Indian Law: A Comprehensive Guide to its History and Sources

Posted on Oct 22, 2024 in Law & Jurisprudence

Indian Law: A Comprehensive Guide

Introduction

Indian law refers to the set of legal rules applicable in India, or in the territories of the Americas, Asia, and CEANI dominated by Spain. (A. Dougnac)

Scope

  1. Municipal Law: Rules created specifically for the Indies (Creole law).
  2. Castilian Law: Applied in the absence of specific legislation.
  3. Indigenous Law: Applicable provided it did not undermine natural law, the Crown’s rights, or the Catholic religion.

The Recopilación de Leyes de Indias (RLI) contains over 7,000 laws due to its casuistic style, the need for order in a new world, and the abundance of native and canon law. Many repealed rules lacked formal repeal.

Characteristics of Indian Law

  • Evangelical and protective of indigenous peoples.
  • Equality before the law with privileges for indigenous people.
  • Casuistic, providing practical solutions to specific situations.
  • Predominance of public law over private law (Castilian law subsidiary in private matters).
  • Consideration of personal factors like race and social status.
  • Apparent lack of systematization, but with underlying elements of defending the faith and mimicking Castilian law.
  • Linked to natural law and Christian morality.

Authorities in the Indies

Spain

  • The King
  • The Royal and Supreme Council of the Indies
  • Casa de Contratación

Indies

  • Viceroy
  • Governors and Mayors
  • Aldermen
  • Royal Hearings
  • City Council
General Aspects

No separation of powers; functions divided into government, finance, justice, and war, exercised by the same authorities to varying degrees.

1. The King
  • Dominion over Indian public and sovereignty.
  • Head of the Indies government.
2. The Royal and Supreme Council of the Indies
  • Main advisory body to the King.
  • Universal jurisdiction over temporal and spiritual matters in all Indian kingdoms.
  • Functions:
    • Government: Priority reading of letters from viceroys and audiences, decrees, consultation, determination of political and administrative divisions, hierarchy of offices, proposing candidates for positions, legislation for the Indies.
    • Spiritual: Proposing ecclesiastical charges to the Pope, exequatur or regional pass for papal bulls.
    • Approval of Jus Indianos.
    • Conciliar canons: Limited to matters of greater importance.
    • Superior Court for the Indies.
3. The House of Trade
  • Managed financial, economic, and trade affairs of the Indies.
  • Created in Seville.
  • Controlled the fleet of galleons.
  • Inspection.
1. Viceroy
  • Highest government authority, setting general policy for the entire viceroyalty.
  • Direct government of the province where they resided.
  • Ensured good treatment of Indians, granted land parcels (Mercedes), and improved infrastructure for trade.
  • Presided over the Royal Audiencia.
  • Administered justice to Indians in the first instance.
  • Managed the Royal Treasury.
2. Governor
  • Exercised government, military, finance, and justice functions, sometimes overlapping.
  • Promoted knowledge of the territory, rewarded service to the Crown, and sent reports to higher authorities.
  • Maintained public morality.
  • Relationship with the viceroy varied depending on the territory’s hierarchy.
3. The Royal Court
  • Gained importance as the Crown sought to limit the power of viceroys and governors.
  • First installed in Chile in 1567 in Concepción, its members were judges.
  • Main function was judicial, serving as an appellate court.
  • Heard “Court Cases” in the first instance.

Sources of Law

Definition of Law

A written mandate, binding according to natural law, ordering the earthly and spiritual life of man.

A. Metropolitan Legislation

Mostly commands to authorities (e.g., Royal Audiencia, viceroy, governor).

Background
  • Regulations: General rules on a specific subject (e.g., Royal Ordinances of 1563).
  • Instructions: Guidelines for a particular authority on performing their duties.
Form
  • Royal Letters: Responses from the king to questions or rebukes.
  • Royal Provisions: Solemn documents from the king and Indian Council, used for special occasions (e.g., the Recopilación de Leyes de Indias).
  • Royal Cards: Routine communications from the king and Indian Council to control various matters.
  • Council of the Indies Agreed Cards: Regulatory issues requiring royal confirmation.
  • House of Trade Agreed Cards: Similar to the Council of the Indies, but within their competence.
  • Ordinances: Demonstrated Bourbon absolutism, often lacking the “prefacción.”

Compilations of Indian Laws

The need arose to collect laws due to their large quantity. Early laws were compiled in a Cedulario, which were not always complete or organized. The Indian Council also had its own Cedulario.

A Recopilación is a more elaborate method than a Cedulario. It consolidates various rules on an issue, eliminates contradictions, and creates new rules deemed useful for better regulation.

Steps
  • Preparation: Gathering legal material.
  • Draft: Material organized according to a plan.
  • Project: Completed by the author.
  • Approval: By the monarch.

In 1634, jurist Leon Pinelo was commissioned to produce the Digest of Laws of the Indies. It was delivered in 1636 but lacked funding for publication. Later, Fernando Castejon Gil and Jiménez Paniagua presented a compilation based on Pinelo’s work, published in 1680. It received commentary and was widely copied in America. A new edition was needed due to additions made by lawyers and judges. A new Code of Laws of the Indies was ordered but remained a project.

B. Creole Legislation

  • Royal provisions of viceroys, similar to those issued by the Council of the Indies.
  • Decrees of viceroys and governors: Publication of decisions or ordinances.
  • Ordinances of viceroys and governors: Wide regulation of a subject.

Custom

  • Indigenous Custom: The Recopilación de Leyes de Indias states: “We ordain and command that the laws and good customs that the Indians once had for good government and policing… And they are not against our Holy Religion and the laws of this book.”

Jurisprudence

Indian courts had a wider range of special action, particularly in criminal law, reducing penalties. Judgments were not motivated or justified.