Comercio Naval: the working sea law of the Carrera de Indias, as a practitioner's handbook set it out
The third book of the Curia Philipica's second tome is a working code of ships, seafarers, passengers and cargo for the Spanish Atlantic and Pacific. Seafarers count neither among the living nor the dead but between, and so among the miserable persons the laws favour: a master who withholds wages goes to prison and feeds them until he pays. Passengers are registered so their heirs can be found if they die in the Indies. No Indian may cross to Spain, willing or not.
Why this wins its question: The law of the Carrera de Indias reaches English readers as monopoly and fleet schedules, and the people aboard the ships appear as cargo manifests. This object prints the law those people actually lived under, from the handbook a practitioner would have had at his elbow: the definition that puts seafarers between the living and the dead and therefore among the miserable persons whom the laws favour; the wage rule that jails the master and makes him feed the crew until he pays; the ship's notary with his bond of two hundred thousand maravedis, his itemised lading book and his custody of the wills of men who die at sea; the passenger register that screened out the grandchildren of converts and, in the same clause, existed so that the heirs of a man dead in the Indies could be found; the rule that lets a ship's company take provisions before two witnesses at a fair price where nobody will sell; and the prohibition, absolute and not dispensable even by a viceroy, on any Indian man or woman crossing to Spain, willing or not. It sets those in one sequence, each bound to the folio it is printed on, without deciding for the reader which of them is the protection and which the cage.
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 general index of the printing read here, "Indice de todos los paragrafos, y capitulos que se contienen en el Tomo I. y II. de la Curia Philipica", shows the plan of the work: the first tome in five parts on civil, criminal, ecclesiastical and secular judgments, and the second in three books on commerce. The third of those books is the maritime one, and the index places its chapters by folio: Naves at tomo 2 libro 3 folio 457, Flota at 462, Navegantes at 466, Fletamento at 476, Cosas vedadas at 482, Aduana at 486, Daños at 506 and Apuestas at 519. The running heads of the pages themselves read "Lib. II. Comercio Terrestre" and "Lib. III. Comercio Naval". Sea law is treated here not as an appendix to the law of contract but as one of the three books into which commerce is divided.
The chapter on ships, at folio 457, defines "Naves" as the general name comprehending every kind of vessel, great and small, of oar and of sail, that goes upon the sea, and derives the word from its effect, which is to navigate, following a Ley de Partida. Its second paragraph settles who may build and own them: although making and having ships "principalmente pertenece al Real Estado del Rey, y se numera entre las demás regalías suyas" under a law of the Recopilacion, this is not forbidden to other private persons; it is forbidden to judges and magistrates in their district, and likewise "à los Oficiales Reales, y Visitadores de Naves, y sus familias, conforme una Ordenanza Real de la Navegacion de las Indias". The chapter's own sumario also asks whether private persons may arm ships against corsairs "y llevar el quinto Real de las presas", and what penalty falls on the shipwright who builds for corsairs.
The definition of seafarers, at folio 466, is the passage on which the whole protective apparatus of the chapter rests. "Navegantes son los que ván, y andan en las Naves de unas á otras partes, y son en dos maneras: Unos, que amarinan, y navegan las Naves: Y otros, que como mercaderes, y pasageros, ván en ellas", following a rubric of the Partidas. And then: "los navegantes, ni se cuentan entre los vivos, ni entre los muertos, sino por medio entre ellos, por ser incierta, y peligrosa la navegacion: por la qual se numeran entre las miserables personas, y como tales los favorecen las Leyes". The category of the miserable person — the standing legal status that carried privileged process and a duty of protection — is applied here to everyone at sea, crew and passengers alike.
The master of the ship is defined on the same folio as the man to whose charge, order and command the whole ship, its things and its mariners belong, and to whom the care and cure of it principally pertains, "ora sea dueño, ó Arrendador de la Nave, ó estraño, libre, ó siervo, ó menor de edad". His election belongs to the owner and may be express or tacit; the master so named may name another and substitute him in his place "aunque el dueño se lo prohiba"; and in default of a master the mariners name one. The office is defined by function, and the text states in terms that an unfree man or a minor may hold it.
