CHAPTER XIV.

NAHUA LAWS AND LAW COURTS.

GENERAL REMARKS--THE CIHUACOATL, OR SUPREME JUDGE--THE COURT

OF THE TLACATECATL--JURISDICTION OF THE TECUHTLIS--THE

CENTECTLAPIXQUES AND TOPILLIS--LAW COURTS AND JUDGES OF

TEZCUCO--EIGHTY-DAY COUNCIL--TRIBUNAL OF THE KING--COURT

PROCEEDINGS--LAWYERS--WITNESSES--REMUNERATION OF

JUDGES--JUSTICE OF KING NEZAHUALPILLI--HE ORDERS HIS SON'S

EXECUTION--MONTEZUMA AND THE FARMER--JAILS--LAWS AGAINST

THEFT, MURDER, TREASON, KIDNAPPING, DRUNKENNESS, WITCHCRAFT,

ADULTERY, INCEST, SODOMY, FORNICATION, AND OTHER

CRIMES--STORY OF NEZAHUALCOYOTL AND THE BOY.

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

Tezcuco, 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, Tezcuco,

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."[476] 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.

[Sidenote: THE CIHUACOATL, SUPREME JUDGE.]

In Mexico, and in each of the principal cities of the empire, there

was a supreme judge, called _cihuacoatl_,[477] 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.[478] Whether or

not the cihuacoatl pronounced judgment in civil cases is uncertain.

According to Clavigero he did;[479] Prescott,[480] Brasseur de

Bourbourg,[481] and Carbajal Espinosa[482] agree with Clavigero, and

Leon Carbajal[483] cites Torquemada as an authority for this

statement, but the fact is Torquemada distinctly affirms the

contrary,[484] as does Las Casas,[485] 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[486] 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.[487]

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_.[488] 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.

[Sidenote: 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.[489] 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.[490]

[Sidenote: THE EIGHTY-DAY COUNCIL.]

In Tezcuco, although the kingdom was divided into many provinces,[491]

the higher courts of justice were placed in six of the principal

cities only.[492] 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.[493] These twelve judges were assisted by twelve

sheriffs,[494] 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,[495] 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,[496] and affairs of state and policy were discussed

and transacted; it generally sat during eight or ten days.[497] 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.[498] 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.[499] The walls were tapestried with cloth of all colors, made

of rabbits' hair, adorned with figures of divers birds, animals, and

flowers.[500] Attached to the throne was a canopy of rich plumage, in

the centre of which was a glittering ornament of gold and precious

stones.

[Sidenote: 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;[501] 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.[502]

[Sidenote: COURT PROCEEDINGS.]

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.[503]

[Sidenote: 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;[504] 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.[505] 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.[506] 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,[507] 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.[508] 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.[509]

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.[510] 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.[511]

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.[512]

[Sidenote: 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 Tezcuco, 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.[513] 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.[514] 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 words

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.'

[Sidenote: 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.[515]

[Sidenote: 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.[516]

[Sidenote: 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_,[517]

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;[518] 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.[519] 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.[520] 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."[521]

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.

[Sidenote: 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.[522] Let us now see what these laws were.

[Sidenote: 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,[523] 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[524] 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.[525] 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;[526] sometimes he was stoned to death.[527] He who robbed

on the highway was killed by having his head smashed with a club;[528]

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.[529]

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.[530] 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.[531]

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.[532] 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.[533]

The murderer suffered death even though he should be a noble and his

victim but a slave.[534] In Michoacan, we are told by Herrera,[535]

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.[536] He who

administered poison to another, thereby causing death, died for it,

and the same punishment was awarded to him who furnished the

poison.[537]

[Sidenote: 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.[538]

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.[539]

[Sidenote: 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,[540] though according to

the explanation of Mendoza's collection old men of seventy years were

allowed to drink as much as they pleased.[541] 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;[542] the same license was granted to those whose daily

occupation necessitated great bodily exertion, such as masons,

carpenters, and the like.[543] 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.[544] These heathens, however,

seem to have recognized the natural incongruity existing between

precept and practice, fully as much as the most advanced

Christian.[545]

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.[546]

[Sidenote: MISCELLANEOUS LAWS.]

