LAUREN BENTON

"The Laws of This Country": Foreigners and the Legal Construction of Sovereignty in Uruguay, 1830–1875

State making in nineteenth-century colonial settings involved contests over the configuration of plural legal systems. Colonial powers limited the jurisdiction of colonial courts and adopted complex, shifting rules for the articulation of imposed and indigenous law. The politics of legal pluralism in such settings became tied to discourse about cultural difference as groups challenged or justified jurisdictional boundaries by reference to the cultural characteristics of various colonial constituencies. The process of ordering legal authorities and assigning political identities reinforced the authority of incipient colonial states and emphasized the differences between colonial and metropolitan law.¹ 1

     In postcolonial settings or in cases of informal empire, where outsiders did not impose law or oversee its articulation with local legal sources and forums, conflicts over the structure of the legal order have received considerably less attention. Such conflicts were, however, prominent elements of national state making. This article explores the politics of legal pluralism and its impact on state building in one Latin American country in the mid-nineteenth century. Legal authority in the early South American republics was notoriously fractured. In part, this condition was a legacy of the colonial legal order. In part, it emerged from trends following independence: the rise of caudillismo, the influx of foreigners, and the region's incorporation into new flows of international trade. The effects of postindependence conflicts were often ambiguous. Various nonstate legal authorities challenged the control of state institutions while also promoting a discourse about sovereignty that urged the turn toward state legal hegemony. This interrelation of legal politics and state making is particularly clear in legal cases and debates concerning the status of foreigners, whose efforts to preserve a special legal status required appeals to the very state authority their claims were designed to weaken. The relation between foreign subjects and the state was in prominent view in mid-nineteenth century Uruguay, where widespread political disorder overlapped with the construction of national legal institutions in a new republic crowded with foreigners. 2

     While Uruguay has some exceptional qualities that made the issue of foreigners' legal status especially salient, its situation should be understood as a particular version of a much more widespread transition from a fluid legal pluralism to an interstate order premised on the replication of sovereign states. Emphasizing legal conflicts as important elements in the origins of sovereignty helps us to view state making as more than simply the product of the spread of Western models of governance or the necessary institutional support for global capitalist expansion. Such forces mattered, surely, but they were also filtered through, and often acted to reinforce, trends emerging out of local legal practice. 3

Law and Spanish American States

The distribution of legal rights in the Spanish colonial order was shaped by access to property, corporate and ethnic group membership, and ties to patronage. Such divisions coexisted with the empire's formally centralized legal bureaucracy, a key institution of colonial rule. One historian has described the resulting tension between "the aspiration to absolute domain and the reality of contingent entitlement" as the central feature of Spanish American legal culture.² Its other striking and consistent feature was colonial subjects' litigiousness, in particular their willingness to exploit jurisdictional tensions as part of often sophisticated legal strategies.³ Independence unsettled colonial legal institutions, though their outlines, and many elements of colonial legal culture, remained. With only a few exceptions (Uruguay is one), national states cohered around areas that had served as seats of audiencias, colonial high courts.⁴ Migrants crossing the new borders found few striking differences in the legal practices of the infant republics. But in the new geography of independent Latin America, citizenship now mattered. Migrants, settlers, soldiers, itinerant laborers, exiles, and even caudillos often ignored this change, but there were increasingly forceful reminders.⁵ 4

     It is tempting for legal historians to move quickly from the end of the colonial period to the successful movements to consolidate the state at the end of the century, when legal reform was one of an array of important tools for nation building. But as some historians have shown, the tumultuous middle decades of the nineteenth century were crucially formative.⁶ Struggles over boundaries and control of the new republics featured a politically prominent discourse about the meanings of citizenship. Competing political factions championed law and order, promising a return to stability through law. Legal rhetoric was also central to emerging, contrastive images of urban and rural cultures. Even before the borders of the new republics had been fixed, political leaders embraced strong state legal institutions as a nationalist project. Litigation, no doubt fueled in part by the legacy of colonial legal culture, quickly revealed the weaknesses of legal orders that remained decentralized and fragmented. Gradually, support for codification, professionalization of legal personnel, and judicial elections grew, in part as a response to patterns of litigation and wider political conflicts. 5

     The issue of the legal status of foreigners intersected with all these processes and was, in consequence, itself a central element of legal politics. Some foreign influences on early legal reform are obvious. Latin American constitutions borrowed the rhetoric of republicanism and European models of judicial administration, including an emphasis on citizenship. Law reformers read, copied, and adapted European codes, most notably the Napoleonic Code.⁷ Foreign investors and their demands for stability bolstered efforts to use legal institutions to help calm the countryside, rein in caudillos, regulate contracts, and strengthen legal protections of property. 6

     Foreigners also had another, more indirect impact on the law that was partially hidden from view but subtly powerful. Particularly in the early decades after independence, they often militated for their own immunity from the law, vilified the new national legal systems, and capitalized on jurisdictional ambiguities and tensions. In maneuvering to take advantage of the smallest opportunities to exploit their foreign status, litigants added, paradoxically, to pressures for reform. Their insistance on precise compliance with the law and on procedural regularity underscored the glaring deficiencies of the new national legal systems. Consular officials from England, France, Spain, Brazil, and other countries presented claims for limited immunity for their subjects and complained about the procedural irregularities and routine injustices of the new national legal administrations.⁸ Their policies were no doubt influenced by the broader, global context of expanding European "informal empire" and the practice of seeking extraterritoriality wherever European subjects believed that local law offered inadequate protection.⁹ 7

     Like other Latin American republics, the new, small republic of Uruguay (La República Oriental del Uruguay) began to attract increasing numbers of immigrants and foreign merchants. Like other republics, the country succumbed to a postindependence wave of internal warfare led by two dominant political factions. But the country was also unusual in some respects. Because it was sparsely populated at the time of independence, foreigners were a proportionately more important part of the population. Further, the country bordered two much larger Latin American nations and had in fact been created as a buffer state between them, with the direct intervention of Britain and France. Brazil had invaded the "Banda Oriental," as the territory on the east bank of the Uruguay River was known, in 1816, and had held it as a province from 1820 to 1825, when the Brazilians were ousted by an Argentine-backed force. Brazilian military intervention continued to pose a threat (and, for some factions, an opportunity), and unofficial cross-border raids were still commonplace at mid-century. Political upheavals in Argentina surrounding the rise and overthrow of Rosas enveloped politics in the Banda Oriental, and Argentina and Uruguay traded prominent exiles and shared an elite political culture. Britain and France, following their direct military intervention in the region in the 1840s, were intent on maintaining their influence.¹⁰ Under these conditions, Uruguayans believed that establishing territorial sovereignty was crucial to the country's survival. Constructing a national legal system was central to this project. 8

     To focus on law in the middle decades of the nineteenth century is to refine the standard narrative of historical change in nineteenth-century Uruguay. In this account, the Uruguayan countryside was essentially "stateless" between independence in 1828 and the mid-1870s. Political disorder reigned, producing lawlessness. Provincial caudillos administered their own justice in rural areas under their control, and centrally imposed legal institutions could not curb their power. The central state was badly underfinanced, and rural authorities with few resources faced daunting problems: widespread cattle theft, both by organized Brazilian raiders and by itinerant and unemployed rural laborers; land disputes, endemic because most claims to land were based on possession, not title; and violent crimes, common among a rootless population that routinely went about heavily armed. As Duncan Baretta and Markoff put it, the "cattle frontier" was a place where no one group held a "monopoly on violence."¹¹ Order ultimately descended on the countryside in the form of imposed controls from the capital, often as a by-product of foreign investments in production and exports. In particular, three trends—the rapid growth of sheep ranching and wool exports in the 1860s, the measures adopted by the autocratic Latorre government of the late 1870s to solidify state authority, and the widespread introduction of barbed-wire fencing in the same decade—ushered in a period of national consolidation after 1875. 9

     Legal politics in the middle decades of the nineteenth century is conspicuously absent from this narrative. But if we view lawlessness in the countryside as a variant of a more systemic condition of persisting legal pluralism, the transition to state sovereignty appears both more complex and earlier. The state faced the task of not only strengthening its institutions and asserting control but also constructing its own legitimacy while conceding elements of rule to other authorities too powerful to override. Thus foreigners used a combination of litigation strategies and consular appeals to try to preserve or create a separate legal status. Such claims were weaker than the fully developed claims to extraterritoriality that characterized legal policy in China and the Ottoman Empire in the same period. But they posed a similarly serious challenge to Uruguay's territorial sovereignty. In addition, the claims operated against the background of caudillismo and the de facto legal autonomy of local leaders. The challenge to the state was not so much to repress "lawlessness" as it was to control "other" law—the legal authority of caudillos, other states' claims to extraterritoriality, and litigants' recourse to legal strategies that placed them outside state control. Institutional change was propelled both from above and from below, as legal conflicts promoted discourse about the imperatives and complexities of state sovereignty. In this way, mid-nineteenth century conflicts propelled a shift that was to take formal shape later in the century. 10

