Barreneche, Osvaldo (2006) - Crime and The Administration of Justice in Buenos Aires, 1785-1853 PDF

Crime and the
Administration of
Justice in
Buenos Aires
1785-1853
Written and translated

by Osvaldo Barreneche
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introduction: endless transitions iii
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Crime and the
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Administration of Justice
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in Buenos Aires, 1785–1853
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39 university of nebraska press
40 lincoln and london
1 Originally published as
2 Dentro de la Ley, Todo
© Osvaldo Barreneche, 2001.
3 English-language translation
4 © 2006
5 by the
Board of Regents
6 of the
7 University of Nebraska
8 All rights reserved
9 Manufactured in the United
10 States of America
䡬⬁
11 [First P
Library of Congress
12 Cataloging-in-Publication
13 Data [-4], (1
Barreneche, Osvaldo.
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[Dentro de la ley,
15 todo. English]
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16 Crime and the administration
17 of justice in Buenos ——
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Aires, 1785–1853 / written * 45.06
and translated by ———
19 Osvaldo Barreneche.
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references and index.
22 isbn-13: 978-0-8032-1357-9
23 (cloth : alk. paper) [-4], (1
isbn-10: 0-8032-1357-3
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(cloth : alk. paper)
25 1. Criminal justice,
26 Administration
27 of—Argentina—Buenos
Aires—History—18th
28 century. 2. Criminal
29 justice, Administration
30 of—Argentina—Buenos
Aires—History—19th
31
century. I. Title.
32 kha6290.2.b3713 2006
33 345.82'1105—dc22
2005019247
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35 Set in Minion by
Kim Essman.
36 Designed by R. W. Boeche.
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5 To Maria Celeste, for her unconditional love, for supporting me in all my
6 endeavors, and, most of all, porque la amo
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8 To my children, Juan Ignacio, Maria Luz, Maria Martha, and Maria Clara,
9 for never allowing me to be completely captured
10 by the burdens of a demanding profession
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5 Contents
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7 List of Tables viii
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Acknowledgments ix
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1. Introduction: Endless Transitions 1
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12 2. The Legal Architecture of
13 Colonial Criminal Justice in Buenos Aires 13 [-7], (4)
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3. The Administration of Criminal Justice in Buenos Aires, 1795–1810 28
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16 4. Changes and Continuities in Criminal Law after 1810 48
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5. The Emergence of Republican Penal Discourse in Buenos Aires 69 * 173.86002
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19 6. Administering Criminal Justice in Buenos Aires, 1810–1853 88
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7. Conclusion: Past and Present of the * PgEnds: Page
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Criminal Justice System in Argentina 114
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Notes 123
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25 Selected Bibliography 157
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Index 173
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1 Tables
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3 1. Chronology of Political Authorities in
4 Buenos Aires from Colony to Independence 11
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2. Homicide Cases Reviewed by the Audiencia, 1785–1810 45
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7 3. Law Students and Their Careers after Graduation 81
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5 Acknowledgments
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10 Many colleagues and friends have helped me through the different stages of this
11 book. I am especially grateful to Carlos A. Mayo at the Universidad Nacional
12 de La Plata who guided and supported me in the initial steps of this project.
13 [-9], (6)
Others I would like to thank in Argentina include Silvia Mallo, Noemí Girbal de
14 Blacha, Ricardo Salvatore, Eduardo Zimmermann, Emir Reitano, Juan Manuel
15 Palacio, Sandra Gayol, and Lila Caimari. Lines: 231 to
16 In the United States, I found encouragement and support in my mentor and
17 ———
dissertation director Dr. Donna Guy. What I learned from her during these past
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years goes far beyond the limits of academic mentoring to embrace life itself. I ———
19 will treasure these years for the rest of my life. Thank you, Donna. Normal Page
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Working with other professors at the University of Arizona was also a fruit- PgEnds: TEX
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ful experience. As a student, teaching assistant, and research assistant of Dr.
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Michael Meyer I deepened my expertise in legal history. With Kevin Gosner, I
23 [-9], (6)
learned more than a few things about the late colonial period as well as some
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of the ideas that inform my theoretical framework. I also benefited from the
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support, advice, and encouragement of Helen Nader, Bert Barickman, and Oscar
26
Martínez. I extend my appreciation to Lyman Johnson, Jeremy Adelman, Ed-
27
28 uardo Posada-Carbó, Fernando López-Alves, Carlos Aguirre, and Victor Uribe-
29 Urán for commenting on various parts of this book.
30 I have several reasons for thanking Michael Brescia, Sharon Bailey, Phyllis
31 Smith, Martha Few, Vicki Weinberg, and John Krueckeberg, but most of all
32 I thank them for their friendship and support. I also enjoy Jeff Shumway’s
33 friendship, with whom I share much more than a common interest in Argentine
34 history.
35 Funds from different sources also made this research project possible: The
36 Social & Behavioral Sciences Research Institute, the Latin American Area Center,
37 and the Graduate College at the University of Arizona; the Southwest Founda-
38 tion for Historical Preservation and Education and AmeriSearch Scholarships;
39 the Antorchas Foundation of Argentina; the Japan International Cooperation
40 Agency (jica); the Universidad Nacional de La Plata Research Project Funds,
x acknowledgments
1 and the Ministry of Justice and Security of the Buenos Aires Province,Argentina.
2 Thank you all.
3 I am also grateful to my sister Paola Barreneche as well as my old friends
4 from Argentina and my new ones from the United States. I thank all of them
5 for allowing me to be part of their lives. Finally, my gratitude to Elizabeth De-
6 mers, Jeremy Hall, Ann Baker, and Dawn Hall in particular, for their assistance,
7 patience, and professional support in the process of publishing this book.
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5 1. Introduction
6 Endless Transitions
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The most important thing in this world
9 about which men ought to know,
10 is the administration of criminal justice.
11 Montesquieu, De l’esprit des lois (1748) [First Page]
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13 [1], (1)
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16 This book analyzes the emergence of the criminal justice system in modern
17 Argentina, focusing on the city of Buenos Aires as a case study. It concentrates ———
18 on the formative period of the republican penal system, from the installation 4.0pt PgV
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19 of the second Audiencia (superior justice tribunal in the viceroyalty of Río de
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20 la Plata) in 1785 to the promulgation of the Argentine national constitution in
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22 During this transitional period, basic features of the modern Argentine crim-
23 inal justice system emerged. They are: (a) institutional subordination of the [1], (1)
24 judiciary; (b) police interference and disruption in the relationships between
25 the judiciary and civil society; (c) manipulation of the initial stages of the
26 judicial process (sumario) by senior police officers (comisarios); and (d) utiliza-
27 tion of institutionally malleable penal-legal procedures as a punitive system,
28 regardless of the outcome of the criminal cases judicially evaluated. There were
29 key moments in the history of the criminal justice system in Argentina from
30 the middle of the nineteenth century to the present, including the passing of a
31 penal code. Political, institutional, economic, social, and cultural changes also
32 occurred along the way. The foundational features of the penal system, however,
33 remained unchanged. Thus, the history of the judicial reforms typified in the
34 stories that follow could resemble what is going on now, but this history also
35 evokes and appeals to the past. This is a history book, but it deals with a topic
36 that loses meaning if it is detached from the present—a present and a topic that
37 concerns lawyers, historians, and all Argentine society.
38 The book deals with three historic and contemporary problems: transitional
39 periods, state formation/state reform, and how criminal justice is administered
40 in a republican system. Regarding the first problem, the book analyzes the
2 introduction: endless transitions
1 transition from colony to independence in Buenos Aires, finding that the insti-
2 tutional inertia of the modern penal system in Argentina is as much defined by
3 its procedural aspects as by its law and institutions. Political instability during
4 the first decades after independence generated an intense phase of institutional
5 experimentation. Regarding the administration of criminal justice, this stage
6 combined continuities of Spanish criminal laws, changes in judicial procedures,
7 and adaptation of colonial police-penal practices.
8 While the legal architecture of the emerging penal system incorporated re-
9 publican principles, the instrumentation of criminal procedures combined and
10 compromised ideological innovations with the practical needs of maintaining
11 order in Buenos Aires. This system also experimented and adapted already
12 tested colonial penal-legal practices to achieve this goal. The analysis of par-
13 ticular changes, continuities, and adaptation during this transitional period [2], (2
14 contributes to the debate over historical and contemporary institutional inertia
15 in Latin America. 1
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16 The second problem refers to the process of state formation, stating that the
17 adaptation and endurance of legal procedures from a preexisting (colonial) state ——
18 resulted from the multiple interactions of contesting state forms and diverse 0.0pt
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19 groups in porteño society. 2 The evolving power relationships between these
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20 kinds of state forms and subaltern groups has been recently studied in terms of
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21 the impact of popular forms of resistance in rural areas as part of the process
22 of state formation in Latin America. 3 Although this aspect is considered, the
23 book also stresses the analysis of institutional tensions within the emerging [2], (2
24 state. Both the process and result of these tensions are shaped by state internal
25 disputes as much as by the relationships between states and local social groups.
26 Thus, current proposals of state reforms should neither disregard these internal
27 aspects nor draw conclusions based on mere inferences. 4
28 The third problem stresses how criminal justice is administered in a repub-
29 lican democracy, balancing effective results and due process. On this matter,
30 the book states that the prospects of successful judicial reform in contempo-
31 rary Argentina are inversely proportional to the expansion of judicial functions
32 performed by the police. The power and autonomy of law enforcement agents
33 in crime-related issues grew after independence because they were linked to
34 the adaptation of colonial procedures in criminal cases and the application of
35 social control policies in a period of political and social unrest. Thus, historical
36 circumstances consolidated a locus of institutional power, that is, judicial func-
37 tions absorbed by police authorities, which enabled the police to monopolize
38 the initial stages of all criminal cases before they reached a judge’s hands. 5
39 Certainly the concept of social control as a way of manipulating society from
40 above is no longer comprehensive enough for dealing with multiple aspects of
introduction: endless transitions 3
1 law and society in Latin America. 6 Historians have found that documents sup-
2 porting the idea of the victimization of the poor as a strategy for achieving social
3 cohesion are just a (minimal) part of a complex universe of sources. Evidence
4 suggests that total domination was mostly an aspiration rather than a real pos-
5 sibility for elites from the late colonial period to the early nineteenth century. 7
6 As far as state legal practices are concerned, a sort of social control is what
7 still gave meaning to the diverse, heterogeneous methods of state rule in a
8 constantly changing political context. Subaltern studies and the complexities
9 of legal representations in society certainly help to understand the limitations
10 and multiple meanings of that control. 8 The interaction, the negotiations and
11 unequal dialogs among subaltern groups, dominant groups, and state agents
12 make the process of state formation more complex and interesting. From that
13 perspective ruling is not so simple, but it does not fade away either. Law and [3], (3)
14 its agents were there and that is as historically real as the fact that neither state
15 agents nor dominant classes could do whatever they wanted. Actually, state legal-
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16 penal practices such as the ones this book studies become a key instrument for
17 so many attempts of disciplining society. ———
18 Recognizing the significance of subaltern groups does not excuse historians 0.0pt PgV
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19 from further studying elites, bureaucrats, and state forms, at least on legal mat-
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20 ters. Besides important contributions from U.S. and Latin American scholars,
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21 historical studies of criminal justice and the history of crime have been par-
22 ticularly well developed in northwestern Europe. 9 During the 1980s and 1990s,
23 European studies of urban crime have utilized police records to elaborate a ty- [3], (3)
24 pology of crime, calculating variations of a criminal index (the so-called From
25 Violence to Theft theory), but a more recent methodological path has reoriented
26 scholars’ research efforts. 10 This new type of research has shifted the main focus
27 from crime itself to the regulation of offenses in terms of institutional activity,
28 the role of the judiciary, and the factors determining social control policies.
29 In continental Europe as well as in England (where private initiative generally
30 dominated the judicial process) historians have found an intimate link between
31 the consolidation of nation-states and the increasing regulations of internal
32 conflicts by such states. 11 The same process is not strange in Latin America,
33 but historians of this subcontinent have often paid less attention to inside,
34 within-the-state dynamics of state formation. 12
35 This book precisely focuses on that inner area of inquiry by analyzing the
36 production of judicial documents during the organization and rearrangement
37 of the penal system in the transition from colonial times to the early republican
38 period in Buenos Aires. The methodology targets the identification and study
39 of diverse phases in the process of judicial reconstruction of criminal cases. Six
40 key moments determined how criminal cases were handled back then:
1 1. The opening statement (auto cabeza de proceso) by law enforce-

2 ment agents laid out the criminal typology under which judicial
3 authorities evaluated the case later on.
4 2. Procedures followed in the gathering of evidence, ones that
5 weighed testimony of witnesses, had an impact on the final
6 resolution of the case.
7 3. The interrogation of the defendant (confesión del reo) and
8 methodology of interrogation (reconvenciones) by the police
9 set the judicial stage for the acquittal or degree of punishment
10 imposed on the accused.
11 4. Judicial interpretation of criminal cases by the prosecutor and
12 defense attorney helped to redefine the case in legal terms, but
13 they remained captive to the initial legal steps taken outside the [4], (4
14 courtroom by law enforcement agents.
15 5. The ratification process through which the participants of the
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16 judicial case were called before the judge to confirm or to change
17 what they said to the police prolonged the resolution of the ——
18 case and the time the defendant spent in prison waiting for the 7.785
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19 verdict.
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20 6. Evaluation and sentencing remained in the judges’ hands, but at
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21 the same time they had few choices besides accepting the police
22 version of the case.
23 [4], (4
The examination of historical judicial records in this book tracks these stages,
24
and identifies procedural continuities, variation, and adaptation that provoked
25
shifts of power relations during the formative phase of the republican penal
26
system. The study of the legal architecture of the system (colonial and na-
27
tional penal law) facilitates the understanding of how the system operated.
28
Institutional variation is also assessed by analyzing official records related to
29
30 the historical origins of the modern judiciary and the police in Buenos Aires.
31 Hence, this methodology combines an examination of the penal system on
32 multiple levels: legal architecture and institutional design traditionally studied
33 by legal historians, 13 police penal practices that constituted the focus of social
34 historians, 14 and especially procedural aspects and the struggle for institutional
35 power within the state in the formative phase of the penal system as well as their
36 endurance for almost two hundred years.
37 Examining recent political events, some scholars use the concept of institu-
38 tional decay to explain the shortcomings of Argentina’s transitional process to
39 democracy in the early 1980s. 15 Restored institutions (like the legislature) and
40 changes in the judiciary, it is said, were unable to integrate an increasing number
1 of interest groups and mobilize the support of their members. This led to the
2 demise of pluralism. The concept, however, is too narrow to reflect adequately
3 the historical evolution of state forms related, for example, to the administration
4 of criminal justice. 16 Testing the impact of long-term changes and continuities in
5 recent events in Argentine history significantly enriches the discussion regard-
6 ing shortcomings of the restored democracy in Argentina. For example, debates
7 over authoritarianism in Latin America emphasize the role of the military as a
8 barrier for political development of the civil society. 17 While the military (as a
9 political faction) can be defined as specialists in coercion, some social scientists
10 underestimate the significance of judicial functions performed by the police as
11 instruments of social control applied by these regimes as well. 18 Such a paradigm
12 tends to see the police as automatically subordinated to military power and as
13 mere executors of coercive or repressive policies designed by others. 19 [5], (5)
14 This book challenges such assumptions. It goes back in history to identify
15 and study the time when senior police officers absorbed certain judicial func-
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16 tions. This is not a minor point, for they were able to retain the power related
17 to these functions, and they continue to use it to this day. 20 The police thus ———
18 used these functions as a selective mechanism of coercion, monopolizing the 0.0pt PgV
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19 initial stages of all criminal cases and shaping them before reaching any judicial
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20 magistrate. Actually, the permanence of this locus of institutional power within
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21 the Argentine penal system constitutes a basic feature of recent authoritarian
22 regimes. 21 An excessive focus on the role of the military during the transition to
23 democracy obscures the persistence of these other historical institutional com- [5], (5)
24 ponents of the state that are not necessarily linked to the police as an institution,
25 but as state officials carrying out judicial functions. Institutional reforms of the
26 military and the police thus need to take into account the reformulation of
27 some of the functions performed by their members.
28 Two theoretical conceptualizations are pertinent to this point: the penal
29 system and the Reluctant Litigators theory. First, this book follows the critical
30 criminological school in the conceptualization of a penal system. The study of
31 the administration of criminal justice is only partially covered when scholars
32 define its components as the law, the penal procedures, and the judicial actors.
33 A more comprehensive definition of criminal justice as part of the penal system
34 includes the involvement of different state forms in policing society, the debate
35 and institutionalization of penal ideas, the role of the media, penitentiary insti-
36 tutions, the interaction among law enforcement agencies and judicial officials
37 with groups and individuals from the civil society, and the implementation of
38 criminal principles and laws. 22 Applying the concept of the “penal system” to the
39 Río de la Plata case allows us to identify the many, often contradictory, compo-
40 nents of criminal justice and how historical circumstances shaped that system.
1 Second, European historians have developed the Reluctant Litigators theory.

2 They explain the transition from a local justice performed at the community
3 level to a punitive justice monopolized by the states, in Europe from the end of
4 the Middle Ages to the late nineteenth century. During this long-term process,
5 individuals were reluctant to get involved in judicial cases, while emerging
6 state forms eroded this reluctance. This dual, conflicting legal tradition derived
7 on the one hand from the laws of the German tribes who invaded Rome,
8 and on the other hand from the legal tradition of the Roman and Byzantine
9 Empires. 23 Spanish law, as well as others in Europe, combined both legal systems,
10 while it accompanied the general trend toward a state-oriented judicial system.
11 Punishment, in this case, was made to fit the criminal, not the crime. But the
12 decisive shift from the private to the public domain on judicial matters was
13 neither progressive nor unproblematic. People resisted being part of criminal [6], (6
14 processes because increasing state intervention also meant the criminalization
15 of certain groups.
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16 At first sight, it looks as if there were not many reluctant litigators in colonial
17 Latin America. Indian communities and individuals interacted with judicial ——
18 institutions early on. 24 In general, lower-class people saw in Spanish law and 0.0pt
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19 magistrates an opportunity to defend their interests and autonomy before pow-
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20 erful individuals. And by the late colonial period, in urban areas throughout
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21 Latin America, tribunals were give-and-take grounds of state mediation and
22 compromise. 25 Not everybody was pleased about the results, but people kept
23 on knocking at justice’s doors. [6], (6
24 Between reluctant litigators and widespread judicial hegemony there was a
25 great deal of variation. By the late eighteenth century a Spanish colonial state
26 represented a concrete example of a centralized state. Private forms of justice in
27 the Spanish world still existed but they were no longer generalized practices. Yet
28 social recognition and the use of state justice was selective. Regarding criminal
29 justice, the Buenos Aires urban lower class (plebe) was not always willing to
30 interact with judicial officials. Victims of crime promptly looked for state assis-
31 tance, but witnesses from the lower classes were much less enthusiastic about
32 telling what they saw. They were the usual suspects who could take advantage of
33 judicial institutions for some things while staying away from police and criminal
34 justice officials if they could.
35 The late colonial state imposed its judicial arbitration in Buenos Aires, one
36 that had to be renegotiated after independence. The urban underclass con-
37 tested this arbitration in criminal cases, while diverse state agencies competed
38 to undermine people’s reluctance to participate in criminal processes. Due to
39 their increasing capacity to enforce the law (regardless of what kind of law it
40 was), early independence law enforcement agencies and other executive officials
1 were more successful than judicial authorities in eroding this resistance. Based
2 on this increasing power, these officials had the opportunity to absorb judicial
3 functions.
4 Reluctant Litigation theory also challenges Michel Foucault’s explanation
5 of the penal system during the Ancient Regime. Foucault defined criminal
6 justice as punitive, targeting the offender’s body as the site where, through
7 violence, justice could prevail. 26 Although the idea of punishment as spectacle
8 was important in Europe before the eighteenth century, not all criminals were
9 subject to corporal punishment. Scholars find a significant degree of variation in
10 sentencing and punishment at that time. 27 The transition to a modern criminal
11 justice system, one shaped by a more technical discourse about the criminal’s
12 body, was not as dramatic as Foucault argued. Studying such a transition myself,
13 one with so many sides, I found this critique pertinent. [7], (7)
14
15 Brief Historiography on the Subject
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16 The historiography of independence in Argentina explains the relatively recent
17 problematization of this historical period as one of transition. For diverse politi- ———
18 cal factions, the revolution of May 25, 1810, in Buenos Aires had a highly symbolic 0.0pt PgV
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19 meaning from the beginning. 28 Throughout the nineteenth century, intellectu-
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20 als and politicians (like Domingo Faustino Sarmiento and Bartolomé Mitre)
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21 established the ideological basis for the historical account of the foundation
22 of Argentina. As the story goes, criollo 29 (and porteño) political consciousness
23 matured during the late colonial period, reaching adulthood in 1810, the year [7], (7)
24 Argentina was born. 30
25 Argentine legal historians in the twentieth century continued the historio-
26 graphical tradition of the founding fathers. Although they praised the legacy of
27 Spanish law (it was not necessary to get rid of it immediately after independence,
28 they explained), 1810 clearly marks the beginning of both patria and derecho
29 patrio. 31 Institutionally rooted in the most important law schools and lawyers’
30 associations in Argentina, historiadores del derecho (law historians) like Ricardo
31 Levene, have enjoyed international recognition in the Iberian legal world. 32
32 More recently, historians have challenged some of these sacred notions. Among
33 the forms of political identities in early independent Río de la Plata, as José
34 Carlos Chiaramonte stated, the Hispanic American and the municipal ones
35 prevailed. 33 Even the term “nation,” used during these years, had a very differ-
36 ent connotation than it did, say, in the late nineteenth century. Chiaramonte
37 problematized the notion of the existence of a Rioplatense, or Argentine nation
38 after independence, explaining that it is not correct to assume the existence of
39 a national state after independence, one that created and modeled the nation.
40 The new wave of research on both the late colonial and early independence
1 periods (reaching its peak in the late 1980s and 1990s), has its strongest impact
2 on scholarship focused on the Buenos Aires countryside (campaña bonaerense).
3 The results of such a historiographical renaissance of the rural history of the
4 Río de la Plata region have been very positive. Yet this new research has also
5 left many problems that need to be addressed. As two historians argued, “it is
6 essential that all such research projects face the challenge of thinking about the
7 continuities and the tremendous changes that transpired after the revolution.”34
8 Despite these new historiographical productions, the 1810-as-watershed
9 paradigm has not been completely overcome. Most of these works still either
10 end or begin in 1810. They are grounded in one of the two traditionally de-
11 fined periods, colonial or national. Yet social historians have followed up their
12 conclusions about late colonial history beyond the 1810s, while others explored
13 the eighteenth-century roots of their postcolonial historical inquiries. Thus, [8], (8
14 historians are now more willing to test their late colonial findings in the early
15 decades of independence and vice versa, especially in socioeconomic issues. Yet
Lines:
16 not many scholars have pursued research in topics traditionally dominated by
17 legal historians. ——
18 A little more than a decade ago few historians in Argentina were able to cross 0.0pt
———
19 the bridge between social and legal issues. Carlos Mayo was one of the first.
Norma
20 He explored the world of card players, criminals, judicial officials, and police
PgEnd
21 agents, as well as other characters of the urban plebe (lower classes) and gente
22 decente (upper classes) of Buenos Aires. This task required knowledge about
23 both law and society. A social historian interested in the countryside of Buenos [8], (8
24 Aires, Mayo also recognized the role of the colonial state, its urban character,
25 and the importance of institutional mechanisms of social control and policy
26 making. 35
27 As far as the early independence period is concerned, there were innova-
28 tive contributions as well. Studying patterns of crime and punishment in the
29 pampas, historians signaled elements of continuity between the regimes of
30 Bernardino Rivadavia and Juan Manuel de Rosas. 36 This sacrilegious notion
31 (following the traditional dichotomies in Argentine history, set up both ret-
32 rospectively and for generations to come by Sarmiento’s ideas of civilization
33 versus barbarism) emphasizes that the need for social control in the country-
34 side mitigated the otherwise irreconcilable political positions of Unitarios and
35 Federales. 37
36 In the case of the city of Buenos Aires, the historical production on the
37 early independent period has deepened our knowledge of a myriad of themes
38 regarding the social history of the porteño capital, from education to family
39 relations and public safety. Some studies on the administration of criminal
40 justice using police records, however, supported the idea that these are better
1 than court records to understand policies of social control. 38 But this is not the
2 case. As recent legal historians dealing with the nineteenth-century South in the
3 United States demonstrate, judicial decisions at the court level not only reveal
4 the aspirations of individuals and groups in society but also tell a great deal
5 about the social outlook of those who wield power in society. 39 Actually, the
6 history of the antebellum U.S. South is not usually compared with Latin America
7 during the same period, but they have many things in common. One of them,
8 without doubt, is that a distinctive type of republicanism developed in both
9 cases. Hierarchical and dependent societies like these counted on the judicial
10 system to apply policies of social control with a higher degree of coercion than
11 in other regions where a more egalitarian and consensual paradigm prevailed. 40
12 New studies on law and justice in late colonial and early independence Río
13 de la Plata, combining and also criticizing ideas and methods of both social and [9], (9)
14 legal scholars, have challenged well-established historical notions. For instance,
15 the judicial system under Rosas, as the historian Ricardo Salvatore points out, Lines: 123 to
16 was not arbitrary and capricious but was based on the law. 41 The emerging
17 ———
features of the early republican penal system in the city of Buenos Aires confirm
18 this thesis. What needs to be explained now is what kind of law Rivadavia, Rosas,
6.5pt PgV
———
19 and others enforced. Although there were colonial and republican criminal laws Normal Page
20 that shaped the architecture of the emerging penal system, the legality of such PgEnds: TEX
21 a system, applied by Rosas and other subsequent regimes, is better defined by
22 its procedural features. These features allowed their executors to be as arbitrary
23 (but always as legal) as they wanted. 42 At the same time, the administration of [9], (9)
24 criminal justice in early independent Buenos Aires cannot be fully explained
25 without including its colonial features. Judicial continuities and changes after
26 1810 are rooted in the viceregal years. But the problem of the colonial/republican
27 transition in the formation of the modern penal system in Argentina is as much
28 a legal as a procedural one. Thus, the study of the criminal procedures used to
29 put laws into practice bring together both the laws as well as the social actors
30 who applied them. 43
31
32 Summary of the Chapters
33 The following two chapters deal with the colonial penal system. The next chapter
34 explains the legal architecture of the penal system in Buenos Aires, by describing
35 the legal evolution of Spanish criminal law during the Middle Ages, as back-
36 ground of the (also judicial) enterprise of conquest in the New World. Then, it
37 goes on to describe both Spanish and colonial penal ideas and the development
38 of colonial penal justice, especially regarding the role of magistrates and the
39 legal procedures applied in criminal cases. Finally, it studies the impact of such
40 norms and local regulations in the city of Buenos Aires.
1 Chapter 3 examines the administration of criminal justice in colonial Buenos

2 Aires. First, it analyzes how the Spanish penal laws were adapted and applied in
3 the capital of the Viceroyalty of Río de la Plata, regulating procedural aspects
4 according to the needs of local authorities. Then it studies the second Audiencia
5 of Buenos Aires in the penal system of the city, including its disputes with the
6 Viceroys as well as its role in the local administration of criminal justice. Next,
7 the chapter deals with the local alcaldes del cabildo and their role in intervening
8 and writing criminal cases (sumarios). Finally, it analyzes the administration of
9 criminal justice in the city through concrete cases, using homicides to describe
10 the type of penal sanctions and sentences applied during those decades.
11 The following three chapters refer to the republican penal system. Focusing
12 on the transition between the two periods, chapter 4 explains the continuities
13 from colonial to early republican times related to the legal architecture of the [10], (
14 criminal justice system and criminal typologies. It later explains the institu-
15 tional changes within the judicial system together with the application of new
Lines:
16 criminal procedures. Then it studies the adaptation of colonial penal practices
17 to the new republican scenario where political instability also affected and un- ——
18 dermined the mechanisms of social control enforced during late colonial times. 0.0pt
———
19 Finally, this chapter describes the transformation of a concrete penal practice,
Norma
20 jail inspections, from the colonial to early independent periods.
* PgEnd
21 Chapter 5 explores diverse components of the republican penal discourse
22 that formed part of the intellectual debates during the first half of the nine-
23 teenth century in Buenos Aires. Many of those ideas shaped the formation [10], (
24 of the modern penal system in Argentina. First, it examines the formation of
25 the republican penal discourse and its ideological roots. Lawyers, jurists, and
26 intellectuals from the academia de jurisprudencia and the University of Buenos
27 Aires contributed significantly to this discourse although they were not able to
28 put it into practice immediately. Finally, it explores specific topics related to
29 criminal laws debated during those decades.
30 Chapter 6 analyzes the main features of the everyday administration of
31 criminal justice after 1810. It studies how magistrates and judicial officials carried
32 on their duties during those early decades of the nineteenth century, including
33 the reactions of the judiciary when colonial state forms, like criminal justice,
34 transformed themselves by adopting a republican shape. In such context, judges
35 and the appeals court not only faced challenges from other state powers but also
36 experienced internal disputes that affected a judiciary under formation. Finally,
37 concrete criminal cases allow us to examine changes and continuities during
38 this process and the role of their social and institutional actors. This book closes
39 with chapter 7 where it elaborates the main conclusions taking the debate to
40 present times.
1 Table 1. Chronology of Political Authorities in Buenos Aires, from Colony
2 to Independence
3
Colonial Period
4 1776 Creation of the Viceroyalty of Río de la Plata
5 1777–1778 Viceroy Pedro de Cevallos
6 1778–1784 Viceroy Juan José de Vértiz y Salcedo
7 1784–1789 Viceroy Francisco Cristobal del Campo, Marqués de Loreto
8 1785 Real Audiencia began its activities
9 1789–1795 Viceroy Nicolás de Arredondo
10 1795–1797 Viceroy Pedro Melo de Portugal y Vilhena
11 1797–1801 Viceroy Gabriel de Avilés y del Fierro, Marqués de Aviles
1801–1804 Viceroy Joaquín del Pino y Rosas
12
1804–1807 Viceroy Marqués de Sobremonte [11], (11)
13
1807 Viceroy Pascual Ruíz Huidobro
14
1807–1809 Viceroy Santiago Antonio María de Liniers
15 1809–1810 Baltazar Hidalgo y Cisneros Lines: 140 to
16
Independent Period
17 ———
Juntas (collective executive power)
18 1810 May 25, first junta
12.09254p
———
19 1810 December 18, junta grande
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20 Triunviratos (three-member executive power)
PgEnds: TEX
21 1811 April 6, first triunvirato
22 1811 September 23, second triunvirato
23 1812 March 23, April 6, October 8, new triunviratos [11], (11)
24 1813 February 20, August 19, November 5, new triunviratos
25 Directores Supremos (supreme directors)
26 1814 January 22, Gervasio Posadas
27 1815 January 9, Carlos Alvear
1815 April 20, José Rondeau
28
1816 April 16, Antonio González Balcarce
29
1816 May 3, Juan Martín de Pueyrredon
30 1818 December 11, José Rondeau
31 1819 February 13, Juan M. de Pueyrredon
32 1819 June 10, José Rondeau
33 1820 January 31, Juan Pedro Aguirre, provisional
34 1820 End of the national government
35 Presidencies 1826–27
36 1826 February 8, Bernardino Rivadavia, president
37 1827 July 5, Vicente López, provisional president
38 1827 August 27, end of the national government
39 (continued )
40
1 Province of Buenos Aires
2 Gobernadores (governors)
3 1820 February 18, Manuel de Sarratea
1820 February 22, Hilarión de la Quintana
4
1820 March 6, Juan Ramón Balcarce
5
1820 March 11, Manuel de Sarratea
6
1820 May 2, Idelfonso Ramos Mejía, interim
7 1820 From June 7 on: seven governors
8 1821 March 31, Martín Rodríguez (delegated in his ministers during 1822–23)
9 1824 May 9, Juan Gregorio de las Heras
10 1826 March 7, Bernardino Rivadavia (also president)
11 1827 August 12, Manuel Dorrego
[Last P
12 1828 December 1, Juan Lavalle
13 1828 December 6, Guillermo Brown, delegated [12], (
14 1829 May 4, Martí Rodríguez, delegated
15 1829 August 24, Juan José Viamonte, delegated
1829 December 8, Juan Manuel de Rosas (delegated in his ministers during Lines:
16
1830–32) ——
17
18
1830 December 17, Juan Ramón Balcarce 218.3
1833 November 4, Juan José Viamonte ———
19 1834 October 1, Manuel Vicente Maza Norma
20 1835 April 13, Juan Manuel de Rosas (reelected in 1840, 1845, and 1850)
PgEnd
21 1852 February 3, battle of Caseros, end of Rosas regime
22 1853 May 1, national constitution passed. Buenos Aires did not accept it until
23 1860, remaining separated from the confederation. [12], (
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
1
2
3
4
5 2. The Legal Architecture of
6 Colonial Criminal Justice in Buenos Aires
7
8
9
10
11 After the first criollo junta took control of Buenos Aires on May 25, 1810, de- [First Page]
12 posing Spanish viceroy Baltasar Hidalgo de Cisneros, intense political turmoil
13 indicated a rapid pattern of change in the former capital of the Viceroyalty of the [13], (1)
14 Río de la Plata. The contents of many independence-era legislation manifested
15 criollo commitment to new rules that would profoundly transform the existing
Lines: 0 to 4
16 colonial legal framework. 1
17 Nonetheless, new legal principles were neither applied immediately nor codi- ———
18 fied until much later. The first Argentine penal code, for example, was not passed -3.0pt Pg
———
19 until 1886. During that transitional time, judges used numerous criteria to deal
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20 with crime-related issues including the use and application of colonial criminal
PgEnds: TEX
21 laws that continued long after 1810. This trend was also true for other branches
22 of law in which a combination of medieval codes, colonial regulations, executive
23 decrees, as well as other legal sources were applied. The obvious contradictions [13], (1)
24 and overlaps of the postcolonial legal system were noticed by many people,
25 including the U.S. commissioner in South America, John Graham, who in 1819
26 pointed out, “Great allowances are doubtless to be made for the circumstances
27 of the times, and the danger and difficulty of tearing up ancient institutions, or
28 of adapting new principles to them.”2
29 The administration of justice was a visible sign of shifting power relation-
30 ships in Buenos Aires. The courtroom represented a place where consensus was
31 negotiated but not always achieved during the rise of new state forms in early
32 republican Río de la Plata. At the same time, laws, procedures, and practices
33 from the colonial period saturated the courtrooms. Because of that saturation
34 and the application of these laws after 1810, Argentine legal historians have
35 emphasized post-independence continuities of the legal architecture. But re-
36 cent studies centered in the countryside of Buenos Aires (campaña bonaerense)
37 in the 1820s, demonstrate the rise of new state forms expressed, for example,
38 through the participation of rural groups at the House of Representatives (Sala
39 de Representantes de la Provincia de Buenos Aires). These state forms, accord-
40 ing to Carlos Cansanelo, were defined in municipal terms during the colonial
14 legal architecture of colonial criminal justice
1 period and expanded to a provincial level after 1820. 3 Although legal historians
2 and other scholars describe certain continuities between colonial and early
3 republican legal systems, this observation requires a deeper analysis. It is also
4 crucial to examine the influence and significance colonial criminal justice had
5 on the formative period of the modern penal system in Argentina.
6 This chapter reviews the legal architecture of the colonial penal system in
7 Buenos Aires. It begins with the evolution of Spanish criminal law during the
8 Middle Ages as background to the juridical enterprise of conquest in the New
9 World followed by the development of colonial criminal law. The chapter then
10 analyzes the colonial criminal laws in terms of penal ideas. The elaboration
11 of new penal discourses during the Enlightenment permeated the previous
12 criminological paradigm in Spain and its colonies. Finally, the chapter analyzes
13 [14], (
the impact of local norms in the penal system of late colonial Buenos Aires.
14
15 Spanish and Colonial Criminal Law Lines:
16 The dynamic evolution of Spanish law reflects the diversity of Iberian historical
17 ——
development. Celto-Iberian customary law, Roman law, and Visigothic law con- 13.0p
18
tributed to the judicial tradition of Spain. 4 As part of efforts to unify the regions ———
19
under their control, Visigothic kings compiled and integrated both Roman and Norma
20
Gothic laws into one text so that all their subjects could be governed by the * PgEnd
21
same law. The compilation was done during the second half of the seventh
22
century and its final version, promulgated in 694, is known as the Fuero Juzgo. 5
23 [14], (
Besides Latin transcriptions of Roman law, the Fuero Juzgo is one of the earliest
24
pieces of legislation quoted by Buenos Aires lawyers and judges in late colonial
25
26 criminal cases.
27 The unifying efforts behind the Fuero Juzgo coexisted with other trends
28 toward fragmentation stimulated by historical circumstances. The Muslim in-
29 vasion of the Iberian Peninsula in 711 ended Visigothic rule. These events and the
30 beginning of the Spanish kingdoms’ resistance to Muslim rule opened a period
31 of legal segmentation. As part of the resistance movement, Spanish kingdoms
32 were not receptive to legal concepts derived from Islamic law. 6
33 The persistence of customary law was reinforced at the local level with the
34 expansion of special privileges and jurisdictions under the name of fueros. The
35 term recognized diverse meanings: municipal fueros were granted to towns
36 and personal fueros were granted to social groups or institutions (Catholic
37 Church, nobility, the military, and so forth) by monarchs or other authorities
38 as a reward, among other reasons, for successfully participating in the process
39 of reconquest. During this period, there were also general fueros enforced as
40 codes by particular kingdoms. 7
legal architecture of colonial criminal justice 15
1 Municipal fueros reflected strong notions of regionalism that characterized

2 the Iberian Peninsula during the reconquest. While the Fuero Juzgo already
3 established differences according to the social status of victim and defendant,
4 municipal fueros were more explicit and even exclusive about those differences.
5 The municipal fueros maintained their legal force beyond the Middle Ages in
6 general terms, but their penal jurisdiction decreased. An important aspect of
7 those fueros was the right to municipal asylum. Under that norm, if someone
8 committed a crime in the domain of one city it would be enough for that person
9 to change residence to another city in order to avoid prosecution. But the Fuero
10 Real enacted by the mid-thirteenth century already abrogated that municipal
11 privilege, creating a precedent in terms of jurisdiction in criminal cases.
12 Personal fueros were based on the concept of society as an association of
13 multiple corporate states. Those special systems of laws and courts exempted [15], (3)
14 their beneficiaries from the king’s judicial authority. Protected by the fuero,
15 its members had the right to be examined judicially by their own magistrate
Lines: 56 to
16 or tribunal. Nonetheless, penal law did not always take precedence over the
17 fueros. A merchant accused of fraud, for example, could settle the case before ———
18 the merchants’ guild, but if that person was charged for murder then the local 0.0pt PgV
———
19 alcalde had jurisdiction in the case. Personal fueros experienced change over
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20 time. While the Catholic Church’s fueros were restricted during the Ancient
PgEnds: TEX
21 Regime (especially in the eighteenth century), the military fuero survived that
22 period and became part of the republican legal framework in Latin America. 8
23 Another example of the historical significance of the fueros is the one applied [15], (3)
24 in Castile. In 1138, Alfonso VII approved the fuero de los fijosdalgos, also known
25 as fuero de las fazañas y albedríos. That fuero stipulated the rights of Castilian
26 nobility. After a century of amendments and changes, the core components
27 of those laws became part of the Fuero Viejo de Castilla at the beginning of
28 the thirteenth century. 9 Legal historians debate the judicial nature of the Fuero
29 Viejo de Castilla. Some scholars argue that this is a general code, while others
30 describe it as a set of laws dealing with the nobility. 10 As far as criminal law is
31 concerned, the Fuero Viejo contains specific regulations for fijosdalgos as well
32 as penal norms affecting other social groups of free men and vassals. Homicide,
33 sexual offense, and theft were the crimes punished in book two of the Fuero
34 Viejo. This short chapter cannot be considered a comprehensive legislation on
35 penal law, but it contains certain notions that contributed to the development of
36 Spanish criminal law. In fact the Fuero Viejo was also used and quoted by judges
37 and lawyers in late colonial Buenos Aires along with later codes, recopilaciones,
38 and so forth.
39 The evolution of municipal and personal fueros as laws of privilege coexisted
40 with royal attempts to restore a unified legal framework that existed (only
1 theoretically) during the Visigothic rule. The case of Castile is a clear example
2 of that process and certainly the most influential in the formation of a colonial
3 penal system in Spanish America. While the Fuero Viejo de Castilla was reviewed
4 and edited during the twelfth and thirteenth centuries, successive monarchs
5 added new pieces of legislation, attempting both to provide a universal legal
6 system for their reign and to increase their power over the nobility. 11 Ferdinand
7 III (the Saint, 1199–1252), for example, ordered the translation of the Fuero
8 Juzgo from Latin into the vernacular and granted it as municipal fuero to the
9 recently recovered territories of Córdoba and Cartagena. 12 Besides utilizing the
10 previous legislation, Ferdinand III and his son Alfonso X (the Learned, 1221–84)
11 undertook new efforts to create a unified legislation that could be imposed over
12 the local fueros. The Fuero Real, promulgated around 1255, was the outcome
13 of those efforts, immediately followed by the more famous Siete Partidas (circa [16], (
14 1265). 13
15 If the Fuero Real is often seen as a compromise between the privileges held by
Lines:
16 local noblemen and the attempt to develop a more general legal framework as
17 the process of reconquest progressed, the Siete Partidas constituted a real depar- ——
18 ture from the older fueros. Alfonso X and his jurists compiled new legislation 0.0pt
———
19 during a time when the influences of Roman law on Iberian scholars gained
Norma
20 momentum. Justinian law provided legal arguments for supporting central
PgEnd
21 authority and for homogenizing the erratic diversity of the local fueros. These
22 fueros were not devoid of Roman legal influence, but their evolution during the
23 reconquest diluted that legacy. 14 [16], (
24 The Seventh Partida “speaks of the bad things men do and of the charges
25 and punishment they deserve for doing these things.”15 This legislation was
26 strongly influenced by the Justinian Codex, but it went beyond Roman law as
27 well, constituting both a code on penal law and a text of criminal procedure. It
28 was an extensive study on law, and because of that, administrators of criminal
29 justice in Latin America even beyond the colonial period used the Seventh
30 Partida as a mandatory reference.
31 Like the previous fueros, the Seventh Partida is divided into titles and then
32 laws, but an interesting difference is that the first law of each title defines and
33 explains the penalized felony. For example, title one deals with charges and
34 accusations in general and law one of that title defines “what an accusation is,
35 against whom it proceeds, and how many kinds there are.” Law one of title two
36 (“concerning treason”) explains “what treason is, whence it derived this name,
37 and how many kinds there are,” and so forth. 16 Taking a step further than a
38 mere description of certain criminal behaviors, the Seventh Partida delineates
39 penal types and then explains the procedural circumstances under which these
40 categories are evaluated and penalized. Although it does not reach the level of
1 abstraction that one finds in modern codes, the Seventh Partida is certainly
2 more comprehensive than the previous fueros in terms of criminal law.
3 At the same time, and despite the innovation of its systematic approach and
4 the influence of Roman law on it, the Seventh Partida portrays a hierarchical
5 society by describing degrees of punishment according to the social status of
6 victim and defendant. Criminal procedures are explained in the Partida, but
7 that did not mean that a sense of equality before the law prevailed. Title 31 Law
8 8 of the Seventh Partida established differences that were going to be maintained
9 and applied in municipal colonial norms: “When the judges want to prosecute
10 someone in a criminal case they have to take into account who is the person
11 that they are going to indict; if he is servant, or free man, or hidalgo, from a
12 village or from a hamlet in the countryside. They must punish more severely
13 a servant than a free man, an ordinary man more than an hidalgo, the young [17], (5)
14 more than the old or children. Furthermore, the judges have to consider who
15 are the victims because a harder sentence will be passed against the defendant
Lines: 77 to
16 who committed a crime against his lord, his father, his boss or his friend.”17
17 In terms of the application of the Fuero Real and the Siete Partidas, Alfonso X ———
18 followed the legal strategy of his father. First, he granted the Fuero Real to some 0.0pt PgV
———
19 cities in Castile that operated without a fuero. He then gave it to other cities
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20 like Madrid that already had a fuero, which provoked certain unrest among
PgEnds: TEX
21 the noblemen. The idea of granting the Fuero Juzgo and the Fuero Real as
22 local fueros did not work because in these texts, especially the last one, there
23 were no explicit privileges and concessions for the nobility. Noblemen enjoyed [17], (5)
24 special legal treatment, but it was always subordinated to royal authority. In the
25 introductory statement of the Fuero Real, King Alfonso X declared that, “We
26 got advice from our Council and our experts in Law, deciding to grant you the
27 fuero written in this book, so that men and women may be governed by it in
28 common.”18
29 The Fuero Real did not abolish all local and personal privileges previously
30 granted to different towns and noblemen in Castile, but it did repeal many local
31 norms and customs. Knowing later that the king introduced a new system of law
32 (the Siete Partidas) that contradicted the local fueros even further, the Castilian
33 nobility rebelled against Alfonso’s “codes” in 1272. As a result of this aristocratic
34 turmoil, the king accepted the preeminence of the municipal fueros in Castile.
35 Thus, the Siete Partidas were not acknowledged as legal text in the Spanish
36 judicial system until the Ordenamiento de Alcalá (1348). The promulgation of
37 royal norms and regulations did not stop after the 1272 rebellion in Castile. A
38 prolific debate took place in the field of law. The interpretation of the Fuero Real,
39 applied at the king’s court, produced many other norms that eventually were
40 compiled around 1310 under the name of Leyes de Estilo containing 252 “laws.”
1 This piece of legislation demonstrates that the legal trend of Romanization of

2 Castilian law initiated under Ferdinand III and especially Alfonso X continued
3 despite the persistence of the local fueros. Actually, their coexistence would
4 become a characteristic of the Spanish Ancient Regime. 19
5 The described codification process has produced diverse interpretations.
6 On the one hand, many historians like Michael Weisser argue that historical
7 circumstances associated with the expansion of Castile generated new legal
8 “scenarios” where local fueros did not say a word. Thus, despite their conti-
9 nuity, the municipal fueros were overwhelmed by the need of more general
10 laws like the previously rejected Siete Partidas. 20 On the other hand, Helen
11 Nader demonstrates that the local judiciary enforced diverse laws passed by the
12 founding charter of cities. There was not a serious attempt to impose a law code
13 common to all Castilian municipalities, she argues, until the Bourbon reforms [18], (
14 in the eighteenth century. 21
15 Although these interpretations affect the way historians look at diverse his-
Lines:
16 torical processes in Spain, like the evolution of municipal autonomy, the out-
17 come of this historical-legal process influenced the Spanish American colonies ——
18 in a different manner. A combination of many factors, like the endurance of the 0.0pt
———
19 fueros and their legal lacunae, the Romanization of Castilian law, and the ex-
Norma
20 pansion of royal authority, generated the conditions for a compromise solution
PgEnd
21 to the complex Spanish legal system that emerged at the end of the reconquest
22 and the beginning of the overseas enterprise of conquest. Legal autonomy of
23 Spanish towns subsisted but royal interpretation of the law prevailed in the [18], (
24 Americas.
25 King Alfonso XI, Alfonso the Wise’s great-grandson, arranged local and
26 general laws in the Ordenamiento de Alcalá. The Ordenamiento did not abolish
27 any municipal law and fuero as the Siete Partidas attempted to do. It established
28 an order of priority in the application of the law: “Any judicial dispute must be
29 settled by the laws of this book first. If the case can not be solved by this book
30 then [the judge] must use the [local] fueros and if this is not possible then the
31 [Siete] Partidas must be applied in its solution.”22
32 Alfonso XI’s jurists subordinated the Siete Partidas to the Ordenamiento and
33 municipal fueros, but the legal recognition of the Partidas provided the terrain
34 for their increasing application. In penal law, for example, the Ordenamiento
35 provided little direction in cases of homicide, adultery, and fraud, which were
36 already described in the Fuero Real. 23 This means that Spanish judges had to
37 draw upon municipal fueros to decide most penal cases. However, as happened
38 in other branches of law, criminal regulations in the fueros were too focused
39 on specific cases, leaving many legal lacunae. Thus, Spanish judges gradually
40 employed the Siete Partidas to solve criminal cases.
1 Successive compilations of laws attempted to systematize Spain’s bulky legal

2 system by combining specific and general guidelines and procedures as well as
3 eliminating contradictory rules. By the late fifteenth century, Ferdinand and
4 Isabella commissioned the jurist Alfonso Díaz de Montalvo to compile existing
5 legislation. His work became known as the Ordenanzas Reales de Castilla, or
6 Ordenamiento Real. 24 Later, the Catholic monarchs ordered a new compilation
7 of laws that included the Ordenamiento Real. The Leyes del Toro (1505) were
8 promulgated when the Spanish exploration of the Americas was well under way.
9 Two other compilations of peninsular laws were done before Spain lost its
10 American empire: Philip II’s Recopilación (1567) and the Novísima Recopilación
11 (1805). This updating process, characteristic of the Spanish legal system, was also
12 complemented by other types of norms and regulations stated by the kings:
13 pragmáticas, cédulas, and decretos, as well as the use of customary laws and [19], (7)
14 fueros. 25 Although the evolution of other Spanish kingdoms also affected the
15 overall legal framework in Spain, the role of Castilian law and jurisprudence in
Lines: 93 to
16 the New World remained a central feature of the colonial enterprise. 26
17 As Spanish colonization matured, new institutions were created and new ———
18 laws enacted to consolidate the colonial order. Despite the development of 0.0pt PgV
———
19 a specific body of laws for the colonies, the various compilations of laws born
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20 during the Middle Ages remained a basic component of colonial and republican
PgEnds: TEX
21 penal systems. This was reflected in many decisions and resolutions adopted by
22 colonial and, later on, Argentine judicial authorities. This influence converged
23 with distinctive norms and laws applied to the Spanish colonies that are also [19], (7)
24 significant in the general picture of colonial penal architecture.
25 Actually, legal historians in Latin America have emphasized the great achieve-
26 ments of the derecho indiano. Many Argentine lawyers and jurists contributed
27 significantly to a historiographical school based on the study of Spanish colonial
28 accomplishments in the field of law. Ricardo Levene, for example, argued that
29 colonial legislation modified the main aspects of Castilian law. Levene strongly
30 supported the idea that, according to the laws, the Indias were not colonies.
31 In that view, the socioeconomic historical reality of the European domination
32 in America and the colonial character of that enterprise are almost ignored.
33 This extreme example illustrates one of the limitations of this trend in histori-
34 ography, one that is narrowly focused on legal texts and their technicalities. 27
35 In terms of colonial criminal law, nonetheless, it is difficult to perceive the
36 relevance of that acclaimed legal progress.
37 Besides its political, socioeconomic, and cultural aspects, the conquest of
38 America was a juridical enterprise as well. This latter aspect needs to be exam-
39 ined because it involved the process of legitimating Spanish authority in the
40 colonies. New realities like how to deal with Native Americans and even the
1 issue of their humanity were under debate in Spain. 28 New institutions like the
2 Consejo Real de Indias, created during the first half of the sixteenth century, and
3 specific legislation like the New Laws (1542) expanded upon previous Spanish
4 laws. Special jurisdictions and offices were created to deal with Indians, but that
5 innovation did not substantially change the system of criminal justice known
6 in Spain. Furthermore, descriptive forms of criminal behaviors used in Spanish
7 medieval codes were applied in America as well.
8 As Spanish criminal law was applied overseas, its greatest transformation
9 within the colonial penal system focused on judicial practices and procedures.
10 Like Spain, where codes and compilations of laws coexisted and many times
11 conflicted with customary laws and local jurisprudence, the colonies adapted
12 general norms to their local realities. This process was strengthened after 1614
13 when laws passed in Castile no longer had automatic application in the colonies [20], (
14 unless the Council of Indies approved them explicitly. 29
15 An example of that trend of procedural differentiation is the Recopilación
Lines:
16 de las Leyes de Indias (compilation of colonial laws), enacted in 1680. This
17 Recopilación was mandated by the Consejo Real de Indias so that the mass of ——
18 decrees, laws, and resolutions passed since the beginning of the Spanish colonial 0.0pt
———
19 enterprise in America could be systematized, eliminating contradictory norms.
Norma
20 Subsequent to its publication, however, the continuous production of new laws
PgEnd
21 and regulations rapidly overcame the unifying attempts of codification.
22 Book two of the Recopilación confirms “the use of Castilian laws in all
23 issues not decided by the [laws of] Indies,” which assured the possibility of [20], (
24 applying peninsular legislation as well. 30 There is a brief section (title eight)
25 on crime and punishment in book 7 of the Recopilación. The crimes described
26 in that title are blasphemy and adultery, especially among Indians. Regarding
27 the administration of criminal justice, book 7 ratified royal authority in appeal
28 instances. However, it also recognized the need for regional interpretation of
29 general norms: “It is our will and mandate that the viceroys, presidents [of the
30 audiencias], judges, and judicial officials of our West Indies follow the ordenan-
31 zas regarding criminal cases given by us for the colonies, as well as the laws of
32 this Kingdom of Castile. We decree that in any penal process against Spaniards,
33 Indians, Mulatos, or Mestizos, these officials will follow the aforementioned laws
34 concerning admonitions and punishments against criminals. The executions of
35 sentences, including the death penalty, will observe legal formalities but judicial
36 officials will administer justice with the necessary freedom [in the interpretation
37 of these laws].”31
38 The absence of comprehensive penal norms in the Recopilación reflected
39 the continuity in the application of Castilian criminal law in the colonies. But
40 at the same time, the inclusion of regulations regarding the administration of
1 criminal justice in the Recopilación was also significant. This piece of legislation
2 described the judicial authority and obligations of viceroys, audiencias, alcaldes,
3 and other officials extensively. 32
4
5 Spanish and Colonial Penal Ideas
6 The contributions of two sixteenth-century penologists, Alfonso de Castro
7 and Diego Covarrubias, influenced the initial stages of Spanish criminological
8 thought. The former, considered by many as the father of penal law (derecho
9 penal) in Spain, went beyond the previous commentators of the Siete Partidas
10 by elaborating a doctrine on crime and punishment in his book De potestate
11 legis poenalis written in 1550. 33 Other penologists, like Francisco Tomás Valiente,
12 did not consider Alfonso de Castro as the father of criminal law in Spain. Castro
13 [21], (9)
was not a penologist, they pointed out, but a philosopher who specialized in
14 penal law. Alfonso de Castro also served the interests of the Spanish monarchy,
15 using his knowledge in theology to justify the contents of Spanish criminal Lines: 109 to
16 codes and legislation. 34 He applied the ideas of Thomas Aquinas to the field of
17 ———
criminal law, justifying the judges’ capacity to punish according to their own 13.0pt Pg
18
intimate convictions on any criminal case (arbitrio judicial). ———
19
Diego Covarrubias y Leiva also contributed significantly to the development Normal Page
20
of penal law in Spain. More famous in Europe than Alfonso de Castro, he wrote PgEnds: TEX
21
several books devoted to criminal issues, like In clementis, Const. Si furiosis,
22
De Homicidio and his famous Opera Omnia (1581). Diego Covarrubias clarified
23 [21], (9)
some concepts related to criminal actions like criminal responsibility (dolo), and
24
explained procedures to follow in cases of homicide, perjury, and calumny. 35
25
26 During the late seventeenth and early eighteenth centuries, many Spanish
27 and Spanish American jurists continued to study criminal law in light of classic
28 Spanish legislation. Spanish legal architecture left room for local interpretation
29 of general norms, which was particularly practiced in the American colonies.
30 This process not only took place in the criminal courts but also among legal
31 experts. Antonio de Torquemada, for example, was a Mexican jurist whose
32 alegaciones jurídicas interpreted the Partidas and Nueva Recopilación in the
33 context of New Spain. As María Luz Alonso explains, Torquemada’s work con-
34 tains many quotes and references from Iberian scholars who specialized in
35 penal law. 36 These scholars, however, restricted their work to interpreting and
36 explaining previous Spanish legislation on criminal matters.
37 During the second half of the eighteenth century, the Enlightenment be-
38 gan to influence several Spanish jurists and philosophers. Francisco Tomás y
39 Valiente demonstrated that Spaniards like Sempere, Jovellanos, Campomanes,
40 and Foronda knew the works of Montesquieu, Rousseau, Beccaria, and oth-
1 ers. He concludes that, at least from the 1770s onward, this group of Spanish
2 intellectuals identified themselves with the new ideas. 37
3 Other late colonial Spanish and Spanish American penologists, like Manuel
4 de Lardizábal y Uribe from New Spain, were relatively unknown in Buenos Aires.
5 An alcalde del crimen and recognized jurist, Lardizábal was commissioned by
6 the Spanish crown in 1776 to review Spanish criminal law. In 1782, he published
7 his results, which bolstered his reputation within Iberian legal circles. 38 His
8 Discurso sobre las penas is often compared to Beccaria’s pamphlet, although it
9 only became well known among Spanish jurists and intellectuals. 39
10 Montesquieu and Beccaria’s works (often quoted in the Discurso) influenced
11 Lardizábal, but he did not completely agree with them. Officially charged by the
12 Crown to review Spanish criminal law, he adopted a conciliatory attitude. First
13 [22], (
of all, Lardizábal contextualized current European penal legislation by arguing
14 that it was conceived to administer justice at times when moderate punishment
15 would only have encouraged criminals to commit more crimes. Furthermore, Lines:
16
he emphasized that among the competing European criminal jurisprudence of
17 ——
his time, Spain had the superior one in terms of benevolence and equity in 13.0p
18
punishment. 40 ———
19
Lardizábal did not sympathize with Rousseau. Although he found reasons to Norma
20
support the Frenchman’s attacks on despotism and tyranny, Lardizábal certainly PgEnd
21
did not endorse that Rousseau “strongly reproved and blamed the Christian
22
religion for this, placing it in inferior condition than paganism.”41 Historical
23 [22], (
examples demonstrated, according to Lardizábal, that Christianity guaranteed
24
the elimination of despotism and slavery, something that the social contract
25
26 was unable to accomplish. Thus, Lardizábal constituted a good example of
27 what Spanish intellectuals called Ilustración Española later on, ideas inspired
28 by the Enlightenment but also rooted in Spanish humanism and Catholicism. 42
29 Lardizábal acknowledged Beccaria’s work in his book. They both believed in the
30 human capacity for rational behavior. They advocated the idea of proportion-
31 ality between crime and punishment. The author of the Discurso also joined
32 Montesquieu in proposing new criminal legislation whose fairness was not sub-
33 jected to the arbitrary power of the lawmakers. 43 In other words, Lardizábal’s
34 ideas on penal law were both current and informed, and they were not so
35 different from other enlightened European authors. 44
36 Lardizábal’s contribution to the emergence of what Robert Buffington calls
37 the classic criminological paradigm in postcolonial Mexico is clear. Mexican
38 intellectuals further elaborated many of Lardizábal’s ideas during the first half
39 of the nineteenth century. 45 Actually, Lardizábal’s uncritical position toward
40 (moderate) physical punishment, for example, contributed to a textual dis-
1 persion that minimized, according to Buffington, the contradictions between

2 official and unofficial views of criminality in postcolonial Mexico.
3 The influence of Enlightenment philosophy in both Spain and its colonies
4 became institutionally visible during the first part of the following century. In
5 Spain, for example, the 1822 Penal Code included concepts elaborated by Becca-
6 ria in his famous pamphlet Dei delitti e delle pene (“On Crime and Punishment,”
7 1764). 46 These kinds of ideas inspired criminal legislation in the former colonies
8 as well. Although the juridical innovations enunciated by enlightened authors
9 were known in Spain and its colonies during the late eighteenth century, they
10 did not permeate completely the criminological paradigm. In Spain, the sup-
11 porters of these new ideas were kept outside official circles. Powerful ministers
12 like Campomanes or Jovellanos were eventually neutralized and removed from
13 their positions in the royal government. The Crown responded to this trend [23], (11)
14 by decreeing the Novísima recopilación de las leyes de Indias in 1806, which
15 confirmed the Spanish legal tradition derived from Roman, Visigothic, and Lines: 130 to
16 Castilian laws.
17 ———
18 The City of the Santísima Trinidad and 6.5pt PgV
Port of Santa María de los Buenos Aires ———
19
Legal historians have analyzed the colonial judiciary in abstract terms, revealing Normal Page
20
little about mechanisms of social control, everyday practices of justice admin- PgEnds: TEX
21
22 istration, and other elements of the penal system. An examination of the legal
23 architecture of this system must go beyond mere abstractions. The general [23], (11)
24 description of Spanish colonial law certainly constitutes only one step toward a
25 better understanding of how colonial rule was accomplished. 47
26 The transition from studying legal frameworks of criminal law to under-
27 standing American penal systems requires a narrower scope of inquiry. Penal
28 systems are best understood in regional terms because by the late sixteenth
29 century it is no longer possible to define a unique penal system in the Spanish
30 colonies. Even Bourbon centralization efforts during the eighteenth century, ex-
31 emplified in new regulations like the reform of the colonial audiencias in 1776,
32 had a diversified impact that was expressed in regional terms. 48 Spanish and
33 colonial legislation were continuously interpreted by local authorities. Colonial
34 judicial officials drew from the Seventh Partida to adjudicate various types of
35 cases, illustrating its importance at the local level. Moreover, Spain’s imperial
36 design stipulated various norms of social control that local officials were ex-
37 pected to uphold, although regional circumstances dictated certain variations
38 and innovations.
39 The case of Buenos Aires is significant because of the city’s rapid growth
40 during the Bourbon era. The human and geographic expansion of the city
1 spurred colonial authorities to employ new mechanisms of social control. That