Whoever made use of the royal insignia or ensigns, suffered death, and

his property was confiscated.[547] 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.[548] He

who by force took possession of land not belonging to him, suffered

death.[549] 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.[550] If a piece of land was

fraudulently sold twice over, the first purchaser held it, and the

vendor was punished.[551] He who squandered his patrimony suffered

death.[552] The son 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.[553] He who

removed boundary-marks, died for it.[554] 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.[555] 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.[556] Whoever obtained goods on

credit and did not pay for them, was enslaved, and the delinquent

taxpayer met with the same punishment.[557]

[Sidenote: PENALTY FOR ADULTERY.]

Concerning the way in which adulterers were treated scarcely two of

the ancient writers agree,[558] 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,[559] 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.[560] Las Casas and Torquemada,

however, who are both far older authorities, tell us that no man or

woman was punished for adultery upon the unsupported testimony of the

husband, but that other witnesses, and the confession of the

defendants were necessary to procure their conviction.[561] 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.[562] 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.[563]

An adulterer could not escape the law on the plea of drunkenness,[564]

and, indeed, had such an excuse been held 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.[565] 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.[566]

[Sidenote: UNNATURAL CRIMES.]

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.[567] He who attempted to

ravish a maiden, whether in the field, or in her father's house,

suffered death.[568] In Michoacan, the ravisher's mouth was split from

ear to ear with a flint knife, and he was afterwards impaled.[569] 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.[570] 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.[571] 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."[572]

Las Casas relates that in several of the more remote provinces of

Mexico unnatural vice was tolerated, if not actually permitted,[573]

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.[574] 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.

[Sidenote: LAWS RESPECTING CHASTITY.]

The priest who violated his vow of chastity was banished; his house

was demolished and his property confiscated.[575] 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.[576] This was the law in Mexico; in

Tezcuco, according to the historian of the Chichimecs, the pimp

suffered death in all cases.[577]

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.[578] The woman who took

any drug to procure an abortion, and she who furnished the drug, both

suffered death.[579] If one woman sinned carnally with another, both

died for it.[580] The man who went about the streets dressed as a

woman, or the woman who dressed as a man, was slain.[581]

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.

[Sidenote: 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.[582] 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.[583]

FOOTNOTES:

[476] '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.

[477] 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.'

[478] 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.

[479] '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.

[480] _Mex._, vol. i., p. 29.

[481] _Hist. Nat. Civ._, tom. iii., p. 580.

[482] _Hist. Mex._, tom. i., p. 593.

[483] _Discurso_, p. 97.

[484] '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.

[485] _Hist. Apologética_, MS., cap. ccxii.

[486] _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.

[487] 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.

[488] 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.

[489] 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.

[490] _Las Casas_, _Hist. Apologética_, MS., cap. ccxii.;

_Torquemada_, _Monarq. Ind._, tom. ii., p. 355; _Clavigero_, _Storia

Ant. del Messico_, tom. ii., pp. 127-8.

[491] Torquemada, _Monarq. Ind._, tom. ii., p. 354, says that there

were fifteen provinces subject to the king of Tezcuco.

[492] 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.

[493] _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.

[494] 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.

[495] 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.

[496] '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.

[497] 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.

[498] 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.

[499] 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.

[500] '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.

[501] 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.

[502] _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.

[503] _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.

[504] _Clavigero_, _Storia Ant. del Messico_, tom. ii., p. 129.

[505] 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.

[506] 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.

[507] The reader will have remarked in a previous note that Veytia

assigns more judges to each court than any other writer.

[508] _Veytia_, _Hist. Ant. Mej._, tom. iii., p. 208.

