INTRODUCTION
In 1567, the ecclesiastical Council of Lima in Peru declared that, on pain of excommunication, “no one should dare to dig up the bodies of deceased Indians, even if they are infidels, nor destroy their sepulchers.”Footnote 1 Less than two decades later, a friar from the strictest reform branch of Franciscans received an audience with the Council of the Indies in Madrid, asking for support to do just that: to excavate an Indigenous tomb in Peru. In 1584, Friar Francisco del Castillo received the backing of Philip II (r. 1556–98), his Peruvian viceroy, and the highest court (audiencia) of Lima to rob a “burial of Indian chiefs” (“indios principales”).Footnote 2 He was not the only person, or even the only friar, to receive a grave-robbing license in colonial Latin America.
In the seventeenth century, the question of whether it was permissible to extract wealth from tombs was ancient and still unresolved in Iberian legal tradition. It was happening frequently throughout the Americas, so Juan de Solórzano Pereira (1575–1655), a judge (oidor) and councillor (consejero) with proven expertise in Spanish law, produced a moral and legal argument for why grave robbing had become licensed, licit, and even laudable. By Solórzano’s time, ancient tombs from Colombia to Peru had been systematically despoiled of their funereal artifacts, which were legally classified as buried treasure. Despite the canons of the Council of Lima, a bureaucratic process of staking a claim, excavating gold and silver burial goods, and paying taxes to the Crown on such artifacts began in the early sixteenth century and became ubiquitous throughout the Andes region. A small portion of these mortuary goods would survive intact in treasuries of Habsburg rulers and collections of European and colonial elites, but more typically they were melted into bullion and stamped with the royal seal before ever leaving American shores.Footnote 3
Throughout a long career in which he served as judge at the audiencia of Lima and councillor of the Council of the Indies in Madrid, Solórzano assisted in the creation of an official compilation of imperial law, the Recopilación de leyes de los reynos de las Indias (Compendium of laws of the kingdoms of the Indies), initiated in 1624 and completed in 1680.Footnote 4 He also composed several supplementary volumes explaining the theories and precedents behind the colonial legal system he knew intimately.Footnote 5 In his 1647 Politica Indiana (Politics of the Indies), a compilation and translation of his earlier work in Latin, he included a chapter entitled “Concerning Treasures, Huacas, or Burials, That Are Found in the Indies, and on Their Laws, and If It Is Licit to Excavate Them.”Footnote 6 Philip IV (r. 1621–65) endorsed Solórzano’s vast project, intended as a reference work for governing officials.Footnote 7
Deep within Politica Indiana, Solórzano deployed legal authorities as old as Plato and ancient Rome to lay out a justification for what had become a bureaucratic system of licensed grave robbing. He was not the only one to make such an argument in colonial Latin America, but his influential writing on the subject effectively concluded a longstanding debate about the morality of sepulchral excavations and reflects an ongoing and profound concern with legitimating the practice in light of a deep past. Debates about the legal rights of Indigenous Americans in the sixteenth and seventeenth centuries are well known, but far less explored is how heavily medieval law codes and juridical opinions weighed in the development and justification of licensed grave robbing.
Scholarly analyses of grave robbing in colonial Latin America typically center on why not only friars turn up in these licensed excavations but Indigenous Americans as well. Historiographically, scholars seem to take for granted that Spaniards would stop at nothing in their colonial quest for gold, so attention has largely been paid to the question of why Indigenous people would, apparently voluntarily, take up shovels and disinter the remains of their ancestors.Footnote 8 When the debate surrounding grave robbing has been considered, it has typically been treated as an early modern phenomenon: most studies start in the sixteenth century, with only brief nods to the medieval and ancient past.Footnote 9 But there was always ambiguity surrounding the permissibility of grave robbing in Iberian legal tradition; whether it was lawful to loot the non-Christian dead was an unresolved question for most of the Common Era.
In this article, I explore how licensed grave robbing evolved from medieval antecedents to become a legal form of treasure hunting in Latin America. Arguments against the permissibility of this practice were also rooted in medieval legal and ecclesiastical tradition. The Council of Lima drew directly from twelfth-century canon law to protect the graves of deceased indios, and royal jurists and dissenting religious thinkers had to grapple with the canons of the council, and the deep legal and ecclesiastical tradition it was arguing from, to justify this transformation in imperial policy.Footnote 10 This article shows that Solórzano used legal codes originally intended to address buried treasure from the Iberian past, grafting the contentious yet widespread phenomenon of grave robbing onto medieval treasure law. While Solórzano argued against other early modern authorities, like Bartolomé de las Casas (1484–1566), Dutch jurist Dominicus Arumaeus (1579–1637), and even the Church of Lima, in his own former jurisdiction, he intellectually wrestled with many authorities of the ancient and medieval periods as well. Centuries of legislation and ecclesiastical opinion that forbade grave robbing had long been challenged, but only in the mid-seventeenth century was the debate finally resolved, when statutes codifying licensed grave robbing into imperial law were written and disseminated.Footnote 11 Solórzano not only assisted in that codification, but in his own publications he deployed hand-picked archival records alongside laws and legal opinions over one thousand years old to argue that grave robbing was both legally permissible and philanthropic.
Underlying Solórzano’s argument were two Iberian legal traditions that merged in the colonial Americas. One of these was the increasingly robust legislation pertaining to treasure hunting. A defined bureaucratic system of licensing and government oversight began to regulate the excavation of buried valuables around Valencia in the thirteenth century and became both widespread and common in Castile and Aragon by the late Middle Ages. The second legal tradition was far older but in the process of eroding. This was the longstanding protection of graves under a variety of laws in ancient and medieval Europe, a legal convention built on numerous regulations that protected burial grounds of all kinds. Buried treasures from the Roman, Visigothic, or Moorish eras of Iberian history, as well as Castilian and Aragonese policies on Islamic and Jewish cemeteries, were of crucial importance in colonial Latin America. Ancient precedents informed the legal status of Indigenous American graves and burial artifacts.
I will begin by describing the phenomenon of colonial grave robbing undertaken by Franciscan and Augustinian friars, providing an anecdotal introduction to the legal problem that Solórzano would later address. I then introduce the legislative traditions that upheld funereal sacrality in Iberia, from Roman imperial times into the Middle Ages. I demonstrate how these protections were collapsing by the later medieval period while, at the same time, licensed treasure hunting was becoming increasingly regulated. In the second half, I explore how colonial American grave robbing evolved out of these two traditions and the considerable debate that followed. I end with a contextualization and analysis of Solórzano’s argument and its aftermath to demonstrate how, by the mid-seventeenth century, Indigenous American tombs had become legally classified as buried treasure and subjected to licensed excavation as a means of benefiting the living.
Grave-robbing Friars
In the 1580s, Friar Francisco del Castillo faced legal trouble surrounding his plan to excavate an ancient Peruvian tomb. He claimed that locals informed him, some ten years earlier, of a magnificent Indigenous sepulcher in the Valley of Jauja.Footnote 12 This valley was the site of a pre-Inca polity of the Wanka-Sausa culture, and many such tombs would likely have been visible there in Francisco’s time.Footnote 13 Francisco wanted to extract “many vessels, bars of gold, silver, and other valuables” from this grave of “Indian chiefs,” but he also reported, rather ambiguously, that it contained an “idol.”Footnote 14 He even drafted a treasure map (pintura) that depicted its whereabouts in the valley, a landscape that was and remains replete with the vestiges of antiquity.
