Tradition and Innovation in Knowledge Production: Gregorio López’ Commentary on the Siete Partidas (1555)

Gregorio López’ name is inextricably linked to his edition and commentary on the Siete Partidas,¹ and both his contemporaries and later jurists praised him for having added »the eternal explanation«² to this centrepiece of medieval Castilian legislation. The technique of commenting authoritative texts was the basis of the scholastic method, as practiced at the Spanish and Portuguese universities in the 16th century. It would be a profound misunderstanding to consider it as nothing more than an exercise in historical analysis. Rather, writing glosses or commenting was a method of making authoritative texts applicable to contemporary problems, circumstances and questions. In the Spanish context, this can be observed whenever problems posed by the developments in the Americas needed to be resolved. As missionaries and political administrators were confronted with new questions created by the American realities, juridical and moral solutions had to be found for which no blueprint existed in the medieval tradition. Commenting and interpreting authoritative texts authored by medieval thinkers was used as an intellectual tool to resolve contemporary problems. A closer reading of López’ commentary on the Siete Partidas confirms this approach, especially with regard to the presence of the Americas as a topic in the glosses. López himself was actively involved in the American politics of the Castilian crown, initially as an authorised representative of the Council of the Indies and later as a council member. The following analysis traces his work both as an editor and as a commentator of the Partidas to examine several examples of how López incorporated new questions into the framework of a medieval authoritative text.³

1. Becoming the »Spanish Accursius«: Gregorio López’ Education and Career

Gregorio López was born 1490⁴ in the village of Puebla de Guadelupe (Cáceres) as the son of a goldsmith.⁵ He received his first schooling at the Colegio de Gramática de Guadalupe (1496–1505), which was attached to the Monastery of Guadalupe.⁶ Since the school took on no more than thirty pupils, getting one of the spots was quite difficult and required having the right connections.⁷ In this case, Gregorio’s uncle, Juan de Siruela, was not only a monk there but also embarked on what a later biographer called a brilliant career in Guadelupe with excellent connections to the Castile court.⁸ |

Gregorio and the other schoolboys⁹ lived at the monastery. They had classes there, assisted in the celebrations of mass, and helped the monks in the administration of the sacraments.¹⁰ In such a close-knit community, Gregorio would have certainly heard stories about the momentous meetings that had taken place there in the 1480s between Christopher Columbus and the Catholic Kings. During their stay at the monastery in April 1492, Isabela and Fernando composed and signed the order to furnish Columbus with the caravels for his proposed journey to the West.¹¹ After his first voyage, Columbus returned to Guadelupe to fulfil his promise of giving thanks for his safe journey in the monastery’s church. And three years later, in 1496, the indigenous persons Columbus had brought to Spain were baptised there.¹² It is very probable that a six-year-old Gregorio took in the spectacle, and the tales of those exotic persons would certainly have echoed through the halls of the monastery’s Colegio for many years thereafter. Like Bartolomé de Las Casas, Gregorio López belonged to the generation who learned about the existence of the Indies and their peoples when they were children and continued to harbour this fascination into their adult and professional lives.

At the age of 16, Gregorio left Guadelupe to inscribe himself at the renowned University of Salamanca’s law faculty (1506). There is no information about his time at the university other than that he received his first degree in law six years later and finished his university studies with the licentiate (1515).¹³

López’ links to the monastery, where his uncle had in the meantime become prior, remained strong. The freshly minted licentiatus iuris returned to Guadalupe where he set himself up as advocatus, his most important client being the monastery itself.¹⁴ From 1535 onward, he was oidor at the Audiencia y Chancillería de Valladolid.¹⁵ Both affiliations put him into contact with the Castile court,¹⁶ and so in 1541, he was chosen as one of the members of the famous Junta de Valladolid, in front of which Bartolomé de Las Casas presented his Memorial against the encomienda practice. As a member of the Junta, López was one of the authors of the Leyes Nuevas of 1542. He was subsequently made a member of the Council of the Indies, not only overseeing the reshaping of the Casa de Contratación’s rules and regulations for the transport system between Sevilla and the Americas, but also the establishment of the Real Audiencia in Lima, the supreme court in the viceroyalty of Peru. After the promulgation of the Leyes Nuevas, the Crown ordered López to draw up a list of all indigenous Americans brought as slaves from the Spanish-American territories to Seville. If López found them to have been free persons before being brought to Spain against their will, they were to be set free; Indians who had been brought to Spain without a royal license were to be sent back to America.¹⁷ López complied¹⁸ by devising a regime that turned the American slaves into criados. This new status meant that while they were now free persons – no longer to be bought or sold – their labour was still bound to their former owners.¹⁹ |From the 1540s onward, Gregorio López was deeply involved in Spain’s colonial undertakings and its reverberations on both sides of the Atlantic.

Today, however, López’ name is almost invariably connected with the Siete Partidas, the Castilian law code compiled in the 13th century. He is the man behind the magnificent 1555 print edition of the Partidas, and it was this edition that received legitimacy by royal decree and was used both on the Iberian Peninsula and in Hispanic America until the 19th century.

2. Editing the Siete Partidas in the 16th Century

The Siete Partidas were put together in the mid-13th century by order of Alfonso X, king of Castile and Léon, and the work finished in 1265.²⁰ The issue of authorship remains an open question.²¹ To this day, more than 100 manuscript witnesses have survived, redacted in various languages such as Castilian and Catalan.²²

At the end of the 15th century, the Catholic Kings considered the Siete Partidas an instrument for achieving political unity and ordered them to be used in court practice.²³ The Leyes de Toro (1505) reaffirmed the practical importance of the Partidas: they should be consulted whenever local or special laws like ordenamientos, fueros or pragmáticas were lacking or insufficient to decide any civil or criminal case.²⁴ That opened the question as to which version of the text from the rich manuscript tradition of these so-called Pandectas Castellanas²⁵ should be invoked. The aim of establishing an official, authorised text during the 14th century was unsuccessful,²⁶ and jurists complained about corrupt readings of the text.²⁷ Moreover, the 13th-century »paper originals written in Gothic characters and language« had been transcribed and even translated into the more permanent medium of parchment. This was done using »modern« letters and a modernised language, which was – in the eyes of the renaissance-conscious, humanist jurists – the real reason for the large-scale corruption of the Partidas.²⁸

Accordingly, Alonso Díaz de Montalvo, one of the crown jurists of the Catholic Kings, worked on various compilations of Castilian legislation. As part of these endeavours, he published the first printed version of the Partidas in 1491.²⁹ He explains his intention in the prologue:³⁰ 1) to offer an expunged text, free from the viçios that had been introduced over the 200 years of copying and |translating,³¹ and 2) to add information about newer legislation that had superseded individual laws of the Partidas.³² This describes a twofold task of restoring Alfonso’s original Partidas – as faithfully as possible³³ – and supplementing it with more recent information, which would be marked additiones to make the temporal layers of the text transparent to the reader (fig. 1).

