June 2004
Spanish Colonial Labor Law and Occupational Health:
What Can We Learn about Policy and Practice?
By Dan La Botz,
Visiting Assistant Professor,
History and Latin American Studies,
Miami University, Oxford, Ohio
“In the work of construction some were crushed by beams, others fell from
heights, and others were caught beneath buildings that were being torn down in one place
in order to erect others elsewhere,” wrote Alonso de Zorita to King Philip II of Spain
sometime before 1570. In his book length report to the King on conditions in the New
World, Zorita, a retired Spanish judge, would spend something like 100 pages discussing
working conditions, and often describing the occupational safety and health hazards of
the Indian workers. The reports and complaints of royal officials like Zorita, and
particularly of the Dominican friars like Bartolomé de las Casas, would lead the Spanish
Crown to produce a body of literature regulating the economy, establishing the rights of
workers, and protecting workers’ health and safety. Spain would in the period between
1513 and 1633 create a remarkable body of labor law, and in particular of laws regarding
workers health and safety.
Lewis Hanke argued more than 40 years ago that Spanish reformers like Las
Casas who pressured the Spanish state to adopt laws protecting Indians represented an
important development in the international human rights movement1 What I ask here is if
we might learn something new and different if we were also to consider that movement
and those laws as part of the process of developing workers’ rights, and particularly
1
occupational safety and health regulations. Occupational safety and health legislation and
regulation refers to laws and rules governing all work-related conditions which affect the
safety, health and general well-being of workers. We generally include within the
occupational safety and health field issues of workplace safety, working conditions,
equipment and tools, exposure to dangerous materials, and ergonomic issues such as
lifting and carrying. Finally, occupational safety and health has historically usually
included special protections for women and children and migrant workers. In order to
give meaning to such laws and regulations there must also be a mechanism for oversight
and enforcement. Remarkably, Spain had developed laws governing many of these issues
for its colonies some 500 years ago.2
What can we learn from the Spanish government’s social policy, its attempt to
regulate health and safety in a New World? What concerns drove the Spanish to create
such a policy? What were the policies that evolved? How were they enforced? To what
extent were such policies successful in enhancing the lives of Indian workers, and
protecting their health and safety on the job? How does Spanish labor and occupational
safety and health legislation compare with modern national and international laws of this
sort?3
Background to Spanish Labor Legislation and Occupational Health Law
Where did the Crown’s sense of authority to and responsibility to protect Indian
workers come from? The Spanish explorer Christopher Columbus “discovered” the
Americas in 1492 and began taking Indians as slaves, thus raising the first issue of
1
Lewis Hanke, The Spanish Struggle for Social Justice in the Conquest of America (Dallas: Southern
Methodist University Press, 2002), passim.
2
We have a sketch of modern occupational safety and health legislation at the end of this paper.
2
workers’ rights in the Americas.4 By1521 Hernán Cortés had conquered Mexico and by
1532 Pisarro had conquered Peru, while other conquistadores conquered other areas. The
conquest was carried out through warfare accompanied by massacres, rape, robbery,
arson, and every sort of horror imaginable. Everywhere the Spanish went they took
Indians, men, women and children, as captives to be held as slaves or forced laborers.5
Conquest was followed immediately by colonization as Spaniard by the thousands
arrived to settle in the islands of the Caribbean, in Mexico, Central and South America.
The conquerors and colonizers became the rulers of a vast indigenous population of tens
of millions who would serve as their labor force. At the same time, the Spanish conquest
represented part of a broader European conquest of the American peoples which
subjected them as a periphery to exploitation by a metropolitan center at the moment of
the dynamic expansion of the capitalist economy.6
The conquest, however, caused a health and social crisis. When the Spaniards
arrived, the Americas were populated by somewhere between 60 and 100 million Indians
made up of hundreds of different ethnic and cultural groups. With the Spanish came
epidemic diseases that would tend to kill about 90 percent of the inhabitants within the
3
I thank my wife Dr. Sherry Baron, a physician in the field of occupational medicine, for thinking through
these issues with me, and helping to develop some of the questions and points raised here.
4
Christopher Columbus, Four Voyages to the New World: Letters and Selected Documents, Bi-lingual
Edition, trans. and ed. by R.H. Major, Intro. by John E. Fagg (New York: Corinth Books, 1969), 84-85 he
discusses the possibility of selling Caribbean slaves to pay for the explorations. Throughout the letters there
are references to the taking of slaves, men, women and children, some of whom are sent back to Spain.
5
Hernando Cortés, Five Letters: 1519-1526, trans. by J. Bayard Morris (New York: W.W. Norton &
Company, Inc., n.d. [928]), 379; Bernal Díaz del Castillo, The Discovery and Conquest of Mexico, trans.
by A.P. Maudslay, Intro. by Irving A. Leonard, (New York: Farrar, Straus and Giroux, 1973), 328, 332-33,
376-7; Hugh Thomas, Conquest: Montezuma, Cortés, and the Fall of Mexico (New York: Simon and
Schuster, 1993) 436-438. Cortés himself took thousands of slaves. In those first days men were often killed,
women and children enslaved. Women slaves were frequently taken as concubines, as observed by the
Bishop of Mexico, Juan de Zumárraga in a letter of 1529, as cited in: Ricardo Herren, La conquista erótica
de las Indias (Mexico: Planeta, 1991), 97, fn. 2.
6
Fernand Braudel, Civilization and Capitalism, 15th to 18th Century, Vol. III, The Perspective of the World,
trans. from French by Siân Reynolds (Berkeley: University of California, 1992), 21-70, 392-99;
3
century.7 The Spanish conquest involving the destruction of the native civilizations, the
brutal warfare and massacres of civilians, the slavery and forced labor, and above all the
epidemics of diseases from which the indigenous had no immunity led to what historians
call the demographic catastrophe, that is, the collapse the Indian populations between the
early 1500s and the late 1600s when the indigenous population once again began to
stabilize and then to grow again.
This demographic disaster not only forms the context to the Spanish debate on
social policy, but actually served as the principal issue driving the establishment of labor
rights in the New World. Las Casas, who won the ear of the Crown, described the
Spanish genocide and warned the Crown: “The Island of Cuba…is almost devoid of
population.”8 The same annihilation of the indigenous, he suggested, was happening
throughout the Americas. He writes about this continental ethnocide in a powerful
passage, “They have murdered and utterly hacked to pieces large and diverse nations,
devastated many tongues and left no one to speak for them, save perhaps some who may
have escaped to hide themselves in the caves and innards of the earth, fleeing form this
foreign and pestilential knife.”9 What is this continues? “If, then, the Indians are being
brought to the point of extermination, if as many peoples are being destroyed as
widespread kingdoms are being overthrown, what sane man would doubt that the most
flourishing empire of the New World, once its native inhabitants have been destroyed,
Nicolás Sánchez-Albornoz, “the population of colonial America,” in: Leslie Bethell, The Cambridge
History of Latin America (New York: Cambridge University Press, 1984), II, 3-36.
8
Bartolomé de las Casas, An Account, Much Abbreviated, of the Destruction of the Indies with Related
Texts (Indianapolis: Hackett Publishing Company, Inc., 2003), 6.
9
Ibid., 65.
