Every assertion below is bound to registered sources and carries its own confidence. Weight them; do not treat the page as uniformly authoritative.
The question is raised as an oddity of jurisdiction rather than as a grievance. At §13 of libro III, capítulo XXX of the Política Indiana "Pero queriendo tocar aora algunas questiones de las muchas, que acerca de estas Provisiones, y Cedulas se suelen ofrecer en practica, pongo en primer lugar la de el inquirir, y averiguar la razon, que pudieron tener para quitar à las Reales Audiencias de las Indias el conocimiento de estas causas, pues pueden conocer de otras mucho mas graves, assi civiles, como criminales, sin que el Supremo Consejo se mezcle en ellas: porque antes por sus Ordenanzas le está mandado, que se las dexen sin avocarlas à sí; sino muy raras veces, para que se halle mas desembarazado para las de el Govierno, que es su principal Instituto." The puzzle is real: the same courts tried capital crimes. This entry is scoped to §§13-24; the run of laws that produced the inhibition is a separate entry.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§13-24 — why the Reales Audiencias of the Indies were inhibited from encomienda suits, and whether the royal treasury had to sue in the same court as a private party: the question raised at §13 and answered at §14, that the inhibition took its origin from the revolutions and seditions which the encomiendas and their distribution occasioned in some provinces of the Indies in those first times, and from the ill treatments done to the Indians on their occasion, which were the cause that it was many times debated to abolish them altogether, and that with so many Indians the encomiendas were then very large and those who pretended to them powerful and warlike, so that it seemed fit at first that the king alone should know of their causes for their gravity and the power of the litigants, and afterwards that his ministers in the Indies, because they lived there, might have friendships or other dependencies with the litigants, so that it seemed safer to bring the causes to the Council; the supporting analogies of the pleitos de Tenuta of the estates and mayorazgos of Spain reserved privatively to the Council of Castile, and of the feudal rule that the lord alone judges suits between two vassals over a fief and the peers of his curia those between lord and vassal; the statement at §18 that no encomienda cause was ever seen in an ecclesiastical tribunal even where monasteries and hospitals held the grant, and that this jurisdiction could not be prorogued by consent or error of the parties because it was wholly removed from the inferior by law; the rule at §19 that a doubtful case is to be remitted to the Council; and the question at §§20-24 whether the Fisco, suing to take an encomienda from a private holder and apply it to the Crown, may proceed in the Audiencia — the cédulas of Valladolid of 1 March 1552, Madrid of 17 July 1572 and Valladolid of 18 July 1551 cited for the affirmative, and the author's contrary conclusion that where the holder has a legitimate or at least a coloured cause of possession the same forum binds both ways, because judgments must not be unequal nor limp and the Fisco never disdains that its rights be equalled to those of private men, with the limit that an intruder holding without any title, not even a coloured one, may be restored against at once · primary
The answer is offered as conjecture and the author says so before giving it. At §14 "Y verdaderamente, aunque de las cosas, que pueden pender de mera voluntad de los Legisladores, no se suele pedir, ni hallar razon, como lo dixo bien una Glossa. Y esto de las Encomiendas todo penda de la del Principe, como tantas veces lo llevo dicho: todavia podemos entender, que el inhibir las Audiencias, traxo su origen de las revoluciones, y sediciones, que en aquellos primeros tiempos ocasionaron estas materias de las Encomiendas, y sus distribuciones en algunas Provincias de las Indias, y de los malos tratamientos, que por ocasion de ellas se hacian à los Indios, los quales fueron causa, de que muchas veces se tratasse de quitarlas del todo, como tambien lo he dicho." Two of the four reasons given are therefore charges against the institution the chapter is about: that the encomiendas provoked armed revolt among the Spanish settlers, and that they occasioned ill treatment of the Indians serious enough that abolishing them was repeatedly discussed.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§13-24 — why the Reales Audiencias of the Indies were inhibited from encomienda suits, and whether the royal treasury had to sue in the same court as a private party: the question raised at §13 and answered at §14, that the inhibition took its origin from the revolutions and seditions which the encomiendas and their distribution occasioned in some provinces of the Indies in those first times, and from the ill treatments done to the Indians on their occasion, which were the cause that it was many times debated to abolish them altogether, and that with so many Indians the encomiendas were then very large and those who pretended to them powerful and warlike, so that it seemed fit at first that the king alone should know of their causes for their gravity and the power of the litigants, and afterwards that