"No Deceit Safe in Its Hiding Place":
The Criminal Trial in
Eighteenth-Century Spain

FABIO LÓPEZ-LÁZARO

He said history was a sum of situations whose significance was never seen until long afterwards because people were afraid to act them out.. . . He said. . . we had to enact the situation as it really was, and in a way that would mean neither of us ever forgetting it or being tempted to pretend it didn't exist, or was something else.

Paul Scott, The Raj Quartet

The least understood aspect of the punishment of crime in pre-nineteenth-century Spanish society is trial procedure. This is not surprising. Our misapprehensions and misinterpretations of the past are principally the product of eighteenth-century reality being sieved through an uncritical acceptance of nineteenth-century political criticism. 1 The West inherits much of its modern paradigm from the Spain of 1808 to 1834, from Romantic images of Goya as the enlightened individual fighting obscurantism to portrayals of heroic guerrilla patriots seeking to wrest political reform from a reactionary central government. It also inherits, although less consciously, the political rubrics of liberal and conservative (and absolutist ) from nationalist polemics during the 1808-1814 French occupation. 2 When looking back half a century later, Spaniards wanted to distinguish themselves clearly from the past. They needed to establish beyond doubt that Spain had redeemed itself by purposefully relegating the negative to an absolutist past. After all, to believe in progress in an age of positivism was to believe in the inexorably positive nature of change. Progress fueled optimism and a chiliastic disdain for the past. Spaniards were not alone; as Donald Kelley and others have shown, modernization elsewhere in the nineteenth century was often accompanied by similar processes. 3 This study explores the ways in which one Western society in the nineteenth century, Spain, reformed laws by consciously exaggerating the un-liberalness of the previous legal system. 4 This rationalizing process relied on a philosophical attitude that M. J. Horwitz characterized as the need "to make the existing world seem to be necessary," whereas in fact it is "historically contingent." 5 Constitutionalism needed to prove in the nineteenth century that legal systems prior to it had been arbitrary and prejudicial to the interests of the public. It could not afford to reveal the contingencies and continuities that gave the lie to its propaganda, which maintained that the complex legal defense of the individual was a new guarantee.	1
This cultural paradigm shift necessitated for many a shift in the legal system from worse to better, especially for liberals. Consequently liberal critiques of unreformed Bourbon Spain suppressed the existence of rights, due process, and the public nature of trials in the eighteenth century as a way of pushing their political--and historicist--agenda. To create difference between "modern" Spain and its precursor, proponents of reform created a "despotic" Spain, axiomatically condensed in the haunting image of the Spanish Inquisition looming dangerously in every reactionary or conservative coup. Ideologically, it made sense for them. For us, however, it no longer does, if we are attempting to reconstruct the praxis--and not just the calls for reform--of criminal trials in premodern Spain. The liberal image of the Inquisitorial trial is hardly representative of the pre-nineteenth-century legal process. In this context it is imperative that we analyze the negative stereotype of Old Regime trial procedure before we describe the reality.6	2
Criticism of the Sala
In order to reconstruct actual trials, we focus on Madrid's principal court, the Sala de Alcaldes de Casa y Corte, the "Hall of Royal Court Judges," from 1750 to 1808. 7 The Sala is ideal for our purposes. Its civil and criminal jurisdiction of ten leagues stretched over the capital of the Spanish Empire during this period and extended in serious criminal cases beyond Madrid to the Kingdom of Castile. The Sala' s fundamental structure was typical of Spanish courts: it contained an executive governor (the court's chief senior magistrate), eight to nine judges (alcaldes ), a prosecutor (fiscal ), a defense lawyer for the poor (abogado de pobres ), and various ushers, policemen, jailers, and administrative assistants, all appointed by the Crown's principal governing body, the Council of Castile. Over the centuries, the legal jurisdiction and competence of the Sala had evolved from a judicial body governing the king's household to a complex mixed tribunal that heard local civil and criminal cases as well as serious criminal cases from the provinces. It also functioned as an appeals court for the same jurisdiction, court usage ensuring that different judges heard internal appeals. Appeals of Sala decisions were only heard by the Council of Castile in exceptional cases.	3
The actual trial procedure of the Sala, which was characteristic of most royal courts in the Spanish Empire, was developed over the course of centuries and diverged substantially at times from statute, or royal, law. Because Spanish legal historians, particularly the doyens of Spanish law studies, Francisco Tomás Valiente and Alfonso García Gallo, have based their analyses almost exclusively on published statutes and legal manuals, their descriptions of actual practice are significantly flawed. An analysis of the legal drama of Spanish courts should begin with the real world of court practice as it is revealed, for example, in the Sala 's extensive archival records, and not with the more readily available published material. Royal statutes and legal manuals reveal the theory of law, as opposed to the reality of court practice--what government ministers hoped would be reality, not, in fact, what they knew it was. 8 Tomás Valiente and García Gallo's emphasis on royal statute law suggests a larger problem: the fundamental difference between Spanish judicial attitudes in the eighteenth century and those that evolved to justify nineteenth- and twentieth-century reforms. It is probably not coincidental that Spanish "liberal" reformers in the 1800s, rarely as radical as their American, French, or Spanish American counterparts, owed much of their revolutionary rhetorical baggage to the late eighteenth-century Enlightened Royalist campaign to strengthen the Crown's control of the Spanish Empire. The two greatest legal historians of Spain have perpetuated this Royalist/liberal perspective in their own versions of Spanish legal history.	4
Liberal Stereotypes and Preliberal Justice
Prejudice against Spanish Old Regime courts impedes the modern appreciation of real eighteenth-century trials. As a result, the important issue of how trials exemplified social conflict is lost in pointless attempts to denigrate the past for not living up to the ideals of twentieth-century notions of the "rights-bearing" individual. 9 Any discussion of preliberal justice has to contend with the stereotype that the universal adaptation of such essential liberal paradigms entails. One favorite touchstone of twentieth-century legal commentators is the presumption of innocence. To quote a frequently used modern instructional manual, this "is a cornerstone of Anglo-Saxon justice," which distinguishes it historically from continental trials where it has not been characteristic. When compounded by the sort of samokritika, or self-criticism, of Spaniards--heirs apparently to despotic and anti-liberal traditions--it is hard to approach our topic with the equanimity it deserves. 10 The purpose of this article is not to rebut the modern indictment of "old style" courts, but to reconstruct trial procedure accurately. Stereotypical assumptions about "inquisitorial" courts in the Spanish Empire, a perennial windmill for Quixotesque historians of Spain, must be reduced to their proper place as rhetorical devices of the discourse of modernity.	5