7
4
will become a wildness, and nothing but dominion over tigers, lions, and wild beasts for
the King of Spain?”10
Spain is killing the Indians, what will happen if it kills them all? Who will do the
work? Las Casas’s pamphlets and books presented a chilling account of Spanish
barbarism that might lead to the utter destruction of the civilizations and peoples of the
new world. The specter of the virtual extermination of the Indians, raised by Las Casas
and others, suggested that the Spanish colonies on two continents would be left virtually
abandoned, not only with no labor force to work the mines and fields for the Spaniards,
but perhaps also with no population to defend the colony from rival imperial powers
(Dutch, English, French, Portuguese). Without labor who would mine the gold, build the
cities, work on the plantations? Without inhabitants, what good were the colonies? The
alarm among Spanish officials caused by the demographic catastrophe represents the
principal motive for protective labor laws. The empire defends on the survival of the
workers, on their health and safety at work.
The Christian humanists, particularly the friars of the Dominican order, also put
forward an other argument. They argued that God had created all men in his image, and
that Indians too were human beings. As such their lives had value. Basing themselves on
a theory of natural law handed down through from classical authors to the Church fathers,
the Christian humanists argued that Indian civilizations had the same right to sovereignty
as Christian states. Friars Montesinos and Las Casas and philosophy professor Francisco
de Vittoria criticized the violence of the conquest, opposed the enslavement of the
Indians, and put forward a vision of society in which Spaniards and Indians might live
10
In Defense of the Indians, trans. by Stafford Poole, C.M., foreword by Martin E. Marty (DeKalb:
Northern Illinois University Press, 1999), 19.
5
together as social equals.11 Las Casas and others called upon the King to protect the
Indians by stopping the conquests while permitting missionaries to preach. The monks
would undertake the protection of the Indians, without which they could not save them
and their souls. Part of that had to be the protection of the Indian as worker, the
protection of his or her health and safety at work. If the Indian could not be kept alive, he
could not be converted, and his soul would go to hell.12 Christian humanism, the
argument from the common humanity of the Indian laborers, and the need to save their
souls, represented the second major motive for labor legislation.
The two arguments--the need to prevent the destruction of the labor force which
would jeopardize production and profit, and the need to protect the human life of the
worker in order to save his soul--form the two poles of the Spanish debate over colonial
policy, including over labor and occupational health and safety issues in the sixteenth
century. The subsequent hundred years of debate, legislation, and attempts at
enforcement of the law would see the Crown and its agents vacillate between, on the one
hand, keeping up production and, on the other hand, protecting Indians’ lives by
enforcing labor law and its occupational health provisions.
Spanish Origins of Social and Economic Regulation and Labor Law
How did the Spanish state understand and justify its power to dictate economic
regulations, labor protections, and occupational safety and health regulations? The King’s
right to make and enforce laws on many aspects of life formed part of the presumptions
11
Franciscus de Victoria [Francisco de Vittoria], De Indis et De Ivre Belli Relectiones (Classics of
International Law) (Washington, D.C.: Carnegie Institution, 1917); Francisco de Vitoria [Francisco de
Vittoria], Relecciones: del estado, de los indios, y del derecho de la guerra (Mexico: Editorial Porrua,
1974). De Vittoria’s two books are based on the notes on his lectures of 1532 and were first published in
1562.
12
Both the “cost-benefit analysis” argument and the altruistic Christian humanist argument can be found in
the writing of Bartolomé de las Casas.
6
of the late medieval, feudal outlook.13 The Crown based its right to rule on earlier
Spanish laws such as the Siete Partidas of Alfonso X, el Sabio.14 Those royal laws
included laws regulating the economy and labor. Spain’s uniquely militant Catholicism,
forged in the reconquista, became another justification for the regulation of society, the
economy, and labor. The Spanish crown protected Indian laborers in large part to protect
the faith.15 During the years of conquest and colonization of the Americas Spain had
become a particularly legalistic and litigious state where the Crown, aristocrats, the
wealthy bourgeois, artisans and peasants, and even the very poor sought to resolve
economic and social problems in the courts.16 While the Spanish state was authoritarian,
the government and courts permitted genuine protest over moral and political issues.17
All of these religious, political and cultural values the Spanish carried with them to the
New World. The Papal Bull Inter caetera of 1493 and the Treaty of Tordesillas of 1494
had granted Spain dominion in the New World. Spain claimed authority for its actions
and its laws from the Pope, head of Christendom, the highest religious and political
authority on the planet. International authority stood behind Spanish laws, including its
colonial laws regarding Indians and their labor.
Of course the period under discussion came hundreds of years before the
American Revolution of 1776 and French Revolution of 1789 that enunciated the
13
Stanley Paine, A History of Spain and Portugal, I, 173. (http://libro.uca.edu/payne1/spainport1.htm
“The Castilian monarchy of Isabel built upon the traditional Castilian state--a strong royal executive with
considerable scope for royal law, but functioning in harmony with a comparatively weak traditional Cortes
that held a limited power of the purse and a nominal right to ratify the royal succession.”
14
Jose María Ots y Capdequi, Historia del derecho español en América y del derecho indiano. (Madrid:
Aguilar, 1968). This book gives a most thorough and complete account of Spanish law in the Indies.
15
Stanley G. Payne, Ibid., I, 170-187.
16
Richard L. Kagan, Lawsuits and Litigants in Castile:1500-1700: (http://libro.uca.edu/title.htm), Chap. 1.
17
“It should be kept in mind, however, that Las Casas' campaign on behalf of the American Indians had
been possible precisely because moral and political protest, as distinct from heterodox religious protest, had
always been possible in Spain.” Paine, Ibid., 225-6.
7
principle of equality before the law. The Spanish Crown’s conception of justice was
based upon the principles of hierarchy, patriarchy, and distinctions between different
strata and sectors of society. The Crown never intended the same law to apply to the
Spaniard, the Indian and the African, nor did it want the same laws to apply to the Crown,
the aristocrat, the farmer and the artisan. Spanish law also differentiated between men
and women, between Christians, Muslims and Jews, between whites and blacks, and
offered special privileges based on religion and race, and thought that right and just. With
the discovery of the New World, the Spanish extended their discriminatory legal system
to the indigenous people assigning them a place subordinate to Spaniards, but also
offering special protections to the Indians. Even among the Indians, the laws always
distinguished between the Indian caciques and their rights and duties and those of the
common Indian. For each stratum and sector there were different laws seen as appropriate
to that group. That being said, the Crown did aim for a kind of equality or equity among
the Indians who labored, attempting for example to insure that the labor demands placed
on a particular group of Indians were shared fairly among them.
The transfer from Spain to the New World of a whole system of religion, politics,
and law and its imposition upon the indigenous people represented the epitome of
ethnocentric arrogance and prepotencia on an unprecedented scale. Nevertheless, within
that arrogant imposition there existed simultaneously a set of presumptions about the
protection of Indians as workers. The Spanish Crown, largely under the influence of Las
Casas and other critics, came to see the Indians as a people in need of protection. As
Enrique Florescano has written, “…the Crown contrived to send abroad the laws, judges
8
and special tribunals, ordered to protect the rights of the peoples in an exclusive and
paternalistic fashion.”18
The Decree of Queen Isabella of 1503
Queen Isabella, called The Catholic, promulgated the first labor laws of the Indies
with the cédula of 1503:
I have commanded this my letter to be issued on the matter, in which I command
you, our said Governor, that beginning from the day you receive my letter you
will compel and force the said Indians to associate with the Christians of the
island and to work on their buildings, and to gather and mine the gold and other
metals, and to till the fields and produce food for the Christian inhabitants and
dwellers of the said island; and you are to have each one paid on the day he works
the wage and maintenance which you think he should have....and you are to order
each cacique to take charge of a certain number of the said Indians so that you
may make them work wherever necessary, and so that on feast days and such days
as you think proper they may be gathered together to hear and be taught in matters
of the Faith....This the Indians shall perform as free people, which they are, and
not as slaves. And see to it that the said Indians are well treated, those who
become Christians better than the others, and do not consent or allow that any
person do them any harm or oppress them….19
That same year the Queen organized the Secretariat of Indian Affairs, intended to protect
the Indians. Out of that Secretariat later came the Supreme Council of the Indies.
