On not going to court in colonial Spanish America: A conversation between Bianca Premo and Yanna Yannakakis


The two of us have been having an ongoing conversation - about law, its spaces, and its practitioners in colonial Mexico and Peru – for years. In this context, we’ve been looking at this photo together. It is a famous photo from 1929 Peru, taken by photographer Martín Chambi, called Campesinos en el juzgado (Peasants at court)

Martín Chambi, “Campesinos en el juzgado” Cuzco. ca. 1929. Impresión en gelatina de plata sobre papel. Museo de Arte de Lima.

Aside from the arresting content, we appreciated how the photo makes visible a hazy, ill-defined, but persistent specter in the historiography of colonial Latin American law. Among many things, this photo gives the impression that the law was an unfamiliar space that indigenous or other subaltern subjects entered: an uncomfortable, raggedly Westernized place of clocks, pens, and sheets of paper peeling off the walls or piling up on desks. A space of hard, bureaucratic gazes and hard, unyielding benches. A space where submissive postures are belied by resistant faces.

This image captures something we’ve struggled to find the words to explain, a specter we’ve tried to make more visible in order to dispel. In the many versions of an article we co-authored in The American Historical Review (vol. 124, no. 1)  on Indian jurisdiction in seventeenth-century Southern Mexico, we kept putting in and taking out a sentence. It referred to the corpus of rich histories based on the millions of native appeals to colonial courts staffed by formal judges of Spanish descent from the late fifteenth to nineteenth centuries. To shift attention to native jurisdiction and indigenous judges under Spanish colonialism rather than native litigants in colonial courts presided over by Spanish officials, we ventured that the existing historiography risked reproducing the idea that indigenous legal subjects “went to court, hat in hand,” in their quest for justice and, as a result, reinforced, unwittingly or cumulatively, colonial power and their own subordination. We took that line out and put it back in various drafts, but we remembered it again when we looked anew at Chambi’s photo:  the hats on the carpet next to the bare feet; the gaze of the suited, bespectacled, presumably mestizo man on the left and the others behind the Indian legal subjects patiently waiting in the juzgado, or court. 

Our work, collectively and individually, shows that, while it was true that legal offices, courtrooms and the dictates of legal writing were often narrow spaces for indigenous peoples and other ordinary Latin Americas, the “law” spilled out of those spaces and was also produced in the houses of caciques, or native lords, on highways called caminos reales, in church pews and taverns, and in the makeshift, traveling offices of official and unofficial writers in the American part of the Spanish empire.  Yanna has most explicitly tried to show how the law traveled in writing networks in Southern Mexico in the late eighteenth and early nineteenth centuries with her project Power of Attorney in Oaxaca, Mexico: Native People, Legal Culture, and Social Networks.

What is remarkable about your digital project to me is how it fits together law, ethnohistory, and the spatial turn in history, which crosses the discipline of geography and uses digital mapping techniques to make things visible to us as they were to historical actors. I really like the way that you literally situate us in Southern Mexico with photos of the Sierra Madre ranges and the boundary stones. It shows clearly that the terrain shaped legal networks and possibilities—just a simple thing like how long it might take to get to a head town where a native town council was or to where the Spanish colonial district magistrate was. But even beyond this, it gives us a glimpse of the legal conceptual map that people had in their own minds.

That legal conceptual map is spatial and geographical, and also rooted in social networks. As indigenous people – and other ordinary litigants in the Spanish Empire – contemplated “going to court,” one of their first considerations was who could best represent their individual or collective interests at particular stages of appeal in the legal process. Bianca, you address this concern so well in your book, The Enlightenment on Trial, in which you argue that lawsuits were staged processes that unfolded in phases and sequences of papers. The delegation of writing made it possible for colonial subjects to litigate without going to a physical court. My “Power of Attorney” project builds upon this crucial insight by exploring how litigation within the textual space of legal papers required the work of literate agents in physical proximity to judges and courts, and a clear strategy across geographical space. I am interested in plotting the geography of textual spaces of law in Spanish America, and in particular, considering how texts like letters of attorney allowed litigants and their agents to move paper across different spaces. This could mean moving testimony between the jurisdictional spaces of a native town hall and colonial district court, or circulating papers through the legal venues that constituted the ladder of appeals, or conveying legal correspondence from native authorities in remote mountain villages to ecclesiastical courts in diocesan capitals, to Mexico City civil tribunals, or all the way to the Council of the Indies in Madrid. In this respect, legal knowledge was spatial knowledge.