After 1834, the triumph of the self-ascribed liberals introduced new political and judicial institutions that clashed--consciously--with Sala practice. Inspired by liberal principles of individual constitutional rights and admiration for foreign judicial methods, nineteenth-century politicians and legal commentators viewed the court system and judicial practices of preliberal Spain with disdain. Unable to defend the "old regime" on its own grounds, even conservatives joined in condemning the past. The overwhelming verdict was somber: the "old style" judges and courts were systematically subjected to both conservative and liberal criticisms at the height of nineteenth-century legislative Anglophilia. The liberal interpreters of this "new" spirit of the laws introduced foreign institutions, such as trial by jury, into some criminal cases as a way of "modernizing" Spanish court culture. 11	6
The height of reform condemnation of eighteenth-century practice came in the late 1870s and early 1880s. The progressive Sagasta Parliament of 1882 passed laws altering court procedure, stressing in its official publications that constitutional Spain inherited serious judicial problems from its "absolutist predecessor." It is obvious that attempts to legitimate the new order of the day were not driven by a desire for historically contextualized interpretation. The judicial sections of the 1812 Constitution, the 1835 reform that ended the existence of the Sala de Alcaldes de Casa y Corte, and the 1870 Law on Judicial Powers were all regarded as necessary but incomplete steps on the ineluctable road to legal modernity:	7
Spaniards have for centuries been educated exclusively in the knowledge of the secretive inquisitorial procedural style, and thus, far from learning to trust the court's justice and actively aiding in its correct administration as English citizens do, which makes the existence of a Public Ministry for the discovery and punishment of delinquencies unnecessary [in England], they have formed false opinions as to the Judicial Police, and they have become estranged from the Tribunals, treating magistrates, judges, notaries, and policemen with lamentable mistrust. Spaniards think participation as witnesses in criminal cases is a repugnant act to be avoided.12
This situation required a remedy if Spain was to take her rightful place among the civilized peoples of Europe and America.	8
The Taint of the Inquisition
Such nineteenth-century criticisms of Spain's courts echoed earlier ones, especially the negative stereotype of the Spanish Inquisition. For liberals, Spain's eighteenth- and early nineteenth-century courts were bogged down in atavistic and repressive procedures and punishments. These advocates of modernity concentrated on censuring the old trial procedure as the worst culprit. The Sagasta government's labeling of the old system as "Inquisitorial" in procedure followed the received wisdom of the time, which homogenized all the various court systems in Spain into a vulgarized version of an Inquisition. Bourgoing's 1789 description of the Inquisition (published in 1805), for example, served as a handy indictment of all Spanish courts. His criticism was not that it punished barbarously, however, but that its trial procedure was outdated, and that it lacked four key modern elements of an enlightened trial: that hearings be public, that the accused know their accusers, that the contending parties confront one another, and that lawyers should be allowed to advise clients privately without having judges present. 13 According to Richard Ford, writing in the 1830s, the Spanish justice system still lagged behind Europe in terms of modern reform. The Audiencia of Madrid, the successor of the Sala, continued its nefarious practices against modern precepts: "In it every man is assumed to be guilty until he is proved innocent, the judge endeavouring by every means fair and foul to convict the accused; a Westminster Hall barrister if transported by special retainer to the Rhadamantine court below, would scarcely find himself in a newer [i.e., stranger] practice." Ford, nevertheless, believed England's laws were worse than Spain's but more effective because they were not Inquisitorial in nature and were more diligently administered. "Both however err in extremes, since few guiltless escape in Spain, and few guilty are convicted in England. . . ." Another reading of this, of course, could be that the laws of Spain were theoretically better, but were emasculated in practice "because the ministers are corrupt and unjust." 14 The nineteenth-century verdict was in: old-style Spanish courts must go.	9
According to this liberal view, one of the most serious indictments was that eighteenth-century criminals had been tried unfairly because sumarias, or investigations, were conducted in the absence of legal counsel and before formal charges were made. Furthermore, suspects were jailed during this initial process, a nefarious Inquisition-like process. Even worse than these excesses, critics held, was the fact that the next phase in a case, the plenaria or trial, was in their view nothing more than a formality. They further alleged three counts against the old system: that the defense was barely heard by judges, who had, in any case, already reached a decision during the sumaria; that courts refused to participate in public oral debate of the evidence; and that judges decided the same cases they investigated. The old court system was neither impartial nor open to public scrutiny. To add insult to injury, courts took forever to try criminal cases. 15 To eliminate these abuses, the government of Práxedes Sagasta, who founded the Liberal Party, believed that the courts should focus attention on individuals: "Sacred indeed is the cause of Society, but no less so are individual rights [derechos individuales ]. Citizens in truly free countries [pueblos libres ] ought to have at their disposal the efficient means of defending and preserving their life, liberty, fortune, dignity, and honour." 16 For modern reformers the explicit lack of these guarantees and the absence of legal strategies for the individual under absolutism constituted a clear indictment of preconstitutional courts. How historically accurate was this portrayal of "a secretive inquisitorial procedural style" that permeated courts in the eighteenth century? Let us begin with the notion of the presumption of guilt and the arbitrariness of judicial decisions, two items on the reformers' indictment.	10
The Presumption of Innocence and Habeas Corpus
Whatever bias judges may have had during the investigative stage of a criminal case, suspects were not presumed guilty. Both the legal theory and legal practice of the eighteenth century testified to the truth of this assertion. The rhetoric of legality reiterated the traditional common law belief that it was "incumbent on the accuser in criminal cases to prove the delictive nature" of any alleged act.17 Furthermore, court practice held that accusations could not be made in criminal cases until strict legal controls aimed at ensuring the impartiality of judges, witnesses, and participants had been put into place. Failing these, the court's decisions could be pronounced null and void, even after sentencing.	11
