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Minors, gender, and family: The discourses in the court system of traditional Buenos Aires
MINORS, GENDER, AND FAMILY: The Discourses in the Court System of Traditional Buenos Aires
RICARDO CICERCHIA
ABSTRACT: The article deals with public attitudes toward family responsibility in early-nineteenth-century Bienos Aires, particularly as revealed in lawsuits occasioned by disputes over the custody of minors. The care and education of minors was ordinarily entrusted to parents, but death, incapacity, licentious conduct, poverty or abandonment often resulted in the minor being removedfrom parents and taken by others into custody of guardians or institutions of public welfare. The majority of the analyzed lawsuits resulted from an attempt by parents to recover their authority over their children. The lawsuits indicate that the racial, gender, social, and generational “disadvantages” of plaintiffs did not a priori determine the judgement, but rather that arguments for family stability frequently were decisive when heard by sympathetic judges. Disadvantages persons thus frequently argued sucessfully about the meaning of the family, as protagonists in the legal system that otherwise often marginalized them.
THE HUMAN SCENARIO’ Beginning with the first decades of the eighteenth century, the city of Buenos Aires, until then only a shabby clandestine port for the illegal export of silver from Potosi, became the setting for a continual “progress” within the framework development of the entire region of the Atlantic littoral. This was development as much economic as political, stimulated by commercial activity and its position as the residence of the authorities.* Ricardo Cicerchia is Professor at University of Buenos Aires, National Researcher at the CONICET, Consultant of UNICEF Argentina, and Coordinator of the Department of Social Sciences of the National Curriculum, Ministerio de Cultura y Educacidn, Argentina. He is currently a post-doctoral research-fellow at the Institute of Latin American Studies (ILAS) of the University of London. THE HISTORY OF THE FAMILY An International Quarterly, Volume 2, Number 3, pages 331-346 Copyright 0 1997 JAI Press Inc. All rights of reproduction in any form reserved. ISSN: 1081-602X
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As a consequence of this process, the city underwent important demographic transformations. The European and American immigration from the interior of the viceroyalty, in addition to the arrival of slaves from Africa and Brazil, was of decisive importance in the rapid growth of the urban population. During the period under analysis, the city went from 25,000 inhabitants to a figure close to 90,000 in 1850, and at least until the 1930s the urban population continued to increase at an annual rate of 2.2 percent (Censo General 1889; Ravignani 1919, 1922; Martinez 1910, pp. 272-277; Johnson and Socolow 1980, p. 343; Moreno 1965, p. 165; Besio Moreno 1939, p. 427; Garcia Belsunce 1977, p. 62; Trelles 1859, p. 67; Andrews 1980, pp. 66 and 15 1; Martinez 1889, pp. 432 and ff.; Goldberg 1976, pp. 75-99; Szuchman 1988, p.189). The increase in the number of residents produced significant changes in urban population density and in the physical boundaries of the city. At the end of the eighteenth century, the process of urbanization culminated in a phase characterized by an increase in construction, both public and private, and in organization and improvement of different activities of city life.3 This growth created certain favorable conditions in infrastructure that helped reduce the average number of persons per residence and increase the predominance of single-family living quarters. Married children moved to another dwelling, and there was little disposition to share a house among several related families. Besides, there was a gradual geographical distribution of the inhabitants according to socio-economic characteristics. Proximity to the public square signified having access to political, social or economic power. In the center-where the “decent” families lived-the group generally consisted of more than six members. In contrast, in the barrios, the number oscillated between four and five persons per family grouping (Langenberg 1979; Garcia Belsunce 1977, p. 50). According to “race,” the Buenos Aires population was predominantly “white” (a very flexible somatic concept among porteiio census takers). The volume of the “white” population recorded is a direct consequence of the “invisibility” of the popular sectors, and of the inclination on the part of the authorities to “whitewash” the “mixed castm” population. In the censuses, the castus appear less than they did to foreign travelers. Some analyses of the records do show an important Negro population. The Afro-Argentine population represented 30 percent of the total inhabitants of the city between 1780 and 1810, and somewhat more than 26 percent in the (incomplete) census of 1838, numbers quite distant from the testimony of contemporary travelers. To most visitors, the city seemed to possess an extremely high proportion of colored people. The imperfections in the census books ought to be balanced against the obviously impressionistic images of these contemporaries (Garcia Belsunce 1977, p.72; Andrews 1980, pp. 66-85; Gillespie 1921, p. 65; Mellet 1823, p. 24; Robertson and Robertson 1843, p. 13 1). The predominant type of family had a nuclear structure. The idea of the extended family with three or four generations living in the same family dwelling is inapplicable in many areas of Hispanoamerica, but particularly in the case of Buenos Aires. If we consider the censuses of 18 10, 1827, and 1855, the average number of people who constituted this type of domestic unit was 4.2, 3.7, and 3.9, respectively. More than 51 percent of the total families had between zero and two children (Szuchman 1988, pp. 78-79). With regard to the head of the household, according to a sample of the censuses cited, the average indicates the following types: married couples (3,015), the best represented group with 46 percent; with male head of household, bachelors, or widowers (2,250), 38 percent;
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and with female head of household, unmarried or widows (1,045), sixteen percent (Andrews 1978, p. 202). From 1830 on, and after a fairly stable earlier period, there is an evident trend toward fewer bachelors or widowers (from 43 percent in 18 10, to some 27 percent in 1855) and a significant increase in married couples (from 41 percent to 56 percent, during the same time frame). It is also important to point out a strong tendency toward marriage among the colored population. While only 2 1 percent of Black men between the ages of fifteen and 44 years were listed as married in 1810, 47 percent were listed as married in 1827. Among Black women, the number jumped from 22 percent to 40 percent in 1827 (Szuchman 1988, p. 202). Although the censuses do not give the age of the couples at the moment of marriage, the register of their ages displays two phenomena. First, the age difference between husband and wife decreased. While the census of 1810 shows an average difference of 11.4 years, in 1827 this average has decreased to 9.6, reaching 7.5 in 1855, always in favor of the husband. The second is related to women’s preference for earlier marriages, a model even more accentuated among women of the popular classes (Andrews 1978, p. 175). As regards the world of work, we can speak of a society whose base was composed of urban workers. The censuses of 1774, 1778, and 1810, as well as the census sample of 1827, describe a wide range of occupations, While the sector of craftsmen and both skilled and unskilled workers constantly increased throughout the period, and business continued at an important level, the accelerated process of urbanization reduced the rate of rural work (see Table 1). The occupational distribution of whites and colored people demonstrates the persistence of disadvantages for colored people. In 1810, while more than 47 percent of the whites were located in the three highest categories of the occupational pyramid, we find here only a single free man of color and no slavesP
TABLE 1 Occupational Structure of Buenos Aires According to Census of 1744,1778,1810 and 1827 1744 Rural, Fishing Artisans and Skilled Workers Commerce Professionals and Officials Non-Skilled Workers Total
145 316 255 438 246 1,400
Rural, Fishing Artisans and Skilled Workers Commerce Professionals and Officials Non-Skilled Workers Total
152 1,922 1,591 1,592 290 5,547
1778 10% 23% 19% 32% 18% 100%
264 768 791 383 549 2,755
3% 35% 29% 29% 5% 100%
340 3,469 2,524 616 880 7,829
10% 28% 29% 14% 20% 100%
1827
1810
4% 44% 32% 8% 11% 100%
Source: Johnson and Socolow 1980, p. 340; 1778 from Moreno 1964, p. 157; 1810 from Garcia Belsunce 1977, anexo 1; and 1827 comes from my own numbers of a census sample of 1827. Multiply totals by the factor of each racial category in economic activity (Andrews 1988, p. 40).
