Justice in a New World

Negotiating Legal Intelligibility in British, Iberian, and Indigenous America

Brian P. Owensby, Richard J. Ross, Brian P. Owensby, Richard J. Ross

• Publisher: NYU Press
• Year: 2018
• Print ISBN: 9781479807246
• eBook ISBN: 9781479858910
• Topic: History
• Subtopic: Early American History
• Index: History

A historical and legal examination of the conflict and interplay between settler and indigenous laws in the New World

As British and Iberian empires expanded across the New World, differing notions of justice and legality played out against one another as settlers and indigenous people sought to negotiate their relationship. In order for settlers and natives to learn from, maneuver, resist, or accommodate each other, they had to grasp something of each other's legal ideas and conceptions of justice.

This ambitious volume advances our understanding of how natives and settlers in both the British and Iberian New World empires struggled to use the other's ideas of law and justice as a political, strategic, and moral resource. In so doing, indigenous people and settlers alike changed their own practices of law and dialogue about justice. Europeans and natives appealed to imperfect understandings of their interlocutors' notions of justice and advanced their own conceptions during workaday negotiations, disputes, and assertions of right. Settlers' and indigenous peoples' legal presuppositions shaped and sometimes misdirected their attempts to employ each other's law.

Natives and settlers construed and misconstrued each other's legal commitments while learning about them, never quite sure whether they were on solid ground. Chapters explore the problem of "legal intelligibility": How and to what extent did settler law and its associated notions of justice became intelligible—tactically, technically and morally—to natives, and vice versa? To address this question, the volume offers a critical comparison between English and Iberian New World empires. Chapters probe such topics as treaty negotiations, land sales, and the corporate privileges of indigenous peoples. Ultimately, Justice in a New World offers both a deeper understanding of the transformation of notions of justice and law among settlers and indigenous people, and a dual comparative study of what it means for laws and moral codes to be legally intelligible.

1

Making Law Intelligible in Comparative Context

BRIAN P. OWENSBY AND RICHARD J. ROSS

“Legal” historians start from the premise that the messiness of the world can in some meaningful way be tamed by legal precepts and procedures. We do so knowing that law, like any other facet of social life, is ultimately embedded within larger structures of human experience and meaning. To isolate law as an object of inquiry, then, simplifies so that we may discern subtleties of “legality” that might be lost to a coarser analytical resolution. In any given social context, the messiness of the world, and law’s capacity to bring some order to it, is difficult enough to tease out. Legal actors—claimants, defendants, prosecutors, advocates, judges, witnesses, treatise writers, legislators—come to legal encounters with varying motives and disparate levels of knowledge and expertise. Unraveling the tangle of intent, ability, language, and meaning must always be something of a quixotic pursuit. The challenge of making sense of law is magnified dramatically when questions of messiness and order are confronted in intercultural settings, i.e., when distinct cultures, each bearing its own legal precepts, meanings, and procedures, interact. This has been the lesson of recent studies examining how Europeans and indigenous people faced each other through law in the context of the New World encounter from the sixteenth to the eighteenth centuries. Such work has begun to stretch the boundaries of legal history by questioning law’s capacity to “tame” the unordered circumstances of cultural difference.

To date, the scholarship has tended to limit itself to specific imperial legal understandings—English and Iberian—as each came into contact with distinct indigenous conceptions of law and justice. In this vein, historians begin by assuming a culturally and historically bound legal framework—the common law and treaties between sovereigns for Anglo-America and a neo-Thomist casuistry for Latin America—and conduct their research and analysis largely within the confines of that set of assumptions.1 For all their insights, such works are missing a deeper interrogation of underlying premises regarding what law is and how it works in any given encounter. Thus, to what extent and how does it matter that indigenous people and settlers in Ibero-America were considered part of a single social order, while in British America they were virtually always considered distinct nations? What difference does it make that in British America sovereignty and treaty law structured legal encounters between settlers and Natives, while in Ibero-America a specific Law of the Indies took shape to mediate this relationship? Did one approach promote a greater or lesser degree of mutual comprehension between Natives and settlers than did the other? Or does asking the question this way foreclose lines of inquiry? The only way to get at this set of concerns is to open our analytical gaze to a wider, comparative landscape. Doing so leads us away from the secure footing of grounding-assumptions regarding legality onto the slippery topography of context and antiformalism as baselines for analysis, a move made more difficult when intercultural legal encounters are themselves the subject of comparison. Justice in a New World: Negotiating Legal Intelligibility in British, Iberian, and Indigenous America takes this next step.