Law and "Lawlessness" in the Banda Oriental

In its first decades, Uruguay did not offer an auspicious setting for institutional reform. National politics was engulfed by the fighting between Blancos and Colorados over control of the national government. The tensions erupted into civil war in 1843, and over the next nine years governance was split between a Colorado regime installed in Montevideo, under siege for most of the war, and a Blanco government established outside the city and in control of most of the countryside. The Guerra Grande had catastrophic effects on ranching and brought ruin to the saladeros that produced dried meat for export to Brazil and Cuba. 11

     Factional political fighting continued unabated in Montevideo after the war, but its disruptive effects were mainly limited to the capital. In the countryside, the "prolonged period of peace" during the 1850s provided a perfect environment for continued settlement of productive land by foreigners and the purchase of large tracts of land by Montevidean speculators.¹² This "invasion" forced property values sharply higher.¹³ The more active market in land took place in the context of a generalized insecurity of title to land. At the same time that landowners, and particularly new owners, sought to fix property rights by registering titles and contracts of sale, many existing estancia owners worried that the new legalism would threaten their interests. Many had staked claims through possession, while others feared that their ownership would be challenged for failure to pay taxes or because of irregularities in their titles.¹⁴ 12

     Despite continued political upheaval and rampant speculation, the country offered promising conditions for growth. The underutilized grasslands of the Banda Oriental promised high returns quite apart from speculative profits, even if investors could not have anticipated the later export booms. Montevideo, although bound to lose its bid to eclipse Buenos Aires as a regional port, grew rapidly as the nation's center for trade and the country's main port.¹⁵ The result was, despite continued political instability, an influx of foreigners. The country's population nearly doubled between 1852 and 1860, growing from 132,000 to 221,000. In 1852, 21.6 percent of the inhabitants were foreigners; by 1860, they accounted for 35 percent of the population and nearly half (48 percent) the population of Montevideo. The largest group of foreigners comprised Brazilians, followed at some distance by Spaniards, Italians, French, British, and others.¹⁶ 13

     The numbers do not convey the economic and social importance of these noncitizens. Two rather different, and essentially separate, contingents of foreigners stood out. In the northern districts bordering Brazil—the third or so of the country north of the Rio Negro—Brazilians dominated ranching and in many places outnumbered Orientales. Already in 1857, frontier districts had an estimated 428 Brazilian-owned estancias, together covering nearly a third of the national territory.¹⁷ These were foreigners whose family ties and business interests extended across the border into the grasslands of Rio Grande do Sul, a relatively conservative and isolated ranching region that was itself politically marginal and economically undeveloped within Brazil.¹⁸ The Brazilian government was very much interested in promoting stability in the Banda Oriental. Uruguay was not only a buffer between Brazil and a volatile Argentina, it also provided ranchers with cheap cattle and land and served as an important source of trade goods for southern Brazil (some of it legitimate, a good deal of it contraband). 14

     In contrast, a small contingent of British immigrants was fast becoming the most vocal part of a new class of immigrant ranchers and merchants in the rest of the country. Unlike the Brazilians, the British ranchers came from diverse backgrounds mainly outside of ranching. Some were small merchants, former ship captains, soldiers, or artisans who invested small savings in land and cattle. They clustered in the southern districts alongside the Uruguay River and, unlike their Brazilian counterparts in the north, maintained strong links to British merchants in Montevideo.¹⁹ Also unlike the Brazilians, they were to be at the forefront of the movement into sheep raising and the later adoption of barbed-wire fencing. But they were similar to the Brazilians in the ways that they benefited from the backing of their government. Four years after the end of the Guerra Grande, the British government successfully lobbied for consular involvement in settling claims for damages by British subjects. In 1857, the Uruguayan government was pressured to establish a Comisión Mixta (made up of one Frenchman, one Englishman, and two Orientales) to consider claims by British and French subjects. The cases proved so contentious (and so unsatisfactory to individual claimants) that the French and British forced the Uruguayan government in 1861 to consolidate payment of the claims into a debt of 4 million pesos. Three years later, Brazilians would demand the same treatment, backed by military intervention, and would in turn receive their own Comisión Mixta in 1867. The British, French, and Brazilians, then, shared a special status established through diplomatic accord—a form of extraterritoriality that their consuls would seek to protect and widen in responding to citizens' complaints and particular legal cases.²⁰ 15

     The volatile political and economic conditions of the country, together with continued international pressures, made strengthening the legal order a high priority for Uruguayans. It was also an elusive goal. Even the simple task of staffing the judicial posts posed a difficult challenge. In Montevideo, the highest judicial posts had to be filled by a handful of citizen lawyers who had received training in Buenos Aires or elsewhere. The higher court judgeships could be filled, but the provision for a supreme court in the 1830 constitution would have to wait; there were not enough law-trained Orientales.²¹ In the countryside, the shortage of qualified legal personnel was drastic. The constitution established two key district-level judges: the juez de paz, who would hear petty disputes and oversee required arbitration procedures called juicios conciliatorios or juicios de conciliación; and the alcalde ordinario, who served an appellate function for the jueces de paz of a particular departamento and presided over disputes involving significant sums.²² Virtually all of these officials lacked legal training. They were typically men of some standing in the community, but in the more remote parts of the country the supply of candidates was especially thin. 16

     Moreover, legal officials in the countryside found that they did not hold a monopoly on legal authority. Provincial caudillos routinely dispatched summary justice on their estancias and among their followers.²³ The caudillos disciplined ranch-hands, peones, for minor infractions without recourse to the courts. Where their local authority was recognized by their appointment as jefes políticos, caudillos could also influence state-administered justice by ensuring the appointment of their followers to positions as magistrates and by directing local police to give selected fugitives free passage.²⁴ The election of provincial officials and centralized control over the appointment of magistrates would both become part of the agenda of reformers attempting to consolidate national control over the countryside. 17

     This was the context in which foreigners-as-litigants maneuvered in the middle decades of the nineteenth century. Weak legal institutions offered opportunities for positioning and protecting interests in land and livestock. They also were a potential source of instability and uncertainty. Foreigners involved in litigation knew to turn to their own governments to exert pressure on Uruguayan officials, but they also experimented with a range of other strategies based on their status as noncitizens. Their actions interposed a new dimension into national (and regional) legal politics. We turn first to the development of a binational legal culture on the northern frontier, then examine Brazilian and British consular demands for special legal protections for their subjects, and the response of Montevidean reformers. 18

Law Crossing Borders

In his wanderings in the interior of the Republic of Uruguay, Richard Lamb, the protagonist of W. H. Hudson's nineteenth-century novel The Purple Land, Finds himself in quick sequence in the middle of two of the countryside's most common rituals: a brawl among gauchos and a round-up of able-bodied men to serve as government soldiers. He acquits himself ably enough in the fight, and in the encounter with army recruiters he claims exemption on the grounds that he is a foreigner. The officer decides to take him and his traveling companion to the local magistrate, and Lamb recounts: 19

Seeing no help for it, we accompanied our captors at a winging gallop over a rich, undulating country, and in about an hour and a half reached Las Cuevas, a dirty, miserable-looking village, composed of a few ranchos built round a large plaza overgrown with weeds. On one side stood the church, on the other a square stone building with a flagstaff before it. This was the official building of the Juez de Paz, or rural magistrate; just now, however, it was closed, and with no sign of life about it except an old dead-and-alive-looking man sitting against the closed door, with his bare, mahogany-colored legs stretched out in the hot sunshine.²⁵

Hudson's unflattering images of rural justice would have been familiar to the residents of Uruguay's northern provinces. There was a chronic shortage of qualified legal personnel. An 1852 letter from the town of Arredondo, on the northern edge of the frontier province of Cerro Largo, complains that the posts of juez de paz and teniente alcalde, the lowest positions in the judicial hierarchy, were being filled by military authorities "in contravention of what is required in the Constitution."²⁶ Candidates for the position of juez de paz moved or were ineligible. In another town, the teniente alcalde reported that he would be leaving the district soon and that there was only one eligible candidate to replace him "since the district is only made up of Brazilians, and the odd Oriental cannot read or write."²⁷ Filling the rural posts hardly guaranteed that the proscribed functions would be carried out. The teniente alcalde of Cañas complained that he was not able to implement any orders because he was "only one man and . . . the majority of the residents do not obey orders."²⁸

     These were indeed tumultuous times on the northern frontier. The region had only recently been "pacified" through a bloody campaign against the remaining bands of seminomadic Charrua Indians.²⁹ Settlement was cut short by the outbreak of the Guerra Grande, and the vast herds of cattle that constituted the region's main resource were greatly depleted during the war. Frequent raids across the border by Brazilian ranchers accounted for a sizable portion of this loss; cattle had been slaughtered indiscriminately, too, to feed the warring armies. The population of the northern districts plummeted during the war, and communications with the capital, poor even under the best conditions, were severely strained.³⁰ 20