[509] _Torquemada_, _Monarq. Ind._, tom. ii., pp. 355-6; _Mendieta_,

_Hist. Ecles._, p. 135; _Clavigero_, _Storia Ant. del Messico_, tom.

ii., pp. 128-9.

[510] _Veytia_, _Hist. Ant. Mej._, tom. iii., p. 200.

[511] _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.

[512] _Camargo_, _Hist. Tlax._, in _Nouvelles Annales des Voy._, 1843,

tom. xcix., p. 136.

[513] _Torquemada_, _Monarq. Ind._, tom. i., p. 165.

[514] 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.

[515] _Torquemada_, _Monarq. Ind._, tom. i., pp. 189-90.

[516] _Tezozomoc_, _Crónica Mex._, in _Kingsborough's Mex. Antiq._,

tom. ix., p. 146.

[517] These names are spelled _tlelpiloia_ and _quahucalco_ by Las

Casas, and _teïlpiloyan_ and _quauhcalli_, by Brasseur de Bourbourg.

[518] Las Casas, _Hist. Apologética_, MS., cap. ccxii., says that the

jails called quahucalco resembled the stocks; the other writers do not

notice this difference.

[519] _Clavigero_, _Storia Ant. del Messico_, tom. ii., p. 138.

[520] _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.

[521] _Mendieta_, _Hist. Ecles._, p. 138.

[522] _Clavigero_, _Storia Ant. del Messico_, tom. ii., p. 137.

[523] _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.

[524] _Las Casas_, _Hist. Apologética_, MS., cap. ccxiii.; _Mendieta_,

_Hist. Ecles._, p. 138.

[525] Ortega's statement reads: 'Casi siempre se castigaba con pena de

muerte, á ménos de que la parte ofendida conviniese en ser indemnizada

por el ladron, en cuyo caso pagaba este al fisco una cantidad igual á

la robada.' _Veytia_, _Hist. Ant. Mej._, tom. iii., p. 225.

[526] _Vetancvrt_, _Teatro Mex._, pt ii., p. 33; _Torquemada_,

_Monarq. Ind._, tom. i., p. 166.

[527] _Explicacion de la Coleccion de Mendoza_, in _Kingsborough's

Mex. Antiq._, vol. v., p. 112.

[528] _Ixtlilxochitl_, _Hist. Chich._, in _Kingsborough's Mex.

Antiq._, tom. ix., p. 246.

[529] _Mendieta_, _Hist. Ecles._, p. 138; _Ortega_, in _Veytia_,

_Hist. Ant. Mej._, tom. iii., p. 225; _Torquemada_, _Monarq. Ind._,

tom. ii., p. 381. Las Casas, _Hist. Apologética_, MS., cap. ccxiii.,

says that he who stole in the market-place was hanged there and then

by order of the judges of the place, and in cap. cxv., he writes: 'El

que en el mercado algo hurtava, era ley que luego publicamente alli en

el mismo mercado lo matasen á palos.' Again in the same chapter he

gives a law, for the authenticity of which he does not vouch, however,

which reads as follows: 'el que en el mercado hurtava algo, los mismos

del mercado tenian licencia para lo matar á pedradas.'

[530] _Ortega_, in _Veytia_, _Hist. Ant. Mej._, tom. iii., p. 225.

[531] _Las Casas_, _Hist. Apologética_, MS., cap. ccxv.

[532] _Torquemada_, _Monarq. Ind._, tom. ii., p. 381; _Las Casas_,

_Hist. Apologética_, MS., cap. ccxv.

[533] _Herrera_, _Hist. Gen._, dec. iii., lib. iii., cap. x.;

_Beaumont_, _Crón. Mechoacan_, MS., p. 51.

[534] 'L'omicida pagava colla propria vita il suo delitto, quantunque

l'ucciso fosse uno schiavo.' _Clavigero_, _Storia Ant. del Messico_,

tom. ii., p. 130. The manner of putting the murderer to death is

differently stated: 'El homicidio, bien fuese ejecutado por noble ó

plebeyo, bien por hombre ó muger, se castigaba con pena de muerte,

depedazando al homicida.' _Ortega_, in _Veytia_, _Hist. Ant. Mej._,

tom. iii., p. 226. 'Al que mataba à otro, hacian degollar.'

