Oaxaca's neighbourhood magistrates, 1796: a police ordinance that tells the police to stay out of houses
The city of Oaxaca was divided into quarters in 1795 and given unpaid neighbourhood magistrates, with a printed ordinance that sets out what they could do. It obliges them to push parents to school their children, to place orphans, to keep the streets swept — and it forbids them to pry into what passes inside houses, on the ground that general enquiries are prohibited by the laws of the kingdom and that families are not to be defamed over domestic gossip.
Why this wins its question: Bourbon urban reform in Spanish America is usually described from the capital and in the abstract — quarters, lighting, a police of morals — with the provincial detail left to specialist monographs behind paywalls. This is the ordinance of a provincial city, opened page by page in its 1796 printing: four major quarters and eight minor ones walked corner by corner against a plan, biennial unpaid magistrates forbidden to celebrate their own election, a registration book of every street and house number, and the duty to press parents to school their children with the public school still only "para establecerse". The article that makes it worth reading is the one nobody quotes: a colonial police ordinance instructing its own officers not to enquire into what passes inside houses, because general enquiries are forbidden by the laws of the kingdom and because it is not just to defame families over domestic gossip. The costs are on the same pages — a movement-notification regime with a six-peso fine, a duty of surveillance over drinking houses, and the ordinance's own admission that earlier orders of the kind had failed.
Claims
Every assertion below is bound to registered sources and carries its own confidence. Weight them; do not treat the page as uniformly authoritative.
The order came down from the viceroy and the rules came back up from the province, and the printed volume carries both. It opens with the superior order of the viceroy the Marqués de Branciforte, dated Mexico 24 October 1794 and addressed to the intendant of Oaxaca, instructing him to have a plan of the city and its barrios drawn at once, to take the necessary information from practical persons and from the ayuntamiento, to divide the city into major and minor quarters, and to draw up the ordinance for the new establishment; the viceroy sent with it a copy of the ordinance formed for the capital together with its index of streets and two separate regulations, on street lighting and on pulquerías. The ordinance that follows is dated Oaxaca 18 December 1795 and signed Mora, and was printed in Mexico by Mariano de Zúñiga y Ontiveros in 1796.
The division itself is stated in the first article and mapped. In consequence of the superior order the capital was divided into four major quarters and these subdivided into eight minor ones, "como se puede ver en el Plano adjunto en que están delineados"; the first major quarter was to remain in the care of the corregidor intendente and the second under the teniente letrado, the boundaries of each being walked street by street and corner by corner in the text, with lettered references to the plan.
The powers granted are deliberately small, and the ordinance explains why. Article 15 states that the principal object in establishing these neighbourhood magistrates is to give some assistance to the judges "y de ningun modo á limitar ó restringir su autoridad". Article 16 grants them jurisdiction, "pero ésta no será tan ámplia como la de los Jueces mayores, sino limitada á un conocimiento puramente sumario y en puntos criminales": they may arrest offenders caught in the act or in flight and take the preliminary examination, on the express condition of reporting with it to their own superior judge as soon as it is concluded, and graver crimes such as a homicide or a dangerous wounding go straight up.
Schooling is treated as police business, and the ordinance says schools were still to be built. Article 28 traces idleness to the indolence of parents who neither educate their children nor think of settling them in a trade, so that grown and unfitted they seek their living by wicked means, and charges the magistrates to press fathers and mothers to apply each child to the trade it most inclines to as soon as it is of an age. Article 30 applies the same machinery to schooling: parents are to be obliged to send their children to school, "ya sea á la pública que está para establecerse, ó ya sea á alguna otra privada, con tal que en ella se cuide de la buena enseñanza y educacion", and the magistrates are to procure that schools be established where there are none.
Girls are named in the same articles, in a sentence worth quoting exactly. Article 31 opens "Supuesto que á la sociedad no le interesa ménos la buena educacion de los Jóvenes que la de las Mugeres" and requires the magistrates to see with the greatest efficacy that in the district of each quarter there be maestras de amiga who teach girls not only their first letters but Christian doctrine and the exercises by which they might afterwards seek their subsistence in comfort, reporting to their judge what they did in the matter. The reasoning of the article is stated in terms of what society needs, not of charity; the skills named for girls remain the ones of their own sex.
