This book considers how lower-class Peruvians reconciled everyday behavior with the strict norms established by church, state, and the public at large. While the public in late-nineteenth-century Peru established premarital virginity, patriarchal sovereignty, and the indissolubility of marriage as absolute norms, most Peruvians were unable to follow such rules. Public preoccupation with virtue and honor is evident in contemporary literature and contributions to national and regional newspapers, where the ideal woman was described as the guardian angel of the home.
Despite such concern for moral norms, the near-unattainable standards set by public discourse were defied in everyday life by the population in general. Among the lower classes, many women worked outside of the domestic arena, moving freely in the streets and markets. Young women sold their family's produce at the market or ran errands, unchaperoned, exposing themselves to contact with potential seducers. Couples cohabited without ecclesiastical blessing and separated from spouses despite formal wedding ceremonies in a church.
Regardless of these departures from publicly accepted norms, however, lower-class women and men displayed great concern for their reputation, as can be seen from criminal trial transcripts preserved to the present day. How did they reconcile their behavior with the norms that they purported to adopt as their own?
This book seeks to offer insights into the tensions that developed as a result of multiple, overlapping gender codes in a northern departamento (largest administrative unit in the Peruvian state, divided into provinces and districts) of nineteenth-century Peru. By studying criminal trial transcripts in the Archivo Departamental de Cajamarca, I have been able to analyze intimate gender relations and how Cajamarcans of different social standing dealt with codes of honor and respectability. One of my main concerns has been to understand official, state-sanctioned gender discourse, the ways in which lower-class practice differed from this, and how the encounter between official norms and popular practice was negotiated in the legal arena. To this purpose I analyze marital practice, the role of honor in provincial society, premarital sex, and relationships among women.
The predominant theme—the tension between official and popular gender norms—lies embedded in the very nature of the sources. While using judicial records for historical research can be an exercise mined with difficulties, I use these sources to explore the dialogue between the state's and the plebeians' often contradictory understanding of gender. Official gender norms—outlined in legislation and often reiterated by judges as they passed sentence—met popular gender practice in its many variations in litigants' and witnesses' depositions. In court, the many varieties of gender practice encountered and confronted each other. Although gender was constructed through interaction between men and women everywhere and continually, only a fraction of these encounters have been recorded; meetings within the judicial apparatus are among the few instances of gender negotiation which resulted in written documentation and, as such, are an invaluable source for the historian seeking to access subaltern understandings of gender.
Litigants came from a broad social spectrum and ranged from Cajamarca's more respectable citizens to (more typically) small-scale landowners, artisans, petty merchants, market women, agricultural laborers, and servants. As the events described in the proceedings clearly illustrate, lower-class everyday lives did not reflect state-defined gender norms. Young couples engaged in premarital sex; many, in fact, chose not to marry at all. Women lived on their own, many with illegitimate children, often fathered by different men, and those who cohabited with spouses countered their husbands' discipline with an array of responses, including violence.
The lens of the legal arena reveals, then, the gap between elite visions of society, as encoded in legislation, and actual gender practice. In addition to enabling us to study plebeian norms and lives, the trials reveal litigants' attempts at reconciling their behavior with the law.
Honor: Defining Personal Worth
Assessment of right and wrong, and also of individual worth, was pivotal to legal proceedings. Judges passed sentence on defendants and, implicitly, on plaintiffs when they rejected suits or simply allowed them to grind to a halt. They evaluated witnesses' statements, often allowing their assessment of the witnesses' moral worth to influence them in calculating the value of the testimony. Plaintiffs and defendants, in turn, sought to persuade judges—and the attentive public outside of the courtrooms—of the propriety of their own actions. Trials often turned into complex arguments about appropriate behavior, including questions such as how much abuse a wife should bear before she was justified in leaving her husband. Conversely, when did a husband have the right to chastise his wife? Among the most frequent issues debated were matters of honor: What were the criteria for possessing honor? Could women who worked in the fields, or who sold chicha (traditional Indian alcoholic beverage made from corn), claim to be honorable? Were there extenuating circumstances when women bore children out of wedlock, and could those women regain their honor? How did women's sexual behavior determine their husbands' and families' honor?
The complex debates contained in the trials, as well as recent research, indicate that perceptions of honor varied and were subject to the influences of time. In elite eyes, legitimacy, purity of blood, social status (ideally, a noble title), and wealth were prerequisites for honor; female chastity was a central corollary to this. Premarital virginity and matrimonial fidelity ensured legitimacy, endogamy, and the transfer of property within the peer group; the seclusion of women as a means of guarding female chastity in the private sphere served to mark the social distance from the masses. As Nazzari has pointed out, because upper-class women had servants to protect their honor, "the system of honor and shame upheld not only morality but also reinforced social stratification." Virginity was more than a physical condition; it signified chastity and obedience to the church's moral canons. Its loss (at least, if publicly known) signified a fundamental lack of vergüenza (shame) in the woman in question.
