Résumé [Culture juridique et argumentation dans la Vice-Royauté du Pérou du XVIe au XVIIIe siècle] : l’étude de la littérature juridique publiée au XVIe et au XVIIe siècle dans la Vice-Royauté du Pérou, avec des exemples pris dans le droit pénal, la procédure, le droit civil les offices et la juridiction ecclésiastique, indique que l’argumentation fait plusieurs fois appel à des auteurs étrangers à l’Espagne. Une analyse plus fine permet d’évaluer le rôle du latin et des langues vernaculaires, les espaces politico-géographiques d’où viennent les textes cités, les changements liés aux thèmes traités et les tendances à limiter le recours aux arguments venant de juristes étrangers.

I. Introduction.

1. In this paper we intend, first of all, to introduce some relevant traits of the legal culture of the 16th and 17th century Vice-Reign of Peru through an analysis of arguments developed by contemporary scholars. Secondly, we mean to sketch a few questions and analyses, offering them as guidelines for future research and cooperation projects in cross-border influences in the legal European literature of early modern times in Hispanic colonial space. The matters discussed here represent a preliminary approach to the question of the reception of European literature by Hispanic colonial law. Its conclusions are in no way intended as exhaustive.

2. The cultural space selected was the Vice-Reign of Peru, the largest political and administrative unit created by Spaniards in South America. Its area included the territories of the present-day republics of Colombia, Ecuador, Peru, Bolivia, Chile, Paraguay and Argentina. The capital of the kingdom of Peru was the city of Lima where the court of the Vice-Roy – the local legal representative of the Spanish king – was established in the last third of the seventeenth century. In the main cities of the Vice-Reign were installed upper courts, the audiencias, around which a very peculiar judicial culture came to flourish. From the earliest decades of the colonization the region also boasted a university, San Marcos, which provided courses in theology and law for the Spanish and mestizo elite.

3. In order to reconstruct some traits of the legal argumentation of the Vice-Reign at the time, I have selected works belonging to different genres of early modern legal literature – such as treatises, consilia and compendiums of forensic practice [1] – written by jurists and magistrates working in Hispanic South America between 1590 and 1685. The criterion for the selection of works privileged those written in the colonial centers of the vast expanses of the Vice-Reign and published in Lima. Owing to the great mobility in the career of some jurists working in South-America between the 16th and 17th centuries some works printed in Spain were also analyzed.

4. Our aim was to identify general aspects of the reception of European legal doctrine in Hispanic South America and of its real impact on juridical argumentation. As far as possible, this first attempt at a synthesis will deal with the central questions concerning the spread of European literature proposed by the organizers of the seminar At the Roots of European Legal Culture : Cross Borders Influences of Legal Literature, 1550-1750.

II. The Penal Law Literature : the treaty, de nobilibvs non torqvendis , by Carrasco del Saz.

5. The Penal Law treaty de nobilibvs non torqvendis was written by Carrasco del Saz in the city of Panama between the months of February and March, 1620, and was posthumously published by his son in Madrid in the year 1648. On the one hand, this work represents one of the few penal law texts written by a jurist of the Vice-Reign of Peru to have survived the earthquakes, fires and pillages which damaged the archives of colonial documents in the past three centuries. On the other hand, the work deals with a problem intensely debated by the legal literature of early modern Europe and even now still dramatically present in South-American democracies : the use of torture as a means of getting evidence for a penal case. [2]

6. The treatise under analysis was written by Carrasco Del Saz, a Spanish lawyer who migrated to Lima in the 1590’s and who finished his dazzling career acclaimed as a royal audience judge of Terra Firme and a respected master of doctrine. According to the author, the treaty de nobilibvs non torqvendis was written to establish the legal hypotheses which allowed for the use of the torture of noblemen in Spanish procedural penal law. In Carrasco del Saz’s words this hard and doubtful question often gave rise to controversy and had long demanded his attention as a jurist. [3]

7. In 1608, when Carrasco was still a lawyer of the Lima audience and advisor to the Vice-Roy the Marquis of Montesclaros he was granted special jurisdiction to investigate the murder of the members of the crew of a Spanish warship at the port of Callao with express powers to order the torture, physical mutilation and death penalty of those involved in the crime. [4]

8. The underlying problem which triggered Carrasco’s discussion derived from the incongruity of the Spanish legal rules concerning the use of torture against noblemen. On one hand there was a general law from the 1567 Recompilation which definitely forbade the use of judicial torture as a means of producing evidence when the suspects were aristocrats. On the other hand, there was a later law which laconically acknowledged the possibility of submitting noblemen to torture in the event of “serious crimes” (casos enormes). [5]

9. Facing these two conflicting norms the magistrate was confronted with two questions of interpretation. The first one was to decide who could legitimately claim the status of a nobleman in a penal case. The second hermeneutical task was to present and justify the definition of crimes which could be considered casos enormes. The magistrate’s hard decision about who could lawfully be submitted to torture and under which circumstances this could be allowed was made even more difficult by the variety of opinions and the scarcity of books on the matter. In this connection Carrasco del Saz acknowledged that owing to the small number of cases cited the glosses and commentaries by Gregório López (1542-1596), Juan de Garcia de Saavedra (16th century), Alfonso de Acevedo (1518-1598) left the question of “crimes enormes” undecided.