Implicit throughout this and later Crown edicts is the assumption that the Indian is
not an adult human being capable of exercising his or her own free will, but rather a
dependent person in need of tutelage to be both directed and protected.20 The Queen’s
assertion that the Indians were to be treated as free people may have represented an
18
Enrique Florescano, Etnia, estado y nación: Ensayo sobre las identidades colectivas en México (Mexico:
Aguilar, 1997), 189.
19
Cédula of Isabella to Ovando, Dec. 20, 1503, in D.I.I., XXXI, 209-212, cited in: Lesley Byrd Simpson,
The Encomienda in New Spain: Forced Native Labor in the Spanish Colonies, 1492-1550 (Berkeley,
California: University of California Press, 1929), 30-31.
20
State and religious authorities both held the view of the perpetual minority of the Indians. See, for
example, the discussions in: Florescano, Ibid., 193; Robert Ricard, La Conquista espiritual de México
(Mexico: Fondo de la Cultura Económica, 2001), 253.
9
important human rights and workers’ right standard for the era, as some have suggested.21
But her decree also expresses the ambivalence and the inherent contradictions that will
characterize Spanish labor legislation throughout the 16th and 17th centuries. That is, that
on the one hand the Indians, though free, are to be forced to work, and that, on the other
hand, they are to be treated as free persons, paid wages, and “well treated.”
Bartolomé de las Casas, who had urged a policy of Indian protection on the
Crown, well understood the ambiguities built into the Queen’s decree. “Surely, the
intention clearly shows the Queen’s concern for the well-being and the conversion of the
Indians, a concern she kept to the day of her death….If she ordered measures contrary to
their well-being, the blame falls on the erroneous and ignorant information she received
from the members of the council….”22 Las Casas goes so far as to call for disobedience
to her royal command:
But even if the Queen had ordered it, he [the governor] should have disobeyed
because it is manifest that, had the Queen known the quality of the land, the
fragility and gentleness of the Indians, the harshness of the work, the difficulties
of extracting gold, the bitter life of desolation and despair which they lived dying,
and finally the impossibility of dying with the sacraments, she would never have
written such a warrant [cédula, or decree].”23
Whatever the Queen might have done had she had more information and better advisors,
the primary thrust of the law was to make the Indians work, not to protect them as
workers.
See for example, “Isabella I (the Catholic)” in the Catholic Encyclopedia: “Not only did Isabella the
Catholic always show herself the protectress of Columbus, but she was also the protectess of the American
aborigines against the ill-usage of the colonists and adventurers.”
22
Bartolomeo de las Casas, History of the Indies, trans. and ed. by Andrée Collard (New York: Harper &
Row, 1971), 107.
23
Ibid., 109.
21
10
The Laws of Burgos 1512-1513
The Laws of Burgos of 1512 and the Amendments of 1513 represent the first
systematic legal code for the government of the Indies, providing for the regulation of
government, religion and the economy, and for rules governing labor. At the time the
Indies encompassed several islands in the Caribbean, and territory on the coasts of
present day Panama, Colombia and Venezuela.24 This code established the use of the
word encomienda with its sense of both privileges and obligations (rather than the term
repartimiento). Much of the Laws of Burgos dealt with the religious education and the
general social welfare of the Indians The Crown ordered Spaniards given an encomienda
to see that the Indians planted crops and raised animals so that they would have enough to
eat. The Spaniards were also to see to their religious education and to insure that they had
opportunities to attend mass.
But the Laws of Burgos also established specific regulations for workers to
protect their health and welfare, and it could be considered the first body of laws dealing
with the occupational health and safety in the New World. The laws expressed the
Crown’s genuine Christian concern about the welfare of the Indians. But they also
express the fear that the oppression and exploitation that the Indians were suffering might
lead to their extermination, in which case the their would be no labor to produce the
mineral wealth of the Indies. The laws suggest the kinds of abuses that Indian laborers
suffered at the hands of the Spanish conquerors and from which they had to be protected.
While the Law of Burgos and other later laws were more often violated in practice, they
established a standard of labor rights which Indians could use in making appeals to their
24
That is the reader should be aware that New Spain (Mexico) and Peru, the most important Spanish New
World territories, had not yet been conquered and colonized.
11
employers or the authorities. These laws also laid the basis for future laws for the
protection of Indians and workers, laws that would later be extended to laborers in New
Spain (Mexico) and Peru. The Laws of Burgos contain many of the classical elements of
workers health and safety legislation: concern for periods of work and rest, concern for
adequate diet and living conditions, prohibition of corporal punishment, and special
protective legislation for women and children. There is even legislation for women’s
maternity leave.
Miners, the most important body of workers in the Indies form an economic point
of view, represented a special concern for the Crown, both because the mines of gold and
silver stood at the center of the early colonial economy, and because mining appeared to
take the lives of so many Indians.25 The Laws of Burgos specifically attempted to protect
the health of miners and their social welfare, by insuring they had periods of rest and an
opportunity to return to their homes and be with their families.
…said persons who have Indians in encomienda shall extract gold with them for
five months in the year and, at the end of these five months, the said Indians shall
rest forty days, and the day they cease their labor of extracting gold shall be noted
on a certificate, which shall be given to the miners who go to the mines; and upon
the day thus designated all the Indians shall be released in the district where the
founding is to be done, so that all the Indians of each district shall go to their
houses on the same day to rest during the said forty days; and in the said forty
days no one shall employ any Indians in extracting gold, unless it is a slave on
pain that for every Indian that any person brings to the mines in the said period of
forty days he shall pay half a gold peso…26
That section continues, “And we command that the Indians who thus leave the mines
shall not, during the said forty days, be ordered to do anything whatever, save to plant the
25
We know today that the Indians were dying of epidemic diseases to which they had no immunities,
illnesses exacerbated by the harsh labor regime and social turmoil. At the time it seemed as if they were
simply being worked to death. Many probably were worked to death, but death often came more quickly
because of the rampant epidemics.
12
hillocks necessary for their subsistence that season…”27 Resting from their arduous and
mining work, the Indians were still expected to engage in the farming that formed the
basis for their subsistence and that of their families.
The Laws of Burgos also provided guidelines for the general health and wellbeing of the miners. Indians working in the mines and doing other hard labor were “to be
given bread and peppers and a pound of meat a day, and on feast days fish or sardines or
other things for their subsistence…”28 And anyone who violated this regulation was to be
fined two gold pesos, and if the violations continued and he was fined three times, then
on the fourth occasion the Indians would be taken from him. Spaniards were obliged to
give each Indian a hammock to be sure that he or she didn’t have to sleep on the ground.
Each Indian was also to be given a gold peso every year so that they would be able to by
clothing.29 Spaniards were also forbidden to use corporal punishment on the Indians or to
verbally abuse them. The Law of Burgos section XXIV reads:
Also, we order and command that no person or persons shall dare to beat any
Indians with sticks, or whip him, or call him dog, or address him by any name
other than his proper name alone; and if an Indian should deserve to be punished
for something he has done, the said person having him in charge shall bring him
to the visitor [Visitador, a Royal official] for punishment, on pain that the person
who violates this article shall pay, for every time he beats or whips an Indian or
Indians, five pesos gold; and if he should call an Indian dog, or address him by
any name other than his own, he shall pay one gold peso…30
This first code also provided for maternity leave in the form of light duty for women.
