Criminal Justice

Crime and violence were part and parcel of the conquest and settlement of the New World and persisted throughout the colonial era. Contemporary accounts are replete with references to crimes against property, crimes perpetrated by one individual on another, and, far less frequently, crimes against the state. Cases of robbery, assault, and homicide regularly reached colonial officials and provoked efforts to find and punish the perpetrators. Officials paid far less attention, however, to illegal physical and financial abuse of Indians and slaves. In urban centers, authorities devoted considerable effort to controlling crime and punishing criminals. In many rural areas, in contrast, much crime went unreported to royal bureaucrats in the audiencia's capital, and local officials meted out punishment. Indeed, the only types of crime that officials in rural communities had to report were homicides, aggravated assault, and sedition.

The most effective large-scale crackdown on crime took place in New Spain in the eighteenth century with the creation in 1710 of a new body, the Acordada, which actively pursued and punished criminals throughout the viceroyalty. An indication of the frequency of crime in late colonial New Spain can be found in the nearly forty-three thousand cases heard by a single judge of the acordada from 1782 to 1808.

Several types of officials shared responsibility for dealing with crime. Municipalities had alguaciles, sheriffs or constables who apprehended criminals and received as income a portion of the fines levied. In addition, the audiencias had Alguaciles Mayores who engaged in the same activities. Local magistrates (alcaldes ordinarios), provincial administrators (Alcaldes Mayores and Corregidores), and the regional high courts (audiencias) heard cases and pronounced sentences. Provincial administrators heard appeals from local magistrates; the audiencias heard appeals from both as well as from corporate bodies that enjoyed special judicial privileges (fueros). Viceroys and captains-general heard military cases, and ecclesiastical courts handled cases involving clerics. Appeals in criminal cases ended at the audiencias. In civil cases involving substantial sums of money, however, plaintiffs could appeal to the Council of the Indies.

Colonial judges invoked criminal statutes codified in the Recopilación de leyes de los reynos de las Indias (1681) and in Spanish legal compilations. These included the Nueva recopilación de Castilla (1659), the Laws of Toro (1505), and other legislation extending back to the Siete Partidas (1265). In addition, judges consulted local ordinances, viceregal decrees, and other legislation.

Interpersonal crime was commonplace and usually involved people who knew each other. The offenders, particularly those who used a deadly weapon such as a butcher or household knife, were usually young males, as were the victims. Most reported crimes against women, which included beating, stabbing, homicide, and sexual offenses, took place in the home.

Homicide was one of the few offenses that virtually all members of colonial society considered criminal. Consequently, records of homicides, although fragmentary, are more complete than those for any other crime. A review of these records for central Mexico reveals that rural homicide rates rose beginning in the late seventeenth century. Rural homicides usually took place after work and on Sundays.

The colonial authorities' toleration of crime and violence varied considerably over time. Behavior condoned during and immediately following the conquest of a region was often subsequently condemned and punished. The illegal branding and exportation of Indian slaves in Central America in the 1530s, for example, continued both because officials participated in the trade and because violators, on the occasions when they were punished, usually received light sentences. The race, class, and sex of the perpetrator and victim also affected the extent to which officials tolerated criminal activities and the vigor with which they pursued the perpetrators.

Spanish officials considered persons of mixed racial background to be of "vicious origins and nature," expected them to engage in crime and violence, and consequently were willing to tolerate a high level of criminality. When they finally took action against mestizos, mulattoes, and other castas, however, the punishment was apt to be severe and exemplary.

Legislation made Indians legal minors. From this paternalistic perspective, criminal behavior was expected as a result of their alleged lack of reason, and was not considered as serious as that of Spaniards. As a result, punishment was usually lenient.

A substantial body of royal and municipal legislation defined measures for controlling the behavior of black slaves. For example, blacks in Lima were subject to a curfew, forbidden to leave the city without official permission, and prohibited from carrying weapons. Punishments for violations were theoretically severe and included whipping of up to three hundred lashes, castration, exile, and hanging. In many cases, however, well-connected slave owners simply bribed the alguaciles to overlook the offense. The most common offense slaves committed was running away, but they also committed theft, assault, and murder with some frequency. The victims of slave theft were usually Spaniards or Indians, while victims of assault or murder were apt to be persons of color. Blacks were often victims of assault and murder committed by Spaniards.

