What we know of the Aztec social system, and the law courts specifically, comes to us from the Spanish chroniclers such as Bartolomé de las Casas and later historians such as Francisco Javier Clavijero Echegaray, Abbé Charles-Étienne Brasseur de Bourbourg and Francisco Carbajal Espinosa.
Hubert Howe Bancroft was an American historian and ethnologist who wrote, published and collected works concerning the western United States, Texas, California, Alaska, Mexico, Central America and British Columbia. Born on May 5, 1983 in Granville, Ohio, he passed on March 2, 1918 in Walnut Creek, California. His work The Native Races, Volume 2, explores Aztec society at length, relying on earlier writers and providing a comprehensive overview of an otherwise obscure topic.
What follows is Part XIV of the The Native Races, Volume 2, divided in the following topics:
- The Cihuacoatl, or Supreme Judge
- The Court of the Tlacatecatl
- Jurisdiction of the Tecuhtlis
- The Centectlapixques and Topillis
- Law Courts and Judges of Texcoco
- Eighty-Day Council
- Tribunal of the King
- Court Proceedings
- Remuneration of Judges
- Laws against Theft, Murder, Treason, Kidnapping, Drunkenness, Witchcraft, Adultery, Incest, Sodomy, Fornication, and other Crimes—
- Stories involving Nezahualcoyotl, Montezuma and King Nezahualpilli
Ideas such as kingship have a specific meaning in our society which may not be directly equivalent in the Aztec world. Nonetheless, it is important to keep in mind the similarities in process and outcomes that marked the foundation of the Aztec state to our modern notions of justice.Texcoco and “Mexicans” is a reference to the triple alliance, where Texcoco was the Athens of the triple alliance, and the Mexican were Tenochtitlan, the Sparta in the alliance system. Tlacopan is the third city in the alliance.
It has already been stated that among the Nahuas the supreme legislative power belonged to the king; the lawful share that he took in the administration of justice we shall see as we examine the system of jurisprudence adopted by them.
When treating of the Nahua judiciary the majority of historians have preferred to discuss almost exclusively the system in vogue at Tezcoco partly, perhaps, because it presents a nicer gradation of legal tribunals, and consequently a closer resemblance to European institutions than did the more simple routine of the Mexicans, but mainly because the materials of information were more accessible and abundant. Many writers, however, have not followed this rule, but throwing all the information they could obtain into a general fund, they have applied the whole indiscriminately to the ‘Mexicans,’ by which term they mean all the inhabitants of the regions conquered by Cortés. Las Casas, speaking of the allied kingdoms of Mexico, Texcoco, and Tlacopan, says that “their government and laws scarcely differed, so that whatever may be said of those parts concerning which the most information can be obtained, may be understood, and perhaps it is best to say it, as applying to all.” Although the number and jurisdiction of the law-courts of Mexico and Tezcuco differed, there is reason to believe that the laws themselves and the penalties inflicted were the same, or nearly so.
THE CIHUACOATL, SUPREME JUDGE.
In Mexico, and in each of the principal cities of the empire, there was a supreme judge, called cihuacoatl, who was considered second only to the king in rank and authority. He heard appeals in criminal cases from the court immediately below him, and from his decision no appeal was allowed, not even to the king. Whether or not the cihuacoatl pronounced judgment in civil cases is uncertain. According to Clavigero he did; Prescott, Brasseur de Bourbourg, and Carbajal Espinosa agree with Clavigero, and Leon Carbajal 483] cites Torquemada as an authority for this statement, but the fact is Torquemada distinctly affirms the contrary, as does Las Casas, from whom Torquemada takes his information. It appears, however, reasonable to suppose that in some exceptional cases, as, for instance, where the title to large possessions was involved, or when the litigants were powerful nobles, the supreme judge may have taken cognizance of civil affairs. Whether the jurisdiction of the cihuacoatl was ever original, as well as final, as Prescott asserts it to have been, I do not find stated by the earlier authorities, although this may have happened exceptionally, but in that case there could have been but one hearing, for the king, who was the only superior of the supreme judge, had no authority to reverse the decisions of the latter. The cihuacoatl was appointed by the king, and he in turn appointed the inferior judges. He held his office for life, and in addition to his regular judicial duties had charge of the most important affairs of government, and of the royal revenues. He was without a colleague, and must administer justice in person. Such was the respect paid to this exalted personage, that whoever had the audacity to usurp his power or insignia suffered death, his property was confiscated and his family enslaved.
The next court was supreme in civil matters and could only be appealed from to the cihuacoatl in cases of a criminal nature. It was presided over by three judges, the chief of whom was styled tlacatecatl, and from him the court took its name; his colleagues were called quauhnochtli and tlanotlac. Each of these had his deputies and assistants. Affairs of importance were laid in the first instance before this tribunal, but appeals from the inferior courts were also heard. Sentence was pronounced by a crier entitled tecpoyotl in the name of the tlacatecatl, and was carried into execution by the quauhnochtli with his own hands. The office of tecpoyotl was considered one of high honor because he declared the will of the king as represented by his judges.
THE TECUHTLI AND CENTECTLAPIXQUE.
In each ward of the city there was a magistrate called tecuhtli who was annually elected by the inhabitants of his district; he judged minor cases in the first instance only, and probably the office somewhat resembled that of our police judge. Appeal lay from him to the tlacatecatl. It was the duty of the tecuhtlis to give a daily report of affairs that had been submitted to them, and of the judgments they had rendered thereon, to the tlacatecatl, who reviewed their proceedings. Whether the tlacatecatl could reverse the decision of a tecuhtli when no appeal had been made, is uncertain, but it appears improbable, inasmuch as a failure to exercise the right of appeal would imply recognition of justice in the judgment passed by the lower tribunal. In each ward, and elected in the same manner as the tecuhtlis, were officers whose title was centectlapixque, whose province it was to watch over the behavior and welfare of a certain number of families committed to their charge, and to acquaint the magistrates with everything that passed. Although the centectlapixques could not exercise judicial authority, yet it is probable that petty disputes were often submitted to them for arbitration, and that their arbitrament was abided by. In case the parties could not be brought to any friendly settlement, however, the centectlapixque immediately reported the matter to the tecuhtli of his district, and a regular trial ensued.
The tecuhtlis had their bailiffs, who carried their messages and served summonses. In addition to these there were constables styled topilli, who arrested prisoners and enforced order.
THE EIGHTY-DAY COUNCIL.
In Tezcuco, although the kingdom was divided into many provinces, the higher courts of justice were placed in six of the principal cities only. Each of these tribunals was presided over by two judges, who were very high magnates and usually relatives of the king, and from these an appeal lay to two supreme judges who resided at the capital. These twelve judges were assisted by twelve sheriffs, whose duty it was to arrest prisoners of exalted rank in their own district, or to go in search of offenders in other provinces. The peculiar badge of these officers was a certain ornamented mantle; wherever they went they were held in great awe and respect, as representatives of the king, and seldom encountered resistance in the exercise of their functions. There were also constables in attendance on the courts, who acted with great diligence in carrying messages or making arrests. Every ten or twelve days all the judges met in council with the king, when cases of importance were discussed, and either finally settled, or laid over for decision at a grand council which convened every four Mexican months, making in all eighty days. On these occasions all the judges, without exception, met together, the king presiding in person. All being seated according to their order of precedence, an orator opened the proceedings with a speech, in which he praised virtue and severely reprimanded vice; he reviewed all the events of the past eighty days, and commented very severely even upon the acts of the king himself. In this council all suits were terminated, the sentences being carried out on the spot, and affairs of state and policy were discussed and transacted; it generally sat during eight or ten days. In addition to these judges there were magistrates of a lower order in all the provinces, who took cognizance of cases of minor importance, and who also heard and considered those of greater consequence preparatory to laying them before the Eighty-Day Council. The historian Ixtlilxochitl gives a somewhat different account of the Tezcucan tribunals, which, as it contains the only description given by the ancient writers of the halls in which the judges sat, I translate in full.
In the palace were two principal courtyards, the larger of which served as the market-place. The second courtyard was smaller than the first, and was situated more in the interior of the palace; in the centre of it a fire was kept continually burning. Here were the two most important tribunals in the kingdom. To the right of this courtyard, writes Ixtlilxochitl, was the supreme tribunal, which was called teohicpalpan, meaning, Tribunal of God. Here was a throne of gold, set with turquoises and other precious stones; before the throne stood a stool, upon which were a shield, a macana, and a bow with its quiver of arrows; upon these was placed a skull, surmounted by an emerald of a pyramidal shape, in the apex of which was fixed a plume of feathers and precious stones; at the sides, serving as carpets, were the skins of tigers and lions (tigres y leones), and mats (mantas) made of the feathers of the royal eagle, where a quantity of bracelets and anklets (grevas) of gold were likewise placed in regular order. The walls were tapestried with cloth of all colors, made of rabbits’ hair, adorned with figures of divers birds, animals, and flowers. Attached to the throne was a canopy of rich plumage, in the centre of which was a glittering ornament of gold and precious stones.