Also, we order and command that no pregnant woman, after the fourth month,
shall be sent to the mines, or made to plant hillocks, but shall be kept on the
estates and utilized in household tasks, such as making bread, cooking, and
26
John H. Parry and Robert G. Keith, New Iberian World: A Documentary History of the Discovery and
Settlement of Latin America to the Early 17th Century (New York: The NewYork Times Book Co., Inc.,
1984), Vol. I The Conquerrors and the Conquered, 340.
27
New Iberian World, Vol. I, 340.
28
New Iberian World, Vol. I, 341.
29
New Iberian World, Vol. I, 342.
30
New Iberian World, I, 343.
13
weeding; and after she bears her child she shall nurse it until it is three years old,
and in all this time she shall not be sent to the mines, or made to plant hillocks, or
used in anything else that will harm the infant, in pain that the person who has
Indians in encomienda and fails to obey this shall, for the first offense, incur the
penalty of six gold pesos…and for the second offense the woman and her infant
shall be taken from him, and for the third, the woman and her husband and six
other Indians.31
The Amendments to the Law of Burgos which were dictated in 1513 contained
other provisions for the protection of women and children. The first amendment stated
that “Indian women married to Indian men who have been given in encomienda shall not
be forced to go and come and serve with their husbands, at the mines or elsewhere, unless
it is by their own free will, or unless their husbands wish to take them…”32 That is, the
Spaniard could not force them to go against their will or the will of their husbands. The
law also protected young women from abuse by Spanish employers or male supervisors
or coworkers, in effect a law to prevent sexual harassment on the job.
Also, we order and command that unmarried Indian women who are under the
authority of their parents, mothers or fathers, shall work with them on their lands,
or on the lands of others by agreement with their parents; and those not under the
authority of their fathers and mothers shall, to prevent their becoming vagabonds
and bad women, and to keep them from vice and teach them the doctrine, be
constrained to be with the other women and work on their estates, if they have
such, otherwise, they shall work on the estates of the Indians and others, who
shall pay them their wages at the rate they pay the others who work for them.33
Clearly the Spanish Crown viewed all Indians as needing protection, and Indian women
in particular as needing special protection from the exploitation and oppression by the
Spaniards.
Finally, the law provides special protection for children as well, creating the first
New World laws against child labor.
31
New Iberian World, I, 343.
New Iberian World, I, 346.
33
New Iberian World, I, 346.
32
14
Also, we order and command that Indian children under fourteen years of age
shall not be compelled to work at tasks [of adults] until they have attained the said
age or more; but they shall be compelled to work at, and serve in, tasks proper to
children, such as weeding in the fields and the like, on their parents’ estates (if
they have parents); and those above the age of fourteen shall be under the
authority of their parents until the are of age and married.34
If a young person has no parents he is to be given to a guardian to protect him.
The New Laws
In response to continued reports of terrible abuses of the Indians in the New
World, in 1542 the Council of the Indies issued the New Laws which called for the
abolition of both Indian slavery and the encomienda within a generation. Like the earlier
Laws of Burgos, the New Laws called for the protection of the Indians, and also offered
specific regulations for the protection of Indian laborers in general and certain specific
groups of Indians in particular. The New Laws were motivated not only by concerns
about annihilating the indigenous population, but also by the Crown’s desire to weaken
the quasi-feudal class of encomenderos. We see here a class struggle driving labor
legislation but it is not—as in modern times—the class struggle between property owners
and labor, but rather a struggle between the Crown and the aristocracy.
The most important sections of the document called (again) for the abolition of
slavery and for an end to the granting of encomiendas, as well as to an end to tribute for
certain groups of indigenous peoples. The Crown ended both slavery and forced labor
with this decree:
We ordain and command that from henceforward for no cause of war nor any
other whatsoever, though it be under title of rebellion, nor by ransom nor in other
manner can an Indian be made a slave, and we will that they be treated as our
vassals of the Crown of Castile since such they are.
34
New Iberian World, I, 346.
15
No person can make use of the Indians by way of Naboría [as forced laborers,
usually household servants] or Tapia [as involuntary custodians of guards] or in
any other manner against their will.35
The Crown called for a gradual end to the encomienda. Where Indians in encomienda had
been abused, they were to be taken away from their former masters and placed “under our
Royal Crown.” Henceforward no royal authority was to give any Indians in encomienda,
and when those holding encomiendas died, the Indians were to “revert to our Royal
Crown.”36 In this way, within one generation the encomienda would come to an end. (In
fact this particular part of the legislation ended up being reversed, the and encomienda
was not abolished until the eighteenth century.)
The decree also called for an end to tribute for Indians on San Juan, Cuba and
Española. The document said that the Indians “will not be molested with tribute, nor
other services, either real, personal, or mixed, but be treated in the manner as the
Spaniards who reside in the said Islands, and let them be quiet, in order that they may be
better able to multiply and be instructed in the matters of our holy Catholic faith: for
which service religious persons will be appointed, such as are fitting for such purpose.”37
The New Laws ending of tribute would come too late for the indigenous people of the
islands, almost all of whom were if not already annihilated on the way to virtual total
extermination within the next few years.
35
New Iberian World, I, 353. The definitions of Naboría and Tapia from Santamaria’s Diccionario de
Mejicanismos. In other periods Naboría will mean wage-earning household servant, but not yet. Las Casas
also has a discussion of naborías: “Naborías were those Indians who continually, day and night, perpetually
served, who only lacked the name of slaves…” Bartolomé de las Casas, Historia de las Indias (Mexico:
Fondo de Cultura Económica, 1951), III, 23 (Capítulo LVI).
36
New Iberian World, I, 353.
37
New Iberian World, I, 355.
16
The Crown was also concerned with reports that the Indians had been used as
beasts of burden and so included immediately after the abolition of slavery, language to
stop the overburdening of Indians used as carriers (tamemes).38
Also, We command that with regard to the lading of the said Indians the
Audiencias take especial care that they be not laden, or in case that in some parts
this cannot be avoided that it be in such a manner that no risk of life, health and
preservation of the said Indians may ensue from an immoderate burthen; and that
against their own will and without their being paid, in no case be it permitted that
they be laden, punishing very severely him who shall act contrary to this. In this
there is to be no remission out of respect to any person.39
The New Laws also singled out for protection the pearl divers whose conditions had been
described in Bartolomé de Las Casas Brief Account of the Destruction of the Indies.40
The New Laws commanded:
Because report has been made to us that owing to the pearl fisheries not having
been conducted in a proper manner deaths of many Indians and Negroes have
ensued, We command that no free Indian be taken to the said fishery under pain
of death, and that the bishop and the judge who shall be at Veneçuela direct what
shall seem to them most fit for the preservation of the slaves working in the said
fishery, both Indians and Negroes, and that the deaths may cease. If, however, it
should appear to them that the risk of death cannot be avoided by the said Indians
and Negroes, let the fishery of the said pearls cease, since we value much more
highly (as is right) the preservation of their lives than the gain which may come to
us from the pearls.41
This represents a remarkable standard in occupational safety and health, the idea that it
would be better to close a profitable business rather than risk the health and lives of the
workers.
From Nahuatl tlameme, from Santamaria’s Diccionario de Mejicanismos.
New Iberian World, I, 353.
40
Bartolomé de las Casas, An Account, Much Abbreviated, of the Destruction of the Indies with Related
Texts (Indianapolis: Hackett Publishing Company, Inc., 2003), 62-63.