When Francisco returned to Spain, he dutifully reported his plan to the Council of the Indies in Madrid, handing over his treasure map and requesting an excavation license. Philip II then wrote to his relative, the Count of Villar, concurrently serving as viceroy, governor, and captain general. Despite considerable effort to “diligently and secretly” verify Francisco’s claim, the viceroy was unable to locate the sepulcher Francisco described.Footnote 15 The king ordered the viceroy to continue his efforts, then summoned Francisco from his residence and demanded an explanation. “When questioned there very particularly,” Francisco told the council that the tomb was no fiction, for he had been inside it himself, but confessed that “he altered the depiction and did not provide it as it should have been in order for the [tomb] to be found.”Footnote 16 Knowing that his claim was now being taken seriously, he agreed to produce an accurate depiction; he even offered to “personally go to show it to whoever Your Majesty appoints and commands.”Footnote 17
Francisco was not just a Spaniard looking to get rich. He was a friar of the Franciscan order, and a member of the more hardline branch of discalced Franciscans, who went about in rough sandals and were devoted to strict poverty.Footnote 18 Dominicans of the sixteenth century like Bartolomé de las Casas typically spoke out against the disturbance of tombs as one of many colonial infringements on Indigenous sovereignty, but Franciscan and Augustinian friars actively participated in the colonial grave-robbing industry.Footnote 19 Francisco claimed that the golden funerary artifacts were not for him, a humble discalced friar, but were intended to help with “the sustenance and endowment of a monastery of women, committed to penitence, that he has sought to found in Alcalá [de Henares, Spain]…and to help its mother [house] which is old and very poor.”Footnote 20 He would give 96 percent of the find to the Crown as taxation, far more than what was required by law and perhaps the reason why his claim made it into the hands of such high-ranking officials. The rest was to be used for “pious works” (“obras pias”).Footnote 21 In his license, he was authorized to discover the tomb, extract all its contents, and thereby “remove from the indios the opportunity for idolatry.”Footnote 22
Francisco was under such scrutiny by the council not because of his intentions to rob an Indigenous grave, an activity that had been licensed by the Crown in colonial Spanish America since the 1530s, but because he admitted to falsifying the treasure map he submitted.Footnote 23 Beyond his botched drawing, his plans to donate the proceeds to a convent, and his indication that the “guaca and burial” in the Valley of Jauja contained an “idol,” made his cause worthy to the Council of the Indies. Guaca, or huaca, is a Quechuan term that carries a profoundly complex meaning in Andean religiosity but was reduced in colonial legalese to mean both an idolatrous shrine and a burial suitable for excavation. Francisco’s treasure was apparently never found.
Solórzano would describe this grave-robbing friar, Francisco del Castillo, in his work Politica Indiana. Solórzano argued that, even if the ecclesiastical Councils of Lima would not support it, the judges of Lima and the Council of the Indies had never doubted that grave robbing was permissible, and, indeed, that Francisco’s case and circumstances were certainly not unique. Royal consent for American grave robbing originated in the early days of conquest but became especially pronounced in what is now Colombia.Footnote 24 Friars and religious authorities had mixed opinions on such activities in the sixteenth century, but grave-robbing licenses were being issued in Peru, Ecuador, Colombia, and Mexico. Even in the heart of Mexico City, treasure hunters were authorized to excavate “all the gold, silver, stones and pearls, and other things that are and have been found in burials, sepulchers, burial mounds [ocues], or temples of indios as in other places where they usually offer sacrifices to their idols or other religious or hidden places,” agreeing to pay the Crown half of everything found.Footnote 25
Solórzano used Friar Francisco to show that royal authority endorsed grave robbing, and that friars themselves supported and engaged in the practice.Footnote 26 He cited another license from 1590 that called for the Viceroy of Peru to assist an Augustinian friar in searching for a treasure somewhere in Cuzco that, “according to rumors, amounted to more than twenty-five million [pesos].”Footnote 27 The case he referred to was not unique. Similar licenses survive, including one issued to Augustinian friar Antonio Martínez in 1615.Footnote 28 Like Friar Francisco, Antonio was apparently aided by locals, having “managed to convince and guide certain elderly indios, who are responsible for guarding the Treasures of the Incas and others hidden in guacas, to reveal and uncover them.”Footnote 29 Appearing before the Council of the Indies, he was found to “possess sufficient knowledge of the locations where they are situated, having identified their entrances and secrets in such a manner that they can be easily discovered.”Footnote 30 As a result, the Augustinian friar was licensed to excavate any “treasures of silver, gold, jewels, stones, and whatever other things might be found in the said guacas that pertain to the Incas, or are dedicated to the Sun, or to mamaconas or to other individuals, wherever they may be located, in churches [yglesias], convents [conventos], towns, residences, lakes, mountains, on royal or lordly lands, communal lands, or lands owned by individuals, granting you all that is discovered and taken out from them and taken advantage of.”Footnote 31 Evidently, the acceptability of treasure-hunting excavations knew few boundaries in the sixteenth and seventeenth centuries. Fray Antonio’s license does not explicitly designate the targeted huacas as tombs, but these terms were regularly conflated in Spanish documents. Licenses to extract treasures, “wherever they may be located,” indicate that such excavations only posed a problem when the claimant lacked, or failed to provide, sufficient information for a successful dig. Typically, even the most devout and ascetic friars could count on royal permission and even assistance in excavating sepulchers.
THE DESACRALIZATION OF Cemeteries AND THE RISE OF TREASURE HUNTING
Grave robbing in the Spanish Americas was problematic because many laws and ecclesiastical proclamations declared the illegality of such activity. This section seeks to explain a centuries-long trend of decreasing protection for non-Christian burials in medieval Iberia. Roman law typically considered burial grounds to be sacred sites. A growing number of jurists and legislators were advocating for the repurposing of non-Christian funereal goods in the medieval period, and reconquest-era transformations of Muslim and Jewish cemeteries in Iberia further eroded traditional mortuary protections. In the sixteenth century, richly ornamented Indigenous American tombs would fundamentally challenge customary non-Christian grave sacrality. While funereal protections weakened, a burgeoning system of licensed treasure hunting was becoming more defined, ultimately providing the blueprint for a legally permissible grave-robbing industry in colonial Latin America.
