Laws of Burgos

Mexica woman, Codex Tudela.

The Laws of Burgos or Royal Ordinances Given for the Good Government and Treatment of the Indians (Reales ordenanzas dadas para el buen Regimiento y Tratamiento de los indios) were the first laws that the Hispanic Monarchy issued for application in the Indies, the New World or America. In them it abolished Indigenous slavery and organized its conquest. They were signed by the Catholic King Ferdinand II on December 27, 1512, in the city of Burgos, for the government of the naturales (natives), indios (Indians) or Indigenous peoples. They resulted from the first junta of theologians and jurists, at which it was discussed and concluded (continuing the medieval tradition that prioritized the evangelization of the Indian and held that this higher good justified other possible evils) that the King of Castile held just titles of dominion over the American continent, and that the Indian had the legal nature of a free man with all rights of property, who could not be exploited but, as a subject, had to work for the benefit of the Crown (through the Spaniards settled there). To this end two institutions of the Indies were created: the requerimiento and the encomienda. Authors and historians consider them, and have considered them, forerunners of the declaration of Human Rights and of international law.

The Junta of Burgos

The Laws of Burgos set down in ordinances the conclusions adopted by a meeting of theologians and jurists, known as the Junta of Burgos, which had been convened by King Ferdinand the Catholic in response to the famous sermon delivered by the Dominican friar Antonio de Montesinos, who in 1511 denounced the social conditions and the abuses to which the Indigenous peoples of the New World were subjected by numerous encomenderos of La Española. These laws established a series of principles that became the foundation of Indian law (derecho indiano):

• The Indians are free men and the legitimate owners of their houses and their estates.
• The Catholic Monarchs are lords of the Indians by virtue of their evangelizing commitment.
• The Indians could be compelled to work provided that the work was tolerable and the wage just, although payment in kind was permitted instead of payment in money.
• Ordinance XVIII prohibits work in mines and fields from the fourth month of pregnancy onward and, in consideration of the subsequent upbringing, extends that period until the child has reached three years of age. The pregnant and later nursing woman would be occupied only in household tasks.
• It likewise exempts minors under fourteen years of age, of both sexes, from labor, occupying them only in tasks appropriate to their age.
• Married Indian women could work in the mine only of their own will or by order of their husbands, although they were usually occupied with the domestic chores of the estates where they lived.
• Several of its precepts are devoted to the Indian caciques and their descendants, since their social position was respected; accordingly, Ordinance XXII authorizes them to have a certain number of Indian servants in proportion to the tribe they ruled, and for this reason the cacique was to remain in the community where the greatest number lived.
• War of conquest is justified if the Indians refused to be Christianized or evangelized, for which purpose the institution of the Requerimiento was created.

The Catholic King commissioned the two most prominent members of the junta to set out their position, each in a treatise:

• Juan López de Palacios Rubios, adviser to the court on matters of the Indies, in his Libellus de insulis occeanis quas Indias vulgus apellat, was the most solid defender of the theocratic argument that justified the papal grant through the Alexandrine Bulls.
• Matías de Paz, chair of theology at the University of Salamanca, in his work De dominio regum Hispaniae super indos, though no less theocratic, insisted on the need to inform the Indians of the rights of the King of Castile by means of a requerimiento before their submission, whether peaceful or through war.

The Junta of 1512 was thus characterized by two opposing juridical-theological approaches:

• One established the supremacy of supernatural or spiritual law to the point of invalidating natural law: pagans could therefore be subdued by force, since original sin caused man to lose his rights.

• The other, Thomist, held that the supernatural was independent of the natural: man could not be deprived of his natural attributes, of political law, of property and of cultural self-determination, which always accompany him, since original sin did not invalidate the rights of man.

Various solutions were considered; even supporters of this second approach argued that there were grounds for a just war against the Indians in order to impose Spanish rule (devising the requerimiento for this purpose), maintaining, in short, that waging war on the Indians was just because it was a matter of improving their condition, at least their spiritual one.

This initial controversy was resolved by a compromise set down in the Laws of Burgos, which legalized the forced labor of the Indians, while limiting it and making it more humane.

Summary

In total, 35 laws were promulgated by the Burgos document of 1512, which are summarized below:

1: The Indians will be moved to "encomiendas". For every fifty Indians, four huts will be built (thirty by fifteen feet). This land cannot be taken from them, since they were taken from their original land. The Indians will be in charge of sowing all the food. During the appropriate seasons, the encomenderos (men who watch over the Indians) will have the Indians plant maize and raise hens.

