an overview of the legal system of the aztec empireempire had been transformed from a primitive...

An Overview of the Legal System of the Aztec Empire*

Francisco Avalos**

Mr. Avalos presents a descriptive overview of the legal institutionsand substantive law of the Aztec Empire.

I. Introduction

Soon after Hernan Cortes and his men arrived in Mexico in 1519, theywitnessed incidents that suggested to them that the Aztec Empire had aformal legal system. Cortes wrote in one of his letters to the King andQueen of Spain, "[C]r~ese que deben tener alguna manera de justicia paracastigar los malos" ("I believe that there exists a judicial system to punishthe wicked").' Bemal Diaz del Castillo, one of the soldiers in Cortes'group, witnessed an appellate case soon after the Spaniards' arrival in theAztec capital of Tenochtitlan.2

The Aztec Empire did have a formal legal system in place when Cortesand his men arrived in Mexico, but, unfortunately, many of the details ofthe Aztec legal system have been lost forever. There are several majorreasons for the loss of this information. First, the Aztecs were justbeginning to develop a written language when the Spaniards arrived.Because they were at the beginning stages of going from pictographicwriting to phonetic writing, they had few written records at the time ofthe conquest. A second reason is that most of the pictographic legal tabletsthat were found by the Spaniards were destroyed by the Spanish religiousauthorities as heretic material. Third, the Spanish chroniclers of the daywere not legal scholars, nor were the Aztec people they interviewed andused as their sources. Aztec judicial officials were reluctant to reveal them-selves for fear of persecution. Consequently, many important legal factsand issues were never recorded. What was recorded was as the Spanishchroniclers perceived it to be and not necessarily as it was in fact.

* © Francisco Avalos, 1994.

** Assistant Librarian, Foreign Law Collection, University of Arizona College of Law Library, Tucson,Arizona.

1. SALVADOR TOSCANO, DERECHO Y ORGANIZACI6N SOCIAL DE LOS AZTECAS 24 (1937).2. Id. at 31.3. See generally LUCIO MENDIETA Y NOREZ, EL DERECHO PRECOLONIAL (1937).

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No pre-conquest Aztec legal codes are known to have survived.4

Among the most important post-conquest materials are three codes writtenduring the second half of the sixteenth century:' the Florentine or SahagunCode,6 the Mendocino Code,7 and the Libro de Oro (Book of Gold) Code.'The Libro de Oro, a collection of sixty-five criminal laws, was written byFray Andres de Alcobiz e Ixtlix6chitl, who claimed to have taken the lawsdirectly from an original Aztec Code around 1543. 9 The other two codeswere taken from Aztec witnesses and Aztec hymns. Many of the Azteclaws that were never written down in pictographic writing existed only inhymn version.'0 The laws were passed on from generation to generation inthis format.

I. Form of Government

When Heman Cortes arrived in Mexico, the Aztec Empire along withthe cities of Texcoco and Tacuba formed the Triple Alliance, whichdominated the Valley of Mexico and "extended their power as far away asVeracruz, beyond Oaxaca, and into the coast of Guerrero."" The Aztecswere the dominant ally of this imperialistic offensive and defensivealliance. The three allies were politically independent, and each had itsown particular legal system. The members of the Triple Alliance did notimpose their customs or laws on the people they conquered and dominated;however, they did extract tribute in the form of goods, arms, and soldiersfrom the conquered people. 12

By the time Cortes arrived in Mexico, the government of the AztecEmpire had been transformed from a primitive oligarchy to an electiveabsolute monarchy. 3 The emperor was elected by the Aztec nobilitythrough indirect elections: the nobles elected four members of their class

4. TOSCANO, supra note 1, at 26.5. Id. at 26.6. BERNARDINO DE SAHAGUN, FLORENTINE CODEX: GENERAL HISTORY OF THE THINGS OF NEW SPAIN

(1950).7. CODEX MENDOZA, CODICE MENDOCINO, 6, COLECCION DE MENDOZA: MANUSCRITO MEXICANO DEL

SIGLO XVI QUE SE CONSERVA EN LA BIBLIOTECA BODLEIANA DE OXFORD (1979).8. JOAQUIN GARCIA ICAZBALCETA, NUEVA COLECCION DE DOCuMENTOS PARA LA HISTORIA DE MEXICO

(1886-92) (5 vols.).9. ToSCANO, supra note 1, at 26.

