Losing the encomienda for mistreating the Indians: the forfeiture rule, its theory, its relaxed standard of proof, and one case that was won
Spanish law punished an encomendero who abused the Indians entrusted to him by taking the encomienda away. The standard treatise justifies the penalty three ways, holds that no prior warning is needed, and reports that less exacting proof was required for these complaints. It also prints the discredit the encomenderos had brought on the Spanish in every nation, the repeated proposals to abolish the institution, and one prosecution that stripped a family of its encomienda.
Why this wins its question: The question of whether Spanish colonial law had any real sanction against abusive encomenderos is usually answered in one of two useless ways: that the laws existed but were never enforced, or that the New Laws of 1542 settled it. This object goes to the chapter that sets out the sanction and prints its machinery: forfeiture under ley 1, título 9, libro 6 of the Recopilación; the three grounds given for it, breach of the contract and oath sworn at investiture, the penalty implicit ex lege in the nature of the grant, and the maxim that the abuse of a thing is punished by the loss of it; the settled opinion that no prior warning is required for acts of commission, with the narrow exception for mere omission; the law of the Partidas and the Twelve Tables cited to make betrayal by a protector an aggravation; and - the procedural point that mattered most in practice - the rule that less exacting proof was required for these complaints, stated as the general rule for vassals against lords and the poor against the powerful, with the author's own limit on it and a named case where the limit bit. It also prints the things a defensive account would cut: the crown jurist's own record that the encomenderos had discredited the Spanish in every nation, on the authority of Las Casas's Treinta proposiciones; that abolition of the institution had been proposed many times; and that the one prosecution he reports as successful is one he brought himself, which is why this entry marks it as uncorroborated.
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 penalty is stated as a conclusion drawn from the duty, with its place in the compiled law. In libro III, capítulo XXVI of Juan de Solórzano Pereira's Política Indiana, §21 infers "quan justificadas son las Cedulas referidas, en quanto ponen pena de privacion à los Encomenderos, que excediendo de sus obligaciones, trataren mal à los Indios, que recibieron debaxo de su amparo, y defensa", which the 1736 editor's asterisked margin refers to ley 1, título 9, libro 6 of the Recopilación. The chapter's printed SUMARIO states it flatly at head 21 - "El Encomendero, que no cumple, pierde la Encomienda".
The first justification offered is contractual, and it treats the grant as a bargain with the grantee rather than a favour. At §21 even if other reasons failed, enough would be the one arising from the breach "de la misma ley, del contrato, que con ellos se celebra al tiempo de concederles, ò investirles las Encomiendas, y del juramento, que hacen de guardarla, y cumplirla" - since all the laws of the world agree that whoever does not keep what he promised on his side is not to have kept for him what was promised or granted on the other. The technical ground named is the condition "de haverse dado alguna cosa por alguna causa, y no tener efecto su cumplimiento", a thing given for a cause whose fulfilment fails.
The second justification is stronger because it removes the need to prove a contract at all. At §22 there is no need to resort to that kind of action or condition, since there is the particular one called ex lege - the one arising from the very law and form in which encomiendas are granted, whose nature, like that of fiefs, "tiene en sí implicita, ò embebida la pena de privacion de ellos, siempre que se contravinieren sus Ordenanzas, ò los Feudatarios abusando del Derecho, que se les ha concedido, trataren mal sus Clientes, ò les pidieren, y llevaren nuevos, è inmoderados tributos, ò servicios". The maxim relied on is quoted in italic on the page: "Que el abuso de las cosas siempre se suele, y debe castigar con el perdimiento, ò privacion de ellas."
Whether a warning had to come first was an open question, and the answer given is the harder one. At §24 some writers hold that in feudatories, and so in encomenderos, an admonition must precede, so that they may moderate themselves and abstain from the vexations and excesses charged against them; "la contraria opinion es la mas recibida, y practicada", on Bobadilla and a long line of feudists. The concession made to the other side is precise and is worth keeping: texts suggesting a warning is required are to be understood of cases where the excess consists only in some omission or neglect of duty, "porque este genero de delitos nunca se tiene, ni castiga en Derecho por tan grave, como los que llaman de Comission".
The reason given for refusing the warning is that the warning had already been given in every title and every cédula, and the sentence in which it is said is the chapter's best. At §25 the encomenderos "no necessitàn de nuevos apercibimientos, sobre los que se les hacen en los mismos Titulos de sus Encomiendas, y en tantas, y tan apretadas Cedulas, como para reprimir sus excessos se han despachado, y despachan cada dia, que siendo ellos en sí tan intolerables, aun se hacen dignos de mas severa animadversion, y castigo, por cometerlos aquellos, à quienes se havia encargado la defensa de estos Indios desventurados, cuya salud parece, que del todo queda desesperada, quando de aquellos nacen los venenos para matarlos, de quienes se esperaba la triaca, ò antidoto para mejorarlos". That the crown was issuing such cédulas "every day" is the author's own description of the volume of the problem.
The aggravating principle is then anchored in Castilian law rather than in colonial exception, which is what makes it more than rhetoric. At §25 the words are traced to Acosta, to Cassiodorus and to a law of the Partidas quoted in italic - "Y por esto dixeron los Sabios antiguos, que en el mundo no havia mayor pestilencia, que recibir un home daño de aquel, en que se fia" - and at §26 to the law of the Twelve Tables under which a patron who harmed or deceived his client was held infamous, with "el gran Poeta" - so called and not named on the page, and not identified here - placing such men in the first class of the gravely tormented in hell. Betrayal by a protector is treated as an aggravation in the general law, and the encomendero is put in that class.
