Personas miserables: the legal category that gave Indians privileged standing
The doctrine that placed the Indians among the persons Roman and canon law called miserabiles, and with it a bundle of procedural privileges — the protections of minors and rustics, summary and cheap process, restitution, leniency in criminal causes — plus a royal order that Spaniards who injured an Indian be punished more severely than if they had injured a Spaniard. Its own chief expositor prints both the insulting premise the doctrine rested on and the reason it so often failed.
Why this wins its question: "Personas miserables" is where the whole protective architecture of the law of the Indies — the protector de indios, the Indian courts, summary process, the aggravated penalty for injuring an Indian — is actually grounded, and English-language treatments either skip the category or render it as a euphemism. This entry reads the chapter that defines it, page by page, and prints both halves at once: the insulting premise of incapacity the status was built on, and the concrete rule most often missed, a royal cédula of 1593 ordering Spaniards punished more severely for injuring an Indian than for injuring a Spaniard. It also carries the two admissions that no polemic on either side quotes — a Dominican archbishop's judgement that whatever is ordered for the Indians' benefit turns into their greater harm, and Solórzano's own explanation that the poor hide their injuries because they know there is no remedy, or fear worse from the men they would complain to.
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 category is a chapter heading in the standard treatise on the law of the Indies. Libro II, capítulo XXVIII of Solórzano's Política Indiana is titled "QUE LOS INDIOS SON, Y DEBEN SER contados entre las personas, que el Derecho llama miserables: Y de qué privilegios temporales gocen por esta causa? y de sus Protectores", and its own printed summary lists what followed from the title: the privilege of minors and of rustics, the benefit of restitution, brevity in their lawsuits, that no censures be proceeded with against them, that in criminal causes they merit indulgence, that the oath be excused them, that the testimony of six Indians be given the faith of one suitable witness, special solemnities in the sale of their movable and immovable goods, the form of Indians' testaments, and that the doctrineros not oblige them to make a will at the priest's dictation.
The premise the doctrine rested on is an assertion of inferiority, and it is printed rather than paraphrased. Solórzano grounds the classification in the Indians' "humilde, servil, y rendida condicion" and in what he calls, citing named authorities, "su imbecilidad, rusticidad, pobreza, y pusilanimidad, y continuos trabajos, y servicios"; he quotes the Dominican Gregorio García saying they are of "mas miserable, y baxa, ò despreciada condicion, que los Negros, y todas las demás Naciones del Mundo". A protective status was built on a claim of incapacity, and any account of the protection that omits the claim is misreporting it.
Recent conversion was an independent and sufficient ground. Solórzano writes that even had those causes not concurred, "les bastára ser recien convertidos à la Fé, à los quales se concede este titulo, y todos los privilegios, y favores, que andan con él", naming Gregorio López, Matienzo, Alfaro and Feliciano de Vega, archbishop of Mexico, as expressly affirming it. The status was therefore not tied to any finding about a particular person.
The sharpest criticism of the whole protective apparatus is quoted inside the treatise that defends it, and attributed to a Dominican archbishop. Solórzano reports Fray Agustín de Ávila Padilla, who died archbishop of Santo Domingo, counting as the most considerable and lamentable of the Indians' miseries "que quanto se provee, y ordena para su favor, y provecho, parece, que se trueca, y convierte en su mayor daño, y perjuicio" — that whatever is provided and ordered for their favour and profit seems to turn into their greater harm — and adds that Fray Domingo de Betanzos left this as if prophesied.
The same page prints the most economical objection to protective government ever made in this literature. Solórzano records that the Venerable Gregorio López, asked what could be ordered that would be most convenient for the Indians, used to answer with a single word: "dexallos" — leave them alone. Solórzano immediately notes, against his own interest in the anecdote, that he has not found it among those who compiled López's life, nor in his pious and devout addicionador, so it is reported here at second hand and unverified in its source.
The operative rule most often missed in summaries is an aggravated penalty running in the Indians' favour. Solórzano cites a real cédula given at Madrid on 29 December 1593, which he says is recopilada in the fourth printed tome, ordering the Audiencia of Lima that thenceforward "castigue con mayor rigor à los Españoles, que injuriaren, ofendieren, ò maltrataren à los Indios, que si los mismos delitos se cometiessen contra los Españoles", and that the same be ordered to all the justices of its district. He defends it on the ground that the more frequently the injuries occurred, the greater the need for the law to place itself on the injured party's side. Injuries to caciques and principales were treated as graver still, "porque la calidad de la persona aumenta el delito".
The crown's own statement of the policy is quoted with its justification attached, and the justification is a claim about the pre-conquest past. Solórzano prints the ninth of the ordinances then in force for the Council of the Indies, with lines Philip IV added in his own hand, charging the councillors to see that the Indians be "tratados, mirados, y favorecidos como Vassallos nuestros, castigando con rigor, à los que lo contrario hicieren" — so that the Indians might understand the favour intended them "y conozcan, que haverlos puesto Nos debaxo de nuestra proteccion, y amparo, ha sido por bien suyo, y para sacarlos de la tyranía, y servidumbre, en que antiguamente vivian". The protective claim and the legitimating claim about Inca and Mexica rule are in the same sentence, and the second is a contested assertion, not a finding.
Another cédula grounds protection in utility rather than in right, and says so plainly. Solórzano quotes the closing words of the cédula known as "del servicio personal" of 1601: "Que, pues los Indios son utiles à todos, y para todos, todos deben mirar por ellos, y por su conservacion: pues todo cessaria, si ellos faltassen." A colonial economy that could not run without them is given as the reason to preserve them.
The provincial councils of Lima are cited to the same effect and in harsher language about the Spaniards. Solórzano reports the Third Council of Lima calling the Indians "pobres, flacos, y miserables" and charging spiritual and secular ministers above all things to look to their protection and defence and to prevent "los fraudes, violencias, injurias, è insolencias, que de ordinario reciben, haciendo oficio de Pastores, y no de lobos, ò carniceros à estas mansas, y rendidas obejas" — and to let all know that they are commended to the ministers by the Catholic Majesty "y que son Vassallos libres, y no esclavos en ningun modo". The Second Council is cited for the parallel rule on the curacas.
One enforcement is reported as an eyewitness family memory, and its weight should be discounted accordingly. Solórzano records that Don Gabriel Paniagua de Loaysa, knight of Calatrava — whom he identifies as "suegro, y señor mio", his father-in-law — when governor of Cuzco ordered the hand cut off of a Spaniard who in his presence and without sufficient cause had given a cacique a great slap, and refused to be moved by the pleas made for him. The account is a jurist's report of his own wife's father and is treated here as such.
The reason the privileges so often did not bite is stated by their chief expositor, in the sentence immediately after that anecdote. Had other governors and corregidores done the same, Solórzano writes, "por ventura se huviera puesto freno à estas injurias, è insolencias, que por conocer, que no le ay, las dissimulan de ordinario los pobres, ò por no sufrirlas mayores de los mismos, à quien se van à quexar" — the poor ordinarily conceal such injuries because they know there is no check on them, or so as not to suffer worse at the hands of the very men they go to complain to. That is the gap between a protective code and its enforcement, named from the inside.
The limits of this entry's evidence are worth stating. Everything above is read from one chapter of one printed treatise: it is direct evidence of the doctrine, of the arguments made for it, and of what a crown jurist with eighteen years on the Lima bench thought the law required. The cédulas, ordinances and conciliar canons are quoted through him and were not opened in their own printings for this entry, so their wording is reported at one remove. Nothing here shows how often the privileges were invoked, or with what result.