10. Id. at 27.11. GUILLERMO FLORIS MARGADANT S., AN INTRODUCTION TO THE HISTORY OF MEXICAN LAW 7 (1st

English ed. 1983).12. MENDIETA Y NiEZ, supra note 3, at 13.13. MARGADANT S., supra note 11, at 6.

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who in turn elected the emperor.1 4 The future emperor had to be a memberof the nobility, be over thirty years of age,"5 have been educated at theCalmecac school, 16 be brave, and be just." Along with the emperor wereelected four advisors and one senior advisor, who would advise theemperor throughout his reign.18 The emperor was the supreme power, andhis power had no legal bounds.19

1Ml. The Legal System

Like all legal systems, the Aztec legal system reflected the history,culture, and social values of the Aztec society, a militaristic society inwhich war was inherent. War provided two of the essential elementsrequired for the survival of the Aztec Empire: income in the form oftribute, and victims for the human sacrifices demanded by the Aztec godsfor the well being of the Empire. 0 When a male child was born, a bowwas placed on one of his hands and a shield on the other hand21 tosymbolize that one day the male child would be a warrior in the serviceof the emperor.

The Aztec legal system reflected the militaristic nature of Aztecsociety. The maintenance of social order and social respect for the judicial,political, and educational institutions ("del orden social, las buenascostumbres, el respeto a las instituciones legales y a la educacion") was thecornerstone of the Aztec legal system.22 The law protected morals, family,manners, and property, and required total respect of authority.23 Punish-ment for legal infractions was swift and severe, and capital punishmentwas enforced for a great variety of crimes.

The Aztec legal system was basically a customary common lawsystem. The Roman legal principle of "no crime if no previous law" was

14. MENDIETA Y NiO&Ez, supra note 3, at 15.15. If he was not thirty years of age, a regent was elected to rule until the Emperor reached the age of

thirty.16. Upon turning fifteen, all noble youths were taken from their households and placed in the Calmecac,

where they would live until they turned twenty-two. The Calmecac was a school run by priests, where the nobleyouths were taught about religion and warfare. At age twenty-two, the noble youths left school to serve theEmperor, which usually meant military service. Only the children of the nobility could attend the Calmecac.

17. MENDIETA Y NI.RtEZ, supra note 3, at 16.18. Id. at 16.19. MARGADANT S., supra note 11, at 17.20. MENDIETA Y NOEZ, supra note 3, at 22.

21. TOSCANO, supra note 1, at 34.22. Fernando Flores Garcia, La Administracion de Justicia en los Pueblos Aborigenes de Anahuac, 15

REVISTA DE LA FACULTAD DE DERECHO DE MIXIco 86 (1965).23. LUciEN BIART, THE AZTECS: THEIR HISTORY, MANNERS, AND CUSTOMS 233 (J. L. Garner trans.,

1900).

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not recognized. The Aztec legal system coincided with the old Germaniclegal philosophy that no crime could go unpunished, whether or not theaction had been previously defined as a crime.24 There was no legislativebody to enact laws.25 The emperor could pass royal decrees, which had theforce of law.26 Most law was based on historical custom. Only the majorcivil and criminal laws were written down in pictographs, 27 and these wereavailable only to judges. The remaining few laws were so ingrained incustom and so well known that no need was seen to put them down inpictographs.28 As previously mentioned, a system of phonetic writing wasnot developed until just before the arrival of the Spaniards, and with thatcame the movement to codify the laws of the Aztec Empire.29

A. The Judicial System

The lack of proper documentation of the Aztec legal system has led toconfusion and disagreement among the authorities in the field about theexact details of information regarding the Aztec judicial system. Onereason for the lack of consensus is that Aztec judges had not only legalresponsibilities to state the law and to judge, but political, military,religious, and other responsibilities ("no s6lo tenian atribuciones de decirel derecho, de juzgar, sino que desempefiaban actividades polilicas,militares, religiosas, etc."). 0 This meant that an Aztec judge had severaltitles, and the Spanish chroniclers had difficulty determining whichresponsibilities went with which title.

There is general agreement on the structure of the Aztec judicialsystem, which was based on a hierarchical structure similar to our own,composed of general jurisdiction courts of first instance, general jurisdic-tion appellate courts, and a Supreme Justice. There were also courts thatmight be compared to our justice of the peace courts and special jurisdic-tion courts. The emperor had the legal power to hear any cases that wereof importance to him or to the Empire.31

24. TOSCANO, supra note 1, at 34.25. Flores Garcia, supra note 22, at 87.26. MARGADANT S., supra note 11, at 17.27. Id. at 34.28. Flores Garcia, supra note 22, at 87.29. MARGADANT S., supra note 11, at 14..

