CLAH Andean Section Roundtable

Below the fold is a draft transcript of my comments for the upcoming CLAH Andean Studies Section roundtable, appreciably organized by Jane Mangan. I’ve seen the others’ draft comments as well, at it promises to be a fun and interesting discussion. Topics include identity, Independence, caudillismo, the environment, and servitude.

Comments prepared for the Andean Studies Roundtable: “The Andes Across Oceans: The Impact of Transatlantic and Transnational Currents in Andean History”

Conference on Latin American History

New York, NY 3 January 2009

Draft– Please do not cite without author’s permission.

By Authority of the Law: The Atlantic Liberal Revolution and Legal Culture in Early Republican Quito

In June 1809, a woman named Ventura Guzman filed suit before one of Quito’s alcaldes to compel a man named Julian de Echeverria to return 840 pesos to her from a questionable house sale. She was buying a property in the neighborhood of the La Merced Church, in the parish of Santa Barbara. In the sale’s protocolo she is described as, “doña Ventura Guzman, resident of this City, of celibate status.” As a single woman, she didn’t need consent to engage in this rather large real estate transaction, but stood on her own legal identity as doña and vecina. Guzman, for her part, complied with the details of the deal, only to discover that the provenance of the house she bought was contested, and Echeverria did not have the right to sell it! That, unsurprisingly, sparked the litigation to recover Guzman’s 840 pesos. In the suit, the calculus of her legal identity changed a fraction. In petitioning the municipal court, Guzman dropped reference to both doña and her marital status, and instead filed under the forumla, “Ventura Guzman, Indian resident of the city, in accordance with the law appear before Your Honor and say….” The doña purchasing an expensive house became an indigenous woman in need the special protections offered by the crown’s Protector of the Indians. With representation of the Audiencia appointed attorney, she was able to force Echeverria to make restitution on the fraudulent real estate deal, as well as for the costs incurred by the litigation.

I like the story of Ventura Guzman because it so graphically demonstrates the multivalence of early modern Spanish legal identities, identities that often hinged upon the perpetuation of legal fictions easily absorbed by the labyrinthine, contingent space of the judiciary. Her statuses as a single woman, as a vecina of Quito, as an Indian, as an honorable doña, as a homeowner, as a debtor, and as a plaintiff were nodes along a spectrum of identities to which she could appeal given the exigencies of concrete, historical circumstances. Guzman’s decision to emphasize various points on this spectrum reflected perceived tactical advantages in the broader strategy of asserting whatever special privileges, and downplaying whatever potential restrictions, applied to her legal personhood. This ability to assert contingent identities was the essence of the Spanish legal inheritance, which granted through a formal recognition of the currency of customary practice, both legal and economic identity to Ventura.

Over the course of recent months, and as we serendipitously approach the bicentennial of Ventura’s case, and the dramatic political revolutions that soon followed it, I’ve been working on tracking what happened to the multivalent character of early modern Spanish law, and particularly to the fate of women like Ventura who had successfully used legal resources in the late colonial period.

Recent scholarship on the independence era in Latin America generally, and the Andes as well by Jaime Rodriguez O. (The Independence of Latin America, 1998; La revolución política durante la época de la independencia, 2006) and Jeremy Adelman (Sovereignty and Revolution in the Iberian Atlantic, 2006) has convincingly returned the era of Latin American independence to the Atlantic Liberal Revolutionary milieu out of which it was born. Rodriguez claims, to the consternation of certain nationalist historiographies, that the process of Independence in Latin America was part of the larger Atlantic world political revolution that gave birth to the modern nation state form, including Spain and the many new states of Latin America. Likewise, Adelman has shown that the crisis of independence was a crisis of sovereignty, transitioning from the age of enlightened monarchs to that of republican sovereignty. As such, and more so for Rodriguez than Adelman, Independence in Spanish America was not anticolonial, and thus can’t be read that way, or projected that way into the 19th century.

As an aside on the Atlantic context, a few days before I sat down to write these comments last month, I was sifting through my quarterly search of “Quito” on Google Books. In the process, I came across an account in The Scots Magazine and Edinburgh Literary Miscellany from December 1810 of the August 2nd Massacre of imprisoned members of Quito’s 1809 Junta Suprema, reported via newspapers here in New York City. In fact, The Scots Magazine ran a number of stories on political developments in the Audiencia of Quito at least going back to the 1765 Rebellion of the Barrios. And on at an earlier stage, working with the manuscript archives of the Biblioteca Ecuatoriana – Aureliano Espinosa Polit, I came across, among other evidences, a newspaper from Baltimore in 1815 reporting Napoleon’s escape from the Isle of Elba. There is no question that information flowed, if haltingly at times, from corner to corner of the Atlantic World.