Eighteenth-century Spanish court theory followed continental law in naming the initial procedural control on a trial's legality habeas corpus. If irregularities arose in the initial investigation, lawyers on either side could appeal to the court that errors in procedure had vitiated the trial process. In essence, when the defense called for an examination of the habeas corpus of a case in Spain, they were doing much the same thing as English lawyers who were granted a writ of habeas corpus ad subjiciendum, the pride of English law's defense of the modern individual. This particular kind of English habeas corpus demanded that the prosecution reveal "the reason for the applicant's detention so that the court could judge the sufficiency of that reason." 18 Approval of the reasons for investigations and imprisonment was also necessary in Spain for a case to be tried. The demand for an examination of such procedural assurances was usually presented by the defense at the first reading of the case in a preliminary hearing. Significantly, this device for ensuring the presumption of innocence and limiting the abuse of investigative powers was subsequently forgotten by both constitutionally minded reformers in the early nineteenth century and Spanish commentators of law. Ironically, in the nineteenth century, "liberty" became associated with the upholding of principles of judicial administration deemed non-Spanish. 19 The reality in the eighteenth century was that habeas corpus and convincing proof of wrongdoing had to be established before a case progressed from investigation to trial. In Spanish bureaucratic terms, this transition was called changing a file from a sumaria to a plenaria stage. 20	12
Judicial discretion held that any infraction of the legal precepts thus invalidated the case and could prevent it from ever reaching the trial stage. This was not the decision of one judge, but rather the collective assessment of the Sala' s quorum of judges. A traditional eighteenth-century jurist and prosecutor, Don Francisco Antonio de Elizondo, stressed the importance of this point in 1784: "when the requirement that every case be substantiated is not fulfilled, the consequent procedure is fundamentally nullified, even if the accused is found completely guilty by reason of witnesses' testimony in trial; all Magistrates are to be prevented from proceeding in any investigation, capture, torment, or condemnation without habeas corpus, even in military cases." 21	13
The procedure circumscribing nullification of trials for lack of habeas corpus exemplifies the court's strict adherence to the principal of unprejudiced adjudication. The step between the two stages of a prosecution hinged on correctly turning the sumaria into a plenaria, a critical part of judicial ritual that guaranteed the discovery of unprejudiced evidence. Only after the investigating judge completed his examination of a case, receiving charges, depositions, and evidence, did he present his findings at the weekly public hearing that assessed whether sumarias were founded in fact and without investigative prejudice. Full public disclosure could not occur until this point. Evidence was gathered before the accused was informed of the exact charges. The jurist Elizondo believed, characteristically, that "judges, by ensuring limited publicity and making secret inquiries regarding the facts of the case," could discover the truth before suspects became familiar with "judicial procedures" and subverted them. 22 Whatever the merits of this system, this kind of judicial power troubled later critics.	14
Nineteenth-century reformers like Sagasta were fond of portraying old-fashioned courts as despotic because the judges had both investigative and adjudicatory powers. The 1882 legal reform law thus attacked judges' indiscriminate mixing of powers. The ideological critique would have been justified in its condemnation of judicial authoritarianism if its description of the "old style" had been correct. But from what we know of the Madrid court's practice, single judges in the Sala never investigated and tried the same case. Every investigation was judged impartially at the sumaria stage for its legality along the lines described above, before it was ever tried. 23 Nineteenth-century critics downplayed this fact. Historians might want to speculate on the judges' personal bias, but one cannot judge them on their procedural fairmindedness, which was exactly what reformers did when condemning court practice as inquisitorial.	15
The judge under whose orders constables and notaries accumulated evidence presented the results of the sumaria to a panel of three to five of his peers. 24 The Sala governor ensured that the alcaldes, or judges, never heard capital cases without a quorum of five, the number assigned by court custom. This was often increased to seven for final judgment and sentencing. He also guaranteed that only senior alcaldes tried serious crimes. 25 No judge among the alcaldes of the Sala ever tried his own investigative case, although instructing judges did supervise the collection of legal documents such as depositions from extra witnesses after a criminal case was transferred by vote to the plenaria. A former notary and royal secretary, equally familiar with legal theory and court practice, stressed this in 1764: "Each Se–or Alcalde can individually accept complaints, accusations, receive information, write a warrant for arrest, and participate in any criminal case that arises; but none can make judgments, impose sentences, or free any accused subject, without the consensus and intervention of the Court as a body." 26 Not even the hallowed and powerful persona of the Sala governor could judge a case on his own. 27       Figure 1. A trial at the Sala. The banner at the top reads "No deceit is safe in its hiding place [Nulla fraus tuta latebris]." Antonio Martínez Salazar, Coleccíon de Memorias, y Noticias . . . (Madrid, 1764), facing page 328. Courtesy of the Biblioteca Nacional, Madrid.	16
The officiating magistrates determined whether the prosecution's case met the requirements of habeas corpus and also considered other important issues at this initial stage. When a case involved either a serious charge, such as homicide or robbery, or a lesser charge with serious incriminating circumstances, the court heard the evidence presented by the investigating judge and crown prosecutor in a public hearing. If the prosecution had a case, it would proceed to the plenaria stage. 28 It was at this point that minors and the poor were assigned solicitors and legal counsel, and, in any case where it was legally justified, torture was recommended. Occasionally, the judges acting as a body could send the case back to the investigating judge for further detective work, thus temporarily suspending further consideration of the evidence. 29 Both the accused and the prosecutor could request a halt in proceedings if they felt a mistrial had occurred. Finally, the court reporter had to contact the Council of Castile, Spain's highest government agency, for it to approve any judicial decisions made so far before the trial could proceed. This consultation, however, did not bind the alcaldes. But if complaints of irregularities in the investigative stage were later substantiated, the trial ended immediately. Judicial procedural errors could be resolved in certain limited cases, apparently through the Council's mediation, though this happened infrequently. The Council's supervision of Sala affairs extended legally only as far as the enforcement of the legal culture of proper procedure allowed. 30 "Culture" describes this better than "laws" for an important reason: laws, ironically enough, did not principally govern the Sala' s procedural or even sentencing behavior.	17
Court Custom vs. Statutes