10. It is in the context of these hermeneutical difficulties that Carrasco del Saz turns his attention to the opinions of foreign scholars, trying to find guarantees and authority for his arguments. In this regard, one may find three argumentative uses of the vast repository of commonplaces gathered by Carrasco del Saz in the Italian and French forensic literature in order to solve the problems brought about by the application of torture in penal suits.

11. In the first place, the opinion of foreign jurists is resorted to in order to justify normative aspects concerning the form of social differentiation by strata which mainly conditioned the creation of legal expectations in the European and Hispanic society of the Ancient Régime. [6] As pre-modern law largely conditioned the enjoyment of rights to adstrict roles and to the place of the insertion of individuals in the hierarchy of social strata the legal discussion concerning noble status in the Vice-Reign of Peru was a recurrent preoccupation of jurists. [7]

12. It should however be noted that the requirements for the acquisition of nobility condition in the Indies were more flexible and informal than in the reigns of Spain. Therefore, it is not surprising that decisions about the status of nobility might give rise to controversies in the upper strata of colonial society. Besides, in the Indies, the formal possession of titles of nobility did not grant social privileges very different from those enjoyed in practice by great landowners, rich merchants, and high regal office holders who had no such titles. [8]

13. As Carrasco’s treaty undertook grappling with the controversy about juridical torture, the author’s reaffirmation of several commonplaces of pre-modern law concerning the social hierarchical system by social strata sounds natural. Carrasco informs the reader that in Roman law noblemen were not submitted to torture. In order to confront this with the law of contemporary nations he invokes allegations by Giulio Claro (1525-1575), André Tiraqueau (1488-1558), Guillaume Benoît (1455-1515) and Prospero Farinacci (1554-1618) to attest the juridical possibility of torturing noblemen in the kingdom of France, in the Dukedom of Milan and in the city of Rome. [9] Supported by Giulio Claro’s text he defends the need for endogamy in the upper stratum in order to prevent the corruption of the flower of the nobility by ignoble and unworthy marriages. And availing himself of Antonio Favre’s (1557-1624) opinion he makes it clear that the privileges of aristocrats’ wives did not belong to the women themselves, but were grounded on their husbands’ status.

14. Seeing that the concept of nobility was undergoing significant semantic changes in the transition to the 17th century it was unavoidable to debate gentlemen’s and jurists’ claim to the status of noblemen. In this connection Carrasco goes into a long-winded digression using the commonplaces and opinions of several authors to exalt the virtues of learned jurists in the Vice-Reign of Peru. Thus, he resorts to Baldi degli Ubaldi’s (1327 ?-1400), to Rolando Della Valle’s (16th century), André Tiraqueux’s and Guy Pape’s (d. 1477) opinions to support the view that the privileges of the dativa nobility, made up of the councilors and magistrates of the king’s upper courts, were equivalent to those of the nobility nativa, that is, by blood. [10] Similarly, the common opinion of the doctors of the law is taken as a means of extending the privilege of nobility to all doctors despite the disagreement of Francesco Bruni about its attribution to lawyers. [11] And finally, the opinions of André Tiraqueux and Antoine Favre are called up again when the text deals with the delicate question of the retention of the condition of nobility in the case of people involved with trade and with the mechanical arts. [12] As he particularly emphasizes the opinion of French jurists in the debate about social stratification the magistrate of Panama confirms the prestige enjoyed by the discourse on nobility found in that literature. [13]

15. The second argumentative use of the opinion of foreign scholars aims at supporting general principles on the interpretation of the law and on the application of contemporary norms. As the underlying question has to do with a supposed collision of norms, the text alludes to Bartolo (ca. 1313-1357) and Bartolomeo Socini (1436-1507) in order to assert that the enacting of a law to correct another law should be avoided except in cases of the existence of express determination. Several principles are alleged in order to guide the interpreter in the application of laws. The duty not to make distinctions in cases when the law is of an indistinct character is found in Bartolo, Ottaviano Cacherano d’Ozzasco (15 ?-1589), Socini and Antoine Favre. The rule that a later general law does not cancel preceding special cases is reinforced by Bartolo and Antoine Favre’s authority. Reference to these authors evinces a tendency to resort to the topic repository of the ius commune in order to deduct general interpretive rules when contradictions arose in the legal order in force in the territories of the Spanish Empire. [14]

16. Having settled the conditions about the question of nobility and expounded the reasons which allowed for the use of torture against noblemen, Carrasco faces the challenge of defining which crimes should be considered serious. His first argumentative strategy then becomes the distinction of offenses according to their seriousness. As the classifications put forth by Spanish jurists did not contribute much to the solution of the problem it was important to confront the viewpoints of several authors.

17. Considering that scholars’ opinions always admitted of discussion, it was important to reinforce the possibility of finding the right solution in the choice of arguments, by demonstrating that the proposed solution was accepted by most authorities on the matter. [15] And the most prestigious authorities in penal law in the catholic world at the beginning of the 17th century were precisely the Italian jurists. In order to make easier his task of systematization of serious crimes, Carrasco dialectically confronts the main criteria for the classification of crimes in force at the time, thus searching for guidance for his own decisions.

