In my previous posts on the subject (here and here), I’ve argued that the form of criminal prosecutions of sexual crimes in 18th-c. Spanish America lends important contextual cues for interpreting their content. The discursive conditions of particular stages of prosecution are, in a way, determinative or delimiting of the possible readings of those stages. In particular, the contextual realities of the assumption of guilt, the concentration of investigatory, prosecutorial, and adjudicating power within the singular office of the magistrate, and the jurisdictional complexities that tempered that authority are the key considerations for interpreting the legal acts and juridical identities expressed in the files. So, how does this look when expressed in real cases with real people?
At the ASE, I used the case of Alexo Merino to tease this out. On the
20th of April, 1770 sombrerero Alexo Merino filed a plaintive petition with a city magistrate in Quito protesting that his wife had abandoned her spousal obligations for more than fifteen years on account of her “notorious adultery and daring haughtiness.” Merino claimed the the proof of Francisca’s infidelities stretched back thirteen years, to the first time she was caught by the the ronda cavorting publicly with her lover, a soldier named Xavier Sandoya. Francisca and Xavier were found together in one of the city’s shops by a municipal magistrate. Merino claimed that while she was in custody he had a Jesuit Father visit her to educate her and council her on her responsibilities to return to married life. As if to highlight her questionable character, Merino continually referred to his wife by her alias, La Xarra (literally jug, or pitcher). Certainly only shady figures of dubious morals and intentions go by aliases. Apparently la Xarra’s haughty pride and disregard for either husband or reputation was not easily chastised, and she was caught again by the ronda in the early 1760s, and she was again held in the women’s jail at the Recogimiento de Santa Marta. This time, Alexo Merino enlisted the intervention of two Jesuit priests and the President of the Audiencia to have his wife’s lover banished to the port city of Guayaquil.
In response to his wife’s incorrigible behavior, Merino claimed he repeatedly sought judicial recourse before the bishop, fruitlessly requesting a formal separation of the marriage. Furthering his disgust, Merino reported his wife had given her lover 300 pesos to fund his removal to Guayaquil and his eventual return. Nothing, it seemed, could discourage his wife’s iniquities. Finally in April 1770, she found herself again in Santa Marta, placed there by the magistrate of the parishes of San Blas and Santa Barbara, whom Merino alleged la Xarra had tried to bribe with an offer of 500 pesos. In his desperation, after these many long years of suffering his wife’s embarrassing behavior, Merino avowed it would serve Justice if the alcalde ordinario would “mandate that [Francisca] be held in [Santa Marta], or in the monastery of Your determination, and Sandoya in the Yaruqui textile factory for the space of two years, or for the time period Your Honor determines….” Within the week, the alcalde had collected testimony from three witnesses (Julean Begara, Pedro Lopez de Soliz, and Phelipe Suares, all vecinos in their late 40s and early 50s) suggested by Merino, all of whom swore to the long term adultery of Francisca Naranjo and Xavier Sandoya, as well as to the rest of Merino’s story. Based on Merino’s petition and the witness testimony, on 27 April 1770 Lastra issued an official arrest warrant for Francisca to continue to be held in Santa Marta and for Sandoya to be confined to the city’s military barracks. Sandoya was spared the city jail because as a soldier he was entitled to the protections of the military fuero. Officially, the couple’s crime was public, scandalous cohabitation.
The magistrate, Manuel de Lastra, used the term amancebamiento, which the Libro de los principales rudimentos – a Mexican judicial manuel from the 1760s, defined as a single man and single woman living and sleeping together “in one bed and house [causing] scandal in the Republic and Neighborhood,” a charge that could be brought either through denunciation or official investigation. The Libro distinguishes between amancebamiento and adulterio, but does not include the term concubinato. In the Quito judiciary, all three terms appear for illicit relationships involving at least one married partner, with concubinato far and away the most common. Concubinato tends to be used as illicit cohabitation, akin to amancebamiento, though at times married people are accused of concubinato as well.*
The terms of the prosecution of Francisca Naranjo and Xavier Sandoya were thus set by the denunciation filed by Alexo Merino. Following the initial investigation and the sumaria, Lastra took the confessions of Xavier and Francisca from their respective jail cells with an interrogatory patterned directly on the accusations of Alexo Merino. The couple denied each of Merino’s allegations, but the alcalde found their responses less than compelling.