With independence, titles of nobility disappeared as a marker of social status, and illegitimacy and color ceased to be absolute barriers to certain posts and professional activities. Whereas illegitimates or individuals tainted by more than one-eighth of nonwhite blood could not be admitted as abogados (lawyers) or to official posts in the colonial bureaucracy, such limitations disappeared during the nineteenth century. Gradually, the code of honor changed to increasingly emphasize personal virtue—defined as self-discipline for men and sexual morality for women—rather than ostentatious display of wealth. Chambers argues that this more egalitarian definition of honor "was rooted in the claims of common folk who, by shifting the emphasis from status to virtue, both made sense of and influenced republican discourse."
While Chambers considers this transformation to be a result of pressure from below, other authors have suggested that elite concerns for regulating society in a period of social and economic change—manifesting itself as a rise in racial mixing—prompted a shift in the interpretation of honor. The concomitant was a more stringent moral climate, with stricter public regulation of individuals' comportment and an assertion of patriarchal authority in the home.
Regardless of whether the impetus for these changes sprang primarily from above or below, a more egalitarian definition of honor began to prevail throughout the nineteenth century—a transformation which also implied a stricter code of morality for women and increased subjection to patriarchal authority in the home.
Scholarly work since the 1990s has shown that people from all social classes were concerned about honor, although Latin American elites traditionally reserved honor for themselves. Honor was variable and determined by situation, depending on social milieu, geography, and period. Despite colonial laws that equated honor with whiteness and legitimacy, colored individuals who were not free and who were illegitimate defended their honor. Notwithstanding elite disdain, members of the middle and plebeian classes asserted their claims to honor; these claims uncover differences in their perception of status based on race, family occupation, wealth, and gender. As Lipsett-Rivera and Johnson point out, subtle and by no means firm differences separated plebeians from the poorest, and a reputation—including a reputation for defending one's honor, violently if necessary—could be an important safeguard against association with the latter group.
Lipsett-Rivera and Johnson's volume and Stern's The Secret History of Gender have amplified Peristiany's and Pitt-Rivers' original definition of the honor-shame complex described for the Mediterranean, and all three authors convincingly conclude that no single code of gender behavior existed in Latin America. Rather, the various codes of different social groups and the numerous loopholes contained in each code allowed women and men considerable space for maneuver.
Defending Honor: Slander and Libel Trials
Honor was central to many of the trials held in the provincial court of Cajamarca, and Chapters 5 and 6 deal extensively with two sets of such trials. Of the 234 trials I studied in detail, 30 dealt with crimes of slander and calumny and asked for the restitution of reputation to the plaintiff and his or her family. A further 15 lawsuits were filed against alleged rapists, abductors, and seducers. In most of these, too, honor was the central issue. In addition, questions of honor proved pervasive themes in many other trials, demonstrating how perceptions of honor pervaded Cajamarcan society at all levels.
Incidents of rape and seduction dealt with actual and locally well known incidents of loss of honor and the victims' attempt to minimize this loss. The slander trials, on the other hand, addressed the unwarranted broadcasting of often fictitious misconduct. Plaintiffs, in other words, went to court in order to publicly deny the rumors which were being spread about them, or, if those rumors were rooted in reality, to set right the public's perception of events. Damage to one's name had extreme and real consequences: victims feared social ostracism; artisans complained of lost business; wives reported that their husbands had left or beaten them as a direct result of slander.
Talk did not emerge out of thin air. Most trials of injurias verbales (slanderous insults)resulted from heated arguments in the course of which one or both of the parties insulted the other, initiating new rumors or giving new life to half-forgotten ones. Insults could be directly related to the dispute at hand: where money was owed but not repaid, the creditor called the debtor a thief; women who were rivals for the same man called each other whores. Insults were chosen for their efficacy rather than their accuracy, or were picked at random. Offenders were the most powerful, however, when they alluded to past transgressions and rekindled almost forgotten tittle-tattle. The voicing of insults that implied dishonest or sexually promiscuous behavior triggered damaging rumors that threatened reputations unless they were publicly challenged.
Without doubt, most such insults and the resulting scandal were dealt with outside of the legal arena. Further arguments might follow, possibly settling the dispute; opponents might come to blows, thus establishing their readiness to defend their honor; public retractions might be obtained with or without the use of force and threats. Many, lacking the resources to combat gossip and public suspicion, presumably had to live under their shadow. In some cases, however, victims of insult and slander went to court in order to clear their name, leaving behind written records of their battle for reputation and allowing us a glimpse of their understanding of honor. The fact that women and men, many of whom were illiterate, opted for this path testifies to the importance they placed on honor—and to the opportunity the legal system afforded them.
The courts were not always sympathetic to charges of injurias, particularly as the litigants were mostly small fry. Several judges unceremoniously ordered plaintiffs to take their complaints elsewhere and warned them off further litigation with the threat of jail and hefty fines. More commonly, trials ended inconclusively, either with the defendant's acquittal or, equally unsatisfactory, with no conclusion at all. Nevertheless, going to court appears to have offered plaintiffs something of what they wished: even if they did not succeed in punishing their opponents, they obtained the public's ear and demonstrated that they valued their honor enough to press charges in a criminal court.
While what took place outside of the court is, of course, hidden from the eye of the historian, the fact that a number of estranged husbands accompanied their wife after she had initiated legal proceedings speaks for itself. They at least felt that their wife's fidelity had been vindicated sufficiently to appear at her side again, and therefore the husbands' manhood was reasserted. Even if the courts were ineffective as an instrument of legal redress, they represented an avenue for vindication for victims of slander.
