As Connie Johnson mentioned in a post earlier this month, the Law Library commemorated Human Rights Day this year by hosting an engaging panel discussion. In keeping with the theme of human rights, I thought it fitting to highlight a historic set of legal instruments that capture a case of well-meaning reaction against a historical example of the disregard of and contempt for human rights: I am referring to the Royal Ordinances for the Good Governance and Treatment of the Indians, better known as the Leyes de Burgos (Laws of Burgos [Spain]). The general criticism of these laws has been that they did not in fact achieve any improvement in the lives of the Indians (i.e. the native Caribbean people) whom they sought to help. (For the readers who may know little about the history of Spain during the Age of Discovery, the Caribbean Islands served as a strategic center for the gold mining industry, the conquest of America, and for the slave trade.) On the other hand, the very fact that the Spanish went as far as drafting and promulgating laws whose sole purpose was to improve the treatment of the Indians should still be recognized to have been a significant advance.
The Laws of Burgos were issued by Ferdinand the Catholic. It is believed that the creation of these laws is the legacy of Fray Antonio de Montesinos, who delivered his first sermon on December 21, 1511 (aka the Christmas sermon) advocating justice for the native peoples. Among those present at his first sermon was Bartolomé de las Casas, known for having been a staunch defender of the rights of indigenous peoples. (You may have read a bit about him in Nathans blog post on polygamy in New Spain.) A monograph titled The Laws of Burgos of 1512, Precursor to International Law and of the Recognition of Human Rights contends that these 500-year old laws were a forerunner to current international law and its acknowledgment of human rights.
The issuance of these laws was intended for the Island of Hispaniola, which comprises the modern states of Dominican Republic and Haiti. Eventually, their jurisdiction was expanded to cover the Greater Antilles.
A useful translation of the laws along with a brief introduction has been produced by Peter Bakewell of Southern Methodist University. Bakewells work provides the text of the laws in English including the subsequent amendment of July 1513. The preamble provides the scenario from which these laws emerge. The whole corpus comprises 35 laws and four subsequent amendment laws. Organizationally, each of these laws is more like an article or amendment of a single legislative instrument.
The second paragraph offers a view of the Spanish Crowns understanding of the natives who were, borrowing Bakewells translation, by nature . . . inclined to idleness and vice, and have no manner of virtue or doctrine. The sustained tone throughout this paragraph is one that seems to stem from a conviction that in order to help the natives it would be necessary to bring them closer to the colonizers. In fact, because of the distance and their own evil inclinations, they immediately forget what they have been taught and go back to their customary idleness and vice, and when they come to serve again they are as new in the doctrine as they were at the beginning.
In reality, for good or bad, what was being established was a centralized mechanism for control. These laws also served as the vehicle for the implementation of the encomienda in Colonial Spanish America. This was administratively akin to a barony, where a colonizer was entrusted with the care of a group of Indians for the purpose of their evangelization and for labor. The encomienda was meant to implement a more humane approach to labor for the Indians and replaced the first system known as repartimiento.
The first law called for the creation of dwelling spaces for the Indians near the Spaniards. Their normal dwelling places were to be destroyed so that they could not return to them. The encomendero was the lord that governed the claim of land and with whom the Indians care was entrusted. The second law provided that the Indians were to leave their land voluntarily so that they might avoid being forced out of it.
The third law provided for the construction of a church. If you ever visit a colonial-era area of Latin America, you will undoubtedly see the town square, the Church, and the local government facilities. These are, as the fifth law provides, to be within one league of the estates. The impact of this particular provision was a lasting one and in fact had some influence on architectural design of Colonial Hispanic America (think of the Spanish missions of California). A hacienda or a quinta is usually a country estate; and because it is removed from a formal Church, these plantations were and still are equipped with chapels for the required worship. Many of the provisions are connected to the Catholic conventions of day-to-day life. However, the instrument provided that the rites that were commonplace for the settlers were to be extended to the Indians.
For the Indians involved in the mining of gold, the law provided for a compulsory rest period of 40 days. The sixteenth law prohibited polygamy and divorce. Sleeping accommodations were also set out in these laws. The hammock became a standard required sleeping fixture in the quarters of the Indians. Wages were also established in these laws. Record keeping was also compulsory for documenting population and tracking the gold mining activities.
Finally, Law 24 order[s] and command[s] that no person or persons shall dare to beat any Indians with sticks, or whip him, or call him dog, or address him by any name other than his proper name alone. It also provides the fines that shall be imposed in the event that these provisions are not honored.
Although we often associate Child labor laws with the Industrial Revolution, they were embedded in the Laws of Burgos; and, in that regard, these laws seem to be ahead of their time. It is the second amendment that provides that children were not to do the work of adults until they reached the age of fourteen. The third amendment addresses the issue of single women, with and without parents. The final amendment provides that the term of indentured servitude would be two years, which allowed for full evangelization and acculturation.
So as we ponder those universal and inalienable rights that we enjoy today, we can now also think of the Laws of Burgos as another moment in history that heralded human rights.