30. Flores Garcia, supra note 22, at 88.31. See generally TOSCANO, supra note 1.

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1. Courts of First Instance

The courts of first instance, "Teccalli" courts, were composed of threeor four judges (there is disagreement in the literature as to the exactnumber).32 These courts heard civil and criminal cases involving commonpeople. Their verdict was final in civil cases, but criminal cases could beappealed to the appellate courts, which reported all verdicts to the SupremeJustice. The emperor could intervene in the appeal of any cases in whichhe took an interest.33

2. Appellate Courts

At the next level, "Tlacxitlin" Courts served as appellate courts and asspecial jurisdiction first instance courts.34 Again, there is no consensus asto whether there were three or four judges on these courts. These were theappellate courts for criminal cases involving common people. These courtsalso served as first instance courts for cases involving nobles and warriors.The latter cases could be appealed to the Supreme Court or the Emperor.

3. Supreme Court

Trying to determine the configuration of the Aztec Supreme Court isno easy matter ("nada mds impreciso se manifiesta . . . que cuando sequiere determinar el modo de constituir el Tribunal Superior").35 TheSupreme Court was a collegiate court consisting probably of twelvejustices. The Chief Justice (the "Cihuac6atl")36 determined the final verdict,which could not be appealed to the King, nor any other judge whatsoever("no se apelaba para el rei, ni para otro juez alguno"). 37 The "Cihuac6atl"was not the highest judicial officer in the Aztec judiciary, however, foramong the titles of the Emperor was that of "Tlatoani," which made himthe supreme justice within the Aztec judicial organization ("juez superiordentro de la organizaci6n judicial Azteca").38

The Supreme Court heard most of the appeals. The cases they heardand decided had no further appeal. But when the Cihuac6atl decided that

32. MENDIETA Y NOREZ, supra note 3, at 20.33. TOSCANO, supra note 1, at 28.34. Flores Garcia, supra note 22, at 95.35. Id. at 91.36. BIART, supra note 23, at 226.37. Flores Garcia, supra note 22, at 91.38. Id. at 90.

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a case was too important for the Supreme Court to decide, it was sent tothe emperor, as Tlatoani, who held court every twelve days.39 The emperorhad the aid of four "old noblemen" ("ancianos caciques") to help himrender a final verdict.40

4. "Barrio" Courts

There were also "barrio" (neighborhood) courts. Each barrio annuallyelected a judge to hear minor criminal and civil cases involving peoplefrom the barrio.41 The barrio court judge reported all decisions to therespective trial level court. To help maintain order in the barrio, the judgehad block watchers at his service. Block watchers were elected by thepeople of the barrio to watch over the neighborhood to ensure properbehavior;42 they could report incidents of misconduct to the barrio judge,but could not settle disputes themselves. The barrio judge also had at hisservice a police force, which served court summons and arrested crimi-nals.43

5. Special Jurisdiction Courts

Special jurisdiction courts included commercial courts, domestic affairscourts, fiscal affairs courts, and artisans courts.' There was also a militarycourt and a religious affairs court.4" The most important special jurisdictioncourts were the commercial courts, the military court, and the religiousaffairs court. Each of the three commercial courts ("Pochteca Tlaht6can"'46)had twelve judges. These courts were located in the marketplace andadjudicated all commercial disputes. Their punitive powers extended tocapital punishment.47 The military court, which consisted of four militaryjudges,48 adjudicated all military disputes. The religious affairs court hadonly one judge,'9 who was appointed by the Chief Priest. The priest judge,called "Teohvatzin, 0 0 heard all cases involving priests.

39. Id. at 94.40. Id. at 89.41. MENDETA Y NOREZ, supra note 3, at 20.42. Id. at 20.43. See id. at 20.44. See Flores Garcia, supra note 22, at 113.45. Id. at 88.46. Id. at 113.47. Id. at 114.48. Id. at 113.49. Id. at 104.50. Id.

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B. The Judiciary

Aztec judges in general were known as "Tecuhtlatoque," which means"lords that govern the public well being and speak it" ("sefiores quegobieman el bien pfiblico y lo hablan").5

1 Judges were accorded greatrespect and honor by the people. They were seen as messengers of theLord and of his great justice ("mensajeros del sefior y de su justiciamayor").5 2 In their capacity as judges, they embodied the emperor and hislaws.

