Texto integral
- 1 Though commonly studied by scholars of colonial North America, alliances and treaties were as fre (...)
1During the early modern period, various European countries began engaging in overseas exploration. Early expeditions were followed by subsequent voyages, leading to the extension of European hegemony to parts of Africa, Asia, and the Americas. These developments generated debates regarding the legitimacy of European presence overseas. During these debates, monarchs, officials, intellectuals, and subjects often argued that the indigenous consented to their presence. This possibility has long captured the attention of historians. Many surveyed the ways by which the indigenous seemingly accepted the invading Europeans, either by allying with them, or by agreeing to cede or sell them land.1 Others described, on the contrary, the contexts in which these dynamics unfolded to demonstrate that, rather than affirming indigenous agency and decision making, these instances manifested the coercion and violence that these transactions unleashed (Banner 2005). Historians have also asked whether the indigenous understood the perils that European presence entailed, and whether they could foresee the consequences (Herzog 2018). But regardless of the road they took, thus far historians have not asked how Europeans could imagine that the indigenous consented to their colonial domination. In that historical context, and given contemporary juridical debates, what was the nature of consent and how could its presence be attested? Why would consent be important and what did it justify?
- 2 Goethe was said to have referred to the “enduring life of Roman law, which, like a diving duck, h (...)
2In what follows, I examine Portuguese and Spanish documentation produced in the Americas to show both the importance of consent as well as the ways by which it operated to legitimize colonialism. These sources mainly describe encounters between Iberians and indigenous peoples. They originate in a variety of regions and in different periods, include contacts between multiple actors belonging to very distinct groups and thus cannot tell a coherent story about what particular people thought or wanted. I use this disparate information not to tell a local story, but instead to ask why this documentation was produced and how it must be read. Following my conviction that —as Goethe once argued— law often operates like a diving duck because, whether we see it or not, it is always there, I wish to read these reports as a legal historian by placing them in the context of contemporary juridical doctrine.2 I ask how those operating in the Americas invoked native consent: how they structured and used it, and what could it do for them. Or, said differently, I wish to inquire on the legal significance of decisions such as the 1573 Spanish move from presenting themselves as conquerors to affirming that they were pacifiers (Ordenanzas de Descubrimiento 1573). I also want to ask how could they be legally catalogued as pacifiers despite the prevalence of extreme violence and coercion.
3Consent, I argue, was ubiquitous in contemporary records, which invoked a variety of ways by which the indigenous inhabitants could consent to Iberian presence. These records, presenting cross-cultural understanding as possible and as mutually binding, sustained that indigenous consent could be explicit or implicit, that it could be free or coerced, and that each one of these situations gave rise to a distinct assessment of indigenous right to resist. The text below describes these various options. It begins (section 1) by observing how explicit consent operated and the questions it provoked, such as identifying the agents authorized to speak for the indigenous and understanding their responses, most particularly, in the absence of a common culture, even a common language. It then interrogates (section 2) how the lack of opposition by indigenous peoples could be read as an implicit consent. It asks whether consent must be free, and when coercion nullifies its consequences (section 3). I end by observing a colonial paradox that held indigenous individuals and communities capable to consent to European presence, yet incapable of contracting in other ways.
4The idea that the indigenous inhabitants of the Americas could explicitly and formally consent to European presence and willfully subject themselves to Europeans was pervasive in Iberian colonial documentation. Telling of the way Europeans imagined indigenous conformity was, for example, a ritual orchestrated in 1659 by the Portuguese Jesuit António Vieira (Bettendorff 2008, 123-127). Vieira, who met in the American interior with not-yet-subjected indigenous groups, took an oath of obedience from their leaders, who swore allegiance to the Portuguese monarch. He then embraced the leaders and, while those present sang a Te Deum, the new subjects threw their bows and arrows on the ground in sign of subjection and peaceful intentions. This was followed by the sounding of trumpets, horns, and drums and the “continuous cries of infinite number of voices” in “multiple languages”. Gift-giving was also practiced, as were music and dances. To commemorate what had transpired, a huge cross was erected and venerated. The ritual took three days to conclude and might have included the participation of as many as fifty Indian leaders (principais) and some 40,000 of their subjects.
- 3 “Tratado entre el cacique Etasurim y el gobernador de Asunción Ángel Ernando de Pinedo, 1.6.1776” (...)
- 4 Arquivo Histórico Ultramarino, Lisbon, Arquivos da Administração Central, Conselho Ultramarino (h (...)
5Spectacular yet not unique, this event was one of many in which colonial agents who interacted with the indigenous population asked their leaders if they “truthfully wished to ally with them of their own initiative and by their free and spontaneous accord” and celebrated their response in public ceremonies that could be held in the local council chamber, in the presence of local aldermen, military officers, and other “individuals of distinction”.3 Alternatively, colonial agents could also inquire if the agreement was truly “born out of native free will”.4 To stress the importance as well as presence of consent, Iberian discussants insisted that the indigenous approached them rather than the inverse, initiating the conversations that led to the agreements that both sides equally desired. As far as Iberian actors were concerned, initiative demonstrated indigenous sincerity, as well as indicated that the indigenous freely chose to subject themselves to Europeans.