2 situation was similar in other colonial urban centers, but with the establishment
3 of the viceroyal audiencia in Buenos Aires, colonial authorities had a brand new
4 judicial bureaucracy composed of Spaniards eager to review legal practices and
5 resolutions by local alcaldes. They did not have to replace previous Spanish
6 American officials as in Mexico or Peru.
7 Buenos Aires experienced a dramatic increase in its population during the
8 second half of the eighteenth century, from 10,056 inhabitants in 1744 to 42,540
9 in 1810. 49 Upon the establishment of the Viceroyalty of the Río de la Plata in
10 1777, Buenos Aires became its capital and the seat of the viceroy and of the
11 audiencia (appeals court). Below the audiencia of Buenos Aires, created in 1784,
12 two alcaldes administered justice at the first instance. These alcaldes de primero
13 [24], (
y segundo voto were annually elected officials of the local cabildo. 50
14 These new viceregal authorities expressed their views and dictated their
15 decisions regarding public safety in the city. The audiencia, for example, passed Lines:
16
diverse acuerdos (resolutions) that encouraged alcaldes“and other justicias”(law
17 ——
enforcement agents) to be alert and to renew efforts in fighting urban crime. 51 13.0p
18
The viceroys also participated in the process by passing special legislation called ———
19
bandos that had local application. 52 Norma
20
The bandos addressed a variety of preventive and punitive measures de- * PgEnd
21
signed by royal officials to combat crime. Bandos also illustrated the ways in
22
which the state defined good behavior and civic responsibility. They also reveal
23 [24], (
the desire of colonial authorities to establish specific patterns of social control.
24
The official language of the bandos expressed the idea that social control could
25
26 not be the sole responsibility of the state; it also required the participation of
27 the vecinos (neighbors). Thus, Viceroy Arredondo tried to increase that partic-
28 ipation by regulating the activities of the alcaldes de barrio: “They should be
29 selected among the most important and active individuals living in each one of
30 the 20 neighborhoods in which this city is divided. Without ignoring the duties
31 of other law enforcement agents who will have to continue their regular patrols,
32 these alcaldes de barrio will handle cases of public disorder and will arbitrate
33 minor conflicts so that order and tranquility can be kept in their vicinity.”53
34 Specific bandos dealing with public safety targeted the lower classes because,
35 as it was believed, they constituted a dangerous group of people susceptible
36 to criminal activities. Mirroring other Spanish and colonial legal texts, bando
37 penalties were delineated according to the status of the defendant. For example,
38 a 1787 bando attempted to restrict the presence of people in the streets during
39 the evening. It sought “to arrest anybody who, being not known in the neigh-
40 borhood, may provoke suspicion to the authorities because of the way he speaks
1 or the clothes he is wearing.” The bando established a 4 peso fine, and those who
2 could not pay “will be chained, laboring in public works for one month . . . but
3 if the status of the defendant does not allow us to do that, then he will spend
4 fifteen days in prison paying for his expenses.”54
5 Colonial authorities perceived popular celebrations as another opportunity
6 for the lower classes to commit crimes. The city established a calendar of reli-
7 gious and civic festivities, but these holidays also paralleled popular feasts. Many
8 bandos illustrated this concern by defining popular celebrations as sources of
9 “disorder and disgrace.” Solemn religious rituals like Christmas Eve mass were
10 followed by dancing and singing in the streets, provoking an official attempt
11 to stop them. In a 1789 bando, Viceroy Arredondo ordered that, “The families
12 should return to their home at a proper time once the religious ceremony had
13 [25], (13)
concluded. Those who do not observe this decree will be sent to the royal jail
14 where they will remain according to their [social] status, being sentenced to
15 prison or to another penalty which I would inflict to them.”55 Lines: 150 to
16
Punitive measures were harsher in certain cases. Many bandos prohibited
17 ———
celebrations during Carnaval. 56 Games involving water, flour, and eggs were 13.0pt Pg
18
considered highly offensive and disruptive, according to the official discourse ———
19
of these bandos. Popular entertainment reached an almost subversive character Normal Page
20
if, as a 1792 bando expressed, its potential victims were respectable neighbors: * PgEnds: Ejec
21
“It is mandated that no visitor or resident of this city [Buenos Aires] obstruct
22
the free transit in the streets during this coming carnival. It is prohibited to
23 [25], (13)
throw eggs, water, or flour, or do any other thing that makes reasonable and
24
sober people to stay at their houses without freely going wherever they want
25
26 to. . . . Those who do not obey this edict will be charged with a $25 fine, being
27 man or woman of high social status. If they do not enjoy that noble condition,
28 the male defendant will be put in the public jail and will be fined $12. The female
29 defendant of similar condition will get the same fine and she will be secluded
30 in residence for about the same time as the male accused, except for those who
31 are honest or legitimately Spanish.”57
32 Many entertainments like these were considered to be an impropriety for
33 other reasons. After the English invasion in 1806, another bando banned a new
34 game called “attack and reconquest” that was played by porteño teenagers. The
35 game resembled the real invasion that the city had just overcome. Perhaps
36 Spanish authorities did not like to be reminded that the criollo militia, and not
37 colonial soldiers who fled with the viceroy to Córdoba, was responsible for the
38 city’s liberation. 58
39 Gambling was another activity defined in the bandos as pernicious, and it
40 was usually associated with crime in Buenos Aires. In fact, local officials were
1 not surprised with the popularity of gambling among the urban plebe (lower-
2 class populace). They were disturbed, however, by the high number of gente
3 decente (local elite) who participated in this outlawed activity. As a 1790 bando
4 proclaimed, gambling caused “the loss of many sons of respectable families and
5 even of their slaves.” Thus, it banned once again card and dice games involving
6 bets, targeting the instigator of these activities: “A $25 fine will apply to the
7 pulpero [bar owner] or neighbor who allows these games. The accused will be
8 put under arrest to await further resolution of the Superior authority, and being
9 pardo or free moreno [freed slave] he will suffer additional punishment of 100
10 lashes plus exile to a military garrison.”59
11 Pulperos and cancheros (owners of canchas de bochas [bowling arenas]) were
12 blamed for keeping people from more productive activities. 60 During harvest
13 [26], (
time, for example, several bandos were passed to prevent shortages of labor
14 in the surrounding countryside of Buenos Aires, punishing with one hundred
15 lashes those who were “playing bochas” rather than working. 61 All kinds of Lines:
16
restrictions were also applied to pulperías, from reduced business hours to
17 ——
imposing a maximum on the number of customers allowed inside the business 13.0p
18
at one time. 62 ———
19
The historical significance of these local edicts goes beyond the evaluation Norma
20
of their partial effectiveness. The punitive language of the bandos exposes a * PgEnd
21
discourse on criminality that cannot be separated from other general norms
22
that regulated colonial penal systems. Actually, the tension within official penal
23 [26], (
discourses constituted an enduring feature of colonial and republican criminal
24
justice in Buenos Aires.
25
26 Another regular concern among officials, expressed in the language of the
27 bandos, was how to deal with vagrants and beggars. Authorities considered the
28 presence of these people in the major plazas of the city as threatening. After
29 recognizing their increasing numbers, in 1790 Viceroy Arredondo decreed: “In
30 order to reach acceptable levels of public safety and happiness, it is necessary
31 to eliminate the idleness of certain people. Vagrants should be persecuted and
32 punished without delays, because their hands have to be applied to productive
33 activities for their own benefit and for the common good. Hence, I command
34 that no one house people without a known activity or provide shelter to children
35 of respectable families or runaway slaves.”63
36 One of the first criteria applied by judges and law enforcement agents for
37 evaluating somebody accused of committing a felony was his or her occupa-
38 tion or profession. Thus, the association between vagrancy and criminality is
39 explicit in the language of these bandos and it was used to increase potential
40 punishment.
1 Conclusion
2 Legal historians have contributed much to our understanding of Spanish and
3 colonial penal law. Nonetheless, they focused their research and conclusions
4 on general norms and codes. Emphasizing the legacy of derecho indiano after
5 independence, these scholars described a legal context that often lacked the re-
6 alities of everyday life. Meanwhile, many social historians ignored the influence
7 of legal texts in colonial life, describing oppressive mechanisms of social control
8 without addressing the legal architecture that supported it.
9 Medieval legal texts contributed to the general framework of the colonial
10 penal system in Buenos Aires, an urban society marked by deep social strati-
11 fication. The historical evolution of criminal law reflected a social formula of [Last Page]
12 juridical coexistence. Privileged and general norms coexisted and were priori-
13 tized in the resolution of criminal cases. Although the Siete Partidas prevailed [27], (15)
14 as the most significant piece of legislation in terms of colonial criminal justice,
15 the Buenos Aires judiciary also used other codes and fueros.
Lines: 182 to
16 The Spanish colonial experience generated regionally differentiated penal
17 systems based on the interpretation and application of Spanish law codes. Sig- ———
18 nificant legislation in the colonies, like the Recopilación de las Leyes de Indias 0.0pt PgV
———
19 (1680), focused on defining and regulating the role of the judiciary and its pro-
Normal Page
20 cedural matters without changing Spanish penal laws. Thus, colonial legislation
PgEnds: TEX
21 was used for adjusting criminal laws to fit specific cases, adding an interpretative
22 component to the evolving penal systems.
23 The combination of Spanish legal standards and colonial procedural regula- [27], (15)
24 tions was complemented by the application of penal norms at the local level. In
25 the case of late colonial Buenos Aires, viceroyal bandos were important for the
26 formation of an official discourse on social control. The Seventh Partida was as
27 important as these local decrees in deciding criminal cases. Hence, an accurate
28 profile of colonial penal laws would be incomplete without addressing their
29 transformation and application at a more specific level. Any comparative study
30 of Spanish criminal systems in America should go from this regional stage to a
31 larger one and not in the opposite direction.
32 The described legal framework of the penal system in Buenos Aires helps
33 to understand, despite overlapping jurisdictions and norms, how the admin-
34 istration of justice was accomplished. However, a penal system is defined by
35 more than its legal architecture. As I describe changes and continuities in that
36 legal framework after independence in the next chapter, it would seem that a
37 republican penal discourse overcame the colonial penal system. But a penal
38 system also includes judicial practices, interpretation, and application of the
39 law. Thus, it will be necessary to address these other issues to see what changed
40 and what remained in terms of criminal justice beyond 1810.
1
2
3
4
5 3. The Administration of
6 Criminal Justice in Buenos Aires, 1795–1810
7
8
9
10
11 Buenos Aires grew in many ways during the eighteenth century. Increasing [First P
12 geopolitical significance and economic growth brought new inhabitants from
13 other regions. The small town was no longer unattractive to Spanish bureau- [28], (
14 crats. After the creation of the viceroyalty of the Río de la Plata, with the capital
15 in Buenos Aires, new Bourbon officials arrived constantly. They did not have
Lines:
16 difficulties in enforcing the Spanish Crown’s new policies over a reduced group
17 of criollo officials who had managed public affairs in the city until then. Unlike ——
18 in Lima and Mexico, the new administrative structure of the Bourbon state -3.0p
———
19 became almost immediately operational in the porteño capital.
Norma
20 The administrators of criminal justice quickly adapted to the Crown’s
PgEnd
21 changes, evaluating prospects of upper mobility in the new state structure.
22 They had a broad legal framework to enforce criminal policies for maintaining
23 public safety, recently challenged by so many new people moving to both the [28], (
24 Río de la Plata region and the city of Buenos Aires. These same authorities
25 conflicted when applying and enforcing colonial laws—laws not only useful for
26 selective application but also contradictory enough to give reasons to everyone
27 and nobody at the same time. Thus, in this new viceroyal jurisdiction, requests
28 for intervention of the Council of Indies multiplied. All officials wanted the
29 approval of the highest court in Spain to consolidate their positions in the
30 colonies.
31 This chapter studies the administration of criminal justice in late colonial
32 Buenos Aires. First, it analyzes how the laws and norms previously described
33 were applied in Buenos Aires, where local authorities manipulated legal proce-
34 dures according to their needs. Then it explains the role of the second porteño
35 audiencia in the local penal system, including the conflicts between this tri-
36 bunal and the viceroy. The chapter goes on interpreting the role of the alcaldes
37 de barrio and their significant function in leading the initial steps of criminal
38 investigations through sumarios. Finally, the administration of criminal justice
39 is seen on the ground level, in its everyday actions. Taking mainly cases of
40 homicide, considerations on punishment are made as well.
administration of criminal justice 29
1 Spanish Laws, Porteño Procedures

2 Penal laws define certain human behaviors as criminal. The penal system, es-
3 tablished to enforce these legal norms, prosecuted “guilty” perpetrators of such
4 behaviors. The criminal justice system links the ideals of the laws with concrete
5 actions and individuals. State authority declines when laws are enunciated but
6 not enforced. The success or failure of a new law is always directly related to its
7 application and enforcement. 1 Enforcement, thus, is a key element to consider
8 in the Spanish legal system, where there are multiple norms and alternative ap-
9 plications. Since this characteristic remained in early republican legal systems
10 it is important to understand, by looking at specific examples, how the law
11 operated in late colonial Buenos Aires.
12 One example is the right to sanctuary, which was part of Spanish law and was
13 included in all its major codes. Individuals accused of committing a crime could [29], (2)
14 take refuge in a church building where secular authorities had no jurisdiction.
15 As long as the person stayed inside the church, he or she enjoyed derecho de
Lines: 48 to
16 asilo eclesiástico. The right to sanctuary changed over time. As Spanish royal
17 authority grew, ecclesiastic and civil jurists established certain procedures so ———
18 that the people claiming sanctuary in criminal cases could eventually be brought 0.0pt PgV
———
19 before the ordinary justice. 2
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20 By the late colonial period, the right of sanctuary was certainly restricted in
PgEnds: TEX
21 comparison with its broad application during the centuries before the European
22 maritime expansion. Claiming refugio en el sagrado, as it was defined in the laws,
23 did not guarantee immunity from judicial authorities. The Royal Cédulas of 1787 [29], (2)
24 and 1797 clarified the legal procedures for overriding claims of sanctuary. The
25 ecclesiastical judge would only intervene if the person enjoyed some type of
26 fuero or other special legal status. 3
27 Hence, people from the porteño urban underclass claiming sanctuary could
28 not avoid being handed over to secular authorities. When someone accused
29 of committing a crime looked for asylum in one of the city’s churches, the
30 priest immediately contacted the alcalde and other authorities. Then, one of
31 these civil officials proceeded to arrest the offender. No intervention of the
32 ecclesiastic judge was necessary in these cases. 4
33 Although there was no chance for ecclesiastical protection, many people
34 continued to seek refuge in churches after getting involved in criminal activi-
35 ties. Royal orders established that the audiencia should evaluate criminal cases
36 of those seeking sanctuary. Porteño alcaldes applied this royal resolution by
37 sending the case to the audiencia once they passed the sentence. The defendant
38 thus would have another chance to modify a likely guilty verdict. Nevertheless,
39 people who sought asylum received some protection because punishment was
40 limited in these criminal cases. Convicted defendants would get a maximum
30 administration of criminal justice
1 of ten years in prison, while some restrictions in the application of additional

2 punishments (like public work, lashes, or military service) also applied. 5 Yet, as
3 we will see, poor people only made occasional use of these benefits.
4 A number of people knew about these legal loopholes and took advantage
5 of them. Although perpetrators of crimes against property rarely requested
6 asylum in the church, murderers and sexual offenders more often looked for
7 ecclesiastic protection. Individuals accused of crimes against property, if guilty,
8 were condemned to prison anyway. Thus, they did not find any special advantage
9 in claiming sanctuary. Although the audiencia changed many alcaldes’ sentences
10 in these types of felonies, this did not mean that the tribunal made the verdict
11 milder all the time. Appealing an alcalde’s decision always involved the risk
12 of getting more years in prison from the audiencia. One of these alcaldes, for
13 instance, condemned Manuel Robles to four years of prison and public work at [30], (
14 the presidio of Montevideo. After appealing the decision, the defendant saw his
15 punishment increased to six years in the same prison plus two hundred lashes
Lines:
16 by the tribunal. Insisting on the revision of his case once again, Robles had no
17 better luck. In the final verdict of the expediente, the audiencia punished him ——
18 with eight years of prison and public work in Montevideo plus two hundred 0.0pt
———
19 lashes. 6
Norma
20 Murderers and sex offenders found more benefits in seeking sanctuary, for
PgEnd
21 if found guilty, they could be punished with death. If arrested while seeking
22 sanctuary, however, the eventual death sentence by the alcalde (if the defendant
23 was found guilty) had to be reviewed by the audiencia. The tribunal always [30], (
24 applied the royal order reducing the sentence to ten years in prison without
25 any additional punishment. Wanted for homicide, José Lozano explained his
26 strategy in the confession. He “sought sanctuary because [he has heard that]
27 those who get it are treated with more equity than others arrested for actions
28 that deserve punishment.”7
29 Adaptation of Spanish criminal laws also included specific forms of pun-
30 ishments. Río de la Plata viceroys wanted to improve the public appearance
31 of the new capital. Viceroy Vértiz (1778–1784) and others began many public
32 works including paving streets, restoring old buildings, setting new lighting
33 features in public spaces, improving city squares, port facilities, and so forth. 8
34 Labor shortages hampered many of these tasks and the criminal justice system
35 contributed to alleviate the need.
36 While in other colonial cities many prisoners were sent to military garrisons
37 on the frontier or to work in surrounding rural areas, most porteño convicts
38 from the urban lower classes were used for public works during the last decades
39 of the eighteenth century. Public work without payment (a ración y sin sueldo)
40 was part of sentences to prison, the latter being the main punishment in these
1 cases. The audiencia also helped to satisfy this demand for free labor, adding
2 the clause of public work to most of its prison sentences. 9
3 Laws and regulations regarding why and for how long people were put in
4 jail, if accused of a crime, constitute other examples of general Spanish norms
5 and penal practices adapted to local needs. Population growth in colonial cities
6 during the eighteenth century was significant. Compared to Mexico City or
7 Lima, Buenos Aires and Montevideo were still small towns in 1750. Yet the
8 population of the city of the Santísima Trinidad and port of Buenos Aires,
9 for example, grew 63 percent between 1744 and 1810. At the beginning of the
10 revolution for independence, it had more than 40,000 inhabitants. 10 There are
11 no available statistics on the crime rate during this period, but porteño elite
12 complained about the increasingly dangerous suburbs and roads of Buenos
13 Aires and the proliferation of criminals. There were not enough prisons to keep [31], (4)
14 bad elements of the urban poor out of these new urban spaces. Furthermore,
15 elites lamented that once criminals were arrested, escape was very easy. 11
Lines: 65 to
16 Breaking out of jail was indeed frequent during late colonial times. The
17 king, following Spanish laws, established special procedures to follow before ———
18 imposing corporal punishment or other sanctions on runaway inmates. 12 The 0.0pt PgV
———
19 audiencia and other authorities in Buenos Aires, however, agreed with the gente
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20 decente that these episodes should not be tolerated. The tribunal imposed more
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21 years in prison plus additional punishments like lashes and public work to those
22 convicts who fled from prison. In 1786, for instance, the alcalde de primer voto
23 found defendant Luis Antonio Montenegro innocent in a criminal case against [31], (4)
24 him for robbery and vagrancy. Although there was not enough evidence to
25 condemn Montenegro, the audiencia punished him with six years in prison
26 because he had once broken out of jail. 13
27 Once the alcalde or the audiencia passed a sentence, “dangerous” convicts
28 could be sent to prisons or presidios, like Montevideo, Martín García Island,
29 or Luján. But the defendant remained in the city until the end of the criminal
30 proceedings, and this is the time when many breakouts occurred. One frustrated
31 judicial official, for example, requested the transfer of murder suspect José
32 Antonio Peralta from the local jail to another prison. He wanted to transfer
33 Peralta “before another of the frequent breakouts . . . takes place.”14
34 Delays in the resolution of criminal cases fueled jail escapes, indicating that
35 the adaptation of Spanish laws to porteño needs did not always produce the
36 expected consequences. The use of defendants in public works projects only
37 encouraged them to flee because the accused perceived that their criminal
38 cases were not resolved fast enough. The defense attorney for Inocencio Acosta
39 claimed that the defendant, charged with vagrancy and horse stealing, should
40 be freed after one year and eight months in prison. Tired of working in a chain
1 gang paving the streets of downtown Buenos Aires while awaiting a verdict,
2 Acosta escaped from jail around the same time his sentence was passed. 15
3 Colonial authorities prevented many prison breakouts with the help of in-
4 mates. Actually, this was more effective than security measures. Informants were
5 encouraged to report these attempts in return for diverse rewards. In 1787, for
6 example, the audiencia imposed two hundred lashes in public to several inmates
7 at the local jail for an aborted attempt to escape. As a whistle blower, inmate
8 Maciel Espinosa was excluded from this punishment. 16
9 Colonial judicial authorities interpreted Spanish laws, applying them ac-
10 cording to diverse needs in the new capital of the viceroyalty. This legal practice
11 not only worked to fulfill specific goals and needs of social control but also
12 to accomplish other state projects. As a matter of fact, the pattern of legal
13 flexibility seen in these examples continued under other circumstances after [32], (
14 independence. As I will show, during the colonial period, local judicial officials,
15 like the alcaldes, experimented with the enforcement of selective legal norms in
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16 criminal cases.
17 ——
18 The Audiencia and Colonial Justice in Buenos Aires 0.0pt
———
19 Implementing a royal order issued by the Spanish king on April 14, 1783, the
Norma
20 second Royal Audiencia of Buenos Aires began its activities on August 12, 1785. 17
PgEnd
21 The tribunal was established at the peak of the Bourbon reforms in the Spanish
22 American colonies. The Audiencia of Buenos Aires was one of the first to have
23 a regente, a new position that supervised the locally biased tribunal members [32], (
24 called oidores. Actually, all the appointed oidores of the new porteño audiencia
25 as well as its regente were peninsulares (Iberian born), recently arrived to take
26 office. 18
27 While in other colonial jurisdictions the regentes, a product of the ongoing
28 imperial reforms at that time, were seen as the genuine representatives of royal
29 interest over local preferences, the case of Buenos Aires was somewhat different.
30 In the capital of the new viceroyalty, all members of the audiencia and the viceroy
31 were outsiders without ties to the local elite, which made it more difficult for the
32 regente to demonstrate his commitment to the Crown before other bureaucrats.
33 Viceroys had specific reasons to resent the new regentes. First of all, viceroys
34 were also the presidents of the audiencia. Even though they did not intervene
35 in the everyday tasks of the tribunal, they could get involved in judicial matters.
36 This privilege did not disappear with the appointment of regentes in 1786,
37 but the new officials were not going to allow viceregal intervention in the
38 daily activities of the audiencia in the manner that they were accustomed.
39 The arrival of the new regentes in many cities, including Buenos Aires, created
40 protocol problems. Although the Spanish crown issued a royal order defining
1 the rank and role of the regentes in the administrative structure of the empire,
2 other high-ranking officials did not accommodate it easily. 19 Porteño civil and
3 ecclesiastic authorities competed for their seats in public ceremonies, and the
4 new regente, Manuel de Arredondo and his successors, claimed their places as
5 well. In fact, Buenos Aires viceroys, audiencia members, and bishops reported
6 several problems to the Council of Indies regarding this issue. 20
7 Conflicts between viceroys and audiencia members in Buenos Aires went
8 beyond the formalities of protocol. These formalities were not a minor arena
9 for power disputes at the local level during the colonial period. The controversy
10 over the administration of criminal justice, nonetheless, was one of the first to
11 arise as soon as the audiencia was instituted.
12 Before the establishment of the high tribunal in the capital, the first two
13 viceroys of the Río de la Plata dictated several bandos dealing with the ad- [33], (6)
14 ministration of justice. In a rapidly growing city like Buenos Aires, viceroys
15 found it necessary to reinforce measures of social control. In a memoria to his
Lines: 87 to
16 successor, for example, Viceroy Vértiz pointed out the successful application
17 of these measures as one of the achievements of his administration. 21 Viceroy ———
18 Nicolás del Campo’s (Marqués de Loreto, 1784–1790) involvement in judicial 0.0pt PgV
———
19 matters, however, was not going to be as easy as his predecessor found it.
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20 The concept of separation of state powers was not rooted in the colonial ex-
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21 perience. The audiencia (established the same year the Marqués de Loreto took
22 office) did not question the viceroy’s legal capability to issue bandos and orders
23 in the administration of justice. The high tribunal, nonetheless, sought priority [33], (6)
24 in the interpretation and review of all laws, including viceregal resolutions.
25 Three months after its establishment, the audiencia had its first legal dispute
26 with the viceroy over a judicial case. Marqués de Loreto began an expediente in
27 which the audiencia wanted input later on. The viceroy refused to hand the case
28 over to the tribunal. The audiencia then filed a complaint before the Council
29 of Indies. As usual, the Council mediated the dispute without giving a direct
30 answer, but the viceroy realized that the new tribunal was not going to allow
31 him to ignore it. 22
32 Another conflict between viceroys and the audiencia concerned the daily
33 reports on criminal cases. Once the high tribunal was established, the viceroy
34 (as president of the audiencia) demanded that the tribunal inform him of
35 impending expedientes. Furthermore, he wanted a daily report of the sentences
36 the tribunal pronounced in criminal cases. The audiencia found these demands
37 unacceptable, arguing that they were very inconvenient for an efficient admin-
38 istration of criminal justice. Even though there were laws that established this
39 practice of reporting criminal cases to the viceroy, audiencia members pointed
40 out in their account to the Council of Indies that these laws “are obsolete in
1 meaning and practice, and their application would cause delays in finishing the
2 expedientes and public business promptly.”23
3 Viceroy Marqués de Loreto insisted upon his right to know about judi-
4 cial cases the audiencia reviewed. He argued in his memoir that as head of
5 the viceroyalty he had the responsibility to maintain peace and social order, a
6 responsibility that was predicated upon a detailed knowledge of the judicial-
7 administrative situation. In fact, the viceroy explained, many times he had to
8 enforce the audiencia’s resolutions. It made sense for him, therefore, to know
9 what the tribunal was dealing with. 24
10 Once again, the controversy was referred to peninsular authorities. The
11 Council of Indies offered a solution that constitutes a good example of how
12 the imperial state apparatus worked. The Council passed two resolutions: the
13 first called for cooperation between tribunals and viceroys, backing up the [34], (
14 autonomy of the Audiencia of Buenos Aires, while the second gave alternative
15 attributions on criminal cases to the incoming viceroy of the Río de la Plata. On
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16 August 8, 1790, as a consequence of this power dispute, the Council of Indies
17 passed a royal order to all the colonial jurisdictions establishing mechanisms of ——
18 consultation between audiencias and viceroys to administer justice. Moreover, 0.0pt
———
19 it ratified “the observed tradition by the Audiencias not to report their sentences
Norma
20 on criminal cases to the viceroys, especially those that are going to be enforced by
PgEnd
21 subordinated judges (alcaldes).”25 The Audiencia of Buenos Aires immediately
22 acknowledged the importance of the resolution.
23 The year before, however, after the Council of Indies learned of the dispute [34], (
24 between the Marqués de Loreto and the Audiencia of Buenos Aires, the king
25 instructed the incoming viceroy of the Río de la Plata, Nicolás de Arredondo
26 (1790–95), to renew efforts in punishing crimes in his jurisdiction. In order to
27 achieve this goal, the king ordered him to “demand to all parts involved in the
28 administration of criminal justice to speed the resolution of pending expedi-
29 entes,” which is what Arredondo’s predecessor tried to do only to encounter
30 stiff resistance from the audiencia. 26 When Arredondo reached Buenos Aires
31 and presented the royal instruction to the audiencia, the tribunal responded by
32 showing him the other royal order. Thus, the controversy remained unsolved
33 and the Council of Indies was once again consulted about the matter. 27 Porteño
34 authorities and the early republican judiciary did not have this kind of media-
35 tion, which altered the way these administrative and judicial issues were solved.
36 Executive authorities after 1810 retained some of the attributions of the former
37 Council of Indies, which undermined the power of the criollo appeals court.
38 The Audiencia of Buenos Aires was able to address its grievances against the
39 viceroys to the Council of Indies but, on matters of social control, the crown
40 tended to back its viceroys. Reports of crime and social unrest concerned Span-
1 ish authorities who were willing to tolerate repressive excesses by law enforce-
2 ment authorities. On the one hand, urban public safety was in the hands of the
3 local cabildo and its auxiliaries, especially the alcaldes. They were subordinated,
4 however, to the audiencia. On the other hand, military personnel stationed in
5 Buenos Aires, under viceregal command, also acted as law enforcement agents.
6 In addition, viceroys appointed alcaldes de barrio as police auxiliaries. 28 Thus,
7 policing the city created many conflicts of jurisdiction and command, another
8 area where metropolitan authorities were forced to mediate.
9 The case of Buenos Aires did not completely follow the pattern described
10 by historians in other Latin American cities, like Mexico, where widespread use
11 of criminal courts reinforced consensual patterns of urban life. 29 An increasing
12 number of porteño law enforcement agents instead of judges and tribunals
13 had the primary responsibility of fighting crime, and the authorities tended to [35], (8)
14 support their actions despite the fact they did not always follow legal procedures.
15 Military personnel in Buenos Aires, for example, had a reputation of enforcing
Lines: 103 to
16 order in drastic ways that ignored judicial formalities.
17 An early 1790s case illustrates this. It involved the audiencia, the viceroy, ———
18 and the sergeant of the compañía de dragones Elías Bayala. The sergeant had 0.0pt PgV
———
19 been recognized by viceregal authorities for his determination to fight crime
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20 in the city. Many criminal cases found in the archives have his signature in the
PgEnds: TEX
21 initial statement called auto cabeza de proceso. In 1792, as he walked past the
22 street window of the public jail, he was insulted by the inmates. Then, as one
23 of the witnesses recalled, the sergeant went directly into the jail and “without [35], (8)
24 asking who had said these words, he began to hit all the prisoners with a stick,
25 continuing this until he became tired of such injustice.”30
26 Prison officials and the inmates denounced Bayala’s actions, and the judicial
27 process eventually reached the audiencia. The tribunal wanted to prosecute and
28 punish Bayala for his excesses as well as for other charges of abuse of authority,
29 but the viceroy refused to cooperate and protected the sergeant instead. Since
30 Bayala was a military man, the audiencia requested that his superior, the viceroy,
31 revoke his fuero so that the tribunal could judge him. Viceroy Arredondo re-
32 fused to do this, prompting the audiencia to complain to the Council of Indies.
33 The tribunal argued that Bayala’s fuero did not apply in this case because he
34 committed the acts while off duty, stating also that the viceroy,“not only refused
35 to order the requested desafuero but also issued a decree on October 25, ratified
36 by the War Council he chaired, freeing the Sergeant. Thus, Bayala continued
37 praising his excesses and impunity without any moderation, offending the vic-
38 tims and the justice even more.”31 The viceroy also sent a report to the Council
39 of Indies, whereby he defended his right to judge Bayala. Arredondo emphasized
40 that the Sergeant played a key role in viceregal attempts to curb urban crime.
1 The Council supported Arredondo’s position, and as a consequence, not only

2 did Bayala escape punishment, he was also promoted to commander later on. 32
3 Although the audiencia could not enforce its decisions against the viceroy’s
4 will, the tribunal still had the judicial structure under its control. Alcaldes from
5 the local cabildo dominated the judiciary, and in turn carried out resolutions
6 issued by the audiencia. Thus, the tribunal did not entirely depend on the
7 viceroys to implement its resolutions. With the abolition of the cabildos in the
8 early 1820s, the early republican judiciary would depend entirely on executive
9 authorities to enforce its orders, thus deepening its reliance on the executive
10 branch.
11 The audiencia also tolerated abuses committed by colonial law enforcement
12 agents. Bayala’s case preoccupied the tribunal because the court was more con-
13 cerned about maintaining its position of power than protecting the prisoners [36], (
14 who were beaten up by the temperamental sergeant. When alcaldes or other
15 tribunal subordinates applied this kind of violence, they rarely received more
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16 than a written warning at the end of the judicial case. This is what happened
17 with alcalde Francisco Gonzalez, in Buenos Aires’ northern district (banda del ——
18 norte). Although many witnesses saw Gonzalez applying unnecessary violence 0.0pt
———
19 when he arrested mulatto Luis (“jumping off his horse,” they recalled, “the
Norma
20 alcalde unsheathed his sword, attacking and beating up mulatto Luis, who was
PgEnd
21 just working”), the audiencia did not find anything wrong with his actions. 33
22 The tribunal decided what to do in Gonzalez’s case, something that it was denied
23 in the controversy with the viceroy over Bayala’s case. [36], (
24 The audiencia also imposed its power by restricting the capacity of its sub-
25 ordinates to exercise judicial functions, another attribute that began to decrease
26 after independence. Alcaldes de barrio, for example, were prohibited by the
27 colonial tribunal to perform any judicial act beyond the initial statement of
28 the criminal case they presented. Thus, a whole criminal case for homicide was
29 redone in 1787 after the audiencia realized that “judicial functions have been
30 performed by an alcalde who has no capability at all on these matters, [ . . . ]
31 urging and warning the aforementioned alcalde to avoid taking any judicial
32 steps or interfering on judicial duties from now on.”34
33 Jealous of its prerogatives, the audiencia ordered the prosecutor and the
34 defense attorney in another case to avoid writing “administering justice” at the
35 end of the petitions or judicial requests directed to the tribunal. The tribunal
36 stated that this was its goal and no judicial official was entitled to remind its
37 members about it. 35 In general, prosecutors and defense attorneys were aware
38 that the audiencia considered this type of technicality important. As part of
39 their judicial roles, for example, they had to criticize procedural inconsistencies
40 and judicial mistakes in the criminal case under review. Judicial officials and
1 lawyers always did this without directly attacking any of the audiencia’s decrees
2 or resolutions. They remembered all too well that the tribunal had the final
3 word in the expediente. 36
4 Legal historians like Ricardo Levene and Ricardo Zorraquín Becúhave
5 praised the Audiencia of Buenos Aires for its moderate, mild sentences. The
6 tribunal, according to them, amended and reduced harsh punishments imposed
7 by subordinated judges and alcaldes from various jurisdictions in the Viceroy-
8 alty of the Río de la Plata. Although this may be true for other regions, it is not so
9 in the case of the city of Buenos Aires. The audiencia acted as a moderating force
10 in the administration of colonial justice, but it was not benevolent. Depending
11 on the circumstances, the tribunal also imposed severe punishment. When Don
12 Miguel de Tagle (member of the local elite) was robbed in 1787, for example,
13 [37], (10)
the alcalde imposed a six-year prison term on the defendant Joseph Ignacio
14 Nuñez (Indian). The tribunal amended this sentence condemning the accused
15 to a ten-year prison term plus physical punishment (lashes). 37 Crimes against Lines: 117 to
16
respected vecinos, as cases like this demonstrate, were severely punished by the
17 ———
tribunal. 13.0pt Pg
18
Rather than modifying most of the sentences from the urban alcaldes, mem- ———
19
bers of the audiencia focused instead on speeding the resolution of the criminal Normal Page
20
cases. The regentes spent more time on this issue than in moderating the ac- * PgEnds: Ejec
21
tions of their subordinates. An early attempt on this matter was the project
22
begun in 1788 by the second regente of the Audiencia Benito María de la Mata
23 [37], (10)
Linares (1787–1803). His instrucción tried to regulate the procedures on criminal
24
cases so that they could be finished sooner. 38 Standard procedures and rapid
25
26 consultation with the tribunal were the mechanisms selected to accelerate the
27 expedientes. The proposal, however, was never approved. Disputes within the
28 audiencia also prevented the tribunal from acting promptly in many cases. 39
29 During the first decade of the nineteenth century the audiencia slowly lost
30 power to the viceroys. After the English invasions of 1806 and 1807, the tribunal
31 also witnessed the increasing power of the porteño cabildo and the locally
32 appointed viceroy, Santiago de Liniers (interim, 1807–9). For example, the au-
33 diencia was forced to accept the suspension of the death penalty its members
34 had dictated against the black slave Sebastian in 1807. Viceroy Liniers justified
35 the suspension by arguing that “it is necessary, taking into account the current
36 situation, to manifest with some sort of concrete action, a recognition for the
37 good services the lower classes provided [during the reconquest of Buenos Aires
38 from the English occupation]. . . . I am waiting for a similar sentence passed
39 upon a white defendant so that the blacks do not have any reason to think that
40 they are the only ones suffering such type of harsh punishment.”40
1 Without the possibility of obtaining rapid support from the Council of

2 Indies, which was stymied because of the war raging in Europe, the Audiencia
3 of Buenos Aires found itself more and more subordinated to a local elite proud
4 to defend the city without any help from the colonial authorities. After inde-
5 pendence the appeals court that succeeded the colonial audiencia faced other
6 challenges, losing power to the executive authorities and police forces.
7
8 Colonial Alcaldes and the Sumario
9 The two alcaldes ordinarios from the local cabildo were responsible for all civil
10 and criminal cases in the city. They also reviewed expedientes from the alcaldes
11 de la Santa Hermandad, their term for the surrounding countryside. Members
12 of the elite elected them for one year; all alcaldes performed both police and
13 judicial functions. They not only controlled the preparation of the sumario [38], (
14 in criminal cases but also issued a sentence at the end of it. Alcaldes were
15 reluctant to transcribe what defendants and victims said to them. During the
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16 colonial period, the audiencia instructed subordinate judicial officials to use
17 proper language when writing criminal sumarios. Alcaldes tried to put these ——
18 recommendations into practice by adjusting the narrative of the urban lower 0.0pt
———
19 class to a suitable judicial vocabulary. Alcalde Felipe Martínez, for example,
Norma
20 ordered his assistant “to rewrite the auto cabeza de proceso [the sumario’s initial
PgEnd
21 statement] and the testimony of Doña Micaela Gonzales [so that] both can
22 be reorganized and accommodated to a Christian moderation [as well as] the
23 formality of the court.”41 [38], (
24 Alcaldes ordinarios wrote the sumarios and sentenced criminals. Hence, they
25 had the chance to listen to all participants in an expediente, then“translate”what
26 they heard into a more technical discourse. As alcalde Juan de Asebey explained,
27 defendant Jacinto Duarte committed “the sin of sodomy, although the defen-
28 dant did not pronounce this last word as I am writing it but in other vulgar
29 terms.”42 The initial statement of a criminal expediente constituted another
30 judicial tool for shaping a case. The auto contained basic information about
31 the crime, including the name of its perpetrators, possible witnesses, and other
32 evidence. Furthermore, alcaldes and their auxiliaries included opinions that
33 many times sealed the judicial fate of the accused. “I do not have any doubt,”
34 alcalde Miguel de Castro said about defendant Andrés Sosa,“that he committed
35 the crime, for he is and always has been a first class transgressor. Growing up
36 without any education after his father died, he remained with his mother who
37 lived a licentious life. Thus, he has no respect for anything.”43
38 The opinion of law enforcement agents about a case was very important in
39 the outcome of colonial criminal processes. What a colonial alcalde said in the
40 auto cabeza de proceso, or a few pages later, could certainly indicate what kind
1 of sentence he would give at the end. A guilty verdict against Mariano Ortega,
2 accused of homicide, is not surprising if we read what the alcalde said about him
3 in the initial stages of the case: the defendant “has always been a beggar, without
4 any profession or job. He spends his time going from bar to bar, drinking and
5 getting involved in fights because of his relentless disposition to get his knife
6 and challenge everybody.”44 After reading such a profile, nobody had any doubt
7 that Ortega must have committed the crime.
8 In the defendant’s testimony (confesión del reo), alcaldes also had the oppor-
9 tunity to confirm their presumptions about guilt of the accused. The system
10 of interrogation, called reconvenciones, left almost no room for self-defense. If
11 the defendant denied the charges, presented as long questions and statements
12 in the confession, alcaldes just wrote “her (or his) answer is no.” They did
13 [39], (12)
not add what “no” meant for the defendant. Instead, alcaldes included at the
14 end of reconvenciones any self-incriminating word the defendant said against
15 himself or herself. One such instance involved defendant Pedro Nolasco, who Lines: 145 to
16
“recognized” in his confession the “understanding that he is a bad man who
17 ———
buys alcohol any time he has some money.”45 13.0pt Pg
18
While officials could shape many aspects of a particular case, alcaldes or- ———
19
dinarios and their auxiliaries had difficulty in obtaining the cooperation of Normal Page
20
witnesses from the urban lower class for the investigation of criminal cases. PgEnds: TEX
21
Alcaldes and the audiencia sometimes punished people involved initially as
22
witnesses in criminal expedientes with fines or public work. If the crime was
23 [39], (12)
committed in a public place, like a pulpería (bar) or a cancha de bochas (bowling
24
game) for example, spectators could be eventually incriminated as well. Thus,
25
26 the porteño urban poor were reluctant to help law enforcement authorities. Be-
27 fore he died, victim of homicide Julian Gutierrez told the alcalde that “although
28 there were many people watching them [he and his killer] fight, everybody
29 ran away after hearing him saying: ‘You wounded me.’ ”46 The negative atti-
30 tude toward judicial officials is also reflected in the case of Micaela Gonzales.
31 When she rejected the sexual advances of José Mansilla, the only response he
32 could offer was “what kind of rude manners do you have? You act like an
33 alcalde!”47
34 Testimonies of poor witnesses could be used against them by accusations
35 of lying and hiding the truth. Besides asking for the death penalty against
36 the Indian Pedro Yapay for a homicide that took place in 1789, the prosecutor
37 recommended additional penalties against other Indian witnesses in the case.
38 He also suggested that judicial authorities be more careful when receiving tes-
39 timonies from the castas (the nonwhite urban poor in this context). “These
40 precautions are necessary,” he argued, “taking into account the calidad of these
1 Indians [who] can easily be induced to perjure and who are not coherent in
2 their judgments.”48
3 Alcaldes also delayed finishing the sumario as a way to prolong the defen-
4 dant’s jail time. This was a form of punishment in itself when there was no
5 evidence beyond the authority’s conviction that the accused was guilty. The
6 final sentence in these cases usually considered the time spent in jail (and many
7 times also doing public work) as well-deserved punishment, without clearly
8 stating if the defendant was indeed guilty. Depressed by this situation, defen-
9 dant Manuel Ortega complained that he was “merely subsisting in this house
10 of misery [the Buenos Aires jail], established for criminals and vicious people
11 of our land. . . . When I recall the delays in finishing my case, I felt the most
12 complete abandonment.”49
13 In certain felonies, alcaldes left room for an agreement between victim and [40], (
14 defendant. Economic compensation was the key issue here. Porteño alcaldes
15 were willing to negotiate a verdict in certain cases, especially if the defendant
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16 belonged to the gente decente as well. These accused did not seek asylum like
17 defendants from the lower classes. These agreements were more common in ——
18 cases of sexual crimes, calumny or defamation, and fraud. Punishments in 0.0pt
———
19 these cases were many times reduced to a public service like visiting the sick in
Norma
20 the hospital. 50
PgEnd
21 Colonial alcaldes did not have absolute control over criminal cases. They
22 were able to influence the outcome of the expedientes by controlling the
23 sumario, but higher judicial authorities reviewed many of their decisions. Yet [40], (
24 during the colonial period, alcaldes ordinarios who had judicial functions only
25 during one-year terms were more subordinated to the audiencia. The tribunal
26 actively participated in the resolution of criminal expedientes, and alcaldes
27 frequently received warnings if they did not consult the audiencia on their de-
28 cisions. Thus, one of the tribunal decrees admonished an alcalde for “enforcing
29 the verdict in this case without consulting with the tribunal, as it has been
30 mandated many times as well as established in the judicial practice.”51
31
32 Administering Criminal Justice, 1785–1810
33 Public safety was a priority for colonial and postcolonial authorities in Buenos
34 Aires. The rapid demographic growth of the city, especially of the poor, con-
35 stituted a threat to the established social order of the colonial state. 52 Colonial
36 authorities identified the lack of cooperation from the urban plebe in preventing
37 crime as another sign of the “dangerous” character of the lower classes. In fact,
38 members of the gente decente were expected to contribute to the maintenance
39 of public order for their own benefit. Serving as alcaldes de barrio (writing
40 autos cabeza de proceso) as well as witnesses in criminal cases, gente decente’s
1 testimonies about defendants were almost always enough to condemn the lat-
2 ter. The testimony of Enrique Deza, for example, was crucial in the case against
3 defendant Dionisio Rocha. Deza defined the accused as “the most evil-minded
4 mulatto I have ever seen. He steals everything, including livestock.”53
5 When neither colonial alcaldes nor witnesses from the gente decente could
6 confirm the suspicions about someone’s guilt, judicial authorities considered
7 torture as a means to obtain the confession. Law historians have argued that,
8 even though torture was technically legal it was no longer applied by late colonial
9 judicial authorities. 54 In fact, the application of torture in late colonial Buenos
10 Aires, as happened with many other laws and legal principles, was used on a
11 selective basis.
12 The calidad of the defendant/s in a criminal case conditioned the application
13 of torture—the lower the calidad, the higher the chances of suffering. In 1784, [41], (14)
14 for instance, a judicial official recommended to the alcalde the application of
15 torture against several suspects in a homicide case. In order to discover the real
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16 perpetrator of this crime, he concluded, it was necessary to apply “the remedy of
17 torture . . . the most visible one [to the other prisoners], even twice. We should ———
18 thus begin this exercise with the suspect who has the weakest nature.”55 0.0pt PgV
———
19 Slaves and freed blacks (mulatos libres) were the most common candidates
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20 for torture in criminal cases. As a victim of robbery, Francisco Segura requested
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21 torture for the suspects, “taking into account the calidad of these criminals,
22 for they are evil people willing to tell the truth only under the effect of the
23 lash. The slaves and free mulattos accused in this case should be whipped [41], (14)
24 until confessing.” He also added: “this form of coercion was never considered
25 a formal punishment in the Americas, nor did judges follow legal rules and
26 formalities on this matter. It would indeed occupy more than all the time
27 judges have to investigate and punish crimes if they had to follow, in each
28 case, all the procedures established by the law.”56 The alcalde eventually granted
29 Segura’s petition of torture. Colonial defense attorneys usually accepted judicial
30 decisions authorizing the use of torture. Although selectively enforced, the
31 application of these coercive measures was grounded in Spanish law.
32 Taking into account the way criminal judicial processes were implemented
33 in Buenos Aires, defendants during the colonial period had to demonstrate to
34 the authorities that they did not commit the crime under investigation. This
35 judicial practice did not excuse alcaldes ordinarios from searching for evidence
36 and witnesses in criminal cases, but they certainly could jail a suspect who failed
37 to prove his or her innocence. 57
38 In criminal processes where alcaldes and witnesses made charges and state-
39 ments incriminating the defendant, colonial public attorneys could not base
40 their defense on insufficient evidence. Understanding that the colonial criminal
1 justice system based its procedures on the social status of the parties involved,
2 public attorneys used these differences to defend their poor clients. The porteño
3 elite, and gente decente in general, depicted the urban poor not only as dan-
4 gerous but also as ignorant. Thus, in most of the criminal cases, attorneys for
5 the defense claimed that the defendant/s did not realize the criminal nature of
6 his or her actions. Either drunk, mentally deficient, or both, defendants could
7 not have possibly understood what was happening when they committed the
8 crime.
9 Interestingly enough, many of these public attorneys did not question the
10 alcalde’s often-negative opinions about the defendants. Instead, they used these
11 negative perceptions to their advantage. These counselors concentrated on pre-
12 senting attenuating circumstances like the social profile of the accused, associ-
13 ated with his or her minimum intellectual capacity and dubious moral quality. [42], (
14 Charged with stealing from the sacristy of a parish in 1788, defendant Juan
15 Manuel Rivera received the death penalty. The case was then sent for review to
Lines:
16 the audiencia. Rivera’s public defender based his last effort to save his client’s
17 life on arguing that Rivera’s crime “was the best proof that he was rude and ——
18 ignorant, for which the defendant should be included among the most mis- 0.0pt
———
19 erable individuals.”58 Public defendants applied similar criteria when women,
Norma
20 identified as fragile and ignorant according to colonial gender stereotypes, were
PgEnd
21 incriminated. Attorney for the defense of Antonia Ramirez, for example, pre-
22 sented “Ramirez’s imbecility, characteristic of the weak sex,” as an attenuating
23 factor in a judicial case. 59 [42], (
24 Colonial public attorneys and prosecutors engaged in judicial battles over
25 many criminal cases, requesting new testimonies and other judicial actions in
26 the expedientes. Although colonial judicial actors shared the views that the
27 porteño gente decente had about the urban underclass, they did not auto-
28 matically take the former side. In judicial cases against urban slave owners
29 for mistreatment of their slaves, for example, public attorneys and especially
30 the audiencia, punished owners with expensive fines. For this reason, many
31 porteño slaves went to court to press charges against their cruel masters. Public
32 defense attorneys helped them if there was enough evidence demonstrating
33 mistreatment. In 1807, for example, defense attorney Juan Bautista de Uriarte
34 recriminated Ramón López for brutally castigating his slave Francisco, “result-
35 ing from this action the oppression of this unfortunate man. Humanity thus
36 seeks for his relief as well as the reparation of his respectable rights.”60
37 As in other areas in the administration of justice, legal support of victims or
38 defendants from the urban masses, including slaves, was selective. Not all slaves
39 were as fortunate as Francisco. Judicial officials in these cases did not respond
40 to the idea of communal harmony. Instead, they pursued a strategy of indirect
1 rule that reaffirmed colonial power by selectively applying the law according to
2 the circumstances of each case. Francisco and others certainly took advantage
3 of this possibility by channeling their claims via the judiciary, but this did not
4 mean that colonial criminal justice automatically took the side of the urban
5 poor. 61 Actually, defendants from the gente decente, as in the case of Ramón
6 López, did not easily accept criminal prosecutions of this nature. López’s self-
7 defense, for example, appealed to stereotyped descriptions of the lower classes
8 and the slave population, ultimately shared by the judicial officials accusing
9 him. “Now, señor defensor,” López stated, “put your hand on your chest and tell
10 me if I should tolerate being robbed, seeing my slaves running away, as well as
11 the other 300,000 things that only a master can observe, and at the same time
12 remaining in silence out of humanitarian love?”62
13 Because of their role in criminal processes, defense attorneys might have [43], (16)
14 had doubts in answering López’s question. Colonial prosecutors did not face
15 such a dilemma. Following their judicial functions, they had the obligation to
Lines: 180 to
16 incriminate defendants. Suspected in a case of robbery, Jorge Ponce de León
17 was charged despite the lack of evidence against him. To justify his request of ———
18 punishment for the defendant, the prosecutor stated:“although [Ponce de León] 0.0pt PgV
———
19 is not involved in this burglary, it is evident that he has no other profession but
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20 that of a thief.”63
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21 Colonial prosecutors took advantage of the Spanish legal system, which did
22 not require a set amount of evidence for condemning defendants in criminal
23 cases. They appealed to the power of interpretation (arbitrio judicial) that the [43], (16)
24 Iberian legislation granted to alcaldes and other judges. If the magistrate be-
25 lieved that the defendant was guilty, the sentence reflected this opinion without
26 requiring an explanation for such a decision. Prosecutors thus based their ac-
27 cusations on these criteria. As one explained in a case of sexual offense, “the
28 defendant’s confession . . . is more than enough evidence of his excesses to
29 impose the maximum penalty.”64
30 Ethnicity was also an important factor in punishing various colonial social
31 groups. The general legislation as well as the local bandos established penalties
32 according to the social status of the defendants. Prosecutors used the same
33 ethnic stereotypes to petition for harder or additional punishment for gente de
34 color. Appeals to the audiencia also reflected these concepts. Unsatisfied with an
35 alcalde’s sentence of two years in prison against defendant Teodoro Castro, the
36 prosecutor requested the addition of two hundred lashes to the audiencia. The
37 prosecutor explained that, “for justifying the additional punishment against
38 the defendant in this case, it is enough to say [that . . . ] his calidad is mulato
39 libre.”65 Prosecutors also based their accusations on defendants’ failures to fulfill
40 religious duties. Counselor Pacheco, for example, charged Domingo Casquero
1 despite his claims of innocence, “contributing to my decision to accuse him

2 grave and criminally was my understanding that the defendant has gone neither
3 to confession nor to the church in six years.”66
4 When a defendant was sentenced to death, defense attorneys sometimes used
5 the strategy of requesting additional information about their client so that the
6 verdict could be postponed. A typical request was to petition a copy of the
7 defendant’s baptism record. As many of the urban poor migrated from other
8 regions of the viceroyalty, obtaining this document from the place of birth could
9 take months. In the meantime, the defense would start the appeals process to the
10 audiencia. Tribunal prosecutors like attorney Villota, for example, complained
11 that these “inappropriate judicial requests,” otherwise irrelevant to the case,
12 delayed the execution of the sentences. 67
13 Legal historians have described members of the Audiencia of Buenos Aires [44], (
14 as a group of well-trained legal officials who oversaw criminal judicial processes
15 in their jurisdiction, moderating harsh punishments, usually imposed by local
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16 alcaldes, on the population. The application of the death penalty is commonly
17 presented as an example of how the audiencia served as a buffer between the ——
18 masses and the alcaldes. A list of homicide expedientes written in Buenos Aires 0.0pt
———
19 between 1784 and 1810 allows us to verify this statement.
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20 First, the audiencia issued the only sentence in 32.5 percent of the seventy-
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21 seven cases. This direct intervention stemmed from numerous reasons, includ-
22 ing the defendant’s initial request for sanctuary. The tribunal did not sentence
23 anyone to death when intervening as the judicial first instance. Sentences of [44], (
24 prison terms were the most common (80 percent of the twenty-five cases). The
25 absence of death sentences in these cases does not mean that the tribunal was
26 against capital punishment. The audiencia ratified seven of the twelve death
27 sentences issued by alcaldes ordinarios in Buenos Aires. Certainly, members of
28 the highest judicial court in the viceroyalty did not want to apply this form of
29 punishment directly, which probably helped to explain the traditional image of
30 moderation cultivated by Argentine legal historiography, an incorrect point of
31 view as these cases demonstrate. The tribunal usually reduced to prison terms
32 the uncountable times that alcaldes de la Santa Hermandad (administering
33 justice in the Buenos Aires countryside) sentenced defendants to death for a
34 variety of crimes and felonies. Yet, members of the tribunal confirmed many
35 sentences of urban alcaldes. 68
36 Death sentences in homicide cases only constituted 17 percent of the cases,
37 which indicates the selective character of this type of punishment in late colo-
38 nial Buenos Aires. The manner in which these executions took place, an issue
39 debated after independence, reinforced the fact that their purpose was to serve
40 as an example to the population. As one alcalde ordered, the condemned“will be
1 Table 2. Homicide Cases Reviewed by the Audiencia, 1785–1810

2 Punishment Direct Audiencia Sentences ratified Sentences changed
3 sentences1 by Audiencia2 by the Audiencia3
4
increased reduced
5
Prison 20 12 15 3
6
Death – 7 – 5
7
Fine 3 2 2 –
8 Lashes – – 2 –
9 Not guilty 2 2 – 2
10 Total 25 23 19 10
11 Grand Total 77 cases
12 1. Audiencia sentenced these cases directly.
13 2. Audiencia ratified the alcalde’s sentences. [45], (18)
14 3. Audiencia either increased or reduced the alcalde’s original sentence.
15 Source: ahpba, Real Audiencia and Juzgado del Crimen.
Lines: 241 to
16
17 secured by his hands and feet. He then will be conducted to the execution place ———
18 through the streets while an official will go along proclaiming the defendant’s -2.4919pt
———
19 crime to the population. Reaching the scaffold, the condemned will be hanged,
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20 his body remaining there. Furthermore, nobody will be allowed to remove the
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21 body without my explicit permission.”69
22 Of those accused of homicide in twenty-nine cases originally sentenced by
23 the alcaldes ordinarios that the audiencia changed, 65.5 percent received harsher [45], (18)
24 punishments. These new sentences usually increased the number of years in
25 prison or added disciplinary sanctions like lashes and public work. Moderation
26 does not seem to prevail here either. Although this sample is minimal when
27 compared to all audiencia activities, it at least indicates that the tribunal was
28 sensitive to the claims by gente decente and colonial authorities regarding public
29 safety; the application and ratification of harsh and increased punishments
30 indicated so. After initially revoking a death sentence from an alcalde ordinario,
31 for example, the audiencia reversed its verdict ordering the execution of the
32 defendant. The tribunal followed the recommendation of the prosecutor in
33 this instance, who argued that the population would have not approved of such
34 a benevolent act, “for it would be very sad to find out that there is no secure life
35 [in the city] when the authorities cannot stop so many atrocities.”70
36
37 Conclusion
38 The colonial bureaucracy in the city of Buenos Aires was able to use all the
39 Spanish penal laws to cope with the problems of administering criminal justice
40 in the capital of the viceroyalty. Many indicted and sentenced people, as we saw,
1 were forced to work in the city public works. These same people, at the same
2 time, learned of some features of the legal system that allowed them to gain an
3 advantage under extremely unfavorable conditions. This was the case of those
4 who looked for sanctuary in local church buildings while the authorities were
5 after them.
6 Porteño Audiencia members and other new judicial officials did not have
7 difficulty in putting Bourbon reforms into practice. At the same time, however,
8 they confronted other bureaucrats like the viceroy for preference in dealing
9 with public safety matters. Ideally seen by law historians as an example of
10 correct and moderate application of colonial laws, the audiencia was in fact
11 mostly concerned with imposing its judicial authority. Softening hard alcalde
12 sentences or punishing abuses of authorities fell behind this other main goal. As
13 usual, the same legal norms that gave so much room for interpretation and thus [46], (
14 were a significant tool of power for local authorities, gave reason to everybody
15 and nobody in disputed arguments and cases. A rather unstable equilibrium
Lines:
16 of power was maintained while the Council of Indies received more and more
17 requests for settling certain issues among porteño high-ranking authorities. ——
18 While controversies between audiencia and viceroy preceded similar dis- 0.0pt
———
19 putes between judicial magistrates and executive authorities during the early
Norma
20 independent period, colonial alcaldes took control of a key instance of the
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21 criminal process: the sumario, which collected the initial information of a case.
22 By reading these first pages anybody could anticipate what the alcalde was
23 going to rule. The importance of this early stage in the penal process was also [46], (
24 highlighted by the accusing testimonies of gente decente and their weight in the
25 final resolution of the case. Sumario writing provided an important power tool
26 for those who controlled it, colonial alcaldes first and police comisarios from
27 1820 on.
28 The Audiencia of Buenos Aires has been seen as the great moderate tri-
29 bunal from late colonial times. The intervention of the tribunal in homicide
30 cases though has shown that this was not always the case. It is true that the
31 audiencia mitigated the extremely harsh punishment applied by the alcaldes de
32 la Santa Hermandad in the Buenos Aires countryside. But tribunal members
33 were concerned about public safety and criminality in the capital city and they
34 did not hesitate to use their power to try to solve this problem through the
35 sentences.
36 The stereotype of ignorant, dangerous lower classes can be seen in the testi-
37 monies of defense lawyers and prosecutors. The former used these stereotypes
38 for suggesting that the defendants did not understand the criminal nature of
39 their behaviors due to low intellectual skills. The latter applied the same notion
40 to request harder retributions. The calidad of the defendant was always an issue
1 in colonial criminal justice for it was thus written in Spanish laws. Members
2 of the plebe urbana, or Buenos Aires lower classes, were the usual suspects of
3 colonial authorities. Although legal torture for getting a confession was not
4 frequently used in colonial Buenos Aires, it did not mean torture was not used
5 if judicial officials considered it necessary.
6 Viceroyal Buenos Aires was different from colonial Mexico. Michael Scar-
7 daville has studied how Mexican authorities implemented a successful policy of
8 social control through a series of intermediate tribunals and lower magistrates.
9 Consensus and everyday contacts between judicial officials and individuals pre-
10 vailed in this example from New Spain. In contrast, Buenos Aires lower classes
11 did not have enough judges or tribunals to go to. The alcalde was the visible [Last Page]
12 authority on legal matters. Once an alcalde or one of his lieutenants wrote the
13 names of some people in any auto cabeza de proceso, these members of the [47], (20)
14 urban plebe realized they had much more to lose and almost nothing to win if
15 accused of committing a crime. Understanding that his fate was already sealed,
Lines: 257 to
16 pardo Gregorio Videla was crystal clear on this point. When the alcalde who
17 arrested him asked the pardo a few questions while writing his report, Videla ———
18 replied: “put down whatever you want to.”71 283.58002
———
19
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20
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21
22
23 [47], (20)
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
1
2
3
4
5 4. Changes and Continuities in Criminal Law after 1810
6
7
8
9
10 A constitutional convention gathered in the city of Santa Fe a year after the fall
11 of the Juan Manuel de Rosas regime in 1852. All the provinces but Buenos Aires,
[First P
12 separated from the Argentine Confederation at that time, were represented. On
13 May 1, 1853, the convention approved the national constitution. 1 A legal tract [48], (
14 entitled “Bases y puntos de partida de la organización política de la República
15 Argentina,” written by the eminent jurist Juan Bautista Alberdi, inspired the
framers of the 1853 constitution. 2 In this work, as well as in other political Lines:
16
17 texts at that time, the changing juridical framework that prevailed in Argentina ——
18 from 1810 to 1853 was defined as intermediate law. By using this term, Alberdi -0.20
wanted to emphasize the provisional character of the law during those years, ———
19
placed between colonial law and the post-Rosas constitutional organization of Norma
20
Argentina. 3 PgEnd
21
The conceptual innovations introduced by legal historians like Ricardo Lev-
22
ene during the first half of the twentieth century challenged Alberdi’s idea
23 [48], (
of an 1810 to 1853 intermediate period in the legal history of Argentina. Levene
24
supported the existence of an Argentine patriotic law (derecho patrio argentino),
25
born with the first junta that overthrew Viceroy Cisneros on May 25, 1810. 4 He
26
defined patriotic law as precodified law to distinguish it from the legal organi-
27
zation and codification that took place during the second half of the nineteenth
28 century.
29 Other historians, like Sigfrido A. Radaelli, agreed with Levene. There were
30 certain continuities with colonial law, he argued, but at the same time the
31 beginnings of a new legal tradition, one with a personality, created the juridical
32 conditions for later codification efforts. 5
33 More recent historiography challenges this interpretation. According to José
34 Carlos Chiaramonte, the basic and erroneous premise behind the patriotic law
35 historical approach is to assume the existence, after 1810, of an Argentine or even
36 a Río de la Plata nation. The emergence of a nation (in the modern sense of the
37 word) was a long-term and complex process of conflict and negotiation among
38 diverse political entities (cities and eventually provinces). 6 Even the provincial
39 and Spanish American forms of political identity had better defined profiles in
40 1810 than the national one. 7
changes and continuities in criminal law 49
1 The nature of that process can be better understood by analyzing the emer-
2 gence of new state forms in specific contexts. These new state forms were also
3 the result of the adaptation of their colonial predecessors. A colonial city like
4 Buenos Aires, for example, following the Spanish legal tradition, was defined
5 as a state in itself. After 1820 the province of Buenos Aires was born and many
6 institutional changes adopted at the city level also included a provincial dimen-
7 sion. 8
8 The formation of a national penal system followed these patterns as well. For
9 the administration of criminal justice in Buenos Aires, the 1810–53 period was
10 intense in terms of adaptation of colonial norms and institutional experimen-
11 tation. Hence, it is significant to study the legal framework of the first decades
12 after independence in order to understand the nature of that transition, not
13 [49], (2)
by looking at an entire changing state but by focusing on the evolution of a
14 particular state form: the administration of criminal justice.
15 This chapter analyzes post-1810 changes and continuities in the legal context Lines: 48 to
16
of the emerging penal system of Buenos Aires. First, it explains continuities
17 ———
from the colonial period in terms of the legal architecture and penal typologies. 13.0pt Pg
18
Then, institutional changes in the judicial system and the application of new ———
19
legal procedures are examined. Next, it offers a description of how colonial Normal Page
20
penal-legal practices were adapted to a postindependent scenario where political * PgEnds: Ejec
21
instability challenged the mechanisms of urban social control that colonial
22
authorities used to apply. Finally, it takes the example of Visitas de Cárceles (jail
23 [49], (2)
inspections) and explains its transformation from colonial to republican penal
24
practice.
25
26 Continuities of Colonial Criminal Law
27 Emphasis on continuities of the colonial legal system after May 25, 1810, varies
28 according to diverse historiographical perspectives. On the one hand, some
29 historians criticize the shortcomings of the 1810 revolution in Buenos Aires, but
30 they recognize that the movement for independence represented a clear point
31 of departure (even in legal terms) from colonial domination. 9 Legal historians,
32 on the other hand, describe the beginning of a new legal tradition (derecho
33 patrio) but also stress continuities with the colonial past. According to the
34 latter, exemplified by Ricardo Zorraquín Becú, the revolutionary act of replacing
35 Spanish audiencia members with criollo judges on June 22, 1810, for example,
36 followed legal procedures established by the 1680 Recopilación de las Leyes de
37 Indias. 10
38 Between these two perspectives, a contradictory stage of legal continuities
39 and institutional experimentation can be recognized. First, new republican
40 political and judicial discourse emerged. Defense attorneys, for example, intro-
50 changes and continuities in criminal law
1 duced innovative legal notions in their written statements for criminal cases.
2 Judicial decisions, one of the them argued, must be based on concrete evidence
3 “so that human rights can be preserved,” while another argued that if there is
4 not certainty in the verdict then it is better to avoid the punishment, because “in
5 criminal suits, the evidence must be as the noon light, and it is more righteous
6 and sacred that the guilty remains free without penalty than the innocent be
7 condemned.”11
8 Although republican discourse flourished in the words of the literate elite
9 after 1810, the revolutionary junta soon defined the limitation of its practical
10 consequences. Less than one month after its establishment, the junta issued a
11 Decree of Public Safety in response to a verbal aggression against the fiscal del
12 crimen in Buenos Aires (prosecutor in criminal cases). In the decree, the gov-
13 ernment made clear that the proclaimed freedom did not include challenging [50], (
14 the new authorities: “If somebody who attacks another is guilty of breaking
15 the principles of social order, to what extent will the penalty of the crime be
Lines:
16 increased if it is committed against a respected magistrate?”12
17 Political instability and social unrest in Buenos Aires, together with the evo- ——
18 lution of the independent movement, undermined the power of the 1810 junta 0.0pt
———
19 and its successors. This situation attenuated the persuasive capacity of the decree
Norma
20 of public safety. There were other decrees that attempted to end revolutionary
PgEnd
21 activity by law. After the proclamation of independence of the Provincias Unidas
22 del Río de la Plata on July 9, 1816, and when the war for independence was far
23 from over, an executive resolution was passed trying without success to enforce [50], (
24 the idea of “the end of revolution, beginning of order.”13
25 The initial stages of the 1810 revolution set the political context for conti-
26 nuities in the colonial legal framework. 14 Besides the appeals for the reestab-
27 lishment of public order and respect for authority, the first juntas declared
28 themselves as protective of King Ferdinand VII’s rights while he was kept im-
29 prisoned by Napoleon. Thus, there was no explicit legal statement abolishing
30 colonial law in general terms. The reglamento of 1811 confirmed the division of
31 powers sanctioned by the first junta the year before, stating that the judiciary
32 would follow the previous “general laws, municipal norms, and bandos” for
33 their resolutions. 15 Changing situations in the European political panorama
34 forced criollo leaders to be more explicit about their desires for independence,
35 but that decision did not involve the end of the colonial legal framework. On
36 the contrary, an 1817 provisional reglamento, enacted less than one year after
37 emancipation was officially proclaimed in the province of Tucumán, specifically
38 declared the continuity of colonial law in general terms until a future consti-
39 tution changed that legal order: “Article 2. All the legislative codes, cédulas,
40 laws, and other general and specific norms of the former Spanish government
1 will remain obligatory until the constitution takes a resolution on this matter.
2 These laws will be enforced unless they are in direct or indirect opposition to the
3 liberty and independence of these provinces, to this reglamento, and to other
4 laws passed after May 25, 1810, that do not contradict it.”16 Despite this explicit
5 statement on legal continuity in all branches of the law, there were also changes
6 and adaptations as the local elite tried to find a postindependent political profile
7 that could appeal to other groups in that fragmented society. 17
8 Modifications of descriptive penal types included in the Siete Partidas were
9 not a priority among those seeking to forge the postindependent penal system
10 in Buenos Aires. Criminal cases like homicides, sexual assaults, or robberies
11 were legally interpreted according to what the Seventh Partida said about them.
12 Nonetheless, in the everyday correspondence among judges, appeals courts,
13 [51], (4)
and executive officials it is possible to detect the emergence of a more abstract
14 penal typology that eventually became a central characteristic of the modern
15 penal codes. An 1836 report by Miguel de Villegas from the Cámara de Justicia Lines: 73 to
16
(appeals court in Buenos Aires) to the Ministro de Gobierno (Secretary of
17 ———
Interior for the Buenos Aires Province), for example, informed that the defen- 13.0pt Pg
18
dant Guillermo Thomas was held in jail under the charge of aggravated assault ———
19
(hurto calificado). 18 This new penal type defined a crime regardless of who was Normal Page
20
the criminal, which represented a departure from previous criminal typologies * PgEnds: Ejec
21
where the definition of many criminal acts varied according to the social status
22
of its author.
23 [51], (4)
Political leaders, jurists, and legislators in Buenos Aires realized the challenge
24
of keeping social control. They tried to face it, however, by mainly regulat-
25
26 ing procedural aspects of the administration of criminal justice. Porteño elite
27 postponed the systematization of penal ideas in a new criminal code until a
28 constitution was passed. The former French judge Guret Bellemare, who spent
29 a few years in Buenos Aires, presented one of the few proposals for a penal
30 code. The project was debated in the national library on November 16, 1822.
31 Although the original draft is lost, the meeting was covered by the newspaper
32 El Argos, a supporter of reformer Bernardino Rivadavia. 19 On that occasion, the
33 significance of Bellemare’s code was recognized by the audience, but El Argos
34 also asserted that the merits of a work “that addresses such an important issue
35 with profound ramifications can not be evaluated on a first reading alone,” thus
36 postponing the debate over a criminal code once again. 20
37 There were other attempts to systematically review the basic norms and
38 regulations of criminal justice after independence. Every once in a while the ex-
39 ecutive power in turn requested that the appeals court in Buenos Aires (Cámara
40 de Apelaciones and later on Cámara de Justicia) recommend better ways to
1 modify colonial penal law. The main reason behind these requests, as governors,
2 ministers, and other executive officials explained in their notes, was to put an
3 end to the increasing levels of criminality that were reported in the city. 21 Thus,
4 the reason for promoting these changes was the need to reinforce urban social
5 control rather than to facilitate the debate over a new criminal code.
6 Judges responded to these requests by avoiding plans for extensive reforms.
7 They preferred to maintain the basic structure of colonial criminal law until
8 a complete revision could be made. By doing this, they wanted to retain the
9 monopoly of interpreting law before the new executive branch could consolidate
10 its influence and power over legal issues. This approach was clearly expressed
11 by the president of the Tribunal de Justicia and director of the academia de
12 jurisprudencia, Manuel Antonio de Castro. The most systematic attempts to
13 modify criminal procedural laws were made during the 1820s, and Castro was [52], (
14 one of their supporters. These changes, however, were conditioned by other
15 institutional transformations. As Castro pointed out to the executive branch
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16 of the provincial government in 1822, in one of these attempts at reform, the
17 Tribunal de Justicia,“has carefully avoided the introduction of substantial inno- ——
18 vations [to the current penal system] because every partial reform on this issue 0.0pt
———
19 has the risk of altering or modifying the legal system without improving it.”22
Norma
20 Castro also expressed concerns of the judiciary regarding certain modifica-
PgEnd
21 tions proposed by other branches of the government. He was not a defender of
22 the colonial legal order but, as we have seen, members of the judiciary like him
23 did prefer to continue using it as a frame of reference instead of endorsing partial [52], (
24 reforms. After reviewing certain proposals the provincial government sent to
25 the tribunal, Castro criticized them by responding, “Regarding criminal justice,
26 the Tribunal tried to balance all the rights of individual security with the needs
27 of public justice. The Tribunal also calls the attention of the government to the
28 legal reasons that the executive branch had in proposing some special articles.
29 “[In our opinion, these articles] neither were parts of ancient laws nor were
30 included in our previous reglamentos.”23 In everyday practical issues concern-
31 ing judicial cases, however, judges had to apply a combination of both colonial
32 norms and new regulations passed by executive and legislative authorities.
33 Members of the judiciary emphasized the establishment of legal foundations
34 for any proposed change in the laws as a way of reinforcing their diminished
35 authority before other officials. In a dispute with the Buenos Aires police depart-
36 ment over the way judicial orders were going to be enforced, juez de paz (justice
37 of the peace) José Perez, from the Catedral al Sur neighborhood, responded to a
38 notification from the provincial government proposing some changes, by argu-
39 ing that those changes went “against the [legal] order established until now.”24
40 Judicial authorities realized the difficulty of applying colonial criminal law to
1 a changing society. Furthermore, they recognized that these laws contradicted