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DOMESTIC
WARFARE
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OF MINORS
Within this urban framework; the popular classes of Buenos Aires, without quite constituting “dangerous classes,” have been the protagonists of a certain lack of family discipline. Is it possible to measure the menace of such rebellions, unveil the faces of the victims and the victimizers and the discourse that these assaults constitute, to calculate the damages? During the eighteenth century there began to form the “public sphere.” This was the historical emergence of a common arena “detached’ from the social position of the subject. In the course of this process, Illuminism played a central role, culminating in the New World with the royal project of Carlos III. To attack the economic and political privileges of the Church, eliminate its immunities, and establish a definitive frontier, previously illdefined, between the temporal and the celestial, between the social and the sacred, were important components of the “new imperialism.” Beginning in the second half of the eighteenth century, for example, the Bourbons limited the independent or shared judicial functions of the ecclesiastical tribunals. The new secularizing tendencies of the eighteenth century led to the separation of spiritual and temporal powers. From 1800 onwards, the more secular concept of law predominated alsmost entirely. From then on, “evil actions” were obviously those that attack public order and individual rights, and the offenses against God only came into question when punishing them was in the general interest (Borah 1983; Cook and Cook 199 1). How did the conflicts of power between State and Church for family jurisdiction operate in Buenos Aires during that historical period? The growing interference of the Audiencia and the alcaldes in the “private” area, and particularly family matters, was denounced by porteiio bishops as a direct attack on the task of evangelization and on the social role performed by the confessional. This dispute has a long history of confrontations. The increasingly frequent disputes for places of honor in processions and public events, or the Church’s loss of the power in making use of the police force are only a few examples. The latter was not unimportant, to be sure. Without a secular arm, the ecclesiastical tribunal lacked the power of coercion over family disorders. In this period the universe of domestic disorders includes not only intra-familiar relationships, but also those that involve “family honor”-a concept that rested on two axes: the family “responsibilities” of the pater and the public virtue of women. Among the lawsuits, I will consider the trials occasioned by custody of minors and how these claims reflect the ordinary mentality about children.” During the eighteenth century, a minor was in a complicated legal situation6 According to the Partidm, the care and education of such persons-under the age of 25-was entrusted to the married or unmarried progenitors exercising their paternal authority. The mother’s right to custody was unimpeachable during lactation, and extended to the age of three. The norm awarded “guardianship” to mothers, who were to “nurse and bring up their children” until they reached the specified age. From then on, it was the father who exercised this power over his “children, grandchildren or great-grandchildren who were descendants of his children, there being a bond of reverence, subjection, and punishment that the father should exercise over the child.” On the other hand, the law explicitly established the exclusive right of the father to “reclaim by lawsuit the return or surrender of his child who is in someone else’s power, whether forcibly or voluntarily,” as one of the rights that constituted paternal authority [Archive General de la Nation. Buenos Aires, Argentina
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(from here AGN), Tribunal Civil, 0 8, Legajo 4, 18321. However, a more attentive look at the lawsuits demonstrates that such patriarchal power had, at least, nuances. There were no fundamental differences in the treatment of the subject of tutelary institutions for minors until the ratification of the Cddigo Civil in 187 1. References in SpanishIndian law during the entire first half of the nineteenth century are unequivocal in this respect (Zorraquin Bec6 1973, pp. 331-332). Only with regard to attaining adult status (habilitucidn de edud) does the preceding legal tendency change. Beginning with the ratification of the law of November 17,1824, minors under 25 years of age were authorized to appeal to the Supremo Gobiemo to solicit adult status in order to administer their property (Levaggi 1977, p. 297). In innumerable cases, such authority could not be exercised. Death, incapacity, licentious conduct, poverty, or abandonment decreed the necessity of keeping the minor in custody, surrendering him into other hands or protecting him. In such circumstances, the exercise of paternal or proprietary authority, according to whether it concerned free men or slaves, in fact became the responsibility of guardians (for administration of property), custodians, or institutions of public welfare (Seoane 1977, pp. 285-322; 1980, pp. 175209). The majority of our lawsuits resulted precisely from an attempt to recover a delegated or expropriated “paternal authority.” The rhetoric of “surrender” is characterized by a large dose of theatricality. Misfortune, irreparable circumstances, fatality, providence, characterized by “state of necessity.” For example, in the Manuela Cepeda’s complaint against Don Mariano Falcon in 1832, she said: The motives that obliged me to separate my two daughters from my “maternal bosom”-an act so painful that the heart cannot transmit it to the pen, but must leave it to the wise and prudent discernment of the Judge!-were the death of my first husband, the girls’ legitimate father; the lack of resources to support us; and not wanting necessity to draw my daughters into prostitution (AGN, Tribunal Civil, C 43, Legajo 19, 1835). The contracts of apprenticeship, tutelage, and hiring out, which survived into the republican period, are also inscribed in this mechanism. Such was the case of Nicolasa Ib%iez, who, confiding in the good reputation of the family Beruti (something which she later regretted), signed a contract ceding her son Pie to them in the following terms: To educate Pio, support him in terms of alimentation and clothing to aid him in sickness and busy him in services appropriate to his class, to correct him humanely in his childish aberrations and make him a good Christian, and when he reaches adulthood put him into some congenial lucrative occupation, arranging this to the greatest advantage to spare him suffering (AGN, I 7, Legajo 4, 1828-l 83 1).
In many cases, contractual clauses were stipulated according to which parents surrendered their children, while agreeing, in exchange for the education offered by the trustees, that the children would perform unpaid services for them until they reached their majority, married, or failed to fulfill the conditions established in the act of surrender. In case the “surrender” was legalized by a contract, almost always in the presence of the Defensor de Menores, the rights and obligations of both parties were stipulated in it. In the document that certifies one of these surrenders, Manuela Cevallos declares that:
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My daughter being without a father and 1 lacking means to educate her, for my subsistence depends on domestic services in the house where I am hired, having the most complete satisfaction and acquaintance with the honorable character and Christian sentiments of Don Pedro Gada, it is my will to surrender her to him so that acting as a father he can take charge of providing her with a socially useful education, teach her to sew, iron, and read, and she is to be under his power until she reaches adulthood, according to the advisement of Defensor de Menores (AGN, C 20, Legajo 9, 1822-I 823).
As in the previous declaration, in most cases the progenitors themselves named or selected the custodian. In special circumstances, they justified the decision to voluntarily surrender their legitimate or natural child. The law of Purtidus itself emphasizes that the essential function of the “tutor” (a generic name for the custodian of a minor) was to “protect the person of the child and his goods.” That is, “to guarantee the satisfaction of the material, spiritual, and intellectual needs of minors.” The “obligations” to teach them the rudiments of religion, to provide them with housing, clothing, and food and to teach them some reading or some art or trade were indispensable responsibilities, independent of the family or social context that created the situation. The girls were to learn occupations “appropriate to their sex,” while young men were oriented toward learning mechanical trades. As compensation, the custodians in their turn acquired the right to benefit from their services and to exercise paternal authority over the minor, in some cases, that authority being transferred expressly. On the other hand, the depositor agreed not to remove the minor until he or she came of age and reserved the right to dispose of him in case the stipulated obligations were not fulfilled. This reserve is exactly what lies at the origin of a series of disputes for custody among the parties; when the child reached a “productive” age, the custodians were accused of a failure to fulfill their obligations-a well-founded and provable accusation in some cases, and, in others, one produced by the progenitors’ desire to recover young people who could, at a “productive age,” be hired out for more lucrative activities. The failure to fulfill these obligations resulted in a lawsuit in most cases, or in the reformulation of the agreement or the annulment of the surrender. This was the nature of a case filed by Maria de1 Rosario Fernandez, “a free parda widow” against Dofia Francisca Castro. She declared that ten years ago she gave her daughter Florencia to DoAa Francis0 Castro “to educate and support her. Far from educating her according to our verbal agreement, . has neglected her completely, to the point that my daughter doesn’t even know how to pray, because she spends all her time doing the hardest work in the house, which is: drawing water for baths, cooking, etc. Since I want to have my daughter with me, I asked this woman for her and she refused to surrender her.” The accused responded that when the pardu Maria de1 Rosario asked her to educate her daughter and bring her up, she had resisted the idea, saying that when the girl was old enough to be of use to her, the mother would take her back. The mother had sworn not to take her away. But just when the mulatilla was old enough to be useful, the mother appealed to the Juez de Paz of the Parroquia de1 Socorro, who ordered the girl returned to her mother. In spite of the possibility that the original cession had not been made in good faith, this is a typical decision handed down by judges in such a case (AGN, Tribunal Civil, F 16, Legajo 8, 1837-1838). The judicial proceeding began with the presentation of the claim, notification, a hearing at the Ministerio de Menores, and proof of the hearings in which the parties generally
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resolved the legal case through negotiation or amicable compromise. During the period of Independence, the presence of the Ministry was practically indispensable. It, along with the Jueces de Paz, was charge of hearing the accusations. Among the most frequent complaints are abuse, failure to comply with agreed-upon obligations, abuse of authority, and exploitation. In a combination of such complaints, Manuela Castro “de casta morena,” reclaiming her daughter Juana Agustina from her custodian Don Jose Castro, recounts that: At my daughter’s present age, due both the natural pity her helpless state inspires and to fulfill sacred obligations, she should be instructed in Christian doctrine, taught the duties of her sex according to her class, and treated according to humane standards and
the philanthropic spirit of the law. On the contrary, she is presently without the necessary foundation in religion; she does not know how to make a confession, has had no instruction at all in things indispensable for her sex and worst of all, has been exposed to intolerable cruelty and maltreatment, since she is frequently punished with a bergazo de turo [Archive Historico de la Provincia de Buenos Aires. La Plata, Argentina (from here AHPBA), Juzgado de1 Crimen, 34-S-92, Expediente 641.