his ministers in the Indies, because they lived there, might have friendships or other dependencies with the litigants, so that it seemed safer to bring the causes to the Council; the supporting analogies of the pleitos de Tenuta of the estates and mayorazgos of Spain reserved privatively to the Council of Castile, and of the feudal rule that the lord alone judges suits between two vassals over a fief and the peers of his curia those between lord and vassal; the statement at §18 that no encomienda cause was ever seen in an ecclesiastical tribunal even where monasteries and hospitals held the grant, and that this jurisdiction could not be prorogued by consent or error of the parties because it was wholly removed from the inferior by law; the rule at §19 that a doubtful case is to be remitted to the Council; and the question at §§20-24 whether the Fisco, suing to take an encomienda from a private holder and apply it to the Crown, may proceed in the Audiencia — the cédulas of Valladolid of 1 March 1552, Madrid of 17 July 1572 and Valladolid of 18 July 1551 cited for the affirmative, and the author's contrary conclusion that where the holder has a legitimate or at least a coloured cause of possession the same forum binds both ways, because judgments must not be unequal nor limp and the Fisco never disdains that its rights be equalled to those of private men, with the limit that an intruder holding without any title, not even a coloured one, may be restored against at once · primary
The third reason is the wealth and power of the parties. At §14 "Y como en essos mismos tiempos, por haver tanto numero de Indios, las Encomiendas fuessen muy gruessas, y los que las pretendian, y aspiraban à ellas, poderosos, y belicosos, pareció al principio conveniente, que solo el Rey conociesse de sus causas por la gravedad de ellas, y poder de los Litigantes. Y despues, por ser tantas sus ocupaciones, se cometieron privativamente à los de su Consejo." The phrase "por haver tanto numero de Indios" states the size of the prize in the only terms that mattered to its holders, and is one of the few places in the chapter where the Indians appear at all.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§13-24 — why the Reales Audiencias of the Indies were inhibited from encomienda suits, and whether the royal treasury had to sue in the same court as a private party: the question raised at §13 and answered at §14, that the inhibition took its origin from the revolutions and seditions which the encomiendas and their distribution occasioned in some provinces of the Indies in those first times, and from the ill treatments done to the Indians on their occasion, which were the cause that it was many times debated to abolish them altogether, and that with so many Indians the encomiendas were then very large and those who pretended to them powerful and warlike, so that it seemed fit at first that the king alone should know of their causes for their gravity and the power of the litigants, and afterwards that his ministers in the Indies, because they lived there, might have friendships or other dependencies with the litigants, so that it seemed safer to bring the causes to the Council; the supporting analogies of the pleitos de Tenuta of the estates and mayorazgos of Spain reserved privatively to the Council of Castile, and of the feudal rule that the lord alone judges suits between two vassals over a fief and the peers of his curia those between lord and vassal; the statement at §18 that no encomienda cause was ever seen in an ecclesiastical tribunal even where monasteries and hospitals held the grant, and that this jurisdiction could not be prorogued by consent or error of the parties because it was wholly removed from the inferior by law; the rule at §19 that a doubtful case is to be remitted to the Council; and the question at §§20-24 whether the Fisco, suing to take an encomienda from a private holder and apply it to the Crown, may proceed in the Audiencia — the cédulas of Valladolid of 1 March 1552, Madrid of 17 July 1572 and Valladolid of 18 July 1551 cited for the affirmative, and the author's contrary conclusion that where the holder has a legitimate or at least a coloured cause of possession the same forum binds both ways, because judgments must not be unequal nor limp and the Fisco never disdains that its rights be equalled to those of private men, with the limit that an intruder holding without any title, not even a coloured one, may be restored against at once · primary
The fourth reason is the one with lasting institutional interest: the removal was a guard against the local capture of local judges, and it is stated without euphemism. At §14 "Porque aunque se pudiesse, y debiesse diferir mucho à las Audiencias de las Indias: todavia, porque los Ministros de ellas, como las habitaban, podian tener algunas amistades, ù otras dependencias con los Litigantes, pareció mas seguro traerlas al Consejo, donde mas libre, y maduramente se viessen, y determinassen en la forma, que se ha referido." The proposition is that judges resident in a small colonial society could not be trusted to decide the richest cases in it, and the remedy chosen was distance. It is a conjecture by a man who had himself sat on the Audiencia of Lima, and he names no judge, no case and no date in support of it.
