Kathryn Burns

Notaries, Truth, and Consequences

Lawfulness (lealtança) is a quality that is good in all men. And especially in Notaries ...

Las Siete Partidas (Partida III, Título XIX)

When Christopher Columbus set foot on American soil, he launched the Castilian language on a new phase of the imperial career that Antonio de Nebrija had foreshadowed in the first Castilian grammar (Gramática de la lengua castellana, 1492): "Language has always been the companion of empire."¹ Legal templates were an essential part of this enterprise. No sooner did the admiral go ashore in October 1492 on the island "called Guanahani in the language of the Indians" than he called over his companions, including Rodrigo de Escobedo, his notary,

and he said that they should be witnesses that, in the presence of all, he would take, as in fact he did take, possession of the said island for the king and for the queen his lords, making the declarations that were required, and which at more length are contained in the testimonials made there in writing.²

Soon Guanahani and thousands of other places would be baptized with names like Salvador, Santa Fe, and Veracruz ("Savior," "Holy Faith," and "True Cross") and possessed according to Castilian norms of sovereignty, all certified in official writing ("the declarations that were required").³ So began a long-term project that Walter Mignolo has called "the colonization of memory."⁴ Mignolo, Angel Rama, and many others have stressed the importance of writing in this imperial project.⁵ I want to call attention to official writing (escritura pública) and to its privileged agent, the notary.

Why the notary? When Theodore De Bry depicted the scene at Guanahani in his famous engraving, he left out this figure entirely.⁶ Why care about him and the records he left, whether in Manila, Quito, Albany, Genoa, or Nantes? First, because extrajudicial notarial records are very particular (though rarely occasioned by acts as momentous as Columbus's); they suggest much about the texture of everyday life.⁷ As Julie Hardwick puts it in her study of the notariate of early modern Nantes, "Notaries, in France as in large areas of the early modern West, from Italy to the newly founded European colonies, were crucial cogs, albeit at the lowest level, in the apparatus of the state and in the daily organization of people's lives."⁸ They made legible countless transactions people might eventually want the state itself to see, judge, adjudicate—or that the state might want to see.⁹ Notaries' records set down not only names and dates but the terms of labor contracts, sales, rentals, loans, marriages, dowries, divorces, testaments, and codicils. Second, for those of us writing premodern and colonial histories, these are often the richest, most abundant sources available. For the sixteenth and seventeenth-century Andes, for example, there are no newspapers or journals. Very few diaries survive, and personal letters generally turn up in archives only when they were adduced as legal proof. Parish records also survive but are often scattered, incomplete, and hard to access. Much of what we can locate and interpret thus comes from notarial archives.

Moreover, as Columbus's actions attest, notaries enjoyed a special relationship to the truth.¹⁰ They were expected to witness noteworthy acts, from the spectacular—like Columbus's seizure of Guanahani—to the humble and mundane: the promise of a dowry, an apprenticeship, or a loan. It then fell to notaries to shape the messy specifics of each event into the proper form to be committed truthfully to the page.¹¹ Not just any written language would do. Manuals with specific itineraries of meaning were used in Europe and the colonial Americas to guide these men in straitening the endless diversity of people's actions and language into the approved formulae.¹² Notaries were thus truth's alchemists, mixing the singular into the formulaic in accordance with prescribed recipes to produce the written, duly witnessed, and certified truth. Their truth was recognizable not by its singularity but by its very regularity. It was truth by template—la verdad hecha de molde.¹³

The marks of this stylized, notarial truth are everywhere in the archives of Europe and the Americas, in documents that aggressively demand the reader's belief in the notary's word. Even the most routine transactions are full of formulaic professions of the notary's faithfulness and appeal to the notion that he was there—present at the scene, a trustworthy eyewitness—properly equipped to register what mattered. To take a humble example, regarding the sale of a house in seventeenth-century Cuzco, Peru: "I, Martín López de Paredes, the notary of this contract and numerary notary public of this city, give faithful and true testimony of how the said María Panti received from the hand and possession of Licentiate Francisco de Allier a Quantity of Money in pieces of eight and tostones of four in a large cloth bag, and she took possession of them ... ."¹⁴ So potent and recognizable was this notarial truth-rhetoric that many early modern writers used it in their work. Among them were chroniclers of the Indies like the Inca Garcilaso de la Vega, in whose work Roberto González Echevarría sees abundant evidence of a desire "to set the record straight ... to get at a truth that is not only the historian's elegant verisimilitude but the judge's executive kind of verification and action."¹⁵

Yet writers on both sides of the Atlantic also vigorously contested the notion of the notary as upright bearer of truth. Early modern European writers made notaries stock figures of corruption and greed, eager to produce the best truth money would buy. In the works of Miguel de Cervantes, Mateo Alemán, and Francisco de Quevedo, for example, which circulated widely in the Americas, notarial writing appeared as the very opposite of what it should be: illegible, rather than clear; false, not truthful.¹⁶ Numerous Spanish proverbs or refranes excoriated notaries for being on the take and perverting justice: Mi pluma y mi tintero me valen lo que quiero (My pen and inkwell are worth whatever [amount] I want); Papel y tinta, y poca justicia (Lots of paper and ink, but little justice).¹⁷ And chroniclers as different as the Augustinian friar Antonio de Calancha and the Andean nobleman Felipe Guaman Poma de Ayala drew similar portraits of Andean notaries. These men took bribes, they destroyed people, and then, according to Guaman Poma, they walked away laughing at what they had done.¹⁸ Calancha tells of a shady notary of La Plata who, in the midst of drawing up a fraudulent contract, was struck down in his workshop by an earthquake: "As the entire building collapsed, a beam caught the scribe's head between the corner of the table on which he was writing and his hands, and sliced off his hands like a knife."¹⁹

What to make of such contradictions? Given the clear constructedness of the early modern notarial record, its cultural exclusivity, and the doubts contemporaries entertained about the status of what I am calling "notarial truth," when should we take Spanish American notaries—or for that matter, any notaries—at their word? The pitfalls of doing so will seem obvious to anyone who has relied on notarial registers to write history. To work with them even briefly is to recognize their intense regularity and how much they do not disclose, and perhaps to wonder about the forces and grids of meaning that shaped such records in the first place. (To read in a will for the first time of a deceased person leaving her spouse property "out of the love I bear him" is to wonder about the history of mentalités, of love and affection; to read this standard phrase for the fifth or sixth time is to wonder about the conditions of notarial production of wills.) Yet more often than not, we accept notaries' words without inquiring into the practices and relationships that shaped the records on which we rely.²⁰

I will argue here that we need to look at our archives, not just through them.²¹ Drawing on Andean records produced from the sixteenth to the eighteenth centuries, I will propose that we imagine the notarized document itself as an historical artifact—a space where negotiations once took place, around the notarial template, leaving traces of understandings that often belie the wording of the text.²² This approach makes salient an almost entirely unremarked arena of conflict and arbitration of meaning: the far-flung notarial workshops in which trained men produced for a fee the documents we now rely on to make our own sense of the past. Into these shops came men and women of all kinds interested in registering their business, and they had to play by the notarial rules to get their versions recorded. To interpret the results, I will argue, we must first understand the rules (both formal and informal) according to which people's truths collided and competed.²³

For not just anyone could register the truth he or she wanted. And notaries were not disinterested bystanders. Getting one's version of events into—or out of—their registers required access to a notary, and usually involved money.²⁴ It might also involve a clandestine deal, perhaps a high-stakes struggle. Consider, for example, the 1714 deathbed declaration of Don Bernardo de Benavente, a long-time assistant (oficial plumario) to Joan de Saldaña, one of Cuzco's six "numerary" notaries public (escribanos públicos y del número).²⁵ In 1714, the dying Benavente declared that at some point decades earlier he had gone with Saldaña to the home of an indigenous nobleman named Don Cristóbal Paullo Topa Inca, "in the company of Don Agustín Jara the elder and Don Agustín Jara the younger, Doña Josefa de Valer his wife, and other gentlemen," to record the draft (minuta) of a notarized deal. The assembled "gentlemen" had gone

to propose to said Don Cristóbal Paullo Topa that he sell the land called Chamancalla and its highlands, to which the said Don Cristóbal Paullo Topa said yes, whereupon [Benavente] began to write the draft dictated by Saldaña, and it was in the amount of five hundred pesos. Fifteen years after the said document was formalized, Don Lorenzo Carlos Inca told [Benavente] that the contract of sale had been in confidence, and that he should come forward to tell what he knew of the case because [Don Lorenzo] had started censure proceedings.²⁶

Benavente went on to register more details of the encounter he had witnessed. Don Cristóbal had signed a blank page, approving the sale even though no one had paid him for the land. This was not "faithful," law-abiding procedure. But that did not bother the Jara clan, among Cuzco's most wealthy aristocrats. Benavente's confession suggests that the local elite might enlist a notary to represent things the way they wanted, even though their version was not what he saw.²⁷

