III - Spanish Law in America and Colonial Administration

The Leyes de Toro of 1505 were a response to the growing need for legislative clarity and unity in an Iberian monarchy that had dramatically consolidated its power under the joint rule of Isabella and Ferdinand. This need only increased as Spain rapidly evolved into an imperial power with its colonial expansion into the Americas beginning in 1492. The Spanish crown and its colonial representatives extended Castilian law to the New World, where it remained the foundation of private law in Spanish America through the colonial period and beyond. But the distinct social, political and economic conditions of the expanding colonies increasingly demanded that public law be crafted specifically for them.

Bartolomé de las Casas: Biblioteca Colombina, Seville

The earliest laws created for the Indies were the Leyes de Burgos of 1512–3. The Laws of Burgos were promulgated for the island of Hispaniola (today Dominican Republic and Haiti), founded by Columbus during his 1492 journey as the earliest site of colonial settlement. This set of thirty-nine laws sanctioned the establishment of the encomienda system, which placed indigenous peoples under the responsibility and protection of conquistadores and early Spanish settlers, who were allowed in turn to extract their labor and wealth. The Dominican friar Bartolomé de Las Casas, one of the earliest and most outspoken defenders of indigenous rights, railed to the Crown against the ineffectiveness of the Laws of Burgos to prevent corruption and abuses against native peoples. Though abuses continued, the protests of Las Casas and his contemporaries did not go unheard. Recognizing the need for direct royal authority and presence in the colonies, in 1524 Spain created the Council of the Indies to exercise executive, legislative, and judicial power on behalf of the monarchy. The Leyes Nuevas (New Laws) of 1542 established a system of viceroyalties and Audiencias (royal courts) within the Council to carry out the work of royal administration and justice. The New Laws also attempted, unsuccessfully, to phase out the corrupt encomiendas system. Though these early laws proved ineffectual, their limitation made clear the need for a more formal and effectively applied system of colonial law.

detail from Speculum conjugiorum, 1556
Speculum conjugiorum, 1556

The traffic of scholars and intellectuals between Spain and the colonies increased throughout the sixteenth and seventeenth centuries. The earliest American scholars were to be found among the countless missionaries and clergy who, like Las Casas, went to serve in the institutions established to carry out Spain’s religious mission in the colonies. Charged with the spiritual education and governance of native peoples, the missionary orders led some of the few and lasting efforts to record and preserve indigenous history, language, and culture, and they founded the earliest American universities. A growing number of Spanish jurists also arrived to serve in the viceregal Audiencias. These jurists began to produce theoretical and instructional treatises based on their firsthand experience of colonial law and practice.

From the early champion of indigenous rights, Las Casas, to the colonial expert on derecho indiano, Juan de Solórzano y Pereira, royal and religious administrators directly faced the challenges of colonial rule and bureaucracy. As a result, they produced a diverse body of work that combined their understanding of Castilian law with their experience of the unique legal issues of Spanish America and the governance of its European settlers and native peoples. These treatises on law and legal theory helped to build a coherent set of laws for the Indies that evolved throughout the colonial period.

Erudita & elegans explicatio quaestionis utrum reges vel principes…cives ac subditos a regia corona alienare & alterius domini particularis ditioni subiicere possint?

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Erudita & elegans explicatio quaestionis utrum reges vel principesBest known today for his Brevísima relación de la destrucción de las Indias (Brief Account of the Destruction of the Indies), Las Casas wrote several works that explored the political, legal, and spiritual rights of native Americans and condemned enslavement of the Indians and the unjust and exploitative application of the Spanish system of encomienda.

Erudita et elegans explicatio, one of the final works of Las Casas’s long career, lays out the legal and doctrinal bases for his arguments in defense of the rights of native peoples. The work was denounced to the Inquisition as heretical to Church doctrine— allegedly by Las Casas’s political and intellectual nemesis on issues of indigenous rights, Juan de Sepúlveda— and was confiscated in 1552. Ultimately, the Inquisition determined the accusation to be baseless. As a result of the inquiry, however, the first edition of Erudita et elegans explicatio was not published until 1571, several years after the author’s death. Modern scholars have underscored Las Casas’s primary use of ecclesiastical legal sources rather than theology for his political arguments and defense of the rights of native peoples to self-governance.

Speculum conjugiorum

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Speculum conjugiorumFray Alonso de la Vera Cruz’s Speculum conjugiorum was printed by the first printer in the New World, Juan Pablos, in Mexico City and is one of the earliest American law books. It is also the first American book printed in italic type, which was considered a great qualitative improvement over Gothic types. Born Alfonso Gutierrez, he trained in philosophy and was a pupil of famous scholar Francisco de Vitoria at the University of Salamanca. He took orders as an Augustinian friar upon his arrival at Veracrúz in 1535, was elected provincial of his order in 1548, and established numerous convents and libraries. Vera Cruz, considered one of early colonial Mexico’s leading intellectuals, helped found the first American university, the Real y Pontificia Universidad de México, which opened its doors in Mexico City in 1553. His works illuminate the central role that questions of canon law played in the establishment of colonial order in the Americas. Devoted to legal issues and other problems of matrimony, the Speculum conjugiorum is structured in three parts dealing with questions of marriage, conversion, and divorce. The work is rich with information about the laws and customs of the native peoples of Mexico and analyzes legal questions arising from marriage between natives and Spaniards.