The emperor appointed the chief justice of the supreme court, 3 who inturn appointed all of the lower court judges except for the barrio judges,who were elected by popular vote.' Judges were appointed for life andcould be removed from office only for judicial misconduct. Each judgeshipcame with a plot of land.55 The land belonged to the office and not to theindividual judge. The profits from the plot of land were given to the judgefor his financial support as long as he held the office. This was done togive financial independence to the judges and assure their absoluteimpartiality ("absoluta imparcialidad") in deciding cases.5 6

A career in the judiciary was highly esteemed among the Aztec peo-ple. 7 It required immense preparation and previous experience," whichwas gained through a judicial apprenticeship system.5 9 The youngapprentices would sit behind the judges hearing a case and learn byobserving. These apprentices formed the pool from which judges wereselected.

All judges had to abide by professional ethical standards. 60 A judgecould not accept gifts. He was not to distinguish "entre grandes, nipequefios, ricos ni pobres" (between the noble nor the common, rich norpoor), when rendering a verdict or sentence.61 The judge was supposed torender honest verdicts based on impartial judicial wisdom. For the firstminor offense, a judge received a reprimand; for the third minor offense,he lost the judgeship and his head was shaved, an act considered a great

51. Id. at 106.52. TOSCANO, supra note 1, at 27.53. MENDIETA Y NCIJU, supra note 3, at 20.54. Flores Garcia, supra note 22, at 91.55. BIART, supra note 23, at 227.56. Flores Garcia, supra note 22, at 108.57. Flores Garcia, supra note 22, at 107.58. Id.59. Id. at 98.60. Id. at 109.61. Id.

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dishonor and humiliation among the Aztec people. A major breach ofprofessional ethical standards meant death for the guilty judge. The Aztecbench was self-policing. 62

The court personnel in an Aztec court included recorders or skillfulpainters who perpetuated the proceedings of the court ("escribanos opintores diestros que perpetuaban las diligencias del caso"). 63 Placed onrecord were the cause of action, the names of the parties, and the verdictof the court.64 A common crier ("pregonero") announced the verdict of thecourt.65 Also present in the court was the executioner, who took immediatecharge of prisoners condemned to death.66

C. Judicial Review

The word justice in the Aztec language is "tlamelahuacachinaliztli,"which means "straight line to a point, or to straighten that which istwisted."67 This meaning of justice, according to F. Flores Garcia, impliesthat an Aztec judge was not bound by written or customary law, but by theimperative of straightening a matter by using his wisdom and criteria. AnAztec judge decided a case based on what seemed the most just and mostreasonable to him.6

But the doctrine of stare decis would not have been completely aliento an Aztec judge. Aztec judges established a kind of case law, inasmuchas the punishment was seen as an example that would later be applied inidentical circumstances ("sentaban una especie de jurisprudencia, pues elcastigo ... se tenia como un ejemplo que era repetido mds tarde enid6nticas circumstancias"). 69 An overriding criteria for an Aztec judge'sdecision was to guard custom that was permanent, tradition that served todistinguish between good and evil, tradition that caused no harm, andtradition that enriched and served to develop society.7" In most cases, thejudge's decision only reaffirmed common custom.7'

62. MENDIETA Y NOREZ, supra note 3, at 22.63. TOSCANO, supra note 1, at 29.64. Flores Garcia, supra note 22, at 105.65. TOSCANO, supra note 1, at 29.66. Id. at 61.67. Flores Garcia, supra note 22, at 81.68. TOSCANO, supra note 1, at 33.69. Flores Garcia, supra note 22, at 87.70. Id. at 82.71. MENDIETA Y NOfEz, supra note 3, at 34,

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D. Adjudication Procedures

When one person brought a charge against another person, the accusedwas summoned to the court and given an opportunity to confront theaccuser.7 2 There is no evidence of lawyers.73 Parties represented them-selves, though a defendant or plaintiff could use a friend or relative to helphim plead his case.74 All trials were public trials.75 The Aztec trial was• • •76

based on the inquisitorial process. The court judges questioned witnesses,defendants, and plaintiffs.77 Witnesses had to take an oath to tell the truth,which consisted of touching'the ground and then the lips with the hand.78

Documents, testimony, circumstantial evidence, and confessions were alladmissible evidence in a trial,79 and torture could be used to extractconfessions.80 Because there was an authentic concern for prompt andexpeditious justice ("una autentica preocupaci6n por tener una justicia

pronta y expedita") in the Aztec judiciary, no trial could last for morethan eighty days. 2