     Despite these barriers to orderly rule, people found reason to turn to the courts.³¹ In Cerro Largo in 1830, civil complaints included cases about the disputed ownership of slaves, suits over land and the sale of cattle, and the indignant charge by one soldier, Justo Videla, that Leopoldo Geral had stolen his silver spurs and had shown "the most scandalous disregard for the Laws" in refusing a judge's order to return them.³² Antonio Felix de Meneses was in court several times that year. He first brought suit against his own son for being too young to marry. Later in the year he was found responsible for filing false charges against Manuel Acosta; both Meneses and the juez de paz in the case were ordered to pay Acosta damages.³³ 21

     If these litigants were not shy about using the courts, they also made it clear that they expected impartiality from the rural judges. On occasion, their expectations were met. Sorting out the facts in a case over the disputed ownership of a slave, one juez de paz heard—and credited—testimony from the slave himself, then passed the case to the alcalde ordinario for judgment.³⁴ In other cases, judges seem to have followed procedures of appeal closely, and litigants offered excuses for irregularities, conveying their clear sense that the law mattered. Ramón Moreno, bringing a contract for his purchase of a piece of land ten years before, explained that he had failed to register the sale and pay the land tax because of "all the political upheaval that our country has suffered."³⁵ He announced his intent to set the record straight, no doubt as a protection against future litigation or fines. 22

     Even in 1850, before the official end of the civil war, rural justice operated with a certain orderliness. When officials received the report that the body of a mulatto named Miguel had been found in the countryside, they conducted a lengthy investigation to discover the murderer, taking depositions from a series of witnesses: Miguel's companion; two peones from a neighboring estancia, or ranch; the nine-year-old son of a slave from the same estancia; a Brazilian man who had seen the victim in the local provisions store, or pulpería; the pulpería owner; a freed slave who lived nearby; and two other laborers.³⁶ This was hardly the legal leg-work of a "lawless" and "stateless" frontier region. Even complaints against magistrates appear in the record. In May 1850, Doña Joaquina Rodriguez presented a complaint against one juez de paz for serious procedural violations. Rodriguez claimed that on a trip to another district to trade, she had entered into a dispute with a local merchant. He in turn had brought in the juez de paz, who had acted "for himself and before himself, making himself both judge and party, prosecutor and court-appointed defender." Rodriquez charged that the juez de paz had "violated the law and common sense with his legal rulings" and had caused her to pay more than she owed; the case had forced her to abandon her chores and to "walk two hundred leagues to seek justice!"³⁷ 23

     Given these early signs of an acceptance of the courts as a place to resolve disputes, regularize and record contracts and deeds, and pursue grievances against the authorities themselves, it is not surprising that after the end of the civil war, litigation steadily increased. In the northern frontier province of Tacuarembó, between 1835 and 1853, an average of five civil cases a year reached the court of the alcalde ordinario. In 1854, the number shot up to fifty-six cases, and it remained at an average of thirty-seven cases a year over the next five years.³⁸ 24

     Brazilian-born litigants in the northern districts were now more numerous, reflecting the change in the population. The legal order of the frontier was becoming routinely bilingual and binational. Brazilians crossed the border with an array of legal documents for which they were careful to seek recognition in local courts. The translation and recording of many such documents became a routine function of the legal system in the border districts. Brazilian ranchers holding property in Uruguay sold or rented property to Brazilians in Brazil, and these contracts were brought to Uruguayan courts with the request that they be translated and registered. Estate settlements frequently involved wills written in Portuguese and notarized in Brazil, with heirs living on both sides of the border. Brazilian litigants had powers of attorney made out in Brazil and sent with their representatives to courts on the other side of the border. Brazilian and Uruguayan policemen also exchanged information about fugitives and on occasion cooperated in their capture. The use of Brazilian documents in the courts was so common that litigants sometimes traveled across the border in search of them. When Juana Fernandez Pintos discovered that land inherited from her father in Uruguay had been usurped by the tenant during her long absence in Brazil, with the complicity of her brother, who controlled the titles, she petitioned the alcalde ordinario in Cerro Largo in 1867, then left for Brazil to retrieve the will and estate settlement.³⁹ 25

     The border was at the same time more than a minor linguistic and procedural obstacle. In Brazil, slavery remained legal; in the República Oriental it was outlawed in 1846. Antislavery sentiment in the República Oriental was strong, but de facto slavery was kept alive by pressures to maintain ranching labor costs at a level competitive with Brazil and by legal loopholes that allowed slaveholders entering Uruguay to sign labor "contracts" with their slaves for extended periods. The Uruguayan legislature passed a law in 1861 limiting the term to six years, and officials required that contracts be registered in Uruguayan courts in the presence of all the parties to ensure that the laborers understood that slavery was illegal in the country. Authorities on the border were often openly sympathetic to slaves' and former slaves' attempts to use the courts to gain their freedom. In 1846, for example, the alcalde ordinario of Tacuarembó found insufficient proof that the plaintiff Joaquín was the property of the Brazilian Celestino Dorrego, though three witnesses, including two other Brazilians, testified that they had known the slave to be in his possession for more than ten years.⁴⁰ In another case, in 1869, Francisca Escoto appeared before the jefe político of Tacuarembó claiming that she was "a citizen of this Republic," born and baptized in Tacuarembó but taken at the age of six or seven in servitude to Brazil. She had traveled across the border to gain her freedom and was seeking help from the Oriental authorities in freeing her four children, who were still slaves in Brazil. Both military and judicial officials in Uruguay tried to intervene on her behalf, but the Brazilians were not cooperative. The Barón del Cerro Alegre wrote to the political chief of Tacuarembó that he could do nothing in the case "because the laws of my country do not permit the military authorities to intervene in such cases . . . only the judicial authorities." The Brazilian courts would of course not surrender jurisdiction. The municipal judge in Bagé declared that the woman should return to Brazil "to litigate in this court for her freedom, if she chooses to try, or else be returned to her master."⁴¹ 26

     In other cases not involving slaves, litigation had ways of stretching across the border. Cross-border cases featured two often interrelated strategies. First was the argument, made and even successfully defended in some cases, that Brazilian legal procedures should be accepted as part of the Uruguayan legal process. This claim went further than the routine transfer and use of foreign documents, and it often contained an implicit critique of legal proceedings in the republic. A second strategy involved the refusal of some litigants—Brazilians living either full-time or part-time in the Banda Oriental—to appear in court on either side of the border. This tactic was used frequently in litigation over property, because the subsequent delays in cases gave defendants time to sell disputed land or cattle. 27

     These two strategies contributed to a more general shift toward greater regularization of property transactions and titles. On the one hand, the legal system held out the promise of a more orderly protection of property rights; on the other, legal procedures could themselves contribute to instability, as in the case of notoriously arbitrary prejudgment attachments prohibiting the sale of disputed property. While Brazilian landholders who traveled back to Brazil or even lived there permanently were especially vulnerable to such legal maneuvers, they were also drawn through them into protracted litigation in Uruguayan courts, where they often triumphed by appealing for greater consistency in rulings and procedure. 28

     Two cases from Tacuarembó a decade apart show the intersection of cross-border legal strategies and legal reform issues. The first case, from 1857, began as a dispute about payment on rented land.⁴² This sort of litigation was very common. Absentee landholders rented out land for extended periods and later claimed that tenants had failed to pay or had even tried to assume ownership of the rented property. In the 1857 case, the original contract on the land inside Uruguay had been signed in Brazil by the landowner, Joao Pedro de los Reis, and his tenant, Joaquín Manuel Texeira, in 1849.⁴³ In 1855, Reis filed a complaint with a judge in Pelotas, Brazil, saying that Texeira was not paying him. Since Texeira would not appear in court in Pelotas, Reis petitioned the alcalde ordinario in Tacuarembó with the same charge two years later. Reis now feared that his tenant had been selling the cattle on his estancia and had left the country "for an unknown place." 29

     Reis was in effect asking the judge to substitute the Brazilian legal proceeding for a lower-court judgment in the República Oriental. Legal procedure in Uruguay required litigants to submit to an arbitration hearing—a juicio conciliatorio—before a juez de paz prior to bringing a case before the alcalde ordinario.⁴⁴ Reis was arguing that the Pelotas procedure should serve as the hearing. At first, this approach worked surprisingly well. Citing Texeira's failure to appear before the court in Pelotas, the alcalde ordinario prohibited Texeira's sale of his cattle and of land owned in partnership with Reis. But the strategy was destined for trouble. When local officials went to inform Texeira, they found his son in residence on the estancia; even without legal counsel, he pointed out that the property had been attached without a hearing, "as required by Law." Reis's lawyer argued that there had been no alternative to holding the conciliación in Brazil "because the parties both lived there." 30

