Every assertion below is bound to registered sources and carries its own confidence. Weight them; do not treat the page as uniformly authoritative.
This entry is scoped to §§21-34 of libro III, capítulo XXVIII of Juan de Solórzano Pereira's Política Indiana: the question whether the confirmation of an encomienda was legally necessary at all, and the answer's consequence, which is the list of what the granting title had to narrate. The institutional history of the charge, its dates, terms and penalties, is carried by a companion entry on §§18-21 and §§41-51, and the question of third parties with suits pending by another on §§35-40. §21 is read by this entry and by the first of those, because its sentence does two things at once.
confidence 0.9Política Indiana, libro III, capítulo XXVIII, §§21-34 — whether the confirmation of an encomienda was legally necessary at all, and what the requirement forced the viceroys and governors to put on the record: the reason the crown gave for requiring it, that it wished to learn whether the distribution had proceeded justifiably and whether the merits of the competitors had been weighed, because favour and undue respects can operate so strongly in preferring one claimant over another; the contrary argument that a grant made under royal mandate already carries the king's approval; the author's own answer that where there is nothing to dispense the confirmer is not properly seen as giving, and the confirmation is asked only to keep the respect of superiority and the form; Baldo's distinction between a confirmatio infundante and a transfundante and why it decided from when the encomendero made the fruits his own; and the list of what the title had to narrate — the quality and quantity of the encomienda, the manner of its vacancy, the things or fruits it consisted in, the merits and services of the grantee, whether he held other encomiendas, what other remunerations he had received, that edicts had been posted to call and hear all others who held themselves beneméritos and wished to oppose, and what reasons there were for choosing the man named and holding him more worthy — with the doctrine that any subreption or obreption in that narrative voided the confirmation · primary
The crown's stated reason for requiring confirmation is the sentence this entry turns on, and it is an admission about how colonial patronage worked. At §21, "Y como la razon, que movió à despacharlas, y à requerir esta confirmacion, fue quererse enterar el Rey nuestro Señor, y su Real Consejo de las Indias, si se procedió justificadamente en la distribucion, y provision de las dichas Encomiendas, y Pensiones, y si se pesaron, y atendieron bien los servicios, y meritos de los Competidores, y esta milita igualmente en los que concurren à pedir cumplimiento de sus Cedulas futuras, ò expectativas: pues en graduarlas, y preferirlas, ò posponerlas, puede obrar tanto la gracia, y otros respetos indebidos, debió tambien correr, y militar la misma disposicion segun la regla vulgar del Derecho." The review exists because the men who made the grants could be moved by favour, and the treatise says so in plain words rather than implying it.
confidence 0.9Política Indiana, libro III, capítulo XXVIII, §§21-34 — whether the confirmation of an encomienda was legally necessary at all, and what the requirement forced the viceroys and governors to put on the record: the reason the crown gave for requiring it, that it wished to learn whether the distribution had proceeded justifiably and whether the merits of the competitors had been weighed, because favour and undue respects can operate so strongly in preferring one claimant over another; the contrary argument that a grant made under royal mandate already carries the king's approval; the author's own answer that where there is nothing to dispense the confirmer is not properly seen as giving, and the confirmation is asked only to keep the respect of superiority and the form; Baldo's distinction between a confirmatio infundante and a transfundante and why it decided from when the encomendero made the fruits his own; and the list of what the title had to narrate — the quality and quantity of the encomienda, the manner of its vacancy, the things or fruits it consisted in, the merits and services of the grantee, whether he held other encomiendas, what other remunerations he had received, that edicts had been posted to call and hear all others who held themselves beneméritos and wished to oppose, and what reasons there were for choosing the man named and holding him more worthy — with the doctrine that any subreption or obreption in that narrative voided the confirmation · primary
The counter-argument is stated at its strongest before it is answered, which is what makes the chapter worth reading as law rather than as apologetic. At §22 "aun quando quisieremos decir, que de el todo no parece igual la razon: pues el proveído en virtud de mandato, y Cedula Real, ya parece, que lleva en ella la aprobacion del mismo Rey, que se la concedió, y que de su mano consigue la Encomienda, aunque el Virrey, ò Governador se la confieran: como en terminos de Beneficios lo dice una célebre Decretal", there still remain in force the other reasons already noted, which suffice to sustain the requirement. At §23, if the royal cédulas were not general for vacant encomiendas but special for certain named ones, "entonces no dudaré afirmar, que no se necesita de confirmacion, porque tenemos por aforismo corriente en Derecho Canonico, y Civil, que quando el Papa, ò el Principe proveen, y eligen, en esse mismo acto se incluye virtualmente su confirmacion". The rule and its limit are given together.
