princes, the peoples bestowed on them all the power
and jurisdiction they possessed. Through privilege, usage or pre-
scription from immemorial time, the cities and other towns of these
Kingdoms, as well as lords temporal, have also the power to appoint
alcaldes (local judges), regidores (aldermen) and other officials of
the republic. And so we see that this right is held by many towns that
are justly entitled to it... . Finally, according to the natural
principles of the corporative society still, outside custom or privi-
lege, there are cases where it is the peoples duty to appoint judges
to govern them, such as when the Prince does not appoint
them (87).
As we can see, the double legitimacy (royal and corporative) of
political institutions was a long-standing feature of the traditional
constitution of the Ancient regime monarchy. This opened a field of
argumentation from which, in a casuistic way, depended the insti-
tutional order of each place, to the extent of making impossible a
uniform rule throughout the kingdom. The same discourse, with its
ambivalent potential, was the one which gave the keys to the
institutional setting of the New World, where, if on the one hand,
institutions for the exercise of royal jurisdiction (Royal Audiencias,
viceroys, governors, corregidores, alcaldes mayores) were set up to
rule the conquered territories converted into provinces, on the other,
cities endowed with the liberties of the Castilian tradition were
founded and awarded with their own share of jurisdiction. Under
(86) H. NADER, Liberty in absolutist Spain: the Habsburg sale of towns, 1516-
1700, Baltimore and London, The John Hopkins University Press, 1990.
(87) L. SANTAYANA BUSTILLO, Gobierno poltico, cit., II, pp. 17-18.

the institutional levels of the Royal Audiencias, the judges of the

King (governors, corregidores or alcaldes mayores) had to share their
competence with judges elected by the municipal councils of each
city. While the former were invested with the title of justicia mayor,
received a salary from the exchequer and were disciplined by a
similar statute to that of the Castilian corregidores, the latter, desig-
nated as alcaldes ordinarios, were honorary and their authority
derived from the medieval corporative tradition, even when jurists
recalled that their power was a privilege given by the King (88).
The grounds of self-government offered by the Spanish re-
publican tradition facilitated the expansion of colonization at a
more intense pace than the structure of royal officers depending on
the exchequer. In 1561 the Crown suggested that for the newly
founded towns and cities in the district of the Audiencia of Charcas
would suffice with their honorary alcaldes ordinarios to avoid the
appointment of royal magistrates with such inflated wages... ; also
in a series of letters sent to the Viceroyalty of Peru the Crown
stressed the need to avoid the appointment of corregidores if the new
towns could be governed by their own alclades ordinarios (89).
In peripheral regions, as in the vast province of Tucumn,
south of the viceroyalty of Peru, the cities were like islands scattered
about within a huge territory, isolated by distances, with little
contact with each other and with many difficulties to reach the
higher authorities of the province and the distant Royal Audiencia.
In such context, the flexibility of the Hispanic institutional language
played a key role in the preservation of the colonial order. I want to
show now how in these kinds of contexts, (as was the case of
Crdoba in the province of Tucumn), the institutional frame that in
theory separated the offices of the King from those of the republic
could have become blurred by means of arguments related to
customary law and reasons concerned to the appropriateness of the
(88) J. DE SOLRZANO PEREYRA, Poltica, cit., Lib. 5, cap. I, n. 2, t. 4, p. 7. About

the Castilian corregidores, B. GONZLEZ ALONSO, El corregidor castellano (1348-1808),
Madrid, Instituto de Estudios Administrativos, 1970; M. LUNENFELD, Keepers of the City.
The Corregidores of Isabella I of Castile (1474-1504), Cambridge, Cambridge University
Press, 1987.
(89) D. ENCINAS, Cedulario, cit., III, pp. 22-25.

ALEJANDRO AGERO 207
republics. Specifically, I am going to briefly analyze two aspects of

institutional practice that marked a clear contrast with the Castilian
institutional model and that strengthened the tradition of self-
government through the control of the offices of justice. On the one
hand, the rule guaranteeing the impartiality of the kings judges
related to their status of outsiders was subverted to prefer members
of the municipal corporation in the appointments for the position of
justicia mayor. On the other, unlike the Castilian territorial judges
(as corregidores), governors of Tucumn and other justicias mayores
acted during most of the colonial period as judges of appeal.
V.1. Kings justice in the hands of the republic. The Tenientes