_Torquemada_, _Monarq. Ind._, tom. i., p. 166. 'Al matador lo

degollaban.' _Vetancvrt_, _Teatro Mex._, pt ii., p. 33. Other writers

merely say that the murderer suffered death, without stating the

manner of execution. See, _Las Casas_, _Hist. Apologética_, MS., cap.

ccxiii.; _Ixtlilxochitl_, _Hist. Chich._, in _Kingsborough's Mex.

Antiq._, vol. ix., p. 387; _Mendieta_, _Hist. Ecles._, p. 136. Diego

Duran, in his inedited 'History of New Spain,' asserts that the

murderer did not suffer death, but became the slave for life of the

wife or relatives of the deceased. _Kingsborough's Mex. Antiq._, vol.

viii., pp. 240-1.

[535] _Hist. Gen._, dec. iii., lib. iii., cap. x.

[536] _Beaumont_, _Crón. Mechoacan_, MS., pp. 51-2.

[537] _Mendieta_, _Hist. Ecles._, p. 136; _Ortega_, in _Veytia_,

_Hist. Ant. Mej._, tom. iii., p. 226; _Las Casas_, _Hist.

Apologética_, MS., cap. ccxiii. In cap. ccxv., among his

unauthenticated laws, we read that if the victim of poison was a

slave, the person who caused his death was made a slave, in the place

of suffering the extreme penalty, but the opposite to this is

expressly stated by Clavigero and implied by Ortega.

[538] _Relatione fatta per vn gentil'huomo del Signor Fernando

Cortese_, in _Ramusio_, _Navigationi_, tom. iii., fol. 307; _Las

Casas_, _Hist. Apologética_, MS., cap. ccxiii.; _Vetancvrt_, _Teatro

Mex._, pt ii., p. 33; _Torquemada_, _Monarq. Ind._, tom. i., p. 106;

_Mendieta_, _Hist. Ecles._, p. 138; _Veytia_, _Hist. Ant. Mej._, tom.

iii., p. 421. Ixtlilxochitl writes that the children and relations of

the traitor were enslaved till the _fifth_ generation, and that salt

was scattered upon his lands. _Hist. Chich._, in _Kingsborough's Mex.

Antiq._, tom. ix., p. 245. 'Il traditore del Re, o dello Stato, era

sbranato, ed i suoi parenti, che consapevoli del tradimento non lo

aveano per tempo scoperto, erano privati della libertà.' _Clavigero_,

_Storia Ant. del Messico_, tom. ii., p. 130.

[539] _Ixtlilxochitl_, _Relaciones_, in _Kingsborough's Mex. Antiq._,

vol. ix., p. 387; _Torquemada_, _Monarq. Ind._, tom. ii., p. 382; Las

Casas, _Hist. Apologética_, MS., cap. ccxv., among the collection of

unauthenticated laws so frequently mentioned heretofore, gives the

following: 'Si algunos vendieron algun niño por esclavo, y despues se

sabe, todos los que entendieron en ello eran esclavos, y dellos davan

uno al que lo compró, y los otros repartian entre la madre del niño y

entre él que lo descubrió.' In the same chapter, among another list of

laws which, says Las Casas, 'son tenidas todas por autenticas y

verdaderas,' we read: 'Era ley, y con rigor guardada, que si alguno

vendia por esclavo algun niño perdido, que se hiciese esclavo al que

lo vendia, y su hacienda se partiese en dos partes, la una era para el

niño, y la otra al que lo havia comprado, y si quizas lo avian vendido

y eran muchos, á todos hacian esclavos.'

[540] Zurita writes: 'ils n'avaient droit d'en prendre que trois

petites tasses à chaque repas.' _Rapport_, in _Ternaux-Compans_,

_Voy._, série ii., tom. i., p. 110; _Herrera_, _Hist. Gen._, dec.

iii., lib. iv., cap. xvi.