- 5 Archivo Histórico Nacional, Madrid, Estado 4436, no. 10, Feliz José Souza to Francisco José Teix (...)
- 6 AHU_acl_cu_010, cx. 18, d. 1146, Office of Luís de Albuquerque de Melo Pereira e Cáceres to Marq (...)
- 7 Letter of Pedro de Cevallos to Ricardo Wall, San Borja 7.12.1757, reproduced in Campaña del Bras (...)
- 8 AHU_acl_cu_013, cx. 4, d. 340, Consulta do conselho ultramarino para o rei sobre o missionário j (...)
- 9 Arquivo Público de Mato Grosso, Capitania de Mato Grosso – Secretaria de Governo (hereby APMG, C (...)
- 10 Arquivo Provincial Estado do Pará, Belém do Pará (hereby APEP), Cod. 122, Doc. 1, 1V, Letter of J (...)
6The assertion that the indigenous agreed, and that this agreement was free, was usually invoked in situations of first contact, but it did not disappear thereafter. Both Spanish and Portuguese actors argued, for example, that indigenous groups could choose not only whether to ally with them, but also whether to change sides.5 The Spanish accused the Portuguese of actively engaging in efforts to transform those allied with Spain into allies of Portugal.6 As part of these efforts, the Portuguese offered the indigenous gifts, and promised them a fair treatment. They also told the indigenous that Spaniards wished to kill them and that they maltreated their allies.7 Although bitterly protesting against such policies, Spaniards might have used similar strategies. As early as the 1620s, and most probably throughout the colonial period, Jesuits belonging to the Spanish province of the order, for example, arguing for indigenous free choice, transferred many indigenous individuals and communities from Portuguese territories to their Spanish-controlled missions.8 By the 1750s, Jesuits belonging to the Spanish province might have even engaged in convincing the indigenous who “were inclined favorably to Portugal” to ally with them by suggesting that the Portuguese would make them slaves.9 In the 1760s, Spanish Jesuits and officials, so the Portuguese argued, encouraged “Portuguese” indigenous subjects to rebel.10
- 11 Vargas Machuca (2008 [1599], 248); AHU_acl_cu_013, cx. 54, d. 4913 and d. 4948, Manuel Bernardo d (...)
- 12 The original versión reads: Que vivan con más cuidado y vigilancia al cumplimiento de su obligaci (...)
7The belief that the indigenous agreed to subject themselves was applied to all indigenous groups, regardless of contemporary judgement of their degree of ‘civility’. And, though it is easy to imagine why the invading Europeans would prefer to reach agreements with locals (because these were easier and cheaper to manage than war), much more than just strategic and material considerations was at stake. Securing native consent justified a violent response when the indigenous failed to act obediently. On such occasions, both the Spanish and the Portuguese concluded that the indigenous inhabitants could not be trusted. They were barbarians who did not respect agreements, and whose promises were worthless.11 According to this version, held by most European contemporaries, while Iberian actors were committed to peace, the indigenous were not; “treacherous behavior” was typical of them. Because despite their consent they resisted or even rebelled, Iberians had to exercise extreme caution.12 They had to consider that arrangements with indigenous groups were unlikely to persist and they had to constantly distrust even their most loyal allies.
8Disappointment at indigenous so-called inconsistency was frequently accompanied by demands for punishment. The resistance of those who were said to have agreed was both a breach of the accord as well as a criminal behavior that should be severely reprimanded. Punishment, it was suggested, would save “Spanish honor” as well as teach the indigenous inhabitants a lesson. The Portuguese equally affirmed that an appropriate response must be delivered to those who engaged in violence after they had allegedly consented. In Portuguese America, special committees, identified as juntas de missões, heard witnesses, examined the records, and weighed the pros and cons in order to rule on whether a “just war” that could produce enslavement and dispossession should be launched against groups that were said to have contravened the accord (Mello 2007; Brochado 1946; Perrone-Moisés 1989-90; Herzog 2018, 109-113).
- 13 See Heriarte (1874), writing in 1662. Somewhat similar was the impression in 1557 of Hans Staden (...)
9To attest that the indigenous consented, Iberian actors required knowing which indigenous groups existed and who could legitimately speak for them. Contemporary documentation testifies that acquiring the appropriate response was sometimes extremely difficult. Portuguese and Spanish governors, missionaries, settlers, and military commanders often hesitated or openly disagreed with one another over who they were dealing with (Nacuzzi 2001, 24, 33; Wilde 2003, 113-115; Herzog 2018, 113-114). They were unsure whether those whom they have met in the American interior were members of a single or multiple groups, what was the relations between these groups, and who headed them. They equally debated who could legitimately deliver a consent that would bind all members and what was their authority as well as capability to impose obedience.13
- 14 AHU_acl_cu_009, cx. 1, d. 79, Francisco Coelho de Carvalho to the king, 28.2.1624, and “Carta Pat (...)