     The alcalde ordinario either felt he lacked the legal expertise to rule on this jurisdictional matter, or he wished to avoid taking responsibility for the decision. As these judges were entitled to do, he appointed a legal advisor to the court to help him rule on the jurisdictional issue. The court advisor, a local lawyer named Antonio Segui, reported that banning the sale of Texeira's property had indeed been illegal. No trial had taken place. Segui recommended that the magistrate sign an order to remove the restraint under the condition that Texeira appear within twenty days. Reis's lawyer pleaded for the case to move forward, since his client lived in Brazil and "any delay can only prejudice my side and in no way the other." Nevertheless, the magistrate followed Segui's advice, also fining Reis for holding a contract written on paper without the proper seal. 31

     If Reis had difficulties as a foreign litigant, Texeira soon sought advantage in his own foreign status. Within months of writing his advisory ruling, Antonio Segui had contracted to represent both Texeira and a third man, Julian Grane. Segui reported to the court that Texeira was now in Corrientes, Argentina, where he had legally sold his share of the property he held with Reis to Grane. It was not necessary, Segui argued, to enter into a discussion of whether Texeira owed Reis any money, but only to show "that the purchase of the land made by my client was valid." As an aside, Segui noted that it was well known that Texeira owned valuable properties in Rio Grande, Brazil. He was perhaps hinting that the debt could be claimed in Brazilian courts and that its fulfillment did not depend on what happened in the República Oriental. No doubt Segui, who had recently advised the alcalde ordinario on points of law in the case, held some sway with the judge, who approved the sale in December 1857. With this move, Texeira had effectively won the case. 32

     Reis did not give up, however. After a lengthy stay in Montevideo, his lawyer returned in April 1858 to inquire about the progress of the case. When he discovered what had happened, he pointed out to the alcalde ordinario that he had ruled in May 1857 that Texeira could not sell his lands unless he appeared. Bending once again, the judge reverted to his previous order. A court-appointed representative for the absent Texeira was named so that the case could continue without him. The case was still in limbo in 1859.⁴⁵ Finally, in August, the two parties, with Texeira represented by a court-appointed lawyer, held the juicio conciliatorio. The hearing was a formality. With no effective advocate, Texeira's side folded. It is unclear from the record whether Reis was ever successful in receiving any remedy from Texeira, who had sold his land in the interim. 33

     This case shows two Brazilians in litigation over property rights within Uruguay. The plaintiff's claim that by living in Brazil he was disadvantaged in actively pursuing the case appears to hold some truth. But his first strategy was to try to use his foreign residence in arguing that the conciliación carried out in Brazil should substitute for one conducted in the República Oriental. The defendant was also adept at using border crossings to his advantage. While not appearing or even sending a representative to respond to the litigation, he found a lawyer close to the case to arrange the sale of his property, registered in the consulate outside the country. The case also demonstrates the weaknesses of judicial administration in the countryside. In this and in many other cases, judges agreed to whatever arguments were put before them. The records show us a growing number of cases in which judges enjoined the sale of property without much deliberation and with little consistency. No doubt in some of these cases, magistrates were motivated by patronage ties or even self-interest. But in others, they simply sought summary judgments to troublesome issues. The fact that so many litigants were Brazilian, some living in Brazil, also recommended such a strategy. Litigants from Brazil could not always forcefully present their cases, sometimes did not show, and might have recourse to other legal remedies in Brazil. At the same time, though, the Brazilians learned the rhetoric and the procedures needed to defend their interests in the Republic. The rhetoric required quoting the constitutional right to protection under the laws of the state. As for procedure, it was possible to make an appearance at any time in the course of a case and argue that procedural requirements had not been met. It was a fair bet that in most cases they had not been. Brazilian litigants could thus claim residence outside the country as long as it was convenient, but they also argued strategically that the state of judicial administration in the country prevented them from receiving justice. 34

     A second case a decade later helps us to view these strategies in somewhat different combination. It was brought by a Brazilian lawyer, Joachin Pacheco da Silva, against another Brazilian, Doña Ana Joaquina de Azambuya, in 1867, in Tacuarembó.⁴⁶ Pacheco claimed he had represented Azambuya in settling her husband's estate in the República Oriental, where Pacheco had been forced to go as her representative, abandoning his business in Brazil. He asked the alcalde ordinario to request that the municipal judge of Bagé, where the widow lived, summon her to the Tacuarembó court. The alcalde ordinario complied, signing an order for Azambuya to appear in July. In September, Pacheco's representative was in court again asking for a second, then a third notice. The defendant was trying, Pacheco's advocate argued, to avoid a trial, "saying that she has nothing in this country, whereas this is untrue and she is trying to sell her properties" to escape the claims made against her. In early 1868, notices appeared in both the Tacuarembó and Bagé newspapers ordering Azambuya to appear in court. In March, Pacheco's side successfully argued that the case should go forward without the defendant. 35

     The case appeared to be leaning Pacheco's way. He outlined the basis for his claim that Azambuya owed him 6,000 pesos. Nearly half that amount, he claimed, consisted of losses he had incurred by abandoning his business in Bagé; the rest were costs for handling the widow's case and his own honorarium. The court-appointed defender conceded that Pacheco had indeed worked for Azambuya and had not been paid. Only the amount remained in dispute. The alcalde ordinario appointed two assessors who agreed in May 1867 that Pacheco had done a valuable service; the widow's rights to the inheritance had been contested since she was living in Brazil and separated from her husband, a colonel in the army of the República, and Pacheco had secured her share of the estate. The assessors nevertheless recommended reducing the amount owed to 4,000 pesos. Pacheco lamented the decrease in his award but agreed to it, and the court-appointed defender for Azambuya also raised no objection to the settlement. 36

     But rather than settling, the case now entered a new phase. Pacheco's representative was back in June, claiming that Azambuya had sold all her property in the República except one piece of land in Tacuarembó. He warned, too, that she had contracted a representative locally, a man named José de Mora. The court had to act, he pleaded, to prevent either Mora or Azambuya from selling the remaining land. The court's approval of this course of action, though, did little to help Pacheco's cause. José de Mora, through his own representative, reported that he had legally bought the land from Azambuya back in January, so that the restraint on the property could not be valid. 37

     Pacheco saw his chances slipping away. His lawyer argued that the sale was fraudulent. It had been made before a notary "in a foreign country," and the title had been presented for registry the day after the court had barred the sale of the property. "The laws of this country are very explicit regarding sales made in foreign countries," Pacheco's side argued. There were tax reporting procedures that had been violated. The sale must be nullified. 38

     Once again, the court decided to name a legal advisor. A Montevideo lawyer, Ramón Lagastirábel, was chosen this time. His advisory report had the ring of an appellate ruling. He found that Pacheco's claims to the debt by Azambuya were unsubstantiated. Pacheco had not supplied receipts for his work, he had not presented evidence of the losses he had incurred in Brazil, and the court-appointed lawyer for Azambuya had presented no defense. The advisor went further, arguing that "absentee or captive" parties to a suit must be given the same rights as minors, and he cited an article from the new Civil Code protecting minors from arbitration or awards committed on their behalf. Further, Lagastirábel argued, the contract of sale presented by Mora, though executed in Brazil, had to be considered authentic, "having been legalized by the Vice-Consul of the República" in Brazil. Pacheco might object to the contract only if he could show that it had not been drawn up in accordance with the laws of Brazil. A separate document recommended assessing Pacheco court costs, including the fee for paying the court-appointed lawyer for the other side. Without comment, the alcalde ordinario affirmed the opinion in June as the final sentence in the case. 39

     Pacheco must have been distraught at this outcome, having seen the case close to settlement in his favor. His lawyer appealed in July. Pacheco now had to find representation in Montevideo. After numerous delays, the case was changed by the sudden presentation, in August 1869, of a power of attorney signed in Bagé by the absent Doña Azambuya. This was her first appearance in the case. She named as her representatives a firm of well-connected lawyers in Montevideo. One of them was Ramón Lagastirábel, the former legal advisor in the case. 40

     In the first six months of 1870, the appellate judge received briefs from the three litigants, Pacheco, Azambuya, and Mora. Pacheco's side reiterated his claims and presented new documents supporting his work for the widow. More gently, he criticized the asesor for advising on the facts of the case rather than on the narrow question of the legality of the prohibition on the sale of Azambuya's property. He stopped short of accusing Lagastirábel of complicity but did point out that "he had already served as judge in the case" and was now an advocate. 41

     For the defense, the lawyers for Azambuya and Mora introduced a new argument. The rural court had never enjoyed jurisdiction over the case, Azambuya's attorneys wrote. Not only was the demand too large to be considered by even an alcalde ordinario, but the Señora "was known to have her residence in Brazil, and so had the right not to be cited anywhere but there." Her absence, too, made it impossible for the court to be assured that she had received three notices to appear. The court defender had been "illegally appointed." Mora's lawyer concurred. "Any Judge is incompetent and commits an abuse of power when he goes beyond the limits of his jurisdiction and exercises judicial functions over persons not within his purview or in causes that belong to another judge . . . [and] no one is permitted to exceed the jurisdictional limits that the law has established." The appellate judge reaffirmed the lower-court ruling, and the court appended a new list of costs, presumably also for payment by Pacheco. 42