[541] _Codex Mendoza_, in _Kingsborough's Mex. Antiq._, vol. i., pl.

72; _Esplicacion_, in _Id._, vol. v., pp. 112-13; _Herrera_, _Hist.

Gen._, dec. iii., lib. iv., cap. xvi.; _Clavigero_, _Storia Ant. del

Messico_, tom. ii., p. 134.

[542] 'Dans les noces publiques et les fêtes, les hommes âgés de plus

de trente ans étaient ordinairement autorisés à en boire deux tasses.'

_Zurita_, _Rapport_, in _Ternaux-Compans_, _Voy._, série ii., tom. i.,

p. 110; _Clavigero_, _Storia Ant. del Messico_, tom. ii., p. 134;

_Herrera_, _Hist. Gen._, dec. iii., lib. iv., cap. xvi.

[543] Ortega says that the privilege was also extended to private

soldiers. _Veytia_, _Hist. Ant. Mej._, tom. iii., p. 227. Zurita,

however, writes 'les guerriers regardaient comme un déshonneur d'en

boire.' _Rapport_, in _Ternaux-Compans_, _Voy._, série ii., tom. i.,

p. 111.

[544] _Las Casas_, _Hist. Apologética_, MS., cap. ccxiii., ccxv.;

_Torquemada_, _Monarq. Ind._, tom. i., p. 166, tom. ii., p. 386;

_Vetancvrt_, _Teatro Mex._, pt ii, p. 33; _Codex Mendoza_, in

_Kingsborough's Mex. Antiq._, vol. i., pl. 72; _Esplicacion_, in

_Id._, vol. v., pp. 112-13; _Ixtlilxochitl_, _Hist. Chich._, in _Id._,

vol. ix., p. 246; _Id._, _Relaciones_, p. 387; _Ortega_, in _Veytia_,

_Hist. Ant. Mej._, tom. iii., pp. 226-7; _Clavigero_, _Storia Ant. del

Messico_, tom. ii., p. 134; _Zurita_, _Rapport_, in _Ternaux-Compans_,

_Voy._, série ii., tom. i., pp. 110-11; _Herrera_, _Hist. Gen._, dec.

iii., lib. iv., cap. xvi.

[545] See this vol. pp. 360-1.

[546] _Las Casas_, _Hist. Apologética_, MS., cap. ccxv.; _Torquemada_,

_Monarq. Ind._, tom. ii., p. 386; _Ixtlilxochitl_, _Relaciones_, in

_Kingsborough's Mex. Antiq._, vol. ix., p. 387; _Ortega_, in _Veytia_,

_Hist. Ant. Mej._, tom. iii., p. 226.

[547] _Ixtlilxochitl_, _Hist. Chich._, in _Kingsborough's Mex.

Antiq._, vol. ix., p. 246; _Clavigero_, _Storia Ant. del Messico_,

tom. ii., p. 130.

[548] _Clavigero_, _Storia Ant. del Messico_, tom. ii., p. 130.

[549] _Ixtlilxochitl_, _Relaciones_, in _Kingsborough's Mex. Antiq._,

vol. ix., p. 387; _Ortega_, in _Veytia_, _Hist. Ant. Mej._, tom. iii.,

p. 226.

[550] _Las Casas_, _Hist. Apologética_, MS., cap. ccxv.

[551] _Ixtlilxochitl_, _Relaciones_, in _Kingsborough's Mex. Antiq._,

vol. ix., p. 388.

[552] Las Casas, _Hist. Apologética_, MS., cap. ccxv., gives two laws

on this point. To the first, which is among the collection of

unauthenticated laws, adds: 'Y si era plebeyo ó de baja suerte hacian

lo esclavo.' Ixtlilxochitl also gives two laws: 'A los hijos de los

señores si malbarataban sus riquezas, ó bien muebles que sus padres

tenian, les daban garrote.' _Hist. Chich._, in _Kingsborough's Mex.