Advertencias para los confessores de los naturales

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Advertencias para los confessores de los naturalesJuan Bautista was a Franciscan attached to the convent and college at Santiago Tlatelolco, which was founded soon after Cortes’s final victory over the Aztecs and their allies, its church built with pre-Columbian stones atop the site of a fierce conquest battle. Constructed as a symbol of Spanish domination of Mexico’s native peoples, Santiago Tlatelolco evolved into a center for education and the preservation of indigenous culture. In 1536 the Franciscans founded a college at the site for the spiritual and cultural education of indigenous elites. Friars such as Bernardino de Sahagún and Alonso de Molina led numerous projects of ethnographic and native language study, preserving important knowledge of indigenous cultures that were quickly being lost.

Fray Juan Bautista was another such scholar, a professor of philosophy and theology who wrote a number of bilingual works—catechisms, prayer books, and dictionaries—to assist missionaries in the effective transmission of Catholic doctrine and administration of sacraments to native peoples in their own languages. Advertencias para los confessores de los naturales, Bautista’s best-known work, is a two-volume manual of instructions and rules related to the sacrament of confession, with text in Spanish and the corresponding Nahuatl given side-by-side. Designed for practical use, it is a scholarly work nonetheless, with Bautista not only drawing from contemporary European theology and canon law sources, but also from the writings of earlier Mexican scholars such as Sahagún and Vera Cruz. Though largely concerned with Catholic teaching and practice, the works of men like Bautista and fellow missionary scholars had a profound impact on the evolving legal and political development of Spanish America. Their treatises established principles and arguments for colonial administrative practices and native rights and privileges that informed the secular legal works of future generations of jurists such as Juan de Solórzano and helped to shape the decisions of the crown.

Nueva recopilación (Leyes de recopilación)

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Nueva recopilación (Leyes de recopilación)Phillip II authorized the Spanish legislative compilation known as the Nueva recopilación in 1567. Comprised of nine books, the work reaffirmed the normative system of Castilian law established in the Ordenamiento de Alcalá and Leyes de Toro, collecting and synthesizing the existing sources of Castilian law including the Fuero Juzgo, Fuero Real, Siete Partidas, and Leyes de Estilo. It thus became the fundamental reference for Spanish law throughout the empire. In fact, a provision was written into the Nueva recopilación that every local magistrate of the crown (corregidor) had to possess a copy, bringing a complete and authoritative source for Spanish law to even the most remote territorial jurisdictions. Two important re-editions were published, one in 1640 and this last edition in 1745, both of which were issued in three volumes but retained the structure of the nine-book original.

Política Indiana

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Política IndianaJuan de Solórzano is often considered the foremost scholar of derecho indiano, Spanish colonial law. Trained as a jurist at Salamanca, he also taught there for a decade before accepting an appointment as an oidor in the Audiencia of Lima. He served as a royal judge in Lima for nearly twenty years before returning to Spain in 1627, where he was soon made a royal advisor in both the Council of Castile and the Council of the Indies. In 1629 he published the first volume in Latin of his famous work, De Indianorum jure, a systematic treatise of Spanish American law and politics. The first volume, which examined the discovery of the Americas and the legality of their conquest and occupation, instantly became an indispensible text for royal and colonial administrators. Rewarded by the crown for his work, Solórzano went on to complete a second volume, published in 1639, that dealt further with the principal institutions of colonial government, encomienda, and indigenous society. The Spanish translation of both volumes, Política Indiana, followed in 1648, and the work remained central to legal administration throughout the colonial period.

Recopilación de leyes de los reynos de las Indias

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Issued by King Charles II in 1680, the four-volume Recopilación de Indias was the first comprehensive compilation of royal law governing all Spanish colonies in America and the Philippines. Since the earliest days of colonial occupation, the Spanish crown and its representatives had grappled with the new legal exigencies of the Americas. Castilian law, set forth in the Nueva recopilación of 1567 and other compilations before it, continued to provide the basis for private law throughout the Spanish empire. At the same time, however, the Crown was continuously creating new public legislation to regulate colonial territory, economy, and labor, and to govern Spanish settlers and indigenous peoples. The uniform transmission and application of these laws across a vast and complex colonial bureaucracy was a significant challenge. By the time the Nueva recopilación of Castilian law was issued in 1567, colonial scholars and officials had begun similar efforts at a systematic compilation of the public law that governed the Indies, notable among them Juan de Ovando. None of these individual efforts came to fruition, however, and the work that was finally issued by the crown in 1680 was the product of many generations of distinguished jurists and recopilistas, from Pedro López de Alcocer to Rodrigo de Aguiar, Antonio León Pinelo, and Juan de Solórzano. This first edition held by the Robbins Collection was a gift of the California Supreme Court Library.

Novísima recopilación de las leyes de España

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Novísima recopilación de las leyes de España. Madrid, 1805–7.While the 1567 Nueva recopilación became the authoritative source for Castilian law, it was not entirely comprehensive. Like many efforts before it, the compilation was also a political product created in part to enhance and consolidate royal authority, and it was criticized for its defects and omissions. By the end of the eighteenth century, when Enlightenment reform and the great movement toward modern codifications dominated the European political landscape, another attempt was made under Charles IV at a better and more definitive compilation. The Novísima recopilación, issued in 1805 in twelve books, added some new laws and omitted others that were included in 1567, but on the whole was not markedly innovative or more systematic in its organization. As a result, the compilation provoked even greater disappointment than the work it was created to supplant. This disappointment was exemplified by the famous critical analysis that Francisco Martínez Marina, jurist and director of the Spanish Royal Academy and the Royal Academy of History, issued in 1820. Success or failure, the impact of the 1805 compilation was destined to be short, immediately followed as it was by the Latin American independence movements that would end Spain’s rule of most of its colonial territories in the first decades of the nineteenth century.