As the essays in this volume demonstrate, colonialism in the English and Iberian Atlantic brought settlers, soldiers, imperial officials, and indigenous peoples into contact with different conceptions of law and justice. At a grand level, perhaps especially in Spanish America, those seeking to legitimate or restrain conquest, dispossession, and forced labor in the Americas made claims about justice. On the ground in daily life—and here will be our focus—various groups of Europeans and Natives appealed to imperfect understandings of their interlocutors’ notions of justice and advanced their own conceptions during workaday negotiations, disputes, and assertions of right. This was no easy matter. Settlers’ and indigenous peoples’ legal presuppositions shaped and sometimes misdirected their resort to each other’s law. Each misconstrued the other’s legal commitments while learning about them; and each strained to use the other’s law as a political, strategic, and moral resource. In so doing, each changed its own practice of law and dialogue about justice. At the heart of this process is the problem of “legal intelligibility”: How and to what extent did settler law and its associated notions of justice become intelligible—tactically, technically, and morally—to Natives, and vice versa? To address this question, the volume extends the existing scholarship, which juxtaposes settlers’ and Natives’ understanding in empire-specific circumstances, by adding another axis of comparison, that between English and Iberian New World empires. Understanding the conflict and transformation of notions of justice and law through a dual comparative study of legal intelligibility is the objective of this volume.

I. Contrasting British and Iberian Legal Spaces

One of the most profound insights to haunt historical thinking about the “New World” over the last seventy years is Mexican historian Edmundo O’Gorman’s contention that “America,” rather than being “discovered,” had to be “invented.”2 For historians, the distinction between the two terms is crucial. “Discovery,” argues O’Gorman, implies the unveiling of a thing—always already present and fully realized as such but previously unseen. “Invention” implies the creation of something new that reconfigures reality. The intellectual operation attending discovery is to catalogue that which is revealed and refine the preexisting picture of the world to accommodate it. Invention, by contrast, first ruptures and then remakes established understandings of how the world looks and works. For O’Gorman, invention produces historical entities rather than merely discovers them. More concretely, O’Gorman’s point is that “America” should not be understood as a “merely physical discovery,” just one more accretion to the map of the world. Rather, “America” was “an invention of Western thought,” a fundamental rethinking of the world as a whole and how people were to live in it.3

The novelty of “America”—its ontological originality—is the historiographical (and phenomenological) starting point for this volume. For just as “America” had to be invented, so law and justice had to be reinvented in relation to the radical newness of the encounter between indigenous people and Europeans. What is often forgotten, or at least obscured, in discussing law and justice in the New World is how enormous a challenge indigenous people and settlers represented for each other when they met in the legal crucible—and how disorienting it can be for scholars to think about law through the prism of difference.

The comparative approach advocated in this volume is premised on the idea that we must pay close attention to difference in two registers. One focuses on the relationship between indigenous peoples and the settlers who intruded upon them. We know from the existing scholarship that legal encounters across this intercultural divide were fraught affairs. As discussed in section 2 of this chapter, we seek to capture the nuances and import of these interactions through the idea of intelligibility. The other register of difference—the subject of this section—demands attention to the distinct European legal regimes in the New World, Iberian and British, and the way they adapted to novel circumstances. While these regimes diverged in a variety of ways, we contend that two contrasts stand in sharp relief for their relevance to the essays in this volume. The first of these has to do with how indigenous people figured in colonial social orders. In Ibero-America, indigenous people were incorporated relatively early on into colonial society as vassals of the king. As a result, they acquired legal personality commensurate to their status. In Anglo-America, indigenous people remained on the outside of colonial society, to be treated with at arm’s length as circumstances demanded. The second, related contrast involved the discourse of law. Whereas in Iberian realms, strong notions of substantive justice, backed by a duty of royal protection, remained the backbone of legal relations between settlers and indigenous people, in British realms sovereignty played the central role in structuring their legal encounters. In what follows, we unpack these two points.

