- Introduction:Canon Law and its Practice in Colonial Latin America
The three papers included here, written by Ana de Zaballa, Pilar Latasa, and Gabriela Ramos, constitute a highly professional effort within the study of canon law in colonial Spanish America. These papers allow us to perceive how closely linked pastoral concerns, legal imagination, and judicial practices were during that period. To fully appreciate the importance of these four investigations, we must first briefly lay out the current state of academic studies in canon law in “las Indias Occidentales,” what today is generally called viceregal or colonial Spanish America.
The term ‘canon law’ refers to the proprietary and distinctive body of laws of the Roman Catholic and Apostolic Church, developed over the historical moments of the past two thousand years and across a panoply of regions. One of the most significant and intense developments of canon law occurred in viceregal Spanish America, where its trajectory was closely related to the establishment of the Church and reflected all of the region’s cultural density and institutional importance. Naturally, the body of canon law as exercised in Europe was not mechanically adopted in the New World. Instead, it underwent a process of adaptation that led to its distinctive features. That is, a complex process took place, starting with the reception of a religiously inspired and oriented legal system, going through a period of adaptation and modification, and ending with the creation of a specific body of laws for Spanish America. This development was enriched by both the ancient tradition and the social realities under which canon law was exercised, and aimed at the establishment of order and service.
Law (Ius) in colonial Spanish America was marked by plurality, as evident in three main aspects. First, there was the rule of four legal forms: statutory, customary, judge-made (this was case law, as known in the Middle Ages) [End Page 3] and doctrinal (scholarly commentary). Second, it was marked by the creation and implementation of this legal order by a wide variety of institutions and corporations, from the Spanish crown to the smallest Spanish, Indian, or Negro municipality, and from the powerful “Consulado” to the simplest confraternity in the Andes or on the central Mexican plateau. Third was the strong distinction between the law for temporal authority and the law for spiritual authority—canon law—which is the subject of our studies. Thus, the plurality of expressions and experiences of canon law posed no threat to the unity and coherence of jurisprudence, which derived from both the Ius Commune and the supreme legal authority of the crown.1
Overall, historical research into canon law, from the very first systematic studies conducted in the past century to the present, has presented significant achievements.2 The truth, however, is that despite all of these studies, we know very little about canon law as it was exercised in colonial Spanish America. Previous legal studies have focused on temporal legal authority and municipal law, but the systematic study of both canon and corporate law has been scant, or, rather, their systematic study started only a few years ago. Thus, we can state that a significant body of Spanish American law in those areas has not been researched.
It is worth noting that works dealing with colonial law only rarely focus on canon law. While some scholars sidestep the subject, others simply disregard it. They usually content themselves with mentioning in a rather unspecific way the Royal Patronage of the Indies, which hardly covers the whole of this topic. More thorough studies mention the provincial councils of the Catholic Church. To an uninformed reader—like most people resorting to these works for the first time—they give the false impression that canonical legal experience was a marginal one in New Spain and Spanish America in general.3 This misunderstanding becomes a matter of concern when we realize that in New Spain canon law was neither secondary nor parallel to the power of temporal [End Page 4] law. Both bodies of law were of Roman and Catholic heritage, and they had been interacting with and influencing each other since the dawn of the Middle Ages in Europe...