confidence 0.85Política Indiana, libro III, capítulo XXX, §§13-24 — why the Reales Audiencias of the Indies were inhibited from encomienda suits, and whether the royal treasury had to sue in the same court as a private party: the question raised at §13 and answered at §14, that the inhibition took its origin from the revolutions and seditions which the encomiendas and their distribution occasioned in some provinces of the Indies in those first times, and from the ill treatments done to the Indians on their occasion, which were the cause that it was many times debated to abolish them altogether, and that with so many Indians the encomiendas were then very large and those who pretended to them powerful and warlike, so that it seemed fit at first that the king alone should know of their causes for their gravity and the power of the litigants, and afterwards that his ministers in the Indies, because they lived there, might have friendships or other dependencies with the litigants, so that it seemed safer to bring the causes to the Council; the supporting analogies of the pleitos de Tenuta of the estates and mayorazgos of Spain reserved privatively to the Council of Castile, and of the feudal rule that the lord alone judges suits between two vassals over a fief and the peers of his curia those between lord and vassal; the statement at §18 that no encomienda cause was ever seen in an ecclesiastical tribunal even where monasteries and hospitals held the grant, and that this jurisdiction could not be prorogued by consent or error of the parties because it was wholly removed from the inferior by law; the rule at §19 that a doubtful case is to be remitted to the Council; and the question at §§20-24 whether the Fisco, suing to take an encomienda from a private holder and apply it to the Crown, may proceed in the Audiencia — the cédulas of Valladolid of 1 March 1552, Madrid of 17 July 1572 and Valladolid of 18 July 1551 cited for the affirmative, and the author's contrary conclusion that where the holder has a legitimate or at least a coloured cause of possession the same forum binds both ways, because judgments must not be unequal nor limp and the Fisco never disdains that its rights be equalled to those of private men, with the limit that an intruder holding without any title, not even a coloured one, may be restored against at once · primary
Two analogies from European law are produced to show the arrangement was not peculiar to the Indies. At §15 "Porque siempre para causas grandes, y entre Magnates desea el Derecho muchos, y grandes Jueces", and the suits de Tenuta over the estates and mayorazgos of Spain are said to be reserved privatively to the Supreme Council of Castile for the same reasons, as Juan de Matienzo notes and applies to the encomiendas. At §16 the feudal rule: "en ellos es regla assentada, que quando los pleytos se forman entre dos Vassallos, que contienden sobre el Feudo, solo el Señor puede conocer de ellos. Y quando entre los Vassallos, y el mismo Señor, los Pares de su Curia, y no otros Jueces inferiores", which Rosenthal is said to prove at length and which the archbishop of Mexico Feliciano de Vega gathers in his commentaries on the Decretals.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§13-24 — why the Reales Audiencias of the Indies were inhibited from encomienda suits, and whether the royal treasury had to sue in the same court as a private party: the question raised at §13 and answered at §14, that the inhibition took its origin from the revolutions and seditions which the encomiendas and their distribution occasioned in some provinces of the Indies in those first times, and from the ill treatments done to the Indians on their occasion, which were the cause that it was many times debated to abolish them altogether, and that with so many Indians the encomiendas were then very large and those who pretended to them powerful and warlike, so that it seemed fit at first that the king alone should know of their causes for their gravity and the power of the litigants, and afterwards that his ministers in the Indies, because they lived there, might have friendships or other dependencies with the litigants, so that it seemed safer to bring the causes to the Council; the supporting analogies of the pleitos de Tenuta of the estates and mayorazgos of Spain reserved privatively to the Council of Castile, and of the feudal rule that the lord alone judges suits between two vassals over a fief and the peers of his curia those between lord and vassal; the statement at §18 that no encomienda cause was ever seen in an ecclesiastical tribunal even where monasteries and hospitals held the grant, and that this jurisdiction could not be prorogued by consent or error of the parties because it was wholly removed from the inferior by law; the rule at §19 that a doubtful case is to be remitted to the Council; and the question at §§20-24 whether the Fisco, suing to take an encomienda from a private holder and apply it to the Crown, may proceed in the Audiencia — the cédulas of Valladolid of 1 March 1552, Madrid of 17 July 1572 and Valladolid of 18 July 1551 cited for the affirmative, and the author's contrary conclusion that where the holder has a legitimate or at least a coloured cause of possession the same forum binds both ways, because judgments must not be unequal nor limp and the Fisco never disdains that its rights be equalled to those of private men, with the limit that an intruder holding without any title, not even a coloured one, may be restored against at once · primary