confidence 0.9Política Indiana, libro III, capítulo XXVIII, §§21-34 — whether the confirmation of an encomienda was legally necessary at all, and what the requirement forced the viceroys and governors to put on the record: the reason the crown gave for requiring it, that it wished to learn whether the distribution had proceeded justifiably and whether the merits of the competitors had been weighed, because favour and undue respects can operate so strongly in preferring one claimant over another; the contrary argument that a grant made under royal mandate already carries the king's approval; the author's own answer that where there is nothing to dispense the confirmer is not properly seen as giving, and the confirmation is asked only to keep the respect of superiority and the form; Baldo's distinction between a confirmatio infundante and a transfundante and why it decided from when the encomendero made the fruits his own; and the list of what the title had to narrate — the quality and quantity of the encomienda, the manner of its vacancy, the things or fruits it consisted in, the merits and services of the grantee, whether he held other encomiendas, what other remunerations he had received, that edicts had been posted to call and hear all others who held themselves beneméritos and wished to oppose, and what reasons there were for choosing the man named and holding him more worthy — with the doctrine that any subreption or obreption in that narrative voided the confirmation · primary
A foreign precedent is cited for the same practice, and it is Portuguese. At §23 "Aunque Cabedo refiere, que en Portugal mandó el Rey D. Juan el II, que se pidiessen confirmaciones generales de todas las Donaciones hechas de bienes de la Corona Real, y que de otra suerte no valiessen", with the editor's asterisked reference to ley 2, título 19, libro 6 of the Recopilación. Neither Cabedo's report nor the Portuguese order was checked here against its own printing; confidence is set accordingly.
confidence 0.85Política Indiana, libro III, capítulo XXVIII, §§21-34 — whether the confirmation of an encomienda was legally necessary at all, and what the requirement forced the viceroys and governors to put on the record: the reason the crown gave for requiring it, that it wished to learn whether the distribution had proceeded justifiably and whether the merits of the competitors had been weighed, because favour and undue respects can operate so strongly in preferring one claimant over another; the contrary argument that a grant made under royal mandate already carries the king's approval; the author's own answer that where there is nothing to dispense the confirmer is not properly seen as giving, and the confirmation is asked only to keep the respect of superiority and the form; Baldo's distinction between a confirmatio infundante and a transfundante and why it decided from when the encomendero made the fruits his own; and the list of what the title had to narrate — the quality and quantity of the encomienda, the manner of its vacancy, the things or fruits it consisted in, the merits and services of the grantee, whether he held other encomiendas, what other remunerations he had received, that edicts had been posted to call and hear all others who held themselves beneméritos and wished to oppose, and what reasons there were for choosing the man named and holding him more worthy — with the doctrine that any subreption or obreption in that narrative voided the confirmation · primary
The legal force of the requirement is derived from the repetition of the orders, and the conclusion is severe. At §24 "pues esta confirmacion se repitió por tantas, y tan repetidas Cedulas, y es como una señal de superioridad, que el Rey nuestro Señor quiso reservar en si estos casos … Con razon se pudo mandar por ellas, que en los Titulos de las Encomiendas se pusiesse este gravamen, pena de perderlas. Porque esta fue una como nueva forma de estas gracias, y concessiones, que por el consiguiente induce condicion, y vicia el acto; si no se cumple, y purifica, como si nunca se huviera hecho." At §25 he adds, on Molina and others, "que el defecto de la forma es mayor, que el de la substáncia, y se ha de atender aun mas que su razon, y que la forma de la ley no se puede cumplir por equipolencias", and that the contracts of princes and others are annulled for any defect of the form commanded. At §26 the same holds in the feudos from which encomiendas derived: confirmation is required there too, "y no la impetrando dentro del tiempo por él, ò por la ley señalado, se pierden ipso jure."