     The lack of commentary by the appellate judge does not let us determine which set of arguments swayed him. In Montevideo's small legal community, the reputation of Azambuya's representatives might have been enough to win the case. It is certainly clear, however, that jurisdictional issues were central to the defendants' case. In arguing for a strict limit on jurisdiction over Brazilians, the Montevidean lawyers were, oddly, reaffirming an immunity for foreigners that they often railed against as a matter of policy.⁴⁷ They were also, though, advocating a vision of the functioning of the courts that was quite different from practice on the frontier, where cases between two Brazilian litigants, and summonses sent to Bagé or Yaguarón, were commonplace. Once again, a foreign litigant was simultaneously arguing for greater procedural rigor in the courts and for an exemption from their purview. 43

A "Country Claiming to Be Civilized"

This seeming contradiction—claiming immunity while proclaiming the legal equality of residents and citizens—was the hallmark of another steady source of judicial commentary and controversy, the communications from foreign legations in Montevideo in and around the same period. A steady stream of letters from the Brazilian and British legations, and somewhat less voluminous communications from Argentine, Italian, French, and Spanish officials, from the 1850s through the 1870s, addressed the twin concerns of the treatment of foreign criminal defendants and the search for justice in cases where foreigners were victims. Added to these issues was the Brazilian preoccupation with actions taken by the República Oriental that threatened the property rights of Brazilian slaveholders. Both Brazil and Britain were concerned, too, with deserters who either crossed the border or jumped ship and with the Oriental habit of pressing foreigners into military service. 44

     These communications were part of the standard flow of consular correspondence. But the claims for various degrees and forms of extraterritoriality are of more than minor significance, for several reasons. One is that these complaints were a forum for commentary by foreigners on the deplorable state of judicial administration in the República Oriental—and, parenthetically, on the advanced state of the law in their own countries. Second, the complaints were routinely passed along from the ministry of foreign affairs directly to the Tribunal Superior, the highest court then in operation. Even though, as we shall see, the response was often no response at all, the legation communiqués persisted over decades. They created a constant buzzing in the ears of highly placed legal officials in Montevideo about the deficiencies of the administration of justice. The officials reacted in part by hardening their position that control over the country's legal institutions was the linchpin of state sovereignty. It cannot be regarded as coincidence, though, that many of the same officials were meanwhile advocating legal reforms that would ultimately address the concerns raised by the foreign legations. Third, both Brazil and Britain entered these discussions with the support of treaties giving their subjects special judicial status. These limited claims to immunity formed a crack in the state's sovereignty that Uruguayans feared might widen, and that under special circumstances foreign legations would, indeed, seek to widen. Finally, the stream of complaints about judicial practice helps to remind us that law was not viewed simply as instrumental to trade; indeed, British and Brazilian officials often spent far more time on judicial matters than in advocacy of trade policy or protection of individual traders. There is no doubt that internal order was considered essential to expanding British investments in the region and that British victims of crime were themselves sometimes investors or landholders of some importance. But the passion with which the legation pursued perceived injustices was only indirectly connected to economic interests. Fixed ideas about how justice should be administered, and to whom, were central to Britain's decision to cut off diplomatic ties with the Uruguayan state in the 1870s. The issue of justice was seen as related to, but not less important than, the narrower concern of Uruguay's defaulted debt (itself the result of adjudication over claims of war damages by British subjects). 45

     The Treaty of 1851 gave Brazilian officials a basis for various complaints against judicial proceedings in the República Oriental. One clause of the agreement protected Brazilians from serving in the army. Another pledged that runaway slaves and deserters crossing the border would be returned to Brazil. Desultory enforcement of these clauses generated numerous complaints. We have already noted, for example, that the Uruguayan courts tended to look favorably on slaves claiming their freedom. Within just two years of signing the treaty, the government released a circular to all provincial jefes políticos that created a stir because it implied that slaves entering the national territory after the treaty was signed need not be returned. The Brazilians had their own narrow interpretation of the treaty when questions emerged about the surrender of Uruguayan deserters who crossed the border into Brazil. Though the exchange of deserters was explicit in the treaty, Brazilians reported that they were under no obligation to return fugitives wanted for political crimes, a distinction that allowed them to harbor renegades of all stripes and infuriated the Montevidean government.⁴⁸ Such issues were a recurring focus of tensions and drew legal wrangling squarely into the realm of international politics. 46

     Consider the interesting case of the Brazilian soldier Manoel Bernardino da Pacheco. Authorities in Cerro Largo had asked the police in the Brazilian city of Yaguarao to arrest him for trial in Uruguay. To the dismay of national Brazilian officials, the local police had promptly complied, depriving him, the legation argued, of rights conferred by his nationality and residence and affirmed in the Treaty, "as it is in almost all international conventions of this kind." Going further, the legation argued that even if Bernardino had committed a crime in the República, he had done so while there with the Brazilian army in 1851. His status as a soldier placed him outside normal criminal jurisdiction. "Neither the Authorities of Cerro Largo nor those of Yaguarao had jurisdiction over this act." Instead, they argued, the matter needed to be resolved "Government to Government."⁴⁹ 47

     The appeal for special status for Brazilians was balanced, though, by the claim that they were entitled to the rights of citizens under the law. Similar cases at either end of this formative period illustrate the ways in which Brazilians used the complaints as a forum for a critique of Uruguayan justice. In 1852, the legation registered a complaint about the treatment of the Brazilian subject Adriano Monix Fagundes, who had purchased cattle in Paysandú with a partner. He was then cited to appear before the jefe político, and a short time later the court enjoined the sale of all his property. He spent two months in the provincial capital trying to petition the jefe político and the alcalde ordinario, but his case was never heard. His only recourse, he decided, was to complain to his own government, writing that the facts of the case "recall the calamitous era this State has passed through." The foreign ministry followed up his complaint with an inquiry to the jefe político in Paysandú, who replied that Fagundes was involved in a criminal case that was being referred to the provincial court and then on to the criminal appeals court in Montevideo. The prosecutor in Montevideo responded curtly to inquiries about the case, saying that he could find "no substantial procedural defect" in the case and that it should be returned to the court "so that the laws and justice of the nation continue their course."⁵⁰ 48

     Two decades later, the rhetoric was much the same in a case from Paysandú reported by the Brazilian legation. The legation passed on a complaint by the Brazilian Hipolito Ribeiro, who had left his estancia in Paysandú to fight in the war with Paraguay, leaving his sheep in a herd mixed with animals belonging to the Oriental José Prates. According to the complaint, Prates convinced four recently arrived Italians to swear before the local juez de paz in Prates's house that Ribeiro had been slaughtering his sheep. The juez de paz ordered 663 sheep and 17 cows to be selected from Ribeiro's flock and given to Prates. Ribeiro's lawyer made three separate appeals to the alcalde ordinario but "no action was taken in order to guarantee the property of the absent foreigner." The complaint contrasted this "horrifying" act with the legal order in Brazil, where citizens were "so accustomed to seeing the sacred right of property respected."⁵¹ 49

     Like the Brazilians, the British claimed special status for their citizens under some circumstances, but they also dwelled on the necessity of improving Uruguayan justice so that British subjects would have proper protection under the law. Already in the late 1850s and early 1860s, the British Legation in Montevideo showed unusually detailed attention to legal cases involving British citizens as defendants or victims.⁵² The complaints insisted especially on the failures of the justice system in the countryside, where murders of British citizens routinely went unsolved. In 1862, the legation forwarded the complaint of judicial misconduct by a rural magistrate acting against a British citizen. In 1865, we find the first reference to the murder of an entire British family, the Campbells, and other complaints about violence against British citizens. Disorder in the countryside became a central preoccupation of the legation after 1870 during the so-called Revolt of the Lances led by the caudillo Venancio Flores. 50

     The increasingly strident complaints of the British, most of them authored by the vice consul, James St. John Munro, show the British to be not merely registering their objections to the handling of various legal cases but following the details of each case closely. In some cases, the consulate independently gathered evidence and even took depositions—acting, in essence, as a shadow legal authority. For example, following the trial of the man accused of the Campbell family murders, Munro complained that the verdict—Damasio Escobar was guilty of robbery but the murders were "not proven"—made no sense: "How the Jury came to pronounce such a verdict in the face of the fact of the bloody knife which is known to have belonged to Damasio Escobar having been found on the scene of the murders I am at a loss to comprehend."⁵³ Munro's call for a new trial gave way quickly to another concern when Escobar escaped from prison; Munro learned not from the authorities but from "several English gentlemen" that Escobar was living openly in the place where the crime had been committed. 51

     When in July 1868, a British subject from Gibraltar was killed by a policeman for comments he made about a street brawl, Munro took a sworn statement by a witness in his office and passed it on to the minister of foreign affairs, together with this remark: 52

Upon the 24th of last month Your Excellency was pleased in conversation with me to express an opinion that the taking away of life so lamentably common in this Republic and which Your Excellency described as a disgrace to a country claiming to be civilized, called for the practice of decided measures, and Your Excellency then announced a determination, as a Minister of the State, that in all such cases in the future the law should be strictly vindicated.⁵⁴

The minister was Manuel Herrera y Obes, one of the country's leading law-trained politicians, and though his comments had no doubt been intended to placate Munro, he probably also shared Munro's disdain for the shoddy and interest-laden legal practices of the provinces. But the response from Uruguayan officials was purposefully slow. The judiciary reported back that Munro's witness had never given a statement to the criminal court. Subsequent complaints by the British went unanswered for months, and at least one letter was mislaid. This is not to say that the British appeals made no impression. The tribunal superior was asked for a report on the case in July 1869, and a month later, the foreign affairs minister stated that the president had personally approved a payment of 300 pesos in compensation to the victim's widow.