The neglect of female children’s religious education was one of the most effective arguments for obtaining devolution. The proof of such neglect and the existence of child abuse or exploitation were almost certain to result in the return of the child to its original family. Decisions taken in the Juzgado de Paz sometimes are transferred to the Jueces de Primera Instancia, who basically confirm the decision after soliciting detailed information about the incident. Rarely are appeals made to the Cdmara de Justicia, basically for two reasons. On the one hand, as we pointed out, negotiation plays a prominent role in resolving this kind of dispute. In the second place, sanctions implied a type of moral condemnation that was difficult to revoke. The minors who occasioned lawsuits were put under supervision. Although there were several types of supervision (depdsitos), in fact they concerned “custody” of quite different kinds, all subsumed under the title of legal supervision. These could be voluntary or involuntary, judicial or extra-judicial, gratis or compensated. Frequently, once a lawsuit intended to annul the right of upbringing, tutelage, or education of a minor was instituted, the child in question was provisionally entrusted to a house “of rectitude” until such time when the suit was decided. An example of this kind of supervision is the one solicited by Maria Ramona Cabral, from the Judge of district 14. In her custody dispute with her daughter’s godmother, she “demands” that her daughter be placed in the house of canon Robles who is, according to the petitioner, “absolutely trustworthy” (AGN, Tribunal Civil, C 50.) Status as a minor meant something more than an individual’s legal category; it was also a social construction. Scholastic theology and philosophy continued to be used as parameters for teaching, but the lack of interest in their contents as well as in their old-fashioned scientific methods was evident and their predicament diminished as new theories developed in the fields of physics, political economy, aesthetics, education, and epistemology throughout the eighteenth century. In this respect, within the Rio de la Plata area, Rousseau, Copernicus, Galileo and Locke, among others, were very influential (Chiaramonte 1989, p. 92). Under the influence of ideas stemming from the Enlightenment, during the
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eighteenth century a voluminous literature on the preservation and education of children begins to appear. On the one hand, there was a tendency to reinforce the protective role of the State, and on the other, to place education within a more general debate on the social perception of infancy as an evolutionary stage in the formation of socially useful individuals (Donzelot 1979, pp. 14-18). The echoes of this debate were not long in resounding into the New World. Very soon, in 1779, when the new authorities had just been installed, the first Casa de Nirios Expdsitos opened in Buenos Aires. Along with this institution, the Defensoria de Menores, as we have already indicated, would play an important part in the protection of minor children. From the very beginning, in such documents as the CMula Real of 1804 about “El modo de hater una cesdrea,” in taking every step to assure the spiritual and corporal life of of the young, and in recommendations to preserve and educate them during childhood, the government showed its concern about children (AGN, Fondo AndrPs Lamas, legajo 34, 1804-l 807). This was a very extended phenomenon. The Decreto Real of January 5, 1794 about civil rights of expdsitos and the “Recomendaciones complementarias a todos 10s ohispos y arzobispos de1 reino,” signed by Manuel de Godoy in 1796, marked the high point of the Bourbon ideology about the topic (Fuchs 1984 and 1992; Hunecke 1988; Ransel 1988; “Child abandonment” 1992; Sherwood 1988; Russell-Wood 1968). In 18 17, Doctor Juan Madera, surgeon of Casa de NiAos Expdsitos, declares that “the society, and especially poor people, has to improve its attention toward children, because if old people cost a lot of money and work, children, the future of the society, deserve much more.” In general, in the ruling class discourse, the problem was linked to the lack of morality of theplebeya population (AGN, El Censor: Buenos Aires, 12 de junio de 1817). The periodicals of the time did not neglect the subject, either. In its editorial, LL>Samigos de la patria y de la juventud, one of the most important newspaper in town, appropriated the currently fashionable principles: Fortunately our self-love leads us to take an active role in the interests of our own children: children who tomorrow will till our fields or propagate our species, dedicate themselves to the arts, business or defend our territory [AGN, Los Amigos de la Patvia y la Juventud, N. I, 24 November I81 5 (midnight edition)].7
This was the climate of the time, but who put the legal mechanism into play in these cases, and what were the motives? Out of the total of cases examined (94), 85 percent of the complaints presented fall under the heading of reclamation and/or custody of minors. Out of the total of 75 sentences recorded, only seventeen are unfavorable to the plaintiffs, who were nine mothers, seven fathers, and a slave-owner, while the accused were seven tutors, four officials, three mothers, two fathers, and a slave-owner (Cicerchia 1995, pp. 144-145). The disputes involve a total of 97 minors. Out of these, 63 percent were female. Few proceedings declare the ethnic group to which the children belonged. Few records of proceedings (eleven) declare the ethnic group of the child. Seven were female minors (three castas, two freed Black women, one Black slave, and one Indian), and four were males (three castas and an Indian). In those proceedings that declare previous “surrender” of minors to custodians or tutors (63), out of a total of 40 female minors delivered, the trustees were male and female in equal numbers. Of the 23 male minors, 78 percent were accepted by male receivers. In
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these cases, the surrender was made on the basis of an apprenticeship agreement for some artisanal trade or profession. Although such contracts could become relationships between masters and apprentices, it continued to be the circumstances of the minor and the family demands that delimited the agreement; for example, the concern of Maria Magdalena Conde claiming for the health of her son against his master Eustaquio de1 Campo: First reason, the boy suffers from enuresis and as it is inevitable that he will wet at night, he sleeps over that wetness and no care is taken to dry the mattress, so that he has to lie down in a puddle: without the master, nor the supervisor, doing anything about this abuse. The remedy for such a grave fault is not cured by daily punishment from the master. This is why the boy is malicento, pale and has pains in his bones, as the doctor confirms (AGI, Indiferente Genera/, Legajo 11).
Also, out of five “surrenders” to institutions, four corresponded to female minors. If we take the total of “races” declared by the actors (120), the percentages of whites and nonwhites are 66 percent and 34 percent, respectively, percentages not very different from the 70 percent and 30 percent produced by the sample of 1810 (see Table 2). Among the plaintiffs (59), the percentages increase to 44 percent and 56 percent respectively, for the same groups. In contrast, considering only the accused (61), whites form 87 percent of the total, more than six times the number of nonwhites. As far a declared origin is concerned, the natives of the city surpass 86 percent, a proportion that is far higher than the census proportion of 53 percent. Only twelve of the cases are suits between couples; of those, eleven are formalized marriages. According to the relation to the minor, out of the total of fathers and mothers (89), 33 percent declare themselves as single parents. Among the mothers (55) more than 34 percent are single. Similar percentages appear in regard to the fathers. Out of the total (34), 61 percent are legitimate. Women constitute more than 58 percent of the total plaintiffs. Within this group, the most important groupings are legitimate mothers with 49 percent, followed by single mothers with 34 percent. Among those who declare ethnic group (33 percent), slightly over 36 percent are white, 30 percent free Black women and 27 percent castus. Of those who declare origin (27), slightly more than 88 percent are natives of the city. Of the males in this group, 42 percent of the total number of plaintiffs, 45 percent declare themselves legitimate fathers and 29 percent single fathers. Only 26 percent declare ethnic group. Of those, the whites represent close to 54 percent, the custus 27 percent and free Black men barely surpass nineteen percent. 68 percent of those ,who declare origin (22) are natives of the city. In this kind of lawsuit, the males also form the largest group among the accused, with a total of 56 percent. Of those, the ethnic majority is again the whites, with 91 percent. In terms of relationship, the tutors or custodians facing lawsuits amount to almost 70 percent. In terms of origin, 60 percent correspond to port&x, and an important 23 percent to Spaniards. Among the women in this column, 80 percent belong to the white group, 50 percent to custodians, 28 percent to legitimate mothers, and almost 90 percent to the native-born. Information about profession is less often available than the data cited above. Among those plaintiffs who specify it (27) the distribution tends toward the lower strata of the
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TABLE 2 Lawsuits for Custody of Minors According to Actors City of Buenos Aires, 1776-l Plaintiff
Defendant
850
Total 84
Male Female
38
46
53
36
89
Total
91
82
173
Plaintiffs Male
Female
Total
I. Race White
14
Indian/Mixture
1
Castas
7
Free Blacks
5
Slaves
-
Non-Specific Total
II. Relationship Legitimate Mother
12 -
26 1 16
10
15
1
1
12
20
32
38
53
91
26
26 18
11
Illegitimate
Mother
-
Legitimate
Father
17
18 -
Illegitimate
Father
11
-
17
Tutor/Guardian
3
3
6
Others
7
6
13
38
53
91
B. Aires Camparia (rural Bs. As.)
15
24 -
39
Other States
-
Total I I I. Origin
5
5
1
1
2
1
3
Spain
-
1
1
Non-Specific
16
26
42
Total
38
53
91
Other Hispanic Countries
IV. Profession Professionals
-
Merchants
-
Artisans
-
Independent
2
Workers Laborers
-
2
2
2
4
Domestics
2
Soldiers
3
Without Profession
3
2
5
Non-Specific
19
45
64
Total
38
53
91
-
3
(continued)
341
Minors, Gender, and Family TABLE 2 (Continued) Defendants Male
Female
I. Race Whites
32
21
Indians/Mixture
-
-
Castas
2
4
Free Blacks
1
1
-
Slaves
Total 52 6 2
-
-
Non-Specific
11
10
21
Total
46
36
62
II Relationship Legitimate Mother
-
10
10
Illegitimate Mother
-
1
Legitimate
Father
Illegitimate Father Tutor/Guardian
4
-
2
-
32
1 4 2
18
50
8
7
15
Total
46
36
82
I I I. origin Buenos Aires
18
17
35
Others
CampaAa
4
-
Others states Others Hispanic Countries
1
-
-
4 1 -
7
2
9
Non-Specific
16
17
33
Total
46
36
82
Spain
IV. Profession Professionals
-
6
Merchants
-
4
Artisans
-
Independent
6 2
5
Workers 1
-
1
Soldiers
1
-
1
Without Profession
1
-
Domestics
Non-Specific Total
1
25
33
58
46
36
82
Source: Cicerchia 1995, Chapter 5.
social pyramid, taking self-employed workers as the dividing line between the middle and lower classes. Precisely the opposite is true of the accused. Allowing for the racial and professional data and the result of the lawsuits, the tendency seems to reflect a “distribu-
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tion” of minors from the lower to the upper part of the social structure, and the existence of a judicial mechanism that lends itself to “reclamation.” Parents, even under conditions of illegality, could recover their children. A reasonable argument transformed them, particularly mothers, into subjects with legal rights. As we observed, that only seventeen cases unfavorable to the plaintiffs demonstrates that the legal mechanism was very open to the claims.