Though Díaz de Montalvo’s work was endorsed by the Catholic Kings,³⁴ it was never promulgated. This meant that the edition was released with no other endorsement other than Montalvo’s own scholarly authority³⁵ and thus enjoyed only a handful of editions in Sevilla, Venice, Alcalá de Henares, and Lyon. His Latin commentary on the Partidas was included only after his death (fig. 2).³⁶

Lorenzo Galíndez de Carvajal (1472−ca. 1528) was the next scholar to take on this task.³⁸ He had studied law in Salamanca and later occupied the chair for the Cátedra de Prima de Leyes there in 1497, which meant that a young Gregorio López might have followed his lectures.³⁹ As judge at the Real Audiencia y Chancillería de Valladolid and member of the Castilian Crown Council, he was involved in the redaction of the Leyes de Toro (1505). Galíndez enjoyed a particularly close relationship with King Ferdinand, who relied on his legal expertise.⁴⁰ This privileged position of trust continued with the young Charles I. During the 1520s, he helped Hernán Cortés in his political ambitions to become governor of the newly conquered territories in what was to become New Spain, and following this involvement in American affairs, Galíndez was made a member of the Council of the Indies in 1527.⁴¹ He worked on a recompilation of the Castilian legislation as well as on a re-edition of the Siete Partidas, but his work remained unpublished and was almost completely forgotten by 1550.⁴²

Francisco de Espinosa († c. 1551), like Galíndez oídor at the Audiencia de Valladolid,⁴³ proposed consulting the »paper originals written in Gothic letters and language, and to translate« the Partidas contained in them into contemporary Castilian as a means to weed out later corruptions and errors.⁴⁴ If he ever actually embarked on this task, the results of his work have been lost.⁴⁵

So by the time Gregorio López began his work on the Partidas in the 1530s or 40s (the exact date cannot be precisely determined), the time was simply ripe for them to be re-edited.⁴⁶ He took the Montalvo print edition as a starting point, additionally consulting a number of older Partidas manuscripts⁴⁷ as well as the juridical commentaries of them.⁴⁸ López’ aim was to refine, summarise and gloss the text,⁴⁹ and he opted for a free and more doctrinal wording of the Partidas.⁵⁰ In the summer of 1553, his work was finished and ready ||to be printed by Andreas de Portonariis, the renowned printer and bookseller in Salamanca.⁵¹ But the path to publication was not without its challenges: on the one hand, the print was extremely costly, three volumes in oversized folio with a complex layout of the main text (Partidas) and glosses (figs. 3, 4). A contemporary observer notes that the Cortes de Madrid asked the Crown to cover the printing costs due to the significant public interest in seeing López’ work finally in print to be used in all Castilian courts. But just when financial support was about to be granted, Galíndez de Carvajal’s son protested, claiming that the edition prepared by his father should be published instead of López’ work. This put a stop to the proceedings, especially as the printer may have feared that with manuscripts and the Montalvo edition around, the market for a costly new edition of the Siete Partidas might be too small.⁵²

While it is not clear how this dispute was resolved, López’ version was eventually printed by Andreas de Portonariis in the summer of 1555⁵³ (with a starting edition of 1000 copies),⁵⁴ whereas Galíndez de Carvajal’s work fell into oblivion. Moreover, a royal decree (7 Sept. 1555) authorised López’ edition and declared it authoritative, ordering that one copy was to be printed on parchment and kept in the royal archives of Simancas. Should doubt arise in the future about the wording of the Partidas, this copy could be consulted to learn la verdadera letra, the authentic wording.⁵⁵

Both the López edition and commentary were widely esteemed, and López was referred to as the »Spanish Accursius« who brought the Siete Partidas into the Spanish modern age.⁵⁶

3. Gregorio López the Editor

Commenting on the rule in the Siete Partidas that all new laws should be recorded in a book (SP1.1.19), López explains his role as editor: such a book documenting the legislation of a kingdom helps to verify the original wording of a law when the text has deteriorated over the course of many copying and reproduction cycles. For the Digest, this meant consulting the Codex Pisanus, as Bartolus claimed to have done. In his commentary on the Digest, the Italian jurist wrote that he went through the Digests to restore the original text. Following this example, López continues, »my humble person«, ego homunculus, did the same for the Siete Partidas: their texts were scrambled, he writes, with many sentences or lines missing completely in many of the leyes, while in other parts so many words were garbled or misspelled that it was impossible to make sense of the law. So, López explains, in obedience to God and out of love for ||his country, he undertook a fundamental restoration of the Partidas:

»I have worked tirelessly, I have pored over ancient manuscripts containing the Partidas, I have consulted learned men and the writings of the older sages⁵⁷ from which the Partidas were drawn.«⁵⁸

And through this painstaking work, he claims, the true text and splendour of the Partidas had been restored. That said, it is important to recognise that this was not the lonely effort of one man trying to produce a workable text of the Siete Partidas. López drew on the expertise and opinions of the jurists from the Crown Council. His diligence and the collective effort are both explicitly recognised in the royal decree (cédula real), in which López and his heirs were granted the licence for both the print edition and commentary (Valladolid, 7 September 1555)⁵⁹:

»[Y]ou have put much effort in [correcting] the many mistakes and errors that can be found in the printed edition [of Montalvo] and in the manuscripts; and you consulted the members of my Council about your work: the councillors viewed it, and in many cases, where the difference between the text versions could have caused a discrepancy in the law, they discussed for many days, and examined the matter and decided upon the right wording, and this is how it is printed now in this work.«⁶⁰

López’ aim was not an antiquarian one: he was neither interested in legal history nor in restoring the original wording of the Partidas as a historian’s exercise.⁶¹ Instead, one can understand his work as a multi-stage approach in search of the »right« text – a version of the Siete Partidas that carried the auctoritas, i.e. the weight of the original, while at the same time making the »Gothic language«, as Espinosa and other jurists referred to the »the usual combination of popular and learned elements which is characteristic of Alphonsine manuscripts«,⁶² more accessible. Therefore, López was not only interested in clearing away the faltas y errores of the medieval manuscript tradition, but also in presenting a text that made sense to contemporary jurists. This is also why he discussed probable readings with his fellow jurists on the King’s Council: a group of people committed to |meeting the political and juridical needs of their day and age, including an ever-widening empire on more than one continent.