Sometimes people used one notary to protest something they might be forced to register before a different notary. Take the "exclamation" of Doña Mariana García del Corral, who in 1684 documented her refusal to bend before her husband and his friend the corregidor (Cuzco's highest Spanish authority). Her husband, according to this record, had sued to force her to join him in seeking formal legitimation of a boy named Joseph who had been abandoned on the couple's doorstep. She loved the boy, "having raised him from a very early age," but did not want Joseph legitimated.²⁸ In the words certified by notary Pedro de Cáceres,

for that she has had to put up with an increasing amount of insults and unpleasantness, and her husband has threatened her to force her to make the said [legal] declaration, and because of his close friendship with the general Don Pedro Balbín, Corregidor and Superior Justice of the said City, she fears that the Corregidor may cause her difficulties by arresting her or mistreating her in words or deeds, on account of her husband's suit against her.²⁹

The notary went on to register that Doña Mariana's husband had gone to the extreme of throwing Joseph out of the house, to pressure her to go along with him. She commissioned her version in September 1684 so that if she ever made any notarized declarations to the contrary, it would be clear that she had made them under duress and that they were not legally valid.³⁰

Such unusual cases disclose a different view of notarial truth than the one the text represents. Record making was a highly collaborative process, involving "secret agents" like Benavente. It might also be very partial and interested—involving not just writing and rewriting but preemptive counterwriting, revocation, and cancellation, always with an eye to the future. The archive starts to feel like a chessboard, and notarial "public writing" much less like a window on the Spanish American past or a tape recorder recording voices. ³¹ (Many contemporaries knew how the game was played , and, as we will see, went to great lengths to get notaries on their side.) What were the rules of this chess played through the hands of others and with an eye always looking ahead to other parties' possible moves? Here I will consider the rules, the said and the unsaid, and the stakes—both for Andeans and for those of us using notaries' archives to write histories.

Al principio fue el notario,	In the beginning was the notary,
polvoriento y sin prisa,	dust-covered and in no hurry,
que inventó el inventario.	inventor of the inventory.
	—Nicolás Guillén, El diario que a diario³²

Well might Guillén write this passage, for the violent invasions that followed Columbus's 1492 acts were remarkably well attended by notaries. Hernán Cortés, who led the 1519 invasion of central Mexico, had experience as a notary; so too did one of Hispaniola's earliest Spanish authorities, Gonzalo Fernández de Oviedo, whose best-selling history of the Indies relied on his eyewitness status.³³ The Iberian notaries who reached the Americas were quick to lay down their grids of meaning, to have their versions committed to writing and to extend the long paper trail over which the dust of centuries would settle. But were they actually inventing anything? Yes and no. A look at Castilian antecedents indicates they brought with them extensive training and scripts. But notaries were always also "inventing." American people and activities brought pressure on the old molds, and these had to change and let meaning go in new directions. To see when and where, however, we first have to examine the scripts from which they were departing and the practices that had developed around their use.

It makes sense that numerous notaries were among the first Iberians to reach American shores. By the time Iberians were invading various parts of the Americas, career options for escribanos were multiplying rapidly, and had been doing so for some time.³⁴ In the wake of Alfonso X's thirteenth-century formalization of notarial practice, a creative tension between the monarchy and Castilian cities had led to the proliferation of types of notarial offices, as kings created theirs (escribanos del rey) and cities theirs (escribanos públicos del número), each type with its own scope and qualifications.³⁵ At the same time, however, Castilian notaries were reaching a kind of professional nadir.³⁶ The rapid expansion of their ranks had been marked by widespread corruption, generating many grievances. At the 1469 Cortes at Ocaña, for example, King Enrique IV received a complaint that "many false documents are drawn up by the many notaries that in recent years your lordship has created and authorized; here many children and men who do not know how to write hold titles to the office of notary that they purchased in blank."³⁷

Like so much else, this situation attracted the reforming energies of the monarchs Fernando and Isabel, who set about disciplining refractory Castilian notaries and imposing stricter criteria for the exercise of notarial offices. Tighter royal control over examinations was instituted, for one thing.³⁸ Thereafter an aspiring notary had to demonstrate familiarity with routine transactions such as sales, rentals, and proxies; thus manuals to guide practice began to proliferate by mid-sixteenth century. Some, like Hernando Díaz de Valdepeñas's Suma de notas copiosas muy sustanciales y compendiosas (1544), contained little more than forms without preamble, legal background, or orientation as to each contract's proper usage.³⁹ Others were more didactic and ambitious, less slim, and presumably more expensive, like Gabriel Monterroso y Alvarado's Pratica Civil, y Criminal, e Instruction de Scrivanos (1563), explicitly designed to help notarial candidates pass their exams with more than a smattering of the ars notariae. Monterroso was not above shaming his readers as a motivational tool. He laments bitterly that "in many parts of these kingdoms it is customary that with no work or study, notaries use their offices any way they please. This causes all manner of clumsiness and barbarity (in contrast to foreign kingdoms, in which notaries have Latin and a good education)."⁴⁰

These Iberian manuals—the notarial template of their day—circulated widely from the sixteenth century on, and were a formative element of notarial practice. It is important to note that they were not unanimous in their opinions. Rather, authors sought to make their manuals distinctive and necessary by taking on each other's perceived flaws and weaknesses. Some tailored their manuals to concentrate on particular areas or audiences, like Juan de la Ripia's manual on the making of wills, Practica de testamentos y modos de subceder, and Thomas de Mercado's influential Tratos y contratos de mercaderes y tratantes, on the proper recording of merchants' practices.⁴¹ Many authors established their authority by citing their own notarial experiences, and not a few lamented the ignorance and malpractice they saw in their fellows. Antonio de Arguello's prologue to his Tratado de escrituras y contratos publicos is typical. After remarking on the shortcomings of two popular manuals, Monterroso's and Diego de Ribera's, Arguello goes on to decry those who make out contracts "so imperfectly, and with such prolixity and verbosity of reasons, that the reasoning is confused and some parts conflict with others, from which many doubts and lawsuits result, as we see daily."⁴² Manuals' authors promised to help the aspiring notary not only pass his exam but avoid endangering his salvation through grievous error.

Yet the most important part of a notary's training remained practical: his apprenticeship. Typically, an aspiring Castilian notary spent a few years training to exercise his "art" by serving as a copyist (escribiente) and working his way up in a notary's workplace (escribanía). In the case of apprentices to notaries public, this meant accompanying the notary on his rounds—to the bedsides of dying testators, for example—to receive his dictation of the minuta (or nota), the draft of a document (instrumento). Afterward, the parties would be read the contents and, upon hearing and consenting to them, would affix their signatures along with the notary's. This constituted a legally authoritative, matrix copy of the transaction. Back in the notarial workshop, copyists would then copy this document out for the parties involved.⁴³ The matrix copies of documents would remain in the notary's care and at the end of the year would be indexed, sewn together, and bound into a volume (protocolo) by his assistants for future consultation as needed.⁴⁴

Such, at least, were the formal requirements—the guidelines within which Castilian notaries public were supposed to operate, resisting the temptation to innovate, mix up, or otherwise corrupt or falsify their records. Here it is crucial to note that the very structure of Castilian notarial practice assured variation between one person's version of what mattered and another's. This was why people sought notaries in the first place: to render the colloquial into state-sanctioned, "official" writing.⁴⁵ Making documents typically involved at least two moments of writing (that of drafting the minuta and that of copying out the final product), and several people played a part in shaping and authorizing the contents. Thus, even in the case of the simplest, most clearly scripted transaction and in the absence of bad faith on anyone's part, slippage could occur: one copyist might misread another's abbreviations, for example.⁴⁶ And room existed in this system of truth-production for more interested kinds of slippage, due to bribery or other inducements.⁴⁷

Spain's monarchs tried various measures to ensure that notarial indiscipline would not spread to the Americas.⁴⁸ Spanish American notaries were, by royal decree, to be given title to their offices only by their monarch, through the Council of the Indies.⁴⁹ However, Spain's sixteenth-century monarchs had a much more pressing concern on their minds: royal bankruptcy. The urgent need for royal income took precedence over much else that the crown wanted to accomplish, including the establishment of a well-trained notarial corps in the "New World." As early as 1522, royal decrees went out specifying which kinds of overseas royal appointments might be sold; most were varieties of notarial office. The crown would receive revenue at each sale. The Recopilación de Indias records the crown's insistence that purchasers be "able" people ("hábiles, y suficientes"), confirmed in their offices, and so forth.⁵⁰

Whether or not American notaries were qualified or "able" is another matter. Almost from the beginning of overseas colonization, Spain's monarchs worried that across the Atlantic there was dangerous slippage in the production of notarial truth. In 1564, Philip II noted that his viceroys and judges had taken the liberty of "naming people to write, and take part in visitations, inspections, and other business, and draw up contracts, wills, and other public instruments, as though they were our Royal Scribes,"

which has resulted in documents and inquiries with notable errors, and [the people in question] should be trained and capable, as is fitting for the exercise of their office, and verifiable through examination, since the security and good form of their records and registers, which they do not keep with the necessary care, is so important. And from this [failure to keep good records] follows confusion, and variance in the facts of the truth, because sometimes petitions and documents are lost, and with them an accurate account.⁵¹

The king ordered that no one exercise Spanish American notarial office without having first obtained title from the crown, an order repeated many times by his successors. In 1569, he decreed that Gabriel Monterroso should enjoy the exclusive right to print and sell his notarial manual in the Indies for a period of twenty years.⁵² And in 1576, Philip II began to limn a category of "prohibited" notarial persons, adding to his many decrees his insistence that "neither mestizos, nor mulattoes be Notaries."⁵³