But that is not what energizes me most about the Atlantic Liberal context provided by Rodriguez and Adelman. I’m primarily interested in the effects of this context on micro-level legal practices. There is a certain ambivalence, or tension rather, in reading Independence within this context as the specificities of Spanish Liberalism. Terry Eagleton has noted, “Modern European criticism was born of a struggle against the absolutist state. Within that repressive regime, in the seventeenth and eighteenth centuries, the European bourgeoisie [began] to carve out for itself a distinct discursive space, one of rational judgment and enlightened critique rather than of the brutal ukases of an authoritarian politics.” In Spanish America, the struggle against absolutism, delayed until at least the 1760s, was not itself a struggle by a nascent burgher class to construct discursive spaces for resistance to the brutal ukases of an authoritarian politics. (Indeed, in a fashion that did become a struggle in the region some two centuries later.) It was titled nobles that led the Junta of 1809. So what, then, was this struggle in from the perspective of law and legal culture? It certainly was an attack on special privilege—but not simply an attack on the status privileges of the elite. Indeed, the move from status to contract, to borrow Sir Henry Maine’s imminently useful phrase, was a maneuver against the complex of status-based legal privileges and obligations that served the interests of the weakest, so to speak, groups within Spanish American society. This maneuver has been overlooked, to a certain extent, by perceptions of legal continuity across the Independence divide. The new states of the Andes preserved the position of Spanish Law amongst the new constitutional order of the early Republic as long as laws didn’t directly contradict this constitutional order, or until they were specifically repealed by new codes. This codification, then, of the concept of precedence provides a veneer of legal stability in which old law codes, most specifically the 13th c. Siete Partidas and the 16th c. Nueva Recopilación de Leyes de Castile were brought into the post-colonial order. Traditional interpretations of this fact have emphasized this use of law, together with patriarchal familial structures and the social cohesion of Roman Catholicism, as fetters on the transition to modernity. The contextualization of Andean independence in the broader Atlantic Liberal Revolution challenges this interpretation.

As indigenous doña vecina Ventura Guzman demonstrates for us, under the early modern Spanish legal system, 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. Those overlapping jurisdictions, perpetually pitted against one another, decentralized power by concentrating in the individual magistrate/bureaucrat executive, legislative, and judicial authority. It was a messy system, but one that afforded significant flexibility and adaptability.

It was also a system dissembled in the transition to Independence. 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 proto-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 republicanism (liberal or conservative), constitutions became a sort of fetish in the Andes. 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 effectively 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)- in the same way they had other status markers just years earlier. 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 law, mostly from the Siete Partidas and the Nueva Recopilación, in adjudicating civil and criminal disputes. In fact, whereas judicial decisions in the colonial period were almost never justified, but rather existed as expressions of sovereign will, magistrates increasingly employed the formula: “In the Name of the Republic, by authority of the Law” in adjudicating a dispute. This simple phrase sums up the significance of the shift in conceptions of sovereignty during the early Republic—it was not the embodiment (in the form of the judicial official) of the king’s will to justice and communal harmony (as messy as this often was), but rather the will of the republican state, underwritten by the authority of codified law, that carried legitimacy. The magistrate was no longer the personal incarnation of sovereign authority, but rather an official whose legitimacy radiated from a separated, political executive and legislative authority that he did not simultaneously manifest.

The liberal commitment to the rule of law encouraged following the law’s letter, particularly the patriarchal strictures that existed in the old codes—strictures that were routinely ignored in the perpetuation of legal fictions. With those strictures unbound by customary practice and special rights, law became a tool of disfranchisement for individuals whose array of identities ultimately couldn’t measure to the political (and economic and racial and gender) standards of “citizen.” For the women of Quito, the implications of this shift became increasingly clear across the decade of the 1820s. Whereas they had once enjoyed a robust ability to participate in legal acts, as litigants and contract makers, through the combined ambivalences of derecho vulgar and status rights, their disputes, ability to make disputes, and protections from certain forms of imprisonment were under attack. City and departmental magistrates increasingly sent women to verbal hearings, where they were charged to bring an “hombre de bien” to act as arbitrators along with the magistrate. Protections, such as restrictions against putting women in debtors’ prison, were lifted. Dowry practice, already in decline, left women with less access to property. Finally, in a manner similar to the fundamental concept of Carole Pateman’s Sexual Contract, the emergence of the a new, republican public sphere of politics (engaged in by rights bearing citizens) was predicated on the simultaneous construction of a codified, private domestic sphere that was impervious to police power. Early republican rule makers restricted city officials on the ronda from entering peoples’ homes, specifically from entering homes to interfere with domestic disputes. The combination of new law and unbound patriarchal tendencies within the old law left women in a vulnerable legal position that was specifically the product of republican legal culture, and its “equality” before the “authority of the law.”


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

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