Law, Colonial Systems of, Spanish Empire

Basing its legitimacy in Spanish America and Asia on the papal bulls of Alexander VI (1493) and Julius II (1508), the Spanish Crown asserted preeminent authority in these regions as the vicar of the Vicar of Christ (i.e., the pope). Accordingly, believing that natural law expressed divine will and that positive law (manmade law) must conform to natural law, the law system of the Spanish Empire was built on the twin pillars of church and state, on canon law and crown law. Acknowledging the inseparability of religious and secular power in the Spanish Empire, this entry will focus on secular law and authorities.

Although the institutional framework of the colonial legal system clearly originated in Iberia, the degree to which the formal and customary laws governing the colonies reflected Spanish political and legal hegemony is disputed by historians. Rather than being an absolutist system, throughout the Hapsburg and much of the Bourbon reigns, the legal system in Spain's colonies was a patchwork of laws and overlapping jurisdictions.

COUNCIL OF THE INDIES

At the apex of the institutional hierarchy was the Spanish Crown. Its policies were informed by reports from the Consejo Real y Supremo de las Indias (Supreme and Royal Council of the Indies), which was established in 1524, shortly after the conquest of the Aztec Empire. From its founding until the eighteenth century, the Council of the Indies possessed supreme legal, administrative, military, trade, finance, and, by way of royal patronage over the church in the colonies, religious authority. It was the primary executive and lawmaking body, as well as the final court of appeals. Immediately below the Council of the Indies, and located in the American and Asian kingdoms, were the archbishops, viceroys, and judges of the royal courts (audiencias).

THE VICEROY

Throughout the reign of the Hapsburgs, from 1521 to 1700, the colonies had two viceroyalties: New Spain and Peru. Between 1580 and 1640, when the Portuguese and Spanish crowns were united, the viceroyalty of Brazil was integrated into the imperial bureaucracy. Under the Bourbons, who ruled since 1713, two additional viceroyalties were created: New Granada (1717, 1739) and La Plata (1776).

As the alter ego of the crown, viceroys possessed broad executive and lawmaking powers, and they acted as the vice-patron of the church and the president of the viceregal audiencia. Predominately aristocrats without juridical training, viceroys could influence decisions and proceedings of the tribunal as its president, but could not decide the outcome of legal cases.

In addition, as the secular protectors of Indians, viceroys were ordered to designate at least one day each week to hear cases and to receive petitions brought by native subjects. Responding to the growing numbers of cases initiated by native subjects and the economic hardship of litigation, in 1585 the viceroy of New Spain, Don Luis de Velasco, the younger, Marqués de Salinas (1534–1617) established the General Court of the Indians (Juzgado General de Indios). As a specially designated court for the protection of native people, the Juzgado guaranteed that native people received abbreviated legal processes, summary judgments, and reduced or free legal services.

AUDIENCIA

Despite the legal protections proffered by the Juzgado, natives in New Spain recognized that having their case heard by judges or appealed to the audiencia could provide legal advantages, in certain cases. Similarly, native people in outlying provinces recognized the impracticality of bringing their cases before either the audiencia or the Juzgado in Mexico City, or the audiencia in Lima and relied on provincial audiencia judges to decide their cases. In the frontiers and outlying provinces, the provincial audiencia judges were generally the highest royal officials with whom the local population interacted. In addition to their judicial powers, audiencia judges generally possessed extensive executive and administrative authorities—being the first royal bureaucrats to arrive in newly conquered territories.

The earliest audiencias, or royal courts, were established in Santo Domingo (1511) and Mexico City (1527, 1530) to rein in the conquistadors. Thereafter, they were founded as need dictated to assert royal authority and to resolve disputes between crown subjects—Spaniards, Africans, and Indians alike—in outlying regions; in the viceroyalty of New Spain, including the Audiencia of Mexico and the lesser courts of Santo Domingo, Guatemala (1544), New Galicia or Guadalajara (1549), and Manila (1583); and in the viceroyalty of Peru, including the Audiencia of Lima (1542) and the lesser courts of Panama (1538, abolished in 1543, reinstated in 1567), Santa Fe de Bogotá (1549), La Plata or Charcas (1559), Quito (1563), and Chile (1565, disbanded in 1575, reinstated in Santiago in 1609). Under the Bourbons, the Audiencias of Buenos Aires (1661–1672, reinstated in 1783), Venezuela (1786), and Cuzco (1787) were also established.

JURISDICTIONAL CONFLICTS

Jurisdictional disputes were common among the secular and religious authorities of the sixteenth and seventeenth centuries because officials held overlapping authorities. Despite being structurally subordinate to the viceroy, for example, the audiencia judges who lived away from the viceregal capital were able to exercise their executive and administrative powers in relative autonomy, while those closer to Mexico City and Lima frequently challenged the executive and administrative authority of the viceroy.

Additionally, while archbishops were responsible for overseeing the evangelization of and upholding religious orthodoxy among the native population, and viceroys for the good governance and treatment of the native population, their respective interpretations of how to administer the native population brought them into frequent conflict with one another. On one hand, as colonial officials brought their disputes to the Council of the Indies, it allowed the council to assert royal authority in the colonies. On the other hand, recognizing the overlapping jurisdictions, native people learned to manipulate the tensions in the system, often to their advantage, as they appealed their cases from lower courts or challenged the legal interpretations and powers of parallel authorities.

LAWS

At the imperial level, laws derived from royal and viceregal provisions, mandates, and ordinances. In general, crown laws addressed specific concerns of particular petitioners and litigants and, therefore, generally were narrow in scope rather than universal. Moreover, generally responding to the initiative of petitioners and litigants, crown laws reflected the concerns and issues of Africans, Indians, and castas (mixed-raced people), as well as Spaniards.