18. Carrasco del Saz begins by citing Andrea Alciati (1492-1550) to state that the seriousness of crimes is a matter to be arbitrated by the judge. Then he explains the classification of crimes based on the gravity of the penalty defended by Bartolo and Socini, the distinction between offenses based on the estimation of guilt and of the malice will direct towards the attainment of a criminal end adopted by Nicollò Tudeschi, Ottaviano Cacherano d’Ozzasco and Giovanni Baiardi (1530-1600) and the classification of crimes as light, serious, heinous and most heinous by Giulio Claro. Lastly, he refers to Prospero Farinacci and Domenico Toschi’s (1535-1620) classification of crimes but without going into the discussion of its merits. [16]

19. Carrasco then analyzes several crimes so as to classify them according to their gravity. Some crimes of a sexual character, such as rape, adultery, pandering and the kidnapping of a virgin are not subject to juridical torture. However, probably by reason of their higher social status, the rape of nuns by noblemen is considered a crime more detestable than that of lay women, thus admitting of juridical torture. [17] The determination of the gravity of some among the several crimes analysed by Carrasco requires the massive contribution of Italian and French jurists. Which crimes would then be discussed by Carrasco, for which he would resort to the scholarly arguments of foreign jurists ? Crimes most requiring of scholars opinions are those of murder, homicide, poisoning, forgery, perjury and arson. [18] As he finishes up his treaty Carrasco draws the conclusion that, in Spanish law, despite their privileges, noblemen could in large measure be submitted to torture for the elucidation of several crimes considered heinous.

20. Who would then, in turn, be the magistrate of the audience of Panama’s favorite foreign authors and genres of juridical literature ? First of all, come the Italians. The jurists of the ancient Italian states most frequently mentioned in the treaty are Giulio Claro (1525-1575), Giovanni Batista Baiardi (1530-1600), Pietro Caballo (15 ?-1616), Bartolo de Sassoferrato (ca. 1313-1357), Giacomo Menochio (1532-1607), Tiberio Deciani (1509-1582), Domenico Toschi (1535-1620) and Prospero Farinacci (1544-1618). Next in his preference are French authors. Those he mentions are André Tiraqueau (1488-1558), Guy Pape (d.1477) and Antoine Favre (1557-1624), Nicolas Bohier (1469-1539) and Guillaume Benoît (1455-1516) [19]. All works by the foreign authors cited are written in Latin and those published in the second half of the 16th century get the upper hand. Law reports of upper courts in Europe also play a prominent role in Carrasco’s scholastic argumentation. Sentences by the upper courts of such ancient Italian states as the Senate of the Dukedom of Milan, the Sacred Regal Council of the Kingdom of Naples and the Rota of Peruggia and Umbria of the Papal State are also mentioned. [20] So are the judicial decisions of the Senate of Savoy and the French parliaments of Dauphiné and Bordeaux. [21] Above all, the decisions by European early modern upper courts are referred to in technical discussions about the seriousness of crimes like murder, poisoning, perjury and arson. Secondarily, they also reaffirm general principles of the application of legal rules in time, formulated by ius commune and opinions about the conditions for the attribution of the status of nobility.

III. The Literature of Forensic Practice

21. The literary genre comprising compendiums and handbooks on forensic practice are given new impetus from the 16th century on. Even though frequently disparaged by humanists as a minor genre, handbooks proved indispensable for the performance of jurists at a time which, to a degree so far unknown, experienced an increasing recourse to judiciary decisions for the solution of social conflicts. Despite the recent installation of upper courts in the Andean region the audiences of the Vice-Reign of Peru did not prove exempt from this process of intensification of judicial litigation in early modern times. [22]

22. According to Renzo Honores, from 1550 on the authorities responsible for the vice-regal administration complained that the Spaniards’ inclination to enter litigation was being rapidly and uncontrollably passed on to the indigenous population, who then flooded the corregimientos (municipal courts) and audiences of La Plata, Lima and Quito with torrents of lawsuits and complaints. [23] As a consequence of this intensification of the recourse to jurisdictional means to solve social conflicts, the first printed works devoted to procedural practice sprang up in the Vice-Reign of Peru at the beginning of the 17th century. The most significant works of this genre of forensic literature printed in the city of Lima in the first half of the 17th century were Cvria Philippica (1603) by Hevia Bolaños and Práctica y instrucción para albaceas, tutores y curadores que administren biens de menores (1640). [24] Let us then analyze these practical compendiums so as to pin down eventual influences of the European legal literature on the daily culture of litigation of the kingdom of Peru.

23. The work Curia Philippica which has been attributed to Hevia Bolaños [25] (1570-1623) was first published in Lima in 1603. Bolaños’ collection in a single compendium of the procedural Spanish legislation which had so far been disperse and scattered around was widely spread in scholarly circles and in the indigenous communities of the kingdom of Peru. [26] As evidence of this fact one may mention the fourteen editions of the Curia printed in the seventeenth century and the fifteen others in the eighteenth century. [27] The Curia Philippica can be basically divided into four sections. The first two have to do with civil law, the third one with penal law and the fourth one with magistrates’s investigation suits. As a sample, we have selected the section devoted to penal law to then perform an analysis of the reception of the forensic literature in practical works of greater historical relevance to the colonial Hispanic law.