     Munro wrote during the same year to urge, in similarly detailed letters, the prosecution of the murderers of three other British subjects, all on estancias. In 1869, there were three more murder cases. Munro's tone grew more strident in his letters, and he continued to offer himself in the role of investigator. In reporting on the murder of Stephen Tucker in Soriano in December 1868, Munro noted that in March he had taken sworn depositions from witnesses in the case. But because the government's response to his inquiries in other cases had been so slow, he had delayed writing about the Tucker case "until I might be able, if possible, to discover through my own efforts the actual place of residence of the assassin." He now reported that the suspected murderer had been sighted "at a place called the Tres Arboles on the north side of the Rio Negro" and offered a reward of fifty pounds for further information on his whereabouts.⁵⁵ 53

     In 1870, reports of thefts against British subjects in the countryside became more common as government forces—in some cases subaltern officials acting on their own—seized property, ostensibly to support the campaign against the revolt. Munro dutifully recorded his outrage at these incidents. In the same year an incident occurred that was to provide a focus for British frustrations. In July 1870, an English captain aboard the English ship "Bobecito," at Fray Bentos, was murdered by three English sailors.⁵⁶ Munro did not limit himself to the role of investigator this time—he sought English jurisdiction in the case, "as every detail in this affair was English, the scene of the crime an English ship, the murderers English, though in Uruguayan waters." He seemed to be aware that there was no legal basis for making this claim but argued that the Uruguayan state had, through its own disorganization and past inability to provide justice, forfeited its right to try the case.⁵⁷ In response, the president asserted that the sovereignty of the state was at stake. In refusing to deliver the English sailors, the president reportedly told Munro "that such a proceeding would be considered a lowering of the dignity of the state" and cited "its right to try the men before its own tribunals."⁵⁸ When it came to the notice of British officials that two of the suspects had been permitted to volunteer for military service, while a third was in prison but had not been tried, Munro lodged another vigorous protest. 54

     There were, to be sure, now other sources of friction between the two governments. The Uruguayan government, in perpetual financial difficulties, had defaulted on the payment of British debt. The government had also temporarily shut down an English telegraph company and arrested its English director for transmitting messages sent by rebel forces. There was trouble about a railroad concession promised to a British subject that was assigned instead to local political insiders without any compensation being paid. But in the long explanatory letter from the legation in November 1871, listing reasons for the decision to break off diplomatic relations, the problems of the judiciary—in particular, the many unsolved crimes committed against British subjects—received the most extensive comment. The handling of the "Bobecito" incident was particularly galling to the British, who accused the tribunal superior of itself acting "in contravention of the law" in its treatment of the suspects, "whether because of ignorance of the law in such cases or because of an intentional wish to deprive Her Majesty's Consul of his right to claim these captives and send them to be tried in England." In refusing England's jurisdiction in the case, the president had "assumed a duty that he could not discharge."⁵⁹ In general, the letter went on, any statement by the government that cases involving the interests of foreigners could be solved according to the laws of the country was "the equivalent of a predetermined decision to deny" foreign claims.⁶⁰ Finally, in an argument that echoed British claims for extraterritoriality in China, the consul accused the government of a nearly complete ignorance and avoidance of the conventions of international diplomacy. 55

Legal Reforms

Quite apart from the larger question of the Uruguayan government's view of the diplomatic break with England, how did the (fractured) political elite respond to these strident critiques of the state's administration of justice? Even before the end of the Guerra Grande, a legal reform movement was taking shape in Montevideo. The Uruguayan historian Pivel Devoto calls the period between 1851 and 1867 one of an "extraordinary flowering of juridical literature."⁶¹ A handful of prominent political leaders with legal training pressed for reforms of the legal system as part of the solution to the disruptive politics of caudillismo. The legal status of foreigners was a recurring theme for these law reformers as well as an influence on the direction of reform. 56

     The lawyer Eduardo Acevedo founded the newspaper "La Constitución" and wrote passionately in it about the need to unify the country and defend the "strict observation of the Constitution."⁶² He favored an aggressive campaign to naturalize foreigners and objected to the extension of even limited political rights to foreigners who chose not to accept citizenship.⁶³ Advocating a stricter implementation of election laws requiring registration of eligible voters, for example, Acevedo complained that under the current conditions, anyone "was authorized to call himself a citizen today, and tomorrow a foreigner, with nothing to serve as a way of fixing nationality."⁶⁴ When Acevedo became the minister of government and foreign affairs between March 1860 and June 1861, he aggressively defended the rule of law as the basis for the sovereignty of the state.⁶⁵ In response to repeated Brazilian complaints about the victimization of Brazilians in the Uruguayan countryside, Acevedo was unapologetic. In March 1861, he noted in a memorandum that although it was unfortunate that some Brazilians had been victims of crime, the danger was a common condition of those living far from home and in a newly forming society. He suggested that Orientales living in Brazil were in much the same position and that Brazilian courts had not done better in tracking down Brazilian aggressors. In fact, he wrote, it was surprising that more violence was not being reported against Brazilians.⁶⁶ On another occasion, Acevedo specifically attacked consular interventions in legal cases as an infringement of state sovereignty. Writing in May 1860, in response to a note from the representatives of Portugal, France, Spain, Great Britain, and Brazil protesting the legal actions brought by one Uruguayan, Francisco de la Serna, against their subjects on the left bank of the Solís Grande, Acevedo wrote that there was nothing he could do to interfere with the courts. He accused the legations of violating "the doctrine of international law that teaches that diplomatic intervention can only take place when ordinary means have been exhausted and justice has been denied by the incumbent administrative authority."⁶⁷ 57

     It was hardly a coincidence that Acevedo was also the author of an early draft of the country's first Civil Code.⁶⁸ The Code was first presented to the parliament in May 1853, but it was not adopted until January 1868, in revised form (with Tristan Narvaja as the main author). Acevedo saw in the Code an opportunity for a formal break with Spanish law and its layered and anachronistic sources. Codification gathered steam in the next decades; the late 1870s saw approval of the Criminal Code, a Code of Civil Procedure, and the Rural Code. This last was a document written by and for wealthy ranchers. It detailed the terms of rural labor and proscribed severe penalties for vagrancy. Certainly adoption of the Rural Code was intended to mark the end of an era of fractured loyalties and controls in the countryside. It redefined the unattached and itinerant peones who subsisted on the margins of large estates as vagrants or, worse, bandits.⁶⁹ While this shift to centralized control has dominated narratives about legal reform in this period, it cannot be understood except in the broader context of reformers' concerns with the strengthening of state institutions as a way to offset foreign political interventions and their threat.⁷⁰ 58

     Acevedo's views were echoed by other influential statesmen. Andrés Lamas, the law-trained diplomat who was instrumental in writing the controversial treaty with Brazil in 1851, combined a pragmatic view of the need to compromise with foreign powers with a marked defensiveness against any claims to special legal status for foreigners. A widely circulated manifesto published by Lamas in 1855 laid out an agenda for state reforms that would aid in controlling caudillismo, including the strengthening of judicial institutions. Later critiquing concessions made to the Brazilians in the 1851 treaty, he decried the "mutilation" of the country by the "occupation" of the territory north of the Río Negro by Brazilians. This occupation had led to the exclusion from the territory of "all the elements that constitute effective nationality," so that "we are left only with high jurisdiction . . . [that] encounters difficulties in even its most uncontestable applications."⁷¹ 59

     While insisting that exclusive control of the administration of justice in the country was a condition of sovereignty, these and other Montevidean reformers were also painfully aware of the failings of the courts, particularly in rural areas under the control of caudillos. A series of reforms enacted in the 1850s sought to introduce a greater professionalism into the court system by curtailing the responsibilities of the alcaldes ordinarios. In 1861, the new procedures for rural magistrates and judges were published and circulated, with detailed instructions on record keeping and the taking of sworn testimony. Although judicial posts were made elective, the reform in practice had little effect in insulating the judiciary from local politics, as reformers had hoped.⁷² 60

     Information about the problems in the administration of justice came not just through the steady stream of complaints by foreign consulates but through the judiciary itself. The appellate system was notoriously spotty in its functioning. In the 1860s, a series of changes in reporting requirements by lower courts established for the first time an official source of information about the functioning of justice in the countryside. The new reporting structures were designed to introduce accountability in provincial legal institutions.⁷³ 61