Over the years, Philip's successors and the agents of their overseas rule would fashion many more norms to discipline notarial practice. Notaries were to be legitimate, of pure blood; they were to collect only the fees specified in the official arancel; fees in the Philippines were to be the same as those in New Spain—and so forth.⁵⁴ The intention of all of this notarial norming was to make colonial notaries as Castilian as possible. Antonio de Nebrija would have been pleased; the written language was getting its due as a crucial instrument of conquest. This was not to be a trumpeted conquest, but a bureaucratic feat, achieved without fanfare.⁵⁵ To guide "New World" notarial practice, manuals for scribes circulated through the Spanish American capitals, provinces, and towns: not only Monterroso's Pratica but also popular manuals by Ribera, Arguello, Diego González Villarroel, and Pedro de Siguenza.⁵⁶ By 1605, a rare American-made manual was available: the Política de Escrituras, published in Mexico City by Nicolás de Yrolo Calar.⁵⁷ It contained some distinctively American forms: how to empower an agent to travel to Spain and obtain credit or to collect tribute from one's indigenous tributaries (encomienda).⁵⁸

Knowing what to write was a necessary but not a sufficient condition for producing notarial truth, however. For a notary's practice to function, in Spanish America as in Spain, several people besides the notary had to be involved—witnesses, copyists, and higher-level assistants (oficiales plumarios; oficiales mayores), as well as translators. The notary dictated the proper form and eventually affixed his authenticating marks, but he did not write the documents in question himself. His staff did that for him.⁵⁹ Thus notarial practice was a highly mediated affair. It was often a family affair, too, since notaries tended to train junior relatives to succeed in their posts.⁶⁰

Where did the indigenous languages of the Americas fit into this Castilian notarial system? The norms instituted for American notarial practice have very little to say about those on the receiving end of this linguistic invasion.⁶¹ Yet indigenous, culturally ambidextrous notaries seem to have become common in many parts of the Americas by the second half of the sixteenth century. In the Andes, where the paper trail they left is now scattered and fragmentary, most seem to have written in Spanish.⁶² (See Figure 1.) By contrast, Mexican archives contain a relative abundance of records by indigenous notaries, not only in Spanish but in Nahuatl, Yucatec Maya, Mixtec, and other languages.⁶³ Scholars are actively debating the meanings and historical implications of these sources, and of "alternative literacies" like the knotted cords of the Andean khipu.⁶⁴ Were indigenous notaries faithful mirrors of their communities' wishes? How exactly did they work and on behalf of whom?

Figure 1: Felipe Guaman Poma de Ayala depicts an Andean notary—labeled in both Spanish and Quechua, as escribano de cabildo and quilcay camayoc—in the process of writing a will in Spanish. Reproduction with kind permission of the Royal Library, Copenhagen, Denmark, from manuscript GKS 2232 4°, "El primer nueva corónica y buen gobierno (1615/1616)." A facsimile edition of the entire manuscript is available on line (http://www.kb.dk/elib/mss/poma/).

Case studies of indigenous notaries are still few but tend to portray these men as relatively powerful, prestigious members of their communities.⁶⁵ Yet their records are depicted as distinctively "communal" in nature. According to Matthew Restall, for example, "a Maya document such as a will involved the entire community, either directly as witnesses or indirectly through cabildo participation."⁶⁶ Historians of the colonial Andes have had comparatively little to say about indigenous notaries. However, Andeanists repeatedly make the point that indigenous elites' interests, from the sixteenth through the eighteenth century, might diverge markedly from those of commoners and be attained very much at their communities' expense.⁶⁷ Juxtaposing Mesoamerican and Andean ethnohistory thus raises intriguing questions. If indigenous notaries were nobles or high-ranking local authorities (or both), aligned with the interests of a local elite, their record-keeping practice may have been less representative of a collective, communal will than is often supposed.

Whatever the case, it seems that native Andeans who had their business affairs notarized in cities sought to have them recorded in Spanish, whether before indigenous, parish-level notaries or not. This meant an additional layer of mediation: translation from "the general language of the natives" to Spanish, either by the notary or by an interpreter. Additionally, the presence of an official "protector of the natives" was required when indigenous people transacted business before a city's notaries. These men, who appear over and over in the Andean colonial record, generally had Spanish names, as did most of the notaries running accredited notarial workshops in major cities and towns. Probably most were creoles—the American-born descendents of Spaniards—and bilingual to at least some extent. Certainly in places like Cuzco, many colonial creoles had learned Quechua, and examples can be found of notaries who were intensely proud of their noble Andean ancestry—like Lorenzo de Messa Andueza of Cuzco, who claimed descent from Inca rulers Huayna Cápac and Túpac Yupanqui.⁶⁸

The production of notarial truth in the Andes thus provided ample room for notaries and those working with them to introduce variations in their clients' understandings of what had happened. This was actually what clients expected their notary to do for them: impose his professional template on the messy specifics of a transaction and discipline its details into legally valid form.⁶⁹ So it went from Madrid to Manila, wherever notaries were hired to practice the ars notariae. We have seen that structurally the Castilian system of notarial production left a lot of room for play between the draft of a document and its final version. Socially and culturally, even more room for variance can be imagined: room for notaries to bring pressure on their clients and copyists, for copyists to embarrass their notaries, for clients to bring pressure on notaries, copyists, and other clients (recall the case of Don Cristóbal Paullo Topa Inca). Of course, clients themselves did not always come before their notaries with their disagreements neatly resolved. They might use the space of the notarial document as one more arena for their disputes (as with Doña Mariana García del Corral and her husband).

The clearest sign that colonial Spanish Americans themselves saw the production of notarial truth in this way—as something that might reflect particular interests and not simply happen by the book—is the lengths to which they would go to get notaries on their side. From the early history of Iberian settlement in the Americas, Spaniards did what they could to get a notary in their back pocket. Viceroys and high judges were admonished in 1559 to stop plying their notaries with free Indian labor, because of the "inconveniences" (as good a period equivalent for "conflict of interest" as any) that resulted.⁷⁰ Three decades later, Philip II was seeking to pry notarial offices out of the grasp of encomenderos (holders of valuable encomiendas, indigenous labor grants), requiring that they "choose to be either a notary or an encomendero."⁷¹ The crown also supported notaries' local efforts to nurture high professional standards and esprit de corps. By 1573, Mexico City notaries had founded a religious brotherhood (cofradía) named for the Four Sainted Evangelists (los Cuatro Santos Evangelistas) and based in the Mexico City monastery of San Agustín. Exclusively for local notaries, its members contributed time, energy, and funds with the expectation that they and their families would be supported in times of need. Centuries later, it would become the basis for the founding of the first American school for notaries, the Real Colegio de Escribanos de México (founded in 1792).⁷²

Yet for all the crown's best efforts to make notaries a body of neutral, disinterested professionals, local practice produced and supported a different scheme of things. If something important was at stake, one notary was not just as good as another. The most trusted notary, the one who had become practically part of the family, was the clear, logical choice. In colonial Cuzco, across generations, both families and institutions spent time and effort cultivating good relations with a particular notary (and his family). Having close relations with one's notary meant getting an inside track on valuable business, perhaps getting a loan ahead of anyone else.⁷³ Small wonder that so many Castilian maxims urged special care for these relationships and the painful consequences of neglecting them: Cuerdo es quien redime su daño con lo que ha de dar al escribano (Wise is he who redeems/ransoms his troubles by giving something to the notary). Tintero y escribanía, lanza y dardo (Inkpot and desk [or notary's shop], lance and dart).⁷⁴ Quechua and Aymara sayings might have figuratively shafted the notariate too.⁷⁵

If we look at notarial archives with the above things in mind, recognizing that the crafting of a document's final content might have involved considerable negotiation and a large gap between what was written and what was performed, then their contents become all the more meaningful. All notaries fabricated truth-effects, and the results of their word-fixing carried a charge.⁷⁶ Even after it was indexed and archived, a document might still generate lively conflict: it might (if the stakes were high enough) be mutilated, hidden, stolen, miscopied, misauthorized, or mislaid. As we will see, a close reading of the notarial record—especially where it breaks down, disclosing people's conflicts over meaning and veracity—can make seemingly tedious protocolos disclose colonial relationships and power plays.

Better than almost anything else in the notarial repertoire, exclamations—formalized outbursts of protest like Doña Mariana García del Corral's—reveal the limits and ambiguity of the notarial record. To come across one is relatively rare, and startling, since notarial records overwhelmingly represent parties' accord. They confront the reader with aporia in the archives, hinting at all that was not registered, and perhaps could not be, by the parties to the notarial action.⁷⁷ Here, for example, is an exclamation registered in Cuzco in 1623 by Doña Jacinta Ramírez de Quiñones, who went before notary Cristóbal de Luzero to denounce her husband. According to Doña Jacinta's November 8 protest, certified by Luzero and stitched into his registers, her husband Don Sancho Niño de Valenzuela had been threatening her:

[F]or several days now he has been persuading, forcing, and coercing her to enter with him into a contractual obligation to pay Juan López Aguas, muleteer, the amount of 3,000 pesos corrientes, 2,500 pesos of which Don Sancho has already agreed in writing that he owes Juan López, and 500 pesos of which Juan López now wants to give him in clothing and other goods ... Once he put a naked sword to her breast, and at other times a dagger, and he has laid hands on her and beaten her and mistreated her and otherwise done her harm, forcing her to enter into the said contract for the said amount of 3,000 pesos.⁷⁸

The root of the conflict, according to this version, was Doña Jacinta's resistance to her husband's plan to secure the 3,000-peso writ: he wanted to put up her dowry goods as collateral, but she had refused. Without her consent he could not close the deal and obtain the additional 500 pesos' worth of goods from Juan López.