Ancient and early medieval laws known in Iberia since the time of Augustus (first century CE) and later compilations like the Opinions of Julius Paulus (third century CE), the Theodosian Code (438 CE), the Edictum of Theoderic (fifth or sixth century CE), and the Institutes of Justinian (530s CE) all provided some legal precedent for the sacrality of any gravesite, outlining harsh punishments for those who violated interments.Footnote 32 Acquiring relics was one potentially legitimate motive for opening graves, but even then, there was serious concern about disturbing bodies.Footnote 33
The issue of what specifically constituted grave robbing received considerable attention. Early on, reutilization of stones from funerary monuments was the main concern. Saint Gregory of Nyssa (ca. 335–94) legally differentiated those who violated a body and those who damaged a tomb for the purpose of obtaining spolia. Using the stones in a way beneficial to the community was technically pardonable, while disturbing bones in search of burial goods like jewelry was explicitly condemned.Footnote 34 In Iberia, the Fourth Council of Toledo in 633 designated all varieties of grave robbing unsavory, calling for the removal of clerics who destroyed tombs for spolia from their ecclesiastical duties.Footnote 35
Beyond the destructiveness of spolia hunting, there was longstanding concern about the sacrality of tombs and buried human remains. The Institutes of Gaius (second century CE) explain that even if a grave outside Roman Italy in provincial lands is not technically sacred to the Roman gods, it is treated by law as sacred: “Utique tamen etiamsi non sit religiosum, pro religioso habetur [Nevertheless, even if it is not religious, it is considered as religious].”Footnote 36 Justinian’s treatment of the same issue is more explicit in detailing that “any person can make a place sacred [religiosum] by their own will, when they bury a dead body in their land.”Footnote 37 The Opinions of Paulus specified that exposing a buried body to the sun in any way was criminal, whether in seeking building materials or burial goods.Footnote 38 The Edictum of Theoderic declared that any violation of a tomb for any reason was punishable by death.Footnote 39
There was at least some degree of debate about which graves were sacred and which might be permitted for excavation. One of Justinian’s selections from Paulus indicates that “the burial places of enemies are not sacred to us; therefore, we can use the stones taken from there for any purpose. There is no action for violation of such a tomb.”Footnote 40 Also in the sixth century, Cassiodorus, an expert in Roman law in early medieval Italy and a source heavily cited by Solórzano, encouraged grave robbing as a charitable activity, regardless of the identity of the interred. He wrote that if bodies were not touched and the artifacts were used for philanthropic purposes, then “it is right for gold to be taken from sepulchers where there is no master: Indeed, it is a kind of offence to leave behind hidden treasures for the dead, through which the life of the living can sustain itself. It is not greed to take away that for which there is no master to lament the loss of.”Footnote 41
As late as the twelfth century, authorities were still calling for the legal protection of tombs, even if the deceased might be considered an enemy. Despite the outlying opinions of Paulus and Cassiodorus, sacrality was still the general rule. Following the First Crusade, a series of papal decrees beginning with Pope Calixtus II (ca. 1120), known as Sicut Judaeis, explicitly forbade the disturbance of Jewish cemeteries, whether the intent of the tomb raider was to mutilate the body or simply to search for interred wealth.Footnote 42 This protection was reaffirmed by Clement III (r. 1187–91) in a decree that would be picked up and reinvigorated by the Council of Lima hundreds of years later: “In order to counteract the depravity and greed of wicked individuals, we decree that no one dare to desecrate or invade a Jewish cemetery, or to excavate buried bodies for money. If anyone, however, knowing the tenor of this decree, may it not happen, presumes to act against it, they will incur a risk to their honor and office, or will be punished by the sentence of excommunication, unless they correct their presumption with appropriate satisfaction.”Footnote 43 Thus, by the High Middle Ages, the royal and ecclesiastical voices speaking out against grave robbing, and supporting such declarations with harsh penalties, were many. Paulus and Cassiodorus were exceptions that complicate what was otherwise a strong legal trajectory toward grave sacrality. In thirteenth-century Castile and Aragon, however, exceptions to this consensus grew significantly.
Exposing a buried body to sunlight, stealing funereal valuables, or reusing stones from a tomb were largely forbidden by emperors, kings, and popes across the first millennium of the Common Era. Medieval grave robbers, except in cases of relic theft, could generally expect fines, excommunication, or even death. Even after anti-Jewish sentiment exploded during the First Crusade, popes continued to insist upon the sacrality of Jewish tombs throughout the twelfth century. This widespread hesitation to disturb the dead transformed in the later medieval period. After 1212, a major turning point in Iberian reconquest campaigns, Islamic cemeteries in Aragon began to be sold off with such frequency that it appears to reflect a transformation in legal and ecclesiastical opinion.Footnote 44
The Cathedral Archive of Valencia houses many documents detailing the rent and sale of Islamic burial grounds. Just three years after conquering the city, in 1238, Jaume I of Aragon (r. 1213–76) nominally handed over nearly all the mosques and cemeteries of Valencia to the cathedral, and sales, rental agreements, and property transfers followed.Footnote 45 Of the numerous Islamic burial grounds that existed in the independent taifa kingdom of Valencia before the conquest, many appear to have been turned into private gardens.Footnote 46 In 1245, for example, Constantino, a butcher, held a property received from the bishop “in which the said courtyard, houses, and garden were an ossuary of the Saracens.”Footnote 47 In 1250, Guillermo de Ratera and his wife Maria Barcelona sold their garden “which we have in Andarella and which was an ossuary of the Moors.”Footnote 48 These funereal sites are typically referred to in medieval documentation as ossuaries (fossaria)—a term that seems to refer to buildings in which bones were gathered. But in the context of these documents, and in studies of Islamic burial practices in medieval Spain more generally, these fossaria appear to have been true cemeteries rather than bone repositories, with individuals buried permanently in the ground.Footnote 49
Some of these properties passed between members of the clergy, as in 1270, when Guillem Ferrer, rector of the church of San Martín, sold the fossarium antiquam sarracenorum to Pedro Miquel, the local precentor.Footnote 50 Others were sold, rented out, or otherwise transferred from clergy to private individuals like the butcher Constantino, or Raymundo de Simayana and his brother Berenguer, who received from the canons of Valencia an “ossuary for use as gardens or houses” outside the city in Játiva in 1261.Footnote 51 These Islamic burial grounds were not explicitly authorized for grave robbing. Nevertheless, the rental or sale and transfer of such sites for use as houses and gardens—a process that would necessarily involve disturbing interred bodies—while acknowledging in the documentation that they were formerly cemeteries, indicates that legal opinions calling for the protection of non-Christian graves were becoming irrelevant.
