The law of the Council of the Indies (Recopilación, libro II, títulos I to III)
The council that governed Spanish America is written down here from its own rulebook: the hours it sat and the rule that no session ended until every petition had been answered, the standing order to keep a complete description of the Indies and update it yearly, the charge to put conversion and good treatment before royal profit, the ban on its judges holding encomiendas, and the recusal of relatives.
Why this wins its question: The Council of the Indies is named in every account of Spanish America and quoted in almost none: general sources say it advised the king, appointed officials and heard appeals, and stop. This object is built from the code's own títulos on the Council, read as page scans of the 1791 impression, and gives what a summary cannot: the clause subordinating royal profit to conversion and the clause making the councillors answerable for the king's conscience; the standing order to keep a complete description of the Indies with annual updates from the viceroys, which is where the great colonial surveys come from; the hours of sitting, the quorum of three, and the rule that no session ended until every petition had been read and answered; the weekday division of business; the ban on councillors holding encomiendas and on their children marrying encomenderos; the named degrees of kinship that forced recusal; the archive ledger that tracked which papers were out and with whom. It also prints the limits in the same voice as the powers - the consultation requirement with its own "unless delay is inconvenient" clause, the good-treatment law that justifies itself by calling the pre-conquest order tyranny, and the marginal dates showing Philip II's ordinances being re-enacted in 1636, which is the code's own evidence that its rules were being broken.
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 constitutional premise is stated in the law itself, and it is not the premise of a colonial office: "siendo de una Corona los Reynos de Castilla, y de las Indias, las leyes y órden de gobierno de los unos, y de los otros deben ser lo mas semejantes y conforme que ser pueda", so the Council is ordered to bring the form and manner of government of the Indies to the style and order of Castile. The Indies are legislated for as kingdoms of the same crown rather than as possessions of another kingdom - which is a legal form, not a description of how power was exercised at four thousand miles.
The gap-filling rule follows from that premise: in all cases and suits not decided by the laws of this Recopilación or by unrevoked cédulas and ordinances for the Indies, "se guarden las leyes de nuestro Reyno de Castilla, conforme á la de Toro, así en quanto á la substancia, resolucion y decision de los casos, negocios y pleytos, como á la forma y órden de substanciar" - the Castilian code as subsidiary law of the Indies, in substance and in procedure alike.
Indigenous law was not abolished by the code that governed the Indies. Ley iiij of libro II título I, dated at Valladolid on 6 August 1555, orders that the laws and good customs the Indians "antiguamente tenian para su buen gobierno y policía", their usages observed since they became Christians, and those they have newly made, "se guarden y executen", and confirms them expressly, with two limits: they must not conflict with religion or with the laws of this book, and the crown reserves the right to add what it thinks fit - "no perjudicando á lo que tienen hecho, ni á las buenas y justas costumbres y estatutos suyos". A confirmation with a reservation attached is still the legal recognition of a body of native law inside an imperial code.
One procedural rule carries more weight than most declarations: laws made in favour of the Indians are to be executed "sin embargo de apelacion" - notwithstanding appeal - under a law of Charles V dated Toledo, 4 December 1528 and 24 August 1529. Appeal was the standard instrument for suspending a protective order until the protection was moot; this law removes it. The compilation states its own purpose in the same place: "hemos mandado juntar en esta Recopilacion todo lo que está ordenado y dispuesto en favor de los Indios, y añadir lo que nos ha parecido necesario".
The Council's first charge is put above the crown's own revenue in as many words. Ley viij of título II - Philip II's ordinance 5, re-enacted by Philip IV in 1636 - orders the councillors, "pospuesto todo otro respeto de aprovechamiento, é interes nuestro", to hold as their principal care the business of conversion and doctrine and the provision of sufficient ministers for it, closing with the clause that makes the Council answerable for the crown's own conscience: "los del dicho Consejo descarguen sus conciencias, pues con ellos descargamos la nuestra".
The next law is the good-treatment charge, and it is worth quoting with its own justification attached. The Council must provide "lo que convenga para la conversion y buen tratamiento de los Indios, de forma, que en sus personas y haciendas no se les haga mal tratamiento, ni daño alguno, ántes en todo sean tratados, mirados y favorecidos como vasallos nuestros, castigando con rigor á los que lo contrario hicieren" - and then explains that God put them under the crown's protection "para sacarlos de la tiranía y servidumbre en que antiguamente vivian". The same sentence that orders protection asserts the legitimacy of the conquest by describing what preceded it as tyranny; both halves are the law's.