As O’Gorman and others have noted, indigenous people had no obvious place in the European cosmological imagination of the early sixteenth century. Cartographically, theologically, and politically, their place had to be invented. Thus, during much of the sixteenth century, it was not even clear whether “Indios,” as they came to be called, would be treated as fully human—able to receive the faith, govern themselves in their daily lives, be free of enslavement, and live as vassals of the king. This issue became a matter of deep debate within the Spanish empire. Dominican friar Antonio de Montesinos called attention to the plight of the native Taínos of Hispaniola in 1511, and by 1517 Dominican Bartolomé de Las Casas had taken up the cause of indigenous people, accepting appointment as protector of the Indians. In 1539, Francisco de Vitoria concluded that the Spanish crown lacked a legal basis for outright conquest of the Indians. Natural law granted indigenous people true dominium over their lands and persons. As such, neither the pope nor the king could dispossess them without their consent, a consent they had not granted. This conclusion did not entirely close the door on Spanish activity in the New World. Natural law, insisted Vitoria, held that Spaniards had a right of unhindered travel and commerce among the Indians, a right that might be enforced by war, though it could not warrant dispossessing the Natives.

By 1550 the issue of the status of the New World’s indigenous people had become so sharp that Charles V suspended conquest activities until the matter could be hashed out in the Valladolid debate between Las Casas and court theologian Juan Ginés de Sepúlveda. Though the debate was officially unresolved, the decades following Valladolid gradually cemented the idea that the Indians were entitled to the rights and protections befitting vassals of the Spanish monarchy.4 As Jesuit José de Acosta stated in 1588, “[T]he multitude of Indians and Spaniards form one and the same political community.… They all have the same king, are subject to the same laws, are judged by a sole judiciary.”5 From that time forward, the chief challenge of Spanish law in the New World was to balance the acknowledged need to exploit the Indios against the legal and moral imperative to protect them as the vassals they were.6

In Spanish America, inclusion of the Indians within the New World’s social order led to the creation of a body of law—theological and philosophical statements, royal decrees and ordinances, indigenous customary law and practice, learned treatises and compendia—that historians have referred to as derecho indiano, or the Law of the Indies. Though the term is a historiographical artifact and almost surely connotes a greater degree of cohesion than was ever the case, this legal corpus and the jurisprudence that developed from it grounded ideas of justice and governed concrete legal relations in the Spanish New World from the sixteenth century to the early nineteenth century.7

The situation in Brazil was more equivocal from the point of view of Indians’ legal status. In the mid-sixteenth century, when in Mexico caciques and nobles were learning to litigate, the Indians of Brazil faced a condition of “absolute juridical inferiority, which made it impractical for them to have recourse to magistrates to secure their freedom.”8 In practice, they could be denied their liberty in order to save their lives from other Natives who might kill or eat them. At this point, the early 1550s, the Valladolid debates had only just concluded, and natural Indian liberty as a widely agreed upon principle was at least a couple of decades off in Spanish America. In a letter of 1558, Jesuit Manuel da Nóbrega noted that in Brazil it was widely held that the Indians did not have full rights before the law because, lacking a soul, they were not fully human.9 In 1562, Lisbon issued a ruling allowing indigenous people who violated a 1559 law against anthropophagy to be enslaved by just war. After that, as attitudes hardened against Natives, many Portuguese came to the view that perhaps the entire Native population needed to be partitioned along the lines of the Spanish encomienda (which awarded to the conquerors the labor of particular groups of Indians).10 But this did not lead to the creation of a system of equal vassalage and separation into a Republic of Indians and a Republic of Spaniards, as in Spanish America. Rather, it implied a “mixed” social model premised on a measure of social integration, but rooted in a fundamental inequality of legal condition.11 In alliance with the governor of Salvador, the Jesuits responded by pushing for the aldeamentos, a village system under their own administration. Though supported by the crown, even this arrangement could not fully insulate indigenous groups from colonists’ incessant demands for labor. In the mid-1560s, the Conscience Board in Salvador ruled that parents could sell their children into slavery when in extremis and Indians older than twenty could exchange their liberty for money.12 Opportunities for abuse were rife and means to restrain it lacking.

And yet, the underlying theory of Portuguese law did not diverge sharply from Spanish conceptions. Indeed, in the early seventeenth century, Philip III of Spain, holder of the Portuguese crown as a consequence of the Iberian union in 1580, tried to extend Spanish principles to Brazil. Indians were not to be enslaved, and their land rights were to be recognized.13 A royal order of 1609 established a High Court in Salvador. Under its authority, enslaved Indians were to be freed and t...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• 1. Making Law Intelligible in Comparative Context
• Part I. Mis-Dialogues, Code Switching, and Mixing Languages of Law
• Part II. At the Boundaries of Differing Conceptions of Justice
• Part III. Concluding Perspectives
• Acknowledgments
• About the Editors
• About the Contributors
• Index