Legal History of New Spain, 16th-17th Centuries

by

Margarita Bornemann Menegus

• LAST REVIEWED: 30 July 2014
• LAST MODIFIED: 30 July 2014
• DOI: 10.1093/obo/9780199766581-0162

Introduction

The legal history of New Spain during the 16th and 17th centuries has been studied from three perspectives: that of the legal historians, from an institutional viewpoint, and finally with regard to the social history. The historians of Derecho indiano qualify the law of the 16th and 17th centuries as casuistic in nature. That is to say that orders are given for specific situations; there is no general legislation. On the one hand, during the first century under Spanish domination, the governmental institutions were undergoing their construction and thus throughout the 16th century were experiencing constant change. Víctor Tau Anzoátegui proposed that there were three types of norms applied in America: (1) those issued by the Council of the Indies, (2) those taken from the registration books (cedularios) and from what became the Recopilación de leyes de Indias in 1690, and (3) those from the set of rules emanating from the viceroy, the Audience, the governors, and other representatives of the king in those dominions. The name of Derecho indiano is given to this set of normatives. On the other hand, it must be understood that the colonial society was a society integrated by corporations and that each corporation was ruled by its own laws, by way of Ordenanzas or Estatutos. That said, the legal history of New Spain in the 16th and 17th centuries is, in reality, the history of a multiplicity of institutions that were transferred from Castile and underwent important modifications during their establishment on American soil. Furthermore, it is important to note that—given the Mesoamerican cultural diversity—the institutions, both transferred and created locally, behaved differently according to the local cultural and regional conditions. Therefore, the historiography of New Spain is characterized by case studies, and the works of a general character, in reality, cover the history of the most-important institutions, such as the Council of the Indies, the encomienda, and the tribute, or the history of the diverse tribunals. Moreover, we find works that reflect upon the actions of the Spanish monarchy in America. It is important to note that in this article the themes registered cover both the royal and ecclesiastical fields. Legal historians have concentrated their efforts on the study of Derecho indiano and on the major legal controversies during the first few years after the discovery of the Americas. Meanwhile, institutional historians have concentrated on the study of the incorporation of the Castilian institutions into the indigenous and Creole world, as well as on general institutional history. And, finally, social historians have focused on observing the application of the law by way of case studies, including their regional and temporal variants.

General Overviews

To understand the conquest of America it is necessary to comprehend the legal aspects of the incorporation of the Americas to the Spanish Crown. Manzano Manzano 1948 addresses this problem thoroughly. On the other hand, Manzano Manzano 1991, the author’s history of the Recopilación de leyes de Indias, provides the reader with a general account of the evolution of law in the 16th and 17th centuries. Góngora 1951 offers a general overview of the creation of the modern Spanish state. Lynch 2000 is an excellent summary of the Spanish Empire during the first two centuries.

• Góngora, Mario. El estado en el derecho indiano: Época de fundación 1492–1570. Santiago: Universidad de Chile, 1951.

  This work covers the concept of the state in Castilian law and legal doctrine. It also discusses the creation of jurisdictional and governmental bodies for the Indies, including local legislation. The work has a broad perspective covering the whole of Latin America.

• Lynch, John. Los Austrias (1516–1598). Serie Mayor. Barcelona: Editorial Crítica, 2000.

  A wonderful summary of the Spanish Empire during the 16th and 17th centuries. First published in 1992.

• Manzano Manzano, Juan. La incorporación de las Indias a la Corona de Castilla. Madrid: Ediciones Cultura Hispánica, 1948.

  This publication addresses not only the discussion on the Justos títulos and the doctrinarian position of several jurists of the time but also covers fundamental themes such as the incorporation of America into the Spanish Crown and the accompanying legal implications.

• Manzano Manzano, Juan. Historia de la recopilaciones de Indias. 2 vols. 3d ed. Madrid: Instituto de Cooperatión Iberoamericana, Ediciones de Cultura Hispánica, 1991.

  This publication is the only comprehensive study on this great work. First published in 1950 (Madrid: Ediciones Cultura Hispánica).