in Crdoba del Tucumn.
The city of Cordoba was founded in 1573, in the southernmost
district of the Audiencia of Charcas (which had been created in 1559
in the present city of Sucre, Bolivia) in the hinterland of the Province
of Tucumn (founded in 1563). According to the founding act, the
governor of the province granted the new city, in the kings name, all
the privileges and liberties that the city of Cordoba in Spain and
the cities of Los Reyes and Cuzco in these kingdoms of Peru had.
So the medieval language of the Castilian municipal tradition pro-
vided the institutional grounds consisting of a set of corporative
freedoms to the body politic of the new collective subject. In the
same act the city was entitled to the exclusive jurisdiction (from other
cities and places of his Majesty in these kingdoms) and with the mero
et mixto imperio, that is to say, the power of doing justice in civil and
criminal cases. The founder nominated the members of the first city
council (Cabildo), the two alcaldes ordinarios and other officials,
establishing a statute for the elections that every year had to take
place for the renewal of these offices (90).
The governors of the province held the title of justicia mayor
but the exercise of this office was delegated to a lieutenant (teniente
(90) About the history of the Province of Tucumn, R. LEVILLIER, Nueva Crnica
de la Conquista del Tucumn, Varsovia, Publicaciones Histricas de la Biblioteca del
Congreso Argentino, 1926-1928. The founding act of Crdoba is published in Actas
capitulares. Libro primero, Crdoba, Archivo Municipal de Cordoba, 1974, p. 15.

de gobernador) who was appointed to act in his name in every city of

the province while he was absent. As for most of the colonial period
Tucumns governors resided in the distant city of Salta (located
over 450 miles away to the north of the province), their Tenientes
exercised regularly as justicia mayor in Crdoba until the Bourbon
reforms and the introduction of the intendance system (1782).
According to the laws dictated for the Indies following the Castilian
model of territorial judge, a series of rules to ensure the impartiality
of these officials were passed with prohibitions aimed at preventing
the social integration of those who had to exercise them in local
society. Besides the well known marriage restrictions, it was prohib-
ited for governors of the Indies to nominate as Tenientes, those who
were natives of the districts where they had to hold office (91). The
lack of observance of this kind of standards, and many others
dictated for the Indies, is well know feature of the institutional
history of the Spanish colonial rule (92). However, what I want to
show here is that the said lack of observance in this case, and may
be in many others, can be explained from the ductility of legal
language, its flexibility and its multiple possibilities to be used in
order to protect other values that were still in the background of the
legal culture. Such arguments were used before the Audiencia of
Charcas in the seventeenth century to modify the rule about the
uprooting of the kings officers, to ensure that lieutenants (Tenientes
de gobernador) who had to be appointed as justicia mayor in the
cities, not only could be, but had to be natives or householders
(vecinos).
Conflicts between cities and kings officers, as governors,
corregidores, etc., are a well known feature of the institutional history
of the cities in Spanish America. These kinds of conflicts were often
related with the networks of kinship and local rivalries within which
governors and their tenientes had to act. But many times those
conflicts were carried out as, if not really originated in, institutional
disputes arising from the abuse of powers on the part of the justicia
mayores in detriment of the cities or vice versa. Cities sought to
(91) D. ENCINAS, Cedulario, cit., III, pp. 10-11; R. I., 5, 2, 45.

(92) Cf. C. GIBSON, Spain in America, New York, Harper Colophon Books,
1966, p. 110.

ALEJANDRO AGERO 209
safeguard their sphere of self-government against royal officers who,

by definition, had to be outsiders, while these tried to use the power
they had received from the higher colonial authorities (Viceroys or
even the Council of the Indies in Spain) (93). The solution was often
to reach the distant Royal Audiencia to get a decision supporting one
or another position.
In distant cities, like Cordoba, a stronger sense of self govern-
ment was fed by the long absences of royal officers. Its alcaldes
ordinarios were in those periods the only reference of justice.
Tenientes usually delegated to them the role of justicia mayor. In the
early years, the city had rejected some Tenientes appointed by
provincial governors, arguing that they were harmful people for
the welfare of the city (94). During one of these conflicts that affected
several cities in the province, in 1584, the Real Audiencia of Charcas
ordered the removal of all the Tenientes, giving the Cabildos the
power to review the new appointments of Tenientes and even to
determine whether the lieutenants were people suitable for the
peace and harmony of the republic . The Royal Court of Charcas
authorized even the main city of the province, then Santiago del
Estero, to appoint a lieutenant general (Teniente general) for the
whole provincial district (95). The border between the models of
corporate and royal judges seemed to dissolve in an environment
where the institutional weakness of the monarchy was bound to rely
on the self-government of municipalities. Thus, in the early 17th
century it is very common to see in the archive the same names
acting sometimes as alcalde ordinario and others as Tenientes with
the title of justicia mayor.
In 1619 the Council of the Indies ordered the Audiencia of
Charcas that everyone who was nominated as Teniente had to get
the prior approval of the Council of the Indies or of the Audiencia
to be able to use the office. By these means the Royal Council sought
to avoid the problems experienced by the appointment of unfit or
(93) C. BAYLE, Los cabildos seculares en la Amrica espaola, Madrid, Sapientia,