     The combination of legal and political disorder, challenges from foreign powers, and chronic instability in the definition and legal protection of property rights produced, Finally, a resolute strengthening of central political power in the 1870s. Under the dictatorship of General Latorre, between 1876 and 1880, a series of state centralization measures included comprehensive legal reforms: codification, professionalization of the judiciary, and the regularization of judicial procedure. The reforms took place both at the level of the state and as internal policy measures within the legal administration directed by the tribunal superior, which held both judicial and administrative authority in the absence of a supreme court. The legal changes went hand in hand with other centralizing Latorre policies, particularly the extension of free, secular public education throughout the country, and with the decade's most significant economic change, the mass introduction of barbed-wire fencing in the countryside. The new ability to mark off grazing lands and enclose cattle and sheep depended on, and also reinforced, recourse to more secure legal titles and contracts. Further reforms followed during what is often regarded as the key period of liberal state building between 1880 and 1910. 62

Conclusion

Tensions over the legal status of foreigners during the middle decades of the nineteenth century were more than just minor distractions. Both Brazilian and British legations spent considerable time on legal matters, and building outrage over the failings of the judicial system contributed directly to the rupture of relations between Britain and Uruguay in the 1870s. Brazilian and British critics of the Uruguayan legal order commented on the contrasting, more "civilized" approach to law in their own countries. To some extent, national elites used such rhetoric, too, in pressing for legal reforms. They built on what was already a borrowed, "foreign" rhetoric of republicanism, while at the same time exhibiting an almost prideful disregard for comparisons and a growing insistence that sovereignty conveyed the right to administer justice in any way the country pleased—even if it meant doing so badly, indifferently, or arbitrarily. 63

     The large and influential contingents of foreigners played an important role in challenging state legal authority. In the north, Brazilians were to be subject to the laws of the republic when they were in its territory, and they could also appeal to the courts and receive equal treatment when they appeared as litigants, witnesses, or criminal defendants. But two sets of pressures made Brazilian legal actors into a special class. Brazil's still powerful influence in the region and the persistent threat of direct military intervention created one. The legal maneuvering of Brazilians in the courts, and the ever-present possibility of "forum shopping" across the frontier, provided another. Rather than constituting a fixed border, the Uruguayan-Brazilian frontier operated in many ways as a single legal sphere with two (national) jurisdictions. Paradoxically, the legal presence of Brazilians and their special characteristics as litigants urged tighter procedural justice—a move that protected the interests of individual Brazilian litigants while at the same time reinforcing Montevidean goals of advancing state control on the northern frontier. 64

     The other set of problems connecting the "foreigner question" to the erection of a state legal order centered on the status of Europeans. The British community in particular, prominent as traders in Montevideo and as ranchers in the littoral provinces along the Rio de la Plata and the Uruguay River, consistently challenged the Uruguayan authorities to provide them with special legal protections. In part this strategy evolved quite logically out of the French and English insistence on being exempt from military service during the region's wars and on receiving priority in reimbursements for property seized by government forces during the Guerra Grande. The posture led to demands for various forms of extraterritoriality, ranging from a mixed commission to distribute war settlements, to informal interventions in legal cases, and to the insistence, in one celebrated case, on English jurisdiction over a crime committed in Uruguayan territory. At the same time, mirroring the ambiguous effects of the Brazilian "problem" in the north, British legal interventions also had the consequence of strengthening calls for legal reform by criticizing the lax administration of justice. 65

     The jurisdictional ambiguities of this period did not disappear abruptly. Border-hopping as a form of forum shopping was still a familiar strategy to caudillos and their dependants along the Brazilian border, as Chasteen has shown in his portrait of the Saravia family in the last decades of the century.⁷⁴ Jurisdictional tensions continued to figure into the politics of rebellion. The important difference was that if the reality of state authority was still in question, the principle of territorial sovereignty was not. Rebels could be relabeled as bandits, and eluding the law could be redefined as lawlessness, rather than as the challenge of parallel or subordinate legal authorities. 66

     It is important, though, to separate this late-century labeling of rural upheaval as lawlessness from earlier perceptions of the countryside as unruly because its control was fragmented. Without this distinction, we will confuse earlier struggles around the legitimacy of claims to territorial sovereignty with later conflicts over its implementation. In mid-century, legal actors interpreted property disputes and criminal prosecutions as defining events shaping their relation to the new nation. Frontier litigation involving foreigners and consular legal interventions were as much about citizenship and sovereignty as they were about property rights and protection. The oddity is that in seeking a special legal status, foreigners implicitly recognized the state's unique place in assigning political identity. 67

     Viewed broadly, the shift toward state legal hegemony in Uruguay and in other Latin American states is impressive for its synchronicity. The close timing in the move toward codification and the consolidation of state legal institutions across the region have tended to reinforce the idea that these changes resulted from a contagious borrowing of foreign institutions—followed by the corruption of their liberal-democratic intent. Foreign influences are decidedly different if we instead view the process of legal institutional formation as one that involved foreigners as interested parties. The ambiguous imprint of merchants on state institutions is one piece of this puzzle. They sought to strengthen state guarantees on domestic transactions while, at the same time, maintaining their own controls over international trade.⁷⁵ This case study points to another dimension of legal-institutional change and shows that, while maneuvering to retain exceptions to state control and proclaiming the need for order, foreigners were indirectly promoting a discourse about sovereignty that helped to prepare the shift toward a state-centered legal order. 68

Lauren Benton is professor of history at the New Jersey Institute of Technology and Rutgers University, Newark. Research for this paper was supported by a grant from the Fulbright Foundation. The author would like to thank John Charles Chasteen, José Pedro Barrán, David Frazer, and Matthew Mirow for responding helpfully to queries and four anonymous reviewers for their comments on an earlier draft. All translations are by the author.