Significantly, the Madrid court's procedure did not arise from royal statute, which fact did not stop many jurists from recommending that the monarchy adopt its customary system of judging crime throughout the empire. As in many other things, royal authority was not troubled unduly by the unlegislated nature of Madrid's court; nor were the judges. That court custom and not royal law was responsible for the "style" (customary trial procedure) was accepted almost unquestioningly in the seventeenth and eighteenth centuries. It only became an issue when Royalist reform in the eighteenth-century empire claimed that governmental abuses were linked to such customary judicial practices. The judge and lawyer Matheu y Sanz did not seem bothered by this in the 1670s; however, less than a hundred years later, the reforming jurist Vizcaíno Pérez was definitely troubled by the lack of royal control over judicial procedure. To his disappointment he found only one vague 1436 instruction for judges to try cases quickly according to "their style," which hardly strengthened the Royalist agenda for enhancing the king's control of judges. 31 Because of the effective self-governing nature of the Sala, political reformers and modern historians alike have been unable to find traces of its legal procedure in most of the published records. Unwritten and unlegislated style, like a micro Spanish version of the famous unwritten English constitution, was everything to the legality of eighteenth-century proceedings.	18
According to the Sala' s style, minor criminal charges, such as misdemeanors, petty theft, and pickpocketing (raterías ), were summarily judged at this point orally in the presence of the accused's solicitor and counsel, without the presence of the crown prosecutor. Toward the end of the eighteenth century, reforming ministers argued for an extension of this practice, making oral judgment more common throughout the courts in minor criminal matters. But their attempts failed and differing local court practices continued fundamentally unchanged into the nineteenth century. 32 A possible reason for this failure was the ambiguity of the legal terminology: the distinction between "major" and "minor" crime was vague and discretionary. In general, crimes involving property and violence were considered serious, but the gravity of a pickpocket's crime, for example, was decided on a case-by-case basis. The penalty attached to particular charges, such as capital punishment, whipping, or perpetual exile, normally determined the measure of criminal "seriousness" in the court's initial rulings. 33 Since the court's style, much more than royal statute, dictated punishment--with great latitude for judicial discretion--a case's seriousness must have often been the result of judgment, rather than an initial and unalterable consideration of the facts of the crime.	19
The Public Drama of Early Court Procedure
Facts did play an important role, of course, in the real drama of the court's actions. As revealed by the judge in his sumaria, they formed the prosecuting indictment. The court reporter presented the results of the causa, or case, at a public hearing to the assembled judges. Despite what later detractors would claim, court style stressed that the results of investigations be made public, even before becoming full-blown trials.	20
The physical layout of the courthouse and its rooms clearly indicated that trials were far from "secretive." Court practice did control public participation, however, and much of this control was expressed in the jargon of theatricality, a fact that is not incidental to eighteenth-century perceptions of how sin was to be punished. Persons involved in a case, or actors as they were known legally, were prepared for the actual trial by the judges' decision to accept the sumaria for examination. But the courtroom was not the scene of the first important ritual of a trial. On days when judges sat, the first judicial act was the celebration of an 8 A.M. Mass held in the central courthouse chapel. This Mass was celebrated for the benefit of the judges, not the suspects, to cleanse them of serious sin before undertaking the weighty and quasi-religious task of judgment. 34 Following Mass, the alcaldes proceeded into the main courtroom, the Sala de acuerdos, or Hall of Judgments.	21
The courthouse was opened to the public after Mass and a Baroque sense of religious sinfulness and redress permeated the proceedings. The public's suspense and expectations heightened the drama of a trial. As always, a certain interest in the details of cases developed from the ambiguous playing out of people's stories in the courtroom. These stories were evidence of personal and group strategies that the audience must have enjoyed with both prurient interest and expectation of just punishment. All this drama was played out in a physical environment full of architectural and religious rigidity, but the real-life ambiguity of social conflict overflowed all the architectural attempts to control it. The building itself mirrored the ideal social structure in plastic form, admitting the outside world of chaotic accusations and defenses through its portals. The architectural formalism of legality (intentionally built into the structure) is most clearly visible in the Sala courthouse's tripartite entrance. The general public entered the court's dramatic stage when passing through the left door, which was also reserved for prisoners, suspects, and witnesses entering or leaving the jail. The large central door was opened only for magistrates. The extreme right-hand door was reserved for litigants and accusers. The viewing public was thus physically associated with the objectivized subject of the law. This physical arrangement, however, broke down frequently with confusion spilling into the large foyer linking courtrooms, entrances, and interior patios. Prisoners took advantage of this to attempt escapes and porters consequently received fines for their lax watch. Occasionally, they connived with the culprits. 35 The ambiguity of the physical arrangements was made patent by periodic escapes during the ceremony of the alcaldes ' entrance. Porters naturally bore the brunt of the responsibility; at times the guards who were to ensure that escapes did not occur were themselves turned into prisoners because of their ineptitude or corruption. Félix Angel and Luis Martínez, for example, were both imprisoned in 1799 for allegedly aiding in an escape. 36	22
To the left of the foyer stood the archway facing the guards' room that led into the courtroom itself. The public area inside was cordoned off from the judges' seating area, a raised platform called the estrado, by a shoulder-high barrier, the barandilla or "bar." A curtained door behind this dais led to a small Saleta, or Sala de Acuerdos, the private room where the alcaldes deliberated and decided cases. 37 The judges met in this small room early in the morning to dispatch preliminary business. Usual business included listing current cases by the judge instructing them, reporting on the previous day's arrests, and making the report to the Council of Castile. These tasks were completed by the time the Council of Castile met at 9 a.m. 38	23
The entrance and positioning of judges in the courtroom exhibited all the markings of a ritualized public procession. After their closed administrative meeting, the judges exited the Saleta by a curtained door into the public courtroom and positioned themselves on the estrado around the court governor, who rang the bell to announce the beginning of public proceedings. Spanish courts' official name, audiencia, derived from the governor's opening words: "Let there be a public hearing [audiencia pública ]." 39 Seating in strict order of seniority prevailed on the dais. The alcaldes sat around a table, on which lay a bell, a silver cross used for oath taking, and a leather-bound book in which the junior judge wrote down decisions. 40 Constables would silence the audience standing behind the bar when the trial commenced. For lack of evidence, we can only speculate on the rowdiness and character of audience disturbances that probably accompanied this public display. But there are indications that, of course, things heated up in the courtroom occasionally. 41	24
Social Control?
