What an encomendero could lawfully demand — and whether his Indians could sue him for the rest
The standard treatise lists what an encomendero may not take: nothing above the assessed tasa, no bargains with his Indians because such bargains are presumed harmful, no rustic work, no personal service, no boys to serve his wife at sewing, weaving, washing or cooking, no hens and no eggs, with restitution of double. The feudal duty to maintain an impoverished vassal is refused him, and the chapter concludes that the Indians could sue him, and testify against him, without leave.
Why this wins its question: English-language accounts of the encomienda usually describe it as a grant of Indian labour and tribute, which leaves a reader with no way of knowing that the labour half was prohibited outright and that the tribute half had a legal ceiling the grantee swore to. This object goes to the six paragraphs of the standard treatise that state the limits and prints them: the ban on taking anything above the assessed tasa with the cédula of Fuensalida of 26 October 1541 behind it; the blanket prohibition of agreements between encomendero and Indians on a standing presumption that such agreements are harmful; the itemised ban on rustic work, on personal service of any kind, on boys sent to sew, weave, wash and cook for the encomendero's wife, and on hens and eggs, with restitution of double added to the penalties; the 1736 editor's note leaving the choice of money or kind to the tributary and admitting pacts only with the protector of the Indians present; and the two procedural conclusions that an Indian could sue his encomendero and testify against him without asking leave, at a time when a Spanish vassal could not sue the lord of his town. It also prints what a defensive account would cut and a hostile one could not supply: the crown jurist's own parenthesis that the Indians being not rested but "en quiebra, y suma pobreza" is "lo mas ordinario", and his advice that where other witnesses can be found the Indians should abstain from testifying against their "Dueños" — a qualification he says he always followed himself.
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 limit on what could be taken is stated as a deduction from the charge rather than as a separate favour, which is what gives it force. At §39 of libro III, capítulo XXVI of Juan de Solórzano Pereira's Política Indiana, "Lo quarto, de lo dicho tambien se sigue, que los Encomenderos no pueden pedir, llevar, ni recibir de sus Indios mas de los tributos, que por las tassas les están señalados, porque se les dan con este cargo, como se ha dicho, y lo juran, y porque assi está dispuesto expressamente en una Cedula dada en Fuensalida à 26. de Octubre del año de 1541. y en otras muchas". The assessment is the ceiling; the oath taken on receiving the grant is one of the reasons it binds.
Private agreement is closed off as a route round the ceiling, and the reason given is a standing presumption about the bargaining position of the parties. The same paragraph refers back to libro II, capítulo XX of the same work, "donde tambien pruebo, que todas las convenciones, paciones, y permutaciones hechas entre los Indios, y sus Encomenderos están prohibidas, porque siempre son sospechosas, y se presumen dañosas, y nocivas à estos miserables". Contracts between the two are not weighed one by one; they are presumed injurious because of who the parties are.
The prohibition on services is then itemised, and the itemisation is the most concrete thing in the chapter because it names the household exactions rather than the field labour. At §40 "Y assi, ni les podrán pedir obras rusticas, ni otro genero alguno de servicios personales, ni muchachos para que sirvan à sus mugeres de coser, texer, labar, ò guisar, ni gallinas, huevos, ni otras cosas tales para su comida, como se dispone en muchas Cedulas", with the penalties on transgressors given in the earlier chapter and, on top of them, "la restitucion con el doblo, que en casos semejantes puso una ley de la Nueva Recopilacion". That the law had to name hens and eggs is evidence of what was being taken.
The 1736 editor's asterisked notes at the same place add a rule about the form of payment that runs the Indian's way, and they are quoted here as the editor's digest rather than as the treatise. One reports that Diego de Avendaño in his Thesaurus Indicus "trata de la paga de estos tributos, y resuelve, que el Indio pague en dinero, ò especie, como le conviniere, y conoce, que los pactos hechos con los Encomenderos por lo general son perjudiciales à los Indios, y que se permiten, si interviene el Protector". The second is shorter and sharper: "Que no deben pedirles una especie por otra menos útil, en que pecan mortalmente, y que en la esterilidad se deben portar con clemencia". The choice of money or kind is the tributary's; the pact is lawful only with the protector of the Indians present; and substituting a less useful commodity is put as a mortal sin.