Similar developments were taking place contemporaneously in the Kingdom of Castile. Before the Compendium (1680) set the standard for colonial Spanish governance, the most important law code of medieval Iberia (which was still binding for conquistadors arriving in the Americas) was the thirteenth-century compilation of Alfonso X (r. 1252–84), the Siete Partidas.Footnote 52 One law of the code reads as follows: “We decree that the place where a man is buried, whether he is free or a slave, is sacred, if he has been buried never to be removed, and if his entire body, or at least his head, is there; except where the party who has been interred was executed for some crime, or has been taken up from the place where he lay and been buried again without the order of the king; or where it is proved that he had committed treason against his lord, or against the country of which he was a native.”Footnote 53 The designation “whether free or a slave” is important because it implies that this legal protection could be applied to non-Christians. The slaves imagined in this legal code, finished sometime in the 1260s, would likely have been Muslims captured in reconquest campaigns, who made up the majority of slaves in medieval Christian Iberia.Footnote 54
In an entirely different Partida, the code doubles down on tomb protection, declaring the practice to be inexcusable, regardless of the motive:
Persons who do not let the bones of dead men rest in peace, but disinter them, are guilty of dishonor to the living and wrong to those who have passed from this world; whether they act through a desire to carry away the stones and bricks of which the monuments are composed, in order to construct some buildings for themselves; or to strip the bodies of their coverings or the other clothes in which they were buried; or to dishonor the corpse by removing the bones and casting them away or scattering them. For which reason we decree that anyone who is guilty of the outrages aforesaid, shall be punished as follows.Footnote 55
The punishments are fines, destruction of buildings made with funereal spolia, banishment, and death. But tacked onto the very end of this law, appearing almost as an afterthought, is an especially important qualification: “What we have stated in this law applies to the tombs of Christians and not to enemies of the Faith…those who commit any of the offenses aforesaid against the tomb of a Moor or a Jew within the king’s dominions, can be punished according to the will of the judge.”Footnote 56 This distinction was previously made only by Julius Paulus, in the third century, the first to declare that “the burial places of enemies are not sacred” to Roman law.Footnote 57 Alfonso’s royal jurists made heavy use of Justinian’s Digest when compiling the Partidas, especially when it came to matters of property, and it seems they found the term enemies to retain value in reconquest-era Castile.Footnote 58 By leaving the decision up to a judge, this section of the Partidas indicates that upholding longstanding traditions of universal grave sacrality was becoming discretionary. Following the reign of Alfonso, the destruction and excavation of Jewish cemeteries became widespread, and, despite medieval church councils and canon law explicitly forbidding it, many of these tombstone excavators were clerics and monks, participating in a destructive transformation that was both practical and symbolic.Footnote 59
During the expulsion of the Jews from Spain in 1492, Jewish cemeteries were sold or abandoned.Footnote 60 Perhaps with the Partidas in mind, Ferdinand (r. 1479–1516) and Isabella (r. 1474–1504) tried to keep these Jewish cemeteries out of private hands. In 1492, the monarchs decreed that, “because they are religious places, [the law] says that they should not be the goods of any individuals… you should not let nor consent to any of the said Jews selling the said synagogues or ossuaries…nor that any individuals should buy them.”Footnote 61 In their hesitancy to sell off such “religious places,” the monarchs would typically pass the cemeteries of Spanish Jews into the hands of local councils or religious institutions. Just as in thirteenth-century Valencia, however, they were often then sold off for their tombstones and real estate to interested private parties.
By the end of the fifteenth century, royal decree allowed and regularly authorized medieval Christians to dismantle non-Christian tombs, not only for the lands they occupied but also for their gravestones and masonry. In 1494, the prior and friars of the convent of Saint Thomas in the city of Avila were granted the Jewish cemetery “now and for all time and forever…to give, donate, barter, exchange, dispose of, and make use of, in it and with it, what they see fit and what will be of utility and profit.”Footnote 62 As the legal authority of Castile began to look across the Atlantic to the Americas, the debate about grave sacrality appeared to be over.
This transformation in legal opinions on grave sacrality was not exclusive to Christianity. Debates on mortuary etiquette in Islamic law stretch back to the death of Muhammad, and conflicting traditions occasionally led to the destruction and transformation not only of pre- and non-Islamic funerary monuments but of the tomb of the prophet himself.Footnote 63 Jewish legal tradition similarly featured centuries of discussion around mortuary practice. For example, Maimonides (1138–1204), the Andalusi expert in Jewish law, devoted considerable attention to burial practices in the Mishneh Torah, including the responsibilities of Jews for the non-Jewish dead.Footnote 64 Apart from the inclusion of epitaphs, both Islamic and Jewish tradition trended toward funereal asceticism, and graves were typically unadorned with burial goods.Footnote 65 This lack of interred wealth made the repurposing of gravesites and tombstones in medieval Spain decidedly unlike the licensed grave robbing that would develop in colonial Latin America, and grave robbing on the scale of the sixteenth-century Americas never happened in medieval Iberia.
While legal protection for non-Christian graves collapsed, laws governing the excavation of buried treasure were becoming more precise. Roman buried-treasure law stretches as far back as the emperors Nerva (r. 96–98 CE) and Hadrian (r. 117–38 CE), but most early legislation pertained to treasure that was already found.Footnote 66 As late as the eleventh century, the Usatges of Barcelona simply called for all peasants who discovered gold and silver to surrender it to their lords, rather than offering guidelines on the search for and excavation of treasure.Footnote 67 The Partidas contain a rudimentary policy for treasure hunting, which, like Alfonso’s position on grave robbing, was heavily derivative of the laws of Justinian. But for most of the Middle Ages, treasure law in both Castile and Aragon was relatively unrefined.Footnote 68 By the fourteenth century, however, documentation attests to a robust and active licensing system that far surpasses the Partidas in complexity and indicates that subterranean coin hoards and other buried treasures from the Roman, Visigothic, and Islamic periods were increasingly targeted in licensed treasure-hunting excavations.
In 1371, for example, a group of Jews from Castile received a license to form an excavation company and search for buried treasure in the mountains outside Valencia. King Pere IV of Aragon (r. 1336–87) was informed of their intentions, and he granted them a license to travel and excavate there under the direct supervision of the general bailiff of Valencia.Footnote 69 Not only do the licensing procedure and the requirement of governmental supervision resemble what would be outlined in the seventeenth-century Compendium of Laws, but the company was required to pay the same taxation rate that colonial grave robbers would: 50 percent.Footnote 70 These treasure-hunting policies are unlike the Partidas and the codes that came before them. They seem to derive from the treasure-hunting industry that evolved in Fatimid and Abbasid Egypt before spreading to Islamic Valencia and entering Aragonese and Castilian law following the conquest of that city in the thirteenth century.Footnote 71 Dozens of licenses and legal cases pertaining to the excavation of buried treasure survive from the fifteenth century, revealing that certain features of the colonial system of licensed grave robbing (claim staking, standardized taxation rates, and mandated supervision) were already centuries old.Footnote 72
Two separate phenomena appear to have converged in the Americas. On one hand, buried-treasure excavations became frequent in the later Middle Ages and the early modern period, and treasures were increasingly at the center of a variety of medieval legal documentation and taxation policies, providing a blueprint for a how a system of licensed treasure hunting could look in the Americas. On the other hand, the widespread sale, transfer, and transformation of Muslim and Jewish graves had normalized the disturbance of non-Christian burial grounds, setting the stage for more explicit grave robbing to become legally permissible. These two historical developments aligned in the legalization of American grave robbing under medieval Iberian treasure law.
Grave robbing in Colonial Latin America
Conquistadors began robbing graves quickly in the Caribbean and Mexico, but such tomb raiding was typically part of conquest rather than being a more ubiquitous and regulated occurrence.Footnote 73 In the 1520s and 1530s, Spanish colonizers discovered more widespread ornamental interment practices, observed by the Muisca, Zenú, and Tairona in what is now Colombia and by the Cañari, Chimú, Wanka, and Inca down the coastal Andes of Ecuador and Peru. By the 1530s, grave-robbing excavations in the New Kingdom of Granada (modern Colombia) were regularly licensed and taxed. The first targets were the tombs of the Zenú and Tairona people, who were independent from the Inca and still ruling at the time of Spanish arrival. Such tombs could apparently be found in abundance in the hinterlands of the colonial cities of Cartagena de Indias and Santa Marta.Footnote 74 Similarly adorned graves were soon to be found among different Indigenous communities throughout what are now Ecuador and Peru.