In 1829, Puch y Portolés critically sums up the results of López’ work from an editorial perspective: »in this work we can never be certain if we read the words of King Alfonso the Wise or his commentator Gregorio López«.⁶³ In 1852, however, Rafael de Floranes claims to have gone through a 14th-century manuscript of the Third Partida containing handwritten marginal annotations by López himself (the writing is »very small and difficult to read«, Floranes reports)⁶⁴ without finding major changes López made to the substance of the original.⁶⁵ Clarification of this claim, however, would require an in-depth study of the manuscript tradition, the manuscripts López used, and the differences to the printed edition.⁶⁶ In any case, the royal decree authorising the printing of López’ edition of the Partidas also authorised the glosses, and until the middle of the 18th century, no edition of the Partidas was printed without López’ commentary.⁶⁷

4. Gregorio López the Glossator

4.1. The Technique of Glossating: How to get an old law book to answer new questions?

To the restored text of the Partidas, López added an extensive apparatus of glosses and thus used the fundamental method of »text processing«⁶⁸ that had been established at European universities since the High Middle Ages. With the exception of the leyes written in Castilian in the Partidas, the glosses are written in Latin. López wrote all of the glosses, most probably between 1544 and 1553, shortly prior to and during his time at the Consejo de Indias.⁶⁹ With regards to the structure, López follows the example of the great medieval glossators, producing a gloss apparatus that encompasses the Siete Partidas in their entirety.⁷⁰ It is decisive for such a gloss apparatus that the glossing not focus only on isolated fragments of the basic text, but rather is carried out throughout the entire text. The boundaries between composing and compiling can be quite fluid, as the producer of a gloss apparatus almost invariably includes earlier glosses in his editing or at least relies heavily on other authors in producing his commentaries. This point is aptly demonstrated by the wealth of citations López makes to medieval and contemporary jurists, canonists and theologians. López’ approach to commenting is inspired by the works of commentators like Bartolus de Sassoferrato, whom he cites many times in his own writings. The practical approach of this medieval Italian jurist echoes his own interests and intellectual needs: López’ work combines the spirit of jurisprudential doctrine, practical needs and the recognition of a special – political – quality of the text, resulting in a dynamic process of interpretation, adaptation and actualisation.⁷¹

The length of individual glosses varies greatly. Most of the glosses are very short, just like their medieval models. Some of them, however, approach the length of a small treatise,⁷² most famously the so-called Glossa Magna (SP2.23.2 ›acrescentar el pueblo en su fe‹),⁷³ in which López discusses the justification of Spanish dominion in the Americas in no less than ten folio pages, the majority of which use the small font usually reserved for the margins. Other long glosses treat not only topics of utmost political relevance – e.g. the relationship between the Holy Roman Empire and the Castilian Kingdom – but also topics such as the economic regime of matrimony, primogeni|ture, mayorazgos and inalienable rights were the subject of short, original treatises.⁷⁴ All in all, the commentary is unevenly distributed amongst the individual passages of the text, following the examples of 14th-century ius commune jurisprudence.⁷⁵

Moreover, the system López follows in composing his glosses for each law (ley) corresponds to the medieval tradition:⁷⁶

– an introductory gloss summarising the law’s content (introductio or casus legum in the classical glossator tradition),⁷⁷

– explanatory glosses (including philological word explanations, text-critical remarks and genuinely legal explanations),

– allegations (i.e. parallel and contradictory passages from other parts of the Partidas or the Corpus Iuris Civilis),

– further elaborations taking up a concept or technical term and situating it within the legal, political and economic reality of 16th-century Castile.

The introductory glosses tend to be marked with an asterisk instead of a textual reference, and López uses them as a general introduction to the topic of the following law (ley) and its main topic. They seem to serve the didactic purpose of making it easier for 16th-century readers to grasp the content of the medieval law, as well as offer concise introductions to basic legal concepts like »war« (guerra, bellum)⁷⁸ or »just war« (bellum justum⁷⁹).⁸⁰ In the course of his commentary, López regularly points to corresponding texts in the Corpus Iuris Civilis and the Corpus Iuris Canonici with their treatment in the Glossa ordinaria. He not only cites the doctrines of the principal glossators and commentators, and to a lesser extent those of the canon law authors, but also makes frequent references to Castilian legislation and court decisions.⁸¹ Antonio Pérez Martín counts more than 150 reference works cited by López that he thinks are »first-hand citations« (thus postulating López’ possession of an extensive library).⁸² He is also convinced that López not only knew of but, in some passages, also followed Alonso Díaz de Montalvo’s edition and commentary of the Siete Partidas.⁸³ The common reading of the glosses in Spanish historiography till this day see López elevating the texto vulgar de las Partidas to a level befitting the classical and imperial epoch he and his contemporaries lived in, intending to serve the Spanish empire.⁸⁴

The overall character of López’ commentary seems to be defined by the longer glosses that translate the concepts of the medieval Castilian legislation into the 16th-century context. López loosens the connection between the main text and the commentary – even more so than the Glossa ordinaria had done for the Corpus Iuris Civilis.⁸⁵ An intensive comparison of Partidas with the glosses is called for in each case; when reading |the long glosses, however, the Partidas are almost completely out of the picture. For example, when López discusses the justification of Spanish rule and Spanish wars on American soil,⁸⁶ the palabras claves of the law, ›acrescentar el pueblo en su fe‹, serve only as a hook for a long text that has little to do with interpreting the original law. The text of the law itself, which the gloss is supposed to explain, is no longer necessary for understanding the gloss.

4.2. The Americas in López’ Glosses

One field that clearly demonstrates the modernity of López’ undertaking is his inclusion of American topics into the glosses. Both the ius commune tradition and the 13th-century legislation of the Partidas are viewed as opportunities to treat the problems of that time. His experience in drafting the Leyes Nuevas and dealing with other American questions influence his interpretation of the Partidas,⁸⁷ which is evident in various passages of his commentary. Given his intention to produce a workable commented edition of the Partidas, adapted to the juridical requirements of his time, this comes as no surprise. The best-known example for the treatment of American topics in the commentary to the Partidas is the Glossa Magna (SP 2.23.2 ›acrescentar el pueblo en su fe‹) mentioned above.⁸⁸ Having the length of a short treatise, Spanish historians have dedicated a fair amount of attention to it as an early juridical position justifying the conquista of the America. In 2005, Ana María Barrero García published a critical edition of the gloss alongside a modern Spanish translation.⁸⁹ In the text, López does refer to Francisco de Vitoria’s Relectio de Indis, which the Dominican theologian held in 1539. This is the reason that the traditional reading of the gloss by Spanish historians paint him as »Vitoria’s first challenger« (el primer impugnador de Vitoria).⁹⁰

In his commentary on Partida 2.23.2,⁹¹ López starts off with a panoramic listing of the various juridical and canonist opinions, including those of Cardinal Cayetano, Hostiensis, Sinibaldus Fliscus (Pope Innocent IV), Oldrado de Ponte, Alfonso de Castro and others. He then turns his attention to Vitoria’s contemporary position as found in his (then recent) relectio. The Dominican’s arguments are carefully examined and the weak points highlighted. Finally, López states his own opinion in nine points: the Catholic Kings have, according to the papal donation, the right of conquest and peaceful dominion of the Americas, including the building of fortresses and encampments as centres of missionary and peaceful political activities. Should the indigenous population kill or forcibly expel the missionaries, a just war can be fought against them. However, neither their rejection of the faith preached to them by the missionaries nor their clinging to »idolatrous« practices are grounds for war, although some canonists would indeed insist on this point and consider this a reason for a just war. According to López, fighting the Indians would only be justified to hinder them from performing human sacrifices or to protect already converted Christians against mistreatment at the hands of their heathen neighbours or chieftains. López thereby rejects Hostiensis’ position that every war against all non-Christians is justified as well as the Pope’s authority. Regarding this conclusion, Alfonso García-Gallo had claimed that Vitoria’s and López’s respective approaches to the question should be understood as fundamentally coinciding.⁹²|