As the imperial period progressed, the crown increasingly promulgated universal laws for common problems and aimed to standardize laws. The earliest bodies of laws issued were the Laws of Burgos (1512–1513) and the New Laws (1542), both of which aimed to establish standards for governance as well as conduct for Spanish colonists in their dealings with the native population. In addition, many jurists recognized the need to compile the laws and legal decisions that had been issued, and they attempted to collect the royal provisions, mandates, and ordinances into single texts, as reflected in Recopilación (compilation) of Juan Ovando; Cedulario (royal mandates collection) of Vasco de Puga (1563); Compilación para las Indias de general (general compilation of the indies) of Alonso de Zorita (1574); Cedulario para las Indias en general, gobernación espiritual y temporal de las Indias (general collection of royal mandates of the indies, the spiritual and temporal governance of the indies); Recopilación para las Indias en general (general compilation of the indies) of Diego de Encinas (1596); Autos, acuerdos, y decretos del gobierno real y supremo consejo de Indias (decisions, agreements, and government decrees of the royal and supreme council of the indies) of León Pinelo (1658); and the Recopilación de leyes de los reynos de las Indias (1680) (compilation of the laws of the kingdoms of the Indies). Although most laws remained particular, as the legal system developed, royal officials increasingly aimed to universalize and standardize laws, and to have laws to mediate between the various communities under crown authority.

At the communal level, laws were based on the customary laws, traditions, and ordinances of the particular community. In issuing laws that addressed concerns or issues of a particular community, Castilian practice necessitated that royal law and legal decisions not ignore the rights, traditions, and practices of the community. Thus, each community had its own legal tradition, whether it was a locality, such as a village, town, or city; or a religious, political, or economic community, such as the body of friars, nobles, merchants, or military orders. Likewise, according to colonial legal practices with Castilian tradition, in 1530 the crown mandated that its officials protect native customs and traditions in their legal decisions—as long as the indigenous laws did not contradict Catholic doctrine or natural law.

LOCAL AUTHORITIES

In civil disputes involving persons from other communities or sojourners, Spanish officials—governors, corregidores, and alcalde mayores—adjudicated the cases. In the early sixteenth century, and later in frontier areas, when royal officials were not present, friars often adjudicated civil and criminal cases. Likewise, being charged with tutoring native people in Spanish political, legal, and religious norms, zealous friars, parish priests, and royal officials sometimes punished native people for practices that contradicted Catholic doctrine or natural law.

Nonetheless, according to law, within communities, local native authorities maintained their right of first instance and decided criminal and civil cases—using native customary law and practice. Ultimately, similar to the viceregal level, local authorities frequently disputed over jurisdictional authority, and asserted their autonomy from each other and those above them.

LAW AND NATIVE SOCIETIES

Despite royal protection of native custom, every aspect of native traditions and customary law was transformed during the imperial period. For example, although the authority and wealth of the native elite was explicitly protected, much of their political tradition was infused with practices, such as polygamy and belief in the elite's relationship to traditional deities, that contradicted Catholic doctrine. In prohibiting one aspect of native tradition, most elements of native tradition were impacted. Contributing further to the shifts, sometimes Spanish judges misunderstood native traditions and other times native people intentionally misrepresented their traditions (as part of a legal strategy). When decisions were rendered on these misunderstandings and misrepresentations, new legal and cultural practices emerged.

see also Empire in the Americas, Spanish; Native Americans and Europeans; New Spain, the Viceroyalty of.

BIBLIOGRAPHY

Benton, Lauren. Law and Colonial Cultures: Legal Regimes in World History, 1400–1900, Studies in Comparative World History. New York: Cambridge University Press, 2002.

Borah, Woodrow. Justice by Insurance: The General Indian Court of Colonial Mexico and the Legal Aides of the Half-Real. Berkeley: University of California Press, 1983.

García Gallo, Alfonso. Estudios de historia del derecho indiano. Madrid: Instituto Nacional de Estudios Jurídicos, 1972.

Gomez, Thomas. Droit de conquête et droits des indiens. Paris: Masson & Armand Colins Éditeurs, 1996.

Kellogg, Susan. Law and the Transformation of Aztec Culture, 1500–1700. Norman: University of Oklahoma Press, 1995.

Margadant S., Guillermo F. Introduction to the History of Mexican Law. Dobbs Ferry, NY: Oceana; Mexico City: Libros Ocotepec, 1983.

Ots y Capdequí, José María. El estado español en las Indias, 3rd ed. Mexico City: Fondo de Cultura Económica, 1957.

Ots y Capdequí, José María. Historia del derecho español en America y del derecho indiano. Madrid: Aguilar, 1968.

Schäfer, Ernst. El consejo real y supremo de las Indias: Historia y organization del consejo y de la casa de contratación de las Indias. 2 vols. Vol. 1. Madrid: Marcial Pons Historia, 2003.

Solórzano Pereira, Juan de. Política indiana (1647). Madrid: Biblioteca Castro, 1996.

Tau Anzoátegui, Victor. Nuevos horizontes en el estudio histórico del derecho indiano. Buenos Aires, Argentina: Instituto de Investigaciones de Historia del Derecho, 1997.

Tau Anzoátegui, Victor. El poder de la costumbre: Estudios sobre del derecho consuetudinario en América Hispana hasta la emancipación. Buenos Aires, Argentina: Instituto de Investigaciones de Historia del Derecho, 2001.

Zavala, Silvio Arturo. Las instituciones jurídicas en la conquista de América. Madrid: Imprenta Heléncia, 1935.