confidence 0.9Política Indiana, libro III, capítulo XXVIII, §§21-34 — whether the confirmation of an encomienda was legally necessary at all, and what the requirement forced the viceroys and governors to put on the record: the reason the crown gave for requiring it, that it wished to learn whether the distribution had proceeded justifiably and whether the merits of the competitors had been weighed, because favour and undue respects can operate so strongly in preferring one claimant over another; the contrary argument that a grant made under royal mandate already carries the king's approval; the author's own answer that where there is nothing to dispense the confirmer is not properly seen as giving, and the confirmation is asked only to keep the respect of superiority and the form; Baldo's distinction between a confirmatio infundante and a transfundante and why it decided from when the encomendero made the fruits his own; and the list of what the title had to narrate — the quality and quantity of the encomienda, the manner of its vacancy, the things or fruits it consisted in, the merits and services of the grantee, whether he held other encomiendas, what other remunerations he had received, that edicts had been posted to call and hear all others who held themselves beneméritos and wished to oppose, and what reasons there were for choosing the man named and holding him more worthy — with the doctrine that any subreption or obreption in that narrative voided the confirmation · primary
The author's own answer to the doctrinal question is candid and it cuts against the crown's dignity rather than for it. At §27, attending to this condition and precise obligation of coming to ask these confirmations of the king, "podemos decir, que su Magestad es, el que verdaderamente las concede, y seguir indistintamente la doctrina de una Glossa, que enseña, que el confirma, dá … Aunque la mas cierta, y comun opinion es, que si el acto, que se confirma, fue en si nulo, è invalido, ò tuvo defectos considerables, que suplir, y dispensar, entonces toma, y recibe su ser, y fuerzas de la Confirmacion, y esta se tiene por nueva gracia; pero si no huvo, que dispensar, y solo se pide, y concede por guardar el respecto de la superioridad, y la forma, que en esso dispone, no es visto propiamente, que da, el que confirma, ni toma fuerzas el acto desde el tiempo de la Confirmacion; sino de su primera concession". Where the grant was sound, the confirmation adds nothing but deference to form.
confidence 0.9Política Indiana, libro III, capítulo XXVIII, §§21-34 — whether the confirmation of an encomienda was legally necessary at all, and what the requirement forced the viceroys and governors to put on the record: the reason the crown gave for requiring it, that it wished to learn whether the distribution had proceeded justifiably and whether the merits of the competitors had been weighed, because favour and undue respects can operate so strongly in preferring one claimant over another; the contrary argument that a grant made under royal mandate already carries the king's approval; the author's own answer that where there is nothing to dispense the confirmer is not properly seen as giving, and the confirmation is asked only to keep the respect of superiority and the form; Baldo's distinction between a confirmatio infundante and a transfundante and why it decided from when the encomendero made the fruits his own; and the list of what the title had to narrate — the quality and quantity of the encomienda, the manner of its vacancy, the things or fruits it consisted in, the merits and services of the grantee, whether he held other encomiendas, what other remunerations he had received, that edicts had been posted to call and hear all others who held themselves beneméritos and wished to oppose, and what reasons there were for choosing the man named and holding him more worthy — with the doctrine that any subreption or obreption in that narrative voided the confirmation · primary
The distinction on which that answer rests is named and its practical stake is money. At §28, Baldo taught "que ay una Confirmacion, que se llama Infundente, que es la que se hace dispensando en las nulidades del acto, que se trata de confirmar, y como haciendole, y vivificandole de nuevo, y entonces desde ella es visto tomar su valor, y sér", and another "que se llama Transfundente, que es quando absolutamente se aprueba lo hecho, y solo se autoriza por el Confirmante, y entonces el primer acto, es el que se executa". The treatise says why the difference matters: it is worth remembering for many points "y especialmente para saber desde quando hará suyos los frutos el Encomendero, y estará obligado à pagar nueva Media-Annata, como por nueva gracia." A scholastic distinction decided the date from which income accrued and whether a further tax fell due.