Literally forms of protest, such documents throw into new perspective the countless routinized agreements in which people gave each other permission to transact business of various kinds. Men had to get formal permission to pledge their wives' dowry goods. Women had to get their husband's or tutor's or guardian's or religious superior's permission to do business at all. Women and men speaking Quechua had to have their words sieved and translated. Was the granting of such permission as flat and routine as it appears on the notary's page? In many cases it probably was—but Doña Jacinta's protest serves as a reminder that we cannot simply assume deals were always transacted precisely in accordance with notarial formulae. Coercion might have been part of the process, a part papered over in the form language of joint legal action (mancomunidad).⁷⁹

More commonly, people protested the legitimacy of the documents they had signed well after the moment of signature, once controversy overtook them. See, for example, the 1638–1639 case of Cuzco parish priest Cristóbal de Vargas Carvajal, who was aggressively pursued by Don Diego Gutiérrez de los Ríos over indigenous tribute that Gutiérrez claimed the priest was obliged to deliver to him but never did. The priest declared that he had been forced by Don Diego and the local corregidor to sign a blank contract of obligation, and that the completed document did not reflect the terms to which he had agreed.⁸⁰ His argument failed to convince, and the suit went to Lima on appeal. The same documents contain a chilling reminder that the duly executed, authorized page was literally a matter of life and death in colonial Peru. At issue between the two contenders, the priest and the encomendero, was how much tribute could be collected from the indigenous tributaries formally enrolled in Vargas Carvajal's parish. Their assessment had been raised because they had been unable to prove conclusively, by adducing acceptable documentation, that many of their fellow tributaries had died and been buried in Potosí.⁸¹

More alleged pressure tactics turn up in the case of a 1785 foreclosure on the Cuzco residence of Don Ramón Vicente Tronconis, who had stopped making his annual payments on a 3,000-peso note payable to the convent of Santa Catalina in Cuzco. The daughter of the indebted Don Ramón came forward in his defense, declaring that the 1779 document her father had signed recognizing his obligation to pay the nuns 150 pesos a year had been signed "when he was gravely ill, and very agitated by the [convent's] Administrator ... who took him by surprise, and to avoid the foreclosure with which he was threatened, and relieve the suffering that oppressed him, he hastily agreed [to the contract]. Motives which truly render insufficient the Document."⁸²

Such cases suggest that one might get a notary on one's side, firmly enough to countenance pressure tactics and then, in his certified document, conceal them. Cuzqueños alleged pressures of this nature, but seldom brought formal charges against notaries for warping notarial procedure.⁸³ Yet such cases do exist. Occasionally a Cuzco notary was jailed for malpractice. Don Alejo González de Peñalosa, for example, was charged with "falsehood" in 1742 and imprisoned for having drawn up a power of attorney for Doña Francisca Calvo, who, prosecutors claimed, was in her death throes and thoroughly incapacitated at the time.⁸⁴

It was especially vital for large institutions like convents and monasteries to cultivate good relations with their notaries. They had a great deal of property and capital at stake in the local economy and were constantly drawing up contractual instruments to deploy it with one or another local borrower, renter, or merchant. Large religious houses tended to center their business on one or two local notaries with whom they forged close ties over the years. The nuns of Cuzco did this in a variety of ways: by accepting a notary's daughters in their cloisters; by extending him credit from the convent's dowry fund; by giving him favorable payment terms on the rental of local property, and so forth. Among the notaries with whom the Dominican nuns of Santa Catalina created such relations was Martín López de Paredes. A 1661 document details the terms of their arrangement: the notary had agreed to serve the nuns as a labor broker at a time when Santa Catalina was undertaking a construction project. Prioress Doña María de Sena Arias Dávila expressed that

for this project they needed materials and Indians, for which they spent a large sum of pesos, yet still they have lacked enough Indian peons because in this city they cannot be found for hire, and thus ... they have turned to Martín López de Paredes, notary public ... to rent them some Indians from the province of Quispicanche, which he has done and with which assistance they have carried on the project until now ... And in gratitude for the above, and for all that he has done for the said monastery in seeing to the collection of payments owed to it and the drawing up of all its documents ... without having received any salary or interest whatsoever but only because he has two daughters as novices in the monastery where, God willing, they will profess as nuns of the black veil, and so that they may have a place to live ... I want to sell him two second-floor cells.⁸⁵

So it was that the nuns' trusted notary obtained choice spaces in the newly made second cloister of Santa Catalina for two of his children.

The resulting relationships might be cozy indeed. Cuzco notary Pedro de Cáceres was so thoroughly trusted by the nuns of Santa Clara, for example, that they did not discover until years after his death that he and his assistants had failed to record convent business in his registers. Several empty pages, graced with the nuns' signatures, may still be found stitched into the volumes of Cáceres's transactions for the years 1696–1697. The nuns had assumed their notary would have his copyists fill these pages with the relevant language of a standard loan. Interestingly, no one seemed to mind too much when the abbesses of Santa Clara discovered this bit of notarial malpractice. The abbesses simply went about obtaining retroactive authorization of the deals in question (with the help of a different notary, and the permission of city authorities). The new notary acceded to the task of ghostwriting the clauses of thirty-year-old loans, with such form language as "I saw them hand over and count the coins," etc.⁸⁶

As long as times were good, it might not matter whether or not notaries had followed basic rules for registering their clients' business. But lean times were different. By the early 1800s, the financially desperate Spanish crown had started finding ways to seize and otherwise divert church assets to the royal treasury. One result, according to a middling Spanish official in Cuzco in 1806, was that local convents and monasteries had initiated the "criminal and reprehensible" practice of loaning out all the resources in their coffers, "so that it might not pass into the hands of the Sovereign." He went on the offensive, requisitioning monastic records. Then he singled out an unusually large loan, in the amount of 19,000 pesos, which he insisted the nuns of Santa Clara had made (fraudulently) to their mayordomo, Don Martín Valer. There it was, in records of notary Bernardo Joseph Gamarra: a contract reflecting that the loan had happened in Gamarra's presence. No, explained Abbess Francisca del Carmen Zamora. Valer had indeed requested the loan,

but after awhile, and, moreover, after the corresponding document had been drawn up, he changed his mind, and so he did not make use of the document. In keeping with the practice of the Monastery, [had he wanted the loan,] he would have taken a copy of the said document [to the convent] so that in the presence of the Scribe he might receive the money, with the Superintendent, the Abbess, and the Council Mothers present, since the four keys to the Safe are distributed among these Persons; after which the transaction would necessarily have been inscribed in the book of the convent's Safe, which has been presented to the Superior Junta in accordance with your order.⁸⁷

Former abbess Asencia del Espiritu Santo y Valer ratified this description of the nuns' way of doing business in her testimony: "Even though a Contract was drawn up indicating that the loan had been made, this was only because it is the custom of this Monastery in such dealings always to draw up the Contract before the delivery of the money." The actual loan would only "truly" happen ("verdaderamente") once the would-be borrower appeared at the convent with the notary and the preexisting document in tow. Because Valer had not actually received 19,000 pesos from the nuns' coffers, she patiently explained, the notarial record of the loan had been formally canceled—not because Valer had repaid the money (as the document declared), but because he had never taken it out in the first place! Empty-handed, and furious at having discovered what notaries did out of bounds in the service of "custom," the incensed members of the local Junta de Consolidación took out their frustration on the notary Gamarra, warning him "that even if in that Monastery there is custom to the contrary, he should exercise his office with greater care." Any further instances of malpractice would bring fines down upon him. (We can only wonder how many other seemingly solid contracts in the archival record were the result of such customary sleight of hand.)

These are hardly the only instances of notarial records being drawn up before or after the fact. Nor were the parties in question always large institutional actors like convents. The registers of Cuzco notary Lorenzo de Messa Andueza record, for example, the purchase of a young African-American woman named Ana by a southern Andean curaca named Don Ambrosio Clemente Tupa. Three years after the 1668 purchase, Don Ambrosio formally declared that he had purchased Ana with money that had been given him for that purpose by another curaca, Don Bartolomé Tupa Hallicalla. After purchasing Ana for 700 pesos in the city of La Plata and returning to the two men's hometown of Asillo, Don Ambrosio indicated, he "had given her [to Don Bartolomé] and by an oversight he did not make a formal declaration but only handed over [to Don Bartolomé] a copy of the record of the purchase, and now that he finds himself in this city [of Cuzco] he has been asked by said Captain Don Bartolomé to have the said declaration drawn up." Don Ambrosio did so, and the two indigenous noblemen's signatures may be found on the record drawn up for Messa Andueza's rubric.⁸⁸ They considered their business transaction important enough to register but not so urgent that it could not wait until the next time they went into town.

