My last two posts with Judith Mansilla discussed a dimension of law that consumed perhaps the greatest part of colonial Spanish Americans’ legal experiences: a world of verbal agreements, handshakes, and homemade contracts or bills of sale. But we confronted the historian’s dependence on the more official legal archive to provide us glimpses of this dimension, specifically on the civil case record where litigants and witnesses referred to their “pacts,” or “oral receipts.”
We should not, however, assume that this dimension of law was unsanctioned or fell into a category of the broadly “normative” as opposed to the strictly “legal.” (cont'd)
The Spanish recognized the legality of this realm in the very name they had for it: “lo extrajudicial,” beyond the judicial. In the eighteenth century “lo extrajudicial” appeared in Castilian dictionaries as any legal activity that spilled outside the (civil) lawsuit proper. But the definition also indicated how such activities could later be notarized or formalized in court. So lo extrajudicial was not outside but rather additional to the law, still within the scope of legitimacy. And it could materialize before, after, or presumably without the contribution of a legal official.
This explains why Spanish American judges were willing to permit – if not always accept—the validity of verbal deals or extrajudicial papers in their courts. Indeed, they themselves were active participants in the same world through the charge to administer justice swiftly and summarily for the weakest members of society, especially, after conquest, for indigenous subjects. One of the primary features of Spanish rule over the native peoples of America was the provision of prerogatives that permitted them access to special jurisdictions and summary rulings, beyond the regular protocols of civil cases. These prerogatives were, of course, instruments of colonial rule as so many other "protective" imperial legal measures were. But I think it’s also fair to say that, by promoting justice among and for indigenous peoples through a tolerance for unwritten customs and respect for the spoken word (especially the testimony of native elders), the Spanish created space for the development and flourishing of colonial indigenous customary law from the sixteenth to the nineteenth centuries.
This is not to say, of course, that indigenous subjects of the Spanish empire did not master the written genres of Spanish and colonial law. They certainly did. Nor is it to say that there was never controversy with or among native peoples about the reliability of oral testimony and custom. There certainly was. It is, rather, to point out that, in the gulf between orderly Lettered Cities and the “anarchic social world” of the masses, there existed a lively, large domain of legal life, especially for indigenous subjects, which defied letters but not the colonial order.