Interestingly, it seems as if the legal system functioned as such an arena almost in spite of itself. Several of the litigants who sought to defend their honor would, at first sight, appear to have little to defend by way of reputation. Market women, women who had borne children out of wedlock, and impoverished widows were among those who left their imprint in court documents. Even according to the more egalitarian—but morally more exacting—code of honor of the nineteenth century, these women did not qualify as honorable. Nevertheless, they not only claimed to possess honor, but they also defended their claims with some success in court. Although several of these women had dubious pasts, which placed them under suspicion of continued immorality, they succeeded in using the legal arena to demonstrate to the public and the judge that their later lives entitled them to respect. By emphasizing those parts of their life histories that entitled them to honor, they were able to shift the balance in their favor, thereby revealing that honor could be an elastic and negotiable commodity.
Defending Honor: Trials of Rape, Seduction, and Abduction
The art of retelling life histories was also central in the other group of trials that dealt with honor, namely, rape and seduction suits, which I analyze in Chapter 6. Only a minority of the criminal cases dealing with rape, seduction, and abduction dealt with actual instances of sexual crime; most related the histories of consensual affairs, in the course of which the woman had given up her virginity willingly only to be abandoned later by her lover.
As in the slander trials, going to court in these instances was often less about punishing the offender than about shifting public attention. Plaintiffs went to court on behalf of their daughters and young female dependents in order to force absconding seducers to the altar or, failing that, to force public acknowledgment of the girl's remaining honor. In order to achieve this, they retold their version of events, asserting that the victim had been coerced through force, threats, drugs, or deceit. In this fashion plaintiffs aimed to shield the young women from public perceptions of complicity in their own downfall; by portraying them as innocent victims of abusive and immoral seducers, their personal virtue could be made to appear intact. Although virginity was indisputably lost, blame might be shifted to the fickle lover, and a measure of honor thus renegotiated.
Legal terminology reflected this concern with honor. The legal categories of estupro, violación, and rapto (rape and abduction) were defined specifically as crimes against honor. The victim's personal suffering received scant attention in the legal literature, except insofar as it went to prove that she was innocent of any complicity. The central criterion for establishing the defendant's guilt was therefore proving that the victim had upheld honor and been a virgin prior to sexual relations.
Needless to say, this posed a number of challenges for litigants. Defendants did their best to discredit their victim's reputation. Plaintiffs counterattacked by producing evidence to the contrary: adducing their ward's tender age and any other claims to respectability the family possessed, they insisted that the girl in question had lived a sheltered life and could therefore be presumed to be a virgin.
The courts discriminated against women from the lower classes by requiring a greater burden of proof of virginity. Only women belonging to the local elites had an automatic claim to the presumption of virginity and honor; plebeian women were assumed to be prone to an immoral lifestyle. Women who left the seclusion of their homes to work exposed themselves to suspicions of sexual misconduct, and complainants struggled to explain a ward's behavior in honorable terms. This bias is reflected in the near-absolute absence of trials dealing with the rape of peasant women. Very few charges were filed or otherwise recorded (e.g., in police records). Of the few that were filed, most were either not followed up on by the police or rejected by judges.
Although the antecedents of the histories recounted in court are often obscured by the litigants' disputes over honor, transcripts reveal that many of the young women in question were active parties to their own seduction, and that several consciously used a relationship in order to free themselves of irksome patriarchal control. As well as engaging in lengthy debates about honor, defendants and plaintiffs both struggled for moral superiority and accused one another of abusive behavior and neglect, on the one hand, and miserly and excessive patriarchal control, on the other.
While the details of sexual practice and the way in which young women and men saw it are therefore hidden from view, the trials show how their elders sought to resolve the evident gap between formal gender ideology and actual practice. In the course of the legal proceedings, plebeian litigants sought to justify their behavior in elite terms and attempted to reconcile divergent gender practices. The category of rapto—translated literally as abduction—was often used to mediate this tension. The tradition of eloping for strictly romantic reasons or in order to force parental agreement to a union, making it a fait accompli, had long historical roots in Peru, as, indeed, in the rest of Latin America, and the penal code made special allowances for such cases. Rapto assumed that a woman had been forcibly abducted and held against her will prior to being robbed of her virginity. The description of elopement as rapto therefore exonerated the woman from personal responsibility for events and was a term frequently used as a euphemism for love affairs.
Defining the Parameters of Marriage: What Constituted Marriage, and How Was It Lived?
Where premarital sex led to formal marriage or, at least, a long-term consensual union, no attempts at vindicating honor were made or, usually, required. Common-law marriages were so prevalent as to almost constitute a social norm among the popular classes. In Chapter 4 I look at plebeian marital practice and the frequency of common-law unions versus formal matrimony. The national census conducted in 1876 indicates that less than half of the adult population of Cajamarca was married; presumably, a large part of the remainder lived in consensual unions. While ecclesiastically blessed marriages gave greater status, common-law unions did not lead to any great social stigma among the lower segments of Cajamarcan society, instead offering the stability and support of formal marriage. Such unions resulted in close ties between families, and many were formalized on the deathbed of one of the spouses. In a sense, informal unions offered women certain benefits: common-law wives escaped damaging relationships with comparative ease, whereas formally married wives were legally obliged to reside with their husbands and were expected by the state to put up with abuse.