24. In the section devoted to procedural penal law Bolaños dissertates about all the rules and principles disciplining the development of criminal judgment in Spanish law. He goes into minute details to discuss questions concerning jurisdiction, procedural parts, penal suits and means of evidence and sentence production. In the Curia Philippica, from approximately six hundred quotations of other authors found in the chapter about procedural penal law, about a third consists of citations of Italian jurists. Most are second hand quotations gathered from Spanish law books. A relevant characteristic of the kind of quotations in the Curia is the predominance of opinions from Italian authors of the late Middle Ages and of the first half of the 16th century. Thus the Italian authors with the largest number of quotations are, respectively, Giulio Claro (1525-1575), Paride dal Pozzo (1413-1493), Angelo Ubaldi (ca. 1328-1407) and Bartolo (ca. 1313-1357). Next come quotations from Giacomo Menochio (1532-1607), Tommaso Grammatico (1473-1556), Egidio Bossi (1488-1546), Tiberio Deciani (1508-1581) and Prospero Farinacci (1554-1618), who provide five or six quotations. The French authors cited are Nicolas Bohier, Étienne Aufrerè (1548-1511), Pierre Rebuffi and Bartolomé Chasseneux. [28] The sentences of the upper courts mentioned are those of the Sacred Regal Council of the Kingdom of Naples and of the Bordeaux Parliament. [29]

25. From the analysis of the excerpt of the Curia one gathers that the basis of the book is made up of literary borrowings from Spanish jurists of the second half of the 16th century, such as Antonio Gomes, Martin de Alzpicueta Navarro, Gonzalo Suarez de Paz, Alfonso de Acevedo, Diego Covarrubias y Leyva, Gregorio Lopez and Juan Jeronimo Castillo de Bobadilla. A great part of the authorities quoted is indirect and second hand.

26. The civil practice handbook by Domingo Gómez de Silva, Practica y Instrvcion para albaceas, tvutores y cvradores que administram bens de menores had a very different fortune from that of the work by Hevia Bolaños. [30] Although this civil law handbook does not include a single allusion to the opinions of scholars, the history of its publication enables us to have access to the prejudices of scholars of the first half of the 17th century concerning forensic practices and its literature. [31]

27. The origins of Domingo Gómez de Silva are obscure. It is known that he had no university training. In 1600, he was appointed by the Earl of Monterrey as general defendant of the minors of the city of Lima. The class of public defendants was charged with the duty of watching the course of judicial suits involving the property of adolescents and children in any court. [32] In 1605, Domingo Gómez de Silva finished the manuscript of a small 30-page handbook on judicial aspects of the defense of the property of minors. The following year he asked official permission to publish the book in Lima, but the permission was not granted. The manuscript had to wait for three decades of the author’s perseverance before it was appreciated again, probably because Gomez da Silva did not have the status of a scholar. In 1638 the request for publication was submitted to the Lima cabildo, which appointed a committee to appreciate it.

28. The committee gave a favorable opinion to the publication with the justification that in order to write a practical compendium one need not be a doctor. According to the report issued by the committee, the experience acquired in legal practice could bestow knowledge “as much as any university institution”. [33] To support the argument, the committee called up the exemplary case of Demades of Athens who, on being asked where he had studied the subject that he wrote about mentioned his frequent attendance at the Areopagus. Thus, just as the Athenian orator had got his rhetorical knowledge empirically, so also can the “practice of the courts of this city work this miracle even better than the republic of Athenians and Lacedaemonians”. [34]

29. The manuscript was then sent to the Vice-Roy who requested another opinion by a competent committee. One of the members of the committee emphasized that “the disposition is better than the author’s profession would lead one to expect and its fruits bear no inconvenience for the Republic”. [35] The next opinion emitted by two legal scholars added that this was not the first time that it would be convenient “to extract from oracles and answers provided by scholars the truths daily practicable in courts, gathering them in handbooks and making them intelligible to the very people that did not professionally deal with them as did administrators, tutors, guardians, defenders, receivers and other people mentioned in the aforesaid instruction as Hevia Bolaños’s Curia Philipica had truly demonstrated.” [36] However, the scholars underlined that “some letters did not belong to habitual practice and so they thought it convenient to correct them in the original manuscript itself so that it could be printed without correcting notes, which might render the text obscure”. The Practica y Instrvcción manuscript was thus published in 1640 expurgated of eventual citations and comments by the hand of a practical professional who “had his own experience as his only teacher” and “did not mean to pass himself off as learned in matters which he knew only through the juridical scholars”. [37]

30. We can put forward the hypothesis that the forensic legal literature produced in the Vice-Reign of Peru tends to incorporate lessen foreign doctrinal opinions than another literary genres. Only future research on forensic literature in colonial America will be able to shed better light on the intensity of the reception of foreign doctrine in this literary genre so relevant for the affirmation of early modern law.

IV. The civil law literature : the treaty on encomiendas by Pinelo.

31. The question of Indian forced labor and land grants was one of the most important civil law matters discussed in the Spanish Empire during the 16th and 17th centuries. The interpretation and discussion of the institute of encomiendas by Antonio de León Pinelo (1595-1660) in the Tratado de Confirmaciones Reales de Encomiendas e Ofícios is an interesting example of the limits of early modern ius commune literature reception in 17th century South American legal disputes. [38] The work started being written in Peru and was finished in Madrid at the end of the 1620’s. Pinelo’s greatest concern is to provide a technical definition of the origins of the encomienda, the differences in their legal regimes in the two vice-reigns and normative aspects related to the power of granting them and the conditions for their private enjoyment. The author makes a great intellectual effort in order to rebut criticisms of the violence and cruelty of the Spaniards in their exploitation of Indian labor and to place the institution in a better light. One can here notice an argumentation deeply interested in formulating complex law rules so as to justify the selective attribution of personal service to Indians and the allocation of large landed property in accordance with the logics of the hierarchical differentiation of a stratified society. [39]

32. In short, in Pinelo’s understanding, encomiendas configure mercies and prizes granted by princes as rewards for meritorious services rendered by vassals during the process of conquest, pacification and populating of territories in the New World. The secondary aims of the institution can be explained by the Christian duty to protect the indigenous populations subject to the risk of falling back on their former idolatrous practices and to promote the material means for the defense of the provinces of the Empire. It would be natural to draw an analogy with the feudal regimes of European law, but Pinelo tries to establish differences between the two institutions and to outline their legal specificities [40].