E. Legal Sanctions.

The penalties for crimes seem to have been well defined. 3 The judgedetermined a defendant's guilt or innocence, then passed the prescribedsentence if the defendant had been found guilty. Capital punishment wasimposed for a wide variety of crimes, ranging from disrespect of parentsto treason. Confiscation of property was also a widely used form ofpunishment. Crimes of youthful irresponsibility or disrespect, especially inthe case of the nobility, were punished by loss of inheritance. Exile,restitution, loss of office, destruction of home, prison sentences, slavery,and shaving of the head were other punishments. For certain crimes thepunishment could extend into the family of the guilty party, up to the

72. See generally JOSEF KOHLER, EL DERECHO DE LOS AZTECAS (1924).73. MENDIETA Y NORJEZ, supra note 3, at 56.74. Id.75. TOSCANO, supra note 1, at 32.76. KOHLER, supra note 72, at 75.77. Id. at 76.78. MENDIETA Y NOREz, supra note 3, at 56.79. KOHLER, supra note 72, at 76.

80. Id.

81. Flores Garcia, supra note 22, at 100.82. TOSCANO, supra note 1, at 34.83. See MENDIETA Y NORJEZ, supra note 3, at 34.

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fourth degree of relationships. The family was punished for being relatedto the guilty party and for no other reason.

1. Incarceration

There were four types of prisons. Prisoners condemned to death wentto the "cuauhcalli" prison to await their execution. "Teilpiloyan" prisonwas debtors' prison. Prisoners found guilty of minor crimes went to the"petlacalli" prison, where cells were so dark, harsh, and cruel ("oscuras,dsperas y crueles"),8 5 and food was so poor and inadequate, that a jailsentence usually meant the death of the prisoner. The fourth type of prison,reserved for minor crimes, was not a physical prison. Instead, the judgewould draw lines or place sticks on the ground and tell the prisoner not tocross the parameters.8 6

2. Slavery

Slavery in the Aztec social and legal world meant something quitedifferent from our understanding of slavery. All persons in Aztec societywere born free, whether born of free people or slaves. There were threeways a person could become a slave.

The first was by committing a crime that called for slavery as thepunishment." Usually these cases involved civil tort cases where thedefendant did not have the financial means for restitution88 and thusbecame the slave of the injured party. Certain criminal acts also couldmean slavery for the guilty party. A person convicted of killing a man witha family became the slave of the widow.89

The second way a person could become a slave was to be taken as aprisoner of war. Prisoner-of-war slaves were sacrificed to the gods.9"

The third way was by voluntarily selling oneself or an offspring intoslavery. A father had to petition the court for permission to sell offspringinto slavery, but the petition was almost always granted.9'

84. KOHLER, supra note 72, at 59.85. Id. at 115.86. MENDIETA Y N&RFZ, supra note 3, at 58.87. Id. at 35.88. TOsCANO, supra note 1, at 45.89. MENDIETA Y NO"iEZ, supra note 3, at 35.90. See id. at 35.91. TOSCANO, supra note 1, at 45.

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Slaves did not completely lose their legal rights.92 They could ownproperty (even other slaves), they had a right to marry, and they couldsubstitute another person in their place. Slaves could buy their freedom.Slaves could not be resold against their will unless they were a "problem"to their owner and had been warned beforehand. 93

3. Capital Punishment

As previously mentioned, capital punishment was a widely used formof punishment in the Aztec criminal justice system. The form of executionwas dictated by the crime. The most mentioned methods of execution werehanging, drowning, stoning, strangulation, impaling, beheading, beating,disembowelment, burning, quartering, and opening the chest and removingthe heart.9

4

IV. Areas of Substantive Law

Substantive Aztec law can be broken down into several categoriesfamiliar to us: criminal law, family law, property law, commercial law,fiscal law, and international law.

A. Criminal Law

In the area of criminal law, the most severely punished crimes werehomicide, theft, perjury, and adultery.95 The punishment was usually deathfor these crimes.