The reservation is then shown to hold against the strongest competing jurisdiction of the age. At §17 a suit de Tenuta against a cleric in possession, who is made a necessary defendant, must still be ventilated in the Council of Castile and not before the ecclesiastical judge of the defendant, which is called the truer and received opinion whether or not the property is jurisdictional. At §18 "Y assi nunca vi, ni oi, que de causas de Encomiendas, aunque pertenezcan à Monasterios, Hospitales, ò personas, y Comunidades Eclesiasticas por particular dispensacion, se ayan seguido los pleytos en Tribunales Eclesiasticos; sino siempre en el Consejo de las Indias, ò Reales Audiencias de ellas." The observation also records, in passing, that monasteries and hospitals held encomiendas by particular dispensation.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§13-24 — why the Reales Audiencias of the Indies were inhibited from encomienda suits, and whether the royal treasury had to sue in the same court as a private party: the question raised at §13 and answered at §14, that the inhibition took its origin from the revolutions and seditions which the encomiendas and their distribution occasioned in some provinces of the Indies in those first times, and from the ill treatments done to the Indians on their occasion, which were the cause that it was many times debated to abolish them altogether, and that with so many Indians the encomiendas were then very large and those who pretended to them powerful and warlike, so that it seemed fit at first that the king alone should know of their causes for their gravity and the power of the litigants, and afterwards that his ministers in the Indies, because they lived there, might have friendships or other dependencies with the litigants, so that it seemed safer to bring the causes to the Council; the supporting analogies of the pleitos de Tenuta of the estates and mayorazgos of Spain reserved privatively to the Council of Castile, and of the feudal rule that the lord alone judges suits between two vassals over a fief and the peers of his curia those between lord and vassal; the statement at §18 that no encomienda cause was ever seen in an ecclesiastical tribunal even where monasteries and hospitals held the grant, and that this jurisdiction could not be prorogued by consent or error of the parties because it was wholly removed from the inferior by law; the rule at §19 that a doubtful case is to be remitted to the Council; and the question at §§20-24 whether the Fisco, suing to take an encomienda from a private holder and apply it to the Crown, may proceed in the Audiencia — the cédulas of Valladolid of 1 March 1552, Madrid of 17 July 1572 and Valladolid of 18 July 1551 cited for the affirmative, and the author's contrary conclusion that where the holder has a legitimate or at least a coloured cause of possession the same forum binds both ways, because judgments must not be unequal nor limp and the Fisco never disdains that its rights be equalled to those of private men, with the limit that an intruder holding without any title, not even a coloured one, may be restored against at once · primary
The jurisdiction is held to be of a kind the parties cannot enlarge by agreement. At §18 the cédulas "se deben observar, y practicar tan precisamente, que aunque sea por consentimiento, ò error de las partes, no se puede prorrogar la jurisdiccion de otros Jueces, ni de las Audiencias, fuera de los casos, que les están remitidos, aunque no se oponga en contrario declinatoria: porque de ella no se necessita, quando por la ley, ò el estatuto está quitada totalmente la jurisdiccion al inferior, y reservada al superior", with Paz cited for the same in the Tenutas and for the consequence that any tribunal outside the Council is incompetent in them. In modern terms the rule is that this is subject-matter jurisdiction, not waivable and not curable by consent.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§13-24 — why the Reales Audiencias of the Indies were inhibited from encomienda suits, and whether the royal treasury had to sue in the same court as a private party: the question raised at §13 and answered at §14, that the inhibition took its origin from the revolutions and seditions which the encomiendas and their distribution occasioned in some provinces of the Indies in those first times, and from the ill treatments done to the Indians on their occasion, which were the cause that it was many times debated to abolish them altogether, and that with so many Indians the encomiendas were then very large and those who pretended to them powerful and warlike, so that it seemed fit at first that the king alone should know of their causes for their gravity and the power of the litigants, and afterwards that his ministers in the Indies, because they lived there, might have friendships or other dependencies with the litigants, so that it seemed safer to bring the causes to the Council; the supporting analogies of the pleitos de Tenuta of the estates and mayorazgos of Spain reserved privatively to the Council of Castile, and of the feudal rule that the lord alone judges suits between two vassals over a fief and the peers of his curia those between lord and vassal; the statement at §18 that no encomienda cause was ever seen in an ecclesiastical tribunal even where monasteries and hospitals held the grant, and that this jurisdiction could not be prorogued by consent or error of the parties because it was wholly removed from the inferior by law; the rule at §19 that a doubtful case is to be remitted to the Council; and the question at §§20-24 whether the Fisco, suing to take an encomienda from a private holder and apply it to the Crown, may proceed in the Audiencia — the cédulas of Valladolid of 1 March 1552, Madrid of 17 July 1572 and Valladolid of 18 July 1551 cited for the affirmative, and the author's contrary conclusion that where the holder has a legitimate or at least a coloured cause of possession the same forum binds both ways, because judgments must not be unequal nor limp and the Fisco never disdains that its rights be equalled to those of private men, with the limit that an intruder holding without any title, not even a coloured one, may be restored against at once · primary