33. The description and justification of the legal institute of the encomienda are marked out by the extensive use of colonial chronicles, royal documents, opinions and laws belonging specifically to the Indies to the exclusion of any quotation from foreign scholars. However, Pinelo’s refusal to avail himself of foreign juridical texts proves quite revealing for the researcher interested in drawing a preliminary picture of the legal thematic which gathered scholars’s opinions and those which privileged rhetorical argumentative uses more open to political, moral and religious considerations.

34. The author often emphasizes that his approach to the juridical regime of encomienda will refer only to the Law of the Indies. This explains the adoption of a rather selective stance regarding the other juridical orders in force in the other “kingdoms and main states” of the Spanish monarchy. In his opinion the laws and customs belonging specifically to the Vice-Reigns of Peru and of New Spain are enough to define all the relevant aspects of their respective encomienda regimes. Thus, he also defends restrictions on the application of Castilian law to the territory of the two vice-reigns. In his words, “all the laws of Castile are to be kept in those Reigns, not in the absolute but in so far as has not been settled by their own private disposition or is not contrary to them”. [41]

35. For the construction of his discourse he consistently offers the opinions of scholars in ius commune and limits himself to deal with the law of the Indies as established by a bundle of laws, provisions, memorials, opinions and letters of the Council of Indies. As he discusses aspects of succession rights of the encomiendas he justifies his more selective normative approach : “Despite other foundations of ius commune handed down by my master, Doctor Gutierrez Velásquez, the law of the Indies also has its own foundations, which are the only ones I consider in this work.” [42] In another passage he further clarifies his point, stating that “were not for the brevity of time and for more demanding occupations required by this job, other declarations might be considered regarding ius commune and supported by it, a task from which I shall not excuse myself if this work is reprinted.” [43]

36. This normativist trend of the argument, which is contrary to the concourse of scholars’s opinions, is praised by the author of the preface of the book, Don Francisco de Barreda, the relater of the Royal Council of the Indies. In Barreda’s words, “the resolution of a jurist who does not ground his opinion on some law is not to be trusted. Therefore the resolution lays in the law. Not to look at the sun in its orb, except when its light is fading, shows weakness in the looker’s eyes. We want to know the Law by the reverberation of the Law in commentaries. I dispense with weak talents. We must look at the Law itself, for in it we shall find collected the lights which later on will be spread in huge spaces”. [44]

37. In the silence about the legislation of the Indies, Pinelo attributes great weight to the consuetudinary practices fundamentally deduced from documents and chronicles dating back to the days of the Conquest and to the first decades of the structuring of colonial society. [45] To defend the institution of encomiendas against the rough criticism by religious people and foreigners, he has recourse to rhetorical arguments of amplification grounded on the exemplarity of ancients and moderns. In this regard encomiendas would be fair institutions because “the Romans used to give patricians signorities and possessions as rewards for services rendered to the republic” ; “the Hebrews, a nation which the Romans conquered most unjustly, did not condemn the payment of tributes”. [46] He also resorted to the “invincible argument of all the kingdoms in the world”, according to which princes have always granted mercies to their vassals. [47] And he finally clinches his argument availing himself of a concept of authority which was fairly popular in the first decades of the 17th century : encomiendas were a matter of “State reason and good governance” of the Spanish kings. [48]

V. The legal literature about the offices : the treaty, El Gran Chanciler , by Pinelo.

38. The treaty of Pinello, El Gran Chaciller, was written in Madrid in the 1630’s and dedicated to the Count Duke of Olivares, a favorite of king Felipe III’s. [49] It belongs to the legal literature concerning public offices flourishing in the 17th century as a consequence of the administrative organization of European territorial states. It was no different in the Vice- Reign of Peru. According to the author’s aim, the subject of the book was “the great preeminence and qualities” of the post of Great Chancellor of the Indies, which was also held by the king’s favorite minister. The treaty basically dealt with the historical origins, functions and privileges of the dignity from the time of its first appearance in Roman law until its re-recreation in the Council of the Indies and in the royal audiences of the New World. What Pinelo was aiming at with the publication of the text was the granting of the Duke of Olivares’ favor to his project of recompilation of the laws of the Indies. [50]

39. Even though it was written in Madrid the text is revealing from the standpoint of the reception of foreign legal literature by jurists of the Vice-Reign of Peru in the first third of the 17th century. When the author asked for the Duke of Olivares’ approval and criticism of the first version of his manuscript (which would not be included in the printed edition), Pinelo makes it clear that “some ornamentation” was lacking in the discussion of the origins and privileges of the office, for they included “only what a foreigner’s library was able to allow for”. [51] And what could a text based on the library of a jurist coming from Peru and resident in Madrid in the second decade of the 17th century tell us about the cross-borders influences of European legal literature in early modern times ?

