Upholding Justice: Society, State, and the Penal System in Quito (1650-1750) (review)

Historian Tamar Herzog's comprehensive examination of the use and administration of criminal justice in Quito between 1650 and 1750 draws upon and expands her numerous related books and articles. Based upon archival research in Spain and Ecuador that includes a review of 390 penal cases of first instance and impressive reading in secondary literature, she revises classic institutional interpretations that equate royal bureaucracy with an emerging state. The detailed examination shows ways in which judges and their supporting staffs exercised responsibilities as well as their places in a local society that itself assumed a role in dealing with crime. Justice meant knowing right from wrong and was not synonymous with legality; nor did law equate with legislation. Men with and without office were neither clearly distinguishable nor prone to distinguish public and private behavior. Thus society and its institutions were inseparably intertwined; there was no imposition of a strong state.

Herzog goes beyond the oidores and fiscal of the Audiencia of Quito and also studies auxiliary staff and local judges. These men focused on crime rather than criminals within a judicial system operating under the premise that "judicial decisions were inherently just" (p. 21). Resort to law occurred when the judges faced a specific conflict needing resolution. The author presents a detailed and useful description of the penal process from initiation to conclusion. The auxiliary staff's provision of information to magistrates essentially tied the judges' hands in making decisions and thus largely reduced their role to pronouncing sentences and vesting them with legitimacy.

Herzog also reviews offices and the appointment of "officers of the law," a broad grouping that includes audiencia ministers, local justices, paralegals, lawyers and court recorders. She supports the established contention that the sale of appointments that began for non-audiencia judicial positions in Quito in 1682 increased the number of native sons in office, but argues that such appointments escalated factional conflict in Quito. Renting "saleable" paralegal offices such as clerks and notaries began in 1675 and resulted in both less stability and often less experience among officeholders.

The heart of the book lies in Chapter 3, "Officers and Society." Here Herzog argues effectively that social networks were not simply the background for institutions, but rather a constructed and essential part of institutions. Officeholders and society were inseparable and judicial decisions unavoidably affected one or another faction in Quito. The author's examination of the social network surrounding President José de Araujo y Río and the rival network formed to oppose him is particularly instructive. A witness's testimony, whether true or false, automatically placed him in one or the other network. Attacks on judges focused on their alleged immorality rather than errors in judgment. Herzog concludes that the modern view of "corruption" is anachronistic in early modern Quito. Misgovernment existed to be sure, but "justice" was never impartial; rather, it meant that people got what they deserved.

Herzog also examines the role of the public in the administration of justice. Recourse to the judicial system occurred after compromise among parties failed. She notes the general belief that assisting the judicial system was a duty and that the presence of temporary officeholders was commonplace in a city with a police force of four men. Rumor and reputation also affected public involvement in the administration of justice as private individuals testified against or in favor of alleged criminals. In a chapter devoted to the buildings associated with the administration of justice, Herzog notes that the space in which judges and public met was treated with reverence. This was the case even when the buildings housing the halls of justice were in their normal wretched condition. Herzog reinterprets the use of residencias, an institution to provide justice through an individual review of officeholders. She concludes that they contributed to a belief that the king cared for his subjects. This routine and ongoing...