Mestizos in the law of the Indies: the bar on office, and the crown jurist's argument against it
Spanish American law barred people of mixed descent from notaryships, from the protectorship of the Indians, from holy orders and from encomiendas — and the crown's own leading jurist printed, in the same chapter, that to exclude them "solo por la sangre mezclada" would be a hard and inhuman thing. Both halves are on one page of the Política Indiana, with the hostile stereotype, the tribute rule and its perverse family effects beside them.
Why this wins its question: Ask what the law of Spanish America said about people of mixed descent and the answer that wins today is a summary of the casta paintings and a claim that the system was rigid, sourced to encyclopaedia articles that quote no statute. This object goes to the chapter the colonial courts actually used — Política Indiana II.xxx and III.vi — and prints both sides of it from the page: the offices closed by cédula, the etymology that compares mulattoes to mules, the sentence in which the crown's own jurist calls exclusion by mixed blood "cosa dura, è inhumana", the practice of the viceroys of Peru that ignored the prohibition, the 1736 annotator's list of what was still forbidden, and the tribute rule that Solórzano says fell on the Indians alone and drove Indian mothers to prefer their children by Spaniards. No popular account carries the argument and the bar together, and the argument is the part that gets left out.
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 chapter to itself in the standard seventeenth-century treatise on the government of the Indies, and the chapter's title states the question as a question. Book II, capítulo XXX of Juan de Solórzano Pereira's Política Indiana is headed "DE LOS CRIOLLOS, MESTIZOS, y Mulatos de las Indias, y sus calidades, y condiciones: y si deben ser tenidos por Españoles?" Its opening paragraph defines the three groups: those born in the Indies of Spanish parents, "que allí vulgarmente los llaman Criollos", those descended from Spaniards and Indian women, "que se llaman Mestizos", and those of Spaniards and black women, "que se dicen Mulatos".
The vocabulary the chapter uses is itself evidence, and it is not flattering. Solórzano writes that they took the name of mestizos "por la mixtura de sangre, y Naciones, que se juntò à engendrarlos, por donde los Latinos los llamaron Varios, è Hibridas", and that mulattoes, though comprehended under the general name of mestizos, took their own name when born of a black woman and a white man or the reverse, "por tenerse esta mezcla por mas fea, y extraordinaria, y dár à entender con tal nombre, que le comparàn à la naturaleza del mulo", for which he cites Covarrubias. The classification this object reports is a hierarchy, and the treatise states it as one.
The argument for admission is stated first and stated in law. If such men were born of legitimate marriage and no other vice or defect stood in the way, Solórzano writes, they could and should be counted citizens of those provinces "y ser admitidos à las honras, y Oficios de ellas", as Vitoria and Zapata resolve; and he adds that he can believe this was the point of certain royal cédulas "que permiten ser ordenados los Mestizos, y las Mestizas recibidas por Monjas, y admitidos à Escribanias, y Regimientos". The chapter's own sumario compresses it: "Mestizos pueden ser ordenados, y las Mestizas Monjas, si son legitimos".
The bar that was actually in force is printed in the next paragraph, and it is a bar of birth as much as of blood. Because most, he writes, are born of adultery or of other illicit and punishable unions — "porque pocos Españoles de honra ay, que casen con Indias, ò Negras" — the defect of their birth makes them infamous, "por lo menos infamia facti", and on that falls "la mancha del color vario, y otros vicios, que suelen ser como naturales, y mamados en la leche". Of such men he finds that by many cédulas they are not admitted "para Oficios algunos autorizados, y de Republica, aunque sean Protectorias, Regimientos, ò Escribanias" without having declared the defect when they sought them, and that their titles are to be taken away if they obtained them otherwise. Others, he adds, forbid that holy orders be given them, "hasta que otra cosa se mande".
The case for employing them is made on grounds that would now be called practical. Where a mestizo showed known virtue and sufficient ability and doctrine, Solórzano writes, such men "pudieran ser sumamente provechosos, para ocuparse en la de los Indios, por ser como sus naturales, y saber tan perfectamente su lengua, y costumbres", citing José de Acosta and Gregorio García, and above all Manuel Sarmiento de Mendoza, canon of Seville, whose Milicia Evangélica argued that not only mestizos but the Indians themselves, once well converted and instructed, should be entrusted with that charge "y aun el Episcopal", for the greater persuasion and easier conversion of their fellows, with Titus and Timothy as the scriptural example.
The counter-case is in the same chapter and is put as bluntly. Handling the doctrinas must go "con mucho tiento", Solórzano writes, "porque vemos, que los mas salen de viciosas, y depravadas costumbres, y son los que mas daños, y vejaciones suelen hacer à los mismos Indios, como lo anota el mismo P. Fr. Joseph Acosta"; and for that reason many cédulas order that they not be let live in Indian towns but be reduced to Spanish ones, or that separate settlements be formed of mestizos and mulattoes. He cites further cédulas of 1600 and 1608 to the viceroys of Peru noting that the number of "Mestizos, Mulatos, y Zambahigos" was growing and ordering that men of such mixtures be watched. The treatise argues for admission and repeats the prejudice against it in the space of three paragraphs.