Notes

¹ For an expanded statement of these arguments, see Lauren Benton, "Colonial Law and Cultural Difference: Jurisdictional Politics and the Formation of the Colonial State," Comparative Studies in Society and History 41 (1999): 565–82.
² Jeremy Adelman, Republic of Capital: Buenos Aires and the Legal Transformation of the Atlantic World (Stanford: Stanford University Press, 1999), 146. I make a similar argument about the "orderly disorder" derived from jurisdictional tensions in colonial law in Lauren Benton, "Making Order Out of Trouble: Jurisdictional Politics in the Spanish Colonial Borderlands," Law and Social Inquiry 26.2 (2001): 373–401.
³ The litigiousness of colonial Spanish America was linked to pervasive jurisdictional tensions carried over from Iberian law and exacerbated by conquest and colonization. For a discussion of the sources of jurisdictional tensions in Spanish colonial law, particularly church-state conflicts, see Lauren Benton, "The Legal Regime of the South Atlantic World: Jurisdictional Politics as Institutional Order," Journal of World History 11.1 (2000): 27–56. On the complications introduced by the legal status of Indians, see Woodrow Borah, Justice by Insurance: The General Indian Court of Colonial Mexico and the Legal Aides of the Half-Real (Berkeley: University of California Press, 1983); and Lauren Benton, "Making Order." Jeremy Adelman describes the evolution of merchant law as a separate jurisdiction in Adelman, Republic of Capital, 145–50. For studies of legal conflict in the Andes that illustrate Indians' sophistication as legal actors and their focus on the law as a forum for complaints, see Sergio Serulnikov, "Disputed Images of Colonialism: Spanish Rule and Indian Subversion in Northern Potosi, 1777–1780," Hispanic American Historical Review 76 (1996): 189–227; and Steve Stern, "The Social Significance of Judicial Institutions in an Exploitative Society: Huamanga, Peru, 1570–1640," in The Inca and Aztec States, 1400–1800: Anthropology and History, ed. George A. Collier, Renato I. Rosaldo, and John D. Wirth, (New York: Academic Press, 1982), 289–320.
⁴ Rodríguez calls the audiencias "the most enduring territorial units" of Spanish America. Most of the territories became nations after independence. But the overlay was imperfect. New Spain had two audiencias, as did the territory that was to form Peru on the eve of independence. Some smaller republics were created in areas without audiencias, as occurred in Central America outside Guatemala and in the Republic of Uruguay, the subject of this article. Jaime E. Rodriguez, The Independence of Spanish America (Cambridge: Cambridge University Press, 1996), 7. Law clearly constituted one of the aspects of colonial society that found surprising continuity in postindependent Latin America, despite efforts to distance the new republics from colonial institutions. For a broader treatment of the debate about continuities, see Jeremy Adelman, ed., Colonial Legacies: The Problem of Persistence in Latin America (New York and London: Routledge, 1999).
⁵ Legal personnel were themselves forced to contend with the new distinctions of citizenship. Law schools did not exist in every capital in the aftermath of independence. Narrow restrictions reserving judgeships for citizens with legal training and experience were in some places desirable but impractical. Even elite groups of lawyers, especially in the smaller republics, included noncitizens.
⁶ See especially Adelman, Republic of Capital; Thomas Flory, Judge and Jury in Imperial Brazil, 1808–1871: Social Control and Political Stability in the New State (Austin and London: University of Texas Press, 1981); and Victor M. Uribe Uran, Honorable Lives: Lawyers, Families, and Politics in Columbia, 1780—1850 (Pittsburgh: University of Pittsburgh Press, 2000).
⁷ See Mathew Mirow, "The Power of Codification in Latin America: Simon Bolívar and the Code Napoléon," Tulane Journal of International and Comparative Law 8 (2000): 83–116. Mirow details Bolívar's backing for codification in Gran Colombia and argues that it represented a (failed) strategy for political consolidation in the region.
⁸ Of this array of outside agents, some mattered more than others. The increasing economic importance of English merchants, and the threat of military intervention by England and France, gave the legal pronouncements of these countries' consulates added weight. Brazil, too, represented a "foreign" influence of no small importance in the region. With the relocation of the Portuguese crown, Brazil could claim a level of institutional stability and a degree of international prestige that the new Spanish republics could not match.
⁹ European struggles to erect extraterritoriality in China and Japan were contemporaneous with the construction of national legal systems in Latin America, and the rhetoric of European responses was, not surprisingly, similar. In these quite different settings, Europeans suggested that extraterritoriality was made necessary by the deficiencies of indigenous law. See Francis C. Jones, Extraterritoriality in Japan and the Diplomatic Relations Resulting in Its Abolition, 1853–1899 (1931; New York: AMS Press, 1970); and Wesley R. Fishel, The End of Extraterritoriality in China (Berkeley and Los Angeles: University of California Press, 1952), 27. I do not know of a study that traces direct links among imperial legal strategies in the mid-nineteenth century, though we do know that British legal personnel circulated across different colonial and imperial postings, transporting models of legal administration across disparate parts of the empire.
¹⁰ On British and French interventions in the region, see David McLean, War, Diplomacy and Informal Empire: Britain and the Republics of La Plata, 1836–1853 (London and New York: British Academic Press, 1995).
¹¹ Silvio Rogério Duncan Baretta and John Markoff, "Civilization and Barbarism: Cattle Frontiers in Latin America," Comparative Studies in Society and History 20 (1978): 587–620.
¹² José Pedro Barrán and Benjamin Nahum, Historia rural del Uruguay moderno, vol. 1, 1851–1885 (Montevideo: Ediciones de la Banda Oriental, 1967), 60.
¹³ Barrán and Nahum calculate that the price per hectare increased by 248 percent between the five-year period from 1852 to 1856, and the period from 1857 to 1861, and by another 66 percent in the following five-year period. Ibid., 71.
¹⁴ A debate over legislation in 1858 that would have temporarily halted seizures of government-owned land after its occupants were denounced by land-hungry speculators revealed fears that new, foreign-backed interests were shaking up the countryside. One delegate complained that "gangs with lawyers in their inner circle" and legions of notaries and law-trained clerks "throw themselves on the countryside to disturb property, to loot property owners." Ibid., 78.
¹⁵ On the rivalry between Buenos Aires and Montevideo to control the region's trade, see Philip Curtin, "Location in History: Argentina and South Africa in the Nineteenth Century," Journal of World History 10 (1999): 41–92.
¹⁶ José Pedro Barrán, Apogeo y crisis del Uruguay pastoril y caudellesco, 1838–1875 (Montevideo: Ediciones de la Banda Oriental, 1974), 61.
¹⁷ Ibid., 45.
¹⁸ A portrait of Rio Grandense economy and society in this period can be found in Stephen Bell, Campanha Gaúcha: A Brazilian Ranching System, 1850–1920 (Stanford: Stanford University Press, 1998).
¹⁹ Barrán and Nahum, Historia rural del Uruguay, 320–30.
²⁰ Barrán argues forcefully that the establishment of a separate process for adjudicating war claims by the French, English, and Brazilians constituted a form of extraterritoriality that was an abdication of sovereignty rather than merely an administrative concession. See Barrán, Apogeo y crisis, 89.
²¹ The supreme court was not established until 1907. Postponing the court's founding no doubt helped to keep the judiciary subordinate to political controls, but the dearth of law-trained citizens with sufficient experience was a perpetual constraint. See Nelson Nicoliello and Luis A. Vázquez Praderi, Crónicas de la justicia en el Uruguay (Montevideo: Suprema Corte de Justicia, 1997).
²² The "Reglamento Provisorio para la Administración de Justicia" passed by the Uruguayan legislature in 1829 established the different competencies for tenientes alcaldes, jueces de paz, and alcaldes ordinarios. The alcaldes ordinarios were to preside over disputes involving more than two hundred and less than three thousand pesos. These judges ruled in civil cases with the help of two colleagues selected randomly from a list of thirty citizens appointed by local officials. Two judicial posts were created in the capital to preside over appeals, one for criminal and one for civil cases. In civil cases involving sums greater than 3,000 pesos, this civil forum would also be the court of first instance. As the volume of litigation increased and pressures for legal administrative reform also grew, the appellate structure was modified. See below.
²³ Caudillos did not simply administer a rough justice but were attentive to their need to act as patrons. Barrán describes the judicial style of the caudillo Máximo Pérez as typical: "He considered the office of police chief as part of his patrimony and acted in this role like a father, demanding but humane. Acting as judge in private matters, he solved protracted suits in brief minutes with summary rulings based on caring and coercion" (Barrán, Apogeo y crisis, 112).
²⁴ Fracturing caudillo power was the main purpose of reforms under the presidency of Berro in 1860 that separated the appointments of military commanders and police chiefs. See Barrán, Apogeo y crisis, 75.
²⁵ W. H. Hudson, The Purple Land: Being the Narrative of one Richard Lamb's Adventures in the Banda Orientál, in South America, As Told by Himself (New York: Three Sirens Press, 1904), 69. Hudson suggests that the relative statelessness of the Uruguayan countryside is refreshing, part of its native charm.
²⁶ Letter from Nicolas Zoa Fernandes to the Juez de Paz, segunda sección, 12 April 1852, Cerro Largo, Legajo 7. Archivo General de la Nación, Sección Judicial, Montevideo (hereafter AGN-SJ). The teniente alcade could preside over petty cases (those involving sums less than twenty pesos) but mainly served to carry out the orders of the magistrates, for example apprehending suspects and serving legal notices.
²⁷ Letter from Eduardo Abreu to the Alcalde Ordinario, 5 September 1852, Cerro Largo, Legajo 7. AGN-SJ.
²⁸ Letter from the Teniente Alcalde Juan Lopes to the Juez de Paz de la 2a sección Eduardo Abreu, 5 September 1852, Cerro Largo, Legajo 7. AGN-SJ.
²⁹ See Eduardo F. Acosta y Lara, La Guerra de los Charrúas en la Banda Oriental (Montevideo: Talleres de Loreto Editores, 1998), 2: pt. 2, chaps. 1–3. Because the Charruas were virtually eliminated by this campaign, there has been a tendency in some historical treatments of the north to downplay indigenous influences in this region. But, as Acosta y Lara points out, an infusion of Guaraní migrants in the region both before and after independence had a profound, if subtle, influence on local culture.
³⁰ The devastation of the Guerra Grande is covered extensively in Barrán, Apogeo y crisis.
³¹ In this sense the postindependence legal culture showed the influence of the well-documented litigiousness of colonial subjects in South America. See, for example, Steve J. Stern, Peru's Indian Peoples and the Challenge of Spanish Conquest: Huamanga to 1640 (Madison: University of Wisconsin Press, 1982); Charles Cutter, The Legal Culture of Northern New Spain, 1700–1810 (Albuquerque: University of New Mexico, 1995); and note 3 above.
³² Letrados, Cerro Largo, 1830, Legajo No. 7. AGN-SJ.
³³ Ibid.
³⁴ Ibid. Uruguayan judges appear to have been willing on many occasions to rely on the testimony of slaves. See below for the discussion of tensions on the border regarding the treatment of, and traffic in, Brazilian slaves.
³⁵ Ibid.
³⁶ "Indagación sobre la muerte del Moreno Miguel," Letrados, Cerro Largo, 1850. AGN-SJ.
³⁷ "Doña Joaquina Rodriguez en queja contra el Juez de Paz de la 5a sección," ibid.
³⁸ "Inventario de las causas civiles existentes en este Juzgado Ordinario," Letrados, Tacuarembó 1855/59. AGN-SJ.
³⁹ "Doña Juana Fernandez Pintos contra Don Paulino dos Santos sobre desalojo de campos," Letrados, Cerro Largo, 1867. AGN-SJ.
⁴⁰ "Celestino Dorrego con el Defensor de Esclavos sobre propiedad de uno," Letrados, Tacuarembó, Legajo No. 1, 1823–55. AGN-SJ. In another case from 1862, a contract laborer named Francisco, learning of the new law requiring both parties to approve and register such contracts in Uruguay, ran away before his contract could be registered. His master complained to the alcalde ordinario that surely the incentive to flee