CONCLUSION:
FROM THE BED TO THE COURTHOUSE
The discussion on the ideology of marriage and the cultural values governing the family is just beginning in the Rio de la Plata, an area that is particularly important, as it is a region of late colonial development and rapid integration into world capitalism. During the eighteenth century, the city of Buenos Aires became one of the most important cities among the overseas colonies. It was gradually transformed from an almost marginal area, basically sustained by contraband, into a strategically important commercial, military, and political center. From 1800 onward, the city was one of the most dynamic urban centers in the region. Its urban development was accompanied by rapid demographic growth, an intense process of secularization of public institutions, and a chronic political instability. During the late colonial period, as a result of the natural demographic growth and of immigration, the city witnessed not only a constant increase in population, but also the transformation of its society’s racial characteristics. Although we are referring to a predominantly white society, during that period the population of color reached important numbers. In the same period, secularizing tendencies bring about the emergence of strictly secular regulatory apparatuses at the institutional level. The State, through official agencies, redefines and controls the mechanisms of social reproduction. From then on, the exclusive jurisdiction of the Church in family affairs suffers a marked contraction. The colonial crisis was followed by political convulsions. The need for order determined the system of social control, which could be defined-at the very least-as less than solid, more permeable to a new urban atmosphere. Despite the imperative necessity of reproducing within the family universe a continent that would be the mirror image of the hierarchical structure of society, the pretension to an steely family “orthodoxy” was no longer an essential proposal for the establishment. Despite the fact that some authors maintain that the greater state intervention in “private affairs,” and the consequent decrease in the power of the Church, signified a terrible blow to the “free exercise” of conjugality and broke a certain “existing equilibrium” between the sexes (Seed 1988, especially Chapter 7) even when the sentences and the risk of publicly exposing the family “troubles” are taken into account family justice was an appropriate method of vindicating the rights of compensation of the socially most vulnerable individuals. The type of lawsuits analyzed here indicate, at least, that the racial, gender, social, and generational “disadvantages” did not u priori determine the sentence in the case. The necessity for family stability frequently meant that voices lacking social power, and on the margins of legality, argued about the meaning of the family as protagonists in the legal system. One of the consequences of such a “fissure” in the traditional family model was a certain discursive plurality about custody of minors legitimated fundamentally by female voices. Poor people, especially women, did not seem to play the part required of them by
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their marginalization. On the contrary, they confronted what they perceived as unjust, demanding judicial intervention. In the family world, the wife, and particularly the wifemother, axis of the domestication of family life, possessed an almost inexpugnable “public credibility.” Although this presence did not result in a concrete redistribution of social power, the majority of our actors do not appear to play without alternatives. The vi& maridable, even under precarious conditions of legality, transformed them into subjects with legal rights. In this juridical and ideological context, the phenomenon of circulation of poor children is a cultural practice stimulated by the social transformations of the city of Buenos Aires. In other words, family strategies of the poor worked within an alternative moral logic different from the discourse of the ruling classes (and its “mercenary mothers” vision), a very instrumental social habit with the possibility of a “rescue” (Bourdieu 1972, pp. 1105 1127; Cicerchia 1991, p. 67). What circumstances favored the pleas of the deceived, or simply practical, female? Various theories try to explain this phenomenon. Some point to a state of “mobilization” against male oppression. Others connect it to rigid social distances that made it impossible to enforce the socialization of the dominant values of subjection and obedience, or-closer to our own interpretation-it is possible to attribute it to the social space allotted to women in order to carry out the task of guaranteeing new forms of domestic order. Although there is some truth in all of these theories, it is certain that most of these “active” women, between reputation and claim, choose to fight for what is considered right for them. Natural parents, cohabitants, and illegitimate children were habitual actors on the judicial scene. Among them, women are those who most often filed lawsuits. The illegality of the marital state, condemned only when it was excessively flagrant, did not block the presentation of a claim or aggravate the accusation. The tribunals were not closed to the nonwhite population of the city. The group of castus most often brought their conflicts into the public arena. While close to 60 percent of the plaintiffs belonged to the lowest sectors of the occupational structure, among the accused, the middle sectors were most highly represented. In this sense, the judicial apparatus also fulfilled its mission as a social safety valve. Thus the domestic warfare of ordinary families could be settled in a public space, in which the rules of the game transcended social rigidities and even legality itself. The discussions about the responsibilities and rights of the paternal power suggest that it was not-at least not exclusively-the legal definition that shaped it, but the “necessities” of a family order and social demands. This universe of social negotiation did not signify a revolution in values, but simply that behind every battle about the meaning of family, there existed a community that justified-among other habits-the “circulation” of minors. In the process of secularization of the mechanisms of social reproduction that began with the Bourbons reformist tendencies, less inquisitorial systems emerged that redefined public space. The judicial apparatus then constituted as an instrument of social control and of mediation among dominant cultural models, the enlightened “optimism” of the moment and the family “common sense” of the popular classes. In the Courts, our actors designed a singular family discourse; they denied indifference of affection, they defended their strategies; they confessed acts enforced by circumstance and-particularly the women-pragmatically manipulated the logic of family honor, playing the socially assigned role of guardians of an order, often beyond the pale of legality. It was a rhetoric that adapted itself out of self-interest to the judicial hearing, utilizing a
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simple, realistic, and emotive subtext. A staging within the moral and legal prescriptions regulating “private life,” which, by dramatizing misfortune and revindicating the right of petition, perhaps legitimized “old customs.” Submitting themselves to the traditional family values of the Catholic ethic, and acknowledging both gender and racial social hierarchies, the “thirst for justice” of these popular classes found, in the intentionally conciliatory viewpoint of the judge, a space for negotiation. It was in the courthouse, and not the confessional, that the popular code was able to modulate the idea of the family.
ACKNOWLEDGMENTS I am grateful to Fundacion Antorchas, Buenos Aires, for supporting my work during the time I was pursuing my research in Argentina. Also I would like to thank my colleagues at the Seminar Grupo de Fumilia, Latin American History Program (PROHAL), University of Buenos Aires, with whom I discussed some of the issues covered in this article. Finally, my gratitude to the editors of The History c$ the Family: An International Quarterly for their insightful comments. A preliminary version of this article was presented at the sixteenth Congress International des Sciences Historiques, Montreal, 1995.
NOTES I. Out of a total sample of 394 trials, all of them corresponding to the urban area of Buenos Aires and related to middle and lower classes of the city, custody of a minor represents the major motive for claims (Cicerchia 1995, Chapter 5). 2. Before the creation of the viceroyalty, Buenos Aires was a governmental seat on a par with Tucuman and Paraguay. Although the city was not officially declared capital of the district until 1695, from the beginning of the seventeenth century it served as the residence of civil and religious authorities. Until 1778. the district was administered by 36 governors who often bore the title of captains general. The government was under the jurisdiction of the viceroy of Peru. On the history of the political organization of the area see Zorraquin Beck 1959, pp. 149-155. 3. Suffice it to mention the founding of the &.~a de Comedias, the first press, the creation of the Tribunal de1 Protomedicato, the Colegio San Carlos, the installation of public lighting and paving, works on the Paseo de la Alameda, the Casu de Nirios Exprisitos, the improvements in the bullring, etc. 4. Numbers based on census samples of 1810 and 1827. Totals are coming from multiply the racial groups by the factor number indicated in his Index (Andrews 1988, p. 40). 5. Out of a total sample of 394 trails, all of them corresponding to the urban area of Buenos Aires and related to middle and lower classes of the city, custody of a minor represents the major motive for claims (Cicerchia 1995, Chapter 5). 6. The debate about legal status of children was linked to the new ideas about human nature and the renovated physiology during the eighteenth century. The most representative works on the then current physiological ideas about childhood is Boerhaave 1759 and Halle 1787 (see Luc 1989, pp. X3-1 12.) 7. Similar articles appear throughout the period in El Griro de1 Sud, 8 September I8 12; El Censor, I2 June 1817; LLIAbeja Argenfina, N.6, 15 September 1822; and El Espiritu de In Federacirirz Republicana. Periddico Politico y Literurio, N.2, 27 October 1826.
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Printed Works Andrews, George. 1980. “Forgotten But not 1900.” Ph.D. Dissertation, University of 1988. The Afro-Argentines of Buenos -. Press. Besio Moreno, Nicolas. 1939. Buenos Aires, estudio crt’tico de su poblacidn,
Gone: The Afro-Argentines of Buenos Aires, 1800Wisconsin-Madison. Aires, 1800-1900. Madison: University of Wisconsin Puerto de1 Rio de la Plata, capital de la Argentina,
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Buenos Aires: Talleres Graficos Tuduri. Boerhaave, Hermann. 1759. Maladies de femmes et des enfan avec un trait& des accouchemen(t)s, tires des Aphorismes de Boerhaave comment& par Van Swielen. Paris. Borah, Woodrow. 1983. Justice by Insurance. The General Indian Court of Colonial Mexico and the Legal Aides ofthe Half Real. Berkeley: University of California Press. Bourdieu, Pierre. 1972. “Les strategies matrimoniales dans le systeme de reproduction.” Annales E.S.C.
