Two encomiendas in one hand: the rule against accumulation, the reason given for it, and the routine dispensation that defeated it
Spanish law in the Indies forbade granting a second encomienda to a man who already held one, from a cédula of 1528 onwards, and voided a second grant made without telling the crown of the first. The reason printed for the rule is that one man should not take the rewards that could remunerate many. The same chapter reports that viceroys granted two anyway once encomiendas had shrunk in value, and that the Council passed over their explanations as a matter of course.
Why this wins its question: Ask whether Spanish America had rules against concentrating its principal reward in a few hands and the answer that wins today is an inference from the latifundia of a later century, with no document behind it. This object goes to the chapter that carried the rule and prints what it actually says: the cédula of Madrid of 5 February 1528 whose closing clause created the bar; the rebuke of the viceroy of Peru in 1563 over Don Gerónimo de Silva, with the forced election as the remedy; the extension of 1627; the two reasons given, the benefice analogy and the distributive one that "one man should not take the rewards and rents that could remunerate and sustain many"; the nullity of an undisclosed second investiture; and the Castilian mayorazgo rule cited as the domestic parallel. It then prints, from the same pages, what a defensive account would leave out - that once encomiendas had shrunk in value the viceroys granted two anyway and the Council "passed over" their explanations as a matter of course, that the crown's own jurist defends this on the ground that prudence lies in "not wanting to press everything, nor to carry it by the utmost rigour of the law", and that the only evasion he condemns is the one that disguises the second grant. It also sets the doctrine against the compiled law of 1680, which permits joining two encomiendas where cause is shown, and declines to pretend the two agree.
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 rule is stated as the tenth of the chapter's eleven prohibitions, with its founding document and date. In libro III, capítulo VI of Juan de Solórzano Pereira's Política Indiana, §57 reads "En decimo lugar, hállo prohibidos en recibir nuevas Encomiendas, los que ya tuvieren otras en su cabeza, como parece se dispone por una Cedula antigua, dada en Madrid à 5. de Febrero de 1528. años". The cédula in question was a licence to the Audiencia of Mexico to distribute encomiendas, and the bar is in its closing words, quoted in italic on the page - "con que de los Indios, que assi vacaren durante el dicho tiempo, no haveis de encomendar ninguno à persona, que tenga otros en aquel tiempo".
The legislative history given for it runs from the New Laws to a dated rebuke of a serving viceroy. At §58 the same thing was ordered "con mas precision, y expression" in the New Laws of 1542 and in many repeated cédulas, instructions and ordinances for the government of the Indies, which are collected in one given at Madrid on 26 February 1563 - the cédula in which "fue reprehendido el Virrey del Perú, por haver dado a Don Geronimo de Silva una Encomienda, teniendo ya otra, y estando muy rico". The remedy ordered there is the one the rest of the subject turns on: the viceroy is to make him choose which of the two he wants, leave the other, and have it provided to some deserving man.
The same forced election was built into the succession law, so that marriage and inheritance could not be used to accumulate either. At §59 the law of succession to encomiendas provides that if a woman who holds one marries a husband who also holds one, or a son who is already an encomendero wants to succeed to another falling vacant by his father's death, they must make the same election. The rule was tightened further by a cédula of Madrid of 19 June 1627, reported at §60, extending it so that no new encomienda for two lives could be given to a man found to hold another "aunque diga, que ya essa está en la ultima vida".
Two reasons are printed for the rule, and the second is the one worth quoting. At §62 the ground "pudo ser se tomasse de la semejanza, que en la residencia, y cuidado de la enseñanza, y defensa de los Indios tienen con los Beneficios Ecclesiasticos, donde por estas causas hallamos la misma prohibicion" - that is, an encomienda carried duties of residence, instruction and protection, and like a benefice with cure of souls it could not be doubled without the duties being neglected. The second is distributive: "que uno no lléve los premios, y rentas, que pueden bastar para remunerar, y sustentar à muchos, como lo dispone el Derecho Canonico".
The analogy the chapter itself reaches for is Castilian and domestic, which is worth noting because it places the rule inside ordinary Spanish property law rather than in a special colonial regime. At §63 "no và lexos el simil, que tambien hallamos en los Mayorazgos de España, donde por ley recopilada está prohibida su cumulacion, en passando alguno de ellos de dos quentos de maravedis de renta" - with the qualification, added in the same sentence, that the Castilian bar was understood to bite only where the two entails came together by marriage or by succession.