Not only did plebeians often choose not to marry, unlike the local elites, but their marital differences occasionally resulted in criminal prosecution. Trial transcripts dealing with marital conflict offer insight into some of the internal dynamics of marriage. They uncover some of the causes of conjugal conflict and its derivative, spousal abuse, as well as giving an insight into the strategies that women resorted to in combating violence. Rising elite concern for the maintenance of patriarchal authority and the sanctity of the private sphere clashed with popular practice. Although wives tolerated a measure of abuse at their husband's hands, they countered violence with different mechanisms. They fought back; fled for varying periods of time, sometimes leaving their husbands permanently; refused sex; and appealed to their families for support. Contrary to judges' repeated injunctions, relatives—usually parents or brothers—intervened in marital conflict in order to safeguard the wife. Their assistance ranged from physically protecting the victim to beating up the husband, thereby providing, it was hoped, a warning. Less often, outsiders took action in order to block battery by interfering in the domestic affairs of mere acquaintances or even complete strangers. Errant wives, on the run from abusers, sought refuge in neighbors' and acquaintances' homes. Without minimizing the pain, danger, or ever-present sense of threat induced by domestic violence, we can nevertheless conclude that victims had strategies of resistance and were not totally bereft of practical or moral support.
Although women resisted abuse and found support within the local community, judges were reluctant to meddle in matrimonial conflicts. Violent husbands were rarely reprimanded or punished; wives, on the other hand, were admonished to obey their husbands and to refrain from involving outsiders. In-laws and other family members who intervened in order to protect victims of abuse were warned not to repeat such actions and were threatened with jail and fines.
Recurring themes in marital squabbles were problems related to alcohol, husbands' failure to provide economically for their families, and infidelity. A husband who suspected his wife of adultery felt justified in chastising her and was backed by the courts. Wives tolerated male infidelity up to a point; where male philandering threatened the family's existence, however, they took action in a number of ways. These included the small weapons of daily interaction such as acrimonious language; the withholding of food, domestic services, or sex; gossip; public scenes; attacks on their rivals; or outright violence against husbands and their mistresses. Husbands did not take kindly to any of these and frequently opted for violence in response to any challenge to their authority, particularly if it took place in public.
Questioning Sisterhood: Solidarity and Conflict among Women
In resisting husbands' abuse, wives drew on networks of solidarity and cooperation, usually relying on primarily (but not exclusively) female kin and neighbors. Conversely, rivalry over men brought women into conflict with each other. Such relationships of solidarity and conflict are the topic of my penultimate chapter.
As trials dealing with oral and physical confrontations between women testify, despite the importance of female support networks, women were not always in agreement. Tension among women expressed itself in multiple ways: they wielded sticks, threw stones, pulled each other's hair, and stabbed one another. Such brawls resulted in miscarriages, the death of infants carried by warring women, or, sometimes, the death of one of the participants. Gossip, slander, and the resulting public scandal could inflict as much—or more—damage as physical blows. Although witchcraft and poison appear to have been used rather less than the fear of them might seem to warrant, they clearly figured in the popular imagination, and the threat of poison was perceived as serious. Finally, women (and men) resorted to the courts not only in order to obtain vindication, but also as a means of avenging themselves on enemies.
The frequent resort to violence reflects both its overall prevalence in Cajamarcan society and the depth of hatred borne by some women. Tensions could simmer for years, expressing themselves in occasional oral confrontation and threats, as well as the more common (and wiser) device of avoiding one another. Usually, however, such tactics culminated in periodic confrontations that, if serious enough, made their way into court records.
In general the conduct of women who were fighting reveals a separate, distinctly plebeian, code of behavior that bore no relation to elite norms. While many plebeians strove to emulate elite conduct—or at least to maintain the appearance of doing so—others did not bother, preferring to lead a life unfettered by the pursuit of honor as defined by the elite. As these men and women produced written records only in exceptional cases, their understanding of appropriate conduct, including gender codes, is extremely difficult to access and can be documented only in piecemeal fashion.
The most common reasons for quarrel identified in these cases—to the degree that the trial transcripts reveal motives at all—are rivalry over men, disagreement over property (in the form of debt, inheritance, border disputes), and women's struggle to protect their children from harm. Eruptions of anger often followed incidents in which a family's domestic animals, usually pigs, had overrun another family's fields, with women, whose duties included caring for domestic animals, serving as targets. While women competed for men in other periods and regions as well, it appears that female competition over men was exacerbated in late-nineteenth-century Cajamarca by growing seasonal migration to the coast. This led, quite simply, to a shortage of men as well as to a loosening of emotional bonds for those men who were (formally or informally) married and growing insecurity for their wives. Women fought each other rather than confront their men both in order to reduce conflict with their spouses and in order to ward off potential rivals.
