The politics of punishment and war : law's violence during the Mexican Reform, circa 1840 to 1870

What rights do citizens have when confronted by the state’s repressive power? A citizen’s right to life – qualified or not – and co-existing with the death penalty reveals the legal limits to and fatal capacities of state power. In nineteenth-century Mexico questions about capital punishment dogged liberals, who sought to restrain state violence through individual rights. Newspapers, official and personal archives, almanacs, travel accounts, and illustrations illuminate a little-known dispute about the death penalty amongst the political class in Mexico City and beyond from 1840 to 1870. These sources reveal that the threat of disorder ultimately allowed liberals to forego restraining law’s violence. After several centuries of capital punishment in Mexico, in the 1840s reformminded politicians disputed its value. Reformist liberals considered themselves civilized xxi and modern. Well-versed in European and U.S. Enlightenment theories about crime, state power, and individual rights, they supported abolition. In 1856 the liberals drafted a new constitution, outlawing the death penalty for political crimes because its imposition often reflected a sitting government’s whim. Even so, they did not abolish the death penalty outright. Citizens enjoyed only a qualified right to life. Executions for ordinary crimes could persist until the construction of a penitentiary system. The Mexican state, guided by the government and directed through law, continued killing with an unreformed penal strategy. Personal experiences – varied, changing, and unstable – shaped the values within political culture supporting punishment. Repression during political turmoil and the last dictatorship of Santa Anna, ending in 1855, informed liberals’ calls for reconciliation, and made acceptable Enlightenment penal reform. But between 1858 and 1867 civil war, foreign invasion, and a puppet emperorship provided liberals with reason to call for capital laws to avenge losses and to protect order. Experience and the Enlightenment could not provide a stable foundation for abolitionism. By the 1870s the liberal government contradicted the Constitution by defining banditry and kidnap as capital crimes. The consequence of retention precipitated an attempt in 1870 to mythologize Constitutional rights through artistic representations of death; and, between 1876 and 1911 enabled Porfirio Díaz to construct a constitutional dictatorship. This analysis is significant because it reveals the problems encountered by modernizing liberal polities attempting to restrain law’s violence.