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Jose Carlos, 1989. La Ilustracion en el Rio de la Plata. Cultura eclesidstica y cultura laica durante el Virreinato. Buenos Aires: Punto Sur. “Child abandonment. ” 1992. “Child Abandonment in European History: A Symposium.” Journal of Family History 17( 1): l-23. Cicerchia, Ricardo. 1991. “De amores y honores coloniales.” Nueva Sociedad 114: 65-69. 1995. “La Vida Maridable. Ordinary families in Buenos Aires, 1776-1850.” Ph.D. -’ Dissertation, Columbia University. Cook, Alexandra Parma and Noble David Cook. 199 1. Good Faith and Truthful Ignorance. A Case of Transatlantic Bigamy. Durham and London: Duke University Press. Donzelot, Jacques. 1979. La policia de las familias. Madrid: Pretextos. Fuchs, Rachel. 1984. Abandoned Children: Foundling and Child Welfare in Nineteenth Century France. Albany: SUNY Press. 1992. Poor and Pregnant in Paris: Strategies for Survival in the Nineteenth Century. New -’ Brunswick: Rutgers University Press. Garcia Belsunce, CCsar, ed. 1977. Buenos Aires, su gente, 181&1830. Buenos Aires: EmecC. Gillespie, Alejandro. 1921. Buenos Aires y el interior. Buenos Aires: La Cultura Argentina. Goldberg, Marta. 1976. “La poblacidn negra y mulata en la ciudad de Buenos Aires, 1810-1840.” Chiaramonte,
Desarrollo
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Halle, J. N. 1787. “Ages, regime et hygiene.” Encyclopedic
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Hunecke, Volker. 1988. I trovatelli di Milano: Bambini esposti efamiglie espositrici da1 XVII al XIX se&o. Bologna: II Mulino. Johnson, Lyman and Susan Socolow. 1980. “Poblacion y espacio en el Buenos Aires de1 siglo XVIII.” Desarrollo Econdmico 20(79): 329-349. Langenberg, Inge. 1979. “Urbanizacibn y cambio social.” Anuario de Estudios Americanos 36: 35 l374. Levaggi, Abelardo. 1977. Historia de1 derecho penal argentino. Buenos Aires: Instituto de Historia del Derecho. Luc, J.L. 1989. “A trois ans, l’enfant devient interessant: La decouverte medicales de la seconde enfance (1750-1900).” Revue D’Histoire Moderne et Contemporaine (36): 83-112. Martinez, Alberto. 1889a. Censo General de poblacion, edificacidn, comercio e industrias de la ciudad de Buenos Aires. etc. Buenos Aires. 1889b. “Buenos Aires 1580-I 855.” Cen.so General de la Ciudad de Buenos Aires de I&87. -. Vol. I. 1910. “Historia demografica de Buenos Aires.” Pp. 269-367 in Censo Gene& de -. Poblacion, Edijkacion. Comercio e lndustrias de la c&dad de Buenos Aires, Capital Federul de la Republica Argentina. Buenos Aires: Compaiiia Sud-Americana de Billetes de Banco. Mellet, Julien. 1823. Voyage duns I’Amerique meridionales depuis 1809 jusqu’en 1819. Paris. Moreno, Jose Luis. 1964. “Demograffa retrospectiva, Siglos XVIII y XIX.” Jornadas de Historia y Economia Argentina. Pp. 135-172. 1965. “La estructura social y demografica de la ciudad de Buenos Aires en el atio 1778.” -. Anuurio de1 lnstituto de Investigaciones Historicas. Facultad de Files. Fia y Letras. Universidad de1 Utodal 8: 151-178. Ransel, David. 1988. Mother of Misery: Child Abandonment in Russia. Princeton: Princeton University Press. Ravignani, Emilio. 1919. “Crecimiento de la poblacion en Buenos Aires y su campana (1726 18 IO).” Anales (Facultad de Ciencias Economicas), I( 1919): 404-42 1. 1922. “Un censo de la provincia de Buenos Aires de la Cpoca de Rosas, atio 1836.” Boletin -’ de1 lnstituto de 1nvestigacione.s Historicas I( 1): 4-12. Robertson, J. P. and W. P. Robertson. 1843. Letters on South America. London. Russell-Wood J. R. 1968. Fidalgos and Philanthropists. The Santa Cuss da Misericordia of Bahia, 1550-1755. Berkeley: University of California Press. Seed, Patricia. 1988. To Love, Honor and Obey in Colonial Mexico: Conflicts over Marriage Choice, 1574-1821. Stanford: Stanford University Press. Seoane, Marfa Isabel. 1977. “Instituciones tutelares del menor en el siglo XVIII (Notas para su estudio en el actual territorio argentino).” Revista de Historia de1 Derecho 5: 285-322. 1980. “Instituciones protectoras de1 menor en el Derecho argentino precodificado (1800-’ 1970).” Revista de Historia de1 Derecho 7: 175-209. Sherwood, Joan. 1988. Poverty in Eighteenth-Century Spain: The Wornerr and Children oj the Inclusa. Toronto: University of Toronto Press. Szuchman, Mark. 1988. Order, Family, and Community in Buenos Aires, 1810-1860. Stanford: Stanford University Press. Trelles, Manuel. 1859. Registro estadistico de1 estado de Buenos Aires. Buenos Aires. Zorraquin Be&, Ricardo. 1959. La organization politica argentina en el periodo hispanico. Buenos Aires: EmecC. 1973. “Las fuentes del derecho argentino, Siglos XVI a XX.” Revista de Historia de1 -. Derecho I : 309-352.
RICARDO CICERCHIA
ABSTRACT: The article deals with public attitudes toward family responsibility in early-nineteenth-century Bienos Aires, particularly as revealed in lawsuits occasioned by disputes over the custody of minors. The care and education of minors was ordinarily entrusted to parents, but death, incapacity, licentious conduct, poverty or abandonment often resulted in the minor being removedfrom parents and taken by others into custody of guardians or institutions of public welfare. The majority of the analyzed lawsuits resulted from an attempt by parents to recover their authority over their children. The lawsuits indicate that the racial, gender, social, and generational “disadvantages” of plaintiffs did not a priori determine the judgement, but rather that arguments for family stability frequently were decisive when heard by sympathetic judges. Disadvantages persons thus frequently argued sucessfully about the meaning of the family, as protagonists in the legal system that otherwise often marginalized them.
THE HUMAN SCENARIO’ Beginning with the first decades of the eighteenth century, the city of Buenos Aires, until then only a shabby clandestine port for the illegal export of silver from Potosi, became the setting for a continual “progress” within the framework development of the entire region of the Atlantic littoral. This was development as much economic as political, stimulated by commercial activity and its position as the residence of the authorities.* Ricardo Cicerchia is Professor at University of Buenos Aires, National Researcher at the CONICET, Consultant of UNICEF Argentina, and Coordinator of the Department of Social Sciences of the National Curriculum, Ministerio de Cultura y Educacidn, Argentina. He is currently a post-doctoral research-fellow at the Institute of Latin American Studies (ILAS) of the University of London. THE HISTORY OF THE FAMILY An International Quarterly, Volume 2, Number 3, pages 331-346 Copyright 0 1997 JAI Press Inc. All rights of reproduction in any form reserved. ISSN: 1081-602X
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As a consequence of this process, the city underwent important demographic transformations. The European and American immigration from the interior of the viceroyalty, in addition to the arrival of slaves from Africa and Brazil, was of decisive importance in the rapid growth of the urban population. During the period under analysis, the city went from 25,000 inhabitants to a figure close to 90,000 in 1850, and at least until the 1930s the urban population continued to increase at an annual rate of 2.2 percent (Censo General 1889; Ravignani 1919, 1922; Martinez 1910, pp. 272-277; Johnson and Socolow 1980, p. 343; Moreno 1965, p. 165; Besio Moreno 1939, p. 427; Garcia Belsunce 1977, p. 62; Trelles 1859, p. 67; Andrews 1980, pp. 66 and 15 1; Martinez 1889, pp. 432 and ff.; Goldberg 1976, pp. 75-99; Szuchman 1988, p.189). The increase in the number of residents produced significant changes in urban population density and in the physical boundaries of the city. At the end of the eighteenth century, the process of urbanization culminated in a phase characterized by an increase in construction, both public and private, and in organization and improvement of different activities of city life.3 This growth created certain favorable conditions in infrastructure that helped reduce the average number of persons per residence and increase the predominance of single-family living quarters. Married children moved to another dwelling, and there was little disposition to share a house among several related families. Besides, there was a gradual geographical distribution of the inhabitants according to socio-economic characteristics. Proximity to the public square signified having access to political, social or economic power. In the center-where the “decent” families lived-the group generally consisted of more than six members. In contrast, in the barrios, the number oscillated between four and five persons per family grouping (Langenberg 1979; Garcia Belsunce 1977, p. 50). According to “race,” the Buenos Aires population was predominantly “white” (a very flexible somatic concept among porteiio census takers). The volume of the “white” population recorded is a direct consequence of the “invisibility” of the popular sectors, and of the inclination on the part of the authorities to “whitewash” the “mixed castm” population. In the censuses, the castus appear less than they did to foreign travelers. Some analyses of the records do show an important Negro population. The Afro-Argentine population represented 30 percent of the total inhabitants of the city between 1780 and 1810, and somewhat more than 26 percent in the (incomplete) census of 1838, numbers quite distant from the testimony of contemporary travelers. To most visitors, the city seemed to possess an extremely high proportion of colored people. The imperfections in the census books ought to be balanced against the obviously impressionistic images of these contemporaries (Garcia Belsunce 1977, p.72; Andrews 1980, pp. 66-85; Gillespie 1921, p. 65; Mellet 1823, p. 24; Robertson and Robertson 1843, p. 13 1). The predominant type of family had a nuclear structure. The idea of the extended family with three or four generations living in the same family dwelling is inapplicable in many areas of Hispanoamerica, but particularly in the case of Buenos Aires. If we consider the censuses of 18 10, 1827, and 1855, the average number of people who constituted this type of domestic unit was 4.2, 3.7, and 3.9, respectively. More than 51 percent of the total families had between zero and two children (Szuchman 1988, pp. 78-79). With regard to the head of the household, according to a sample of the censuses cited, the average indicates the following types: married couples (3,015), the best represented group with 46 percent; with male head of household, bachelors, or widowers (2,250), 38 percent;
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and with female head of household, unmarried or widows (1,045), sixteen percent (Andrews 1978, p. 202). From 1830 on, and after a fairly stable earlier period, there is an evident trend toward fewer bachelors or widowers (from 43 percent in 18 10, to some 27 percent in 1855) and a significant increase in married couples (from 41 percent to 56 percent, during the same time frame). It is also important to point out a strong tendency toward marriage among the colored population. While only 2 1 percent of Black men between the ages of fifteen and 44 years were listed as married in 1810, 47 percent were listed as married in 1827. Among Black women, the number jumped from 22 percent to 40 percent in 1827 (Szuchman 1988, p. 202). Although the censuses do not give the age of the couples at the moment of marriage, the register of their ages displays two phenomena. First, the age difference between husband and wife decreased. While the census of 1810 shows an average difference of 11.4 years, in 1827 this average has decreased to 9.6, reaching 7.5 in 1855, always in favor of the husband. The second is related to women’s preference for earlier marriages, a model even more accentuated among women of the popular classes (Andrews 1978, p. 175). As regards the world of work, we can speak of a society whose base was composed of urban workers. The censuses of 1774, 1778, and 1810, as well as the census sample of 1827, describe a wide range of occupations, While the sector of craftsmen and both skilled and unskilled workers constantly increased throughout the period, and business continued at an important level, the accelerated process of urbanization reduced the rate of rural work (see Table 1). The occupational distribution of whites and colored people demonstrates the persistence of disadvantages for colored people. In 1810, while more than 47 percent of the whites were located in the three highest categories of the occupational pyramid, we find here only a single free man of color and no slavesP
TABLE 1 Occupational Structure of Buenos Aires According to Census of 1744,1778,1810 and 1827 1744 Rural, Fishing Artisans and Skilled Workers Commerce Professionals and Officials Non-Skilled Workers Total
145 316 255 438 246 1,400
Rural, Fishing Artisans and Skilled Workers Commerce Professionals and Officials Non-Skilled Workers Total
152 1,922 1,591 1,592 290 5,547
1778 10% 23% 19% 32% 18% 100%
264 768 791 383 549 2,755
3% 35% 29% 29% 5% 100%
340 3,469 2,524 616 880 7,829
10% 28% 29% 14% 20% 100%
1827
1810
4% 44% 32% 8% 11% 100%
Source: Johnson and Socolow 1980, p. 340; 1778 from Moreno 1964, p. 157; 1810 from Garcia Belsunce 1977, anexo 1; and 1827 comes from my own numbers of a census sample of 1827. Multiply totals by the factor of each racial category in economic activity (Andrews 1988, p. 40).