In particular, both defendants denied that Xavier had been exiled to Guayaquil, and claimed instead that he had been sent there in his capacity as a soldier. They also claimed that their relationship had been intermittent over a period of just eight years and that la Xarra had offered the alcalde de barrio just 25 pesos to dispense with their seizure by the ronda. Following established procedure, the content of the confessions was communicated to Alexo Merino, who filed a response calling for Xavier to be banished from Quito, to a point far enough away that he could not return easily. He also requested his wife be retained in Santa Marta for whatever period of time the alcalde would deem required for her “to know her reformation.” Merino reasoned that the penalties were more than justified as the couple was “apprehended in the actual act in which they were engaged in total scandal and freedom, nestled together in a underground room in order to enjoy themselves, hidden from the conscientious vigilance of Justice….”
He further argued that canon and civil law provided the death penalty for adulterers, particularly those caught in the act, and that the husband should be the arbiter of the severity of punishment, up to and including death. It was in the interests of “charity,” “justice,” and “good conscience” that Merino repudiated such calamitous punishment in favor of the more lenient castigation he requested. As noted earlier, murder of the offending spouse and her lover was acceptable in Hispanic law only if the husband himself discovered them flagrantly in the act, and only if he, consumed by an intoxicating passion, killed both offenders. Merino’s rather casual interpretation of the law was disingenuous, but certainly designed to enhance his personal standing before the judge. The reason for this desire soon became clear.
On 18 May, the latest petition of Alexo Merino was forwarded to the imprisoned defendants, who produced responses that impugned the character, behavior, and legal reasoning of their accuser. Interestingly, Xavier’s response questioned the a priori assumption of criminal adultery from a variety of angles. First, he claimed that any actual consummated adulterous acts began more than five years earlier, placing the relationship outside the statutory limitations for accusation. Furthermore, he claimed that for adultery to exist, there had to be a functioning marriage. “It is equally certain that legally there is no Adultery if there has been no violation of the Conjugal Bed.”
As evidence that Xavier could not have violated his lover’s marriage, he explained that from the moment they wed, Merino had lived a “scandalous life,” cheating on his wife, beating her to the point of causing a miscarriage (abortar) during an early pregnancy, and voluntarily abandoning her to live a separate life. “It was in these circumstances that I met [her], the marital bed of his wife abandoned for years. One could not call [their relationship] conjugal, as the word insinuates the cohabitation of consorts.”
Given the situation, Merino denied the possibility of having committed adultery. Their marriage was wrecked by Merino’s own behavior, and therefore Sandoya reasoned, “in view of the fact that Merino cannot hold me responsible for breaking up his marriage, nor could he fault his wife’s prostitution, nor can Merino condemn as Adultery a friendship that was not the cause of the disasters that proceeded it; … nor can a man be faulted for coming to know a married woman free from Subjection because she was abandoned by her husband….”
If there was no functional marriage to break up, then there could have been no adultery, particularly if the accusing spouse was himself culpable for the offense. Merino’s particular sin, in the eyes of his wife’s lover, was in abandoning his marital responsibilities in the first place, leaving her without semblance of a real marriage. The argument deconstructs concepts of marriage, fidelity, adultery, and scandal by placing these concepts along a continuum of acceptability. The greater sin was Merino’s, not his wife’s. Her transgression was rooted in the search for companionship in a substitute relationship when faced with an abusive, duplicitous husband.
Francisca Naranja’s petition echoed the arguments of her lover. Claiming the honorific Doña, Naranja requested that Lastra investigate her husband’s infidelities before he pass judgment on her unfortunate lot. The picture framed by Naranja and Sandoya was a mirror opposite to that posited by Merino. Moreover, the arguments employed open the question of popular versus institutional understandings of marriage. Naranja reasoned, “it is well known through municipal, canon, and civil law that in order for a male spouse have the right and ability to accuse his wife of the crime of adultery, it is necessary to have complied exactly with the obligations of an honorable husband; that is, to provide to her with food and clothing… as well as to be well ordered in his habits and morals, to be a good example to his wife, that she enjoy the love and good treatment required of both spouses to give one another….”