1952, pp. 621-644.
(94) Actas capitulares. Libro primero, cit., p. 173.
(95) Actas capitulares. Libro primero, cit., pp. 510-511.

unworthy persons (96). Governors could appoint Tenientes again,

but the appointed had six months to get the approval from the
Audiencia to confirm his title. Anyway, this measure did not prevent
new conflicts. In 1628 the Cabildo of Crdoba sent a letter to the
governor expressing its complaints about the behavior of the Te-
niente Don Sancho de Cevallos (97). Similar complaints from other
Cabildos in the region led the Audiencia of Charcas to decide, in
1627, that Tenientes appointed by governors had to be vecinos of
the cities and not outsiders. In the grounds of its decision, the
Audiencia considered the conflicts experienced in the region, the
damage and inconveniences suffered by the cities and towns-
people for their great poverty and that those who were outsiders,
destroy and wipe out the cities as they use their posts to enrich
themselves . In December 1628 the Cabildo of Crdoba applied
this measure to remove the Teniente Sancho Cevallos for not being
a vecino of the city (98).
As we can see, the royal court of Charcas, invoking local
factual conditions and the welfare of the republics, repealed for
these territories the Castilian law (enforced in the Indies as well)
which based the guarantee of impartiality of royal judges on their
status of outsiders. With this precedent granted by the Audiencia,
cities were able to resist and reject those lieutenants who did not
meet the requirement of being members of the community, and so
they did. Some governors pleaded that the measure limited their
competences and that it was against the royal laws. After consulting
the Cabildos, the Audiencia admitted in 1629 that governors of
Tucuman could appoint lieutenants who were residents of the
province although they were not vecinos of the city where they were
to hold the office (99). However, the decision of 1627 set a precedent
that became a custom acquired by the Cabildos of the province. In
1644, in a new case of conflict, and upon request of all the cities in
the province, the Audiencia issued a new royal provision ad-
(96) Actas capitulares. Libro noveno, cit., pp. 41-43.

(97) Actas capitulares. Libro sptimo, Archivo Municipal de Crdoba Crdoba,
1884, p. 12.
(98) Ivi, pp. 52-54.
(99) Ivi, pp. 89-92.

ALEJANDRO AGERO 211
dressed to all the cities of Tucumn stating that the custom of this
province to appoint, for the post of Tenientes, their own vecinos, be
observed... . In 1649 a vecino from Cordoba invoked this decision
to be confirmed as Teniente general of the province (100).
According to this custom, the kings office of justicia mayor
exercised by the Tenientes was so closely linked to local elites that it
could barely be distinguished from that exercised by the alcaldes
ordinarios. Archive records show us again the leading members of
the community acting in different years as alcaldes and Tenientes.
There are even some cases where a person uses simultaneously both
titles of alcalde ordinario and Teniente . Social integration of the
royal magistrates, even provincial governors, in the networks of
kinship of the republics is a well known feature of the colonial
history of the region (101). But the key point to remark on is that the
practice of justice in the region, through casuistic decisions and local
customs, had led to blur the institutional boundaries that separated
in theory, and in the general law, both (royal and corporate) power
fields. From the second decade of the 18th century no lieutenants
seem to have been appointed in Crdoba. In 1737 the Governor
suggested to the Cabildo that the acts belonging to the competence
of justicia mayor were to be carried out by one of the alcaldes
ordinarios, the so called alcalde of the first vote (102).
In the mid 18th century, when a new royal office sold by the
Crown with the title of Lieutenant of King (Teniente de Rey) was
introduced in the Province, new conflicts emerged in Crdoba. The
Governor had to intervene to convey to the Teniente de Rey that he
had only military functions because political and justice issues
belonged solely to the judges of the city of Cordoba and its jurisdic-
tion (103). In that context, the alcaldes ordinarios carried out actions
that were of the exclusive jurisdiction of the governor, such as the
(100) Actas capitulares, Libro noveno, cit., pp. 660-667.

(101) Z. MOUTOUKIAS, Gobierno y sociedad en el Tucumn y Ro de la Plata,
1550-1800, in La Sociedad Colonial - Nueva Historia Argentina, vol. II a cura di E.
Tandeter, Buenos Aires, Sudamericana, 2000, pp. 357-411, p. 380.
(102) AHPC, G, 3, 4, 68, 1737.
(103) AHPC, C, 7, 19, 1753, Auto issued by the Governor of Tucuman, in
Salta, November 26 of 1753.

act of confirming the elections to the Cabildos aldermen. Faced with

this practice, in 1777, the Governor informed the Cabildo of Cor-
doba about a decision that had been taken by the Audiencia
forbidding alcaldes ordinarios to confirm the elections and to use
the title of justicia mayor (104). The case shows us how far, in the
eve of the Bourbons Intendant System, by way of practice, custom
and casuistic decisions, the kings office of justicia mayor had been
taken by the republics institutions.
V.2. The Justicia Mayor as Judge of appeal.