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Within this urban framework; the popular classes of Buenos Aires, without quite constituting “dangerous classes,” have been the protagonists of a certain lack of family discipline. Is it possible to measure the menace of such rebellions, unveil the faces of the victims and the victimizers and the discourse that these assaults constitute, to calculate the damages? During the eighteenth century there began to form the “public sphere.” This was the historical emergence of a common arena “detached’ from the social position of the subject. In the course of this process, Illuminism played a central role, culminating in the New World with the royal project of Carlos III. To attack the economic and political privileges of the Church, eliminate its immunities, and establish a definitive frontier, previously illdefined, between the temporal and the celestial, between the social and the sacred, were important components of the “new imperialism.” Beginning in the second half of the eighteenth century, for example, the Bourbons limited the independent or shared judicial functions of the ecclesiastical tribunals. The new secularizing tendencies of the eighteenth century led to the separation of spiritual and temporal powers. From 1800 onwards, the more secular concept of law predominated alsmost entirely. From then on, “evil actions” were obviously those that attack public order and individual rights, and the offenses against God only came into question when punishing them was in the general interest (Borah 1983; Cook and Cook 199 1). How did the conflicts of power between State and Church for family jurisdiction operate in Buenos Aires during that historical period? The growing interference of the Audiencia and the alcaldes in the “private” area, and particularly family matters, was denounced by porteiio bishops as a direct attack on the task of evangelization and on the social role performed by the confessional. This dispute has a long history of confrontations. The increasingly frequent disputes for places of honor in processions and public events, or the Church’s loss of the power in making use of the police force are only a few examples. The latter was not unimportant, to be sure. Without a secular arm, the ecclesiastical tribunal lacked the power of coercion over family disorders. In this period the universe of domestic disorders includes not only intra-familiar relationships, but also those that involve “family honor”-a concept that rested on two axes: the family “responsibilities” of the pater and the public virtue of women. Among the lawsuits, I will consider the trials occasioned by custody of minors and how these claims reflect the ordinary mentality about children.” During the eighteenth century, a minor was in a complicated legal situation6 According to the Partidm, the care and education of such persons-under the age of 25-was entrusted to the married or unmarried progenitors exercising their paternal authority. The mother’s right to custody was unimpeachable during lactation, and extended to the age of three. The norm awarded “guardianship” to mothers, who were to “nurse and bring up their children” until they reached the specified age. From then on, it was the father who exercised this power over his “children, grandchildren or great-grandchildren who were descendants of his children, there being a bond of reverence, subjection, and punishment that the father should exercise over the child.” On the other hand, the law explicitly established the exclusive right of the father to “reclaim by lawsuit the return or surrender of his child who is in someone else’s power, whether forcibly or voluntarily,” as one of the rights that constituted paternal authority [Archive General de la Nation. Buenos Aires, Argentina
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(from here AGN), Tribunal Civil, 0 8, Legajo 4, 18321. However, a more attentive look at the lawsuits demonstrates that such patriarchal power had, at least, nuances. There were no fundamental differences in the treatment of the subject of tutelary institutions for minors until the ratification of the Cddigo Civil in 187 1. References in SpanishIndian law during the entire first half of the nineteenth century are unequivocal in this respect (Zorraquin Bec6 1973, pp. 331-332). Only with regard to attaining adult status (habilitucidn de edud) does the preceding legal tendency change. Beginning with the ratification of the law of November 17,1824, minors under 25 years of age were authorized to appeal to the Supremo Gobiemo to solicit adult status in order to administer their property (Levaggi 1977, p. 297). In innumerable cases, such authority could not be exercised. Death, incapacity, licentious conduct, poverty, or abandonment decreed the necessity of keeping the minor in custody, surrendering him into other hands or protecting him. In such circumstances, the exercise of paternal or proprietary authority, according to whether it concerned free men or slaves, in fact became the responsibility of guardians (for administration of property), custodians, or institutions of public welfare (Seoane 1977, pp. 285-322; 1980, pp. 175209). The majority of our lawsuits resulted precisely from an attempt to recover a delegated or expropriated “paternal authority.” The rhetoric of “surrender” is characterized by a large dose of theatricality. Misfortune, irreparable circumstances, fatality, providence, characterized by “state of necessity.” For example, in the Manuela Cepeda’s complaint against Don Mariano Falcon in 1832, she said: The motives that obliged me to separate my two daughters from my “maternal bosom”-an act so painful that the heart cannot transmit it to the pen, but must leave it to the wise and prudent discernment of the Judge!-were the death of my first husband, the girls’ legitimate father; the lack of resources to support us; and not wanting necessity to draw my daughters into prostitution (AGN, Tribunal Civil, C 43, Legajo 19, 1835). The contracts of apprenticeship, tutelage, and hiring out, which survived into the republican period, are also inscribed in this mechanism. Such was the case of Nicolasa Ib%iez, who, confiding in the good reputation of the family Beruti (something which she later regretted), signed a contract ceding her son Pie to them in the following terms: To educate Pio, support him in terms of alimentation and clothing to aid him in sickness and busy him in services appropriate to his class, to correct him humanely in his childish aberrations and make him a good Christian, and when he reaches adulthood put him into some congenial lucrative occupation, arranging this to the greatest advantage to spare him suffering (AGN, I 7, Legajo 4, 1828-l 83 1).
In many cases, contractual clauses were stipulated according to which parents surrendered their children, while agreeing, in exchange for the education offered by the trustees, that the children would perform unpaid services for them until they reached their majority, married, or failed to fulfill the conditions established in the act of surrender. In case the “surrender” was legalized by a contract, almost always in the presence of the Defensor de Menores, the rights and obligations of both parties were stipulated in it. In the document that certifies one of these surrenders, Manuela Cevallos declares that:
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My daughter being without a father and 1 lacking means to educate her, for my subsistence depends on domestic services in the house where I am hired, having the most complete satisfaction and acquaintance with the honorable character and Christian sentiments of Don Pedro Gada, it is my will to surrender her to him so that acting as a father he can take charge of providing her with a socially useful education, teach her to sew, iron, and read, and she is to be under his power until she reaches adulthood, according to the advisement of Defensor de Menores (AGN, C 20, Legajo 9, 1822-I 823).
As in the previous declaration, in most cases the progenitors themselves named or selected the custodian. In special circumstances, they justified the decision to voluntarily surrender their legitimate or natural child. The law of Purtidus itself emphasizes that the essential function of the “tutor” (a generic name for the custodian of a minor) was to “protect the person of the child and his goods.” That is, “to guarantee the satisfaction of the material, spiritual, and intellectual needs of minors.” The “obligations” to teach them the rudiments of religion, to provide them with housing, clothing, and food and to teach them some reading or some art or trade were indispensable responsibilities, independent of the family or social context that created the situation. The girls were to learn occupations “appropriate to their sex,” while young men were oriented toward learning mechanical trades. As compensation, the custodians in their turn acquired the right to benefit from their services and to exercise paternal authority over the minor, in some cases, that authority being transferred expressly. On the other hand, the depositor agreed not to remove the minor until he or she came of age and reserved the right to dispose of him in case the stipulated obligations were not fulfilled. This reserve is exactly what lies at the origin of a series of disputes for custody among the parties; when the child reached a “productive” age, the custodians were accused of a failure to fulfill their obligations-a well-founded and provable accusation in some cases, and, in others, one produced by the progenitors’ desire to recover young people who could, at a “productive age,” be hired out for more lucrative activities. The failure to fulfill these obligations resulted in a lawsuit in most cases, or in the reformulation of the agreement or the annulment of the surrender. This was the nature of a case filed by Maria de1 Rosario Fernandez, “a free parda widow” against Dofia Francisca Castro. She declared that ten years ago she gave her daughter Florencia to DoAa Francis0 Castro “to educate and support her. Far from educating her according to our verbal agreement, . has neglected her completely, to the point that my daughter doesn’t even know how to pray, because she spends all her time doing the hardest work in the house, which is: drawing water for baths, cooking, etc. Since I want to have my daughter with me, I asked this woman for her and she refused to surrender her.” The accused responded that when the pardu Maria de1 Rosario asked her to educate her daughter and bring her up, she had resisted the idea, saying that when the girl was old enough to be of use to her, the mother would take her back. The mother had sworn not to take her away. But just when the mulatilla was old enough to be useful, the mother appealed to the Juez de Paz of the Parroquia de1 Socorro, who ordered the girl returned to her mother. In spite of the possibility that the original cession had not been made in good faith, this is a typical decision handed down by judges in such a case (AGN, Tribunal Civil, F 16, Legajo 8, 1837-1838). The judicial proceeding began with the presentation of the claim, notification, a hearing at the Ministerio de Menores, and proof of the hearings in which the parties generally
Minors, Gender, and Family
337
resolved the legal case through negotiation or amicable compromise. During the period of Independence, the presence of the Ministry was practically indispensable. It, along with the Jueces de Paz, was charge of hearing the accusations. Among the most frequent complaints are abuse, failure to comply with agreed-upon obligations, abuse of authority, and exploitation. In a combination of such complaints, Manuela Castro “de casta morena,” reclaiming her daughter Juana Agustina from her custodian Don Jose Castro, recounts that: At my daughter’s present age, due both the natural pity her helpless state inspires and to fulfill sacred obligations, she should be instructed in Christian doctrine, taught the duties of her sex according to her class, and treated according to humane standards and
the philanthropic spirit of the law. On the contrary, she is presently without the necessary foundation in religion; she does not know how to make a confession, has had no instruction at all in things indispensable for her sex and worst of all, has been exposed to intolerable cruelty and maltreatment, since she is frequently punished with a bergazo de turo [Archive Historico de la Provincia de Buenos Aires. La Plata, Argentina (from here AHPBA), Juzgado de1 Crimen, 34-S-92, Expediente 641.