THE TRIBUNAL OF THE KING.
The other tribunal was called that of the king; it also had a throne, which was lower than that of the Tribunal of God, and a canopy adorned with the royal coat of arms. Here the kings transacted ordinary business and gave public audience; but when they rendered decisions upon grave and important cases, or pronounced sentence of death, they removed to the Tribunal of God, placing the right hand upon the skull, and holding in the left the golden arrow which served as a sceptre, and on these occasions they put on the tiara (tiara) which they used, which resembled a half mitre. There were on the same stool three of these tiaras; one was of precious stones set in gold, another of feathers, and the third woven of cotton and rabbit-hair, of a blue color. This tribunal was composed of fourteen grandees of the kingdom, who sat in three divisions of the hall, according to their rank and seniority. In the first division was the king; in the second division were seated six grandees; the first of these six, on the right hand, was the lord of Teotihuacan, the second the lord of Acolman, the third the lord of Tepetlaoztoc; on the left side sat, first, the lord of Huexotla, second, the lord of Coatlichan, third, he of Chimalhuacan. In the third division of the hall, which was the exterior one, sat eight other lords, according to their rank and seniority; on the right side the first was the lord of Otompan, the second was the lord of Tollantzinco, the third the lord of Quauhchinanco, the fourth the lord of Xicotepec, and on the left side were, first, the lord of Tepechpan, second, the lord of Chiauhtla, third, the lord of Chiuhnauhtla, and fourth, he of Teiotocan.
There followed, also, another hall, which adjoined this on the eastern side, and was divided into two parts; in the inner and principal division, were eight judges, who were nobles and gentlemen, and four others who were of the citizen class; these were followed by fifteen provincial judges, natives of all the cities and chief towns of Tezcuco; the latter took cognizance of all suits, civil or criminal, which were embraced in the eighty laws that Nezahualcoyotl established; the duration of the most important of these cases was never more than eighty days. In the other, or exterior, division of the hall, was a tribunal composed of four supreme judges, who were presidents of the councils; and there was a wicket, through which they entered and went out to communicate with the king.
Besides these various tribunals for the general administration of justice, there were others that had jurisdiction in cases of a peculiar nature only. There was a court of divorce, and another which dealt only with military matters; by it military men were tried and punished, and it had also the power to confer rewards and honors upon the deserving; the especial jurisdiction of another tribunal extended over matters pertaining to art and science, while a fourth court had charge of the royal exchequer, of taxes and tributes, and of those employed in collecting them. Of some of these institutions I have already had occasion to speak. The mode of procedure, or daily routine, in the law courts of Mexico and Tezcuco was strict and formal. At sunrise, or as some say, at daybreak, the judges took their places in court, squatting upon mats spread for the purpose, usually upon an elevated platform. Here they administered justice until noon, when they partook of a meal supplied from the royal kitchen. When this was over and they had rested for a short space, business was resumed, and carried on during the greater part of the afternoon. Punctuality on the part of the judges was strictly enforced, and he who absented himself from court without good cause, such as illness, or royal permission, was severely punished. This order was observed every day, except when the presence of the judges was required at the public sacrifices or solemn festivities, at which time the courts of justice remained closed.
EXAMINATION OF WITNESSES.
Minor cases were conducted verbally, the parties producing their witnesses, who testified under oath for the complaint or the defence. The testimony, under oath, of the principals was also admitted as evidence; and one writer even asserts that the defendant could clear himself by his oath; but it is plain that if such were the case conviction would be very rare. In cases of greater importance, especially in civil suits where the possession of real estate was involved, paintings, in which the property in dispute was represented, were produced as authentic documents, and the whole of the proceedings, such as the object of the claim, the evidence, the names of the parties and their respective witnesses, as well as the decision or sentence, were recorded in court by notaries, or clerks, appointed for that purpose. A witness in an Aztec court of law occupied a serious position. In the first place the judges are by all writers said to have been particularly skillful in cross-examination. They seem to have made it an especial study to harass witnesses with pertinent questions and minute details; in the next place the punishment for perjury was death, and perjury among these people consisted in making a false statement when under oath, without the possibility of being saved by a legal quibble; in addition to this, superstition attached great weight to the oath which every witness was obliged to take, and which consisted in touching the forefinger to the earth and then to the tongue, as if to say, as Las Casas expresses it: By the goddess Earth, who supports and affords me sustenance, I swear to speak truth. This oath was considered to be very sacred and binding, and is said to have been rarely violated. Whether counsel or advocates were employed is a disputed point, some writers asserting distinctly that they were, and others that they were not. Veytia states that the complainant and defendant were sometimes confronted with each other, and compelled to argue the case before the court, no other person being allowed to speak the while. The judges heard and passed sentence by a majority of votes, each giving his decision aloud. If the trial took place in an inferior court, a disagreement sent the matter on appeal to a higher court; if it took place in the first instance before a superior tribunal, it was appealed to the great council of the emperor. The same writer also says that where a serious public offense had been committed, the witnesses were examined, and sentence was immediately passed without giving the accused time to defend himself. We have already seen that the duration of suits was limited to eighty days, and generally they terminated much sooner than this, all possible expedition being always used. The better to avoid bribery and corruption, it was expressly forbidden for a judge to receive presents, no matter how trifling, and he who violated this rule was deposed from office, and otherwise punished with exceeding rigor.
The way in which the judges were paid for their services was peculiar. A certain portion of land was set apart for their exclusive benefit, which was cultivated and harvested by tenants, who doubtless were allowed to retain a part of the produce in return for their labor. These lands were not inherited by the son on the death of the father, but passed to the judge appointed in the place of the latter. Veytia does not mention these lands; he says that the judges had no fixed salary, but were paid according to the king’s pleasure, more or less, in proportion to the size of their families, besides which the king made valuable presents when the Eighty-Day Council met, to those who had performed their duty to his satisfaction.The allowance was in all cases made amply sufficient, that there might be no excuse on the ground of poverty for a judge receiving presents or bribes. They held their office for life, and were selected from the higher classes, especially the superior judges, who were generally relatives of the king, or even members of the royal family. None were eligible for the office who were not sober, upright men, brought up in the temples, and who were well acquainted with court life and manners. A judge who became drunk, or received a bribe, was three times severely reprimanded by his fellow-judges; if the offense was repeated, his head was shaved publicly, a great disgrace among the Aztecs, and he was deprived of his office with ignominy. A judge making a false report to the king, or convicted of receiving a large bribe, or of rendering a manifestly unjust decision, was punished with death. All this machinery of the law was dispensed with in Tlascala, where all disputes and difficulties were promptly settled by certain old men appointed for that purpose.
ANECDOTES OF NEZAHUALPILLI.
A love of impartial justice seems to have characterized all the Aztec monarchs, and, as we have seen, the laws they enacted to ensure this to their subjects were severe in the extreme. No favoritism was allowed; all, from the highest to the lowest were held amenable to the law. A story, illustrating this, is repeated by nearly all the old writers. In the reign of Nezahualpilli, the son of Nezahualcoyotl, who were accounted the two wisest kings of Tezcoco, a suit sprang up between a rich and powerful noble and a poor man of the people. The judge decided against the poor man, who thereby lost what little he had, and was in danger of having to sell himself as a slave to procure subsistence for his family. But suspicion of foul play having been aroused, the king ordered the matter to be thoroughly investigated, when it transpired that the judge had been guilty of collusion with the rich man; so the king commanded that the unjust judge should be hanged at once, and that the poor man’s property should be restored to him.
Neither were the rulers themselves, nor their families, exempt from observance of the law, and instances are not wanting where fathers have, Brutus-like, condemned their children to death, rather than allow the law to be violated, and the offender to go unpunished. Nezahualcoyotl caused four of his own sons to be publicly executed because they had sinned with their step-mothers, the wives of their father. A very touching incident is narrated by Torquemada, showing to what an extent this love of impartial justice was carried by a Tezcucan sovereign.