Another adaptation that suffered the Castilian model of terri-
torial judge in the Indies, and particularly in the provinces of the
Viceroyalty of Peru, was related to the capacity exercised by the
governors and their lieutenants to act as judges of appeal for the
sentences passed by the local alcaldes ordinarios. Although there was
some institutional precedent in Castile, from the time of Ferdinand
and Isabella only the Royal Audiencias acted as courts of appeal. A
lawyer with large experience on both sides of the Atlantic, Juan de
Solorzano Pereyra expressed some perplexity about this. He said
governors and corregidores in the Indies hear appeals of the
alcaldes ordinarios and for this reason and with this pretext, they are
called Justicia Mayores (105). The practice was based on some rules
issued during the first years of the conquest in which the conquerors
invested with the title of Adelantados were given the power to act as
judges of appeal in their districts (106).
Undoubtedly, this practice was justified by the huge dimension
of the districts and the long distances that separated the cities from
a Royal Court like the Audiencia. The city of Cordoba was an
extreme case, located nearly a thousand miles from the Audiencia of
Charcas. In this context, the governor became the nearest appellate
justice for most of the lawsuits resolved by the citys judges. But here
the practice had gone further. As governors delegated their power to
(104) AHPC, G, 6, 2, 35, 1777.

(105) J. DE SOLRZANO PEREYRA, Poltica, cit., Lib. 5, cap. I, n. 23.
(106) Ordenanzas sobre descubrimiento nuevo y poblacin of 1573, R. I., 4,
3, 14.

ALEJANDRO AGERO 213
their lieutenants, these used to hear appeals as well. And it was even
admitted that the judgment of a Teniente could be brought in appeal
to the Governor. This was a clear deviation of the common stan-
dards of Ius Commune that did not admit appeal from a delegate
to the delegator himself (107). Nevertheless in the province of
Tucumn it was accepted by custom. Only for those who were able
to reach the distant Audiencia, was there still the possibility to have
one last chance of review.
As a result, most of the lawsuits were defined in the limited
institutional environment of the city, where lieutenants were fully
integrated, or in the province, when the case was sent to the
governor. If this facilitated the reviewing of sentences avoiding the
long and expensive trip to the Audiencia, in certain cases it became
a problem when due to their social ties and kinship network,
lieutenants and Governors did not offer sufficient guarantees of
impartiality. In 1701 a litigant from Cordoba brought this complaint
to the Audiencia of Charcas. And in 1718, due to a similar case, the
Audiencia ordered all alcaldes ordinarios and other judges of first
instance that had to give the appeals of their sentences directly to the
Audiencia, and not to governors or tenientes. In 1731 the Audiencia
insisted in denying the competence of governors and tenientes to act
as judges of appeal. Governors and tenientes took the case to the
Council of the Indies in Spain. They argued that the decision taken
by the Audiencia was against the law and against the customs of the
province. Many cities supported this argument. The Cabildo of
Crdoba sent a letter to the Council of the Indies expressing that it
was an immemorial custom of the region to take the appeals to the
governors, and that it must be maintained given the poverty of most
of the litigants that made it impossible for them to reach the distant
Audiencia. In turn, the governor invoked the pity that they had to
have with the poor people cause if they were forced to go to the
Audiencia, their truth would be vanished and their hopes would be
reduced to smoke . After consulting the case with the Viceroy of
Peru, in 1751 the Council of the Indies decided to maintain the
(107) About the standards of appeals in the Castilian Law, Aikin Araluce, S.
AIKIN ARALUCE, El recurso de apelacin en el derecho castellano, Madrid, Reus, 1982.

competence of governors to act as judges of appeal in their dis-

tricts (108).
Difficulties of getting to an Audiencia located so far away,
made it possible that most of the cases were definitively resolved
within the local or provincial district. Hence, until the eve of the
Bourbon reforms, by casuistic decisions turned into customs and
supported by arguments derived from considerations about the
welfare and convenience of the republics, the effect of localization of
law affected also the standards that had to shape the institutional
structure of the kings justice.
V.3. The Bourbon reforms and some reflections on the postco-

