On Sex, Criminal Procedure, and Interpreting Colonial Prosecutions, II

In my first post on this topic, I looked at one of the way criminal cases are usually mined for social historical information. Today I’d like to turn attention to the context of criminal procedure practiced in a mid-sized city in the 18th-c. Andes.

Standard criminal procedure allowed for cases to be started through one of three means– denunciation by third parties, accusation by a victim, or at by magistrate initiative (de oficio). With either denunciations or accusations, a petition was submitted to one of the judicial authorities of the corregimiento (the city and its immediate hinterland) requesting judicial intervention. Following the complaint, officials performed an official investigation (prueba), producing a summary report on charges and evidence.

During the course of the investigation, witnesses were read the allegations and asked to respond, either through a list of questions submitted by the plaintiff or more generally as to their knowledge of the allegations. Witnesses would swear and sign, if they were literate, their statements, all of which was recorded by a court notary. In cases where warranted, a physical examination of victims or the accused would be performed by a surgeon and reported as well.

Based on the accumulated evidence of the investigation, the presiding magistrate (who was operating off of an assumption of guilt) ordered the arrest and/or continued detention of the defendant as well as their confession. Again, the term confession was used because of the assumed guilt of the accused, who was placed in a defensive position, forced to deny allegations that were framed as positive indictments. The accused could offer contradictory petitions or witnesses after the confession, used to corroborate their version of the story. This sparked a back and forth that ended when the judge felt the legal arguments were exhausted, when one or another litigant took the case out of venue to a competing jurisdiction, or when people ran out of money. Combined with a recommendation by the court’s advisory attorney (fiscal), the case would then be forwarded to definitive sentencing.

Through the course of a case’s progress, the discursive conventions of criminal prosecutions were set by the investigating magistrate, almost exclusively in response to the terms of the initial complaint. The confession, contradictory interrogatories, follow-up petitions, and moves to change venue were moments in which defendants sought to break this discursive dominance, even if only temporarily. This context must be considered when evaluating the language and structure of denunciations, witness testimonies, confessions, and even appeals. The discursive disjunctures likewise open a window to a barrio life less determined y the norms pressed by the magistrate in his judicial/pastoral capacity. Finally, I would note that in cases with appeals that post-date the definitive sentencing, these appeals often starkly contrast with the language of engagement used by defendants during their confessions and in the midst of their counter petitions and interrogatories. In the late 18th c. in particular, this discursive shift moved towards a pastoral appeal to the magistrate that combined an avowal of one’s moral correction with an appeal to mercy– a reaffirmation of dominant (i.e., institutional) disciplinary norms.

Next time… an actual case with actual people.


Associate Professor of Early Latin America Department of History University of Tennessee-Knoxville

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Hacer juicio ú dictamen acerca de alguna cosa... significando que el objeto excita el juicio ú dictamen en la persona que le hace.

Deducir ante el Juez la accion ú derecho que se tiene, ó las excepciones que excluyen la accion contrária.

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Chad Black

I, your humble contributor, am Chad Black. You can also find me on the web here.
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