The least understood aspect of the punishment of crime in pre-nineteenth-century Spanish society is trial procedure. This is not surprising. Our misapprehensions and misinterpretations of the past are principally the product of eighteenth-century reality being sieved through an uncritical acceptance of nineteenth-century political criticism. The West inherits much of its modern paradigm from the Spain of 1808 to 1834, from Romantic images of Goya as the enlightened individual fighting obscurantism to portrayals of heroic guerrilla patriots seeking to wrest political reform from a reactionary central government. It also inherits, although less consciously, the political rubrics of liberal and conservative (and absolutist) from nationalist polemics during the 1808–1814 French occupation. When looking back half a century later, Spaniards wanted to distinguish themselves clearly from the past.
1. For example, see Carr Raymond, Spain, 1808–1975, 2d ed. (Oxford: Clarendon Press, 1982), 1–38. The term “failure,” which organizes Carr's analysis of Old Regime society, is symptomatic of his theoretical assumptions and anachronistic preconceptions. John H. Elliott's popular introduction to early modern Spain also contributed to this vision of historical disappointment, or malfunction. See his Imperial Spain, 1469–1716 (New York: St. Martin's Press, 1964). See also Weisser's Michael R. comments in Crime and Punishment in Early Modern Europe (Atlantic Heights, N.J.: Humanities Press, 1979), 52. In developing my counterargument to the Carr-Elliott interpretation of Spanish history as a long-drawn record of “failure,” I have drawn on the revisionist insights of Nader Helen, Liberty in Absolutist Spain: The Habsburg Sale of Towns, 1516–1700 (Baltimore: The Johns Hopkins University Press, 1993), especially comments on 157, as well as the philosophical shrewdness of Giddens's Anthony structuration theory, “Structuralism, Post-structuralism and the Production of Culture,” in Social Theory Today, ed. Giddens Anthony and Turner Jonathan H. (Stanford: Stanford University Press, 1987). This collection includes Ira J. Cohen's useful critique, “Structuration Theory and Social Praxis,” 273–308. I also referred to Giddens , New Rules of the Sociological Method (New York: Basic Books, 1977) and idem, The Constitution of Society (Cambridge, England: Polity Press, 1984).
2. Enlightened absolutism has a long scholarly tradition. Indicative of the classic trends for Spain are Herr Richard, The Eighteenth-Century Revolution in Spain (Princeton: Princeton University Press, 1958) and Sarrailh Jean, L'Espagne éclairée de la seconde moitié du 18e siècle (Paris: Klincksieck, 1964). For our purposes, the work of Ruth Pike has blazed a trail. She has been the only major analyst of the Sala de Alcaldes de Casa y Corte's records. See Pike , Penal Servitude in Early Modern Spain (Madison: University of Wisconsin Press, 1983) and idem, “Capital Punishment in Eighteenth-Century Spain,” Social History 5 (1985): 375–86.
3. A sampling of recent works should include Kelley Donald R., Historians and the Law in Postrevolutionary France (Princeton: Princeton University Press, 1984); Cairns David J. A., Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (Oxford: Clarendon Press, 1998); Arthurs H. W., “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth-Century England (Toronto: University of Toronto Press, 1985); John Michael, Politics and the Law in Late Nineteenth-Century Germany (Oxford: Clarendon Press, 1989), especially chap. 1, “The Theory and Practice of Codification, 1814–1867”; the collection of essays edited by Badinter Robert, Un Autre Justice 1789–1799 (Paris: Fayard, Histoire de la Justice, 1990), especially the contributions of N. Castan, J.-P Royer, P. Lascoumes, and P. Poncela. For another discussion of French criminal adminstration in a revolutionary period that hints at the political utilization of Ancien Régime legal institutions, see Cameron Iain, Crime and Repression in the Auvergne and the Guyenne, 1720–1790 (Cambridge: Cambridge University Press, 1981). See also Davis John A., Conflict and Control: Law and Order in Nineteenth-Century Italy (Atlantic Heights, N.J.: Humanities Press International, 1988), an especially enlightening discussion of the connections between evolving liberal political ideologies and criminal law reform. Bushneil David, Reform and Reaction in the Platine Provinces, 1810–1852 (Gainesville: University Presses of Florida, 1983) is a rare look into these processes in the Latin American context; see also the discussion of reform in Nome Alan, Crime, Reason, and History: A Critical Introduction to Criminal Law (London: Weidenfeld and Nicolson, 1983), 1–33. Even England was not immune to the explicit repudiation of the “old system” of law in the nineteenth century; see Stein Peter, “Legal Theory and The Reform of Legal Education in Mid-Nineteenth Century England,” in his The Character and Influence of the Roman Civil Law (London and Ronceverte: The Hambledon Press, 1988).