2: The Indians will voluntarily leave their land to come to the "encomiendas" so that they do not suffer being evicted by force.

3: The citizen to whom the Indians are given must erect a structure to be used as a church. In the church there must be a picture of Our Lady and a bell with which to call the Indians at the time of prayer. The person who holds them in the 'encomienda' must go with them to the church every night and make sure that they cross themselves and sing several hymns. If an Indian does not come to church, he is not allowed to rest the following day.

4: To make sure that the Indians are learning Christianity correctly, they will be examined every two weeks and the encomendero will teach them what they do not know. He will teach them the Ten Commandments, the Seven deadly sins and the Creed. Any "encomendero" who does not do this correctly will be fined six pesos of gold.

5: A church will be built equidistant from all the estates. On Sundays Mass will be celebrated and a banquet will be eaten. If the encomendero does not bring his Indians, he will be charged ten pesos of gold.

6: If the church is too far away, another will be built.

7: The priests who collect tithes from the estates must continually keep priests in the churches of the estates.

8: Churches will be built at the mines so that the natives who work in the mines can hear Mass on Sundays.

9: Whoever has fifty Indians must choose a boy whom the encomendero believes capable, so that he may be taught to read and write, as well as the importance of Catholicism. This boy will then teach the other Indians, because the Indians would more readily accept what the boy says than what the Spaniards say. If the encomendero has one hundred Indians, two boys will be chosen. The faith must be rooted in their heads so that the souls of the Indians may be saved.

10: If an Indian falls ill near where there is a priest, the priest must go to him and recite the Creed and other useful things of the Catholic faith. The Indian will make his confession without being charged a fee. If the Indian is going to die, he will be buried with a cross near the church. If he is not buried, the encomendero owes a fine of four pesos of gold.

11: The Indians must not be used as carriers to transport things to the Indians in the mines.

12: All Spanish inhabitants who have Indians in an "encomienda" must baptize babies within one week of their birth.

13: After the Indians have been brought to the estates, gold will be sought as follows: the Indians in an encomienda must search for gold for five months a year, and at the end of the five months they are allowed to rest for forty days. During the forty days the Indians must not be employed, unless they are slaves and agree to plant the crops. During the forty days the Indians will receive further instruction in the faith, since they have more time to learn.

14: The Indians must be allowed to perform their sacred dances.

15: All citizens who have Indians are obliged to feed them with bread, yams and peppers, and on Sundays they must give them dishes of cooked meat. For each infraction a fine of two pesos of gold will be paid.

16: In accordance with Catholicism, the Indians are not allowed to have more than one wife at a time and are not allowed to abandon their wives.

17: The sons of the caciques of the islands under thirteen years of age will be handed over to the friars so that they may be taught to read, write and other things about Catholicism. When the sons reach the age of nineteen, they must return to the encomienda and teach the others.

18: Pregnant women must not be sent to the mines or made to plant crops. They will be kept on the estate and made to perform household tasks such as cooking and weeding. Once the child is born, she may nurse it until it is three years old. After this time she may return to the mines and other tasks.

19: The Indians must not sleep on the ground. Each encomendero must provide hammocks for his Indians.

20: The Indians will be given one peso of gold each year to pay for clothing.

21: The Indians cannot change masters. An "encomendero" cannot employ or shelter an Indian belonging to another "encomendero".

22: Indian chiefs are allowed to have two Indians perform personal duties for every forty of their subjects. In addition, visitors to the estates must treat the Indians well and teach them what they know of Catholicism.

23: The official inspectors must keep records of the activities and also of the treatment of the natives in the "encomiendas". They must keep track of the population and the amount of gold extracted.

24: The Indians must not be physically or verbally abused for any reason.

25: The Indians must not be used in private trade or for any other economic interest.

26: "Encomenderos" who have their Indians working in distant mines will combine efforts with other estates to help provide food for the Indians.

27: Indians from other lands must also be taught the things of the Catholic faith. They must be treated kindly, unless they are slaves.

28: If an encomendero dies, his successor takes control of the Indians.

29: Two inspectors must be appointed for each estate.

30: The inspectors will be chosen by the Admiral, the judges and the officials. These persons should be compensated with Indians in encomienda.

31: The villages must be inspected twice a year, once at the beginning of the year and once in summer.

32: If there is a runaway Indian, the inspectors cannot apprehend him. He must be handed over to a man of good conscience who will find the Indians' encomendero.

33: All inspectors must have a copy of the Laws of Burgos, signed by the Governor.

34: The inspectors must be provided with residences.