Nezahualpilli, king of Tezcuco, had married two sisters, whom he dearly loved, and especially did he dote upon the younger, whose name was Xocotzincatzin. By her he had several children, the eldest being a son, named Huexotzincatzin, who was beloved by all who knew him, on account of his amiable disposition and noble qualities, and who was besides a very valiant young man and a great warrior. No wonder that he was the king’s pride, and beloved even more than his brothers and sisters, for his own and his mother’s sake. So much had Huexotzincatzin distinguished himself, that, although he was but a young man, his father determined to bestow upon him the office and title of tlacatecatl, which was a post of the highest honor and importance. For this purpose the king one day ordered that the prince be sent for and brought into his presence. With a light heart, and much elated, Huexotzincatzin, accompanied by his suite, and the nobles who were his tutors, set out for the royal palace. As he was about to enter, the prince met one of his father’s concubines, attended by her ladies. This concubine was a very beautiful and proud woman, yet withal of a free and easy carriage, that encouraged Huexotzincatzin, who perhaps did not know who she was, to address her in a familiar and disrespectful manner. The woman, who, the historian remarks, could not have been possessed of much sense, either because she felt offended at his conduct towards her, or because she dreaded the consequence if the king should discover what had happened, turned from the prince without a word, and entered the palace. The king’s concubines, as we have seen in a former chapter, were always accompanied by certain elderly women, whose duty it was to instruct them in discreet behavior and to watch continually over their actions. One of these women, who had been with the concubine at the time of her meeting with Huexotzincatzin, and had overheard the prince’s remarks, went straightway to the king, and informed him of all that had happened. The king immediately sent for his concubine, and inquired of her if the prince had spoken lewdly to her publicly and in the presence of the ladies and courtiers, or if he had intended his 449words to reach her ear alone; for Nezahualpilli would fain have discovered some excuse for his son, the punishment for speaking lewdly in public to the king’s concubines being, according to law, death; but the frightened woman replied that Huexotzincatzin had spoken openly to her, before all that were present. Then the king dismissed the concubine, and retired, mourning, into certain apartments which were called the ‘rooms of sorrow.’
PUNISHMENT OF THE KING’S SON.
When these things came to the ears of the friends and tutors of the prince, they were much troubled on his account, because the severity of the king, and his strict adherence to the law were as a proverb among the people, and their apprehensions increased when, upon arriving at the royal apartments, the prince was denied admission, although his attendants were ordered to appear at once before the king. There they were closely questioned by him, and although they would willingly have saved the prince from the consequences of his folly, yet they dared not speak anything but truth, for he who was convicted of wilfully deceiving the king, suffered death. All they could do was to make excuses for the prince, and ask pardon for his crime, and this they did with many prayers and entreaties, advancing, as extenuating circumstances, his youth, his previous good conduct, and his possible ignorance of the fact that the lady was his father’s concubine. The king listened patiently to the end, answering nothing, and then he commanded that Huexotzincatzin be forthwith arrested and placed in confinement. Later in that same day he pronounced sentence of death against his son. When it became known that Huexotzincatzin was to die, all the powerful nobles who were at court went in a body to the king and earnestly conjured him not to insist upon carrying out his sentence, telling him that it was barbarous and unnatural, and that future generations would hold in horror and hatred the memory of the man who had condemned his own son to death. Their prayers and arguments seemed, however, to render the old king only the more implacable, and he dismissed them, saying that if the law forbade such things, and if that law was inviolably observed throughout the kingdom, how could he justify his conduct to his subjects, were he to allow the same to be infringed upon in his own palace, and the offender to remain unpunished merely because he was his son; that it should never be said of him that he made laws for his subjects which did not apply to his own family.
When Xocotzincatzin, the prince’s mother, heard that he was condemned to death, she gathered the rest of her sons about her, and coming suddenly before her husband, she fell on her knees and besought him with many tears, to spare the life of her darling son, the first pledge of love that she, his favorite wife had given him. Finding all her entreaties fruitless, she then implored him for the sake of the love he had once borne her, to slay her and her other sons with Huexotzincatzin, since life without her first-born was unbearable. But the stern old king still sat to all appearance unmoved and immovable, and coldly directed the attendant ladies to convey the wretched mother to her apartments.
The execution of the prince was delayed in every possible manner by those who had charge of it, in the hope that the king might even yet relent; but Nezahualpilli having been informed of this, immediately ordered that the sentence should be carried out without further delay. So Huexotzincatzin died. As soon as the news of his son’s death was carried to the king, he shut himself up in certain apartments called the ‘rooms of sorrow,’ and there remained forty days, mourning for his first-born and seeing no one. The house of the late prince was then walled up, and none were allowed to enter it, and so all tokens of the unhappy young man were destroyed.
MONTEZUMA AND THE FARMER.
Another anecdote, which is written in execrable Spanish by the native historian, Tezozomoc, may not be out of place here. It is told of the emperor Montezuma of Mexico, and the reader will at once recognize a resemblance between this and many other anecdotes with which he is familiar, where a bold and merited rebuke from a subject to his sovereign is received with respect and even favor.
It happened one summer, that the king, being wearied with the cares of government, went for rest and recreation to his country palace at Tacubaya. One day, when out shooting birds, he came to an orchard, and having told his attendants to remain outside, he entered alone. He succeeded in killing a bird, and as he was returning, bearing his game in his hand, he turned aside into a field where a remarkably fine crop of corn was growing. Having plucked a few ears, he went towards the house of the owner of the field, which stood hard by, for the purpose of showing him the ears that he had plucked, and of praising his crop, but as by law it was death to look upon the king’s face, the occupants of the house had fled, and there was no one therein. Now the owner of the field had seen the king pluck the corn from afar off, and, notwithstanding it was against the law, he ventured to approach the monarch in such a way as to make the meeting appear accidental. Making a deep obeisance, he thus addressed the king: “How is it, most high and mighty prince, that thou hast thus stolen my corn? Didst thou not thyself establish a law that he who should steal one ear of corn, or its value, should suffer death?” And Montezuma answered: “Truly I did make such a law.” Then said the farmer: “How is it then, that thou breakest thine own law?” And the king replied: “Here is thy corn, take back that which I have stolen from thee.” But the owner of the field began to be alarmed at his own boldness, and tried to excuse himself, saying that he had spoken merely in jest, for, said he: “Are not my fields, and myself, and my wife, and my children, all thine, to do with as thou wilt;” and he refused to take back the ears of corn. Then the king took off his mantle of net-work and precious stones, which was called xiuhayatl and was worth a whole city, and offered it to the farmer, who at first was afraid to accept so precious a gift, but Montezuma insisted, so he took the mantle, promising to preserve it with great care as a remembrance of the king. When Montezuma returned to his attendants, the precious mantle was at once missed, and they began to inquire what had become of it; which the king perceiving, he told them that he had been set upon by robbers, when alone, who had robbed him of his mantle, at the same time he ordered them, upon pain of death, to say nothing more about the matter. The next day, having arrived at his royal palace in Mexico, when all his great nobles were about him, he ordered one of his captains to repair to Tacubaya, and inquire for a certain Xochitlacotzin, whom they should at once bring to his presence, but under penalty of death they should not injure or abuse him in any way. When the king’s messengers told Xochitlacotzin their errand, he was greatly alarmed, and tried to escape, but they caught him, and telling him to fear nothing, for that the king was kindly disposed towards him, they brought him before Montezuma. The king, having bidden him welcome, asked him what had become of his mantle. At this the nobles who were present became much excited, but Montezuma quieted them, saying: “This poor man has more courage and boldness than any of you who are here, for he dared to speak the truth and tell me that I had broken my laws. Of such men have I greater need, than of those who speak only with honeyed words to me.” Then having inquired what principal offices were vacant, he ordered his attendant lords to shelter and take care of Xochitlacotzin, who was henceforth his relative and one of the chief men of the realm. Afterwards he who had so lately been a poor farmer was given a principal house of Olac for his own, and it was long the boast of his descendants that they were relatives of Montezuma.
PUNISHMENT OF CRIMES.