4. I agree with the legal historians O. F. Robinson, T. D. Fergus, and W. M. Gordon that the general trend extends across Western Europe, despite local variations. See Robinson , Fergus , and Gordon , An Introduction to European Legal History (Abingdon: Professional Books, 1985), 438–42.
5. Quoted by Norrie, Crime, Reason, and History, 8
6. In a larger context the stereotyping of all Spanish law as inquisitorial fits into R. C Van Caenegem's argument that there has been a powerful stereotyping of English law as somehow more democratic historically than continental law. See his Judges, Legislators, and Professors: Chapters in European Legal History (Cambridge: Cambridge University Press, 1987), 73–83.
7. This tribunal had full criminal jurisdiction over Madrid and its surrounding countryside, but consulted with the central government in cases of capital crime. It was also a court of appeal for the crown of Castile. Sala and alcaldes refer to the tribunal and judges, respectively.
8. The classic works are Gallo Alfonso García, Curso de historia del derecho español (Madrid: Artes gráficas, 1950) and Valiente Francisco Tomás, El derecho penal de la monarquía absoluta, siglos XVI-XVII-XVIII (Madrid: Tecnos, 1969).
9. “Common law” in early modem Spanish—as well as continental—law is the peculiar combination of various bodies of law inherited from Rome and medieval practice and theory. By the eighteenth century, it was the generalized body of rules and precepts drawn from Roman law and canon law, which were used as a theoretical framework for court practice. By royal law, or municipal law, on the other hand, Spanish commentators invariably meant statute law, or enacted law, the laws promulgated by kings and their counselors. The relationship between the two was ambiguous at best, occasionally conflictive. Calls for criminal codes as part of the inauguration of a constitutional system in Spain after the 1770s invariably demanded the abrogation of the “common law” as a way of eliminating the predominance of court practice based on “common law” over royal statute. Proponents pitched this as a requirement of the abrogation of “arbitrary” government.
10. I am using Henry J. Abraham's text merely as an illustrative example. See his The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France (New York, Oxford: Oxford University Press, 1993), 96. Abraham's argument is unconvincing and culturally biased. On the presumption of guilt, which Abraham explicitly attributes to the inquisitorial process, he states: “it is doubtful that any civilized land [my emphasis] actually proceeds on such an assumption,” implying that its existence characterizes uncivilized ones. Like others in the English tradition, Abraham distrusts the accumulation of evidence by judges prior to the trial, which he believes inevitably leads to the defendant being prematurely considered guilty.
11. For a brief discussion of the background to the government system of turnismo under Cánovas del Castillo in the 1870s and 1880s, see Carr, Spain, 1808–1975, 355–61.
12. Royal Decree of September 14, 1882, for the “Ley de enjuiciamiento” of June 22, 1882, copied in Revista de los tribunales y de legislación universal, Ley de enjuiciamiento criminal anotada con jurisprudencia y circulares de la fiscalía del Tribunal Supremo y cuantas disposiciones la complementan, y seguida de interesantes apéndices, 7th ed. (Madrid: Góngora, 1932), 32.
13. Bourgoing Jean François, Nouveau Voyage en Espagne: ou Tableau de l'état actuel de cette monarchie…. (Paris: n.p., 1789), 1: 398–99.
14. Ford Richard, A Hand-book for Travellers to Spain (Carbondale: Southern Illinois University Press, 1966), 3: 1177.
15. Charges that were not proven could be summarily suspended with a sentence of “absolución de la instancia,” which freed the suspect from the particular charges of the indictment, but kept the possibility of further prosecution in the case very much alive indefinitely.
