Tratado de confirmaciones reales (Madrid, 1630): the first printed monograph on the law of the Indies, written while its author was compiling the Recopilacion
A book on a narrow question - which grants in the Americas need the king's confirmation - that became the first systematic treatment of the royal law of the Indies. Leon Pinelo, raised in Lima, had spent seven years compiling the Recopilacion; his margins cite it by book, title and law fifty years before it was printed. His prologue gives the reason: the naturales have no protection when judged but the laws, and are wronged when judges do not know the cedulas.
Why this wins its question: Leon Pinelo is met in English almost exclusively as a bibliographer - the Epitome of 1629 - or as a name attached to the Recopilacion of 1680, and the book he actually published between them is quoted by nobody. Written from his own pages, this object gives the mechanism rather than the label: the engraved title that puts Peru and New Spain under two tribute texts from Genesis and Deuteronomy; a prologue that states, as the reason for compiling the whole code, that the Indians have no shield when judged but the laws, and come off wronged when judges do not know the cedulas; a first chapter that assigns the encomienda's origin to greed for gold and says the demand was for mines rather than agriculture; a marginal note citing the Recopilacion by book, title and law fifty years before it was printed; the ordinances of 1573 reduced to ten cows, four oxen, a mare, five sows, six hens, a cock and twenty sheep; and the order to stop saying conquista - followed immediately by the author's own admission that in the Indies the two words went on meaning different things. It also prints, in its own prologue, the objection that destroys half of it: that a man who has not sailed the seas or walked the lands cannot write of the Indies without great errors.
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 book exists, it is dated, and its engraved title page is an argument before a word of text. Within an arch lettered PRO INDIARVM REGIO SENATV, between the two columns lettered PLVS VLTRA and above a ship under sail, the plate reads "TRATADO DE CONFIRMACIONES REALES DE Encomiendas, Oficios i casos, en que se requieren para las Indias Occidentales", dedicated "A Don Lorenco Ramirez de Prado del Consejo del Rey N.S. en el Supremo de las Indias i Iunta de Guerra dellas; i en el de Cruzada i Iunta de Competencias", and "Por el Lic. Antonio de Leon Relator del mismo Consejo de las Indias. Con Privilegio". The plate is signed "I. de Courbes F." and the imprint at the foot reads "En Madrid. Por Iuan Gonzalez. 1630." Flanking the title, two standing figures in indigenous dress are labelled, in Latin, PERV and NOVA HISPANIA.
The same title page states the tributary frame of the whole subject, in two scriptural tags set in tablets at the base of the architecture. Under the figure labelled PERV: "Et supposuit humerum suum ad portandum factusque est tributis serviens. Gen. c.49." Under the figure labelled NOVA HISPANIA: "Cunctus populus qui in ea est, salvabitur et serviet tibi sub tributo. Deuter. c.20." A book about which grants require the king's confirmation opens by placing the two American viceroyalties under Genesis on the bowed shoulder that becomes a servant unto tribute and under Deuteronomy on the people who shall be saved and serve under tribute. This corpus records the tags because they are the frame the book itself chose, not because it endorses them.
The reason for printing the law is stated in the prologue, and it is the condition of the Indians. Dr Iuan Rodriguez de Leon, the author's brother, writes that the useful knowledge of the laws "con particulares circunstancias, se descubre en las Indias, cuyos naturales, hasta oy de rusticos talentos, no tienen otro amparo al ser juzgados, sino el de las leyes con que son defendidos: saliendo no pocas vezes agraviados, porque en la memoria de los juezes falto la ciencia de las cedulas, que no todos alcancan." The scruple, he adds, is what moved the Real Consejo de Indias to begin publishing the new Recopilacion of them, "en que el Autor deste libro ha trabajado siete anos". The condescension about rustic talents and the argument that the law is the Indians' only shield stand in the same sentence, and both are on the page.