For the purposes of this article, however, I am more interested in finding other, less well-known passages in which the Americas enter into and influence the commentary of the Siete Partidas. More specifically, I want to ask how the increasing knowledge about the Indies and the ever-changing political challenges were incorporated into the structure of a ius commune-based commentary, and how was normative knowledge needed by the contemporary jurists developed?⁹³ Since there is no systematic overview regarding all instances in which López treated topics and concepts related to the Americas, in the following I will look at a handful of glosses where such topics do appear. Finding the following passages involved a certain degree of serendipity, and I look forward to carrying out a more systematic and in-depth search once the complete full-text transcription of the López edition and glosses is available as part of the Frankfurt Salamanca project.⁹⁴

4.2.1. Stretching the Frontiers: SP 1.prologue gl. ›Del Algarbe‹⁹⁵

The first occurrence is found in the comment to the prologue of the first Partidas: while the original text describes the territories of the Castilian crown in the 13th century, López comments: »Nowadays the frontiers have been widened and now include other nations and the Indians in the Americas who were unknown at the time when the Partidas were written. They live in a world which is new to us, on fertile, delightful, and healthy land.« López claims that Christ had stretched the Castilian frontiers across the ocean and invoked him to bless Charles V so that the king may be able to reign virtuously over all these very different peoples.⁹⁶

4.2.2. A New Patriarch for the Indies: SP 1.5.12 gl. ›otras dos‹⁹⁷

Shortly after this opening passage, the Siete Partidas include a passage with an explanation of why there are four patriarchs in the Catholic Church, namely Constantinople, Alexandria, Antiochia and Jerusalem, also detailing their privileges with regard to Rome (SP1.5.12). Here, López seizes the chance to talk about the establishment of Church structures in the Americas. When a nation newly converts itself to the Catholic faith, he writes, a new primas has to be installed among them, provided a sufficient number of new Christians are there. And so the Pope, he continues, has installed a Patriarch of the West Indies (Patriarcha Indiarum Maris Oceani).⁹⁸ He makes this reference to the Patriarch of the West Indies at a time when he is preoccupied with the work of Antonio de Fonseca, former bishop of Pamplona and president of the Council of Castile.⁹⁹ The patriarchate was conceived as a pure titular see, i.e. only in name and honour, without any jurisdictional or spiritual power.¹⁰⁰ Nevertheless, López puts it with discern|ible pride in the long tradition of Jerusalem, Constantinople and the other ancient patriarchates of the Catholic Church.

4.2.3. Indians as Personae Miserabiles: SP 1.6.48 gl. ›A dezir al Rey‹¹⁰¹

Continuing to reflect on the role of the Church, López advocates for an expansion of the political and judicial role of bishops in the Americas compared to their Spanish counterparts. If a provincial judge in Spain fails to deliver justice, the aggrieved party can turn to the king asking for a decision (parecer); in the Americas, the king is effectively out of reach due to the immense distances. For this reason, the king should enable the American bishops to stand in for him and allow them to handle such cases, even if they normally would not be within their ecclesiastical jurisdiction. Only in this way can the interests of socially vulnerable groups, i.e. those in danger of being oppressed by the powerful, be effectively addressed. López refers to the figure of the personae miserabiles, socially weak groups in the European ius commune tradition like widows, orphans, and the poor. The newly baptised Indians in the overseas territories also belong to this category, as López states explicitly.

This is quite remarkable for the time in which it was written, namely in the 1540s or early 50s. When Thomas Duve studied the adaptation of the ius commune category of personae miserabiles to the American context, he found that application of the category to Indians happened gradually from the 1570s onward.¹⁰² In his survey of a number of ecclesiastical and secular authors, Duve found that neither the American councils of México and Lima¹⁰³ nor authors like Francisco de Vitoria, Alonso de la Vera Cruz, José de Acosta¹⁰⁴ or Juan de Matienzo¹⁰⁵ used this category to describe the Indians.

In fact, Caroline Cunill has shown that the idea of stretching the concept of persona miserabilis to include Indians can be pinpointed to a specific moment: in the midst of the struggle over the implementation of the New Laws (Leyes Nuevas, 1542), it was first proposed in 1545 by none other than Bartolomé de Las Casas.¹⁰⁶ Acting as the Bishop of Chiapas, and together with the bishops of Nicaragua and Guatemala, Las Casas presented a petition demanding that the royal authorities give jurisdiction over the indigenous population to the ecclesiastical courts. If the civil authorities would not accede to their demand, the three bishops threatened to excommunicate all members of the relevant bodies, including Gregorio López and the entire Council of the Indies.¹⁰⁷ As a consequence of this incident, Las Casas was invited to the Council of the Indies to give a personal account of how and why the Indians should be under ecclesiastical jurisdiction. In his response, Las Casas developed the idea of the Indians as personae miserabiles, a juridical category offering a conceptual justification for the intervention of the ecclesiastics in indigenous affairs.¹⁰⁸ What he presented to the councillors was the demand of exclusive jurisdiction of the bishops over the indigenous population, »even if there is no negligence or malice or suspicion of the lay judge«, because those »miserable people [are] oppressed and wronged« and therefore had to be placed under the Church’s protection.¹⁰⁹ According to Las Casas, they had to be classified as personae miserabiles because they lived in a state of oppression and therefore their vulnerability and helplessness rendered them similar (but not equal) to widows and orphans, the core group constituting the miserabiles.¹¹⁰ This flexible application of the juridical concept aimed at taking the jurisdiction over the entire indigenous population away from the secular courts and the Crown and placing it in the hands of the Church.

López’ answer to this maximum demand is found in the gloss. On the one hand, he does agree that the indigenous population is in need of great|er protections against unwilling or hostile judges and magistrates. On the other, he is emphatically against transferring the jurisdiction over them to the ecclesiastical courts lock, stock and barrel, which would result in the total loss of royal jurisdiction over the indigenous vassals. As a result, López accepts the idea of extending the concept of the persona miserabilis to the Americas but with two major caveats. First, he insists on the traditional requisite conditions that only upon the failure on the part of the secular judge to deliver justice is the bishop authorised to move the case to his jurisdiction. Second, López refuses to apply the category of persona miserabilis to the entire indigenous population. No reference is made to any miserable living conditions under the encomienda regime; instead, the status as neophytes is crucial.¹¹¹

The argument for López’ equation of »newly baptised Indian = persona miserabilis« stems from a canon of the Third Council of the Lateran under Pope Alexander III. (X5.6.5 ›Iudaei sive Sarraceni‹). It threatens every Christian who robs a Jew or Muslim of his belongings after his conversion to Christianity with excommunication: persons who have become Christians, the council agrees, must have a better legal status and enjoy greater protections than in their former heathen condition. If the secular judge is slow or unwilling to protect the property of newly baptised persons, the Church can threaten him with excommunication to carry out his duties in a just manner.¹¹²

This is the basis of López’ argument. He does not explicitly cite the Glossa Ordinaria to the Liber Extra, but it is in line with his opinion: »This has to be understood that in any case, when the secular judge is negligent in doing justice, the Church must involve itself and force him to do it.«¹¹³ So, the medieval canon law here offers López the two elements he needs: the conviction that a new Christian merits special help and protection as well as the characterisation of the Church as the guardian of secular justice, duty-bound to monitor its performance and, if necessary, to intervene. Both elements come together in López’ position, triggered by the need to find a solution to the problem posed by the geographical reality of the great distances both to reach and within the American colonies.