All of these rituals demonstrate that the social drama of a criminal trial was controlled, but clearly public. Judges did not conduct themselves like stereotypical inquisitors. They included the public in their mediation of social disputes and this legitimated criminal prosecution. Most modern commentators, however, interpret criminal courts as agents of social control, or as agents of social oppression. In this they are following the received wisdom of the twentieth century, with its commonly accepted social scientific and behaviorist reinterpretation of a Marxist-Gramscian construct. Weber's description of social institutions as rational entities that monopolize violence is critical, of course, to the extensive influence of this theory. Certainly the Sala' s ritualized procedures are an example of governmental control; nevertheless, to engage the public in the spectacle of debating guilt and innocence made them party to the internal logic and reasonableness of trials as expressions not merely of the will of the government, the official world, but of the commonly held belief system that legitimated the moral structuration of society. We might, in this context, benefit from Edward Shils's understanding of cultural values and their protection. He identified the elite as the guardians of a culture's values, but noted that this is effective only when the public consents to the assumptions of legality that judges must act on. This was certainly true in the case of the Sala' s proceedings. Whether through Gramscian coercion or consent, the central value system of Spanish society determined the limits of acceptable public dispute resolution, and we would be foolish to depict courtrooms as mere organs of an elite's dictating of social norms. Although judges might be seen as controlling events, they were actors in the drama controlled by the central value system's script of acceptable behavior, as much as the audience and the participants themselves were, to use the revealing contemporary jargon, "actors" in a trial. In fact, judges mediated between accusers and victims in pre-established ways that appealed to a common sense of moral order. They were not merely imposing the will of an elite. The script followed social expectations and traditions guaranteeing limited variations on a common theme. The choreography of trials paralleled the social norms of legitimate and proper conduct. The individuals involved generated meaning by acting out their parts. Celebrating moral judgments publicly was one of the collective means of normalizing meaning. 42 The nineteenth century's condemnation of earlier courtroom procedure has contributed to historians' misleading emphasis on analyzing trials as examples of social control.	25
The Liberal Objection to Trial Publicity
Ironically, the very publicity of Spanish trials was one of the key issues that distressed eighteenth-century critics, while their nineteenth-century counterparts would decry the exact opposite, bemoaning how courts had been secretive and inquisitorial. Certainly, trials were not adversarial like modern Anglo-American trials. Confrontation before the public in trials was not characteristic of the formal Spanish courtroom. Participants, however, did engage in carefully choreographed expressions of their adversarial positions by having their lawyers read statements in court. The somber ritual of presenting cases in a mediated form left some foreign observers puzzled. According to one, "the only parties visible in court are the judges and the pleaders, and the relatores, or court reporters who read the evidence authenticated by notaries. . . ." 43 But this description is not wholly accurate. It held true for certain stages in trial procedure, but not for others. The critical stages, the assessment of habeas corpus and the presentation of evidence, occurred in full view of the public and usually with the presence of the interested parties.	26
Furthermore, all cases necessarily went public at two points: at the end of discovery when judges considered whether enough evidence had been collected for a trial; and at the final judgment and sentencing--which usually occurred on the same day. Court custom dictated solemnity on both occasions by conspicuously positioning legal counsel and parties before the judges. Defense counsel and crown prosecutor read their arguments to the court and audience although lawyers were not apparently allowed to extemporize on them. The reporter then summarized the evidence in writing.44 The public nature of these solemn occasions was marked by the fact that the presentation of a case was normally made in the presence of the accused, thus underscoring the implicitly adversarial role of the legal system.	27
The theatricality that permeated eighteenth-century trials and the confrontational roles of participants point to the highly public nature of criminal prosecution at the time. Nineteenth-century reformers, in condemning these solemn rituals, ignored the historical facts and sought to prove that Spain's institutions had not been public. This required that the stereotype of a corrupt "Inquisitorial" procedure be expanded discursively to include all Spanish trials, civil and criminal. No part of the inquisitorial stereotype was more important than its purported secretive, anti-public style.45 But this was simply not true of the eighteenth-century Madrid tribunal. Despite the solemn ceremonial character of judicial proceedings, lawyers enjoyed ample opportunity to practice the arts of rhetoric. José Mo–ino (later the Count of Floridablanca), for example, spent years as a private lawyer and crown prosecutor in Madrid before immersing himself in an illustrious career as Spain's principal minister. In fact, his successful promotion was substantially due to his reputation as an eloquent pleader in the courts. Mo–ino's colleagues referred to him as "the mellifluous Bernardo," stressing the importance of the eloquence he had acquired as a lawyer.46 Lawyers depended on the public presentation of oral arguments. Whether they had the skills of a "mellifluous Bernardo" or not, they zealously defended and prosecuted cases and occasionally even used trials as a battleground for political ends. A popular saying of the time, "No case, no matter how lame, goes undefended in court," underscores lawyers' commitment to the effectiveness of public eloquence.47 Making arguments to the judges in courtrooms became an essential part of defense lawyers' stratagems. So popular were these speeches that, by the end of the century, successful lawyers were publishing them alongside their criticisms of judges' decisions.	28
Trials were definitely public in the eighteenth century, but evidence suggests that the public was less interested in Sala goings-on than it would be in the following century. There are several possible explanations for this. The "blind men's ballads" published as broadsheets offered the general public succinct and enjoyable accounts of crime and its punishment, making attendance redundant. These ballads, complete and accurate reflections of court proceedings, were the result of a centuries-old relationship between court reporters and blind men's confraternities who bought their trial summaries. 48 But a shift occurred in the court's impact on public affairs when the Sala became the locus of political trials in the second decade of the nineteenth century. It began to draw increasing crowds attracted by political scandal and controversy, and less by the daily workings of crime. The mid-1820s trial of Rafael de Riego, a liberal leader, caused one of the most tumultuous crowds ever to gather inside the Madrid courthouse; they jeered, applauded, and actively made their presence felt in the court like none that we know of in prior centuries. 49 Only one case in our archival sample from 1758 to 1802 involved a courtroom disturbance and there was apparently no reaction from the crowd when the accused hurled insults at the judges. 50 The politicization of courts is possibly responsible for the increasing attendance.	29
The Carmen Calzado Case
The revision of our historical understanding of trials requires more than just revealing the existence of habeas corpus and the very public nature of criminal prosecution. In order to illustrate the fundamental points involved in the investigation and trial of a typical case, we will use the record of one published in full, the Carmen Calzado case of 1788. This involved multiple charges of robbery and murder committed at the Carmen Calzado tavern in Madrid in 1787. The investigation revealed that several men robbed the tavern keeper at knife point, resulting in the wounding of two men, one of whom was the tavern keeper. Another died apprehending the robbers.	30