- 15 See Whitehead (1992), Boccara (2010, 119-120), Roth (1997, 107-122), Garcia (2009, 138-139, 227-2 (...)
10Historical research has demonstrated that, although both the Spanish and the Portuguese often proceeded to identify groups and recognize certain persons as their leaders, such decisions rarely reproduced indigenous understanding and traditions. According to this research, Iberians divided the indigenous into groups according to their belligerence or acceptance of Iberian presence more often than according to ethnic characterizations. On most occasions, they identified as leaders convenient individuals. These individuals, rather than necessarily heading existing groups, were frequently persons who had previous contacts with Europeans and were somewhat acculturated. Self-proclaiming themselves leaders, or selected by Iberians as such, these individuals were above all mediators, not lords. To consolidate their position vis-à-vis the indigenous world, the Portuguese, who recognized these individuals as valid interlocutors, proceeded to designate them as such. They declared these individuals hereditary leaders, and they gave them formal letters of nomination, military distinctions, letters attesting to their services, and frequently expensive gifts that helped them consolidate their privileged position in the indigenous world.14 By the end of this process, rather than the authorities of an existing indigenous group reaching an agreement with Iberians, as it was often portrayed, what frequently happened was that accords with the indigenous instituted both the groups and their authorities. In their aftermath, pacts that recognized the contracting parties as valid in fact made them thus, or, at least, so the Portuguese believed.15
- 16 Portuguese records are particularly extensive in this respect, for example, AHU_acl_cu_020, cx. 1 (...)
- 17 The director of Vila de Serpa dated 24.9.1786, in Notícias da voluntária redução (1984, 84-85). T (...)
- 18 Bettendorff (1990 [c.1698]). Historians have also suggested that singing and dancing served to co (...)
- 19 AHU_acl_cu_10, cx. 17, d. 1060, Ofício do governador e capitão geral da capitania de Mato Grosso, (...)
11Contemporary documentation usually presented communication with indigenous groups as a simple, straightforward affair. Nonetheless, Spanish and Portuguese actors frequently revealed the difficulty not only in identifying groups and their leaders but also in interpreting indigenous responses.16 These actors asked what this response meant, and what it entailed. Yet, even those who confessed that they guessed rather than knew what the indigenous answered, assured the authorities that despite the absence of a common language and culture, they were able to correctly interpret indigenous desires.17 Particularly indicative of consent, the Portuguese affirmed, were gestures that expressed happiness such as celebrating “in their own gentile ways”.18 Hugging and kissing and the acceptance of gifts were similarly interpreted as communicating acquiescence. So strong was the belief in the ability to interpret behavior that meeting accidently with “wild Indians of unknown nation” with whom they could not converse, the Portuguese nevertheless expressed a certainty that the members of this groups had “manifested willingness and inclination to become civilized”.19
- 20 AHU_acl_cu_023-01, cx. 27, d. 2553, Letter of João Martins Barroso to Luís Antônio de Sousa, Igua (...)
- 21 On how the indigenous might have viewed such interactions see Herzog (2018).
12Archival documentation thus suggests that Iberian actors were predisposed to believe that the indigenous would collaborate with them, and quickly moved from speaking to unknown groups to celebrating their submission. This firm belief that the indigenous would agree could persist despite all indications to the contrary. One extreme example was what transpired in 1771 according to a report by a Portuguese military commander who was posted in the Amazon basin.20 The commander affirmed that several leaders of an unknown indigenous group came to the Portuguese fort and agreed to subject themselves to the Portuguese. Yet, the commander confessed that the members of the group asked him why the Portuguese wanted to take away their lands, that they refused to live next to the Portuguese and under their protection, and that they had probably attacked a Portuguese residence as they retreated from the Portuguese fort. In this case, and most probably in many others, indigenous acquiescence was assumed rather than attested. It was read into indigenous response and was imagined by Iberians who a priori sought to prove its existence even when there were excellent reasons to suspect that consent was missing. The lack of real doubts regarding the ability to contract with the indigenous generally led to the rejection of any behavior that seemed in contradiction with the agreement that the parties were said to have reached. Rarely did Iberians ask themselves whether the indigenous had understood correctly what was at stake, and whether they indeed promised what they, Iberians, imagined that they had.21 But why did Europeans assume that the indigenous agreed and what was this assumption based upon?
- 22 Siete Partidas, Partida 7, title 34, law 23.
- 23 See examples in Herzog (2015, 8, 34-40, 51, 82, 89, 127-128, 140, 152, 200, 211, 217, 237, 246, 2 (...)