The visible presence of an American landscape full of richly ornamented sepulchers critically challenged legal traditions of grave sacrality. Spanish law quickly took to calling these sites huacas, a misnomer. Felipe Guaman Poma de Ayala, a Catholic Quechuan chronicler from the early seventeenth century, offered a deeper understanding of the concept and, like Solórzano, directed his writings toward the highest royal audiences.Footnote 75 He distinguished clearly between huacas, shrines containing idols for worship, and burials, which often contained valuables. For Guaman Poma, huacas were a popular, and idolatrous, focus of worship throughout the Inca realm. “They made sacrifices to these idols,” he explained, “gave them names and had festivals in their honor. Thus demons entered into the idols with the ceremonies done on the orders of the Inca in this kingdom.”Footnote 76 As for burial traditions, Guaman Poma explained that both Inca rulers and common people from several different regions were buried with offerings of gold, silver, and other valuables, often in the form of dinnerware.Footnote 77 In addition to having vessels for carrying food into the afterlife, “where they suffer from much work, hunger, thirst and cold or hot weather,” the bodies would often be adorned with gold and silver jewelry and have gold and silver placed inside their mouths.Footnote 78
Unlike Guaman Poma, the Spanish excavation licenses that governed grave robbing in Latin America typically made no distinction between huacas, sites of worship, and burials, usually listing them all as eligible for excavation. For example, in one especially lengthy legal case surrounding a large huaca in Peru, the magistrate in charge referred to the site as a “guaca or tomb or whatever else it might be…guaca or tomb or temple.”Footnote 79 Similarly, a 1583 excavation license in Mexico reads like a catch-all for sites of potential idolatry, while the 1615 license granted to Fray Antonio Martinez authorized excavation of buried treasures “wherever they may be located.”Footnote 80
The Councils of Lima may have protested, but many friars themselves understood huacas as idolatrous and, as demonstrated by Friar Francisco’s license, believed that stealing from them was a means to prevent idolatry.Footnote 81 This fostered the categorization of Indigenous tombs as belonging to “enemies,” the term used first by Julius Paulus, carried on in Justinian’s Digest, and then enshrined in the Siete Partidas, originally referring to pagans of the Mediterranean world but adopted by Alfonso X to apply to Muslims and Jews. Just as the first missionaries in Europe sought to extirpate pagan idolatry wherever they found it, so, too, could grave robbing prevent Indigenous Americans from engaging in or returning to non-Christian practices.Footnote 82
Though the friars Francisco and Antonio claimed to have been led to huacas by Indigenous informants, other evidence survives to suggest a considerable degree of physical and legal resistance on the part of Andean communities. The degree to which Indigenous peoples collaborated or resisted in grave-robbing excavations has been at the center of the existing historiography on this subject.Footnote 83 In one of the earliest and most successful cases of resistance, a group of indios from the New Kingdom of Granada requested that the king forbid the despoliation of their ancestral tombs. In 1551, Philip II, then prince, replied to the judges of the audiencia that, “because we are informed that some indios claim that what has been taken from certain graves that have been uncovered belongs to them, due to it having been from their ancestors, you shall ensure justice in this matter, so that the indios are not wronged and that which appears to rightfully belong to them is restored.”Footnote 84 At the risk of anachronistic analysis, the prince appears to be ordering the repatriation of excavated burial artifacts bound for Spain to an unspecified group of Indigenous people of Colombia, whom Philip designated as their rightful stewards.Footnote 85 The case indicates that the spread of grave robbing in South America and the subsequent protests on the part of Indigenous peoples were novel and challenging developments that the king was not entirely comfortable with, at least in the mid-sixteenth century.
In a well-studied legal case surrounding a contested excavation claim at what is now the archaeological site of Chan Chan, the largest of several pre-Incan ruins that survive along the northern coast of Peru, witness testimony reveals that Indigenous Chimú people outside of Trujillo used both physical and legal means to resist Spanish excavators.Footnote 86 A Spanish treasure hunter in this case explained under oath how Indigenous protests to huaca excavation were born from a devotion to demon worship: “they all mobilized crying and scandalized and they rioted and shouted and made a great fuss which led us to understand…that they placed all their faith and hope in the idols, in the devil, in the conjurings and superstitions of that place.”Footnote 87 When violence did not work or was misinterpreted as satanic devotion, a local cacique, or chief, sought his own excavation permit from the viceroy to save his community’s grave goods.Footnote 88 Scholars have demonstrated that the inclusion of Indigenous peoples within the bureaucratic system of grave robbing was a key development in its permissibility, a development that can be seen in the Compendium of 1680.Footnote 89 Even in pre-Columbian times, Incan leaders routinely disturbed the burials of their enemies and took treasures from a variety of Andean holy sites.Footnote 90
In the above-referenced call from Philip II for the restoration of disinterred burial artifacts to the native people of the New Kingdom of Granada, the prince made it clear that indios were planning to excavate tombs in the region themselves and that he forbade them from doing so.Footnote 91 In fact, as Delibes Mateos and Zevallos have shown, many excavation companies were led by, or were comprised exclusively of, Indigenous peoples.Footnote 92 Christianity had penetrated deeply into the Andes by the turn of the seventeenth century and had largely supplanted the Inca state cult, but many localized traditional Andean religious practices and networks of sacred sites and objects remained.Footnote 93 Scholars have explored how Indigenous participation can be seen as adaptation to onerous tributary burdens placed on the community—caciques sometimes used ancestral treasures like “a community bank”—with the goal of lessening the burden of colonial taxation on their peoples.Footnote 94 Nevertheless, the development of a system of licensed grave robbing was, as late as the seventeenth century, a phenomenon that still required additional legal and moral justification.
Locating the Legality and Morality of Colonial Grave robbing In A Medieval Context
By Solórzano’s time, people from a variety of backgrounds were excavating tombs in colonial South America, with both collaboration and opposition coming from Indigenous peoples in Peru and the New Kingdom of Granada. By 1492, the consensus seems to have been that the graves of non-Christians were not to be protected, but this position was not clearly maintained by religious and secular colonial authorities. Philip II’s 1551 order of restoration of burial goods reflects a degree of confusion. His letter to the audiencia begins as follows: “We have also been informed that some indios intend to engage in uncovering graves in those provinces under the pretext of a provision that has been granted in that regard. And because it is in the service of His Majesty that, for the present, there should be no engagement in the discovery of said graves, you shall ensure that no person or persons attempt to search for or uncover them, notwithstanding any provision or permission granted for this purpose.”Footnote 95 Though he ends by stating that grave robbing should not be permitted in the New Kingdom of Granada, he also acknowledges that a provision allowing it has already been granted, almost certainly referring to 1536. To let Solórzano explain, “In the year 1536, a general royal provision was issued by Emperor Charles V and Queen Doña Juana, his mother, that in all the provinces of the Indies, anyone could search for, inquire after, or examine the said huacas and sepulchers, under the condition that, of whatever was taken out of them for any reason, one would pay half to the king, without any deduction, and the other half would be left for the discoverer.”Footnote 96 The policy of splitting the find between discoverer and ruler had ancient roots, but this particular situation was new.Footnote 97 Given that completely contradictory orders were given directly from the king and prince just fifteen years apart, some uncertainty was justified. From 1536 to 1550, anyone, anywhere, could excavate graves. By 1551, no one was allowed to search for them.