As the colonial period progressed, the number of Spaniards in the lower and lower-middle classes increased. Many Spanish criminals came from these groups. A review of the cases of 958 prisoners sentenced to service in a presidio or garrison of New Spain or elsewhere in the empire in 1799 and 1800 revealed that 28 percent of the men were Spaniards, most of them from the lower or lower-middle class.

Much justice, particularly in rural areas, was handled informally. The hacendado or plantation owner often took it upon himself to discipline workers and to punish petty theft and assault. Urban residents, on the other hand, especially Spaniards and castas, were much more apt to be punished following formal proceedings.

While every group in colonial society was victimized by criminals, women were particularly ill served by the judicial system. Physical abuse, wife beating, rape, and kidnapping were the most common crimes against women; most occurred in the home and were committed by a member of the family or another person known by the victim. Frequently the husband was the perpetrator, lashing out at his spouse in anger over her conduct, especially her sexual conduct. Many, perhaps most, wives were reluctant to file charges, for fear of provoking even harsher abuse.

When a woman sought legal redress, she found that a male judge questioned her closely, in search of any sign of blemished reputation. A woman had to document her pure behavior, and if any stain was found, her husband's conduct was condoned. Not surprisingly, accused husbands routinely countercharged that their wives had engaged in misconduct.

Assailants were seldom punished for the rape or kidnapping of a single woman. Only when a married woman had been raped did colonial judges consider the offense a serious crime—not for its heinous nature but because it damaged the honor of the victim's husband. If convicted, the assailant often was temporarily exiled.

In cases of adultery, the cuckolded husband could legally murder his wife and her lover, but this form of retribution happened only among the lower classes. For an elite male to take this step would stain his honor by publicly proclaiming his wife's infidelity. If a wife murdered an adulterous husband, she could expect no mercy.

Colonial authorities employed various punishments, depending on the specific crime committed; the class, race, age, health, and sex of the perpetrator; the length of time spent in prison prior to sentencing; and prior criminal record. The one crime certain to result in a death sentence was sodomy. Otherwise, capital punishment was rarely employed, even for homicide, and audiencia judges examined the cases carefully for evidence of premeditation, treachery, or assassination. For the most part judges reserved death sentences for highwaymen who had robbed and killed their victims and rape-murderers.

Labor service in the presidios of Havana or Veracruz from one to a maximum of ten years was the usual punishment for homicide in Mexico during the eighteenth century. Animal rustling and robbery also merited presidio sentences; vagrancy was frequently punished by two to four years of labor on a royal ship. Indians were not sentenced to military service, and only rarely to ship duty.

Terms of service as convict labor for private employers were common in Mexico, and many male criminals found themselves working in obrajes (textile workshops). Whippings were common, administered for many crimes committed by Indians, black slaves, and castas. Spaniards alone were exempt from the lash. Although women were punished less rigorously than men, they were sentenced to labor in artisans' workshops or in private households.

Most criminal offenses were misdemeanors and punished accordingly. Temporary confinement prior to sentencing or minor punishment—for example, a small fine—accounted for the vast majority of the sentences handed down by the judge of the acordada in Mexico in the closing decades of colonial rule.

One feature of criminal justice in colonial Spanish America that deserves special notice is the use of pardons. From time to time, the Crown declared general pardons in celebration of a coronation, a royal marriage, or the birth of a prince of princess. These resulted in numerous prisoners being released, although some crimes, such as robbery and fraud, were not covered by a pardon. A general pardon also reduced the number of unsolved crimes, for under the terms of the pardon, criminals who turned themselves in were absolved. In addition, viceroys could grant clemency and commute sentences.

See alsoJudicial Systems: Brazil; Judiciary in Latin America, The.

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                                       Mark A. Burkholder