The duty of abstention is then pushed one step further, to the doubtful case. At §19 "no solo deben las Reales Audiencias abstenerse del conocimiento de estas causas, quando les consta notoriamente, que exceden en cantidad, ò en calidad, de las que les están cometidas, ò permitidas; sino tambien quando ay alguna probable razon, para hallarse dudosos, si les toca, ò no su conocimiento, como si ay duda en si el pleyto es de mero espolio, ò de juicio de possession, ò si la Encomienda, mirados sus gastos, y contribuciones, ò quiebras, que puede haver avido en ella, excede, ò no excede los mil ducados de renta. Porque entonces lo mas seguro será abstenerse de su conocimiento, y remitirle al Consejo", both because it belongs to the prince to declare the doubts of his own rescripts and privileges and because judges who meddle in suits entering doubtful of their jurisdiction sin mortally, "porque la certeza, y seguridad de ella, debe preceder su exercicio, y conocimiento" according to the doctrines of theologians and jurists.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§13-24 — why the Reales Audiencias of the Indies were inhibited from encomienda suits, and whether the royal treasury had to sue in the same court as a private party: the question raised at §13 and answered at §14, that the inhibition took its origin from the revolutions and seditions which the encomiendas and their distribution occasioned in some provinces of the Indies in those first times, and from the ill treatments done to the Indians on their occasion, which were the cause that it was many times debated to abolish them altogether, and that with so many Indians the encomiendas were then very large and those who pretended to them powerful and warlike, so that it seemed fit at first that the king alone should know of their causes for their gravity and the power of the litigants, and afterwards that his ministers in the Indies, because they lived there, might have friendships or other dependencies with the litigants, so that it seemed safer to bring the causes to the Council; the supporting analogies of the pleitos de Tenuta of the estates and mayorazgos of Spain reserved privatively to the Council of Castile, and of the feudal rule that the lord alone judges suits between two vassals over a fief and the peers of his curia those between lord and vassal; the statement at §18 that no encomienda cause was ever seen in an ecclesiastical tribunal even where monasteries and hospitals held the grant, and that this jurisdiction could not be prorogued by consent or error of the parties because it was wholly removed from the inferior by law; the rule at §19 that a doubtful case is to be remitted to the Council; and the question at §§20-24 whether the Fisco, suing to take an encomienda from a private holder and apply it to the Crown, may proceed in the Audiencia — the cédulas of Valladolid of 1 March 1552, Madrid of 17 July 1572 and Valladolid of 18 July 1551 cited for the affirmative, and the author's contrary conclusion that where the holder has a legitimate or at least a coloured cause of possession the same forum binds both ways, because judgments must not be unequal nor limp and the Fisco never disdains that its rights be equalled to those of private men, with the limit that an intruder holding without any title, not even a coloured one, may be restored against at once · primary
The chapter's second question is whether the crown's own lawyer is bound by the same forum rules as the men he sues. At §20 "Lo segundo, cerca de la dicha ley de Malinas, y sus Declaratorias, se puede, y suele dudar, si supuesto, que ordenan, que en el Supremo Consejo de las Indias se determinen las causas de las Encomiendas, que se ofrecen entre Particulares, ora estén puestos los Indios en la Corona Real, ora los possean los dichos Particulares: qué avrémos de decir, y practicar, quando el Fisco es el Actor, y pretende, que algun Particular ha de ser privado de los Indios, que injustamente possee, ò que no debe gozar de ellos, por haver cometido culpa digna de privacion, y que se han de aplicar à la Corona Real?"
confidence 0.9Política Indiana, libro III, capítulo XXX, §§13-24 — why the Reales Audiencias of the Indies were inhibited from encomienda suits, and whether the royal treasury had to sue in the same court as a private party: the question raised at §13 and answered at §14, that the inhibition took its origin from the revolutions and seditions which the encomiendas and their distribution occasioned in some provinces of the Indies in those first times, and from the ill treatments done to the Indians on their occasion, which were the cause that it was many times debated to abolish them altogether, and that with so many Indians the encomiendas were then very large and those who pretended to them powerful and warlike, so that it seemed fit at first that the king alone should know of their causes for their gravity and the power of the litigants, and afterwards that his ministers in the Indies, because they lived there, might have friendships or other dependencies with the litigants, so that it seemed safer to bring the causes to the Council; the supporting analogies of the pleitos de Tenuta of the estates and mayorazgos of Spain reserved privatively to the Council of Castile, and of the feudal rule that the lord alone judges suits between two vassals over a fief and the peers of his curia those between lord and vassal; the statement at §18 that no encomienda cause was ever seen in an ecclesiastical tribunal even where monasteries and hospitals held the grant, and that this jurisdiction could not be prorogued by consent or error of the parties because it was wholly removed from the inferior by law; the rule at §19 that a doubtful case is to be remitted to the Council; and the question at §§20-24 whether the Fisco, suing to take an encomienda from a private holder and apply it to the Crown, may proceed in the Audiencia — the cédulas of Valladolid of 1 March 1552, Madrid of 17 July 1572 and Valladolid of 18 July 1551 cited for the affirmative, and the author's contrary conclusion that where the holder has a legitimate or at least a coloured cause of possession the same forum binds both ways, because judgments must not be unequal nor limp and the Fisco never disdains that its rights be equalled to those of private men, with the limit that an intruder holding without any title, not even a coloured one, may be restored against at once · primary