lonial experience.
In the last quarter of the 18th century, with the Bourbons
reforms, the institutional structure held in the customs of the region
was finally modified. The territories of the former provinces were
integrated into the new viceroyalty of Ro de la Plata created in 1776.
In 1782, with the enforcement of the Intendant System, the province
of Tucumn was divided in two new province-intendances: Salta del
Tucumn and Crdoba del Tucumn. The city of Crdoba became
the capital of the last one. Finally, in 1785 a new Audiencia was
established in Buenos Aires, the capital city of the new viceroyalty.
There are many issues to be discussed about the nature and effects
of the Bourbon reforms like in Spain as in its colonies (109). I merely
want to point out here what was the institutional impact of these
reforms in the administration of justice in Crdoba. I would suggest
that despite the traditionally centralized meaning ascribed to these
reforms, they did not break with the close relationship established
over the preceding centuries, between justice and the local govern-
ments.
(108) A. LEVAGGI, El recurso de apelacin en el Derecho Indiano, in Revista de

Historia del Derecho , 12, 1984, pp. 171-198, p. 192-193. The documents about the
conflicts between the Audiencia of Charcas and the governor of Tucumn, and the
reports of the Cabildos, concerning to this point can be seen in the General Archive of
the Indies of Seville, Spain, in the folder Charcas, n. 198.
(109) Different points of view are provided in El reformismo borbnico: una
visin interdisciplinar, a cura di A. GUIMER, Madrid, Alianza, 1996.

ALEJANDRO AGERO 215
The most significant institutional change occurred in the area

of judicial review. The new Intendants were deprived of the com-
petence to act as judges of appeal. This meant that all the jurisdic-
tional activity of appeal had to be carried out in the new royal court
established in Buenos Aires. Thus, the new Audiencia had a more
effective control over the activity of judges of first instance in
Cordoba than the Audiencia of Charcas could have. At this point the
reforms introduced an effective change that could be seen as part of
a centralizing trend. But at the level of first instance justice, the trend
was in the opposite sense. Intendants could not delegate their
competences in matter of justice to a lieutenant. A new Teniente
letrado was appointed according to the Intendance Ordinance to act
as judge only within the district of the capital city, sharing this
competence with the old alcaldes ordinarios that were maintained.
This meant that in the rest of the cities of the Province, the alcaldes
ordinarios, elected by the Cabildos, were the exclusive judges with
ordinary jurisdiction. Even in the capital city, as was the case of
Crdoba, criminal justice was still in the hands of the alcaldes
ordinarios. The first Intendant of Crdoba reported to his successor
in the post that he preferred to give these matters of justice to the
alcaldes ordinarios as he was much more preoccupied with fiscal and
military issues (110). Records from the archive confirm this. A visit to
the local prison in 1788 shows, that of about 40 prisoners for
criminal cases, 31 were there for pending proceedings before the
alcaldes (111).
Anyhow, beyond the sense of reform and the conflicts that
occasionally arose between the Intendants and the Cabildos, what
the reform did not change at all was that fundamental cultural
conceptions according to which justice was to serve the welfare of
the republics and that it had to be adjusted to what could be
(110) Memoria del Marqus de Sobre Monte escrita para su sucesor el coronel
de ingenieros don Jos Gonzlez en I. GARZN, Crnica de Crdoba, Crdoba, La
Minerva, 1898, I, pp. 351.
(111) Archive of the Oficiala Mayor (Main clerks office) from the Munici-
pality of the City of Crdoba, Libros de visitas de crcel 1764-1789, f. 195r-196r.

regarded as more suitable for each place (112). I have mentioned

earlier the way in which utilitarian penalties were used for the
benefit of the republic during this period. Lets say now that the
cultural reasons that were in the background of that effect of
localization of the law remained intact in the institutional lan-
guage. A good example of this can be found in an issue that emerged
when the Audiencia of Buenos Aires in 1785 decided to limit the
punishment power of the local judges of the Viceroyalty. To prevent
abuses, the Audiencia passed a general rule requiring that sentences
imposing penalties of whipping or other afflictive punishments had
to be confirmed in the court of Buenos Aires before being executed.
The cities soon claimed against this measure. The alcaldes from
Crdoba argued that if they had to do so in every case, most of the
crimes would remain unpunished because of the long time that it
would take the confirmation proceedings, considering the distance
(nearly 500 miles separated Crdoba from Buenos Aires) and the
lack of security in the local jail. The Intendant of Crdoba sup-
ported these arguments. In a report of 1788 he asked the Audiencia
to authorize the local judges to execute sentences imposing penalties
of up to 25 or 30 lashes and of one or two years of forced labor
without any formal proceeding for the most common crimes, like
cattle rustling, that caused great damage to local landowners. The
request was justified in the circumstances of the country , the
impossibility of following a complete formal proceeding with so
many cases of thefts of horses, cattle stealing and the like, commonly
committed by the plebe and vile people... . In adding to that, he
mentioned the characteristics of the territory that provided facilities
for fugitives and the universal clamor of the landowners for
punishing thefts of all kinds of cattle they suffer . The Audiencia
admitted the arguments, and granted an exception to authorize the
local judges of Cordoba to execute, without the need to carry out the
(112) About the conservative sens of the Bourbons reform in justice adminis-
tration, C. GARRIGA, Los lmites del Reformismo Borbnico: a propsito de la adminis-
tracin de la justicia en Indias, in Derecho y administracin pblica en las Indias hispnicas:
actas del XII congreso internacional de historia del derecho indiano (Toledo, 19 a 21 de
octubre de 1998), a cura di F. Barrios Pintado, Cuenca, Cortes de Castilla La Mancha -
Universidad de Castilla La Mancha, 2002, I, pp. 781-821.