35: A person cannot have more than one hundred fifty Indians nor fewer than forty Indians in encomienda at one time.

Amendments were added to the Laws of Burgos on July 28, 1513:

1: Indian women married to Indian men must not be forced to serve with their husbands in the mines or anywhere else unless it is of their own will or their husbands wish to take them.

2: Indian children do not have to do the work of adults until they reach the age of fourteen. They are then made to perform children's tasks, such as weeding or working on their parents' estates.

3: Unmarried Indian women who are under the authority of their parents have to work with them on their lands. Those who are not under the authority of their parents must be kept apart so that they do not become vagrants.

4: After two years of service, the Indians may leave. By then they will be civilized and proper Christians, capable of governing themselves.

Analysis

These laws have been regarded as one of the most important legal enactments in the History of law and of humanity, not only for their contributions to the development of Indian law with "authentic humanism", but also as a precedent for Human rights (since they sought to secure access to fundamental rights such as rest, remuneration, food, clothing, education, etc.), a contribution to International law, and for being "the first document in which a colonizing power regulates the labor of its subjects", thus becoming the first glimpse in Hispanic America of a legislative body of Labor Law (in addition to influencing the law of the Hispanic American countries) and setting itself apart from other Colonial empires. It stands out in the following ways:

"there is no other social legislation in the world similar to that which was issued in defense of the Indian as a worker, which begins with the Laws of Burgos and extends above all throughout the 16th century"