The prologue also concedes, in print, the book's principal weakness, and names the standard by which it should be judged. Writing on such subjects, it says, requires "no solo aver estudiado, sino aver visto; porque siempre fue mas acertada la experiencia remitida a los ojos, que la noticia preguntada a los testigos", and quotes Pliny's panegyric of Trajan on those whose credit is proved by the eyes and not the ears. To write of the Indies with infallible truth without having seen them could be called impossible, "pero digase, que es dificil: porque declarando tantos pedacos de historia, sin aver navegado los mares, ni caminado las tierras, no se como escusara grandes yerros". The defence offered is that reading those who teach from experience can mend the fault of those who speak from report, closing with Plautus: one eyewitness is worth more than ten who speak from hearsay. Leon Pinelo grew up in Lima, but the treatise was written in Madrid from the Council's papers.
The prologue reaches for a non-European precedent for publishing law, and finds it in Mexico. After Cneius Flavius, who published the political statutes of Rome, and the praetors who posted their edicts in the place called Album so that while they bound observance they should not be hidden from notice, it continues: "Discrecion no olvidada en el barbaro Imperio de los Indios de Mexico: que (como afirma el Autor de su Monarquia) cantavan sus historias i leyes, siendo letras de su musica los fundamentos de su govierno: para que no faltassen a la memoria, quando se pidiessen a la justicia." The epithet is the period's; the argument is that Mexica practice belongs in the same series as Rome, cited from Torquemada's Monarquia Indiana as an authority on how a government kept its law knowable.
The treatise begins with the origin of the encomienda and assigns the motive without softening it. Chapter I of the first part records that the islands were found "ricas de oro, i abundantes de naturales", that the greed for the metal and the hope of riches, rather than the lustre of settling, carried so many people from Spain that Santo Domingo came to have more Castilians than the most populous city of the Indies then had; that Ferdinand and Isabella wished the New World ennobled with settlements that would perpetuate themselves, and gave the Admiral and Viceroy power to distribute lands, woods, waters and house-plots so that settlers could build, sow and raise stock. Then: "Pero como el deseo de muchos era mas codicioso que politico, y lo que mas gente llevava, era el amor del oro, para cuyo beneficio se requerian Indios, dieron todos en apetecerlos; mas para las minas, que para la agricultura." The sentence is a royal official's, printed with a royal privilege.
The table of chapters shows what a treatise on confirmations had to cover, and it is the whole encomienda system. The first part runs: the origin and beginning of the repartimientos and encomiendas (folio 1); the promulgation of the New Laws (folio 6); the right of succession in the encomiendas of Peru (folio 10) and of New Spain (folio 14); the general law of succession and its declarations (folio 22); which ministers in the Indies have power to encomendar Indians (folio 29); which viceroys, presidents and governors have that power or lack it (folio 32); who is capable of seeking and holding encomiendas (folio 50) and who may not hold them (folio 53); the form in which they are to be given (folio 61); and then four chapters on precedence among claimants - the benemeritos, the sons of conquistadors, the older or more deserving, and those who serve in the Indies or outside them. The second part turns to offices that could be sold and resigned, folios 126 to 145 and beyond, down to the tassation of a resigned office and the confirmation of its title.
The margins of the treatise cite the Recopilacion de Leyes de Indias by book, title and law - half a century before it was printed. At folio 49 a marginal note gathers three cedulas, of Madrid 15 December 1614, of Barcelona 12 April 1626 and of Madrid 20 February 1628, and closes "oy l.29. tit.1. lib.2. de la Recopil. de Ind." The compilation whose printed edition is dated 1680 therefore already had a settled architecture of books, titles and numbered laws in 1630, in the hands of the man compiling it, and a printed book was already teaching lawyers to cite it that way.