The sanction was nullity, and it was addressed to the officer on the spot rather than to the courts. At §64 the incompatibility is true "en tanto grado" that even if a man obtains and presents a royal cédula ordering him to be provided, the viceroy or governor charged with executing it must suspend it if he knows the petitioner already held an encomienda and the cédula made no express mention of that fact; and the collation or investiture made in ignorance "será nula, y de ningun valor, y efecto". The model named for the rule is the canon law on apostolic letters obtained without disclosing an existing benefice.
The rule's defeat is printed by the author immediately after he has expounded it, with the mechanism and the reason, and this is the paragraph an object about Spanish colonial legality has to carry. At §65 "aunque todo lo referido es en sí tan cierto, y verdadero, como parece: todavia por haverse ya extenuado mucho la Renta de las Encomiendas, de suerte, que muchas veces no basta una sola, para remunerar los meritos, y servicios del que pretende, ni poderse sustentar congruamente", the viceroys and governors often give two or more and write to the Council setting out the just causes for the aggregation, "y en él se passa de ordinario por ellas". The rule survived on paper because the thing it regulated had lost its value.
A second device is described at §66 and it is the administratively interesting one: instead of a second encomienda the shortfall was made up with a pension charged on other encomiendas, "y esto es mas facil de admitir, y confirmar", because pensions, although ordered to be held and reputed in place of encomiendas and almost of the same nature, were thought not to create incompatibility. Solórzano himself doubts it will work for encomiendas of Indians, since the newer cédulas require personal residence for those too. The 1736 editor's digest of the Recopilación, printed at the end of capítulo XXV of the same book, resolves the doubt against the device: "Al que tiene Encomienda, no se le dá Pension en otra: y al que tiene Pension, no se le dá Encomienda".
The general excuse offered for the dispensations is a plain statement of how the author thought colonial law should work, and it is quoted here without softening. At §67, in matters of this kind "y en Provincias tan remotas, y donde tan facilmente se truecan las cosas, muchas dispensaciones, y disimulaciones pide la ocurrencia, y congruencia de los negocios, y la diferencia de los tiempos, y las personas, y la prudencia consiste en la conveniencia, que es, no lo querer apurar todo, ni llevarlo por el sumo rigor del Derecho, haciendonos desentendidos de sus puntos, y tolerando semejantes transgressiones algunas veces". Prudence, on this account, consists in not enforcing the law to the letter - said by the jurist whose book was the standard manual of the government of the Indies.
One evasion was refused even by that standard, and the refusal shows where the line was drawn. At §68 what has not been and must not be tolerated is what some viceroys and governors do to get round the bar: joining two repartimientos or encomiendas that were previously distinct, suppressing the name of one, and granting it added to the other under the name of a pension - "especialmente quando desean paliar, ò evitar el concurso de dos Encomiendas, que se juntan por via de matrimonio". At §69 "estas trazas son fraudulentas", and unions and suppressions are always prohibited in encomiendas as in ecclesiastical benefices, where only the pope may make them; at §70 the general licence to change the cause of one's possession is limited "quando se hace en fraude de tercero, ò en contravencion de las leyes, ò del dominio directo".
The compiled law of 1680 is less absolute than the doctrine, and the difference should be on the record next to it. The 1736 editor's asterisked digest at the close of capítulo XXV of the same book gives the rule as "No se debe dar Encomienda, al que tuviere otra: y si se le diere, podrá elegir la última, dexando la que tiene", citing ley 18 - and then adds, citing ley 20, that "alguna vez se permite juntar dos Encomiendas con conocimiento de causa, y con informacion, por donde conste, que conviene juntarlas". What Solórzano calls a fraudulent contrivance at §68 the Recopilación permits where cause is shown and evidence taken; the two are not the same rule, and this entry does not decide between them.
What this entry establishes and what it does not. It establishes that from 1528 the crown legislated repeatedly against one man holding two encomiendas, that it gave distributive and duty-of-care reasons for doing so, that it rebuked a viceroy of Peru by name for breaking the rule in 1563, that it made an undisclosed second grant void, and that the compilers of 1680 kept the rule with a cause-shown exception. It establishes equally that by the time the standard treatise on the subject was written the rule was being dispensed as a matter of routine, that the author both reports and defends the dispensation, and that he draws the line only at disguising a second encomienda as a pension. It establishes nothing about frequency: no register of grants or confirmations was consulted for this entry, no cédula named in it was opened in its own printing, and the proportion of encomenderos who in fact held more than one at any date is not known from anything read here.