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Zeitschrift des Max-Planck-Instituts für europäische Rechtsgeschichte Rechts R Journal of the Max Planck Institute for European Legal History geschichte g Rechtsgeschichte Legal History www.rg.mpg.de http://www.rg-rechtsgeschichte.de/rg26 Rg 26 2018 264 – 283 Zitiervorschlag: Rechtsgeschichte – Legal History Rg 26 (2018) http://dx.doi.org/10.12946/rg26/264-283 Christiane Birr * Dominium in the Indies. Juan López de Palacios Rubios’ Libellus de insulis oceanis quas vulgus indias appelat (1512–1516) * Max-Planck-Institut für europäische Rechtsgeschichte, Frankfurt am Main / Goethe-Universität Frankfurt am Main / Akademie der Wissenschaften und der Literatur Mainz, [email protected] Dieser Beitrag steht unter einer Creative Commons cc-by-nc-nd 3.0 Abstract The conquista of the Americas confronted Span- ish jurists educated in the legal concepts of the European medieval tradition with a different real- ity, pushing them to develop modern legal con- cepts on the basis of the European ius commune tradition. Traditionally, the School of Salamanca, theologians and jurists centred around the Domi- nican Francisco de Vitoria are credited with this intellectual renovation of moral and legal thought. However, the role earlier authors played in the processisstillinsufficiently researched. The Cas- tilian crown jurist Juan López de Palacios Rubios is one of the most interesting authors of the early phase in the conquest of the Americas. His treatise about the Spanish dominion in the Americas is a central text that shows how at the beginning of the 16th centurytheknowledgeandtheexperien- ces of the European past were applied to the American present and, in the process, were shaped into modern ideas. Keywords: School of Salamanca, conquest, dominium, Bartolomé de Las Casas, Juan de Pala- cios Rubios □× Rg 26 2018 Christiane Birr Dominium in the Indies. Juan López de Palacios Rubios’ Libellus de insulis oceanis quas vulgus indias appelat (1512–1516) Introduction For centuries, his substantial treatise on the topic of the Spanish dominion in the Americas was pre- With the conquista of the Americas, legal con- sumedtobelost.Nowthatascholarlyeditionof cepts of the European medieval tradition were the Latin text has been published,4 his position on extended to what the eminent Argentinian legal indigenous property and political power as well as historianVíctorTau Anzoátegui calls »new and vast on the justification of the Spanish presence in the territories«, causing a »crisis« of the ius commune Indies can be reconstructed and provides an au- and, eventually, the formation of a new kind of ius, thentic insight into the discussions and positions the so-called derecho indiano.1 The School of Sala- held at the court of Ferdinand II and the young manca, theologians and jurists centred around the Charles V. Dominican Francisco de Vitoria, played a major part in this development. They have been credited with the intellectual renovation of moral and legal 1 Juan López de Palacios Rubios thought, transposing medieval traditions into (1450–1524) modernity: new phenomena from the Americas were explained, analysed and judged using the Juan López de Vivero (1450–1524) today is terminology and concepts of European traditions, widely known under his by-name of Palacios Ru- often reaching back to Greek and Roman Antiq- bios, which he adopted from the village where he uity;2 the concepts of dominium and possessio,of was born in 1450.5 Palaciosrubios is a small village, pagans and slaves are just a few examples. Precisely aday’swalk6 east of Salamanca, and Juan López how those concepts were moulded by the exigen- was probably baptized in the parish church of San cies of the Americas is still a topic of research. A Andrés, which by that time had not yet acquired its prerequisite for any analysis of the achievements of distinctive tower that dates from the 18th century Vitoria and others is, however, a thorough under- and remains the pride of the pueblo to the present standing of the prior state of political and juridical day. discussion regarding the American territories. On- As a young man, he studied in Salamanca civil ly against the background of these older authors and canon law. He went on to teach canon law in will it be possible to gauge the intellectual inno- Salamanca7 and Valladolid, where he was also oidor vations of the modern scholastics in Salamanca and at the Chancillería. In 1504, King Ferdinand II elsewhere.3 appointed him a member of the Castilian Crown From a juridical standpoint, the eminent Cas- Council (Consejo Real de Castilla). Palacios Rubios tilian crown jurist Juan López de Palacios Rubios is served the last twenty years of his life as a juridi- one of the most interesting authors of this »pre- cal councillor to Ferdinand and his grandson, Vitorian« phase in the conquest of the Americas. Charles V. In this capacity, he was not only one of 1Tau Anzoátegui (2016) 39 describes 3Cf.alsoToste (2018) in this volume. 