Crime and Punishment in Colonial Latin America

by

Mark Lentz

• LAST MODIFIED: 28 October 2020
• DOI: 10.1093/obo/9780199766581-0239

Introduction

Spanish and Portuguese claims to American territories led to the passage of many early laws and the establishment of courts overseas. For the first decade after contact, few regulations restricted the behavior of the earliest Europeans abroad, and no laws governed their treatment of the indigenous inhabitants or, later, enslaved Africans. Questions over the reach and application of laws passed in Spain, specifically Castile, led to thousands of royal laws and decrees guiding jurists in the application of laws in the Americas. This body of law is known as derecho indiano. To bring order to the unruly conquistadors and resistant indigenous inhabitants of the Americas, Spain imposed laws governing relations between Spaniards and indigenous Americans. Abundant documentation on indigenous-Spanish interactions in courts has led to an outpouring of research on the intersection between crime and punishment and indigenous society in colonial Latin America. Compared to France and its territories’ Code Noir, however, no overarching legal code addressed Spanish and Portuguese colonists’ dealings with slaves. Determinations regarding slaves drew from medieval and early modern precedents, such as the Siete partidas. The three American tribunals of the Inquisition intervened into the lives of enslaved people as well. Except for a few studies on enslaved people’s interactions—usually unwilling—with the Inquisition, there are fewer studies of slavery and crime than those covering indigenous, European, and mixed-descent subjects. One key characteristic of the legal regime in Latin America is the tenuous division between ecclesiastical jurisdictions and secular law enforcement. The Inquisition, with seats established in Mexico City, Lima, and Cartagena de Indias, combined elements of both secular and ecclesiastical courts. Its jurisdiction over “sin crimes” has received more coverage than other judicial institutions in the colonial Americas. Studies of civil and ecclesiastical law enforcement skew toward the 18th century, due in part to the abundance of documentation for the later colonial period. In the early 21st century, however, scholars have turned their attention to the second half of the 17th century, beginning to fill a historiographical void. Mid- and late-20th-century scholars worked to reconstruct a comprehensive institutional and philosophical framework of the Iberian law in the Americas, which included both regional studies and empire-wide surveys. Overall, research on crime and punishment in Latin America has shifted away from institutional histories toward social histories of crime that delve more deeply into topics of race and gender, typically more narrow in geographic scope.

Surveys and General Histories

Due to the vast amount of subject matter potentially included in a survey of crime and punishment in colonial Latin America, there are no all-encompassing studies of crime and punishment in the Ibero-American world during the colonial era. More studies attempt to address the foundation of legal regimes broadly, such as Hanke 1949, which deals with attempts to reform colonial-era institutions. Mirow 2004 provides an updated, concise survey of legal theories and early institutions. Tau Anzoategui 1992 examines the gradual emergence of thoroughly Latin American legal regime from its beginnings as an American transplant. Though these works take an institutional approach, one key work has taken a look at the defendants, plaintiffs, and petitioners in courts in Mexico and Peru. Providing an often-overlooked perspective, the bottom-up approach of Premo 2017 provides an expansive if not exhaustive examination of often-neglected agents in the legal arena: women, blacks, and the indigenous.

• Hanke, Lewis. The Spanish Struggle for Justice in the Conquest of America. Philadelphia: University of Pennsylvania Press, 1949.

  Besides its status as a canonical work written in the vein of the White Legend approach to Spanish American history, Hanke’s work aptly describes the motivations of the reformers whose protests undergirded the institutions that provided a framework within which indigenous Americans could seek justice. The Spanish Struggle for Justice provides an understanding of the intellectual arguments behind laws restricting abusive behavior of indigenous peoples in the Americas, however oft flouted they may have been.

• Mirow, Matthew C. Latin American Law: A History of Private Law and Institutions in Spanish America. Austin: University of Texas Press, 2004.

  Mirow brings an attorney’s understanding to Latin American colonial laws in this concise, straightforward survey of legal systems in Spanish America. Mirow’s deep knowledge, careful organization, and short chapters make Latin American Law a useful reference point for scholars delving into the field of legal studies. The prologue and first nine chapters as well as the glossary are of interest to Latin American colonialists.

• Premo, Bianca. The Enlightenment on Trial: Ordinary Litigants and Colonialism in the Spanish Empire. New York: Oxford University Press, 2017.

  The Enlightenment on Trial moves commoners to the forefront of the legal changes effected during the 18th century. As an intellectual history from below, it shows how low-status subjects shaped judicial processes. Premo’s expansive scholarship spans Mexico and Peru. Her subjects include enslaved people, free black populations, mestizos, and indigenous subjects, but she depicts them with the appropriate granularity that avoids portraying low-status litigants as a homogeneous plebe.

• Tau Anzoategui, Victor. La ley en América hispana: Del descubrimiento a la emancipación. Buenos Aires, Argentina: Academia Nacional de la Historia, 1992.

  La ley en América hispana attempts to find broad trends in the development of law in the Americas, emphasizing the gradual primacy of “creole” law passed in the Americas rather than in Spain.