16. Ley de enjuiciamiento, 11–29.
17. Elizondo Francisco Antonio de, Práctica universal Forense (Madrid: Joachin Ibarra, 1773–1791), 3: 299.
18. I have adopted R. J. Sharpe's definition of the fifteenth- and sixteenth-century English practice, The Law of Habeas Corpus (Oxford: Clarendon Press, 1976), 4–6.
19. Take, for example, Domingo García Belaúnde, whose father, Domingo Garcia Rada, fought to enforce habeas corpus legislation in Peru in the 1950s. He passes over Spanish law, excepting the fueros, and seeks for habeas corpus in English law. El habeas corpus en el Perú (Lima: Universidad Mayor de San Marcos, 1979), 1–45. The reasons for Belaúnde's cultural amnesia go beyond the scope of this study, but it is striking since his book comes from an urgent scholarly need he himself says exists (p. xv) because earlier studies neglected real court practice, as opposed to legal code theory. Apparently, Belaúnde never considered the colonial archives of pre-independence Peru.
20. Habeas corpus is fundamental. Even Abraham admits, in fact, that this is perhaps one of the most important “ancient, basic safeguards inherent in the philosophy of the law, safeguards which, to a greater or lesser degree, are fundamental to the notions of liberty and justice that pervade the political system of the liberal democratic West.” Abraham, The Judicial Process, 96.
21. Elizondo, Practica forense universal, 4: 336.
23. Nevertheless, individual judges did in fact investigate and try the same case in smaller towns and cities. The validity of the argument, however, is based not on Madrid's exclusivity, but on its importance as the exemplary court of the monarchy.
24. The usual daily number sitting at these hearings was three or five, so that the number present in Figure 1 is merely an ideal maximum. We could consider this meeting of judges as a sort of grand jury. I did not quantify their number for all the cases selected in my query, although there were three judges present at the majority of hearings: sample count of all cases, Archivo Histórico Nacional (hereafter AHN), Consejos Suprimidos, Libros de acuerdos 1.046 (1758), 1.050 (1762), 1.066 (1778), 1.070 (1782), 1.086 (1798), 1.090 (1802). For a general presentation and comparison with different court practices in the monarchy, see Elizondo, Practica forense universal, 4: 357 and following.
25. Gutiérrez José Marcos, Práctica criminal de España (Madrid: Fermín Villalpando, 1819), 360. There is evidence, however, that fewer and fewer judges sat on these habeas corpus assessment meetings. The trend from 1750 to 1808 is apparently a weakening of the application of habeas corpus controls on criminal trials, at least at the Madrid tribunals.
26. Salazar Antonio Martínez, Colección de Memorias, y Noticias del Gobierno General, y Político de el Real, y Supremo Consejo de Castilla (Madrid: n.p., 1764), 348.
27. Martínez Salazar, Colección, 380.
28. At this point in the proceedings, the junior judge on the panel, whose job it was to record decisions in the Libro de acuerdos, would write “A confession y prueba con todos cargos, y denegacion hasta la primera,” a stock phrase indicating this particular procedural stage in a case.
29. This is indicated in the archival records by the junior judge's annotation: “Vuelva la causa al Señor Juez de ella para lo que lleva entendido.” This step was summarized nicely by Cornejo Andrés, Diccionario histórico y forense del Derecho Real de España (Madrid: Joachin Ibarra, 1779), 2: 5–7. On the general steps formally required for a sumaria to become a plenaria in the Madrid tribunal, see, for example, Marcos Gutiérrez, Practica criminal de España, 1: 352–64.
30. Marcos Gutiérrez, Practica criminal de España, 360. Whenever this sort of complaint occurred, the documents in a case file would remain in the possession of the court's notary. The judges jealously guarded all files. Martínez Salazar, Colección, 341.
31. Sanz Lorenzo Matheu y, Tractatus de re criminali… (Madrid: Apud D. Antonio de Sancha, 1776), controversia 25, number 80, and Pérez Vicente Vizcaíno, Código y práctica criminal arreglado a las leyes de España (Madrid: 1797), 301. See also Marcos Gutiérrez, Practica criminal de España, 1: 363–66.