The case for letting the treasury proceed locally is stated first and at length, and it rests on three cédulas that had ordered exactly that. At §21 the Fisco is said not to be comprehended in those laws, and to have the privilege that it be briefly and summarily integrated in the rights that belong to it and that it never litigate dispossessed; "y particularmente, porque por una Cedula dada en Valladolid à 1. de Marzo de 1552. y otra de Madrid de 17. de Julio de 1572. se manda à las dichas Audiencias, que quiten los Indios, que tuvieren Clerigos, Obispos, y Monasterios, y los reduzcan à la Corona Real. Y por otra dada en Valladolid à 18. de Julio de 1551. se manda, que por las mismas Audiencias se guarde el Capitulo de las Nuevas leyes del año de 1542, en que se ordenó, se quitassen los Indios à todos aquellos, que constasse los tenian sin titulo legitimo." None of the three cédulas, and no printing of the Leyes Nuevas, was opened here.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§13-24 — why the Reales Audiencias of the Indies were inhibited from encomienda suits, and whether the royal treasury had to sue in the same court as a private party: the question raised at §13 and answered at §14, that the inhibition took its origin from the revolutions and seditions which the encomiendas and their distribution occasioned in some provinces of the Indies in those first times, and from the ill treatments done to the Indians on their occasion, which were the cause that it was many times debated to abolish them altogether, and that with so many Indians the encomiendas were then very large and those who pretended to them powerful and warlike, so that it seemed fit at first that the king alone should know of their causes for their gravity and the power of the litigants, and afterwards that his ministers in the Indies, because they lived there, might have friendships or other dependencies with the litigants, so that it seemed safer to bring the causes to the Council; the supporting analogies of the pleitos de Tenuta of the estates and mayorazgos of Spain reserved privatively to the Council of Castile, and of the feudal rule that the lord alone judges suits between two vassals over a fief and the peers of his curia those between lord and vassal; the statement at §18 that no encomienda cause was ever seen in an ecclesiastical tribunal even where monasteries and hospitals held the grant, and that this jurisdiction could not be prorogued by consent or error of the parties because it was wholly removed from the inferior by law; the rule at §19 that a doubtful case is to be remitted to the Council; and the question at §§20-24 whether the Fisco, suing to take an encomienda from a private holder and apply it to the Crown, may proceed in the Audiencia — the cédulas of Valladolid of 1 March 1552, Madrid of 17 July 1572 and Valladolid of 18 July 1551 cited for the affirmative, and the author's contrary conclusion that where the holder has a legitimate or at least a coloured cause of possession the same forum binds both ways, because judgments must not be unequal nor limp and the Fisco never disdains that its rights be equalled to those of private men, with the limit that an intruder holding without any title, not even a coloured one, may be restored against at once · primary
The 1736 editor inserts at this point two asterisked paragraphs stating the recopiled law on who could not hold an encomienda at all, and they are the editor's and not Solórzano's. The first digests ley 12, título 8, libro 6 of the Recopilación de Leyes de Indias, where the same is commanded "respecto de Virreyes, Governadores, y otros qualesquiera Ministros de Justicia, y Oficiales de la Real Hacienda, y que esto se guarde, aunque digan, que quieren dexar los empleos, y mantener los Indios"; the second notes that the lieutenants of governors and the alcaldes and corregidores of pueblos are excepted, and that "Esta misma prohibicion se puso à los hijos, è hijas de los referidos; sino es que estuvieren casados, y governassen su familia al tiempo de darles la Encomienda. L. 13. d. tit. 8. lib. 6. Recop." Per the convention this corpus follows for this edition, the claim carries a lower confidence because no printing of the Recopilación was opened and the digest is a later editor's.
confidence 0.8Política Indiana, libro III, capítulo XXX, §§13-24 — why the Reales Audiencias of the Indies were inhibited from encomienda suits, and whether the royal treasury had to sue in the same court as a private party: the question raised at §13 and answered at §14, that the inhibition took its origin from the revolutions and seditions which the encomiendas and their distribution occasioned in some provinces of the Indies in those first times, and from the ill treatments done to the Indians on their occasion, which were the cause that it was many times debated to abolish them altogether, and that with so many Indians the encomiendas were then very large and those who pretended to them powerful and warlike, so that it seemed fit at first that the king alone should know of their causes for their gravity and the power of the litigants, and afterwards that his ministers in the Indies, because they lived there, might have friendships or other dependencies with the litigants, so that it seemed safer to bring the causes to the Council; the supporting analogies of the pleitos de Tenuta of the estates and mayorazgos of Spain reserved privatively to the Council of Castile, and of the feudal rule that the lord alone judges suits between two vassals over a fief and the peers of his curia those between lord and vassal; the statement at §18 that no encomienda cause was ever seen in an ecclesiastical tribunal even where monasteries and hospitals held the grant, and that this jurisdiction could not be prorogued by consent or error of the parties because it was wholly removed from the inferior by law; the rule at §19 that a doubtful case is to be remitted to the Council; and the question at §§20-24 whether the Fisco, suing to take an encomienda from a private holder and apply it to the Crown, may proceed in the Audiencia — the cédulas of Valladolid of 1 March 1552, Madrid of 17 July 1572 and Valladolid of 18 July 1551 cited for the affirmative, and the author's contrary conclusion that where the holder has a legitimate or at least a coloured cause of possession the same forum binds both ways, because judgments must not be unequal nor limp and the Fisco never disdains that its rights be equalled to those of private men, with the limit that an intruder holding without any title, not even a coloured one, may be restored against at once · primary