The Aztecs adopted numerous ways of punishing offenders against the law, as we shall see presently, but I do not think that imprisonment was largely resorted to. They had prisons, it is true, and very cruel ones, according to all accounts, but it appears that they were more for the purpose of confining prisoners previous to their trial, or between their condemnation and execution, than permanently, for punishment. These jails were of two classes, one called teilpiloyan for those imprisoned on a civil charge, another called quauhcalco, for prisoners condemned to death. The cells were made like cages, and the prison was so constructed as to admit very little light or air; the food was scanty and of a bad quality, so that, as Las Casas expresses it, the prisoners soon became thin and yellow, and commenced at the prison to suffer the death that was afterwards adjudged them. Clavigero, however, asserts that those condemned to the sacrificial stone were well fed in order that they might appear in good flesh at the sacrifice. A very close watch was kept upon the captives, so much so, indeed, that if through the negligence of the guard a prisoner of war escaped from the cage, the community of the district, whose duty it was to supply the prisoners with guards, was obliged to pay to the owner of the fugitive, a female slave, a load of cotton garments, and a shield. Mendieta says that these prisons were only used for persons awaiting trial on very grave charges; for, he writes, in the case of one held to answer on an ordinary charge, “it was sufficient for the minister of justice to place the prisoner in a corner with a few light sticks before him; indeed, I believe that to have merely drawn a line and told him not to pass it would have sufficed, even though he might have reason to believe that there was a heavy punishment in store for him, because to flee from justice, and escape, was an impossibility. At all events, I with my own eyes have seen a prisoner standing entirely unguarded save for the before-mentioned sticks.”
Like most semi-barbarous nations, the Aztecs were more prone to punish crime than to recompense virtue, and even when merit was rewarded, it was of the coarser and more material kind, such as valor in war or successful statesmanship. The greater part of their code might, like Dracon’s, have been written in blood—so severe were the penalties inflicted for crimes that were comparatively slight, and so brutal and bloody were the ways of carrying those punishments into execution. In the strongest sense of the phrase the Aztecs were ruled with a rod of iron; but that such severity was necessary I have no doubt, inasmuch as whatever form of government exists, be it good or bad, that form of government is the necessary one, or it could have no existence. All young states must adopt harsh laws to secure the peace and well-being of the community, while as yet the laws of habit and usage are unestablished; and as that community progresses and improves, it will of itself mold its system of government to fit itself. The code of Dracon was superseded by that of Solon when the improved state of the Athenian community warranted a mitigation of the severity of the former, and in like manner the laws of Montezuma and Nezahualcoyotl would have given place to others less harsh had Aztec civilization been allowed to progress.
CODE OF LAWS.
The laws of the several Aztec kingdoms were essentially the same; some slight differences existed, however, and in these instances the code of Tezcuco proves the most rigid and severe, while more of lenience is exhibited in that of Mexico. I have before remarked that the majority of writers treat of the legislation of Tezcuco, but, as in other matters, many authorities who should be reliable surmount the difficulty of distinguishing that which belongs to one system of jurisprudence from that which belongs to another, by speaking generally of the code that existed in Nueva España, or among ‘these people.’ Most of the subjected provinces adopted the laws of the state to which they became subject. But this was by no means obligatory, because as conquered nations were not compelled to speak the language of their conquerors, neither were they forced to make use of their laws. Let us now see what these laws were.
PUNISHMENT OF THEFT.
Theft was punished in various ways, and, it appears, not at all in proportion to the magnitude of the crime. Thus he who stole a certain number of ears of corn, suffered death, while he who broke into the temples and stole therefrom, was enslaved for the first offence and hanged for the second, and it is distinctly stated that in order to merit either of these punishments the theft must be an extensive one. In cases not specially provided for, it appears that a petty thief became the slave of the person from whom he had stolen; according to Ortega, however, the injured party had the privilege of refusing to accept the thief as a slave, in which case the latter was sold by the judges, and with the proceeds of the sale the complainant was reimbursed. The same writer states that in some cases a compromise could be effected by the offended party agreeing to be indemnified by the thief, in which case the latter paid into the treasury a sum equal to the amount stolen. This statement is somewhat obscure, inasmuch as it would be but poor satisfaction to the party robbed to see the equivalent of that robbery paid into the public treasury; but I understand the writer to mean that the loser had his loss made good, and that for the satisfaction of justice an equal amount was imposed as a fine upon the prisoner. Theft of a large amount was almost invariably punished with death, which was inflicted in various ways. Usually the culprit was dragged ignominiously through the streets and then hanged; sometimes he was stoned to death. He who robbed on the highway was killed by having his head smashed with a club; he who was caught in the act of pilfering in the market-place, no matter how trivial the theft, was beaten to death with sticks on the spot by the assembled multitude, for this was considered a most heinous sin; but notwithstanding the fearful risk incurred, it is asserted that many were so light-fingered that it was only necessary for a market woman to turn her head away, and her stall would be robbed in a trice. There was a regular judicial tribunal established for the settling of disputes in the general government of the market-place, of which I have had occasion to speak before; but this tribunal does not appear to have troubled itself much with persons who were caught in the act of stealing, as it seems to have been tacitly allowed to the people assembled in the market-place to exercise lynch law upon the culprit.
Besides these general laws for the prevention of theft, there were others which prescribed special penalties for those who stole certain particular articles. For instance, Ortega tells us that the thief of silver or gold was skinned alive and sacrificed to Xipe, the tutelary divinity of the workers in precious metals, such a theft being considered a direct insult to the god. In some of these cases fines were imposed. Among a collection of laws given by Las Casas, for the authenticity of which he does not vouch, “because,” he says, “they were taken out of a little Indian book of no authority,” we find the following relating to theft: If any one stole the plants, called maguey, from which they manufactured more than twenty articles, and which were used for making syrup, he was compelled to pay as a fine as many cotton cloths as the judges might decree, and if he was unable to pay the fine imposed, or if he had stolen more than twenty plants, he was enslaved. Whoever stole a fishing-net or a canoe was punished in the same manner. Whoever stole corn to the amount of twenty ears or upward, died for it, and if he took a less quantity, he paid that which he was sentenced to pay. He that plucked the corn before it had formed seed, suffered death. Whoever stole a tecomatl, “which is a little gourd tied at the top with strips of red hide, and having feather tassels at the end, used by the lords for carrying a green powder, from which they take in smoke through the mouth, the powder being called in the island of Española ‘tabacos’—whoever stole one of these died for it.” He that stole precious stones, and more especially the stone called chalchiuite, no matter from whence he took it, was stoned to death in the market-place, because no man of the lower orders was allowed to possess this stone.
In Mexico, a distinction seems to have been made between the thief who reaped the benefit of his crime and him who did not; in other words, if the stolen property was recovered intact from the thief he was only enslaved, but if he had already disposed of his plunder he suffered death.Whether the ultimate recovery of the property after it had passed from the thief’s hands, would answer the same end, we are not told, but if not, then it would appear that according to Aztec jurisprudence the culprit was punished not so much in proportion to the actual injury he inflicted upon others, as in accordance with the actual extent of the crime he committed. In Michoacan, the first theft was not severely punished, but for the second offence the thief was thrown down a precipice and his carcass left to the birds of prey.
The murderer suffered death even though he should be a noble and his victim but a slave. In Michoacan, we are told by Herrera, that there was no punishment for murder, since, through fear, the crime was never committed. Beaumont allows that for a time there were no murders, but says that afterwards they became frequent, and then the criminal was dragged along the ground until he died. He who administered poison to another, thereby causing death, died for it, and the same punishment was awarded to him who furnished the poison.
THE FATE OF TRAITORS AND CONSPIRATORS.
Traitors, conspirators, and those who stirred up sedition among the people or created ill feeling between nations, were broken to pieces at the joints, their houses razed to the ground, their property confiscated, and their children and relations made slaves to the fourth generation. The lord of vassals who rebelled, unless taken captive in battle, was killed by having his head smashed with a club; the common rebel was tied to an oaken spit and roasted alive.
In Tezcuco, he who kidnapped a child and sold it into slavery, was hanged; in Mexico, the kidnapper was himself sold as a slave, and of the price he brought one half was given to the stolen child, or its parents, and the other half became the property of the purchaser; if several persons were implicated in the crime, they were all sold as slaves.
LAWS AGAINST INTOXICATION.