2 an emerging republican judicial discourse. Summarizing the difficulties found
3 in trying to apply colonial laws to early republican criminal cases, the Tribunal
4 de Justicia stated in 1825 that, “in particular regard to criminal law, each legal
5 step of [the Tribunal] was risky and uneasy. Many of the penal laws enforced
6 today are not adaptable to the current stage of our civilization, to our form of
7 government, and to the nature of the crimes.”25
8 Although appeals judges were aware of the problem of trying to apply colo-
9 nial legislation after independence, they opposed partial legal changes that cre-
10 ated, they argued, more confusion. Judicial magistrates usually recommended
11 procedural adjustments but refused to structurally modify the penal system
12 before the sanction of a constitution. Thus, after pointing out the lack of legal
13 coherence in the administration of criminal justice as part of the aforemen- [53], (6)
14 tioned report, the Cámara also recognized that, although the elimination of
15 these inconsistencies “cannot be accomplished now by substantially changing
Lines: 92 to
16 and altering the legal forms and procedures without reforming the whole crim-
17 inal code, at least this can be partially done by avoiding the delays that the ———
18 judicial practice has shown as vicious and perhaps superfluous.”26 0.0pt PgV
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19 Beyond explicit legal continuities stated by early republican legislation and
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20 the concern of the judiciary regarding the transition from the colonial legal
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21 framework to a national one, the dynamic political situation that began in 1810
22 offered countless opportunities for the modification of these laws. 27 Nonethe-
23 less, penal typologies as defined in the Seventh Partida remained virtually un- [53], (6)
24 touched until the second half of the nineteenth century. In parallel, the processes
25 of adaptation and institutional experimentation focused primarily on those
26 organizational and procedural aspects that survived long enough to become
27 permanent features of the modern penal system of Argentina.
28
29 Institutional Experimentation during the Early Independent Period
30 In the conclusion of their study of colonial audiencias, Mark Burkholder and D.
31 S. Chandler pointed out that the ultimate test for members of those tribunals
32 came with independence. They represented, in the eyes of the revolutionaries, a
33 symbol of the colonial government and as a consequence of that, criollo juntas
34 soon replaced them after the overthrow of the viceroys. 28
35 Criollo judges replaced Spanish members of the colonial audiencia of Buenos
36 Aires immediately after the first junta was established in May 1810. The audiencia
37 as an institution survived until January 1812, when a new reglamento of the
38 administration of justice replaced it with a Cámara de Apelaciones. 29 From
39 then on, the new tribunal acted as an appeals court for civil and criminal cases
40 originating in the city of Buenos Aires (as well as in the province of Buenos
1 Aires after 1820). The emergence of other provinces that organized their own
2 appeals courts reduced the jurisdiction of the Cámara, which never enjoyed the
3 ample territorial jurisdiction and power of the colonial audiencia.
4 The Supreme Court of Argentina was not established until 1862. In the
5 meantime, the first junta and subsequent executive authorities in Buenos Aires
6 retained the right to review judicial cases that during the colonial period had
7 been subjected to the revision of the Council of Indies in Spain. The first
8 reglamento that described the procedures to follow in those appeals cases and
9 granting executive authorities intervention in those judicial matters was passed
10 in 1811. Despite proclaiming a division of power, the new legal order provided
11 for direct participation of the executive branch of government in the resolution
12 of judicial cases, as happened during the colonial period. During the following
13 decades, various criollo political regimes established special tribunals for these [54], (
14 cases but under the direct supervision of the executive chief of the Buenos Aires
15 province. 30 Since there was no supreme court at that time, the final resolution
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16 of many criminal cases was taken by executive authorities. This was not only
17 true for cases of extraordinary appeals described previously but also for many ——
18 regular cases. 31 0.0pt
———
19 Regarding lower judicial magistrates (primera instancia), the administration
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20 of criminal justice continued in the hands of the alcaldes of the local cabildo
PgEnd
21 until 1821. The cabildos of Buenos Aires and Luján were abolished that year
22 as part of the reforms conducted by Minister Bernardino Rivadavia and were
23 replaced by two judges of the first instance (jueces de primera instancia), one [54], (
24 for civil suits and the other for criminal cases. 32 In addition, a justice of the
25 peace (juez de paz) for each neighborhood (parroquia) of the city was named. 33
26 On November 22, 1824, the government suppressed the judges appointed to
27 the Buenos Aires countryside (campaña bonaerense) leaving only justices of
28 the peace to administer justice outside Buenos Aires. Within the city, ordinary
29 judges dealing with criminal suits coexisted with justices of the peace who
30 intervened at the beginning of the judicial process. This continued beyond
31 Rosas’s fall. 34
32 Other institutional experiments also diminished the power of the judiciary.
33 For example, a few months after the executive triumvirate passed the reglamento
34 of 1812 for the administration of justice, another decree created a justice commis-
35 sion (comisión de justicia). The original reglamento described the functions of
36 the appeals court that replaced the audiencia and established specific procedures
37 guaranteeing the individual rights of the citizens. However, the justice commis-
38 sion had more concrete functions, like “to evaluate the specific circumstances
39 of the criminal cases of robbery pending judicial resolution as well as those
40 that henceforth are committed in the city and adjacencies, [so that they] can
1 be solved by this committee summarily and in the shortest period of time. The
2 commission will proceed to judge and to sentence those cases without any delay,
3 in a way that can serve as exemplary punishment for the criminals. In order to
4 do that, the commission is granted with maximum power of this government.”35
5 The institutional life of this commission was short (it was abolished in 1817), but
6 other special commissions or judges were designated by the executive branch
7 of the government to deal with criminal cases or the prosecution of certain
8 felonies. In February 1830, for example, Colonel D. Gervacio Rosas, (brother of
9 governor Juan Manuel de Rosas) who did not have experience on legal matters,
10 was appointed to judge cases of robbery, applying an oral procedure. 36
11 The urgent need to solve the problem of social disorder in Buenos Aires
12 both coexisted and conflicted with the debates over the reorganization of the
13 judiciary. Criollo lawmakers realized the importance of this issue early on, [55], (8)
14 justifying changes by arguing that “complicated and numerous tribunals, insti-
15 tuted to place and to maintain despotic agents in the highest position and to
Lines: 110 to
16 keep the provinces in an oppressive dependency are no longer suited to a free
17 and virtuous people. There is no public happiness without a good and simple ———
18 administration of justice.”37 0.0pt PgV
———
19 The reglamento of 1812 proposed to “restore the depressed authority of the
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20 ordinary judges” as well as “to prevent conflicts by the mediation of a tribunal
PgEnds: TEX
21 of reconciliation composed of good men.”38 As the first comprehensive insti-
22 tutional experiment related to the administration of justice, the reglamento
23 prompted an important debate in Buenos Aires. The newspaper El Censor, for [55], (8)
24 example, devoted several issues to criticizing this piece of legislation. Emphasiz-
25 ing the general inconvenience of introducing changes to the legal order before
26 the constitution was passed, the publisher Vicente Pazos Silva (or Pazos Kanki)
27 pointed out that “these [institutional] acts should follow the constitution rather
28 than anticipate it; they should take our customs and practices into account
29 rather than trying to direct them. On the one hand, there is nothing more
30 natural for a government than the desire of reaching the common good but
31 on the other hand, there is nothing more difficult than to select the means to
32 assure that common good. . . . Instituting the administration of justice before
33 constituting the state is to place the effects before the causes.”39
34 Another criticism leveled at the reglamento concerned those changes in ju-
35 dicial procedure that, representing a clear point of departure from its colonial
36 counterpart, undermined the role of jurists and lawyers in judicial cases. Article
37 35 of the reglamento “reinstalled” the right of any man to exercise his own legal
38 defense without representation by a lawyer (letrado). Pazos Silva and others
39 (including Manuel Antonio de Castro a few years later) disagreed. Members
40 of the legal profession did not want the judicial system opened to the partic-
1 ipation of neophytes (justicia lega). Article number 35 as well as others, like

2 number 13, that constituted the Cámara de Apelaciones with three lawyers and
3 two neighbors (vecinos), however, were leaning in that direction. Interestingly
4 enough, El Censor criticized this trend presenting it as contradicting colonial
5 law: “Article 35 can be divided in two parts that are coherent only in appearance.
6 In the first part the Article restored the right to self-defense while in the second
7 part prohibited a mandatory signature of a lawyer in these cases. The first [part]
8 follows Law 8, Title 24, Book 2 of the Law of Indies as well as others from Castile;
9 but the second [part] contradicts the same law.”40
10 During those years of intense institutional experimentation, individual
11 rights and procedural guarantees in penal cases were included in numerous
12 laws, but not respected many times. Laws and reglamentos after 1810 reflected
13 the tension between the consideration of republican principles, the practical [56], (
14 need to reorganize the judiciary, and the establishment of specific social con-
15 trol policies. In legislation that enunciated general principles were significant
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16 examples of how notions of individual guarantees and rights of the “citizens”
17 blossomed in the political and judicial discourses after 1810. An 1811 Decree ——
18 of Individual Securities already enumerated those principles that would be 0.0pt
———
19 consecrated later in the 1853 national constitution (Article 18). That same
Norma
20 decree established, however, certain exceptions due to historical/political cir-
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21 cumstances. The principles consecrated in that decree, as it stated, could be
22 temporarily suspended in case of internal turmoil. 41 These types of exceptions
23 were quite common in nineteenth-century constitutions but, in the case of the [56], (
24 Río de la Plata region as well as in other places in Latin America, the exception
25 became more and more the rule itself. 42
26 The Assembly of 1813, whose legislative activity continued during the follow-
27 ing years, debated a project for the organization of a supreme judicial power. Fo-
28 cused mainly on defining the profile of that judicial power, the project described
29 it as “independent” and the only one responsible for judging and applying the
30 law. Moreover, Article 5 granted life tenure to judges as long as they did not
31 commit any crime or felony. Members of the tribunal, nonetheless, were going
32 to be selected by the executive power, which represented a limitation of the pre-
33 viously consecrated judicial autonomy. 43 Once again, political circumstances at
34 that time prevented this proposal from passing and the Assembly only approved
35 certain modifications to the 1812 reglamento. 44
36 Another important provisional reglamento, approved in 1817, intended to
37 serve as a temporary constitution, defined the composition and organization
38 of the appeals courts. The provinces later adopted organizational and juridical
39 aspects of this reglamento. Thus, although a national state did not exist during
40 the first decades after independence, the results of many institutional experi-
1 ments that took place in Buenos Aires during those years were later adopted
2 in other regions of a future Argentina. 45 This reglamento, like so many other
3 pieces of legislation from the early independence period, reflected the tensions
4 between the advocates and detractors of colonial law as well as the disparities
5 between republican discourse and political and social realities. In the chapter
6 dedicated to judicial power, the reglamento stated that “the administration of
7 justice will follow the same principles, order, and method that were applied until
8 now according to the laws and the following provisions.”46 It also confirmed
9 the individual and procedural guarantees of the defendants. Furthermore, the
10 reglamento conceded the right of the accused (reo) to also name a sponsor or
11 padrino besides the lawyer to be present during the defendant’s confession and
12 during the testimony of the witnesses. These types of legal innovations reflected
13 a trend, which would later fade, of incorporating people who had no formal [57], (10)
14 legal training into the judicial criminal process. 47
15 Another example of the overlap of colonial and nineteenth-century legal
Lines: 122 to
16 trends in the reglamento relates to judicial sentencing. Article 13 established
17 that judges should pronounce their verdicts following “the explicit text of the ———
18 law.” By emphasizing this requirement, the authors of the reglamento wanted 0.0pt PgV
———
19 to avoid the colonial judicial practice of adjudicating cases based on a personal
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20 appreciation of the facts, without specifying the law or laws employed to render
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21 a verdict (arbitrio judicial). The same authors realized, however, that it was
22 not always clear which “text of the law” criollo judges should apply. Article 14
23 admitted that “the laws that authorize the imposition of penalties according to [57], (10)
24 the prudent arbitrio of the judges, considering the nature and circumstances
25 of the crime, are not abolished.”48 Thus, legal innovations were many times
26 neutralized by other provisions.
27 During the first decades after independence, constitutional conventions
28 dominated by porteño supporters of a centralized political regime (unitarios)
29 passed two different constitutional drafts. 49 Interior provinces where caudillos
30 and political leaders favored the creation of a federal political regime with ample
31 regional autonomy (federales) rejected those drafts. 50 These two constitutions
32 of 1819 and 1826 envisioned a Supreme Court (Alta Corte or Suprema Corte de
33 Justicia) as the pinnacle of the judiciary arm of the state, making no reference
34 to other organizational aspects of the judiciary. 51 Thus, the legal architecture of
35 the emerging penal system in Buenos Aires was mainly based on legal fragments
36 included in specific reglamentos, decrees, and norms instead.
37 Institutional experimentation continued unabated during the 1820s. Besides
38 the reorganization of the lower stages of the administration of justice with the
39 abolition of the cabildos and the appointment of judges, the provincial legisla-
40 ture (sala de representantes) abolished the use of personal fueros in criminal and
1 civil judicial cases. The idea behind the elimination of the colonial fueros was
2 to reconcile political legislation with the legal principle of equality before the
3 law. The law signaled a departure from one of the basic juridical principles of
4 colonial legislation, that is, members of colonial society were judged according
5 to their social status, ethnicity, and occupation. However, the change was not
6 complete. In this particular case, provincial law made exceptions for members of
7 the clergy and the military. Although priests and military officers did not enjoy
8 the same kind of ample protection that the colonial fueros afforded them, many
9 judicial cases involving soldiers and clerics continued to fall under ecclesiastical
10 or military jurisdictions.
11 According to a series of laws passed in 1823, both ecclesiastical and military
12 fueros were abolished first, then somehow revived, and then restricted. 52 When
13 members of the urban militia and military personnel were accused of crimes, [58], (
14 judicial magistrates tried to judge them under ordinary criminal jurisdiction
15 but not without stiff resistance from high-ranking military officers. Although
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16 commanders and military officers did not deny that their subordinates may have
17 committed a crime, they certainly prevented judicial authorities from arrest- ——
18 ing them by keeping them inside the military garrisons. 53 While soldiers were 0.0pt
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19 not handed over to the judges despite formal judicial requests, commanders
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20 continued to send them out on specific military assignments without notifying
PgEnd
21 judicial authorities. After ordering the police to arrest Manuel Pagola, accused
22 of various crimes, judge Domingo Guzmán soon learned that the general in-
23 spector of the army “suspended” the order. Furthermore, the general inspector [58], (
24 assigned Pagola to the military campaign in Uruguay under the command of
25 General Martín Rodríguez. 54
26 The president of the appeals court during the 1820s, Manuel Antonio de
27 Castro, reported the problem to the executive authorities for their consideration.
28 He pointed out two issues. The first one, as the previous example indicates,
29 involved military personnel accused of committing crimes, whose commanders
30 had reassigned them to other regions without judicial authorization, or who
31 had simply disappeared. The second issue was a result of the militarization that
32 began in Buenos Aires during the late colonial period. “If all, or almost all,
33 citizens belong to the civic militia now [Castro exaggerated], it would be useless
34 to have a public jail. Military garrisons would eventually become penitentiary
35 institutions.”55
36 Castro emphasized this second issue because many people who did not be-
37 long to the military but who participated in their activities claimed the military
38 fuero if accused of a crime. Thus, judges had problems prosecuting not only
39 military men, but also militiamen or even people connected to military circles.
40 If the accused got the protection of a commander, as a criminal judge pointed
1 out, they could live inside the garrison instead of inside the public jail while
2 waiting for the resolution of their cases. These defendants actually continued
3 performing military duties as well as even “going out at night.”56 Although a
4 series of laws passed in 1823 limited fuero privileges in the military, executive
5 authorities did not want to upset them by enforcing judicial resolutions. Besides
6 acknowledging the authority of the judge in criminal trials while keeping the
7 accused under military “protection,” high-ranking military officers found other
8 ways to take advantage of the legal system. Like police comisarios, military of-
9 ficers realized that the formation of the sumario provided a good opportunity
10 to manipulate the expediente in its early stages. Commanders participated in
11 writing sumarios in some criminal cases, including many in which subordinate
12 personnel were involved. 57
13 [59], (12)
There were attempts to redefine the role of the military at the end of the wars
14 for independence. On the one hand, due to internal political turmoil, executive
15 authorities relied on them to suppress eventual protests and political enemies, Lines: 134 to
16
tolerating, on the other hand, the continuity of some of their legal privileges. 58
17 ———
On one occasion, an alcalde had to go to Agustín Arenas’s house in order to 13.0pt Pg
18
receive his testimony. Arenas, teniente coronel from the regimiento de dragones, ———
19
did not respond to the judicial summons, “because it bothers him to give his Normal Page
20
testimony at the court room.”59 * PgEnds: Ejec
21
Judicial officials (especially lawyers) and military men did not get along very
22
well. Paradoxically, they needed each other many times throughout Argentine
23 [59], (12)
history. Lawyers and jurists contributed to create a postcolonial viable legal
24
order, while the military enforced it and eventually guaranteed it. Military men
25
26 perceived lawyers in particular as taking advantage of their specific knowledge
27 to avoid public duties. The rhetoric of defending and consolidating both in-
28 dependence and internal peace, personified by the military, called for personal
29 sacrifices. Holders of public office in the judiciary, according to the military,
30 were expected to perform other more practical services to Buenos Aires and the
31 United Provinces of the Río de la Plata.
32 Porteño lawyers who tried to avoid participation in the urban militia only
33 reinforced the military’s negative portrayal of the legal and judicial professions.
34 In 1821 the appeals court supported the city lawyers’ petition of exemption from
35 any military service. The military commander’s strong reply in the Cuerpo del
36 Orden recommended the denial of such a request. He wondered, “what kind of
37 public service are they performing [to claim such an exemption]?”Furthermore,
38 he described the petition as egotistical, and he defined the petition’s supporters
39 as “criminals who do deserve neither the assistance of the government nor the
40 type of recognition the fatherland gives to those who serve it well.”60
1 Partial modifications of the laws also reflected changes in political circum-

2 stances during those decades. Since a “national” constitution was still being
3 debated in the convention, politicians legislated from certain principles that
4 would eventually be incorporated into future laws. While judicial magistrates
5 in the Tribunal de Justicia objected to these fragmented modifications of the law,
6 politicians like Bernardino Rivadavia defended the usefulness of these institu-
7 tional experiments. He responded to criticisms of the 1822 law on fueros, passed
8 under his sponsorship as a member of the provincial government, by arguing
9 that “only the sanction of all the codes needed to complete the legislation in the
10 country will solve these inconveniences. However, the ability and dedication of
11 the magistrates as well as their cooperation with the government will help to
12 fulfill [the spirit of] this law [on fueros] that should be very influential in the
13 improvement of the [future] codes. These legal norms will illuminate, facilitate, [60], (
14 and speed the writing of those codes.”61
15 Although many of these laws and decrees were short-lived or not completely
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16 enforced, they illustrated the kinds of tensions created between continuities
17 from colonial law and legal variants introduced after independence. By the ——
18 early 1830s more changes in criminal law and the reorganization of the judiciary 0.0pt
———
19 were proposed. Other circumstances prevented them from being approved and
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20 implemented, as happened to the reform of the administration of justice in
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21 Buenos Aires submitted in 1833, which the provincial legislature did not pass.
22 The proposal prevented any authority but the judiciary from exercising judicial
23 duties. It was basically a ratification of the legal principles and organizational [60], (
24 forms that were debated and included in previous reglamentos. But in 1835
25 political turmoil and instability prompted the return of Juan Manuel de Rosas
26 as governor with extraordinary powers (facultades extraordinarias). 62 He then
27 remained in office until February 1852. The proposal directly collided with
28 Rosas’s practice of personal intervention and resolution of judicial cases. Thus,
29 special judges and alternative judicial practices continued to coexist with these
30 other legal norms for a long time. 63
31
32 Adaptation of Colonial Penal Practices after 1810
33 Once the Río de la Plata region achieved the goal of independence from Spain,
34 Buenos Aires’s new leaders faced the daunting task of consolidating power and
35 restoring order under difficult circumstances. In order to take credit for curbing
36 urban crime, political groups had to produce results. Passing laws and debating
37 strategy were not enough. One way to achieve these results was to exercise pres-
38 sure over the judicial authorities to accelerate the resolution of criminal cases.
39 In a decree issued on March 1, 1814, for example, the government recommended
40 that the Cámara de Justicia speed up the process of resolving judicial cases
1 by working the required number of hours stipulated in the 1813 reglamento.

2 If members of the Cámara were extremely busy, the decree stated, they could
3 delegate functions to other magistrates in specific cases until a sentence was
4 ready to be pronounced and then intervene and close the case. 64
5 Although several local administrations insisted upon shortening the judicial
6 process in criminal cases, the judiciary did not accept such proposed changes
7 easily. Moreover, judges argued that they were not responsible for these delays.
8 Tensions on this issue continued during the 1820s and 1830s. In 1833, for example,
9 executive authorities urged once again that the Tribunal de Justicia should
10 “demand that judges on criminal cases simplify procedures and even defenses
11 according to what that court suggested,” but the highest provincial tribunal
12 replied as follows: “the judges reported to this court that, according to their
13 experience, the delays regarding the administration of criminal justice did not [61], (14)
14 come from the judicial stage of the process but from the long period of time
15 that passes from the moment the crime is committed until the information
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16 on the case and the accused are placed under the jurisdiction of the judge.”65
17 The provincial court went on to blame the executive branch of government, ———
18 targeting the police for being responsible for the delays. 0.0pt PgV
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19 As the conflict between the executive and judicial branches of government
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20 evolved, the former experimented with other ways of speeding up the reso-
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21 lution of criminal cases and reshaping the penal system. As happened during
22 the colonial period, criollo executive authorities continued enacting bandos on
23 crime-related issues. But while these colonial local norms addressed procedu- [61], (14)
24 ral aspects associated with misdemeanors, early republican bandos included
25 felonies as well. In other words, these colonial legal instruments were adapted
26 to meet new circumstances and used as a substitute for a more comprehensive
27 legislation that was not yet available. As an 1811 bando explained, the immediate
28 need to stop the crime wave against property pushed local politicians to modify
29 colonial law to solve the problem: “[On the one hand, the government] has
30 stated the obedience to the Law 3, Title 14, Book 2, and Law 5 from the same title
31 and book, of the Novísima [law] recopilada de Castilla. But on the other hand,
32 particular circumstances and the extraordinary situation we are experiencing
33 in this city made inapplicable several articles from this law while others are not
34 sufficient to bring an immediate solution. Hence, the government decrees that,
35 during all the necessary time and until the sanction of another order, everyone
36 who committed a robbery by attacking another person, breaking into a house,
37 or opening illegally a door will be condemned to death and hanged, regardless
38 the goods involved.”66
39 These kinds of norms dealing with felonies proliferated during the following
40 years. During times of intense social unrest and political instability, like the
1 so-called anarchy of 1820, harsh punishments were a common feature in the

2 language of postcolonial bandos. Some executive authorities, who remained in
3 office only for a few weeks, dictated bandos authorizing short oral trials in cases
4 of homicide with only one penalty if found guilty: being shot and hanged. 67
5 Similar types of punishment existed during the Rosas regime. In an 1840 decree,
6 Rosas (called the “restorer of the law”) stated that “the simple verification of
7 the crime will be enough for the criminal to suffer the punishment applied by
8 the supreme authority. . . . Robbery and criminal injuries, even simple ones,
9 are punished with the death penalty.”68
10 Post-1810 bandos, like their colonial predecessors, established regulations
11 and penalties on other issues as well, like carrying weapons. The distinction
12 between knives and firearms was maintained. Carrying the former continued to
13 be considered as a misdemeanor, while possession of the latter was increasingly [62], (
14 punished on the same level as the worst felonies. 69 Citizens could argue that
15 their guns were for personal protection, but political factions in power also saw
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16 gun owners as potential enemies if they joined the opposition. The possession
17 of weapons, gambling, drinking, or misbehaving were included in the bandos ——
18 and punished over and over again by criollo authorities. As another strategy for 0.0pt
———
19 speeding the resolution of judicial trials, early-republican executive authorities
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20 in Buenos Aires applied a short and oral legal procedure in those cases. 70
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21 The repetition of all these norms, decrees, and bandos suggests, once again,
22 tremendous deficiencies in their enforcement. Certainly, the study of laws and
23 decrees in isolation from other social and material variables does not always [62], (
24 provide an authentic portrait of society. The rapid output of penal norms,
25 however, placed many social groups on the edge of breaking the law. Police
26 officials may have struggled to keep pace with so many new laws and regulations,
27 but when confronted with circumstances that allowed them to implement or
28 enforce these new norms, they wielded enormous power.
29 Public safety in Buenos Aires was not an area exclusively dominated by law
30 enforcement agents. As happened during the colonial period, ordinary citizens
31 were expected to help maintain order as well. Alcaldes de barrio continued to
32 do their jobs in the same manner defined by Buenos Aires authorities at the
33 end of the eighteenth century. The revolutionary process, however, opened new
34 opportunities in the political arena for the alcaldes. Political factions in Buenos
35 Aires soon realized the importance of these and other auxiliaries of the police in
36 guaranteeing public order as well as in mobilizing supporters. On April 6, 1811,
37 for example, the executive authorities and the cabildo of Buenos Aires were
38 forced to meet and consider the demands of a group of people who, led by
39 some alcaldes de barrio, gathered at the main plaza. The group was described
40 as follows: “Doctor Don Joaquín Campana, in representation of many Alcaldes
1 de Barrio as well as the crown concentrated in the Plaza [de Mayo], delivered
2 the petition they did to the Superior Government.”71
3 Instructions for the alcaldes de barrio after 1810 were mostly copies of the
4 ones written for them by viceregal authorities in Buenos Aires. 72 Specific mod-
5 ifications associated with the introduction of republican ideals and the char-
6 acteristics of the political process, nonetheless, constituted examples of adap-
7 tation to postindependent circumstances and needs. The city of Buenos Aires
8 became a hotbed for many political conspiracies in the Río de la Plata region
9 during the first decades of the nineteenth century. Although this issue created
10 some concern for colonial authorities, criollo governments were even more
11 sensitive to these actions because their political careers and even their lives
12 were in danger if these attempts succeeded. Recommendations to the alcaldes
13 reflected this preoccupation. They were instructed, for example, to “prevent the [63], (16)
14 propagation of news that can encourage division among the people or distrust
15 toward the government.”73 Major political leaders during those decades like
Lines: 168 to
16 Saavedra, Moreno, Pueyrredon, Rivadavia, and Rosas shared the same fear of
17 being overthrown from government by their political opponents. Associated ———
18 with these types of measures of political control as well as fear of espionage, 0.0pt PgV
———
19 there were instructions and bandos that prohibited foreigners to own a bar
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20 (pulpería). 74
* PgEnds: Ejec
21 While concerns over political conspiracies were already being expressed in
22 late colonial legislation, other modifications constituted innovations intro-
23 duced after 1810. Criollo instructions and bandos, for example, did not dif- [63], (16)
24 ferentiate penalties according to the ethnicity or social status of the defendant.
25 Punishment, following republican legal principles, should be based only on
26 what the defendant did, and not on his or her calidad. As an 1813 instrucción
27 indicated, for example, anyone who committed a misdemeanor should be ar-
28 rested, receiving a penalty “according to what has been done.”75
29 While the guidelines for postindependence alcaldes remained virtually iden-
30 tical to their colonial counterparts, their role as police auxiliaries changed.
31 Besides reflecting a more visible profile, the alcaldes de barrio became assistants
32 of the police after this force was organized in Buenos Aires. During the colonial
33 period, neighbors appointed as alcaldes de barrio reported to the alcalde de
34 primero y segundo voto of the local cabildo, who exercised judicial functions in
35 the first instance. As an urban police force was created and judges (jueces de
36 primera instancia en lo criminal) replaced cabildo judicial officials after 1820,
37 the alcaldes de barrio were redefined as auxiliaries of the police and subordi-
38 nated to the Chief of the Police (Jefe o Intendente de Policía de Buenos Aires).
39 Complexities in the sphere of urban law enforcement multiplied the presence
40 of police auxiliaries during subsequent decades. 76
1 During both late colonial and early national periods, bandos attempted to
2 regulate everyday life in the city. Certain forms of popular entertainment that
3 followed the Catholic liturgical calendar, like Carnaval, continued to obsess ur-
4 ban authorities and constituted another example of continuities and adaptation
5 of local colonial regulations after 1810. At the same time, partial or unsuccessful
6 enforcement demonstrated that the urban population of Buenos Aires was not
7 going to give up one of its favorite forms of entertainment. People continued
8 celebrating Carnaval during the days leading up to Ash Wednesday. Even today,
9 Argentines would be surprised to know that they are committing an illegal act
10 when playing water games before the start of the Lenten season. They proba-
11 bly do not know that on February 22, 1844, Governor Juan Manuel de Rosas
12 abolished Carnaval games “forever.”77
13 [64], (
14 Laws versus Procedures
15 Early republican disputes over the colonial practice of periodic jail inspections
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16 by judicial authorities offer an example of the type of conflicts and adaptation
17 that took place during the early stages of the formation of the modern penal ——
18 system in the Río de la Plata. In the colonial period, audiencia members visited 0.0pt
———
19 local jails. As an 1801 Real Cédula stated, these inspections were conducted
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20 to establish why people had been arrested. Follow ups of the inspections by
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21 prosecutors, judicial notaries, and attorneys for the defense, helped to solve
22 specific issues concerning inmates. 78
23 The viceroy, audiencia members, and other judicial officials also participated [64], (
24 in regular inspections the day before Easter and Christmas. The purpose of these
25 visits was to liberate people who had been arrested for debts (or sometimes
26 misdemeanors). They were released with the condition of remaining in the city
27 for a certain period of time. A bail was set in each case as well. Family members
28 and spectators gathered in front of the cabildo in the main plaza of Buenos
29 Aires during these occasions, where they could petition audiencia members
30 with particular requests while people watched magistrates oversee the release
31 of prisoners. 79
32 Early republican judiciary continued to inspect the public jail regularly.
33 Criollo executive authorities, meanwhile, went on participating in these general
34 or special visits as well. Diverse political factions exercising executive functions
35 in Buenos Aires did not want to lose the opportunity to demonstrate their
36 power through these gestures of authority. Moreover, during these visits the
37 public could discern who really decided someone’s freedom. In a legal culture
38 dominated by written briefs and a technical discourse, the inspection was one
39 of the few opportunities (besides public executions) to administer justice in a
40 very visible manner. Executive authorities also put people in jail, placing them
1 under their extrajudicial responsibility. This practice created many problems

2 with judicial authorities when the latter conducted their regular inspections. 80
3 Porteño judiciary tried to prevent the participation of executive officials
4 in these visits to the public jail. Although alcaldes de la carcel, appointed by
5 executive officials, ran the public jail, the judicial branch (according to the
6 principle of division of powers) was responsible for the inmates’ legal fate.
7 Conflicts between audiencia members and viceroyal officials over this issue
8 were also frequent during the colonial period, but the overlapping political and
9 administrative jurisdictions characteristic of the colonial state moderated the
10 disputes that, ultimately, were referred to the royal Council of Indies. Now the
11 double administrative dependency of early republican jail alcaldes, however,
12 created another area of tension between executive and judicial authorities. 81 As
13 the appeals court argued in 1828, criollo executive authorities were considered [65], (18)
14 successors of the viceroyal officials. After independence, the tribunal submit-
15 ted, the chief of the executive branch no longer retained colonial functions,
Lines: 196 to
16 like the (otherwise nominal) presidency of the audiencia and its postcolonial
17 equivalent. 82 ———
18 Executive authorities nevertheless claimed their right to participate in these 0.0pt PgV
———
19 visits and inspections. Perhaps some laws had changed after 1810, they stated, but
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20 the practice still remained. Furthermore, the division of power was preserved
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21 because members of the government were not going to attend as president
22 or members of the appeals court but as an independent power. 83 In other
23 words, formal legal changes that followed republican principles were accepted [65], (18)
24 but their interpretation and implementation left room for the permanence or
25 adaptation of state forms and practices derived from the colonial period. Hence,
26 executive authorities and law enforcement agents continued to participate in jail
27 inspections and visits, which constituted another disruption in the relationship
28 between the judiciary and civil society. 84
29 The purpose of other types of jail visits, performed by a variety of judicial
30 officials, like prosecutors and public attorneys, was to fulfill legal requirements
31 in specific criminal cases, like notifying the accused on the status of his or
32 her expediente. Members of the appeals court realized that these other more
33 technical visits were not followed with as much interest by other branches of
34 the government. Thus, they ordered subordinate judicial officials to visit the
35 jail more often with the double aim of guaranteeing defendants’ rights during
36 the criminal process as well as obtaining information about other prisoners
37 who were put in jail by executive authorities without notifying the judiciary. 85
38 As happened with specially appointed justice commissions, the appeals court
39 saw in these arresting practices another form of parallel justice that executive
40 and law enforcement agents administered. A special judicial official was thus
1 appointed in 1832 to closely monitor what was happening in the porteño public
2 jail. 86
3 Appeals authorities eventually accepted the fact that many prisoners in the
4 city jail were there by direct order of the government and the chief of the police.
5 They complained if there were no criminal expedientes on these cases. Yet, the
6 appeals court accepted that there were people in jail for “political” reasons, and
7 that these prisoners were not under judicial jurisdiction. The Cámara wanted
8 to be notified if someone was arrested and placed under the responsibility
9 of executive authorities, but the judiciary did not question the right of these
10 officials to do that. 87 Incarcerating people for political leanings was a common
11 practice in postcolonial Buenos Aires, a pattern that was going to be repeated
12 throughout Argentine history. But often, as reports on jail inspections suggest,
13 the “political” reasons concealed the strategy of keeping people suspected of [66], (
14 committing a crime in jail while waiting for their confession or for gathering
15 more evidence against them to then begin the sumario. 88
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16 Besides the biannual regular visits, judges and members of the appeals court
17 also performed jail inspections to acquire firsthand knowledge on the status of ——
18 specific criminal cases and the fate of the defendants involved in them. This 0.0pt
———
19 practice allowed judges to control what was done in the expediente. In many
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20 criminal cases, especially those at the plenario stage, the visits speeded their
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21 final resolution and sentencing. 89 This judicial practice represented another
22 way of having face-to-face encounters between judge and defendant. Not all the
23 defendants benefited from these visits, but at least there were more possibili- [66], (
24 ties of unlocking an expediente in administrative terms. At some point in the
25 modern history of Argentina, beyond the time period considered here, judges
26 stopped visiting jails on a regular basis as they did during the late colonial and
27 early independence periods. This is an example of a criminal-administrative
28 procedure, a component of the emerging penal system that did not survive into
29 the present as happened in many other cases. 90
30
31 Conclusion
32 The revolutionary process that started in Buenos Aires on May 25, 1810, intro-
33 duced innovative republican ideals that soon became visible in the political and
34 judicial discourse of independence. At the same time, colonial legal traditions
35 that had governed the Spanish colonies did not disappear overnight.
36 Continuities in the legal architecture of colonial penal justice did not prevent
37 an intense institutional experimentation after independence. Furthermore, the
38 need to maintain social order and public safety in a context of political insta-
39 bility encouraged the adaptation of colonial penal practices to the early repub-
40 lican urban milieu of Buenos Aires. As part of these changes and adaptation
1 of previous judicial practices, many reglamentos were passed in an attempt

2 to shape the legal profile of the emerging penal system. Nineteenth-century
3 republican principles collided with the more practical needs of social control.
4 Political instability during the first decades after independence challenged the
5 legitimacy of certain political urban groups. One of the few ways politicians
6 could guarantee popular support was to maintain acceptable levels of public
7 safety and social control. Thus, executive authorities acknowledged individual
8 rights, like due process, but at the same time pressured the judiciary to speed
9 the resolution of criminal cases even when it meant overlooking certain legal
10 issues.
11 Criminal judges and the Cámara de Justicia were not so enthusiastic about
12 this search for results. Judicial officials did not want to modify parts of the
13 existing structure of justice administration without addressing and defining the [67], (20)
14 role they thought they should have in the emerging republic. The judiciary thus
15 adopted a legal position that executive authorities saw as preventing the tackling
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16 of public safety through the administration of criminal justice. Meanwhile, and
17 as a consequence of this position, a powerful discourse by police forces was in ———
18 the making: one that allowed law enforcement agents to control key aspects of 0.0pt PgV
———
19 the criminal process, leaving the end of that process for the magistrates.
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20 Eager to obtain concrete results, executive authorities became increasingly
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21 receptive to law enforcement requests, sheltering these agents even when they
22 exceeded their official duties. The military also took advantage of this protection
23 even though personal fueros were abolished early on. They claimed those same [67], (20)
24 fueros for not falling into civil judicial jurisdiction. Executive authorities also
25 adopted local norms used by late colonial authorities, like the bandos, to deal
26 with crime related issues. While the general norms of the bandos remained
27 enforced, both before and after independence, the range of these local legal
28 instruments increased. Criollo authorities used bandos to define, judge, and
29 punish felonies. A reorganized police force sought to control urban crime by
30 relying on many auxiliaries whose functions overlapped and eventually pushed
31 aside the traditional role of the colonial alcaldes de barrio. Trying to solve
32 criminal cases without a long legal process, executive authorities appointed
33 special judges and tribunals to judge and punish specific felonies like robbery.
34 Modifications to the judicial appeals process gave the government the right to
35 intervene in judicial criminal cases as well.
36 Legal norms alone do not give us a complete picture of the social landscape
37 during those decades. But the constant adaptations and merging of legal prin-
38 ciples at that time, even though many were never enforced, represented the
39 origins of a complex legal framework. This same framework had the capacity
40 to provide multiple legal answers for the same situation, depending on the
1 circumstances. This is the legacy of colonial law under which these multiple
2 interpretations had flourished. However, there were two considerations: in the
3 previous legal structure social as well as so many other differences were part of
4 the law, and in the republican scenario equality before the law was supposed to
5 be respected. The law as a final goal or the law as an instrument, police efficiency
6 or legal guarantees: these are some of the debates initiated during those decades
7 and that are still going on in Argentina today.
8
9
10
11 [Last P
12
13 [68], (
14
15
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16
17 ——
18 426.5
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19
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20
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21
22
23 [68], (
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
1
2
3
4
5 5. The Emergence of
6 Republican Penal Discourse in Buenos Aires
7
8
9
10
11 Institutions, laws, reglamentos, and such, derive from the circulation of ideas [First Page]
12 among other factors. Although many ideas did not find their way into laws in
13 the Río de la Plata, their circulation certainly informed the debates that took [69], (1)
14 place in the last years of the colonial regime regarding changes in the criminal
15 justice system.
Lines: 0 to 4
16 This chapter explores the diverse components of republican criminal dis-
17 course in early independent Buenos Aires. It examines the making of the re- ———
18 publican penal discourse and its ideological roots. Lawyers, jurists, and intel- -3.0pt Pg
———
19 lectuals of the academia de jurisprudencia and the University of Buenos Aires
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20 contributed significantly to its elaboration but not necessarily to its application.
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21 Finally, the chapter explores specific issues of criminal law debated during these
22 decades, many of which shaped the emerging penal system during the second
23 half of the nineteenth century. [69], (1)
24 At the beginning of the 1820s, after ten years of institutional experimenta-
25 tion, porteño leaders were disappointed with the outcome of the revolution
26 for independence in the Río de la Plata region. Political disputes, territorial
27 disintegration, economic stagnation, and war reminded them that the road to
28 nationhood was not easy. The constitution was still an ongoing project, while
29 diverse laws and reglamentos had failed to create the necessary conditions for
30 the political organization of the United Provinces of the Río de la Plata (a
31 denomination that eventually evolved into what we know today as Argentina).
32 As a letter published in the liberal newspaper El Argos commented in 1823,
33 “institutions are not consolidated yet,” and this was the cause of instability
34 according to its anonymous author. 1
35 The so-called generation of 1837, intellectuals gathered at the Salón Literario
36 of Buenos Aires during the early years of Rosas’s second governorship, agreed
37 with their porteño predecessors on what constituted barriers for political sta-
38 bility in the region. Esteban Echeverría, one of the founding members of this
39 generation, pointed out: “our society, still covered by infant diapers [in 1810],
40 was not in shape to take advantage of (new political) ideas.”2
70 emergence of republican penal discourse
1 Although intellectually diverse, representatives of both the liberal experi-

2 ment of the 1820s and the generation of 1837 blamed former Spanish colonial
3 domination in the region for that failure. Praising the significance of English
4 criminal legislation, an editorial by El Argos regretted that the inhabitants of the
5 Río de la Plata region had to deal with laws of another kind: “the jurisprudence
6 that we have inherited from Spain,” which was further defined as “barbarous” in
7 another article. 3 Moreover, members of the Salón Literario blamed the earlier
8 criollo lawmakers for attempting to change colonial legal tradition by merely
9 passing new laws based on republican principles. “They cheated themselves
10 [Echeverría pointed out], believing that it was enough to write and pass laws so
11 that these principles could take root in the country.”4
12 The retrospective evaluation by the generation of 1837 regarding the failure
13 of legislation introduced after the 1810 revolution confirmed what was already [70], (
14 known. Contradictions between the colonial legal tradition and republican-
15 oriented principles were detected early on by politicians, jurists, intellectuals,
Lines:
16 and even officials from other countries in Buenos Aires. 5
17 Intellectuals and jurists criticized partial results of the institutional experi- ——
18 mentation through the 1820s and 1830s. While new ideas regarding criminal law 0.0pt
———
19 reached Buenos Aires during those years, many of these jurists and law students
Norma
20 debated and proposed various ways of reorienting the institutional changes
PgEnd
21 under way. 6
22 The Making of a Republican Penal Discourse
23 in Buenos Aires: General Framework [70], (
24 Overwhelmed by the decline in their country’s fortunes, after losing most of
25 its colonies during the first decades of the nineteenth century, Spanish intel-
26 lectuals began to reevaluate the legacy of the imperial past. Jurists and lawyers
27 contributed to the trend by trying to reestablish the links between the legal
28 tradition of Spanish law, like the Siete Partidas, and the political and legal
29 principles originated during the Enlightenment. This was not an easy task.
30 Most of these ideas not only emerged outside of Spain, but also were defined
31 in opposition to the political and legal architecture of the Iberian countries.
32 Regarding penal law, for example, jurists like Eduardo de Hinojosa stressed
33 the idea that pre-Enlightenment Spanish philosophers and lawmakers created
34 a corpus of judicial principles and legislation that were going to be enriched,
35 but not replaced, by new interpretations on the subject. 7
36 Other Spanish scholars, like Antonio Quintano Ripollés, stressed the en-
37 durance of the Spanish legal tradition in the former colonies. This legacy, how-
38 ever, neither had a negative sign nor was limited to previous legislation as the
39 Rivadavian newspaper El Argos pointed out in the early 1820s or Echeverría,
40 Alsina, and others argued in the 1830s. Penal legislation in what was going to be
emergence of republican penal discourse 71
1 known as Latin America, Quintano Ripollés argued, received much more than
2 mere “influences” from Spain during the colonial period. In fact, the spirit and
3 letter of the Spanish law was “integrally transplanted” to the colonies. 8
4 Sixteenth-century penologists Alfonso de Castro and Diego Covarrubias
5 were seen by Spanish intellectuals, and later by Argentine legal historians, as the
6 founding fathers of Iberian and Latin American penal law, but the retrospec-
7 tive recognition of these scholars came after the emergence of the republican
8 penal system in Buenos Aires. Thus, those who forged the initial criminological
9 paradigm in the Río de la Plata after independence did not acknowledge Castro’s
10 and Covarrubias’s contributions.
11 Innovative ideas developed by Rousseau, Montesquieu, Beccaria, and others
12 during the eighteenth century made their way to both Spain and its colonies.
13 Spanish intellectuals and Argentine legal historians attempted to link the in- [71], (3)
14 fluence of these ideas to political changes that took place on both sides of the
15 Atlantic. Quintano Ripollés and Rivera de la Lastra in Spain and Ricardo Levene
Lines: 61 to
16 in Argentina, for example, were architects of this early-twentieth-century revi-
17 sionist trend that linked republican Latin American and colonial Spanish legal ———
18 traditions. However, early-nineteenth-century criollo intellectuals told another 0.0pt PgV
———
19 story. As they recalled, the Enlightenment reached the Río de la Plata in spite of
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20 Spain and not because of it.
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21 The institutional experimentation that took place in Buenos Aires during the
22 first two decades of the nineteenth century was actually based on a combination
23 of continuity in colonial penal practices, still necessary to keep the city under [71], (3)
24 control, and the emergence of new ideas that made their way to the Río de
25 la Plata region toward the end of the colonial period. Political components of
26 republican discourse captivated the attention of politicians and lawmakers in
27 Buenos Aires as they tried to organize both the city and the United Provinces
28 of the Río de la Plata.
29 Legal ingredients of the republican discourse were not absent from these
30 initial stages of institutional experimentation, but changes were concentrated
31 in the administrative structure of the judiciary. Legislative debates about new
32 criminal laws and a penal code were mainly postponed until the passing of
33 a national constitution, which was taking longer than the leaders of the Rev-
34 olución de Mayo expected. This did not mean, however, that there was neither
35 interest nor discussion on the application of republican notions of penal law.
36 Intellectuals, jurists, and lawyers reflected upon these issues and proposed new
37 ideas whose fragments permeated the penal discourse of the political factions
38 in power. As El Argos indicated, “from the moment enlightened notions began
39 to spread out [in Buenos Aires], nothing was more desired than the reform of
40 the criminal codes.”9
1 The academia de jurisprudencia became one of the forums where jurists

2 and law students debated these ideas. The Cámara de Apelaciones proposed its
3 creation to the government in 1814,“to teach the young people who want training
4 in the legal profession.”10 Before the creation of the University of Buenos Aires
5 in 1821, recently graduated lawyers had to practice the profession at another
6 lawyer’s office (pasantía), taking an exam before the tribunal at the end of the
7 training period. With the creation of the academia, the appeals court wanted
8 to monitor this process more closely. This kind of institution was established
9 in Spain and the colonies before independence. Thus, inspired by a colonial
10 institution, the academia de jurisprudencia of Buenos Aires became a place for
11 the debate of republican legal trends and ideas. 11
12 Manuel Antonio de Castro, a member of the Cámara de Apelaciones at that
13 [72], (
time, was appointed director of the academia in 1815 soon after the govern-
14 ment passed its internal statutes. The initial ties between the judiciary and the
15 academia shaped the activities of the latter. Controlled by both the executive Lines:
16
branch and the appeals court as outlined in its own regulations, representatives
17 ——
of various state powers attended the discussion sessions at the academia. This 13.0p
18
does not mean to say that, in the academy, only the official criminal discourse ———
19
was debated. As a matter if fact, there was not one official penal discourse during Norma
20
this time but only fragmented notions about how to organize the republican PgEnd
21
penal system. 12
22
Although the intellectual environment at the academy allowed for a dis-
23 [72], (
cussion of diverse viewpoints on penal issues, not all of them permeated the
24
judicial discourse. High-ranking members of the judiciary, like Castro, shaped
25
26 the course of debates at the academy. In this regard, the academy laid the
27 groundwork for a pattern that was going to be repeated many times in the
28 debate about criminal legislation in modern Argentina. Ideas (and their sup-
29 porters) were not censored, but they were discussed in an institutional context
30 that stifled many of them, guaranteeing the ultimate preeminence of expert
31 opinions.
32 The 1820s witnessed two overlapping debates: one focused on penal pro-
33 cedures and the administration of criminal justice; and the other examined
34 the legal architecture of the penal system, one that included a new penal code
35 defining crime and punishment. As director of the academy, a member of the
36 appeals court, and a journalist, Manuel Antonio de Castro explicitly opposed
37 the approval of a penal code before completing the desired constitutional or-
38 ganization. In the meantime, Castro concentrated his efforts in reforming and
39 defining the profile of the judiciary at the provincial level. He also proposed
40 changes in criminal procedures to the government. 13 Thus, the president of the
1 academy was not so enthusiastic in channeling other proposals like the penal
2 code to executive and legislative authorities.
3 Castro’s posthumous work, the Prontuario de práctica forense, exemplifies
4 the issues that most interested him. Published in 1834, the Prontuario studied
5 procedural aspects of judicial and especially civil cases. Several legal resources
6 and appeals forms were reviewed as well. Chapter 2, for example, explained the
7 organization of the judiciary and the competence of different judges and the
8 appeals court in civil and criminal cases, but rarely discussed the general legal
9 framework that would have provided clarity for this organization. 14 The role of
10 lawyers was also addressed in the book, reflecting Castro’s concerns about the
11 legal profession as president of the academy of jurisprudence. 15
12 Former French judge Guret Bellemare submitted many proposals debated at
13 the academy of jurisprudence during the 1820s. He arrived in Buenos Aires in [73], (5)
14 1822 with a group of French immigrants who were going to start an agrarian
15 enterprise in the jurisdiction of Morón, outside the city of Buenos Aires. After
Lines: 78 to
16 being beaten up by unidentified local residents and the failure of his agrarian
17 experiment, the group split and Bellemare decided to exercise his profession as ———
18 a lawyer in Buenos Aires. 16 0.0pt PgV
———
19 While Castro proposed a variety of procedural changes in the administration
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20 of justice, attempting also to reorganize the judiciary, Bellemare concentrated
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21 on three specific issues: (1) the penal code and the code of penal procedures,
22 (2) the establishment of juries in criminal cases, and (3) a judge’s stability in
23 his post. Bellemare’s draft of a penal code was presented at the academy in [73], (5)
24 November of 1822, a few months after he abandoned his agrarian adventure at
25 Morón. Although the proposal was well received, it seems that the debate did not
26 continue. 17 A new draft of the constitution was elaborated by the mid-1820s. The
27 unitarian inspiration of the project, concentrating the power in Buenos Aires,
28 provoked its rejection by the other provinces in 1826. Yet, expectations arising
29 from the passing of a new constitution would have convinced academy members
30 to wait before pursuing the debate on Bellemare’s or any other criminal code.
31 Subsequent proposals for a penal code were not debated until the second half
32 of the nineteenth century.
33 After Bellemare’s proposal was dropped, his writings switched to a more
34 specific topic—the establishment of juries—which he believed indispensable
35 for improving the administration of criminal justice. 18 He opposed the preju-
36 dice shared by many liberals of the 1820s and the romantics of the late 1830s
37 that the people living in the Río de la Plata region were not ready to assume
38 the responsibility of judging the guilt or innocence of their peers in a criminal
39 trial. Employing the historical example of Rome, Bellemare argued that the
40 concentration of judicial functions in a few hands (praetor) led to tyranny first
1 and empire next. A direct descendant of this unhappy process was the Spanish
2 criminal legal system and its administrators. In order to halt that process, he
3 argued, it was necessary to establish a jury system as soon as possible. 19 High-
4 ranking members of the judiciary, however, were not receptive to these ideas.
5 Their power to control the criminal process had begun to wane, as it slowly fell
6 into the hands of law enforcement agents. Judges and appeals court members
7 wanted to retain the monopoly of interpreting criminal legal principles that
8 were being applied to specific cases. The subsequent emphasis on a techni-
9 cal discourse of criminal law, one controlled by legal “experts,” contradicted
10 Bellemare’s ideas.
11 A renewed interest in legal and judicial reforms reemerged during 1827, 1828,
12 and 1829. Bellemare’s course on criminal law that was delivered at the academy
13 in 1827, advocating the creation of juries in penal cases, sparked debates on [74], (
14 issues related to criminal justice as well. An important discussion on the death
15 penalty between Valentín Alsina who defended it and Guret Bellemare who
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16 opposed it took place during these years, and it was further elaborated in other
17 doctoral dissertations during the 1830s. 20 ——
18 Bellemare’s ideas interested the executive branch, including Governor Man- 0.0pt
———
19 uel Dorrego (1827–28). He encouraged the Frenchman to write a proposal to
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20 reform the judiciary, which would include juries. The result was the publication,
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21 by the official press (imprenta del estado), of the Plan general de organización
22 judicial para la Provincia de Buenos Aires in 1829. The plan reviewed postinde-
23 pendence attempts to organize the judiciary that changed colonial legislation. [74], (
24 Bellemare explained the reasons for their successive failure: “You Argentines
25 should agree with me that in the last twenty years you have lived in a republic.
26 You, nonetheless, have barely enjoyed its benefits. A sense of liberty has not
27 even been grasped, for you have not had complete institutions according to the
28 nature of your own form of government. [Many of your leaders] wanted you
29 to give a gigantic step when you still were at the bedrock from which you won’t
30 be able to leave without General Laws. What was the result of all of this? Trying
31 to fly without wings has caused you to lose twenty years of revolution.”21
32 After discussing the organization of the judiciary in England, the United
33 States of America, and France, Bellemare characterized the difficulties of early
34 republican legislation in Buenos Aires as“mixed up and overlapped with ancient
35 and inquisitorial laws which nonetheless are supposed to serve a republican
36 state.” He did not support, however, the complete transference of new crim-
37 inal laws to the Río de la Plata and the suppression of the Spanish colonial
38 legislation. Anticipating the criticisms of the porteño romantic generation to
39 the universalistic paradigm of the Enlightenment, Bellemare suggested only to
40 “adjust from the laws of the leading States on earth what it is convenient for our
1 country.”22 He compared the British, French, and North American legislation,