confidence 0.9Política Indiana, libro III, capítulo XXVIII, §§21-34 — whether the confirmation of an encomienda was legally necessary at all, and what the requirement forced the viceroys and governors to put on the record: the reason the crown gave for requiring it, that it wished to learn whether the distribution had proceeded justifiably and whether the merits of the competitors had been weighed, because favour and undue respects can operate so strongly in preferring one claimant over another; the contrary argument that a grant made under royal mandate already carries the king's approval; the author's own answer that where there is nothing to dispense the confirmer is not properly seen as giving, and the confirmation is asked only to keep the respect of superiority and the form; Baldo's distinction between a confirmatio infundante and a transfundante and why it decided from when the encomendero made the fruits his own; and the list of what the title had to narrate — the quality and quantity of the encomienda, the manner of its vacancy, the things or fruits it consisted in, the merits and services of the grantee, whether he held other encomiendas, what other remunerations he had received, that edicts had been posted to call and hear all others who held themselves beneméritos and wished to oppose, and what reasons there were for choosing the man named and holding him more worthy — with the doctrine that any subreption or obreption in that narrative voided the confirmation · primary
The first half of the disclosure the title had to make is the encomienda itself. At §29 the viceroys and governors who provide them in the Indies "estan obligados à poner en el titulo de la concession de ellas, cuya Confirmacion se ha de venir à pedir al Consejo, la calidad, y cantidad de la Encomienda: el modo de su vacacion, y en qué cosas, ò frutos consiste", with the parenthesis that those which used to be assessed in personal service were ordered removed. The editor adds an asterisked cross-reference to §79 of capítulo XXV of the same book, "donde se ponen las prevenciones, que ha de tener el Titulo."
confidence 0.9Política Indiana, libro III, capítulo XXVIII, §§21-34 — whether the confirmation of an encomienda was legally necessary at all, and what the requirement forced the viceroys and governors to put on the record: the reason the crown gave for requiring it, that it wished to learn whether the distribution had proceeded justifiably and whether the merits of the competitors had been weighed, because favour and undue respects can operate so strongly in preferring one claimant over another; the contrary argument that a grant made under royal mandate already carries the king's approval; the author's own answer that where there is nothing to dispense the confirmer is not properly seen as giving, and the confirmation is asked only to keep the respect of superiority and the form; Baldo's distinction between a confirmatio infundante and a transfundante and why it decided from when the encomendero made the fruits his own; and the list of what the title had to narrate — the quality and quantity of the encomienda, the manner of its vacancy, the things or fruits it consisted in, the merits and services of the grantee, whether he held other encomiendas, what other remunerations he had received, that edicts had been posted to call and hear all others who held themselves beneméritos and wished to oppose, and what reasons there were for choosing the man named and holding him more worthy — with the doctrine that any subreption or obreption in that narrative voided the confirmation · primary
The second half is about the man and about everyone who wanted the grant instead of him, and it is the most exacting sentence in the chapter. At §30 "Y asimismo han de referir los meritos, y servicios del Encomendado, y si tiene otras Encomiendas: y qué otras remuneraciones ha recibido: y que se pusieron Edictos para llamar, y oir à los demás, que se tuviessen por benemeritos, y se quisiessen oponer à las tales Encomiendas: y qué razones tuvieron para escoger al que nombraron, y tenerle por mas digno?" A colonial patronage decision had to be justified in writing, on the instrument itself, against named alternatives who had been publicly summoned to compete, before a reviewing body on the other side of an ocean.