Drunkenness was punished with excessive rigor; indeed, intoxicating liquor was not allowed to be drunk, except by express permission from the judges, and this license was only granted to invalids and persons over fifty years of age, who, it was considered, needed strong drink in order to warm their blood; and even they were only permitted to partake of a limited quantity, at each meal, though according to the explanation of Mendoza’s collection old men of seventy years were allowed to drink as much as they pleased. Moderate conviviality at weddings and public feasts, was not forbidden, and upon these occasions the young people were allowed to partake of the wine-cup sparingly; the same license was granted to those whose daily occupation necessitated great bodily exertion, such as masons, carpenters, and the like. Women in childbed were allowed to use strong drink as a stimulant, but only during the first days of their confinement. With these exceptions, the law against drinking was strictly enforced. The young man who became drunk was conveyed to the jail, and there beaten to death with clubs; the young woman was stoned to death. In some parts, if the drunkard was a plebeian, he was sold for a slave for the first offence, and suffered death for the second; at other times the offender’s hair was cut off in the public market-place, he was then lashed through the principal streets, and finally his house was razed to the ground, because, they said, one who would give up his reason to the influence of strong drink, was unworthy to possess a house, and be numbered among respectable citizens. Cutting off the hair was, as we shall see, a mode of punishment frequently resorted to by these people, and so deep was the degradation supposed to be attached to it, that it was dreaded almost equally with death itself. Should a military man, who had gained distinction in the wars, become drunk, he was deprived of his rank and honors, and considered thenceforth as infamous. Conviction of this crime rendered the culprit ineligible for all future emoluments, and especially was he debarred from holding any public office. A noble was invariably hanged for the first offence, his body being afterwards dragged without the limits of the town and cast into a stream used for that purpose only. But a mightier influence than mere fear of the penal law restrained the Aztec nobility and gentry from drinking to excess; this influence was social law. It was considered degrading for a person of quality to touch wine at all, even in seasons of festivity when, as I have said, it was customary and lawful for the lower classes to indulge to a certain extent. Wine-bibbing was looked upon as a coarse pleasure, peculiar exclusively to the common people, and a member of the higher orders, who was suspected of practicing the habit, would have forfeited his social position, even though the law had suffered him to remain unpunished. These heathens, however, seem to have recognized the natural incongruity existing between precept and practice, fully as much as the most advanced Christian.
He who employed witchcraft, charms, or incantations for the purpose of doing injury to the community or to individuals, was sacrificed to the gods, by having his breast opened and his heart torn out.
Whoever made use of the royal insignia or ensigns, suffered death, and his property was confiscated. The reader will recollect that the same penalty was inflicted upon him who should usurp the insignia or office of the Mexican cihuacoatl, or supreme judge. Whoever maltreated an ambassador, minister, or courier, belonging to the king, suffered death; but ambassadors and couriers were on their part forbidden to leave the high road, under pain of losing their privileges. He who by force took possession of land not belonging to him, suffered death. He who sold the land of another, or that which he held in trust, without judicial authority, or permission from such as had power to grant it to him, was enslaved. If a piece of land was fraudulently sold twice over, the first purchaser held it, and the vendor was punished. He who squandered his patrimony suffered death. The on that raised his hand against his father or mother, suffered death, and his children were prevented from inheriting the property of their grand-parents. In the same manner a father could disinherit a son who was cowardly or cruel. He who removed boundary-marks, died for it. Those who disturbed the peace by engaging in petty fights and squabbles, without using weapons, were confined in jail for a few days, and obliged to make good whatever damage they had done; for, says Las Casas, they generally revenged themselves by breaking something. If any one was wounded in a brawl, he who made the assault had to defray all the expenses of curing the injured party. But those who fought in the market-place, were dealt with far more severely. Slanderers were treated with great severity. In Mexico, he who wilfully calumniated another, thereby seriously injuring his reputation, was condemned to have his lips cut off, and sometimes his ears also. In Tezcuco, the slanderer suffered death. The false witness had the same penalty adjudged to him that would have been awarded to the accused, if convicted. So great a lover of truth was king Nezahualcoyotl, that he is said to have made a law prescribing the death penalty to historians who should record fictitious events. Whoever obtained 464goods on credit and did not pay for them, was enslaved, and the delinquent taxpayer met with the same punishment.
PENALTY FOR ADULTERY.
Concerning the way in which adulterers were treated scarcely two of the ancient writers agree, and it is probable that the law on this point differed more or less in various parts of the Aztec kingdoms; indeed, we have Clavigero’s testimony that in some parts of the Mexican empire the crime of adultery was punished with greater severity than in others, and Las Casas and Mendieta both speak of several penalties attaching to the offence in different localities. According to what can be gathered on this point, it appears that adulterers taken in flagrante delicto, or under circumstances which made their guilt a moral certainty, were stoned to death. A species of trial was granted to the culprits, but if, as some writers assert, confession of guilt was extorted by torture, this trial must have been as much a mockery of justice as were the proceedings of most European courts of law at that period. The amount of evidence necessary to convict is uncertain. Veytia says that accusation by the husband was in itself sufficient proof. Las Casas and Torquemada, however, who are both far older authorities, tell us that no man or woman was punished for adultery upon 465the unsupported testimony of the husband, but that other witnesses, and the confession of the defendants were necessary to procure their conviction. Usually if the condemned adulterers were of the lower orders, they were taken out into a public place and there stoned to death by the assembled multitude, and few of the old writers omit to remark that this manner of death was almost painless, since no sooner was the first stone thrown than the poor wretch was immediately covered with a pile of missiles, so great was the number of his executioners, and so eager was each to take a hand in the killing. Another common mode of execution consisted in placing the head of the condemned upon a stone, and smashing his skull by letting another stone fall upon it. The noble convicted of the same crime was not killed in this public manner, but was strangled in jail; and as a mark of respect to his rank, his head, after death, was adorned with plumes of green feathers, and the body was then burned. Adulterers who were found guilty merely upon circumstantial evidence also suffered death by strangulation. It was strictly forbidden for a husband to take the law into his own hands, and he who should seek to avenge his honor by slaying his wife or her paramour, even though he took them in the act of adultery, suffered death; in the same manner should the criminal endeavor to save himself by killing the injured husband, his fate was to be roasted alive before a slow fire, his body being basted with salt and water that death might not come to his relief too soon. An adulterer could not escape the law on the plea of drunkenness, and, indeed, had such an excuse been 466held admissible, little would have been gained by exchanging the fate of the adulterer for that of the drunkard. The trespass of a married man with a free unmarried woman was not considered to constitute adultery, nor punished as such, so that the husband was not bound to so much fidelity as was exacted from the wife. I have before remarked that although the crime of adultery was punished in all parts of the Aztec empire, yet the penalty inflicted differed in point of severity and in manner of execution. Thus, in the province of Ixcatlan, if we may believe Clavigero, a woman accused of this crime was summoned before the judges, and if the proofs of her guilt were satisfactory, she was there and then torn to pieces, and her limbs were divided among the witnesses, while in Itztepec the guilty woman’s husband cut off her ears and nose, thus branding her as infamous for life. In some parts of the empire the husband who cohabited with his wife after it had been proved that she had violated her fidelity, was severely punished.
Carnal connection with mother, sister, step-mother or step-sister, was punished by hanging; Torquemada says the same penalty was incurred by him who had connection with his mother-in-law, because they considered it a sin for a man to have access to both mother and daughter. Intercourse between brother-in-law and sister-in-law was, however, not criminal, and, indeed, it was customary for a man to raise up seed to his deceased brother by marrying his widow. He who attempted to ravish a maiden, whether in the field, or in her father’s house, suffered death. In Michoacan, the ravisher’s mouth was split from ear to ear with a flint knife, and he was afterwards impaled. In Mexico, those who committed sodomy were hanged; in Tezcuco, the punishment for unnatural crime was characteristically brutal. The active agent was bound to a stake, completely covered with ashes and so left to die; the entrails of the passive agent were drawn out through his anus, he also was then covered with ashes, and, wood being added, the pile was ignited. In Tlascala, the sodomite was not punished by law, but was scouted by society, and treated with scorn and contempt by all who knew him. From the extreme severity of the laws enacted by the later sovereigns for the suppression of this revolting vice, and from the fact that persons were especially appointed by the judicial authorities to search the provinces for offenders of this class, it is evident that unnatural love had attained a frightful popularity among the Aztecs. Father Pierre de Gand, or, as he is sometimes known, de Mura, bears terrible testimony to this; he writes: “Un certain nombre de prêtres n’avaient point de femmes, sed eorum loco pueros quibus abutebantur. Ce péché était si commun dans ce pays, que, jeunes ou vieux, tous en étaient infectés; ils y étaient si adonnés, que mêmes des enfants de six ans s’y livraient.”
Las Casas relates that in several of the more remote provinces of Mexico unnatural vice was tolerated, if not actually permitted, and it is not improbable that in earlier times this was the case in the entire empire. Inexpressibly revolting as the sin must appear to a modern mind, yet we know that pederasty has obtained among peoples possessed of a more advanced civilization than the Aztecs. In ancient Greece this unnatural passion prevailed to such an extent that it was regarded as heroic to resist it. Plutarch, in his Life of Agesilaus, cannot praise too highly the self-control manifested by that great man in refraining from gratifying a passion he had conceived for a boy named Megabates, which Maximus Tyrius says deserves greater praise than the heroism of Leonidas; Diogenes Laertius, in his Life of Zeno, the founder of stoicism, the most austere of all ancient sects, praises that philosopher for being but little addicted to this vice; Sophocles, the Tragic Homer, and the Attic Bee, is said by Athenæus to have been especially addicted to it. Moralists were known to praise it as the bond of friendship, and it was spoken of as inspiring the enthusiasm of the heroic legion of Epaminondas. The defeat of the Romans by Hannibal at Cannæ was said to be caused by the jealousy of Juno, because a beautiful boy had been introduced into the temple of Jupiter. Las Casas tells us that pederasty was tolerated because they believed that their gods practiced it. In precisely the same manner did the ancient Greeks make the popular religion bend to the new vice, and, by substituting Ganymede for Hebe as heavenly cup-bearer, make the head of all Olympus set an example of unnatural love.