Women did not fight alone, however. They commonly allied themselves with sisters and other (mostly female) relatives or friends and confronted their enemies in groups. They aided each other in other ways as well: older relatives in particular often defused such conflicts by persuading one of the women to desist from further argument and leading her away. Networks of solidarity and cooperation tied communities together and expressed themselves in small, everyday acts of assistance and in long-term solutions to the problem of orphans. Although women socialized and gossiped, solidarity tended to express itself through concrete acts, such as assistance in times of illness or childbirth in the form of small loans and the sharing of domestic tasks such as preparing food or washing clothes. Reflecting these activities and women's everyday tasks, certain sites were typical meeting places. Both social contact and confrontation often occurred where women met in their daily duties: at the pileta (water fountain), washing clothes; in the fields, tending to crops and animals; on the paths connecting the villages to surrounding fields.
Studying conflict and friendship among women offers an ample window into their lives, allowing us to understand some of the complexity of their everyday life as well as the strategies they developed to cope with the many pressures of their usual impoverishment. The ways in which these women fought is revealing of their view of their place in society: while some opted for legal action as more effective, others opted for head-on confrontation. Although judges and other members of the ruling class presumably shook their heads in disbelief at such behavior, these women acted in defense of their families, the material goods these required, and their position in society.
Filtering the Judicial Sources: Understanding the Mechanics of Legal Action and Meeting the Litigants
Working with judicial sources is challenging. With plaintiff, defendant, and witnesses contradicting each other, who should the historian believe? How can he or she ascertain what actually happened? How valid are conclusions based on such a (of necessity) biased sample? Despite these limitations, trial transcripts are among the few sources that give men and women of all social classes a voice.
Pointing out that the social history of subaltern women cannot be inferred from the national elites' attempts to govern their normative ideas about sex and gender, Klubock observes that women's and men's day-to-day responses to and negotiation of patriarchy and gender ideology tend to remain hidden. Going further, he questions whether sources documenting the more intimate aspects of gender relations, including sexuality, can be accessed by historians and notes how histories of gender can encompass both subaltern practice and formalized discourses of patriarchy as enunciated by national elites. With these questions, Klubock cuts to the very core of important issues facing social historians. How, indeed, are we to find sources which can shed light on plebeians' subjective experience of their life? And, if they exist, how are we to interpret these sources? This work seeks to offer some answers.
Even where subaltern challenges and responses to official normative discourses are documented, the records are not complete, unbiased, or, often, entirely truthful. Few possessed the means to initiate and pursue legal action, and the sample of litigants cannot be assumed to be wholly representative of a cross section of Cajamarca's society.
Even on the few occasions when plebeian women and men spoke with a degree of honesty about intimate matters, as—we must assume—they did in court, their statements were never entirely free from self-censorship. Statements were tailored to suit elite perspectives, and ulterior motives underlay most litigants' accounts. Plebeian gender norms were rarely revealed frankly and openly; usually, women and men were all too aware of the many discrepancies between elite gender discourse and lower-class practice.
In addition to self-censorship, a range of other factors impeded the free flow of information. Scribes often passed over details when taking witnesses' statements. Occasionally, ethnicity is evident from the fact that litigants or witnesses needed interpreters, but, unlike in the colonial period, ethnic identity was not usually recorded in late-nineteenth-century legal proceedings. Investigations were often superficial; judges rarely inquired into underlying causes. Many criminal trials and investigations were never concluded, and records remain incomplete. As a result, the events which underlay legal proceedings were often not uncovered, and stories were not fully told. Nor was any official reaction recorded in such cases. Instead, the reader is left with a nagging sense that much transpired outside of the courts. Why did the plaintiffs lose interest? What hidden agenda motivated the judge to discontinue the case? Were matters between the parties settled amicably out of court, or was one of the parties threatened into silence?
While many a story is not fully told and pertinent details may have been omitted and others embellished, we can nevertheless work critically and constructively with such sources. By carefully sifting through legal records, we can document moments of tremendous tension in an individual's life , as well as a wealth of apparently mundane details—which, when pieced together, offer a richer picture of everyday life. Not only do criminal trial transcripts offer stories of plebeian life experiences, they also place these within the context of the legal apparatus, the disciplinarian instrument of national elites par excellence. Judicial records therefore enable us to study the intersection of subaltern actions and experience, on the one hand, and the disciplinary discourses which form part of the process of state definition, on the other. This work therefore aims to make visible both discursive and legal constraints acting on plebeian life and plebeian efforts to reconcile everyday gender practice with official gender discourses.
My main sources are the criminal trials from the period 1862 to 1900 that are preserved in the Archivo Departamental de Cajamarca (see Appendix C). I have read all trials which explicitly deal with gender issues from the years 1862-1863, 1872-1873, 1882-1883, and 1892-1893, as well as any trials from the intervening years which were of obvious interest, such as those dealing with rape, slander involving women (and occasionally men), and domestic violence. Very few trials have been preserved from the early 1880s, reflecting the breakdown in political, legal, and social order during and following the War of the Pacific (1879-1884). More trial records exist from the postwar period, probably because much of the existing documentation was destroyed during the Chilean invasion. Altogether I have analyzed 234 criminal trials. Most of these are from the province of Cajamarca; only in the cases in which the proceedings were of particular interest—such as the trial dealing with one husband's adultery and violent behavior—have I included trials from neighboring provinces (Cajabamba, Celendín, Contumazá, San Marcos, and San Pablo.)