The neglect of female children’s religious education was one of the most effective arguments for obtaining devolution. The proof of such neglect and the existence of child abuse or exploitation were almost certain to result in the return of the child to its original family. Decisions taken in the Juzgado de Paz sometimes are transferred to the Jueces de Primera Instancia, who basically confirm the decision after soliciting detailed information about the incident. Rarely are appeals made to the Cdmara de Justicia, basically for two reasons. On the one hand, as we pointed out, negotiation plays a prominent role in resolving this kind of dispute. In the second place, sanctions implied a type of moral condemnation that was difficult to revoke. The minors who occasioned lawsuits were put under supervision. Although there were several types of supervision (depdsitos), in fact they concerned “custody” of quite different kinds, all subsumed under the title of legal supervision. These could be voluntary or involuntary, judicial or extra-judicial, gratis or compensated. Frequently, once a lawsuit intended to annul the right of upbringing, tutelage, or education of a minor was instituted, the child in question was provisionally entrusted to a house “of rectitude” until such time when the suit was decided. An example of this kind of supervision is the one solicited by Maria Ramona Cabral, from the Judge of district 14. In her custody dispute with her daughter’s godmother, she “demands” that her daughter be placed in the house of canon Robles who is, according to the petitioner, “absolutely trustworthy” (AGN, Tribunal Civil, C 50.) Status as a minor meant something more than an individual’s legal category; it was also a social construction. Scholastic theology and philosophy continued to be used as parameters for teaching, but the lack of interest in their contents as well as in their old-fashioned scientific methods was evident and their predicament diminished as new theories developed in the fields of physics, political economy, aesthetics, education, and epistemology throughout the eighteenth century. In this respect, within the Rio de la Plata area, Rousseau, Copernicus, Galileo and Locke, among others, were very influential (Chiaramonte 1989, p. 92). Under the influence of ideas stemming from the Enlightenment, during the
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eighteenth century a voluminous literature on the preservation and education of children begins to appear. On the one hand, there was a tendency to reinforce the protective role of the State, and on the other, to place education within a more general debate on the social perception of infancy as an evolutionary stage in the formation of socially useful individuals (Donzelot 1979, pp. 14-18). The echoes of this debate were not long in resounding into the New World. Very soon, in 1779, when the new authorities had just been installed, the first Casa de Nirios Expdsitos opened in Buenos Aires. Along with this institution, the Defensoria de Menores, as we have already indicated, would play an important part in the protection of minor children. From the very beginning, in such documents as the CMula Real of 1804 about “El modo de hater una cesdrea,” in taking every step to assure the spiritual and corporal life of of the young, and in recommendations to preserve and educate them during childhood, the government showed its concern about children (AGN, Fondo AndrPs Lamas, legajo 34, 1804-l 807). This was a very extended phenomenon. The Decreto Real of January 5, 1794 about civil rights of expdsitos and the “Recomendaciones complementarias a todos 10s ohispos y arzobispos de1 reino,” signed by Manuel de Godoy in 1796, marked the high point of the Bourbon ideology about the topic (Fuchs 1984 and 1992; Hunecke 1988; Ransel 1988; “Child abandonment” 1992; Sherwood 1988; Russell-Wood 1968). In 18 17, Doctor Juan Madera, surgeon of Casa de NiAos Expdsitos, declares that “the society, and especially poor people, has to improve its attention toward children, because if old people cost a lot of money and work, children, the future of the society, deserve much more.” In general, in the ruling class discourse, the problem was linked to the lack of morality of theplebeya population (AGN, El Censor: Buenos Aires, 12 de junio de 1817). The periodicals of the time did not neglect the subject, either. In its editorial, LL>Samigos de la patria y de la juventud, one of the most important newspaper in town, appropriated the currently fashionable principles: Fortunately our self-love leads us to take an active role in the interests of our own children: children who tomorrow will till our fields or propagate our species, dedicate themselves to the arts, business or defend our territory [AGN, Los Amigos de la Patvia y la Juventud, N. I, 24 November I81 5 (midnight edition)].7
This was the climate of the time, but who put the legal mechanism into play in these cases, and what were the motives? Out of the total of cases examined (94), 85 percent of the complaints presented fall under the heading of reclamation and/or custody of minors. Out of the total of 75 sentences recorded, only seventeen are unfavorable to the plaintiffs, who were nine mothers, seven fathers, and a slave-owner, while the accused were seven tutors, four officials, three mothers, two fathers, and a slave-owner (Cicerchia 1995, pp. 144-145). The disputes involve a total of 97 minors. Out of these, 63 percent were female. Few proceedings declare the ethnic group to which the children belonged. Few records of proceedings (eleven) declare the ethnic group of the child. Seven were female minors (three castas, two freed Black women, one Black slave, and one Indian), and four were males (three castas and an Indian). In those proceedings that declare previous “surrender” of minors to custodians or tutors (63), out of a total of 40 female minors delivered, the trustees were male and female in equal numbers. Of the 23 male minors, 78 percent were accepted by male receivers. In
Minors, Gender, and Family
339
these cases, the surrender was made on the basis of an apprenticeship agreement for some artisanal trade or profession. Although such contracts could become relationships between masters and apprentices, it continued to be the circumstances of the minor and the family demands that delimited the agreement; for example, the concern of Maria Magdalena Conde claiming for the health of her son against his master Eustaquio de1 Campo: First reason, the boy suffers from enuresis and as it is inevitable that he will wet at night, he sleeps over that wetness and no care is taken to dry the mattress, so that he has to lie down in a puddle: without the master, nor the supervisor, doing anything about this abuse. The remedy for such a grave fault is not cured by daily punishment from the master. This is why the boy is malicento, pale and has pains in his bones, as the doctor confirms (AGI, Indiferente Genera/, Legajo 11).
Also, out of five “surrenders” to institutions, four corresponded to female minors. If we take the total of “races” declared by the actors (120), the percentages of whites and nonwhites are 66 percent and 34 percent, respectively, percentages not very different from the 70 percent and 30 percent produced by the sample of 1810 (see Table 2). Among the plaintiffs (59), the percentages increase to 44 percent and 56 percent respectively, for the same groups. In contrast, considering only the accused (61), whites form 87 percent of the total, more than six times the number of nonwhites. As far a declared origin is concerned, the natives of the city surpass 86 percent, a proportion that is far higher than the census proportion of 53 percent. Only twelve of the cases are suits between couples; of those, eleven are formalized marriages. According to the relation to the minor, out of the total of fathers and mothers (89), 33 percent declare themselves as single parents. Among the mothers (55) more than 34 percent are single. Similar percentages appear in regard to the fathers. Out of the total (34), 61 percent are legitimate. Women constitute more than 58 percent of the total plaintiffs. Within this group, the most important groupings are legitimate mothers with 49 percent, followed by single mothers with 34 percent. Among those who declare ethnic group (33 percent), slightly over 36 percent are white, 30 percent free Black women and 27 percent castus. Of those who declare origin (27), slightly more than 88 percent are natives of the city. Of the males in this group, 42 percent of the total number of plaintiffs, 45 percent declare themselves legitimate fathers and 29 percent single fathers. Only 26 percent declare ethnic group. Of those, the whites represent close to 54 percent, the custus 27 percent and free Black men barely surpass nineteen percent. 68 percent of those ,who declare origin (22) are natives of the city. In this kind of lawsuit, the males also form the largest group among the accused, with a total of 56 percent. Of those, the ethnic majority is again the whites, with 91 percent. In terms of relationship, the tutors or custodians facing lawsuits amount to almost 70 percent. In terms of origin, 60 percent correspond to port&x, and an important 23 percent to Spaniards. Among the women in this column, 80 percent belong to the white group, 50 percent to custodians, 28 percent to legitimate mothers, and almost 90 percent to the native-born. Information about profession is less often available than the data cited above. Among those plaintiffs who specify it (27) the distribution tends toward the lower strata of the
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TABLE 2 Lawsuits for Custody of Minors According to Actors City of Buenos Aires, 1776-l Plaintiff
Defendant
850
Total 84
Male Female
38
46
53
36
89
Total
91
82
173
Plaintiffs Male
Female
Total
I. Race White
14
Indian/Mixture
1
Castas
7
Free Blacks
5
Slaves
-
Non-Specific Total
II. Relationship Legitimate Mother
12 -
26 1 16
10
15
1
1
12
20
32
38
53
91
26
26 18
11
Illegitimate
Mother
-
Legitimate
Father
17
18 -
Illegitimate
Father
11
-
17
Tutor/Guardian
3
3
6
Others
7
6
13
38
53
91
B. Aires Camparia (rural Bs. As.)
15
24 -
39
Other States
-
Total I I I. Origin
5
5
1
1
2
1
3
Spain
-
1
1
Non-Specific
16
26
42
Total
38
53
91
Other Hispanic Countries
IV. Profession Professionals
-
Merchants
-
Artisans
-
Independent
2
Workers Laborers
-
2
2
2
4
Domestics
2
Soldiers
3
Without Profession
3
2
5
Non-Specific
19
45
64
Total
38
53
91
-
3
(continued)
341
Minors, Gender, and Family TABLE 2 (Continued) Defendants Male
Female
I. Race Whites
32
21
Indians/Mixture
-
-
Castas
2
4
Free Blacks
1
1
-
Slaves
Total 52 6 2
-
-
Non-Specific
11
10
21
Total
46
36
62
II Relationship Legitimate Mother
-
10
10
Illegitimate Mother
-
1
Legitimate
Father
Illegitimate Father Tutor/Guardian
4
-
2
-
32
1 4 2
18
50
8
7
15
Total
46
36
82
I I I. origin Buenos Aires
18
17
35
Others
CampaAa
4
-
Others states Others Hispanic Countries
1
-
-
4 1 -
7
2
9
Non-Specific
16
17
33
Total
46
36
82
Spain
IV. Profession Professionals
-
6
Merchants
-
4
Artisans
-
Independent
6 2
5
Workers 1
-
1
Soldiers
1
-
1
Without Profession
1
-
Domestics
Non-Specific Total
1
25
33
58
46
36
82
Source: Cicerchia 1995, Chapter 5.