4.2.4. Seneca’s Prophecy: SP 3.18.77 gl. ›Desde Seuilla fasta la Rochela‹¹¹⁴

A more general reference to the presence of Spanish ships and merchants in the Americas can be found in a comment on a ley concerning the topic of the contracts of affreightment, which were used between merchants and sea captains for the charter of the ship to transport the merchant’s goods (carta del afletamiento).¹¹⁵ The 13th-century ley provides a model text for the drafting of such a contract, citing the route »from Sevilla to La Rochelle« as a typical example. Commenting on this phrasing, López points out that at the time when this ley was written, the distances Spanish ships travelled were not nearly as long as contemporary 16th-century trips: »Because in our times we see that the words written by Seneca in his tragedy Medea have come true«, namely that »in later years a time will come when Oceanus shall relax his bars and a vast territory shall appear, and Typhis shall discover new worlds, and Thule shall be no longer be the remotest spot on earth«.¹¹⁶ Seneca’s Medea |was translated into Castilian in the 14th century and was also widely read in Latin among the erudite Castilians.¹¹⁷ But more specifically, López refers here to the so-called »Senecan prophecy«¹¹⁸ used by Christopher Columbus to describe his role in the »discovery« of the Indies. He also follows Columbus’ reading of the text, alluding to Typhis, the helmsman of the Argonauts, rather than to Tethys, goddess of the ocean.¹¹⁹ Columbus included the citation of Seneca’s Medea in his »Libro de profecías«,¹²⁰ which he started in 1502.¹²¹ The lengthy concoction of biblical citations, snippets from other authoritative authors as well as excerpts from his own logbooks and writings was explicitly written for the Catholic Kings.¹²² Thus, it may well have been in the court archives or the holdings of the Council of the Indies that López came across this remarkable collection in which Columbus tried to present his travels as predestined and implicitly foretold by the Bible and ancient authors.¹²³ López takes up the idea of imbuing Seneca’s words with a prophetic quality, but he references this to Hispania (not Castile as a political unit) as a nation deemed worthy of finding a way to the farthest corners of the earth and of spreading the Christian faith there – all to the greater glory of the king and for the greater good of the Spanish res publica. All in all, this gloss is an aside that does not really contribute information about a doctrinal or practical legal point; instead, it proudly underlines the Castilian and Spanish achievements regarding the Americas.

4.2.5. Morally Dubious Merchants: SP 1.4.25 gl. ›Persona menor‹¹²⁴

Pride regarding the extensive voyages of Spanish ships notwithstanding, López neither trusted the long distances nor the people who travel them. That becomes clear in his commentary on SP1.4.25, a ley about the obligation of confessors to properly evaluate the sins of those entrusted to them by taking into account status, age, economic position and the circumstances of each case. López quotes approvingly the 13th-century canonist Hostiensis to prove that rich people have more opportunities to sin because they have leisure and more possibilities to put their wealth to bad use. Merchants who travel to distant lands, thus are gone for long periods of time, also have ample opportunity to engage in sinful activities, for example, committing adultery (with many foreign women) and causing their wives to enter into adulterous relationships at home, too. As Hostiensis sums it up: everybody knows exactly how much harm travelling merchants cause. López, always wary of merchants who, in his opinion, simply cannot ply their trade without sinning,¹²⁵ agrees enthusiastically: this scathing view of long-distance merchants is even more pertinent to contemporary traders |who cross the ocean to America and return only after extremely long periods of absence. Thus the position of the famous 13th-century canonist is directly applicable: »take note of this to use against the merchants who travel to the regions in the Indies«, López urges his readers.¹²⁶

4.2.6. Marriage in the Indies: SP 1.1.2 gl. ›Casamiento‹¹²⁷

Wives left at home, floundering in their marriages leads us to López’ understanding of marriage in the Americas. López discusses what makes a marriage: first of all, it is a part of natural right (derecho natural), shared by humans and animals, which knows only the instinctive desire for mating that cannot be qualified by categories like sin or virtue, good or bad. It is simply a fact of nature and as such ethically neutral. This is why it is impossible to classify the mating of two animals, who only underly natural right, as sinful.

This is, of course, not the end of the story for humans. Not only do they need to take natural law into account but also civil law and the law of nations, which leads to a distinction between licit and illicit intercourse. Only the intercourse aimed at procreation, the raising of children and the passing on of the parents’ memory is licit and thus inextricably linked with matrimony. True marriage can only consist in a licit intercourse, and intercourse is only licit within the confines of matrimony. Citing Thomas Aquinas, López describes the complicated institution of matrimony as consisting of no less than four intertwined roots:

– first, matrimony is so indispensable as the basis of raising a family that God created the institution even before the Fall of Man in the union of Adam and Eve in paradise;

– second, God instituted matrimony as a bulwark against the sins of the flesh after the Fall of Man as part of the natural law (lex naturae);

– third, matrimony as a formal recognition of the will of two people to raise a family together has its root in Mosaic law, and

– fourth and finally, Christian marriage is understood as a sacrament representing the union of Christ and Church following the New Law of the New Testament.

After laying out this theoretical toolkit derived from theology, López turns to the actual question he wants to address: »From what we have laid out before, we can now answer the question if among the American Indians who took wives in their state as infidels and heathens existed a true marriage (verum matrimonium)?«¹²⁸ But why is this even a question? According to López, he had heard that‍‍‍ many American peoples were so extremely rude and ignorant (maxima ruditas & ignorantia) that they seemed like wild men from the woods (vt homines siluestres). This description recalls a passage from Cicero’s De Inventione. The Roman orator had claimed that mankind was so wild, uncultured (silvestres) and rude at the beginning of time (a principio seculi) that no enduring bond between a man and a woman existed and therefore no marriage at all:¹²⁹

»For there was a time when men wandered at random over the fields, after the fashion of beasts, and supported life on the food of beasts; nor did they do anything by means of the reasoning powers of the mind; but almost everyt|hing by bodily strength. No attention was as yet paid to any considerations of the religious reverence due to the gods, or of the duties which are owed to mankind: no one had ever seen any legitimate marriages, no one had beheld any children whose parentage was indubitable; nor had any one any idea what great advantage there might be in a system of equal law. And so, owing to error and ignorance, cupidity, that blind and rash sovereign of the mind, abused its bodily strength, that most pernicious of servants, for the purpose of gratifying itself.«¹³⁰