LAWS RESPECTING CHASTITY.
The priest who violated his vow of chastity was banished; his house was demolished and his property confiscated. Pimps were publicly disgraced in the market-place, by having their hair burnt off so close to the head that the drops of resin falling from the burning pitch-pine chips fell upon and seared the scalp; if the persons for whom the panderage was committed were of high rank, a greater penalty was inflicted upon the pander. This was the law in Mexico; in Tezcoco, according to the historian of the Chichimecs, the pimp suffered death in all cases.
Simple fornication was not punished, unless it was committed by a noble lady, or with a maiden consecrated to the service of the gods, in which cases it was death. Fornication with the concubine of another also went unpunished, unless they had been living a long time together, and were in consequence, according to custom, considered man and wife. If any one had connection with a slave, and the woman died during her pregnancy, or in giving birth to the child, then the offender became a slave; but if she was safely delivered, the child was free and was taken care of by the father. The woman who took any drug to procure an abortion, and she who furnished the drug, both suffered death. If one woman sinned carnally with another, both died for it. The man who went about the streets dressed as a woman, or the woman who dressed as a man, was slain.
In this account are comprised nearly all the special laws of the Aztecs which have been preserved, with the exception of those relating to military matters, marriage, divorce, and slavery, all of which I have already had occasion to consider.
That the Aztec code was a severe and brutal one there can be no denial, but that it was more severe and brutal than was necessary, is, as I have before remarked, doubtful. We have already seen that a horrible death was the inevitable fate of those detected stealing in the market-place, yet we are told that did the owner of a stall but turn away his head for a moment, his wares would be pilfered. A people accustomed almost daily to see human blood poured out like water in sacrifice to their gods, must of necessity have been hardened to the sight of suffering, and upon such none but an execution of the most revolting description could create an impression of awe or fear. It appears remarkable that punishments involving only disgrace should have been adopted by such a people, yet it is doubtful whether slavery was not considered a lighter punishment than having the hair burned off in the public market. Some of the Aztec monarchs evinced a desire to be as lenient as the stubborn nature of their subjects would allow, but the yoke upon the people, if it were in any degree to control them, must at best be a heavy one; in short, despotism of the harshest was necessary and indispensable to them in their stage of civilization.
NEZAHUALCOYOTL AND THE BOY.
Nezahualcoyotl, king of Tezcuco, was especially merciful and considerate towards his subjects. For instance, he ordered that corn should be planted, at the expense of government, by the roadside, in order that none who were guilty of stealing from the fields, might excuse themselves on the ground of hunger. It is related that this monarch went frequently among his people in disguise, for the purpose of discovering their grievances and general condition, and some of the adventures he met with on these occasions are as entertaining as any told by Sheherezade of the Good Caliph. I select one, not because it is the best, but because it points more particularly to Nezahualcoyotl’s benevolence and love of justice. During the reign of this monarch, owing to the immense consumption of wood, the use of oil and tallow being then unknown, the forests began to grow thin, and the king foreseeing that unless some precautions were taken, there would soon be a scarcity of wood in the kingdom, ordered that within certain limits no wood should be touched. Now it happened one day, when the king was abroad in disguise, and accompanied only by his brother Quauhtlehuanitzin, that they passed by the skirts of a forest wherein it was prohibited to cut or gather wood. Here they found a boy who was engaged in picking up the light chips and twigs that had been carried by the wind outside of the enclosure, because in this locality the inhabitants were very numerous, and had exhausted all the timber that was not reserved by law. Nezahualcoyotl, seeing that under the trees of the forest there lay a great quantity of fallen wood, asked the boy why he contented himself with dry leaves and scattered twigs when so great an abundance of fuel lay close at hand. The boy answered that the king had forbidden the people to gather wood in the forest, and therefore he was obliged to take whatever he could get. The king told him to go, nevertheless, into the forest and help himself to fuel, and none would be the wiser, for that he and his companion would say nothing of the matter. But the boy rebuked them, saying that they must be traitors to the king who would persuade him to do this thing, or that they sought to avenge themselves upon his parents by bringing misfortune upon their son, and he refused to enter the forbidden ground. Then was the king much pleased with the boy’s loyalty, and seeing the distress to which the people were reduced by the severity of the forest laws, he afterwards had them altered.
 ‘El govierno y las leyes quasi no diferian, por manera que por lo que de unas partes dijeremos, y adonde tuvimos mayor noticia, se podra entender, y quiza sera mejor, decirlo en comun y generalmente.’ Las Casas, Hist. Apologética, MS., cap. ccxii. It is also stated that many Mexican cases, presenting more than ordinary difficulty, were tried in the Tezcucan law-courts; see Zurita, Rapport, in Ternaux-Compans, Voy., série ii., tom. i., p. 95; Las Casas, Hist. Apologética, MS., cap. ccxii.; Torquemada, Monarq. Ind., tom. ii., p. 354. Speaking of Mexico, Tezcuco, and Tlacopan, Zurita says: ‘Les lois et la procédure étaient les mêmes dans ces trois états, de sorte qu’en exposant les usages établis dans l’un d’eux, on fera connaître ce qui se passait dans les autres.’ Rapport, in Ternaux-Compans, Voy., série ii., tom. i., pp. 93-4.
The title cihuacoatl, meaning ‘serpent-woman,’ appears incomprehensible as applied to a judge, but M. l’Abbé Brasseur de Bourbourg, Hist. Nat. Civ., tom. iii., pp. 579-80, sees reason to believe that the Mexicans, when they succeeded to the rights of the Toltec kings of Culhuacan, adopted also the titles of the court, and that the name cihuacoatl had been given to the prime minister in memory of Cihuacoatl, the sister of Camaxtli, who cared for the infancy of Quetzalcoatl. The learned Abbé translates cihuacoatl, serpent femelle, which is literally a serpent of the female sex. Molina, however, in his Vocabulario, gives ‘ciua’ as a substantive, meaning ‘women’ (mugeres), and ‘coatl’ as another substantive, meaning ‘serpent’ (culebra), the two as a compound he does not give. I translate the word ‘serpent-woman,’ because the sister of Camaxtli would more probably be thus distinguished among women, than among serpents as the ‘woman-serpent.’
Although all other historians agree that the judgment of the cihuacoatl was final, the interpreter of Mendoza’s collection states that an appeal lay from the judges (he does not state which) to the king. Explicacion de la Coleccion de Mendoza, in Kingsborough’s Mex. Antiq., vol. v., p. 109. Prescott, Mex., vol. i., p. 29, attributes this to the changes made during Montezuma’s reign, the period which the Mendoza paintings represent, and Leon Carbajal, Discurso, p. 98, totally denies the truth of the statement.
’Dalle sentenze da lui pronunziate o nel civile, o nel criminale, non si poteva appellare ad un altro tribunale,’ &c. Storia Ant. del Messico, tom. ii., p. 127.
Mex., vol. i., p. 29.
Hist. Nat. Civ., tom. iii., p. 580.
Hist. Mex., tom. i., p. 593.
Discurso, p. 97.
’Oìa de causas, que se debolvian, y remitian à èl, por apelacion; y estas eran solas las criminales, porque de las civiles no se apelaba de sus Justicias ordinarias.’ Monarq. Ind., tom. ii., p. 352. It is possible that Señor Carbajal may have read only a subsequent passage in the same chapter, where Torquemada, speaking of the tribunal of the tlacatecatl, says: ‘De este se apelaba, para el Tribunal, y Audiencia del Cihuacohuatl, que era Juez Supremo, despues del Rei.’ From what has gone before, it is, however, evident that the author here refers only to the criminal cases that were appealed from the court of the tlacatecatl.
Hist. Apologética, MS., cap. ccxii.
