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THE SPANISH COLONIAL JUDICIAL SYSTEM

A Thesis Presented, to the Faculty of the Department of History The University of Southern California

In Partial Fulfillment of the Requirements for the Degree Master of Arts in History

■by

Mary Wellemeyer Stal June 1942

UMI Number: EP59511

All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion.

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T h is thesis t w ritte n by

....... un d er the d ir ec ti o n o f h$.V,. F a c u l t y Co mmitte t a n d a p p r o v e d by a l l its m e m b e r s , has bee presented to and accepted by the C o u n c i l o G ra du at e S t u d y and Research in p a r t i a l f u l f i l



m e n t o f th e r e q u i r e m e n t s f o r the de g re e o f

MASTER

OF

ARTS

Dean

Secretary

Date

June, 1942

Faculty Committee

'irfhan

S>

TABLE OF CONTENTS CHAPTER I*

PAGE

ORIGINS AND BACKGROUND OF THE SPANISH COLONIAL SYSTEM . . .

II.

..............................

JUDICIAL FUNCTIONS OF THE CENTRAL INSTITUTIONS Consejo de Indias

1

. .

• . . . • • • • • • • • • • •

9 9

Casa de Contratacion . . .................... 11 Camara de Indias III.

.............

19

CIYIL AND CRIMINAL JURISDICTION IN THE SPANISH COLONIES - THE A U D I E N C I A .................... 23 Powers and duties of the a u d i e n c i a ...........24 The governor and the a u d i e n c i a ...............26 Judicial functions of the audiencia........... 29 Semi-judicial functions • • .........

17.

.....

33

The audiencia as an advisory body to the governor

37

Legislative duties of the audiencia ...........

39

CIYIL AND CRIMINAL JURISDICTION IN THE SPANISH COLONIES - LESSER COURTS AND OFFICIAL

.......... 42

Adelantados............................

42

Corregidores................................

46

Cabildos and ayuntamientos.........

50

Alcaldes ordinarios



54

Residencias.................................. 56 Yisitadores-Generales and pesquisadores ........

63

.CHAPTER

PAGE

V. JUDICIAL CONTROL OP THE INDIANS..................... 66 Eneomien&a • . .........

70

. . * * . * * # ......... . . • . * 76

Repartimiento Mission Indians

.........

. . 86

VI. EXTRAORDINARY C O U R T S ................. Consulado

.........

Ouerpo de Minerfa .

..........

98 107 112

M e s t a ......................................... 119 Santa H e r m a n d a d .................. • • • • • • •

123

VII. THE COLONIAL REFORMS OF CHARLES III AND JOSE

DE G A L V E Z ........................ Commercial reforms. . . . . . . . . . . . . . . . Intendant system....................

126 128 133

VIII. C O N C L U S I O N ..............................

140

BIBLIOGRAPHY..................

151

PREFACE

The following thesis was originally intended to he a study of courts and the court system under the Spanish colonial empire.

As there was no separate judiciary in the Spanish

system it became difficult to segregate judicial functions from non-judicial, and consequently the subject evolved into a brief survey of the Spanish colonial system with a special and detailed examination of the judicial functions of the various institutions and officials.

The institutions and

officials studied include only those which functioned as judicial bodies.

The duties of such officials as viceroys

and governors are only given in so far as they relate to the judicial organization. The nature of the study has demanded the use of a large number of foreign terms, many of which do not translate easily.

In order to avoid confusion most terms have been left

in their original Spanish form.

Because of the frequency with

which they occur they have not been italicized, but all such teims have been defined adequately either in the body of the work or in footnotes. • This is by no means an exhaustive study of the judicial system of Spain.

Many of the lower courts have not been studied

in detail because material is not available.

There is an ex­

cellent field for research in this regard, but it would require

research work in specific localities where records of the Spanish colonial regime are attainable.

The author was unable

to carry on this type of research and has presented such material as is available on the subject at the present time.

It is

highly probable that some of the lesser courts and officials did not leave written records of their proceedings, and in such cases little could be ascertained of their specific functions or duties.

The Spanish government with its love of

detail and regulation has left a wealth of material, however, and the duties of most of the officials were clearly defined.

CHART OF THE SPANISH COLONIAL JUDICIAL SYSTEM SHOWING THE ORDER OF APPEAL

Indias

Camara de Indias Casa Be Contrafacidn Consulado of Seville (Cadiz) Spain Colonies

* Viceroy Audiencia

inen

Casa del Cri:

de Indias

Residencia*

Visitor-General (Special inyesti responsible only to king and Council of the Indies*)

Pesqui sador

Adelantado and Captain General Consulados of World the

egimiente

Alcalde Mayor (Judicial set-up same as corregidor)

Teniente Encomendero Alcalde Ordinario

Escribands

'Cabildo

Probate Judges

Aguaoiles mayores

Caciques

*The residencia applied to all officials but was usually tried by the judges of the audiencia or reviewed there.

Church Councils ,,and.Gourts, Inquisition Oourte

CHAPTER I ORIGINS AND BACKGROUND OP THE SPANISH COLONIAL SYSTEM The discovery of America by Columbus in 1492 marked the beginning of the most glorious period in the history of Spain*

The voyages of Columbus and of succeeding explorers

laid the foundation of a colonial empire so vast and so rich in natural resources that it brought Spain into the position of the most important nation in the world* position for over a century*

She retained this

The political system evolved

by Spain for the government of this extensive colonial empire was a highly effective one*

Indeed, it was used as the model

for the colonial systems of most of the other European/mat ions. The political and judicial systems of Spain contained certain inherent weaknesses, yet the final break between Spain and her colonies was less because of the inefficiency of the political system than due to an unintelligent economic policy. The political system might have lasted to the present day in 1 spite of its weaknesses* Spain’s rule did continue for three ,

/

centuries and the political and social structure of present day Spanish America is largely the outcome of this long period

% a r y Wilhelmine Williams, People and Politics of Latin America. Ginn and Company, New York, 1930, p* 150.

of Spanish administration*

1

Political events in Spain prior to the period of explora­ tion placed Spain in a position to lead in explorations and colonization of the Hew World.

These same events laid the

basis for the colonial system.

After 800 A. D . , Spain, espe­

cially in the governing of frontier provinces, developed g institutions ?/hich were well adapted to colonial rule. The 3 following quotation illustrates this point. • . • many elements in the political system of Castile developed in connection with the adminis­ tration of frontier districts populated by nopChristian people; hence the system was rather suited to the American dominions where it was introduced. Substantially every institution and office found in the Indies had its model in Castile; but changes in form and function developed to suit local needs or to meet the handicap of the great distance of the colonies from the royal headquarters* From 800 A. D. to 1200 A* B . , four important political factors were developed: royal power, nobility, municipalities, and the Church. districts.

The king at first sent counts to the outlying

These royal representatives had administrative,

judicial and military authority over districts called mandations. The nobility proved to be more faithful to the aristocracy than

Charles Henry Cunningham, "The Institutional Backgrounds of Spanish American History," Hispanic American Historical Review. February, 1918, p. 24. 2Ibid. p. 25. ^Williams, oj>. clt. p. 150

to royal interests so that some time after 1Q2Q, the king replaced them by individuals called adelantados.

1*116 king

further reserved the right to judge in cases of disputes 1 between nobles* The adelantado held the highest rank in the judicial system then established.

This office was soon

distinguished from lesser officialdom by the term adelantado mayor.2 The adelantado mayor was a soldier and the predecessor of the captain general*

He was accompanied on his tours of

inspection by letrados or asesores, who were men of legal training.

They*were to advise him in all questions of law

and to assume responsibility for all his acts of administra­ tive or judicial character.

Adelantados rendered decisions of

momentous import and could act without responsibility on the advice or aid of their legal assistants, who in turn answered for their acts in the residencia. Upon entry into office the adelantado mayor took an oath concerning the interests of the king and his people.

He

swore to honor his lord and counsel him rightly, to keep his secrets and protect his rights.

He was to judge justly, not

^Cunningham," Institutional Backgrounds," p. 25 g Lower judicial officials were called adelantados menores. (R. R. Hill, "Office of the Adelantado," Political Science Quarterly, December, 1913, p. 248.)

2 Cunningham,"Institutional Backgrounds," p. 29. (The term residencia is explained infra, pp. 55-62.)

4 to be influence by love, hate, fear, supplication or by any gifts that might be offered.

Upon entry into office he was

to make a tour of inspection confirming into office minor judges who had honestly performed their duties.

He was to

remove incompetent officials and was expected to protect and guard the kingdom against robbery and other crimes.1 About 1239, the office of adelantado menor was esta­ blished.

This office was not supreme in judicial affairs, but

its judicial functions were more extensive than those of the adelantado mayor.

At first he had both original and appellate

jurisdiction over civil cases arising in his district, but later legislation took away original jurisdiction leaving him only appellate powers.

2

The adelantado menor had authority over the lesser judicial officers of his district. their decisions in all matters.

He heard appeals from

He was always accompanied

by a person learned in law and a clerk provided with a book in which a reeord of decisions was kept.

He was in turn

obliged to grant appeals from his decisions to the king, but matters concerning the nobility were beyond his power.

1Hill, o£. cit.

p. 648.

2Ibid. pp. 648-9. (The major adelantado^ duties were more administrative in character.) Ibid.

p. 650/

5 He was obliged to visit his district periodically and to punish evil doers.

He was to see that all received justice,

and then make a report to the king of conditions.

He could

appoint lieutenants, but these must not be nobles or powerful persons.

He also appointed alcaldes menores who were municipal

officials. The crown, in regard to most of its officials, followed a rather unusual policy, assigning to them extensive powers. At the same time it counteracted this authority by placing upon them restrictions which often applied to their private as well as public lives. adelantado.

This was true in the case of the

The crown, while giving him wide judicial authori­

ty, forbade him to bring accusation against anyone during his tezm of office*

neither he nor his dependents were allowed

to engage in any business enterprise.

He could not marry

during his term of office, but the crown alleviated this by allowing him to take a concubine if he so desired.

Z

He could

not take more than his prescribed fee, and he was held judi­ cially responsible for all his acts.

If injury or crime was

committed because of his negligence he must pay a fine equal 3 to double the amount of the losses.

AThe alcalde is discussed in greater detail in Chapter 17. See infra. p. 54. 2Hill,tt0ffice of the Adelantado” , 3 hoc. cit.

p. 651.

6 Most of the judicial bodies found later in the colonies originated in Spain during the twelfth and thirteenth centuries* As the crown grew in strength it experimented with various officials, especially in the frontier provinces.

By the time

Spain became the possessor of a large colonial empire, these offices were well defined. It was during this same period (the twelfth and thir­ teenth centuries) that a definite judiciary was formed, cul­ minating in the royal audiencia*

This name was derived from

the audience given by the king at which he heard complaints. At first the king devoted three days a week to it.

Later

he could devote only one day a week, and the audiencia became a high court of appeals presided over by royal magistrates.1 In addition to the royal audiencia others regional in jurisdiction were soon established.

In 1480, one was estab­

lished at Valladolid which was to take over a large portion of the judicial functions of the Council of Castile.

Another

was established at Granada in 1505, and soon after one at Galicia.2 The oorregidor was another royal officer appointed as the personal representative of the king.

As a judicial officer

Cunningham, wInstitutional Backgrounds,” pp. 29-30. The colonial development of this institution is discussed in Chapter III* ^William Spence Bobertson, History of the Latin American Nations, D. .Appleton and Company, New York, 1922, pp. 38-9.

7 lie can be traced back to Roman times*

In Spain he was

invested with supreme authority over all ordinary judges of a given district.

He was given no set term of office or

salary but was commissioned to act as a special agent for the king.

His commission and power ended with the settlement of

the case in hand,*1* The Ordinance of Toro in 1369, gave four grades or instances for the administration of justice.

The lowest

officials were the alcaldes ordinarios who were local officials with original jurisdiction.

The second group was composed

of alcaldes merinos who had royal and original jurisdiction in certain feudal districts where there were no municipalities. Above this group were the adelantados, and highest were the king and royal audiencia.2 In 1371, the alcalde mayor first appeared.

He was a

royal, municipal judge who derived his power from the king instead of the municipality.

In the colonies he became a

provincial judge as well as a municipal one. Thus, when Spain found herself the mother of a large colonial empire and the protector of vast numbers of subject people,

she was by no means as inexperienced as is sometimes

^C. E. Castaneda, "The Corregidor in Spanish Colonial Administration," Hispanic American Historical Review, Hovember, 1929, p. 448.

2

Cunningham, "Intitutional Backgrounds," p. 31.

5l q c . Cit.

See infra,

pp. 50 ff.

believed*

These institutions had already been tested in the

frontier provinces at home and i n her island possessions such as the Canary Islands*

Spain had become powerful both

economically and politically through the final unification of her country*

She turned her attention to the Hew World using

much the same method of control which she used at home*

These

institutions outlined in this chapter were to change somewhat in their new environment, but fundamentally they remained the same*

CHAPTER II JUDICIAL FUNCTIONS OF THE CENTRAL INSTITUTIONS When Columbus was preparing for his second voyage, the crown decided to extend its control to the government of its new colonies*

In 1493, it appointed Juan Rodrigues de

Fonseca, arehdeacon of Seville, to help Columbus with the preparations for his second voyage*

In this appointment is

found the origin of the Council of the Indies.

The council

eventually consisted of eight councilors presided over by Fonseca*

It resided at court and could be presided over by

the king.1 The men appointed to the Council of the Indies usually had been in service in the colonies and thereby understood the problems of the colonists.

At first the form of the council

was not clearly defined and it conflicted with another depart­ ment called the Casa de Contratacion, or House of Trade.

However,

on August 4, 15S4, the Council was assigned definite legisla­ tive and administrative functions.

At this time it consisted

of eight lawyers, a president, a high chancellor, a fiscal, two secretaries and a lieutenant chancellor.s

^Williams, People and Politics of Latin America,

p. 150.

^Charles henry Cunningham, The Audiencia in the Spanish Colonies, University of California Press, Berkeley, 1916, pp. 14-16.

While its authority varied at different periods at its height the Council had supreme jurisdiction over the colonies and covered the whole field of governmental activity*

As a

legislative body it made laws for the government of the Spanish possessions in the Indies*

As an executive body it was an

advisory committee for the king who gave it almost complete eharge of the governing of the colonies.^

It acted as a

judicial body in three ways: (1), to it, all colonial boro people living in Spain must bring their suits; (2), it acted as a court of final appeals receiving cases from the highest courts of the Indies; and (3), it acted as a court of first 2 instance in certain cases of major importance. The Council retained this form throughout most of the colonial period*

Certain minor officials were added when the

need demanded them*

Up to 1773, appeals could be made from

the Council to the king, but on July 29, of that year a royal 3 decree declared the decisions of the Council final. In matters of trade the crown tried various policies at first.

It gradually assumed more and more monopolistic

^Bernard Moses; The Establishment of the Spanish Rule in America, G. P. P u t m a n s Sons, New YorE7 i9'07, p. 19. ^Williams, op* cit.

p. 151.

^Donald E. Smith, The Viceroy in New Spain. University of California Press, Berkeley, 1914, p. 109.

11 control until the final mercantilistie system emerged.

When

Columbus sailed he was given the rank of admiral in territories discovered, death.

This rank was to pass on to his heirs at his

As admiral he was given the sole right of judging all

cases arising in connection with trade and commerce of the territories in question.

He was to be viceroy and governor-

general in the lands he was expected to find.

He had the

right of choosing three candidates for remunerative positions one of which was picked by the king.

One-tenth of the profits

drawn from the land were retained by him, and if he contri­ buted one-eighth to the expedition he should receive oneeighth of the profits from it.

1

For a period of two years after the first voyage of Columbus, trade was carried on by strict control.