The picture that begins to emerge from all this is one of great strategic flexibility and acquiescence (or connivance, depending on one's perspective) between clients and their notaries. Understanding this means taking into account the way contemporaries regarded the notarial record. As the cases I have cited suggest, contemporaries were looking for legally valid cover—a paper trail to which they might have recourse should the occasion arise. They were not interested in leaving a unique record of their business. Rather, they were interested in being able to prove, should it become necessary, that they had the right to enforce certain terms: to collect on a loan, or a promise of dowry, or a rental contract.⁸⁹ If they could not adduce the relevant papers at the proper moment, they might lose what they were due. Clients thus wanted from their notary well-made records that could withstand the pressures of eventual lawsuits. Notarial records are in this sense always in implicit dialogue with an imagined litigious future.⁹⁰

One final question that we can usefully consider here: what did notaries want? Certainly an income. And not, to go by the Andean notarial paper trail, simply to obey the letter of their manuals and their sovereign's decrees. Like virtually any Spanish American officeholder, notaries obeyed other criteria and responded to other pressures as well. Notaries in places like Cuzco—large, important cities at some distance from the viceregal court and its judges—in all likelihood fit in diverse ways into what Steve J. Stern has called "power groups," variegated collections of local "notables" and functionaries who, over centuries, forged blood and business ties of many kinds.⁹¹ In Cuzco, a creole elite of interlocking families like the Esquiveles, Costillas, Valverdes, and Jara de la Cerdas had captured a tremendous number of local offices and resources by the late seventeenth century and managed to become a law unto themselves. Such families, like large religious houses, may well have cultivated particular members of the local corps of notaries.⁹²

But notaries might also forge close ties among themselves. If in Cuzco they did not create their own religious brotherhood, they nevertheless did each other many favors, as their yearly registers and their wills amply attest. The relatively prosperous Pedro de la Carrera Ron, for example, noted in his 1617 will that he had lent his fellow notary Alonso Herrero 50 pesos to assist with his wife's funeral expenses. He also registered a much larger sum, 6,500 pesos, that Cuzco notary Francisco de Hurtado owed him.⁹³ Even when competition pitted them against each other, notaries might provide each other assistance. Tomás Cárdenas, a Cuzco notary who had bid vigorously against Juan Bautista Gamarra for title to an office in the early 1700s, later went out of his way to help Gamarra recover stolen records.⁹⁴ To the extent they were able to establish a corporate bond and identity, Cuzco's notaries may have been able to achieve some degree of autonomy for the activities they supervised from their posts in the Portal de los Escribanos.⁹⁵

Here I have insisted that notaries produced a particular kind of truth. Drawing on the many manuals that circulated in the Atlantic colonial world, they imposed rather tight scripts on their clients' language, narrative structures, and expressed desires. Clients, for their part, might shape and crop their own versions of their business beforehand, deciding (perhaps in mutually agreeable terms, but perhaps in decisions forced by one party on another) to change crucial specifics or conceal them from their notary altogether. Both clients and notaries maneuvered within the bounds not only of local power relations but of accepted legal "custom"—a realm about which we need to learn much more. "Custom" in the colonial Andes encompassed such seemingly unlikely practices as clients' routine signing of blank pages in notaries' registers. In early modern Nantes, it seems to have been customary for notaries to broker credit deals for their clients, certifying that the clients met face to face, although "lending and borrowing parties did not necessarily—perhaps not normally—meet."⁹⁶ As notaries and clients created extensive textual fictions of agency, how much across the Atlantic world was shared custom? When and how might it change? How far did it diverge from by-the-book prescription, and how are we to interpret the differences?⁹⁷

My point is not to vitiate notarial archives as sources. The point is to historicize them—the conditions in which they were made, and the people who produced them—for critical acuity about the kind of truth they offer. This can to some extent be done as one reads the notarial record itself. The reading I have been carrying out is one that looks for revealing gaps and contradictions, which tell us a great deal about what the notaries' molds were made to contain and the pressures they were built to withstand.⁹⁸ Of course we do not rely on notarial records alone, and I would guess that many historians gain a critical sense of the notarial archive's peculiarities the way I did, by coming across sources that seemed to contradict what a notary had affirmed was true. Take, for example, the donation that curaca Don Francisco Mayontopa made in the late 1550s to the nuns of Santa Clara in Cuzco of some forty-eight hectares of his community's best land: according to its terms, Mayontopa donated the land "of his free and spontaneous will." Once convent records turned up, however, I read that Mayontopa's notarized move followed a long legal wrangle he had had with the convent and was probably anything but a cheerful, voluntary act.⁹⁹

Historicizing the archive is thus a necessary step in understanding voluntad (will) and agency.¹⁰⁰ Consider the case of Andean nobleman Don Cristóbal Paullo Topa with which I began. The 1685 contract he signed for the sale of Chamancalla could be taken as evidence of his express will, and indicative of Andean nobles' "agency." But what of Benavente's 1714 deathbed declaration, which seems to indicate that Don Cristóbal was made to act against his will in 1685 and sign a blank page to acknowledge receipt of money he did not receive? It, too, has to be interpreted in historical context—specifically, that of relationships between Cuzco's indigenous and creole elites circa 1700, and that of notarial custom in that place and time. We still know precious little about the first of these. But using what we know about accepted notarial practice in the region, two very different interpretive possibilities emerge. Don Cristóbal might indeed have been forced to act against his will by a bullying creole clan. Alternatively, he might have been on cozy enough terms with the Jara de la Cerdas to strike a confidential, intra-elite deal with them (albeit one that later fell through, causing his relative Don Lorenzo Carlos to bring suit). To historicize the archive thus opens up intriguing possibilities for interpretation.¹⁰¹

A crucial first step in historicizing notarized sources is to recognize the agonistic principle and the templates according to which they were made. ¹⁰² The manuals that guided notarial practice are fascinating sources themselves. Many contain not only formulae, but the author's pithy opinions about the ills of his day. Bartolomé de Albornoz, for example, is obsessed in his 1573 manual with illicit contractual "mixtures" (commixtiones particulares), a preoccupation that dovetails precisely with the concern about "purity of blood" (limpieza de sangre) that was reaching new heights in colonial America as Spanish settlers battled their monarch over the inheritance of encomiendas. ¹⁰³ Until recently, notarial manuals were available only in rare book collections, but that is rapidly changing. The publication in Spain of Thomas de Mercado's Summa de tratos y contratos puts into wider circulation one of the most influential such manuals, aimed by its Dominican author (a veteran of the Indies) at steering merchants' transactions into papally approved channels. And the recent Mexican facsimile edition of Nicolás de Yrolo's work makes available a more all-purpose manual for notaries. Having this important notarial literature at hand means being able to see where American notaries and their clients innovated, stretched, and cracked the bounds of the "proper."

From there, of course, we can go much further: toward the histories of the relationships in which notaries were enmeshed, and the complex, specific interests that swirled around them.¹⁰⁴ Using the records left by the notaries public of Cuzco, Peru, I have suggested that notaries' activities and records might be far from neutral, and far from complete. It is to be hoped that historians will locate more records by the indigenous notaries of the Andes, as James Lockhart and others have managed to piece together an extensive record by indigenous Mexican notaries. Likewise, it is to be hoped that Mesoamerican archives will be read in terms of notaries' status and local relationships, with attention to documents' materiality and their uses in and beyond indigenous communities.¹⁰⁵ Mesoamerican archives have much richer holdings than Andean ones for getting at the details of native notaries' go-between status, so important future work seems to lie this way.¹⁰⁶

I would like to conclude with some additional methodological points—first, concerning the extent to which notarial records obscure historians' access to people's "voices" and narrative structures. Some extrajudicial transactions involved much more mediation than others, and just about any notarial volume contains a range from tightly scripted to more loosely scripted kinds. Powers of attorney are a good example of the former: generally brief, they contain few particulars other than the names of people involved. At the opposite end of the spectrum we might place declarations like Benavente's and petitions like rebajas, requests for a break in payment terms on one's contractual obligations. Here the notary seems to have stepped aside and let the petitioner formulate pleas for relief in the terms she or he thought most effective. The results recall the sixteenth-century French pardon tales Natalie Zemon Davis has analyzed. The petitioners' terms come forward, their structure of meaning taking precedence over that of the notary. Take one wealthy Cuzco widow's 1714 request for a grace period: it describes the floods that ruined her hacienda's irrigation system, then indicates "I have rebuilt it completely"—representing what must have been a crew of indigenous workers' labor as her own.¹⁰⁷ Whatever the extent of mediation, though (and first person rather than third person is not a reliable gauge of it), every document obeyed a template and was co-produced through scribal mediation. Yet the very discipline of this format fomented counter-writing.¹⁰⁸ Agreements had no room for disagreement, but notaries' archives did. Thus documents like Don Cristóbal Paullo Topa's 1685 land sale might have scattered, documented consequences, like Benavente's 1714 declaration. Let the reader be aware: individual documents may bear no marks that they were later revised or otherwise revisited, but they may be far from the last word.¹⁰⁹

Second, it is important to read beyond the words: to attend carefully to their spacial arrangement. Reading margins is crucial; there even the most seemingly airtight deals could be undone. Endpapers of the notebooks (cuadernos or registros) bound inside an annual volume also convey a great deal—often with revealing irreverence.¹¹⁰ (See Figure 2.) And the arrangement of these notebooks matters as well, for it discloses criteria of difference and hierarchy used to order the documents. Notaries were supposed to charge their clients different rates, giving Indians the biggest break, and perhaps for this reason Cuzco notaries tended by mid-seventeenth century to segregate Indian records at the back in notebooks marked as "Indian registers," registros de indios. Curacas and indigenous communities were supposed to get half price. The contractual parties with indigenous surnames who appear earlier in the record (i.e., not segregated at the end of an annual volume) appear in many cases to have been more hispanized or ladino.¹¹¹

Figure 2: Assistants to Cuzco notary Ambrocio Arias de Lira used the endpapers of notarial registers to lampoon the man who oversaw their labors, official mayor Antonio de Porroa y Sánchez. In this doodle, ARC/PN, Ambrocio Arias de Lira, protocolo 41 (1784–85), "Porroitas" is derided as a pretentious dandy in an old frock coat and a "viejecito maldito orejudo"—a big-eared, wicked little old man. Reproduction with kind permission of the Archivo Regional del Cusco.