Antiq._, vol. ix., p. 246. 'Si algun principal mayorazgo fuese

desbaratado, ó travieso, ó si entre dos de estos tales hubiese alguna

diferencia sobre tierras ú otras cosas, el que no quisiese estarse

quedo con la averiguacion que entre ellos se hiciese por ser soberbio

y mal mirado, le fuesen quitados sus bienes y mayorazgo, y fuese

puesto en depósito en alguna persona que diese cuenta de ello para el

tiempo que le fuese pedido, de cual mayorazgo estubiese desposeido

todo el tiempo que la voluntad del señor fuese.' _Relaciones_, in

_Id._, p. 387; _Torquemada_, _Monarq. Ind._, tom. ii., p. 385;

_Clavigero_, _Storia Ant. del Messico_, tom. ii., p. 134.

[553] _Veytia_, _Hist. Ant. Mej._, tom. iii., p. 423.

[554] _Las Casas_, _Hist. Apologética_, MS., cap. ccxv.; _Torquemada_,

_Monarq. Ind._, tom. ii., p. 386; _Ixtlilxochitl_, _Relaciones_, in

_Kingsborough's Mex. Antiq._, vol. ix., p. 387.

[555] _Las Casas_, _Hist. Apologética_, MS., cap. ccxiii.

[556] _Ixtlilxochitl_, _Relaciones_, in _Kingsborough's Mex. Antiq._,

vol. ix., p. 387; _Carbajal Espinosa_, _Hist. Mex._, tom. i., p. 604;

_Clavigero_, _Storia Ant. del Messico_, tom. ii., p. 134; _Ortega_, in

_Veytia_, _Hist. Ant. Mej._, tom. iii., pp. 227-9; _Chaves_,

_Rapport_, in _Ternaux-Compans_, _Voy._, série ii., tom. v., p. 313;

_Torquemada_, _Monarq. Ind._, tom. i., p. 165.

[557] _Oviedo_, _Hist. Gen._, tom. iii., p. 502; _Las Casas_, _Hist.

Apologética_, MS., cap. ccxv.

[558] Concerning adultery see: _Las Casas_, _Hist. Apologética_, MS.,

cap. ccxiii., ccxv.; _Torquemada_, _Monarq. Ind._, tom. i., p. 166,

tom. ii., pp. 378, 380; _Ixtlilxochitl_, _Hist. Chich._, in

_Kingsborough's Mex. Antiq._, vol. ix., p. 246; _Relaciones_, in

_Id._, p. 387; _Codex Mendoza_, in _Kingsborough's Mex. Antiq._, vol.

i., pl. 72; _Esplicacion_, in _Id._, vol. v., p. 112; _Veytia_, _Hist.

Ant. Mej._, tom. iii., p. 423; _Mendieta_, _Hist. Ecles._, pp. 136-7;

_Clavigero_, _Storia Ant. del Messico_, tom. ii., pp. 130-1;

_Bologne_, in _Ternaux-Compans_, _Voy._, série i., tom. x., p. 211;

_Zurita_, _Rapport_, in _Id._, série ii., tom. i., pp. 107-10;

_Ortega_, in _Veytia_, _Hist. Ant. Mej._, tom. iii., p. 224;

_Vetancvrt_, _Teatro Mex._, pt ii., p. 33; _Duran_, in _Kingsborough's

Mex. Antiq._, tom. viii., pp. 242-3; _Valades_, _Rhetorica

Christiana_, in _Id._, p. 129, note.

[559] _Las Casas_ and _Mendieta_, as in preceding note.

[560] 'Para la justificacion fuese bastante la denuncia del marido.'

_Ibid._

[561] Las Casas writes: 'A ninguna muger ni hombre castigavan por

adulterio, si solo el marido della los acusaba, sino que havia de

haver testigos y confesion dellos.' _Hist. Apologética_, MS., cap.

ccxv. Torquemada uses almost the same words.