The wage rules, at folio 472, are the hardest-edged protection in the chapter. A master who dismisses a mariner before the agreed time, or lets him go without the mariner's fault and even by accident, must pay the wages of the time past and of the time to come, unless the mariner served that time with another; a master who dismisses in anger and shortly takes him back must take him back, and if he does not, the mariner keeps his wage. A mariner once engaged with one master may not leave him or engage with another on pain of losing what he has served and what he was to serve, "si no es que dexa al Maestre por su culpa en traerle mal, ó no le alimentar, ni guardar el concierto debido". Wages are payable at the term agreed, and where none is agreed at the end of the voyage within three days; and if they are not paid, "ha de ser preso el Maestre, y les ha de pagar la costa de la comida, hasta que sean pagados", the marginal authority being an Ordenanza Real de la Navegacion de las Indias at number 224. Wage claims prescribe three years after discharge.
The same page prints the limits of that protection, and they are real. A sick mariner "no gana la soldada, sino es dando en su lugar otro tan idoneo como él", and if the master spends on his illness he may recover it from him; the mariner may not serve by substitute once the cause of sickness ceases, because his own industry was what was chosen. And no wage or ration is due to the soldier or mariner "que quedó en Indias, sin licencia del General, y justa causa", on the authority of a cedula real of 1586 "impresa con las de Indias". Where the mariners go on shares of the freight instead of wages, damage by accident is shared among them pro rata, damage by one man's fraud or malice is his alone, and damage by his slight negligence is shared.
The ship's notary, at folio 474, is the instrument that makes the rest enforceable. He swears before the royal officials or the justice to use his office well and faithfully and gives bond of two hundred thousand maravedis that he will return with the ship, and his office lasts the voyage out and back without his being removable. He must enter in his own book, and in that of the merchant or shipper, everything that comes aboard and is loaded, "quanto es, y de qué genero, por menudo, diciendo las piezas que se reciben, y lo que vá en ellas, sin que baste asentarlo por piezas", and also in what part of the ship it was stowed, so that it may appear whether the lading exceeded what was allowed; what he so enters "hace fé, como si pasáre ante Escribano público". All dealings and agreements made between mariners and passengers during the navigation pass before him by auto and witnesses, and so do the wills and inventories of the goods of those who fall sick and die on the voyage.
The passenger regime, beginning at folio 474, is the clearest case in the chapter of a single institution doing protective and exclusionary work at once. To pass from Spain to the Indies a man must present at the Casa de la Contratacion de las Indias in Seville a royal licence with an información made in his own country and approved by its justice, "de su edad, estado, y señas, y de que no es recien convertido de Moro, ni Judio, ni hijo suyo, ni ha sido condenado por delito de heregía, ni hijo, ni nieto suyo, por linea masculina, ni femenina". His name, his parents' names, his home, the ship he sails in, the province he is bound for and the company he keeps are to be entered in a book kept for the purpose, "para que si falleciere en las Indias, se sepa dónde, y quién son los que le hubieren de heredar". The register that barred the descendants of converts is the same register by which the heirs of a man dead across the ocean were traced.
The following paragraphs, at folios 474 and 475, complete the screen. Recent converts from Moors or Jews, their children and grandchildren by either line, and those condemned for heresy and their descendants, may not pass without express royal licence making mention of the defect, on grave penalties; and licences to pass to the Indies "no se pueden vender, ni comprar". No slaves, male or female, may pass except by royal licence stating that they are such, on pain of being forfeit to the king, and the same is understood of friars and clerics; the licence to take slaves and servants is good by taking them with one and not afterwards. No other person of Spain or outside it may pass without royal licence declaring that he is a foreigner, "aunque sea, como Maestre, Piloto, Marinero, ó soldado", except by licence of the royal officials of the Contratacion, and the master who carries him without it incurs the penalties of the ordinances. Licences to pass to the Indies last two years and no longer.
The hardest rule in the chapter is printed at folio 475 as paragraph 55: "Tambien ningunos Indios, ni Indias pueden pasar de las Indias á España, aunque sea de su voluntad, y con licencia del Rey, y sus Virreyes, Audiencias, y Gobernadores, Justicias, y otros Ministros de ellas, porque no la pueden dar, só graves penas puestas por una Ordenanza Real de la Navegacion de las Indias." The prohibition is absolute in form and it removes the power to dispense as well as the permission: not even the viceroys or the audiencias may licence the crossing, and the willingness of the person crossing is expressly made irrelevant. The margin cites Ordenanza number 216 and a provision of 1534, printed with those of the Indies, ordering that in the Indies nobody pass from one province or island to another without the governor's licence. The book gives no reason for the rule and this entry attributes none to it.