No less than the likes of Thomas Aquinas himself had lent his approval to this idea, explicitly stating that Cicero’s words could well be applicable to some groups of people. Discussing the question »Whether marriage is natural« (utrum matrimonium sit naturale«: Sent. 4 dist. 26 q. 2 art. 1) in his commentary on Peter Lombard’s Sentences, Aquinas opened his answer with the ultimately rejected view that matrimony is not natural, referring to Cicero’s vision of the marriageless wild men of a distant past:

»Furthermore, what is of natural law is found among people no matter what their state. But marriage has not existed in every state of man, for, as Cicero says in the beginning of his Rhetoric: Men were living in the woods in the beginning, and back then no one knew his own children, nor were there any particular wedding ceremonies in which marriage consisted. Therefore, it is not natural.«¹³¹

In the end, Aquinas rejected Cicero’s view of an early mankind without marriage as a universally acceptable theory: the Bible tells us about the universal beginning of mankind as God’s creation, and the institution of marriage was already present back then. But, the Dominican theologian did not completely refute Cicero’s musing about rude and ignorant peoples; instead, he saw a possibility that individual nations or peoples, as a result of their autochthonous origins and cultural development – or lack thereof – might fit this depiction.¹³²

Both Cicero and Aquinas, two recognised authorities, seem to agree on the possibility that peoples without natural reason and therefore without matrimony can indeed exist and that such peoples can be recognised by their rude and uncultured ways. And though reports from the Americas arrived painting the indigenous peoples in precisely this way, López does not share this opinion. He debunks this apparent congruity, rejecting Cicero’s view outright and Aquinas’ to an extent.

To be fair, Thomas Aquinas had already voiced doubts about Cicero’s idea (non autem es verum universaliter): »from the beginning of the human race Sacred Scripture reports that there were marriages«.¹³³ López takes Aquinas’ words and uses them to create a pasticcio (cf. Table 1), embedding his own opinion within the learned tradition while at the same time moving it forward: first, he rejects the idea that Cicero’s musings about primordial humans, their rudeness and lack of matrimony could be accepted as true in any universal sense. To show this he cites Aquinas nearly verbatim. In a second step, he also rejects, although less explicitly, Aquinas’ idea that the wild men Cicero describes might actually be observed in existing peoples. If that were indeed the case, those peoples would lack natural reason (ratio naturalis) – something that does not match his observations. He writes, »I find very difficult to observe« (quod reputo difficile ad cognoscendum) since all peoples are in discernible | possession of ratio naturalis and therefore are naturally led to organise their relationships into a matrimonium verum.

So, López does underline the working of natural reason in all humans, the indigenous Americans included, implicitly also confirming the common origins of European and American mankind.

4.2.7. Dangerous Climates: SP 2.22.7 gl. ›Biuir‹

In SP2.22.7,¹³⁴ López again finds an opportunity to translate Old World ideas to the Indies, this time about climate, its influence on people and the criminal behaviour of Spaniards towards Indians. The ley that López comments on here sets out that people who are employed to work in a certain geographical area have to be acostumbrados, e guisados al ayre, that is, accustomed and acclimatised to the climate of a place. If they are not acclimatised and compatible with the climate of the region they are supposed to work in, they cannot stay healthy in the long run (E si tales no fuessen, non podrian luengo tiempo biuir sanos).¹³⁵

In his glosses, López expands at length on the theme of the influence of climate on human character and physiognomy, citing Aristotle, Vegetius’ De re militari, and Thomas Aquinas.¹³⁶ The statement above about people not being able to stay healthy in a foreign climate offers him the opportunity to send a stern reminder to his readers: this passage applies to encomenderos and others who compel Indians from the colder regions to move to warmer parts and force them to work there. Many of those Indians have died, López writes, and the Spanish perpetrators have to be punished because they killed them as surely as if they had done it with their own hands.¹³⁷

5. Conclusion

After these impressions of López’ work as an editor and commentator of the Siete Partidas, let me offer some remarks to conclude. López’ intention in editing and commenting the Siete Partidas was to create an authoritative, practical foundation for Castilian jurisprudence: a patriotic undertaking as he was undoubtedly a »king’s man«.¹³⁸ To this end, the edition served the same purpose as the glosses: to produce a useful tool for contemporary lawyers living in the complex world of the 16th century; far from »rethinking what has already been thought«,¹³⁹ López’ aim is immensely practical. While respecting the original authority of the Partidas, he uses the glosses to fill in every conceiv|able gap left open in the medieval texts with knowledge both produced in and necessary for this time. The reader is repeatedly and directly addressed (»take note«, nota) to explicitly point out how to apply a given ius commune concept to a specific American question.

López cites not only juridical authorities in his glosses: Thomas Aquinas and Church fathers are mentioned throughout the text, and Erasmus is quoted several times as well. Among the jurists and canonists, he relies not only on Bartolus and Baldus but also on Sinibaldus Fliscus (Pope Innocent IV, † 1254), Hostiensis († 1271), Andrea de Isernia († 1316), Bartolomé de Saliceto († 1412), Juan de Ímola († 1436), Paulus de Castro († 1441), Panormitanus († 1445), Philip Decius († 1535) and others, thus drawing heavily on the ius commune’s Commentarist tradition. Moreover, he also cites contemporaries such as Francisco de Vitoria and Diego de Covarrubias y Leyva. All in all, López aims to base his arguments on a broad and dogmatically sound foundation. By taking the theological arguments into consideration – above all, those of Thomas Aquinas – he shows his intellectual nearness to the authors of the so-called School of Salamanca, with whom he had contact with as a member of the Council of the Indies, and possibly even earlier as a student.

The combination of the authoritative text edition, a profound knowledge of the ius commune and a decidedly practical orientation gave López’ work the scope and depth it needed to become so influential in the following decades.

In 1612, Francisco Bermúdez de Pedraza explained how to use López’ commentary for the study of law: to know law in Spain means to know the Siete Partidas, not only because of their local importance but also because, derived almost entirely from the ius commune, they open a path to this body of law.¹⁴⁰ To understand the ius commune in the Digests and to become acquainted with the various doctrinal controversies, Pedraza proclaimed that Spanish students could do no better than to study López’ glosses to the Siete Partidas.¹⁴¹ At a later point in time, López was harshly criticised for his immersion in the ius commune tradition, and he was scolded for not being sufficiently well-versed in historia y antigüedades de la nación,¹⁴² that is, neither providing any kind of historical introduction to the Partidas nor offering information on their origins, their profile or their textual traditions.¹⁴³ It should be pointed out, however, that this critique, typical of 19th-century legal-historical interests, entirely misses the point of López’ endeavour.