41
New Iberian World, I, 352-3.
38
39
17
Other legislation and examples here
While the Laws of Burgos and the New Laws represented the two most important
and broadest laws dealing with the Indies, there were also many other laws, orders and
decrees. Some of these laws begin to show a concern with Indian wages.
A Decree prohibiting the personal servitude of Indians in 1549 specified that
Indians could not perform service in lieu of paying tribute, even if they did so voluntarily
or at the behest of their chiefs. The Decree suggested that “…one of the things in which I
will be best served will be if you always act with the intention of bringing about the total
abolition of these personal services.” The same decree commanded that where Indians
hired themselves for wages, they had to be paid a living wage. Or as the decree put it,
“…I command you from here on in those cases and matters where it may be necessary for
the Indians to be forced to hire themselves, as is said, to take particular care to assess a
reasonable salary for the Indians who are occupied in this from which they can
comfortably maintain themselves and save for other necessities they may have.” The law
also suggested that in some cases it might be better to pay the Indians piece rates, so that
they would have a higher income.42
One historian argues that the Decree prohibiting the personal service of Indians
was promulgated in 1549 “in order to break the encomenderos’ monopoly of Indian
labour…”43 Thus we see that the Crown’s desire to break the power of the quasi-feudal
encomienda also played a role in promoting labor legislation that might improve the
position of the Indians.
42
New Iberian World, I, 360.
Enrique Florescano, “The formation and economic structure of the hacienda in New Spain,” in Leslie
Bethell, The Cambridge History of Latin America (New York: Cambridge University Press, 1984), II, 165.
43
18
Particular Laws
While we have so far dealt with the most important royal edicts, we should also
consider some of the more particular health and safety laws adopted to protect the Indian
laborers, most of them after the abolition of slavery and the ending of the encomienda.
Promulgated by the Crown within the context of the most important decrees described
above, these laws were later gathered together in the Recopilacion de Leyes de los
Reynos de las Indias published in 168144
Indians were protected from working in some jobs altogether (jobs often reserved
for black slaves, mestizos, mulattos or criminals).45 For example Indians were forbidden
from 1595 to work in obrajes or manufactories (sweatshops we would call them today),
and they were not permitted to work in the ingenios or sugar mills.46 They were also
forbidden from being employed as pearl divers.47 Nor could they be used to drain the
mines.48
The Spanish did not understand that contagious diseases were killing the Indians,
but they did recognize that their conditions seemed to worsen when moved from one
location to another, presumably because of the change in climate. So in 1541 the Emperor
ordered that Indians from the highlands, “tierra fría” should not be taken to the low
44
Spanish Crown. Recopilacion de Leyes de los Reynos de las Indias. Madrid: Consejo de la Hispanidad,
1943. 3 Vols.
45
Recopilacion, II, 361 (Libro VII, Título IIIII, Ley iiij), orders that “Negros, Mulatos libres,y ociosos”
should be made to work in the mines.
46
Recopilacion, II, 301 (Libro VI, Título XII, Ley viij). Though another law of 1609, however, permitted
them to work in obrajes, but only if they did so voluntarily. Recopilacion, II, 302 (Libro VI, Título XIII,
Ley x).
47
Recopilacion, II, 302 (Libro VI, Título XIII, Ley xj).
48
Recopilacion, II, 311 (Libro VI, Título XIII, Ley xij).
19
lands, “tierra caliente,” or visa versa, because the change of climate was “muy nociva a
su salud, y vida” (very harmful to their health and well-being).49
The Crown insisted that all Indians be paid wages. For example, a law of 1594
regarding Indian miners reads: “The day’s pay must be reasonable and proportional to the
labor of the Indians, and to the other circumstances, and must constitute a just value, and
must include pay to and from work…”50 In 1601 the Crown asserted that Indian mine
workers must be paid punctually on Saturday afternoon. The Crown prohibited employers
from paying Indians their daily wage in alcoholic beverages, honey or yerba de Paraguay
(mate).51 The government also insisted that particular groups of Indians who were likely
to be exploited by being forced into unpaid labor must be paid. For example, the Crown
declared in 1631 that no Indian could be made to sweep the streets without being paid.52
Similarly, the law was applied to agricultural and construction workers, not only
guaranteeing them wages, but also portal-to-portal pay. “Indians who are hired to work in
the fields and to build buildings in the towns, and do other things necessary to the
Republic, must be paid a daily wage, which is just, for the time they work, plus the time
to and from work, until they get home, a distance of ten leagues and no more.”53 (A
league is three miles, so Indians are not to be required to work more than 30 miles from
their homes.)
The Crown repeatedly dictated laws to prohibit Indians from being used by the
Spaniards as beasts of burden. We find in the laws and in court decisions repeated
49
Spanish Crown. Recopilacion de Leyes de los Reynos de las Indias (Madrid: Consejo
de la Hispanidad, 1943) II, 192. (Libro VI, Título I, Ley xiij.) (Hereafter: Recopilacion.)
50
Recopilacion, II, 302 (Libro VI, Título XV, Ley iij).
51
Recopilacion, II, 301 (Libro VI, Título XII, Ley vij.)
52
Recopilacion, II, 277 (Libro VI, Título X, Ley xiij).
53
Recopilacion, II, 286 (Libro VI, Título XII, Ley iij).
20
commands that Indians not be ordered to carry things on their backs like animals. Indians
were not to carry supplies from the haciendas to the mines.54 Indians could unload ships,
but could not carry the cargo more than half a league from the dock (one and a half
miles).55 When Indians did lift baskets, bales or boxes, they should not lift objects not
weigh more than two arrobas (each arroba is about 25 pounds, for a total of 50 pounds).56
Sometimes the law seems concerned not only with the Indians’ health, but also with
protecting their dignity. The Crown ordered in 1536 that no Indian was to be forced to
carry a Spaniard in a hammock or in a litter or sedan chair unless the person being carried
was very sick. The penalty for violating this law was 100 gold pesos to be paid half to the
authorities and half to the person who denounced the crime. The law appears intended to
protect the Indians not only from having to carry heavy weights over long distances, but
also to stop the indignity of using Indians as beasts of burden to convey Spaniards.57
The Crown also established child labor laws. For example, in those cases where
Indians might be permitted to work as porters, no child under 18 years of age was to be
permitted to do such heavy work.58
A particularly important law was one promulgated by Felipe II in 1562 that gave
Indians the right to go to the Audiencia to make complaints against an Alcalde mayor, a
judge, or other authorities, or against a private person, in order to seek justice. Indians did
take their complaints to the Royal authorities in the colonies, and did seek justice, and
54
Recopilacion, II, 287 (Libro VI, Título XII, Ley viij).
Recopilacion, II, 288 (Libro VI, Título XII, Ley xj).
56
Recopilacion, II, 289 (Libro VI, Título XII, Ley xv).
57
Recopilacion, II, 277 (Libro VI, Título X, Ley xvij).
58
Recopilacion, II, 277 (Libro VI, Título XII, Ley xiiij).
55
21
sometimes won.59 We find records of many Indian suits brought to the Viceroys or other
Spanish authorities in the New World. Indians could be litigious and successful in court..