Homicide was a capital offense, even if the act was justifiable. Thelegal reasoning for this was that whoever killed was usurping the emperor'sauthority, for only the emperor had the power (or judicial officials whowere bestowed this power by him) of life and death.96

Theft from merchants, theft in a temple, theft of arms or militaryinsignias, or theft of more than twenty ears of corn meant a death sentencefor the perpetrator.97 Theft of items of little value (under twenty ears ofcorn) meant restitution; if unable to pay for the stolen item, the criminal

92. MENDIETA Y NOZ, supra note 3, at 36.93. KOHLER, supra note 72, at 34.94. See MENDIETA Y NOREZ, supra note 3, at 56.95. Id. at 28.96. Id.97. Id. at 29.

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was given to the victim as a slave. A person convicted of perjury receivedthe punishment for the crime the defendant had committed.98

Adultery was a capital crime offense not only for the offending couple,but for anyone who knew about the adultery and did not report it to theauthorities. A married man was guilty of adultery if he had relations witha married woman, but not if he had relations with an unmarried woman.99

A married woman was guilty of adultery under either circumstance. Thiswas a male-oriented society.

Other crimes that called for capital punishment were rape, abortion(and anyone associated with the abortion), highway robbery, "serious"defamation of character, destruction of crops, selling of stolen property,weight and measure fraud, witchcraft, incest, official graft, pederasty,inciting a public disturbance, sedition, treason, use of the emperor'sinsignia, and major judicial misconduct. Children under the age of tenwere legally incapable of committing a criminal offense.100

The emphasis on these crimes and the severity of punishment for thempoints to the Aztec's concern with maintaining social order, good customs,and respect for the legal institutions ("orden social, las buenas costumbres,el respeto a las instituciones legales"), which they believed was the basisfor a strong and unified nation state.'1 The rulers believed that if thepeople did not respect the Emperor's authority and his legal institutions,private property, and the family unit, the nation state would be weakenedto the point of collapse.

The application of the law and the execution of sentences were notalways equally applied, however. The nobility and'the military were heldto higher standards,0 2 because they represented the emperor. Theirbehavior was expected to be exemplary to serve as an example for themasses, and, thus, their offenses were more severely punished.

Victims or the families of victims could intervene in the execution ofa sentence. An individual sentenced to death could avoid the deathsentence if the family of the victim forgave the condemned individual. 3

In such a case, the condemned individual became the slave of the forgivingfamily. A male convicted of adultery was handed over to the offendedhusband for execution (by dropping a large stone on the adulterer's head

98. MENDIETA Y NIYEZ, supra note 3, at 28.99. Id. at 26.

100. Id. at 30.101. Flores Garcia, supra note 22, at 86.102. Id. at 37.103. BIART, supra note 23, at 58.

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from a height), but the offended husband did have the option of forgivingthe adulterer and thus sparing his life.' 4

B. Family Law

Family law in Aztec society was mainly customary law.105 Marriagewas polygamous, but the first wife always remained the leading wife.Marriage could either be conditional or unconditional. 10 6 Conditionalmarriage meant that the marriage would last only until the birth of the firstson, after which the couple could either separate or continue with themarriage indefinitely by mutual consent. Unconditional marriage meantmarriage for an indefinite period of time. A brother was obliged to marryhis brother's widow. 10 7

No priest or government official took part in a marriage ceremony, butcertain well-defined customary rituals had to take place for a marriage tobe official and legally recognized.' Men were expected to marry by theages of twenty to twenty-two, and women by the ages of fifteen toeighteen. Parents, in consultation with their relatives, decided when andwho their children would marry. A class of women served as marriagebrokers.'0 9 Although marriages were arranged, it seems the young did havesome say about whom they would marry.

As head of the household,110 the husband was responsible for his sons'upbringing. The wife was responsible for her daughters' upbringing.Children were legally bound to respect and obey their parents. Parentscould bring troublesome children before judicial courts, which wouldadminister punishments that included a beating, disinheritance, or evendeath. The death sentence was especially applied to the children of thenobility who were disrespectful, cowards, or spendthrifts. Parents also hadthe right, with the approval of a court, to sell their children into slavery ifthey could not afford to support them."' Divorce per se did not exist inAztec family law, 1 2 but either the wife or husband could petition thecourts for legal separation based on certain acceptable grounds, includingincompatibility of character, misconduct on the part of the wife, insanity

104. MENDIETA Y NOjEz, supra note 3, at 30.105. MARGADANT S., supra note 11, at 26.106. Id.107. Id.108. MENDIETA Y N(lREZ, supra note 3, at 12.

109. Id. at 38.110. Id. at 40.111. Id. at 35.112. Id. at 40.

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of the wife, laziness on the part of the wife, infertility, and financialdefault. 113 The court would attempt to reconcile the couple before grantingthe separation.

