Lo Extrajudicial: The Space between Court and Casa in the Spanish Empire

In 1775, a key figure in the judiciary of the Spanish viceregal capital of Mexico City argued that women’s formal cases against husbands for abuse or in other marital matters were not really lawsuits. Yes, the suits procedurally aligned with codified law that permitted women to file criminal charges for men’s excessive punishment and, certainly, women often submitted the proper written documentation to the correct authorities. Still, he said, these legal actions were different from lawsuits since often women went to judges not as magistrates but rather as “paternal resources,” and could—and often did—drop their suits.

This commentary captures a key distinction between lawsuits and popular uses of the law common in the eighteenth-century Spanish empire: sometimes litigants, especially subordinates such as women, slaves and commoner natives, went to the courts in a semi-formal manner, entering a sphere of legal interaction they called lo extrajudicial. Their cases were intended to provoke summary verbal decisions, out-of-court settlements, face-to-face encounters, or public declarations. But they were not intended to lead to formal trials and sentences.

My paper focuses on opening petitions in litigants’ cases against domestic authority figures in 18^th-century Spanish empire-- husbands, slave masters, and native chiefs. It explores how subordinate litigants ended up before magistrates and what they hoped they could achieve. It proposes methods for reading lawsuits and petitions attentive to an early modern culture of law that provided wide space for community-based, extrajudicial solutions—an approach that helps historians break from formal, rights-centered understandings of the law and to better capture the fluid relationship between home and court in the past.