Anti-Gypsy Legislation in Spain from the Catholic Kings to the Great Raid

Araceli Cañadas Ortega

From the legislative point of view, Gitanos are subject to specific provisions by the Crowns of both Castile and Navarre. [...] They are also the object of measures in the laws of the Indies. Although the fueros [laws] of Vizcaya and Guipúzcoa [provinces in the Basque Country] do not mention them, they prohibit the presence in the vicinity of the descendants of Jews and Moors, who extend to ‘any other people of bad race’, among whom we must naturally consider the Gitanos to be included, and the respective governors will take into account these chapters when the time comes to forbid access and neighbourhood in these realms.1

The documentation on Roma preserved in Spanish national and local archives, both civil and religious, is truly enormous. More than 250 formal rulings were promulgated between 1499 and 1783, to which we must add the studies and testimonies associated with the elaboration and distribution of and compliance with these decrees.

In the following essay, I will reflect on legislation specifically concerning Spanish Roma from the Catholic monarchs’ first pragmática [Pragmatic Sanction] in 1499 to the Great Raid, which took place in 1749, during the reign of Ferdinand VI.

Unfortunately, there is no documentary corpus of primary archival sources to facilitate an investigation into the history and culture of the Roma of Spain; neither is there anything of the kind in other European countries. This absence, in conjunction with the mythology and folklore to which the Roma have been subjected, has made it possible to create and maintain an account of the stereotypical and manipulated reality that underpins the system of exclusion and domination within which the Roma unfortunately have to live, even now.

In Edward W. Said’s magnificent book Orientalism he explains how Eurocentric thought treats other cultures, subordinating them to their particular conception of truth and reality:

Western scholars were aware of the cultural and thought movements in the Orient, but they understood them simply as silent shadows to be illuminated by an Orientalist and brought to reality by him, or as a kind of useful cultural and intellectual proletariat for the great interpretive activity of the Orientalist and necessary for his role of superior judge, educated man and powerful cultural will. What I want to say is that when you discuss East, East is the missing element, while you have the impression that the Orientalist and what he says are the present element. We must not forget that it is the absence of the East that propitiates and makes possible the ‘presence’ of the Orientalist.2

In this sense, Spanish Roma and Roma throughout Europe are absent from its history. What is presented to us as a history of the Roma people is an exogenous interpretation of the facts that, aside from some very honourable exceptions, is conditioned by political, economic, religious, moral, social and cultural interests. Faced with this situation, if we want to avoid stereotypes and understand the causes and consequences of the specific legislation affecting Spanish Roma, it is necessary to go to the original sources.

As mentioned above, the first law we find dates from 1499. This is the Pragmatic Sanction of the Catholic kings in Medina del Campo. It should be noted that all the provisions promulgated by later monarchs use it as a basis and model. Indeed, they are essentially reiterations with the introduction of some new considerations. In addition, their arguments led to the appearance of a multitude of writings on political, juridical, sociocultural and religious/moral issues. The repetition of the same ideas in different fields was accommodated in people’s consciousness and the collective memory, a fact which favoured the birth of myths and stereotypes. For the reasons given above, analysing the Pragmatic Sanctions of the Catholic monarchy in some detail seems to be a fundamental step.

The correct way to present these types of documents is in the form of a triple edition (as a facsimile, as a paleographic examination and as a critical analysis); however, space limitations mean that only the latter will be presented here. I have already pointed out that unfortunately no documentary corpus of archival primary sources exists, but I hope that in the near future a corpus containing primary sources of Roma history and culture in Spain will be established, with documents made available to researchers, teachers, students and any other interested parties.