2 pointing out several problems and shortcomings. These problems would have
3 prevented their systematic application in the Río de la Plata region.
4 Bellemare strongly advocated stability of judges in their posts. As a conse-
5 quence of postindependence political instability, porteño magistrates had to
6 resign whenever the political faction that appointed them had to leave office.
7 He wondered if these magistrates, “still depending upon Spanish laws, could
8 serve both as a counterweight to executive power and also to protect public
9 liberties.” The only way of avoiding the failure of the judiciary in penal cases,
10 he concluded, was to protect and maintain criminal judges in their position
11 regardless of changes in other areas of the provincial state and to establish
12 juries for these cases. 23
13 [75], (7)
The establishment of juries, according to Bellemare, was tied to changes in
14 judicial procedures. A judge’s ability to intervene in criminal cases should be
15 immediate, avoiding long written statements. Two types of juries were needed Lines: 91 to
16
for penal cases: trial jury (juri de acusación) and grand jury (juri del juicio). The
17 ———
first would deal with preliminary evidence presented to the judge, elaborating 13.0pt Pg
18
a formal accusation against the defendant, while the latter would come up with ———
19
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20
twenty-five years of age, single or married, with proven good behavior. Citizens PgEnds: TEX
21
who received a salary from the government were excluded. Literacy was also a
22
requirement. 24
23 [75], (7)
Changes in criminal procedures were also suggested by another high-ranking
24
member of the judiciary, Manuel Antonio de Castro, who denounced increased
25
26 intervention by law enforcement agents like the police in the initial stages of
27 any criminal case. Interestingly enough, although Castro and other judges were
28 increasingly put to one side by executive law enforcement agencies in controlling
29 the outcome of many criminal cases, they did not support the introduction
30 of juries in the administration of criminal justice. While juries would have
31 represented a concrete way of contesting this trend, many members of the
32 judiciary believed that retaining the monopoly of interpretation of the law was
33 the best strategy against the encroachment of executive authorities. 25
34 The death of Governor Dorrego (killed by General Lavalle’s unitarian troops
35 returning from the war against Brazil in December 1828) brought once again po-
36 litical instability to Buenos Aires. The outcome of these events was the election
37 of Juan Manuel de Rosas as governor of Buenos Aires toward the end of 1829. In
38 the meantime, Bellemare’s projects as well as many others had to be postponed
39 indefinitely. Among these projects was an attempt by Doctor Bernardo Vélez
40 Gutiérrez to publish a journal compiling jurisprudence and judicial resolutions
1 on current cases. Only eight issues of the journal were published between August
2 and October 1834. 26
3 From the late 1830s onward the academia de jurisprudencia continued to
4 oversee the training of lawyers, but debates over criminal justice that took place
5 in its conference room and library during the 1820s and early 1830s began to
6 subside. Many law students with political connections, for example, requested
7 the mediation of executive authorities before the appeals court in order to
8 obtain the recognition of their law degree without passing through the training
9 period at the academy of jurisprudence. 27 After its first director died in 1832,
10 various members of the appeals court chaired the Academy. The new directors,
11 however, preferred to attend the tribunal sessions rather than deal with mostly
12 administrative issues that awaited them at the academy. The presidents of the
13 [76], (
appeals court sent several notes to Governor Rosas requesting to be replaced as
14 head of the academy of jurisprudence. 28 During the second half of the nine-
15 teenth century, scholars and jurists at the University of Buenos Aires and other Lines:
16
academic institutions continued to debate criminal law, while the academy lost
17 ——
its early preeminence. In 1872 it was finally merged with a new university course 13.0p
18
on legal procedures. ———
19
The University of Buenos Aires constituted another center of discussion of Norma
20
criminal law. Created in 1821, the university had a department of jurisprudence PgEnd
21
with two courses (called cátedras), which were offered the following year: natural
22
law (derecho natural y de gentes) and civil law (derecho civil). The former was
23 [76], (
taught by the first rector of the university, presbítero Antonio Sáenz, while Pedro
24
Somellera taught the latter. 29
25
26 Neither Sáenz nor Somellera dealt specifically with criminal law in their
27 courses during the 1820s. Sáenz did not present innovative ideas. He combined
28 classic juridical traditions including Roman and Spanish jurisprudence in his
29 teaching. Explaining the juridical effects of dueling (the closest issue to crim-
30 inal law he taught), Sáenz emphasized the preeminence of public justice over
31 individual disputes, which also included affairs of honor. He also acknowledged
32 that police functions were one of the major responsibilities of the state, arguing
33 that security and public tranquility constituted a priority for politicians. Social
34 order was intrinsically linked to a natural order that had its origins in divine law
35 (derecho divino). 30 This line of reasoning was similar to Spanish justifications of
36 the colonial legal order. Consequently, Sáenz’s conceptual framework did not
37 fuel the discussion of new legal principles as Bellemare’s ideas did.
38 More updated than Sáenz’s teachings, Pedro Somellera’s course on civil law
39 relied heavily on the work of Jeremy Bentham. In order to adapt the laws
40 to the utilitarian principles of the English jurist, Somellera argued in 1824
1 that jurisprudence needed to be redefined as a science, following the scientific

2 method. 31
3 According to his teachings, philosophers of the Enlightenment had success-
4 fully reunified the concepts of man (hombre: all men are equals before God)
5 and person (persona: men are different according to their legal status). Roman
6 and Spanish legal traditions, he explained, had constructed this conceptual dif-
7 ference to justify inequalities among people. The fusion of both concepts was
8 necessary if the republican state was to forge a new legal order grounded in no-
9 tions of equality and also security. The idea of equality prevented anyone from
10 being excluded from granted honors and rights, “unless committing crimes
11 legally proved.” Security was also an important consent since guaranteeing
12 individual rights to all citizens was intimately linked to it. 32
13 The unification of the concepts of man and person was also tied to the [77], (9)
14 idea of balancing legal theory and praxis. Somellera and other champions of
15 the Rivadavian political experiment during the 1820s attempted to define a
Lines: 108 to
16 legal framework without ignoring practical implications. As the generation of
17 1837 would later criticize, however, they tried to implement that legal order by ———
18 transplanting its theoretical principles from Western Europe. 0.0pt PgV
———
19 The initial courses offered at the university suffered due to changing political
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20 circumstances during those years. Sáenz’s and Somellera’s courses were com-
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21 bined into one class as part of a university reform that took place in 1833. By
22 then, both professors had been replaced. Bentham’s utilitarian theories were no
23 longer enthusiastically debated in Somellera’s classes. Assigned as a mandatory [77], (9)
24 text, the more traditional Instituciones de Derecho Real de España by José María
25 Alvarez replaced Bentham’s writings. 33 Other courses on political economy and
26 canon law were also part of the program of the department of jurisprudence at
27 the university during those years.
28 There was no formal course on penal law at the University of Buenos Aires
29 during the first decades after its creation. Legal historians like Juan Silva Riestra
30 argue that criminal law remained in an embryonic stage until the second half
31 of the nineteenth century. 34 The works of Castro, Somellera, Alsina, Varela, and
32 others suggest, however, an ongoing discussion over the emerging penal system
33 included the legal architecture of the system, the organization of the judiciary,
34 the making of criminal and procedural codes, and the issue of punishment
35 (especially on the death penalty).
36 Furthermore, this debate did not completely take place outside the univer-
37 sity. Although there was not a formal course on criminal law, theses (required
38 for graduation) on penal law were the second most numerous after those on
39 civil (particularly family) law. 35 Students completed three years of courses at
40 the university. Then, they had to carry out three more years of practice at
1 the academy of jurisprudence, where they had the chance to present and dis-
2 cuss their theses. 36 Hence, there was a connection between the university, the
3 academy, and other judicial circles where ideas on criminal law circulated at
4 least until the mid-1830s.
5 After 1833, when the university reform took place, and especially in 1835, when
6 Juan Manuel de Rosas became governor of the Buenos Aires province for the
7 second time, accumulating all the institutional power (suma del poder público),
8 intellectuals and jurists preferred to debate their ideas about the law in alter-
9 native environments outside formal academia. The Salón Literario, the initial
10 point of encounter of the so-called generation of 1837 but soon closed by Rosas’s
11 orders, became one of the favorite places for the gathering of young intellectuals.
12 At the Salón, they presented and debated new ideas inspired by the European
13 romantic movement, which reacted against the universalistic paradigm of the [78], (
14 Enlightenment, emphasizing historicism and the search for “local flavor.”37
15 Many young intellectuals explored new ideas, departing from the enlight-
Lines:
16 ened discourse that prevailed during the 1820s. Actually, they adopted a critical
17 posture after the liberal experiments of the previous two decades failed to bring ——
18 the expected political organization of the United Provinces of Río de la Plata. 0.0pt
———
19 Esteban Echeverría, Marcos Sastre, Juan María Gutiérrez, Juan Bautista Alberdi
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20 and others reshaped the early republican political discourse, but their influence
PgEnd
21 reached maturity after the Rosas regime, during the decades of the so-called
22 national organization. Among the works and pamphlets that circulated during
23 these years, Alberdi’s Fragmento preliminar al estudio del derecho was one of the [78], (
24 most prominent. 38
25 Published in 1837, the Fragmento defined a science of law (ciencia del derecho),
26 positioning it in the domain of the positive law. Natural law, inspired by divine
27 principles, had to be considered in a separate sphere. Here, Alberdi further
28 elaborated Somellera’s ideas about a science of jurisprudence that contradicted
29 Alvarez’s Instrucciones, the required text in the courses on civil law offered by
30 the University of Buenos Aires after 1833.
31 Following Jean Louis Lerminier’s Philosophie du droit, Alberdi went on to
32 distinguish between derecho (droit) and ley (loi), the former being the spiritual
33 and moral ground where societies find their own harmony and the latter the
34 specific regulations that materialize and sustain social harmony. Thus, the en-
35 forcement of concrete jurisprudence and laws should not precede the dogmatic
36 and philosophical foundation of any society. A constitution, provided it illumi-
37 nated the moral principles of a given society, represented the first fundamental
38 step in the development of a juridical architecture for that society. 39 The reversal
39 of this hierarchy would have caused the failure of the liberal experiments during
40 the 1820s. 40
1 Manuel Antonio de Castro also pointed out the inconvenience of this reversal
2 during the late 1810s and the 1820s. He did it, however, with the intention of
3 blocking any substantial modification of criminal legislation. Thus, there are
4 important differences between the two jurists. As a member of the appeals
5 court and director of the academy of jurisprudence, Castro opposed proposals
6 of change to penal law before the approval of a constitution. Pursuing this strat-
7 egy, he attempted to prevent further institutional encroachment of executive
8 authorities over the judiciary. Alberdi, already living the consequences of this
9 process under Rosas, tried to develop new ideas about the law so that the debate
10 could begin once again. Both Castro and Alberdi agreed that the institutional
11 experimentation that took place early on after independence went in the wrong
12 direction. Castro attempted to prevent further development of that course of
13 action while Alberdi tried to launch it in a new direction. 41 [79], (11)
14 Legal norms and punishment, according to Alberdi, had to take into ac-
15 count historical, geographical, and cultural circumstances before they could be
Lines: 127 to
16 applied. He described three possible systems of judicial retribution in crimi-
17 nal justice: penal, penitentiary, and repressive. The penal system involved harsh ———
18 punishments. It was considered less complicated but unacceptable because of its 0.0pt PgV
———
19 moral deficiencies. The penitentiary system attempted to stop criminal violence
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20 by eliminating its causes. It was a more humanitarian system, but it was also
PgEnds: TEX
21 considered slow and impractical. Finally, the repressive system, recommended
22 by Alberdi in the case of Argentina, involved the specific task of neutralizing
23 criminal actions by applying various punishments. [79], (11)
24 A justice system like this was not the most benevolent, as Alberdi pointed
25 out, but it certainly was the most efficient. 42 Moreover, that repressive system
26 was not arbitrary, but institutionally contextualized. Major inequalities of the
27 early penal system were due to the fact that informal practices and procedures
28 depended on the decision of one person: the dictator, the caudillo. This source
29 of arbitrariness should be changed. Following this analysis, many jurists saw a
30 solution to the abuses of the system by bureaucratizing the judicial process and
31 hiring more judges and judicial officials. That idea, as intellectuals recognized,
32 was inspired by the teachings of the Italian penologist, Cesare Beccaria, who
33 remarked: “the greater the number of judges, the less dangerous is the abuse of
34 legal power; venality is more difficult among men who observe one another.”43
35 The Fragmento can be seen as both a point of arrival and departure in
36 the making of the republican penal discourse in Buenos Aires. Evaluating and
37 criticizing the institutional experiments of the previous decades, Alberdi em-
38 phasized that the efforts to transplant European ideas to the Río de la Plata
39 did not work. Adaptation was going to be a key word for future experiments.
40 Although the critique applied to the 1819 and 1826 constitutional experiments,
1 jurists like Bellemare actually tried to adjust other countries’ criminal legislation
2 to what they perceived as the historical reality of the region during the 1820s.
3 Castro and Alberdi, however, dismissed these endeavors.
4 Discussions regarding specific aspects of criminal justice from the 1820s to
5 the 1840s permeated the emerging penal discourse. By the time institutional
6 general schemes like the otherwise doctrinally eclectic Alberdi’s Bases were put
7 into practice after 1852, residual jurisprudence combining fragmented colonial
8 laws, “enlightened” principles, as well as other practical legal notions were part
9 of the legal landscape of the criminal justice system in Buenos Aires; mid- to
10 late-nineteenth-century debates about penal law took all of them into consid-
11 eration. 44
12 The Making of a Republican Penal Discourse
13 in Buenos Aires: Issues and Trends [80], (
14 After its creation in 1821, the department of jurisprudence at the University of
15 Buenos Aires began to prepare students for the legal profession. Four of them
Lines:
16 had already graduated by 1825, but it was not until two years later that university
17 authorities formalized the requirement that students write and defend a thesis ——
18 for graduation. Until the 1827 reform, only a disertación was required of the 0.0pt
———
19 students. This consisted of a one-hour presentation on a topic that was selected
Norma
20 at the time of the final exam, followed by questions and answers. 45
PgEnd
21 Although many of the dissertations on criminal law written after 1827 re-
22 mained unpublished, they provide valuable information on the intellectual
23 roots of the republican penal discourse in Buenos Aires. Eighteenth-century [80], (
24 European jurists influenced ideas on penal law at that time. These scholars
25 became the main representatives of what was going to be known as the Classic
26 School of Criminology. 46
27 Cesare Beccaria and Jeremy Bentham, for example, were already known in
28 the Río de la Plata region. Members of the academy of jurisprudence, the gov-
29 ernment, and the newspapers often mentioned these authors when defending
30 proposed changes on criminal legislation during the late 1810s and early 1820s. 47
31 By the time law students began writing theses at the university, however, Bec-
32 caria’s and especially Bentham’s doctrines were no longer universally accepted.
33 After two decades of failed institutional experimentation, many criollo students
34 wanted to explore alternative ideas in criminal law; the results can be seen in the
35 theses they wrote. Interestingly enough, most of these students did not pursue
36 careers in the judiciary but in politics, as the following table demonstrates.
37 Furthermore, some of them became victims of political crimes; the same type
38 of crimes they proposed to eliminate in their dissertations. 48
39 Florencio Varela wrote the first thesis on criminal law at the University of
40 Buenos Aires in 1827. In his “Disertación sobre los delitos y las penas,” Varela
1 Table 3. Law Students and Their Careers after Graduation
2 Name Place of Birth Graduation thesis Career after graduation
3
Valentín Alsina Buenos Aires In favor of the death journalist; politician;
4
(1802–1869)† penalty (1828)† governor of Buenos
5
Aires, 1852, 1857–59
6
Fernando Arca Buenos Aires In favor of the death politician; representa-
7 (1810–1878)* penalty (1832) tive for Buenos Aires,
8 1850s, and 1860s
9 Marco M. de Catamarca Against the death politician from Tucumán;
10 Avellaneda penalty (1834) executed after lead-
11 (1813–1841) ing revolt against Rosas
12 Miguel Cané Sr. San Pedro, On punishment journalist; writer;
13 (1812–1863)* Buenos Aires (1835) novelist; politician, [81], (13)
14 province 1850s
15 M. Esteves Buenos Aires On judicial jurist; criminal judge;
Seguı́ sentences (1840) chief of the police; Lines: 223 to
16
(1814–1892) politician, 1850s ———
17
18
Marcos Paz Tucumán Against the death Governor of Tucumán, 2.25067pt
(1813–1868) penalty (1834) 1858–60; Argentine ———
19 vice president, 1862–68 Normal Page
20 Vicente Quesada Buenos Aires On robbery, aggra- politician; historian; PgEnds: TEX
21 (1820–1913) vated assault, etc. journalist; scholar
22 (1850)
23 Florencio Varela Buenos Aires On crime and politician; journalist; [81], (13)
24 (1807–1848)* punishment (1827) assassinated in
25 Montevideo
26 Source: R. Piccirilli, Diccionario biográfico argentino.
27 *Alsina, Arca, Cané, and Varela suffered exile during part of Rosas’s regime.
†This paper was not Alsina’s graduation thesis but was presented at the Academy of Jurisprudence.
28
29
30 elaborated on Beccaria’s concept of proportionality between crime and pun-
31 ishment and Bentham’s principle of utilitarianism as the keystones for the new
32 penal system in the Río de la Plata. 49 Before Beccaria,Varela explained,“Philoso-
33 phy was absolutely estranged from criminal jurisprudence. . . . The barbarism
34 of the law resulted in a cruel arbitrariness of the trials. Judges thus became
35 the first enemies of unfortunate defendants.” Bentham, Varela argued, further
36 developed the new paradigm by “teaching legislators to thoughtfully consider
37 the good and bad things that any act produces and, following the results of this
38 calculus, punishing it as a crime or defining it as an innocent behavior.”50
39 Although Varela vindicated the principles stated by Beccaria and Bentham,
40 he and many others students and jurists were reluctant to apply them in the Río
1 de la Plata right away. In other words, the ideas were fine but the timing was not.
2 The debates over the death penalty during these years epitomized the tensions
3 between the attraction of putting these new principles into practice and the fear
4 of depriving the governing elite of having the legal tools for controlling other
5 social groups. Varela himself remained ambiguous about the death penalty,
6 whose abolition was one of the core theses of Beccaria’s proportionality between
7 crime and punishment and Bentham’s principle of utility. 51 Perhaps on this
8 issue more than in any other it is possible to perceive how criollo jurists and
9 intellectuals began to question the Enlightenment’s views of criminality, source
10 of the classic criminological paradigm.
11 Besides Guret Bellemare’s teachings at the academy of jurisprudence, other
12 jurists and members of the judiciary debated criminal punishment during these
13 years. One year after Varela’s thesis, judge José Manuel Pacheco delivered a [82], (
14 speech against the death penalty at the academy. High profile homicides and
15 other crimes in Buenos Aires at this time fueled a debate that the press fol-
Lines:
16 lowed. 52 A few months later, Valentín Alsina (one of the first law students to
17 graduate from the university) responded to Bellemare’s and Pacheco’s defense ——
18 of Beccaria’s and Bentham’s doctrine on the death penalty, endorsing the need 0.0pt
———
19 to keep it in future legislation. Many law students at the university, interested
Norma
20 in this debate, wrote several theses on the subject during the early 1830s. 53
PgEnd
21 While Bellemare and Varela relied on Beccaria’s and Bentham’s doctrines,
22 Alsina and other law students like Bernabé Caravia emphasized that other Euro-
23 pean jurists had second thoughts about abolishing the death penalty. Rousseau [82], (
24 and even Montesquieu, they argued, did not endorse the abolition of the death
25 penalty. Rousseau,Varela pointed out, justified its application as punishment for
26 violating the social contract, while Montesquieu at least remained ambiguous
27 about it. 54
28 Other European authors, like Gaetano Filangieri in his La scienza della legis-
29 lazione supported the death penalty. Beccaria’s disciple, Filangieri reserved the
30 death penalty for special cases like homicide and treason. He also suggested
31 continuing public executions but avoiding the sad spectacle of mutilation or
32 unnecessary suffering before death. 55 Benjamin Constant, commenting on Fi-
33 langieri’s work, also gave practical reasons for keeping the death penalty in the
34 criminal codes. The difference between the death penalty in previous Spanish
35 legislation and the one proposed by Filangieri or Constant, as student Bernabé
36 Caravia said, was that its application was not going to be generalized for many
37 crimes but only applied to certain cases. 56 The death penalty did not subvert the
38 proportionality between criminal action and punishment, student Fernando del
39 Arca argued, if applied without arbitrariness. 57 As Alberdi would later describe,
40 the key issue was not to avoid harsh punishment, as long as it was applied ac-
1 cording to the law. Furthermore, Bernabé Caravia reverted Bentham’s principle

2 of utility by arguing that it was “useful” to apply the death penalty when, given
3 the specific circumstances of a country, “it would be impossible to restrain a
4 crime with a less effective example of retribution.”58
5 Critics of the death penalty argued that its application was no longer needed.
6 Besides going against natural law, Francisco Villanueva pointed out, this type
7 of punishment was imposed against people’s will. “Currently [he said] society
8 has means and elements to punish and correct any criminal without shedding
9 blood.”59 In another thesis, Marco Avellaneda admitted that death as form of
10 punishment was just in some cases but not effective in dealing with crime. He
11 stated that a prison sentence, “under the tutelage of a priest, including also
12 personal work,” was the best option for punishing serious felonies. 60 José María
13 Reybaud, in contrast, believed that the ineffectiveness of the death penalty had [83], (15)
14 not been proved yet. Applying the same principle that Alsina and Caravia used,
15 he argued that legislators could not consider all the possibilities when punishing
Lines: 232 to
16 crimes. Thus, the death penalty had to be kept in the codes just in case. 61
17 The main intellectual objections to the death penalty were its illegitimacy ———
18 and its lack of proportionality, utility, and popularity. Marcos Paz, for example, 0.0pt PgV
———
19 concentrated on the first two, pointing out that the suppression of this pun-
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20 ishment would not weaken the repressive power of the state, which was one of
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21 the major concerns of the antiabolitionists. 62 Furthermore, Felipe José Rufino
22 pointed out in his thesis that public executions for crimes were unpopular.
23 People eventually felt compassion for the ones being executed. 63 Supporters of [83], (15)
24 the death penalty, however, sounded more convincing to executive authorities.
25 Discussions on the death penalty faded toward the late 1830s. Still another
26 thesis was written before Rosas’s fall, but this author, Eulogio Cruz Cabral,
27 appealed “not to the philosophical and juridical lights as much as to the good
28 criterion and intimate knowledge of the human heart.”64 He opposed the abo-
29 lition of the death penalty, arguing, like many others, that it would eventually
30 disappear as a form of punishment.
31 Thus there were for many people good reasons for keeping the death penalty.
32 Even Beccaria would have accepted exceptional situations, like political anarchy,
33 when it was necessary to apply the punishment he hated so much. 65 This is what
34 had occurred in Buenos Aires since 1810, and diverse political factions holding
35 executive positions always had good reasons to declare the exception again. As
36 Bernabé Caravia epitomized, “it is better to have a few executioners and not so
37 many prison guards.”66
38 Tensions between the Enlightenment view of criminal law and colonial penal
39 legislation shaped the perspectives of law students on legal matters. This went
40 beyond the specific discussion of the death penalty and involved reflections on
1 the state’s capacity to sanction behavior defined as criminal. As Miguel Cané

2 Sr. argued, “good [penal] legislation does not need to rely on an exaggerated
3 hardship of punishments for preventing the repetition of crimes.”67
4 There were seven ways of punishing crimes according to the Seventh Partida,
5 Cané explained,“besides others spread over the body of laws that embraced our
6 current legislation.” He reduced them to three: “the ones that affect the crim-
7 inal’s body, his possessions and belongings, and his fame or honor.” The first
8 one would not involve physical punishment (included in colonial laws) but only
9 prison, while the other two should also be proportional to the crime following
10 some of the criteria established by the Spanish codes. 68 Looking at the over-
11 lapping legislation that resulted after twenty years of republican government,
12 Cané and others tried to make sense out of it by redefining, for example, the
13 punitive capability of the state. Colonial criminal law, still useful in providing [84], (
14 legal support to many judicial resolutions, would be thus partially kept.
15 Further elaborating on this issue, Fernando Cruz Cordero’s thesis stressed
Lines:
16 that “the laws that govern the people should accommodate the Republic instead
17 of the Republic to the laws. . . . The good legislator, a criminologist points out, ——
18 should take into account the religion, the character, the practices, and the ge- 0.0pt
———
19 nius of his nation when passing such laws.”69 By encouraging adaptation, Cruz
Norma
20 Cordero seemed to agree with the legal notions supported by his contemporary
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21 porteño romantics, but on criminal law he made an interesting distinction.
22 The merging of colonial law and the institutional experimentation that took
23 place after independence, he argued, brought changes to criminal jurisprudence [84], (
24 derived from the custom (costumbre) instead of from the law itself. As a conse-
25 quence of this, many criminal procedures became illegal because of their origins
26 as well as their effects. 70
27 Legal proofs in criminal cases represented an example of the kinds of changes
28 introduced by custom. Using their arbitrary power, Cruz Cordero explained,
29 judges followed the custom of condemning defendants without conclusive ev-
30 idence. Thus, his thesis stated, “when the lack of plain proofs prevents the
31 application of an ordinary penalty corresponding to the crime that is being
32 investigated, no other punishment should be imposed.”71
33 Cané’s and Cruz Cordero’s theses exemplify the search for a postcolonial
34 criminological paradigm that, beyond the debates of its ideological roots, would
35 be able to correct some of the legal problems derived from the transition toward
36 independence in the Río de la Plata. The arbitrary power of the magistrates was
37 characteristic of the flexible Spanish legal system. Arbitrary power in this his-
38 torical context means the broad capacity of interpretation of evidence by the
39 magistrates in a given case. It was not necessarily synonymous with injustice
40 or authoritarianism. 72 Ambiguities in the legal framework after independence
1 increased the legal interpretative power of judges and law enforcement agen-
2 cies. Miguel Esteves Seguí’s thesis, for example, addressed this problem. Seguí
3 wanted to limit the authority of the magistrates by reducing their authority
4 over sentencing. They should take into account the available evidence in each
5 case, thus justifying their decisions. 73
6 Members of the judiciary like Manuel Antonio de Castro did not favor the
7 practice of explaining the logic and legal path followed by the magistrates in
8 order to pronounce their verdict in criminal cases. Because of its disputes with
9 law enforcement agencies over the control of the judicial process, the early
10 republican judiciary was reluctant to change many of its current practices. The
11 draft of the constitution for the Buenos Aires province in 1833 included judges’
12 obligation of explaining their sentences. Jurists and lawyers like Valentín Alsina
13 also encouraged its application early on, but these types of sentences were not [85], (17)
14 going to be seen until the second half of the nineteenth century. 74
15 Besides a few theses, like Cruz Cordero’s, the 1840s were not prolific for
Lines: 250 to
16 law students. Toward the end of the Rosas regime, however, a couple of theses
17 anticipated the interest of law students for more technical topics on criminal ———
18 law. These were the theses by Vicente Quesada preventing the extinction of 0.0pt PgV
———
19 penal action on stolen property and Alejandro Heredia on the legal definition
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20 of attempted burglary, both defended in 1850 and 1851. Other theses would
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21 contribute to the debates over the penal code during the second half of the
22 nineteenth century, but this time under the philosophical inspiration of the
23 Positivist criminological school. 75 [85], (17)
24
25 Conclusion
26 Enlightened views on crime and punishment by European authors made their
27 way to Spain and its colonies during the last decades of the eighteenth century.
28 Renowned jurists like Spanish American Manuel Lardizabal y Uribe integrated
29 Beccaria and other enlightened authors in an effort to propose changes in
30 criminal justice in the Spanish world during the late colonial period. Proposals
31 like this, however, did not reach the Río de la Plata region. Lardizabal was known
32 not only in Spain but also in New Spain (where he was born), but he was barely
33 mentioned by any late colonial and early republican jurists, intellectuals, or
34 law students in Buenos Aires. Although Spanish and porteño legal historians
35 emphasize the connections between the legal traditions of Spain and the Río
36 de la Plata as a factor leading to the emergence of a republican penal discourse,
37 criollo jurists did not perceive this process in such a way during the first half of
38 the nineteenth century.
39 During the early independent period, republican penal ideas were debated
40 at both the academy of jurisprudence and the University of Buenos Aires. The
1 academy remained closely linked to the judiciary and its interests. Many issues
2 were discussed there but only some of them made their way to executive and
3 legislative authorities as formal proposals and projects. High-ranking members
4 of the judiciary, like Manuel Antonio de Castro, did not want to introduce
5 further modifications to the penal legal framework without a constitution that
6 would define a concrete profile for the judiciary. Thus, proposals related to the
7 administrative organization of the judiciary had priority over other issues like
8 the penal and procedural codes, the institution of juries, and the reduction of
9 the arbitrary power by criminal judges. Nonetheless, the academy represented
10 a forum where jurists and law students, who had to be in residence for three
11 years, could share their ideas.
12 The university, created in 1821, represented another forum to discuss penal
13 law. Although there was no formal course on criminal law, related topics were [86], (
14 debated in other courses like the one on civil law offered by Pedro Somellera.
15 Beginning in 1827, law students had to defend their theses before they graduated
Lines:
16 from the department of jurisprudence. Although many of these theses remained
17 unpublished, they allow us to study the penal issues that interested academia ——
18 during the late 1820s, 1830s, and 1840s. 0.0pt
———
19 The debate about the death penalty heated up in 1827 and continued through-
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20 out the early 1830s. Those who opposed this type of punishment followed
PgEnd
21 Beccaria’s notion of proportionality between crime and punishment and Ben-
22 tham’s principle of utility. Supporters of the death penalty quoted Rousseau,
23 Montesquieu, Filangieri, Constant, and Mably to demonstrate that not all the [86], (
24 European intellectuals believed in the abolition of the death penalty. These
25 students also emphasized that under the political circumstances that took place
26 after independence it was not advisable to deprive the state of the option of
27 applying harsh punishments in certain cases.
28 The romantic generation of 1837 witnessed the failure of the Rivadavian
29 experiments of the 1820s and criticized these liberals for attempting to trans-
30 plant European notions to the Río de la Plata without considering the historical
31 and cultural circumstances that were taking place on their side of the Atlantic.
32 Although this was true for the constitutional drafts of 1819 and 1826, it was
33 not so in the case of criminal law. Guret Bellemare in the 1820s, for example,
34 reviewed criminal legislation from Great Britain, France, and the United States
35 but only recommended their partial application to the Río de la Plata.
36 Juan Bautista Alberdi’s Fragmento (1837) contributed to the legal frame-
37 work from which the new penal system would emerge. Following Lerminier’s
38 doctrines, Alberdi proposed the task of defining an Argentine “droit” (derecho)
39 before considering its “loi” (ley), including penal law. The political organization
40 of Argentina after 1852 was going to follow this path but, in terms of criminal
1 law, issues debated during these early decades were going to shape the outcome
2 of the national penal system and its peak, the 1886 Penal Code.
3 Manuel Antonio de Castro also opposed the introduction of further criminal
4 legislation, but his motivations were different from Alberdi’s. The director of the
5 academy of jurisprudence wanted to avoid any further executive encroachment
6 of the judiciary. High-ranking members of the judiciary like Castro tried to
7 retain the monopoly of interpretation of the law. This strategy, however, blocked
8 other proposals that were part of the modern criminological discourse, like
9 juries or the reduction of the arbitrio power by the judges, subjects debated in
10 both the academy and the university.
11 Fragments of colonial law, elements of the classic penal discourse already [Last Page]
12 under revision by the late 1820s, romantic notions of legal adaptation to local
13 circumstances, and an elusive political stability constituted the ingredients from [87], (19)
14 which the modern penal system of Argentina would emerge. The construction
15 of the republican penal system during these first decades after independence
Lines: 271 to
16 would represent something more than a disruption of ideas, projects, and de-
17 bates over criminal law. The judiciary, law enforcement agents, and executive ———
18 officials were going to base their everyday decisions on many of these frag- 273.0pt P
———
19 mented notions.
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20
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21
22
23 [87], (19)
24
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26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
1
2
3
4
5 6. Administering Criminal Justice in Buenos Aires, 1810–1853
6
7
8
9
10 This chapter analyzes the administration of criminal justice from 1810 on. It
11 studies how magistrates and judicial officials performed their duties while [First P
12 colonial state forms, like penal justice, were adopting a republican platform.
13 In this scenario, the judiciary not only faced challenges from other state powers [88], (
14 but also disputes inside its changing structure. Finally, the chapter deals with
15 concrete criminal cases studying changes and continuities of this process and
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16 explaining the roles of their participants.
17 Porteño judicial institutions were not many if we compare them with other ——
18 cities like Mexico. The former capital of New Spain inherited many magistrate 0.0pt
———
19 offices and intermediate tribunals from the colonial period. In fact, Mexico had
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20 a Supreme Court of Justice from the mid-1820s on, which was not the case of
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21 the Río de la Plata region until 1862. 1 The Cámara de Apelaciones or Tribunal
22 de Justicia in Buenos Aires had to perform that role instead, which, according to
23 Mark D. Szuchman, was not enough for guaranteeing citizens’ rights. 2 Repub- [88], (
24 lican criminal justice maintained the power of interpreting the law in concrete
25 cases like its colonial predecessor. But at the same time, this power diminished
26 while other state powers became more influential in key aspects of the penal
27 process. Such interference was stimulated by the increasingly persuasive idea
28 that republican judicial authorities were not capable of dealing with urgent
29 matters of public safety. Gente decente from Buenos Aires claimed to executive
30 authority to cope with such a problem even at the cost of disregarding the rights
31 of due process.
32 In contrast to what Szuchman suggested, republican criminal justice op-
33 posed these extraordinary legal procedures, trying at the same time to reaffirm
34 its authority on judicial matters. Such public gestures contributed to spreading
35 an image of inefficiency fueled by executive authorities, which gave room for
36 the intervention of other state officials on legal issues. The Porteño appeals
37 court tried to maintain members of the judiciary under its control but many of
38 them requested assistance or help from executive authorities, which attempted
39 to undermine the independence of the judicial branch of the government. Al-
40 though the basic stages of the criminal process continued after independence,
administering criminal justice 89
1 their contents and meanings changed significantly. Brief oral trials in charge of
2 both ordinary and extraordinarily appointed magistrates challenged the author-
3 ity of the appeals court by skipping many steps of due process. The tribunal
4 rejected these trials although it also adopted measures to speed up criminal
5 procedures. Thus, judicial officials also experienced the contradictions between
6 the new republican discourse and the reality upon which it was supposed to be
7 applied.
8 Tribunals, Judges, and Judicial Officials after 1810
9 In his study of social control in early republican Buenos Aires, Szuchman ar-
10 gued that criminal justice in the city is best studied from police records. After
11 analyzing the adherence of police authorities to the principle of barrio auton-
12 omy (judicial independence at the neighborhood level), he concluded that the
13 [89], (2)
criminal justice system did not become an integrative mechanism of nation
14 building in Argentina. 3 The nature of the judicial system, however, was more
15 complex. Szuchman’s focus on social control overlooks other aspects in the Lines: 40 to
16
formation of the penal system. During the 1810s, the Rivadavian years in the
17 ———
1820s, and the Rosas regime later on, power was contested and negotiated among 13.0pt Pg
18
the executive branch of the government, the judiciary, police authorities, as well ———
19
as between these state forms and diverse groups in civil society. Hence, the study Normal Page
20
of police practices and social control is relevant, but it also limits our historical * PgEnds: Ejec
21
understanding of the criminal justice system. 4
22
The 1810s were characterized by intense but incomplete institutional exper-
23 [89], (2)
imentation in defining the functions and composition of the judiciary. During
24
the late colonial period, the Audiencia of Buenos Aires reinforced through
25
26 its sentences both the power to punish and the authority over subordinated
27 members of the judiciary (alcaldes). It was common to find judicial decisions
28 adjudicated by the audiencia that penalized someone while providing proce-
29 dural instruction to an alcalde on how to handle similar cases in the future. 5
30 But Spanish audiencia members were replaced by criollo or native born judges
31 after 1810 and their power and authority had to be renegotiated in less favorable
32 conditions. The Cámara did not inherit many of the prerogatives of its colonial
33 predecessor. In 1821, for instance, a law was passed that limited the power of the
34 appeals court. It authorized oral verdicts without the obligation of “writing” a
35 judicial sentence, thus eliminating the possibility of an appeal in certain cases. 6
36 Judicial officials, therefore, attempted unsuccessfully to maintain and expand
37 their already contested colonial seats of power in the decades after indepen-
38 dence. The Buenos Aires appeals court, along with its subordinated judges,
39 had to rely completely on the police and even the military to implement their
40 resolutions.
90 administering criminal justice
1 The wars of independence, the postcolonial institutional organization, and

2 the debates over the legal architecture of criminal law and the judiciary preoc-
3 cupied various criollo governments during the 1810s. As the province of Buenos
4 Aires was created in the early 1820s and its judiciary reorganized, more attention
5 was paid to the distribution of resources and procedural aspects of the penal
6 system without necessarily benefiting this branch of the new provincial state. 7
7 In this environment, the judiciary once again did not fare well. The distri-
8 bution of public revenues did not favor criminal judges and appeals courts,
9 who had demanded increases in their budgets. In 1825, for example, “imperious
10 needs” compelled the Tribunal de Justicia to request, once again, an increase in
11 judicial salaries from the secretary of the interior of the Buenos Aires province.
12 Judicial employees and judges, the Tribunal argued, had to support their families
13 on an insufficient income that did not match “the decorum that is implied in [90], (
14 the judicial function.”8
15 Furthermore, members of the Buenos Aires appeals court could not support
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16 themselves on their judicial salaries. Many times high-ranking judicial officials
17 in the tribunal had other jobs, carrying out additional responsibilities to meet ——
18 their material needs. Thus, they said, it was very difficult for them to concen- 0.0pt
———
19 trate on the revision of judicial criminal cases. The president of the Tribunal
Norma
20 complained to the executive authorities: “two members of the appeals court
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21 are also deputies in the general congress. They have to abandon their judicial
22 functions for many days to deal with other national business. Regarding the
23 remaining two members of the tribunal, one of them is also a provincial judge [90], (
24 while the other is a commercial judge. On top of that, these magistrates are also
25 being designated as special counselors in all the martial courts. Thus, only one
26 judge is available for judicial audiences in many cases.”9
27 During the next decade, the top provincial tribunal encountered more and
28 more operational restrictions. Even a simple requisition of office supplies was
29 a political decision. Of the 300 pesos requested by the Tribunal for everyday
30 expenses in 1827, for example, it only received 200 pesos as of February of
31 the following year. The appeals court had to beg the governor to release the
32 remaining 100 pesos. 10 The tribunal relied also on the executive authorities for
33 other needs, from building maintenance and new furniture to “basic repairs
34 that makes habitable this place.”11
35 Negotiations over the judicial budget took place every year, provoking con-
36 frontations between the appeals court and political leaders in Buenos Aires.
37 Once the judiciary was reorganized at the provincial level in the early 1820s,
38 the state budget had to be approved by the legislature (Sala de Representantes).
39 Since the judiciary was not a priority in terms of provincial expenditures, the
40 appeals court usually considered the assigned budget inadequate and some-
1 times unacceptable. In April 1830, for example, the Tribunal sent the assigned
2 allowance back to the secretary of the interior, arguing, “it was absolutely insuf-
3 ficient for covering the expenses provoked by increasing prices.” The president
4 of the Tribunal complained, “nobody wants to be secretary of the Tribunal for
5 200 pesos a year, or four reales a day in actual currency. This is a miserable wage
6 that is not enough for shoes or even for so much needed provisions.”12
7 Responding to these complaints, the governor insisted that the provincial
8 legislature reevaluate the budget. Unfortunately, this strategy was a way of post-
9 poning a decision favorable to the judiciary. Moreover, the executive authorities
10 turned down many petitions seeking an increase in the salary of minor members
11 of the judiciary. As the provincial attorney general explained to the appeals court
12 in 1827, “the salary increase . . . cannot be considered this year. These members
13 [91], (4)
of the judiciary [relatores] are experiencing the same situation as all or most
14 public employees and no budget modifications can be done now due to the
15 present circumstances. The petition will be evaluated again next year.”13 Lines: 65 to
16
Police budgets had a higher priority than judicial requests. The creation of
17 ———
new auxiliary agents working under the supervision of the urban police and 13.0pt Pg
18
the increasing expenditures of law enforcement agents during the Rosas regime ———
19
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20
that had never been abundant. While the office of the Buenos Aires chief of PgEnds: TEX
21
police was equipped with fancy furniture, 14 for example, the sessions of the
22
Tribunal de Recursos Extraordinarios (actually created during Rosas’s second
23 [91], (4)
governorship) convened its sessions in other public buildings because its own
24
had nearly collapsed. 15 As for the Buenos Aires appeals court, its expenditures
25
26 only counted for 6 percent of the 1847 budget while the police department alone
27 had 29.4 percent and the serenos (watchmen), one of the auxiliary police corps,
28 had 15.8 percent of the public funds in the same year. 16
29 Budget shortages and reduced salaries were not exclusive problems of the
30 Tribunal de Justicia. Judges and other judicial officials relied on the appeals
31 court to negotiate with executive authorities in Buenos Aires for better wages.
32 The Tribunal often received letters from criminal judges, prosecutors, public
33 defendants, and other judicial officials that requested increases in their salaries,
34 more personnel, and so forth. Since one of the major concerns of numerous
35 political factions in power after 1810 was to maintain public order through a
36 more efficient criminal justice system, the appeals court backed up subordinate
37 members of the judiciary by arguing that efficiency would only be accomplished
38 with the appropriate resources. 17 Petitions for more tribunals, smaller territo-
39 rial jurisdictions, and more auxiliary employees, were some of the persistent
40 requests by judicial authorities after 1810. 18 Nonetheless, political leaders pre-
1 ferred to invest the few available resources in increasing the payroll and power
2 of law enforcement agents in order to assure a certain level of social control.
3 Excessive police autonomy was an ongoing concern for judges and jurists.
4 Many legislative projects and judicial correspondence reflected this apprehen-
5 sion. For example, the Cámara de Justicia issued a letter introducing new plans
6 for the administration of justice in 1833. It protested to the governor of Buenos
7 Aires because police officers “have become truly judges, usurping the [legal]
8 jurisdiction that used to belong to the magistrates.”19
9 Besides their concerns over wages and budget in general, the appeals court
10 and the judges faced specific problems due to the lack of human and material
11 resources. Notifications, summonses, and other judicial acts required auxiliary
12 personnel to carry out the judges’ orders. Those actions went beyond arresting
13 [92], (
someone, which was usually done by the police. Judicial acts, like the ratification
14 of witnesses’ testimonies before the judge, were legal steps needed to complete a
15 criminal case so that the judge or the tribunal could pass the final sentence in the Lines:
16
case. Difficulties in carrying out these legal acts caused delays that strengthened
17 ——
criticisms of judicial inefficiency. 20 13.0p
18
In contrast, the police were strongly shielded from criticism. An organized ———
19
police force and its auxiliaries, as the government stated at the same time, would Norma
20
constitute the executive arm of the judges and the appeals court as it was before PgEnd
21
1810. There were some differences in this regard, however, that undermined
22
the power of the judiciary after independence. During the colonial period, the
23 [92], (
alcalde combined the judicial function of organizing the expediente (judicial
24
case) as well as executing his own resolutions with the help of his assistants.
25
26 This last option was no longer available for early republican judges. They had to
27 rely almost exclusively on the will of police and executive authorities to enforce
28 their orders.
29 The Tribunal de Justicia tried to reduce institutional dependency by lim-
30 iting the role of police in judicial acts like legal notifications. In order to do
31 that, however, judges had to have additional personnel to replace the police,
32 which was not always possible. Criminal judges Bartolomé Cueto and Manuel
33 Insiarte expressed this concern to the Tribunal in 1828. On the one hand they
34 acknowledged the resolution adopted by the appeals court that limited police
35 action on the execution of judicial orders. On the other hand, however, they
36 were forced to request two additional judicial agents with horses (ordenanzas
37 de a caballo) for notifications and other legal tasks outside the courtroom. As
38 the Tribunal de Justicia did not have the resources to enforce the resolution
39 and satisfy the demands of the judges, it had to refer the request, once again,
40 to the secretary of the interior. 21 Hence, in the long run, the judiciary was kept
1 inside the courtroom, limiting its contact with the civil society while the police
2 became the visible face of the penal system for the people.
3 The merging of offices and functions that limited the operative capacity of
4 the judiciary constituted an additional obstacle. The roles of public attorney
5 for the defense, public notary, as well as other minor officials were redefined
6 several times after independence. Reducing state expenditures rather than im-
7 plementing republican theories motivated these changes. The merging of judi-
8 cial functions was conceived, as executive authorities explained, as a temporary
9 measure since the positions were filled each year. 22
10 Buenos Aires lawyers and other people linked to the legal profession did not
11 always accept those appointments with enthusiasm. The positions helped them
12 to strengthen their ties with the political factions in power, yet their acceptance
13 involved a significant amount of work for a miserable salary, if they were paid [93], (6)
14 at all. Actually, The reglamento for public defense attorneys passed on April 1,
15 1840, explicitly stated that the person holding this office for a year was not going
Lines: 80 to
16 to receive any salary. It also established that the defensor de pobres y menores
17 did not have to be a lawyer, although a legally trained assistant was usually ———
18 appointed to help him. 23 0.0pt PgV
———
19 In a letter to the secretary of the interior on December 18, 1829, for example,
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20 the incoming children’s public defendant (defensor de menores), Victorio Gar-
PgEnds: TEX
21 cia Zuñiga, reluctantly accepted the position. Ten days later, the government
22 merged his office with the position of defender of the poor (defensor de pobres)
23 and the office of the special public attorney for Indians (defensoría de naturales) [93], (6)
24 for the year 1830, provoking Garcia Zuñiga’s discontent. “During the few days I
25 have held these positions,” he argued in another letter, “it has been absolutely
26 impossible to deal with so many different issues and cases by myself.”24
27 Political instability during these years also meant job insecurity and precari-
28 ousness in the judiciary. As the government appointed them, the public careers
29 of many judicial officials were also tied to the political faction in power. When
30 the federalists came back to power in Buenos Aires in late 1829, for example, for-
31 mer prosecutor Francisco Planes petitioned for the salaries he did not get when
32 he was fired by supporters of the 1828 triumphant unitarian revolution of Juan
33 Lavalle. 25 It is not surprising then to find many years in which judicial offices
34 were declared vacant, giving another reason for merging them with others. In
35 1835, for example, the Buenos Aires appeals court reported to the government
36 that even though several openings for the post of public notary attached to
37 the criminal court (escribanos del crimen) were repeatedly announced, nobody
38 showed up. 26
39 After the consolidation of Rosas’s regime in 1835, the mechanisms of judicial
40 appointments were simplified in practice. Loyalty to the federal cause, certified
1 by the executive authority, became the most important condition and almost
2 exclusive requirement for employment. Furthermore, if somebody could not
3 accept or had to leave one of those one-year judicial appointments, he had to
4 recommend possible replacements by suggesting other potential candidates. 27
5 As Jorge Myers points out, this litmus test meant that the judiciary’s legitimacy
6 did not derive from the division of power, but rather from its commitment to
7 the regime’s goals. 28 The authority of the appeals court and criminal judges
8 was also undermined by the creation of special judges and tribunals. Executive
9 authorities appointed occasional judges to deal with specific felonies. The first
10 Comisión de Justicia was created in 1812 to decide summarily all cases of theft.
11 Its goal was to arrive at a decision “in the shortest possible period of time,”
12 and the only procedure required was to listen to the testimony of the accused
13 only once. 29 Different political factions in office appointed these special judges. [94], (
14 In fact, justice commissions existed until the National Constitution of 1853
15 abolished them. 30
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16 Although these justice commissions and judges only acted in specific cases or
17 times, the judiciary resisted them. The appeals court insisted that special judges ——
18 without formal legal training should not be appointed. As the president of the 0.0pt
———
19 Cámara de Justicia explained in 1821, “the quality of lawyers that is required
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20 for those who are going to serve in public office as judges is supported by the
PgEnd
21 nature of their functions.”31 Moreover, the Tribunal asserted later on that the
22 opinions of these special judges often collided with the decisions of the appeals
23 court. The existence of the justice commission not only created the problem of [94], (
24 diverse legal interpretation, but it also promoted a parallel system of criminal
25 justice that was not controlled by the highest members of the judiciary, but
26 rather by executive authorities. 32
27
28 Conflicts within the Judiciary
29 Although recent studies of early republican justice administration in the Río
30 de la Plata recognize the intervention of executive officials in judicial matters,
31 they overlook the internal disputes among judicial officials that contributed
32 to an erratic enforcement of criminal legislation. These works only describe
33 changes in the legal functions and responsibilities that members of the judiciary
34 performed. 33
35 Judges and other judicial officials clashed while defending what they con-
36 sidered their rights and prerogatives. In criminal cases that took longer than
37 usual to finish, for example, they argued about what was the maximum amount
38 of time allowed to fulfill their duties without delaying the resolution of the
39 expediente. Pressured by the press and executive authorities in high-profile
40 cases, judges had to wait not only for the police to finish the sumario but also
1 for the completion of several legal steps during the plenario. While magistrates
2 blamed police officials for delays during the sumario stage, they also argued
3 that prosecutors and defense attorneys prevented them from producing quick
4 sentences at the plenario. 34
5 Once the sumario was finished, several steps had to be taken before the judge
6 could give his final verdict. The ratification of witnesses, already mentioned,
7 was one of them. The vistas constituted another example. After all the evidence,
8 including testimonies, was presented in the case, the expediente was sent to the
9 prosecutor and the defense attorney for their examination (vista). The vista
10 ended with written statements from both sides of the judicial process, one
11 presenting charges and the other generally denying them. If new evidence was
12 added or new testimonies were requested by the parts involved in the case, vistas
13 had to be repeated again. [95], (8)
14 The vista stage of the plenario eventually generated conflicts and accusations
15 among judicial officials for there was no legal term to finish it. When the ap-
Lines: 99 to
16 peals court or other authorities pressured judges to finish a criminal case, the
17 latter blamed the delays on either the police or other judicial officials, like the ———
18 prosecutor and the defense attorney involved in the expediente. This happened, 0.0pt PgV
———
19 for example, to criminal judge Baldomero García in the case brought against
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20 Joaquín Chapaco and others for resistance against authority in 1836. Attempting
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21 to finish this case rapidly, García demanded that the prosecutor return an ex-
22 pediente he had under vista. Prosecutor Lucas González Peña, however, refused
23 to deliver the case back to the judge before finishing his vista and producing [95], (8)
24 his formal accusation against the defendants. He replied, according to the mes-
25 senger García sent to Gonzalez Peña’s house, that “the judge was wrong [in
26 demanding this] because prosecutors are not subjected to any legal term to
27 finish their businesses.”35
28 Judge García complained to the appeals court and the tribunal supported
29 him. The prosecutor of the Cámara de Justicia justified García’s actions by
30 explaining that several laws, which had redefined the role of prosecutors in
31 criminal cases after independence (the two most important being the 1812
32 Reglamento de Administración de Justicia and the 1817 Reglamento Proviso-
33 rio), stressed that these judicial officials should contribute to a rapid resolution
34 of criminal cases. Although the reglamentos did not specify any legal term for
35 the vistas, “no law exempted prosecutors from finishing them quickly, as the
36 practice has also established.”36
37 Prosecutor González Peña preferred to employ the trappings of the executive
38 branch for his defense. He implored the “paternal authority of your excellency,”
39 the governor, to mediate in this judicial dispute. González Peña pointed out
40 that he had to deal with cases that related to “public affairs of the government,
1 four criminal judges, the Tribunal de Alzada, the Tribunal Mercantil, and even
2 the appeals court when its prosecutor was unable to do it (all this without the
3 assistance of the often appointed cojudges).”37 Thus, according to González
4 Peña, it was impossible to keep up with the demands of one judge in one
5 particular case. Stressing his active role as prosecutor, he reported having dealt
6 with 530 civil and criminal cases and 994 vistas during a fifteen-month period.
7 Furthermore, he informed that, as prosecutor, he had helped to collect 20,657
8 pesos and 7 1/2 reales for the treasury in concept of fines, fees, and such. 38
9 Executive authorities rejected González Peña’s complaints, however, joining
10 the appeals court in admonishing him to avoid further delays in criminal cases.
11 The appeals court recognized that prosecutors did not have specific terms for
12 their vistas but, at the same time, they had to meet the judges’ judicial dead-
13 lines. 39 The secretary of state for the Buenos Aires province produced a bolder [96], (
14 reply, reminding the prosecutor that he should not challenge the authority of the
15 judge (who actually belonged to the political group in power) in the future. 40
Lines:
16 While González Peña used extrajudicial channels for attempting to solve his
17 controversy with a criminal judge (another parameter in the involvement of ——
18 executive authorities in judicial affairs), he failed to appreciate or perhaps he 0.0pt
———
19 did not know that the authorities were particularly interested in the resolution
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20 of this criminal case. He probably forgot, indeed, that there were some criminal
PgEnd
21 cases more important than others.
22 Conflicting views between an administration of criminal justice managed
23 by members of the legal profession (justicia letrada) and one where citizens [96], (
24 could participate in the resolution of cases (justicia lega) created another area
25 of conflict within the judiciary. This controversy began during the late colonial
26 period when the audiencia ordered alcaldes de primero y segundo voto from
27 the local cabildo to appoint lawyers (asesores letrados) to assist them. 41
28 The failure to establish juries, the requirements implemented by the appeals
29 court for becoming a member of the judiciary, and the permanence of a written
30 procedure dominated by a legal discourse in criminal expedientes contributed to
31 the consolidation of a judicial system dominated by lawyers. Changes that took
32 place during the 1820s, like the abolition of the cabildos and the replacement
33 of porteño (with no legal training) alcaldes by civil and criminal judges of the
34 first instance, reinforced the tendency toward justicia letrada as well.
35 During this second decade of independence, however, many officials involved
36 in the administration of criminal justice did not easily fall into one of these
37 two types of justicias. This situation also created tensions in the judiciary as
38 the example of the justices of the peace in the city of Buenos Aires illustrates.
39 Originally conceived to administer justice in misdemeanors and minor disputes
40 at the neighborhood level, urban justices of the peace had less jurisdiction and
1 fewer functions than their counterparts in the countryside. Without specific

2 laws defining their duties, they soon began to suffer the encroachment of law
3 enforcement agencies from below and criminal judges from above. Securely
4 controlling the sumario, police comisarios had no intention of sharing power
5 and jurisdiction with justices of the peace while criminal judges reviewed and
6 many times rectified many of their resolutions. 42
7 As the involvement of urban justices of the peace in criminal cases decreased,
8 these nonlegally trained judicial officials tried to find institutional support out-
9 side the judiciary. Once again, the executive branch of the government became
10 a forum where officials with judicial functions presented their complaints. This
11 was the place, rather than the appeals court, where justice of the peace J. Bar-
12 renechea sent his resignation in 1830. Besides the lack of legislation defining his
13 judicial role, Barrenechea complained, he noticed that “the appeals judges had [97], (10)
14 changed all the resolutions I have passed in different cases,” which he considered
15 an affront. 43
Lines: 115 to
16 Having to choose between obedience to judges who reminded him all the
17 time that they knew better by revoking all his resolutions as justice of the peace, ———
18 or subordination to other demanding yet encouraging authorities, Barrenechea 0.0pt PgV
———
19 did not hesitate: “It is so immense the distrust, the distress, and the invincible
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20 aversion that I have right now for the judicial functions, that I would not be
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21 able to continue performing them without endangering the administration of
22 justice. Furthermore, as judge I am unable to fulfill my duties as captain of the
23 second company, first battalion, of the Regimiento de Patricios. It is precisely [97], (10)
24 this last position that, I believe, denotes a perfect analogy with my character
25 and aptitudes.”44
26 Executive authorities praised his merits, endorsing his decision to resign
27 as justice of the peace. This support continued in other cases, as these lower
28 magistrates in the city deepened their disagreements with judges and the appeals
29 court. 45 A common strategy of co-opting judicial magistrates, which is still
30 practiced today by the executive branch of the government, consisted of backing
31 up their complaints against high-ranking members of the judiciary, offering
32 them a position in the government (as ministro or secretario de justicia, for
33 example), or the second or third place in the list of candidates to congress for
34 the party of the government in an incoming election. 46
35 Many justices of the peace and even judges realized that the permanence of
36 their positions not only depended upon their judicial knowledge but also on
37 the support of their political connections. They knew that the various political
38 factions in power, from Morenistas to Rivadavians to Rosistas, were eager to
39 get information about new or pending criminal cases. Magistrates were not
40 supposed to report directly to executive authorities on any criminal case. The
1 appeals court was supposed to act as intermediary in order to guarantee the

2 independence of powers. Judicial officials who wanted to please the government,
3 however, found alternative ways of keeping them updated despite criticisms
4 from other members of the judiciary. A common strategy, for example, consisted
5 of submitting information about a case (or even the whole expediente) to the
6 appeals court via the executive branch of government. Thus, nothing could
7 prevent officials in the Ministerio de Gobierno, for example, from looking if
8 they were interested in what was being done in a particular criminal case. 47
9 Judicial officials willing to cooperate with executive authorities clashed with
10 others who remained loyal to the appeals court. Political motivations were
11 not absent from these disputes. Federalist/Rosista judge Baldomero García,
12 for example, was criticized for his connections with the government during
13 [98], (
the early 1830s. He even accepted orders from executive authorities in specific
14 criminal cases. In 1831, for example, Ministro de Gobierno Tomás de Anchorena
15 cut a deal with a defendant’s father who wanted to reveal what he knew about Lines:
16
a group of bandits (gavilla de ladrones) in exchange for protection. Anchorena
17 ——
ordered judge Garcia to take new testimony from defendant Juan José Lascano, 13.0p
18
who was held in the public jail, in order to obtain information about a case ———
19
whose resolution interested so many in the government. 48 García carried out this Norma
20
order despite criticisms from his peers, but his loyalty to the government paid * PgEnd
21
off. After years as a criminal judge, he was elected to the provincial legislature,
22
where he remained as a prominent figure of Rosismo until its fall in 1852.
23 [98], (
High-ranking members of the judiciary retained their function as superin-
24
tendents of this component of state power, but dissidents contested it by not
25
26 only using their political connections with executive authorities, like judge Bal-
27 domero García did, but also by appealing to extrajudicial authorities and their
28 own capability of interpreting the law. When criminal public notary (escribano
29 público en lo criminal) Saturnino Ortiz de Oroño discovered that the appeals
30 court had denied him certain legal rights in ordinary cases, he challenged it by
31 arguing that “this resolution [by the appeals court] contradicts the contents of
32 the official appointment as criminal public notary I received from the supreme
33 government.”49
34 Since the executive branch appointed many judicial officials like public no-
35 taries, prosecutors, and public defenders, executive authorities believed they had
36 the right to define their roles. If the appeals court tried to enforce something
37 different, these subordinate members of the judiciary (like Ortiz de Oroño)
38 turned to the government for an alternative interpretation of their duties. Al-
39 though the appeals court technically supervised the judiciary, the tribunal did
40 not always have the final word in conflicts with its subordinates. 50
1 The intervention of executive authorities in judicial affairs and their role

2 as alternative mediators in disputes within the judiciary always followed some
3 sort of legal procedure. The legal system left room for this type of extrajudicial
4 intervention, which prevents us from defining them as “arbitrary.” There were
5 many cases, especially those related to formalities of the legal process, where the
6 appeals court made the final decision, imposing fines and other penalties for
7 administrative and procedural irregularities. 51
8
9 Criminal Justice and the Struggle for Institutional Power
10 During the early 1820s, the authorities of the newly created province of Buenos
11 Aires proposed several political and administrative reforms, like the suppression
12 of the cabildos, which changed the structure of the judiciary. The government
13 identified three key areas for the improvement of the administration of criminal [99], (12)
14 justice: the need for a penal code, the establishment of legal procedures in
15 criminal cases (código de procedimiento penal), and more transparency in the
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16 selection process of criminal judges. 52 Jurists and the judiciary in general agreed
17 that the penal and procedural codes were much needed, but this legislation ———
18 would have to wait until the constitution was approved. Hence, the appeals 0.0pt PgV
———
19 court put its efforts into suggesting more practical changes “without taking the
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20 dangerous step of substantially altering the system of laws.”53
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21 The appeals court looked forward to participating more in the process of
22 selection of criminal judges. The tribunal accepted the government’s practice of
23 appointing them, but at the same time tried to limit the candidates. Numerous [99], (12)
24 proposals tried to establish an examination process of the candidates (with a
25 law degree as a minimum requirement) directly supervised by the appeals court
26 and the academia de jurisprudencia. A list of three finalists would be sent to the
27 executive authorities for the final appointment. 54 The government, meanwhile,
28 wanted neither to limit its choices nor to devise a specific selection mechanism.
29 This reluctance continued until the second half of the nineteenth century.
30 By focusing on administrative changes, judicial authorities wanted to address
31 the most important problems they faced in the decades after independence. As
32 Manuel Antonio de Castro pointed out, there were three factors that provoked
33 inefficiency in the administration of criminal justice in Buenos Aires: lack of
34 judges’ auxiliaries or procuradores, ratification of witnesses, and delays in the
35 formation of criminal cases or sumarios. 55
36 The first and second problems were related to restrictive budgets, which
37 resulted in an insufficient number of judicial personnel, as well as judicial ad-
38 ministrative dependency on the police and executive authorities. This depen-
39 dency was clear, for example, in the process of judicial ratification of witnesses.
40 A colonial legal procedure that continued after independence mandated that
1 all witnesses whose written testimonies were part of the initial case (sumario)
2 should be called to the courthouse in order to ratify or rectify what they said
3 before the police. Judges summoned these witnesses weeks or even months after
4 the crime was committed, and they were not always easily found. Since criminal
5 judges did not have enough employees, they had to request the assistance of
6 the executive authorities to reach those people. Sometimes criminal judges had
7 judicial employees for that task (ordenanzas de a caballo) but the number of wit-
8 nesses they had to find and summon overwhelmed them. As Castro explained,
9 the whole criminal process had to stop, waiting for the ratification of witnesses.
10 Interestingly enough, he did not want to change or eliminate that legal step but
11 to obtain more resources for speeding up such procedures. 56
12 The ratification of witnesses illustrated the tension between legal principles
13 and their application. Both colonial and postcolonial judicial authorities recog- [100],
14 nized that giving the witness a second opportunity to recall the circumstances
15 of the case would bring clarity to the criminal process. The implementation of
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16 this legal step, however, provoked resentment between the judicial and execu-
17 tive authorities, delayed the resolution of cases, and created a locus of arbitrary ——
18 police power. If executive authorities or the police wanted to keep somebody 0.0pt
———
19 in prison, they would get the testimony of many people at the beginning of the
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20 judicial process taking some extra time in finding these witnesses later on for
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21 the ratification stage. Although the judge perhaps wanted to speed the process,
22 he had to complete that legal phase to move forward. With most of his few
23 assistants working inside with the expedientes, he had no choice but to demand [100],
24 in endless letters to the chief of the police or other executive authorities the
25 completion of those summonses. 57
26 Judges and the appeals court were unwilling to ignore this and other legal
27 steps, and executive authorities saw this determination as a sign of inefficiency.
28 Assorted political factions in charge of the executive branch of the government
29 described themselves as being pressured by the population to guarantee order
30 and peace in Buenos Aires, while the judicial branch of the government, as
31 they accused, was more concerned with missing signatures, double-checking
32 procedures, or utilization of decorous language in the expedientes. Judges did
33 not even show up in the courthouse, and the executive authorities had to remind
34 them about their duties. 58 These accusations were certainly exaggerated, but
35 at the same time they illustrate how various groups understood the issue of
36 inefficiencies in the administration of criminal justice in many different ways.
37 Due to their expectation of results and their suspicion that the judiciary
38 was not doing enough, executive authorities from both unitarian and federalist
39 political extractions bombarded the appeals court and judges with inquiries
40 regarding the status of criminal cases. They wanted to know if expedientes were
1 finished and criminals punished. The judicial practice of reporting pending