The author then decides against the treasury, and the ground is the equality of the two sides before the same court. At §22 "Pero sin embargo, Yo siento lo contrario, en caso, que el Particular, à quien el Fisco pide, ò pretende quitar la Encomienda, tuviesse alguna legitima, ò por lo menos colorada causa para posseerla. Porque hallo, que es general la determinacion de las Cedulas referidas, para que ... pleytaren, ò quisieren pleytar sobre Encomiendas en possession, y en propiedad, y que se ayan de remitir, y remitan al Real Consejo de Indias. Y como esto se ha de guardar, quando el Particular pide contra el Fisco; assi tambien quando el Fisco contra el Particular: porque no deben ser desiguales los juicios, ò claudicar, como lo dicen las leyes, y sus DD, y nunca se dedigna el Fisco, de que sus derechos se igualen à los privados, y usa del Comun; sino es donde especialmente se halla privilegiado." One clause of that sentence is damaged by an ink flaw in this copy and is marked with an ellipsis here rather than guessed at.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§13-24 — why the Reales Audiencias of the Indies were inhibited from encomienda suits, and whether the royal treasury had to sue in the same court as a private party: the question raised at §13 and answered at §14, that the inhibition took its origin from the revolutions and seditions which the encomiendas and their distribution occasioned in some provinces of the Indies in those first times, and from the ill treatments done to the Indians on their occasion, which were the cause that it was many times debated to abolish them altogether, and that with so many Indians the encomiendas were then very large and those who pretended to them powerful and warlike, so that it seemed fit at first that the king alone should know of their causes for their gravity and the power of the litigants, and afterwards that his ministers in the Indies, because they lived there, might have friendships or other dependencies with the litigants, so that it seemed safer to bring the causes to the Council; the supporting analogies of the pleitos de Tenuta of the estates and mayorazgos of Spain reserved privatively to the Council of Castile, and of the feudal rule that the lord alone judges suits between two vassals over a fief and the peers of his curia those between lord and vassal; the statement at §18 that no encomienda cause was ever seen in an ecclesiastical tribunal even where monasteries and hospitals held the grant, and that this jurisdiction could not be prorogued by consent or error of the parties because it was wholly removed from the inferior by law; the rule at §19 that a doubtful case is to be remitted to the Council; and the question at §§20-24 whether the Fisco, suing to take an encomienda from a private holder and apply it to the Crown, may proceed in the Audiencia — the cédulas of Valladolid of 1 March 1552, Madrid of 17 July 1572 and Valladolid of 18 July 1551 cited for the affirmative, and the author's contrary conclusion that where the holder has a legitimate or at least a coloured cause of possession the same forum binds both ways, because judgments must not be unequal nor limp and the Fisco never disdains that its rights be equalled to those of private men, with the limit that an intruder holding without any title, not even a coloured one, may be restored against at once · primary
The feudal analogy is turned around to support it. At §23 "Y assi vemos, que en los Feudos los Pares de la Curia igualmente juzgan, quando el Señor pleytea sobre ellos, ò sus investiduras, contra los Vassallos, que quando los Vassallos contra sus Señores, como lo dicen los textos, y AA, que tratan de ellos." The same court that hears the lord against the vassal hears the vassal against the lord; the forum follows the subject matter and not the rank of the party.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§13-24 — why the Reales Audiencias of the Indies were inhibited from encomienda suits, and whether the royal treasury had to sue in the same court as a private party: the question raised at §13 and answered at §14, that the inhibition took its origin from the revolutions and seditions which the encomiendas and their distribution occasioned in some provinces of the Indies in those first times, and from the ill treatments done to the Indians on their occasion, which were the cause that it was many times debated to abolish them altogether, and that with so many Indians the encomiendas were then very large and those who pretended to them powerful and warlike, so that it seemed fit at first that the king alone should know of their causes for their gravity and the power of the litigants, and afterwards that his ministers in the Indies, because they lived there, might have friendships or other dependencies with the litigants, so that it seemed safer to bring the causes to the Council; the supporting analogies of the pleitos de Tenuta of the estates and mayorazgos of Spain reserved privatively to the Council of Castile, and of the feudal rule that the lord alone judges suits between two vassals over a fief and the peers of his curia those between lord and vassal; the statement at §18 that no encomienda cause was ever seen in an ecclesiastical tribunal even where monasteries and hospitals held the grant, and that this jurisdiction could not be prorogued by consent or error of the parties because it was wholly removed from the inferior by law; the rule at §19 that a doubtful case is to be remitted to the Council; and the question at §§20-24 whether the Fisco, suing to take an encomienda from a private holder and apply it to the Crown, may proceed in the Audiencia — the cédulas of Valladolid of 1 March 1552, Madrid of 17 July 1572 and Valladolid of 18 July 1551 cited for the affirmative, and the author's contrary conclusion that where the holder has a legitimate or at least a coloured cause of possession the same forum binds both ways, because judgments must not be unequal nor limp and the Fisco never disdains that its rights be equalled to those of private men, with the limit that an intruder holding without any title, not even a coloured one, may be restored against at once · primary