The first ecclesiastical Council of Lima in 1551 ruled that “the huacas should be demolished, and in the same place, if it should be decent, churches be built.… We order that all the idols and shrines that exist in towns where there are Christian indios should be burned and destroyed…because of the occasion that there is for Christians to return to idolatry.”Footnote 98 Given the legislative ambiguity between huacas and burial grounds, this almost appears to be an authorization for grave destruction on behalf of the church, which runs counter to the prohibition issued by Philip II. Others must have thought similarly, because fifteen years later, the Second Council of Lima made a clarification, agreeing that “no one should dare to dig up the bodies of deceased indios, even if they are infidels, nor destroy their sepulchers, the bishops renewing in their dioceses the decree of Clement III, which imposes the penalty of excommunication on those who disturb graves. If anyone had the undue audacity to disinter the said bodies and thus leave them for dogs and birds to consume, let them incur excommunication latae sententiae and a fine of one hundred pesos.”Footnote 99 Invoking twelfth-century canon law pertaining to Jewish tombs, the Church of Lima was now on the side of Philip II, and the debate seems to have reached some resolution. The Third Council of Lima, held in 1582 and 1583, ratified all the constitutions of the Second Council of 1567, leaving the penalty of excommunication, originally intended for the violation of Jewish cemeteries in the wake of the Crusades, intact.Footnote 100
By the 1560s, Bartolomé de las Casas was also concerned with grave robbing, and was in agreement with the Council of Lima that robbing Indigenous tombs was wrong.Footnote 101 Las Casas, the conquistador turned missionary renowned as the “Protector of the Indians,” wrote two works that took up the specific topic of grave robbing: The Twelve Doubts (1563), a brief but widely circulated response to another Dominican missionary, Bartolomé de Vega, and The Treasures of Peru, a much larger but unpublished work.Footnote 102 Both declared firmly that robbing graves and huacas was a mortal sin. Tombs, for Las Casas, were deliberately constructed and filled for ancestral memory by people who could still claim a legitimate property right over them. He believed that the burials of Andean caciques should be treated in the same manner as the burials of the knights and lords of Europe, who were interred in chapels surrounded by “harnesses, shields, banners, armors of gold and silver,” and were laid to rest in finely decorated tombs, understanding that such funerary accoutrements were intended for posterity and not as abandoned property.Footnote 103
Las Casas’s arguments were challenged almost immediately. Just a few years after Las Casas penned the Twelve Doubts, Juan de Matienzo replied in his Gobierno del Perú (1567), in a chapter specifically concerning huacas. Matienzo, who had served as a judge at the audiencia of Charcas in what is today Bolivia, expressed a more nuanced understanding of huacas and burial sites, explaining that “those that are truly called huaca, and by another name, vilca, are oracles (oráculos) and shrines (adoratorios) that are typically located on very high hills where people worship stones or plants as idols, and they have idols made of gold and silver.”Footnote 104 But even if huacas are understood as places of worship distinct from graves, this distinction is irrelevant to Matienzo’s argument regarding grave robbing. The next paragraph begins, “Regarding these treasures found in these huacas or graves…”
This conflation occurred not from a lack of anthropological understanding but because both Las Casas and Matienzo were conceptually forcing Andean treasures into medieval Christian legal tradition. For early modern scholars, huacas or Indigenous burials were either idolatrous shrines, buried treasure, or abandoned property: “If there is no knowledge of whose burials they were or who their successors are, [Las Casas] said that these treasures could still not be removed without the Inca’s permission, as he was the natural king of this land.…The Bishop [Las Casas] presents another argument, stating that the Spaniards are tyrants and enemies of the indios.…From this, he concludes that everything done by the Spaniards and the king’s judges has no validity or effect, as it is done by tyrants.”Footnote 105 Though Matienzo does not refer to it specifically, his challenges to Las Casas hinge on interpretations of medieval law. Las Casas called the Spaniards and their king “tyrants,” and Matienzo claimed the opposite, that “the Incas were not the natural kings of these realms but rather tyrants.”Footnote 106 This is an important designation, because the Partidas indicate that tyrants, even if they obtained power by lawful means, could be denounced and their governments made invalid.Footnote 107 At the end of the chapter, Matienzo claims that “since they left [treasure in huacas] as abandoned property, the one who finds it acquires it according to the law.”Footnote 108 Again, he is invoking the Partidas here, which declare in the case of abandoned property that “whoever first takes possession of the same and removes it, shall become its owner.”Footnote 109
Matienzo’s specification that it is not known whose burials they were or who their successors are refers to the third Partida on buried treasure: “If said treasure is of such a nature that it cannot be ascertained who placed it there, or to whom it belongs, the party who found it” can take it and divide it with the property owner. However, “when someone has hidden it there, and can prove or establish that it is his,” the person who found it has no rightful claim to possessing it.Footnote 110 This precise distinction that a treasure be, by definition, ownerless, stretches as far back as Julius Paulus (third century CE), but was of crucial importance in medieval law and for Las Casas’s argument.
Las Casas has received scholarly attention for his expertise on a variety of ecclesiastical authorities, from Augustine to Saint Thomas Aquinas, but less explored is his use of medieval and ancient law in arguments defending Indigenous sovereignty.Footnote 111 While he uses Aristotle and the Book of Isaiah to make the more abstract parts of his argument (for example, that even Jesus’s tomb was to be made glorious), in both The Treasures of Peru and The Twelve Doubts Las Casas anchors his position in the fact that treasure, adhering to its proper definition and sense in the medieval period, means wealth buried by those “of which no memory exists, because of the antiquity of such times, of who was its owner, or to whom it belonged.”Footnote 112 In arguing this, he cites a medieval commentary on the Justinianic Code, quoting in its entirety the definition given by Joannes of Platea (ca. 1380–1427), echoing Julius Paulus over a millennium earlier.Footnote 113 Las Casas roots his argument in the particulars of whether such treasures were found by chance or through deliberate search and whether the discovery was made on the treasure hunter’s own property or that of another, because such qualifications were addressed directly in what he calls “the laws of the Emperors,” and prominent in the code of Justinian and the Partidas.Footnote 114
Las Casas and his opponents were using a Castilian legal code from the thirteenth century (but recently republished with commentary by a councillor of the Indies, Gregorio López, in 1555), itself derived from much older legal compilations, to argue about the nature of artifacts deposited in Andean burials and sacred sites.Footnote 115 This becomes clearer when considering the response of another of Las Casas’s opponents. In 1571, an anonymous author thought to be Fray García de Toledo, confessor to Viceroy Francisco de Toledo, wrote to the king, directly against Las Casas.Footnote 116 In many ways the argument put forth in this response was theological, stretching back to Aquinas and Augustine on the nature of idolatry. The best argument given by Las Casas, the anónimo explains, is that Indigenous burial goods belong to the church because their idolatry was misdirected but intended for the Christian God.Footnote 117
But a good portion of this argument was also rooted in the Partidas. The anónimo argues that interred valuables, not explicitly intended for the children of caciques as heritable objects, “belong to his Majesty as ownerless and abandoned property.”Footnote 118 Referring specifically to the passage permitting the disturbance of tombs of enemies of the faith, the anónimo writes that “these tombs of the indios and guacas are dangerous, though they are not properly called enemies.”Footnote 119 He then turns to laws pertaining to buried treasures, arguing that “these treasures belong to His Majesty and he can dispose of them as ownerless property, it is in the third partida…where it explicitly states that if someone alienated a thing from themselves, it belongs to the first person who finds it.”Footnote 120 Thus, while the conversation began by challenging Las Casas with references to the saints and to theological tradition, it ends in a discussion of medieval treasure law.