13Paradoxically, the assumption that the indigenous agreed was often tied to the lack of protest. European juridical doctrines equated silence with consent (Qui tacet consentit or qui tacet consentire videtur ubi loqui debuit ac potuit). They held that those who could voice disagreement and chose not to, could be construed as having acquiesced. This reasoning, also supported by common sense observations, was omnipresent in contemporary records. It was reproduced, for example, in the thirteenth-century Castilian recompilation of ius commune, the Siete Partidas, also in power in Portugal, where it was attested that “even if it is said that he who was silent does not always agree to what was said…nonetheless this is true because he does not negate what he hears”.22 Or, as Grotius would eventually argue, “if a person knows his property to be in the possession of another and allows it to remain so… without asserting his claim, unless there are sufficient reasons for his silence, he is construed to have entirely abandoned all pretentions to the same” (Grotius 1814 [1625], book II, chapter IV, numbers III and V). This axiom, which operated in both Europe and overseas, was widely present and practiced by a huge array of contemporary actors. It was ubiquitous for example in discussions regarding the possession of land, in which the parties habitually argued that if their rivals did not protest their possession taking, it meant that they had agreed to it. The contrary was also true. Parties to these discussions knew that, if their properties had been invaded, they had to protest, and do so loudly, or else their lack of response would be legally construed as agreement.23
- 24 On how this operated, see for example, Herzog (2015, 8, 34, 37-48, 106-107, 139-140, 203, 237).
14These rules explain why the acquisition of rights was often staged as a ceremony in which the interested parties acted as if these rights were already theirs.24 To continue with the same example, to acquire possession of the land, the parties pretending to acquire these rights cut herbs or ploughed the terrain, that is, performed activities that only a rightful possessor could legitimately undertake. Though of themselves none these actions were sufficient to obtain title, it was the silence of those watching that consecrated these rights. This silence led to the conclusion that those watching considered these acts legitimate and thus agreed that the actors performing them had the rights they pretended to have. Closing the circle, the lack of reaction by those watching – not the acts themselves – was what allowed the conclusion, in the aftermaths of this ritual performance, that those acting had been instituted or recognized as rightful possessors. Yet, while silence was meaningful, so was violence. The need to ascertain with certitude how those potentially harmed reacted to the challenges posed to their rights led to juridical insistence that their disagreement be clear and manifest and be accompanied by external, visible acts. According to this logic, the more violent the protest of those who stood to lose, the better, because it best manifested their discord.
- 25 AGN/BA, IX-4-3-6, Luís António de Souza to Carlos Morphy, São Paulo, 17.7.1771, APEP, Cod. 122, D (...)
- 26 This analysis pertains to the question whether, according to Iberians, indigenous groups consente (...)
15Many colonial actors were well-aware of these principles, which they applied also to their interactions with the indigenous population. Already in 1493, in a famous letter sent to the Catholic kings, Columbus testified that he took possession of the islands he ‘discovered’ “with no opposition being offered” (Columbus 1969, 115). In the following centuries, other Iberian agents would do the same, arguing that the lack of ‘contradiction’ by the indigenous to their presence in the territory implied that they had agreed to their subjection, and recognized Iberian claims to sovereignty.25 The belief in the power of silence, and the role of ceremonial acts where the presence and reaction of witnesses were deemed essential, held sway throughout the colonial period, allowing those not finding resistance to their penetration to new territories to conclude that they were legitimately accepted. The result was that, if the indigenous did not protest, if they did not resist, nor violently attack the invading Iberians, it was possible for the invaders to imagine that the indigenous had agreed to their presence. These conclusions, which formed part of the daily practice of most contemporary Iberians, enabled them to agree that by not protesting, the indigenous had consented.26 Paradoxically, however, the same doctrine could also explain, perhaps even justify, indigenous violence as this violence could be construed as a powerful as well as an indispensable juridical tool to communicate discord.
16But even if the indigenous inhabitants agreed, was their agreement binding given the coercive context in which it was given? To this question, Francisco de Vitoria (c.1486-1546), a renown Dominican friar teaching at the university of Salamanca, answered negatively. In a famous lecture he gave in 1539 he concluded that Spanish presence in the Americas could be justified by “a true and voluntary election” of the “barbarians” who could “spontaneously decide to accept the king of Spain as their prince” (Vitoria 1991, question 2, article 6 and question 3, article 6, pp. 275-276 and 288-289). Vitoria nevertheless concluded that this rule could not be applied to the Americas because for the choice to be valid, several conditions had to be met. First, the choice must not be made in fear or ignorance, or under any other circumstances that “vitiated the freedom of election”. In the Americas, he stated, the request for subjection was made by armed men to defenceless crowds, therefore giving those said to be choosing no option but to agree. Second, those agreeing must understand what they were being asked. This condition was not met in the Americas either as the indigenous did not understand the demands Europeans made of them. Third, in this case the rule could not operate at all because the indigenous were already subjected to their own lords and could not acquiesce to a new dominion. Vitoria thus concluded that because these “requisite conditions for a legitimate choice were lacking” in the Americas, so was consent.
- 27 The Requirement (1510) is available in English translation, for example, in Parry and Keith (1984 (...)