However,

in 1494 the crown threw open trans-Atlantic trade to all Castilian subjects, provided that: (1), ships register and sail from the port of Cadiz and return there on their home­ ward voyage; (2), one-tenth of the tonnage be reserved for the use of the crown; and (3), one-tenth of everything secured 2 by barter or other means be given to the king. This period of free commerce was comparatively short

Roger Bigelow Merriman, The Rise of the Spanish Empire, The Macmillan Company, New York, 1918, p. 194. 2Clarence Henry Haring, Trade and Navigation between Spain and the Indies, Harvard University Press, Cambridge, 1918, p, 5.

IB lived and the policy of the crown was soon reversed so that no one could sail without a royal license.

Further explora­

tions revealed the mainland to be more extensive than hitherto believed.

The crown, realizing the need of a more definite

means of control, created in 1503 a supervisory body called the Casa de Comtratacion,

At this time Seville was the largest

harbor city so it was chosen as the residence of the Casa, 1 although the harbor at Cadiz was far superior. The Casa de Contratacion resided at first in the arsenal of Seville, but in June of 1505, its residence was ohanged to the Alcazar Real, the building formerly oeGupied by the admiralty court. Bourbons,

It remained there until the days of the

The Casa consisted at first of three officers;

a treasurer, a

contador or controller, and a factor or

business manager*

The treasurer received and cared for all

gold, precious metals and stones which were due the royal treasury from American mines.

The contador had charge of the

registering of all persons and commodities carried by either outgoing or incoming ships. from the crown.

Emigrants had to obtain licenses

The factor was in charge of the outfitting

and provisioning of ships, the purchasing of supplies and

^Cadiz was more open to attach, Tessels were small enough at this time to sail upriver to Seville, This was not true later and the Casa was mar ed to Cadiz, 2Merriman, 0£. cit, p, B25. and Navigation, Chapter !•

Cf. also Haring, Trade

15 armaments, and of all merchandise except the gold and precious stones covered by the treasurer.

2

The office hours of the Casa were definitely set by the time the laws were compiled in 1552.

It was to meet every

morning from seven to ten in the summer, and from eight to eleven in the winter, and on Monday, Wednesday and Friday afternoons after three in the winter and after five in the summer.

For non-attendance without valid excuse, a member was 1 fined a half-real of silver. The duties of the Casa may be broadly grouped into the following categories:

(1), the supervision of import and ex­

port trade between Spain and her colonies; (2), the arrange­ ment of sales and the distribution of imported articles, concessions, cargoes, and the collection of duties;

(3), juris­

diction over emigration to the colonies; and (4), after 1509, authority over criminal cases relating to trade.

On September 25,

1583, Philip II created a royal audiencia within the Casa which added to the three original officials three jueces letrados or judges, a fiscal, and a number of subordinate officials. Although the Casa was the supreme authority in most matters concerning trade, it was, nevertheless, subordinate to the 2 Council of the Indies.

1 Haring, oj>. cit. 2Ibid.

pp. 36 ff*

p. 33

14 The duties of the ^asa were originally defined in 1559* Trade grew to such an extent, and the duties of the Gasa be­ came so numerous, that it was impossible for it to complete them.

In order to lessen the burden upon the officials of the

Casa, civil eases were turned over to a court appointed by 1 the Oonsulado. In 1546, a fiscal was appointed, and in 1553, a juez assessor was added.

The new court of justice added

in 1553 was the final court for cases involving less than 600,000 maravedis and for all criminal cases except those involving death, mutilation or other forms of corporal punish­ ment.2 The office of president of the ^asa was created in October, 1557, the first president being Suarez de Caravel. However, this first attempt was unsuccessful and the office lapsed until 1579 when Diego Sasco de Salazar was appointed to the office.

It was his duty to help coordinate the act­

ivities of the treasurer, factor and contador, and to strengthen relations with the Council of the Indies.

His duties were

largely administrative although he might attend the sessions of the Casa and could vote in case of a tie.

He had the right

to preside over the Gonsulado but had no vote; this privilege

^-The consulado was an unofficial body of merchants interested in American trade. See infra, Chapter V. Wing,

0£. cit.

pp. 57-8.

15 lie seldom exercised, however.

His main duty was to provide

for the regular sailing of the fleet At first the interests of the treasurer were concerned solely with the care of American gold, silver, and precious stones credited to the royal exchequer*

In 1560, he became

the receiver of the almojarifazgo, or export tax.

The bienes

de difuntos2 was at first managed by all three officials, 3 This office was then sold to Espinoso. When he could not make it pay this too was given to the treasurer.

Additional

duties entailed an increase in the staff, but it also coacea4 trated financial responsibility. The factor, assisted by an escribano de armadas, was in charge of the purchasing and keeping of supplies of arms, artillery, munitions, ship’s stores and tackle.

The arsenal

was in his charge while the warehouse was under the super­ vision of all three officials.

The personal staff of the

factor eventually consisted of two deputies, four commissioners two clerks and a constable.

The factor was also in charge of

the receipt and packing of quick silver which was exported to

x Haring, op, cit, pp, 47-8, 2 Gases involving the distribution of estates of those dying in America or at sea. Espinoso was one of the King’s favorites. The selling of offiees was a normal method of handling in the Spanish administrative system. 4 Haring, o|>* cit. pp. 48-9.

16

America for use in the silver mines.

1

The duty on exports and imports called the averfa was entrusted to the Casa.

The collection of this tax entailed

more work than the regular members could handle. this work was turned over to three by a receiver and minor officials.

At first

officials who were aided In 1573, the task became

so great that the office of deputy auditor was created, the duties of ?7hich were the collection and expenditure of the averfa.

Even then the deputy auditor’s task was so great that

the king established the Tribunal de la Oontaduria de Averfa which in its final form consisted of four permanent auditors and a superintendent.

The schedule of the tax was in the

hands of this official who grew to Z tant members of the Casa.

be one of the most impor-

In November of 1625, Philip 17 created for his faovrite, the Count-Duke of Olivares, the office of aguacil mayor, or high sheriff, and perpetual juex ofieial of the India House, or Casa.

As juez ofieial he had precedent next to the president

and in his absence could act in his stead. he appointed jailors and all constables. was made hereditary.

As aguacil mayor Later, the office

As Olivares and his heirs would probably

not make use of the office themselves, it could be sold or

■^Haring, op. cit. pp. 49-50. 2Ibid. pp. 50-51.

17 disposed of to anyone approved by the Council of the Indies, Philip 17 also created for the Count of Castrillo an office called the alcalde y guardo mayor and gave to this office precedent next to Olivares or in his absence next to the president.

The nominations to the offices had previously

belonged to the president of the Council of the Indies,^* During the sixteenth century the offices of the Casa increased entirely out of proportion to the increase in trade* The crown at all times wished to keep all commercial activity under its control, which might explain the addition of offices to a certain extent, but a more likely explanation is that the government was virtually bankrupt and each newly created office could be sold, thus bringing money into the treasury. Because of the mercantilistie belief that all commerce w

must' be controlled by the crown, Spain was extremely diligent in the matter of registration of goods.

All goods going to

the Hew World had to be declared before officials of the Casa, Ho article could be added after the registry was closed with­ out special permission.

Any person who registered goods under

another name forfeited them on first offense. offense he lost half his property.

On second

In 1593, a decree declared

that any ships officer caught with unregistered goods in his possession lost his place for four years.

^Haring, Trade and Navigation,

If it were a lesser

pp. 51 ff.

18 person lie was sent to the galleys for a similar period.

It

was also declared that consuls for merchant guilds found with unregistered bullion would forfeit all their property and would be banished. stricter.

In the seventeenth century the rules were made

Any officer or sailor found with unregistered goods

was condemned to the galleys for ten years and was never to have any further connection with India navigation.1 In spite of the number and strictness of the laws re­ garding unregistered goods, contraband trade increased.

Goods

were hidden or taken on board beyond San Lucar, the port of departure.

In the seventeenth century smuggling was almost

universal.

In 1653, it was estimated that almost ninety percent

of the convoy tax was contributed by the crown on bullion brought baek to the royal exchequer.

The court for trying

commercial eases was under the control of the Oonsulado of Seville, and it played into the hands of the commercial group to whom the king was often indebted.

Consequently, most of

the rules regarding unregistered goods were ignore completely.2 The problem of contraband trade was never settled.

The

monopoly which the king had hoped to maintain in matters of

faring, op. cit.

2

pp. 61-2.

A case in point is illustrated by the wrecking of the flagship of the fleet in 1555, along the coast between Gibralter and Cadiz. In salvaging the treasure it was found that more than twice the amount was recovered than had originally been registered. (Haring, op. cit. pp. 63-4.)

19 trade was maintained by the merchants rather than the crown* The support of the king was given mainly to the Council of the Indies, but the Casa was always a powerful institution in its control over commerce*

It practically controlled.the

government of the city of Seville, and was given full juris­ diction over its own officials by a decree in 1655.^ At a later date the powers of the Casa lessened.

More

and more of its duties were taken over by the Council of the Indies until finally on June 18, 1790, it was suppressed and its affairs were assumed by the Consulado of Seville.2 Although the ecclesiastical courts will not be studied to any great extent in this thesis, it is necessary to men­ tion the system used by Spain.

The Church in Spain was

permitted to have its own courts which were staffed entirely of churchmen and presided over by a bishop.

They tried cases

by canon law on matters which dealt with spiritual things ©r with the clergy.

Every twelve years, or oftener if necessary,

Ghurch councils were held in the Indies.

Their decisions

were approved by the Council of the Indies and then sent to the Pope.

They were then permitted to be put into effect.

%oses, The Establishment of Spanish Rule in America, p . 29 . 2rbia.

p. 51.

"Williams, People and Polities of Latin America,

p. 180.

In 1558, the Gamara of Castile was added as an adjunct to the Council of Castile*

It was the tribunal through which

Spain exercised temporal jurisdiction over the Ghurch of Spain, and was the most important organ of the Council of Castile.^* When the Council of the Indies was organized in 15S4, it was modeled after the Council of Castile*

Likewise when

the Gamara de Indias was organized in 1600, the Camara of Castile was used as its model*

The Camara de Indias heard all

legal cases appealed from the colonial audiencia and made decisions largely on the advice of a fiscal.

It held decisive

authority in matters regarding ecclesiastical affairs.

It

exercised supervision over settlement and administration of estates of prelates, retention of bulls and apostolic briefs, the occupation of ecclesiastical benefices, banishment, extirr pation of vice, punishment of crime, and all questions involving o the moral uplift of the religious order. The Camara also had the right to enact such measures as would assist provincials3 and prelates in the fulfillment of their ecclesiastical obligations.

It also exercised authority

^Cunningham, "Institutional Backgrounds of Latin American History", pp. 36-7. Ibid, p. 37. 3

Spaniards living in the New World who had been b o m in Spain.

arer all questions of extension of ecclesiastical influence and transfer to the secular church of districts formerly oceupied by missionary orders. The Church courts themselves followed no unusual procedure in the colonies*

At times there were conflicts between eccle­

siastical courts and secular courts*

Yet there was no unique

feature in their set-up except the Gamara and perhaps the Inquisition court.

This latter followed the same method in the

colonies as was used in Spain.

It was less violent by the

time it was introduced into the Mew World, and further, it 2 never applied to the Indian population. In summarizing it may be said that Spain created three important institutions of central control.

These institutions

wielded tremendous power in their particular fields.

The

Council of the Indies was not only the high court of appeals, but also the chief law-making body for the colonists.

The

Sasa de Contratacion took charge of all commercial matters and was subject only to rulings made by the Council or the king. The Gamara de Indias regulated all church matters and was subject only to the Council and royal commands.

The power of

these three institutions was lessened only by the distance of

^Cunningham,"Institutional Backgrounds*, 2

p. 36.

A good summary of relationships between Ghurch and state is found in I. Lloyd Mecham, Church and State in Latin America.

zz the colonies from Spain.

This difficulty often made it easy

for unscrupulous officials to ignore commands from the home government#

It also left the institutions in the colonies

with more power than was ever intended for them under Spain* s colonial policy.

CHAPTER III CIVIL AND CRIMINAL JURISDICTION IN THE SPANISH COLONIES - THE AUDIENCIA During the early period of colonization grants were given to conquerors under the system of adelantamientos men­ tioned earlier.^

These conquerors were given almost absolute

authority over the territory conquered.

The king did not

regard this as an ideal situation in that it lessened his control over the colonies.

Adelantado grants were soon re­

stricted and gradually new offices were introduced into the colonies.

One of the first of the Spanish institutions to

find its way to the colonies was the audiencia.

This court

had been tried successfully in a number of Spanish towns, thus when it was brought to the New World the problem was merely one of adapting an existing institution to a new environment.

It was not a case of rank experimentation.

2

In 1507, the towns of EspaSola petitioned the king to be granted the same privileges and form of government as possessed by municipalities in Spain.

^See supra, p. 3. detail in Chapter IV. 2

This request was

This system is discussed in greater

In the colonies the term audiencia referred not only to the tribunal but also to the area over which the court had jurisdiction. In this study the term will be used most often in reference to the court.

24 eventually granted and in 1511, a tribunal of royal judges was sent to the colonies.

Their duties were to be as follows:

(1), to try cases appealed from local governments; (2), to check abuses of absolute governors; and (5), to become the official organ for expression of needs of the colonies in non-judicial matters.

This tribunal was so successful that

a permanent audiencia was eventually created in Santo Domingo on September 14, 1526.’*’ When difficulties arose in Mexico after its conquest by Cortez, the crown decided to attempt this type of govern­ ment there also, and on November 29, 1527, the first audiencia for lew Spain was created.

From this time the audiencia

functioned throughout the three centuries of Spanish rule in Hew Spain. The extent and control of the audiencia varied at different times during the history of these three centuries. During the first few years of its existence to 1535, it had almost full control over the colonies.

When the viceroyalty

was established, the audiencia became less important in some fields but retained its full measure of control in judicial matters.

In general, however, the duties of the audiencia

^Charles Henry Cunningham, The Audiencia in the Spanish Colonies. University of California Press, Berkeley, 1918, pp. 19-20.

85 might be classified as follows:

1

1. To guard the royal prerogative• 8. To try all persons §ccused of usurping royal jurisdiction* 3. To see that officials did not charge excessive fees* 4. To assume supervision over espolios. 5. To collect, administer, and dispense of property left by deceased prelates* 6* To restrain ecclesiastical judges* 7. To try appeals from viceroys, but its decisions in turn could be carried to the Council of the Indies* 8. To assume control in the absence of the viceroy* 9. To inspect provinces and ships* 10. To collect and remit to the government receiverall money derived from fines and penalties. The audiencia1s duties covered so large a field and at times were

so indefinite that even conscientious judges found

it almost impossible to fulfill them.

The part the audiencia

played was of vital importance and its decisions were subject only to the approval of the viceroy over its district, and to the remote control of the Council of the Indies.

The ex­

tent of the audiencia1s power will be discussed in more detail later.3 The vieeroyalty was likewise an instrument of govera4 ment taken from the institutions in existence in Spain. In

^Cunningham, The Audiencia in the Spanish Colonies, pp. 88 ff 8 The term espolio applies to property which archbishops and bishops left at the time of their deaths. All possessions of deceased prelates reverted to the crown. 3 See infra, pp. 86 ff. 4

In 1383, the king first appointed a viceroy to represent him In Sardinia, and this officer was to be used quite effec­ tively in the Hew f/orld by the Spanish government.

E6 the Hew World there were four viceroyalties in all, the most important "being those of Mexico and Lima.

The viceroy had

charge of the collection of taxes, administration of mines, disbursement of revenue, control of commerce, and charge of the audiencia in whlchhe acted as president.