The conclusion is then bounded, and the boundary is what makes it a rule rather than a slogan. At §24 "A lo qual no repugnan las Cedulas, que ponderé en contrario, ni que el Fisco nunca suele litigar desposseido. Porque proceden, y se han de practicar sin duda solo en los casos, de que hablan: conviene à saber, donde el Fisco tiene, ò entra fundando su intencion, y aquel, con quien litiga no es posseedor; sino intruso, è injusto detentador de la Encomienda sin titulo alguno, ni aun colorado. En el qual caso es justo, que las Reales Audiencias le restituyan luego, como tambien pueden, y deben restituir à qualesquier Particulares despojados de hecho, segun la ley de Malinas, y sus Declaratorias, que dexo citadas." The protection therefore turns entirely on whether the holder can show a title of some colour: with one, he goes to the Council like anyone else; with none, the local Audiencia may put him out at once.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§13-24 — why the Reales Audiencias of the Indies were inhibited from encomienda suits, and whether the royal treasury had to sue in the same court as a private party: the question raised at §13 and answered at §14, that the inhibition took its origin from the revolutions and seditions which the encomiendas and their distribution occasioned in some provinces of the Indies in those first times, and from the ill treatments done to the Indians on their occasion, which were the cause that it was many times debated to abolish them altogether, and that with so many Indians the encomiendas were then very large and those who pretended to them powerful and warlike, so that it seemed fit at first that the king alone should know of their causes for their gravity and the power of the litigants, and afterwards that his ministers in the Indies, because they lived there, might have friendships or other dependencies with the litigants, so that it seemed safer to bring the causes to the Council; the supporting analogies of the pleitos de Tenuta of the estates and mayorazgos of Spain reserved privatively to the Council of Castile, and of the feudal rule that the lord alone judges suits between two vassals over a fief and the peers of his curia those between lord and vassal; the statement at §18 that no encomienda cause was ever seen in an ecclesiastical tribunal even where monasteries and hospitals held the grant, and that this jurisdiction could not be prorogued by consent or error of the parties because it was wholly removed from the inferior by law; the rule at §19 that a doubtful case is to be remitted to the Council; and the question at §§20-24 whether the Fisco, suing to take an encomienda from a private holder and apply it to the Crown, may proceed in the Audiencia — the cédulas of Valladolid of 1 March 1552, Madrid of 17 July 1572 and Valladolid of 18 July 1551 cited for the affirmative, and the author's contrary conclusion that where the holder has a legitimate or at least a coloured cause of possession the same forum binds both ways, because judgments must not be unequal nor limp and the Fisco never disdains that its rights be equalled to those of private men, with the limit that an intruder holding without any title, not even a coloured one, may be restored against at once · primary
What this entry establishes and what it does not. It establishes that the standard treatise on the government of the Indies gave four reasons for removing encomienda litigation from the colonial courts — armed revolt, the ill treatment of the Indians, the power of the litigants, and the friendships and dependencies of judges who lived among them — and that the fourth is stated as a plain distrust of resident judges in the richest class of case before them. It establishes that the same author held the jurisdiction to be non-prorogable by consent, owed abstention even in doubt, and binding on the royal treasury itself wherever the defendant held under a title of any colour, on the ground that judgments must not be unequal. It establishes none of this as practice: §14 is offered as conjecture in its own first line, no revolt, judge, suit or date is named anywhere in these twelve paragraphs, and the three cédulas that would show what the Audiencias were actually ordered to do were not opened. And it establishes nothing about the Indians of these encomiendas beyond the two places where the chapter mentions them at all: as the victims of the ill treatment that helped move the jurisdiction, and as the measure of how rich the grants were.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§13-24 — why the Reales Audiencias of the Indies were inhibited from encomienda suits, and whether the royal treasury had to sue in the same court as a private party: the question raised at §13 and answered at §14, that the inhibition took its origin from the revolutions and seditions which the encomiendas and their distribution occasioned in some provinces of the Indies in those first times, and from the ill treatments done to the Indians on their occasion, which were the cause that it was many times debated to abolish them altogether, and that with so many Indians the encomiendas were then very large and those who pretended to them powerful and warlike, so that it seemed fit at first that the king alone should know of their causes for their gravity and the power of the litigants, and afterwards that his ministers in the Indies, because they lived there, might have friendships or other dependencies with the litigants, so that it seemed safer to bring the causes to the Council; the supporting analogies of the pleitos de Tenuta of the estates and mayorazgos of Spain reserved privatively to the Council of Castile, and of the feudal rule that the lord alone judges suits between two vassals over a fief and the peers of his curia those between lord and vassal; the statement at §18 that no encomienda cause was ever seen in an ecclesiastical tribunal even where monasteries and hospitals held the grant, and that this jurisdiction could not be prorogued by consent or error of the parties because it was wholly removed from the inferior by law; the rule at §19 that a doubtful case is to be remitted to the Council; and the question at §§20-24 whether the Fisco, suing to take an encomienda from a private holder and apply it to the Crown, may proceed in the Audiencia — the cédulas of Valladolid of 1 March 1552, Madrid of 17 July 1572 and Valladolid of 18 July 1551 cited for the affirmative, and the author's contrary conclusion that where the holder has a legitimate or at least a coloured cause of possession the same forum binds both ways, because judgments must not be unequal nor limp and the Fisco never disdains that its rights be equalled to those of private men, with the limit that an intruder holding without any title, not even a coloured one, may be restored against at once · primary