2 criminal cases to the authorities was common in late colonial Buenos Aires.
3 Alcaldes from the cabildo used to do it. They stayed only one year in office
4 composing the list when they left. During the 1810s that practice continued
5 and executive authorities started to request those reports on a regular basis.
6 Although tenured criminal judges replaced alcaldes at the beginning of the
7 1820s, governmental officials continued to inquire about criminal cases and
8 demanded “harsh punishment” for criminals as a way of keeping public order
9 in postcolonial Buenos Aires. 59 Actually, these periodic reports were mandatory
10 during the Rivadavian years, and Rosas continued the practice. 60
11 Debates over the efficiency of the criminal justice system were also related in
12 the third and perhaps most complex problem defined by Manuel Antonio de
13 Castro: the formation of the sumario. Population growth and social unrest in [101], (14)
14 the transition from colonial to independent government made it more and more
15 difficult for the alcaldes de primero y segundo voto to deal with all criminal
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16 cases. For this reason, among others, the organization of an urban police force
17 after 1812 included the responsibility of assisting the alcaldes in the initial stages ———
18 of the sumario. Thus, urban police officers (comisarios) in each Buenos Aires 0.0pt PgV
———
19 neighborhood began to directly handle many sumarios in criminal cases. In
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20 contrast to the colonial period, police involvement took place not only during
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21 the initial stages of the judicial process (auto cabeza de proceso) but also during
22 later stages of the sumario in both felonies and misdemeanors. 61
23 When criminal judges replaced alcaldes in 1821, the new judicial magistrates [101], (14)
24 became less involved in the sumario than their predecessors. Jueces de paz
25 (justices of the peace) were appointed to deal with civil and criminal sumarios.
26 That scheme worked in the countryside as the justices of the peace initiated
27 the criminal case, sending it later to the criminal judge in Buenos Aires for
28 the plenario. However, the case of the city was different. Justices of the peace
29 in Buenos Aires neighborhoods concentrated their activities on civil disputes
30 and most of the criminal cases were initiated and written by police comisarios.
31 Actually, the government acknowledged the role of the urban police in the
32 formation of the sumario in an 1822 decree that instructed comisarios on how
33 to compile information for the case. Before sending the sumario to the judge,
34 the decree established that the police had to report details of the criminal case
35 to the executive authorities. 62 Thus, police intervention in the sumarios gave
36 the government direct involvement and control of judicial and crime related
37 issues.
38 Criminal judges remained responsible for finishing the sumario and the sub-
39 sequent plenario. By the time they received the expediente, however, the police
40 had already laid out the course of the criminal process. Judges could still collect
1 new evidence, interrogate witnesses and the defendant, and so forth. Weeks and
2 even months, nonetheless, passed between the crime and the moment the judge
3 received the case from the comisario or justice of the peace. This time reduced
4 the possibilities of substantially modifying what was already produced.
5 The appeals court of Buenos Aires disapproved of the practical consequences
6 of the 1822 executive decree. It empowered the police over the judges, they
7 stated, provoking delays in the administration of criminal justice. “Many times
8 comisarios compose long and meticulous sumarios instead of reporting just
9 the crime and its circumstances, its author and the list of relevant witnesses.
10 Thus, they frustrate the effectiveness of the judicial confession, delaying the
11 legal process.”63
12 The appeals court and the judges were disappointed because they had to wait
13 for the police to release the sumario, but they were also dismayed because the [102],
14 government accused them of slowing down the resolution of criminal cases.
15 Executive authorities justified police holding of the expediente for the time-
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16 consuming process of collecting evidence and searching for witnesses and of
17 course the criminals themselves. They perceived, however, that the case did not ——
18 progress in the judge’s hands as it went through a series of more formal judicial 0.0pt
———
19 steps.
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20 Judicial and executive perspectives on these matters collided in criminal
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21 cases, like the murder of Francisco Alvarez in 1828, where executive authorities
22 pressured for rapid results. High-profile felonies, like Alvarez’s assassination
23 by his own friends, were daily reported by porteño newspapers, fueling the [102],
24 debate about the death penalty from the late 1820s on. Guret Bellemare’s Plan
25 general de organización judicial para Buenos Aires was also conceived at this time.
26 Solving these types of cases interested executive authorities enormously, as it
27 was pointed out, in order to legitimize themselves as guarantors of the social
28 order.
29 The appeals court criticized governmental insistence on immediate resolu-
30 tion in that homicide by arguing that “there was no slowdown in this case . . .
31 only the type of delay that is absolutely necessary for clarification, which is the
32 first objective of the criminal process, the basic public interest, and the unique
33 foundation of justice.”64 Judge Bartolomé Cueto, in charge of the case, added:
34 “to abbreviate or to prolong a sumario does not depend on the judge’s wish and
35 will but on the nature of the case most of the time.”65 Both appeals court and
36 judges emphasized that police caused delays in the sumario. 66
37 In response to judicial complaints of conflicting division of powers, another
38 decree was passed in 1830 preventing comisarios from writing sumarios for
39 felonies. 67 Although the appeals court received and acknowledged that decree
40 with satisfaction, it did not have practical application. 68 The two criminal judges
1 of Buenos Aires were unable to deal with all the cases that occurred in both the
2 city and countryside. After the 1830 decree, police comisarios were supposed to
3 write only an initial statement about the case (parte), but they ended up writing
4 most of the sumario again.
5 Hence, a few years later (as it happens even in present-day Buenos Aires pro-
6 vince), the exchange of accusations between executive and judicial authorities
7 regarding efficiency in the administration of criminal justice continued to have
8 the police sumario at the center of the debate. Authorities demanded that the
9 appeals court instruct criminal judges to “simplify legal steps and even defense
10 petitions in order to obtain a rapid resolution of the cases,” while the tribunal
11 blamed the police for the delays. 69
12
13 Administering Criminal Justice, 1810–1853 [103], (16)
14 Although Enlightenment discourse did not completely penetrate the judicial
15 system after independence, some of its elements began to appear in the many
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16 stages of the criminal process. For instance, government propaganda, as Henry
17 (Hans) Vogel argues, contributed to the spread of new political ideas that also ———
18 affected the judicial discourse. This propaganda targeting citizens, as the inhab- 0.0pt PgV
———
19 itants of Buenos Aires were called in official proclamations, included renaming
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20 streets, creating a postcolonial official calendar of festivities, and defining the
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21 criteria for citizenship in the United Provinces of the Río de la Plata. 70
22 Lawyers and judicial officials began to use terms such as “human rights,”
23 “individual guarantees,” and “egalitarian justice” in their written depositions [103], (16)
24 for the criminal expedientes. This terminology was accepted, but authorities
25 were not always willing to tolerate its practical consequences. Citizen Carlos
26 José Gomez, as the alcalde Mariano Grimau explained to his superiors in 1816,
27 for example, should not say in public that members of government were “a
28 bunch of thieves and fraudulent people, trying to impose all sort of taxes and
29 contributions to ruin honest neighbors.” Grimau arrested citizen Gomez, even
30 though the latter alleged “that freedom of speech and the estatuto provisorio
31 protect citizens from being harassed by the authorities.” After being held in
32 prison for two months, executive authorities began to explore the possibility
33 of opening a judicial case against Gomez who, at that point, would have been
34 reluctant to exercise his new rights of citizenship. 71
35 As happened during the colonial period in Buenos Aires, the urban poor were
36 unwilling to testify in criminal cases. While the official propaganda proclaimed
37 the benefits of a new era, several political factions were still unsure about this.
38 Criollo political strife coexisted with the anxiety of an eventual restoration
39 of the colonial order, especially during the first decade after independence.
40 While prosecutors and defense lawyers debated specific cases about how to
1 translate the new political discourse in judicial terms, defendants preferred

2 to avoid the center of these discussions. Claiming the principle of innocence
3 for his client, counselor Francisco Planes requested “the suspension of any
4 judicial proceeding made in this criminal case without the knowledge of the
5 reo [accused].” Defendant Manuel Francisco Acosta agreed with this petition,
6 as long as it would not delay his release from prison, which was his primary
7 concern. 72
8 Spaniards living in Buenos Aires during the wars of independence did not
9 enjoy former colonial privileges. Besides substantial tax contributions, they were
10 always the first suspects in accusations of conspiracy as well as other crimes. The
11 prosecutor Dr. Cernadas, for example, was extremely harsh against defendant
12 Manuel Boga, a Spaniard accused of insulting and attacking councilman Manuel
13 [104],
Bustillos and his servant by breaking into his house. “The violation of a citizen’s
14 house is a crime; [Cernadas pointed out] that it is even graver when there is a
15 great distance between the social condition of the defendant and the victim.”73 Lines:
16
Public attorney Rafael Pereyra, however, declared that members of the ju-
17 ——
diciary should not be influenced by political circumstances, that is, Cernadas’s 13.0p
18
identification of Boga as “Spanish and European, hence our enemy.” Pereyra ———
19
reminded other participants in this criminal case that postcolonial legislation Norma
20
“explicitly declared that all men are equal before the law. Penal or prescriptive PgEnd
21
laws should be the same for everyone. When administering justice, we should
22
not take into consideration the origin or class of the individual but only the
23 [104],
nature of the action he executed.”74 Despite the best efforts of the defense, Boga
24
remained in prison for a year. It took three months to ratify the witnesses in
25
26 this case until he finally was released from jail. Often, the new judicial discourse
27 and its practical application did not correspond in criminal proceedings.
28 In another case, for example, defendant Bartolomé Portela (arrested in 1813)
29 also stated that social differences were no longer applicable in legal matters.
30 “The simple accusation is not enough to begin a criminal case, [he argued],
31 regardless of the reputation and honesty of the accuser.”75 Judicial and executive
32 authorities disagreed with this statement. Who filed the charges continued to be
33 an important factor in the administration of early republican criminal justice.
34 The interrogation process during the sumario was based on presenting
35 charges and trying to convince the defendant to confess by reading him or
36 her a list of witnesses and accusers and their testimonies. This method of in-
37 terrogation, a legacy of the colonial period, hampered the defendants’ ability to
38 properly represent themselves. They could submit written statements by way of
39 their public or private lawyers later on. The few opportunities when defendants
40 saw the judge, however, were devoted to trying to obtain their confession. Thus,
1 many defendants held in the public jail during their criminal trials protested
2 for administrative delays in carrying out this judicial act. 76
3 The official discourse on the benefits of independence from Spain perme-
4 ated numerous groups in society. People began to push for certain rights. This
5 heightened legal consciousness, nonetheless, was not a guarantee that their
6 demands were going to be met. Although inmate Esteban Pintos kept what
7 was considered disrespectful posture during mass at the public jail, he claimed
8 that penitentiary personnel did not have any right to punish him with the cepo
9 (stocks) but only to report the incident to the proper authorities. 77 Without
10 mentioning it, Pintos demanded the application of an 1811 law, later incorpo-
11 rated into the national constitution of Argentina, which stated that the primary
12 objective of postcolonial prisons was correction and not punishment. Pinto’s
13 assertion did not persuade the appeals court, and he was given fifty lashes for [105], (18)
14 his “crime.” Another inmate received one hundred lashes for participating in
15 the incident as well. 78
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16 The absence of a penal code and the passing of early republican criminal
17 legislation expanded judicial officials’ authority to interpret the law in criminal ———
18 cases. From the Spanish fueros and Partidas to the bandos and laws passed by 0.0pt PgV
———
19 various criollo governments after 1810, judges had a broad spectrum of legal
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20 choices when evaluating expedientes. The evidence and testimonies collected
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21 during the sumario stage conditioned their decisions, but at the plenario they
22 retained the arbitrio power that colonial magistrates enjoyed. Jurists and law-
23 makers demanded both the reduction and regulation of judicial power, but [105], (18)
24 ordinary citizens likewise did the same. This happened, for example, in the case
25 of José Arguello and his slave Bonifacio, charged for intimidating José Vila in
26 1834. Arguello was later released, but Bonifacio remained in jail. Complaining
27 about the outcome of this case,Arguello claimed that his argument with Vila was
28 defined as criminal behavior by the judge only because of his arbitrio powers. 79
29 Jurists and law students from the 1820s on also demanded that judges explain
30 how they reached their verdicts and sentences. By the late colonial period,
31 prosecutors and attorneys for the defense quoted Roman and Spanish law to
32 support their propositions, although alcaldes and the audiencia did not embrace
33 such practices in their sentences. Despite the changes suggested by members of
34 the legal profession after 1810, judges and the appeals court were reluctant to
35 explain the juridical basis of their decisions in criminal cases.
36 The few expedientes where judges did explain their sentences were related to
37 extraordinary cases. In 1825, for example, judge Bartolomé Cueto concluded that
38 Vicente and Domingo Pauleti and José María Sosa, all minors, were responsible
39 for stealing money and other personal effects from Francisco Brotal. Part of
40 the belongings had been recovered and the children confessed what they had
1 done. Judge Cueto called the children and their parents to his office and then
2 he announced a verdict. The judge reviewed the case and emphasized that the
3 children committed a felony. Then he reprimanded their parents for not super-
4 vising them more carefully. Cueto explained that he “did not want to dishonor a
5 family by condemning in public some boys whose lack of understanding drove
6 them to commit such excess. These children can be lost forever if a nondomestic
7 punishment is applied.” Thus, he made the parents promise to apply fifty lashes
8 to their children and return the stolen effects or their equivalent value. 80 In
9 a similar case, Judge Lucas Gonzalez Peña favored a private arrangement. He
10 legally justified his decision by applying “what it is established in Law Nine,
11 Title One, Seventh Partida, as well as in Article 14, Title of the Administration
12 of Justice, Fourth Section, of the provisional Reglamento.”81
13 As a report indicated, comisario Angel Vicente Sanchez solved the previous [106],
14 crime easily arresting its child-perpetrators without any problem, but this was
15 an exception. Arresting someone accused of a crime could require a signifi-
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16 cant amount of violence. As it happened during the colonial period, resistance
17 against authority constituted a crime in and of itself, although in many criminal ——
18 cases it was presented as an aggravated factor of other crimes. Defendant Joseph 0.0pt
———
19 Bárquez, for example, was severely injured by members of a patrol who wanted
Norma
20 to arrest him after he was accused of fighting in a pulpería (bar and store). He
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21 complained to the appeals court that “during so many days the ones who put me
22 in jail did not take any step to begin the sumario nor did I have a chance to give
23 my testimony. Furthermore, I do not think they notified judicial authorities of [106],
24 my detention.”82
25 Although judges had an ongoing conflict with law enforcement agents over
26 the sumario, this did not mean they supported defendants’ complaints against
27 police abuse. No matter how unfair an accusation, he or she should not resist
28 an arrest under any circumstance. Early republican authorities were concerned
29 with the “dangerous” character of the urban underclass, a description inherited
30 from the colonial period. Judicial authorities shared this view with law enforce-
31 ment agents. Their struggle was about who would have the authority and power
32 to control these people, not about changing the prejudices that shaped both
33 colonial and republican penal systems. When teniente alcalde Francisco Real
34 arrested a couple of young workers at a pulpería, he hit them so hard that one
35 of them later died. Witness at the pulpería, a co-worker named Oyanguren, tried
36 to avoid such cruelty but he was also injured by Real. Oyanguren complained to
37 the judicial authorities about this, but legal advisor Pico recommended that “the
38 punishment he received from Real who hit him with a stick should be more than
39 enough to make him realize that, from now on, the claimant has to stay away
40 from such places and companies.” Real probably committed some excesses in
1 arresting these people, according to Pico, but both the location and the person’s
2 social standing represented a risk for the teniente alcalde. The appeals court
3 followed the advisor’s recommendation, dismissing Oyanguren’s accusations. 83
4 Real’s police practices were not tolerated when potential victims belonged
5 to, according to judicial authorities, more respectable groups of Buenos Aires
6 society. Proper procedures and individual guarantees applied to them, unless
7 they were accused of conspiracy or other political crimes. A successful police
8 career depended, among other things, on being able to perceive these differences
9 when a search, an arrest, or other security measures took place. Police assistants
10 Gerónimo Jara and Pascual Díaz learned their lesson in 1826 about ignoring this
11 nonwritten premise of law enforcement. They both were fired from their jobs
12 and handed over to a criminal judge who condemned them to two months in
13 prison for abuse of authority. Jara and Díaz searched Englishman Pedro Sulivan, [107], (20)
14 who apparently was drunk, keeping for themselves a couple of pistols he carried
15 and demanding 2 pesos in order to free him. 84 Testimonies like Sulivan’s and
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16 other witnesses’ in this case sounded more convincing to judicial authorities
17 than poor-neighborhood pulpería clients like Oyanguren. ———
18 While police comisarios shaped the direction of a criminal case by writing 0.0pt PgV
———
19 sumarios,85 public attorneys tried to avoid a guilty verdict by arguing that defen-
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20 dants did not understand the consequences of their actions because they lacked
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21 the necessary “rational qualities.” Once comisarios finished the sumario, the
22 evidence was collected, and the witnesses interrogated, there was not too much
23 defense attorneys could do. Furthermore, the position represented a public [107], (20)
24 obligation from which many lawyers found only trouble. Few people could hire
25 an attorney in criminal cases, and most of the defendants had to rely on a public
26 attorney whose job security was at best erratic. Burdened by the combination
27 of their private businesses and the vistas of criminal expedientes, Buenos Aires
28 lawyers tended to present, in short written statements, the defendants’ lack of
29 intelligence as the main justification of their innocence. 86
30 Public attorneys were well aware of the crucial role that police played in the
31 sumario stage of a criminal expediente. Thus, another common defense strategy
32 they pursued during the plenario was to question the defendant’s“confession”to
33 the comisario. The accused’s statement during the plenario, however, was simply
34 not enough to overthrow other evidence collected earlier in the case. Hence, at
35 least in aggravated cases, judges and the appeals court expected a more elaborate
36 defense. They knew that an expediente poor on juridical ideas only served to
37 reinforce the image of an incompetent judiciary. In the high-profile homicide
38 of teniente alcalde Ignacio Refogo in 1830, for example, the police targeted
39 several suspects who were brought before the judge. Resisting their arrest at a
40 party, someone had killed Refogo. Special judge José de Ugarteche found all the
1 accused guilty. They were either sentenced to death or imprisoned for many
2 years. The appeals court agreed with the extraordinary punishment, stating
3 however, that officials involved in the case had offered the defendants almost
4 no possibility of exercising their right of defense. The tribunal, thus, issued a
5 separate resolution: “Notify again the defendants and their attorneys, as well as
6 the procurador de pobres, about the sentence for this crime. Admonish at the
7 same time public attorney Dr. Vicente Acha [who] from now on is required to
8 go to the public jail to contact the defendants in the cases he is involved in as
9 attorney for the defense, receiving instructions from them to plan a strategy for
10 their defense, as it is his obligation.”87
11 The appeals court evaluated the performance of judicial officials involved
12 in criminal cases and, at the same time, controlled the use of a proper judicial
13 vocabulary in the expedientes. Similar to the colonial audiencia’s attitude, the [108],
14 Cámara did not tolerate a defense that was based on attacking what judicial
15 authorities did. The role of public attorneys, as the appeals court stated in
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16 many resolutions, was not to criticize judges but to evaluate the facts favoring
17 the defendants in a criminal case. 88 By restricting the possibility of questioning ——
18 decisions in the expediente, the appeals court tried to reinforce judges’ authority. 0.0pt
———
19 This policy also meant, however, the consolidation of a type of judicial process
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20 that favored the interpretation of facts by way of a technical discourse over the
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21 facts themselves.
22 The criminological discourse of the Enlightenment, which emphasized in-
23 dividual guarantees and rights before an absolutist state and its officials, high- [108],
24 lighted specific contradictions between new legal principles and their applica-
25 tion. Beccaria’s work, for example, favored defendants in criminal trials. This
26 created a problem for those who were responsible for solving criminal cases at
27 the judicial level in early republican Buenos Aires. Most of the criminal cases
28 did not have conclusive evidence, and as a consequence of this prosecutors and
29 judges had to apply the legal principle of innocence with moderation in order
30 to avoid overwhelming numbers of not-guilty verdicts. Fragmentary statistics
31 kept by executive officials and reported by the media comprised judicial activ-
32 ities, and they were directly related to the percentage of crimes reported to the
33 police and the final resolution of these cases by judicial authorities. 89 This was
34 another way of measuring the “efficiency” of the judiciary. Even today,“success”
35 in the administration of criminal justice depends upon, among other things,
36 statistical information on guilty verdicts. The higher the figures, conventional
37 wisdom holds, the better the criminal justice system.
38 Among many judicial actors participating in criminal cases, attorneys for the
39 defense more often utilized elements of enlightened penal discourse. While on
40 the one hand prosecutors and judges might sympathize with the basic premises
1 of the new criminological paradigm, executive authorities pressured them for

2 “results,” meaning more guilty verdicts. While public attorneys preferred legal
3 scholars, like Cesare Beccaria, to make a case favoring the defendant in a criminal
4 case, some alcaldes del cabildo (1810–21) and criminal judges later on, seemed to
5 apply the principle of utility described by English jurist and philosopher Jeremy
6 Bentham. 90
7 Public attorneys, on the other hand, had a compelling statement (although
8 not always successful) if they decided to question the character and integrity
9 of the evidence in criminal cases. As Dr. Manuel José Baez, attorney for the
10 defense in a homicide case, explained in 1829, paraphrasing Beccaria: “There
11 are no presumptions or even signs that [defendant Felix] Cabrera is guilty
12 [of this crime . . . ]. Arbitrary punishment and the arbitrary classification of a
13 human being is no longer acceptable in an enlightened [judicial] practice. Only [109], (22)
14 the law defines and imposes penalties. If the law does not punish the actions
15 of a defendant, then he should not be condemned [by the judge]. The purpose
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16 of criminal laws is not the death or vilification of men but their correction,
17 conversion, and survival.”91 ———
18 Prosecutors and the appeals court put into practice some of the principles 0.0pt PgV
———
19 of the Enlightenment in a different way. They often opposed the outcome of
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20 juicios verbales when basic legal procedures were not followed. Since these brief
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21 trials had an appeals instance, prosecutors petitioned to have a regular criminal
22 process in some of the cases, especially those involving grave felonies. 92 The
23 appeals court repealed many of the sentences passed in the first instance in [109], (22)
24 these types of expedientes as well. Although the tribunal did not always order an
25 expansion of the juicio verbal into a regular criminal case, it certainly alleviated
26 the often harsh punishments applied by justices of the peace and judges of the
27 first instance. 93 The scarcity of evidence in these cases made the appeals court’s
28 rectification of these sentences more compelling, as far as the legal postulates
29 and premises of enlightened penologists were concerned.
30 Despite the urgency to finish criminal cases and produce results in the fight
31 against crime in Buenos Aires, the appeals court tried to guarantee minimum
32 procedural and individual rights in the juicios verbales. Many early republican
33 decrees and laws authorized these trials, constituting another example of par-
34 allel administration of criminal justice. Interestingly enough, juicios verbales
35 recognized a colonial precedent, according to criminal judge Eugenio Elías. In
36 one of his verdicts, he stated that the “spirit” of these trials, by solving cases
37 quickly, was anticipated in the Real Cédula of May 15, 1788, “whose Article 3
38 tries to avoid trials and judicial processes as much as possible.”94
39 The Cámara did not like these extraordinary procedures because they under-
40 mined the tribunal’s superintendent powers. Thus, any time one of these cases
1 was appealed, the Cámara reviewed it in detail. In 1823, for instance, José Velarde,
2 a slave, was arrested for breaking into Juan Tomás Bott’s house and insulting his
3 wife. Criminal judge Bartolomé Cueto reviewed the case and decided, without
4 any further judicial procedure, to punish the slave with twenty-five lashes. The
5 appeals court reviewed the case “declaring illegal the procedure followed by the
6 judge of the first instance.” The slave was released from jail and judge Cueto was
7 obliged to pay the cost of the case [costas]. The appeals court also “admonished
8 him to follow what is established in the patriotic [postcolonial] reglamentos
9 regarding juicios verbales.”95 The tribunal did not disapprove of the punish-
10 ment Velarde received, but it ruled against the way it was done. Despite the
11 brief nature of this expediente and the social condition of the defendant, it was
12 not acceptable to condemn someone without even listening to what he had to
13 say in his defense. [110],
14 The appeals court also played an important role in many other cases by
15 defining the juridical application of multiple norms. In 1825, for example, Juan
Lines:
16 de la Cruz was arrested for bearing a sword and condemned by the judge to four
17 years of military service. The appeals court, however, revoked the verdict and ——
18 released Cruz from any obligation. The tribunal argued that the sentence was 0.0pt
———
19 illegal since “it goes against what it established in the law passed on 27 November
Norma
20 1821. This law only prohibits bearing guns but it did not outlaw the specific use
PgEnd
21 of swords.”96 Although this case had a happy ending for Juan de la Cruz, many
22 other defendants ended up in jail and punished for behaviors defined as criminal
23 by the police, justices of the peace, or judges, but not necessarily by the law. [110],
24 While several early republican reglamentos and laws claimed to eliminate
25 physical punishments in criminal cases, the application of the so-called penas
26 accesorias e infamantes remained as part of the everyday administration of
27 justice. Crime-related criollo bandos included correcciones corporales (corporal
28 punishment). Yet these new bandos did not specify (as their colonial predeces-
29 sors did), different sanctions according to the social status of the defendant. 97
30 But for all practical purposes, people condemned in criminal cases after 1810
31 were subjected to these types of punishment as well.
32 Judicial authorities applied the death penalty after independence. While ju-
33 rists, law students, and intellectuals debated its convenience, criminal judges and
34 the appeals court continued to sentence defendants to death in grave felonies. 98
35 Early republican political turmoil and politicized executions increased the levels
36 of violence in Buenos Aires. Legal historians have contrasted this situation with
37 the late colonial period. They argue that, during colonial times, the capital of
38 the viceroyalty enjoyed social order balanced by mild judicial punishments. 99 In
39 early republican criminal cases, however, the degree of sentencing and type of
40 punishment, including the death penalty, remained at the same levels as the late
1 colonial period. The major differences are that, after 1810, judicial authorities
2 passed more sentences condemning defendants to the army and to the frontier
3 (in a context of revolution and civil war), also eliminating colonial discrimina-
4 tory punishment according to the calidad or social status of the condemned.
5 Despite continuities in the application of the death penalty, the criminal
6 discourse of the Enlightenment also permeated judicial processes where this
7 type of punishment was considered. Years before the issue was intensely de-
8 bated in academic and legal circles during the late 1820s and early 1830s, judicial
9 officials questioned its legitimacy at the individual case level. In 1813, for in-
10 stance, prosecutor Sernadas filed charges against Mariano Morales for robbery,
11 dismissing, however, the alcalde’s intention of condemning the defendant to
12 death: “Stealing someone else’s property . . . is a crime that all nations in the
13 world have always hated, being punished by [colonial] law with the supreme [111], (24)
14 penalty according to the [social] condition of the criminal. These distinctions,
15 however, should disappear from a system in which everybody is equal before
Lines: 235 to
16 the authority of the law, without considering any other thing but the crime and
17 its circumstances. The crime we are dealing with now, although grave, does not ———
18 deserve the application of the death penalty.”100 0.0pt PgV
———
19 Michael Foucault argues that the emergence of the modern criminological
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20 paradigm during the eighteenth century favored the abandonment of the “spec-
PgEnds: TEX
21 tacle” of the ancien régime’s application of the death penalty. A more technical,
22 rational form of punishment associated with the emergence of the penitentiary
23 replaced it. 101 I found little evidence of this transition during the first half of the [111], (24)
24 nineteenth century in Buenos Aires. Although some statements by executive
25 authorities indicate no intention of carrying out the death penalty in public
26 as a form of exemplary punishment, many other laws, bandos, and letters to
27 the appeals court point to the interest of various political factions in power to
28 publicize the executions as a way to exhibit results of their criminal policies. 102
29 Actually, such transition began to take place during the second half of the
30 nineteenth century in several Latin American countries. 103
31 High-ranking members of the judiciary, like the president of the appeals
32 court and director of the academia de jurisprudencia, Manuel Antonio de
33 Castro, sponsored debates about the death penalty in the legal forum dur-
34 ing the late 1820s. In his role as president of the Tribunal, however, Castro
35 decisively favored the application of capital punishment in criminal cases. He
36 ratified many death sentences, promptly reporting the Tribunal’s decisions to
37 the government. 104 Castro and others also advocated the idea of publicizing
38 these sentences. Nonetheless, they preferred to avoid public executions and
39 the exhibition of bodies, perhaps to establish a clear difference between death
40 penalties ordered via a judicial verdict from the ones imposed on political rivals,
1 conspirators, and traitors by executive authorities. In 1826, for example, Castro

2 proposed to publish these verdicts, posting them in public places and in loca-
3 tions where the crime was committed. 105 The administration of justice through
4 the verdicts, therefore, would replace the exhibition of the criminal’s body as the
5 final result of a judicial process. Public exhibitions of dead bodies, especially the
6 heads, continued during these first decades after independence, symbolizing a
7 clear statement that various political factions in power still preferred associating
8 the body and not so much the verdict with their idea of justice. 106
9
10 Conclusion
11 The political situation during the first decades of the nineteenth century did
12 not contribute to the strengthening of the judiciary and the republican criminal
13 justice system. Looking for immediate results for legitimizing their position [112],
14 in the porteño society, executive authorities gave priority to police forces in
15 matters of public safety. The budget assigned to law enforcement agencies,
Lines:
16 for instance, was much larger than the one for judges and even the appeals
17 court. Judicial dependency from executive authorities then increased as well ——
18 as police interference between civil society and magistrates. In order to carry 0.0pt
———
19 out even simple summonses or to execute judicial sentences, judges had to rely
Norma
20 on executive authorities and their auxiliaries. No judicial autonomy could be
PgEnd
21 guaranteed under these circumstances.
22 A low budget also impeded the appointing of additional judicial officials.
23 Lawyers generally refused to take temporary appointments so the posts re- [112],
24 mained vacant or were absorbed by other officials. All these problems con-
25 tributed of course to delaying the resolution of judicial cases. When high judi-
26 cial authorities complained about these topics, executive authorities confirmed
27 this vision of a slow criminal justice and concentrated on technicalities and
28 formalities rather than in solving penal cases as quickly as possible. Mean-
29 while, the power of superintendence of the appeals court was undermined and
30 challenged from within the judiciary. Many judicial officials and magistrates,
31 actually appointed by the executive power, questioned and even rejected judicial
32 orders. When an internal dispute surfaced, like in the case of vistas, prosecutors
33 and defense lawyers did not hesitate in requesting the intervention of executive
34 authorities if they did not like the way the appeals court was handling the issue.
35 High-ranking judicial officials opposed to partial reforms of the judicial
36 structure and the penal laws. They realized these eventual changes would
37 only bring more intervention from other state powers into the judiciary. They
38 claimed a stable constitutional framework should be in place first so that the
39 judicial branch of the government could have the monopoly on interpreting the
40 laws. Obtaining a larger budget and modifying certain criminal procedures, like
1 the ratification of witnesses during the plenario stage of the criminal process,
2 were some of the requests and proposals the appeals court tried to submit
3 during those decades.
4 A key aspect of that time was the writing of sumarios. During the first decade
5 of independence, and more concretely after 1820, sumario writing and the initial
6 stages of a criminal process were left in police hands. Law enforcement agents
7 made good use of this instrument of power for it was during this judicial phase
8 when most of the evidences and testimonies would be gathered, shaping then the
9 rest of the penal process. Criminal judges realized the significance of this issue,
10 but they were not able to retain it under the control of the judiciary. Sumario
11 writing and police control of the early stages of all criminal cases became one [Last Page]
12 of the permanent features of the modern penal system in Argentina.
13 Tensions between republican principles on penal law and the difficulties [113], (26)
14 of applying them in early republican Buenos Aires are reflected in concrete
15 criminal cases. The “temporary” suppression of many rights and individual
Lines: 251 to
16 guarantees prevailed in the expedientes as another indicator of the recurrent
17 political instability during those decades. Good intentions and new ideas by ———
18 judicial officials and magistrates did not prevail in everyday cases of justice 231.58002
———
19 administration. Individual rights and legal guarantees were recognized but they
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20 did not always favor the accused. Although there were changes from colonial
PgEnds: TEX
21 criminal trials, continuities in penal practices highlighted the transition to the
22 early stages of republican government.
23 [113], (26)
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
1
2
3
4
5 7. Conclusion
6 Past and Present of the Criminal Justice System in Argentina
7
8
9
10
11 This study of the formative stage of the modern penal system in Argentina
[First P
12 has conveyed the multiple and relevant aspects of the topic. The first chapters
13 went back to Medieval Spain to see how these early legal texts contributed [114],
14 to the general framework of the colonial penal system in Buenos Aires, an
15 urban society marked by deep social stratification. The historical evolution of
criminal law reflected a social formula of judicial coexistence. Privileged and Lines:
16
17 general norms coexisted and were prioritized in the resolution of criminal cases. ——
18 Thus, colonial legislation was used for adjusting criminal laws to fit specific 7.0pt
cases, adding an interpretative component to the evolving penal systems. The ———
19
Norma
20 combination of Spanish legal standards and colonial procedural regulations was
completed by the application of penal norms at the local level. In the case of PgEnd
21
22 late colonial Buenos Aires, viceroyal bandos were important for the formation
23 of an official discourse on social control. [114],
24 The colonial bureaucracy in the city of Buenos Aires was able to use all the
25 Spanish penal laws to cope with the problems of administering criminal justice
26 in the capital of the viceroyalty. Porteño audiencia members and other new
27 judicial officials confronted other bureaucrats like the viceroy for preference in
28 dealing with public safety matters. Ideally seen by law historians as an example
29 of correct and moderate application of colonial laws, the audiencia was in fact
30 mostly concerned with imposing its judicial authority. Softening hard alcalde
31 sentences or punishing abuses of authorities fell behind this other main goal.
32 While controversies between audiencia and viceroy preceded similar disputes
33 between judicial magistrates and executive authorities during the early inde-
34 pendent period, colonial alcaldes took control of a key instance of the criminal
35 process, the sumario, which collected the initial information of a case. Sumario
36 writing provided an important power tool for those who controlled it, colonial
37 alcaldes first and police comisarios from 1820 on.
38 Continuities in the legal architecture of colonial penal justice did not prevent
39 an intense institutional experimentation after independence. Furthermore, the
40 need to maintain social order and public safety in a context of political insta-
conclusion: past and present 115
1 bility encouraged the adaptation of colonial penal practices to the early repub-
2 lican urban milieu of Buenos Aires. As part of these changes and adaptation
3 of previous judicial practices, many reglamentos were passed in an attempt
4 to shape the legal profile of the emerging penal system. Nineteenth-century
5 republican principles collided with the more practical needs of social control.
6 Political instability during the first decades after independence challenged the
7 legitimacy of diverse political urban groups. One of the few ways politicians
8 could guarantee popular support was to maintain acceptable levels of public
9 safety and social control. Thus, executive authorities acknowledged individual
10 rights, like due process, but at the same time pressured the judiciary to speed
11 the resolution of criminal cases even when it meant overlooking certain legal
12 personal guarantees.
13 Criminal judges and the Cámara de Justicia were not so enthusiastic about [115], (2)
14 this search for results at any cost. Judicial officials did not want to modify
15 parts of the existing structure of justice administration without addressing
Lines: 42 to
16 and defining the role they thought they should have in the emerging republic.
17 The judiciary thus adopted a legal position that executive authorities saw as ———
18 preventing tackling public safety through the administration of criminal justice. 0.0pt PgV
———
19 Meanwhile, and as a consequence of this position, a powerful discourse by police
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20 forces was in the making, one that allowed law enforcement agents to control
PgEnds: TEX
21 key aspects of the criminal process, leaving the end of that process for the
22 magistrates.
23 The political context during the first decades of the nineteenth century did [115], (2)
24 not contribute to the strengthening of the judiciary and the republican criminal
25 justice system. Looking for immediate results for legitimizing their position
26 in the porteño society, executive authorities gave priority to police forces in
27 matters of public safety. The budget assigned to law enforcement agencies,
28 for instance, was much larger than the one for judges and even the appeals
29 court. Judicial dependency from executive authorities then increased as well
30 as police interference between civil society and magistrates. In order to carry
31 out even simple summonses or to execute judicial sentences, judges had to rely
32 on executive authorities and their auxiliaries. No judicial autonomy could be
33 guaranteed under these circumstances.
34 A low budget also impeded the appointing of additional judicial officials.
35 Lawyers generally refused to take temporary appointments so the posts re-
36 mained vacant or were absorbed by other officials. All these problems con-
37 tributed to delaying the resolution of judicial cases. When high judicial author-
38 ities complained about these issues, executive authorities confirmed this vision
39 of a slow criminal justice and concentrated on technicalities and formalities
40 rather than in solving penal cases as quickly as possible. Meanwhile, the power
116 conclusion: past and present
1 of superintendence of the appeals court was undermined and challenged from

2 within the judiciary. Many judicial officials and magistrates, actually appointed
3 by the executive power, questioned and even rejected judicial orders. When
4 an internal dispute surfaced, like in the case of vistas, prosecutors and defense
5 lawyers did not hesitate in requesting the intervention of executive authorities if
6 they did not like the way the appeals court was handling the cases. High-ranking
7 judicial officials opposed partial reforms of the judicial structure and the penal
8 laws. They realized these eventual changes would only bring more intervention
9 from other state powers into the judiciary. They claimed a stable constitutional
10 framework should be in place first so that the judicial branch of the government
11 could have the monopoly of interpreting the laws.
12 Tensions between new principles on penal law and the difficulties of applying
13 them in early republican Buenos Aires are reflected in concrete criminal cases. [116],
14 The temporary suppression of many rights and individual guarantees prevailed
15 in the expedientes as another indicator of the recurrent political instability
Lines:
16 during those decades. Good intentions and new ideas by judicial officials and
17 magistrates did not prosper in everyday cases of justice administration. In- ——
18 dividual rights and legal guarantees were recognized but they did not always 0.0pt
———
19 favor the accused. Although there were changes from colonial criminal trials,
Norma
20 continuities in penal practices highlighted the transition to the early stages of
PgEnd
21 republican government.
22 During the early independent period, republican penal discourses were de-
23 bated at both the academy of jurisprudence and the University of Buenos Aires. [116],
24 The academy remained closely linked to the judiciary and its interests. Many
25 issues were discussed there but only some of them made their way to executive
26 and legislative authorities as formal proposals and projects. High-ranking mem-
27 bers of the judiciary, like Manuel Antonio de Castro, did not want to introduce
28 further modifications to the penal legal framework without a constitution that
29 would define a concrete profile for the judiciary. Thus, proposals related to the
30 administrative organization of the judiciary had priority over other issues like
31 the penal and procedural codes, the institution of juries, and the reduction of
32 the arbitrary power of criminal judges. Nonetheless, the academy represented
33 a forum where jurists and law students, who had to be in residence for three
34 years, could share their ideas.
35 The university, created in 1821, became another venue to discuss penal law.
36 Although there was no formal course on criminal law, related topics were de-
37 bated in other courses, like the one on civil law offered by Pedro Somellera.
38 Beginning in 1827, law students had to defend their theses before they grad-
39 uated from the department of jurisprudence. Although many of these theses
40 remained unpublished, they allow us to study the penal issues that interested
1 academia during the late 1820s, 1830s, and 1840s like, for instance, the debates
2 about the death penalty.
3 The evidences and conclusions addressed in this book have shown the im-
4 portance of transitional periods in renegotiating, adapting, and changing state
5 forms and rules. Endless transitions, like this case, reinforced unequal balances
6 among state agencies giving extensive room of maneuvering in the long run
7 for those who got the upper hand. Certainly, subaltern and cultural studies
8 have enriched historical perspectives on law and society in Latin America. But
9 popular views and notions of criminal justice studied elsewhere have coexisted
10 and interacted with evolving state norms and practices in the process of state
11 formation, like this book has demonstrated. These universes of legalities and
12 illegalities were not parallel. 1
13 Justice and the law were at the center of nation building in Latin America. [117], (4)
14 Broad legal contexts became functional to that process and elites knew them and
15 used them. State agents also took advantage of manipulating legal frameworks
Lines: 54 to
16 according to or even in contradiction with private, upper-class interests. Hence,
17 the study of state forms (like criminal justice) with their inconsistencies, inter- ———
18 nal dynamics, and goals could neither be ignored nor blended with previous 0.0pt PgV
———
19 historiographical paradigms. More than a decade of discovering complexities
Normal Page
20 and multiple levels of contacts within the legal history of Latin America have
PgEnds: TEX
21 opened the horizon for more case studies. Novels, newspapers, pamphlets, let-
22 ters, and documents have enriched the field but criminal cases (thousands of
23 expedientes that wait for their historians) are calling again. As it was concluded [117], (4)
24 in a recent meeting, it is time to test our conclusions all over again on the
25 grounds of criminals, victims, witnesses, police officers, prosecutors, defense
26 lawyers, judges, and the myriad of individuals from all walks of life that come
27 together in specific penal cases. 2 This book therefore is a concrete contribution
28 to that body of knowledge.
29
30 In the passage from colony to independence in the Río de la Plata region the city
31 of Buenos Aires underwent many transformations. The pattern of changes and
32 continuities explained in this book, however, did not crystallize at the end of
33 the Rosas regime in 1852. The codification process that began after the passing
34 of the 1853 constitution opened a new period in the history of the Argentine
35 penal system. The Supreme Court was finally established in 1862. The following
36 year, the national congress approved Law 49 on federal crimes, stating that
37 it was not possible to wait until the passing of a penal code for prosecuting
38 these felonies. The penal code (the so-called Tejedor project) was finally passed
39 in 1886 and began to be enforced on March 1, 1887. Laws began to change
40 and the influence of the Positivist School of Criminology increased. With the
1 enforcement of the 1886 national penal code, the Siete Partidas were finally
2 dropped from republican laws, remaining only as jurisprudence. 3
3 The federalization of Buenos Aires in 1881 and the foundation of La Plata next
4 year as the new capital for the province produced changes in the judiciary and
5 law enforcement agencies. The judiciary of the city of Buenos Aires also became
6 a federal one, while in La Plata and the rest of the province a new judicial power
7 was organized. The Buenos Aires police also became the policía de la capital in
8 1880, while a new police for the Buenos Aires province was established. 4
9 By the late nineteenth century, these law enforcement agencies, like the mil-
10 itary, went through a process of professionalization. Until the last two decades
11 of that century, some high-ranking police officers pursued a career in the force,
12 while others were civilians appointed by executive authorities. The latter were
13 increasingly blamed for the political influence they exercised in their jurisdic- [118],
14 tions, especially in electoral campaigns and on election days. The executive
15 branch found it even more unbearable that this influence did not always favor
Lines:
16 the political faction in power. Argentine president Hypolito Yrigoyen (1916–22
17 and 1928–30) was perhaps one of the most famous cases of a personality who ——
18 worked as a law enforcement officer. He was a civilian comisario in the porteño 0.0pt
———
19 neighborhood of Balvanera at the beginnings of his political career. Yrigoyen
Norma
20 occupied this position in 1873 thanks to the intervention of his uncle Leandro
PgEnd
21 N. Alem, the founder of the Unión Cívica Radical party. Yrigoyen was dismissed
22 later on, however, under the accusation of taking part in election rigging. 5
23 Police as well as military officers, according to the new system of professional [118],
24 advancement of the generation of 1880, had to stay out of politics. Executive
25 authorities, nevertheless, still insisted on interfering with this process. Officers
26 trained according to the new professional goals of these institutions were sup-
27 posed to be the only ones appointed to high-ranking positions of the police
28 and the military. Furthermore, the federalization of Buenos Aires created the
29 opportunity for the establishment of new police academies as part of the process
30 of reorganization of law enforcement agencies in the new federal and provincial
31 jurisdictions. Consequently, fewer and fewer civilians were directly appointed
32 as comisarios. Despite this, both national and provincial executive authorities
33 began a policy of selective promotion that interfered with these agencies.
34 Interestingly enough, the reorganization of the police force, as a professional
35 career, did not modify many of the procedures law enforcement agents applied
36 before. By the turn of the century, most of the comisarios had spent some years
37 in the force, ascending to their positions as part of a standardized system of
38 promotion. Yet they continued managing the sumario and getting involved in
39 judicial matters. The professionalization of police forces brought new oppor-
40 tunities for gaining institutional power for these agencies, but it did not imply
1 that they gave up judicial functions accumulated during the earlier decades of
3 The police and the military underwent similar processes of transformation
4 by the turn of the century and the outcome of this process drew them closer. No
5 longer exclusively dominated by civilians of the executive branch, police forces
6 gained more autonomy. Police officers also began to identify themselves with
7 the political goals of the military. This locus of authoritarianism was enriched
8 not only by the political power the military gained during the twentieth cen-
9
tury but also by the police force’s experiences in handling public safety issues
10
and implementing policies of social control through repression. 6 The procedu-
11
ral flexibility of the police forces, created during the colonial/early republican
12
transition, became a central component of military regimes, as they were able [119], (6)
13
14 to keep the formalities of the law by applying it selectively and coercively.
15 While police forces supported the military’s political aspirations, high-
ranked judicial officials also played an important role in legitimizing these Lines: 70 to
16
17 ambitions. In this regard, the military coup against President Yrigoyen on ———
18 September 6, 1930, constituted a historic landmark in the history of the judi- * 26.0pt Pg
ciary. Immediately after the coup, the Supreme Court received a letter from ———
19
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20 the new president, General Uriburu, notifying the tribunal of the new de facto
* PgEnds: Ejec
21 government. Instead of defending the legality of the deposed constitutional
22 authorities or at least remaining in silence, the Supreme Court passed a famous
23 resolution on September 10, 1930, justifying the military coup from a legal and [119], (6)
24 doctrinal point of view. This resolution established jurisprudence legitimizing
25 military interruption of the constitutional order, something that became rather
26 frequent in the history of Argentina during the twentieth century. 7
27 Thus, not only did judicial subordination to executive authorities prevail
28
once again, but also a new round of legitimization of arbitrary political decisions
29
took place. Political instability during the following decades challenged the
30
independence of the judicial power even further, and forced it to cope with
31
many laws of exception passed by both civilian and military governments.
32
33 This legal flexibility reinforced the image of the unpredictable character of the
34 judicial system.
35 The failure of the formal judicial system in contemporary Argentina is also
36 exemplified by the parallel system of terror and punishment implemented dur-
37 ing the 1976–83 military regime. The return to democracy during the 1980s,
38 however, did not fulfill societal expectations regarding a new system of criminal
39 justice. Modifications of the penal code and other criminal laws were poor
40 remedies for solving the problem.
1 Civic enthusiasm for the recovery of basic liberties did not translate into
2 political actions leading to structural changes that could have been put into
3 practice then. Once again, cosmetic reforms to the legal framework gained the
4 day. These reforms tried to make their way into a judicial and police bureaucracy
5 most of which had active duties on the criminal justice system during the
6 military regime. Meanwhile, the legislature passed another reform of the penal
7 code in an attempt to eliminate the norms that completely collided with the
8 democratic system. Other changes were postponed or they slowly faded away
9 as the decade progressed. 8
10 The last decade of the twentieth century was not very positive for criminal
11 justice as well. During the first years of Carlos Menem’s presidency (1989–95,
12 reelected 1995–99) even the Supreme Court experienced new interventions of
13 executive authorities. Membership of the high tribunal was increased from five [120],
14 to nine allowing the president to appoint four new members at once. This
15 modification plus the replacement of one of the original five members, gave the
Lines:
16 executive power the opportunity to have an official majority in the Supreme
17 Court known as the automatic majority. 9 ——
18 The renewed high tribunal backed up the government in all the structural 0.0pt
———
19 economic reforms it undertook including massive privatizations of state-owned
Norma
20 enterprises and the liberalization of the economy, bitterly criticized by many
PgEnd
21 groups in Argentine society. Any time a judicial resolution from lower tribunals
22 challenged some of these government policies, the Supreme Court would inter-
23 vene to put them down, clearing the way for the executive power to go ahead [120],
24 with the reforms.
25 Meanwhile, constitutional reforms in the nation and in the province of
26 Buenos Aires during the 1990s introduced interesting reforms related to the
27 judicial branch of the state. The Consejo de la Magistratura, created by the new
28 national constitution, would make it possible to put into practice more open
29 and rigorous mechanisms for selecting and appointing judges and magistrates.
30 The provincial constitution, around the same time, instituted a new judicial
31 police (today still in the making) and a complete reform to the code of criminal
32 procedures, which was put into practice in September 1998.
33 Political authorities, however, did not firmly sustain judicial and police re-
34 forms in recent years. During the campaigns for the 1999 general election, the
35 candidate for the governorship of Buenos Aires Province, Carlos Ruckauf, ran
36 on the slogan “a bullet for each criminal,” forcing the resignation of reformer
37 minister of justice and security Leon Carlos Arslanián. Police reform programs
38 were interrupted and only recently reinstated after five years of failures, police
39 violence, and corruption. 10 Meanwhile, cases of kidnapping increased dramat-
40 ically, creating great concern among the middle and upper classes in the city of
1 Buenos Aires and surrounding suburban areas. The abduction and murder of a
2 young student (Axel Blumberg) in April 2004 mobilized those groups under the
3 leadership of Axel’s father, forcing congress to pass new legislation increasing
4 punishment for serious felonies. Contradictory tensions and endless debates
5 between institutional reformers and supporters of hard-hitting police inter-
6 vention are once again part of the contemporary Argentine political landscape.
7 Judicial authorities, jurists, politicians, legislators, journalists, and social sci-
8 entists have debated many of these latest judicial-political affairs, but as argued
9 at the beginning, these debates are basically focused on present times. 11 By
10 introducing a historical perspective, I tried initially to explain the early stages of
11 this process from the perspective of a rioplatense colonialist. Then, the emphasis
12 on colonialism gave way in favor of debates about the middle period and the age
13 of revolution in Latin America historiography. 12 [121], (8)
14 During the colonial/republican transition in Buenos Aires we can identify
15 the origins of key features of the modern penal system in Argentina, that is,
Lines: 97 to
16 institutional subordination of the judiciary, police interference in the relation-
17 ships between judiciary and civil society, manipulation of the initial stages of the ———
18 judicial process by senior police officers, and the utilization of flexible penal- 0.0pt PgV
———
19 legal procedures as a punitive system in itself. Furthermore, as Buenos Aires
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20 imposed its political project to other regions, some of these features were then
PgEnds: TEX
21 nationalized. This also indicates the relevance of Buenos Aires as a case study.
22 The analysis of the origins of the Argentine penal system and its components
23 contributes to the historiographical and interdisciplinary debates on historical [121], (8)
24 transitions, state formation, and justice administration in Latin America. It
25 demonstrates the importance of legal procedures in the instrumentation and
26 transformation of criminal laws and norms. Their flexibility created the condi-
27 tion for a conflictive coexistence between republican norms and their selective
28 enforcement.
29 This book has also explained how criminal justice was administered in
30 Buenos Aires, contributing to the identification of some of the legal tools and
31 techniques used then and now to selectively apply criminal laws. If things really
32 need to change, it is not possible without looking at what happened during
33 these decisive decades in the history of the Río de la Plata region. Although
34 the emphasis of this study indicates the importance of the administration of
35 justice in the consolidation or failure of democratic regimes, this is not the only
36 factor that will facilitate eventual changes. One possible way of studying the
37 connections between the criminal justice system and these other aspects is by
38 expanding the concept of the penal system as a much broader universe. This
39 perspective allows scholars to explore other power relations and disputes in
40 both society and the state. 13
1 Finally, it is important to state that Argentines should take Montesquieu’s

2 words that open this book seriously, not leaving the reform of the criminal jus-
3 tice system in a few hands. In this sense, this book has attempted to incorporate
4 the historical discipline to such debate. Early on, I quoted the words of pardo
5 Gregorio Videla, who was arrested for an unclear reason. Knowing that perhaps
6 his fate was already sealed, he said to the alcalde: “Go ahead. Put down whatever
7 you want.”14 Well, the alcalde did just that and his successors continued the
8 practice. Hence, it is imperative not to leave the discussion to others. Do not let
9 them put down whatever they want anymore.
10
11 [Last P
12
13 [122],
14
15
Lines:
16
17 ——
18 400.5
———
19
Norma
20
PgEnd
21
22
23 [122],
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
1
2
3
4
5 Notes
6
7
8 1. Introduction: Endless Transitions
9 1. A summary of these debates can be found in Domínguez, ed., Essays on Mexico,
10 Central and South America.
11 2. A porteño is an inhabitant of the city of Buenos Aires.
[First Page]
12 3. A good example of this historiographical trend is Mallon’s book, Peasant and Nation.
13 A collection of essays on a related topic is Beezley, Martin, and French, eds., Rituals [123], (1)
14 of Rule, Rituals of Resistance. On Mallon’s book and a debate on its findings see
Historia Mexicana, vol. 46, January–March, 1997, no. 3: (a) Tulio Halperin Donghi,
15
“Campesinado y nación,” 503–29; (b) John Tutino, “La negociación de los estados Lines: 0 to 5
16
nacionales, el debate de las culturas nacionales: Peasant and Nation en la América ———
17
18
Latina del siglo XIX,” 531–60; (c) Florencia E. Mallon, “En busca de una nueva 8.0pt PgV
historiografía latinoamerica: Un diálogo con Tutino y Halperin,” 563–80. ———
19 4. See also Joseph and Nugent, eds., Everyday Forms of State Formation; and Loveman, Normal Page
20 The Constitution of Tyranny, the Río de la Plata case is on pages 263–312. Another PgEnds: TEX
21 essay collection is by Peloso and Tenenbaum, eds., Liberals, Politics, and Power.
22 5. Contemporary significance of this problem is addressed by Zaffaroni, coordinator,
23 Sistemas penales y derechos humanos en América Latina. See also Rico (regional [123], (1)
24 coordinator), Seguridad ciudadana en Centroamérica.
25 6. A classic, influential study on this matter is by Melossi and Pavarini, Prison and
26 the Factory. See also García Méndez, “Criminología crítica en América Latina.” An
27 example of current application of social control theory is Pegoraro, “Inseguridad y
28 violencia en el marco del control social.”
29 7. A critical perspective on the social control school is Arrom, Containing the Poor, 7–11.
30 8. The latest and certainly most excellent example of such perspective is Salvatore’s
book Wandering Paysanos, especially chapters 5 (The Power of Laws, 161–96), 6 (The
31
Making of Crime, 197–231), and 7 (The Experience of Punishment, 232–61).
32
9. A brief, comprehensive historiographical essay on U.S. and Latin American contri-
33
butions to the field of legal studies is by Salvatore, “Criminal Justice History in Latin
34 America: Promising Notes.”
35 10. See, for example, Emsley and Knafla, eds., Crime History and Histories of Crime. An
36 anthology on the subject is by E. Johnson and Monkkonen, eds. Civilization of Crime.
37 11. Rousseaux, “From Medieval Cities to National States, 1350–1850.
38 12. Other social scientists who study modern states follow this approach as well. For
39 instance, Margaret Levi argues that “as scholars began to systematically investigate
40 the role of the state as repressive or facilitative of political liberalization and economic
124 notes to pages 4--7
1 growth, the emphasis tended to switch from the state, a relative abstraction and a
2 complex set of variables, to the particular features of the state that were doing the
3 work: rulers, citizens, bureaucrats, legislators.” See Margaret Levi, The State of the
4 Study of the State. Paper delivered at the Graduate Seminar, Universidad de San
5 Andres, Buenos Aires, Argentina, April 2002, 13.
13. For example, Levaggi, Historia del derecho argentino.
6
14. For example, Szuchman, Order, Family, and Community in Buenos Aires, 1810–1860.
7
15. Manzetti, Institutions, Parties, and Coalitions in Argentine Politics, 4–7.
8
16. A recent book tackles the problem of state formation from a comparative perspective:
9 Fernando Lopez Alves, State Formation and Democracy in Latin America (Durham
10 nc: Duke University Press, 2000).
11 17. Farcau, Transition to Democracy in Latin America, 15–52.
12 18. O’Donnell, Bureaucratic Authoritarianism, 31–33.
13 19. Kalmanowiecki, “Origins and Applications of Political Policing in Argentina.” [124],
14 20. On the history of the police, see Martin Edwin Andersen, La Policía: Pasado, presente
15 y propuestas para el futuro (Buenos Aires: Editorial Sudamericana, 2002).
21. Zaffaroni, Hacia un realismo jurídico penal marginal, 15–58. Lines:
16
17 22. Zaffaroni, Manual de derecho penal, parte general, 17; see also Nino, Un país al margen ——
18 de la ley, 11–88. 3.0pt
23. Lenman and Parker, “The State, the Community, and the Criminal Law in Early ———
19
Modern Europe,” 11–48. Norma
20
24. A pioneer book on Indian agency through judicial institutions is Steve Stern, Peru’s PgEnd
21
Indian Peoples and the Challenge of Spanish Conquest: Huamanga to 1640 (Madison:
22 University of Wisconsin Press, 1982), and Stern as editor of Resistance, Rebellion, and
23 Consciousness in the Andean Peasant World (Madison: University of Wisconsin Press, [124],
24 1987).
25 25. Scardaville,“(Hapsburg) Law and (Bourbon) Order: State Authority, Popular Unrest,
26 and the Criminal Justice System in Bourbon Mexico City,” 501–26.
27 26. Foucault, Discipline and Punishment, 3–104; although Foucault studies exceptional
28 cases, he uses them to make generalizations about the penal systems during the ancien
29 régime. Many articles about Latin America inspired by Foucault’s ideas can be found
30 in Ricardo D. Salvatore and Carlos Aguirre, eds., The Birth of the Penitentiary in
31 Latin America: Essays on Criminology, Prison Reform, and Social Control, 1830–1940
(Austin: University of Texas Press, 1996).
32
27. See, for example, the anthology by Johnson and Monkkonen, eds., Civilization of
33
Crime, 17–63.
34
28. See, for example, Vogel, “Elements of Nation Building in Argentina,” and Ricardo
35 Salvatore, “Fiestas federales: Representaciones de la república en el Buenos Aires
36 rosista,” Entrepasados, Revista de Historia 6, no. 11 (1996): 45–70. See also Earle,
37 “Padres de la Patria and the Ancestral Past.
38 29. Criollos: White, American-born descendants of Spaniards.
39 30. This is the thesis Bartolomé Mitre formulated in his Historia de Belgrano y de la
40 independencia argentina (Buenos Aires: Editorial Estrada, 1947).
notes to pages 7--9 125
1 31. Legal corpus created and passed from May 25, 1810 on.
2 32. Ricardo Levene’s work includes many books, documentary collections, pamphlets,
3 articles, etc. See, for example, the 11 volumes of his Historia del derecho argentino
4 (Buenos Aires: Editorial Kraft, 1945–58). Among other Argentine legal historians, the
5 most quoted in this dissertation are José María Mariluz Urquijo, Eduardo Martiré,
6 Abelardo Levaggi, Victor Táu Anzoátegui, and Ricardo Zorraquín Becú.
7 33. Chiaramonte, “El problema del origen de las nacionalidades hispanoamericanas y
8 sus presupuestos historiográficos,” no. 2, 7–11.
34. Garavaglia and Gelman, “Rural History of the Río de la Plata, 1600–1850, 96–97.
9
Among other shortcomings of this “renaissance,” it is important to mention the lack
10
of similar studies in other regions of “Argentina.” Donna Guy’s article “Women,
11
Peonage, and Industrialization, Argentina, 1810–1914,” 65–90, demonstrates how dif-
12
ferent the situation in the interior of Argentina was in comparison to the littoral
13 [125], (3)
and the pampas. Furthermore, Guy’s findings indicate the need for “engendering”
14 the historiography of this period. Lyman Johnson and Susan Socolow’s works on
15 the late colonial period have also enriched the historiography of the porteño capital Lines: 101 to
16 of the viceroyalty. They, as well as other Argentine historians, began to rediscover
17 ———
the archives of sala nueve (room 9), the colonial section of the national archives in
18 Buenos Aires during the late 1970s. As result, a complex, more comprehensive view
15.0pt Pg
———
19 of the urban colonial society and economy emerged. For example: Socolow, Mer-
Normal Page
20 chants of Buenos Aires, 1778–1810, and Lyman L. Johnson, “The Artisans of Buenos
PgEnds: TEX
21 Aires during the Viceroyalty, 1776–1810” (PhD diss., University of Connecticut, 1974).
22 More recently, these authors have also made important contributions to the study
23 of the colonial/postcolonial transition. See, for instance, L. Johnson and Andrien [125], (3)
24 eds., Political Economy of Spanish America in the Age of Revolution, 1750–1850. See
25 also Uribe-Urán, ed., State and Society in Spanish America in the Age of Revolution,
26 1750–1850. A perspective with insights from another Argentine region is Rafart and
27 Bohoslavsky, “La frontera y la historia social del delito. Un primer balance,” 127–47.
35. Examples of his work are: Mayo, Estancia y sociedad en la pampa, 1740–1820; Carlos
28
A. Mayo, Angela Fernández, and others, Juego, sociedad y estado en Buenos Aires, 1730–
29
1830 (La Plata: Editorial de la Universidad Nacional de La Plata, 1998); Carlos Mayo
30
(dir), Pulperos y pulperías de Buenos Aires, 1740–1830 (Mar del Plata: Universidad
31
Nacional de Mar del Plata, 1997); Carlos A. Mayo and Amalia Latrubesse, Terrate-
32
nientes, soldados y cautivos: La frontera, 1736–1815 (Buenos Aires: Editorial Biblos,
33 1998); Carlos A. Mayo, Fuentes para el estudio de la frontera: Voces y testimonios de
34 cautivos, fugitivos y renegados bonaerenses: 1752–1790 (Mar del Plata: Universidad
35 Nacional de Mar del Plata, 2002); Mayo, ed., Vivir en la frontera.
36 36. Slatta and Robinson, “Continuities in Crime and Punishment: Buenos Aires 1820–
37 50,” 19–46.
38 37. Unitarios: Supporters of a centralized form of government headed by Buenos Aires.
39 Federales: Supporters of a federation of autonomous provincial-states.
40 38. Szuchman, “Disorder and Social Control in Buenos Aires, 1810–1860,” 83–110. A
1 reviewed version of this article became chapter 2 of his book Order, Family, and
2 Community in Buenos Aires, 16–64.
3 39. For example, Peter W. Bardaglio, Reconstructing the Household: Family, Sex, and the
4 Law in the Nineteenth-Century South (Chapel Hill: University of North Carolina
5 Press, 1995), preface and 80–81.
40. A recent article by Juan Carlos Garavaglia shows that coercion was a driving force
6
in the process of state formation in the province of Buenos Aires. The army and
7
the police forces spent most of the state resources during the early decades of the
8
nineteenth century. Garavaglia, “La apoteósis del Leviathán: El estado de Buenos
9 Aires durante la primera mitad del siglo XIX,” Latin American Research Review 38,
10 no. 1 (2003): 135–68.
11 41. Salvatore, “ ‘El imperio de la ley’: Delito, estado y sociedad en la era Rosista,” 93–118.
12 42. Jeremy Adelman’s book is representative of the new historiography on the subject.
13 In Republic of Capital, he analyses the transition from colonial natural law to the new [126],
14 republican legal framework in Buenos Aires where more instrumental concepts of
15 property prevailed. Studying commercial law, Adelman’s book explains how politics
intersected with private law, while the efforts for redefining the concept of property Lines:
16
17 affected the course of political actions and struggles. Adelman, Republic of Capital, ——
18 2. 3.0pt
43. Recent publications related to legal history in other Latin American cities include: ———
19
Uribe-Urán, Honorable Lives; Walker, Smoldering Ashes; Arrom, Containing the Poor; Norma
20
Aguirre and Buffington, eds., Reconstructing Criminality in Latin America; Buffing- PgEnd
21
ton, Criminal and Citizen in Modern Mexico; Chambers, From Subjects to Citizens;
22 Piccato, City of Suspects; Salvatore, Aguirre, and Joseph, eds., Crime and Punishment
23 in Latin America; Speckman Guerra, Crimen y Castigo. [126],
24
25 2. Legal Architecture of Colonial Criminal Justice
26 1. Regarding the administration of criminal justice, for example, the “Decree of Indi-
27 vidual Securities” issued in 1811 contained most of the personal guarantees included
28 later on in the 1853 National Constitution. See the “Decree of Individual Securities,”
29 November 23, 1811. Prado y Rojas, comp., Leyes y decretos, vol. 1, 104–6. For the
30 constitutional basis of the Argentine penal system see Article 18 of the Constitución
31 de la Nación Argentina (1853), with a preliminary study by Ruben Bortnik (Buenos
Aires: Ediciones Corregidor, 1983), 38–39.
32
2. John Graham and C. A. Rodney, The Reports on the Present State of the United
33
Provinces of South America, 1819 (laid before the U.S. Congress) (New York: Frederick
34
Praeger, 1969), 125.
35 3. Cansanello, “Domiciliarios y Transeuntes en el proceso de formación estatal bonaer-
36 ense,” 7–22. For the points of view of Argentine legal historians see Levaggi, Historia
37 del derecho penal argentino, 1964.
38 4. A study of all those influences is in Van Kleffens, Hispanic Law until the End of the
39 Middle Ages, chapters 1 and 2.
40 5. The historical evolution of the Spanish legal system has been extensively studied by
1 law historians. See, for example, Salvador Minguijon Adrián, Historia del derecho
2 español (Madrid: Editorial Labor, 1953). Most of the pieces of legislation analyzed in
3 this chapter are organized in books (libros). Each book is divided in titles (títulos).
4 Finally, each title is separated by laws (leyes).
5 6. The debate regarding the influence of Muslim legislation in the evolution of Spanish
law goes beyond my object of study but in terms of criminal law it seemed to
6
be slight. See Van Kleffens, Hispanic Law until the End of the Middle Ages, 85–113.
7
The significance of Muslim jurisprudence in Spanish law is explained by Vance,
8
Background of Hispanic-America Law, 60–69.
9 7. Municipal and general fueros contributed to the formation of the Spanish penal
10 system. Although my focus is Castile because of its significance on the juridical
11 architecture of (Latin) American colonies, the legal evolution of other Spanish king-
12 doms is addressed by peninsular law historians as part of the merging process of laws
13 that continued throughout the Ancient Regime. See, for example, Alfonso Guallart [127], (5)
14 de Viala, El derecho penal histórico de Aragón (Zaragoza: Institución Fernando el
15 Católico, 1977), 51.
8. Karst and Rosenn, Law and Development in Latin America, 23–25. Lines: 151 to
16
17 9. There were many other reviewed editions of the Fuero Viejo during the thirteenth ———
18 and fourteenth centuries. The latest version was published in 1356 during the reign 3.0pt PgV
of Don Pedro. See Morató, Estudio de ampliación de los códigos españoles, 115–23. ———
19
10. Morató, Estudio de ampliación de los códigos españoles, 126–27. Normal Page
20
11. These parallel legal traditions are explained by Pérez-Prendes, Cortes de Castilla, PgEnds: TEX
21
28–41.
22 12. Van Kleffens, Hispanic Law until the End of the Middle Ages, 153–54.
23 13. King Ferdinand died in 1252 without completing the compilation of new laws. Thus, [127], (5)
24 his son Alfonso pursued the codification process. He enacted both the Fuero Real
25 and the Siete Partidas. See Tomás y Valiente, Manual de historia del derecho español,
26 4th ed., 232–48.
27 14. The influence of Roman Justinian Law in the Siete Partidas is explained by Madden,
28 Political Theory and Law in Medieval Spain, 65–96. An overview of Roman law is by
29 Daube, Forms of Roman Legislation, and Crook, Law and Life in Rome.
30 15. “Código de las Siete Partidas. Tomo III que contiene la Setena Partida deste nuestro
31 libro, que fabla de todas las acusaciones, e maleficios, que los omes fazen; e que pena
merescen auer porende,” Morató, Estudio de ampliación de los códigos españoles, 254.
32
16. Morató, Estudio de ampliación de los códigos españoles, 514. Samuel Parsons Scott
33
translated these laws into English. See his edited work, Las Siete Partidas, Introduc-
34
tion, Table of Contents, and Index by Charles Sumner Lobingier (Chicago: Com-
35 merce Clearing House, 1931).
36 17. Ley 8, título 31, Partida séptima: “Que cosas deven catar los jueces ante que manden
37 dar las penas; e por que razones las pueden crescer, o menguar, o toller,” Morató,
38 Estudio de ampliación de los códigos españoles, 470–71.
39 18. “El fuero real de España diligentemente hecho por el noble real Don Alfonso,”Morató,
40 Estudio de ampliación de los códigos españoles, book 1, 349.
1 19. See, for example, “Las leyes del estilo, que por otra manera se llaman declaración
2 de las leyes del fuero,” Morató, Estudio de ampliación de los códigos españoles, vol. 1,
3 305–40. See also Burns, Emperor of Culture.
4 20. Weisser, “Crime and Punishment in Early-Modern Spain,” 76–96.
5 21. Nader, “In Pursuit of Justice and Jurisdiction,” in Liberty in Absolutist Spain, 130–57.
22. “El libro de las leyes que fiço el muy noble rey Don Alfonso [Ordenamiento de
6
Alcalá], Titol XXVIII: Por que leys se pueden librar los pleitos,” Morató, Estudio de
7
ampliación de los códigos españoles, vol. 1, 462–63.
8
23. Morató, Estudio de ampliación de los códigos españoles, vol. 1, 456–58.
9 24. Also called Ordenanzas de Montalvo (1485).
10 25. A Pragmática was a general norm universally enforced and hence it was always
11 published. A more specific regulation, the Real Cédula did not require the King’s
12 signature (it was signed by the royal notary) and it was sent to the jurisdictions
13 or people directly affected by it, without needing its universal publication. By the [128],
14 eighteenth century, however, the Real Cédula became the letter that gave force of law
15 to an attached decreto. The decreto was a specific mandate that endorsed a resolution
by the King’s council (Consejo). For a complete description see Departamento de Lines:
16
17 Historia Contemporánea de la Universidad Autónoma de Madrid, Grupo ’77, La ——
18 legislación del antiguo régimen (Salamanca: Europa Artes Gráficas, 1982), 14–21. 3.0pt
26. The merging of laws from different peninsular kingdoms in early modern Spain is ———
19
explained by Tomás y Valiente, Manual de historia del derecho español, part 4. Norma
20
27. Levene, Manual de historia del derecho argentino, 25–33. PgEnd
21
28. Main arguments in the 1550–51 debate between Juan Ginés de Sepúlveda and Bar-
22 tolomé de las Casas about the nature of the Native Americans are analyzed by Brading,
23 First America, 79–101. [128],
24 29. Andrés Henestrosa, “Prefacio,” in Estudios histórico-jurídicos a la Recopilación de
25 Leyes de los Reynos de las Indias (Mexico: Ediciones Porrúa, 1987), i.
26 30. Libro II, título I, ley 2, “De las Leyes, Provisiones, Cédulas y Ordenanzas Reales,” in
27 Recopilación de las Leyes de Indias, vol. 1, 126.
28 31. Libro VII, título VIII: “De los delitos y penas,” in Recopilación de las Leyes de Indias
29 vol. 2, 296–97.
30 32. Libro II, título XV, “De las Audiencias y Chancillerías Reales,” and Libro II, título
31 XVII, “De los Alcaldes del Crimen,” in Recopilación de las Leyes de Indias,vol. 1, 187–
214 and 228–33. For an overview of the colonial judiciary defined by the Recopilación
32
see also the article by José Luis Soberanes Fernández, “La administración de justicia
33
en la Recopilación de 1680,” in Recopilación de las Leyes de Indias, 165–76.
34
33. Jimenez de Asúa, El pensamiento jurídico español y su influencia en Europa, 72–75.
35 34. Tomás y Valiente, El derecho penal de la monarquía absoluta (siglos XVI, XVII y
36 XVIII), 92.
37 35. Jimenez de Asúa, El pensamiento jurídico español y su influencia en Europa, 77–81.
38 36. Alonso, “Un jurista indiano: Juan Antonio Torquemada,” 205–31.
39 37. Tomás y Valiente, El derecho penal de la monarquía absoluta (siglos XVI, XVII y
40 XVIII), 99–104.
1 38. Blasco y Fernández de Moreda, Lardizábal: El primer penalista de América Española,