He also had

supreme military command over both the military and naval forces.

He was responsible for the national defense, and the

keeping of internal order*

This last duty at times was his

most serious responsibility, and often times occupied most of his time.

The viceroy was an almost absolute ruler in all

things except fiscal matters, in which cases the practice developed of sending appeals to Spain.**The viceroyalty was established as an office through necessity.

After the corruption of the first audiencia in

Mexico, the crown realized the value of having a check on that body.

In addition it hoped to send out a true representative

from the Spanish courts who would carry on the work of the crown as a loyal servant in these newly acquired territories.

g

The man appointed to the office was always some member of the court of Castile who could be entrusted with the business of the king.

Occasionally a viceroy, arriving at such a distance

D o n a l d E. Smith, The Viceroy in Hew % a i n » University of California Press, Berkeley, 1914, pp. 100-101. (Another excellent study of the viceregal system is Arthur S. Aiton, Antonio de Mendoza. Duke University Press, Durham, 1927). g

The term viceroy (vice-king) gives us this meaning.

27 from tli© king forgot the loyalty expected of M m .

Thus, at

times with the viceroy, as well as with,the audiencia, the institution lost its first well-meant purpose through its distance from the center of control, and in the history of these institutions there are examples of conscientious workers and also of highly unscrupulous, ambitious men whose main object was the accumulation of a fortune* The audiencia which was established in ^ew Spain in 1527, consisted of four judges or oidores, and in addition a prosecuting attorney or fiscal, and a court bailiff or aguacil mayor*

This audiencia, in the cedula of December 13,

1527, was given jurisdiction over Mew Spain "and its provinces, Cabo de Honduras and Las Ygueras, Guatemala, Yucatan, Cozumal, La Florida, Rio de Las Palmas and all other provinces between the Cape of Honduras and the Cape of F l o r i d a . A t this time the audiencia had jurisdiction over Guadalajara, and in 1590, the Philippines were made dependent upon the viceroy and audiencia of Mexico*

This dependency also restricted the

Philippines from sending goods to any other port of Spanish p America except Mew Spain. At this time there existed in Spain two audiencias, one at Yalladolld and one at Granada, which served as models for

•^Aiton, Antonio de Mendoza,

2

p. 44*

Bernard Moses, The Establishment of Spanish Rule in America, G. P. Putman*s Sons, Mew York, 1907, p. 59.

28 the colonial audiencias.

These courts in the colonies were

eventually segregated into three different types: first and strongest, were those associated with the vieeroyalties; second, those with the captaincies general; and third, those with the 1 presidencies. The audiencias in the viceroyalties such as Lima and Mexico had jurisdiction over the surrounding audiencias in case the offiee of viceroy became vacant. The audiencias covered a wide range of duties and at first had powers in administrative and legislative fields as well as judicial.

These powers were limited as more offices

were added, hut the audiencia can never he considered as solely a judicial body.

2

The audiencia of New Spain was given full

powers of administration over that district until the crown realized it was a failure.

When necessity demanded a reorgani­

zation the viceroyalty was established.

The duties of these

two institutions were never clearly defined so that numerous cases of conflict arose.

Cunningham divides the duties of

the audiencia into the following general divisions: judicial, semi-judicial, the resideneia, the governor and the audiencia, the ad interim rule, and the Church and the audiencia,3

From

^Cunningham, The Audiencia in the Spanish polonies, pp. 17 ff,

2

The actual duties of any of the institutions of Spanish control are difficult to specify as the whole system was worked ' out largely on an experimental basis. No complete reorganiza­ tion was attempted until the latter part of the eighteenth century. 3

The Audiencia in the Spanish Colonies, passim.

89 these general headings it is easy to comprehend the number and variety of duties assigned to the audiencia. In strictly Judicial affairs the audiencia had supreme control ove£ Judicial cases.

Although the viceroy as president

of the audiencia was supposed to sign all decisions he had no veto power if a majority of the oidores approved.

His

only means of protest was to appeal to the Council of the Indies.

The audiencia was likewise given entire Jurisdiction

over residencias, marriage relations and the administration of property of deceased persons. As a Judicial body the audiencia acted as a high court of appeals.

Cases of first instance were usually tried by

inferior Judges such as the alcaldes ordinaries who tried civil and criminal cases within towns and cities.

The alcaldes

mayores and corregidores were in charge of larger districts and likewise had duties in the conduct of civil and criminal cases.

The audiencia heard appeals from them and at first

was forbidden to concern itself with cases of first instance.

2

However in 1577, a separate sala was created in Mexieo for the trial of criminal cases which was called the "casa del crimen".

% h e viceroy had the right to decided the extent of the audiencias Jurisdiction, hov/ever. 2

Cunningham, The Audiencia in the Spanish Colonies, p. 86.

3 Merriman (The rise of the Spanish Empire,III, p. 648) atates that the audiencia always consisted of four oidores while Cunningham considers the Casa del Crimen as a second house to the audiencia, making a membership of eight Judges (The Audiencia, p.86).

The magistrates in charge of this branch were called alcaldes del crimen*

They were given cr iginal jurisdiction in criminal

cases occurring within five leagues of the capital* heard appeals from provincial judges*

They also

After this time the

regular oidores confined themselves to civil suits. In addition to these two courts there were also church and military courts which came under the jurisdiction of the viceroy in his function as captain-general and vice-patron. Trials coming before the audiencia were listed on two slates: the first classifying them according to importance; the second, according to rotation.

Important cases in the

first category might supercede those in the latter.

Oases

relating to the real hacienda1 were considered of most impor­ tance, while cases involving infraction of royal ordinance were secondary in importance. to probate cases.

One day a week was given over

Two days weekly were devoted to suits arising

between Indians or between an Indian and a Spaniard.

Gases

Z involving the poor were to take precedence over other cases. In civil cases the audiencia had both original and appellate jurisdiction although it usually tried appeals from

1The term real hacienda is usually defined as the department of finance although it implies much more than that. An excellent discussion of the real haeienda is found in Priestley, Jose de Galvez.

Z Cunningham, The Audiencia in the Spanish Colonies. pp. 86-88.

31 lower Judges*

By a eedula sent in 1563, eases involving less

than twenty pesos were to be tried by verbal process*

This

excluded these cases from the audiencia as it only accepted written appeals*

In 1634, a law was passed which declared

that a suit carried to the audiencia must involve a sum greater than 133 pesos*

The audiencia itself could not send appeals

to the Council of the Indies unless the suit amounted to more 1 than ten thousand pesos. Becisions could be made when only one oidor was present, and were reached by a simple majority of those present*

When

two oidores were present the decision must be unanimous.

In

case that all were present and a tie resulted, a fiscal could be called in to decide the case*

All decisions and legal papers

had to be signed by each magistrate including those who voted g against the proposal* The Spanish system was always notoriously slow in all its procedures*

The belief that all things must come from

Spain kept the local audiencias from assuming power over a great many situations in which they should have had final jurisdiction*

The practice of sending unimportant matters

to the Council of the Indies slowed up the machinery until some cases would be pending for as long a period as ten years*

%oses, The Establishment of Spanish Rule, p. 64. g Cunningham, The Audiencia in the Spanish Colonies, p. 90.

32 The normal period for settlement was two years*

In Manila

conditions were much worse than they were in Hew Spain.

Appeals

from the Philippines had to he sent through Mexico, and these could he made only in cases of suits involving more than a thousand ducats*

Alcaldes mayores and corregidores who had 1 heen suspended must await the outcome of their residencias which were sent to Mexico*

In the meantime there were no

persons who could legally take their places, and as a consequence their districts reverted to lawlessness.

The governor attempted

to remedy this condition hy appointing temporary officials to take their places*

This procedure raised a storm of protest

from the colonists, and the situation was eventually remedied somewhat hy the creation of an audiencia in Manila.

2

Cunningham gives the. following example of a cases taken from the record in Manila*

A fiscal brought charges against

the governor on May 16, 1796, exposing the sufferings inflicted on the natives by the corregidor of Tondo in connection with 5?oad construction in that district.

The audiencia refused to

consider the case and recommendedcthat the fiscal make the charges before the governor.

The fiscal'then appealed the case

to the Council of the Indies who returned the communication

^The residencia was a trial held at the end of an officials term of office. This is discussed in detail in Chapter OT.

2 Cunningham, 3Ibid.

The Audiencia, pp. 91 ff *

pp. 100-101.

33 on May 13, 1798* decision#

The Council had merely confirmed the audiencia1s

In the meantime the Indians continued to be subjected

to repeated hardships and mistreatment#

With the dispatch from

the Council came a decree which stated that in cases involving corregidores against Indians, the governor, the audiencia, and a fiscal should act together in a joint session called an acuerdo#4* The audiencia served in other capacities besides that of a court.

They heard certain cases of appeal involving the

royal treasury, and each oidor served six months on the board of auctions.

An oidor was designated by the president to make

a yearly inspection of the province.

In this inspection the

oidor was to take a census of towns and look into the prosperity of the inhabitants.

He was to audit the accounts and see if

the governor or magistrate was executing his duties faithfully. He was also to note the treatment of Indians, to inspect the churches and monasteries, and to pay careful attention to the work of corregidores and alcaldes mayores.

These yearly in­

spections frequently caused the residencias to be held for the officials inspected.

2

^This decision is characteristic of the Spanish policy. When a situation arose which showed the need of new legislation, The ease which brought up the controversy was usually decided under the old ruling, and a decree accompanied the decision providing for the needed change. 2

Cunningham, The Audienc ia in the Spanish Colonies, p* 160.

The oldest member of the audiencia was given additional duties to perform*

He was to see that all decrees, fines,

and decisions of the court of the Indies were executed.

Three

percent of all fines collected were retained hy him, hut he must give an account to the audiencia of the amount collected. The viceroy, a fiscal, and the senior oidor concurred in the acuerdo in matters which pertained to the real hacienda.

The

senior oidor was given additional authority in the absence of the viceroy.

In this capacity he assigned cases to magistrates,

designated judges for social duties, and determined matters relating to the interior organization and the government of the audieneia.

Generally, it might be said that the oldest

oidor usually took the place of the viceroy in his absence,^ It was the duty of the audiencia to see to the adminis­ tration of funds and properties of persons who died intestate without heirs in the colonies* to the audiencia as a body.

In 1526, this duty was entrusted

In 1550, the law was changed and

one of the oidores was appointed by the viceroy as juez de difuntos.

His term was first for only one year but it was

changed to two years in 1609.

No extra salary was given in

the early laws and as a consequence the oidores did not clamor for this added responsibility.

This officer assisted in the

disposal of property left by clerics, officials, merchants,

Cunningham, The Audiencia in the Spanish Colonies, pp. 170 ff.

35 encomenderos, and might in some eases be extended to the property of foreigners.

In 1563 Philip IV ruled that all

intestate eases should be administered by a special juez de difuntos irrespective of whether heirs were present in the colony or in Spain,

He farther stated that if the children or

descendants were of unquestioned legitimacy the case should be settled in ordinary courts.

The audiencia often interfered .

in cases that should have been settled by the jueces de difuntos, A cedula of September 28, 1797, decreed that judges should not have jurisdiction over property left by persons without will when heirs were present in the colonies and there was no question as to right of property.

All heirs, or at

least a large proportion of them must be absent before jueces de difuntos could have jurisdiction over the case.

They were

to have no jurisdiction over property of native clerics, which was to be settled by the ordinary courts unless there were heirs in Spain*

Ecclesiatical authorities did not have 2 the right of intervention in these matters. The practice had developed in the jueces de difuntos

of diverting a certain amount of property (usually about onefifth) of those who had died intestate for the repose of the souls of the dead.

This sum naturally found its way to the

Cunningham, The Audiencia, 2 Loo, cit.

pp, 170 ff•

36 pocket of the oidor who had been given this duty* of 1797 this was ordered to cease*

By a decree

The funds whioh. were col­

lected were to be turned oyer to the oficiales reales^* after deducting three percent for services. The jueces de difuntos ran into difficulties continually with other departments of the government.

As with most other

institutions of the colonial system, these officials conflicted in authority with other institutions.

They were opposed by

the captain-general over questions of military and galleon officials.

There were disputes with oficiales reales for

jurisdiction over property of persons indebted to the royal treasury.

This particular feud was finally settled by decree

on April 23, 1770, when a decision from the council gave the royal treasury preference over the jueces de difuntos.

2

Besides these special functions the individual members of the audiencia were given numerous reports and commissions. They were to send special financial reports to the council, and to censor and inspect books which were printed either in the colonies or imported.

They were in charge of the archives of

the government and in this function they were to keep: (1), a registry of the vote of oidores in suits involving 100,000

•^Oficiales reales were treasury officials. 2

Cunningham, The Audiencia in the Spanish Colonies, pp. 177 ff. : i — — —

maravedis or more; (2), separate records of all resolutions of the acuerdo relative to government and finance; (3) , all oehulas and royal provisions; (4), an account of amounts re­ ceived from fines and funds liquidated in the purpose of jus­ tice; (5), the hooks of the residencia; and (6), a record of all persons coming to and leaving the country*1

In addition

to these duties the audiencia had jurisdiction over certain types of commercial cases which are too numerous and unimpor­ tant to mention* The viceroy (or governor depending on the colony) was hy all rights the supreme authority in the province over which he ruled*. His authority included all phases of colonial life* Legislation in the colonies, strictly speaking, did not exist 9 and all laws were issued in the name of the king hy the Council of the Indies*

Decisions of the audiencia were mere court

decisions which held until reversed hy higher ruling*

Although

the viceroy signed these decisions, he could still he super/

ceded hy the audiencia if an objection arose.

Both audiencia

and viceroy communicated directly with the government in Spain; hence neither was under the jurisdiction of the other in this instance.

The viceroy was to use the audiencia as an advisory

council hut he need not abide hy their decisions.

However, he

would he taking upon himself a rather serious resensibility

Cunningham, The Audiencia* pp. 191-3.

38 of lie acted contrary to their wishes*

Most viceroys welcomed

the advice of the audiencia, especially in the early years of their rule, for this body usually understood conditions in the colonies better than the viceroy.

Then too, it would have been *

extremely undiplomatic of a viceroy to incur the ill will of the audiencia as it was almost certain that one of the oidores would have charge of his residencia.1 The viceroy usually made appointments in.all departments unless the official was of royal designation.

The audiencia,

on death or removal from office of the governor or viceroy, had the power of appointment.

During the governor1s rule, names

for appointments must be referred to the acuerdo.

Thus, the

audiencia exercised joint authority with the governor in this regard.

If the two disagreed and the viceroy appointed a

candidate without the approval of the audiencia, this body was requested to send all evidence to the Council of the Indies who would decide on the matter.

In cases of royal designation,

which included corregidores, alcaldes mayores, oficiales reales, oidores, regentes, viceroys, governors and captains-general, the governor should forward a list of candidates to the Council or the king who would make the appointments from the list. Temporary appointments were often made by the governor in acuerdo with the audiencia.

At least two years, and sometimes four,

■^Smith, The Viceroy in Hew Spain, p. 125.

59

i

would transpire before the regularly appointed official would 1 arrive. As the president of the audiencia, the governor desig­ nated oidores to try cases, inspect colonies, take residencias, or attend to semi-judicial functions.

It was his duty to decide

whether a contention was judicial, governmental, military, or ecclesiastical in character,

this made him extreme arbiter

between conflicting authorities in the colonies.

The governor1s

powers in this line were lessened in 1776 when a regente was created who took the governor’s position as head of the audiencia, Thus the governor, though he still signed decisions, became merely the nominal head,

in 1805, the regente was given the

right to sign decisions when the viceroy was absent, and in 1861, the governor was separated entirely from the audiencia, the regente becoming the official head of the audiencia.