17Vitoria’s insistence on the freedom of choice was a reaction to ideological and legal debates that asked whether freedom was indeed required for a choice to be valid. Echoes of these debates were present in a famous document elaborated in the 1510s, best known as the requerimiento. This text, which was to be read before battle began, informed the indigenous that the pope had granted control of the Americas to the Catholic kings of Spain who were now the legitimate lords of the land.27 The document confirmed that “almost all those to whom this has been notified, have received and served their highnesses… with good will and without resistance… of their own free will, without any reward or conditions”. It demanded that those listening do the same: it asked them to “consider what we have said to you” and gave them “the time that shall be necessary to understand and deliberate upon it”. Though formally espousing the doctrine, which Vitoria also adopted, that required that choice would be both free and informed, nevertheless, the requirement gave listeners no option to refuse. It specified that:
if you do so, you will do well, and that which you are obliged to do… but, if you do not…, I certify to you that, with the help of god, we shall powerfully enter into your country, and shall make war against you… and we shall take you and your wives and your children and shall make slaves of them… and we shall take away your goods, and shall do you all the mischief and damage that we can, as to vassals who do not obey, and refuse to receive their lord.
18The requirement, therefore, presented consent as both a choice and an obligation. In his History of the Indies (1552), Bartolomé de las Casas (1484-1566) commented on the absurdity of this document and asked whether it merited laughing or crying (Casas 1959, chapter 58, p. 216). Yet, despite this criticism, the idea that consent could be present even when the only option was either to consent or to perish was much more widely accepted among contemporaries than the reading of Las Casas and Vitoria would lead us to believe. Indeed, from as early as the twelfth century, several European jurists argued that consent could be perfectly valid despite the presence of coercion. To justify this conclusion, these jurists came up with a distinction between two different types of coercion: “absolute coercion” and “conditional coercion”. According to them, absolute coercion existed only when actors had absolutely no choice to refuse because, for example, in cases of forced conversion, they were held down while baptismal water were poured onto them. While this type of coercion, absolute, produced no valid legal results, conditional coercion, on the contrary, did not nullify the juridical act. Conditional coercion existed in cases in which individuals acted under sever intimidation, for example, the admonition that they would be beaten, robbed, injured, or even killed if they failed to obey. Though these menaces seriously limited the options available to actors, they did not entirely eliminate their will because these individuals chose to consent rather than perish. The conclusion these jurists reached was that, even if there was no free choice, forced will was nevertheless a will (Sapir Abulafia 2016, 29).
- 28 On those holding the contrary opinion that conversion without will was absolutely null see, for e (...)
- 29 Cited in Zeldes (2010, 7). John Duns Scotus (1265-1308) made a similar distinction between differ (...)
- 30 Stow (1977, 172), studying the tract De Iudaeis by de Susannis (1558). Somewhat similar were the (...)
- 31 See, for example, APMG, CMG-SG, Livro C-18, Estante-01, letter 5, fols. 32r-35r, fols. 34r-v, Fra (...)
- 32 The original versión reads: Y no conformándose en la práctica de todo lo que contienen, después d (...)
19In the following centuries, this interpretation became the most widely accepted opinion. Though some, like Vitoria, continued to express the conviction that true free will was required for an action to be valid, most concluded otherwise.28 They argued, for example, that “he who is dragged violently by torture and fear and accepts the sacrament of baptism to avoid loss” is considered to have “conditionally willed”.29 Even as late as the mid sixteenth century, the distinction between complete and conditional coercion stood firm, jurists arguing that only absolute force (coactio praecisa) that rendered the party completely passive (pati quam agere) invalidated the action.30 Thus, while discussants continued to debate how to distinguish absolute from conditional coercion, and which should be applied in each case, most agreed that coercion did not necessarily invalidate consent. This understanding explains why the requirement could invoke consent yet punish those who refused. It also explains many other interactions in which the indigenous were told that they could either consent or suffer war and annihilation.31 There was no room for questioning, as any refusal would lead to punishment “with the greatest severity possible as to give them a lesson” (Nacuzzi 2001, 71).32 Freedom to choose, therefore, did not necessarily entail the ability to elect between various plausible responses. Instead, it mainly embodied the option of choosing between exclusion and inclusion, war and peace. This choice, it was argued, was valid and natives could be compelled to act upon it and be appropriately punished if they did not.
20Iberian actors thus placed at center stage indigenous consent to their presence and indigenous agreement to subject themselves. Whether demanding it explicitly or implicitly, whether allowing for coercion or insisting on free choice, these actors enthusiastically engaged in applying juridical ideas regarding consent to the colonial situation to justify Iberian activities overseas. By doing so, Iberians implicitly recognized indigenous capacity to take decisions that relinquished indigenous autonomy, ceded indigenous territories, and led to conversion. Iberians also implicitly held that, regardless of their group belonging and status, and regardless of their culture, all indigenous groups and individuals were legitimate decision makers, endowed with a legal personality and a legal capacity. Yet, while they were theoretically capable of choosing to submit themselves to both king and church, according to some colonial actors, what the indigenous could not do was to enter into binding commercial agreements.