social pyramid, taking self-employed workers as the dividing line between the middle and lower classes. Precisely the opposite is true of the accused. Allowing for the racial and professional data and the result of the lawsuits, the tendency seems to reflect a “distribu-
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tion” of minors from the lower to the upper part of the social structure, and the existence of a judicial mechanism that lends itself to “reclamation.” Parents, even under conditions of illegality, could recover their children. A reasonable argument transformed them, particularly mothers, into subjects with legal rights. As we observed, that only seventeen cases unfavorable to the plaintiffs demonstrates that the legal mechanism was very open to the claims.
CONCLUSION:
FROM THE BED TO THE COURTHOUSE
The discussion on the ideology of marriage and the cultural values governing the family is just beginning in the Rio de la Plata, an area that is particularly important, as it is a region of late colonial development and rapid integration into world capitalism. During the eighteenth century, the city of Buenos Aires became one of the most important cities among the overseas colonies. It was gradually transformed from an almost marginal area, basically sustained by contraband, into a strategically important commercial, military, and political center. From 1800 onward, the city was one of the most dynamic urban centers in the region. Its urban development was accompanied by rapid demographic growth, an intense process of secularization of public institutions, and a chronic political instability. During the late colonial period, as a result of the natural demographic growth and of immigration, the city witnessed not only a constant increase in population, but also the transformation of its society’s racial characteristics. Although we are referring to a predominantly white society, during that period the population of color reached important numbers. In the same period, secularizing tendencies bring about the emergence of strictly secular regulatory apparatuses at the institutional level. The State, through official agencies, redefines and controls the mechanisms of social reproduction. From then on, the exclusive jurisdiction of the Church in family affairs suffers a marked contraction. The colonial crisis was followed by political convulsions. The need for order determined the system of social control, which could be defined-at the very least-as less than solid, more permeable to a new urban atmosphere. Despite the imperative necessity of reproducing within the family universe a continent that would be the mirror image of the hierarchical structure of society, the pretension to an steely family “orthodoxy” was no longer an essential proposal for the establishment. Despite the fact that some authors maintain that the greater state intervention in “private affairs,” and the consequent decrease in the power of the Church, signified a terrible blow to the “free exercise” of conjugality and broke a certain “existing equilibrium” between the sexes (Seed 1988, especially Chapter 7) even when the sentences and the risk of publicly exposing the family “troubles” are taken into account family justice was an appropriate method of vindicating the rights of compensation of the socially most vulnerable individuals. The type of lawsuits analyzed here indicate, at least, that the racial, gender, social, and generational “disadvantages” did not u priori determine the sentence in the case. The necessity for family stability frequently meant that voices lacking social power, and on the margins of legality, argued about the meaning of the family as protagonists in the legal system. One of the consequences of such a “fissure” in the traditional family model was a certain discursive plurality about custody of minors legitimated fundamentally by female voices. Poor people, especially women, did not seem to play the part required of them by
Minors, Gender, and Family
343
their marginalization. On the contrary, they confronted what they perceived as unjust, demanding judicial intervention. In the family world, the wife, and particularly the wifemother, axis of the domestication of family life, possessed an almost inexpugnable “public credibility.” Although this presence did not result in a concrete redistribution of social power, the majority of our actors do not appear to play without alternatives. The vi& maridable, even under precarious conditions of legality, transformed them into subjects with legal rights. In this juridical and ideological context, the phenomenon of circulation of poor children is a cultural practice stimulated by the social transformations of the city of Buenos Aires. In other words, family strategies of the poor worked within an alternative moral logic different from the discourse of the ruling classes (and its “mercenary mothers” vision), a very instrumental social habit with the possibility of a “rescue” (Bourdieu 1972, pp. 1105 1127; Cicerchia 1991, p. 67). What circumstances favored the pleas of the deceived, or simply practical, female? Various theories try to explain this phenomenon. Some point to a state of “mobilization” against male oppression. Others connect it to rigid social distances that made it impossible to enforce the socialization of the dominant values of subjection and obedience, or-closer to our own interpretation-it is possible to attribute it to the social space allotted to women in order to carry out the task of guaranteeing new forms of domestic order. Although there is some truth in all of these theories, it is certain that most of these “active” women, between reputation and claim, choose to fight for what is considered right for them. Natural parents, cohabitants, and illegitimate children were habitual actors on the judicial scene. Among them, women are those who most often filed lawsuits. The illegality of the marital state, condemned only when it was excessively flagrant, did not block the presentation of a claim or aggravate the accusation. The tribunals were not closed to the nonwhite population of the city. The group of castus most often brought their conflicts into the public arena. While close to 60 percent of the plaintiffs belonged to the lowest sectors of the occupational structure, among the accused, the middle sectors were most highly represented. In this sense, the judicial apparatus also fulfilled its mission as a social safety valve. Thus the domestic warfare of ordinary families could be settled in a public space, in which the rules of the game transcended social rigidities and even legality itself. The discussions about the responsibilities and rights of the paternal power suggest that it was not-at least not exclusively-the legal definition that shaped it, but the “necessities” of a family order and social demands. This universe of social negotiation did not signify a revolution in values, but simply that behind every battle about the meaning of family, there existed a community that justified-among other habits-the “circulation” of minors. In the process of secularization of the mechanisms of social reproduction that began with the Bourbons reformist tendencies, less inquisitorial systems emerged that redefined public space. The judicial apparatus then constituted as an instrument of social control and of mediation among dominant cultural models, the enlightened “optimism” of the moment and the family “common sense” of the popular classes. In the Courts, our actors designed a singular family discourse; they denied indifference of affection, they defended their strategies; they confessed acts enforced by circumstance and-particularly the women-pragmatically manipulated the logic of family honor, playing the socially assigned role of guardians of an order, often beyond the pale of legality. It was a rhetoric that adapted itself out of self-interest to the judicial hearing, utilizing a
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simple, realistic, and emotive subtext. A staging within the moral and legal prescriptions regulating “private life,” which, by dramatizing misfortune and revindicating the right of petition, perhaps legitimized “old customs.” Submitting themselves to the traditional family values of the Catholic ethic, and acknowledging both gender and racial social hierarchies, the “thirst for justice” of these popular classes found, in the intentionally conciliatory viewpoint of the judge, a space for negotiation. It was in the courthouse, and not the confessional, that the popular code was able to modulate the idea of the family.
ACKNOWLEDGMENTS I am grateful to Fundacion Antorchas, Buenos Aires, for supporting my work during the time I was pursuing my research in Argentina. Also I would like to thank my colleagues at the Seminar Grupo de Fumilia, Latin American History Program (PROHAL), University of Buenos Aires, with whom I discussed some of the issues covered in this article. Finally, my gratitude to the editors of The History c$ the Family: An International Quarterly for their insightful comments. A preliminary version of this article was presented at the sixteenth Congress International des Sciences Historiques, Montreal, 1995.
NOTES I. Out of a total sample of 394 trials, all of them corresponding to the urban area of Buenos Aires and related to middle and lower classes of the city, custody of a minor represents the major motive for claims (Cicerchia 1995, Chapter 5). 2. Before the creation of the viceroyalty, Buenos Aires was a governmental seat on a par with Tucuman and Paraguay. Although the city was not officially declared capital of the district until 1695, from the beginning of the seventeenth century it served as the residence of civil and religious authorities. Until 1778. the district was administered by 36 governors who often bore the title of captains general. The government was under the jurisdiction of the viceroy of Peru. On the history of the political organization of the area see Zorraquin Beck 1959, pp. 149-155. 3. Suffice it to mention the founding of the &.~a de Comedias, the first press, the creation of the Tribunal de1 Protomedicato, the Colegio San Carlos, the installation of public lighting and paving, works on the Paseo de la Alameda, the Casu de Nirios Exprisitos, the improvements in the bullring, etc. 4. Numbers based on census samples of 1810 and 1827. Totals are coming from multiply the racial groups by the factor number indicated in his Index (Andrews 1988, p. 40). 5. Out of a total sample of 394 trails, all of them corresponding to the urban area of Buenos Aires and related to middle and lower classes of the city, custody of a minor represents the major motive for claims (Cicerchia 1995, Chapter 5). 6. The debate about legal status of children was linked to the new ideas about human nature and the renovated physiology during the eighteenth century. The most representative works on the then current physiological ideas about childhood is Boerhaave 1759 and Halle 1787 (see Luc 1989, pp. X3-1 12.) 7. Similar articles appear throughout the period in El Griro de1 Sud, 8 September I8 12; El Censor, I2 June 1817; LLIAbeja Argenfina, N.6, 15 September 1822; and El Espiritu de In Federacirirz Republicana. Periddico Politico y Literurio, N.2, 27 October 1826.
345
Minors, Gender, and Family
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