Mirow on Scots Traders and Spanish Law in East Florida

M. C. Mirow, Florida International University College of Law, is publishing Scots Traders and Spanish Law in East Florida in Colonial Adventures: The Making of Commercial Law and Practice (Serge Dauchy, Albrecht Cordes, Dave De Ruysscher and Heikki Pihlajamäki, eds., Leiden: Brill, Forthcoming). Here is the abstract.

This chapter describes commercial litigation in 1802 threatening Panton Leslie’s trading post at Picolata, East Florida, and the firm’s very existence in the province. It reveals the legal sophistication and institutional limits of local actors in a small northern outpost of the Spanish empire. The parties considered and argued about the proper interpretation of royal orders, governors’ edicts, official correspondence, and other documents that shaped the dispute. Concerning commercial legal culture, the issues debated in the pleadings centered on Panton Leslie’s compliance with its unique trade status as delineated in a series of royal orders and agreements. Despite their remoteness from imperial economic and commercial centers, the parties did not play fast and loose with the legal sources or arguments. The dispute reveals that the nature of commercial enterprise within empires was not simply one of economic benefit. Trading companies were woven into the political fabric of imperial administration. In this context, Sánchez argued that for Spain to coexists with native populations and eventually to have Indian populations join its polity, the foreign trading house of Panton Leslie had to be removed as an intermediary between them. This extensive legal battle also has some explanatory benefit on the shift of Panton Leslie away from trade to debt collection and property management in the early years of the nineteenth century. William Panton died in 1801 and Bowles’s attacks against Panton Leslie had significantly disrupted its ability to trade profitably. This suit must be added to these causes of the firm’s shift from Indian trade to debt collection and land management. The case surely absorbed time and resources. It also created an atmosphere of uncertainty under which the firm would have to operate. Every shipment and every transaction after the case would be subject to the greatest and most jealous scrutiny by at least a portion of Saint Augustine’s population. Panton Leslie’s success was a hollow victory.

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Castilla Urbano on The Salamanca School on Slavery

Francisco Castilla Urbano, University of Alcalá, has published The Salamanca School on Slavery: From Naturalism to Culture and Awareness as Max Planck Institute for European Legal History Research Paper Series No. 2020-02. Here is the abstract.

This article examines the reflections on slavery by a group of 16th-century scholastics considered members or followers of the so-called School of Salamanca. I show that a gradual process of critical awareness developed regarding both the concept of natural slavery and its justifications. After pointing to the fact that Native Americans and Africans were the first victims of the modern application of the concept of natural slavery, I identify the most important milestones leading up to the intellectual dismantling of the concept, effectively leaving it without a recognizable point of reference in the real world. In a further step, I point out that, despite the theory of natural slavery having been abandoned, the practices that protected legal slavery since antiquity persisted in Spanish America, especially when applied to African slaves. Some of these thinkers contributed to a first wave of accusatory pleadings against the persistent deception intentionally used by slave sellers and owners to circumvent the legal clauses dictated by the Spanish Monarchy governing the release of Africans unjustly deprived of freedom. Nevertheless, and despite the pioneering critiques offered by figures such as Bartolomé de Las Casas and Tomás de Mercado, the Salamanca scholars were not unanimous in their support of this criticism. In fact, we can identify in the writings of Francisco de Vitoria and Domingo de Soto the core of the legal and moral-theological argumentation utilized by many buyers and sellers all the way up to the 19th century. As I show, at this time, an alleged invincible ignorance about the conditions under which a slave brought to the Western Indies had been enslaved was sufficient to warrant a just title, thus granting the ownership to holders in the Americas.

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Duve on Pragmatic Normative Literature and the Production of Normative Knowledge in the Early Modern Iberian Empires in the 16th-17th Centuries

Thomas Duve, Max Planck Institute for European Legal History, is publishing Pragmatic Normative Literature and the Production of Normative Knowledge in the Early Modern Iberian Empires in the 16th–17th Centuries in I Knowledge of the pragmatici: Legal and Moral Theological Literature and the Formation of Early Modern Ibero-America (Thomas Duve and Otto Danwerth, eds., Leiden: Brill (2020, Forthcoming)).