— Vicente D. Sierra

• It was the 1st normative legislative body of a legislative character, promulgated in the form of a compendium of laws, for the purpose of regulating life in the Indies (America and, by extension, Asia). It allowed numerous royal decrees (reales cédulas), provisions and instructions, which the Catholic Monarchs had issued in the past to deal with specific cases (addressed to particular authorities of a specific place), to have a broader scope and a universal character, with the aim of protecting the natural rights of the Indians (including their labor rights and guarantees of good food and education) and regulating the encomienda system against cases of corruption.
• It regulated relations between Spaniards and Indians in all spheres, from labor to emotional relationships, preventing harm to the Republic of Indians from the greed of some conquistadors and establishing rules on the conduct of Spaniards toward the natives. It made a paternalistic treatment by the Nobles toward their Vassals (recognized as free) binding, under the legality of the Colonial pact, so that their privileges could be recognized as just and legitimate. As a result, it was not only a matter of regulating relations with the Indians, but in general the legal situation of all the inhabitants of the Indies (including the Spanish settlers). Accordingly, legislation was enacted on matters related to the succession or sale of encomiendas, the salary of members of the clergy, cooperation among encomenderos, and other questions concerning the feudal Lords who were the Encomenderos.
• When the Spaniards found that the Indians did not wear clothing, slept on the ground, did not know the wheel, had no interest in working, did not know how to handle weapons, among other beliefs considered Barbarous, the Crown sought to have the Indians assimilate Christian customs and European knowledge in order to achieve a cultural exchange that would be beneficial to their intellectual and material progress and to their integration into the economic, religious and social life of the Kingdom of the Indies, as well as their conversion to Catholicism to ensure the salvation of their soul (they were to be baptized 8 days after birth and given a dignified burial when they died). For this purpose of assimilation, the sedentarization of the Indians was promoted by moving them to the encomiendas (an obligation of the entrusted Indian) and establishing housing rules (an obligation of the encomendero) so that they would adapt to the rules of medieval urbanity. Thus, the encomendero had to build 4 Bohíos for every 50 Indians, as well as provide beds, or at least hammocks, for each Indian (who would be forbidden to sleep on the ground), these being supplied by the Casa de la Contratación de las Indias. As for the relocation of the Indians, it was required that it be carried out in accordance with the will of the Indians (though with a duty to encourage them) and without hardship or harm to them, with "great care and fidelity and diligence", and with attention paid to their good care and preservation.
• At the same time, customs considered uncivilized such as Polygamy were prohibited; Monogamy was to be instilled in them as something natural, and it was established that the Indians had full freedom to choose whom they wished to marry, in accordance with the law and Catholic tradition. They were also to be given one peso of gold a year to buy clothing.
• Since guarantees of "good treatment" for the Indians were essential for Ferdinand the Catholic, it was ordered that the encomenderos had to provide the Indians' diet, with 2 different modalities depending on the amount of effort expended by the Indian: thus, the Indians who worked in the mines (and similar heavy labor) were to eat one pound of meat or fish, while the rest were to receive a ration of "bread, ajes and axí", and on Sundays and feast days they were to be fed stewed meat.
• Likewise, the encomenderos had to guarantee the economic subsistence of the Indian by guaranteeing very basic property rights, such as distributing farmland to them to harvest, as well as livestock to raise (preferably poultry) as Means of production that would enable their self-sufficiency. Granting them property was also regarded as compensation for the lands the Indians would have left behind in moving to the encomienda. It was also specified that those goods legally belonged to the Indians, so that they could not be alienated by the Spaniards in any way, or it would be considered a crime of theft.
• As for the labor regime for Indian women, the following provisions were made: unmarried women living with their parents were to help them with family work on their land. Emancipated unmarried women were ordered to live together so that they could work their lands, but if they had none, they could voluntarily work those of others and agree on a Wage recognized by law as an obligation of their employers. The aim was to protect them because of their vulnerability from lacking a husband, preventing them from falling into immorality or becoming Vagrants. Married women could not be forced to work inside the mines, and could perform only the work that they and their husbands deemed appropriate (the woman could even not work, if they so agreed), but the encomendero could encourage them to work, always for a wage. In turn, pregnant women were granted the right to rest from the 4th month of pregnancy, which was to last until the baby was 3 years old, giving them a right that allowed them enough time to raise their children and not to endanger their pregnancy, being able to do only minor tasks during this period (such as cooking and other domestic work).
• With respect to the Indians who worked in the mines, it was provided that their working period would be five months, since after that time they were to receive a mandatory rest period lasting 40 days. All the Indians would in fact enjoy this rest period at the same time (however, for the Indians with less arduous work on the encomiendas, it would be an annual rest and not a five-monthly one). The Spaniards had an obligation to respect this vacation, during which no work was to be done, inasmuch as the King established that "they may not be ordered, nor shall they be ordered, during the said 40 days to do anything". In addition, a "time for leisure" was provided, which was a recognition of a right to daily rest at home.
• As for Child labor, it was ordered that minors under 14 could not work, although it was tolerable for them to do tasks suited to their age to help their parents. It was determined that, as long as they did not marry, they would be under the guardianship of their parents until the age of 14. In turn, orphans were given reinforced protection until they were handed over to persons of "good conscience", and it was decreed that the work they were to perform would be assessed by the judges of residence, who would have a duty to ensure that they were well fed, received proper instruction in the Catholic faith and earned a day's wage for their work; the aim was that they not fall into situations of abuse for lack of the protection of parents.
• It was ordered that the Indians were free to choose the trade they wished, and those who were already apprentices in a trade within a Guild were granted an exemption from performing other work.
• A limit was set on the number of Indians who could be allotted to the encomenderos, with a minimum of 40 and a maximum of 150. In addition, the Caciques (Indigenous nobility) could also have commoner Indians in their service, in a number proportional to the members of their tribe.
• These caciques were also to have better food and better clothing than the rest of the common Indians (financed with one peso of gold from the wages of each Indian), and they were prohibited from going to heavy labor. Their children under 14 also had to learn to read and write compulsorily, and if a cacique had more than one son, the one not living with the friars was to be handed over to an encomienda with the duties of "catechist's assistant".
• Any form of physical or verbal mistreatment of the Indian was prohibited; the King determined that the encomenderos could not "strike with stick nor whip, nor call any Indian dog nor any other name". The aim was thus to protect not only their physical integrity but also their Human dignity, and to oblige the Spaniard to address the Indian by his name and not by derogatory nicknames. This was inspired by the will of Isabella the Catholic, who had established that the Indians were also subjects of the Hispanic Monarchy, being under its legal protection like any Castilian. Moreover, it was forbidden to use the Indians as if they were Pack animals for transporting the Spaniards and their belongings.
• Respect for the culture and tradition of the Indians was also ordered, such as the practice of areítos (ceremonies to commemorate important events of a tribe through songs and dances) among the natives of the Antilles, allowing them to perform such Folkloric expressions on working days and feast days, and ordering the Spaniards to respect their local festivals and customs.
• In addition, at least one church was to be built for each encomienda, to which the Indians were to go twice a week (by day and by night) to learn to read and write, so that they could be instructed in Catholic doctrine. The King ordered that "the ablest boy" be educated (the encomendero had a mandate to have 1 or 2 Indians taught for 4 years by the religious), so that later, after returning to his family, he would be the one to educate the other Indians so they would become literate. If the encomendero was not fulfilling his duties as a catechist, the visitor (visitador) was to do so. The construction of churches at the mines was also ordered so that they could attend Mass while they were working.
• Forced marriages between Indians and Spaniards were prohibited, but at the same time Mestizo unions were encouraged. This was seen as beneficial, since the Spaniards would learn about the geography and culture of the discovered lands, and the Indians would find integration into the European way of life easier. Thus, it was established that no court could impose any prohibition on a marital union between Indians and Spaniards.
• After 2 years of work, the Indian would be considered fit to live outside the encomienda if he had managed to adapt to the most basic Christian customs, this being verified by the assessment of a Spanish judge and by demonstrating that he had "the human and political capacity to live and govern himself freely", so that the institutions "would consider them capable of living and working on their own again". In the eyes of the Spanish monarchs, the encomienda would have not only an economic purpose, but above all an educational and evangelizing one.
• The office of Visitor (visitador) was established to inspect the safety and protection of the life of the Indian. At least two were to be chosen by the governors, together with the judges and officials, and they had to travel twice a year to record the real situation of the mines and encomiendas in order to ensure compliance with this legislation. A visitor was forbidden to visit the same place again, as he had to go and inspect the places where another visitor had been, with both visitors checking on each other to verify the situation described by the other. In this way the mechanisms of corruption and bribery by the encomenderos were prevented.