As mentioned above, suspects did not have the benefit of legal counsel during the investigation. The defense case effectively began with the detailed charges made by the investigating judge at the beginning of the plenaria stage, at which point the judge had to provide the defense team with a copy of the evidence supporting the charges listed in the indictment. Suspects were immediately required to file a plea of guilty or innocent. This was referred to as "the confession." Although earlier jurists argued that this disclosure of the prosecution's case weakened it by revealing too much too early, it was established legal practice to provide the accused with the detailed charges and the names and identity of witnesses testifying against him or her. 51 The court pursued suspects mentioned in the sumaria but not yet apprehended by issuing warrants for arrest through the agency of a public crier and on printed posters placed around Madrid. 52	31
In the Carmen Calzado case, the first man to "confess" was José Masín, an Italian hosier. He had declared in his testimony that he only entered the tavern after he had heard a scuffle inside. During his confession, he verified his previous admission that upon entering he had tied up one of the servants, but denied that he had otherwise assaulted anyone or stolen anything. It is important to stop and take notice of what the judge revealed to Masín. He gave a full account of all the witnesses who were testifying, as well as the names of those who had identified him, including several co-suspects in the case. Masín denied the murder charges. When faced with the judge's counterclaims based on eyewitness accounts, he demanded that witnesses be produced: "Call him and let him face [me]; let him answer my questions and my counterclaims." Masín thought he could use established court style for his benefit. He was right. The result of the two-day confrontation favored his case more than it did the prosecution's. The judge received nothing more than confirmation of Masín's prior statements; on the other hand, by the end of this phase, Masín's defense knew almost every point that the prosecution would use against him in the trial. 53	32
The prevalent legal fiction during trial maintained Masín's innocence until the court found him guilty. "Anyone who can be found guilty of a crime, must also necessarily be capable of being found innocent of it," said one maxim of the common law. 54 Legal tradition held that even if the accused confessed openly, he could still provide himself with a defense based on mitigating circumstances. Mitigation did not prevent judges, however, from imposing minor "arbitrary sentences"--according to common law tradition--when a specific statute did not dictate a particular kind of punishment for convictions with mitigating circumstances. These arbitrary sentences, applicable where the judges were convinced of the accused's guilt, but found the prosecution somewhat short of evidence, were clearly laid out in common law, as extraordinaria, or extraordinary sentences. On the other hand, the common law understanding of the law of evidence aided the defense because it made getting a conviction much harder for prosecutions than for today's courts. 55 In theory and practice the assumption of innocence, not guilt, operated in Spanish trials.	33
The Masín defense took up its case after charges were filed. Masín selected Antonio Rodríguez Vizoso as his solicitor (procurador ), but did not elect to have a lawyer (abogado ). Lawyers advised clients on legal points and wrote up arguments based on fact; solicitors represented the client, collected and distributed necessary documents, and presented evidence in court, although lawyers might be present to argue their client's position (as noted above, Spanish courts favored written over oral adversarial argument). By court custom, the counsel of a defense abogado or lawyer was not required, although the accused could call on one at any time during the trial. In Masín's case, no point of law could be argued and the evidence against him was damning; despite his earlier bravado, Masín chose to plead guilty. The material presented by Vizoso aimed at establishing his good faith and reputation, principally in the form of character witnesses (testigos de abono ), in the hope of less severe punishment. The prosecution countered by buttressing the credibility of its witnesses in a similar way. 56	34
Defendants often used the trial or plenaria phase of a case to have their lawyers argue at length about their rights. By "rights," naturally, we are referring to the treatment their clients were entitled to according to the law. 57 As one seventeenth-century proverb expressed it, "Everyone claims something, even the rights [derecho ] of his finger." When legal rights failed, some lawyers suggested the strategy of boring the court into submission: "Whoever has an hour to spare does not die on the gallows." 58 These popular sayings, illustrative of common legal tactics, substantiate the public's knowledge of trial tactics, but they also reveal that a popular version of "rights" discourse informed legal defense at the time. Some even believed lawyers could perform miracles through the skillful presentation of their clients' legal rights. A common saying, lawyers manage "to twist cucumbers" without breaking them, satirized this kind of legal arguing. 59 Today's skepticism about trials is nothing new. Its existence centuries ago in Madrid proves that judges did not wield complete, summary, and absolute authority, although the "arbitrary" sentences they imposed fed later reformers' inaccurate visions of eighteenth-century governments as "arbitrary" despotisms.	35
Even in the direst of circumstances, everything was not lost for the accused. Because a suspect's confession was taken immediately before he received counsel, it was customary for defense lawyers to argue that the confession might not include extenuating circumstances or points of law that the suspects failed to include, but of which they became cognizant after taking legal advice. Lawyers could use these circumstances, at worst, as a plea bargain to ask the court to diminish the punishment corresponding to the crime. Opportunities for such tactical maneuvering abounded and many an undocumented discussion must have taken place between defense lawyers and their clients during jail visits, although we know very little about how these visits took place. Legal manuals rarely discuss the formal controls that operated on lawyer-client contact.60	36
Naturally prosecutors intensely disliked the possibility of new evidence arising during the trial. As one experienced lawyer and prosecutor explained, defense lawyers "use this stratagem to try to force the Prosecutors to have to prove in trial the existence of the legal fact justifying the public's vengeance, at the same time as they [the prosecutors] are trying to identify the accused as the singular and clear author of the said acts; otherwise, they must yield to the defense plea for an extraordinary sentence." 61 If accomplished after the sumaria stage, this in fact would have been tantamount to destroying the distinction between it and the plenaria. Although it is difficult to believe the court would allow such latitude, the experience of the legal source indicates that it must have happened from time to time. Lawyers who argued along these lines were, however, mistaken according to law: the defense could only ask for special treatment at the trial if it managed to prove extenuating circumstances, or qualidad dividua, but not if the prosecution failed to clearly prove all the charges. In reality the burden of proof rested with the prosecution. It is difficult, in this context, to gauge what impact sumaria evidence had on the presumption of innocence. Judges reserved the right, even after reaching a final verdict, to accept further relevant testimony from either side, inevitably causing delays and suspended sentences. 62 Court style, clearly, was a fluid matter, but there was ample play for the defense as well as the prosecution.	37
Criminal trials in Spain were not usually a matter of confrontation between the crown and private individuals, but rather the confrontation of individuals before the crown. In this respect, they resembled civil litigation. Civil terminology was thus applied to the actors in criminal cases. Court officials always enquired from interested parties whether they desired to press criminal charges during the sumaria. In the Carmen Calzado case the investigating judge questioned Rita Gómez, the widow of the shoemaker killed trying to prevent the escape of the robbers. Rita made a formal statement that "despite the grievous harm done her by those who attacked her husband, she forgave them from the bottom of her heart, so that God Our Lord might forgive her, and that consequently she renounced all rights or claims ["todo derecho ó accion "] pertaining to her in prosecuting them." 63 The tavern keeper, however, did not forgive the suspects and so the Carmen Calzado case was prosecuted by the crown prosecutor on his behalf. In serious cases where no private individual pressed charges, crown prosecutors were appointed.	38