This introductory chapter aims to show the role of ‘pragmatic normative literature’ in the historical regime of knowledge production in the early modern Iberian Empires during the 16th and 17th centuries and to define this literary genre in the light of this function. It starts with an attempt to present the legal history of the Iberian empires as part of a legal tradition that can be understood as a huge diachronic process of intertextuality, a long history of reiterative acts of translating normative information into normative knowledge. It outlines why normative knowledge produced by religious actors was of overwhelming significance within the knowledge economy of the 16th- and 17th-century Iberian empires and how practical theology, normative practices and pragmatic literature were intertwined. From this reconstruction of certain fundamental characteristics, it is possible to suggest a definition of ‘pragmatic normative literature’, to summarise the current state of research on the media that comprised this genre and to conclude with some remarks on why pragmatic literature might have been of special significance for governing an empire.

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Rosenmueller on Two Kingdoms in a Multi-Tiered Empire @MTSUNews

Christoph Rosenmueller, Middle Tennessee State University, has published Two Kingdoms in a Multi-Tiered Empire: New Spain and New Galicia in the Mid-Eighteenth Century as Max Planck Institute for European Legal History Research Paper Series No. 2018-10. Here is the abstract.

This article casts light on the structure of the Spanish empire by focusing on the relations between two American kingdoms, New Spain and New Galicia. New Spain comprised the heartland of colonial Mexico, and New Galicia lay to its northwest. New Spain enjoyed significant status and to a degree controlled New Galicia and other dependent realms. By the mid-eighteenth century, the viceroy of New Spain sent inspectors, appointed treasury officials, and even wrested the mining camp of Bolaños from New Galicia. Yet New Galicia insisted on its autonomy. Its president resisted the viceregal interventions and finally succeeded in recovering jurisdiction over Bolaños. The relationship between the two North American kingdoms therefore differed from that between other constituent regions of the empire. The kingdom of Quito, for example, was fully subordinate to the Peruvian viceroy in Lima. The empire can therefore be described as multi-tiered and not exclusively characterized by the hegemony of Madrid/Castile over its overseas possessions. Instead, the empire consisted of uneven and overlapping ties between a group of core kingdoms and their dependent territories, and their relations changed over time.

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Mirow on Spanish Law and Its Expansion

M. C. Mirow, Florida International University, College of Law, is publishing Spanish Law and Its Expansion in the Oxford Handbook of European Legal History (Pihlajamäki, Dubber & Godfrey, eds., Oxford: Oxford University Press, 2018) (Forthcoming). Here is the abstract.

This chapter provides an overview of the legal aspects of Spain's enterprise in the Americas. It addresses the uses of law in discovery, exploration and conquest; Castilian law before its expansion to new territories; the use of law to justify conquest; slavery and indigenous labour; institutions; sources of law; legal actors; and Spanish law after independence. It also presents some of the present debates surrounding the nature and construction of derecho indiano.

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Mirow on Juan Solórzano Pereira as a Christian Jurist

M. C. Mirow, Florida International University College of Law, is publishing Juan Solórzano Pereira in Great Christian Jurists in Spanish History (Rafael Domingo and Javier Martinez-Torron, eds.; Cambridge: Cambridge University Press, 2017). Here is the abstract.

This biography of the seventeenth-century jurist Juan Solórzano Pereira analyzes his major writings with particular focus on his justifications of Spanish activity in the Americas. The study addresses his views of papal authority, indigenous peoples, and Spanish rule through his use of Roman Catholic sources and doctrine.

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Aragoneses on Legal Silences and the Remembrance of Francoism in Spanish Law.

Alfons Aragoneses, Universitat Pompeu Fabra, is publishing Legal Silences and the Remembrance of Francoism in Spanish Law in Law and Memory: Addressing Historical Injustice by Law (U. Belavusau & A. Gliszczyńska-Grabias, eds.; Cambridge University Press, Forthcoming). Here is the abstract.

The political transition during the 1970s that allowed the continuity of Francoist institutions and legal behaviours beyond the transition to democracy also partially explains the Spanish anomaly in the Western European context. The legislator and the drafters of the Constitution decided not to completely erase the precedent Francoist law. They also opted for silence: no condemnations of the dictatorship and no references to the anti-Francoist opposition or the victims of Francoism are to be found. The consequence was what Boaventura de Sousa Santos calls a ‘palimpsest of legal cultures’: the lack of regulation led to the creation of a legal culture combining elements of the old Francoist system and the new democratic one.

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