40. The foreign juridical literature is used to decorate the text with quotations, examples and historical anecdotes and to shed light on the privileges of the Great Chancellor of the Indies in the absence of a regulation normative of the subject by Spanish law. As in his work on the juridical regime concerning encomiendas, Pinelo draws a distinction between juridical literature and humanist literature. [52] His argumentative style definitely favors a pragmatic perspective of the solution of controversial juridical questions. In this respect he makes it quite clear that a lot of quotations in his text play a decorative role.

41. The doctrinal opinion of foreign Italian and French authors is used with a view to clear up the two central questions which led to the writing of the work : to attest the antiquity and prominence of the office of Chancellor and to lay down its privileges. Hence Pinelo’s need to sprinkle his text with etymological and historical data to attest the antiquity and prominence of the office of Chancellor and to associate it with that of the Roman quaestors. The second aim is to lay down analogical arguments in order to justify legal aspects related to the function of chancellor and of its privileges not expressly articulated by Spanish law. Pinelo identifies the origin of the office of Chancellor with the figure of Roman quaestors. Modern recreations of the office result from the diffusion through imitation of the example provided by the French kingdom. For this reason he used a larger number of French jurists’ opinions than he usually used to. However, the authorities cited in his texts do not differ much from the pattern presented in Carrasco del Saz’ argument concerning the judicial application of torture.

42. The French authors most intensely referred to in the Great Chancellor of the Indies are Barthélemy de Chasseneux (1450-1541), Guillaume Budé (1468-1540), Pierre Rebuffi (d. 1557), Nicolas Bohier (1469-1539), Guillaume Benoît (1455-1515), Antoine Favre (1557-1624). [53] The quotations from André Tiraqueau (1488-1558), François Hotman (1524-1590) and Phillipe le Preux (d. 1559) are secondary and second hand. [54] The Italian jurists cited most often are Prospero Farinacci (1554-1618) and Luca da Penne (1320ca.-1390ca). The other Italian authors come up incidentally once or twice in the text aiming at amplifying the authority of the historical or legal arguments collected [55]. In this context, most quotations are second hand transcriptions of comments from the Digest and from the early modern literature of Penal Law. The decisions of the upper foreign courts quoted are those from the court of Sacred Regal Council of Naples collected by Matteo d’Aflitto (ca. 1448-ca. 1528) and by Antonio Capece (d. 1545) and those of the Parliament of Bordeaux, as systematized by Nicolas Bohier. [56] They are meant to justify the attribution of tributary and criminal privileges attributed to the Chancellor of the Indies. The two German authors directly mentioned are both Catholic. Simons Schardius (1535-1536) is mentioned in the condition of a copious source of quotations to assure the equivalence between the Chancellor and the Roman quaestor so that Ulrich Zasius (1461-1536) may reveal many of his personal privileges such as matters of precedence, tributary immunity and the military nature of his real state property. [57] However, in spite of citations of opinions from several French and Italian scholars the commonplaces of Greco-Roman and medieval authors have the upper hand in Pinelo’s discourse.

VI. The legal consulting literature on the conflict between the royal and the ecclesiastical jurisdiction.

43. According to Miguel Luke Talaván the most frequent reason for the Spanish Inquisition reproaches to books on Law was the question of jurisdiction. [58] Since the 16th century the Tribunal of the Inquisition had either forbidden or expurgated works by several distinguished Spanish jurists because they contained arguments against the privileges and jurisdiction of the Church. In the 17th century, works by magistrates from the Lima audience, such as Solórzano Pereira and Juan Luis Lopez Martinez were included in the index prohibitorum of the Roman Inquisition. [59]
In the 17th century, against the background of the structural differentiation of the political and juridical system of its moral and religious references, a lot of jurisdictional conflicts took place between the royal and ecclesiastical administrative apparatus. Let us analyze two legal works concerning these conflicts published in the city of Lima at the time so that we may have more clues about the patterns of juridical argumentation incorporating the opinions of foreign scholars.

44. The first polemic emerged out of a trivial question for a modern reader, which, however, proved extremely relevant for a society differentiated by strata and obsessed with signs of social distinction such as the Peruvian society of the 1600’s. With the introduction of the fashion of wearing long wigs at the end of the 40’s in Lima and the disorderly appropriation of clerical clothing by lay people, the Archbishopric felt it his duty to put forth canonical legislation for the penal repression of such practices.

45. The edit forbade any cleric of the major or minor orders of the Archbishopric to wear “wigs, tufts of hair and locks” on pain of excommunication, suspension of orders, interdiction of promotions and ten days’ detention in jail. [60] On the other hand, the edit acknowledged the competence of ecclesiastical judges to apprehend clerical clothing and enforce sentences of arrest on laymen who disrespected the differences in clothing determined by canon law for members of the Church and for the lay faithful. According to the Archbishopric, several faults were committed by lay people dressed up as clerics, just thwarting the action of royal justice by reason of the privileged immunities granted to church people.

46. The legislation put down by the Church was opposed by secular authorities. The central question of the polemics revolved around the legitimacy of ecclesiastical jurisdiction to enact such prohibitions and to apply penal sanctions to lay people. Don Martin de Velasco y Monila, a provisor and canon of the Lima Archbishopric and professor of canon law of the University of San Marcos undertook the task of defending the edict in a short document, Defensa en derecho de la jurisdicción eclesiastica, published in the city of Kings in December 1647.