This

last cedula was of course to late to affect most of the Spanish colonies for they had already established their independence by this time.

2

In certain matters of lesser import the audiencia had powers as a legislative body.

They could make rulings whieh

alcaldes mayores and corregidores were to follow in regard

^Cunningham, The Audiencia in the Spanish Colonies. p. 199

2 Ibid.

pp. 209 ff.

40 to collection of tributes.

It prescribed relations with parish

priests, and encouraged agriculture, industry, and commerce. It had charge of the maintenance of prisons and expulsion of undesirable aliens.

In matters of the acuerdo the governor

was the dominant figure.

The laws passed by this institution

were mostly of his will, the audiencia acting merely as an advisory council.

The constitution of 1812 deprived the

audiencia of even this power,1 The church was a powerful political institution during the Spanish colonial period and came into New Spain even before the audiencia.

This institution sent missionaries into

all parts of the provinces who carried on their own work and largely governed themselves in the outlying provinces.

As

the Church politically had always been a powerful force, there was much need for some check on this authority in the colonies. The audiencia, therefore, was empowered with the right to settle disputes between the orders and between the government and the church or its representatives,

cases relating to

land titles and those alleging abuses to Indians by friars were settled by the audiencia or at times by the viceroy. Supervision and administration of vacant benefices and ecclesiastical revenue were also given over to the audiencia. It was also to look after the extension of missionary service

^Cunningham, pp. 215 ff.

The Audiencia in the Spanish Polonies,

41 and construction of churches and monasteries.

It was in

charge of reception and installation of prelates, parish priests, and regulars, and their removal for cause.

Many of

these powers were originally conferred on the viceroy as vice­ patron, but they were later assumed by the audiencia because of the almost impossible amount of work expected of the viceroy. The audiencia itself was usually tremendously over­ worked* cases.

The oidores were always behind on their slate of If a group of conscientious workers attempted to

accomplish all that was expected of them they usually came out of office in failing health.

The crown attempted from time

to time to alleviate the situation but was never entirely successful.

Indian affairs were finally given over to a se-

parate casa under the audiencia called theluzgado General.

Z

The audiencia, despite its defects and lack of proper organi­ zation, served Spain quite adequately during most of the colonial period.

Cunningham, The Audiencia in the Spanish Colonies, pp. £66 ff. £ The functions of this courts are discussed in Chapter V.

1

CIVIL AND CRIMINAL JURISDICTION IN THE SPANISH COLONIES - LESSER COURTS AND OFFICIALS Spain Lad a great deal more difficulty in finding a suitable form of government for the provinces than she did for the colony as a whole.

During her colonial period she tried

a number of different officials as governors of these outlying districts.

The most important of these were the adelantados,

corregidores, captain-generals, and alcaldes mayores. In the early years of conquest a conqueror was granted the right to rule over territory conquered by him. adelantado grant was often hereditary.

This

However, the unscru­

pulous actions of Cortez and Guzman in New Spain made it obvious that this form would not work.

The conqueror was much more

interested in his own personal gain than in his loyalty to the crown. As early as 1525 Spain created territorial units on the mainland.

Pdnuco and Vitorio Garayna were granted as a separate

governorship to Nuho de Guzman, Honduras to Diego Lopez de Salcado, and Yucatan and Cozumel to Francesco de Monjejo. 1 1527 Guatemala was granted to Pedro de Alvarado.

In

^Arthur Scott Aiton, Antonio de Mendoza, Duke University Press, Durham, 1927, p. 42.

43 Upon the arrival of the second audiencia in New Spain the eorregimiento was instituted to replace the adelantamiento. i This institution was extremely unpopular. During the rule of Viceroy Martin Enriquez (1568-1580) an attempt was made to replace the eorregidor by alcaldes mayo res and twelve alcaldes were appointed.

However, these appointments did not do away

with corregidores, but added another official with slightly different duties.

o

Thus there remained for a long period

three important types of officials for governing the provinces: namely, adelantados - later superceded by captain-generals* corregidores, and alcaldes mayores. The title adelantado was granted to conquerors by the crown.

It was a special honor conferred only upon those who

were considered worthy.

The first adelantado was Bartholomew

Columbus who received his title in 1497, means granted to all conquerors.

The title was by no

Out of approximately seventy

individuals who made contracts to undertake the extension of the new realm, less than half were granted the title of adelan­ tado,3 The powers granted to the adelantado were more extensive

^Aiton , 0£. cit,

p, 29.

^Priestley, The Mexican Nation, The Macmillan Company, New York, 1930, pp, 86-87. 3Boscoe R, Hill, "Office of the Adelantado", Political Science Quarterly, December, 1913, p. 652.

44 than those granted to most Spanish officials*

He was obliged

to build a number of forts, usually from two to four*

As

commander of each he received an annual salary of from sixty to 150,000 maravedis.

He was given the following duties in i regard to the treatment of Indians: a* Abuses were to be investigated, b* Indians were to be treated as free subjects* e* Two priests were to accompany each expedition. d. These priests were to see that enactments were obeyed. e* Ho landing could be made at any other place than the one specified in the contract* f. Indians were to be notified on landing that the purpose of the expedition was to convert and civilize them* g. forts should be built if necessary. h. No barter should be carried on by force. i. No Indian should be enslaved unless he refused to accept religious instruction or to yield to obedience - and then only on consent of the priests and after fulfillment of due legal form. j. Indians should not be compelled to work but hired. k. Indians should be granted in encomienda to Christian persons when.this should be for their benefit. 1. The expedition should be recruited from Spain. m. The discoverer should receive due reward if the terms of the capitulation were complied with. y

The adelantado was also given the right to grant land and water rights to the settlers he took with him, and should assign Indians in encomienda.

Exemption from taxation was

granted not only to him but to the settlers as well.

He was

freed for life from the payment of the almojarifazgo2 (customs duty), the settlers for from one to six years.

•^Hill, o£. cit*

Z

He was freed

pp. 658-9.

for discussion of this tax see infra, Chapter ¥1.

45 from the alcabala (sales tax) for ten to twenty years, and was usually made high sheriff of aguacil mayor*

He was

governor of the province settled and was given military con1 trol under the title of captain-general. Both eivil and criminal jurisdiction were in the hands of the adelantado, but he heard cases only on appeal from lieutenant governors, alcaldes mayores, corregidores or alcaldes ordinaries.

Appeals from him could be sent directly to the

Council of the Indies in cases involving more than 6,000 pesos, or in criminal cases where penalty of death or mutilation was imposed.

The viceroy and audiencia were forbidden to meddle g in affairs of the adelantamientos. Adelantados were only important during the sixteenth century and the title was granted only in districts outside the jurisdiction of the viceroy or audiencia.

Settlements

within viceregal districts were given to alcaldes mayores or corregidores.

The title of Adelantado was gradually dis­

continued because there was no further use for such an official. After the period of exploration was over, the districts formerly controlled by adelantados were organized and brought under the control of a viceroy or an audiencia.

Such districts which

still remained outside the control of these two institutions were granted to captain generals who were given less extensive

■*11111, 0£. oit.

2

Ibid.

p. 664.

pp. 659-660.

46 control than had heen given to adelantados*

1

The place of the corregidor in the Spanish colonial system is well explained by the following paragraph taken 2 from the Reeopilacion de Leyes: For the better and more satisfactory government of the Western Indies, those possessions and kingdoms have been divided into large and small provinces, the largest of which include many other districts and have been placed under our royal audiencia, while the smaller ones have their own governors. The others where • • . it has not been deemed necessary or con­ venient to establish a seat of government ot to appoint a governor, have been placed under corregidores or alcaldes mayores entrusted with the government of the cities therein and their dependencies. In theory the office of corregidor was primarily judi­ cial although in practice it assumed administrative and legis­ lative powers.

Judicially he was a royal magistrate and had

complete jurisdiction over his district.

He carried the vara

de justicia as an insignia of his high office, and was second only to the king within the district to which he was assigned. His appointment was from one to three years, or at the king’s favor*

He was assigned certain special duties such as the

supervision of buildings and promotion of agriculture, and

^*Hill, 0£. cit.

Z

pp. 666-668.

CastaSeda, "The Corregidor in Spanish Colonial Adminis­ tration", Hispanic American Historical Review, November, 1929, p. 446. Ibid.

p. 450.

47 %

was to act as an agent for the Indians*

1

The following report from the Council of the Indies outlines the duties of the governors of districts* ficials were instructed:

Such of-

Z

• . . to provide all things which are convenient for the administration and execution of justice, . * . t o maintain the government and defense of their districts, exercising very special care for the good treatment, conservation and augmentation of the Indians, and especially the collection, administration, account and care of the royal exchequer* The new corregidor arriving at a district met with the old officer and the corregimiente, or council.

The yet

active corregidor delivered his vara de justicia to his suc­ cessor who then took an oath to uphold the law.

The eldest

member of the corregimiente demanded a bond of the new corre­ gidor for his residencia. this*

He was allowed thirty days to obtain

One of the first duties of the new officer was to appoint

his assisting offioials. an aguaoil.

He usually appointed a teniente and

As royal magistrate he had power to act in all

legal disputes, to punish all infractions of the law, and to put into execution all measures conducive to good government. He superceded all judicial officers in his district.3

*j

^Williams, People and Politics of Latin America, Ginn and Company, Hew York, 1930, p. 156. g Cunningham, The Audiencia in the Spanish Colonies, University of California Press, Berkeley, 1918, p. 197. g

OastaHeda, 0 £. cit. p. 453

48 It was not necessary for the corregidor to have a knowledge of law.

If he did not have he appointed a lieutenant

or teniente who was versed in legal matters. could not he a relative of the corregidor.

This official The corregidor

was warned to take care in selecting him for once he was ap­ pointed he was kept for the entire term of office, unless there was a powerful cause for his removal.

He could only

he removed on charges of hrihery or "serious offenses"•

Even

then the corregidor did not have the right of removal hut must refer any such charges to the council who made the final decision.

The relations between these two officials were not

always friendly.

They often clashed as to jurisdiction, and

at times appealed to the audiencia to settle their disputes.^ An order from the king or his council had precedence over existing laws or common usage. execution without delay.

It was to he put into

If a corregidor failed to observe

a royal order he was subject to the same penalty which he was ordered to impose on any other subject for failure to obey the law.

When the royal order was an open and obvious

violation of human and divine law he could delay execution by remonstrating against it, but if a second order:" was sent 2 he had no alternative but to acknowledge it.

^Castaheda^The Corregidor in the Spanish Colonies", pp. 455-6.

gIMa.

p. 457

49 In judicial matters the corregidor maintained a great deal of control over his district*

He was in some cases free

from the jurisdiction of the audiencia.

Usually, however,

cases of first instance were tried either by the alcaldes or the corregidores.

Appeals from them were heard by the

audiencia.1 The corregidor was given definite instructions as to court procedure.

Ho notary or other person was allowed to

whisper anything to the corregidor while court was in session. He was to order the aguaciles and notaries to be present at court.

If a defendant could not supply his own council the

corregidor sjiould supply him with an attorney.

first consi­

deration was to be given to cases involving orphans, helpless and destitute persons, foreigners, and widows.

Temporary

opinions had to be rendered on all eases six days after all evidence had been presented. 2 within twenty days.

A final decision must be made

The corregidor had certain legislative functions,

for

ordinances affecting local administration two-thirds of the regimiente must be present.

The corregidor could make re­

gulations pertaining to judicial matters without the consent or intervention of the regimiente.

On all other matters the

1 Cunningham, The Audiencia in the Spanish Colonies, p. 86. 2

CastaHeda, oj>. eit.

p. 458.

50 two had to act together.

The vote of the corregidor was equal

to the vote of the entire regimiente.

If they opposed him the

dispute was submitted to the royal council.^ The ayuntamiento from the corregidor.

2

could not convene without an order

He was to he present at all their meet­

ings, and if he could not attend, he was to send a representative which was usually a teniente.

He or his representative could

not absent himself from meeting for fear that in such an absence the regimiente might conspire against the king. The corregidor did not receive a stipulated salary, as the salary varied in different districts.

Some few corregidores

who were sent to large cities received high salaries.

Most of

them, however, never received adequate remuneration from the crown.

It would have been impossible for them to live within

the salary provided by the crown.

As a result the office was

used as a means of obtaining as much financial gain as possible. It is little wonder that these offices became corrupt.

The

following report gives an insight to conditions as they were 4 m the latter part of the colonial period. Reduced to the hard necessity of securing the indispensible means to maintain themselves in office, satisfy

^Castaneda, 0£. cit.

2

p. 259

The local town meeting.

3 CastaHeda, oj>. cit. ^Ibid.

pp. 461-2.

See infra, p. 52.

p. 461

51 their planned desires, and accumulate some wealth before retiring, they generally do not overlook any means, however unjst or extraordinary, that may be conducive to the accomplishment of their end* The Spanish crown eventually realized this weakness and attempted to remedy the situation by increasing salaries of the officials.

By that time, however, the methods of graft

and bribery had become so much a part of the system that the increase in salary servedeonly to add a bit to the self-made incomes of the officials. The type of government allowed to smaller areas was largely dependent upon their size and population* regardless of size had two alcaldes ordinarios.

All cities Metropolitan

cities had twelve regidores while villas and pueblos had only six.

In small lugares and coastal rancherias only one alcalde

and four fegidores were allowed.1 It was in these local forms of government that the only evidence of democratic expression was found.

Even here a close

check was kept and a royal officer was required to attend all meetings.

Nevertheless, it is usually acknowledged that the •

first expression of democratic thought came from the cabildo or ayuntamiento. The terms cabildo and ayumtamiento have cause much dis­ cussion among students of Latin American history.

It is not

*W. W. Pierson, "Some Reflections on the Cabildo as an Institution", Hispanic American Historical Review, November, 1925, p p . 582-3.

52 certain at the present time whether there was originally any distinction between the two institutions or not*

Fernando Ortiz

believes that the word cabildo originally applied to an eccle­ siastical assembly while the term ayuntamiento applied to a municipal assembly.^

However* the two terms have come to be

used interchangeably, both referring to the local town meeting. The term ayuntamiento was used oftener in the earlier colonial period while cabildo was used almost exclusively in the later period* The right of election was granted the cabildo in 1523, and this was preserved for a time.

The crown never wholly

approved of this granting of self-government and placed as 2 many restrictions upon this right as possible. The election was to be free from intervention by viceroy, governor, or audiencia, though the viceroy, captain-general, governor, or president, or his representative, was an ex officio presiding officer over the cabildo. the results.

He counted the votes and proclaimed

High officers might even annul the election.

If

they thought the man who received the most votes incapable, they could declare the other man eleeted,

This rule was probably 3 applied most frequently to elections of alcaldes ordinarios.

^Pierson, op. cit.

p. 578.

^Williams, People and Politics of Latin America, p. 153. 3

Pierson, 0£. cit. pp. 583-4?.

53 Cabildos in the larger cities were quite elaborate and extremely important,

A eabildo in a metropolitan city was to

have a juez or judge with the title of adelantado, alcalde mayor, corregidor, or alcalde ordinario, who should exercise jurisdiction jointly with the regimiente of the town or city. The regimiente was to consist of two or three officers of the hacienda real, twelve regidores, two fieles executores (probate judges) two jurades from each parish, a procurador general, a major domo, one escribano de consejo, two escribanoa publicas, one escribano de mina y registro, one pregonero mayor, one corredor de lonja and two parteros.

Z

Members of the cabildo must be land owners in the town.

If the governor or his lieutenant did not appear at the meeting the alcalde ordinario was to act as chairman. held in the town hall.

The meeting was

Cases involving no more than one hundred

pesos went from the alcalde ordinario to the cabildo on appeal, and this body could exercise jurisdiction on case up to one hundred and fifty pesos.