2 26–28.
3 39. Early republican criollo law students rarely heard about the Discurso from their
4 professors. See Tau Anzoátegui, La codificación en la Argentina (1810–1870), 152.
5 40. Lardizábal y Uribe, Discurso sobre las penas, vi–vii and 10–11. European authors
during the Enlightenment and their porteño followers, on the contrary, found in
6
Spain one of their favorite examples of the arbitrariness of criminal law.
7
41. Lardizábal y Uribe, Discurso sobre las penas, 30–31.
8
42. Táu Anzoátegui, La codificación en la Argentina (1810–1870), 34–36.
9 43. Táu Anzoátegui, La codificación en la Argentina (1810–1870), 34–37, 44–45, 99–101.
10 44. Porteño intellectuals would not support (perhaps they even ignored) his criticisms
11 of Rousseau’s or Beccaria’s concepts. Furthermore, they preferred to acknowledge
12 the French and Italian roots of this new criminological paradigm rather than any
13 Spanish contributions, even though in this case it was coming via New Spain. [129], (7)
14 45. Robert Buffington, “Forging the Fatherland: Criminality and Citizenship in Modern
15 Mexico” (PhD diss., Department of History, University of Arizona, Tucson, 1994),
36–44. Buffington’s book, based on this dissertation, is titled Criminal and Citizen in Lines: 227 to
16
17 Modern Mexico. ———
18 46. Maestro, Cesare Beccaria and the Origins of Penal Reform, 128–143. 3.0pt PgV
47. An example of the type of legal study that narrowly describes penal law as penal ———
19
system is Avila Martel, Aspectos del derecho penal indiano. Normal Page
20
48. Two different types of studies (one institutionally focused and the other broader in PgEnds: TEX
21
scope) confirm this: Martiré, Los regentes de Buenos Aires, and Mark A. Burkholder
22 and D. S. Chandler, From Impotence to Authority: The Spanish Crown and the Amer-
23 ican Audiencias, 1687–1808 (Columbia: University of Missouri Press, 1977). [129], (7)
24 49. Lyman L. Johnson and Susan M. Socolow, “Población y espacio en el Buenos Aires
25 del siglo XVIII,” Desarrollo Económico 20, no. 79 (October–December, 1980): 329–49.
26 See also Marisa M. Díaz,“Las migraciones internas a la ciudad de Buenos Aires, 1744–
27 1810,” Boletín del Instituto de Historia Argentina y Americana “Dr. Emilio Ravignani” 3,
28 nos. 16–17 (Segundo Semestre de 1997 y Primero de 1998). Buenos Aires, Facultad de
29 Filosofía y Letras dce la Universidad de Buenos Aires y Fondo de Cultura Económica,
30 7–32.
31 50. A description of the functions and jurisdictions of judicial officials in the Viceroyalty
of the Río de la Plata is by Zorraquín Becú, La organización judicial Argentina en el
32
período hispánico.
33
51. See Archivo Histórico de la Provincia de Buenos Aires: Libro de informes y oficios de la
34
Real Audiencia de Buenos Aires (1785–1810) (La Plata: Publicación del Archivo, 1929).
35 52. A skillful analysis of the origins and legal significance of the bandos is by Victor Tau
36 Anzoategui, “Los bandos de buen gobierno de Buenos Aires en la época hispana,”
37 Justicia, sociedad y economía en la América Española (Siglos 16, 17 y 18), Trabajos del
38 VI Congreso del Instituto Internacional de Historia del derecho indiano (Valladolid,
39 1983), 91–146.
40 53. Archivo General de la Nación Argentina [hereinafter referred to as agn], January
1 4, 1794, sección colonia, bandos, sala IX, anaquel 8, estante 10, legajo 7 [hereinafter
2 referred to as IX.8.10.7], foja 134.
3 54. agn, sección colonia, bandos, IX.8.10.5, fojas 74–75.
4 55. agn, December 23, 1789, sección colonia, bandos, IX.8.10.5, fojas 105–6.
5 56. Carnaval celebrations take place during the weekend before Ash Wednesday in many
Catholic countries. Ash Wednesday, according to the Catholic calendar, marks the
6
beginning of the Lent season.
7
57. agn, February 17, 1792, sección colonia, bandos, IX.8.10.7, fojas 2–3. This bando, like
8
many others, was transcribed and published again after other viceroys took office:
9 agn, February 23, 1797; agn, IX.8.10.8, fojas 174–75; and agn, December 18, 1804, foja
10 221.
11 58. agn, September 3, 1806, IX.8.10.8, fojas 270–71.
12 59. agn, August 9, 1790, sección colonia, bandos, IX.8.10.5, foja 134.
13 60. Bochas is a kind of bowling game played usually in an open space (cancha). [130],
14 61. agn, January 21, 1779, sección colonia, bandos, IX.8.10.4, foja 80. Similar edicts in:
15 agn, IX.8.10.7, June 2, 1794, foja 151; agn, IX.8.10.7, July 4, 1798, fojas 300–303; and
agn, IX.8.10.8, July 14, 1803, foja 137. Lines:
16
17 62. agn, April 27, 1787, sección colonia, bandos, IX.8.10.5, foja 76. See also: agn, IX.8.10.5, ——
18 August 9, 1790, foja 134; and agn, IX.8.10.8, July 30, 1804, foja 192. 3.0pt
63. agn, March 1, 1790, sección colonia, bandos, IX.8.10.5, foja 122. ———
19
Norma
20
3. Administration of Criminal Justice PgEnd
21
1. J. C. Johansen and H. Stevnosborg, “Hasard ou Myopie: Reflexions autous de deue
22 théories de l’historie du droit,” Annales 41, no. 3 (May–June 1986): 601–24.
23 2. García y García, El derecho de asilo en Indias. [130],
24 3. “Real cédula estableciendo las reglas que deben observarse en Indias en cuanto a la
25 extracción y destino de los reos que se refugian a Sagrado,” March 15, 1787, Cedulario
26 de la Real Audiencia de Buenos Aires, vol. 1, 160–65. See also “Real cédula que dispone
27 se observe en Indias la resolución inserta, referente a la extracción y destino de los
28 reos que se refugien en sagrado,” June 11, 1797, Cedulario de la Real Audiencia de
29 Buenos Aires, vol. 2, 292–97.
30 4. See Archivo Histórico de la Provincia de Buenos Aires (Hereinafter referred to as
31 ahpba), Real Audiencia, 7.1.95.19, 1797, Criminal contra Vicente Palomeque, 13.
5. Article 5, Real Cédula March 15, 1787. Cedulario de la Real Audiencia de Buenos Aires,
32
vol. 1, 163.
33
6. ahpba, Real Audiencia, 7.1.95.8, 1786, Contra Manuel Robles y Francisco Gary o
34
González, por haber asaltado a don Adrián Aramburu.
35 7. ahpba, Real Audiencia, 7.1.91.11, 1794, José León Lozano, por muerte a Nicolás Rixe,
36 p. 23 vuelta. Claiming sanctuary in criminal cases quickly disappeared after indepen-
37 dence. Refuge in military garrisons, an action that was not supported by any specific
38 norm, became a more effective way of evading judicial authorities.
39 8. See LaFuente Machain, Buenos Aires en el siglo XVIII, 60–100. Recent works by
40 Fernando Aliata are useful to trace the urban development of Buenos Aires after
1 1810; see his “Ciudad o aldea: La construcción de la historia urbana del Buenos
2 Aires anterior a Caseros,” Entrepasados, Revista de Historia 2, no. 3 (1992): 51–67; and
3 “Edilicia privada y crecimiento urbano en el Buenos Aires posrevolucionario, 1824–
4 1827,” Boletín del Instituto de Historia Argentina y Americana “Dr. Emilio Ravignani”
5 3, no. 7 (1993): 59–92. See also Raquel Prestigiacomo and Fabian Uccello, eds., La
Pequeña Aldea: Vida cotidiana en Buenos Aires, 1800–1860 (Buenos Aires: Eudeba,
6
1999).
7
9. ahpba, Real Audiencia, 5.5.95.11, 1788, Criminal contra José Alvarez, por haber herido
8
y robado a Luis Rosa un dinero, p. 115. Although the prosecutor did not present any
9 charges in this case, the Audiencia sentenced Alvarez to two years of public work.
10 10. Besio Moreno, Buenos Aires, puerto del Río de la Plata capital de la Argentina, 392.
11 11. Torre Revello, Crónicas del Buenos Aires colonial, 150.
12 12. “Real cédula expedida para que en Indias e islas Filipinas, se publique y observe la
13 resolución inserta, en que se prescribe lo que deben observar los tribunales en la [131], (9)
14 imposición de penas a los reos de resistencia a la justicia, escalamiento de cárcel, y
15 demás que se expresa, como asimismo el número de ministros que han de concurrir
a la determinación de las causas indicadas,” August 3, 1797, Cedulario de la Real Lines: 307 to
16
17 Audiencia de Buenos Aires, vol. 2, 298–301. ———
18 13. ahpba, Real Audiencia, 7.1.86.8, 1783–87, Contra Montenegro, Luis. Acusado de robo. 3.0pt PgV
14. ahpba, Real Audiencia, 5.5.66.32, 1783, Criminal contra Juan Antonio Peralta por ———
19
muerte a José Francisco Mas, pp. 36–36 vuelta. Normal Page
20
15. ahpba, Real Audiencia, 5.5.66.3, 1798, Contra Inocencio Acosta o Chamachea, por PgEnds: TEX
21
ladrón.
22 16. ahpba, Real Audiencia, 7.1.95.8, 1787, p. 24.
23 17. August 12, 1785, La Real Audiencia de Buenos Aires da cuenta a V. M. de quedar en [131], (9)
24 ejercicio de sus funciones. Libro de informes y oficios de la Real Audiencia de Buenos
25 Aires (1785–1810) (La Plata: Publicaciones del Archivo Histórico de la Provincia de
26 Buenos Aires, 1929), 1. The first Audiencia was created during the second half of the
27 seventeenth century but it only lasted ten years (1661–71).
28 18. Burkholder and Chandler, From Impotence to Authority, Appendix X: New Ap-
29 pointees by Tribunal, Office, and Date, 190–91. An excellent study on the colonial
30 bureaucracy in Buenos Aires is by Socolow, Bureaucrats of Buenos Aires.
31 19. December 23, 1786, Se acusa recibo de Real Cédula de 23 de Agosto de 1786 sobre
Regentes de las Audiencias. Cedulario de la Real Audiencia de Buenos Aires (La Plata:
32
Publicaciones del Archivo Histórico de la Provincia de Buenos Aires, 1929), vol. 1
33
(4/14/1783 to 12/8/1790), 103–16.
34
20. See, for example, La Audiencia de Buenos Aires informa con testimonio lo ocurrido
35 en la víspera y dia de paseo del Real Estandarte, 27 July 1807. Libro de Informes y Oficios
36 de la Real Audiencia de Buenos Aires (1785–1810), 236–38. Juan Carlos Garavaglia
37 studied social and power-disputing significance of protocol and etiquette in “El
38 teatro del poder: Ceremonias, tensiones y conflictos en el estado colonial,” Boletín
39 del Instituto de Historia Argentina y Americana “Dr. Emilio Ravignani” 3, no. 14 (1996).
40 Buenos Aires, Facultad de Filosofía y Letras de la Universidad de Buenos Aires, 7–30.
1 21. Don Juan José de Vertiz y Salcedo, Memoria a su sucesor el Marquéz de Loreto, 12
2 March 1784. Memorias de los virreyes del Río de la Plata (Buenos Aires: Editorial Bajel,
3 1945), 40–42.
4 22. November 10, 1786, Audiencia de Buenos Aires al Consejo de Indias, Representación
5 sobre haber negado el Virrey la entrega de los autos de don Juan Joseph Segovia,
que interpuso apelación ante ella. Libro de informes y oficios de la Real Audiencia de
6
Buenos Aires (1785–1810), 4–8.
7
23. November 25, 1789, La Audiencia de Buenos Aires informa con autos, del gravamen
8
con que vuestro Marqués de Loreto ha dispuesto precisarla. Libro de informes y oficios
9 de la Real Audiencia de Buenos Aires (1785–1810), 25.
10 24. February 10, 1790, Memoria del Marqués de Loreto a su sucesor Don Nicolás de
11 Arredondo. Memorias de los Virreyes del Río de la Plata, 287–90.
12 25. Real Cédula, August 8, 1790. Cedulario de la Real Audiencia de Buenos Aires, vol.
13 1, 415–17. See also Acordada del 25 de octubre de 1790, Real Audiencia de Buenos [132],
14 Aires acusa recibo de la Real Cédula sobre no deber dar cuenta a vuestro virrey de
15 las determinaciones en las causas criminales. Libro de informes y oficios de la Real
Audiencia de Buenos Aires (1785–1810), 42. Lines:
16
17 26. April 2, 1789, Real Cédula confiriendo facultades al virrey, don Nicolás de Arredondo, ——
18 para averiguar y castigar los delitos cometidos en las provincias a su mando. Cedulario 3.0pt
de la Real Audiencia de Buenos Aires, vol. 1, 274–75. ———
19
27. Memoria del virrey don Nicolás de Arredondo a su sucesor don Pedro Melo de Norma
20
Portugal y Villena, 16 March 1795. Memorias de los Virreyes del Río de la Plata, 377–78. PgEnd
21
28. Memoria del virrey don Nicolás de Arredondo a su sucesor don Pedro Melo de
22 Portugal y Villena, 16 March 1795. Memorias de los Virreyes del Río de la Plata, 381 and
23 444. [132],
24 29. See the special issue in The Americas 50, no. 4 (April 1994), including articles by Silvia
25 Arrom, Charles Cutter, Linda Arnold, and especially Michael Scardaville.
27 31. December 10, 1792, La Audiencia informa con testimonio e autos, de la competencia
28 con vuestro Virrey sobre el desafuero del Sargento de Dragones Elías Bayala. Libro
29 de informes y oficios de la Real Audiencia de Buenos Aires (1795–1810), 61.
30 32. ahpba, 5.5.69.13, 1797.
31 33. ahpba, Real Audiencia, 7.1.87.22, 1798, pp. 1, 3 vuelta, 13 vuelta to 22, and 29.
34. ahpba, Real Audiencia, 7.1.95.19, 1787, p. 11.
32
35. ahpba, Real Audiencia, 5.5.72.25, 1788; see the decree issued by the tribunal at the end
33
of this case.
34
36. For example, ahpba, 7.2.100.12, 1794.
36 38. La instrucción circular para el mejor y más breve despacho de la formación de las
37 causas criminales (1788), proyectada por el regente Benito de la Mata Linares, edited
38 by José M. Mariluz Urquijo, Revista del Instituto de Historia del Derecho (Buenos
39 Aires: uba, Facultad de Derecho y Ciencias Sociales, 1961), 12, pp. 173–83.
40 39. Well known are the disputes between the Regente Mata Linares and the Audiencia
1 prosecutor José Marquez de la Plata. See Eduardo Martiré, Los Regentes de Buenos
2 Aires y la reforma judicial indiana de 1766 (Buenos Aires: Editorial de la Universidad,
3 1981); Abelardo Levaggi, El virreinato Ríoplatense en las vistas fiscales de José Marquez
4 de la Plata, 3 vols. (Buenos Aires: Universidad del Museo Social Argentino, 1988);
5 Abelardo Levaggi, Los escritos del fiscal de la Audiencia de Buenos Aires Manuel Genaro
de Villota (Buenos Aires: Fundación para la Educación, la Ciencia y la Cultura, 1981).
6
40. ahpba, 5.5.80.58, pp. 3 and 12.
7
41. ahpba, Juzgado del Crimen, 34.1.21.52, 1796, pp. 15 vuelta and 16.
8
42. ahpba, Juzgado del Crimen, 34.1.17.23, 1792, p. 5. Other terms used in these cases to
9 describe sexual offenses included: torpe trato, torpe acceso, malas hechurías, violarla
10 con torpeza escandalosa, torpe apetito, acto carnal, la mayor iniquidad que puede
11 cometerse, depravado propósito, penetración de los conductos del pudor, brutal
12 carnal deleite, usar de ella, haber tenido cópula carnal, haber tenido reprobado
13 incestuoso adulterino comercio, gozándola por la fuerza, inicuas y exacerbantes [133], (11)
14 operaciones, no haber guardado continencia, condescender en torpezas, facilitar el
15 coito, torpe empresa, feo y abominable crimen, torpes deseos que podía sugerirle su
lascivia, etc. Lines: 379 to
16
17 43. ahpba, Juzgado del Crimen, 34.2.32.25, 1809, pp. 1 and 28. ———
18 44. Expediente of a homicide transcribed by Tomás Jofré, Causas instruídas en Buenos 3.0pt PgV
Aires durante los siglos 17 y 18 (Buenos Aires: Facultad de Derecho y Ciencias Sociales, ———
19
Universidad de Buenos Aires, 1913), 237–71. Normal Page
20
45. ahpba, Real Audiencia, 7.1.91.19, 1796, Criminal contra Pedro Nolasco por estupro, PgEnds: TEX
21
p. 5 vuelta. See other examples in ahpba, Real Audiencia, 5.5.66.10, 1788, Contra
22 Javier Bourese por la muerte de Pedro Quintana; ahpba, Real Audiencia, 7.1.87.1,
23 1788, Criminal contra Eusebio Pareño por ratero; ahpba, Real Audiencia, 5.5.69.13, [133], (11)
24 1797, Contra Tadeo Viscamboa por heridas al dragón Ventura Perrizo, p. 5; ahpba,
25 Juzgado del crimen, 34.1.8.21, 1784, pp. 6 and 6 vuelta.
26 46. ahpba, Real Audiencia, 7.1.89.12, 1787, Contra Floretino Quiñones por muerte, p. 2.
27 47. ahpba, Juzgado del Crimen, 34.1.21.52, 1796, p. 4 vuelta.
28 48. ahpba, Real Audiencia, 7.1.95.12, 1789, Criminal contra Pedro José Yapay (indio), por
29 la muerte que le dio a Nicolás Azari, p. 25 vuelta.
30 49. ahpba, Juzgado del Crimen, 34.2.30.3, 1805, p. 5. Porteño comisarios also applied this
31 strategy after independence. No longer in charge of the plenario stage and the sen-
tence, these high-ranking police officers still managed to prolong some defendants’
32
time in jail during the sumario. They were able to do this by regulating the number
33
of witnesses and other participants in the sumario.
34
50. An example of these agreements can be found in ahpba, Real Audiencia, 7.1.95.20,
35 1793, Contra Francisco Silverio Aguirre por estupro. The opposite case in ahpba,
36 Informaciones de Pobreza, 7.5.1.27, 1796, concerning Pedro José del Valle who, “faces
37 criminal charges for rape without being able to make any settlement with the other
38 part for he is extremely poor,” 2.
39 51. ahpba, Juzgado del Crimen, 34.2.26.1, 1801, p. 196.
40 52. This concern was not unique to the Río de la Plata. All over late colonial Latin
1 America, authorities worried about what could happen with the increasing number
2 of poor and dispossessed people in the cities. Haslip-Viera, “The Underclass,” in
3 Hoberman and Socolow, eds. Cities and Societies in Colonial Latin America, 285–311.
4 See also Haslip-Viera, Crime and Punishment in Late Colonial Mexico City.
5 53. ahpba, Real Audiencia, 5.5.66.1, 1791, Contra Dionisio Rocha, p. 14; see also ahpba,
6 Real Audiencia, 7.1.87.7, 1788, Criminal contra Sebastian Amaya Carmona por homi-
7 cidio, pp. 5 onward. Attempts to apply the principle of equality before the law in
8 criminal cases after independence made judicial authorities drop ethnic references
from legal testimonies. Yet the opinions of “respectable citizens,” as I will explain in
9
the next chapter, would continue to exercise an important influence in the resolution
10
of criminal expedientes.
11
54. Levaggi, Historia del derecho penal argentino, 30.
12
55. ahpba, Real Audiencia, 7.1.86.10, 1784, Criminal contra María Pascuala Benítez, Santi-
13 [134],
ago Navarro, Donato Aquino, Gregorio González, Andrés Rosendo y Gerardo Macho,
14 acusados de la muerte de Felipe Rodríguez, p. 59 vuelta.
15 56. ahpba, Real Audiencia, 7.1.95.5, 1786, Criminal contra Francisco de la Rosa, Josefa Lines:
16 de la Rosa, e Ignacio Cardozo (pardos libres), y Cosme Segura, Antonio Castilla y
17 ——
Joaquín Peuna (esclavos), por el robo que hicieron a don Francisco Segura, pp. 21–22.
18 57. See ahpba, Real Audiencia, 7.2.101.6, 1800, Criminal contra José Gomez por robo.
15.0p
———
19 58. ahpba, Real Audiencia, 5.5.80.34, 1788, Criminal contra Rivera, Juan Manuel, por el
Norma
20 robo de un cáliz de la Parroquia de la Concepción, p. 12.
PgEnd
21 59. ahpba, Real Audiencia, 5.5.66.1, 1791, p. 33 vuelta.
22 60. ahpba, Real Audiencia, 5.5.76.2, 1807, Contra Ramón López por castigo a su esclavo
23 Francisco Basabe, p. 1. [134],
24 61. Indians especially used colonial courts to submit collective claims after the con-
25 quest. See Steve J. Stern, Perú’s Indian Peoples and the Challenge of Spanish Conquest:
26 Huamanga to 1640 (Madison: University of Wisconsin Press, 1982).
27 62. ahpba, Real Audiencia, 5.5.76.2, 1807, pp. 4 and 4 vuelta.
63. ahpba, Real Audiencia, 5.5.69.49, 1808, Contra Pablo Medina y otros por sospechas
28
de un robo,” p. 44 vuelta.
29
64. ahpba, Juzgado del Crimen, 34.2.26.30, 1801, p. 29 vuelta.
30
65. ahpba, Real Audiencia, 5.5.71.7, 1796, Criminal contra Teodoro Castro, por ratero y
31
habérsele encontrado con un cuchillo, p. 20 vuelta.
32
66. ahpba, Juzgado del Crimen, 34.1.12.2, 1793, p. 7.
33 67. ahpba, Juzgado del Crimen, 34.2.26.1, 1801, p. 188 vuelta.
34 68. Research on Buenos Aires rural justice has increased significantly. See, for instance,
35 Juan Carlos Garavaglia, “La justicia rural de Buenos Aires durante la primera mitad
36 del siglo XIX,” Poder, conflicto y relaciones socials: El Río de la Plata, siglos XVIII–XIX
37 (Buenos Aires: Ediciones Homo Sapiens, 1999).
38 69. ahpba, Real Audiencia, 7.1.96.24, 1787, Ferreyra, Mariano, por muerte al oficial de
39 la barbería llamado José, p. 72; See also alcalde Manuel Antonio Warnes’s death
40 sentence against defendant Juan de la Crúz Alvarez, issued on November 12, 1788,
1 in ahpba, Real Audiencia, 7.1.97.4, Criminal contra Juan de la Crúz Alvarez, p. 29

2 vuelta.
3 70. ahpba, Real Audiencia, 5.5.70.10, 1787, Cruz, Gabriel, sumario contra este por homi-
4 cidio, p. 160.
5 71. ahpba, Criminal Provincial, 5.5.75.9, foja 11. See also Osvaldo Barreneche, “Homi-
6 cidio y administración de justicia en Buenos Aires 1784–1810,” in Mayo ed., Estudios
7 de historia colonial Ríoplatense, 7–39.
8
4. Changes and Continuities in Criminal Law
9
1. After years of political and military disputes between Buenos Aires province and
10
the Argentine Confederation (1852–1861), the former emerged victorious. Although
11
Buenos Aires imposed its will on the other provinces, porteño leaders accepted the
12
1853 National Constitution after debating a few amendments in another convention
13 [135], (13)
that took place in 1860. A useful summary of this process is found in Scobie, La lucha
14 por la consolidación nacional.
15 2. Alberdi, Bases y puntos. Lines: 450 to
16 3. Other historians who followed this categorization are, for example, Octavio Gonzalez
17 Roura, “El derecho penal argentino y su evolución histórica,” Archivos de Psiquiatría
———
18 (Buenos Aires) 9 (July–August 1910): 406–14, and Chichizola, Historia del derecho
15.0pt Pg
———
19 penal argentino, chap. 2, “El período intermedio (1810–1853),” 27–37.
Normal Page
20 4. Levene, Historia del derecho argentino, vol. 4, 12.
PgEnds: TEX
21 5. Radaelli, “Derecho patrio argentino y no derecho intermedio,” 59–62.
22 6. Chiaramonte,“Acerca del origen del estado en el Río de la Plata,” 27–50. See also by the
23 same author, “El principio del consentimiento en la gestación de las independencias [135], (13)
24 íbero y norteamericanas,” 21–43.
25 7. José Carlos Chiaramonte, “Formas de identidad en el Río de la Plata luego de 1810,”
26 Boletín del Instituto de Historia Argentina y Americana “Dr. Emilio Ravignani” 3, no.
27 1 (1989): 71–92.
8. The province of Buenos Aires, with the city of Buenos Aires as its capital, was created
28
in February 1820. See Cansanello, “Domiciliados y transeuntes en el proceso de
29
formación estatal bonaerense, 1820–1832,”7. See also Gelman,“Crisis y reconstrucción
30
del orden en la campaña de Buenos Aires: Estado y sociedad en la primera mitad del
31
siglo XIX,” 7–32.
32
9. For example, Eugenio Gastiazoro, Historia argentina, or, Introducción al análisis
33 económico social de la historia argentina, vol. 1, Colonia e independencia nacional,
34 1515–1820 (Buenos Aires: Editorial Agora, 1986).
35 10. Zorraquín Becú, La organización judicial Argentina en el periodo hispánico, 210.
36 11. ahpba), Real Audiencia y Cámara de Apelaciones, 5.5.65.44, foja 17 vuelta (1811); and
37 5.5.75.15, foja 99 (1813).
38 12. “Decreto de Seguridad Pública,” June 11, 1810. Senado de la Nación, Biblioteca de
39 Mayo, Colección de obras y documentos para la historia argentina, vol. 18, Antecedentes,
40 documentos políticos y legislativos, 16194.
1 13. “Decreto de Orden Público,” August 3, 1816. Prado y Rojas, comp., Leyes y decretos,
2 vol. 1, 341.
3 14. What seems to be the case for criminal justice did not necessarily match other
4 aspects of the law. See Jeffrey M. Shumway, “The Purity of My Blood Cannot Put
5 Food on My Table: Changing Attitudes towards Interracial Marriage in Nineteenth-
6 Century Buenos Aires,” The Americas, 58, no. 2 (October 2001): 201–20. Changes
7 and continuities can be traced comparing criminal justice with other legal branches
8 such as private law. See Mirow, Latin American Law; and Rosti, Modelli giuridici
nell’Argentina indipendente.
9
15. “Reglamento de la división de poderes sancionado por la Junta Conservadora.
10
Sección tercera del poder judicial. Artículo segundo.” Leiva, comp., Fuentes para
11
el estudio de la historia institucional argentina, 43.
12
16. “Reglamento Provisorio de 1817, Seccion Segunda: Del Poder Legislativo. Capítulo 1,
13 [136],
Artículo Segundo.” San Martino de Dromi, Documentos constitucionales argentinos,
14 2263.
15 17. The classic work on the revolution for independence in the Río de la Plata re- Lines:
16 gion remains Halperín Donghi, Revolucion y guerra. Legal (selective) adaptation
17 ——
was a common practice throughout Latin America during these first decades of the
18 nineteenth century. For example: Karen D. Caplan, “The Legal Revolution in Town
15.0p
———
19 Politics: Oaxaca and Yucatán, 1812–1825,” Hispanic American Historical Review 83, no.
Norma
20 2 (2003): 255–93. A counter example is by John R. Fisher, “The Royalist Regime in the
PgEnd
21 Viceroyalty of Peru, 1820–1824,” Journal of Latin American Studies 32, part 1 (2000):
22 55–84.
23 18. agn, X.16.9.3, September 14, 1836. “Nota del Tribunal de Justicia al Señor Oficial [136],
24 encargado del Ministerio de Gobierno.”
25 19. The newspaper El Argos de Buenos Aires (1821–25) is extensively used in this book as a
26 source that illustrates some of the ongoing debates during the Rivadavian years. The
27 survival of El Argos was directly linked to governmental support, and it was printed
at the Imprenta del Estado by special state permission. See Jorge Myers, “Identidades
28
porteñas. El discurso ilustrado en torno a la nación y el rol de la prensa: El Argos de
29
Buenos Aires, 1821–1825,” in Paula Alonso, comp., Construcciones impresas: Panfletos,
30
diarios y revistas en la formación de los estados nacionales en América Latina, 1820–1920
31
(Buenos Aires: Fondo de Cultura Económica, 2003), 39–63.
32
20. El Argos de Buenos Aires, Wednesday, November 20, 1822, 4. See also Piccirilli, Guret
33 Bellemare. Contibución a la historia del derecho argentino, Instituto de Historia del
34 Derecho Argentino, Conferencias y Comunicaciones 3, 9–61.
35 21. See, for example,“Bando del triunvirato estableciendo penas para los robos,”October
36 4, 1811. Prado y Rojas, comp., Leyes y decretos, vol. 1, 100–101.
37 22. agn, X.12.2.1, March 12, 1822, foja 1. Carta del Presidente del Tribunal de Justicia,
38 Manuel Antonio de Castro, al Ministro de Gobierno. Castro’s biography is by Levene,
39 La Academia de Jurisprudencia y la vida de su fundador Manuel Antonio de Castro.
40 23. agn, X.12.2.1, 1822, foja 2.
1 24. agn, X.13.9.4, April 7, 1826. Nota del Juez de Paz de Catedral al Sur al Ministro de
2 Gobierno.
3 25. agn, X.13.8.6, March 2, 1825. Carta del Tribunal de Justicia al Ministro de Gobierno
4 de la Provincia de Buenos Aires, foja 2.
5 26. agn, X.13.8.6, March 2, 1825. Carta del Tribunal de Justicia al Ministro de Gobierno
6 de la Provincia de Buenos Aires, foja 4.
7 27. As these legal transformations took place other important political changes went on
8 as well. One of them, without doubt, was the slow but consistent formation of a
porteño public sphere. Popular vote and increasing forms of political participation
9
in elections were part of that process. See Ternavasio, La revolución del voto.
10
28. Burkholder and Chandler, From Impotence to Authority, 143.
11
29. “Reglamento de institución y administración de justicia del gobierno superior pro-
12
visional de las Provincias Unidas del Río de la Plata,” January 23, 1812, Senado de
13 [137], (15)
la Nación, Biblioteca de Mayo, Colección de obras y documentos para la Historia
14 Argentina, vol. 18, Antecedentes, documentos políticos y legislativos, 16688.
15 30. See, for example, “Reglamento provisorio sobre los recursos de segunda suplica- Lines: 516 to
16 cion, nulidad, ó injusticia notoria, y otros extraordinarios, acordado con precedente
17 ———
dictámen del Ministerio Fiscal,” June 21, 1811. Prado y Rojas, comp., Leyes y decretos,
18 vol. 1,93–96. An example of these special tribunals is the “Tribunal de recursos ex-
15.0pt Pg
———
19 traordinarios por nulidad é injusticia notoria,” established on December 5, 1838, and
Normal Page
20 composed of “three representatives named by the governor.” Prado y Rojas comp.,
PgEnds: TEX
21 Leyes y decretos, vol. 4, 332–35. For a description and functions of these tribunals see
22 Ricardo Levene,“Contribución a la historia del tribunal de recursos extraordinarios,”
23 Separata de la Revista de la Facultad de Derecho y Ciencias Sociales (Buenos Aires) 6, [137], (15)
24 no. 26 (September–October 1951): 11–48.
25 31. Levaggi, Manual de historia del derecho argentino, vol. 2, Judicial, civil, penal, 45–54.
26 32. New interpretations on the abolishing of cabildo porteño are by Ternavasio, “La
27 supresión del cabildo de Buenos Aires, 33–74.
33. Articles 1, 2, 3, and 5. Law passed on December 24, 1821. See Levene, Manual de historia
28
del derecho argentino, 320–21.
29
34. See “Decreto sobre la administración de la justicia en la provincia.” Prado y Rojas,
30
comp., Leyes y decretos, vol. 3, 55.
31
35. “Decreto del Triunvirato designando una Comisión de Justicia,”April 18, 1812, Senado
32
de la Nación, Biblioteca de Mayo, Colección de obras y documentos para la historia
33 argentina, vol. 18, Antecedentes, documentos políticos y legislativos, 16713. See also agn,
34 X.15.2.8, (1829).
35 36. “Decreto autorizando al Coronel D. Gervacio Rosas para aplicar las penas corre-
36 spondientes a los ladrones, salteadores, y asesinos,” February 20, 1830. Prado y Rojas,
37 comp., Leyes y decretos, vol. 3, 449.
38 37. Introduction to the “Reglamento de institución y administración de justicia del
39 gobierno superior provisional de las Provincias Unidas del Río de la Plata,” January
40 23, 1812, Senado de la Nación, Biblioteca de Mayo, Colección de obras y documentos
1 para la historia argentina, vol. 18, Antecedentes, documentos políticos y legislativos,

2 16687–88.
3 38. Senado de la Nación, Biblioteca de Mayo, Colección de obras y documentos para la
4 historia argentina, vol. 18, Antecedentes, documentos políticos y legislativos, 16688 and
5 16695.
39. El Censor, Wednesday, January 29, 1812, “Reflexiones sobre el reglamento de in-
6
stitución y administración de justicia.” Senado de la Nación, Biblioteca de Mayo,
7
Colección de obras y documentos para la historia argentina, vol. 7, Periodismo, 5781–82.
8
40. Senado de la Nación, Biblioteca de Mayo, Colección de obras y documentos para la
9 historia argentina, vol. 7, Periodismo, 5820. Manuel Antonio de Castro opposed the
10 reglamento of 1812 in his newspaper El Observador Americano (August 1816). See
11 also Hector José Tanzi, “Los comentarios periodísticos al reglamento de institución
12 y administración de justicia de 1812,” Revista del Instituto de Historia del Derecho 25
13 (Buenos Aires: Facultad de Derecho y Ciencias Sociales uba, 1964): 179–98. [138],
14 41. See Article 9 of the “Decreto de Seguridad Individual,” November 23, 1811. Leiva,
15 comp., Fuentes para el estudio de la historia insititucional argentina, 63–64.
42. Loveman, Constitution of Tyranny, 8–13. Lines:
16
17 43. “Reglamento formado de orden de la soberana Asamblea General Constituyente para ——
18 el Supremo Poder Judicial, que debe organizarse, y administración de justicia en las 3.0pt
Provincias Unidas del Río de la Plata.” Debated on the sessions of June 30, and July 2 ———
19
and 5, 1813. Reproduced by Victor Tau Anzoátegui, “Un reglamento para el supremo Norma
20
poder judicial en 1813,” Revista del Instituto de Historia del Derecho 8 (Buenos Aires: PgEnd
21
Facultad de Derecho y Ciencias Sociales de la uba, 1957): 152–58.
22 44. Tau Anzoátegui, “Un reglamento para el supremo poder judicial en 1813,” 153.
23 45. José Carlos Chiaramonte, “El federalismo argentino en la primera mitad del siglo [138],
24 XIX,” in Marcello Carmagnani, coord., Federalismos Latinoamericanos: Mexico,
25 Brasil, Argentina, 81–132.
26 46. “Reglamento Provisorio dictado por el Congreso de Tucumán para las Provincias
27 Unidas de Sudamérica,” December 3, 1817. Leiva, comp., Fuentes para el estudio de la
28 historia institucional argentina, 168.
29 47. “Reglamento Provisorio dictado por el Congreso de Tucumán para las Provincias
30 Unidas de Sudamérica,” December 3, 1817. Leiva, comp., Fuentes para el estudio de
31 la historia institucional argentina, 169. The defendant’s right to name a padrino did
not apply to criminal cases that involved political conspiracies or other “aggressions
32
against public order,” as representatives to the Congress of Tucumán stated later on
33
(see “Sobre procedimientos en causas criminales,” August 18, 1818). The reglamento
34
also ratified a legal innovation introduced in 1813: the prohibition of requiring any
35 kind of legal oath for the defendant. The oath was mandatory under previous colonial
36 legislation and legal practice.
37 48. “Reglamento Provisorio . . . ,” December 3, 1817, 170.
38 49. Early examples of constitutional law in comparative perspective in Latin America
39 are by Roberto Gargarella,“El periodo fundacional del constitucionalismo sudamer-
40 icano (1810–1860),” 305–28. A reduced version by the same author, “Towards a Typol-
1 ogy of Latin American Constitutionalism, 1810–1860,” Research Reports and Notes

2 Section, Latin American Research Review 39, no. 2 (June 2004): 141–53.
3 50. An explanation of these political conflicts is in Tulio Halperín Donghi, Politics, Eco-
4 nomics, and Society in Argentina in the Revolutionary Period (Cambridge: Cambridge
5 University Press, 1975).
51. “Constitución de las Provincias Unidas en Sud América, seguida del manifiesto de
6
22 de abril de 1819,” sección IV, capítulo único; and “Constitución sancionada por
7
el congreso general constituyente de 1824–27, precedida por un manifiesto general
8
acordado por el mismo congreso, 24 de diciembre de 1826,” sección VI. Sampay,
9 comp., Las constituciones de la Argentina (1810–1972), 274 and 317. See also Medrano,
10 “Problemas de la organización de la justicia en las primera soluciones constituyentes,”
11 1127–48; and Medrano,“Las ideas sobre el poder judicial en el congreso constituyente
12 de 1826,” 345–61.
13 52. Ley aboliendo todo fuero personal (July 5, 1823), Ampliación sobre ley de fueros [139], (17)
14 (July 8, 1823), and Declaratoria sobre ley de abolición de fueros (September 17, 1823).
15 Prado y Rojas, comp., Leyes y decretos, vol. 2, 408, 411, 425–26. A law passed the year
before ratified individual rights and judicial guarantees, excluding the arrest of citi- Lines: 575 to
16
17 zens under special jurisdictions (like the military). Decreto de Seguridad Individual, ———
18 February 14, 1822. Prado y Rojas, comp., Leyes y decretos, vol. 2, 254. 3.0pt PgV
53. Conflicts over this issue in a particular criminal case involved the Tribunal de Jus- ———
19
ticia, Juez criminal de primera instancia Dr. Guzman, Inspector General de Armas, Normal Page
20
Comandante del Regimiento 1 de Fusileros, and Ministro de Gobierno. See agn, PgEnds: TEX
21
X.13.8.6, July 2, 1825. On war and social order after independence see a series of
22 articles by Eduardo Miguez, Gabriel Di Meglio, Fabián Herrero, Raúl Fradkin, Sil-
23 via Ratto, and Juan Carlos Garavaglia in a special issue of Anuario ihes (Instituto [139], (17)
24 de Estudios Histórico-Sociales), Universidad Nacional del Centro de la Provincia de
25 Buenos Aires, Number 18, 2003. Especially regarding the city of Buenos Aires, Gabriel
26 Di Meglio, “Soldados de la Revolución: Las tropas porteñas en la Guerra de inde-
27 pendencia (1810–1820), 39–66; and Fabián Herrero, “Un golpe de estado en Buenos
28 Aires durante octubre de 1820,” 67–86. A comparative study on war, the military, and
29 state formation is by Fernando López Alves, State Formation and Democracy in Latin
30 America (Durham nc: Duke University Press, 2000). See Figure I.1 and Table I.4 on
31 pages 46–47 (“Wars of Independence and Outcome”).
54. agn, 13.8.6, September 12, 1825. Nota del Juez Domingo Guzmán al Ministro de
32
Gobierno. Guzmán argued that he had ordered the arrest before Pagola was assigned.
33
Executive authorities, however, wanted to avoid any confrontation with the military
34
in this case. They did not provide further information to the judge on this matter.
35 55. agn, X.15.10.3, April 15, 1831. Manuel Antonio de Castro al Ministro de Gobierno.
36 56. agn, X.15.10.3, April 6, 1831. Nota del Juez en lo Criminal Baldomero García. Judi-
37 cial and executive authorities drafted defendants as a form of punishment. See, for
38 example, agn, X.16.3.3 (1833) and agn, 9.3.1.32, Cámara de Justicia (1834).
39 57. For example, agn, 9.3.1, Cámara de Justicia, September 6, 1834. Nota del Ministro de
40 Guerra adjuntando sumario.
1 58. “Fuerza Armada. Se determinan sus deberes y la conducta que debe observar en
2 tumultos populares,” October 31, 1829. Prado y Rojas, comp., Leyes y decretos, vol. 3,
3 419.
4 59. ahpba, Criminal provincial, 5.5.72.19. Arenas Gerónimo, por muerte de un esclavo
5 de Agustín Arenas, p. 5.
60. agn, X.12.2.1, February 26, 1821. Carta del Tribunal de Justicia al Ministro de Go-
6
bierno; March 3, 1821. Respuesta del Comandante del Cuerpo del Orden. A simi-
7
lar proposal submitted later by judicial notaries was denied in similar terms. agn,
8
X.15.2.8, May 18, 1829. Carta de la Cámara de Justicia al Ministro de Gobierno y
9 respuesta de este.
10 61. “Ampliación de la ley sobre fueros,” July 8, 1823. Governmental decree signed by
11 Bernardino Rivadavia. Prado y Rojas, comp., Leyes y Decretos, vol. 2, 410–11.
12 62. See Levene, “El proyecto de administración de justicia de 1833 para la provincia de
13 Buenos Aires, durante el gobieno de Balcarce,” 11–19. [140],
14 63. See, for example, agn, X.17.7.1, March 20, 1846. Nombramiento por el supremo
15 gobierno al Doctor Rafael Casajenas [como] Juez especial de primera instancia. On
the administration of criminal justice in the countryside during the Rosas regime see Lines:
16
17 Salvatore, Wandering Paysanos, especially chaps. 5 (“The Power of Laws,” 161–96), 6 ——
18 (“The Making of Crime,” 197–231), and 7 (“The Experience of Punishment,” 232–61). 3.0pt
Strong evidence challenging the view of Rosas as mere representative of bonaerense ———
19
landowners is in Jorge Gelman and María Inés Schroeder, “Juan Manuel de Rosas Norma
20
contra los estancieros: Los embargos a los unitarios de la campaña de Buenos Aires,” PgEnd
21
Hispanic American Historical Review 83, no. 3 (August 2003): 487–520.
22 64. “Decreto sobre administración de justicia,” March 1, 1814, Gaceta Ministerial #4.
23 Prado y Rojas, comp., Leyes y decretos, vol. 1, 243–44. [140],
24 65. agn, X.16.3.3, September 10, 1833. Nota enviada por el Gobernador de la Provincia de
25 Buenos Aries al Tribunal de Justica. agn, X.16.3.3, September 17, 1833. Respuesta del
26 presidente de turno del Tribunal de Justicia Doctor Miguel de Villegas al Gobernador.
27 66. A ten-year prison sentence plus mandatory service on public work projects was
28 imposed on less severe crimes against property. “Bando del triunvirato estableciendo
29 penas para los robos,” October 4, 1811. Prado y Rojas, comp., Leyes y decretos, vol. 1,
30 100–101.
31 67. “Medidas extraordinarias de policía. Bando de Don Manuel de Sarratea, gobernador
de la provincia de Buenos Aires,” March 14, 1820. Gaceta de Buenos Aires #164. Prado
32
y Rojas, comp., Leyes y decretos, vol. 2, 53–55.
33
68. “Decreto del gobernador de la provincia de Buenos Aires imponiendo penas severas
34
a todo individuo que altere el sosiego público, y la pena de muerte al simple robo y
35 heridas leves,” October 31, 1840. Registro oficial, vol. 10, no. 19. Prado y Rojas, comp.,
36 Leyes y decretos, vol. 4, 372.
37 69. See, for example, the bando passed on January 16, 1812. Senado de la Nación, Bib-
38 lioteca de Mayo, Colección de obras y documentos para la historia argentina, vol. 18,
39 Antecedentes, documentos políticos y legislativos, 16685.
40 70. Some of the examples found in Prado y Rojas’s collection are: On nonwritten ju-
1 dicial procedures for misdemeanors: Law passed by the Sala de Representantes on

2 November 27, 1821 (vol. 2, 201–2). On possession of weapons: March 18, 1823 (vol.
3 2, 393); September 9, 1829 (vol. 2, 386); December 12, 1829 (vol. 3, 432); January 5,
4 1830 (vol. 3, 441); and so forth. On gambling: August 19, 1816 (vol. 1, 342), which
5 imposed “physical punishments”; February 12, 1820 (vol. 2, 42); May 10, 1821 (vol. 2,
119); December 17, 1823 (vol. 2, 447); August 19, 1825 (vol. 3, 85); April 15, 1826 (vol. 3,
6
148); November 7, 1829 (vol. 3, 420); and so forth. On drinking and begging: April 19,
7
1822 (vol. 2, 296); June 11, 1822 (vol. 2, 311); February 28, 1823 (vol. 2, 379); September
8
10, 1824 (vol. 3, 31); and so forth.
9 71. Cabildo del 6 de abril de 1811, Acuerdos del Extinguido Cabildo de Buenos Aires (Buenos
10 Aires: Editorial Kraft, 1927), serie IV, tomo IV, libro LXII, 446.
11 72. See, for example, the “Instrucción circular de las obligaciones a que los alcaldes de
12 barrio deben sujetarse y aplicar su celo y esmero para conseguir el mejor orden y
13 gobierno de sus respectivos distritos,” (1812). Prado y Rojas, comp., Leyes y decretos, [141], (19)
14 vol. 1, 157–61.
15 73. “Instrucciones que los nuevos alcaldes de barrio deberán observar rigurosamente,”
August 7, 1810. Prado y Rojas, comp., Leyes y decretos, vol. 1, 47–48. Many other Lines: 627 to
16
17 bandos listed in the footnotes of this chapter for the 1810s, 1820s, 1830s, and 1840s, ———
18 contain similar recommendations. 3.0pt PgV
74. See, for example,“Medidas precautorias para extranjeros recien llegados,” November ———
19
23, 1816. Prado y Rojas, comp., Leyes y decretos, vol. 1, 361. Normal Page
20
75. “Instrucción circular para los alcaldes de barrio,” January 13, 1813. Senado de la PgEnds: TEX
21
Nación, Biblioteca de Mayo, Colección de obras y documentos para la historia ar-
22 gentina, vol. 18, Antecedentes, documentos políticos y legislativos, 16741–45.
23 76. See “Alcaldes y tenientes de barrio, no sean nombrados para estos cargos individuos [141], (19)
24 que deban ser enrolados en la milicia activa,” May 1, 1827. Prado y Rojas, comp., Leyes
25 y decretos, vol. 3, 239. Other police auxiliaries created after 1810 were: Celadores de
26 Policía, Serenos, Vigilantes de día de la ciudad, etc. See Prado y Rojas, comp., Leyes
27 y decretos, “Reglamento para los celadores de policía,” January 10, 1824 (vol. 3, 7);
28 “Celadores, se reglamenta sus funciones,” December 24, 1830 (vol. 3, 483); “Serenos:
29 obligaciones que deben llevar,” March 20, 1834 (vol. 4, 118); “Decreto adicionando el
30 reglamento de serenos,” March 7, 1836 (vol. 4, 235); “Policía: deberes de los vigilantes
31 (vigilantes de día de la ciudad),” June 3, 1834 (vol. 4, 133).
77. “Decreto aboliendo para siempre el juego de carnaval,” February 22, 1844. Prado y
32
Rojas, comp., Leyes y decretos, vol. 4, 378.
33
78. Real Cédula February 19, 1801, “Se formula declaraciones con respecto a las visitas
34
de cárceles que efectúa la Audiencia,” Cedulario de la Real Audiencia de Buenos Aires,
35 vol. 3, February 7, 1798 to February 14, 1810 (La Plata: Taller de impresiones oficiales,
36 1938), 132–33.
37 79. ahpba-cp-ra, 7.1.88.54, Autos para la excarcelación de presos, 1801–1810. As president
38 of the Real Audiencia, the viceroy was invited to participate in the visits. For another
39 aspect of colonial prisons, see Mallo, “Fugas y sublevaciones.
40 80. See, for example, an 1812 complaint by the appeals court in Senado de la Nación,
1 Biblioteca de Mayo, Colección de obras y documentos para la historia argentina, vol.