In the samples of glosses touching on American topics dealt with in this article, López’ conception of the West Indies and their peoples comes across as essentially positive: fertile lands with a healthy climate and populated by people with perfectly intact natural reason who are capable – if not always willing – of accepting the Christian faith and of realising basic institutions of human relationships already in their original state. At the same time, he is acutely aware that the indigenous population is in dire need of protection against life-threatening exploitation by unscrupulous Spaniards. Moreover, it also shows that stereotypes of savage peoples circulated since European antiquity do not do justice to the actual indigenous peoples of the Americas and therefore, according to López, are insufficient to serve as the basis of the Castile crown’s modern policy. His view is not only in line with the royal policy laid out in Isabela of Castile’s testament, but it also echoes the ideas of Francisco de Vitoria and Bartolomé de Las Casas, even if López did not and could not agree with the Dominicans’ more radical political demands. The findings suggest that a deeper analysis of the treatment of the Indies in the entirety of López commentary on the Siete Partidas can provide further insights into the process by which opinions and politics in the Council of the Indies and at the Castilian court are formed and can take us, to use the words of Daniel Panateri, on an »ocean of new ideas«.¹⁴⁴ Digitalisation and a combination of distant reading analytical tools and close reading will help us to systematically navigate this ocean. |

Appendices: Transcriptions of Glosses from López (1555)

Appendix 1: SP 1.6.48 gl. ›A dezir al Rey‹¹⁴⁵

Concord. cum authentico vt differentes iudices in principio colla. 9. Non ergo episcopus cognoscet de causa data negligentia iudicis secularis: sed rescribit Regi pro quo etiam facit ca. licet ex suscepto. de foro competen. Quid autem si isti essent miserabiles personae habitu & actu vel habitu tantum an si eis iustitia denegetur per iudicem secularem possint adire episcopum ut de causa cognoscat, vel an & tunc recurrendum sit ad Regem, vel proximum superiorum? Inno. in c. significantibus. De offic. deleg. ponit duas opiniones primam, quod tunc quando priores domini renuunt istis miserabilibus personis facere iustitiam, ecclesia seu iudex ecclesiasticus eos possit audire etiam non requisitis superioribus dominis, & sic intelligit Inno. cap. ex tenore de foro competen. & cap. de solatis [sic]. 87. distinct. & hoc ideo ne diu pro iustitia laborent & dicit Innocen. quod etiam dictae personae si habito respectu ad ea quae possident sint pauperes sed magnas haereditates, vel castra petant non venietur ad iudicem ecclesiasticum nisi prius deficiat secularis. postea vero ponit secundam opinionem dicens, quod alij dicunt, quod nunquam pro miserabilibus cognoscet iudex ecclesiasticus: nisi prius eis seculari iudice deficiente, sed si quis per violentiam eis bona auferat tunc defendet eos ecclesia & suis supplicationibus, & beneficijs iuuabit & sic intelligunt isti iura pro istis miserabilibus personis facientia. Primam tamen opinionem videtur firmare Inno. & Docto. communiter ita intelligunt Innocent. vt in illa opinio ne videatur residere: sed aduerte, quod petrus & Abbas antiquus intelligunt. dictum capi. ex tenore vt etiam in vidua requiratur negliegentia etiam superioris iudicis, & ita intelligunt illum text. sed Doctores, magis communiter volunt, quod sufficiat negligentia primi iudicis ne viduae & miserabiles personae cogantur exire ex proprijs locis alibi querentes iustitiam immo plus vult Innocen. quod si persona sit miserabilis habitu & actu vt viduae & pupilli pauperes, vel diuturno morbo fatigati: vel pauperes duntaxat (nam miserabiles dicuntur secundum Ioannem And. super quibus natura mouetur ad miserendum) possit etiam non data negligentia iudicis secularis trahere aduersarium coram iudice ecclesiastico. per textum, a contrario sensu. in dicto capitulo. significantibus vbi idem tenet Abbas capitul. super quibusdam in fine. de verborum significatione Hostien. vero in summa. de foro competenti. versi. expremissis in principio intelligit, quod in petitorio non cognoscat iudex ecclesiasticus nisi in defectum, sed quantum ad possessorium indistincte, vt in capitulo. ex parte. eodem titulo. & quantum ad defensionem, seu tuitionem ne opprimantur a potentioribus: in petitorio vero dicit mero iure ad Reges pertinere. 23. quaestione quinta. capitul. Regum. l. vnica. C. quando impe. inter pu. & vidu. haec tamen difficulter obtinerentur in practica in istis regnis in causis mere prophanis quae sunt de iurisdictione Regis & inter laicos, seu quando laicus conueniretur: aequum tamen videretur, vt in partibus multum remotis vbi de facili non possit adiri Rex, data negligentia iudicum prouinciae permitteretur Episcopis in causis miserabilium personarum procedere qui alias opprimerentur de facili a potentibus a quibus non possent iustitiam consequi & quod Rex ita permitteret & committeret tales causas Episcopis, vt etiam auctoritate Regia in illis procederent facit ad hoc text. in dicta authentica, vt differentes iudices. § si vero. & quod notat Hostien. in capitul. nouit de iudic. Abbas in capitul. licet ex suscepto colum. 5. de foro competenti, & saltem in partibus remotissimis, vt sunt terrae firmae, & insulae maris Occeani, vbi sunt Indi de nouo conuersi ad fidem, qui & dicuntur miserabiles personae secundum Innocentium in capitul. iudaei, siue Saraceni. de iude. permittendum hoc esset Episcopis illarum prouinciarum, confert quod dicit. S. Thom. secunda secundae quaestione. 40. articul. 2. in respon. ad |primum cum dicit, quod praelati debent resistere non solum lupis, qui spiritualiter interficiunt gregem: sed etiam raptoribus, & tyrannis, qui corporaliter vexant non autem materialibus armis in propria persona vtendo: sed spiritualibus secundum illus apostoli secunda ad Corinth. cap. 10. arma militiae nostrae non carnalia sunt: sed potentia a Deo, quae quidem sunt salubres admonitiones deuotae orationes: contra pertinaces excommunicationis sententia.

Appendix 2: SP 1.4.25 gl. ›Persona menor‹¹⁴⁶

Milites, rustici, mercatores, vel alij de quibus vi. latius per Host. in summa de poeniten. & remissio. charta. 8. vers. cui miles. vers. cui rusticus, & vers. cui mercator. & dicit ibi Host. quod vita rusticorum tutior est, quam quiescentium delitiosorum diuitum, & ociosorum, vnde versus diuitiis vti, res est aduersa saluti. paucos crede bonos, quos beat aeris honos, molities vestis, coitus, gula, cura quietis? & circa mercatores nota signanter cum (narrando in his quae peccant) dicit. Nono transferendose ad regiones remotas & nimiam moram trahentes, & ibi cum diuersis etiam alienis vxoribus adulterium committendo, & suis causam adulterij praebendo, de quibus quot mala proueniant dicit ipse, nemo est qui ignoret, quod tu nota contra mercatores transferentes se in regiones Indiarum Maris Oceani. ibique nimiam moram trahentes. De religiosis autem dic quod in tribus casibus in eodem genere peccati plus peccant quam laici. Primus cum religiosus peccat contra votum religionis, veluti fornicando contra votum continentiae, vel furando contra votum paupertatis, & contra praeceptum decalogi. Secundus cum peccat ex contemptu cum per id sit ingratus diuini beneficij, quo sublimatus est, ad perfectionis statum. Tertius propter scandalum, quia multi ad eius vitam respiciunt, sed si religiosus non ex contemptu, sed ex infirmitate vel ignorantia peccat non contra votum suae religionis, & occulte, & absque scandalo leuius peccat eodem genere peccati quam secularis, nam ex multis bonis qui facit quasi absorbetur peccatum illius si sit leue, & si sit mortale facilius ab illo resurgit propter intentionem quam habet erectam ad deum, quae licet ad horam intercipiatur de facili reparatur, & quia iuuatur etiam a socijs ad resurgendum. Haec sunt ex S. Tho. 2. 2. q. 1. 186. art. fi. & tradit Ioan. And. in c. accusatus. de haere. lib. 6. & nota quod non est iniungendum in poenitentia monacho ieiunium, in speciali propter scandalum fratrum. 20. q. 1. c. monachi. & §. fi. potest tamen puniri in ciborum abstinentia cum & sine scandalo possit comedere magis vel minus, si tamen esset monachus solitarius posset ei indici ieiunium. videas per Hosti. vbi supra charta. 16. co. 1. vers. si sit monachus, & de monachis. ibi etiam videri poteris, de excessibus aliarum personarum.