Appeals from probate judges went

to the cabildo if the fine did not exceed seventy-five pesos, otherwise it went to the audiencia.

2

Jones, "Local Government in the Spanish Colonies as Provided by the Leyes de los Reynos de las Indias", Southwest Historical Quarterly, July, 1915, pp, #7-8.

2Ibia. p. 73.

54 Pierson gives the following list of powers and duties 1 for the cabildo: 1. Control of the police and the field of primary correctional justice* 2. Control of certain public works* 3. inspection of jails, hospitals, drainage ditches, etc. 4. Initiation of certain policies, such as the punish­ ment of witchcraft. 5* Admission and expulsion of persons to and from its citizenship. 6. To act as the organ of communication between the people and its government. 7. The verification of credentials, reading of proclama­ tions of commissions, and announcement of royal decrees. 8. The right of petition and protest to the royal audiencia, Junta Superior, viceroy, eouncil of the Indies, and king. 9. The right of partial control over the local militia, although this was the source of much controversy. 10. To contribute to the protection of the frontier. 11. The appointment of procuradores to protect its interests. Although the alcaldes ordinarios and cabildo had the right to settle certain criminal eases the corregidor seldom allowed them to exercise this right.

The cabildo had the

right to communicate directly with the crown either by writing or by the speoial agent called a procurador.

This right was

frequently exercised as it was one of the few ways by which the cabildo could retain its local rights.

2

The presidency of small subdivisions was given to al­ caldes ©rdinarios or in some cases to alcaldes mayores.

1

These

"Somes Reflections on the Cabildo as an Institution” , pp. 588-9. 2 Williams, op. cit. p. 154.

55 officials were poorly paid and very numerous*

!Their original

duties were wholly Judicial but in practice they assumed administrative duties as well.

1

Alcaldes ordinaries were registered land holders of the district and could be military men*

Preference was given

to first discoverers, conquerors and settlers.

In pueblos

where there was no governor or lieutenant of the governor two alcaldes ordinaries had jurisdiction in all civil and criminal eases of first instance*

Appeal was to the governor,

cabildo or audiencia depending on the character of the case appealed.

2

Gases appealed from alcaldes to the cabildo were

settled by the cabildo and alcaldes acting together as a court. According to the laws of the India Council, alcaldes must be able to read and write although this requirement was not enforced.

An interval of two years must have elapsed before

an alcalde could be reelected.

He was to have no interest in

retail selling establishments since he had control over markets, 4 shops, and inns, and the power to fix prioes. In addition to regidores and alcaldes the crown could

■^Williams, op. cit* 2Jones, op. cit*

pp* 75-6.

3Pierson, op. cit.

4Ibid.

pp. 584-5.

p. 157.

p. 588*

56 appoint men to seats in the town council for meritorious ser­ vice.

These men became regidores perpetuos and had equal vote

with other members.

1

One of the most unusual of Spanish institutions was the residencia.

It was dreaded by nearly every public official

throughout most of the colonial period. was subject to this court.

Nearly every official

It probably originated with the

Homan law which gave the right of accusation to any Roman citizen against an office holder; this same privilege was used by the Catholic Church during the middle ages. system two types of residencia developed.

In the Spanish

The first type was

ohe which occurred at the end of a term of office.

It was a

general survey of an officials work and a judgement of work accomplished during his term of office.

The second type, called

pesquisa, could occur at any time and was a special investi­ gation carried out by a special investigator or pesquisador. This second type usually occurred when a situation arose which demanded immediate reform, or removal of a dishonest or in­ efficient official.

The procedure for the removal of these

officials was as follows:

Z

^Pierson, op. cit. p. 585. In general membership in the cabildo tended. to~T>eeome hereditary; purchase secured offices as well as meritorious service. S

Cunningham, The Audiencia in the Spanish Colonies.

p. IS3.

57 . . . the governor and the audiencia investigated the conduct of the official whenever circumstances demanded it* The latter was either suspended or recommended for removal, such a recommendation being made by the audiencia to the governor or to the Council of the Indies according to the rank of the official, or the tribunal (audiencia) could make the removal itself. If exception to the action of the audiencia were taken, all papers relative to the case were forwarded to the Council of the Indies, and if good reasons were found to exist for the action of the lower court the Council approved its action* Judges of the residencia were often oidores, but this was not always the case*1

Members of the audiencia if not

actually judging the case, helped pick the judges who were in charge of the residencia.

The audiencia tried the cases

in review and supervised the work of investigating judges. Cases were either finished in the audiencia or reviewed there and appealed to the Council of the Indies.

In residencias

of provincial or local officials decisions of the audiencia were final after 1799.2 Oidores, as one of their duties, made regular visitations to the provinces every three years.

On these visits they

heard complaints against corregidores and alcaldes mayores. Besides these regular visits a special investigator could be dispatched at any time*

In case of the trial of an oidor

himself a magistrate of tie audiencia was designated to in­ vestigate the case*

The evidence was then submitted $o the

In the early period officials coming into office had charge of the residencia of their predecessor but this prac­ tice was discontinued because of the delay in arrival of new officials* 2

Cunningham, The Audiencia in the Spanish Colonies, p. 127.

58 Council of the Indies who took final action.

Suspension from

office by the governor was done with the advice and consent of the audiencia.

Church men were about the only officials

not subject to the residencia.

1

In a ceduia in 1591 the residencia was authorized to be taken whenever the best interests of service required it. A second ceduia in that year forbade the sending of a special investigator against a governor unless a person of responsible character presented charges against him, giving bonds to cover the costs of trial.

Oidores were often influenced by the extra

rewards obtained for their services as judges or residencias. They were also frequently prejudiced against officers under investigation, especially if the were viceroys or governors who had opposed them during their rules.

p

At first the residencia was to be taken by the successor, but it took him too long to arrive in the province, so that judges came to be designated by the court.

The period eovered

bytthe residencia was lengthened from four to six months.

The

officer named as judge was called a decano, and after 1776 the investigation was carried on by the regente.

In 1526,

cases could be appealed to the Council of the Indies, but in 1568 appeals were limited to cases involving capital punishment

^Cunningham, The Audiencia 'in the Spanish Colonies» p. 130. 2

Ibid.

p. 131.

59 or deprivation of office*

Viceroys and governors were to

deduce annually from their salaries one-fifth for the carrying on of their residencies. salaries were returned.

If nothing detrimental were found the The last year’s salary of alcaldes

mayores and corregidores was deduced for this purpose.1 Residencies were often carried on out of pure spite, especially in the first centuries of Spanish rule, and many officers underwent harsh and unwarranted treatment at the hands of residencia officials.

Cunningham tells of difficulties

in the Philippines in the following passage:2 During the first two centuries of Spanish rule in the islands the residencia of governors were especially stringent, many of these officials suffering depriva­ tion of office, imprisonment and exile. The families and dependents of some were reduced to the last extremes of poverty, while the victims themselves spent years in some distant province unable to defend themselves from their enemies. Many victims of the residencias were purposely put aside in order that no appeal could be made from them. One would occasionally find relief at last in a tardy pardon or in a modification of sen­ tence, obtained through friends at home, when these could be reached, but more often death would intervene before the exercise of executive clemency or revision of sentence could be obtained. The procedure of the residencia can probably best be explained by presenting the trial of felix Berinquer de Marquina. As governor of the Philippines and superintendent of the treasury he assumed a large amount of power, and was naturally

Cunningham, The Audiencia in the Spanish Colonies. pp# 1 3 3 - 3 2Ibid.

pp. 135-6.

opposed at every turn by the audiencia*

He gained the repu­

tation of having more measures vetoed or opposed by the home government than any other governor*

A fiscal and the oidores

eventually brought charges against him in order to have his residencia taken before the close of his term.

The residencia

which was taken found him guilty of numerous charges, among them being; transgression into the sphere of the viceroy and substitution of his own authority; accusation that he was guilty of immoral relations with certain Spanish women of the colony^; accumulation of a great fortune in trading and diverting of royal revenue to private use.

Amparan who was in charge of

the residencia commanded Marquina toVbe removed to some spot outside Manila until he should be called to testify in his own defense.

After a period of five months in September, 1792,

investigation was inaugurated which was not finished until the following July. Aguilar, the new governor, on his arrival intervened, declaring that Marquina had not testified directly.

The

audiencia sent the papers to /the Council of the Indies, and Aguilar had Marquina*s defense sent separately.

The fiscal

at Spain refused to receive the testimony of Aguilar as it was not incorporated in the official papers.

A further delay of

^An accusation of this sort often carried a great deal of weight, as the crown exercised control over an official*s private life and morals as well as his public life.

61 three years, during which time Marquina remained in the colonies, resulted in a second residencia which was taken under Aguilar* The result of this residencia was much the same as the first. Marquina was fined 40,000 pesos outright with 16,000 additional to he paid to cover illegitimate profits through granting of unlawful concessions.

The sentence was sent to the Council

of the Indies for confirmation where the fine was reduced to 2.000 pesos plus the costs of the trial.^ This example brings out several interesting points re­ garding the residencia.

The governor theoretically was not

responsible to the audiencia for his actions, yet the judges of the audiencia usually had charge of his residencia.

This

made it extremely undiplomatic of Marquina to arouse the op­ position of the audiencia.

Marquina would probably have been

forced to pay the fine imposed on him by his residencia (ie., 40.000 pesos) if it had not been for the action taken by Aguilar who himself ran a grave risk of incurring the wrath of the audiencia.

In Spite of the fact that Marquina was found

guilty in his residencia in 1792, he was promoted to the post 2 of viceroy of New Spain in 1800. Judges of the residencia received and reviewed all charges made against the official being tried, audited the records of

■^Cunningham, The Audiencia, pp. 141-142. 2

Ibid.

Footnote, p. 142.

62 the offiee, examined witnesses for both sides, inquired as to the truth of charges and were ordered to give the official every opportunity to defend himself. given over to the treasury offioials*

They checked accounts After all evidence

was taken and the case tried, the judge was authorized to render sentence.^Appeals to the council were limited by the ceduia of 1568*

In 1799 it was declared that if a case involved less

than two hundred ducats the defendant must pay a deposit. If he was acquitted by the audiencia the deposit and fine werd restored.

If tbs case involved more than two hundred

ducats the official was detained and his property seized pending a new trial in a higher tribunal.

Gases involving

a thousand pesos could be carried to the Council of the Indies# Before an official could be transfered to another post he must show his certificate of clearance from his former post. Audiencias at this time were given final jurisdiction over district officials and no appeals were granted beyond them. This curtailing of appeals to Spain gave local officials much more initiative and power. 2 the residencia.

It also lessened the violence of

Opinion seems to differ as to the value of this trial.

■^Cunningham, The Audiencia in the Spanish Colonies, pp. 149-151. 2Ibid. pp. 151 tt.

65 Certainly in some cases it fostered bribery and political intrigue, yet on the other hand Cunningham states, "It may be said that the fear of the residencia was almost the sole incentive to righteous official conduct or official publie 1 service” * Many of the officials sent by S p a m were not as public spirited as the brown intended them to be*

There were

many officials, then as well as now, who used their offices as a means of accumulating a private fortune. acted as a check on this type of official.

The residencia

The system while

good in theory often worked out to the detriment of good govern­ ment when put in practice.

It could easily be used as a means

of petty persecution of upright offioials.

As the judges of

the residencia were often dishonest too, an officer was usually vindicated unless he had aroused the opposition of the audiencia. In the later colonial periodethe residencia became less violent and Donald £. Smith points out that "Unless the viceroy or corregidor had offended some persons of influence, or anta­ gonized some powerful interests, he was practically sure of 2 a vindication as a result of the once dreaded residencia” . As Spain*s final method of control she reserved the special investigators called the visitador-general, and the pesquisador.

The pesquisador was usually of lesser importance

^The Audiencia in the Spanish Colonies, p. 120.

2The Viceroy in Hew Spain, p. 125.

64 than the vistador-general, and was often sent by the viceroy or audiencia to look into local difficulties.

The visitador-

general, however, was a royal official sent to the colonies when conditions demanded immediate reformation.

He had ab­

solute authority and was not subject to interference by the audiencia which often blocked reforms attempted by energetic and sincere viceroys.

Public opinion did not thwart his con­

trol as his power issued directly from Spain.

His only re­

striction lay in the residencia held at the end of his work and the orders and dispatehes given him by the home office. These were usually sent out by the Council of the Indies or the Minister of the Indies.^

The most famous example of the

visitador-general was Jos£ de G&Lvez, who was sent out to study conditions in Mew Spain from 1765-1771.

This visit

o resulted in numerous reforms. The pesquisador was usually sent\to investigate corregidores and alcaldes mayores.

If such an officer exceeded

the powers granted him by commission the corregidor could have him arrested but it was advisable for him to inform the council immediately of the reasons for his action.

Bo pesquisador

could be appointed corregidor in the district in which he had carried out a special investigation.

If the pesquisador ordered

^Smith, 0£* cit. p. 105. S , , The reforms of Jose de Galvez are studied in Chapter VII. An excellent study of this man is Priestley, Jos£ de Galvez.

65 the arrest of certain individuals the corregidor was duty bound to carry out the orders even though he was convinced 1 of the innocence of such persons. Hone of the institutions and offices studied in this and the previous chapter is strictly judicial in character except the residencia and possibly the casa del crimen under the audiencia*

Most of the officials and courts had numerous

legislative and administrative duties as well as judicial functions*

As a consequence most officials were overworked

and behind schedule in their proceedings*

There was much

confusion as to jurisdiction, and much unnecessary delay because of the crown’s distrust of allowing local officials too much initiative*

nevertheless, these institutions worked

fairly effectively and would have served Spain q.uite adequately had the reforms of Charles III and Jose de Galvez been insti­ tuted at an earlier date*

1

Castaneda, wThe Corregidor in the Spanish Colonial Administration*, p. 258*

CHAPTER ¥ JUDICIAL CONTROL OF THE INDIANS The Spanish government had greater difficulty in govern* ing the Indian population of its conquered territories than in any other phase of colonial administration*

The policy in re­

gard to these subject peoples was slow in developing and was never worked out in practice as it was intended in theory*

The

Spanish crown was primarily interested in increasing the royal revenue, and the wealth of these territories offered an ample w*

opportunity to do this.

Secondly, the Spanish sovereigns were

strongly religious and desired to convert and civilize these people so that they might eventually become civilized enough to be accepted as citizens of Spain.

Thus, there developed

a theory of legal wardship.'1' Under this theory the Indians were to remain under the protection of the Spanish leaders for a limited period of time*

In return for this protection they

were to give their services in labor and tribute.

At the end

of this period they were to assume the privileges and duties of citizenship*

In practice, the Indian never received his

freedom, but remained under the so-called protection of the Spanish overlord.

The Spanish desire was to convert, civilize,

i Herbert Ingram Priestley, The Coming of the White Man, The Macmillan Company, New York, 1929, p. 122.

67 and exploit the Indians.

1

The outcome of this was that the

emphasis was placed on exploitation, and civilization and con­ version were remembered only at the insistence of the missionary priests* In the oldest grants made to the proprietors in Hispaniola the Indians were treated as stock on a farm.

The deed of trans­

fer of property declared the number of Indians which the pro­ prietor was entitled to treat in this way.

The Indians within

a certain districtzwere required to pay a tribute to the pro­ prietor of that district.

This was paid in labor and in re­

turn the lords of the soil were required to give the natives protection*

11It was a revival of the feudal theory in part;

but the relative positions of the contracting parties rendered £ the tribute sure and the protection doubtful.” ■The Indians of the Caribbean were rapidly destroyed by the encomienda system.