- 33 Solórzano Pereira (1972), Lib. Ii, chapter. 28, ns. 42-56, vol. 1, pp. 427-429, most particularly (...)
- 34 On how this rule operated see, for example, Archivo Nacional del Ecuador (Quito), Tierras 31, exp (...)
21This reality was succinctly described by Juan de Solórzano Pereira (1575-1655), a seventeenth-century judge in Peru and the author of one of the most popular summaries of Spanish law as applied in the colonies, the Política Indiana.33 Solórzano Pereira explained that, although the indigenous were legally adults and theoretically enjoyed the freedom to decide on their own affairs, they should not be allowed to enter into binding commercial agreements, most particularly, when they included the promise to sell real estate or other things of “price and estimation” without the protection and aid of magistrates or tutors, who would have to approve the transaction before it took place. Solórzano justified his views by referencing the “condition and subjection” of the indigenous population, which according to him habitually exposed the members to deceit. Because according to Solórzano the indigenous were incapable of efficiently governing their own affairs, they required the direction and supervision of others.34
22Solórzano believed that the indigenous merited this special ‘protection’ because they belonged to a special category of people classified as miserables. This category, which originated in ius commune and had consequences in both canon and civil law, included a wide range of individuals considered worthy of compassion as well as guardianship, such as widows, orphans, pilgrims, and the poor (Castañeda Delgado 1971; Díaz Consuelo 2001; Duve 2004 and 2017; Cunill 2011). Though by virtue of this status the indigenous could enjoy of certain benefits, for example, free legal representation or abbreviated legal proceedings, in most cases protection came with severe limitations. Among other things, in their condition as ‘miserable’, indigenous individuals could not represent themselves in court and their capacity to conduct many legal transactions was severely restricted. Ironically, the handicap with regards to the celebration of contracts by ‘miserable’ individuals was an extension of the medieval rule that allowed those of protected status to retreat from unfavorable dealings and receive full restitution. However, in the case of the indigenous population, no case-to-case examination was required to nullify the contract. Instead, the presumption was that all contracts except for those involving minimal commercial exchanges were potentially prejudicial. Consequently, rather than proceeding to cancel those contracts that were unfavorable, it was preferable to prohibit the indigenous from contracting altogether.
23Solórzano’s vision reflected a theoretical stand. As is well-known, during the colonial period, indigenous individuals and communities did engage in selling and buying land and did so, often, without protection or the supervision of others. The courts sometimes cancelled such transactions, but often did not. But regardless of what the colonial reality entailed, from a doctrinal point of view, it is nonetheless striking that, while natives could collectively (or by way of their so-called leaders) consent to become vassals, allies, or Christians, and while they could transfer their territories and jurisdiction to Iberians either by pronouncing their agreement explicitly or by not resisting, as private individuals they could be considered as lacking the capacity to sell their land. This paradox persisted throughout the colonial period, as Iberians constantly met and negotiated with new not-yet-subjected indigenous groups, whose members were said to agree to their presence, but as they also contemporaneously asked questions about the capacity of the colonial indigenous population to contract.
24The study of both explicit and implicit indigenous consent, the difficulties in understanding what the indigenous desired, which groups existed and who led them, and the employment of coercion indicated that, although incredibly important in Iberian narratives, indigenous consent mostly operated as a presumption. The Indigenous were presumed to have assented to certain things, and this presumption acted upon reality. Rather than being a manifestation of free will, indigenous consent was a juridical and a political tool meant to confirm what Iberians already suspected, namely, that they were the true masters of the land. Confirming the right of Iberians to be present in the Americas, indigenous consent also allowed Iberians to explain why they reacted violently to any manifestation of discord. After all, those who had allegedly agreed were bound by their agreement, and any behavior that could be interpreted as a violation of the accord was both illegitimate and illegal and merited a stern response.
25These visions originated in European doctrines that gave certain acts and words, as well as the lack thereof, a certain meaning. Rather than invented to solve colonial difficulties, these doctrines were applied to colonial domains in ways that were certainly interested yet were not completely out of line with their use in Europe. Precisely for that reason, not only doctrines but also discussions regarding their meaning, extension, and application, crossed the Atlantic. Vitoria and Las Casas, in other words, could criticize, even mock, their contemporaries, but they also knew that their interpretations formed part of larger debates. Whatever they said, whatever they silenced, they had a depth of knowledge and understanding we usually lack. As a result, to search for coherence where a diversity of opinions and interpretations existed or was possible, or to ask how the law allowed for paradoxical conclusions, for example, giving the indigenous capacity to relinquish their autonomy and religion, but not to sell their land, is to misunderstand how law operates. Law rarely gives answers. It proposes techniques, instruments, and tools to arrange, direct, and control reality, allowing actors to pick and choose, while also engaging in the difficult task of convincing others that their choice is best. As Thomas Duve (2015) once argued, if we do not ask ourselves how law operates, we would be like spectators in a soccer match that, being unfamiliar with the rules of the game, only see players aimlessly running after a ball.