Appendix 3: SP 1.1.2 gl. ›Casamiento‹¹⁴⁷

[fol. 4r] Consensus animorum non est de iure naturali: quia de eo non participant animalia bruta: sed motus ad coitum, & ipsa carnalis commixtio, bene sunt de iure naturali. cum talis motus, & coitus fuerunt ante ius gentium, vel ciuile & de stimulis &instictu naturae praecesserunt. & de eo etiam animalia bruta participant, nec consideratur licitum ab illicito, nec per hoc potest dici, quod ius naturale inducat ad peccatum: quia eo iure quilibet coitus maris, & foeminae erat impunitus, & permissus. neque erat distinctio filiorum legitimorum & spuriorum, vt in authen. quibus modis natura. effi. sui. §. penul. & fina. postea per alia iura fuerunt distincti coitus, & aliqui reputati liciti, alij illiciti, & licitus coitus appellatur matrimonium, ex quo liberi procreantur, & memoria parentum conseruatur. sic Iacobus de Arena. quem sequitur Albericus declarat in dict. § ius naturale. & his dictis, videtur etiam assensisse Baldum ibi. dicit tamen, quod coniunctio illicita potest considerari dupliciter, vno modo quantum ad esse, alio modo quantum ad deformitatem esse. [fol. 4v] Primo modo, copula carnalis est de iure naturali: quia ius & bonum conuertuntur. Secundo modo, non est de iure naturali. Aduerte etiam quod nos: non qualemcunque coitum maris, & foeminae matrimonium appellamus, sed illum qui hominibus licitus est secundum rationem, qua Deus dotauit hominem mediante, scilicet matrimonio, & istud est, quod vult ista litera &. d. §. ius naturale: cum dicit quam nos matrimonium appellamus, vt sit |sensus, non quod ipsa maris & foeminae copula sit matrimonium, sed quod sine matrimonio etiam de iure naturali nobis licita non sit, vnde sequitur, nos ideo maris, & foeminae coniunctionem, matrimonium appellare eo, quod aliter quam ex matrimonio nobis licita non sit, & idem vult. S. Tho. 3. parte cum tractat de matrimonio. q. 4. arti. 1. quod matrimonium eo modo dicitur de iure naturali quo natura ad illud inclinat & mediante libero arbitrio completur, quia ratio naturalis ad ipsum inclinat dupliciter quantum, scilicet ad bonum prolis, non solum in generatione verum etiam in procreatione &disciplina cum secundum Philosophum, tria sunt quae a parentibus habemus esse scilicet, & nutrimentum & disciplinam. Secundo quo ad secundarium finem matrimonij qui est mutuum obsequium sibi a coniugibus in rebus domesticis impensum. Apparet ergo iure naturali hominibus illam tantum copulam conuenire: quae ratione, & iure subsistat, qualis est coniugalis, vt eleganter tradit Fortu. in dicto. §. ius naturale, & vult Ioannes Lupi Segouiensis in tracta. de matrimonio. colum. quinta. hoc idem vult Ioannes Fab. in principio institu. si quadru. paupe. feci. dica. dicens, quod cum homo sit ratiomalis a natura quicquid ratio dissuadet est sibi contra naturam. Cum igitur naturalis ratio suedeat foedus coniugij, & caeteros amplexus dissuadeat, non dubium facere hominem contra naturam caeteros sectando, quos ratio naturalis abhorret, & dicit Sanctus Thomas in quarto sententiarum distinct. 26. quod matrimonium prout est in officium, generandi prolem, quae erat necessaria, etiam peccato non extante: institutum fuit a Deo, etiam ante peccatum adae, vt patet Genesis. 2. Crescite & multiplicamini. &c. Sed vt est remedium contra peccatum institutum, fuit post peccatum tempore legis‍‍‍ naturae, Secundum vero determinationem personarum contrahentium, institutum fuit in l.‍‍‍ Moysi, Secundum vero quod est sacramentum repraesentans coniunctionem Christi, & ecclesiae, institutum est in noua lege, & secundum hoc est sacramentum nouae legis. Ex praedictis posset decidi quaestio an inter indos maris Oceani qui in sua infidelitate & gentilitate accipiebant vxores fuerit verum matrimonium: quia vt audiui in multis gentibus illarum prouinciarum erat maxima ruditas & ignorantia, & erant vt homines siluestres & sicut dicit Tullius in primo rethoricae homines a principio seculi siluestres erant, & tunc nemo sciuit proprias neque certas nuptias in quibus matrimonium consistit, & dicit. Sanctus Thom. 3. parte quaest. 41. artic. 1. supra relato in responso ad secundum quod verbum Tullij potest esse verum quantum ad aliquam gentem: si tamen accipiatur principium proximum illius gentis per quod ab alijs gentibus est distincta, ex quo videtur velle quod si in tali gente deficeret ratio naturalis quae inclinat ad matrimonium cum certa muliere, propter effectus supradictos non esset verum matrimonium, quod reputo difficile ad cognoscendum: quia regulariter in omnibus gentibus matrimonium producitur ad effectum per id ad quod naturalis ratio inclinat, neque dictum Tullij est verum vniuersaliter cum dicit de principio seculi: quia sacra scriptura recitat fuisse coniugia a principio humani generis.

Appendix 4: SP 3.18.77 gl. ›Desde Seuilla fasta la Rochela‹¹⁴⁸

Non erat tempore quo leges istae conditae fuerunt, ita spaciosa sicut nunc Hispanica nauegatio, nam temporibus nostris verificatum videmus in Hispania illud Senecae in tragedia Medeae, venient annis secula seris: quibus Occeanus vincula rerum laxet, & ingens pateat tellus: tephisque nouos detegat orbes, neque sit terris vltima Thule. Summo & omnipotenti deo placeat qui nouum orbem Hispaniae dedit Christiana eum religione perpetuis temporibus communire, summa cum felicitate regum nostrorum, & totius nostrae reipublicae vtilitate.