Before the continental regions were

entered it was necessary to augment the island population by recruits from slave-catching expeditions*

Charles Y attempted

to institute a system of wage-labor, but the practical minded conquerors saw no reward in this policy so that the encomienda 3 method continued to be used. Under this method the leader

■^Herbert E. Bolton, The Mission as a Frontier Institution in the Spanish American Colonies” , American Historical Review. October, 1917, p; 43. S

Blackmar, Spanish Institutions in the Southwest, Johns Hopkins Press, Baltimore, 1891, p. 115.

^Priestley, The Coming of the White Man, p. 118.

68 pacified an area and obtained the right to govern it.

He then

granted tracts in the King*s name to his followers according to merit and social position,

These should be near Indian

villages whose inhabitants were required to work for their overlords.

He also paid the tithe and tribute keeping most

of the latter for himself.

He was to see that his tributaries

were taught the Christian religion but this was ignored if possible.1 The encomienda system in spite of its many faults worked fairly effectively in many places.

The destruction of the

island population was not necessarily the fault of the system. Simpson declares that the island population perished because of the harsh and wasteful parasite class imposed upon them. The encomienda itself did not kill them, and might have saved them if it had been properly administered as it was to be in better times on the continent.

Z

The system worked out on the

continent was quite effective among the higher Indian civili­ zations which had reached a sedentary existence.

Among the

roving bands north of the Aztec area it was not so successful. In order to study the encomienda system as such it is best to take the region occupied by the great Aztec and Mayan tribes where the encomienda more nearly approaches the theory worked

-^Priestley, The Coming of the White Man. g

p. 118.

Lesley Byrd Simpson, The Encomienda in New Spain. University of California Press, Berkeley, 1929, p. 79,

69 out by the Spanish crown. At the time of conquest America was strictly on a pro­ duction for use basis.

The Indian cultivated his plot of maize,

beans, and squash, paid his tribute to his overlord and priest, and from them received some sort of protection from his enemies, human and divine.

There existed a middle class of merchants

who plied their trade of luxuries between Mexico City, Tula, and Culiacdfo. in the north and the cities of Yucatan and Guatemala.

There was no medium of exchange, however.

Those

who were worthy were rewarded with privilege and prestige.

As

a consequence, the Indians had no conception of production for profit, free wages, employer-employee relationship, commerce in necessities for profit, or the other characteristics of a 1 trading civilization. The early Spaniards complained of the Indians' ignorance and indolence. direction.

They stated that they could do nothing without

They were indeed capable of living as they had been

accustomed but not one would dig gold without being driven to it.

They had no business sense as they would exchange things

of great value for things of no value.

They held money and

property, with the exception of food and drink, as of no value. They would not work for wages and took no interest in commerce. They had no conception of tithes or taxes and had no sense of

^Simpson, Hew Lamps for Old in Latin America.(ITniversity of California Committee on International Relations) Berkeley, 1938, pp. 5-7.

70 1 shame or feeling of guilt.

All this was proof to the Spaniard

of the Indians* ignorance and inferiority.

Such complaints as

the above tended to strengthen the crown’s belief in the en­ comienda system and it was soon accepted as the best method for controllin the native population. The principle features of the encomienda were as fol­ lows : {1), the instruction of the Indians chiefly by laymen in the Christian religion and the European ways of life; (3), the concentration of Indians in settlements near those of the Spaniards; (3), the exploitation of labor of natives in payment forethose privileges; and (4), the protection from abuse by an elaborate but ineffective apparatus of checks and balances# The concentration of Indians in villages took place between 1590 and 1604.

In 1598, the Count of Monterey sent out

approximately one hundred expeditions to survey the territory and make reports on the congregations that it would be ad­ visable to make.

These expeditions were composed of a judge,

a constable, and a notary who were armed with full powers. i

The procedure was to go to the head of each district, procure from the Indian governor a map of the district and a list of tributaries (married men) •

They were to note the nature of

the country, climate, products, observe sites available for

^Simpson, The Encomienda in Eew Spain,

p. 31.

J

71 congregations, hear objections, and seek advice fromythe local clergy.

They were then to make their report to the Sala de

Oongregaciones which functioned as a part of the audiencia. The sala then digested the material and decided where each congregation should be located. There were two groups of judges appointed in reference to the congregations.

The first group surveyed the location

and made recommendations to the Sala de Oongregaciones.. The

2 second group was in charge of the actual undertaking.

Each

of the Indian villages or reductions had one Indian alcaide who must be from the same village.

If the village exceeded

eighty houses it was to have two alcaldes and two regidores who were also Indian.

They were at no time allowed more than

two alcaldes and four regidores. The Indian alcaldes had jurisdiction over the inves­ tigating and arresting of deliq,uents and brought them to the village jail of the district.

They were allowed to punish

with one day’s imprisonment and from six to eight lashes Indians

w

who were absent from mass on feast days or who got drunk or committed some other similar offense.

If drunkenness was

general it was to be punished with greater vigor.

■^Simpson, She Encomienda in New Spain, 2 Ibid. p. 37. 5Ibid.

p. 45.

They could

pp. 32 ff.

72 arrest and detain in jail negroes or mestizos who committed abuses until the corregidor or alcaide mayor returned to do justice Mo Indian was allowed to enter from another reduction on pain of one hundred lashes.

The caciques were to give four

pesos to the church each time they permitted this.

Judges,

governors, and justices were forbidden to give permission for such transfer except in rare cases*

Officials guilty of per­

mitting this were suspended from office for three years and fined five hundred ducats.

Indians were to be returned to their

villages at the expense of the guilty person.2 The judges sent out to control the congregations were a combination of administrator and judge. and saw that they were enforced.

They gave the orders

An interesting example of

this type of judge is Pedro de Cervantes.

In March of 1604,

the viceroy gave him & commission as judge of the congregation of the province of Tlanchinol* 3 follows:

Part of the commission reads as

. . . I (the viceroy) shall be able to provide what­ ever is necessary for said natives so that they shall be able to found and establish their villages and pro­ tect themselves, being provided with the necessities

^Simpson, The Encomienda in Mew Spain, 2Loc. cit.

Ibid.

p. 94.

p. 45.

73 and taught and properly administered to; and thus I shall he able to prevent offenses against our Lord and to persuade them to understand that what is being attempted is their own salvation and spiri­ tual well-being, and other things comforting to their temporal life, which they must accept with brevity; and if they do not do so you will compel them to accept it with such rigor as may be necessary.i Cervantes went to his district armed with a list of instructions which covered his duties down to minute details. Some of these were:1 1. To keep and comply with the form in which the congre­ gations had already been determined. 2. To always communicate with the minister of the doctrine concerning everything that had to do with instructions and the commission. 3. On arrival to convoke the Indians of the head town and subject towns and explain the purpose of the commission. 4. To assign sites to each new inhabitant where he should erect a house. Each village was to be accomodated on one street always with consideration of forming villages after the fashion of the city of Mexico'. 5. If the church was not in the plaza it should be re­ moved there after the houses were built. Sites should be saved for the community house and jail. 6. The best lots and those nearest the church and square were to go to those held among the Indians to be principalss, governors, and administers of justice. 7. To order the removal with heavy penalty of any Spaniard, mestizo, free negro, or mulatto beyond the radius of ten leagues if they in any way impeded the execution of the congregation. If they did not obey they should be arrested and sent to Mexico for trial and punishment. 8 . To find any Indian who was missing and if he was out­ side the judge’s jurisdiction to send for him with a requisition to any justice. All justices were ordered to obey such a re­ quest and Cervantes was to comply to similar requests from other judges.

^ h i s quotation reflects the attitude of the Spaniard who magnanimously offered the Indians Christianity and the European way of life. If the Indians did not respond to the benefits of this higher civilization it was because they were weak and ignorant. If they would not be sabed voluntarily they would be saved by force. 2

Simpson, The Incomienda in Mew Spain, pp. 96-7.

74 In taking up bis work Cervantes kept a log of each day’s work.

His duties seemed to he mainly as follows: supervision

of the building of houses and cultivation of crops; investi­ gation of innumerable cases of Indians who failed to arrive for work; punishment of the above mentioned Indians; and the settlement of unusual incidents which comprised a large portion of his duties.

His work was frequently interrupted because 1 of holidays on feast days when the Indians did no work. Although Cervantes was one of the better judges, he was not entirely successful in carrying out the duties assigned to him.

Judges of a less scrupulous nature were, even less

successful.

The alcalde mayor often worked with the corregidor

or encomendero in the exploitation of the natives.

Congregations

were often not founded in places most conducive to production. Usually the judges in charge were persuaded by an adequate monetary inducement to recommend the placement at the most convenient place for the encomendero or corregidor.

The Indians

were in a virtual state of slavery and were seldom paid for

■Z

the work they did.

These abuses aroused the protests from

numerous reformers who were mostly church men.

Among them

was Las Casas who protested to the crown and Council.

This

resulted in the framing of the Hew Laws which were passed in 1543.

1

Simpson, The Encomienda fit Hew Spain, pp. 116 ff.

;^Ibid.-

,t?«

115.

75 The New Laws provided that enslaved Indians should be set free unless the owners could establish legal title of , possession; in some such cases they might retain them* Gn the death of the present encomendero Indians were to revert to the crown*

Officers of the crown must renounce their repar-

timientos at once and Indians must be paid a moderate sum for their services*

Bon Tello de Sandoval was appointed as visitor 1 to New Spain to carry out the New Laws* In New Spain the New Laws brought a storm of protest

from encomenderos and church men alike.

Mendoza decided to be

lenient and sent a representative to the king who revoked the 2 more objectionable clauses in 1545. The New Laws were never enforced in the colonies, but a system was evolved to take the 5 place of the early vassal system* The wealth of the Spanish colonies depended largely on mining and agriculture both of which demanded a supply of cheap labor.

Negro slavery was expensive and therefore not so prac­

tical as the Indian labor already at hand*

The crown desired

to formulate some system of control over the Indian population 1 Moses, The Establishment of Spanish Rule in Americat pp. 92 ff. 2 Bancroft, Mexico, III, pp. 522 ff. The works of Las Casas formed the background of the European attitude towards the Spanish Indian policy. This work was the exaggerated wiritings of a reformer and does not reflect the true policy of Spain. There were 3 Italian, 3 Latin, 4 English 6 French, 8 German, and 18 Dutch editions of his work printed. (Simpson, The Encomienda in New Spain, p. 2.)

76 whieh would still maintain a supply of labor and yet give the Indians more protection against abuses than they had had under the encomienda.

The system eventually evolved was called the

re part imiento • A repartimiento was the allottment of Indians required to perform the labor for some specific task. under the Ordinance of 1609.

It was organized

The principles of the repartimiento

were briefly: (1), that all citizens had the obligation of supporting the commonwealth; (2) that if they were unwilling to do so voluntarily they could be coerced; (3), that all work so performed must becpaid for in cash; and (4), that no one could be forced to give more than one-fourth of his time to 1 such work. The Recopilacldn de las Leyes de los Reynos de las Indlas gives the following instructions for the organization of re­ part imientos .2 1. The Indians shall come or be brought out to the market palce, or customary public place. . • , without other vexation or discomfort than that necessary to oblige them to go to work, so that the Spaniards, or our officials, prelates, religious orders, priests, teachers of the doctrines, or any other organi­ zation whatsoever and persons of all ranks and quarters, may there contact with them and hire them by the day or week. 2. The Indians shall be allowed to go with whomever they please for the length of time they please and no one shall take them or detain them against their will.

^Simpson, Hew Lamps for Old in Latin America,

p. 10.

2 Simpson, The Repartimiento System of Native Labor in Hew Spain and Guatemala, University of California Press, Berkeley, 1958, pp. 8-9.

77 3. In the same manner vagabonds and idle Spaniards, mestizos, negroes, mulattoes . . , , who have no other occu­ pation shall be compelled to present themselves so that all may work for the service of the Republic for just and reason­ able wages. 4. The viceroy and governor in their districts shall pre­ scribe the wages and findings with the fitting moderation and equity, according to the work, trade, dearth or wealth of land, provided that the labor of the Indians be not excessive or beyond their strength, and provided that they be paid in their own hand, as they may choose, or as is best for them. Unmarried men were exempt from personal service by an early d^dula.

Many marriages were officially deferred indefi­

nitely because of this.

In 1578, these men were ordered to be

given a heavier type of service."1' The Ordinance of 1609 consisted of about twenty-seven regulations for the organization of the repartimiento system. The ordinance provided for details and extent of the reparti­ miento but neglected to provide for an adequate legal frame­ work.

Some of the more important provisions were the fol­

lowing :2 1. There shall be repartimientos for cultivation of fields, tending of cattle, work in gold and silver mines. Compulsion cannot be avoided because of the repugnance the Indians show for work. 5. Owners of mines, cattle ranches and farms were urged to buy negro slaves. All persons of a servile or vagabond charac­ ter should be reduced to working in the mines. 3. The viceroy was to establish Indian settlements in the vicinity of the mines. Settlers were excused from all reparti­ mientos except those for the mines and for that for a period of six years.

1

Simpson, The Repartimiento System, p. 9.

2Ibid.

pp. IS ff.

78 4. In ordinary repartimientos only one-seventh of a given pueblo may be taken at one time* A greater number may be used by order of the viceroy* (The number varied from four percent in mining to twenty-five percent in agriculture)* 5* Repartimientos were in the charge of ordinary justicias (magistrates) instead of the juez repartidor. Men to escort the Indians were to be men of gentleness and piety* The journey was to be arranged so that the Indians would not be absent from mass on Sunday* 6* Indians could not be brought from distant provinces or very different climates. 7. Repartimientos must be so arranged so that Indians working on one will not serve again until the complete round (tandal of the pueblo has been made* 8. Indians were to be allowed to go home at night wherever possible. If not they were to be provided with shelter, R q Spaniard could lend an Indian assigned to him to another. They could not be detained longer than the period of the repartimiento* 9. Gorregidores, royal officials and all others prohibited from trade were forbidden to use Indians in the repartimiento* 10. Indians could not be used in sugar mills or pearl fishing. Mines could not be drained with Indian labor. 11. Cloth mills (obrajes) could not be operated with Indians. If this, however, curtailed the production of needed cloth the vieeroy could limit the repartimiento to the vicinity of Mexico* and then only in case it was necessary to the good of the state. The viceroy should induce the operators to buy negro slaves. IE. Oidores (judges of the audiencia) were to visit eneomiendas, mines, haciendas and investigate the treatment of the Indians. 13. Punishment of offenders should be strict. A number of these regulations were undoubtedly passed to pacify the priests.

Others were passed with real concern

and it is evident that the crown meant this to be a real reform. The audiencia, however, on receipt of this ordinance pigeon­ holed it.

It was not to the benefit of the Spanish land holders

or mine owners who probably paid well for their legal protec­ tion.

In 1624 a sharp reminder was sent from the Council of

the Indies whieh forced the audiencia to pass an enabling act. Reports of non-enforcement continued to eosie back to Spain.

A,

79 large portion of the ordinance was probably never enforced or even put into effect.

Nevertheless, the larger items were

put into effect and the treatment of the Indians improved considerably under the repartimiento system.1 The audiencia during this period was having difficulty in keeping up with all tis duties.

It was charged with com­

plete judicial control besides certain administrative and legislative functions which have been discussed earlier.

The

Council of the Indies was final arbiter in affairs concerning encomiendas.

The audiencia, however, collected all the evi­

dence in these cases, took testimonies of witnesses on both sides, and sent all papers, sealed, to the Council. be concluded in three months.

This must

It was charged with the protec­

tion of holders of encomiendas and could restore conditions to their former state.

In 1609 it was given final jurisdiction

over all cases of encomiendas which involved up to a thousand ducats.

2

In addition it was to put aside two days a week for

the hearing of Indians* complaints.

The judges of the audiencia ■

■■

were constantly behind invtheir duties.

r

In order to alleviate

this situation the luzgado General de Indios was created as a separate sala under the audiencia.