ALEJANDRO AGERO 217
confirmation proceeding, penalties of 25 lashes and four months of

forced labor for crimes of theft and other misdemeanors, according
to the circumstances of the accused and his crime under the
supervision of the Intendant. The same was accepted for other cities
of the Viceroyalty. To execute more severe penalties, confirmation
of the sentence by the Audiencia was required. But the exception
was interpreted and used to consolidate among the local judges an
expeditious proceeding, almost informal, to impose penalties of
whipping and forced labor. In 1786, Manuel Prez, an alcalde from
San Miguel de Tucuman was removed and fined 100 pesos by the
Audiencia of Buenos Aires for abuses like executing death sentences,
banishments, flogging and other penalties without any formal pro-
ceedings. In his defense, he claimed that he had been authorized by
the Cabildo of his city to act this way and that it was not the custom
in this place to formalize processes against the kind of bad guys
like Indians and mulatos he had condemned. Even in this case,
the Intendant supported the arguments of the alcalde. In his report
to the Audiencia, he said: I who have seen the haughty spirit
reached by the Plebe of Tucumn, have to inform His Honor that if
that city lives quietly today it is due to the untiring zeal of Judge
Perez . Still, in 1805 an alcalde of Crdoba was fined 100 pesos by
the Audiencia for executing penalties of whipping without any kind
of formal proceeding. In his defense, he argued that it is not used
in this city to formalize proceedings for the kinds of crimes
committed by vile people, because they were so many that there was
no place for all of them in the prison and judges and clerks
(escribanos) did not have time to do it. In the mind of this local
judge, factual conditions and local needs still had a normative
function to justify institutional ways of action (113).
(113) The limits imposed to local judges in criminal cases by the Audiencia of
Buenos Aires in 1785 and the subsequent claims of the cities were analyzed in J. M.
MARILUZ URQUIJO, La Real Audiencia de Buenos Aires y la administracin de justicia en lo
criminal en el interior del Virreinato, in Primer Congreso de Historia de los Pueblos de la
Provincia de Buenos Aires, La Plata, Archivo Histrico de la Provincia de Buenos Aires,
1952, II, 271-291. The whole issue is analyzed in A. AGERO, Castigar y Perdonar cuando
conviene a la repblica. La justicia penal de Crdoba, siglos XII y XVIII, Madrid, Centro
de Estudios Polticos y Constitucionales, 2008, pp. 423-448.

I think these examples show that the Bourbon reforms did not
change the cultural foundations concerned with the localization of
law and justice. The normative strength of the factual conditions and
the value assigned to customs and needs of each place, still func-
tioned to justify local adaptation of the law, despite the more strict
control intended by the Audiencia. For new Intendants, justice was
still the mission to keep the peace and calm of each republic. In
institutional terms, justice, and specifically criminal justice, was still
conceived as a tool primarily for the service the local elites, regard-
less of the status or character of the royal officer that held the title
of Justicia mayor. Moreover, the close link between justice (still a
central concept of political power) and local autonomy was also
fueled by many other practices that, for space restrictions, I cant
detail. I have been talking just about ordinary judges, but we have to
take into account that also the appointments of prosecutors, public
defenders for the poor and Indians, advisors, commissioners for
rural areas (called alcaldes de hermandad at first and then jueces
pedneos) and for the neighborhoods of the city (alcaldes de barrio)
depended on the Cabildo and the local elite as well. For most of
these appointments the Cabildo proposed a list of people to be
approved by the Intendant. Hence, a strong institutional link bound
the republics leaders to the general mission to uphold justice.
If we look a little beyond the colonial period, we will see how
that local structure of justice remains unchanged throughout the first
half of the 19th century, despite the emergence of a liberal rhetoric
that fueled the discourse of the new governments in the Ro de la
Plata after the crisis of the Spanish empire. In the legislative texts
passed between 1810 and 1820 by the different governments that,
from Buenos Aires, sought to maintain the unity of the old Vice-
royalty district, there is a clear trend to preserve the institutional
structure of justice inherited from the colonial era. We could
summarize these conservative patterns in four points that are present
in all of the principal legal acts passed in that time: a) the Catholic
religion was declared as the fundamental law of the country and
as the official religion of the State, banning public worship of any
other faith; b) all regulations stated that the jurisdiction of the
ordinary judges shall be the same they have had until now with
no expansion or restriction and that the administration of justice