On encomiendas the prohibition is traced to a text and then read narrowly. In book III, capítulo VI, Solórzano finds mestizos and mulattoes barred from receiving encomiendas by a chapter of the New Laws, renewed and ordered into strict execution by a cédula addressed to the Audiencia of the Nuevo Reyno de Granada, dated at Valladolid on 27 February 1549. But he holds the prohibition should be applied only where the ordinary defect of illegitimacy is present, "porque assi me lo dan à entender las palabras de la Cedula referida: Que ningun Mulato, ni Mestizo, ni hombre, que no fuesse legitimo, pudiesse tener Indios" — the bar, on his reading, is on the birth and not on the mixture.
The sentence the chapter is worth reading for is the next one. "Y porque verdaderamente fuera cosa dura, è inhumana excluirlos, solo por la sangre mezclada", Solórzano writes, if they were found to be born of legitimate marriage and to be, by their own parts, merits and services or by those inherited from forebears, of the ancient and deserving families of those lands; and he adds that the viceroys of Peru and other governors appear to have understood it so, since they have honoured such men with "Encomiendas muy pingues, y considerables", and "nunca vi, que fuessen inquietados en ellas". A crown minister is recording that the practice of the government he served ran ahead of its own written prohibition.
Ninety years later the printed law had not moved much, and the edition's annotator says so while siding with the author. Francisco Ramiro de Valenzuela, who illustrated the 1736 impression and marks his additions with asterisks, follows Solórzano's opinion and adds that it will be the surer "si el Mestizo huviere tenido buena educacion, fuere de buenas costumbres, y se portare como buen Español". Against it, he lists what the Recopilación still said: that mestizos are forbidden to be escribanos, forbidden to live among Indians even where they hold lands there, and forbidden to be protectores de indios. In his summary of the standing provisions he also writes, flatly, "Los Mestizos es la mejor mezcla, que ay en Indias, y son los hijos de Españoles, è Indias: y tambien lo serán si un Indio se casasse con una Española, aunque esto sucede rara vez".
The annotator's list also shows a legal condition that gave and withheld in the same breath. Legitimate mestizos, he writes, are much attended to by the laws: if orphaned, the encomenderos are to care for and educate them or place them in recogimiento where they may be maintained from their own property, and if they wish to come to Spain, where they may have relatives, it is permitted; those living in Spanish places with a settled house and farm may bear the arms allowed to Spaniards. But they are not permitted to enlist as soldiers — "aunque esto es duro, è inconsequente de la ley antecedente" — unless the rule be understood of illegitimate mestizos; and he notes that at Portobelo "ay muchos Soldados Mestizos" all the same.
The provisions the same pages record for free blacks and mulattoes are harsher, and they are set down without comment beside the rest. Free mulattoes and free blacks are to pay tribute according to their means; they may not be served by Indians "aunque sean ricos"; if anyone tries to subject them to servitude the Audiencias are to do them justice; they may not live among Indians even where they hold lands in their towns; and they may not bear arms — "y si las trageren, y echaren mano à ellas contra Español, son condenados à que les dén cien azotes, y se les clave la mano: y si reiteran este delito se les corta". The same annotator records that free pardos and morenos "suelen vivir arregladamente", that in some parts there are militia companies of them "que sirven muy bien en las Costas, y deben ser atendidos", and that although enlistment is not permitted it is tolerated in places and they have done well.
The tribute rule produced a consequence the treatise states against its own side. Cédulas of 1601 and 1609 and others successively provided that mestizos and mulattoes pay tribute and that the viceroys procure that they help, like the Indians, in the labour of the mines and the fields; as to tribute this had been put into execution in some provinces, but as to mines and other services, Solórzano writes, "no lo he visto practicar en ninguna, dexando todo este peso á los pobres Indios", and he cites the Memorial de los Agravios de los Indios printed by Fray Bernardino de Cárdenas. From that abuse, he continues, it results that many Indian women leave their Indian husbands, or come to hate and abandon the children they bear them, "viendolos sujetos à tributos, y servicios personales", and love and indulge more the children they have outside marriage by Spaniards and even by blacks, "porque los vén del todo libres, y exemptos". The chapter's own sumario prints it as head 31.
What these pages cannot establish should be said plainly, because a treatise is not a record of practice. Nothing read here counts how many mestizos were ordained, admitted to escribanías or refused them, nor names a single case in which a title was taken away under the rule Solórzano reports; the encomiendas he says were granted and never disturbed are asserted from his own memory of Peru, without a document. The author is a judge of the Audiencia of Lima and a minister of the Council of the Indies arguing about his own government's law, the 1736 additions are a later hand summarising the Recopilación rather than the cédulas themselves, and no mestizo, mulatto or free black speaks anywhere in the chapter. What the chapter does establish is what the law said, what its leading commentator thought of it, and that both the argument for exclusion by blood and the argument against it were in print, in Spanish, in the standard manual of colonial government.