1

This body concerned itself

Simpson, The Repartimiento System,

2

p. 17.

Cunningham, The Audiencia in the Spanish Colonies, pp. 9S-3.

80 with conflicts between Indians and Spaniards and also acted as a court of appeals from the decisions of corregidores and alcaldes mayores.

It was in operation as early as 1574, and

was probably established in 1573 by Don Martin Snriquez.

Al­

though it was established before the organization of the re­ partimiento system it remained to act as a powerful check on the abuses of that system.

The records are preserved in a

large part and the Juzgado acted also as a policy forming body in the administration of the Indians.

Its moderating

influence must have been considerable judging from the violence of attacks made upon it by officials who complained that the court undermined their authority and brought them into contempt among the Indians.

1

In the field of public works repartimientos were used in the building of towns, Indian reductions (congregations), drinking fountains and bridges, building and maintenance of roads, opening and maintaining of channels and ditches, and the erection of churches and monasteries and their maintenance. The records in regard to public works are insignificant in the Juzgado because at the time of its organization the use of Indians in these fields was already well established. sequently few disagreements arose.

Con­

An interesting case in

1 Simpson, The Repartimiento System,

pp. EE-23.

this field eame from Havidad on June 22, 1563,

The Indians

of the pueblo of Xupiltitlan complained that they had to work at the port of Navidad, twelve leagues distance and that they were not paid in money hut in cacao beans and small ones at that.

Under the pretext of the benefit of the community /

they were forced to work on the cattle ranch of one Juan de Almato who treated them like dogs.

They begged an injunction

against these abuses before they were destroyed and their villages abandoned.

The viceroy granted their petition.

How­

ever, three days later the following order was sent to Havidad, "The viceroy orders Indians of Navidad and surrounding ter­ ritory to supply 150 men a week for the reconstruction of the buildings of the royal armada which were destroyed by earth­ quake.

They are to receive a just wage."1 The Juzgado also took care of disputes between Indian

villages or fractions of villages.

These usually concerned

election squabbles and hinted at the development of local caeiquismo.

B

The Juzgado was to control the situation and

give both parties a hearing.

This court gave the Indians some

1 ■^Simpson, The Repartimiento System, p. 29. In many cases concerning Indians the term "just wage" is used, but at no time is it defined. This was evidentally left to the discretion of the individual who hired them. The Spaniard usually considered a wage of about one real (five cents) a day to be "just".

2

Oaciquismo translates approximately as chief-rule. The caciques were Indian chiefs and were a hold over from the tribal organization of the pre-conquest period.

8£ recourse against eorregidores and alcaldes mayores, and such cases were decided without exception in favor of the Indians* This undoubtedly accounts for the opposition to the Juzgado*^ The most general complaints were that the magistrate abused his authority and forced Indians to serve him person­ ally in violation of the law, paying less than a wage or nothing at all*

Flogging, jail sentences and exposure in the stocks

were punishments for refusing to serve or complaining.

He

also interfered with Indian elections, forced Indians to sell food-stuffs and other goods at a low figure and then resold them in cities at his own profit.

He kept herds of cattle

and horses which pastured in the Indian grain fields and as­ sessed Indians for irregular services such as fishing, use of their tax animals and use of women as tortilla makers.

He

would assess fines on any pretext and force Indians to supply pack animals and carriers to convey goods to the capital. would even tax Indians fa* the expense of visitas*

Z

He

These

complaints were undoubtedly justified as the local officials were usually underpaid and used every method at hand to increase their revenue.

-^Simpson, The Repartimiento System, 2Ibid.

p. 43. I

p*

The early mines were placers in which gangs of unskilled workers could he used.

In this early stage the repartimiento.

v/as used and was the source of most of the complaints from priests and reformers.

It was also the source of the usual

picture gained of the Spanish treatment of the Indians.

Con­

ditions here were had and the following is the example of a dispute arising in a mining district.

In 1633 the Indians

sent a repartimiento to the mines of Zacualpan where the Spanish aguacil forced them to pay two pesos for every Indian unahle to serve.

He detained them in the mines for two weeks

and paid them only one real a day. fee forereplacing disabled men.

He then charged them a

The case was investigated and

it was found that the aguacil, a mulatto named Antonio de Santaren, was guilty of the ahove charges.

He also sold Indians

to a hacienda on the way to the mines, and at one time seized a string of mules and forced the Indian governor to pay two hundred pesos to recover them.

The procurador de Indios stated

that when the Indians reached the mines the operators stripped them, tied, them together hy the neck and locked them in a building where they slept together.1 In the trial it was brought out that they were forced to work naked in water, and the juez de repartidor had been guilty of selling them for two and one-half pesos to the Jesuits

^Simpson, The Repartimiento System, p. 56.

84 for work in the sugar mills. a total of nine hundred pesos.

The Jesuits had paid the aguacil The fiscal demanded the sus­

pension of the repartimiento, the punishment of the aguacil with two hundred lashes, and the resitution of the money ex­ torted from the Indians.

The Juzgado ordered the alcalde

mayor of Malinalco to proceed against the operators.

The

mulatto was sentenced to pay a fine of two hundred pesos and was exiled from the province.

Two years later the reparti­

miento was still withheld and a petition was sent. years elapsed and in 1638 another petition was sent.

Two more It was

discovered that the penalty against the operators had never been executed.

Finally, in 1640, the repartimiento was re­

stored on the condition that the men were paid in silver and changed every fortnight.

The repartimiento was to be escorted

by an Indian alcalde.1 During the later period forced labor in the mines was reduced, not for humanitarian reasons, but because it was no longer needed.

The repartimiento was discontinued in

mining because specialized labor was needed.

Mines were often

in arid, unproductive land and laborers had to be brought great distances.

The mines were productive and paid higher

wages in later days so that enough help volunteered and the repartimiento system was not needed.;

1

Simpson, The Rgpartimiento System, p. 57.

There were definite restrictions placed upon the use of Indians as carriers*

This was only allowed where there

were no animals, and then the length of time per day was re­ stricted*

Repartimientos for sugar mills were prohibited.

After the destruction of the Indian population in the Caribbean this regulation was strictly enforced, and negroes were pre­ dominantly used in this industry.

Repartimientos were re­

stricted in the cloth mills or obrajes.

These restrictions

were more liberally interpreted by the mill owners than the Council of the Indies meant them to be.

In April, 1583, a

case came before the Juzgado which illustrates this point.

The

Indians complained that they were arrested on trivial charges and sentenced to pay costs, which they must then work out in the obrajes.

There they ivere kept prisoner for the duration

of the sentence or longer.

The justicia refused to receive

money but forced them to work out their fines.

The Juzgado

ordered the alcalde mayor to suppress such practice.

The Indians

who paid their fines could not be detained in any manner what­ ever, but should be allowed to go ”as soon as they pay what they owe,f

It is extremely doubtful that this decision in any way

aided the Indians as the alcalde undoubtedly worked with the mill owners in the exploitation of the Indians.

The decision, further­

more, did not materially correct the practice of false arrests.

Simpson, The Repartimiento System, p. 67.

86 The encomienda and repartimiento systems were used in connection with areas brought under civil control.

For the

outlying frontier districts Spain reserved as her final method of Indian control the mission system.

There was a constant

feud between the lay Spaniard and the missionary over the control of the Indians.

The -^Spaniards wanted the Indians to

work on their estates; the missionaries wanted them attached to the missions.

If the colonists were allowed to use native

labor the missionaries objected.

If the missionaries were

given their way the civilians faced bankruptcy and the crown would have lost revenue. its own interests.

Naturally the crown did not sacrifice

Nevertheless, there were efforts to ame­

liorate the lot of the subject races, but much of the Utopian legislation was passed to appease the reformers.

Everyone

from the crown on down ”ignored with impunity every measure that conflicted with the common interest of crown and colonist” .1 The treatment meted out to the Indians in the missions was more humane than on the hacienda, but as Priestley points out, even here ”coporal punishment and restraint were part of the 2 amenities of civilization” . Bolton states that the essence of the mission was discipline, religious, moral, social and 3 industrial. Indeed the Indian was faced with an unending

1S imp son, The Encomienda in New Spain, 2The Coming of the White Man,

pp. 19-20.

p. 40.

3”The Mission as a Frontier Institution” , p. 53.

87 round of duties either in the mission or encomienda,

Churches,

monasteries, convents, hospitals, schools, as well as govern­ ment palaces and other public works, were built by taxation of Indians and their unrec cmpensed labor,

A regulation was

put into effect under Velasco, the second viceroy, which stated that churches should be paid for, one-third by the king, onethird by the Spaniards, and one-third by the Indians,

"It

would have made no material difference if the king had paid the whole cost for in any case it all fell ultimately upon the Indians, who paid with continual labor for the perpetual sal1 vation of their souls". The mission system despite certain weaknesses and false concepts was the institution which came the nearest to carry­ ing out the Spanish ideal.

It might be said that it came as

near as any institution evolved by any country to accomplishing the civilization and education of a dependent people.

If the

missions had been givenna longer period of control they might have accomplished their task,

Priestley expresses this in

the following passage: Yet the faith of the Spaniard was the best thing he brought with him; and in his own way, according to his own psychology, he bestowed it upon his new and unex­ pected charges. It was his most unselfish gift, the most beneficient agency at his command, for affecting the elevation of a dependent people to the standards of European culture.

^-Priestley, The Coming of the White M a n , 2Xbid.

p. 108.

p. 113,

The church was divided into secular and regular orders* The secular church functioned in those districts already brought under civil jurisdiction.

The districts were divided into

parishes which were controlled by the parish priests*

The

regular orders such as the Franciscans, Dominicans, and Jesuits carried on the missionary work on the frontier.

The lower

clergy were divided into three groups: (1), the rectores or parish priests; (2), the doctrineros, or catechists who labored in villages of more or less converted Indians; and (3), the misioneros who were sent to remote parts to tame and evangelize the aborigines not before brought under the influence of the church.

The first groupc; were only members of the secular

clergy; the other two were commonly members of religious orders.^ This last group of missionary priests were the ones which carried out the mission control of the frontier. In forming a mission a padre was sent out first to in­ struct the new tribe, to prepare the natives for the reception

of the Gospel, and to secure their consent to erect a mission in their midst.

After the construction of a few rude huts

the missionaries attracted the attention of the natives by a display of banners and pictures and further gained confi­ dence by gifts of food and bits of cloth.

Little by little

the friars induced confidence in the natives and led them to

n Williams, People and Politics of Latin America, p. 182.

89 listen to the teaching of the gospel and consent to work around the mission.

By persuasive methods if possible the

Indians were brought into the mission and induced to live in huts in or around the mission.1

If persuasive methods were not

effective force would then be used.

r fhis was provided by the

soldiers of the presidio which was always established near the mission to insure the obedience of the Indians.

Two soldiers

provided from the presidio were stationed at the mission.

A

special detachment was sent out from the presidio to help re­ cover runaways if they would not return of their own accord. Priestley pointed out that the lower class of frontiersmen and presidial officers had such a bad influence on the natives that the missionaries preferred to have them at a safe distance or o entirely absent. However, Cartagena reported in 177E, "It is seen every day that in missions where there are no soldiers there is no success, for Indians, being children of fear, are more strongly appealed to by the glistening sword than by the voice of five missionaries."3

It is undoubtedly true that much

of the missionaries’ early success was aided by the presence of the nearby presidio.

^lackmar, Spanish Institutions of the Southwest, pp. 119-El. ^The Coming of the White M a n . pp. 40-41. 3

Bolton,

"The Mission as a Frontier institution," p. 55.

The, Indians attached to the mission went through the same procedure every day except Sundays and feast days.

They

arose early and attended Mass after which they were given pozolli (corn mush). to work ” . . .

On work days they then went to the fields

because, being supported by the Mission and re­

ceiving the produce of. their labor it was just that they should be engaged in it; and to be diverted from idleness and accus­ tomed to a busy life was useful also to their spiritual and physical health" •*** At noon they returned to eat more pozolli, and in some of the richer missions a meat dish and a vegetable dish were added.

After a long rest they returned to the fields

to work until sunset.

They returned to the church and then

retired to their houses. The mission system was most successful among the Jesuits in Paraguay and the Franciscans in Alta California*

The Jesuits

were a more militant order and probably exercised a stricter control than did the Franciscans.

In general the organization

of the mission was similar, however*

In Paraguay the Indians

in each village, reduction or pueblo were subject to the author­ ity of two resident Jesuits.

One called the cura had adminis­

trative functions and managed the property belonging to the reduction. affairs.

The vicerio or vice-cura had charge of spiritual These two priests were subject to the supervision of

■**Don Francisco Javier Olavigero, The History of (Lower) California, (Sara 1. Lake and A. A. Gray, trTf Sanford University Press, Palo Alto, 1937, pp. 369-370.

91 their superiors.

Their authority over the loeal government

of the Indians was practically absolute*

loeal officials

such as alcaldes and regidores were eleeted in the presence of the cura and subject to him in both temporal and spiritual matters.

These elections were held annually and persons elee­

ted were confirmed by the governor of the province*^ In practical affairs of the reduction there was no appeal from the decisions of the Jesuits to any other Spanish authority.

For violation of precepts or regulations estab­

lished by the curas, punishments were imposed on offenders. They were to wear the garb of a penitent in a public place, or were flogged in the plaza for crimes of a more serious nature.

In case it became necessary to impose capital punish­

ment the affair was carried to the governor of the province 2 who alone had the authority to condemn an Indian to death. One guilty of a fault that might produce a scandal was brought in a penitential habit to the ohurch to beg the pardon of God in a penitential manner.

He was then brought *

out to the square where he suffered in public a punishment 3 suited to the nature of the offense. Moses points out that most of the information concerning

"hioses, Spanish Dependencies in the New World, p. 144. 2 Ibid, p. 146.

3 Loc. cit.

92 the Jesuit missions is derived from the Jesuits themselves, and allowance must he made for the 11roseate atmosphere” through which their affairs are seen.*** We are told that after the punishment had been inflicted, the criminal Kissed the hand that had punished him, "and thanked God that by this slight correction he had helped to avoid eternal punishment"; and that "men and even women who had secretly committed the fault that they saw punished in another, ran of their own accord to the regidor and accused themselves, withal earnestly begging to suffer the same penance* It was the object bf the priest in cases where punish­ ment was necessary to make the offender see that his act was criminal*

In this manner he aimed at preventing the rise of 2 the spirit of resentment and rebellion. Many Indians attempted

to escape from the missions and others accepted their lot with a sort of resignation.

Thus the priests were not always

successful in their treatment of the Indians.

The Indians,

however, were used to subjection for they had been subjected to a similar type of existence under the old Inea and Aztec priesthood.

The Indians undoubtedly transfered their services

to the Catholic Church and accepted their religion as a sub­ stitute for their pagan beliefs. The Jesuits in Paraguay exercised a stricter type of control than did the Franciscans in Alta California, but their

^Moses, Spanish Dependencies in the New World, p. 146. ^Ulloa, Antonio, A voyage to South America, Lockyer Davis, London, 1772, II, p. 174,

organization and eontrol were practically the same*

In California

a new convert was baptized and made to feel he had taken personal vows of service to God whom the priest represented, and to think of the priest as having immediate connection with God* From this time on the Indian was a neophyte and belonged to the mission as a part of its property*

As the padre in charge

had complete control the relation of missionary to the neophyte was in loco parentis*! ment was established*

A complete form of patriarchal govern­ If a neophyte escaped from the mission

he was persuaded to come back by gentle means if possible.

In

many instances his return required the use of a small escort guard of soldiers from the nearby presidio.

Punishment of

offenders fell to the ecclesiastics, but was neither frequent nor violent.

