Crime and Punishment in Colonial Latin America

Abstract

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.