That final sentence is really a great one: legal knowledge was spatial knowledge. I also wanted to follow up on your choice of the term “venue.”

Yes, venue can reproduce the idea that we see in the photo, a venue as a disciplining space that must be entered, that must be proper or appropriate places where the law transpires, and where it must occur to be legible and visible as “law” proper. But, of course, law happened in unexpected places like caminos reales (highways) as people carried (and lost) bundles of papers known as autos thereby altering the course of a lawsuit. It also happened in interpreters’ homes where litigants gathered to write and translate petitions and initiate a legal claim, and in indigenous architectural spaces that had served as “palaces” for the native nobility. For example, the Casa de la Cacica (the “Noblewoman’s Palace”) in Teposcolula, Oaxaca became the casas reales (town hall and first instance tribunal) of the indigenous municipal council in the late sixteenth or early seventeenth century.

Casa de la Cacica complex, Teposcolula, Oaxaca, Mexico. (source: flickr.com)

This is our dynamic! You present something fascinating about indigenous law and I go off on a tangent about urban, “colonial” law that is more dominated by Spanish norms. The fact that the Casa de la Cacica was both a palace and a town hall where petitioning, disputing and voting took place reminds me of how misleading it can be to confine our thinking about what “court” was even for ethnically diverse cities. Surely there were courts, public hearings, ceremonies and powdered wigs and robes. But I’m thinking of the guides and government directories for itinerant laborers known as the “Guías de Forasteros.” One I consulted for early 19th-century Lima listed the courts of the city but also lawyers’ and scribes’ home addresses. If you look at Chambi’s “juzgado,” it’s not clear it’s a courthouse proper at all, but easily could be the receiving room at the front of a magistrate’s home. The law was not always “public” in the modern sense. Wasn’t that a central point Habermas was making about the difference between royal court culture and eighteenth-century salons? That for a long time the res publica was an extended private patrimonial space? Can we say the Spanish colonial state in the seventeenth century began to delimit sovereignty or jurisdiction in concentrated, bounded ways consonant with modern notions of the public court? I’m thinking here of Daniel Nemser’s book in which he argues that concentraciones in Mexico (known as reducciones in Peru and resguardos in Nueva Granada) -- something akin to native “reservations” in North America -- were intended precisely to fix bodies racially and spatially in order to delimit sovereignty. He quotes Spanish officials in the seventeenth century fretting that when Indians migrated to Mexico City, they slipped behind the walls of the homes of “españoles” they served, and thus they were no longer visible as Indians or subject to Spanish royal or Church jurisidiction.

The idea of public versus private legal spaces in which indigenous and other colonial subjects could be visible to or hidden from justice gets at something that we attempted to evoke in the AHR article about Indian jurisdiction, namely its shifting and contingent nature in relation to imperial law. This idea was embodied for us in the architectural space of a temporary court: a casa de recivimiento (receiving house), built of sticks and branches on contested native land. The casa ceremoniously housed a Spanish judge as he read a sentence in a land dispute about possession of the very land upon which the ephemeral structure stood.

The casa de recivimiento was both a metaphor for Indian jurisdiction and also a space of law that reveals how Indian and Spanish jurisdictions developed in relation to one another. Bianca, you have piloted a digital project about Spanish American jurisdictions - Domains: The Colonial Spanish America Digital Jurisdictions Project - that visualizes the complex ways in which Indian and Spanish civil and ecclesiastical jurisdictions overlaid one another.

