In my last post, I argued that the early modern Spanish legal system functioned through the perpetuation of legal fictions that allowed litigants to circumvent the rules. Litigants’ legal identities existed along a spectrum, or better within a matrix of nodes that placed them within varying sets of legal obligations and rights. Gender, for example, was one among many of these nodes that determined one’s position before the judiciary. Ethnicity, age, marital status, place of residence, community membership, occupation, social class, and gender as well, combined to effect an array of legal possibilities derived from the status of the individual within overlapping social corporations which functioned in a way analogous to the overlapping jurisdictions of Spanish law and administration. It was a messy system, but one that afforded significant flexibility and adaptability.
It was also a system dissembled in the transition to Independence. The new nations of Spanish America were the products, much like Spain itself, of the greater Atlantic liberal revolution that swept Western Europe and the Americas between, say, 1770 and 1830. As in the larger liberal revolution, this process was marked, in the words of Sir Henry Maine, by a shift from status to contract. The Napoleonic invasion of Iberia in 1808, the abdication of Charles IV, the seizure of Ferdinand VII, and the installation of Joseph Bonaparte on the throne in Madrid destabilized royal authority across the Spanish Monarchy, providing an opportunistic opening for Spanish liberals to reconstruct Spanish sovereignty.
On the political level, the rise of contract was epitomized by the rash of constitution and constitution-like writing that swept the empire in the wake of the abdication of the throne. While the Spanish Constitution of 1812, promulgated by the Cádiz Cortes, was maybe the most famous liberal document of the era, it was not the first in the empire. In the immediate wake of the Joseph Bonaparte’s installation, local and regional juntas were formed throughout Spain, and soon in the Americas as well. These juntas published manifestos that read very much like proto-constitutional claims to popular sovereignty and hit on the formula that would be enshrined in most all of pre-Independence constitutionalism: local rule in the name of the vanquished king and in protection of the Holy Catholic Religion and the patria. The formula eased claims to autonomous home rule while maintaining some form of commonwealth-type Spanish Monarchy. Quito promulgated its own constitution, known affectionally as the Documento de Oro in February of 1812 that followed this general formula. In the years after independence, and in a way as evidence of the triumph of liberal republicanism, constitutions became a sort of fetish in Latin America. Each successive change of unstable government for unstable government seemed to be accompanied by a new round of convention and constitution writing– a tradition we see preserved today in Venezuela, Ecuador, and Bolivia.
From the perspective of legal practice, the shift to contract and liberal republican ideals that separated judicial practice from administrative, legislative, and executive power had an almost immediate effect on the legal resources available to dominated groups in Quiteño society. The status-based matrix that managed the array of legal positions available to defendants and plaintiffs was efectively reduced to the binary of citizen/non-citizen. In the very short term, women, indigenous, poor mestizos, free blacks and others tried to make the smooth transition to claiming equal citizenship rights under the law, and they appear before the judicial appropriating the term ciudadano(a). But, these groups were ultimately disfranchised of traditional customary rights by the redeployment of Spanish law untempered by derecho vulgar. In the 1820s, magistrates increasingly referenced specific Spanish law, mostly from the Siete Partidas and the Nueva Recopilación de Castilla in adjudicating civil and criminal disputes. Though this law predated independence, it’s use in the early Republic was fundamentally different as the liberal commitment to the rule of law encouraged following the law’s letter. Spanish law was considered current until new republican law specifically displaced it (the codification, for the first time, of precedence), and this has led scholars of the early republics to see colonialist law as a drag on the modernization of Latin American societies. This claim, though, is problematic because it sees Spanish law as ossified, neglecting the specific emphases and deployments of that legal corpus over time- and the shift in its usage in the 1820s and 1830s.
For women particularly, the strict deployment of Spanish law worked against their ability to make autonomous legal acts. Additionally, in a manner similar to that theorized by Carole Patemen in The Sexual Contract, the shift to contract theory as the basis of Spanish American governance constructed a private sphere to which women were relegated as political citizenship was increasingly linked to contracting property rights.