ALEJANDRO AGERO 219
shall be ruled by the same principles in accordance with the laws ;

c) despite the introduction of some standards concerning the legality
principle of French inspiration, the laws and customs that allowed
the imposition of penalties according to the prudent discretion
(arbitrium) of judges were explicitly upheld; d) finally, it was stated
that all the laws, general and particular provisions of the former
Spanish government shall remain in force , if they were not in
opposition to the freedom and independence of the provinces and
new laws enacted since 1810 (114).
These patterns were kept in general terms throughout the first
half of the 19th century. They were maintained even after 1820, when
the attempts to establish a common government in Buenos Aires,
finally failed. Since 1815, but definitely after 1820, the Rio de la Plata
territories underwent a process of radical autonomism. Each of
the ancient cities claimed their independence and their status of
sovereign territory. The former provinces of the colonial period
were divided into so many new Republics that emerged from each of
the old mayor cities (115). Except for a few fleeting experiences, in
these new city-provinces self-proclaimed as sovereign Republics, the
attempts to establish a constitutional order based on individual
rights, rule of law and separation of powers failed completely. In the
case of Crdoba, despite provisions set in its Constitution of 1821,
the governor served as the highest court of justice except for a
brief period in which a Court of Appeals worked until 1855.
During this time, the two alcaldes oridnarios in the city were
maintained and the same happened with the rural judges, whose
power of repression was significantly increased compared to what
they had in colonial times (116).
From this point of view, I think it is possible to suggest that the
close link between the exercise of justice and the self-government
(114) The most important Acts of the time were the Estatuto Provisional of
1815 and the Reglamento provisorio para la direccin y administracin del Estado of
1817. Available at www.cervantesvirtual.com/portal/Constituciones/
(115) J. C. CHIARAMONTE, Ciudades, provincias, estados: orgenes de la Nacin
Argentina (1800-1846), Buenos Aires, Ariel, 1997, pp. 155-165.
(116) S. ROMANO, Economa, sociedad y poder en Crdoba. Primera mitad del siglo
XIX, Crdoba, Ferreyra Editor, 2002.

sense, rooted in the institutional practice of the long colonial

tradition, played a significant role even in the constitutional organi-
zation of the new Argentine State. The adoption of the French
inspired system of national codification of the substantive law (civil,
criminal, commercial and mining law) in the Argentinean Constitu-
tion of 1853 was justified by the difficulties that were seen in
maintaining the multiplicity of divergent laws and customs among
the provinces and by the lack of trained personnel in the said
provinces to provide adequate laws for the new era. However, in
spite of the French model of national codification, the provinces
defended their rights to maintain their autonomy with their own
judicial powers and their local procedural law, creating a hybrid
constitutional model (half way between American federalism and
French unitarism) that still carries problems of interpretation and
competence. When in 1860 the Constitution was reformed for
attaining the incorporation of Buenos Aires into the new constitu-
tional order, the article that granted the National Congress the
power to make the national, civil, criminal, commercial and mining
legal codes, was amended to ensure that these new legal codes could
not alter local jurisdictions (117).
VI. Conclusions.
To conclude I would like to quote a recent essay by a specialist
in Latin American political history, Antonio Annino. Talking about
the central role that the customary law and the Hispanic conception
of justice would have had in the self-government tradition of colo-
nial societies, Annino says: One of the major difficulties is to define
what were and how local customs worked in colonial Hispanic
America. But it is not unreasonable to think that their role has been
more important than in the peninsula: it suffices to recall that the old
principle of Hispanic consensus was practiced in America and
guaranteed by a body ultimately very short of judges (mostly natives)
and without even the presence of an army. Three centuries of
unquestioned loyalty to the Crown on this basis suggest that justice
(117) A. BIANCHI, Historia de la Formacin Constitucional Argentina (1810-1860),

Buenos Aires, Lexis-Nexis, 2007, p. 217.