Mex., vol. i., p. 29. Clavigero, Storia Ant. del Messico, tom. ii., pp. 127-8, also affirms, indirectly, that cases were sometimes laid in the first instance before the supreme judge, inasmuch as he first says that the cihuacoatl took cognizance of both civil and criminal cases, and afterwards, when speaking of the court of the tlacatecatl, he writes: ‘Se la causa era puramente civile, non v’era appellazione.’ The same applies to Brasseur de Bourbourg. Hist. Nat. Civ., tom. iii., p. 580.
Herein lies the only difference between Las Casas and Torquemada on the subject of the Cihuacoatl. The former writes: ‘Qualquiera que este oficio para si usurpara, ó lo concediera á otro, avia de morir por ello, y sus padres y deudos eran desnaturados del pueblo donde acaeciese hasta lo quarta generación. Allende que todos los bienes avian de ser confiscados, y aplicados para la republica.’ Hist. Apologética, MS., cap. ccxii. Torquemada says: ‘era tan autoriçado este oficio, que el que lo vsurpara para si, ò lo comunicàra à otro en alguna parte del Reino, muriera por ello, y sus Hijos, y Muger fueran vendidos, por perpetuos esclavos, y confiscados sus bienes por Lei, que para esto havia.’ Monarq. Ind., tom. ii., p. 352. Notwithstanding all other historians distinctly affirm that the cihuacoatl was, in the exercise of his functions perfectly independent of the king, Brasseur de Bourbourg, Hist. Nat. Civ., tom. iii., p. 580, makes the following extraordinary statement: ‘Il jugeait en dernier ressort et donnait des ordres en lieu et place du souverain, chaque fois que celui-ci ne le faisait pas directement et par lui-même.’ This must be from one of the original manuscripts in the possession of M. l’Abbé.
Las Casas, Hist. Apologética, MS., cap. ccxii., spells these names tacatecatl, acoahunotl, and tlaylotlat; Torquemada, Monarq. Ind., tom. ii., p. 352, tlacateccatl, quauhnuchtli, and tlaylotlac; and Clavigero, Storia Ant. del Messico, tom. ii., p. 127, tlacatecatl, quauhnochtli, and tlanótlac, or tlaiíotlac, a defect in the impression makes it difficult to tell which. Scarcely two of the old writers follow the same system of orthography, and in future I shall follow the style which appears simplest, endeavoring only to be consistent with myself.
Clavigero, Storia Ant. del Messico, tom. ii., p. 128, writes ‘Egiornalmente si portava al Cihuacoatl, od al Tlacatecatl per avvertirlo di tutto ciò, che occorreva, e ricever gli ordini da lui;’ but it would probably be only in cases of great importance that the reports of the tecuhtli would be carried to the cihuacoatl.
Las Casas, Hist. Apologética, MS., cap. ccxii.; Torquemada, Monarq. Ind., tom. ii., p. 355; Clavigero, Storia Ant. del Messico, tom. ii., pp. 127-8.
Torquemada, Monarq. Ind., tom. ii., p. 354, says that there were fifteen provinces subject to the king of Tezcuco.
The English edition of Clavigero reads: ‘the judicial power was divided amongst seven principal cities,’ p. 354; but the original agrees with the other authorities: ‘nel Regno d’Acolhuacan era la giurisdizione compartita tra sei Città principali.’ Storia Ant. del Messico, tom. ii., p. 128.
Las Casas, Hist. Apologética, MS., cap. ccxii. Torquemada, however, asserts that there were ‘en la Ciudad de Tetzcuco (que era la Corte) dentro de la Casa Real dos Salas de Consejo … y en cada Sala dos Jueces. Havia diferencia entre los dichos Jueces; porque los de la vna Sala eran de mas autoridad, que los de la otra; estos se llamaban Jueces maiores, y esotros menores; los maiores oìan de causas graves, y que pertenecian à la determinacion del Rei; los segundos, de otras, no tan graves, sino mas leves, y livianas.’ Monarq. Ind., tom. ii., p. 354. The lower of these two probably either formed one of the six superior courts above mentioned, or corresponded with them in jurisdiction. According to Zurita, ‘chacune des nombreuses provinces soumises à ces souverains entretenait à Mexico, à Tezcuco et à Tlacopan, qui étaient les trois capitales, deux juges, personnes de sens choisies à cet effet, et qui quelquefois étaient parents des souverains,’ and adds: ‘les appels étaient portés devant douze autres juges supérieurs qui prononçaient d’après l’avis du souverain.’ Rapport, in Ternaux-Compans, Voy., série ii., tom. i., pp. 95, 100.
Torquemada, Monarq. Ind., tom. ii., p. 355, writes: ‘Tenia cada Sala de estas dichas otro Ministro, que hacia oficio de Alguacil Maior,’ &c., while other writers assign one to each judge, of whom there were two in each court.
Clavigero differs on this point from other writers, in making this meeting occur every Mexican month of twenty days. Zurita, Rapport, in Ternaux-Compans, Voy., série ii., tom. i., p. 101, writes: ‘Tous les douze jours il y avait une assemblée générale des juges présidée par le prince;’ to this the editor attaches the following note: ‘il est évident, comme on le verra page 106, qu’il y a ici une erreur, et que ces assemblées, dont les sessions duraient douze jours, ne se tenaient que tous les quatre-vingts jours.’ It is, however, the learned editor who is mistaken, because, as we have seen above, there were two distinct meetings of the judges; a lesser one every ten or twelve days, and a greater every eighty days, and it is of the latter that Zurita speaks on p. 106.
’Al que él sentenciava le arrojava una flecha de aquellas.’ Tezozomoc, Crónica Mex., in Kingsborough’s Mex. Antiq., tom. ix., p. 57.’A capital sentence was indicated by a line traced with an arrow across the portrait of the accused.’ Prescott’s Mex., vol. i., p. 33.
It is probable that as matters of government, as well as legal affairs, were discussed at their Eighty-Day Council, it was not exclusively composed of judges, but that nobles and statesmen were admitted to membership. Torquemada is, however, the only writer who distinctly states this: ‘tenian Audiencia General, que la llamaban Napualtlatolli, como decir, Palabra ochentena, que era Dia, en el qual se juntaban todos los de la Ciudad, y los Asistentes de todas las Provincias, con todo el Pueblo, asi nobles, como Comunes, y Plebeios,’ &c. Monarq. Ind., tom. i., p. 168; Ixtlilxochitl, Hist. Chich., in Kingsborough’s Mex. Antiq., vol. ix., pp. 244-5, says that the king was accompanied by all his sons and relatives, with their tutors and suites.
Concerning this judicial system of Tezcuco, see: Las Casas, Hist. Apologética, MS., cap. ccxii.; Torquemada, Monarq. Ind., tom. i., p. 168, tom. ii., pp. 351-5; Zurita, Rapport, in Ternaux-Compans, Voy., série ii., tom. i., pp. 96, et seq.; Clavigero, Storia Ant. del Messico, tom. ii., pp. 128-9; Mendieta, Hist. Ecles., pp. 134-6; Sahagun, Hist. Gen., tom. ii., lib. viii., pp. 302-5; Pimentel, Mem. sobre la Raza Indígena, pp. 28-9; Carbajal Espinosa, Hist. Mex., tom. i., p. 595.
This sentence reads as follows in the original: ‘Á los lados serbian de alfombras unas pieles de tigres y leones, y mantas hechas de plumas de águila real, en donde asimismo estaban por su orden cantidad de braceletes, y grevas de oro.’ Ixtlilxochitl, Hist. Chich., in Kingsborough’s Mex. Antiq., vol. ix., p. 243. It is difficult to imagine why ‘braceletes, y grevas de oro’ should be placed upon the floor, but certainly the historian gives us to understand as much. Prescott, who affects to give Ixtlilxochitl’s description ‘in his own words,’ and who, furthermore, encloses the extract in quotation marks, gets over this difficulty by omitting the above-quoted sentence entirely. Mex., vol. i., p, 34; and Veytia, Hist. Ant. Mej., tom. iii., p. 205, adopts the same convenient but somewhat unsatisfactory course. This latter author’s version of the whole matter is, however, like much other of his work, inextricably confused, when compared with the original.
’Las paredes estaban entapizadas y adornadas de unos paños hechos de pelo de conejo, de todos colores, con figuras de diversas aves, animales y flores.’ This is rendered by Prescott: ‘The walls were hung with tapestry, made of the hair of different wild animals, of rich and various colors, festooned by gold rings, and embroidered with figures of birds and flowers.’ A few lines above, ‘la silla y espaldar era de oro,’ is construed into ‘a throne of pure gold.’ It seems scarcely fair to style the ancient Chichimec’s description one ‘of rather a poetical cast,’ at the same time making such additions as these.