Orphans and the shamefaced poor each get an article. Article 32 orders that where children of the quarter are left orphaned by the death of their parents with no grandparents or kin to take them in, the magistrate recommend them to the pious persons of the same quarter and persuade those persons to receive them into their houses, "especialmente si fueren Doncellas", on the argument that no work is more acceptable in the eyes of God than preserving such children from the danger to which their want and their few years must expose them. Article 33 turns to the unmarried women and honest widows of full age known as pobres vergonzantes: the magistrates are to see that nobody insults or tramples them, to commend them to charitable persons for alms, and to procure that they be preferred in the sewing and spinning work that comes up.
Street cleaning is made a duty of the residents and given a deadline. Article 34 makes the paving and cleanliness of the streets one of the most important objects of a good police, forbids their being fouled or broken up under the penalties already published, and obliges the neighbours to have their own stretch of street swept and watered at least on the Sunday, before eight o'clock, "en cuya hora deberán estar todas limpias".
The limits placed on the magistrate are the most unexpected part of the document and are set out in three consecutive articles. Article 35 warns that although he is given authority to contain every disorder in his quarter, this does not authorise him "para ir á turbar la paz y armonia de las familias, ni impedir las reprehensiones y correcciones que un Padre de familia puede hacer dentro de su casa". Article 36 forbids him to meddle by curiously enquiring into what passes in houses and generally into anything that cannot disturb public order, "así por estar prohibidas las pesquisas generales por las Leyes del Reyno, como porque tampoco es justo infamar las familias por chismes caseros y de poca monta". Article 37 directs that where some excess or neglect is observed in a private house the head of the family be warned of it secretly, taking care not to press matters too far nor to restrict people's liberty so much that the magistrates are presumed to want to govern even what does not concern them.
Against that stands the registration regime, which is the same document's cost. Article 41 gives each magistrate the section of the padrón for his quarter so that he may draw up a corrected one and have individual notice of every family under his care, charging him to take exact account of their estates, conditions and trades "sin distincion de Sugetos, por privilegiados que sean"; and, because tenants move often, requires everyone — and the clergy "de ruego y encargo" — to give notice before moving, under penalty of six pesos, or of as many days in gaol for those who have not the money, to the magistrate of the quarter they live in, stating the quarter they intend to move to with the name of the street and the number of the house, so that it may be entered in the book he is to keep, the magistrate of the receiving quarter doing the same. Article 42 requires that book to be a folio one, listing every street of the quarter with its house numbers, renewed when the numbers wear away.
The drink trade is watched, and the text admits the watching had not worked. Article 21 places pulquerías and vinaterías first among suspicious places, as those where most disorders are ordinarily committed, and orders frequent visits to them; article 22 requires the magistrates to observe the number and quality of those attending, the quarrels and their causes, and whether the houses close at the proper hours, reporting all of it to their judge and providing themselves only in what is executive. Article 23 states that in spite of the orders already issued by the superior government "no se han podido destruir las casas de tepacheria y de otras bebidas prohibidas", and asks the magistrates' zeal to extirpate them entirely.
Privilege is handled by dividing arrest from trial. Article 48 provides that if the magistrates find a soldier or anyone else enjoying a fuero in the act of offending, they are to secure him and hand him over to the judge to whom the cognisance of his cause belongs, so that he may punish him. The privileged person keeps his own forum and loses his immunity from being seized in the street.
The office itself is regulated against expense and display. Article 56 makes the posts biennial and leaves those who have served at perfect liberty to excuse themselves if re-elected, provided three years have not passed; article 57 requires the magistrate to reside within his own quarter and denies him the freedom to keep his lodging elsewhere; article 58 strictly forbids the magistrates, under penalty of a hundred pesos, to hold refreshments, banquets, dances "ni otra demostracion de gastos, por pequeña que sea, con motivo de su eleccion ó salida". The final article concedes that many more provisions might have been added and leaves the magistrates and their superior judges to supply with discretion whatever has been omitted, keeping to the spirit of the ordinance.
What the source proves needs stating with it. This is a printed ordinance signed by the intendant of Oaxaca in December 1795 and published in Mexico in 1796: first-hand evidence of what was ordered for the city and of the chain of command that produced it, from a viceregal order of 1794 modelled on the capital's own arrangement. It is not evidence that any of it was done. The volume prints no returns, no census totals, no list of schools founded and no record of a single case; its one statement about outcomes is a confession of failure, that the prohibited drinking houses had survived the orders against them.