[562] Father Francisco de Bologne says that this mode of punishment

was only resorted to in the case of the man, and that the female

adulterer was impaled. _Ternaux-Compans_, _Voy._, série i., tom. x.,

p. 211.

[563] This statement is made by Ixtlilxochitl and Veytia, _ubi sup._

[564] _Las Casas_, _Hist. Apologética_, MS., cap. ccxiii.; _Mendieta_,

_ubi sup._

[565] _Ibidem._ Among the Miztecs, when extenuating circumstances

could be proved, the punishment of death was commuted to mutilation of

ears, nose, and lips. _Herrera_, _Hist. Gen._, dec. iii., lib. iii.,

cap. xii.

[566] _Torquemada_, _Monarq. Ind._, tom. ii., p. 380; _Clavigero_, _ubi

sup._

[567] _Las Casas_, _Hist. Apologética_, MS., cap. ccxiii., ccxv.;

_Torquemada_, _Monarq. Ind._, tom. ii., pp. 377-8, 380; _Ortega_, in

_Veytia_, _Hist. Ant. Mej._, tom. iii., p. 224.

[568] _Las Casas_, _Hist. Apologética_, MS., cap. ccxiii.; _Mendieta_,

_Hist. Ecles._, p. 136.

[569] _Herrera_, _Hist. Gen._, dec. iii., lib. iii., cap. x.;

_Beaumont_, _Crón. Mechoacan_, MS., p. 51.

[570] _Torquemada_, _Monarq. Ind._, tom. i., p. 166, tom. ii., p. 380;

_Las Casas_, _Hist. Apologética_, MS., cap. ccxv.; _Veytia_, _Hist.

Ant. Mej._, tom. iii., p. 423; _Ortega_, in _Id._, p. 224;

_Vetancvrt_, _Teatro Mex._, pt ii., p. 33; _Mendieta_, _Hist.

Ecles._, p. 137; _Ixtlilxochitl_, _Hist. Chich._, in _Kingsborough's

Mex. Antiq._, vol. ix., pp. 245. Carbajal Espinosa differs from these

in saying: 'al pasivo le arrancaban las entrañas, se llenaba su

vientre de ceniza y el cadáver era quemado.' _Hist. Mex._, tom. i., p.

603.

[571] _Camargo_, _Hist. Tlax._, in _Nouvelles Annales des Voy._, 1843,

tom. xcviii., p. 193. Carli is therefore mistaken in saying this crime

was punished with death. _Cartas_, p. 122.

[572] _Lettre_, in _Ternaux-Compans_, _Voy._, série i., tom. x., p.

197.

[573] _Hist. Apologética_, MS., cap. ccxiii. Clavigero writes:

'Appresso tutte le Nazioni di Anahuac, fuorchè appresso i Panuchesi,

era in abbominazione sì fatto delitto, e da tutte si puniva con

rigore.' This writer is very bitter against M. de Pauw for stating

that this pederasty was common among the Mexicans, and adds: 'ma della

falsità di tal calunnia, che con troppa, ed assai biasimevole facilità

addottarono parecchj Autori Europei, ci consta per la testimonianza di

molti altri Autori imparziarli, e meglio informati.' Clavigero does

not, however, state who these 'more impartial and better informed

writers' are. That the crime of sodomy was prevalent in Tabasco, we

have the testimony of Oviedo, who writes that among the idols that the

Christians saw there 'dixeron que avian hallado entre aquellos çemís ó

yolos, dos personas hechas de copey (que es un árbol assi llamado), el

uno caballero ó cabalgando sobre el otro, en figura de aquel

abominable y nefando pecado de sodomia, é otro de barro que tenia la

natura asida con ambas manos, la qual tenia como çircunçiso ... y no

es este pecado entre aquellas mal aventuradas gentes despresçiado, ni

sumariamente averiguado: antes es mucha verdad quanto dellos se puede

deçir é culpar en tal caso.' _Hist. Gen._, tom. i., p. 533. Zuazo,

speaking of the Mexicans, says: 'estas gentes tienen la _tria

peccatela_ que decia el Italiano: no creen en Dios; _son casi todos

sodomitas_: comen carne humana.' _Carta_, in _Icazbalceta_, _Col. de

Doc._, tom. i., p. 365.