Ixtlilxochitl, ubi supra, writes: ‘En los primeros puestos ocho jueces que eran nobles y caballeros, y los otros cuatro eran de los ciudadanos.’ Veytia says: ‘Los cuatro primeros eran caballeros de la nobleza de primer órden, los cuatro siguientes ciudadanos de Tezcuco.’ Hist. Ant. Mej., tom. iii., p. 199.
Ixtlilxochitl, Hist. Chich., in Kingsborough’s Mex. Antiq., vol. ix. p. 242-3. The whole of the above description is very difficult to translate literally, owing to the confused style in which it is written; and if in places it is somewhat unintelligible, the reader will recollect that I translate merely what Ixtlilxochitl says, and not what he may, or may not, have meant to say.
Torquemada, Monarq. Ind., tom. ii., p. 354; Las Casas, Hist. Apologética, MS., cap. ccxii;, Veytia, Hist. Ant. Mej., tom. iii., p. 199; Clavigero, Storia Ant. del Messico, tom. ii., p. 128; Zurita, Rapport, in Ternaux-Compans, Voy., série ii., tom. i., p. 100; Mendieta, Hist. Ecles., p. 134.
Clavigero, Storia Ant. del Messico, tom. ii., p. 129.
Prescott, Mex., vol. i., p. 33, says: ‘The paintings were executed with so much accuracy, that, in all suits respecting real property, they were allowed to be produced as good authority in the Spanish tribunals, very long after the Conquest; and a chair for their study and interpretation was established at Mexico in 1553, which has long since shared the fate of most other provisions for learning in that unfortunate country.’ Boturini thus describes the paper used by the Aztecs: ‘El Papel Indiano se componìa de las pencas del Maguèy, que en lengua Nacional se llama Mètl, y en Castellano Pita. Las echaban à podrir, y lavaban el hilo de ellas, el que haviendose ablandado estendian, para componer su papel gruesso, ò delgado, que despues bruñian para pintar en èl. Tambien hacian papel de las hojas de Palma, y Yo tengo algunos de estos delgados, y blandos tanto como la seda.’ Catálogo, in Id., Idea, pp. 95-6.
Veytia writes very positively on this point: ‘Habia tambien abogados y procuradores; á los primeros llamaban tepantlatoani, que quiere decir el que habla por otro, y á los segundos tlanemiliani, que en lo sustancial ejercian sus ministerios casi del mismo modo que en nuestros tribunales…. Daban términos á las partes para que sus abogados hablasen por ellas, y estos lo hacian del mismo modo que en nuestros tribunales.’ Hist. Ant. Mej., tom. iii., pp. 207-8. Sahagun relates the qualities which were supposed by the Aztecs to constitute a good or bad procurador or solicitador, and describes their duties: ‘El procurador favorece à una banda de los pleyteantes, por quien en su negocio vuelve mucho y apela, teniendo poder, y llevando salario por ello. El buen procurador es vivo y solícito, osado, diligente, constante, y perseverante en los negocios, en los cuales no se deja vencer; sino que alega de su derecho, apela, tacha los testigos, ni se cansa hasta vencer á la parte contraria y triunfar de ella. El mal procurador es interesable, gran pedigüeño, y de malicia suele dilatar los negocios: hace alharacas, es muy negligente y descuidado en el pleito, y fraudulento de tal modo, que de entrambas partes lleva salario. El solicitador nunca para, anda siempre solícito y listo. El buen solicitador es muy cuidadoso, determinado, y solícito en todo, y por hacer bien su oficio, muchas veces deja de comer y de dormir, y anda de casa en casa solicitando los negocios, los cuales trata de buena tinta, y con temor ó recelo, de que por su descuido no tengan mal suceso los negocios. El mal solicitador es flojo y descuidado, lerdo, y encandilador para sacar dineros, y facilmente se deja cohechar, porque no hable mal el negocio ó que mienta, y así suele echar á perder los pleitos.’ Hist. Gen., tom. iii., lib. x., pp. 23-4. Clavigero takes the opposite side of the question: ‘Nei giudizj dei Messicani facevano la parti da per se stesse le loro allegazioni: almeno non sappiamo, che vi fossero Avvocati.’ Storia Ant. del Messico, tom. ii., p. 129. ‘No counsel was employed; the parties stated their own case, and supported it by their witnesses.’ Prescott’s Mex., vol. i., p. 32. ‘L’office d’avocat était inconnu; les parties établissaient elles-mêmes leur cause, en se faisant accompagner de leurs témoins.’ Brasseur de Bourbourg, Hist. Nat. Civ., tom. iii., p. 581.
The reader will have remarked in a previous note that Veytia assigns more judges to each court than any other writer.
Veytia, Hist. Ant. Mej., tom. iii., p. 208.
Torquemada, Monarq. Ind., tom. ii., pp. 355-6; Mendieta, Hist. Ecles., p. 135; Clavigero, Storia Ant. del Messico, tom. ii., pp. 128-9.
Veytia, Hist. Ant. Mej., tom. iii., p. 200.
Las Casas, Hist. Apologética, MS., cap. ccxv., ccxii.; Sahagun, Hist. Gen., tom. ii., lib. viii., pp. 304, 313; Mendieta, Hist. Ecles., p. 135; Veytia, Hist. Ant. Mej., tom. iii., p. 423; Zurita, Rapport, in Ternaux-Compans, Voy., série ii., tom. i., pp. 101-2. Torquemada says the unjust judge was warned twice, and shaved at the third offense. Monarq. Ind., tom. ii., p. 356. See also Id., p. 385.
Camargo, Hist. Tlax., in Nouvelles Annales des Voy., 1843, tom. xcix., p. 136.
Torquemada, Monarq. Ind., tom. i., p. 165.
Torquemada translates tlacatecatl, Captain General, (Capitan General). We have already seen that it was the title of the presiding judge of the second Mexican court of justice, but it was probably in this case a military title, both because military promotion would be more likely to be conferred upon a renowned warrior than a judgeship, and because the prince is spoken of as a young man, while only men of mature years and great experience were entrusted with the higher judicial offices.
Torquemada, Monarq. Ind., tom. i., pp. 189-90.
Tezozomoc, Crónica Mex., in Kingsborough’s Mex. Antiq., tom. ix., p. 146.
These names are spelled tlelpiloia and quahucalco by Las Casas, and teïlpiloyan and quauhcalli, by Brasseur de Bourbourg.
Las Casas, Hist. Apologética, MS., cap. ccxii., says that the jails called quahucalco resembled the stocks; the other writers do not notice this difference.
Clavigero, Storia Ant. del Messico, tom. ii., p. 138.
Clavigero, Storia Ant. del Messico, tom. ii., pp. 138-9; Torquemada, Monarq. Ind., tom. ii., p. 353; Las Casas, Hist. Apologética, MS., cap. ccxii.; Mendieta, Hist. Ecles., p. 138.
Mendieta, Hist. Ecles., p. 138.
Clavigero, Storia Ant. del Messico, tom. ii., p. 137.
Torquemada, Monarq. Ind., tom. i., p. 166, tom. ii., p. 381; Ortega, in Veytia, Hist. Ant. Mej., tom. iii., p. 225; Boturini, Idea, p. 27. The number of ears of corn varies according to the different writers from three or four to seven, except Las Casas, who makes the number twenty-one or over, stating, however, that this and some other laws that he gives are possibly not authentic. Hist. Apologética, MS., cap. ccxv. The Anonymous Conqueror writes: ‘quando altri entrauano nelle possessioni altrui per rubbare frutti, ò il grano che essi hanno, che per entrar in vn campo, e rubbare tre ò quattro mazzocche ò spighe de quel loro grano, lo faceuano schiauo del patrone di quel campo rubbato.’ Relatione fatta per vn gentil’huomo del Signor Fernando Cortese, in Ramusio, Navigationi, tom. iii., fol. 306. Clavigero agrees with the Anonymous Conqueror, that the thief of corn became the slave of the owner of the field from which he had stolen, and adds in a foot-note: ‘Torquemada aggiunge, che avea pena di morte; ma ciò fu nel Regno d’Acolhuacan, non già in quello di Messico.’ Storia Ant. del Messico, tom. ii., p. 133.
The Works of Hubert Howe Bancroft, Volume 2
The Native Races, Volume 2, Civilized Nations
Author: Hubert Howe Bancroft
As Fray Bernardino de Sahagún observed: the Mexicans “are held to be barbarians and of very little worth; in truth, however, in matters of culture and refinement, they are a step ahead of other nations." We explore the history and legacy of the Nahua and Maya civilizations, both of which challenge our preconceptions.