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Notas
Though commonly studied by scholars of colonial North America, alliances and treaties were as frequent and as important in Ibero-America. On treaties with the indigenous populations see Belmessous (2014, 2-3). On the possible relations between treaties in Europe and the Americas see Gibson (1978). On treaties as capturing consent see Glover (2014).
Goethe was said to have referred to the “enduring life of Roman law, which, like a diving duck, hides itself from time to time, but is never quite lost, always coming up again alive” (Goethe 1875, 389-390).
“Tratado entre el cacique Etasurim y el gobernador de Asunción Ángel Ernando de Pinedo, 1.6.1776”, reprod. in Nacuzzi (2001, apénd. IV, 74).
Arquivo Histórico Ultramarino, Lisbon, Arquivos da Administração Central, Conselho Ultramarino (hereafter AHU_acl_cu), 010, cx. 28, d. 1617, Ofício do governador de Mato Grosso Luís de Albuquerque de Melo Pereira e Cáceres ao secretário de estado da marinha e ultramar Martinho de Melo e Castro, Vila Bela, 9.9.1791.
Archivo Histórico Nacional, Madrid, Estado 4436, no. 10, Feliz José Souza to Francisco José Teixeira, Príncipe de la Vera 23.11.1784. Historians have since affirmed that indigenous groups could indeed profit from rivalries among Europeans to advance their own goals, among other things, by changing sides or threatening to do so. On these questions and similar, see Herzog (2015, 104-109).
AHU_acl_cu_010, cx. 18, d. 1146, Office of Luís de Albuquerque de Melo Pereira e Cáceres to Marquês de Pombal, Vila Bela, 8.1.1777.
Letter of Pedro de Cevallos to Ricardo Wall, San Borja 7.12.1757, reproduced in Campaña del Brasil 1939, vol.2, 245-246 on p. 245.
AHU_acl_cu_013, cx. 4, d. 340, Consulta do conselho ultramarino para o rei sobre o missionário jesuíta castelhano padre Samuel, Lisbon, 12.11.1697.
Arquivo Público de Mato Grosso, Capitania de Mato Grosso – Secretaria de Governo (hereby APMG, CMG-SG), Livro C-18, Estante-01, letter 1, fols. 9-17v, Letter of Tomé Joaquim da Costa Corte Real to António Rolim de Moura, Lisbon, 7.7.1757. I would like to thank João António Botelho Lucídio for sending me this reference.
Arquivo Provincial Estado do Pará, Belém do Pará (hereby APEP), Cod. 122, Doc. 1, 1V, Letter of Jose Monteiro de Noronha to Manoel Bernardo de Mello e Castro, Barcelos, 14.1.1762.
Vargas Machuca (2008 [1599], 248); AHU_acl_cu_013, cx. 54, d. 4913 and d. 4948, Manuel Bernardo de Melo de Castro to Francisco Xavier de Mendonça Furtado, Pará, 9.4.1763 and 20.6.1763; Archivo General de la Nación, Buenos Aires (hereby AGB/BA), IX.4.3.7, Declaración de tres indios que acaban de llegar desertados con cuatro chinas del Río Pardo, 10.4.1775; Monteiro de Noronha (2006 [1768], point 74 on p. 42).
The original versión reads: Que vivan con más cuidado y vigilancia al cumplimiento de su obligación para que en lo sucesivo no sean sorprendidos tan vilmente de esta canalla: AGN/BA, IX-11-5-6, Diego de Sala to Francisco Bucareli y Ursua, Buenos Aires, 5.7.1768.
See Heriarte (1874), writing in 1662. Somewhat similar was the impression in 1557 of Hans Staden (1928, 140, Part II, Chapter 12).
AHU_acl_cu_009, cx. 1, d. 79, Francisco Coelho de Carvalho to the king, 28.2.1624, and “Carta Patente de principal”, given by Francisco Xavier de Mendonça Furtado on 6.10.1752, petitions of Ignacio Coelho, Francisco de Souza de Menezes and Luís de Miranda to the king, all dated 15.3.1755, and Sebastião José de Carvalho e Mello to the Conselho Ultramarino, 15.3.1755, all cited in Coelho (2005, 6). Also see Farage (1991, 160-163, 170) and Garcia (2009, 48-49, 78-80, 248-251).
See Whitehead (1992), Boccara (2010, 119-120), Roth (1997, 107-122), Garcia (2009, 138-139, 227-265), and Puntoni (2000, 60-61, 68-69, 77).