One of the most striking elements of this visualization, especially as one zooms in, is the dizzying quality of the jurisdictional spaces of the republics of Indians that dotted the landscape. As I contemplate your maps, and in particular, the encompassing geographical spaces that the jurisdictional boundaries enclosed, I wonder about how we might conceptualize or visualize spaces of law outside of jurisdiction? But before we answer this question, we should ask whether there were in fact spaces of law outside of jurisdiction.

That is a really challenging question, and I’m not sure I can answer it, but I sure can talk around it! To me, the question runs parallel to the problem of whether there is history beyond the archive or even identity beyond subjectivity. Why do we Latin American history professors all bore undergrads to death with maps of the viceroyalties, the creation of new intendencies during the Bourbon era in the eighteenth century, etc.? Some outstanding graduate students in a seminar I was teaching in 2016 puzzled over this question, and “Domains” was the result. We presume jurisdictional boundaries mattered to people’s sense of themselves and their communities. That presumption is fed by the archive itself because it privileges not only law but subjectivity in the jurisdictional model, including Indian jurisdiction. In our article on the casa de recivimiento and Indian jurisdiction in Southern Mexico, you and I confront the tricky part: while we can read the archive for concepts and spaces of native law that exceed the archive, often the very thing we are reading for - “law,” “jurisdiction,” or any other category - is generated by the very production of the archive.

Another way to look at this is to see jurisdictions as literary genres of legal identity. They have to do with space in multiple ways, but one which could be easily overlooked are the boundaries that establish the legal subject. People referred to the “jurisdiction of their own conscience” frequently in colonial Spanish America as a jurisdiction with which magistrates had to compete. This redirects us to the space or boundaries of the self or community, and what it meant when people situated themselves in writing as inside or beyond jurisdictions, or as vassals overall.

It’s not easy to represent the imbricated way jurisdiction disciplines but does not exhaust legal spaces and subjectivities. The “Domains” project is just a very first cut at trying to capture this. I’m not sure it does yet, except to show that any particular point on the map entails relatively stable geographic and political boundaries, but jurisdiction is also layered, dynamic, and often unmoored from location. This means it can be portable, even for people like the Mixtecs whose identity was so deeply rooted in the land.

We want to sign off with the idea that jurisdiction’s layered and dynamic nature obscures as much as it captures. Let’s return to the photo with which we began to bring this final point home. Martin Chambi’s “Campesinos en el juzgado” invites us into a particular space of law, and prods us to think about the material spaces through which the people in the photo passed to get there, as well as the texts that they co-produced prior to entering and while inside the court.

If the photo represents the strictures of the court proper, it can also inspire us to ask what happened before, simultaneous with, and after these peasants entered the “juzgado,” and as they moved through other spaces of law. Some other spaces surely fit the jurisdictional logic that dominates our historical thinking and the organization of legal archives. Some surely didn’t. To imagine those hidden or obscured spaces, we can glean evidence from archival fragments or archives not considered properly legal. As one example, if purifying oneself by bathing in a river was a pre-requisite for receiving the staff of office that constituted one’s authority as a native colonial magistrate, how might that river figure into a jurisdictional map? How might the authority conferred by the river play into the native officer’s legal subjectivity as an individual or unit in a collective, and his legitimacy in the eyes of the people subject to his legal authority? Second, if translation by a court interpreter from an indigenous language to Spanish was necessary for oral or written testimony to be recognized as legal by a Spanish judge, do native words lie outside the textual space of law? How did language and translation elude or muddle legal jurisdiction? We don’t have immediate answers for these questions, but we think that they point to possibilities for uncovering spaces of law beyond jurisdiction.


Digital resource links:

Power of Attorney in Oaxaca, Mexico: Native People, Legal Culture, and Social Networks

Domains: The Colonial Spanish America Digital Jurisdictions Project

Bianca Premo, Professor of History, Florida International University
Yanna Yannakakis, Associate Professor, Department of History, Emory University