Once a couple was legally separated, the sons went with the father andthe daughters went with the mother.11 4 In a "no fault divorce" the property,which was registered at the time of the wedding, was given back accordingto who brought what property into the marriage.115 In cases where therewas a "guilty party," the offender forfeited half of his or her property tothe other spouse.1 16 Once a couple had separated, they could neverremarry; breach of this provision was a capital offense.117

Succession was by male lineage; the firstborn son inherited allproperty.11 8 Women had no inheritance rights.11 9 A father could, however,write a will dividing his property as he saw fit.120 If a couple had no malechildren, the property was passed on to the nearest male relative. If therewere no living male relatives, the property went to the emperor or state.12,Trustees were appointed to administer property inherited by a minor.122

C. Property Law

Land tenure in Aztec society was limited to certain social classes andinstitutions." The emperor was at the top of the land tenure hierarchy. Healone had the legal power to do as he wished with real property. He ownedland as personal property and as property of the Crown, 24 and hadcomplete control and discretion over both. The emperor gained title to allnewly conquered lands, either as his own personal property or as propertyof the Crown. He could give the conquered lands to the nobility, warriors,institutions, and barrios as he saw fit, and could give them away with orwithout restrictions, such as the ability to sell or will the property.

Next on the hierarchy came the nobility, who could own land withunrestricted rights or with certain restrictions concerning the property's saleand succession. The nobility obtained land by buying it from other nobles

113. MARGADANT S., supra note 11, at 26.114. Id.115. MENDIETA Y NiOEZ, supra note 3, at 41.

116. MARGADANT S., supra note 11, at 26.

117. MENDIETA Y N0lNEZ, supra note 3, at 41.118. MARGADANT S., supra note 11, at 27.119. MENDIETA Y NOJEZ, supra note 3, at 41.

120. KOHLER, supra note 72, at 47.121. MENDIETA Y NOREz, supra note 3, at 42.122. Id.

123. See id. at 42.124. MARGADANT S., supra note 11, at 21.

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or by receiving it from the emperor for services rendered. The land theybought from other nobles was theirs to sell or will as they wished. Landgiven to them by the emperor, however, might come with conditions, suchas that the land was to be returned to the Crown at the death of therecipient or after a number of generations, or that at the death of therecipient, the land had to be willed to a certain person. The land mightalso be given in perpetuity with no restrictions.

Warriors could also own land outright or with restrictions on the saleand succession of their land. Warriors received their land from theEmperor for worthy military service. They, like the nobility, received landwith or without restrictions from the Emperor.

Institutions (the army, the church, and certain public offices) could alsoown land. They too received their land from the Emperor, but they ownedthe profits of the land, which were meant for the financial support of theinstitution or of the current office holder. That land belonged to the officeand not to the office holder. 125

The last entities that could own land were the barrios, which commu-nally held two types of land: land parceled out to individual families, andcommunally cultivated land. The first type remained with the family thatcultivated it unless the land went uncultivated for two successive years orthe family moved from the barrio. Communally held land was cultivatedcommunally, and the proceeds were used to pay the barrio's taxes. Thebarrio elders and the "barrio jefe" (leader), who were elected by the barriopeople, controlled the distribution of barrio land.126 Commoners could notindividually own land under any circumstances. 127

Most of the land that was given to the nobility, warriors, and institu-tions came from newly conquered lands. When these lands were givenaway, the conquered land owners were not displaced. They continued to

live on the land, work the land, and pass it on to their descendants. Theyshared the profits of the land with the new owners.

The Aztecs had a land measuring system based on the "vara," a stickthat measured slightly more than two yards. 2 They made maps thatclearly marked all land boundaries. The different types of lands (Empero-r's, Crown's, nobility's, warrior's, institution's, and barrio's) were markedon the maps by different colors. Also marked on the maps were hereditaryrights and restrictions. These maps were used by courts in land disputes. 129

125. KOHLER, supra note 72, at 50.126. See generally id.127. Id. at 48.128. MENDIETA Y NtJUREZ, supra note 3, at 47.

129. See id. at 48.

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D. Commercial Law

Because commerce was one of the foundations on which the AztecEmpire was built,130 merchants were held in high esteem. They served asa tool that paved the way for conquest and as a source of income for theAztec Empire. Aztec merchants would travel to foreign lands with the fullmoral and material support of the Emperor to seek and establish newtrade. 131 Soon, because of the Aztec merchants' resources and businessexperience, they would dominate the trade of the new land. The next stepwould be to provoke an incident that would justify sending in the Aztecarmy to protect the Aztec merchants; thus, the conquest would beaccomplished. 132 The income came from the taxation of all commoditiestraded. In exchange for the taxation, the Emperor guaranteed all merchantsimpartial justice in commercial disputes and the safety of their person andgoods.