Finally, it is important to consider what the parties commissioning the documents were after—what they probably wanted and thought they were getting. These valuable documents overwhelmingly recorded people's "business" in a broad sense, as opposed to "justice," "governance" (although information about these and many other things comes out along the way). They bothered to have their business recorded so that they could adduce the relevant documentation to enforce and defend their interests at a later date. Looking at notarial registers is the closest we can come to standing in a colonial Peruvian plaza de armas and watching as people went about their routines of selling, buying, collecting rent, shipping freight to Potosí, and so forth. But notarial records are also about people's family and religious life, inextricably interwoven with "business"—their marriages, their religious professions, their wills, and the goods that served as tokens of their ties of friendship, kinship, and blood. The notarial archives are extraordinarily rich, and often moving, because they suggest how people meshed parts of their lives we now separate, like business and worship. The challenge is to take what may look like a hodgepodge and imagine its internal logic, its connections, its screaming silences and exclusions—and then try to imagine the colonial habitus in which these people, activities, silences, and exclusions sorted together "naturally."¹¹² The challenge, in other words, is to see what Philip II lamented but was powerless to prevent across Spanish America: the luxuriant growth of a notarial garden of forking paths, full of lush "variance in the facts of the truth."¹¹³

Warm thanks for their generous assistance to the directors and staff of the Archivo Regional del Cusco, especially Jorge Olivera; the Sala de Investigaciones of the Biblioteca Nacional in Lima, and the Harvard Law School Rare Books Room, especially Mary Person and David Ferriss. Research in Peru in 1998–1999 was supported by a grant from the Pew Charitable Trusts. I am very grateful for the good advice of many friends, students, and colleagues, especially Carolyn Dean, Hortensia Muñoz, Margareth Najarro, Donato Amado, Sheryl Kroen, Jodi Bilinkoff, David Sartorius, Marikay McCabe, Karen Graubart, Kate Lowe, Brooke Larson, Rebecca Karl, Pete Sigal, Jocelyn Olcott, Rebecca J. Scott, Catherine Brown, Joanne Rappaport, Moshe Sluhovsky, the careful, thorough AHR reviewers, and the audiences who responded to versions presented at the University of Florida, the University of Texas at Austin, the University of Michigan, and the University of North Carolina at Chapel Hill.

Kathryn Burns is an associate professor of history at the University of North Carolina at Chapel Hill. She is the author of Colonial Habits: Convents and the Spiritual Economy of Cuzco, Peru (Durham, 1999). While working with notarial records in the late 1990s as part of a collective research project on Andean Christianity, she became interested in the contradictions, elisions, and excesses of the notarial archive itself, and the fresh insight they offer into colonial power relations. She has since collaborated with historian Margareth Najarro and art historian Carolyn Dean in studying the production of notarial truth. This article is part of a book in progress on writing and power in colonial Peru.

Notes

¹ Antonio de Nebrija, Gramática de la lengua castellana, Antonio Quilis, ed. (Madrid, 1980), 97. By implication, history is a companion of empire, too. Nebrija's famous opening line, addressed to his queen Isabel, situates him as a reader of texts about ancient empires—the Assyrians, Egyptians, and others—and traces an imperial arc from rise to fall: "Whenever I contemplate, my wise Queen, and put before my eyes the antiquity of all the things that for our recollection and memory were committed to writing, one thing I find and take as a most certain conclusion: that language was always the companion of empire, and so closely accompanied it that together they began, grew, and flourished, and later the two fell together." (Cuando bien comigo pienso, mui esclarecida Reina, i pongo delante los ojos el antigüedad de todas las cosas que para nuestra recordación y memoria quedaron escriptas, una cosa hállo y sáco por conclusión mui cierta: que siempre la lengua fue compañera del imperio; y de tal manera lo siguió, que junta mente començaron, crecieron y florecieron, y después junta fue la caida de entrambos.) Unless otherwise noted, all translations are mine.

² Christopher Columbus, The Diario of Christopher Columbus's First Voyage to America, 1492–1493, abstracted by Fray Bartolomé de Las Casas, Oliver Dunn and James E. Kelley, Jr., ed. and trans. (Norman, Okla., 1989), 65.

³ To Iberians, the roots of property were ancient; on the Roman-law derivation of Castilian notarial legality, see José Bono, Historia del derecho notarial español, 2 vols. (Madrid, 1979). See also Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1800 (New York, 2002), chap. 2.

⁴ Walter D. Mignolo, The Darker Side of the Renaissance: Literacy, Territoriality, and Colonization (Ann Arbor, Mich., 1995). The focus here is on the Americas; this colonization of memory had already been going on, and would continue, in the Iberian peninsula, the Philippines, and elsewhere. See, for example, Vicente L. Rafael, Contracting Colonialism: Translation and Christian Conversion in Tagalog Society under Early Spanish Rule (Ithaca, N.Y., 1988).

⁵ Angel Rama, La ciudad letrada (Hanover, N.H., 1984); available in English as The Lettered City, John Charles Chasteen, ed. and trans. (Durham, N.C., 1996).

⁶ But see the much-reproduced painting by John Vanderlyn (1775–1852), which figures on a U.S. postal stamp and in the U.S. Capitol: here the notary crouches down to write, at some remove from the central figure of Columbus, but still a salient figure.

⁷ Notaries also handled the making of judicial documents, such as petitions and depositions, and early modern notarial manuals like Gabriel de Monterroso y Alvarado's influential Pratica Civil, y Criminal, e Instruction de Scrivanos (Valladolid, 1563) gave pride of place to notaries' judicial record-making responsibilities. Now, however, historians conventionally use "notarial records" to refer only to notaries' extrajudicial production, and it is that side of their job that I examine here. On notaries' judicial record-making powers, see Kathryn Burns, "Trial by Writing: Making Judicial Truth," unpublished manuscript.

⁸ Julie Hardwick, The Practice of Patriarchy: Gender and the Politics of Household Authority in Early Modern France (University Park, Penn., 1998), 4. For a useful introduction to the work of medieval European notaries, see Kathryn L. Reyerson and Debra A. Salata, eds. and trans., Medieval Notaries and Their Acts: The 1327–1328 Register of Jean Holanie (Kalamazoo, Mich., 2004), 1–29.

⁹ "Seeing like a state," to borrow James C. Scott's suggestive phrase in Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven, Conn., 1998), can be traced in many premodern legibility projects such as the work of notaries, both colonial and otherwise. Notaries provided "protection and gateways to the legal system," as Hardwick notes in The Practice of Patriarchy, 5; "they were the fingertips of royal authority" (18). Yet access to "public writing" was not open to just anyone. Castilian norms required notaries to keep their clients' records a professional secret. Whether they always did so is another matter, but see, for example, an interesting Lima case in Archivo General de la Nación, Real Audiencia (hereafter AGN/RA), Causas Civiles, legajo 33, cuaderno 200 (1717), in which a royal inspector investigating tax fraud was denied access to notaries' registers. The notaries protested that once a contract had been made, "not even the contracting parties are allowed to see the original" (fol. 21v.), but they might keep a copy for their records.

¹⁰ The Castilian predecessors of Spanish American notaries were charged by Alfonso X (d. 1284) to be able, trustworthy, and lawful when drawing up documents ("hábiles, fieles, legales"). Escribanos' basic job description, by the legal code attributed to Alfonso X, Las Siete Partidas del Sabio Rey don Alfonso el nono, nueuamente Glosadas por el Licenciado Gregorio Lopez del Consejo Real de Indias de su Magestad, 3 vols. (Salamanca, 1555), was as follows: "to make the Kings' records, or the others called public records, which are made in the cities, and in the towns ... And the good that comes from them is very great when they perform their office well, and faithfully" (2: 121v.-122, citing Partida 3, Título XIX, Ley 1).