The Introduction of African Slave Labor and White Artisans
Before turning to the implementation of the laws protecting Indian labor, we
should note that perhaps the most important measure taken by government and employers
to protect the Indian workers was the introduction of African slave labor. The Spanish
Crown decided that Africans were to be substituted for Indians in many of the heaviest
and most dangerous jobs. As we know, it was Las Casas himself who had suggested that
African slaves might be substituted for Indian labor in the mines and other heavy labor, a
proposal he later came to regret.60 The Spanish Crown, however, never undertook to
protect free or enslaved Africans as it had Indian laborers. Why not? There were several
reasons. First, Spaniards had for hundreds of years held black Africans to be racial
inferiors, attitudes that were only reinforced by the growth of the African slave trade.61
Second, Africans, because they did not succumb to disease as the Indians of the New
World did, appeared to be healthier and stronger, and therefore in less need of special
protection.62 Spanish officials did not express much concern for the condition of African
slaves, and legislation regarding free Africans and mulattos mostly deals with controlling
them, not protecting them. The Crown, for example, in 1551 forbids Negros from
carrying arms of any sort and in 1542 denies them the right to walk through the cities at
59
Recopilacion, II, 277 (Libro VI, Título X, Ley xviij).
Las Casas, History of the Indies, p. 257. Las Casas writes of himself in the third person: “The clergyman
soon repented and judged himself guilty of ignorance. He came to realize that black slavery was as unjust
as Indian slavery and was no remedy at all, even though he had acted on good faith, and he was not sure
that his ignorance and good faith would excuse him in the eyes of God.” Las Casas himself had also
actually imported slaves to the New World, initiating the terrible experiment.
61
James H. Sweet, “The Iberian Roots of American Racist Thought,” in: Colin A. Palmer, ed., The Worlds
of Unfree Labour: From Indentured Servitude to Slavery (Aldershot: Ashgate/Variorum, 1998), 1-24.
62
Las Casas, Historia de las Indias, III, 176 (Lib. III, Cap. CII) and 274. (Lib. III, Cap, CXXIX).
60
22
night. However, I find no law in the Recopilacion regarding the protection of free or
enslaved black workers on the job.63 Beginning around 1570, Africans began to be
imported into the New World in greater numbers and grew to make up much of the labor
force not only in mines and sugar mills, but also in cities and in the fields. African slaves
and black free men and women were not covered by laws protecting Indian workers,
though they were covered by laws specifically written to deal with them. Few of those
laws had a protective character, acting rather to restrict and limit Africans’ rights in the
New World.
Slaves were not the only workers excluded from the royal laws on labor. Spanish
artisans were not covered either. Spanish artisans themselves brought to the New World
their guilds established by municipal legislation in Spain and sought similar civic
recognition in cities in the Americas. By the mid-1500s guilds had been established in
several major cities either at the initiation of the guild or of the city. Guilds, mostly male
but some of them made up of women and some with men and women members, generally
excluded blacks and mestizos, but Indians could and did join guilds and become
journeymen and masters. While blacks were at first excluded, as they became the
majority of the laboring population in some areas, they were admitted to the guilds to
become masters in some cases. The guilds, authorized by city government, oversaw
recruitment, training, wages, and working conditions of their members. Slaves working in
such shops were not protected by the guild rules. Thus, although there was no Spanish
63
Recopilacion, II, 360-370. (Libro VII, Titulo V, passim).
23
royal decree to order it to happen, Spanish laws protecting artisanal workers were
extended to the New World by replication of Old World municipal law.64
Although African slaves and freemen and white artisanal workers were excluded,
the Royal decrees on Indian labor applied to most workers in the Americas, for most
workers were Indians. The Spanish royal labor laws applied in theory to tens of millions
of Indian workers in the Americas.
How law was Supposed to be Enforced
The responsibility for enforcing the broad principles and specific orders dictated
by Royal cédulas fell to the Spanish government in the New World, the Audiencias and
Viceroys.65 The Viceroy of New Spain, for example, received requests from Spaniards
and complaints from Indians, and, acting as a the chief colonial administrator, or
sometimes as a judge, made decisions that he ordered to be carried out. Most of the
Viceroy’s orders had to do with the assignment of Indians to Spaniards (or sometimes to
Indian caciques) to be used as labor in mines, in the fields, in obrajes (manufactories), in
the construction or maintenance of public workers, monasteries and convents, and
hospitals.
While I have not done a count, I would estimate that over 90 percent of New
Spain’s Viceregal decisions in the period under consideration have to do with the
assignment of labor, not its protection. When the Viceroy assigned Indians to work for a
particular Spanish master, he sometimes indicated that the naturales were to be paid at
Lyman Johnson, “Artisans” in: Louisa Schell Hoberman and Susan Migden Socolow, Cities and Society
in Colonial America (Albuquerque: University of New Mexico Press, 1986), 227-250.
65
Silvio Arturo Zavala and Maria Castelo. Fuestes para la historia del trabajo en nueva España. Mexico:
Fondo de Cultura Económica, 1939-1946. 8 Vols. Documents from Mexico’s Archivo General de la
Nación (AGN), from the branch “General de Parte,” made up principally of the various Viceroys’ orders
64
24
the going rate, treated well, and not required to do other work not indicated in his order.
Indians sometimes complained to the Viceroy or the Audiencia for a variety of reasons:
failure of the employer to pay them, employers assigning them to work other than that
ordered, employers assigning them to work not appropriate to Indians (porters, weavers
in obrajes). When the Viceroy felt that he needed more information he would sometimes
send out an official to investigate. Whatever the case might be, the Viceroy issued an
order that was transmitted to the local authorities, and recorded by the secretary and
preserved in the records.
The Viceroy’s orders either dispatching workers or protecting them, were
generally handed down to the juez repartidor, the judge who assigned Indians labor in a
local area. Often the decisions were directed to the governor, the mayor, and the
principales (Indian caciques) as well as to the juez repartidor, informing all regional and
local authorities of their responsibility to carry out the decision. The juez repartidor had
at his disposal Spanish or Indian alguaciles, constables who would in the end carry out
the order, going to the village, getting the Indians required, and bringing them to the
workplace. For that job the alguacil was rewarded with a small commission for each
Indian delivered. The Viceroy often included in his order penalties for government
officials, Spaniards or Indians who failed to carry out or obey the order. Such penalties
might include the loss of access to Indian labor, jail, or fines. Employers might be denied
access to Indian labor altogether. Ultimately, then, the principles laid down in Spain by
the King or the Council of the Indies, were applied by the Viceroy and the juez
repartidor, and finally carried out by a police officer.
concerning Indian labor. The documents date from 1575 to 1804, though most of the documents are in the
16th and 17th centuries.
25
The Actual Enforcement of the Law
The actual enforcement of Spanish labor and occupational health law, however,
proved far more difficult than the Crown simply sending orders to the Viceroy and then
on down to the juez repartidor and alguacil. The implementation of the protective labor
legislation would be extremely problematic, given that New World society was passing
through a social crisis of enormous proportions. The Spanish conquest had smashed the
old states and undone the old societies, conflict continued between Spaniard and Indian
and also arose among the Indians within the indigenous communities, conflict often
brought on by the Spanish demand for increasing amounts of tribute from tribes with
diminishing numbers. The Indians’ states and societies had in many areas been brought
down or collapsed due to war and disease. Indian culture suffered a cataclysm as it
seemed the old gods and their priests had failed. The congregaciones, that is, new
villages made up of remnants peoples, did not resolve the problems. Civil and religious
authorities warned that the Spaniards without resources or jobs, Negroes, mulattos, and
mestizos preyed upon the indigenous people stirring up trouble, while at the same time
Indians sometimes rebelled either led by their historic leaders or by new caciques. The
situation often appeared chaotic at worst and confused at best. So how in this situation to
create and implement economic regulations, labor protections, and workers’ health and
safety rules?