Where the feudal analogy would have helped the encomendero it is refused, and the refusal is argued, not asserted. At §41 among freedmen and patrons, and in imitation of them in fiefs, lords and feudatories have a reciprocal obligation to maintain each other when either is in straits and necessity, on the authorities of Rosenthal and Colero; "Esto nunca lo vi practicar entre los Indios, ni la razon admite, que se practique: porque si los Indios están enteros, y descansados, y pagan bien sus tributos à los Encomenderos, este no podrá estar pobre, y si no están descansados; sino en quiebra, y suma pobreza, que es lo mas ordinario, llano es, que deben acudir primero à sus propias necessidades". The clause that carries the weight is the parenthetical "que es lo mas ordinario" — the ruin of the Indians is described, by the crown's own jurist, as the usual case.
A second ground is added for refusing relief, and it is unsparing about where encomendero poverty came from. At §42 "Y esto será mas cierto, si la pobreza del Encomendero se ha ocasionado de sus juegos, y gastos desordenados, como lo dicen todos los DD, que tratan de estos socorros, y de que la caridad bien ordenada, comienza de sí propios", to which the author adds a saying of Baldus: "Que la camisa está mas cerca, que el sayo, y que mas debe mirar qualquiera por la uña de su pie, que por la cabeza de su Vecino." The proverb is deployed for the Indians, not against them.
The procedural question is then put in the form that shows what was at stake, and it is answered against the encomendero. At §43 "Mas dificultad tendrá el punto, si los Indios podrán llamar à juicio sin venia à su Encomendero?" — for freedmen and feudatories cannot do so on many texts and authorities, nor, according to Bobadilla, can the vassals of Spain sue the lords of their towns. "Pero todavia siento lo contrario en nuestros Indios, cerca de sus Encomenderos, y nunca vi, que pidiessen venia para litigar con ellos". The general practice is then given as the reason: it is not in use either that vassals or subjects ask leave of their lords, clients of their protectors, parishioners of their parish priest, or even churches and chapters of their prelates, as Magero, Copino and Mornacio conclude after long dispute, adding that a vassal may also plead as advocate against his lord.
The companion question on evidence is answered the same way in law and then qualified in practice, and the qualification is where this entry stops agreeing with its source. At §44 "Y lo que mas es, que tambien pueden testificar, que es otro punto, en que assimismo ha havido grande disputa"; but the author advises "que si ay copia de otros testigos, lo mas honesto, y puesto en razon, es, que estos se abstengan de serlo contra sus Dueños, con los quales me he conformado siempre, y entiendo, que lo mismo podriamos practicar entre Indios, y Encomenderos." The capacity to testify is affirmed and then discouraged wherever other witnesses can be had — by a judge who says this was his own settled practice. The word he uses of the encomendero, "Dueños", is his.
The standing of §§43 and 44 should be stated exactly, because they are the paragraphs a reader is most likely to over-read. Neither cites a cédula, a law of the Recopilación or a judgment. §43 rests on the author's observation that he never saw Indians ask leave to sue, and on a line of civilian doctrine about vassals and clients applied to them by analogy; §44 rests on doctrinal dispute and closes with a personal practice offered as a model. They are evidence that a judge of the Audiencia of Lima believed in the 1640s that his court would hear an Indian suing his encomendero and would take an Indian's testimony against him, not proof that a rule so provided, and not evidence of how often either happened.
What this entry establishes and what it does not. It establishes that the standard treatise of Spanish colonial law treated the assessed tasa as a ceiling binding on the encomendero by the terms of his own grant and oath, that agreements between encomenderos and their Indians were prohibited under a presumption of harm rather than examined case by case, that rustic work, personal service, domestic service by boys, and food renders such as hens and eggs were all forbidden with restitution of double, that the 1736 editor recorded a rule leaving the choice of money or kind to the tributary and admitting pacts only through the protector of the Indians, that the reciprocal maintenance owed between feudal lord and vassal was refused to the encomendero with the ordinary ruin of the Indians given as the reason, and that the treatise concluded the Indians could sue and testify against him without leave. It establishes nothing about enforcement: no prosecution under these rules is described in these paragraphs, the cédula of Fuensalida of 1541 and the law of the Nueva Recopilación were not opened in their own printings, and the author's two procedural conclusions are his own opinion and practice.