¹¹ "Truth" in this sense resided in legal formulae. As M.T. Clanchy writes with respect to medieval English records in From Memory to Written Record: England 1066–1307, 2nd edn. (Oxford, 1993), 305, "The fact that a document is signed by a notary does not mean that the statements in it are true in themselves, but that they are true in law." If records met the legal requirements of record making with respect to such things as signatures, the number of witnesses, and the proper wording of clauses, then they stood a good chance of holding up in court if challenged. On the complex medieval genealogy of "truth," see also Richard Firth Greene, A Crisis of Truth: Literature and Law in Ricardian England (Philadelphia, Penn., 1999).

¹² See Donna Merwick, Death of a Notary: Conquest and Change in Colonial New York (Ithaca, N.Y., 1999), 92, on Jacques Thuys's Ars Notariatus, an instruction manual that included "models for easy imitation and use in everyday practice." On the Iberian manuals used to shape notarial truth on both sides of the Atlantic, see Jorge Lujan Muñoz, "La literatura notarial en España e Hispanoamérica, 1500–1820," Anuario de Estudios Americanos 38 (1981): 101–116.

¹³ Contrast the truth of gentlemanly scientific debate that Steven Shapin examines in A Social History of Truth: Civility and Science in Seventeenth-Century England (Chicago, 1994). Laurie Nussdorfer has also drawn on the alchemical analogy in her excellent analysis of the seventeenth-century Roman notariate's truth-recording powers, "Writing and the Power of Speech: Notaries and Artisans in Baroque Rome," in Culture and Identity in Early Modern Europe (1500–1800): Essays in Honor of Natalie Zemon Davis, Barbara B. Diefendorf and Carla Hesse, eds. (Ann Arbor, Mich., 1993), 111.

¹⁴ Archivo Regional del Cusco, Protocolos Notariales (hereafter, ARC/PN), Martín López de Paredes, protocolo 146 (1663), fols. 714v.-715, April 16, 1663. The contract continues, very precisely, "and Panti acknowledged receipt of said quantity [of coins] and because they were not counted in my presence she renounced any counting error. And she received them in coins [moneda de colunas]." As Nussdorfer observes in "Writing and the Power of Speech," "the one particular voice to which the notary paid close attention in his text was his own" (109).

¹⁵ Roberto González Echevarría, Myth and Archive, 2nd edn. (Durham, N.C., 1998), 83. González Echevarría examines the broadly historical and the deeply personal contexts for Garcilaso's style, "sedulous in following the formulae of notarial rhetoric to establish the veracity of his text" (82). Early modern writers availed themselves of legal and notarial rhetoric's potency—whether to bolster particular claims to possess the truest "truth" of all, or to burlesque and to overthrow the rhetoric's truth-powers, as in the case of picaresque productions.

¹⁶ Don Quijote instructs Sancho Panza to have a letter to Dulcinea copied onto paper in the first town he reaches, but not by a notary, because the devil himself cannot make out notarial handwriting (letra procesada): Miguel de Cervantes, Don Quijote de la Mancha, 2 vols. (1955; Barcelona, 1979), 1: 243. In the opening pages of Mateo Alemán's equally popular Guzmán de Alfarache, 2 vols. (Madrid, 1979), 112, a preacher delivers a lengthy sermon-rant against notaries: "they certify and write whatever they want, and for two coins or to please a friend or perhaps their girlfriend ... they take away life, honor, and property, opening the door to innumerable sins." In one of his many barbed letrilles, Francisco de Quevedo, Antología poética, José María Barcells, ed (Bogatá, 1984), 105, satirizes notaries for being on the take and omitting whatever they are paid to suppress. On early modern French discomfort with notaries, see Hardwick, The Practice of Patriarchy, 22–24. The literary tradition of notary-bashing has much deeper roots; Reyerson and Salata note, in Medieval Notaries and their Acts, that Dante, Boccaccio, and Chaucer "all portrayed the medieval notary, invariably in a very negative light" (10).

¹⁷ These are but two of those cited in Gonzalo Correas's 1627 collection of proverbs, Vocabulario de refranes y frases proverbiales (1627), Louis Combet, Robert Jammes, and Maite Mir-Andreu, eds. (Madrid, 2000). For the second saying, which also appears in Luis Martínez Kleiser's Refranero general ideológico español (Madrid, 1953), I have adapted Richard L. Kagan's translation in Lawsuits and Litigants in Castile, 1500–1700 (Chapel Hill, N.C., 1981), 3.

¹⁸ "Y ellos se uan rreyendose." Felipe Guaman Poma de Ayala [Waman Puma], El primer nueva corónica y buen gobierno, John V. Murra and Rolena Adorno, eds., 3 vols. (Mexico City, 1980), 2: 485, see also 2: 655–56, 677.

¹⁹ Antonio de la Calancha, Chronica moralizada del orden de S. Augustin en el Peru, vol. 1 (Barcelona, 1638), 491. I am grateful to Karen Graubart for providing me this reference. As it happens, the oldest criminal lawsuit extant in the archives of Cuzco's city council was lodged against a gouging notary: ARC, Cabildo, Justicia Ordinaria, Causas Criminales, legajo 92 (1600–1697), lawsuit initiated in the town of Yucay on September 11, 1594, against the notary Francisco Jiménez for overcharging Indians while the local magistrate (corregidor) was away.

²⁰ Since James Lockhart's Spanish Peru, 1532–1560: A Colonial Society (Madison, Wis., 1968), notarial records have had a strong methodological claim among scholars of colonial Spanish America. Lockhart's work on Nahuatl records provides a fascinating sense of the emergence of indigenous templates: see The Nahuas after the Conquest: A Social and Cultural History of the Indians of Central Mexico, Sixteenth through Eighteenth Centuries (Stanford, Calif., 1992), 455–74. Yet the people and everyday practice behind the sources have rarely been examined. Important exceptions include Lockhart's Spanish Peru, 68–76; Jorge Luján Muñoz, Los escribanos en las Indias Occidentales y en particular en el Reino de Guatemala, 2nd edn. (Guatemala, 1977); María de los Angeles Guajardo-Fajardo Carmona, Escribanos en Indias durante la primera mitad del siglo XVI, 2 vols. (Madrid, 1995); and Tamar Herzog, Mediación, archivos y ejercicio: Los escribanos de Quito (siglo XVII) (Frankfurt am Main, 1996). See also Joanne Rappaport and Tom Cummins on colonial literacy, recordation, and ritual: "Between Images and Writing: The Ritual of the King's Quillca," Colonial Latin American Review 7, no. 1 (1998): 7–32; Rappaport and Cummins, "The Reconfiguration of Civic and Sacred Space: Architecture, Image, and Writing in the Colonial Andes," Latin American Literary Review 26, no. 52 (1998): 174–200. For important new work on Cuba, see Rebecca J. Scott, "The Provincial Archive as a Place of Memory: Confronting Oral and Written Sources on the Role of Former Slaves in the Cuban War of Independence (1895–98)," NWIG [New West Indian Guide/Nieuwe West-Indesche Gids] 76, no. 3 and 4 (2002): 191–209; Michael Zeuske and Orlando García Martínez, "Notarios y esclavos en Cuba (siglo XIX)," Debate y Perspectivas 4 (2004): 127–70. A large and growing historiography of European notaries, writing, and power exists; some recent examples are Pilar Ostos Salcedo and María Luisa Pardo Rodríguez, eds., El Notariado Andaluz en el Tránsito de la Edad Media a la Edad Moderna: I Jornadas sobre el Notariado en Andalucía, del 23 al 25 de febrero de 1994 (Seville, 1995); Julie Hardwick, The Practice of Patriarchy; and Ian F. McNeely, The Emancipation of Writing: German Civil Society in the Making, 1790s-1820s (Berkeley and Los Angeles, 2003). Laurie Nussdorfer is unusually attentive to the conditions of production of notarial writing; in addition to her "Writing and the Power of Speech," see "Lost Faith: A Roman Prosecutor Reflects on Notaries' Crimes," in Beyond Florence: The Contours of Medieval and Early Modern Italy, Paula Findlen, Michelle M. Fontaine, and Duane J. Osheim, eds. (Stanford, Calif., 2003), 101–114.

²¹ Historians often depict notarial records as a window on the past, e.g., Reyerson and Salata, in Medieval Notaries and their Acts: "Holanie's acts are a window on the world in Montpellier, presenting the historian with a cross-section of life in the second quarter of the fourteenth century" (15). Angel Canellas López uses the image of a mirror: "The notarial register is a faithful mirror that reflects the complex weave of the past"; see Canellas López, "El notariado en España hasta el siglo XIV: Estado de la cuestión," in Notariado público y documento privado: De los orígenes al siglo XVI (Valencia, 1989), 1: 138. My point: the complexity also lies in the notarial records themselves.

²² Notarial forms were quite stable during this period, and so notarial archives' contents look much the same from Cuzco to Lima, Mexico City, Seville, and Madrid. The sample base of cases used in this piece comes from Cuzco's notarial archives, which hold only 30 legajos (document bundles, generally yearbooks) for the sixteenth century, 319 for the seventeenth century, and 310 for the eighteenth century (most of which lack indices to their contents). The documents cited here were located over several years' research on various projects, in the course of which I examined most comprehensively the notarial records from the years 1670–1720. I am grateful to Margareth Najarro, Donato Amado, Pedro Guibovich, and Gabriela Ramos for bringing several relevant documents to my attention.