A standing intelligence mandate sits in ley vj: the Council is to keep "hecha siempre descripcion y averiguacion cumplida y cierta de todas las cosas del Estado de las Indias, así de la tierra, como de la mar, naturales y morales, perpetuas y temporales, Eclesiásticas y Seglares, pasadas y presentes, y que por tiempo serán", to hold a book of that description in the Council, and to keep up a correspondence with viceroys, audiencias and ministers "para que informen cada año de las novedades que hubiere, y las que sucedieren se vayan poniendo y añadiendo en el dicho libro". The reason given is epistemic: nothing can be rightly understood or dealt with whose subject is not first known by those who have to decide it. This is the legal root of the questionnaires and surveys the crown sent out.
The working week is prescribed to the hour. The councillors meet every day that is not a holiday for three hours in the morning, and Tuesdays, Thursdays and Saturdays two hours more in the afternoon; nothing is dispatched until at least three of them are present; petitions are read together on those three afternoons, and "ningun Consejo se acabe hasta que todas estén leidas y respondidas". Business is then divided by weekday - Mondays and Fridays state and government, Tuesdays and Thursdays war, Wednesday mornings the royal treasury, with the express charge to consider "en que cosas podrá ser aprovechada en las Indias", and visitas and residencias taken by seniority from a table.
Lawmaking has a procedure, and the procedure has its own escape clause printed beside it. Before the Council orders general laws it must be "estando primero muy informados, y certificados de lo ántes proveido en las materias", and must precede the act with the fullest possible information about the places to be legislated for, "con informacion y parecer de los que las gobernaren ó pudieren dar de ellas alguna luz" - and then, in the same sentence, "si en la dilacion de pedir informacion no hubiere algun inconveniente". Consultation of the governed periphery is required except when waiting would be inconvenient, and the law says so itself.
The conflict-of-interest rules are sharper than the reputation of the institution suggests. No member of the Council may hold "Indios algunos de repartimiento, ni encomienda de ellos en mucha, ni en poca cantidad", even while resident in the Indies, without express dispensation; no son or daughter of a councillor may marry anyone who holds Indians or claims a right to them, or who has a suit pending in the Council. The president, councillors, fiscales, secretaries, relatores, escribanos and other officers may receive nothing "dada, ni prestada, ni presentada de los litigantes y negociantes", and may write no letters of recommendation to the Indies, "así por lo que esto importa, como por la libertad y entereza con que deben proceder".
Recusal is defined by degree of kinship, in 1627 and again in the ordinances of 1636: when the business of a relative is seen, the related councillor does not sit for the proposal or the vote, and the rule names the degrees - parents, children, grandchildren, all descendants and ascendants in the direct line, brothers, first cousins, nephews, sons of first cousins and uncles in that degree. Papers that "miran á condenar, ó censurar acciones de pariente" are withheld from him altogether.
Records are treated as an instrument of government rather than a store. The Council keeps one book listing the papers in its archive and another listing those outside it, whether at Simancas or in the hands of secretaries or any other person, with a record taken of who received each paper "para que por él se puedan ver los que faltan, y saberse quien los tiene, y á quien se han de pedir"; when the archive is overloaded the less important papers go to Simancas with a note kept of them. And the laws of the título are to be read aloud in the Council, all its ministers and officers present, at least once at the start of every year.
The Council's jurisdiction reached back into Spain. After a competencia in 1636 with the Council of Castile over recursos de fuerza in Indies business - a dispute that grew out of a real case, that of an oidor of Panama who took sanctuary in a convent to avoid embarking for the audiencia of Santo Domingo - the crown resolved that the Council of the Indies "en todos los negocios dependientes de ellas, aunque sea en España, debia conocer de qualesquier fuerzas, que hiciesen los Jueces Eclesiásticos", ordered Castile to desist, and had the contrary auto acordado printed in the Castilian compilation of 1640 revoked so that the point would be public.
What this object cannot show is compliance. Every one of these laws is printed with a chain of dates in its margin - Philip II's ordinances of the Council, re-enacted almost item for item by Philip IV in 1636, several with a further auto or decree behind them - and a rule re-enacted across three reigns is a rule that was not being kept. The prohibition on gifts, the ban on encomiendas for councillors and the recusal of relatives are evidence of what the crown wanted and simultaneously of what was happening; the compilation is a statement of law, and the practice has to be read from residencias, visitas and the archive.