47. Velasco y Molina’s brief juridical paper was meant to reaffirm with moral, religious and legal arguments the viewpoint of the ecclesiastical juridical organization. In his retort we find some quotations from Italian jurists about three points. First, to present the argument of secular authorities who opposed the Archbishop’s right to edit, according to which the Archbishopric’s power to impose criminal penalties on laymen was a legal impossibility. In this case, he transcribed references to the opinions of Niccolò Tudeschi (1386-1445) and Alessandro Tartagni (1424-1477) collected in the treaty on criminal practice by Giulio Claro [61], according to whom canonical law should limit itself to prohibitions, but not to legislate on this matter since ecclesiastical habits were not fixed by royal legislation. At a second point, Velasco y Molina cites Giuseppe Mascardi (d. 1588), Prospero Farinacci (1554-1618) and Tommaso Zerola (1549-1603) in support of the general rule according to which a lay magistrate cannot judicially acknowledge a cause against clerics. [62] And lastly he indirectly refers to the opinions of Martino Bonacina (1585-1631) and of Antonino Diana (1586-1663) to defend another general rule of law according to which social custom cannot be alleged against canonical institutes.

48. The other citations of medieval Italian jurists have to do with the assertion of the social and legal need of separation and distinction between people belonging to the clerical and the lay condition. [63] The two decisions from the jurisprudence of upper Spanish courts mentioned in the document are referred to by means of second hand quotations : one has to do with the audience of Catalonia and the other with the Granada chancery. [64] Therefore, according to Velasco y Molina’s argumentative strategy, the opinion of Italian and French jurists is appropriated to affirm general law rules which disciplined the relation between royal and ecclesiastical jurisdiction and fixed differences of social status between laymen and clerics within a supposed catholic universe indifferent to the political frontiers of early modern times.

49. In 1684, another conflict between ecclesiastical and secular jurisdiction in the Vice-Reign of Peru led to the publication of juridical texts. This time the polemic was triggered by the establishment of an ordination by the viceroy Duke de La Palata addressed to the corregidores to the effect that they should report to the government economical abuses perpetrated against Indians by priests and preachers. For the Peruvian clergy an investigation into their religious activities in the indigenous communities by royal magistrates and officers clearly configured a flagrant violation of the liberty and immunity of the Church. Following the incisive reaction of the Archbishop of Lima against the fulfillment of the ordinance, the Duke de La Palata asked two magistrates of the Lima audience, Pedro Frasso and Juan Luiz Lopez Martinez to draw up arguments defending the governmental measure. During the dispute the magistrates of the audience published three works of which only two have survived till our times. [65] In turn, in 1685 the Archbishop of Lima published his reply to the magistrates in Seville, as he had been denied permission by the viceroy to have it published in Lima. [66] Let us analyze the argument of one of these works in an effort to penetrate the construction of a preliminary picture of the kind of reception of juridical European literature in the kingdom of Peru through the 17th century.

50. In his Consvlta y Parecer [67] Pedro Frasso started by retorting to criticism made by the archbishop against arguments by the authorities which he had cited in a preliminary report drawn on the occasion of the dispatch of the ordination by the Viceroy. According to the Archbishop, prelates should not “submit to any opinion” that harmed them. Frasso replied that his argument did not result from “any opinion whatsoever, but from the opinions of learned men in all letters and that the arguments were supported by different authorities and interpretations ; while the opinion of a single learned author dealing with the subject ex professo is enough for the assurance of the most scrupulous conscience”. [68]

51. This initial reply to the adversaries of the ordinance by the Viceroy of Peru´s advisor reveals the central characteristic of the use it makes of foreign doctrinal opinions : they are used to clear up concepts and to deduct general law rules to be applied to the specificities of the Peruvian context. [69] In what way did its juridical argument avail itself of the opinion ex professo of foreign overseas doctors ?

52. As the Church contested the magistrates’ right to pass on to their superiors summary information about the deficiencies of religious assistance and exploitation of the Indians’ labor by clerics, the main discussion revolved around the extent of their judicial and extra-judicial powers and the right of the vice-regal administration to withhold their pay on the basis of this information. In this way, one of the lines of Frasso’s defense consisted in offering convincing and consistent doctrinal arguments to the effect that the powers of jurisdiction enjoyed by lay magistrates were no exhausted at the judicial sphere, but extended to the administrative sphere.

53. To support his definition of extra-judicial acts Frasso decisively resorted to doctrinal contributions of Italian jurists taken from juridical works of several genres, such as treaties, consilia and decisiones. In this respect, Frasso draws support for his reasoning from the treaties by Tommaso Del Bene (1605-1673), Antonio Ricciuli (1582-1642), Giovanni Batista de Luca (1614-1683), Sebastiano Guazzini (16-17th) and Loreto de Franco (1560-1638), with additions by Zaccaria Pasqualigo (1600-1664). [70] Other opinions are provided by the consilia of Franceschino Corti (1470-1533), Giovanni Maria Vermiglioli (17th century) and Carlo Ruini (1456-1530). [71] The overflowing supply of commonplaces also decisively includes works on civil and ecclesiastical forensic practice by lawyers from central and southern Italy such as Stefano Graziani (16-17th), Francesco Merlino Pignatelli (17th century), Giulio Capone (1612-1673) and the decisions of the kingdom of Naples upper courts collected by Giovanni Francesco Sanfelice (1566-1648). [72]