ALEJANDRO AGERO 221
was rather the interpretation of local societies than a will of cen-

tralization of the Monarchy, as it was held for decades by the
historiography of Indies Law. Actually it was this justice, along with
the church, that endowed the Empire with three centuries of
cohesion and with local autonomy to the communities and cultures
that were a part of it (118).
If we look at the colonial experience from the wide framework
provided by the legal culture of the Spanish modern ages, removing
the bias of the absolutist approach, many features and adaptations of
the law and justice in the colonial world can be explained on the
basis of the common cultural foundations that gave meaning to the
institutional practices in the different areas of the Catholic monar-
chy. Under the religious totalitarian rule of its traditional constitu-
tion, the transcendent conception of law, the normative value of
local customs, the dominant casuism in legal reasoning, and the
possibility of invoking reasons of convenience related to the local
context, produced an effect of localization of law and justice that
fueled a strong sense of self-government. The case of Crdoba, and
the cities of Tucuman, shows that this effect of localization was not
only related to the substantive standards, as we have seen in the
analysis of criminal justice, but also affected the standards that had
to shape the institutional structure of the kings justice. Although it
is just a hypothesis that needs deeper analysis, I think that this
relationship between justice and local autonomy inherited from the
colonial era has left its imprints on the Argentine constitutional
model currently in force.
(118) A. ANNINO, Imperio, constitucin y diversidad en la Amrica Hispana,

in Nuevo Mundo Mundos Nuevos , Debates, 2008, online URL: http://
nuevomundo.revues.org/33052, 24.

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QUADERNI FIORENTINI

per la storia del pensiero giuridico moderno

Dott. A. Giuffr Editore Spa - Milano

ON JUSTICE AND HOME RULE TRADITION

Dott. A. Giuffr Editore Spa - Milano

traditional approach used by the discipline) to pay more attention to

Dott. A. Giuffr Editore Spa - Milano

interpretations about the law and justice in the colonial world

Dott. A. Giuffr Editore Spa - Milano

point I will try to show how in a peripheral colonial context, like in

II. Law and Justice in the pre-contemporary Spanish legal culture.

II.1. Law as a transcendent order and the subordinate place of

Dott. A. Giuffr Editore Spa - Milano

Immediately thereafter, the dictionary adds: Law: It is often used

(7) On line edition, available on www.rae.es, word Derecho.

Dott. A. Giuffr Editore Spa - Milano

Dott. A. Giuffr Editore Spa - Milano

royal officials acted as instruments and obstacles to the deployment

II.2. Factualism, particularism and customary law.

(11) A. M. HESPANHA, Vsperas del Leviatn: instituciones y poder poltico

Dott. A. Giuffr Editore Spa - Milano

impossible to enforce general standards (15). The concept of New

(15) V. TAU ANZOTEGUI, Casuismo y Sistema. Indagacin histrica sobre el

Dott. A. Giuffr Editore Spa - Milano

presumption that is convenient and useful (19). This last reference

II.3. Justice as a preeminent function of government. The

Dott. A. Giuffr Editore Spa - Milano

(21) L. GUARDIOLA Y SEZ, El corregidor perfecto y juez exactamente dotado de las

Dott. A. Giuffr Editore Spa - Milano

(24) J. VALLEJO, Ruda equidad, ley consumada. Concepcin de la potestad norma-

Dott. A. Giuffr Editore Spa - Milano

gobierno) and represent it as head of its body politic. All these

Dott. A. Giuffr Editore Spa - Milano

of justice over governmental decisions was maintained. The power

II.4. Flexibility and adaptation of the institutional order. Iu-

Dott. A. Giuffr Editore Spa - Milano

presence of the normative value of general precepts. It is impossible

(29) M. MECCARELLI, Arbitrium. Un aspetto sistematico degli ordinamenti giu-

Dott. A. Giuffr Editore Spa - Milano

that was often used to moderate decisions, according to superior

III. Criminal justice as a field of observation.

Dott. A. Giuffr Editore Spa - Milano

III.1. Religion and Law in criminal justice.

(32) F.-X. GUERRA,Polticas sacadas de las sagradas escrituras. La referencia a la

Dott. A. Giuffr Editore Spa - Milano

lawyers and judges were assimilated to priests ( because they serve

(35) F. BERMDEZ DE PEDRAZA, Arte legal para estudiar la jurisprudencia (1612),

Dott. A. Giuffr Editore Spa - Milano

(39) J. LVAREZ Y POSADILLA, Practica criminal por principios, modo y forma de

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Invoking divine law or the textual sources of the catholic

(43) AHPC, C, 2, 4, 1707, f. 234 v.

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common opinion of doctors , that is to say, the dominant doctrine

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to take care of the divine worship service claiming for public

III.2. Indulgence, dissimulation and bargaining.

(51) Actas capitulares. Libro dcimo, Crdoba, Archivo Municipal de Crdoba,

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(53) A. AGERO, Clemencia, perdn y disimulo en la justicia criminal de antiguo

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two intimately linked concepts, even in the practical literature

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