133

All commerce was carried out in the marketplace ("tanquis").Commodities could be sold only in the designated place by a judge ofcommerce. Commissioners walked around the marketplace to prevent fraudand disturbances. 134 The commercial courts settled all commercial disputes.

Both cash and credit sales were accepted, and barter was alsopracticed. 135 The Aztec had no real, official currency, but they used ascurrency grains of cacao, small squares of cotton cloth (mainly for smalltransactions), small nuggets of gold enclosed in duck-quills so that theycould be seen and their value estimated, small pieces of tin in the shapeof a T, and precious feathers. 136

The Aztecs' commercial contracts were verbal contracts,'37 whichbecame legal and binding when witnessed by four persons."' There weresales contracts, commission sales contracts, lease contracts, work contracts,and loan contracts. 139

Loan contracts usually required collateral, which could be in the formof property, goods, or the promise to become a slave in case of default on

130. Id. at 52.131. Id. at 53.132. BIART, supra note 23, at 266.133. Id. at 270.134. Id.135. Id. at 268.136. Id. at 269.137. MENDIETA Y NORFEZ, supra note 3, at 50.138. KOHLER, supra note 72, at 53.139. MENDIETA Y NOIYEZ, supra note 3, at 49.

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the loan.140 Although it was illegal to do so, interest on loans was usuallycharged.141 First lenders had first rights, 142 and debts were passed on to theheirs. A person could be jailed or sold into slavery for loan default, andproperty could be confiscated.

E. Fiscal Law

The main sources of income for the Aztec Empire were tribute andtaxation, 143 and a well-established bureaucracy collected and accountedthese monies. All conquered people paid tribute to the Emperor. All Aztecpeople paid taxes except for priests, nobles, minors, orphans, the handi-capped, and beggars.'" Taxes were paid by class, trade, and barrio.Merchants paid taxes on their goods, artisans on their services, and barrioson their crops. Tax collectors had the legal power to confiscate propertyor sell people into slavery for nonpayment of taxes. 145

F. International Law

The law of war was part of the international law of the Aztec Em-pire. 46 There was a set ritual for declaring war; surprise attacks were notthe norm. A declaration of war had to come from the Emperor. Specialenvoys were sent to the potential enemy, who was presented with a gift ofarms and given twenty days to respond to the charges and demands. If thetwo parties could not come to a mutually satisfactory agreement, theenvoys brought another gift of arms and gave the enemy another twentydays to respond to the charges and demands. If, again, an agreement couldnot be reached, a third and final warning was given. By the third warning,even if the enemy king did agree to the terms, which had been gettingmore and more harsh, he was subject to personal punishment. If noagreement was reached, the potential enemy was told that the Aztec armywould arrive in twenty days and attack.

Prisoners of war became slaves of their captor, but their fate was to besacrificed to the Aztec gods. Sometimes prisoners of war would be madeto fight Aztec warriors. The enemy warrior would fight with a handicap,

140. KOHLER, supra note 72, at 55.141. MENDIETA Y NtREZ, supra note 3, at 51.

142. KOHLER, supra note 72, at 53.143. See MENDIETA Y NC1TEZ, supra note 3, at 24.144. Id. at 26.145. Id.146. See id. at 30.

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such as a tied hand, or would have to fight two Aztec warriors at the sametime. If the enemy warrior won the contest, he would be set free. 147

V. Conclusion

The Aztec legal system died with the collapse of the Aztec Empire in1521. How accurate and objective a picture of the Aztec legal system wepossess today is -impossible to determine. Most of the information we relyon is second- or third-hand information. Law, social order, and a deeprespect for authority were requirements for a viable empire based onconquest. In some instances the Aztec legal system seems harsh andbarbaric, with no sense of proportion or compassion; in other instances, itseems just and fair. Although the ruling elite created and enforced the law,they did not seem to have an unfair advantage over the poor; in fact, theymay have been disadvantaged in many situations because of their socialposition. What can be said about the Aztec legal system is that it was theproduct of its time and its people.

147. KOHLER, supra note 72, at 31.

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