1.  Canon Law[1]

In the Doce Reglas Las Casas begins his argument for restitution and justice from divine law, however in the Adición de la Primera y Quinta Reglas he starts with canon law, his area of academic expertise.  His initial reference to canon law, in the first paragraph of the Adición, states that the confessor can constrain the penitent to give a pledge to make restitution by means of the penalties of canon law.  He further says that the confessor too is obliged under grave penalties of canon law to ask the penitent for this pledge.  Las Casas is saying that canon law binds both the penitent and confessor, so that the suitable pledge is made prior to confession, or at least before absolution.  He supports this initial canon law argument with the Decretales of Gregory IX; he refers to this same source earlier in Rule V, but in the Adición he expounds on this citation more fully.[2]  Las Casas’ second reference to canon law is actually a salvo of sources he uses later in the Adición.  He cites Bartolo [Sassoferrato (d. 1357)], Alexander [Tartagnus (d. 1477)][3], Jason [de Mayno (d. 1519)], Innocent [IV (d.1254)], Antonio de Butrio (d. 1408) and Oldrado de Ponte da Lodi (d.1335)] to support his argument that the confessor is a spiritual judge and consequently a public and official person of the universal Church in all things that should concern souls and spiritual service.[4]  Therefore the priest can accept and/or obligate a penitent by canon law to pledge to make restitution.  Las Casas reinforces this point and follows this particular reference by stating that it is the common opinion of canonists that the confessor can stipulate and oblige one party to pay another, a position he supports with reference to Abbot Panormitano.[5]  Later Las Casas asserts that secular justices devote themselves little to what is arranged in sacred canons, therefore he argues that it is the priest’s responsibility to constrain the penitent to make a pledge to pay restitution.

2.  Natural and Divine Law

Natural and divine law are joined here because Las Casas combines them in the Adición as if they are part of a common argument.  Only on one occasion in the Adición is divine law mentioned by itself.[6]  Although in the Adición he first refers to canon law, natural and divine law are the principles he quotes the most often to make his case for restitution and justice.[7]  His initial reference to these principles is in the opening paragraph where he argues that by natural and divine law the confessor must oblige the penitent to pledge to make restitution.  He later expounds on the confessor’s obligation by natural and divine law to supply counsel and advice to the penitent.  He argues that the confessor is obligated by these principles to judge justly and thus to perform his duty as a faithful and prudent servant, as a spiritual judge placed in his office by God.  This argument he supports with scriptural references.[8]  Las Casas continues using natural and divine law to state that the confessor is obligated to constrain the penitent, and the penitent is obligated to make restitution for the sake of justice, for Las Casas this mutual requirement is self-evident from these two principles.   Lastly, he adds to his case by arguing that the doctors seem to obligate the confessor by natural and divine law to ask for a pledge from the penitent to make restitution.[9]

3.  Civil Law

It will be noticed that Las Casas mixes references to civil law in the Adición de la Primera y Quinta Reglas with his discussion of canon and divine law.  The combination of secular, ecclesiastical and divine law in his argument for restitution is a clear example of how state, church and scripture blend in colonial Spain.[10]  Even so, he does mention at the beginning of the Adición that the penitent is to obligate himself by a public document, one assumes this document is dealt with in civil law exclusively.   About halfway through the Adición there is an additional example of how secular and ecclesiastical ideas are combined where he says that it is the common opinion of legists[11] and canonists that the confessor can stipulate and oblige one party to pay another.[12]  Several pages later he contrasts civil law with the law of God; he points out that there are times when a debt is made known and there is no remedy from secular justices, because according to civil law the debtor is not constrained to pay restitution.  But in this case, Las Casas asserts that according to the law of God, in the forum of conscience, the penitent is to be ordered to make restitution.[13]  He is asserting the preeminence of divine law over civil law.  On the following page of the Adición, Las Casas refers to a juratoria[14] pledge that a penitent can make in the case it is impossible for him to pay a large debt.  This pledge, covered by civil law, states that the penitent will satisfy the amount owed within a certain period of time, although at the time of making this pledge he is incapable of paying it.[15]

Notes