²³ This is a bit different from the method James Lockhart discusses in his very useful, teachable "Between the Lines," in Of Things of the Indies: Essays Old and New in Early Latin American History (Stanford, Calif., 1999), 229–80. Lockhart does not draw on period legal literature, which can provide crucial context on the making and manipulation of documents, and he filters out textual formulae and odd inconsistencies (e.g., blank pages with signatures, doodles, practice signatures) that can be taken as invitations to ask how scribes co-produced the record, along with their clients, copyists, draft-books, inkpots, and inside knowledge of legal ventriloquy. See Carolyn Dean, "Beyond the Notarial Template," unpublished manuscript.

²⁴ Spanish American notaries were not supposed to charge indigenous commoners the usual fees for their services and were to charge only half price to indigenous leaders (known as caciques or curacas) and communities: Recopilación de leyes de los reynos de las Indias, 3 vols. (Madrid, 1791), 2: 150–151 (Libro V, Título VIII, Ley 25). That these royal orders were reissued several times between 1551 and 1619 suggests they were far from effective. A detailed list of fees for notaries' services (arancel), emended by order of Philip II, is reproduced in Diego de Ribera's manual, Primera parte de escritvras, y orden de particion y cuenta, y de residencia judicial, ciuil y criminal, con vna instruccion a los escriuanos del Reyno al principio, y su aranzel (Burgos, 1586), 105–111v.

²⁵ Like Spanish cities, each Spanish American city had a fixed number of "numerary" notarial offices (escribanos públicos y del número). Cuzco by the late sixteenth century had six, a number that remained almost unchanged throughout the colonial period. In a 1778 survey of the city's official posts, in ARC, Cabildo, Administrativo, Edictos, legajo 108 (1596–1824), notary Juan Bautista Gamarra indicated that two notarial offices were vacant and five occupied, for a total of seven. He included the post of notary public for accounts and inspections (escribano público de cuentas y residencias), which seems to have been a late colonial addition. According to Paul Hoffman, "The Archivo de Protocolos de Sevilla," Bulletin of the Society for Spanish and Portuguese Historical Studies 14 (January 1989): 29–32, early modern Seville had twenty-four notarial offices, four times as many as colonial Cuzco. Southern European cities, especially late medieval Italian cities, seem to have had many times more notaries; see Reyerson and Salata, Medieval Notaries and their Acts, 3–4.

²⁶ ARC/PN, Francisco de Unzueta, protocolo 257 (1713–1714), fol. 316–316v., January 13, 1714: "a proponerle al d[ic]ho D. Cristtoval paullo topa que le bendiese las tierras nombradas chamancalla y sus punas a que el d[ic]ho D. Christtoval paullo tupa [sic] dijo que si en cuia conformidad empezo a escrivir la minuta dictado por d[ic]ho Joan de Saldaña y que fue en quinienttos pesos; y que despues de quinse años de averse ottorgado d[ic]ha escriptura le dijo a este Don Lorenzo Carlos inga q[ue] d[ic]ha escrip[tur]a de Venta avia sido en confianza y que asimesmo le dijo que declarase lo que en el caso savia porq[ue] [316v.] avia sacado Censuras gen[erales]."

²⁷ A key question here, to which I will return at the end of this piece, is whether clans like the Jaras bullied and bossed Inca nobles like Don Cristóbal or struck deals (perhaps mutually beneficial ones) with them. The Chamancalla sale with parties' signatures is in ARC/PN, Joan de Saldaña, protocolo 296 (1685), fols. 139–43v., March 8, 1685. In it, Saldaña certifies that he saw Don Cristóbal receive cash payment of 450 pesos, with 50 pesos more to be delivered to him later. Getting people to sign blank pages was unlawful but hardly unusual, at least in the Andes, despite the risks it posed to contracting parties. Herzog writes in Mediación, archivos y ejercicio, 55, that in Quito "the practice proliferated." Notaries received the parties' signatures first and filled in the contents later, "making the two things (text and signature) appear contemporaneous even though they were not." My forthcoming study of Peruvian notarial practice will analyze the usefulness and risks of deals made "in confidence" (which might include bogus contracts). Notaries were not necessarily aware of secret terms struck beforehand between their clients. Along these lines, see the important contribution of Victoria Hennessey Cummins, "The Church and Business Practices in Late Sixteenth Century Mexico," Americas 44, no. 4 (April 1988): 421–40. James Lockhart, in Nahuas after the Conquest, 185, 218, cites intriguing literary and archival evidence that suggests some Nahua notaries participated in "sharp practices" as well.

²⁸ She did not register her reasons, so we can only speculate as to what they might have been. Perhaps Joseph was her husband's illegitimate child. She might also have been trying to protect the inheritance rights of other children (or, if she was childless, a projected religious endowment).

²⁹ ARC/PN, Pedro de Cáceres, legajo 28 (1684), fol. 558, September 6, 1684.

³⁰ For more on exclamations, see below; also Kathryn Burns, "Forms of Authority: Women's Legal Representations in Mid-Colonial Cuzco," in Women, Text, and Authority in the Early Modern Spanish World, Marta V. Vicente and Luis R. Corteguera, eds. (Burlington, Vt., 2003), 149–63.

³¹ The archives' contents can be seen as "intertexts," to follow William F. Hanks: "object[s] whose meaning potential was realized in the context of other texts, under certain discursive conditions." See Hanks, Intertexts: Writings on Language, Utterance, and Context (New York, 2000), 13.

³² Nicolás Guillén, El diario que a diario (Havana, 1972); Guillén, The Daily Daily, Vera Kutzinski, trans. (Berkeley and Los Angeles, 1989), 3. Both versions are cited in González Echevarría, Myth and Archive, 84.

³³ J. H. Elliott, Spain and Its World 1500–1700 (New Haven, Conn., 1989), 29–30; on Oviedo's history, see Anthony Pagden, European Encounters with the New World (New Haven, Conn., 1993), 56–68.

³⁴ This was part of the rapid expansion of the Spanish legal profession that was then taking place; see Kagan, Lawsuits and Litigants.

³⁵ On the fourteenth and fifteenth-century "maturation" process, marked by tension between the monarchy and "the communal power of the cities," see Bono, Historia del derecho notarial español, 2: 143–155. Note that my analysis focuses on escribanos públicos y del número. There were, in addition, ecclesiastical notaries; notaries who served particular bureaucracies, such as high viceregal courts; provincial notaries, and escribanos de Su Magestad (the latter two types unattached to particular towns or cities).

³⁶ Bono, Historia del derecho notarial español, describes this as a "notarial crisis" (2: 289–90).

³⁷ Antonio Rodríguez Adrados, "El derecho notarial castellano trasplantado a Indias," in Escribanos y protocolos notariales en el descubrimiento de América (Madrid, 1993), 59, cites this passage: "Otrosi muy poderoso sennor, sepa vuestra alteza que en vuestros rreynos se fazen muchos males e dannos e se fabrican muchas escrituras falsas por los muchos escriuanos que de poco tiempo acá vuestra sennoria a criado e fecho por vuestras cartas, ca muchos ninnos e omes que no saben leer tienen cartas de escriuanias quelas conpraron en blanco."

³⁸ See Bono, Historia del derecho notarial español, 2: 293–94.

³⁹ Hernando Díaz de Valdepeñas, Suma de notas copiosas muy sustanciales y compendiosas (Toledo, 1544).

⁴⁰ Monterroso, Pratica Civil, 7: "en muchas partes destos Reynos se acostumbra, que sin trabajar, ni estudiar, vsan los escriuanos a rienda suelta los tales officios. De donde esta sembrada toda torpeza, y barbaria (al contrario de otros reynos estraños, donde los escriuanos son latinos, leydos, y curiosos)."

⁴¹ Juan de la Ripia, Practica de testamentos y modos de subceder (Cuenca, 1676); Thomas de Mercado, Tratos y contratos de mercaderes y tratantes (Salamanca, 1569). Mercado soon published a second edition, Summa de tratos y contratos de mercaderes (Seville, 1571), detailing among other things the controversial credit instrument known as the censo al quitar.

⁴² Antonio de Arguello, Tratado de escrituras y contratos publicos, con sus anotaciones (Madrid, 1651), iv verso.

⁴³ When signed by the notary, these copies (escrituras signadas) also gained legal validity and might be adduced in court in lawsuits. For a careful discussion of Castilian legal norms regarding the making and archiving of notarial records, see Guajardo-Fajardo Carmona, Escribanos en Indias, 1: 139–97. In practice, however, many of the rules were bent. Notaries might have assistants take down only the basics in the initial moment of drafting, then have clients sign a blank page in the register where the fully developed minuta would later be inserted (a clear violation of the spirit of the 1503 reform). For a diplomatic reading of the traces of such notarial shortcuts, see María Amparo Moreno Trujillo, "Diplomática Notarial en Granada en los Inícios de la Modernidad (1505–1520)," in Ostos Salcedo and Pardo Rodríguez, El Notariado Andaluz, 75–125; also David González Cruz, Escribanos y Notarios en Huelva durante el Antiguo Régimen (1701–1800): La historia onubense en sus protocolos natariales (Huelva, 1991), 50. On Andean notarial practice and its shortcuts see Kathryn Burns, "Materiality and Meaning: Inside Writing in Midcolonial Cuzco," unpubl