Let us look at the first Pragmatic Sanction, issued by the Catholic monarchy in 1499:

Pragmática 1499 | photography | 1499 | fla_00267 Open Access I Provided by: Gonzalo Montaño Peña - Private Archive

As a royal law lying solely within the king’s power, Pragmatic Sanctions were laws in the strict sense. They were understood as general norms which were obligatory for all the subjects of the Crown, and were of maximum solemnity and forced fulfilment. Therefore, there could be no other possible interpretation. Because they arose from absolute power, plenitudo potestatis, which was exclusive to the monarchy, they were not subordinate to the laws passed in the parliamentary assembly, or cortes. The fact that in this case a real [royal] Pragmatic Sanction was declared rather than any other type of law indicates the great importance of the Roman Catholic community for the Catholic monarchy, but why was it so important?

The accession to the throne of Isabella and Ferdinand heralded a new social and political model. In the face of diverse laws, cultures, ethnicities and religions and the mobility of people from the previous era, the idea of the nation-state – and later the empire – was imposed. The Crown believed that homogenisation would lead to a stronger nation, but in order to achieve that homogeneity it proceeded to expunge all the ethnic, religious and cultural differences that came to be considered an innate danger to the new society it was seeking to build.

The divergence between Roma and mainstream society was clearly not going to escape these considerations, and eliminating this distinction become an important objective for the Crown. This was what led to the royal Pragmatic Sanction forcing Roma to become sedentary and abandon their characteristic way of life. Anybody who failed to do so would be expelled from the kingdom, proclaimed the decree:

[...] abandon the practice of transhumance and take known trades or enter the service of lords or leave the kingdom within sixty days.

The provisions of the Pragmatic Sanction pre-programmed the social and cultural dissolution of the Roma, undermining their cultural otherness. At the same time, as would be the case with other communities which were forced to assimilate or be expelled (Muslims, Jews and Moors), a process of demonising Roma took place: they were defined as dangerous people, born criminals and enemies of the nation who caused damage to good people:

Know that it is related to us that you walk from place to place, many times and years, without having any office or other way of living, that you keep yourselves, except by begging, and stealing, and bustle, and deceiving, and making you sorcerers and diviners, and doing other things not due or honest.

This process of demonisation is linked to the creation of a social counter-example, in other words the Roma became the paradigm of what NOT to be or do. The ‘good’ subjects were not only the opposite of the Roma ‘parasites’ that infected the kingdom, they were also victims of their acts:

... of which our Lord God is deserved and many of our subjects receive from it tort and bad example: and they are affected of you.

Once the enemy has been defined, the figure of the monarch appears as saviour – a panacea against all evils and guarantor of the security and prosperity of the kingdom, justifying its absolute and unquestionable power:

And why to us as king and queen and lords: it belongs in this to provide and remedy: we send [...]

The fundamental objective of the Pragmatic Sanction to eliminate Roma identity and turn Roma into loyal subjects of the new society resurfaces in the stipulations aimed at diluting the community. Contact between individuals is prevented in order to prevent cultural transmission:

And do not walk more together wandering through these, our kingdoms, as you now do [...]

In addition, the legislation stated that those who contravened the Pragmatic Sanction for the third time would be enslaved to those who seized them:

[...] and for the third time that you are captives of those who take you for all your life [...]

Thus, we see how the role of Roma in the society planned by the Catholic monarchy is established by law: as a stigmatised community and social counter-example. It is astounding to see how that role has not only been maintained for centuries in the country’s memory and collective consciousness, but also increased and reinforced by the political, religious, social, economic and cultural moral discourses of hegemonic thinking ever since. From 1499 through to the present day we can recognise the same basic ideas with adaptations for each historical epoch, but always coming from the notion of instrumentalisation and from the social counter-example required by the hegemonic thinking of these different eras.

Let us return to the historical period of this work, for as we have already said, the Pragmatic Sanction of the Catholic monarchy was the basis and model for all provisions promulgated by later monarchs. These were essentially reiterations of the same with the introduction of some new considerations.

The successor to Isabella and Ferdinand, Charles I, repeated the Pragmatic Sanction of 1499 on four occasions: 1525, 1528, 1534 and 1539.