With this expression of legitimate matrimony, Naranja then proceeded to catalogue the mistreatments, infidelities, and neglect occasioned her by Merino, detailing in depth his “scandalous incorrigibility.” Doña Francisca’s appeal to the law was inexact, containing no references to specific entries in the Siete Partidas, the Recopilación, or any other recognized legal corpus. Rather, she referenced the vague notion of municipal, canon, and civil law as upholding a certain form of honorable marital obligation. The phrase “it is well known” parallels the standard for punishable illicit sexual activity—that an act be public and notorious—and as such inverts the meaning of legitimate and illegitimate marital behaviors.
The magistrate’s institutional control over the discursive limitations on acceptable sexuality was broken by Doña Francisca and Xavier’s confessional denials and formalized responses to the legal and social evidences presented by Alexo Merino. It was also destroyed by the jurisdictional shift of seeking venue at the Audiencia. The texture of the denials as well as the countervailing arguments, and their eventual success, suggest together with the long-term nature of their affair a level of social tolerance for adulterous behavior. Whether this behavior is accepted is less the point than its toleration. Further, the couple then sought explicitly to exploit the jurisdictional imprecisions of the system, appealing outright to the Audiencia as a circumvention of the alcalde’s authority, as a means undermining the alcalde and Merino’s control over the terms of the prosecution. It was the petitions of Francisca and Xavier, in this moment, that recast the discursive limitations of the case.
As the weeks passed, Sandoya and Naranja continued to labor in their confinements while Merino protested their maligning of his character. In July the two detainees produced their own interrogatories as well as three witnesses each to testify on their behalf. Sandoya produced three men, two merchants and a third resident of Quito; Naranja produced another three men, one merchant, a presbyter, and a resident of Tumbaco. They also carried their case to the Audiencia, seeking to circumvent Lastra and the municipal authorities. As a result of their cumulative paper production, Naranja and Sandoya were released from prison by order of Audiencia judge Sebastian Salzedo y Oñate. Salzedo was unwilling to accept the force of the couple’s deconstruction of the meaning of marriage and its relation to adultery, but justified their release in the verity of Merino’s complicity in the same transgression. The adultery of both parties cancelled each other out. Naranja and Sandoya’s freedom came with an admonition to abanDon their illicit friendship under pain of future severe punishment lest they be caught again. Finally, all three parties were required to bear the costs of the litigation equally.
Salzedo’s ruling was not handed down until 8 September, and while the accused couple ultimately regained their freedom as a result of Merino’s duplicity, they spent almost five months confined in Santa Marta and the city’s barracks. Merino, for his part, escaped scathed only by one third of the costs of the case. The procedural development of the case demonstrated the advantages of being the first to speak, along with the power of denunciation and of accusation. By all rights, Francisca Naranja could have followed the path of many other women in similar circumstances and denounced her husband, setting the discursive stage for his incarceration. She did not, it seems, because she had long before come to an acceptance that her marriage to Alexo Merino was a farce. In fact, it was only the public act of being caught by the ronda that motivated Merino to make his own accusation. It was the invasive presence of royal authority in the form of a vigilant barrio magistrate that brought the relationship to “public” light and forced a very long-term relationship into the realm of scandal and notoriety. One cannot imagine, however, that a relationship of a decade or more was not public knowledge prior to its entry into the judiciary. Surveillance made the adultery to fit the requirements of prosecution.
This is long enough for now. Next time I’ll connect the case back to the methodological argument.
*See, Charles Cutter, ed., Libro de los principales rudimentos tocante a todos juicios, criminal, civil y exectuvio: Año de 1764 (Mexico: UNAM, 1994).
This retelling of Alexo, Francisca, and Xavier’s case draws significantly from my dissertation and from my book manuscript, and is copyrighted material as such.