The Laws of Burgos and their application

The implementation of the Laws of Burgos began on the island of La Española, later extending to the islands of Puerto Rico and Jamaica. Subsequently they would be applied on the mainland (present-day Venezuela) on the initiative of Friar Pedro de Córdoba.

Although the ordinances authorized and legalized the practice of repartimientos of Indians in encomienda to the Spanish colonizers, at a rate of a minimum of 40 and a maximum of 150 individuals, they strove to establish a meticulous regulation of the regime of labor, daily wages, food, housing and hygiene, and included certain protections for the natives. For example, the laws strictly forbade the encomenderos from applying any punishment to the Indians, which was reserved to the visitadors established in each town and charged with the meticulous enforcement of the laws, and pregnant women of more than four months were exempted from work. At the end of the 20th century, the interpretation arose in Spanish historiography that this body of protective laws which the Crown of Spain issued for the natives was an important advance and also a precedent for the labor law that became consolidated at a global level in the 20th century, but other authors consider that this interpretation does not correspond to the reality of the Laws and their implementation. In fact, the regulations suffered a high degree of non-compliance by the Spaniards when applied in America, with a multitude of abuses recorded, which gave rise, from the very moment of their implementation, to numerous complaints and protests.

The ordinances, imbued with the Catholicism prevailing at the Spanish court, promoted the evangelization of the Indians and ordered their catechesis, condemned bigamy and obliged them to build their bohíos or huts next to the houses of the Spaniards. The Indians were to work 9 months a year for the Spaniards and the remaining 3 on their own lands; war against the Indians was also justified if they refused to be Christianized, and for this same purpose an institution called The Requerimiento was created. The conquest was justified if the Indians refused to be evangelized. They respected, to a certain extent, the authority of the caciques, whom they exempted from ordinary labor and to whom they gave several Indians as servants.

Despite the ordinances, the Indigenous population of the Antilles continued to decline, mainly because of diseases; however, some priests, such as Bartolomé de Las Casas, believed that this was due to the working conditions to which the Indians were subjected, a theory they used to gain support for their protective theses. The situation further heightened the controversy of the time, maintained especially by the members of the School of Salamanca, particularly Friar Francisco de Vitoria, in his work De indis, who in 1532 set out the Just Titles of the conquest, which were later specified at the Junta of Valladolid.

Consequences

The Laws of Burgos were the first ordinances of the Castilian Crown to regulate the legal status of the Indians, a debate that was continued by a following generation which delved deeper into the same question and which became known as the controversy of the natives or just titles, and which a junta in Salamanca with Francisco de Vitoria materialized through the issuing of the New Laws in 1542.

See also

• Sublimis Deus
• Indian law
• Laws of the Indies
• New Laws
• Compilation of the Laws of the Kingdoms of the Indies

External links

• Full text of the Laws of Burgos (in Spanish)
• Digitized original text (in Spanish)
• Juan Cruz Monje, Las leyes de Burgos de 1512, precedente del derecho internacional y del reconocimiento de los derechos humanos (in Spanish)
• Leyes de Burgos de 1512 y Leyes de Valladolid de 1513: reproducción facsimilar de los manuscritos que se conservan en el Archivo General de Indias (Sevilla) en las Secciones de Indiferente General leg. 419, lib. IV y Patronato, legajo 174 ramo 1, respectivamente (in Spanish)