2 18, Antecedentes, documentos políticos y legislativos, 16730. Another example in 1829:
3 agn, X.15.2.8. Nota del Ministro de Gobierno a la Cámara de Justicia.
4 81. See, for example, agn, X.14.9.3, April 16, 1828; agn, X.14.9.3, October 4, 1828; agn,
5 X.15.2.8, January 2, 1830; agn, X.15.7.2, September 2, 1830; agn, 9.1.3.19, Cámara de
Justicia, November 14, 1833.
6
82. agn, X.14.9.3, January 10, 1828. Nota del Tribunal de Justicia al Ministro de Gobierno.
7
83. agn, X.14.9.3, January 14, 1828. Nota del Ministro de Gobierno al Tribunal de Justicia.
8
84. Participation of both executive and judicial authorities during jail visits and inspec-
9 tions is found in ahpba, Criminal Provincial, 7.1.88.54, Autos para la excarcelación
10 de presos, 1810–1833. See also agn, X.15.2.8, May 1829. Exchange of letters between ex-
11 ecutive and judicial authorities regarding some prisoners who were freed by judicial
12 authorities without notifying the government.
13 85. agn, X.12.2.1, September 24, 1821. Nota de la Cámara de Justicia al Regidor Defensor de [142],
14 Pobres. Early on, at the beginning of independence, judicial officials were concerned
15 about the practice by executive authorities and law enforcement agents of arresting
people and keeping them in the public jail without writing a sumario and notifying Lines:
16
17 judicial authorities. See, for example, Acta de la Cámara de Apelaciones, August 25, ——
18 1812. Senado de la Nación, Biblioteca de Mayo, Colección de obras y documentos para 3.0pt
la historia argentina, vol. 18, Antecedentes, documentos políticos y legislativos, 16730. ———
19
See also agn, X.15.7.2, May 22, 1830. Nota del Presidente del Tribunal de Justicia al Norma
20
Ministro de Gobierno sobre varios presos a disposición del Jefe de Policía durante PgEnd
21
dos meses sin sumario.
22 86. agn, X.16.1.3, September 4, 1832. Resolución del Tribunal de Justicia designando al
23 oficial de justicia Pablo Areguati para ese fin. [142],
24 87. See the report by the alcalde de la carcel, agn, 9.1.3, Cámara de Justicia, June 27, 1835.
25 88. See, for example, prisoners’ roster listing many of them as “a disposición del Superior
26 Gobierno” as well as as “a disposicion del Señor Jefe de Policía,” agn, 9.1.3.33, Cámara
27 de Justicia, May 22, 1834; agn, 9.1.3, Cámara de Justicia, July 25, 1835.
28 89. For example: agn, X.15.2.8, October 29, 1829; agn, 9.1.3.31, Cámara de Justicia, Febru-
29 ary 11, 1834; agn, 9.1.3, Cámara de Justicia, July 2 and 3, 1835.
30 90. In criminal legislation passed after 1853, including the 1886 Penal Code, there were
31 no specific prohibitions or restrictions on judicial officials to visit public jails and
centers of detention. Reasons for stopping these visits should be found in the area of
32
everyday practices of justice administration rather than in the laws. An overview of
33
current criminal legislation in Argentina is by Zaffaroni, Manual de Derecho Penal:
34
Parte General.
35
36 5. Emergence of Republican Penal Discourse
37 1. El Argos de Buenos Aires, Wednesday, December 17, 1823, 3.
38 2. Echeverría, Reflexiones sobre la organización económica de la Argentina, 21–22.
39 3. El Argos de Buenos Aires, Saturday, June 9, 1821, 28, and Saturday, June 30, 1821, 50.
40 4. Echeverría, Los ideales de mayo y la tiranía, 81.
1 5. For example, John Graham and C. A. Rodney, The Reports on the Present State of the
2 United Provinces of South America (laid before the U.S. Congress in 1819) (New York:
3 Frederick Praeger Publishers, 1969), 125.
4 6. An interesting overview is by Tau Anzoátegui, La codificación en la Argentina.
5 7. Hinojosa, Influencia que tuvieron en el derecho público de su patria y singularmente en
el derecho penal, los filósofos y teólogos españoles anteriores a nuestro siglo, see especially
6
chap. 6, 151–77.
7
8. Quintano Ripollés, La influencia del derecho penal español en las legislaciones his-
8
panoamericanas, 52.
9 9. El Argos de Buenos Aires, Saturday, May 3, 1823, vol. 2, 146.
10 10. La Cámara de Apelaciones de Buenos Aires se dirige al Director Supremo, Gerva-
11 sio Antonio Posadas, proponiendo la creación de una Academia de Jurisprudencia
12 teórico práctica, tomando como modelo las Academias de Chile y Charcas, February
13 17, 1814. Levene, La Academia de Jurisprudencia, 158. [143], (21)
14 11. Levene, La Academia de Jurisprudencia, 157–59.
15 12. An interesting study of the shifting multiple political discourses after independence
is by Shumway, Invention of Argentina, see especially chaps. 4, 5, and 6, pp. 81– Lines: 692 to
16
17 167. Another interesting case study on the other side of the Río de la Plata is by ———
18 Fernando López Alves,“The Authoritarian Roots of Liberalism: Uruguay, 1810–1886,” 3.0pt PgV
in Vincent C. Peloso and Barbara A. Tenenbaum, eds., Liberals, Politics, and Power: ———
19
State Formation in Nineteenth Century Latin America (Athens: University of Georgia Normal Page
20
Press, 1996), 111–33. See also Fernando López Alves, State Formation and Democracy PgEnds: TEX
21
in Latin America, 1810–1900 (Durham nc: Duke University Press, 2000).
22 13. See, for example, the letter Castro sent to the Ministro de Gobierno on March 12,
23 1822, agn, X.12.2.1. [143], (21)
24 14. Castro, Prontuario de práctica forense, 14–18.
25 15. Castro, Prontuario de práctica forense, 32–35. See also Victor Táu Anzoátegui, “Un
26 manuscrito sobre práctica forense de Valentín Alsina,” Revista del Instituto de Historia
27 del Derecho 20 (1969): 247–73.
28 16. Piccirilli, Guret Bellemare, 10–12.
29 17. El Argos de Buenos Aires, Wednesday, November 20, 1822, 2.
30 18. Jury trials and legal culture itself were under revision in France after the revolution,
31 and Bellemare could have certainly been influenced by those ideas. See Laura Mason,
“The Bosom of Proof: Criminal Justice and the Renewal of Oral Culture during the
32
French Revolution,” Journal of Modern History 76 (March, 2004): 29–61.
33
19. “Discurso pronunciado por M. Bellemare, antiguo juez en materia civil y criminal,
34
a la apertura de sus cursos (1827),” Levene, La Academia de Jurisprudencia, appendix
35 27, 272–81.
36 20. Levaggi, “La penal de muerte en el derecho argentino precodificado,” 17–44.
37 21. Bellemare, Plan general, viii–ix.
38 22. Bellemare, Plan general, xiv and 96.
39 23. Bellemare, Plan general, xv and 103.
40 24. Bellemare, Plan general, 162–65. The importance of juries for the administration
1 of criminal justice was also addressed by Carlos Villademoros in one of the first
2 theses on jurisprudence submitted to the University of Buenos Aires in 1827. Carlos
3 Villademoros,“Disertación sobre la necesidad de que se reformen los procedimientos
4 de la justicia criminal,” 1827 (Buenos Aires: Biblioteca Nacional, Colección Candioti,
5 vol. 1), folios 2, 5, and 10.
25. A list of newspaper articles and other sources by Manuel Antonio de Castro address-
6
ing these issues is by Rodolfo Trostiné, “Contribución a la bibliografía de Manuel
7
Antonio de Castro,” Revista del Instituto de Historia del Derecho 1 (1949): 47–58.
8
26. Bernardo Vélez Gutiérrez, El correo judicial, reedición fascimilar, 1834 (Buenos Aires:
9 Facultad de Derecho y Ciencias Sociales, Instituto de Historia del Derecho Argentino,
10 Colección de Textos y Documentos para la Historia del Derecho Argentino, vol. 7,
11 1946).
12 27. Examples of granted petitions can be found in agn X.15.2.8,August 1829; agn X.16.9.3,
13 June 1836; agn 17.4.3, April 1843; and agn 17.4.3, August 1843. [144],
14 28. See, for example, agn X.16.9.3, January 21, 1836. El presidente del Tribunal de Justicia
15 presenta nota al Gobernador sobre las dificultades de atender a sus obligaciones como
presidente del tribunal y de la academia de jurisprudencia, solicitando se nombre a Lines:
16
17 otro camarista para la segunda. agn X.9.1.3. expediente 107, January 17, 1840, on the ——
18 same subject. 3.0pt
29. Seoane, La enseñanza del derecho en la Argentina, 55–57. Minister Rivadavia issued a ———
19
decree mandating that the professors at the university publish the contents of their Norma
20
courses. Thus, Somellera’s and Sáenz’s teachings are known to us. PgEnd
21
30. Antonio Sáenz, Instituciones elementales sobre el derecho natural y de gentes. Curso
22 dictado en la Universidad de Buenos Aires en los años 1822–23 (Buenos Aires: Fac-
23 ultad de Derecho y Ciencias Sociales, Instituto de Historia del Derecho Argentino, [144],
24 Colección de textos y documentos para la historia del derecho argentino, 1939), 11,
25 17, and 181–83.
26 31. Pedro Somellera, Principios de derecho civil, Curso dictado en la Universidad de Buenos
27 Aires en el año 1824 (Buenos Aires: Facultad de Derecho y Ciencias Sociales, Instituto
28 de Historia del Derecho Argentino, Colección de textos y documentos para la historia
29 del derecho argentino, 1939), iv–v.
30 32. Somellera, Principios de derecho civil, 13, 19, and 41. The concept of individual security
31 occupied an important place in postcolonial penal rhetoric, later being included in
the national constitution (Article 18). See, for example, the Decree of Individual
32
Securities, November 23, 1811. Prado y Rojas, comp., Leyes y decretos, vol. 1, 104–6.
33
33. Ricardo Levene, “Antecedentes históricos sobre la enseñanza de la jurisprudencia y
34
de la historia del derecho patrio en la Argentina,” Revista del Instituto de Historia del
35 Derecho 2 (1950): 109–12.
36 34. Silva Riestra, Evolución de la enseñanza del derecho penal en la Universidad de Buenos
37 Aires, 16–17.
38 35. Twenty theses on criminal law were submitted to the university between 1821 and 1853.
39 The interest in civil law above the other branches of the law, however, is demonstrated
40 by the fact that more than one hundred theses were written on the subject during
1 the same period. Candioti, Bibliografía doctoral de la Universidad de Buenos Aires y

2 catálogo cronológico de las tesis en su primer centenario 1821–1920, 64–67 and 443–55.
3 36. Seoane, La enseñanza del derecho en la Argentina, 56. See also Tulio Halperín Donghi,
4 Historia de la Universidad Nacional de Buenos Aires (Buenos Aires: Editorial Univer-
5 sitaria eudeba, 1962).
37. Esteban Echeverría introduced these new ideas in Buenos Aires when he returned
6
from Europe in the mid-1830s. See, for example, Felix Weinberg, El salón literario de
7
1837 (Buenos Aires: Imprenta Hachette, 1977).
8
38. Alberdi’s biography and work by, for example, Jorge Mayer, Alberdi y su tiempo
9 (Buenos Aires: Ediciones Abeledo-Perrot, 1973).
10 39. Alberdi, Fragmento preliminar al estudio del derecho, 218–20. Less influential than
11 Alberdi’s Fragmento, Manuel Quiroga de la Rosa’s Sobre la naturaleza filosófica del
12 derecho also stressed the distinction between “derecho” and “ley.” He argued that the
13 Siete Partidas endured because of the philosophical doctrine behind them. Jurispru- [145], (23)
14 dence without a philosophical base was nothing. Thus, the search for and definition
15 of the philosophical nature of the postcolonial law in the Río de la Plata constituted
a priority for the government. This was much more necessary than passing new Lines: 762 to
16
17 legislation. Quiroga de la Rosa, Sobre la naturaleza filosófica del derecho, 5, 41, and 51. ———
18 40. On the intellectual context of Alberdi’s Fragmento see also Katra, Argentine Genera- 3.0pt PgV
tion of 1837, 50–52. ———
19
41. See, for example, agn, X.12.2.1, December 6, 1822 Manuel Antonio de Castro al Normal Page
20
Gobernador, and Alberdi, Fragmento, 70–78. PgEnds: TEX
21
42. Alberdi, Fragmento, 188.
22 43. Beccaria (1738–1794), On Crimes and Punishments, 98.
23 44. Alberdi, Bases y puntos de partida para la organización política de la República Ar- [145], (23)
24 gentina.
25 45. Candioti, Bibliografía doctoral de la Universidad de Buenos Aires y catálogo cronológico
26 de las tesis en su primer centenario 1821–1920, 36–39. See also the “Reglas adoptadas
27 provisoriamente para los exámenes y funciones previas al grado de doctor, propuestas
28 por el Rector de la Universidad” (1821). Prado y Rojas, comp., Leyes y decretos, vol. 2,
29 135.
30 46. The Positive School eventually replaced the Classic School during the second half of
47. A new edition in Spanish of Beccaria’s pamphlet “De los delitos y de las penas” was
32
enthusiastically announced for sale by El Argos in 1823. The recently arrived edition
33
also had comments by Voltaire, Hautefort, Brissot de Warville, and Facchinei. El
34
Argos de Buenos Aires, Wednesday, October 20, 1822, issue 82, 336.
35 48. I was able to find biographical information about Florencio Varela, Valentín Alsina,
36 Fernando del Arca, Marcos Paz, Miguel Cané Sr., Marco Avellaneda, Miguel Esteves
37 Seguí, and Vicente G. Quesada. Ricardo Piccirilli and others, eds., Diccionario bi-
38 ográfico argentino, 6 vols. (Buenos Aires: Ediciones Históricas, 1950).
39 49. Varela, “Disertación sobre los delitos y las penas (1827),” 70–72.
40 50. Varela, “Disertación sobre los delitos y las penas (1827),” 46–47.
1 51. Varela, “Disertación sobre los delitos y las penas (1827),” 77. A summary of Beccaria’s
2 and Bentham’s theories is explained by Elio Monachesi, “Cesare Beccaria (1738–
3 1794),” and Gilbert Geis, “Jeremy Bentham (1748–1832).” Hermann Mannheim, ed.,
4 Pioneers in Criminology (Montclair nj: Patterson Smith, 1972), 36–68.
5 52. Levaggi, “La penal de muerte en el derecho argentino precodificado,” 17–44.
53. The first two theses on the death penalty, defended in 1831 by students Miguel Valencia
6
and Angel López, were no more than simple statements. Subsequently, other students
7
were to elaborate more on the subject the following year. Miguel Valencia, “No debe
8
abolirse la pena de muerte.” Tesis que sostendrá el día 4 de julio de 1831 el alumno
9 de jurisprudencia Don Miguel Valencia. Angel López, “La pena de muerte no es
10 proporcional a los delitos que con ella se castigan.” Proposición que debe sostener el
11 alumno de jurisprudencia Don Angel López el día 28 de junio para recibir el grado
12 de Doctor en Leyes en la Universidad de Buenos Aires (Buenos Aires: Biblioteca
13 Nacional, Colección Candioti, vol. 1). [146],
14 54. Valentín Alsina, Discurso sobre la pena de muerte leído en la Academia de Jusrispru-
15 dencia de Buenos Aires, sesión ordinaria del 16 de abril de 1828 (Buenos Aires: Imprenta
Republicana, 1829), 11–13. Marcial Candiotti indicates that this is not Varela’s thesis, Lines:
16
17 which was not required when he graduated from the university in 1825. ——
18 55. Gaetano Filangieri, La sciencia della legislazione (Filadelfia, Italy: Nella Stamperia 3.0pt
delle Provincie Unite, 1819). ———
19
56. Bernabé Caravia, “Tesis sobre la pena de muerte,” presentada a la Universidad de Norma
20
Buenos Aires para recibir el grado de doctor en leyes el día 27 de junio de 1832 PgEnd
21
(Buenos Aires: Imprenta Argentina, 1832), 17–18. Another European author com-
22 monly mentioned by the supporters of the death penalty was the Abbe de Mably who
23 also argued that only the assassin and the traitor should received that punishment. [146],
24 Abbe de Mably, Principes des loix (Amsterdam: Arkstee and Merkus, 1777).
25 57. Fernando del Arca,“Disertación sobre la pena de muerte,” June 5, 1832 (Buenos Aires:
26 Biblioteca Nacional, Colección Candioti, vol. 2), 5.
27 58. Caravia, Tesis sobre la pena de muerte, 27–28.
28 59. Francisco Villanueva, “Tesis sobre la pena de muerte,” June 27, 1832 (Buenos Aires:
29 Biblioteca Nacional, Colección Candioti, vol. 2), 4.
30 60. Marco M. Avellaneda, “Sobre la pena de muerte,” May 5, 1834 (Buenos Aires: Bib-
31 lioteca Nacional, Colección Candioti, vol. 2), folio 10. In this thesis we can see also the
influence of Bentham’s theories on punishment. Ironically, Avellaneda’s head ended
32
up on a pike in 1841, after the failure of the revolt led by the Unitarian League of the
33
North against Rosas.
34
61. José María Reybaud, “Tesis sobre la pena de muerte,” 1834 (Buenos Aires: Biblioteca
35 Nacional, Colección Candioti), 8.
36 62. Marcos Paz, “Tesis sobre la pena de muerte,” July 3, 1834 (Buenos Aires: Biblioteca
37 Nacional, Colección Candioti), 11.
38 63. Felipe José Rufino, “Disertacion sobre la pena capital,” November 9, 1837 (Buenos
39 Aires: Biblioteca Nacional, Colección Candioti, vol. 3), folio 13.
40 64. Eulogio Cruz Cabral, “Disertación sobre la pena de muerte pronunciada y sostenida
1 en la Universidad de Buenos Aires,” April 12, 1845 (Buenos Aires: Biblioteca Nacional,
2 Colección Candioti, vol. 3), folio 3.
3 65. Beccaria, On Crimes and Punishments and Other Writings, 66–67.
4 66. Caravia, “Tesis sobre la pena de muerte,” 16.
5 67. Miguel Cané, “Disertación sobre las penas,” 1835 (Buenos Aires: Biblioteca Nacional,
6 Colección Candioti, vol. 2), folio 6. Miguel Cané Jr. (1851–1905), his son, was the
7 author of Juvenilia, a classic in Argentine literature.
8 68. Cané, “Disertación sobre las penas,” folios 6–7.
69. Fernando Cruz Cordero, “Tesis sobre la abolición de las penas arbitrarias en defecto
9
de plena prueba contra el acusado.” Pronunciada y sostenida en la cátedra de la
10
Universidad de Buenos Aires para obtener el grado de doctor, March 11, 1843 (Buenos
11
Aires: Imprenta del Estado, 1843), 8–9, Biblioteca Nacional, Colección Candioti, vol.
12
3.
13 [147], (25)
70. Cruz Cordero, “Tesis sobre la abolición de las penas arbitrarias en defecto de plena
14 prueba contra el acusado,” 9.
15 71. Cruz Cordero, “Tesis sobre la abolición de las penas arbitrarias en defecto de plena Lines: 830 to
16 prueba contra el acusado,” 10–11.
17 ———
72. See, for example, Leiva, La institución del Arbitrio Judicial en el Río de la Plata durante
18 el período 1785–1810, Apartado de la Revista del Instituto de Historia del Derecho, no.
15.0pt Pg
———
19 24, 93–106.
Normal Page
20 73. Miguel Esteves Seguí, “Disertación sobre la necesidad indispensable de que se expre-
PgEnds: TEX
21 sen los motivos y razones que se han tenido en vista para pronunciar las sentencias,”
22 (Buenos Aires: Biblioteca Nacional, Colección Candioti, vol. 3), 18–20.
23 74. Valentín Alsina, “Reflexiones breves sobre la conveniencia de que los jueces funden [147], (25)
24 sus sentencias; y de que se examinen y voten separada y consecutivamente las diversas
25 cuestiones que haya en una causa,” written on 1829 and published on 1832. Appendix
26 in Tau Anzoátegui, “Acerca de la fundamentación de las sentencias en el derecho
27 patrio,” 181–98. For a more comprehensive work on the topic, see also the study
by Táu Anzoátegui, “Los comienzos de la fundamentación de las sentencias en la
28
Argentina,” 267–335.
29
75. Vicente G. Quesada, “Disertación sobre las cosas robadas, hurtadas o poseídas con
30
mala fe no pueden perscribirse,” April 17, 1850 (Buenos Aires: Biblioteca Nacional,
31
Colección Candioti, vol. 4), 11 folios. Alejandro M. Heredia,“Tesis sobre la tentativa de
32
los crímenes,” August 5, 1851 (Buenos Aires: Biblioteca Nacional, Colección Candioti,
33 vol. 4), 14 folios.
34
35 6. Administering Criminal Justice
36 1. Linda Arnold,“Vulgar and Elegant: Politics and Procedure in Early National Mexico,”
37 The Americas 50, no. 4 (April 1994): 481–500.
38 2. Szuchman, “Disorder and Social Control in Buenos Aires, 1810–1860,” vol. 11, 83–110.
39 3. Szuchman, Order, Family, and Community in Buenos Aires, 1810–1860.
40 4. Another work that employs police records to analyze nineteenth-century nation-state
1 building in Argentina is Slatta and Robinson, “Continuities in Crime and Punish-

2 ment: Buenos Aires, 1820–50,” 19–45.
3 5. For example: ahpba, Juzgado del Crimen, 34.1.21.52, p. 16.
4 6. Law passed on November 27, 1821 penalizing the carrying of weapons and other
5 crimes. Prado y Rojas, comp., Leyes y decretos, 201–2.
7. For example, agn, X.14.9.3, August 14, 1828. Tribunal de Justicia al Ministro de Go-
6
bierno. In this letter, the tribunal presented its claims in the name of “the judicial
7
employees” which included judges and the subordinated members of the judiciary.
8
The appeals court, in fact, supervised the provincial judiciary. See also agn, X.9.1.3,
9 Archivo de la Cámara Primera de Apelaciones, expediente 179: Ordenanzas del Tri-
10 bunal o Excelentísima Cámara de Justicia. During the late 1820s and early 1830s the
11 Tribunal renewed its efforts to obtain more resources and personnel from political
12 leaders, but political instability marked those transitional years from the Rivadavian
13 government to the Rosas regime. In that context, the Buenos Aires appeals court [148],
14 did not get much from the government. For the first time since independence, how-
15 ever, the judicial power presented a rather unified front in such matters. A general
characteristics of this transition is studied by Tulio Halperín-Donghi, Politics, Eco- Lines:
16
17 nomics, and Society in Argentina in the Revolutionary Period (Cambridge: Cambridge ——
18 University Press, 1975), part 2, chap. 6, 308–76. 3.0pt
8. agn, X.13.8.6, July 29, 1825, foja suelta. Carta del Presidente del Tribunal de Justicia ———
19
Manuel Antonio de Castro al Ministro de Gobierno. Norma
20
9. agn, X.13.9.4, February 14, 1826. Nota del Presidente del Tribunal de Justicia al Min- PgEnd
21
istro de Gobierno de la Provincia de Buenos Aires, foja suelta.
22 10. agn, X.14.9.3, Febuary 27, 1828. Nota del Tribunal de Justicia al Ministerio de Gob-
23 ierno reclamando 100 pesos faltantes de los asignados para gastos de escritorio. [148],
24 11. agn, X.15.7.2, June 16, 1830. Nota del juez en lo criminal José Eugenio de Elías. See also
25 agn, X.15.2.8, October 2, 1829. Nota del Tribunal del Justicia al Ministro de Gobierno
26 requiriendo un lugar para “los desahogos naturales;” or agn, X.9.3.1, Cámara de
27 Justicia, September 13, 1834. Pedido de reparación de una claraboya del edificio.
28 12. agn, X.15.7.2, April 19, 1830. Expediente del Tribunal de Justicia rechazando el pre-
29 supuesto asignado para el año 1830.
30 13. agn, X.14.9.3, March 18, 1827. Respuesta del Ministerio de Gobierno a la nota del
31 Tribunal de Justicia solicitando aumento de sueldo para los Relatores.
14. agn, X.17.1.6, December 31, 1838. Relación de los útiles existentes en la oficina del Jefe
32
de Policía.
33
15. agn, X.17.4.3, October 19, 1843. Reporte sobre el lugar de reunión del Tribunal de
34
Recursos Extraordinarios. Todas las piezas de la casa de Expósitos se hallan inservibles
35 y amenaza ruina. Se propone su traslado.
36 16. agn, X.17.7.1, December 2, 1846. Resumen del presupuesto para el año 1847 presentado
37 por el Ministerio de Gobierno. Total: 2,730,196; Cámara de Apelaciones: 164,268;
38 Departamento de Policía: 801,629.2; Departamento de Serenos: 430,632. An earlier
39 state budget (1841) studied in detail by Juan Carlos Garavaglia demonstrates that
40 police expenditures were by far the highest in taking state financial resources. See Juan
1 Carlos Garavaglia, “La apoteósis del Leviathán: El estado de Buenos Aires durante
2 la primera mitad del siglo XIX,” Latin American Research Review 38, no. 1 (2003):
3 135–68.
4 17. See, for example, agn, X.13.8.6, January 8, 1825. Tribunal de Justicia el Ministro de
5 Gobierno encargándole las medidas convenientes para poner los Juzgados de primera
6 instancia en el mejor orden posible, a efectos de obtener los buenos resultados que
7 son de desear en este ramo. See also agn, X.15.7.2, July 12, 1830. Tribunal de Justicia
8 eleva al Ministro de Goberno nota presentada por los jueces del crimen.
18. Examples of these claims are in: Acuerdos del extinguido cabildo de Buenos Aires,
9
January 21, 1817 (Buenos Aires: Editorial Kraft, 1927), series 4, vol. 7, no. 441; and
10
Report by Manuel Antonio de Castro, president of the Cámara de Justicia. El Argos
11
de Buenos Aires, issue 150, Saturday, May 14, 1825, 168.
12
19. ahpba, Libro de copiar oficios, 1831–37, p. 64.
13 [149], (27)
20. See, for example, the letter signed by criminal judges Manuel Insiarte and José
14 Eugenio de Elías claiming 52 pesos per month to cover their expenses on these
15 matters. agn, X.15.7.2, October 30, 1830. Lines: 899 to
16 21. agn, X.14.9.3, August 18, 1828. El Tribunal pone en manos del Señor Ministro de
17 Gobierno la adjunta solicitud de los Jueces de Primera Instancia en lo Criminal
———
18 dirijida a que se aumente un ordenanza más para los dos juzgados . . . expediente
15.0pt Pg
———
19 suelto. See also agn, 9.1.3.30 is, May 2, 1834. Cámara de Justicia eleva pedido al Juez
Normal Page
20 de Primera Instancia en lo Criminal Matías de Oliden.
PgEnds: TEX
21 22. See, for example, agn, X.15.10.3, March 16, 1831. Se reúnen los cargos de Defensoría
22 de Menores y Pobres y de Asesor.
23 23. Reglamento de los defensores oficiales aprobado el 1 de Abril de 1840, Prado y Rojas, [149], (27)
24 comp., Leyes y decretos, vol. 6, 361.
25 24. agn, X.15.2.8, December 18, 1829 and December 30, 1829. Notas de Victorio Garcia
26 Zuñiga al Ministro de Gobierno.
27 25. agn, X.15.7.2, June 11, 1830. Judges and prosecutors were supposed to have stability
in their positions.
28
26. agn, X.16.9.3, July 16, 1835. Vacantes en el oficio de Escribano del Crimen.
29
27. For example, agn, X.17.1.6, December 11, 1838. Nota del Defensor General de Pobres y
30
Menores Joaquín Rejaval al Gobernador. Publicity of executive orders in the 1830s and
31
1840s replaced behind-the-scene appointments of judicial officials during the 1810s
32
and 1820s. See, for example, agn, 9.1.3.51, Cámara de Justicia, June 28, 1837. Pedido de
33 Antonio José de Urtubey sobre puesto de Procurador vacante; agn, 9.1.3.98, Cámara
34 de Justicia, February 25, 1840. Rosas comunica al Tribunal de Justicia que Francisco
35 Castellote no puede ejercer más el oficio de Escribano; Other cases in agn, 9.1.3.95,
36 Cámara de Justicia, July 2, 1840, and agn, 9.1.3.103, Cámara de Justicia, December 29,
37 1840.
38 28. Myers, Orden y virtud: El discurso republicano en el régimen rosista, 73–84.
39 29. Decree of the Government (Triunvirato) creating a Comisión de Justicia, April 18,
40 1812, Mayo documental, vol. 11 (Buenos Aires: Talleres Kraft, 1965), 16713.
1 30. See Article 18, Constitución de la nación argentina (1853), with a preliminary study by
2 Ruben Bortnik (Buenos Aires: Ediciones Corregidor, 1983), 38–39.
3 31. agn, X.12.2.1, December 6, 1821. Nota del presidente del Tribunal de Justicia al Gob-
4 ernador.
5 32. agn, X.12.2.1, March 12, 1822. Cámara de Justicia al Ministro de Gobierno.
6 33. See, for example, Maria Rosa Pugliese La Valle, “Los asesores letrados de los alcaldes
7 y del cabildo de Buenos Aires (1810–1821),” Revista de Historia del Derecho 19 (1991):
8 281–323; and Marta de la Cuesta Figueroa, La Administración de justicia en la provincia
de Salta, 1821–1855 (Salta: Poder Judicial de la Provincia de Salta, 1988), 57–67.
9
34. For example, ahpba, Criminal Provincial, Real Audiencia y Cámara de Apelaciones,
10
7.1.91.38, 1822. Indalecio Alvarez y Juan Antonio Díaz, por robo.
11
35. ahpba, Criminal Provincial, 7.1.89.8, 1836. Incidente de las causas de Joaquín Chapaco
12
y otros, p. 14.
13 [150],
36. ahpba, Criminal Provincial, 7.1.89.8, 1836, p. 17.
14 37. agn, X.16.9.3, December 1, 1836. El Agente Fiscal se queja de los procedimientos del
15 Juez de Primera Instancia D. Baldomero García en las causas que expresa. Lines:
16 38. agn, X.16.9.3, December 1, 1836, p. 2.
17 39. ahpba, 7.1.89.8, 1836. J. Chapaco y otros, incidente en la causa de estos, pp. 19–20.
——
18 40. agn, X.16.9.3, December 29, 1836. Respuesta del Ministro de Gobierno a la nota del
15.0p
———
19 Agente Fiscal.
Norma
20 41. Although the position of asesor letrado was officially enacted in 1810, according to
PgEnd
21 Maria Rosa Pugliese La Valle, the practice of appointing them was well established
22 during the late colonial period. Pugliese La Valle,“Los asesores letrados de los alcaldes
23 y del cabildo de Buenos Aires (1810–1820),” 283. Cedulario de la Real Audiencia de [150],
24 Buenos Aires, vol. 3, February 7, 1798 to February 14, 1810 (Buenos Aires: Taller de
25 Impresiones Oficiales, 1938), 51–53.
26 42. A law passed on December 24, 1821, created justices of the peace for both the city
27 and the countryside. The same law replaced alcaldes for judges of the first instance.
Levene, Manual de historia del derecho argentino, 320–21. Three years later, the two
28
positions of judges of the first instance appointed for the Buenos Aires countryside
29
were eliminated and justices of the peace remained responsible for the administration
30
of criminal justice in the first instance outside the city. Prado y Rojas, comp., Leyes
31
y decretos, vol. 3, 55. See also agn, X.13.9.4, April 7, 1826. Nota del Juez de Paz de
32
Catedral al Sur.
33 43. agn, X.15.7.2, January 29, 1830. Nota del Juez de Paz J. Barrenechea al Ministro de
34 Gobierno. Legal historian Cesar García Belsunce argues that justices of the peace in
35 the city of Buenos Aires had minimal intervention in criminal cases, according to the
36 1821 law that created them. Examining everyday practice during the first years after
37 their establishment, however, I found that they handled the initial stage in many of
38 these cases. Garcia Belsunce, ed., Buenos Aires, 1800–1830: Salud y delito, vol. 2, 230–31.
39 44. Garcia Belsunce, ed., Buenos Aires, 1800–1830: Salud y delito, vol. 2, 2.
40 45. Another example of support by executive authorities to justices of the peace in agn,
1 X.16.9.3, September 23, 1837. Causa por abusos del Juez de Paz de Monserrat, Manuel
2 Maestre.
3 46. Dromi, Los Jueces: Es la justicia un tercio del poder?, 125–45.
4 47. For example, agn, Cámara de Justicia, 9.3.1, September 6, 1834; agn, X.15.2.8, 1829.
5 See also agn, X.12.2.1, January 4, 1821.
6 48. agn, X.15.10.3, April 29, 1831. Nota del Ministro de Gobierno al Juez en lo Criminal
7 Baldomero García. Other examples of Rosista executive interventions in diverse
8 expedientes are agn, Cámara de Justicia, 9.3.1, September 19, 1834; agn, X.17.1.6,
January 19, 1838; agn, X.17.1.6, April 19, 1838; agn, X.33.7.8, December 14, 1851. An
9
earlier example is in ahpba, Criminal provincial, 5.5.70.12, 1813. Criminal contra
10
Francisco Borja, Juan Barrios y otros, por robo.
11
49. agn, Cámara de Justicia, 9.1.3, December 1, 1834. Nota del escribano público del
12
crimen Saturnino Ortiz de Oroño.
13 [151], (29)
50. agn, X.16.3.3, March 18, 1833, see exchange of letters between the appeals court and
14 the government regarding the appointment of the lawyer Juan Antonio Sarachaga as
15 public attorney for the poor and children. Lines: 968 to
16 51. See, for example, agn, X.15.10.3, January 10, 1831. El Tribunal de Justicia acuerda
17 ———
prevenir al Fiscal del Crimen, se abstenga de patrocinar causas de particulares, en
18 cumplimiento de las leyes, la sexta de Indias, Libro Segundo, Título 16, y la Segunda de
15.0pt Pg
———
19 Castilla, del Título Trece del Libro Segundo; agn, Cámara de Justicia, 9.1.3, February
Normal Page
20 14, 1830, Suspensión del licenciado Vicente de Acha en el ejercicio de su ministerio;
PgEnds: TEX
21 agn, Cámara de Justicia, 9.1.3, January 7, 1840, Relativo al uso de papel sellado; agn,
22 Cámara de Justicia, 9.1.3, April 1852, expediente sobre petitorio de los escribanos
23 públicos. [151], (29)
24 52. agn, X.12.2.1, August 20, 1821. Ministro de Gobierno a la Cámara de Justicia.
25 53. agn, X.12.2.1, December 6, 1821. Cámara de Justicia al Gobernador.
26 54. See, for example, agn, X.15.2.8, October 14, 1829. Projecto de Decreto sobre el modo
27 de elegir los jueces de primera instancia en lo civil y criminal.
55. agn, X.13.8.6, March 10, 1825. Manuel Antonio de Castro al Ministro de Gobierno. See
28
also “Supremo Tribunal de Justicia eleva informe al gobierno proponiendo reformas
29
en procedimientos de causas criminales,” documento firmado por Manuel Antonio
30
de Castro. El Argos de Buenos Aires, issue 150, Saturday, May 14, 1825, 168–69.
31
56. agn, X.13.8.6, March 10, 1825. Manuel Antonio de Castro al Ministro de Gobierno.
32
57. See, for example, ahpba, 5.5.74.5, (1819) and agn, 7.1.83.9, (1829).
33 58. For example, agn, X.15.2.8, October 19, 1829. Ministro de Gobierno al Presidente del
34 Tribunal de Justicia.
35 59. agn, X.13.9.4, October 19, 1826. Ministro de Gobierno al Tribunal de Justicia.
36 60. “Jueces, procuradores, y defensores deben pasar razón de las causas civiles y crim-
37 inales al Ministerio de Gobierno,” January 3, 1822. Prado y Rojas, comp., Leyes y
38 decretos, vol. 2, 228. See also agn, X.15.10.3, December 19, 1831. Ministro de Gobierno
39 al Tribunal de Justicia.
40 61. On the legal steps in the organization of the Buenos Aires Police Department see:
1 Romay, “Rivadavia y la organización de la policía en el derecho patrio,” 133–49; and

2 Rodríguez, Cuatrocientos años de policía en Buenos Aires.
3 62. Decree issued on May 31, 1822, by Governor Rodríguez and Minister Rivadavia. Prado
4 y Rojas, comp., Leyes y decretos, vol. 2, 307.
5 63. agn, X.13.8.6, May 10, 1825. Tribunal de Justicia al Ministro de Gobierno.
64. agn, X.14.9.3, August 1, 1828. Tribunal de Justicia al Ministerio de Gobierno.
6
65. agn, X.14.9.3, July 31, 1828. Juez en lo criminal Bartolomé Cueto al Tribunal de Justicia.
7
66. Another example about problems with police sumarios is in agn, X.15.2.8, November
8
9, 1829. Juez de primera instancia en lo criminal Manuel Insiarte al Tribunal de
9 Justicia.
10 67. Decree issued on December 18, 1830. Comisarios de Policía: se revoca el decreto
11 que los facultaba para levantar sumarios por escrito sobre delitos cometidos en sus
12 respectivas secciones. Prado y Rojas, comp., Leyes y decretos, vol. 3, 480.
13 68. agn, X.15.7.2, December 20, 1830. Cámara de Justicia acusa recibo de la nota del [152],
14 Ministerio de Gobierno revocando los decretos de 1822 y 1825 sobre sumarios.
15 69. agn, X.16.3.3, September 10, 1833. Nota del Ministro de Gobierno a la Cámara de
Justicia y Respuesta de la Cámara al Gobierno en 17 September 1833. Lines:
16
17 70. Vogel, “Elements of Nationbuilding in Argentina: Buenos Aires, 1810–1828,” 14, 79, ——
18 and 252. 3.0pt
71. ahpba, Criminal Provincial, 5.5.70.11, 1816. Causa criminal contra el ciudadano Car- ———
19
los José Gomez, pp. 1, 1 vuelta, 2, and 19. Norma
20
72. ahpba, Criminal Provincial, 7.1.84.4, 1825. Criminal contra Francisco Manuel Acosta PgEnd
21
y la negra Lucía Patrón por robo de dinero y otras alhajas, pp. 49 and 62.
22 73. ahpba, Criminal Provincial, 5.5.80.47, 1819. Criminal contral Manuel Boga, por in-
23 sultos que hizo contra Manuel José Bustillos, p. 22. [152],
24 74. ahpba, Criminal Provincial, 5.5.80.47, 1819, p. 25.
25 75. ahpba, Criminal Provincial, 5.5.75.15, 1813, Criminal contra Juan Uriarte y Bartolomé
26 Portela por ladrones, p. 85.
27 76. See, for example, ahpba, Criminal provincial, 5.5.68.13, 1812, Leandro y Victorio
28 Oyola, Bernardino Casado, y otros, por robo, see Casado’s testimony, p. 10; and
29 ahpba, Criminal provincial, 7.2.101.21, 1837, Ricardo, Francisco, por rapto, p. 11.
30 77. ahpba, Criminal provincial, 7.1.89.6, 1831. Sumario levantado para averiguar lo suce-
31 dido en la capilla de la carcel pública durante la misa, p. 10.
78. ahpba, Criminal provincial, 7.1.89.6, 1831, p. 12.
32
79. ahpba, Criminal provincial, 7.2.101.22, 1834. Criminal contra José Arguello y su es-
33
clavo Bonifacio, por haber atropellado a José Antonio Vila, p. 28.
34
80. ahpba, Criminal provincial, 1825, 7.1.84.7. Criminal contra Vicente y Domingo
35 Pauleti y José María Sosa, menores de edad e hijos de familia, por haber robado
36 con extraña llave, y con fractura de baúl, cuatro onzas de oro y otros efectos de Don
37 Francisco Brotal, pp. 8–9.
38 81. ahpba, Criminal provincial, 7.2.101.11, 1843. Contra el niño Juan Jani, por heridas a
39 Crisóstomo Grimara, pp. 10–11.
40 82. ahpba, Criminal provincial, 5.5.72.9, 1814. Contra Jorge Barquez, por escándalo, p. 9.
1 83. ahpba, Criminal provincial, 7.1.89.13, 1817. Francisco Real, por muerte, pp. 31 and 36;
2 at the end, teniente alcalde Francisco Real received only a 50 pesos fine in this case.
3 84. ahpba, Criminal provincial, 7.1.83.7, 1826. Correccional contra los celadores Gerón-
4 imo Jara y Pascual Diaz, pp. 1–4, 8–9, and 14.
5 85. A typical example is ahpba, Criminal provincial, 1822. Expediente formado por
6 haber herido Joseph Reyes a Enrique Córdoba, pp. 1–4.
7 86. See, for example, ahpba, Criminal provincial, 1811. Peralta José, por muerte; public
8 lawyer’s statement, p. 17. Drunkenness was an additional excuse added to lack of
intelligence, for example in ahpba, Criminal provincial, 7.2.101.21, 1840. Ricardo
9
Francisco, por muerte; Alegato del defensor general de pobres Rejonal, p. 32.
10
87. ahpba, Criminal provincial, 5.5.70.7, 1830. Criminal contra Santos Garcia, Juan
11
Bautista Lazarde, Rafael Rojas, Simon Cárdenas, Espectación Sanzón y José Clemente
12
Carvallo, sospechosos de haber muerto violentamente en mayor pandilla al teniente
13 [153], (31)
alcalde del cuartel número 13 don Ignacio Refogo con otros excesos, p. 31.
14 88. See, for example, ahpba, 7.2.101.24, 1840. José Manuel Luzuriaga contra Ramón
15 de Villanueva, por heridas; resolución de la Cámara “apercibiendo al letrado que Lines: 1053 t
16 suscribe el pedimento de fojas cuarenta, por las expresiones descomedidas de que se
17 ———
queja el Juez de Primera Instancia en su informe precedente,” p. 46 vuelta.
18 89. Some of these statistics were reproduced in García Belsunce, vol. 2, 175–79; and
15.0pt Pg
———
19 Szuchman, Order, Family, and Community, 42–43.
Normal Page
20 90. For example, ahpba, Criminal provincial, 5.5.75.3. Criminal contra Pedro Olivera
PgEnds: TEX
21 por heridas, p. 37.
22 91. ahpba, Criminal provincial, 7.1.83.9, 1829. Criminal contra Felix Cabrera, sospechoso
23 de haber muerto violenta y alevosamente a Simón Ponce, pp. 66–67. See also ahpba, [153], (31)
24 Criminal provincial, 7.1.89.5, 1831. Gómez Antonio, por heridas, Escrito del abogado
25 defensor doctor Valentín Alsina, pp. 26–27. Alsina argued against “an ambiguous said
26 [applied, according to him, against Gómez in this case] that states: who everything
27 denies, everything consent.”
92. See, for example, ahpba, Criminal provincial, 7.1.88.24, 1830. Criminal contra Cirilo
28
Zamora por muerte a Andres Pagola.
29
93. For instance, ahpba, Criminal provincial, 7.2.101.13, 1825. Contra Tomás Sanchez,
30
por haber herido con una plomada a José María Ramos.
31
94. ahpba, Criminal provincial, 7.1.89.32, 1830. Mariano Garcia contra Antonio Seoane;
32
see judge Elías’ resolution denying an appeal on May 5, 1830.
33 95. ahpba, Criminal provincial, 1823. Criminal contra el moreno esclavo José Velarde,
34 por insultos y atropellamiento a la casa de don Juan Tomás Bott, p. 7.
35 96. ahpba, Criminal provincial, 1825. Correccional contra Juan de la Cruz por haberle
36 encontrado con un sable; appeals court resolution passed on August 11, 1825. Another
37 example is the application of a decree passed on January 5, 1830, in a homicide verdict:
38 ahpba, Criminal provincial, 7.1.89.9, 1832, Contra José Larrosa; see verdict passed on
39 June 28, 1832, p. 16.
40 97. For example, Bando dado en Buenos Aires el 19 de Agosto de 1816 por el Director
1 Supremo del Estado Juan Martín de Pueyrredon. Prado y Rojas, comp., Leyes y
2 decretos, vol. 1, 342–43.
3 98. One case, among many examples, is ahpba, Criminal provincial, 5.5.65.43. Antonio
4 Osores por homicidio, pp. 27–28, hanged on March 24, 1812.
5 99. Zorraquín Becú, La organización judicial argentina en el período hispánico, 185–89.
100. ahpba, Criminal provincial, 5.5.75.24, 1813. Morales Mariano, por robo, pp. 11v–12.
6
101. Foucault, Discipline and Punish, 32–69 and 104–31.
7
102. See, for example, agn, X.13.8.6, February 3, 1825. Nota del juez en lo criminal Bar-
8
tolomé Cueto al Ministro de Gobierno sobre si unos condenados a muerte deben ser
9 luego exhibidos en la horca. Executive authorities replied that “there is no general
10 rule or any special condition that indicates the bodies should be exhibited in public.”
11 See agn, X.13.8.6, February 3, 1825, respuesta del Ministro de Gobierno. Contrast this
12 example with the decree passed on April 5, 1826, by President Rivadavia,“Ordenando
13 se fijen las sentencias contra reos de delitos graves.” Prado y Rojas, comp., Leyes y [154],
14 decretos, vol. 3, 141–42. See also agn, X.13.8.6, February 22, 1825, Nota del Tribunal de
15 Justicia al Ministro de Gobierno; agn, X.13.9.4, November 6, 1826, Nota del presidente
del Tribunal de Justicia al Ministro de Gobierno; and agn, X.15.7.2, February 25, 1830, Lines:
16
17 Tribunal de Justicia al Ministro de Gobierno. ——
18 103. An updated anthology on this topic is by Carlos Aguirre and Ricardo Salvatore, eds., 3.0pt
The Birth of the Penitentiary in Latin America: Essays on Criminology, Prison Reform, ———
19
and Social Control, 1830–1940 (Austin: University of Texas Press, 1996). Norma
20
104. For example, agn, X.13.9.4, 1826. Notas del Tribunal de Justicia comunicando al PgEnd
21
Ministro de Gobierno la confirmación de varias sentencias a muerte de los reos
22 Miguel Díaz, Manuel Hernandez, Encarnación Gutierrez, y Luis Zorrila por diversas
23 causas. [154],
24 105. agn, X.13.9.4, April 5, 1826. Manuel Antonio de Castro al Ministro de Gobierno.
25 106. A descriptive article on this issue is by Juan Méndez Avellaneda, “Degollados y
26 decapitados,” Todo es Historia 25, no. 290 (August 1991): 50–58.
27
28 7. Conclusion: Past and Present
29 1. Some of these problems were addressed at the Colloquium “Historia cultural: Aprox-
30 imaciones empíricas y propuestas historiográficas.” Instituto de Ciencias, Universidad
31 Nacional de General Sarmiento, Los Polvorines, Provincia de Buenos Aires, Argentina,
September 2 and 3, 1004.
32
2. Colloquium “La ley de los profanos: Nociones populares de crimen, castigo y justicia
33
en la Argentina.” Departamento de Humanidades y Posgrado de Historia, Universidad
34
de San Andrés, Buenos Aires, Argentina, August 26 and 27, 2004.
35 3. Levaggi, Manual de historia del derecho argentino, vol. 2, 346–50. The original penal
36 code has been amended many times since then.
37 4. Rodríguez, Cuatrocientos años de policía en Buenos Aires, 151–52.
38 5. Rock, Politics in Argentina, 1890–1930, 52–53.
39 6. See Laura Kalmanowiecki, “Origins and Applications of Political Policing in Ar-
40 gentina,” Latin American Perspectives Issue 111, 27, no. 2 (March 2000): 36–56.
1 7. Dromi, Los Jueces: Es la justicia un tercio del poder?, 186–87. A key passage of the
2 Supreme Court resolution stated that, “la doctrina constitucional e internacional se
3 uniforma en el sentido de dar validez a sus actos [del gobierno de facto], cualquiera
4 que pueda ser el vicio de deficiencia de sus nombramientos o de su elección,
5 fundándose en razones de policía y de necesidad y con el fin de mantener prote-
gido al público y a los individuos cuyos intereses puedan ser afectados, ya que no
6
les sería posible a estos últimos realizar investigaciones ni discutir la legalidad de las
7
designaciones de funcionarios que se hallan en aparente posesión de sus poderes y
8 funciones.”
9 8. A comparative perspective on this problem is by Errol P. Mendes, Joaquin Zucker-
10 berg, Susan Lecorre, Anne Gabriel, and Jeffrey A. Clark, Democratic Policing and Ac-
11 countability: Global Pespectives (Aldershot uk: Ashgate Publishing Company, 1999);
12 See specially the article by Judge Gerald S. Lapkin, “Democratic Limits on Law
13 Enforcement: Squaring the Circle,” 89–112. [155], (33)
14 9. Horacio Verbitsky, Hacer la corte: La construcción de un poder absoluto sin justicia
15 ni control (Buenos Aires: Ediciones Planeta, 1993). Argentine Congress put on trial
several members of that ill-famed highest tribunal during 2003 and 2004. Some Lines: 1128 t
16
17 resigned, avoiding the trial, and others were dismissed. ———
18
10. On this matter see Juan S. Pegoraro, “Inseguridad y violencia en el marco del control * 84.822pt
social,” 201–28, in José Vicente Tavares Santos, ed., Violências no tempo de globalização ———
19
(São Paulo: Editora Hucitec, 1999); Police Violence in Argentina: Torture and Police Normal Page
20 Killings in Buenos Aires, December 1991, Americas Watch and cels, 27 pages; Informe * PgEnds: Page
21 sobre violencia institucional y urbana, Año 1993: Capital Federal y Gran Buenos Aires,
22 Publicación del Centro de Estudios Legales y Sociales (cels), Facultad de Filosofía y
23 Letras, Universidad de Buenos Aires, Serie Extensión Universitaria no. 2, 1994; Mark [155], (33)
24 Ungar,“Entre la espada y la pared: Criminal Justice and Representation in Argentina,”
25 Paper presented at lasa, Dallas, March 26–29, 2003, 26 pages.
26 11. Some of these debates are addressed by Eduardo Oteiza, La corte suprema: Entre la
27 justicia sin política y la política sin justicia (La Plata: Editorial La Platense, 1994).
28 12. See, for example, Uribe-Urán, ed., State and Society in Spanish America during the
29 Age of Revolution.
13. An excellent example from a historical perspective, focused on penitentiary policing
30
and institutions, is Lila Caimari’s book, Apenas un delincuente: Crimen, castigo y
31
cultura en la Argentina, 1880–1955 (Buenos Aires: Fondo de Cultura Económica,
32 2004).
33 14. ahpba, Criminal provincial, 5.5.75.9, foja 11.
34
35
36
37
38
39
40
1
2
3
4
5
6
7
8
9
10
11
12
13 [156],
14
15
Lines:
16
17 ——
18 0.0pt
———
19
Norma
20
PgEnd
21
22
23 [156],
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
1
2
3
4
5 Selected Bibliography
6
7
8 Primary Sources
9 Alsina, Valentín. “Discurso sobre la pena de muerte,” Colección de textos y documentos
10 para la historia del derecho argentino, no. 8. Buenos Aires: Facultad de Derecho y
11 Ciencias Sociales, Instituto de Historia del Derecho, 1949.
[First Page]
12 Archivo General de la Nación. Acuerdos del extinguido cabildo de Buenos Aires. Buenos
13 Aires: Editorial Kraft, 1927. [157], (1)
14 Archivo General de la Nación. Sala IX, Colonial: documentos judiciales, bandos, cor-
15 respondencia. Sala X, Periodo independiente: documentos judiciales, correspon-
dencia, Ministerio de Gobierno, Cámara de Justicia, Tribunal de Justicia, Cámara Lines: 0 to 6
16
17 de Apelaciones, Jueces. ———
18 Archivo Histórico de la Provincia de Buenos Aires. Archivo de la Real Audiencia y Cámara * 20.31499p
de Apelaciones, Tribunal provincial, Juzgado del Crimen, expedientes criminales. ———
19
Bellemare, Guret. Plan general de organización judicial para Buenos Aires (1829). Buenos Normal Page
20
Aires: Facultad de Derecho y Ciencias Sociales, Instituto de Historia del Derecho, PgEnds: TEX
21
Colección de Textos y Documentos para la Historia del Derecho Argentino, no.
22
8, 1949.
23 [157], (1)
Buenos Aires. Colegio de Abogados. Biblioteca. Catálogo de constituciones, códigos y leyes
24
argentinas y extranjeras. Buenos Aires, 1931.
25
Buenos Aires. Universidad Nacional. Facultad de Derecho y Ciencias Sociales. Anales de
26
la Facultad de Derecho y Ciencias Sociales, vols. 1–20. Buenos Aires: 1902–04/11–19.
27
Castro Manuel Antonio de. Prontuario de práctica forense. Buenos Aires, 1834.
28
Cedulario de la Real Audiencia de Buenos Aires, 3 vols. La Plata: Publicaciones del Archivo
29 Histórico de la Provincia de Buenos Aires, 1929.
30 Código Penal de la República Argentina. Sancionado por ley del Congreso el 25 de noviem-
31 bre de 1886 y puesto en vigencia desde el primero de marzo de 1887.
32 Compilación de leyes, decretos y resoluciones: recopilados y clasificados. Buenos Aires:
33 Editorial Claridad, 1942.
34 El Argos de Buenos Aires. Buenos Aires: Biblioteca de la junta de historia y numismática
35 americana, atelier de las artes gráficas “Futura,” 1931–42.
36 Libro de informes y oficios de la Real Audiencia de Buenos Aires (1785–1810). La Plata:
37 Publicaciones del Archivo Histórico de la Provincia de Buenos Aires, 1929.
38 Prado y Rojas, Aurelio, comp. Leyes y decretos promulgados en la provincia de Buenos
39 Aires desde 1810 a 1876. Buenos Aires: Imprenta del Mercurio, 1877.
40 Quiroga de la Rosa, Manuel J. Sobre la naturaleza filosófica del derecho (first edition 1837).
158 selected bibliography
1 Publicación del Instituto de Historia del Derecho Argentino IX. Buenos Aires:
2 editorial Perrot, 1956.
3 Registro bibliográfico de obras y artículos sobre ciencias jurídicas y sociales: Biblioteca
4 Pública Joaquín V. Gonzalez. Catalogo general de Obras y autores. La Plata: Talleres
5 Gráficos Das Neves, 1939.
6 Revista de la Facultad de Derecho y Ciencias Sociales. Buenos Aires, 1922–32.
7 Senado de la Nación. Biblioteca de Mayo. Colección de obras y documentos para la historia
8 argentina, 18 vols. Buenos Aires: Imprenta del Congreso de la Nación Argentina,
1960.
9
Somellera, Pedro. Principios de derecho civil (1837). Publicación del Instituto de Historia
10
del Derecho Argentino II. Buenos Aires: Imprenta de la Universidad, 1939.
11
Vélez, Bernardo. Iacutendice de la compilación de derecho patrio (1832) y “El Correo
12
Judicial” (1834). Publicación del Instituto de Historia del Derecho Argentino.
13 [158],
Buenos Aires: Imprenta de la Universidad, 1946.
14
15 Secondary Sources Lines:
16 Acevedo, Edberto O. “Notas sobre organización jurídica y social en Mendoza hacia 1820.”
17 Revista de Historia del Derecho no. 2. Universidad Nacional de Buenos Aires, 1975.
——
18 Adelman, Jeremy. Republic of Capital: Buenos Aires and the Legal Transformation of the
15.0p
———
19 Atlantic World. Stanford: Stanford University Press, 1999.
Norma
20 Aftalión, Enrique R. La delincuencia en Argentina. Buenos Aires, 1955.
PgEnd
21 Aguirre, Carlos, and Charles Walker, eds. Bandoleros, abigeos y montoneros: Criminalidad
22 y violencia en el Perú, siglos XVIII–XX. Lima: Editorial Pasado y Presente, 1990.
23 Aguirre, Carlos, and Robert Buffington, eds. Reconstructing Criminality in Latin America. [158],
24 Wilmington de: Scholarly Resources, 2000.
25 Alberdi, Juan Bautista. Bases y puntos de partida para la organización política de la
26 República Argentina. Buenos Aires: Editorial Sopena Argentina, 1957.
27 ———. Escritos jurídicos. Buenos Aires: Librería de “La Facultad” de Juan Roldes, 1920.
———. Fragmento preliminar al estudio del derecho. Buenos Aires: Librería Hachette,
28
1947; Buenos Aires: Editorial Hachette, 1954.
29
Alonso, Maria Luz. “Un jurista indiano: Juan Antonio de Torquemada.” In Justicia,
30
sociedad y economía en la América Española (Siglos 16, 17, y 18): Trabajos del VI
31
Congreso del Instituto Internacional de Historia del Derecho Indiano. Valladolid:
32 Casa-Museo de Colón, 1983.
33 Andrés-Gallego, José. “Law and Social Change: The Example of Latin America.” In
34 Understanding Social Change in the Nineties: Theoretical Approaches and Historio-
35 graphical Perspectives, edited by Valentin Vázquez de Prada and Ignacio Olábarri.
36 Conversaciones Internacionales de Historia. Pamplona: Universidad de Navarra,
37 Variorum, 1995.
38 Andrews, Joseph. Journey from Buenos Aires through the Provinces of Córdoba, Tucuman,
39 and Salta. Buenos Aires: Vaccaro Ediciones, 1920.
40 Andrews, Richard Mowery. Law, Magistracy, and Crime in Old Regime Paris, 1735–1789,
selected bibliography 159
1 vol. 1: The System of Criminal Justice. Cambridge: Cambridge University Press,

2 1995.
3 Antokoletz, Daniel. Historia del derecho argentino. Buenos Aires: J. Roldón, 1929.
4 Arnold, Linda. Bureaucracy and Bureaucrats in Mexico City, 1742–1835. Tucson: University
5 of Arizona Press, 1988.
Arnold, Samuel Greene. Viaje por América del Sur, 1847–1848. Buenos Aires: Emecé Edi-
6
tora, 1951.
7
Arrom, Silvia M. Containing the Poor: The Mexico City Poor House, 1774–1871. Durham
8
nc: Duke University Press, 2000.
9 ——— “Popular Politics in Mexico City: The Parián Riot, 1828.” Hispanic American
10 Historical Review 68, no. 2 (May 1988).
11 Arrom, Silvia, and Servando Ortoll, eds. Riots in the Cities: Popular Politics and the Urban
12 Poor in Latin America, 1765–1910. Wilmington de: Scholarly Resources, 1996.
13 Avila Martel, Alamiro de. Aspectos del derecho penal indiano. Buenos Aires: Imprenta de [159], (3)
14 la Universidad, 1946.
15 Báez Macías, Eduardo, ed. “Ordenanzas para el Establecimiento de Alcaldes de Barrio en
la Nueva España.” Boletín del Archivo General de la Nación (Mexico City) 10, nos. Lines: 100 to
16
17 1–2 (1969). ———
18 Barreneche, Osvaldo. Dentro de la ley, todo: La justicia criminal de Buenos Aires en la 3.0pt PgV
etapa formativa del sistema penal moderno en Argentina. La Plata: Ediciones al ———
19
Margen, 2001. Normal Page
20
Beattie, Peter M. The Tribute of Blood: Army, Honor, Race, and Nation in Brazil, 1864–1945. PgEnds: TEX
21
Durham nc: Duke University Press, 2001.
22 Beccaria, Cesare. On Crime and Punishment and Other Writings, edited by Richard Bel-
23 lamy. Cambridge: Cambridge University Press, 1995. [159], (3)
24 Beezley, William, Cheryl English Martin, and William E. French, eds. Rituals of Rule, Rit-
25 uals of Resistance: Public Celebrations and Popular Culture in Mexico. Wilmington
26 de: Scholarly Resources, 1994.
27 Bellingery Marco, ed. Dinámicas de Antiguo Régimen y Orden Constitucional: Repre-
28 sentación, justicia y administración en Iberoamérica, siglos XVIII-XIX. Nova Amer-
29 icana Series. Torino: Otto Editore, 2000.
30 Bentham, Jeremy. An Introduction to the Principles of Morals and Legislation. New York:
31 Hafner Publishing, 1948.
Benton, Lauren. Law and Colonial Cultures: Legal Regimes in World History, 1400–1900.
32
New York: Cambridge University Press, 2001.
33
Besio Moreno, Nicolás. Buenos Aires, puerto del Río de la Plata capital de la Argentina:
34
Estudio crítico de su población 1536–1936. Buenos Aires: Talleres Gráficos Tuduri,
35 1939.
36 Blasco y Fernández de Moreda, Francisco. Lardizábal: El primer penalista de América
37 española. Mexico City: Imprenta Universitaria, 1957.
38 Bliss, Katherine E. Compromised Positions: Prostitution, Public Health, and Gender Politics
39 in Revolutionary Mexico City. University Park: Pennsylvania State University Press,
40 2001.
1 Borchard, Edwin Montefiore. Guide to the Law and Legal Literature of Argentina, Brazil,
2 and Chile. Washington dc: Government publication, 1917.
3 Brackenridge, Henry M. Voyage to Buenos Aires, Performed in the Years 1817 and 1818 by
4 Order of the American Government. London: Sir R. Phillips and Co., 1920.
5 Brading, D. A. The First America: The Spanish Monarchy, Creole Patriotism, and the Liberal
State, 1492–1867. Cambridge: Cambridge University Press, 1991.
6
Buffington, Robert. Criminal and Citizen in Modern Mexico. Lincoln: University of Ne-
7
braska Press, 2000.
8
Bunge, Carlos O. Historia del derecho argentino. Buenos Aires: Facultad de Derecho y
9 Ciencias Sociales, 1912.
10 Burkholder, Mark, and D. S. Chandler. De la impotencia a la autoridad: La corona española
11 y las Audiencias en América. Mexico City: Fondo de Cultura Económica, 1984.
12 ———. From Impotence to Authority: The Spanish Crown and the American Audiencias,
13 1687–1808. Columbia: University of Missouri Press, 1977. [160],
14 Burns, Robert I., S.J., ed. Emperor of Culture: Alfonso X the Learned of Castile and His
15 Thirteenth-Century Renaissance. Philadelphia: University of Pennsylvania Press,
1990. Lines:
16
17 Bushnell, David. Reform and Reaction in the Platine Provinces, 1810–1852. Gainesville: ——
18 University Press of Florida, 1983. 3.0pt
Candiotti, Marcial. Bibliografía doctoral de la Universidad de Buenos Aires y catálogo ———
19
cronológico de las tesis en su primer centenario, 1821–1920. Buenos Aires: Imprenta Norma
20
de la Universidad, 1920. PgEnd
21
Cansanello, Carlos. “Domiciliados y transeuntes en el proceso de formación estatal
22 bonaerense, 1820–1832.” Entrepasados 4, no. 6 (1994).
23 Carmagnani, Marcello, coord. Federalismos Latinoamericanos: México, Brasil, Argentina. [160],
24 Mexico City: Fondo de Cultura Económica, 1993.
25 Chambers, Sarah C. From Subjects to Citizens: Honor, Gender, and Politics in Arequipa,
26 Peru 1780–1854. University Park: Pennsylvania State University Press, 1999.
27 Chiaramonte, José Carlos. “Acerca del origen del estado en el Río de la Plata.” Anuario
28 iehs 10 (1995): 27–50.
29 ———. “El principio del consentimiento en la gestación de las independencias íbero y
30 norteamericanas.” Anuario iehs 17 (2002): 21–43.
31 ———. “El problema del origen de las nacionalidades hispanoamericanas y sus pre-
supuestos historiográficos.” In Cuadernos del Instituto Ravignani. Buenos Aires:
32
Facultad de Filosofía y Letras de la Universidad de Buenos Aires, 1991.
33
Chichizola, Mario I. Historia del derecho penal argentino. Buenos Aires: Ediciones Es-
34
naola, 1965.
35 Chikhachev, Platon A. A Trip across the Pampas of Buenos Aires, 1836–1837. University of
36 Kansas, Center of Latin American Studies. Occasional Publications no. 8, 1967.
37 Ciattino, Oreste. Cesare Beccaria. Buenos Aires: Juan Perrotti, 1938.
38 Claessen, Henri. “Changing Legitimacy.” In State Formation and Political Legitimacy,
39 edited by R. Cohen and J. Toland. Political Anthropology Series, vol. 6. New
40 Brunswick nj: Transaction Books, 1988.
1 Cladcleugh, Alexander. Viajes por la América del Sur: Río de la Plata, 1821. Buenos Aires:
2 Ediciones Solar, 1943.
3 Cohen, Ronald. State Formation and Political Legitimacy. New Brunswick nj: Transaction
4 Books, 1988.
5 Cope, Douglas. The Limits of Racial Domination: Plebeian Society in Colonial Mexico
6 City, 1660–1720. Madison: University of Wisconsin Press, 1994.
7 Cordero, Carlos J. Los relatos de viajeros extranjeros posteriores a la Revolución de Mayo
8 como fuentes de historia argentina. Buenos Aires: Imprenta Coni, 1936.
Crook, J. A. Law and Life in Rome, 90bc–ad212, 4th edition. Ithaca ny: Cornell University
9
Press, 1994.
10
Cutter, Charles R. The Legal Culture of Northern New Spain, 1700–1810. Albuquerque:
11
University of New Mexico Press, 1995.
12
Daube, David. Forms of Roman Legislation. Oxford: Clarendon Press, 1956.
13 [161], (5)
Davidson, Alastair. The Invisible State: The Formation of the Australian State, 1788–1901.
14 Cambridge: Cambridge University Press, 1991.
15 Díaz, Marisa. “Las migraciones internas a la ciudad de Buenos Aires, 1744–1810.” Boletín Lines: 177 to
16 del Instituto de Historia Argentina y Americana “Dr. Emilio Ravignani” 3, nos. 16–17
17 ———
(1997–98): 7–32. Buenos Aires, Facultad de Filosofía y Letras de la Universidad de
18 Buenos Aires y Fondo de Cultura Económica.
15.0pt Pg
———
19 Díaz Bialet, Agustín. La recepción del derecho romano en la Argentina. Córdoba: Imprenta
Normal Page
20 de la Universidad, 1951.
PgEnds: TEX
21 Domínguez, Jorge I., ed. Essays on Mexico, Central and South America: Scholarly Debates
22 from the 1950s to the 1990s. 2 vols. New York: Garland, 1994.
23 Dromi, Roberto. Los Jueces: ¿Es la justicia un tercio del poder? Buenos Aires: Ediciones [161], (5)
24 Ciudad Argentina, 1992.
25 Durham, Alexis M. III. “The Justice Model in Historical Context: Early Law, the Emer-
26 gence of Science, and the Rise of Incarceration.” Journal of Criminal Justice 16, no.
27 4 (July–August 1988).
Earle, Rebecca. “Padres de la Patria and the Ancestral Past: Commemorations of Inde-
28
pendence in Nineteenth-Century Spanish America.” Journal of Latin American
29
Studies 34, no. 4 (2002): 775–805.
30
Echeverría, Esteban. Los ideales de Mayo y la tiranía (1837). Buenos Aires: Jackson Edi-
31
tores, 1847.
32
———. Reflexiones sobre la organización económica de la Argentina (1837). Buenos Aires:
33 Editorial Raigal, 1953.
34 Eder, Phanor J. Law and Justice in Latin America. New York: New York University Press,
35 1937.
36 Einer, Robert. “British Criminology and the State.” British Journal of Criminology 28, no.
37 2 (Spring 1988).
38 Emsley, Clive, and Louis Knafla, eds. Crime History and Histories of Crime: Studies in
39 the Historiography of Crime and Criminal Justice in Modern History. London:
40 Greenwood Press, 1996.
1 Farcau, Bruce W. The Transition to Democracy in Latin America: The Role of the Military.
2 Westport ct: Praeger, 1996.
3 Fisher, George. “The Birth of the Prison Retold.” Yale Law Journal 104, no. 6 (April 1995).
4 Flores Galindo, Alberto. Aristocracia y plebe: Lima, 1760–1830. Lima: Mosca Azul Editores,
5 1984.
Foucault, Michel. Discipline and Punish: The Birth of the Prison, translated by Alan
6
Sheridan. New York: Vintage Books, 1979.
7
Garavaglia, Juan Carlos. “El teatro del poder: Ceremonias, tensiones y conflictos en el
8
estado colonial.”Boletín del Instituto de Historia Argentina y Americana “Dr. Emilio
9 Ravignani” 3, no. 14 (1996): 7–30. Buenos Aires, Facultad de Filosofía y Letras de
10 la Universidad de Buenos Aires.
11 ———. “La apoteósis del Leviathán: El estado de Buenos Aires durante la primera mitad
12 del siglo XIX.” Latin American Research Review 38, no. 1 (2003): 135–68.
13 Garavaglia, Juan Carlos, and Jorge Gelman, “Rural History of the Río de la Plata, 1600– [162],
14 1850: Results of a Historiographical Renaissance.” Latin American Research Review
15 30, no. 3 (1995).
Garay, Alberto F. La igualdad ante la ley: Decisiones administrativas contradictorias, de- Lines:
16
17 cisiones judiciales contradictorias, desigualdad procesal. Buenos Aires: Abeledo- ——
18 Perrot, 1989. 3.0pt
García y García, Tomás de Aquino. El derecho de asilo en Indias. Madrid: Ediciones Reus, ———
19
1930. Norma
20
García Belsunce, César, ed. Buenos Aires 1800–1830, vol. 2, Salud y delito. Buenos Aires: PgEnd
21
Emecé Editora, 1977.
22 García Méndez, Emilio. “Criminología crítica en América Latina: Origen, problemas y
23 perspectivas.” Criminología Crítica, I Seminario. Medellín, Colombia: Universidad [162],
24 de Medellín, August 1984, 23–33.
25 Gargarella, Roberto. “El periodo fundacional del constitucionalismo sudamericano
26 (1810–1860).” Desarrollo Económico 43, no. 170 (July–September 2003): 305–28.
27 ———. “Towards a Typology of Latin American Constitutionalism, 1810–1860.” Re-
28 search Reports and Notes Section, Latin American Research Review 39, no. 2 (June
29 2004): 141–53.
30 Gelman, Jorge. “Crisis y reconstrucción del orden en la campaña de Buenos Aires: Estado
31 y sociedad en la primera mitad del siglo XIX.” Boletín del Instituto de Historia
Argentina y Americana “Dr. Emilio Ravignani” 3, no. 21 (2000): 7–32. Buenos
32
Aires, Facultad de Filosofía y Letras de la Universidad de Buenos Aires.
33
González, Juan F. El código penal y la jurisprudencia. Buenos Aires: Editorial Perrot,
34
1934–35.
35 Gonzalez Roura, Octavio,“El derecho penal argentino y su evolución histórica.” Archivos
36 de Psiquiatría 9 (July and August 1910).
37 Greer, Alan. Colonial Leviathan: State Formation in Mid-Nineteenth Century Canada.
38 Toronto: University of Toronto Press, 1992.
39 Guy, Donna J. “Lower-Class Families, Women, and the Law in Nineteenth-Century
40 Argentina.” Journal of Family History (Fall 1985).
1 ———. “Women, Peonage, and Industrialization, Argentina, 1810–1914.” Latin American