32. This was part of the Count of Floridablanca's program for the Junta Suprema de Estado in 1788. The Suprema functioned from 1788 to 1797 as a ministers' caucus for discussion and determination of important matters of state. See Article 41 of the Instrucción reservada, in Escudero José Antonio, Los orígenes del Consejo de Ministros en España (Madrid: Editora Nacional, 1979), 2: 29–30.
33. Escudero, Los orígenes del Consejo de Ministros en España, 2: 702–3, includes a useful rough definition of “minor” and “serious” crime.
34. This was celebrated in the afternoon after the daily court session until 1714 when it was changed at the request of the chaplain “because holding Mass so late was prejudicial to his health.” The inmates were expected to attend Mass on Sundays and holidays. Martinez Salazar, Colección, 323, and AHN Consejos Suprimidos, Libro de govierno (1714), f. 585 and following.
35. In turn they contributed to questioning the ritual of hierarchy with their habitual appeals to the judges that they were chronically underpaid, complaining yearly of the lack of charcoal in the winter. See, for example AHN Consejos Suprimidos, Libro de govierno (1772), f. 51, Libro de govierno (1792), f. 1281–82 and Libro de govierno (1814), f. 1217–19. The basic salary was twentyfive ducados bi-yearly, with tips of six ducados every Paschal feast day. AHN Consejos Suprimidos, Libro de govierno (1779), f. 379 and Libro de govierno (1796), f. 986–88, plus indeterminate “cost allowances” from time to time.
36. AHN Consejos Suprimidos, Libro de govierno (1799), f. 1214–19.
37. Today this hall is the reception area for ambassadors in the Ministry of Foreign Affairs.
38. The Corregidor was a royally appointed city magistrate in charge of “policing” the city. His decisions, except for misdemeanors, depended on Sala approval. Martinez Salazar, Colección, 323–26.
39. Martínez Salazar, Colección, 327–28.
40. These are the annual libros de acuerdos, which form the fundamental source for my database collection of information.
41. Martínez Salazar, Colección, 332.
42. My understanding of this issue is based on a reading of Gramsci Antonio, “The Intellectuals,” in Selections from the Prison Notebooks, trans, and ed. Hoare Quintin and Smith Geoffrey Noweli (New York: International Publishers, 1971), 3–23, Weber Max, “Politics as a Vocation” in From Max Weber (New York: Oxford University Press, 1958), 77–82, Shils Edward, The Constitution of Society (Chicago and London: University of Chicago Press, 1982), 93–109, and David Garland's lucid analysis of the development of social control theory within the criminological corpus in the social sciences, Punishment and Modern Society: A Study in Modern Social Theory (Oxford: Oxford University Press, 1990).
43. Townsend Joseph, A Journey through Spain in the Years 1786 and 1787… (London: Printed for C Dilly, in the Poultry, 1791), 1: 132.
44. Fig. 1 shows counsel seated at left. No. 17 is the defendant. It is unclear whether the reporter summarized and presented the contending parties' depositions before delivering them orally at the trial, or whether he summarized the evidence after the legal counsel presented it in court. Lawyers for the defense and prosecution were permitted to present long argumentative interpretations of the evidence orally.
45. A graphic example of this general Enlightenment concept occurs in Peyron's Jean-François travel narrative, Essais sur l'Espagne (London: P. Elmsly, 1783), 2: 296–97.
46. Fernán-Núñez Conde de, Vida de Carlos III, ed. Morel-Fatio A. and Paz A. y Melia (facsimile of the 1898 edition, Madrid: Fundación Universitaria Espanda, 1988), 243.
47. Cited in Jaime Jorro (pseud. Bernia Jaime), Historia del Palacio de Santa Cruz (Madrid: Talleres de Blas, 1949), 122 note 1.
48. Although there is no good study of this phenomenon, Julio Caro Baroja's anthropological study of popular literature is the place to start—for example, Ensayo sobre literature de cordel (Madrid: Istmo, 1990), Romances de ciego (antología) (Madrid: Tauros, 1966), and Realidad y Fantasía en el mundo criminal (Madrid: Consejo Superior de Investigaciones Científicas, 1986).