Length of Trials
Contemporary eighteenth-century commentators (and later reformers) alleged that the length of trials was a critical weakness in the judicial system. Early in the century the trenchant social critic Benito Jerónimo Feijóo noted that "the accused. . . should be entitled to absolution if he is innocent and the Republic to his punishment if he is guilty." Trial procedure should be carefully carried out, he admitted, but not to the extent that the accused is left in the "dungeon, as if he were already in the grave." Legal procrastination caused problems. Feijóo, like others, believed two were particularly important. First, by giving suspects time to escape and exert their influence on potential accusers and witnesses, the courts were effectively discouraging the filing of charges. Second, time decreased the prosecutorial zeal of the offended party, the crown prosecutor, and the judge.	39
Critics also stated that judges were too lenient, allowing criminals to escape their just rewards. Magistrates were frequently guilty, Feijóo asserted, of a "mistaken" and "cruel pity" when they failed to punish wrongdoers. This was especially true of criminal cases where no offended party filed charges, placing the onus of prosecution on an government apparently reluctant to pursue criminals without the backing of private motivation. Hardened criminals escaped the will of the Republic and God, Feijóo said, and caused the deaths of more innocents.64 (Incidentally, this is hardly evidence of an absolutist government manipulating the public.)	40
Almost a century later, the exiled author Blanco White repeated Feijóo's condemnation of the courts, laying particular stress on how lengthy trials increased the inefficiency caused by leniency.65 A foreigner writing at the end of the eighteenth century confirmed these authors' sentiments. "Innumerable instances are cited," he wrote, "of criminals who have died forgotten in the prisons; and of some who, whilst under sentence of death, have married, produced numerous offspring, and then been brought forth to execution when all recollection of their crimes had long since been obliterated." This gave credence to the theory that consideration of the parties' rights encumbered trials needlessly and thwarted "the purposes of justice."66 Such critics were effectively impugning Spanish judges for being too meticulous.	41
Ironically, this is exactly the opposite of nineteenth-century criticism, which portrayed the older system as inquisitorial, sloppy in the application of the law, and unjust in its hasty judgment of evidence. Despite these criticisms, the actual length of trials was principally the result of the many legal guarantees, not of courtroom sloppiness or procedural haste. Medieval Iberian custom established that defense and prosecution had until the day after the plenaria to substantiate their cases, but trials became progressively longer in the early modern period. Eventually the length of the arguments put forth by both sides dictated trial length. It was the lawyers and not the judges who ended up controlling time in court. 67 In the Carmen Calzado case the defense and crown prosecutor kept files going back and forth as they added testimonies and legal summations for four months. 68 Judges turned government ministers attempted to curtail such legal freedoms. By 1750 common law and royal statute were demanding that courts try cases within two years of beginning the sumaria stage, but jurists admitted that such instructions were dead letter. The statutory time requirement "has been derogated by the universal practice of the Monarchy." 69	42
Some contemporaries--especially foreign visitors--blamed the large number of religious holidays for the courts' procrastination. The government must have shared these concerns, since in 1747 and 1749 they limited the holidays celebrated by the Sala (ferias de corte ) to the major religious holidays and a detailed list of thirty-two additional days. However, this still left at least sixty-six holidays. There was a theoretical possibility of no work days during almost 40 percent of the thirteen weeks of high summer. 70 Sala archival records demonstrate that August and September were substantially abandoned as working months, much as they still are today all over Spain. Although religious holidays may have affected the speed of trials, ultimately courts took their time because legal counsel had the right to extend their arguments almost indefinitely. We might even argue that tardiness was a mark of judicial fairness. 71	43
How long did criminal trials actually last? The legal fiction that only a few days were to elapse from the end of the investigation to sentencing persisted, judges typically ending a trial's first day by stating that a verdict would be passed down "at the next public hearing [audiencia ]," held five times a week. Brief trials did occur. In 1768, for example, Juan Moreno and his accomplices were tried for the theft of a mule in two days. 72 Most trials, however, lasted longer. In 1758 sixty-one serious cases came before the judges for trial. 73 Thirty-eight percent of them continued into 1759, lasting on average over seven months; the remaining 62 percent were tried within the year. The average length of a criminal trial in 1758 was fourteen weeks and three days. These average figures fail to convey the fact that the overwhelming majority of criminal cases lasted considerably less than three or four months. Trials taking longer than the average always included multiple charges or charges against several individuals. Thus every case exceeding the 1758 average involved charges against groups of two or more. 74	44
Close analysis of selected cases between 1750 and 1802 establishes the fact that duration was not a major problem in the judicial system: 52 percent were tried within one month; 24 percent required from two to six months; and only 18 percent took between one year and five. Two uncharacteristic cases involving multiple charges against more than ten individuals lasted longer. Thus, overall, more than half of the people accused received judgment within a few weeks of the date of the crime; about one in five continued in trial for at least two years. The longest were those which involved multiple indictments.75 Reports of extremely long criminal proceedings as the norm were clearly an exaggeration.	45
Trial length did not affect as many people as critics claimed either. The overwhelming majority of accused did not rot in dungeons awaiting their sentencing and many indeed did not even stay incarcerated after the initial arrest. Out of 3,020 individuals indicted in the sample count examined for the years 1750-1802, 432 were released during the investigation or trial period under bail, placed under house arrest under oath, or bound over in some other fashion.76 The length of the defense and prosecution did not seriously affect the personal freedom of many accused.	46
Conclusion
The Madrid court's procedure from 1750 to 1808 clearly did not fit the nineteenth-century stereotype. Elaborate measures were in place to ensure judicial impartiality and the frequent use of the courts by individuals and groups to prosecute those they believed guilty of sinful crime is proof that Spaniards did not find the criminal system "repugnant." Trials were also clearly orchestrated in the eighteenth century to solemnize and sanctify the public punishing of crime. The Sala' s procedure expressed an institutional belief in penalizing sinful acts and courtroom drama provided a frame for it, a forum for formal discourse on commonly held cultural truths, not necessarily a source for their definition. It did not reinvent the wheel of social control at every trial; rather, relying on the reasonableness of what it was doing, the court served the needs of the public through a dramatic enactment of just retribution, in a cultural economy that assigned them the task of mediating criminal truth. Trial hierarchy and ritual, part of that era's "due process," corresponded to the limits imposed on acceptable judicial arbitrariness by societal norms of governmental responsibility. It is difficult to find evidence for the sort of public estrangement from the courts that, a century later, reformers would attribute to "old style" courts.	47