[574] _Hist. Apologética_, MS., cap. ccxiii.

[575] Las Casas, among his unauthentic laws has one which prescribes

death in this case, but in another list, which he says is composed of

authentic laws, banishment and confiscation of property is given as

the penalty. _Hist. Apologética_, MS., cap. ccxv.; _Torquemada_,

_Monarq. Ind._, tom. ii., p. 380; _Veytia_, _Hist. Ant. Mej._, tom.

iii., p. 423.

[576] _Torquemada_, _Monarq. Ind._, tom. ii., p. 380; _Las Casas_,

_Hist. Apologética_, MS., cap. ccxiii.; _Mendieta_, _Hist. Ecles._, p.

137. Ortega adds that their heads were rubbed with ashes; 'se les

untaba con ceniza caliente.' _Veytia_, _Hist. Ant. Mej._, tom. iii.,

p. 225.

[577] _Ixtlilxochitl_, _Hist. Chich._, in _Kingsborough's Mex.

Antiq._, vol. ix., p. 246; _Veytia_, _Hist. Ant. Mej._, p. 224.

[578] _Ixtlilxochitl_, _Relaciones_, in _Kingsborough's Mex. Antiq._,

vol. ix., p. 387; _Veytia_, _Hist. Ant. Mej._, tom. iii., p. 423;

_Duran_, in _Kingsborough's Mex. Antiq._, vol. viii., pp. 243-4;

_Torquemada_, _Monarq. Ind._, tom. ii., p. 380; _Las Casas_, _Hist.

Apologética_, MS., cap. ccxv.; _Ortega_, in _Veytia_, _Hist. Ant.

Mej._, tom. iii., pp. 224-5.

[579] _Las Casas_, _Hist. Apologética_, MS., cap. ccxiii., ccxv.;

_Mendieta_, _Hist. Ecles._, p. 136.

[580] _Las Casas_, _Ibid._; _Torquemada_, _Monarq. Ind._, tom. ii., p.

380-1.

[581] _Las Casas_, _Ibid._; _Torquemada_, _Monarq. Ind._, tom. ii., p.

380; _Mendieta_, _Hist. Ecles._, pp. 137-8; _Clavigero_, _Storia Ant.

del Messico_, tom. ii., p. 133.

[582] _Torquemada_, _Monarq. Ind._, tom. ii., p. 381; _Ortega_, in

_Veytia_, _Hist. Ant. Mej._, tom. iii., pp. 225-6; _Clavigero_,

_Storia Ant. del Messico_, tom. ii., p. 133.

[583] _Torquemada_, _Monarq. Ind._, tom. i., p. 165. In the following

works more or less mention is made of the system of jurisprudence that

existed among the Nahua peoples. _Pimentel_, _Mem. sobre la Raza

Indígena_, pp. 31-5; _Carbajal Espinosa_, _Hist. Mex._, tom. i., pp.

593-605; _Amer. Ethno. Soc., Transact._, vol. i., p. 153; _Klemm_,

_Cultur-Geschichte_, tom. v., pp. 35-6, 53-4, 69-75, 96-7, 105, 205;

_Cortés_, _Aven. y Conq._, pref., p. 13; _Delaporte_, _Reisen_, tom.

x., pp. 264-7; _Incidents and Sketches_, pp. 60-1; _Simon's Ten

Tribes_, pp. 263-70; _Bussierre_, _L'Empire Mex._, pp. 150-8;

_Chambers' Jour._, 1835, vol. iv., p. 253; _Baril_, _Mexique_, pp.

205-7; _Touron_, _Hist. Gén._, tom. iii., pp. 29-31; _Soden_, _Spanier

in Peru_, tom. ii., p. 14.