49. Jorro, Historia del Palacio, 132.
50. These obviously helped Juan's wife Rosa de Vargas's case in her attempt to have him punished for mistreating her. March 30, 1782. AHN Consejos Suprimidos, Libro de acuerdos 1.070, f. 63r.
51. Bolaños Juan de Hevia, Curia Philipica (Madrid: Ramón Ruiz, 1797), 2: 220–22; Andrés Cornejo, Diccionario histórico y forense, 2: 5–7; Elizondo, Practica universal forense, 1: 262–63. See also Las Siete Partidas del Rey Don Alfonso el Sabio, cotejadas convarios codices antiguos por la Real Academia de la Historia (Madrid: Imprenta Real, 1807), Partida 7, ley 1, título 19.
52. The Carmen Calzado case we have been outlining revolved around two men, Diego de Lafuente and Pedro “The Andalusian,” who were criminal suspects in 1787 but still had not been found by the court in early 1788. Until apprehended such suspects could nevertheless be tried as ausentes, or absent from trial proceedings. If found guilty at the final judgment, they would then face specific treatment as rebeldes, or rebels. Custom allowed the suspects to present themselves in court within three days of the promulgation of the edict of emplazamiento. The court repeated the process three times.
53. Gutiérrez Marcos, Practica criminal de España, vol. 2, Carmen Calzado Case (1787), 212–21, especially 214–16.
54. According to Pérez and López's general rules of law, citing Digest L.17.37, “Nemo, qui condemnare potest, absolvere non potest,” and Digest L. 17.56, “Semper in dubiis benigniora praeferenda sunt,” a point repeated in canonical law, Decretal. V.41.2, “Dubia in meliorem partem interpretan debent…. Hoc loco nihil aliud nobis praecipi existimo, nisi ut ea facta, quae dubium est quo animo fiant, in meliorem interpretemur.” Pérez Antonio Xavier y López , Teatro de la legislación universal de España e Indias: por orden cronológico de sus cuerpos (Madrid: M. González, 1791–1798).
55. Hevia Bolaños, Curia Philipica, 221–22. I am following John Langbein's thinking in his comparative analysis of European legal systems, Torture and the Law of Proof: Europe and England in the Ancien Regime (Chicago and London: University of Chicago Press, 1977).
56. For example, Miguel Fernández, a Murcian lemon-seller, provided a character reference for one witness, Marcos Gutierrez, Practica criminal de España, vol. 2, Carmen Calzado Case (1787), 230–33.
57. This is to be distinguished from the twentieth-century universalist thesis of the “rights-bearing” individual.
58. “Cada uno habla en derecho de su dedo” and “C-Quien tiene una hora de espacio, no muere ahorcado.” Correas Gonzalo, Vocabulario de refranes y frases proverbiales y ostras fórmulas comunes de la lengua castellana …, ed. Combet Louis (Bordeaux: Institut d'études ibériques et ibéro-américaines de l'Université de Bordeaux, 1967), s.v. “Derecho.”
59. “Con esos derechos, se hacen los cohombros tuertos.” Correas, Vocabulario, s.v. “derecho.”
60. Occasionally a lawyer will briefly explain how these occurred, apparently with great ease and under no supervision. See for example, Elizondo, Practica universal forense, 3: 305. Elizondo describes the many visits he made in 1776 to a canon in the Madrid Royal Jail who was being held as a murder suspect.
61. Ironically the author here, Francisco Antonio Elizondo, is one of the sources that did discuss how useful client-lawyer contact had been for him as counsel in various criminal cases before he became a prosecutor. Elizondo, Practica universal forense, 3: 318–19.
62. Elizondo, Practica universal forense, 1: 271.
63. The notary Tomás Torijano noted that a witness had signed for her because she was illiterate. Gutiérrez Marcos, Practica criminal de España, vol. 2, Carmen Calzado Case (1787), 225.