Portuguese records are particularly extensive in this respect, for example, AHU_acl_cu_020, cx. 1, d. 44, Diogo de Mendonça Corte Real to Francisco Xavier de Mendonça Furtado, Lisbon, 1.6.1756, AHU_acl_cu_013, cx. 75, d. 6279, Information sent by Felipe Sturm, Boca rio Tacucu 19.11.1775, and AHU_acl_cu_020, cx. 9, d. 380, João Pereira Caldas to Martinho de Melo e Castro, Barcelos, 21.6.1785. For additional information, see Herzog (2014 and 2018).
The director of Vila de Serpa dated 24.9.1786, in Notícias da voluntária redução (1984, 84-85). The original version reads só por ações se percebe pretenderem descer. Only rarely the Portuguese confessed that the lack of a common language made communication difficult; AHU_acl_cu_008, cx. 36, d. 2242, Ofício do governador e capitão geral de Goiás, Tristão da Cunha Meneses, ao secretário de estado da Marinha e Ultramar, Martinho de Melo e Castro, Vila Boa, 28.8.1787.
Bettendorff (1990 [c.1698]). Historians have also suggested that singing and dancing served to communicate with natives: Metcalf (2005, 388).
AHU_acl_cu_10, cx. 17, d. 1060, Ofício do governador e capitão geral da capitania de Mato Grosso, Luís de Albuquerque de Melo Pereira e Cáceres, ao secretário de estado da Marinha e Ultramar, Martinho de Melo e Castro, Fortaleza da Conceição, 25.1.1774. The original version mentions índios silvestres de nação desconhecida that had nevertheless exhibited uma manifesta vontade e inclinação de admitir civilidade.
AHU_acl_cu_023-01, cx. 27, d. 2553, Letter of João Martins Barroso to Luís Antônio de Sousa, Iguatemi, 30.1.1771.
On how the indigenous might have viewed such interactions see Herzog (2018).
Siete Partidas, Partida 7, title 34, law 23.
See examples in Herzog (2015, 8, 34-40, 51, 82, 89, 127-128, 140, 152, 200, 211, 217, 237, 246, 263).
On how this operated, see for example, Herzog (2015, 8, 34, 37-48, 106-107, 139-140, 203, 237).
AGN/BA, IX-4-3-6, Luís António de Souza to Carlos Morphy, São Paulo, 17.7.1771, APEP, Cod. 122, Doc. 1, 1r, Jose Monteiro de Noronha to Manoel Bernardo de Mello e Castro, Barcelos, 14.1.1762, and APMG, Livro C – 03, Doc. 03, fols. 34v- 53, on fol. 48v, Instrução que ao General Luiz Albuquerque de Mello Pereira e Cáceres deixou seu antecessor Luiz Pinto de Souza Coutinho, Vila Bela, 24.12.1772.
This analysis pertains to the question whether, according to Iberians, indigenous groups consented to their presence. Of course, as is well known, after Iberian established their presence, individuals and communities could use the Iberian legal system to argue their right to land, or even sovereignty, often with mixed results. See, for example, Herzog (2013).
The Requirement (1510) is available in English translation, for example, in Parry and Keith (1984, v. 1, 289-290), or in http://nationalhumanitiescenter.org/pds/amerbegin/contact/text7/requirement.pdf. On the requirement more generally, also see Benso (1989, 70, 73-84, 100-104).
On those holding the contrary opinion that conversion without will was absolutely null see, for example, Caffiero (2012, 61-62) and Marcocci (2020, 333-334, 337).
Cited in Zeldes (2010, 7). John Duns Scotus (1265-1308) made a similar distinction between different types of coercion according to García Arenal (2020, 363-364).
Stow (1977, 172), studying the tract De Iudaeis by de Susannis (1558). Somewhat similar were the conclusions of the bishop of Algarve in 1531 according to Marcocci (2020, 337-339) and more generally Marcocci (2006, 370, 375-377).
See, for example, APMG, CMG-SG, Livro C-18, Estante-01, letter 5, fols. 32r-35r, fols. 34r-v, Francisco Xavier de Mendonça Furtado to Antonio Rolim de Moura, Lisbon, 18.6.1761 and “Capítulos que debe proponer Manuel Pinazo a indios aucas para convenir en la paz que solicitan, Buenos Aires, 8.5.1770” (reproduced in Nacuzzi 2001, 71) and AGN/BA, IX-24-04-06, fol. 6R, the negotiations between the “cacique infiel Cumbay” and Jorge Michel in 1806.
The original versión reads: Y no conformándose en la práctica de todo lo que contienen, después de haberles esforzado y persuadido a su condescendencia, los hará retirar a su campo en señal de rompimiento y los castigará con la mayor severidad posible para su escarmiento.
Solórzano Pereira (1972), Lib. Ii, chapter. 28, ns. 42-56, vol. 1, pp. 427-429, most particularly numbers 44 and 45. Some of these rules were reflected in royal orders, for example, as reproduced in the Recopilación de Indias, book 6, title 1, law 27. Also see laws 24-26 that allow commercial exchanges.
On how this rule operated see, for example, Archivo Nacional del Ecuador (Quito), Tierras 31, exp. 24.4.1706.
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