54. In order to support the postulate that extra-judicial information concerning the conduct of priests collected by lay magistrates was not included in the prohibition imposed by the Cena Decree the author resorts to arguments found in Mario Altieri (d. 1613) and Carlo Pellegrino (1614-1673). Supported by these foreign commonplaces Frasso draws the conclusion that the Cena Decree applied exclusively to lay judges in judicial proceedings against clerics. [73] Therefore the summary and secret information required by judges to inform the Vice-Roy about the abuses committed against Indians by priests configured a legitimate extra-judicial act. Another legal postulate supported by Roberto Bellarmino’s sentences is the argument of the clergy’s submission to political decisions by the temporal government of the republic, especially when coming from the legitimate sovereign. [74]

55. Besides general questions concerning the limits of the power held by the lay jurisdiction against clerics, Frasso tries to solve questions of juridical hermeneutics by availing himself of the opinions of Italian jurists. In order to disqualify Frasso’s arguments in favor of the Vice-Roy the Archbishop of Arequipa had opposed absolute reserve to the interpretation of the Cena Decree by the Holy See. It is in this context that we find Baldo delgi Udaldi’s argument according to which the interpretation of juridical texts depends on reason and on people, hence the impossibility of its being forbidden by a pontifical constitution. [75] In this way, the Lima judge argued, even natural and divine law was subject to interpretation, especially when resulting from an act of authority by legitimately instituted princes such as the Spanish vice-roys. To expand this opinion about the possibility of interpretation of canonical law texts by the faculties of reason, other abundant arguments offered by authors from the ancient Italian states were indicated : Maria Felino Sandeo (1444-1503), Giovanni Pietro Sordi (d. 1589), Simone Majoli (1520-1597), Francesco Mantica (1534-1614) and Filippo Pascali. [76] In this context, Frasso also mentions decisions by Spanish upper courts. [77]

VII. Conclusion

56. From the analysis of the works selected in this paper some preliminary conclusions can be drawn about the reception of European judicial culture in the Vice-Reign of Peru in the seventeenth century. The conclusions are provisional and may be confirmed or refuted by a more comprehensive and systematic study of the heritage of the legal literature inherited from the first two centuries of the colonial Hispanic society in South America.

57. A decisive role was played by the use of Latin as the language of European law till the 18th century : it made possible the crossing of national linguistic borders and allowed for literary borrowings in the area of law studies. This explains the circulation and reception of legal books from the ancient states of Italy, France and of the Holy Germanic Empire by the legal argumentation of Peru in the 17th century. To this one may add that a large portion of the literary production of Spanish law circulating in contemporary South America was published in Latin. Thus the citation of works of Spanish law written in Latin surpasses the number of works written in the vernacular.

58. The questions and matters discussed were a relevant factor for the selection of foreign authors, so long as the political divisions and confessional cleavages established by the Counter Reformation were not transgressed. There are of course traces of the reception of Protestant authors in the judicial culture of the seventeenth century Vice-Reign of Peru in private libraries as well as in the legal works published there. [78] However, if compared to the number of authors from the reigns, princedoms and republics of Catholic Europe, their influence is quite modest. In this regard, one may explain the large influence enjoyed by the literature of canonical law created in Italy. [79]

59. From the standpoint of literary genres of law one notices the dominant reception of academic works, treatises, consilia and compendiums of forensic practice resulting from the organization of regional and national legal orders. Although variable in their intensity one may always notice the presence of collections of law reports of upper courts created in the political formations of southern Europe in the transition from the Middle Ages to modern times. The fact that these courts were located in regions under direct Spanish rule, like the Kingdom of Naples and the Dukedom of Milan, or under indirect Spanish influence, as in the city of Rome or in the republic of Genoa, certainly contributed to the larger reception of their works in the seventeenth century Vice-Reign of Peru. [80]

60. On the other hand, the spatial contiguity of territories of the Spanish Empire with the Dukedom of Savoy and with southern France probably favored the circulation and diffusion of collections of law reports from the Senate of Savoy and the parliaments of Bordeaux and Dauphiné. The fact that the cities of Lyon, Venice and Rome were large editorial centers in the 16th and 17th centuries also configures a decisive factor in the spread of French and Italian works in parts of South America under Habsburg domination.

61. The use of medieval Italian literature at the beginning of the 16th century for the discussion of specific judicial questions played a less influential role than the literary creation of the generation of jurists working after 1550. Therefore, as the 17th century moves on, there are traces of a decline in the use of medieval Italian and French law science. One notices that medieval authors are generally cited to support principles of interpretation and rules for the application of norms in conflict. Besides, there are hints of a greater trend towards the use of medieval literature by jurists with a theological training or with a more practical view of law. Future research in other works may or may not validate this hypothesis.

62. The legal argumentation of the jurists of the Vice-Reign of Peru in the 17th century is inscribed in the scholastic rhetorical tradition in which legal questions are dealt within in a welter of a contradictory discussion of favorable and unfavorable opinions invariably supported by authorities. Citations of opinions by foreign jurists are often obtained indirectly, which explains their truncated and fragmentary character. The structure of some works is based on books of personal commonplaces. As they collect and organize quotations in books of common places jurists built for themselves a repository of topics of diverse origin, made available in order to be arranged, combined and re-created in several textual combinations. [81] The opinion of legal scholars is frequently used to fill gaps and silences in Spanish law and in that of the Indies. On the other hand one can also note the tendency to cite foreign authors as a kind of ornamentation for one’s discourse. In the end, we see also an argumentative trend that refuses entirely the ius commune authorities as fundamentals for the legal matters of the Indies.

Herman Nébias Barreto, Faculdade de Ciências Jurídicas de Diamantina - Universidade do Estado de Minas Gerais, Brazil.