confidence 0.9Política Indiana, libro III, capítulo XXVIII, §§21-34 — whether the confirmation of an encomienda was legally necessary at all, and what the requirement forced the viceroys and governors to put on the record: the reason the crown gave for requiring it, that it wished to learn whether the distribution had proceeded justifiably and whether the merits of the competitors had been weighed, because favour and undue respects can operate so strongly in preferring one claimant over another; the contrary argument that a grant made under royal mandate already carries the king's approval; the author's own answer that where there is nothing to dispense the confirmer is not properly seen as giving, and the confirmation is asked only to keep the respect of superiority and the form; Baldo's distinction between a confirmatio infundante and a transfundante and why it decided from when the encomendero made the fruits his own; and the list of what the title had to narrate — the quality and quantity of the encomienda, the manner of its vacancy, the things or fruits it consisted in, the merits and services of the grantee, whether he held other encomiendas, what other remunerations he had received, that edicts had been posted to call and hear all others who held themselves beneméritos and wished to oppose, and what reasons there were for choosing the man named and holding him more worthy — with the doctrine that any subreption or obreption in that narrative voided the confirmation · primary
The reason given for the disclosure ties it back to the audit, and the sanction for falling short is the voiding of the grant. At §31 "como la obligacion, y carga de pedir esta Confirmacion, se introduxo, para conocer, entender, y saber entera, y distintamente todas estas cosas, y si en la Eleccion, y Provision del Encomendado se procedió justificadamente, es forzoso, que se expresse, narre, y especifique todo lo necessario, para que el Consejo se pueda hacer capáz de lo que se ha obrado. Porque la Confirmacion incierta, ò de Derecho incierto, no vale segun reglas, y doctrinas de él, y qualquier subrepcion, ò obrepcion, que, ò sea bastante para impedir la Confirmacion, ò para hacerla obstaculo, ò para que por lo menos se halle el superior mas dudoso, ò dificultoso en concederla, vicia la tal Confirmacion". The test is not whether the omission was material to the outcome but whether it would have made the reviewer hesitate.
confidence 0.9Política Indiana, libro III, capítulo XXVIII, §§21-34 — whether the confirmation of an encomienda was legally necessary at all, and what the requirement forced the viceroys and governors to put on the record: the reason the crown gave for requiring it, that it wished to learn whether the distribution had proceeded justifiably and whether the merits of the competitors had been weighed, because favour and undue respects can operate so strongly in preferring one claimant over another; the contrary argument that a grant made under royal mandate already carries the king's approval; the author's own answer that where there is nothing to dispense the confirmer is not properly seen as giving, and the confirmation is asked only to keep the respect of superiority and the form; Baldo's distinction between a confirmatio infundante and a transfundante and why it decided from when the encomendero made the fruits his own; and the list of what the title had to narrate — the quality and quantity of the encomienda, the manner of its vacancy, the things or fruits it consisted in, the merits and services of the grantee, whether he held other encomiendas, what other remunerations he had received, that edicts had been posted to call and hear all others who held themselves beneméritos and wished to oppose, and what reasons there were for choosing the man named and holding him more worthy — with the doctrine that any subreption or obreption in that narrative voided the confirmation · primary
The doctrine is then stated in the sharpest form the authorities gave it. At §32 "dixo Baldo, referido por Jassón, que la impetracion subrepticia no vale, aunque sea santo, el que impetra", and, on the necessity of expressing the true value, Felino and others say the same. At §33 "solemos decir comunmente, que la Confirmacion no se puede estender à calidades, obstancias, y defectos no expressados, ò mencionados en la narrativa de su suplicacion; y que la Confirmacion es nula, donde es nulo lo confirmable, y que la que se hace en forma comun, obra poco, ò nada, porque no quita, ni suple los defectos, que trae consigo el acto, y solo sirve de darle alguna mas fuerza, y autoridad". The remedy advised is that the privilege or title being confirmed be inserted whole into the confirmation, so that it appear the prince granted it ex certa sciencia.
confidence 0.9Política Indiana, libro III, capítulo XXVIII, §§21-34 — whether the confirmation of an encomienda was legally necessary at all, and what the requirement forced the viceroys and governors to put on the record: the reason the crown gave for requiring it, that it wished to learn whether the distribution had proceeded justifiably and whether the merits of the competitors had been weighed, because favour and undue respects can operate so strongly in preferring one claimant over another; the contrary argument that a grant made under royal mandate already carries the king's approval; the author's own answer that where there is nothing to dispense the confirmer is not properly seen as giving, and the confirmation is asked only to keep the respect of superiority and the form; Baldo's distinction between a confirmatio infundante and a transfundante and why it decided from when the encomendero made the fruits his own; and the list of what the title had to narrate — the quality and quantity of the encomienda, the manner of its vacancy, the things or fruits it consisted in, the merits and services of the grantee, whether he held other encomiendas, what other remunerations he had received, that edicts had been posted to call and hear all others who held themselves beneméritos and wished to oppose, and what reasons there were for choosing the man named and holding him more worthy — with the doctrine that any subreption or obreption in that narrative voided the confirmation · primary
The limit in the holder's favour is stated immediately afterwards, and it matters because without it the rule would have been a trap. At §34 "no se podrá decir del todo subrepticia, si se halla por mayor parte, y en lo substancial verificada su narrativa", as the author says he has explained elsewhere and as Marquesano, Benedicto Capra and Nicolao García hold in this very matter of confirmations, "aunque este en las cosas de gracia, requiere, que todo lo narrado se verifique." A title substantially true survived; only a substantially false one fell.