I have also read civil proceedings, which—in most cases—shed less light on the daily functioning of gender relations, and 374 wills and a smaller number of notarial records. I have also looked at some of the local—predominantly urban—police reports that were filed daily and contain information on—mostly—relatively minor incidents of violence, excessive drinking, and theft. Even in those cases in which the reported crimes were serious—such as rape, assault, and murder—there is no overlap between police reports and criminal trials, indicating that only a fraction of the total cases filed and investigated have been preserved.
The trials I have studied deal with a variety of offenses, some of which I have already mentioned, such as rape and seduction, assault, slander, murder, theft, and spousal battery. Other recurrent categories are cattle rustling, burglary, the provocation of miscarriages through violence, and the abduction of servants. Naturally, some of these categories tell us more about gender relations than others, but some of the trials dealing with apparently gender-neutral crimes, such as burglary and cattle rustling, also contain relevant detail on gender relations. Plaintiffs who accused other peasants of stealing their only cow indicated—by virtue of going to court at all—how valuable a cow could be to a destitute Indian widow. Most of those accused of cattle rustling were, not surprisingly, men; but sometimes women, too, were blamed for the loss of cattle, usually if they were related to or were otherwise associated with—usually through common-law marriage—the alleged rustlers.
Smaller matters—including the infliction of minor injuries and the theft of property worth less than fifty pesos—were settled at the district level by a local juez de paz (justice of the peace, usually at the district or caserío [a smaller village within a district] level). Litigants could file complaints by speaking to the justice of the peace, and plaintiff and defendant met in court, with adjudication within few days. The justice of the peace recorded proceedings in the libro de juicios verbales (book of oral suits), or, in the case of reparations, in the libro de conciliaciones (book of conciliations). If either of the parties decided to appeal, the proceedings were copied by the justice of the peace and transferred to the corte de primera instancia (provincial court)in the provincial capital.
More serious matters, including assault, rape, slander, the theft of more valuable property, and murder, were dealt with in the provincial capitals by the provincial court. If the crime had taken place in a more remote location, the initial investigation and interrogation of witnesses was carried out by the resident justice of the peace and written reports were remitted to the judge of the provincial court as soon as possible.
The authorities, usually following an official report by police or political authorities, prosecuted delitos exceptuados (crimes against life or property, such as theft, robbery, assault, and murder). The court appointed a public defender, and victims or their relatives participated in the trial to varying degrees. Relatives might seek to speed up proceedings or obtain the release from jail of the defendant pending prosecution (tasks which were time- and money-consuming, and usually thankless) with repeated letters and petitions, or appear merely in the role of witness.
"Crimes against honesty," such as rape, seduction, slander, and adultery, could be prosecuted only at the instigation of the victim, and proceedings could be halted at any moment should plaintiff and defendant reach an agreement. However, as in crimes involving theft and violence, plaintiffs had to work continually to ensure that proceedings did not draw to a halt.
All criminal trials began with a formal accusation, denunciation, or complaint. Charges of assault usually began with a formal complaint by the victim; the prosecutor's office usually assumed responsibility after the case was reported. After investigating the crime in question, the court proceeded to ascertain the guilt or innocence of the accused before sentencing. In the course of the investigation, witnesses were interrogated and medical experts consulted, all of whom had to provide their name, age, origin, domicile, occupation, and marital status. Prior to signing their statements, witnesses had to read through them, or have their depositions read to them if they were illiterate. Witnesses were called to shed light on the events surrounding the crime, or, if it was a crime against honor, on the moral character of the complainant and, sometimes, the defendant. Spouses, siblings, parents, and offspring were not expected to testify against their relatives. Opponents often questioned the testimony of more-distant relatives, such as uncles, aunts, and godparents, of servants, other dependents, and debtors. Proceedings were therefore punctuated and sometimes interminably delayed by wrangling over whose testimony was to be admitted in court. In most cases relating to theft or violence, the defendant was jailed (providing that he or she could be found), although bail was possible.
Once matters were brought before the provincial court, plaintiff and defendant rarely met in court. Both parties and their various witnesses testified individually, with scribes noting the particulars. Statements, letters, and petitions were collated and added to the growing pile of trial documents. In most trials, litigants submitted numerous requests designed to speed up or slow down proceedings, as well as questions and lists of witnesses, most of whom were duly interrogated. Plaintiff and defendant frequently tried to disqualify the opponent's witnesses, and weeks if not months could pass while the various parties wrangled over which witnesses and evidence were admissible in court.
As letters had to be filed and copies of all letters sent to all the parties concerned—who often lived in different villages or towns and who had to confirm that they had received the document in question—proceedings could continue for years. Probably as a result of these delays and the cost they entailed, many trials were never concluded. When the time span set by the judge for the collection of evidence elapsed—although it was usually extended through a variety of devices employed by the litigants and their lawyers—the prosecutor and defense counsel summarized their main points before sentencing. In the cases where a verdict was reached, appeals were frequent, and, occasionally, all documents were remitted to the high court in Lima for reevaluation. However, even trials with such determined litigants were likely to peter out eventually, adding to the total number of trials with uncertain outcomes.