The eighteenth-century state acted primarily as an accessory to private prosecution in criminal trials, despite nineteenth-century criticisms that characterized state action as absolute authority imposing its will on a passive--and subjected --populace. It is true that criminal trials maintained the dominant social groups' ideological power, but the popular use of courts as spaces in which to negotiate personal grievances overwhelmingly supports an interpretation of the court's role as an institution confirming the populace's sense of moral order. Criminal courts existed to serve a public need in a public way, and many cases underscored the surprisingly unhierarchical punishing of crime. Occasionally, the rich and powerful got their comeuppance in the Sala. Ultimately, it was the private and family concerns of individuals, not the dominant social groups' ideological motives, that produced prosecutions. Aspects of trial procedure criticized by nineteenth-century reformers, such as the length of trials, were in many cases the result of the legal guarantees of individual rights, the insistence on the private inception of criminal prosecution, and the wide latitude given legal counsel. The "secretive inquisitorial procedural style" invoked by the 1882 reformed criminal code was a red herring created to suit liberal Spain's paradigmatic need for an absolutist past that denied the previous system's contextual "fairness." Modern observers, using everyday language to characterize eighteenth-century trial practice, would be justified in saying that, however fallible, preconstitutional trials worked for the public they served.	48
At least one important question arises from this discussion that is, unfortunately, beyond the scope of the present study. How far did the Sala' s system apply in the provincial and imperial areas of the Spanish monarchy? The secondary literature indicates that it may have been exceptional to a certain degree. There is clear evidence, however, that the Sala' s moral-cum-legal mythology of "fair" trial procedure applied everywhere in the monarchy, at least in theory. 77 More and more studies of colonial legal culture stress the common cultural norms that extended far and wide. There is growing evidence of the interconnectedness of legal institutions and religio-moral codes in the Spanish empire, a link that was perpetuated in local cultural customs. A procedure not unlike the Sala' s, for example, was characteristic of such a distant and disparate place as the New Mexico frontier. The cultural expectations of what a justice system was about followed suit. 78 My argument that political motivations caused this colonial culture to be ignored is also confirmed by the work of Latin Americanists. Modern scholars like Andrés Lira González, for example, proved decades ago that the cataclysmic birth of nations in the 1900s was often accompanied by constitutional arguments expediently ignoring the Spanish empire's legal protection of individual guarantees, its insistence on judicial impartiality, and its institutionalized forms of accountable government. 79	49
On the other hand, the nineteenth century's hatred for the previous system stemmed from a dislike of its religious core, not from the rational critique of rights discourse. Making pre-constitutional trials look unfair served the rhetoric of a constitutionalism that divorced sinfulness from illegality in the name of eternal truths of social constructionism. The shrewd early nineteenth-century jurist Savigny knew that his contemporaries' chief political ailment was their obsession with legislative (read: creative ) authority over cultural (read: re-creative ) existence. 80 One had to blacken the past's culture in order to legislate out of existence the legal institutions whose legitimacy depended on a religio-cultural norm. Constitutionalism required that Spanish-speaking citizens or subjects change their world into what the politicians believed the world was really like. Epistemological incarnation won out over phenomenological reasoning. They were not the first, or the last, to invent institutions in order to live imagined truths and illusory realities.	50
Fabio López-Lázaro is an assistant professor in the Faculty of Communication and Culture at the University of Calgary and an adjunct assistant professor in its History Department. Notes 1 For example, see Raymond Carr, Spain, 1808-1975, 2d ed. (Oxford: Clarendon Press, 1982), 1-38. The term "failure," which organizes Carr's analysis of Old Regime society, is symptomatic of his theoretical assumptions and anachronistic preconceptions. John H. Elliott's popular introduction to early modern Spain also contributed to this vision of historical disappointment, or malfunction. See his Imperial Spain, 1469-1716 (New York: St. Martin's Press, 1964). See also Michael R. Weisser's comments in Crime and Punishment in Early Modern Europe (Atlantic Heights, N.J.: Humanities Press, 1979), 52. In developing my counterargument to the Carr-Elliott interpretation of Spanish history as a long-drawn record of "failure," I have drawn on the revisionist insights of Helen Nader, Liberty in Absolutist Spain: The Habsburg Sale of Towns, 1516-1700 (Baltimore: The Johns Hopkins University Press, 1993), especially comments on 157, as well as the philosophical shrewdness of Anthony Giddens's structuration theory, "Structuralism, Post-structuralism and the Production of Culture," in Social Theory Today, ed. Anthony Giddens and Jonathan H. Turner (Stanford: Stanford University Press, 1987). This collection includes Ira J. Cohen's useful critique, "Structuration Theory and Social Praxis ," 273-308. I also referred to Giddens, New Rules of the Sociological Method (New York: Basic Books, 1977) and idem, The Constitution of Society (Cambridge, England: Polity Press, 1984). 2 Enlightened absolutism has a long scholarly tradition. Indicative of the classic trends for Spain are Richard Herr, The Eighteenth-Century Revolution in Spain (Princeton: Princeton University Press, 1958) and Jean Sarrailh, L'Espagne éclairée de la seconde moitié du 18e si¸cle (Paris: Klincksieck, 1964). For our purposes, the work of Ruth Pike has blazed a trail. She has been the only major analyst of the Sala de Alcaldes de Casa y Corte' s records. See Pike, Penal Servitude in Early Modern Spain (Madison: University of Wisconsin Press, 1983) and idem, "Capital Punishment in Eighteenth-Century Spain," Social History 5 (1985): 375-86. 3 A sampling of recent works should include Donald R. Kelley, Historians and the Law in Postrevolutionary France (Princeton: Princeton University Press, 1984); David J. A. Cairns, Advocacy and the Making of the Adversarial Criminal Trial, 1800-1865 (Oxford: Clarendon Press, 1998); H. W. Arthurs, "Without the Law": Administrative Justice and Legal Pluralism in Nineteenth-Century England (Toronto: University of Toronto Press, 1985); Michael John, Politics and the Law in Late Nineteenth-Century Germany (Oxford: Clarendon Press, 1989), especially chap. 1, "The Theory and Practice of Codification, 1814-1867"; the collection of essays edited by Robert Badinter, Un Autre Justice 1789-1799 (Paris: Fayard, Histoire de la Justice, 1990), especially the contributions of N. Castan, J.-P. Royer, P. Lascoumes, and P. Poncela. For another discussion of French criminal adminstration in a revolutionary period that hints at the political utilization of Ancien Régime legal institutions, see Iain Cameron, Crime and Repression in the Auvergne and the Guyenne, 1720-1790 (Cambridge: Cambridge University Press, 1981). See also John A. Davis, Conflict and Control: Law and Order in Nineteenth-Century Italy (Atlantic Heights, N.J.: Humanities Press International, 1988), an especially enlightening discussion of the connections between evolving liberal political ideologies and criminal law reform. David Bushnell, Reform and Reaction in the Platine Provinces, 1810-1852 (Gainesville: University Presses of Florida, 1983) is a rare look into these processes in the Latin American context; see also the discussion of reform in Alan Norrie, Crime, Reason, and History: A Critical Introduction to Criminal Law (London: Weidenfeld and Nicolson, 1983), 1-33. Even England was not immune to the explicit repudiation of the "old system" of law in the nineteenth century; see Peter Stein, "Legal Theory and The Reform of Legal Education in Mid-Nineteenth Century England," in his The Character and Influence of the Roman Civil Law (London and Ronceverte: The Hambledon Press, 1988). 4 I agree with the legal historians O. F. Robinson, T. D. Fergus, and W. M. Gordon that the general trend extends across Western Europe, despite local variations. See Robinson, Fergus, and Gordon, An Introduction to European Legal History (Abingdon: Professional Books, 1985), 438-42. 5 Quoted by Norrie, Crime, Reason, and History, 8 6 In a larger context the stereotyping of all Spanish law as inquisitorial fits into R. C. Van Caenegem's argument that there has been a powerful stereotyping of English law as somehow more democratic historically than continental law. See his Judges, Legislators, and Professors: Chapters in European Legal History (Cambridge: Cambridge University Press, 1987), 73-83. 7 This tribunal had full criminal jurisdiction over Madrid and its surrounding countryside, but consulted with the central government in cases of capital crime. It was also a court of appeal for the crown of Castile. Sala and alcaldes refer to the tribunal and judges, respectively.