Spanish slave owners or employers of Indian labor generally ignored, resisted or
evaded both the Royal decrees and local decisions. Spanish slave owners, encomenderos,
and landlords argued that the laws were unjust, taking from them their property in slaves
and denying them access to the labor force. Such laws they argued would reduce
26
production in mines and plantations, make it impossible to make a profit, and thus ruin
their lives. Spaniards in the colonies organized to pressure the authorities to ignore the
laws. “The end result,” writes William Sherman, an historian of Central American
colonial labor, “was the New Laws were not applied in Central America or anywhere
else—except for a reforming judge in Santo Domingo [Alonso López de Cerrato] who
was making the attempt.”66 Another historian, Stanley Paine, has written, “the New Laws
could not be enforced, and it became ultimately impossible to control many of the
ravages of the colonists. Church advocates of the Indians' rights had a significant
mitigating effect on conditions in Spanish America, but they were unable to dominate the
mores of colonial society.”67
The Crown’s decrees, sometimes supplemented by the pressure form the
Dominican and Franciscan friars, would eventually be carried out by a reforming Viceroy
or president of the Audiencia. In Central America, Audiencia president Alonso López de
Cerrato carried out the major reforms between 1548 and his death in 1555, forcing
Spaniards to free their slaves and end some forms of forced labor. As a result, the
situation of the indigenous laborers improved significantly.68
In Mexico, the transition from slavery to government-regulated forced labor took
place in the last years of the administration of Viceroy Antonio de Mendoza 1530-1550
and Luis de Velasco1550-1564. Velasco orders that Indian laborers be paid, establishes a
standard wage of 12 maravedís for laborers and 24 maravedís for skilled craftsmen.
(Throughout this period the principle prevails that skilled workers are paid double the
66
William L. Sherman, Forced Native Labor in Sixteenth-Century Central America (Lincoln: University of
Nebraska Press, 1979), 132.
67
Stanley Paine, page 222
68
Sherman, Ibid., 129-188.
27
wages of unskilled workers.)69 After Velasco some other Viceroys proved to be
apparently sincere and conscientious enforcers of royal edicts, while others proved less
active and successful.
Royal decrees were eventually applied in the New World, but there was always a
lag of several years, or even decades in their application, and even then enforcement
remained uneven. Spanish labor law was not always enforced throughout the colonies.
Why not? The laws themselves were ambiguous from the beginning with its conflicting
motive, that is to force Indians to work but also to protect them. Spanish authorities saw
their first responsibility to provide labor for the owners of mines, sugar plantations,
haciendas, forests, and other private businesses. The enforcement of fair wages and
decent working conditions for workers was at best a secondary consideration in most
cases.
The Spanish Crown may have wished for better enforcement from local
authorities, but the colonies were far away in an era when communication and
transportation were difficult. The officials’ responsibilities were often impossible to carry
out because of the small number of inspectors, the many workplaces and workers, and the
lack of adequate communication and transportation. Moreover complete information was
not always available, and questions or problems could not always be responded to in a
timely manner. Officials frequently responded with the classic “Obedezco, pero no
cumplo,” that is I honor and accept the law, but am unable (not unwilling) to carry it out.
Officials frequently became “radicados,” a term used by historians Buckholder
and Chandler to describe Spanish officials in a later era who after about five years
69
Silvio Zavala, El Trabajo indigena en los libros de govierno del Virrey Luis de Velasco, 1550-1552
(Mexico: Centro de Estudios Históricos del Movimiento Obrero Mexico, 1981), 8.
28
residence in the New World had developed their own economic interests, often in conflict
with their official responsibilities. In that sense, they became corrupt.70 The juez
repartidor, a low level official with little prestige, could make money serving employers
rather than protecting workers.71 Even if not themselves interested parties, officials came
under pressure, and the group most likely to exercise greatest pressure were the
landowners, mine owners, or other government officials. Indians themselves, Dominican
and Franciscan Friars and others might also exercise a counter-pressure in the interest of
Indian workers. But in the last analysis, the landowners and miners won out, not only
because they were the wealthy and powerful colonial ruling class, but also because their
interests meshed with the economic and political objectives of the Crown.
Why did Spanish labor law matter then?
The Spanish state created a system of labor law out of fear of social and economic
catastrophe in the New World. The royal laws had a paternalistic character, designed to
protect an inferior and vulnerable people. The Spanish Crown took labor law and
occupational health and safety seriously, writing detailed laws, and enforcing them
through an elaborate system of administrators, judges, and police officers, backed by the
threat of fines and jail, and even loss of access to the labor force. Though the law was not
always enforced, or not enforced completely or evenly, it did lead to significant
improvements in the conditions of Indian laborers.
Spanish law in some cases stopped or in others restrained some of the worst labor
abuses—slavery and unregulated forced labor. In other cases, Spanish law moderated
70
Mark A. Burkholder and D. S. Chandler, From Impotence to Authority : the Spanish Crown and the
American Audiencias, 1687-1808 (Columbia : University of Missouri Press, 1977).
29
some of the worst practices of the Spanish miners, sugar planters, and owners of obrajes
in the New World. The laws protected at least some of the Indians some of the time from
the Spanish abusers—while forcing African and African American slaves to do that
work. Indians lives were in some cases better for these laws.
The Spanish Crown’s cédulas also established a legal standard to which the
Viceroy, Audiencia, Justicia and Jueces Repartidores and Comisarios could hold the
Spanish employers in the Indies. Some Spanish authorities made good will efforts to
enforce the laws, and succeeded in some cases. The legal standard together with the right
to appeal in court gave the Indians a formal and official vehicle to pursue their rights. The
authorities and the Indians used the courts effectively at times to protect the Indians, their
livelihoods, working conditions, and their health and safety. The laws (together with the
turn toward African slave labor) helped to save the Indians from extermination, and made
some of their lives easier.
Spanish Labor and Occupational Health Law in Historical Perspective
From a modern point of view, one of the fundamental difference in the system of
labor law and regulation in colonial Spain is that Indian workers had absolutely no say in
it. Indians did not participate in the writing of the laws, and they were not involved in the
enforcement of the laws. While they could and did use the Spanish legal system to
demand their rights under the law, they depended upon decisions made by the Spanish
judges. The Indian could only be a petitioner, a supplicant before the law. Modern labor
law has often been initiated by workers, labor unions, and labor parties, and in modern
Murdo J. Macleod, “Aspects of the internal economy of colonial Spanish America: labour; taxation;
distribution and exchange,” in in Leslie Bethell, The Cambridge History of Latin America (New York:
Cambridge University Press, 1984), II, 227.
71
30
systems labor representatives often sit on tripartite boards with employers and
government officials. But Indians had no direct representation in labor boards.
The most striking thing of all from a modern perspective, is that the law
responded to the imminence of social catastrophe, not to the class struggle. Modern labor
laws (as we will see in the discussion below) respond to workers’ struggles, and represent
the attempt of the employing class and the state to deflect, contain, and neutralize
workers’ movements for control over work. Yet, despite that fundamental difference,
there is also a profound similarity (as we will develop at greater length below), because
the Spanish state steps in because the Spanish employer will not act in his own best
interest. The state intervenes to keep the employers from exterminating the laboring class.
Similarly the modern state or international organization steps in because the class of
employers refuses to act in its own best interest, moderating exploitation and oppression
in the workplace before they reach the breaking point, to prevent workers’ rebellion or
revolution.
Spain’s occupational safety and health laws of the 1500s protecting Indian
laborers throughout the Americas are remarkable, for they were written almost 200 years
before the first scientific study of workers’ health and safety, some 300 years before
national laws protecting workers, and 400 years before the first international standards.