Such involvement in legal proceedings was not without its costs: papel sellado (stamped paper) cost twenty centavos per piece (the equivalent of a day's wage for an agricultural laborer), and illiterate and semiliterate litigants usually had to pay a tinterillo, or scribe, to author documents for them. In addition, litigation was time-consuming, especially for those living outside of the town of Cajamarca. In those cases stretching over dozens (sometimes hundreds) of pages and months or years, costs ultimately proved prohibitive, explaining why lawsuits were sometimes discontinued. Initiating a trial or defending oneself, however, was within the means of most urban residents and peasants, excluding only servants, colonos (tenants on an hacienda who usually obtained access to land and pasture rights in return for labor), and the poorer laborers.
As truth can be for the historian, justice could be elusive for litigants. The legal machinery was extremely slow and cumbersome, and, as noted earlier, most cases remained undecided. When a verdict was arrived at, it was not always acted on: numerous felons succeeded in escaping to the coast and evading punishment through prolonged absence; wealthy hacendados (owners of an hacienda or large estate) who had come into conflict with the law were usually safe on their estates—as were their peons. The court's ability to implement justice was limited.
It follows that, with many investigations uncompleted or only superficially carried out, the facts that underlay the legal proceedings sometimes remain obscure. Even when criminal proceedings reached a conclusion, much remains hazy: trial transcripts are full of claims and counterclaims; litigants rarely agreed on the facts and presented competing versions of events, summoning numerous witnesses to back up their versions; the accused presented occasionally ludicrous, but often entirely believable, explanations for actions; defendants in rape trials sometimes claimed that the charges were mere attempts at entrapment into marriage. Several women and men who charged their enemies with attacking them either orally or physically turned out to be as guilty as the defendants of the very crimes of which they claimed to be victims. In some cases, what actually transpired is anybody's guess. Such uncertainty poses serious challenges to the historian, and the study of the legal process itself becomes an integral part of the analysis.
I occasionally cite witness statements and assume that, even if they fail to reflect the whole truth, it is clear that they were contrived to be believed by a judge. Thus I have chosen to report both the rape victim's description of her ordeal and her alleged rapist and detractor's counterclaim that the legal proceedings were merely a ploy to force money out of him. The latter's attempts to sully his alleged victim's reputation are relevant; if nothing else, they can tell us how pressing charges of rape could further endanger an already threatened reputation. At the same time, many statements are clearly best taken with a grain of salt.
Many litigants—and their witnesses—tailored their statements to suit the authorities' set of beliefs. In order to appeal to the dominant class' value system—and increase the chance of obtaining a favorable finding—plaintiff and defendant frequently twisted the truth. Both sides tried to allocate as much blame as possible to their opponents and the minimum to themselves. In addition, they tried to represent their own behavior as corresponding closely to upper-class expectations in order to advance their case. The representatives of rape victims' emphasized the girls' decorum; battered wives focused on their patience and forbearance vis-à-vis their husband, which they contrasted with the latter's unwarranted brutality.
While these statements may often have reflected the truth, sometimes they were a mere sop to upper-class expectations. Litigants' attempts to conform to the ruling class' gender norms means that there is an inherent bias in the material toward overemphasizing the elite's definition of gender roles. James Scott notes that even close readings of historical and archival sources will tend to favor the dominant group's account of social relations. He argues that subordinated groups have an inherent self-interest in conspiring to reinforce the official transcript, and that the "public transcript" used by subordinate groups in their exchange with dominant groups is therefore a poor guide to their actual views. Bearing this caveat in mind, trial transcripts must be read with great care. If analyzed carefully, they do, however, reveal a distinct lower-class gender discourse, as evident in both the trial participants' actions and, more rarely, their justification for these actions.
A further complication inherent in using trial transcripts as source is the inevitable privileging of deviancy and conflict. Clearly, using trial records dealing with spousal abuse provides a lopsided view of marriage. Similarly, the presence of dozens of trials dealing with conflict among women must not blind the modern reader to the presence of their networks of solidarity and support.
Despite these limitations, criminal proceedings are a valuable source: as well as offering valuable insights into the causes and nature of these conflicts and a host of apparently trivial but very relevant details, they pinpoint moments of tension in gender relations. As Martínez-Alier has noted, "these deviations from ideal behaviour, while by no means everyday occurrences, nevertheless highlight the conflicts obtaining in the system and make its norms all the more apparent." While the nature of the sources impedes us from drawing conclusions about the prevalence of problems such as premarital sex, wife battery, and adultery, we can analyze the circumstances under which these took place and how society reacted.
One of the problems for the reader of these trial transcripts is to understand the social class, ethnicity, and cultural identity of the various litigants. The transcripts give basic information on literacy, age, marital status, and employment—as well as, in rare cases, linguistic status—but pinpointing the ethnicity and social class of individuals is usually difficult. In some cases references to everyday activities indicate that the person belonged to the less-privileged classes: a mother's comment that she was carrying her child on her back, washing baby clothes, or laboring in a field all identify her as one of the lower orders, very likely at least part Indian.