In the 1580s, powerful voices were spreading contrary opinions, and both sides enjoyed royal attention. Like Spanish colonial presence in the Americas as a whole, licensed grave robbing would require definitive legal and moral justification to accompany its publication in the Compendium of Laws. Las Casas was the most vocal opponent of such an industry, but ecclesiastical councils and even the king himself had reservations about an activity that was considered deeply problematic in Iberian legal and religious tradition. To resolve the issue, this thousand-year-old debate would have to be concluded not by friars, bishops, or even ecclesiastical councils but by someone with a stronger legal background than even Matienzo. The person for the task was Solórzano, councillor of the Indies and a juridical veteran with direct experience legislating and governing the lands where these treasure-laden tombs were found. The debate could not be resolved by the moralistic arguments of Las Casas or Matienzo; it required epistemological heavy lifting and digging through centuries-old legal codes and case examples.
SOLÓRZANO’S ARGUMENT FOR PHILANTHROPY
Great wealth was being generated by the pervasiveness of licensed grave robbing in Solórzano’s former jurisdiction of Lima, but debate and controversy followed. Solórzano aimed to demonstrate that the trajectory of Iberian legal custom was in favor of grave robbing, and that the Council of Lima, Las Casas, and others were only the newest iteration of dissent. He recognized legal loopholes in the Council of Lima’s declarations, leaned on the Partidas’s denial of protection to non-Christians, and reached even deeper into Iberian legal tradition to argue forcefully, once and for all, that grave robbing was a licit form of income because the authorities of antiquity always knew it to be so.
Solórzano begins the grave-robbing chapter of Politica Indiana with a subtle but powerful conflation. Rather than addressing tombs at the outset, he introduces treasure in the context of its medieval definition, the same cited by Las Casas. This definition had endured for centuries and was well known in the seventeenth century. Solórzano’s version reads, “Treasure, in its proper and rigorous definition, concerns any money, gold, silver, jewels, or other portable and precious things that their owners, of whom it is not possible to be informed, placed or hid in some hidden places, from ancient times, preserving them for the future.”Footnote 121 Solórzano begins with this definition of treasure because he argues that Indigenous tombs have no rightful owners, meaning they can and should legitimately be claimed with royal license. Solórzano then draws from those sections of the Partidas that deal with buried treasure and how it should be allocated and taxed. Linking medieval treasures of Iberia with ancient funereal artifacts of the Americas, he writes that “in Spain there are so many that remain from the time when the Moors ruled…and in these, our Indies, they have also found some, and there is news of others, of which the Indios know and do not want to reveal.”Footnote 122 He cites the case of discalced friar Francisco del Castillo, whose license he saw himself, to explain that “it has never been doubted in the Council [of the Indies] that such discoveries are licit.”Footnote 123
“The greatest, and most ordinary Treasures, that are usually sought and found in the Indies,” Solórzano explains, “are those…in Temples, shrines, and ancient burials of the Indios.”Footnote 124 He describes the common practice of making figurines of silver and gold and putting them in burials, an important piece of his argument justifying the excavation of these Indigenous tombs. Idolatry was key to legally invalidating the sacrality of a grave, as the notion that the tombs were sites of idol worship appears not only in Solórzano but in a variety of licenses, like Francisco del Castillo’s, and, ultimately, in the Compendium of 1680.Footnote 125 This qualification could subsume a tomb under the Pauline clause of the Partidas that excluded “enemies of the faith” from legal protection. Solórzano insists that huacas of the Andes region are deceptive, demonic places, and that, as far back as ancient Rome, no one had ever doubted that such treasures could be taken from the monuments of one’s pagan ancestors: “Ordinarily they were of ugly gestures, deformed, because the devil, in whose veneration they were created, liked to be worshipped with malignant figures, and through many of these he spoke to them, and responded, and they earned disciples of all kinds to sacrifice to them.”Footnote 126 Solórzano then appeals to the fifth-century Theodosian Code, which ruled that pagan temples (but not tombs) belonged entirely to the Roman treasury. Friar Francisco’s claim similarly misses no opportunity to mention the idols that sat in the tomb alongside jars of gold. Indigenous tombs and those who maintained them were charged with demonic idolatry. Valuables inside them were brought under the Partidas’s definitions of treasure and abandoned property, further desacralizing these sites and ripening them for robbing. “I still believe it to be certain that they can be searched without sin,” Solórzano explains, “because neither these Huacas nor shrines of the unbelieving Indios can be deemed sacred or religious places for us.”Footnote 127 But this was not enough; Matienzo and the anónimo had said the same decades earlier. To overcome the opinions of the Councils of Lima, Las Casas, and his own contemporary Dominicus Arumaeus, Solórzano had one more ace up his sleeve.
It was not only the fact that non-Christian tombs were being robbed that made the practice justifiable. Even if they were sacred and religious places, even if they were the tombs of Christians, Solórzano argues, the question is one of practicality and not religious difference. Cassiodorus, the expert in Roman law who served the Ostrogothic kings of early medieval Italy, had already encouraged grave robbing of all kinds in the sixth century CE as a philanthropic act that would benefit the community. Calling for the permissibility of any type of grave robbing, Cassiodorus was a lone but influential voice, resurrected over a thousand years later in a context he could never have imagined. But it served Solórzano’s purposes well:
[Cassiodorus] suggests that since those who placed them there did wrong by abdicating and foolishly or superstitiously separating them from human use…we would do well to extract them, apply them, and spend them for the public good…this is not for greed but rather justice, for when a particular owner cannot be found to whom they might pertain to and, as is just, being careful to not arrive at the ashes of the deceased or, if one is forced to move their corpses, they are covered back up and in decent form and they have peace and rest, but not idle wealth, for with the life they lost, so went the need and utility of having and trading it.Footnote 128
Here he reconciles the Second Council of Lima’s canon against the destruction of Indigenous tombs. Careful attention would be paid to the corpses found inside ancestral sepulchers, Solórzano insists, and so no harm would be done. Biblical indications that grave robbing was sinful were, for Solórzano, about greed, not about the act of grave robbing itself. He legally distinguishes tombs and their treasures to insist that all grave robbing could be a morally positive, almost philanthropic, act.