Dr. Bernardino Ramazzini (1633-1714), an Italian physician, has generally been
considered the father of the field of occupational health and safety. His De morbis
artificum diatriba (Diseases of Workers) published in 1700 represented the first modern
and scientific study of workers’ health and safety. The treatise dealt with such issues as
dust and chemical exposures, work processes and safety hazards among workers in over
31
fifty different trades and industries, including chemists, glass workers, painters miners,
midwives, wet-nurses, foundry workers, farmers, potters, masons, and many others. He
even took up the issues of stress among intellectual workers.72 Though writers such as
Adam Smith and Karl Marx were aware of Ramazzini’s account of occupational health
and safety hazards, his writings had little impact, and there was no national labor
legislation protecting workers until over 100 years later.
Great Britain, the most industrialized nation in the world, began to pass factory
legislation only in the early 1800s, first aimed at protecting children, beginning with the
Health and Morals of Apprentices act in 1802 and followed by a series of other laws until
the adoption of the comprehensive Factory Act of 1833. The 1833 Act prohibited
children under 13 from working more than nine hours per day or more than 48 hours per
week. Those under 18 were not to do night work, though two eight-hour shifts for
factories employing children were permitted. Other nations developed such legislation in
the late nineteenth century as industrial development spread across Europe. Factory
inspection laws regulating workers health and safety which had been introduced in
England in 1833 spread to Prussia in 1853, to France in 1874, and to Austria in 1883.73
The founder of occupational health and safety in the United States was Alice
Hamilton, a physician and the first woman professor of medicine at Harvard, who
became director of the Occupational Disease Commission of the State of Illinois, created
by the governor in 1910.74 Her studies of occupational illness from the 1910s to the 1940s
72
Bernardino Ramazzini, Diseases of Workers Translated from the Latin text De morbis artificum of 1713
by Wilmer Cave Wright, with an introduction by George Rosen. (New York : Hafner, 1964).
73
Karl Polanyi, The Great Transformation (New York: Farrar & Rinehart, Inc., 1944), 147.
74
Alice Hamilton, Exploring the Dangerous Trades; the Autobiography of Alice Hamilton, M.D. With
illustrations by Norah Hamilton (Boston, Little, Brown and Co., 1943); Barbara Sicherman, ed., Alice
Hamilton, a Life in Letters (Cambridge, Mass.: Harvard University Press, 1984).
32
pioneered the workers’ health movement in the United States. The United States
Congress had already passed the first mine safety act in 1891.75 The U.S. Bureau of
Labor Statistics (BLS) began studies of occupational health and safety in 1912.76
However it was not until 1970 that labor unions in the United States pressured Congress
to pass the Occupational Safety and Health Administration to protect workers on the
job.77
International workers’ health and safety standards, that is uniform standards for
workers around the world, were a long time coming. It is only since the beginning of the
twentieth century that we have had international standards (called conventions) for
occupational safety and health promulgated by the International Labor Organization
(ILO), later affiliated with the United Nations.78
Why did individual nations and eventually the ILO and United Nations finally
pass laws to protect workers safety and health? Karl Polanyi argued in The Great
Transformation that laws regulating the market and protecting labor, such as factory
inspection, arose “spontaneously” from a variety of different social groups with different
ideologies because “the market economy was a threat to the human and natural
components of the social fabric.”79 That is, unregulated capitalism seemed to jeopardize
the well-being not only of workers but of the entire society. Competitive capitalism
threatened catastrophe unless regulated by the state. Contemporary historians argue that
U.S. Department of Labor, “History of Mine Safety and Health Legislation,”
http://www.msha.gov/MSHAINFO/MSHAINF2.HTM
76
U.S. Department of Labor, “History of BLS and Health Statistical Programs,”
http://www.bls.gov/iif/oshhist.htm
77
Judson MacLaury, "The Occupational Safety and Health Administration: A History of its first Thirteen
Years, 1971-1984," U.S. Labor Department,
http://www.dol.gov/asp/programs/history/mono-osha13introtoc.htm
78
For the ILO Conventions and Recommendations Concerning Occupational Safety and Health see:
http://www.ilo.org/public/english/protection/safework/cis/oshworld/ilostd/index.htm
75
33
the progressive, liberal, labor and socialist movements, and the revolutionary upheavals
of the post-World War I period, particularly the Bolshevik Revolution in Russia, spurred
the creation of the International Labor Organization and the writing of the first
international labor standards.80 Spain also dictated labor laws because of fear of the
destruction of the social fabric. The Spanish Crown feared that its own subjects’ avarice
in the colonies might annihilate the Indians and destroy colonial society while at the same
time jeopardizing the empire’s economic and political objectives.
We find some similarities between the Spanish Crown’s colonial labor and
occupational health laws and contemporary international and national labor laws and
regulations. God, the Catholic church headed by the Pope, and the Royal Crown gave
Spanish law its legitimacy and authority, an authority that extended from Spain to its
colonies. Catholic claims of universality, that is of one faith for all, stood behind the
Christian humanism that motivated legislation to outlaw slavery and unregulated forced
labor. We find her some similarity between the Spanish Catholic claims of universality
and the United Nations and the International Labor Organization which makes secular
claims to be an institution representing humanity. Such claims have been expressed in the
Universal Declaration of Human Rights adopted in 1948 which in Article 4 banned
slavery and servitude and in Articles 23, 24 and 25 guaranteed some basic labor rights.81
About 25 years later the United Nations adopted the International Covenant on
Economic, Social and Cultural Rights, Articles 7 and 8 of which deal with minimum
79
Polanyi, Ibid., 141-150.
Edward C. Lorenz, Defining Global Justice: The History of U.S. International Labor Standards Policy
(Notre Dame, Indiana: University of Notre Dame Press, 2001), 70-71; David A. Morse, The Origin and
Evolution of the I.L.O. and Its Role in the World Community (Ithaca, New York: Cornell University, New
York State School of Industrial and Labo Relations, 1969), 3-36.
81
United Nations Universal Declaration of Human Rights at: http://www.un.org/Overview/rights.html
80
34
labor standards.82 At about the same time the United Nations adopted the International
Covenant on Civil and Political Rights which in Article 8 also banned slavery and
servitude.83 More specifically the UN’s International Labor Organization’s labor
standards conventions speak specifically to the protection of workers rights.84 The ILO,
however, has no enforcement mechanism beyond the good will of national governments.
Nevertheless ILO and national labor laws provide standards which workers can use to
fight for full protection of their health and safety on the job. Only 400 years after Spain
pioneered occupational health and safety in the Crown’s laws of the 1500s did the world
finally have international standards of workers’ well-being on the job.
While we cannot argue out the point here, we would suggest that as in colonial
Spain, today on a world scale, the demand for production constantly runs counter to the
protection of workers’ health and safety. Nations and corporations compete
internationally to increase production and profit and those tendencies may weaken or
altogether cancel efforts at protecting workers health and safety. We find that 500 years
ago the Spanish Crown established standards of minimum wages, child labor, maternity
leave, and general fair treatment of workers which it could not enforce. Today we find
that national governments and international organizations also establish standards which
they often cannot enforce today because of the drive for profit and production.
###
82
United Nations International Covenant on Economic, Social and Cultural Rights at:
http://www.unhchr.ch/html/menu3/b/a_cescr.htm
83
United Nations International Covenant on Civil and Political Rights at:
http://www.hrweb.org/legal/cpr.html#Article%208
84
International Labor Organization Conventions can be found at:
http://www.ilo.org/ilolex/english/convdisp2.htm
35