confidence 0.9Política Indiana, libro III, capítulo XXVIII, §§21-34 — whether the confirmation of an encomienda was legally necessary at all, and what the requirement forced the viceroys and governors to put on the record: the reason the crown gave for requiring it, that it wished to learn whether the distribution had proceeded justifiably and whether the merits of the competitors had been weighed, because favour and undue respects can operate so strongly in preferring one claimant over another; the contrary argument that a grant made under royal mandate already carries the king's approval; the author's own answer that where there is nothing to dispense the confirmer is not properly seen as giving, and the confirmation is asked only to keep the respect of superiority and the form; Baldo's distinction between a confirmatio infundante and a transfundante and why it decided from when the encomendero made the fruits his own; and the list of what the title had to narrate — the quality and quantity of the encomienda, the manner of its vacancy, the things or fruits it consisted in, the merits and services of the grantee, whether he held other encomiendas, what other remunerations he had received, that edicts had been posted to call and hear all others who held themselves beneméritos and wished to oppose, and what reasons there were for choosing the man named and holding him more worthy — with the doctrine that any subreption or obreption in that narrative voided the confirmation · primary
What this entry establishes and what it does not. It establishes that the declared purpose of confirming encomiendas was for the king and the Council of the Indies to find out whether the distribution had proceeded justifiably and the merits of the competitors been weighed, expressly because favour and undue respects could operate; that the granting title had therefore to state the quality and quantity of the encomienda, the manner of its vacancy, what it consisted in, the grantee's merits and services, his other encomiendas, his other remunerations, the posting of edicts calling and hearing all who held themselves beneméritos and wished to oppose, and the reasons for preferring the man named; that an omission sufficient to make the reviewer hesitate voided the confirmation as subreptitious; and that a narrative substantially verified survived. It establishes nothing about how often these requirements were met. Not one title of encomienda, and no record of any confirmation proceeding, was opened for this entry: the whole of it is the rule as a sitting councillor of the Indies states it, from a printed treatise, and a rule stated is not a practice observed. The chapter itself supplies the caution in the companion entry on §§41-51, where the author records that defects in these confirmations were commonly dispensed for money. Nothing on these pages says who, if anyone, spoke for the Indians of an encomienda in this procedure; the edicts described call beneméritos who want the grant, not the people granted.
confidence 0.9Política Indiana, libro III, capítulo XXVIII, §§21-34 — whether the confirmation of an encomienda was legally necessary at all, and what the requirement forced the viceroys and governors to put on the record: the reason the crown gave for requiring it, that it wished to learn whether the distribution had proceeded justifiably and whether the merits of the competitors had been weighed, because favour and undue respects can operate so strongly in preferring one claimant over another; the contrary argument that a grant made under royal mandate already carries the king's approval; the author's own answer that where there is nothing to dispense the confirmer is not properly seen as giving, and the confirmation is asked only to keep the respect of superiority and the form; Baldo's distinction between a confirmatio infundante and a transfundante and why it decided from when the encomendero made the fruits his own; and the list of what the title had to narrate — the quality and quantity of the encomienda, the manner of its vacancy, the things or fruits it consisted in, the merits and services of the grantee, whether he held other encomiendas, what other remunerations he had received, that edicts had been posted to call and hear all others who held themselves beneméritos and wished to oppose, and what reasons there were for choosing the man named and holding him more worthy — with the doctrine that any subreption or obreption in that narrative voided the confirmation · primary