6 About 42 kilometres. »el fenómeno de expansión del De- The traditional view is represented by 7Fuente (1870) 246 suggests that Pa- recho común a nuevos y vastos terri- e. g. Sánchez Domingo (2012) 12. lacios Rubios had been present at the torios en el siglo XVI, con su consi- 4Palacios Rubios (2013). Regarding discussions between Colón and the guiente crisis y formación de un the history of the text, cf. in the fol- professors of Salamanca in 1486, nuevo Derecho, el denominado in- lowing, 2 The Libellus de insulis oce- although no mention of said partic- diano«. anis quas vulgus indias appelat. ipation is mention in his treatise. 2Rojas (2007) describes the same phe- 5 The most detailed biography is still nomenon in the field of natural sci- Bullón (1927). See also Martín de ences. la Hoz (2013) 14 sq. 264 Dominium in the Indies. Juan López de Palacios Rubios’ Libellus de insulis oceanis quas vulgus indias appelat (1512–1516) Fokus focus the main actors in Castilian legislation (as one of indigenous property and rights, encouraging the the four members of the commission who auth- Spaniards to acquire the supposedly ownerless ored the Leyes de Toro (1505) as well as their most territories by pure seizure.13 influential commentator),8 but also deeply in- This modern picture of Palacios Rubios stands volved in the juridical and administrative organ- in sharp contrast to his characterisation by Barto- isation of the conquista of the Americas. lomé de Las Casas who repeatedly declared the Juan López de Palacios Rubios never crossed jurist to be a »good man and good Christian« and a the Atlantic himself: his knowledge of life in the favorecedor de los indios, a champion of the Indians Americas was restricted to the oral and written at the Spanish court.14 Also, he recounted the help reports of conquistadors, Crown envoys, adminis- he himself received from the crown jurist.15 This trators, and missionaries. It is remarkable (and was notable discrepancy alone calls for a closer look at remarked upon by his contemporaries)9 that Palacios Rubios’ position about the Indians and among the members of the Crown Council, he the foundations of Spanish rule in Latin America. was not settled with possessions, with land and IndiansintheNewWorld.Asheremainedwith- out economic interests of his own in the Americas, 2TheLibellus de insulis oceanis quas vulgus Cardinal Cisneros and others valued his opinions indias appelat and arguments more than those of other consejeros reales.10 2.1 The Junta of Burgos and the Discussion of In spite of his numerous writings, today Palacios the Spanish Government in the Americas Rubios is mostly remembered for one particular document: the requerimiento,thenotoriousdecla- Palacios Rubios’ position regarding the Amer- ration of Spain’s supremacy over the newly discov- icas can be found in a systematic treatise, a text that ered territories, at the end of which the Spanish today is widely known under the title of De las islas conquerors set the Indians an ultimatum to ac- del mar océano, or its Latin title Libellus de insulis knowledge their new status as loyal subjects of the oceanis quas vulgus indias appelat. Spanish Monarchs or be subjected to Spanish During the 16th century, European powers like warfare. Because of the bloodstained history of this England and France began to doubt the validity of document, modern historians almost unanimously the papal donation that gave Spain (and Portugal) cast Palacios Rubios as one of the villains in the the exclusive right to access the American territo- drama of the Americas’ conquest. He is supposed ries.16 In Spain as well, the discussion about the to have regarded the Indians as slaves by nature, Spanish presence in the Caribbean was becoming barely human and consequentially without any morepronouncedasaresultofthesevereDomi- claims to liberty or property of their own lands.11 nican criticism of the political reality and the He is said to represent an »extreme position«, settlers’ atrocities in the West Indies, triggered by following Aristotle in the acceptance of the exis- the highly controversial Christmas sermon of An- tence of »slaves by nature« and finding them in the tonio de Montesinos in 1511. In the newly con- Indians who he purportedly described as »born secrated cathedral of Hispaniola, he told the gath- slaves« or »animals«.12 Javier Barrientos Grandón ered Spanish conquistadors that they were all tells us that he did not even consider the idea of heading to hell if they did not make ample resti- 8Martín de la Hoz (2013) 14. Fuente 10 Bullón (1927) 144 cites Las Casas’ 12 Cavallar (1992) 229 citing Fisch (1869) 163 sq. mentions in passing (1994) III.85, 2109 reminiscences: »Ya (1987) 227 sq. the posthumous print publication of dijimos que no estaban otros en este 13 Barrientos Grandón (2000) 45.