Movement inside the Indies is treated in the next paragraph, and the line it draws is between land and sea: "En las Indias, de unas á otras partes, por tierra cada uno puede pasar sin licencia del Gobernador, ó Justicia Mayor; mas no por mar, sino es con ella, y otras Certificaciones Ordinarias, que se suelen llevar de otros Tribunales", because in that case the rules of the passage from Spain to the Indies do not apply. The chapter adds that a master who carries passengers without the required licence, if they turn out to be delinquents or debtors, incurs the penalties of a receiver and harbourer and must pay the debts they owed.
The provisioning rules that close the chapter, at folio 475, are a public-supply regime for people in transit. Where the owners of provisions will not sell them to navigators and passengers of sea or land, or ask excessive prices for them, "han de ser compelidos á vendérselos por la Justicia"; and where there is no justice in the place or part where it happens, "los mismos navegantes, ó personas pasageras, se los pueden tomar de su autoridad, delante de dos personas, á razonable precio, pagandole de contado, y no se queriendo recibir, poniendole en deposito en poder de una buena persona, con que quedan libres, y quitos". Masters of ships and innkeepers may sell provisions to navigators and passengers at prices assessed by the justice every six months, notwithstanding town ordinances to the contrary; where a ship has no provisions but those some individual carries, they may be taken "para que se repartan, y comuniquen á todos"; and masters or navigators who bring provisions to the kingdom or to a town of it "tienen immunidad de no acudir á las cargas públicas de la República".
The chapter on prohibited goods, at folio 484, shows the same handbook regulating the Pacific and the Atlantic in one sequence, and dating its authorities by where they were published. No merchandise of China or the Philippine islands may be brought to New Spain except in the quantity ordered by the royal order; nor may such goods be carried from New Spain to Peru, Tierra Firme and the Nuevo Reyno de Granada "aunque de ellas se hayan pagado los Derechos Reales, só pena de ser perdidas, aplicadas por tercias partes, Camara, Juez, y Denunciador", by two royal cedulas, "una fecha en Madrid á once de Enero año de mil y quinientos y noventa y tres, y la otra en Valladolid á postrero de Diciembre de mil y seiscientos y quatro, publicada en Lima á doce de Septiembre de mil y seiscientos y cinco". Nor may merchandise of Spain be carried from New Spain to Peru, on pain of loss, by a cedula "fecha en Madrid á cinco de Marzo de mil y seiscientos y siete, publicada en Sevilla á diez del mismo mes, y en Lima por Septiembre del dicho año", and the same holds of the Islas de Barlovento. The ships, carts, beasts and their tackle in which prohibited goods are carried are forfeit with them.
A note on vantage, stated narrowly because the sheets will not carry more. The title page of this printing describes the author only as "natural de la ciudad de Oviedo, en el Principado de Asturias" and says nothing about where the work was written; this corpus therefore asserts nothing about the place of composition. What the text itself shows is that its author reckoned the currency of a royal order by its publication at Lima as naturally as by its date at Madrid or its publication at Seville, and that the ordinances he cites most often in the maritime book are the Ordenanzas Reales de la Navegacion de las Indias rather than the general law of Castile. The scholarship that would settle the question of where and when the work was composed was not reachable for this entry.
The limits of this entry. Everything above is read from the Madrid printing of 1790, whose title page states that its editor mended the errata and made precise the wrong citations of the earlier impressions; no wording is attributed to any earlier printing and no date is asserted for one. Within the maritime book the chapters on fletamento, on damage and average, on shipwreck and on insurance were not opened, and neither was the first tome. Nothing here establishes how often any of these rules were enforced, how many Indians crossed to Spain in spite of the prohibition, whether seamen commonly recovered their wages, or what the passenger register actually contains. Those are questions for the archives of the Casa de la Contratacion and for modern scholarship, neither of which was reachable for this entry.