Gaming in the Indies: the Third Council of Lima's excommunication, and the manual that says the winnings need not be given back
A bishop of Quito devotes a treatise of his manual for parish priests to gambling, and defends play as morally neutral before regulating it. The disciplinary canon he then quotes in full is aimed not at the Indians but at the clergy of the Indies, excommunicating any cleric who stakes more than fifty gold pieces at dice or cards. Its first session then concludes that the excommunicated cleric keeps what he won - the game being an illicit contract and not a void one.
Why this wins its question: Colonial-era gambling regulation in Spanish America is covered, where it is covered at all, as a story about controlling the indigenous and casta population - the cockpits, the pulquerías, the tribute lost at cards. The document that actually governed the question in the Andean church says something else, and this object prints it from the page: the Third Council of Lima's gaming canon opens by declaring that the excess had grown among the clergy, sets its excommunication threshold at fifty gold pieces, and permits only a recreational game played for food worth under two. Around it the object puts the moral framework the same manual builds first - play defined as a contract, defended as an act of the virtue of eutrapelia, excused even when played from greed, and condemned only through neglected duty, oaths, rage and cheating - and the property conclusion that follows: the excommunicated cleric keeps his winnings, because an illicit contract is not a void one. No popular account carries the canon's own preamble, and the preamble is the part that names who was being disciplined.
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 subject has a treatise of its own in the manual written for the parish clergy of the Indies, and the treatise opens by defining play as a contract rather than as a vice. Alonso de la Peña Montenegro, bishop of Quito, heads libro I, tratado XII of his Itinerario para parochos de indios "Del Iuego", and its prologue begins: "Iuego no es otra cosa, que contractus quidam, quo ludentes inter se paciscuntur, ut victori cedat, quod uterque deposuit". It is a thing held certain among all the Doctors, he continues, that there being in it nothing opposed to reason, not only is it not sin, "mas antes si se toma por divertimiento, es acto de la virtud de Eutropelia, y pertenece a la virtud de templança", citing Aquinas 2.2 q.168 art.2, Lessius and Azor.
The defence is pressed further than a modern reader expects, and against named authorities on the other side. Play of its nature is not evil but good, §2 states; it could become so if someone exercised it from a bad motive, and grave authors say that using it "por codicia de ganar mucho dinero" would be sin, for which Panormitanus and "mi sapientissimo Abulense" are cited. "Pero lo mas cierto es", the manual concludes, "que aunque uno juegue por codicia de ganar, no es pecado: la razon es porque la intencion de ganar, no es contra razon; luego no haze pecaminoso el juego."
The objection from the Decalogue is stated and answered by an argument about consent that would serve any commercial contract. If someone should say that play is against the last precept of the Decalogue and so must be sin, §3 answers that it is not, because the intention to win is under a concert and pact made by those who play, so that whoever wins in the agreed manner "se puso a la contingencia de ganar, se puso tambien a la contingencia de perder", all of it done with the will and consent of the players, "porque scienti, & consentienti nulla fit iniuria". A second argument follows: were the intention of gain sinful, "tambien fueran ilicitos, y pecaminosos todos los contratos que hazen los hombres con intencion de ganar".
Only after that does the treatise turn against gambling, and it does so through circumstances rather than through the act. Although play of its nature is neither illicit nor evil but indifferent, §4 states, "mas ordinario es ser ilicito, y pecaminoso por los accidentes, y circunstancias que se le llegan, como son faltar uno a sus obligaciones, y a las de su ocupacion, por atender a èl, por los votos, y juramentos que hazen, por la ira, y enojo que causa a los perdidizos, por las trampas que se hazen para engañar à aquellos con quienes juegan", citing Filiucius. The harm identified is neglected duty, blasphemy, rage and cheating - not the wager.
Gaming houses are treated as a separate question and decided the other way, against the doctrine that would have excused them. Aquinas 2.2 q.169 art.2 ad 6, Bonacina "Veracruz, y otros" are reported at §5 holding that to minister and sell indifferent things "cum cognitione pravi abusus" is not sin, and that for that reason neither would it be to keep gaming houses; "con todo esso se tiene por mas cierto ser pecado, por ser mas ordinario en ellas cometerse los pecados arriba referidos muchas vezes, y jugar en ellas personas prohibidas", citing Navarro, Molina and Diana. The list of authorities is given here as the copy prints it; the reader should note that the "Veracruz" of that list is very probably Alonso de la Vera Cruz, the Augustinian of New Spain, but the identification is this entry's inference from the surname alone and no work of his was opened to confirm it, which is why this claim carries the confidence it does.
The civil prohibition is then reported together with the observation that it had lapsed, which is the kind of remark that makes a confessor's manual useful as evidence. By natural law and by divine positive law play is not prohibited, §6 states; human law prohibited it, by the leyes 2 and 3 ff. de aleatoribus and the Authentica alearum, and by the laws of the kingdom it is forbidden to laymen, "principalmente el de los dados, y el de los naypes", as gathered from ley 15 título 26 and ley 8 título 77 of the Recopilación. Some affirm those laws bind under mortal sin; but others "con mas probabilidad, dizen, que ni aun obligan a pecado venial, porque estas leyes por la costumbre contraria, ya cayeron de su fuerça, y de su vigor", citing Filiucius and Salas. A bishop's manual is printing the view that the crown's gaming statutes had been killed by contrary custom.