The damage done to Spain's reputation by the institution is stated by the crown's own jurist, and he names the man who did most to publicise it. At §27 the encomenderos are to fear the grave crimes and excesses committed to the harm of their Indians, "y que en todas Naciones los tienen tan desacreditados, como consta de los que refiere el Padre Acosta, y antes dél el Obispo de Chiapa en su tratado de las treinta proposiciones". The Treinta proposiciones muy jurídicas is Bartolomé de las Casas's; Solórzano cites it here not to refute it but as evidence of what had become of the Spanish name.
That the institution was repeatedly proposed for abolition is on the record in the same paragraph, together with the argument that saved it. At §28 "por lo qual se ha tratado tantas veces de quitar esta introducion de las Encomiendas, y mas quando consisten en servicio personal"; the kings hold back, awaiting amendment and arranging it by the prudent means described. The defence offered is the classic one and this entry states it as an argument rather than a finding: if there is still excess, it is to be attributed to the vice of men and not to that of the cause, "y la perversidad de los malos, no ha de dañar à los buenos: ni el abuso, de lo que en sí lo es, puede mudar la substancia de su bondad". Whether that answer is adequate is not decided here; what is established is that the question was live inside the government.
One prosecution is reported with names, a place and an outcome, which makes it the most concrete thing in the chapter. At §31 "esto es, lo que Yo procuré practicar en Lima en las causas, que allí juzgué de excessos de Encomenderos, y de todas estas doctrinas, y otras me valí siendo Fiscal en el Supremo Consejo de las Indias, contra los herederos de un Hernando Vela, que fue años ha Encomendero de los Aullagas en el Perú, y por los tributos demasiados, que cobró de sus Indios, y otros graves daños, y vexaciones, que se probó haverles hecho, le privaron de ellos, y fue condenado en una gran suma de ducados, para cuya paga se le vendieron en almoneda todos los bienes, que tenia, y entre ellos el Pueblo de San Martin de Valde-Iglesias, que havia comprado en España". The heirs of an encomendero of Aullagas were stripped of the encomienda and condemned in a large sum, and the estate sold at auction reached back to a town in Castile.
The case is reported by the prosecutor and this entry says so rather than leaving it to be noticed. Solórzano is describing a suit he brought himself as fiscal of the Council of the Indies, in a book he wrote to justify the government he served; the paragraph is framed as an illustration of his own practice and closes by quoting Exodus on the widows and orphans as having been verified in the outcome. No date is given for the judgment, no tribunal record was consulted here, and nothing read for this entry corroborates the sale or the sum. The claim is therefore that the treatise reports this outcome, not that the outcome is independently established.
The most consequential procedural rule in the chapter is a relaxation of the standard of proof in favour of the complainants. At §32, because the royal cédulas so greatly desire the good and favour of the Indians, and because of the ill usage the encomenderos for the most part give them, "se requieran menos exactas, y apretadas probanzas, para tener por probados, y verificados los daños, injurias, y vexaciones, que se dixere, que han hecho à sus Indios, ò excessos en los tributos, servicios, y otras qualesquier cosas, que les huvieren llevado, ò quitado". At §33 this is presented not as an Indian exception but as the general rule wherever vassals sue their lords or the poor and defenceless sue magnates and the powerful, on Baldus as reported by Bobadilla.
The author then limits his own rule, and the limit belongs in the record next to it. At §34 "Yo limito esto, siendo la tal probanza perfecta en su genero, y de testigos en sí habiles, è idóneos, y no se haviendo hecho otra superior por la parte contraria del Noble, ò Magnate" - the relaxed standard applies only where the proof is complete of its kind, the witnesses competent, and no better proof has been made on the other side. At §35 he gives the case in which the limit bit: in a hard-fought suit against Don Alonso de Sotomayor, encomendero of Sacaca, over excessive tributes, he saw it put in doubt whether sufficient proof would be "la assercion, y deposicion de los Oficiales, que de los mismos Indios se eligen para recoger estos libros, y pagar" - officers chosen from among the Indians themselves. The page prints "libros" where the sense seems to call for the tribute registers or the tribute itself; the sentence runs on past the foot of the leaf read here, the case is left unfinished, and its outcome is not known from anything opened for this entry.
What this entry establishes and what it does not. It establishes that Spanish colonial law attached forfeiture to the mistreatment of Indians by encomenderos, that the standard treatise gave three independent justifications for it, that the more received opinion dispensed with a prior warning for acts of commission, that the aggravation was grounded in Castilian and Roman law on the betrayal of a client by a patron, that a relaxed standard of proof was applied to complaints of this kind with a stated limit, and that at least one prosecution is reported as having stripped a family of its encomienda and sold its property. It establishes equally that the man reporting all this was the prosecutor in that case, that he is the only source for its outcome, that he records the encomienda having discredited the Spanish "en todas Naciones" on the authority of Las Casas and Acosta, and that abolition had been proposed repeatedly and was still being argued about. It establishes nothing about how many encomenderos were in fact deprived, in what proportion of complaints, or with what effect on the treatment of the Indians concerned.