The same folio states the two fundamentals on which the author says the law of the Indies rests, and the first is a jurisdictional firewall. He sets aside the general questions of when a prince is understood to derogate many laws by one, "porque, como se ha visto, no son del intento desta obra: i reduciendome a solo el derecho de las Indias, saco del dos fundamentos. El primero, que en ellas esta ordenado, que no se execute ley, prematica, ni despacho alguno, que no sea emanado de su Real, i Supremo Consejo, o passado por el." A law made for Castile did not run in the Americas of itself; it had to issue from, or be passed through, the Council of the Indies. The immediate context is the second promulgation of a succession law in the Recopilacion de Castilla of 1566, which the author says appeared to set itself against the laws of the Indies and narrowed the difficulty rather than settling it.
Folio 52 quantifies what the crown demanded of a settler, out of the ordinances of 1573. Citing the provision of the Bosque de Segovia of 13 July 1573, ordenanza 85, it records that where a settlement is made by asiento and capitulacion the first vecinos may not be fewer than thirty, "i cada uno ha de tener una casa, diez vacas de vientre, quatro bueyes, o por ellos dos, i dos novillos; una yegua, i cinco lechonas, seis gallinas, i un gallo, i veinte ovejas"; ordenanza 89 of the same provision fixes five years' residence in the city as the term for acquiring the right of poblador. The author adds, as a lawyer would, that these are modern conditions and need not be verified of those held to be ancient settlers or their descendants, and that the merit is not lost for want of one of them where a man has in effect been a settler.
The same folio records the crown's decision to stop using the word conquest, and refuses to pretend that it worked. Pacificadores and conquistadores, the treatise says, are terms almost confused in the Indies and used promiscuously, and the more so since it was ordered - a chapter of a letter of Madrid of 11 June 1621 is cited in the margin - "que se escusasse en las capitulaciones, i otras cosas, el nombre de conquista, por la dureza con que suena, quando nuestros Catolicos Reyes tienen dispuesto i mandado, que las entradas, que se hizieren, sean con paz i blandura, i que assi se llamen pacificaciones. Con que parece se extingue el nombre de Conquistador, i en su lugar entra el de Pacificador." Then the counterpoint, in the author's own voice: "Pero sin embargo, es cierto, que en las Indias se han tenido, i tienen por distintos", as Viceroy Francisco de Toledo explained in a chapter of a letter from Cuzco of 1 March 1572. The vocabulary was changed by order; the two things went on being different on the ground, and the treatise says so.
The apparatus of the book records what printing a legal treatise cost and required in 1630. The Suma de privilegios grants the author ten years in which nobody else may print or sell the book "en estos Reynos, ni en las Indias Occidentales, Islas i Tierrafirme del mar Oceano", under two privileges - one from the Consejo de Castilla, Madrid 27 September 1629, refrendado by Iuan Laso de la Vega in the office of Marcos de Prado i Velasco, the other from the Supremo de las Indias, Madrid 15 March of the same year, refrendado by don Fernando Ruiz de Contreras. The Tassa fixes the price at four maravedis the pliego, Madrid 19 December 1629. The errata certificate, Madrid 16 December 1629, lists eight corrections and is signed by el Licenciado Murcia de la Llana. A single book therefore passed two councils, a corrector and a price-setting board before it could be sold, and the privilege ran to America as well as to Spain.
What this object does not establish should be stated as plainly as what it does. Only the pages listed in the source entry were opened: the engraved title, the licences, three leaves of the prologue, two leaves of the table, and folios 2, 49 and 52 of a treatise of some hundred and seventy-three folios in its first part alone. The third part, the second work bound into this copy, and the whole of the second part beyond its table were not read, so nothing is asserted here about the book's doctrine on the sale and resignation of offices, on who was excluded from holding encomiendas, or on the succession disputes that occupy most of it. Nothing here establishes that the ordinances of 1573 or the order against the word conquista were obeyed; the treatise is evidence of what was commanded and, in the case of the vocabulary, evidence from a well-placed official that the command did not take. Nor does this corpus assert that this was the first printed book of any kind about American law: it is the first printed monograph on the royal law of the Indies found and read here, and the cedularios of Puga and Encinas printed the documents before anyone wrote the treatise.