64. “The most horrid acts are made justifiable by reason; the theorems of Justice are thrown into disorder by apothegms of pity. … a half-year's protraction is enough for the heated emotions of July to be commuted into the frosts of January. Pity then stands alone. Everything runs in the suspect's favour and no attention is paid to his crime. If the victim is poor, very little suffices to compensate them…. When spirits are thus disposed, it is easy for the accused to exit the jail in victory, the same who before entered it and was worthy of hanging by universal acclaim.” We should keep in mind two translation points in this context: “Republic” is the common term used prior to the nineteenth century for the polity, or commonwealth, and pity and piety can be expressed by the same word in Spanish. Jeronimo Feijóo y Montenegro, Theatro critico universal, vol. 3, “Discurso 11: Balanza de Astrèa ò recta administracion de la Justicia. En carta de un Togado anciano, à un hijo suyo recien elevado à la Toga,” 244–47.
65. White José Blanco, Cartas de España (Madrid: Alianza Editorial, 1977), 154.
66. Townsend, A Journey through Spain, 3: 22.
67. Andrés Cornejo, Diccionario histórico y forense, 2: 6–7.
68. Access to case files was always confidential. Martínez Salazar, Colección, 335–36.
69. For an example of the reiteration of such government instructions, see AHN Libro de govierno 1.358 (1770), f. 50. There is also a discussion in López y Pérez, Teatro de la legislación, 6: 444–48, and comments on “Dilaciones,” 23: 142–43.
70. Listed in Martínez Salazar, Colección, 80.
71. The maximum common law time limit according to the opinion of commentators such as the oft-quoted Gómez Bayo and Farinaccio was twenty years from the sumaría inception. Adultery had to be tried within five years of the crime. Other crimes, such as heresy, had a limit of forty years. Elizondo, Practica universal forense, 1: 267.
72. They were all found guilty and sentenced to two hundred lashes and ten years in an African penal colony. AHN Libro de govierno 1.356 (1768), f. 280–82v.
73. That is, as sumarias ready for consideration as plenarias.
74. Sample count of all cases, AHN, Consejos Suprimidos, Libros de acuerdos 1.046 (1758).
75. Four hundred fifty-nine individual cases, which gave all investigative and trial dates, were examined from the sample count of all cases, AHN Consejos Suprimidos, Libros de acuerdos 1.046(1758), 1.050(1762), 1.066(1778), 1.070(1782), 1.086(1798), 1.090(1802).
76. Sample count of all cases, AHN Consejos Suprimidos, Libros de acuerdos 1.046 (1758), 1.050 (1762), 1.066 (1778), 1.070 (1782), 1.086 (1798), 1.090 (1802).
77. I am using the term mythology in the current anthropological sense stemming from the work of Edmund Leach, which insists that mytho-history plays a very real part in determining the structures of lived existence. See, for instance, his Structuralist Interpretations of Biblical Myth (Cambridge: Cambridge University Press, 1983), 33–57.
78. There is a remarkable similarity on almost all points between the system described in this study and that portrayed by Cutter Charles R., The Legal Culture of Northern New Spain, 1700–1810 (Albuquerque: University of New Mexico Press, 1995). Cutter reaches the same conclusion that the involvement of the local population in framing judicial culture “dispels the common assumption of an ‘absolutist’ colonial regime” (147). Echoes of this juridical cultural are to be found in the Comunero revolt of 1781 in Latin America, which John Phelan summarized as “The belief that unjust laws were invalid, and that inherent in the corpus mysticum politicum was the right to some form of popular approval” of statute law. See Phelan , The People and the King (Madison: University of Wisconsin Press, 1978), xviii. Compare Young David B., “Alternative Ideologies of Law: Traditionalists and Reformers in Eighteenth-Century Lombardy,” McGill Law Journal 34 (1989): 264–85, and idem, “Property and Punishment in the Eighteenth Century: Beccaria and His Critics,” The American Journal of Jurisprudence 31 (1986): 121–35.
79. One of the few good studies of habeas corpus and government accountability in this context is by Lira González, who compares the colonial and independence periods. See González Andres Lira, El Amparo Colonial y el Juicio de Amparo Mexicano (Mexico: Fondo de Cultura Económica, 1972), especially 1–3 and 137–56, and the excellent prologue by the Mexican lawyer, Alfonso Noriega.
80. A paraphrastic reading of Savigny Frederick Charles von, Of the Vocation of Our Age for Legislation and Jurisprudence, trans. Abraham Hayward (London: Littlewood & Co., 1831; reprint New York: Arno Press, 1975).
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