The American canon that follows is the finding this object exists for, because its target is not the population usually assumed. "Pero con mas aprieto", §7 begins, "viendo que se gastavan las haziendas en los juegos, y lo mucho que lo continuavan los Clerigos en estas partes, el Concilio Limense III. act. 3. c. 17. lo prohibe con graves penas". The disciplinary measure quoted in a manual for the parish priests of Indians is a measure against those parish priests. Its own preamble says so: "Ita multorum Clericorum in ludendo crevit excessus, ut cogamur remedia austeriora tentare, quo, & Ecclesiastici Ordinis infamia aliqua ex parte aboleatur, & perditi moris illorum, qui in hujusmodi insaniunt quoad fieri poterit corrigantur".
The canon's terms are quoted in full and are precise about sums, which is what makes them usable as evidence of what was thought excessive. Whoever shall have spent time at dice or painted cards or any other game prohibited by law, and shall have played "summam excedentem quinquaginta aureos", incurs sentence of excommunication ipso facto. One exception is allowed and it is drawn narrowly: "exceptum tamen volumus honestum aliquem, ac recreationis causa tantum susceptum ludum, in quo comestibile quidpiam pretium sit, & tale, ut aureorum duorum valorem non excedat, quod etiam ipsum frequens esse non debet". A game for food worth under two gold pieces, and not often even then.
The treatise's first session then asks what the censure does to the money, and the question is posed in exactly those terms. Sesion I is headed "Si tendrà obligacion el Clerigo que quebrantando el precepto del Concilio Limense, juega descomulgado, a restituir?" That the question needed asking is itself informative: the canon had been in force since 1583 and its property consequences were still being worked out in a manual printed for the clergy of another diocese a century later.
The answer is that he keeps it, and the reasoning is a clean distinction of contract law. Although it be illicit to play, being prohibited by the law, "lo que gana el Clerigo jugando, no tiene obligacion a restituirlo", §1 states, citing Soto, Covarrubias, Lessius, Molina and Cenedo. The reason is that there is an obligation to restore only another's property, and what was won at such a game is not another's, since by it "como por contrato legitimo pudo transferirse el dominio con el libre consentimiento de los jugadores"; the players are not made incapable of contracting because the game is prohibited. The parallels offered are a marriage contracted after a vow of chastity or after betrothal to another, and the sale of a thing first promised to God: "Aliud enim est contractum esse illicitum, aliud esse irritum." Neither the cleric, the session concludes, nor the layman who won from the cleric, need restore.
The strongest objection is stated in the manual's own words before it is answered, and it turns on the excommunication itself. The cleric who plays for more than fifty pesos, §2 puts it, "queda ipso facto descomulgado; y estandolo, està inhabil para contratos, y no puede transferir el dominio de lo que perdiere; de donde se sigue, que tampoco podrà ganar, como se vè en el Religioso, que si juega sin licencia del Prelado, no puede perder; y consiguientemente no puede ganar". The figure appears here as fifty pesos where the canon quoted a page earlier reads fifty aurei; the manual moves between the two without remark, and this entry reports both rather than reconciling them.
The objection is defeated by showing that excommunication does not touch capacity to contract, on four worked examples. The excommunicate is not incapable of contracts, §3 answers: faculty is given for him, after absolution, to sue for what is owed him under contracts made while he was excommunicated; the religious profession an excommunicate makes is presumed valid; the marriage an excommunicate contracts is legitimate; and donations made by them are held good. With that, "queda llana la resolucion: Que puede muy bien el Clerigo ganar a las personas que jugaren con èl qualquiera cantidad, porque ni le impide el adquirir dominio en lo ganado, como està dicho, ni la censura en que incurriò, ni tampoco el precepto del Concilio."
The net effect is a canon with a severe spiritual sanction and no restitutionary one, and stating it that way is this entry's reading rather than the book's. The Third Council of Lima excommunicated the gambling cleric ipso facto; the manual concludes that the same cleric acquires good title to every peso he won, and that the layman who beat him keeps his winnings too. Peña Montenegro nowhere presents this as a weakness of the canon - he is answering a question of the internal forum, where restitution and censure are separate matters, and to him the two answers are simply about different things. The observation that a rule whose whole complaint is that estates were being consumed at play leaves the transfers standing is the reading of this object, and it is offered at that confidence.
Two limits, one of substance and one bibliographical. Of substance: nothing read here is evidence that any cleric was ever excommunicated, denounced or absolved under this canon, that any estate was in fact consumed at play, or that the crown's lapsed gaming statutes were or were not enforced in the Indies; this is a bishop's published doctrine for confessors, and the Third Council of Lima, the leyes of the Recopilación and the civil and canon texts are all known here only as this book prints them. Bibliographical: the treatise is cited above as tratado XII on the authority of the heading printed at folio 194 and of the volume's own analytic index, both of which read XII; the running heads on the two following leaves read "Lib. I. Tract. XIII.", and the running head on folio 195 reads "Sess. I." on a page that carries the prologue. The copy is wrong in its running heads and is reported so rather than silently corrected.