2 Research Review 16, no. 3 (1981).
3 Halperín Donghi, Tulio. Hispanoamérica después de la independencia: Consecuencias
4 sociales y económicas de la emancipación. Buenos Aires: Editorial Paidós, 1972.
5 ———. “Militarización revolucionaria en Buenos Aires, 1806–1815.” In El Ocaso del
6 Orden Colonial en Hispanoamérica, edited by Tulio Halperín Donghi. Buenos
7 Aires: Editorial Sudamericana, 1978.
8 ———. Revolución y guerra: Formación de una elite dirigente en la Argentina criolla.
Buenos Aires: Editorial Siglo XXI, 1972.
9
Haslip, Gabriel J. Crime and the Administration of Justice in Colonial Mexico City, 1696–
10
1810. PhD diss. Columbia University, 1980.
11
Haslip-Viera, Gabriel. Crime and Punishment in Late Colonial Mexico City, 1692–1810.
12
Albuquerque: University of New Mexico Press, 1999.
13 [163], (7)
Hinojosa, Eduardo de. Influencia que tuvieron en el derecho público de su patria y sin-
14 gularmente en el derecho penal los filósofos y teólogos españoles anteriores a nuestro
15 siglo. Madrid: Tipografía de los Huérfanos, 1890. Lines: 251 to
16 Hoberman, Louisa Schell, and Susan Migden Socolow. Cities and Societies in Colonial
17 ———
Latin America. Albuquerque: University of New Mexico Press, 1986.
18 Hobsbawn, Eric J. The Age of Revolution, 1789–1848. New York: New American Library,
15.0pt Pg
———
19 1962.
Normal Page
20 Holloway, Thomas H. Policing Rio de Janeiro: Repression and Resistance in a Nineteenth
PgEnds: TEX
21 Century City. Stanford: Stanford University Press, 1993.
22 Jiménez de Asúa, Luis. El criminalista. Buenos Aires: Editorial La Ley, 1946–52.
23 ———. Evolución del derecho penal argentino: Su desarrollo histórico-dogmático. Rosario: [163], (7)
24 Ediciones Jurídicas Orbir, 1969.
25 ———. El pensamiento jurídico español y su influencia en Europa. Buenos Aires: Editorial
26 Abeledo Perrot, 1958.
27 ———. “Reflexiones sobre el error de derecho en materia penal.” Anales de la Facultad
de Ciencias Jurídicas y Sociales (Universidad Nacional de La Plata) 12, no. 2 (1941).
28
Johnson, Eric A., and Eric H. Monkkonen, eds. The Civilization of Crime: Violence in
29
Town and Country since the Middle Ages. Urbana: University of Illinois Press,
30
1996.
31
Johnson, Lyman L., ed. The Problem of Order in Changing Societies: Essays on Crime and
32
Policing in Argentina and Uruguay. Albuquerque: University of New Mexico Press,
33 1990.
34 ———. “The Role of Apprenticeship in Colonial Buenos Aires.” Revista de Historia de
35 América. Instituto Panamericano de Geografía e Historia, Comisión de Historia,
36 Mexico City. (January–June 1987).
37 Johnson, Lyman L., and Kenneth J. Andrien, eds., The Political Economy of Spanish
38 America in the Age of Revolution, 1750–1850. Albuquerque: University of New
39 Mexico Press, 1994.
40 Joseph, Gilbert, and Daniel Nugent. Everyday Forms of State Formation: Revolution and
1 the Negotiation of Rule in Modern Mexico. Durham: nc: Duke University Press,
2 1994.
3 Kagan, Richard L. “Lawyers and Litigation in Castile, 1500–1750.” In Lawyers in Early
4 Modern Europe and America, edited by Wilfrid R. Prest. London: Biddles Ltd.,
5 1981.
Kalmanowiecki, Laura. “Origins and Applications of Political Policing in Argentina.”
6
Latin American Perspectives Issue 111, vol. 27, no. 2 (March 2000): 36–56.
7
Karst, Kenneth L., and Keith S. Rosenn. Law and Development in Latin America: A Case
8
Book. Berkeley: University of California Press, 1975.
9 Katra, William H. The Argentine Generation of 1837: Echeverría, Alberdi, Sarmiento, Mitre.
10 Madison nj: Fairleigh Dickinson University Press, 1996.
11 LaFuente Machain, Ricardo de. Buenos Aires en el siglo XVIII. Buenos Aires: Municipal-
12 idad de la Ciudad de Buenos Aires, 1980.
13 Lardizábal y Uribe, Manuel de. Discurso sobre las penas. Mexico City: Editorial Porrúa, [164],
14 1982.
15 Lavallé, Bernard. Al filo de la navaja: Luchas y derivas caciquiles en Latacunga, 1730–1790.
Quito: Instituto Frances de Estudios Andinos, Corporación Editora Nacional, Lines:
16
17 2002. ——
18 Lazarus-Black, Mindie, and Susan Hirsch. Contested States: Law, Hegemony, and Resis- 3.0pt
tance. New York: Routledge, 1994. ———
19
Leiva, Alberto David. La institución del arbitrio judicial en el Rio de la Plata durante el Norma
20
período 1785–1810. Buenos Aires: Imprenta de la Universidad, 1978. PgEnd
21
Leiva, Alberto David, comp. Fuentes para el estudio de la historia institucional argentina.
22 Buenos Aires: Editorial Universitaria, 1982.
23 Lenman, Bruce, and Geoffrey Parker. “The State, the Community, and the Criminal Law [164],
24 in Early Modern Europe.” In Crime and the Law: The Social History of Crime
25 in Westen Europe since 1500, edited by V. A. Gatrell, B. Lenman, and G. Parker.
26 London: Europa Publications, 1980.
27 Lentner, Howard H. State Formation in Central America: The Struggle for Autonomy,
28 Development, and Democracy. Westport ct: Greenwood Press, 1993.
29 León, Marco Antonio. “Justicia, ceremonia y sacrificio: Una aproximación a las eje-
30 cucuiones públicas en el Chile colonial.” Universidad de Playa Ancha. Notas
31 Históricas y Geográficas (Valparaíso) 11 (2000).
Levaggi, Abelardo. Historia del derecho penal argentino. Buenos Aires: Editorial Abeledo-
32
Perrot, 1978.
33
———. Manual de historia del derecho argentino. 3 vols. Buenos Aires: Ediciones De-
34
palma, 1986–91.
35 ———. “La penal de muerte en el derecho argentino precodificado.” Revista del Instituto
36 de Historia del Derecho. Buenos Aires, Facultad de Derecho y Ciencias Sociales,
37 no. 23, 1972.
38 Levene, Ricardo. La Academia de Jurisprudencia y la vida de su fundador Manuel Antonio
39 de Castro. Buenos Aires: Talleres de A. Baiocco y cía., 1941.
40 ———. Historia del derecho argentino. 11 vols. Buenos Aires: Editorial G. Kraft, 1945–58.
1 ———. Introducción a la historia del derecho patrio. Buenos Aires: A. López, 1942.
2 ———. Manual de historia del derecho argentino, 5th edition. Buenos Aires: Editorial
3 Depalma, 1985.
4 ———. “El proyecto de administración de justicia de 1833 para la provincia de Buenos
5 Aires durante el gobierno de Balcarce.” Revista de la Facultad de Derecho y Ciencias
Sociales (Buenos Aires) 8, no. 36 (November–December 1953).
6
Levine, Daniel H. Constructing Culture and Power in Latin America. Ann Arbor: Univer-
7
sity of Michigan Press, 1993.
8
Loveman, Brian. The Constitution of Tyranny: Regimes of Exception in Spanish America.
9 Pittsburgh: University of Pittsburgh Press, 1993.
10 Lozano Armendarez, Teresa. La criminalidad en la ciudad de México, 1800–1821. Mexico
11 City: Universidad Nacional Autónoma de México, 1987.
12 Lynch, John. Argentine Dictator Juan Manuel de Rosas, 1829–1852. Oxford: Clarendon
13 Press, 1981. [165], (9)
14 MacLachlan, Colin M. Criminal Justice in Eighteenth Century Mexico: A Study of the
15 Tribunal of the Acordada. Berkeley: University of California Press, 1974.
———. Spain’s Empire in the New World: The Role of Ideas in Institutional and Social Lines: 326 to
16
17 Change. Berkeley: University of California Press, 1988. ———
18 Madden, Marie R. Political Theory and Law in Medieval Spain. New York: Fordham 3.0pt PgV
University Press, 1930. ———
19
Maestro, Marcello. Cesare Beccaria and the Origins of Penal Reform. Philadelphia: Temple Normal Page
20
University Press, 1973. PgEnds: TEX
21
Mallo, Silvia. “Fugas y sublevaciones: El peligro latente y la realidad en las cárceles colo-
22 niales.” Publicación del Departamento de Historia de la Facultad de Humanidades,
23 Universidad Nacional de Mar del Plata. Mar del Plata, 1986. [165], (9)
24 Mallon, Florencia E. Peasant and Nation: The Making of Postcolonial Mexico and Perú.
25 Berkeley: University of California Press, 1995.
26 Manzetti, Luigi. Institutions, Parties, and Coalitions in Argentine Politics. Pittsburgh:
27 University of Pittsburgh Press, 1993.
28 Martiré, Eduardo. Los regentes de Buenos Aires: La reforma judicial indiana de 1776.
29 Buenos Aires: Imprenta de la Universidad de Buenos Aires, 1981.
30 Mason, Laura. “The Bosom of Proof: Criminal Justice and the Renewal of Oral Culture
31 during the French Revolution.” Journal of Modern History 76 (March 2004).
Mayo, Carlos A. “Entre el trabajo y el ‘ocio’: Vagabundos de la llanura pampeana, 1750–
32
1810.” hisla, Revista Latinoamericana de historia económica y social 13 and 14
33
(1989).
34
———. Estancia y sociedad en la pampa, 1740–1820. Buenos Aires: Editorial Biblos, 1995.
35 ———. “La historia social.” Comité Argentino de Ciencias Históricas, Historiografía
36 Argentina, 1958–1988: Una evaluación crítica de la producción histórica nacional.
37 Buenos Aires: Publicación del Comité Internacional de Ciencias Históricas,
38 Comité Argentino, 1990.
39 Mayo, Carlos, ed. Estudios de historia colonial Ríoplatense. La Plata: Editorial de la Uni-
40 versidad, Colección Institutos, 1995.
1 ———. Vivir en la frontera: La casa, la dieta, la pulpería, la escuela, 1770–1870. Buenos

2 Aires: Editorial Biblos, 2000)
3 Mayo, Carlos, Silvia Mallo, and Osvaldo Barreneche. “Plebe urbana y justicia colonial:
4 Las fuentes judiciales. Notas para su manejo metodológico.” In Estudios e investi-
5 gaciones número uno: Frontera, sociedad y justicia coloniales. La Plata: Facultad de
Humanidades de la Universidad Nacional de La Plata, 1989.
6
Medrano, Samuel W. “Problemas de la organización de la justicia en las primeras
7
soluciones constituyentes.” Revista de la Facultad de Derecho y Ciencias Sociales
8
(Buenos Aires) 9, no. 40 (September–October 1954).
9 ———. “Las ideas sobre el poder judicial en el Congreso Constituyente de 1826.” Revista
10 de la Facultad de Derecho y Ciencias Sociales (Buenos Aires) 10, no. 43 (May–June
11 1955).
12 Melossi, Dario, and Massimo Pavarini. The Prison and the Factory: Origins of the Peni-
13 tentiary System. Totowa nj: Barnes and Noble, 1981. [166],
14 Mendez Calzada, Luis. La función judicial en las primeras épocas de la independencia;
15 Estudio sobre la formación evolutiva del poder judicial argentino. Buenos Aires:
Editorial Lozada, 1944. Lines:
16
17 Meyer, Michael C. Water in the Hispanic Southwest: A Social and Legal History, 1550–1850. ——
18 Tucson: University of Arizona Press, 1984. 3.0pt
Mirow, M. C. Latin American Law: A History of Private Law and Institutions in Spanish ———
19
America. Austin: University of Texas Press, 2004. Norma
20
Mitre, Bartolomé. Historia de Belgrano y de la independencia argentina. Buenos Aires: PgEnd
21
Editorial Estrada, 1947.
22 Morató, Domingo Ramón de. Estudio de ampliación de la historia de los códigos españoles
23 y de sus instituciones sociales, civiles y políticas. Valladolid: Imprenta y Librería [166],
24 Nacional y Extranjera de Hijos de Rodríguez, 1884.
25 Morello, Augusto Mario. La reforma de la justicia. La Plata: Librería Editorial Platense,
26 1991.
27 Moreno, Rodolfo. El código penal y sus antecedentes. Buenos Aires: H. A. Tommasi, 1922–
28 23.
29 Myers, Jorge. Orden y virtud: El discurso republicano en el régimen rosista. Quilmes:
30 Universidad Nacional de Quilmes, 1995.
31 Nader, Helen. Liberty in Absolutist Spain: The Habsburg Sale of Towns, 1516–1700. Balti-
more: Johns Hopkins University Press, 1990.
32
Nino, Carlos S. Un país al margen de la ley: Estudio de la anomia como componente del
33
subdesarrollo argentino. Buenos Aires: Emecé Editores, 1992.
34
O’Donnell, Guillermo. Bureaucratic Authoritarianism: Argentina, 1966–1973, in Compar-
35 ative Perspective. Berkeley: University of California Press, 1988.
36 Ozlak, Oscar. La formación del estado argentino. Buenos Aires: Editorial de Belgrano,
37 1982.
38 ———. “The Historical Formation of the State in Latin America: Some Theoretical and
39 Methodological Guidelines for Its Study.” Latin American Research Review 16, no.
40 2 (1981).
1 Parker, David S. “Law, Honor, and Impunity in Spanish America: The Debate over
2 Dueling, 1870–1920.” Law and History Review 19 no. 2 (Summer 2001): 311–41.
3 Pegoraro, Juan S., “Inseguridad y violencia en el marco del control social.” In Violências
4 no tempo da Globalização, organized by José Vicente Tavares dos Santos, 201–28.
5 São Paulo: Editora Hucitec, 1999.
6 Peloso, Vincent C., and Barbara A. Tenenbaum, eds. Liberals, Politics, and Power: State
7 Formation in Nineteenth-Century Latin America. Athens: University of Georgia
8 Press, 1996.
Peña, David. Historia de las leyes de la nación argentina: Digesto anotado y concordado
9
en orden cronológico, alfabético y por materias de 1810 a 1916. Buenos Aires: Ateneo
10
Nacional, 1916.
11
Pérez-Prendes, José María. Cortes de Castilla. Barcelona: Ediciones Ariel, 1974.
12
Pessagno, Rodolfo Guillermo. Temas de historia penal. Buenos Aires: Editorial Perrot,
13 [167], (11)
1953.
14 Piccato, Pablo. “ ‘El Chalequero,’ or, The Mexican Jack the Ripper: The Meanings of Sex-
15 ual Violence in Turn-of-the-Century Mexico City.” Hispanic American Historical Lines: 401 to
16 Review 81, nos. 3–4 (August–November 2001).
17 ———
———. City of Suspects: Crime in Mexico City, 1900–1931. Durham nc: Duke University
18 Press, 2001.
15.0pt Pg
———
19 Piccirilli, Ricardo. Guret Bellemare: Los trabajos de un jurisconsulto francés en Buenos
Normal Page
20 Aires. Buenos Aires: Imprenta de la Universidad, 1942.
PgEnds: TEX
21 Pinheiro, Paulo Sergio, ed. Crime, Violéncia e Poder. São Paulo: Brasiliense, 1983.
22 Pugliese La Valle, Maria Rosa. “Los asesores letrados de los alcaldes y del cabildo de
23 Buenos Aires (1810–1821).”Revista de Historia del Derecho (Buenos Aires), Instituto [167], (11)
24 de Investigaciones de Historia del Derecho, no. 19 (1991).
25 Quintano Ripollés, Antonio. La influencia del derecho español en las legislaciones his-
26 panoamericanas. Madrid: Ediciones Cultura Hispánica, 1953.
27 Quiroga de la Rosa, Manuel J. Sobre la naturaleza filosófica del derecho. Buenos Aires:
Universidad de Buenos Aires, Facultad de Derecho y Ciencias Sociales, Instituto
28
de Historia del Derecho, Colección de Textos y Documentos para la Historia del
29
Derecho Argentino, no. 9, 1956.
30
Radaelli, Sigfrido A. “Derecho patrio argentino y no derecho intermedio.” In Revista del
31
Instituto de Historia del Derecho, vol. 1. Buenos Aires: Imprenta de la Universidad,
32
1949.
33 Rafart, Carlos Gabriel, and Ernesto Bohoslavsky. “La frontera y la historia social del
34 delito: Un primer balance.” Historia y Cultura (La Paz, Bolivia) 27 (July 2001):
35 127–47.
36 Ravignani, Emilio. Asambleas constituyentes argentinas, seguidas de los textos constitu-
37 cionales, legislativos y pactos interprovinciales que organizaron políticamente la
38 nación. Buenos Aires: Talleres sa, Casa de Jacobo Peuser, 1937–38.
39 Rico, José María, regional coordinator. Seguridad ciudadana en Centroamérica: Di-
40 agnósticos sobre la situación. San José de Costa Rica: Instituto Interamericano
1 de Derechos Humanos, Mars Editores, 2000. Primera parte: Observaciones com-

2 partidas, 12–39.
3 Robbins, Bruce. The Phantom Public Sphere. Minneapolis: University of Minnesota Press,
4 1993.
5 Rock, David. Politics in Argentina, 1890–1930: The Rise and Fall of Radicalism. Cambridge:
Cambridge University Press, 1975.
6
Rodney, C. A., and John Graham. The Reports on the Present State of the United Provinces
7
of South America 1819. New York: Praeger Publishers, 1969.
8
Rodriguez, Adolfo Enrique. Cuatrocientos años de policía en Buenos Aires. Buenos Aires:
9 Editorial policial, 1981.
10 Romay, Francisco H. Historia de la policía federal Argentina. 2 vols. Buenos Aires: 1958.
11 ———. “La policía de Buenos Aires desde 1810 hasta 1815.” Boletín del Instituto de Inves-
12 tigaciones Históricas 3, no. 9 (July 1944–June 1945). Facultad de Filosofía y Letras,
13 Universidad Nacional de Buenos Aires. [168],
14 ———. “Rivadavia y la organización de la policía en el derecho patrio.” Revista de la
15 Facultad de Derecho y Ciencias Sociales 7, no. 28 (January–April 1952).
Rosti, Marzia. Modelli giuridici nell’Argentina indipendente, 1810–1910. Milan: Giuffre Lines:
16
17 Editore, 1999. ——
18 Rotker, Susana, ed. Citizens of Fear: Urban Violence in Latin America. New Brunswick nj, 3.0pt
Rutgers University Press, 2002. ———
19
Rousseaux, Xavier. “From Medieval Cities to National States, 1350–1850: The Historiog- Norma
20
raphy of Crime and Criminal Justice in Europe.” In Crime History and Histories PgEnd
21
of Crime: Studies in the Historiography of Crime and Criminal Justice in Modern
22 History, edited by Clive Emsley and Louis Knafla, 20–21. London: Greenwood
23 Press, 1996. [168],
24 Salvatore, Ricardo D. “Autocratic State and Labor Control in Argentine Pampas: Buenos
25 Aires, 1829–1852.” Peasant Studies 18, no. 4 (1991).
26 ———. “Criminology, Prison Reform, and the Buenos Aires Working Class.” Journal of
27 Interdisciplinary History 23, no. 2 (Autumn 1992).
28 ———. “ ‘El imperio de la ley’: Delito, estado y sociedad en la era rosista.” Delito y
29 Sociedad 3, nos. 4–5 (1994).
30 ———. “Reclutamiento militar, disciplinamiento y proletarización en la era de Rosas.”
31 Boletín del Instituto de Historia Argentina y Americana “Dr Emilio Ravignani” 5
(1992).
32
———. “Repertories of Coercion and Market Culture in Nineteenth-Century Buenos
33
Aires Province.” International Review of Social History 45, no. 3 (December 2000):
34
409–48.
35 ———. Wandering Paysanos: State Order and Subaltern Experience in Buenos Aires during
36 the Rosas Era. Durham nc: Duke University Press, 2003.
37 Salvatore, Ricardo, guest ed. “Criminal Justice History in Latin America: Promising
38 Notes.” Crime, History, and Societies 2, no. 2 (1988): 5–14, featuring articles by
39 Robert Buffington, Arlene J. Díaz, Marcos Luiz Bretaz, and Carlos Aguirre.
40 Salvatore, Ricardo, Carlos Aguirre, and Joseph Gilbert, eds. Crime and Punishment in
1 Latin America: Law and Society Since Colonial Times. Durham nc: Duke University
2 Press, 2001.
3 Sampay, Arturo Enrique, comp. Las constituciones de la Argentina (1810–1972). Buenos
4 Aires: Editorial Universitaria, 1975.
5 San Martino de Dromi, Maria Laura. Documentos constitucionales argentinos. Buenos
Aires: Editorial Ciudad Argentina, 1994.
6
Sarmiento, Domingo Faustino. Facundo, cvilización o barbarie. New York: Colección
7
Hispánica, 1961.
8
Scardaville, Michael C.“Alcohol Abuse and Tavern Reform in Late Colonial Mexico City.”
9 Hispanic American Historical Review 60, no. 4 (1980).
10 ———. Crime and the Urban Poor in the Late Colonial Period. PhD diss., University of
11 Florida, 1977.
12 ———. “(Hapsburg) Law and (Bourbon) Order: State Authority, Popular Unrest, and
13 the Criminal Justice System in Bourbon Mexico City.” The Americas 50, no. 4 [169], (13)
14 (April 1994): 501–26.
15 Scobie, James R. La lucha por la consolidación nacional. Buenos Aires: Academia Nacional
de la Historia, 1964. Lines: 469 to
16
17 Senado de la Nación. Biblioteca de Mayo. Colección de obras y documentos para la historia ———
18 argentina. Buenos Aires: Imprenta del Congreso de la Nación, 1966. 3.0pt PgV
Seoane, Maria Isabel. La enseñanza del derecho en la argentina: Desde sus orígenes hasta la ———
19
primera década del siglo XX. Buenos Aires: Editorial Perrot, Instituto del Derecho Normal Page
20
“Ricardo Levene,” 1981. PgEnds: TEX
21
Shumway, Nicolas. The Invention of Argentina. Berkeley: University of California Press,
22 1991.
23 Silva, Carlos Alberto. El poder legislativo de la nación argentina. Buenos Aires: 1937. [169], (13)
24 Silva Riestra, Juan. Evolución de la enseñanza del derecho penal en la Universidad de
25 Buenos Aires. Publicación del Instituto de Historia del Derecho Argentino VIII.
26 Buenos Aires: Imprenta de la Universidad, 1943.
27 Slatta, Richard W. Gauchos and the Vanishing Frontier. Lincoln: University of Nebraska
28 Press, 1983.
29 Slatta, Richard W., and Karla Robinson. “Continuities in Crime and Punishment: Buenos
30 Aires 1820–50.” In The Problem of Order in Changing Societies: Essays on Crime
31 and Policing in Argentina and Uruguay, edited by Lyman L. Johnson, 19–46. Albu-
querque: University of New Mexico Press, 1990.
32
Smith, Ricardo. Anotaciones al estudio de la historia del derecho en argentina. Córdoba:
33
Imprenta de la Universidad, 1942.
34
Socolow, Susana M. The Bureaucrats of Buenos Aires, 1769–1810: Amor al leal servicio.
35 Durham nc: Duke University Press, 1987.
36 ———. The Merchants of Buenos Aires, 1778–1810: Family and Commerce. Cambridge:
37 Cambridge University Press, 1978.
38 ———. “Women and Crime, 1757–1797.” Journal of Latin American Studies (May 1980).
39 Speckman Guerra, Elisa. Crimen y castigo: Legislación penal, interpretaciones de la crim-
40 inalidad y administracion de justicia (Ciudad de México, 1872–1910). Mexico City:
1 El Colegio de México e Instituto de Investigaciones Históricas. Universidad

2 Autónoma de México, 2002.
3 Staples, Anne. “Policía y buen gobierno: Municipal Efforts to Regulate Public Behavior,
4 1821–1857.” In Rituals of Rule, Rituals of Resistance: Public Celebrations and Popular
5 Culture in Mexico, edited by W. Beezley, C. H. Martin, and W. French. Wilmington
de: Scholarly Resources, 1994.
6
Szuchman, Mark D. “Disorder and Social Control in Buenos Aires, 1810–1860.” Journal
7
of Interdisciplinary History 11, no. 1 (Summer 1984).
8
———. Order, Family, and Community in Buenos Aires, 1810–1860. Stanford: Stanford
9 University Press, 1988.
10 Szuchman, Mark D., and Jonathan Brown, eds. Revolution and Restoration: The Rear-
11 rangement of Power in Argentina, 1776–1860. Lincoln: University of Nebraska Press,
12 1994.
13 Tau Anzoátegui, Victor. “Acerca de la fundamentación de las sentencias en el derecho [170],
14 patrio.” Revista del Instituto de Historia del Derecho. Buenos Aires: Imprenta de la
15 Universidad, no. 13, 1962.
———. La codificación en la Argentina (1810–1870): Mentalidad Social e Ideas Jurídicas. Lines:
16
17 Buenos Aires: Imprenta de la Universidad, 1977. ——
18 ———. “Los comienzos de la fundamentación de las sentencias en la Argentina.” Sepa- 3.0pt
rata de la Revista de Historia del Derecho, no. 10. Buenos Aires: 1982. ———
19
———. La ley en américa hispana: Del descubrimiento a la emancipación. Colección Norma
20
del Quinto Centenario del Descubrimiento de América. Buenos Aires: Academia PgEnd
21
Nacional de la Historia, 1992.
22 Tau Anzoátegui, Victor, and Eduardo Martiré. Manual de historia de las instituciones
23 argentinas. Buenos Aires: Editorial La Ley, 1971. [170],
24 Taylor, William B. Drinking, Homicide, and Rebellion in Colonial Mexican Villages. Stan-
25 ford: Stanford University Press, 1979.
26 Ternavasio, Marcela. La revolución del voto: Política y elecciones en Buenos Aires, 1810–1852.
27 Buenos Aires: Siglo Veintiuno Editores, 2002.
28 ———. “La supresión del cabildo de Buenos Aires: ¿Crónica de una muerta anunciada?”
29 Boletín del Instituto de Historia Argentina y Americana “Dr. Emilio Ravignani” 3,
30 no. 21 (2000): 33–74. Buenos Aires, Facultad de Filosofía y Letras de la Universidad
31 de Buenos Aires.
Tomas y Valiente, Francisco. El derecho penal de la monarquía absoluta. Madrid: Editorial
32
Tecnos, 1969.
33
———. Manual de historia del derecho español, 4th edition. Madrid: Editorial Tecnos,
34
1983.
35 Torre Revello, José. Crónicas del Buenos Aires colonial. Buenos Aires: Editorial Bajel, 1943.
36 Trostiné, Rodolfo. José de Darregueyra, el primer conjuez patriota (1771–1817). Publicación
37 del Instituto de Historia del Derecho Argentino XI. Buenos Aires: Imprenta de la
38 Universidad, 1945.
39 Urban, Greg, and Joel Sherzer, eds. Nation-State and Indians in Latin America. Austin:
40 University of Texas Press, 1994.
1 Uribe-Urán, Victor. Honorable Lives: Lawyers, Families, and Politics in Colombia, 1780–
2 1850. Pittsburgh: University of Pittsburgh Press, 1999.
3 Uribe-Urán, Victor, ed. State and Society in Spanish America during the Age of Revolution.
4 Wilmington de: Scholary Resources, 2001.
5 Vance, John Thomas. The Background of Hispanic-America Law: Legal Sources and Judicial
Literature of Spain. New York: Central Book Company, 1943.
6
Van Kleffens, E. N. Hispanic Law until the End of the Middle Ages. Edinburgh: Edinburgh
7
University Press, 1968.
8 Varela, Florencio. “Disertación sobre los delitos y las penas (1827).” Revista de Legislación
9 y Jurisprudencia, vol. 5. Buenos Aires: Imprenta de La Prensa, 1870.
10 Vigil, Ralph H. “Oidores Letrados and the Idea of Justice, 1480–1570.” The Americas 47,
11 no. 1 (1990).
12 Vogel, Hans. “Elements of Nation Building in Argentina: Buenos Aires, 1810–1828.” PhD
13 diss, University of Florida, 1987. [171], (15)
14 Walker, Charles F. Smoldering Ashes: Cuzco and the Creation of Republican Peru, 1780–
15 1840. Durham nc: Duke University Press, 1999.
Wiener, Martin J. Reconstructing the Criminal: Culture, Law, and Policy in England, 1830– Lines: 543 to
16
17 1914. New York: Cambridge University Press, 1990. ———
18
Weisser, Michael. “Crime and Punishment in Early-Modern Spain.” In The Social History * 49.52402p
of Crime in Western Europe since 1500, edited by V. A. C. Gatrell, Bruce Lenman, ———
19
and G. Parker. London: University of London Press, 1980. Normal Page
20 Zaffaroni, Eugenio Raúl. Hacia un realismo jurídico penal marginal. Caracas: Monte Avila * PgEnds: Page
21 Editores, 1993.
22 ———. Manual de derecho penal, parte general. Mexico City: Ediciones Cárdenas, 1988.
23 ———. “The Right to Life and Latin American Penal System.” Annals of the American [171], (15)
24 Academy of Political and Social Sciences 506 (November 1989).
25 Zaffaroni, Eugenio Raúl, coordinator. Sistemas penales y derechos humanos en América
26 Latina (informe final): Documento final del programa de investigación desarrollado
27 por el Instituto Interamericano de Derechos Humanos, 1982–1986. Buenos Aires:
28 Ediciones Depalma, 1986.
29 Zimmermann, Eduardo, ed. Judicial Institutions in Nineteenth-Century Latin America.
London: University of London, Institute of Latin American Studies, 1999.
30
Zorraquín Becú, Ricardo. “Estudios de historia del derecho.” In Instituto de Investiga-
31
ciones de Historia del Derecho. Buenos Aires: Abeledo-Perrot, 1988.
32 ———. Historia del derecho argentino. Buenos Aires: Editorial Perrot, 1966.
33 ———. La organización judicial Argentina en el período hispánico. Buenos Aires: Librería
34 del Plata, 1952.
35 ———. La organización política en el período hispánico. Buenos Aires: Emecé Editores,
36 1959.
37
38
39
40
1
2
3
4
5
6
7
8
9
10
11
12
13 [172],
14
15
Lines:
16
17 ——
18 0.0pt
———
19
Norma
20
PgEnd
21
22
23 [172],
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
1
2
3
4
5 Index
6
7
8
academia de jurisprudencia: lawyer training Audiencia of Buenos Aires: alcalde judgments
9 by, 76–78; penal-legal procedures and, 116; and, 44–45; criminal justice and, 32–38;
10 penal reforms and, 72–73, 85–86; postcolo- criollo judges on, 49, 53–54; establishment
11 nial law and, 10 of, 1, 23–24, 131n17; jail inspections by, 64–
[First Page]
12 Alberdi, Juan Bautista, 48, 78–80, 86–87 66; judicial authority and, 46, 114; loss of
13 alcaldes de barrio: defined, 24; independence power by, 37–38; penal-legal procedures [173], (1)
and reform of, 54, 96, 150n42; loss of and, 29–30, 89. See also alcaldes de barrio;
14
power by, 36–37; penal-legal procedures judiciary
15 and, 29–30, 89; policing role of, 35–36, 63; authoritarianism: institutional power and, Lines: 0 to 1
16 postcolonial law and, 62–63; role of, 38–42, 5; military power and, 119; Spanish royal,
17 101. See also Audiencia of Buenos Aires; 14–21 ———
18 judiciary Avellaneda, Marco, 81t, 83 0.0pt PgV
Alem, Leandro N., 118 ———
19
Alfonso VII, 15 bandos: defined, 24; postcolonial, 61–64, 110; Normal Page
20
Alfonso X, 16–18, 127n13 viceroy’s role in, 33 PgEnds: TEX
21 Alfonso XI, 18 Barrenechea, J., 97
22 Alsina, Valentín, 70, 74, 77, 81t, 85 Beccaria, Cesare Bonesana, 21–23, 71, 79–81,
23 Alvarez, Francisco, 102 85–86, 108–9 [173], (1)
24 Alvarez, José María, 77–78 behavior, punishment for, 110
Americas, Spanish exploration of, 19–21 Bellemare, Guret, 51, 73–75, 79, 86, 102
25
anarchy of 1820, 61–62 Bentham, Jeremy, 76–77, 80–83, 109
26 Anchorena, Tomás de, 98 Blumberg, Axel, 121
27 Ancient Regime, 7, 15, 18, 127n7 Bonaparte, Napoleon, 50
28 Aquinas, Thomas, 21 Bourbons of Spain, 23, 28, 32
29 arbitration, judicial, Reluctant Litigators the- Brazil, 75
30 ory and, 6–7 Buenos Aires: chronology of political author-
Arca, Fernando del, 81t, 82 ity in, 11–12t; constitution of 1853, 134n1;
31
Argentina: democracy in, 4–5; independence English invasion of, in 1806, 25, 37; fed-
32 as nation-state, 7; junta of 1810 and, 7–9, eralization of, 118; as government capital,
33 13, 48, 53; national constitution of 1853, 1, 23–24; as province, 49, 90, 134n8; regional
34 48–49. See also Río de la Plata, Viceroyalty subordination to, 121–22
35 of; United Provinces of the Río de la Plata
36 Argentine Confederation, 48, 134n1 cabildo, 54, 96. See also alcaldes de barrio
El Argos de Buenos Aires, 69–71, 136n19 Cámara de Apelaciones (Cámara de Justicia),
37
Arredondo, Manuel de, 33, 35–36 51, 53, 56, 60–61, 66, 72, 88, 109–10
38 Arredondo, Nicolás de, 11t, 34 Campo, Nicolás del. See Loreto, Marqués de
39 Arslanián, Leon Carlos, 120 Cané, Miguel, Sr., 81t, 84
40 asylum, 15, 29–30 canon law, 77
174 index
1 Caravia, Bernabé, 82–83 corporeal punishment. See punishment

2 Carnaval, 25, 64 Council of Indies: colonial law and, 20, 28;
Castillian law, 15–21 Fuero Real and, 17; judicial authority of,
3
Castro, Alfonso de, 21, 71 33–35, 46; postcolonial law and, 56
4 Covarrubias y Leiva, Diego, 21, 71
Castro, Manuel Antonio de, 52, 55, 58, 72–73,
5 75, 77–80, 85–87, 99, 111–12 crime: bandos for control of, 24–26; behavior
6 Catholic Church: canon law, 77; fueros, 14–15; as, 110; defining, 3–4, 72–76, 83–84; judicial
7 Ordenamiento de Real and, 19; right of imprisonment and, 66; law enforcement
8 sanctuary and, 29–30. See also religion for, 34–35; penal types of, 51; population
caudillo, 79 growth and, 31, 51–52; urban, 3
9
Celto-Iberian customary law, 13 criminal index (From Violence to Theft the-
10 El Censor, 55–56 ory), 3
11 Christianity, and penal law, 22 criminal justice system: academia de jurispru-
12 Cisneros, Baltasar Hidalgo de, 11t, 13, 48 dencia and, 72–76; alcaldes and the, 38–42;
13 citizenship, rights of, 103–4 Argentine, 1–3; Audiencia of Buenos Aires [174],
civil law, 76–77, 144n35 and, 28, 32–38; budgetary limitations on,
14
Classic School of Criminology, 80, 145n46 90–93; defined, 5; European influence on,
15 3, 80, 85; institutional development of, 53–
coercion: institutional power and, 119; role Lines:
16 of military in, 5; social control by, 9; state 60; institutional power and, 99–103, 120–
17 formation and, 126n40; witness, 41 22; judicial conflict within, 94–99; justice ——
18 colonial audiencia. See Audiencia of Buenos commissions and, 94; military coups and, 0.0pt
Aires 119–20; penal-legal procedures in, 23–26, ———
19
colonial government: establishment of, 23–24; 29–32; politics and, 115; Spanish law and, Norma
20
judicial authority in, 20–21; viceroy’s role 114; systems of, 79. See also colonial law; PgEnd
21 in, 32–33 postcolonial law; Spanish law
22 colonialism: chronology of political authority criminal law: arbitrariness of, 129n40; fueros
23 in, 11t; formation of penal system in, 3– and, 14–21; jury system and, 73–74; lack of [174],
24 4; Reluctant Litigators theory and, 6–7; evidence and, 109; local interpretation of,
25 revolution of 1810 and, 7–9; transitional 21–23; Muslim legislation and, 127n6; Siete
periods from, 1–2 Partidas and, 84; University of Buenos
26
colonial law: Bourbon influence on, 32; Eu- Aires and, 76–78, 80–82. See also penal
27 ropean influence on, 80, 85; fueros and, code
28 58; independence and transition from, criollos: Bourbon influence over, 28; defined,
29 13–14, 49–53; punishment and, 84; royal 124n29; English invasion of 1806 and, 25;
30 authority and, 18, 114; Spanish colonization junta of 1810 and, 7, 13, 48, 53
and, 19–21. See also penal-legal procedures; Cruz Cabral, Eulogio, 83
31
postcolonial law; Recopilación de las Leyes Cruz Cordero, Fernando, 84–85
32 de Indias; Spanish law Cueto, Bartolomé, 102, 105–6, 110
33 Comisión de Justicia, 94 customary law, 19, 84
34 Consejo Real de Indias, 20
35 Constant, Benjamin, 82, 86 death penalty: Audienca of Buenos Aires
36 constitution: of 1853, 1, 48–49, 56–57, 94, 117, and, 44–45; debates over, 74, 82–83, 86,
134n1; conventions of 1819 and 1826, 57, 102; independence and application of, 110–
37
79–80, 86; current reforms in, 120; impor- 12; punishment by, 30; student theses on,
38 tance in society, 78; individual rights and, 146n53
39 105; judiciary and the, 116; and legislation Decree of Individual Securities of 1811, 56,
40 delays, 99; military intervention and, 119 144n32
index 175
1 decreto, 19, 128n25 Filangieri, Gaetano, 82, 86

2 defense attorneys, 4, 41–44, 108–9. See also France, 74–75, 86
3 lawyers freedom of speech, 103
democracy, 4–5, 119–22 From Violence to Theft theory, 3
4
derecho indiano, 19, 27 Fuero Juzgo, 14–21
5 discrimination, 17, 24–25, 37, 103–4, 107 Fuero Real, 15–16, 127n13
6 divine law, 76 Fuero Viejo de Castilla, 15
7 Dorrego, Manuel, 12t, 74–75
8 due process, 2, 88–89, 115 García, Baldomero, 95–96, 98
9 Garcia Zuñiga, Victorio, 93
ecclesiastical law, 29–30, 58 gender, criminal justice and, 42
10
Echeverría, Esteban, 69–70, 78, 145n37 generation of 1837, 69–70, 77–78, 86
11
education, legal, 72, 77–78, 80–82 generation of 1880, 118
12 egalitarian justice, 103 Gonzáles Peña, Lucas, 95–96, 106
13 enforcement, penal system, 29–32 Gothic law, 13
[175], (3)
14 England, 25, 37, 74–75, 86 government. See colonial government; jun-
15 Enlightenment: concept of man in, 77–78; tas; philosophical thought; postcolonial
criminal law and, 21–23, 83; individual government Lines: 201 to
16
rights and, 108–9; legal tradition and, 70– Graham, John, 13 ———
17
18
71; political thought and, 103 Gutiérrez, Juan María, 78 0.0pt PgV
entertainment, bando control of, 25, 64 ———
19 equality before the law: citizenship and, 103– Heredia, Alejandro, 85 Normal Page
20 4; discrimination in, 17; ethnicity and, human rights, 103
PgEnds: TEX
21 134n53; fuero abolishment for, 57–58; teach-
22 ing, 77 Iberian Peninsula. See Spain
ethnicity: citizenship and, 104; equality and, Ilustración Española, 22
23 [175], (3)
134n53; fueros and, 58; punishment and, imprisonment: and jail inspections, 64–65;
24 43–44, 63. See also racial status; social class lengths of, 30–31, 37, 40, 45; nonjudicial,
25 Europe: influence on penal law, 80; judicial 65, 142n85. See also punishment
26 organization in, 3, 74–75; legal traditions independence: chronology of political au-
27 from, 77–79; Reluctant Litigators theory thority after, 11–12t; colonial law and, 49–
28 and, 6–7 53, 60–64; court power and, 38; institu-
29 evidence: court use of, 40–42; customary law tional development after, 53–60, 69–70,
and, 84–85; independence and rules of, 50; 116–17; intermediate law and, 48–49; re-
30
lack of, 43, 108–9; gathering, methodology form after, 51–53; and revolution of 1810,
31 for, 4 7–9, 13; transitional periods to, 1–2, 48–49,
32 executive authority: imprisonment by, 142n85; 90
33 and jail inspections, 65–66; judicial func- innocence, proving, 41–42
34 tioning by, 60–61, 92; judicial intervening institutional fueros, 14
35 by, 54, 95–99, 115–16, 120; military inter- institutional power: academia de jurispruden-
vention and, 119–20; public safety and, 88; cia and, 72; criminal justice system and,
36
selection of judges by, 93–94, 99 99–103; fueros and, 14–15; independence
37
and consolidation of, 60–64, 78; jail in-
38 family law, 77 spections and, 64–66; judiciary and, 79–80,
39 Ferdinand III, 16, 18, 127n13 88–94, 116; judiciary subordination to, 1;
40 Ferdinand VII, 50 juntas and, 53–54; of police and military,
176 index
1 institutional power (continued) and colonial government, 24; Council of

2 2, 5, 58–59, 62, 118–19; political instability Indies on, 34–35; criminal typology and, 4;
3 and, 69–70; politics and, 118–19 judicial procedures and, 2–3, 38–39, 142n85;
intermediate law, 48–49, 61–64 police intervention in, 75; professionalism
4 of, 118–19; public safety and, 62–63; Reluc-
interrogation, methods of, 4, 104
5 Islamic law, 14–15, 127n6 tant Litigators theory and, 6–7. See also
6 military; police
7 jail escapes, 31–32 laws of privilege, fueros as, 14–16
8 jail inspections, 64–66 lawyers, 72–73, 77–78, 80–81; training of, 72,
jail time, 40 77–78. See also defense attorneys; public
9
judicial process, methods of, 4 attorneys
10 legal procedures. See penal-legal procedures
judiciary: abuse of power and, 79–80; bud-
11 legal tradition: codification of Argentine, 13,
getary limits on, 90–93, 115–16; colonial
12 law adaptations by, 52–53, 60–64; crimi- 48–49; colonial criminal law and, 13–14;
13 nal typology and, 4; independence and,
independence and, 7–9, 70; Reluctant Liti- [176],
gators theory and, 6–7; Spanish origins of,
14 2; internal conflict within, 94–99, 116; jail
7, 70–71; teaching of, 76–78
15 inspections by, 64–66; jury system and,
Lerminier, Jean Louis, 78, 86–87 Lines:
16 73–74; limiting authority of, 1, 85, 87–88;
Levene, Ricardo, 7, 19, 48
military relationship with, 59–60, 119–20; ——
17 Leyes de Estilo, 17–18
18
postcolonial reorganization of, 54–60, 71,
Leyes de Toro, Ordenamiento de Real and, 19 0.0pt
74–75; reglamento of 1811 and, 50; return to ———
19 Liniers, Santiago de, 11t, 37
democracy and, 120–22; role of, 27, 72–73, Norma
López, Angel, 146n53
20 115. See also academia de jurisprudencia;
Loreto, Marqués de, 11t, 33–34 PgEnd
21 alcaldes de barrio; Audiencia of Buenos
22 Aires
Mably, Abbe de, 86, 146n56
judges, selection of, 99, 120
23 Mata Linares, Benito María de la, 37 [176],
juntas: of 1810, first criollo, 13, 48; chronol-
24 media role in penal system, 5
ogy of political authority in, 11t; judicial
25 Menem, Carlos, 120
changes by, 53–60; political instability and,
Mexico: Bourbon influence in, 28; colonial
26 50
government in, 24; criminal justice in, 35,
27 jurisprudence, 76–77, 84, 118, 145n39
47; judicial institutions in, 88; postcolonial
28 jury system, 73–74, 75, 143n18, 143n24
criminal law in, 22–23
29 justice commissions, 94 military: fueros, 14–15; government coups by,
justices of peace, urban, 54, 96–98, 150nn42– 119–20; judicial authority and, 58–59; judi-
30
43 ciary relations with, 89; right of sanctuary
31 Justinian law, 16 and, 130n7; role in society, 5, 35–36, 59;
32 service as punishment, 30–31, 110–11; war
33 Lardizábal y Uribe, Manuel, 22, 85 with Brazil, 75. See also law enforcement;
34 Latin America: authoritarianism in, 5; mili- police
35 tary fueros in, 15; penal system in, 70–71; Mitre, Bartolomé, 7
Reluctant Litigators theory and, 6–7; Siete Montalvo, Alfonso Díaz de, 19
36
Partidas in, 16; state formation and reform Montesquieu, Baron de La Brède et de
37
in, 2–3, 117 (Charles-Louis de Secondat), 1, 21–23,
38 Lavalle, Juan, 12t, 93 71, 82, 86, 122
39 law, science of, 78 municipal asylum, 15
40 law enforcement: abuses in, 35–36, 106–7; municipal fueros, 14–18
index 177
1 Muslims on Iberian Peninsula, 14 dencia and, 72–76; death penalty and, 83;
2 jurisprudence and, 81–82, 103; origins of,
nation building–national identity. See Ar- 1, 21–23, 71; Positivist, 85, 117–18; Siete Par-
3
gentina; state formation/reform tidas and, 145n39; University of Buenos
4 Aires and, 76–77. See also Enlightenment;
natural law, 78, 83
5 nobility fueros, 14–17 politics
6 Novísima Recopilación, 19, 61 Planes, Francisco, 93, 104
7 plea bargaining, 40
8 Ordenamiento de Alcalá, 17–18 pluralism, 4–5
Ordenamiento de Real, 19 police: alcaldes and, 63, 101–2; budgetary
9
Ordenanzas Reales de Castilla, 19 support of, 91; delays by, 61, 99–100; in-
10 stitutional power of, 2; judicial authority
order, maintenance of social, 2
11 of, 92–93, 115; military relations with, 5;
Ortiz de Oroño, Saturnino, 98
12 nonjudicial imprisonment by, 65; rela-
13 tions with judiciary, 1, 5, 75, 89; return [177], (5)
Pacheco, José Manuel, 82
14 to democracy and, 120–22. See also law
patriotic law, 48
enforcement; military
15 Paz, Marcos, 81t, 83
political conspiracies, 63 Lines: 406 to
16 Pazos Silva, Vicente (Pazos Kanki), 55
political instability: anarchy of 1820, 61–62;
17 penal code: defining, 29, 72; democracy and,
criminal justice system and, 103–4; inde-
———
18
119–22; development of, 1, 13, 21–23, 51–53,
pendence and, 2, 69–70; judiciary reorga- 0.0pt PgV
105; individual rights and, 56; proposals ———
19 nization and, 60, 75, 93–94; military coups
for, 73–75, 99; republican framework for, Normal Page
and, 119–20; return to democracy and,
20 70–71; Siete Partidas and, 51; social control
120–22; social order and, 114–15; war with PgEnds: TEX
21 and, 27; Tejedor project as, 117–18
Brazil and, 75
22 Penal Code of 1822, 23
politics: alcaldes and revolutionary, 62–63;
23 Penal Code of 1886, 13, 87, 142n90 chronology of leadership, 11–12t; criminal [177], (5)
penal law, 77, 80
24 justice system and, 115; institutional power
penal-legal procedures: academia de jurispru- and, 118–19; jail inspections and, 64–66;
25 dencia and, 72–76; colonial adaptations judicial appointments and, 75, 93–94, 97–
26 of, 29–32; colonization and, 19–21; legal 98; judiciary budgets and, 90–93; judiciary
27 architecture of, 4, 9; of postcolonial gov- reorganization and, 60; lawyers in, 80–81;
28 ernment, 99; as punitive system, 1; Siete nonjudicial imprisonment and, 66; return
29 Partidas and, 18; social control by, 114 to democracy and, 119–22; role of military
penal system: academia de jurisprudencia and, in, 5. See also philosophical thought
30
72–76; colonial law and, 23; colonial rule population growth, 24, 30–31, 40–41, 101
31 and, 23–26, 114; fueros and Spanish, 14–21, porteño society, 2, 7–9, 123n2
32 127n7; jail inspections and, 64–66; legal Positivist school of criminology, 85, 117–18,
33 architecture of, 13–14, 72–76; origins of, 145n46
34 1–2, 49, 86–87, 117–18, 121; reforms after postcolonial government: institutional de-
35 independence, 49–53; Reluctant Litigators velopment in, 53–60; judicial authority
theory and, 5–6; role of, 29–32, 79; Siete in, 92–93; political conspiracies and, 63;
36
Partidas on, 16–18 political instability in, 48–53; transition to,
37
personal fueros, 14–16 90
38 Peru, 24, 28 postcolonial law: fuero abolishment from,
39 Philip II, 19 57–58; intermediate law and, 48–49; philo-
40 philosophical thought: academia de jurispru- sophical thought and, 145n39; reform and,
178 index
1 postcolonial law (continued) 57, 74–75; national organization period

2 49–53; transition to, 13–14, 60–64, 84–85. in, 78; penal framework for, 3–4, 70–80;
3 See also republican system politics and, 115; social control in, 9. See
Pragmática, 19, 128n25 also postcolonial law
4 resistance movements, 2, 13–14
profiling, criminal, 24–25
5 prosecution, discrimination in, 17 revolution of 1810. See juntas
6 prosecutors, 4, 41–44, 94–96, 98–99, 109 rights and guarantees, individual: due process
7 provincial governors of Buenos Aires, 12t and, 115; enforcement of, 88; of Enlight-
8 public attorneys, 98–99, 107–9. See also enment, 108–9; government acceptance of,
lawyers 103; independence and, 105; ratification
9
public notaries, 93, 98–99 of, 139n52, 144n32; reglamentos for, 54–56;
10 teaching, 77
Pueyrredon, Juan M. de, 11t, 63
11 punishment: abuse and violence as, 35–36; Río de la Plata, Viceroyalty of: criollo junta
12 appeals process for, 109–10; Audiencia of 1810, 13; criminal justice system of, 1, 5;
13 moderation of, 44–45; bandos and, 24– establishment of, 23–24, 28; independence [178],
14 26, 63; codification of, 15; corporeal, 31– and, 7–9
32; death penalty as, 74, 82–83, 110–12; Rioplatense, 7
15
Enlightenment philosophy of, 21–23; in- Rivadavia, Bernardino, 8–9, 11t, 51, 54, 60, 63, Lines:
16 70, 77, 86, 101, 144n29
terrogation methodology and, 4; lack of ——
17 Roman law, 13, 16–18, 76–77, 105
18
evidence and, 109; military service as, 30–
Rosas, D. Gervacio, 55 0.0pt
31, 110–11; political instability and, 61–62; ———
19 Rosas, Juan Manuel de, 8–9, 12t, 48, 55, 60,
postcolonial debate over, 72–76, 79–80;
62–64, 69, 75–76, 78, 101 Norma
20 public works as, 30–32, 45–46; Reluctant
Rousseau, Jean-Jacques, 21–23, 71, 82, 86 PgEnd
21 Litigators theory and, 6–7; right of sanc-
Royal Audiencia of Buenos Aires. See Audi-
22 tuary and, 29–30; Siete Partidas on, 17, 84;
encia of Buenos Aires
social class and, 17, 24–26, 37; torture as,
23 Ruckauf, Carlos, 120 [178],
41, 47
24 Rufino, Felipe José, 83
25 Quesada, Vicente, 81t, 85
Sáenz, Antonio, 76–77, 144n29
26
Salón Literario of Buenos Aires, 69–70, 78
27 racial status, 19–21, 37, 41–43. See also ethnic- sanctuary, right of, 29–30, 130n7
28 ity; social class Sarmiento, Domingo Faustino, 7–8
29 Real Cédula, 19, 29, 109, 128n25 Sastre, Marcos, 78
Recopilación de las Leyes de Indias, 20, 27, Secondat, Charles-Louis de. See Montesquieu,
30
49 Baron de La Brède et de
31 Recopilación of 1567, 19 Seguí, Miguel Esteves, 81t, 85
32 reglamento: of 1811, 50; of 1812, 54–56; of 1813, sentencing: based on law, 57, 105–6; limiting
33 61; of 1817, 50–51, 56–57; executive author- judicial influence on, 84–85; methodolo-
34 ity and, 54; social order and, 115 gies, 4; publication of verdicts and, 111–12
35 religion, 25, 58, 78. See also canon law; Cath- settlements, out-of-court, 40
olic Church; ecclesiastical law Siete Partidas (Seventh Partidas): codifica-
36
Reluctant Litigators theory, 6–7 tion of, 127n13; colonial law and, 23, 27;
37
republican system: academia de jurispruden- independence and, 51; national penal code
38 cia in, 72–76; colonial law in, 52–53, 69–70, and, 118; penal-legal procedures of, 16–21,
39 84; criminal justice in, 1–2, 49–53; fueros 53, 70; philosophical thought and, 145n39;
40 and, 15; judiciary reorganization and, 56– punishment and, 84
index 179
1 slavery. See racial status intervention in, 120; military intervention

2 social class: criminal justice and, 3, 6–7, 39– and, 119; state formation/reform in, 117
3 42; equality and, 134n53; fueros and, 58; Tejedor project, 117–18
individual rights and, 107; nobility as, 14– testimony, 4, 39–42, 47, 92
4
17; punishment and, 17, 24–26, 29–30, 37, Tomás y Valiente, Francisco, 21
5 109–10; stereotyping by, 46–47, 104. See Torquemada, Antonio de, 21
6 also racial status torture, 41, 47
7 social control: anarchy of 1820 and, 61–62; transitional periods: Argentine history, 1–
8 authoritarianism and, 119; Council of In- 2; chronology of authority in, 11–12t;
9 dies and, 34–35; death penalty and, 82, colonial law adaptations in, 60–64; colo-
110–12; imperial design of colonial, 23–27; nial/republican, 9; to democracy, 4–5;
10
judicial procedures and, 2–3; judiciary re- institutional experimentation in, 53–60;
11 organization and, 55; penal system and, 27, intermediate law in, 48–49; national or- [Last Page]
12 51–52, 114; political instability and, 50–53; ganization period, 78, 117; and return to
13 public safety and, 62–63; role of military democracy, 120–22 [179], (7)
14 in, 5; understanding policies of, 8–9 Tribunal de Justicia, 52–53, 60–61, 88, 90–93
15 social order, 76–77, 101, 114–15
society, civil: constitution in, 78; criminal Unión Cívica Radical Party, 118 Lines: 575 to
16
justice reform in, 122; judiciary and, 1; United Provinces of the Río de la Plata, 50,
17 ———
military in, 5; public safety and, 62–63; 69, 71, 78. See also Argentina
18 social control and, 3 United States of America, 74–75, 86
12.06401p
———
19 Somellera, Pedro, 76–77, 86, 144n29 University of Buenos Aires: creation of, 72;
criminal justice system and, 10, 116–17;
Normal Page
20 Spain: colonial law and, 13–14, 114; criminal
law in, 129n40; Enlightenment philosophy criminal law and, 76–80, 86; lawyer train- PgEnds: TEX
21
in, 21–23; Muslim invasion of, 14–16 ing at, 80–82
22 Uriburu, José Félix, 119
Spanish law: Argentina and, 2; colonial adap-
23 [179], (7)
tations of, 29–32; colonial decline and, 70–
24 71; colonial rule and, 23, 105; fueros and, Valencia, Miguel, 146n53
25 14–21; Muslim legislation and, 127n6; Re- Varela, Florencio, 80–81
26 luctant Litigators theory and, 6; teaching, Vélez Gutiérrez, Bernardo, 75
76–77 viceroyalty, 32–34, 46, 64–66. See also Río de
27
state formation/reform: Argentine, 1–2, 7; la Plata, Viceroyalty of
28 victimization of the poor: criminal justice
Bourbon influence on, 23, 28; constitu-
29 and, 6–7, 39–42; defense attorneys and, 93;
tion of 1853, 48–49; criminal justice system
30 in, 89–90; dynamics of, 3–4; justice in, Siete Partidas on, 17; social control and, 3
31 13–14; penal-legal procedures in, 121–22; Villademoros, Carlos, 143n24
32 reglamento of 1817, 56–57; social control Villanueva, Francisco, 83
Visigothic law, 13
33 and, 3; transitional periods in, 117
34 sumario writing: importance of, 38–40, 46,
99–100, 114, 133n49; imprisonment and, weapons, regulations and penalties for, 62,
35 110
142n85; judicial conflict and, 94–95; mil-
36 itary control of, 59; police control of, 97, witnesses, 39–42, 92, 99–100
37 101–3, 106–7 women, criminal justice and, 42
38 Supreme Court of Argentina: creation of,
Yrigoyen, Hypólito, 118–19
39 54, 88; early proposals for, 57; executive
40

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Crime and the

Written and translated

1 1. The opening statement (auto cabeza de proceso) by law enforce-

1 Second, European historians have developed the Reluctant Litigators theory.

1 Chapter 3 examines the administration of criminal justice in colonial Buenos

1 Municipal fueros reﬂected strong notions of regionalism that characterized

1 This piece of legislation demonstrates that the legal trend of Romanization of

1 Successive compilations of laws attempted to systematize Spain’s bulky legal

1 persion that minimized, according to Bufﬁngton, the contradictions between

1 spurred colonial authorities to employ new mechanisms of social control. That

1 Spanish Laws, Porteño Procedures

1 of ten years in prison, while some restrictions in the application of additional

1 The Council supported Arredondo’s position, and as a consequence, not only

1 Without the possibility of obtaining rapid support from the Council of

1 despite his claims of innocence, “contributing to my decision to accuse him

1 Table 2. Homicide Cases Reviewed by the Audiencia, 1785–1810

1 a changing society. Furthermore, they recognized that these laws contradicted

1 ipation of neophytes (justicia lega). Article number 35 as well as others, like

1 Partial modiﬁcations of the laws also reﬂected changes in political circum-

1 by working the required number of hours stipulated in the 1813 reglamento.

1 so-called anarchy of 1820, harsh punishments were a common feature in the

1 under their extrajudicial responsibility. This practice created many problems

1 of previous judicial practices, many reglamentos were passed in an attempt

1 Although intellectually diverse, representatives of both the liberal experi-

1 The academia de jurisprudencia became one of the forums where jurists

1 country.”22 He compared the British, French, and North American legislation,

1 that jurisprudence needed to be redeﬁned as a science, following the scientiﬁc

1 cording to the law. Furthermore, Bernabé Caravia reverted Bentham’s principle

1 the state’s capacity to sanction behavior deﬁned as criminal. As Miguel Cané

1 The wars of independence, the postcolonial institutional organization, and

1 fewer functions than their counterparts in the countryside. Without speciﬁc

1 appeals court was supposed to act as intermediary in order to guarantee the

1 The intervention of executive authorities in judicial affairs and their role

1 ﬁnished and criminals punished. The judicial practice of reporting pending

1 translate the new political discourse in judicial terms, defendants preferred

1 of the new criminological paradigm, executive authorities pressured them for

1 conspirators, and traitors by executive authorities. In 1826, for example, Castro

1 of superintendence of the appeals court was undermined and challenged from

1 Finally, it is important to state that Argentines should take Montesquieu’s

1 38. Blasco y Fernández de Moreda, Lardizábal: El primer penalista de América Española,

1 in ahpba, Real Audiencia, 7.1.97.4, Criminal contra Juan de la Crúz Alvarez, p. 29

1 para la historia argentina, vol. 18, Antecedentes, documentos políticos y legislativos,

1 ogy of Latin American Constitutionalism, 1810–1860,” Research Reports and Notes

1 dicial procedures for misdemeanors: Law passed by the Sala de Representantes on

1 Biblioteca de Mayo, Colección de obras y documentos para la historia argentina, vol.

1 the same period. Candioti, Bibliografía doctoral de la Universidad de Buenos Aires y

1 building in Argentina is Slatta and Robinson, “Continuities in Crime and Punish-

1 Romay, “Rivadavia y la organización de la policía en el derecho patrio,” 133–49; and

1 vol. 1: The System of Criminal Justice. Cambridge: Cambridge University Press,

1 ———. “Women, Peonage, and Industrialization, Argentina, 1810–1914.” Latin American

1 ———. Vivir en la frontera: La casa, la dieta, la pulpería, la escuela, 1770–1870. Buenos

1 de Derechos Humanos, Mars Editores, 2000. Primera parte: Observaciones com-

1 El Colegio de México e Instituto de Investigaciones Históricas. Universidad

1 Caravia, Bernabé, 82–83 corporeal punishment. See punishment

1 decreto, 19, 128n25 Filangieri, Gaetano, 82, 86

1 institutional power (continued) and colonial government, 24; Council of

1 postcolonial law (continued) 57, 74–75; national organization period

1 slavery. See racial status intervention in, 120; military intervention

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