In most cases, however, information about social class is more ambiguous. Due to the low levels of general (and especially female) literacy, illiteracy cannot necessarily be taken as an indicator of low social status. Even if a woman was illiterate herself, a close relative—husband or son, sister or daughter—usually knew how to write. Natividad Arana, although married to one of the town of Cajamarca's escribanos (scribes), Baltazar Arce, was illiterate. Her daughter, Catalina Puga, however, could both read and write and signed her mother's documents and petitions throughout the legal proceedings. In another case, an illiterate woman had her sister sign documents for her. While some sisters had had the benefit of basic schooling, others had not been so lucky. In the province of Cajamarca, which had—and has—one of the highest rates of mestizaje (ethnic and cultural mixing; the term is commonly used to describe the acculturation of Indians into Spanish culture) in the highlands, low social status does not always indicate Indian ethnicity, further complicating the precise identification of litigants' social, ethnic, and cultural identity.
Moreover, prosperity (relative to the local community) and political influence did not necessarily imply a sophisticated lifestyle. One traveler, when passing through the village of Magdalena, met the daughter of the local teniente gobernador (governor of a caserío). He commented that "different fathers had made her the mother of a fairly large family. I met her squatting before her hearth, cooking and spinning, surrounded by several half-naked children." Clearly, individuals could wield local political clout without boasting any of the accoutrements of elite culture. The lower end of Cajamarcan society was thus fluid, with literate citizens mingling with the illiterate, market women and artisans with scribes and their wives, and almost everybody—regardless of profession—engaging in some agricultural pursuits.
One defining characteristic of society as seen in judicial documents, however, is the absence of the upper classes from criminal litigation. Hacendados usually possessed alternative ways of exerting pressure and making their subalterns bend to their will; they did not need legal recourse. Instead, landowners and merchants appear fairly frequently in civil cases, where matters of property were more frequently debated. Propertied widows and single women also figured in these suits; however, they rarely engaged in criminal proceedings. Both plaintiffs and defendants tended to come from the nether end of the social scale.
As most of the trials I have studied were filed in the district and provincial capitals, the sample of individuals and stories I have assembled tends to represent the urbanized and semiurbanized mestizo population rather than the peasantry, without clear indicators as to which litigants pertained to which group. Even for the urban and mestizo parts of the population, however, taking legal action was not an easy step, requiring time and money. For most of the illiterate and semiliterate population the cost of a scribe came in addition to the court's fees. In many cases, persuading a judge to accept a case in the first place was difficult. Ensuring that the trial did not come to a halt was a constant challenge, and one that necessitated payment to lawyers and scribes, court fees, and bribes. Ready cash, albeit not always in huge sums—obtained through wage labor, the sale of livestock or agricultural produce, or the marketing of artisanal products—was thus a prerequisite for legal action.
For the peasantry, the courts' inaccessibility—both geographic and cultural—was an additional disadvantage. Despite making up almost a third of Cajamarca's population in 1876, hacienda residents are almost entirely absent from the court records. Hacienda tenants registered complaints only in exceptional cases; they appeared more frequently as defendants accused of cattle rustling. Most internal disputes on haciendas were never reported to the authorities; instead, the hacendado or his deputy, usually a manager, administered a semblance of justice on the estate itself, obviating the need for and often denying access to judicial authorities. Few records of gender relations on the haciendas have therefore been preserved. Although battery, rape, and seduction unquestionably took place there, too, the virtual absence of hacienda residents in the trial transcripts can be explained by the role of the hacendado in controlling affairs on the estate. I included the documentation's few glimpses of hacienda life in the analysis where possible, to offer some insights into gender issues on Cajamarcan haciendas in the nineteenth century.
Although colonos and colonas and, with them, the poorest in Cajamarcan society, are underrepresented in the criminal trial transcripts, the transcripts nevertheless contain a wealth of detail on the lives of women and men of the lower and lower-middle classes. Small-scale landowners, petty merchants, market women, artisans, and even servant women figured among the lists of litigants and witnesses. Many appeared in court unwillingly, as defendants. Plenty, however, entered the legal arena in the role of plaintiff, demonstrating both the willingness and the ability to use the legal system toward their own ends. Some trials, especially those pursued by the state prosecutor—el ministerio fiscal—were the result of criminal acts so grievous that they could not be ignored, such as near-lethal assault, murder, or the rape and subsequent death of minors. Others—comparatively minor, but nonetheless serious offenses—were brought to court by victims who sought to punish their offenders. While many sought justice, others used the legal system as a further weapon in disputes.
While the courts did not promise an easy avenue toward the resolution of conflict, many people, after years of conflict, viewed them as a last resort. Filing charges against an enemy—whether a battering husband, an absconding fiancé, or a rival—could be one way of forcing public attention on the problem at hand. Even if the lawsuit did not produce the desired result (as, indeed, it rarely did), plaintiffs hoped to gain the public's ear in order to be able to explain their version of events to the local community. This was particularly important in those cases that dealt with "crimes against honesty," such as rape, seduction, and slander. These trials were often less about punishing the culprit than about clearing the name of the person whose honor had been attacked. Moving into the legal arena was a powerful statement, demonstrating the clear conscience and conviction of possessing honor which dishonored individuals needed to project in order to persuade the public of their position in society. Despite being notoriously ineffective, and in spite of the many deterrents associated with the legal system, the courts therefore became an arena where reputations could be publicly discussed.