Philip II (1560, 1566, 1586) revised and elaborated upon the existing points, while also introducing a series of lamentations about the ineffectiveness of the measures already adopted. These lamentations were to be repeated in all the following Pragmatic Sanctions. Philip II ordered that Roma be condemned to serve in the galleys to cover the Spanish navy’s rowing requirements; he equated the Roma with vagabonds, which meant that not all vagabonds were considered Roma, but all Roma were vagabonds; moreover, he forbade the passage of Roma to the Indies and decreed the immediate expulsion of those who were there. It is important to note that the new stipulations revoked those which had preceded them, leading to confusion among judges about how they should apply the decree and ultimately generating numerous complaints.

Philip III (1611, 1619) revised the previous Pragmatic Sanctions and prohibited all signs of Roma identity: name, language, costumes and customs. It was henceforth forbidden for Roma to live in populations of more than a thousand inhabitants or hold livestock; Roma were thus forced to devote themselves exclusively to tilling the land. This persecution of the Roma way of life was made in an effort to achieve assimilation. It is important to note that in the seventeenth century there were numerous petitions, decisions by arbitrators and treatises that aimed to point out the reasons for the kingdom’s problems and propose their solution. One of the favourite causes of these arbitrators and petitioners was what was termed the ‘Gitano problem’ and, of course, its solution, the ‘Gitano remedy’.

Philip IV (1633) revised the previous Pragmatic Sanctions and abolished the expulsion decree, on account of the serious depopulation problem which had occurred after the expulsion of the Moors, Jews and Muslims, compounded by the burden of wars, plagues, famine and emigration to the American colonies. The Roma were no longer considered foreign and became legally incorporated into the kingdom as subjects – but subject to certain conditions. These prohibited the use of the term ‘Gitano’ or ‘Gitana’, which was considered seriously offensive; prohibited the organisation of celebrations such as dances or plays, by means of which many Roma earned a living; and prohibited living in a community such as the gitanerías (Roma neighbourhoods). This led to the paradox of Roma identity: specific norms were dictated for a group (that they abandon their name, language, costume, customs, offices and places of residence), while on the other hand they were denied their existence because they had been assimilated as subjects.

Charles II (1692, 1693, 1695, 1699) revised the previous Pragmatic Sanctions and introduced the censuses that collected exhaustive information on name, residence, civil status, number of children, trades, weapons, property, horses and mules owned, etc. It also prohibited Roma from working as blacksmiths and introduced harsh penalties for encubridores (anybody who helped or protected the Roma): nobles had to pay 6000 ducats, while plebeians were condemned to the galleys.

Philip V (1705, 1708, 1717, 1726, 1727, 1731, 1738, 1745, 1746) introduced a series of revisions with ever harsher obligations and prohibitions. There were further limits on which cities Roma could inhabit, periodic censuses were established, people could expropriate Roma property with impunity, and most importantly, they were deprived of ecclesiastical immunity, or the right to find sanctuary in a church. The increasing pressure led to many complaints to the Council of Castile, denouncing the abuses. Prohibition after prohibition turned the Roma little by little into serfs. Roma were left defenceless against local mayors who could seize them or demand bribes for issuing travel permits.

As we have seen, from 1499 the Roma of Spain were victims of a system of exclusion and domination which was appeased and nourished by hegemonic thought on the basis of its political, economic, religious/moral, social and cultural discourse. They became an instrument of the state, either to cover its needs (as galley slaves or cheap labour) or as a social counter-example for laying the foundations of the new society in the conscience and collective memory of the population. This increasing persecution and forced assimilation reached its maximum expression during the reign of Ferdinand VI (1746–1759). Although the formal repressive measures were gradually eased in later centuries, the consequences can still be felt today. In this sense, it is necessary to review and re-evaluate the history and culture of the Roma of Spain and Europe in order to break through the system of exclusion and domination, to end our absence, and to work for a more just and true reality as well as a fitting representation of that reality.