There were still holes in Solórzano’s argument, however. Indigenous sepulchers were not exactly ownerless but were maintained by attendants at least akin to proprietors. Solórzano himself acknowledged that “they have particular Indios who they call Miches who guard [the tombs] and look after them.”Footnote 129 Las Casas argued the same—that many tombs still had living stewards who could rightfully be considered owners.Footnote 130 Deceased ancestors were rarely regarded as completely dead in Andean religious tradition; they played active roles in the ritual, and even economical, lives of their descendants well into the seventeenth century. Throughout the Andes, ancestral burials were visited and worshipped at regularly. Descendants often claimed to see their ancestors walking around in the fields near their tombs, and the highest-ranking Inca authorities were regularly brought out in mummified form to participate in public ritual.Footnote 131 Some degree of mental gymnastics was required to consider the carefully maintained and guarded ancestral tombs of the Americas as buried treasures for which no owners could be found.
Solórzano was aware that the question of ownership was left insufficiently resolved, but this is why he ended his argument by holding up Cassiodorus. All grave robbing could be good. Not long before Solórzano’s publications on the subject, a Dutch jurist named Dominicus Arumaeus produced a legal analysis of classical funerary tradition, ultimately arguing against the permissibility of grave robbing and identifying the Spaniards as egregious violators of Indigenous tombs. “I do not understand why Arumaeus, having seen Cassiodorus’s letter…makes such a harsh invective against us,” Solórzano writes, “and I would like to ask him if he considers this excess or crime, of which he accuses us, to be more serious than that of the Romans, whom he praises so much.”Footnote 132 The Spanish were nothing like the Roman emperor Titus, who killed thousands of Jews to retrieve their valuables. For Solórzano, when it came to grave robbing they were not killing anybody at all; rather, they were fostering life by reclaiming wealth from those long deceased. Though Solórzano would pass away within a decade, during his life he was a key contributor to the codification of imperial law, and with his death the long debate over the permissibility of excavating the tombs of non-Christians was over. Sepulchral artifacts were buried treasures, and as such, they could be licensed for excavation by the Crown. The funereal artifacts of non-Christians were not only a means of extirpating idolatry. The extraction of buried treasures of all kinds was a valid source of income that should benefit the living.
CONCLUSION
The Compendium was created to put a clearly articulated body of laws into the hands of jurists across the empire. The law that authorized grave robbing was nearly one hundred and fifty years old by the time it was published, but in the wake of numerous contrary opinions that had spread since that time, Solórzano had to justify the inclusion of legislation that governed this contentious and unsavory industry. Charles II (r. 1665–1700) indicated that the Compendium was not aimed at all royal subjects; rather, the laws it contained were “appropriate and necessary for the government, administration of justice, war, and treasury, and all other matters that concern and are under the jurisdiction and care of the said Council of the Indies.”Footnote 133 Solórzano’s argument for philanthropy, like the Compendium as a whole, was made for and used by jurists and legal experts.
The opposition that mattered to Solórzano came only from the highest levels of society: Las Casas, the Councils of Lima, and the jurist Arumaeus. To produce the first major code since the Siete Partidas, dissenting authoritative voices new and old had to be contended with. Solórzano and his detractors researched and debated legal experts of the past and spilled considerable ink in letting historical authorities like Pope Clement III, Julius Paulus, Alfonso X, and Cassiodorus battle it out. When the smoke cleared, a clearly defined system of licensed grave robbing, ideologically justified in the name of philanthropy, could hit the press as part of the official handbook for the governance of the Indies.
In the colonial treasure-hunting hotspots of Colombia and Peru, the institution of grave robbing continued unchanged after the publication of the Compendium. For the rest of the colonial period, Indigenous and Spanish subjects continued to receive licenses to seek out pre-Columbian tombs and huacas, and documentation both before and after Solórzano’s time makes little mention of philanthropic motives.Footnote 134 In the minds of those who excavated graves from the sixteenth through the eighteenth century, royal taxation and the costs of excavation made the conversion of funerary wealth into usable income more of a practical than a moral calculation.
But some did invoke Solórzano, and, by extension, Cassiodorus, as in 1773, when the Chimú cacique Don Francisco Solano Chayhuac Casamusa requested permission to excavate the huacas and sepulchers of Chan Chan, just north of Trujillo, Peru.Footnote 135 Don Francisco was renowned for his legal skills, and he also had the assistance of Spanish nobleman and former magistrate Don Luis López Calderón in this case.Footnote 136 He framed his license request strategically, in light of the “miseries and humiliations” that he and his ancestors had faced, emphasizing that they had no other intention than “the benefit that may result for the Royal Treasury, as for the relief of these miserable people and myself.”Footnote 137 Don Francisco directly cited Solórzano and the Compendium to emphasize legal precedent, rather than moralistic justification, but following a list of reasons why the dig should be authorized, he asserted that “the treasures…have been hidden in the earth’s bowels for so many centuries without serving anyone.”Footnote 138 The repercussions of Solórzano’s argument were more ideological and juridical than practical, and the viceroy ultimately granted this license not for the benefit of the living but “in accordance with the provisions of the First Law, Title Twelve, Book Eight of the Compendium of these kingdoms.”Footnote 139
Only toward the end of the eighteenth century, in the period of Bourbon reform, did those with archaeological and even militaristic motives begin to target huacas for purposes other than treasure hunting.Footnote 140 The first legal measures to curb grave robbing in Solórzano’s former jurisdiction, though largely unenforced, would not appear until 1822, in a newly independent Peru.Footnote 141 Funereal treasures, destined in the colonial period either for the smelting house or for cabinets of curiosities, began to find wider dispersal in World Fair exhibition cases and national museums.Footnote 142 But legally authorized grave robbing, to say nothing of its illicit counterpart, continued throughout the Andes, and even in the mid-nineteenth century the idea that buried treasure should benefit the living still echoed in opinions of the highest-ranking Peruvian jurists.Footnote 143
Solórzano’s argument for the philanthropic benefits of grave robbing embodied more than a thousand years of legal traditions pertaining to graves and treasures. Solórzano informed and supplemented the creation of the Compendium, which served as the primary reference for colonial legislators until the Bourbon Reforms of the later eighteenth century and remained in legal effect until the independence movements of the nineteenth.Footnote 144 His chapter on grave robbing in Politica Indiana invoked centuries of precedent and deployed a curated selection of licenses and decrees, giving a firm moral rationale for the codification of a grave-robbing system. As a result, those who made use of this system would not have to argue on the basis of morality. Though it had been controversial for millennia, grave robbing was no longer threatened by recalcitrant legal or religious authorities, and it remained this way until well into the modern period. Backed by firm legislation, those who sought to excavate Indigenous American tombs for treasure could simply point to the Compendium without needing to acknowledge the long trail of legal opinion and precedent that stood behind it.
Jeffrey W. Baron is a PhD candidate in History at the University of Rochester. His dissertation explores the legal traditions and licensing policies governing the excavation of buried treasure in the medieval and early modern Hispanic world.
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