Indians who transgressed were whipped for offenses

ranging from absence from mass to adultery.

According to

Priestley, there is no case on record of mission Indians being condemned to death, though when rebellious they often met death 2 at the hands of military expeditions sent out to subdue them. Blackmar states that for small offenses the heophyte was usually whipped, put into prison or stocks, or else loaded with chains; for capital crimes they were turned over to the soldiery, acting under the command of the governor, to undergo more severe

^Blackmar, ©£. cit. 2

p. 121.

The Coming of the White Man, p. 125.

punishment.1 The general government of the missions was under the viceroy, who, as vice-patron, was final arbiter of all disputed points.

Immediate authority and supervision was given to a

padre president who had an advisory control of all missions. The military governor in the district disputed frequently with the ecclesiastics over Indian control.

In each mission there

were two ecclesiastics; the senior having control of internal affairs of the; mission, and his subordinate superintending the construction of buildings, sowing and harvesting of grain, 2 and managing of flocks and herds. The neophytes were politically and economically slaves. The missionaries had control of their labor power and a legal right to the products of their toil.

The laws called for Indian

magistrates but the part played by these neophytes was exceed­ ingly small.

The Indian towns held annual elections of officers,

but these were under the observance of the priest.

The head man

of the town was the native cacique who was allowed to try minor cases, but could not inflict the death penalty.

The padres

often utilized these natives in the control of the Indians and went through the formalities of electing those friendly to them

^Blackmar, pp. pit. 2Ibid. 3

p. 121.

p. 122.

Priestley, The Coming of the White Man, p. 127.

95 to positions such as overseers, alcaldes or couneilmen.

It

was usually a mere matter of form as all the power lay with the priests.1 According to the laws of Spain the missionary orders were to be replaced as soon as possible by the regular orders. The patriarchal community was to be changed into a civil com­ munity, the missionary field was to become a diocese, and the president of the missions was to be replaced by a bishop.

The

monks in charge of the mission had taken vows of poverty and obedienee, and were civilly dead.

They had no right to pro­

perty and were to move on to new frontiers to start their work of conversion in a new field.

The Indians under the mission

were to have been educated in various industries and prepared for an independent life.

The priests had been zealous in the

teaching of industries and had given the leaders among the Indians a certain amount of independence •

The great mass of

natives, however, had grown away from indepndence and selfgovernment.

They went through the daily round of duties under

fear of punishment, and allowed the missionary to think and act for them.

Z

The regular orders objected to giving up this well established, self-sufficient community.

When secularization

was attempted in a district, the Indians often ignored the or—

^Blaekmar, 0£. cit.

2Ibid.

p. 131.

p. 128.

orders of civil administrators, obeying the orders of the missionary priests.

Indians were punished by the priests for

obeying the civil authorities, or by the civil authorities for obeying the priests.

The whole program of secularization

worked out to the detriment of the Indians who often lost all they had gained in the mission through the mismanagement of the secularization process.

Dwinelle, in his Colonial

History of San Francisco, gave the follwing criticism of the la?/s of secularization:*** These laws, whose ostensible purpose was to convert the missionary establishments into Indian pueblos, their churches into parish churches, and elevate the Christianized Indians to the rank of citizens, were after all executed in such a manner that the so-called secularization of the mission resulted in their plunder and complete ruin, and in the demoralization and dis­ persion of the Christianized Indians. He believed that there was a complete understanding between the government of Mexico and the leading men of California.

The Mexican government was to absorb the Pious

Fund, while California would appropriate the local wealth of the mission.

Whether this is true or not, the ruin of their

missions and their civilization built up through a period of more than sixty years was wrought in an incredibly short time. It is unfortunate that the secularization of the missions was brought about so soon and handled so badly.

1 Quoted in Blackmar, 0£. cit.

^Blackmar,

ojd .

cit. p. 144.

p. 143.

No other system

2

97 came so near accomplishing the reduction of the barbarous races

1

to a state of civilization

as that of the padres of California*

The Spanish control

of the Indians hadcertain weaknesses

and because of these there grew up a system of abuses whieh were never intended or approved by the Spanish crown*

While

the Indians were given legal protectidh under the encomienda and repartimiento systems, it isfairly certain that most of the abuses never reached the courts.

The Spaniards cooperated

in the subjection of the Indians if in nothing else.

It was

to the advantage of all Spaniards in the colonies to keep this supply of cheap labor, and to keep it in a state of subjection. Thus the emphasis was always on subjection rather than educa­ tion towards independence.

The fact that the Indians survived

and were not exterminated as they were in

the English colonies

in North America, does not excuse the Spanish treatment.

Had

the Spanish economic policy been a wiser one, they would probably have had a great deal more success in the colonies. The continued policy of subjection led to growing resentment which grew into one of the causes for the independence move­ ment that lost Spain her colonies.

•^Blackmar, 0 £. cit. p. 151*

CHAPTER VI EXTRAORDINARY COURTS The monopolistic policy of the Spanish crown originated with the idea of keeping the wealth of the colonies in the hands of the crown.

It resulted, however, in the diversion

of this wealth into the hands of a few powerful individuals who grew tremendously powerful.

These individuals organized

themselves into corporations which covered their specific fields of interest and; activity.

They made regulations and

tried cases arising from controversies within the group.

The

most important of these institutions were: the consulado, a body of merchants regulating commerce; the cuerpo de minerla, a mining corporation fashioned after the consulado; and the mesta, a group of wealthy-ranchers organized in a similar manner.

These groupd began as extra-legal bodies designed

to regulate for a local group affairs which were not adequately covered by royal laws or officials.

They soon grew to be an

important part of the colonial machinery and received official recognition.

Laws were passed defining their duties and the

extent of their control.1 The most important of these organizations was the consulado.

Corporations of this type were organized in

•4?his type of control had been common in medieval Europe •

99 Vera Cruz, the city of Mexico, Lima, and later Manila.

They

were an outgrowth of the Spanish commercial policy and were fashioned after the consulado of Seville. In the earlier days of Spanish conquest, before gold and silver from Mexico and Peru formed so large a part of the cargo, commerce was carried on in independent vessels.

The

development of piracy gradually compelled Spain to provide some protection.

The fleet system was eventually evolved and

was organized into the form it was to retain between 1564 and 1566.1 It was to retain this form during the Hapsburg reign. A separate fleet was to sail to Mexico and Panama each year. The one to Mexico, the ^flota", was to sail in April (later advanced to May), taking with it ships to Honduras and the greater Antilles.

The one to Puerto Bello, the *galeonesw ,

was to sail in August and was to be made up of vessels for ports along the coast of South America.

Both were to winter

in the Indies and then meet in Havana in March for the home­ ward journey.

During the sixteenth century the detachment,

to Central America was larger than that to Mexico, while in the seventeenth century, it was the opposite due to the growth 2 of population in the north.

1Edward Gaylord, Bourne, Spain in America. Harper and Brothers, New York, 1904, p. 284.

2

Clarence Henry Haring, Trade and Navigation between Spain and the Indies, Harvard University Press, Cambridge, 1918, pp. 207 ff.

100 A captain and a rear admiral or almirante were in charge of the fleet.

Each ship carried a chaplain and a

veedor, king’s attorney, who saw that all laws and ordinances concerning the fleet were observed.

He was appointed by the

king on the recommendation of the consulado of Seville, and was Immune from arrest and other judicial procedure.

The flag

ship led the armada which sailed in the shape of a half moon. The almirante brought up the rear and was advised to speak with the flag ship twice each day and to take a daily count of the ships.

The route was to the Canary Islands, and from

there west by southwest until the Indies were sighted. 1 trip took about six or seven weeks.

The

The general of the flota on arrival in Vera Cruz was under the authority of the viceroy or audiencia of the region* The general of the galeones, however, took precedent over the president of Panama.

The costs of provisions for the homeward

journey were defrayed out of the royal treasury. Messengers were sent ahead to announce the arrival of the fleet.

The merchants in the colonies then met the fleet

at the appointed places where ferias or fairs were held for the barter of goods.

These fairs were held at Jalapa for Mexico,

Puerto Bello for Lima and South America, and Acapulco, the port

^Haring, op. cit. pp. 220 ff.

101 for the Manila galleon.

The fairs were all conducted in much

the same manner and the one at Puerto Bello may he taken as a characteristic example.* The fair at Puerto Bello was an entrepot for the whole of the Spanish-South American trade.

Commodities of ^pain

were exchanged for precious metals and other products of Peru and other South American areas.

The fair became a focal point

around which the whole of Spain* s trade with South America revolved.2 There was an agreement between the Spanish and Peruvian merchants that Peru could trade only as far as the isthmus and Spain only as far as Puerto Bello.

Here the South American

merchants brought percious metals and such products as cacao, quinine, sugar, tobacco, vicuha wool, copper, tin, lead, shells, tortoise shells, hides, tanned leathers and goatskins, tanning materials, cotton, wool, alpaca wool, guanco wool, earthenware vessels, indigo, carun, annatto (a yellowish dye made from annatto trees), capal (a transparent resin used for varnish), carane, cedadilla (Indian barley used for snuff), Peruvian beans, chocolate paste, ginger, coffee, cocoa butter, cassia cabchalagua (a medicinal herb), calagula (Peruvian herb), balsam,

■^An interesting account of this fair is given by Allyn C. Loosely, "The Puerto Bello Pairs” , Hispanic American Historical Review, August, 1935, pp. 314-34. The fair was likewise a aharacteristic medieval institution. 2

Loosley, op. cit. p. 316.

102 rhubarb and casearilla.

In exchange for these the Spaniards

brought linen, damask, canvas, sail cloth, clothing for negroes, tanned leathers, leather goods, sesame oil, almond oil, cinnamon, cloves, black pepper, lemon seeds, anise, figs, prunes, raisins, licorice sticks, nuts, beer, cider, wines, spirituous liquors, incense, perfume,^hard soap, gum for ink, wax, gypsum, vermillion, rope, cordage, whitstones, steel, lead, iron in bars, hammers, axes, musket balls, gunpowder, ramrods, clocks, tables, and other furniture.

1

It is estimated that each of the twelve fleets that ♦

left Spain between 16S8 and 1645, carried commodities worth from eight to twelve million pesos,

They returned with gold p

and commodities valued between twenty and forty million pesos• When the fleet arrived in Puerto Bello the actual fair was begun.

The organization is well described in the following

passage:3 The ships being unloaded and the merchants of Peru, together with the president of Panama, arrived, the fair comes under deliberation. And for this purpose the deputies of the several parties repair on board the commadere of the galleon where in the presence of the commadere and the president of Panama; the former as patron of the Europeans and the latter as patron of the Peruvians; the prices of the several kinds of mer­ chandises are settled; and all preliminaries being

xLoosley, op. cit. pp. 317-8. %lloa, A Voyage to South America, p. 100. 5Ibid.

pp. 104-5.

103 adjusted in three or four meetings, the contracts are signed and made public, that everyone may conform himself to them in the sale of his effects. Thus all fraud is precluded. The purchases and sales as likewise the ex­ change of money are transacted by brokers from Spain and Peru. The business transactions were conducted largely on a cash basis.

They were usually handled by brokers or factors

of Spanish and Peruvian; merchants, and most transactions were *

made in good faith.

There were occasional examples of fraud,

but these were not usual, and trade was mostly based on invoice. Ghests and bails and packages were not opened for inspection by purchasing merchants.

On the whole the actual exchange

of commodities was carried on in an honest manner. At first the fair was held at Nombre de Dios but it was changed to Puerto Bello hoping to find an improvement in elimatic conditions.

There was no time limit at first but later

the fair was limited to a short time because of the climate in that region.

The fair in 1637 lasted for two weeks, and

the one in 1735 lasted forty days.- The climatic conditions in the town were terrible and fever often claimed from three to four hundred soldiers and sailors during the short time of "2

the fair.

It is for this reason that the merchants sent de­

puties to carry on their business instead of coming to the

^Loosley,

0£.

cit.

2Ibid« p. 320.

p. 325.

104 fair themselves/ In order to defray the expense of; this expensive commer­ cial policy, the crown found it necessary to impose numerous taxes.

Most of these taxes, while not excessive at first, were

imposed in an obnoxious manner so that merchants resented pay­ ing them and evaded them if possible.

As contraband trade in­

creased the rate of taxation increased in a vain attempt to defray the expense of the convoy.

The three most important

taxes were the alcabala, the averla and the almojarifazgo. The alcabala was the Spanish sales tax which was levied on all goods sold or exchanged.

Merchants were held accountable

for the payment of this tax, their accounts being examined by royal officials at regular intervals.

It was introduced into

the Indies by Philip II in 1574, and had been levied in Spain as early as 1079, though not in its perfected form.

According

to the tariff of November 1, 1591, it was exacted from merchants, apothecaries, eneomenderos, ragpickers, clothmakers, silver­ smiths, blacksmiths, and shoemakers.

The amount of the tax

varied from two percent to as high as twenty percent on certain articles.

Exemptions were made in favor of churches, monasteries,

and prelates when they bought and sold goods hot for profit. Indians were also exempt in certain circumstances.

1

^Cunningham, The ^udiencia in the Spanish Colonies, University of California Press, Berkeley, 1918, pp. 44-5.

105 The averfa was a contribution to defray the expenses of the convoys and other fleets maintained for the defense of India navigators• In order to protect merchant vessels from pirates, naval protection was sent with each armada.

The deputy

auditor was in charge of the collection of this tax.

It was

collected when the merchants registered and any added expendi­ ture was levied on the gold and silver brought from the Indies. Ho article escaped the payaent of this

tax and even passengers

paid twenty ducats into the funds of the averia.

In 1587, it

was a tax of four percent, and by 1596, it had increased to seven percent.

In the seventeenth century when contraband

trade increased the vaeria became higher, punishing those who obeyed the law.

The result of this condition was an increase

in contraband trade.

Finally, in 1644 Philip IV issued a

cedula declaring that the averia would never exceed twelve percent.1 The almojarifazgo was a customs

duty but was not exacted

from American trade at Seville until the end of the reign of Charles V.

This duty was paid on all but personal and house- .

hold property. half percent.

The duty at Seville and Cadiz was two and oneImports paid five percent and also paid the

alcabala of ten percent.

From the beginning a m : almojarifazgo

of seven and one half percent was collected on goods entering American ports.

In 1566, Philip II levied an export tax of

^Haring, o£. cit. pp. 67 ff. 2

Cunningham, The Audiencia, p. 45. This tax had ori­ ginated in Moorish days, hence the title is Arabic.

106 five percent on all goods leaving Seville for the Indies, This brought the total to fifteen percent.

Wines paid a ten

percent export tax making a total of twenty percent by the 1 time it reached the Indies, Duties in the Indies were based upon the price in the American market which was usually high. Duty was also paid on the reshipment of an article to another colony in the same province. In spite of the taxes levied on commerce the government did not grow wealthy on her commercial enterprises.

The costs

of administration were high, inefficiency was a wide-spread evil, and dishonesty and fraud were simple matters at so great a distance from the authority of the king.

It is estimated

that Spain received annually from five to six million piastres surplus from New Spain; about one million from Peru; 600,000 to 700,000 from Buenos Aires; and 400,000 to 500,000 from New Granada.

In the remaining provinces the expenditures were

at least equal to the receipts,

A regular annual

appropriation

had to be sent from Spain to the ?Jest Indies, Florida, Louisiana, the Philippines and Ghile to help out their domestic adminis­ tration,

from Lima 100,000 pesos went to Santiago and Concepcidn

every year.

Valdivia received 70,000 pesos from Peru, and before

the establishment of the Guipuscoa Company two-thirds of the expenditures at Caracas, Marcaibo and Cumana had to be supplied

^Haring, Trade and Navigation,

pp. 83 ff.

107 from Mexico.

Exports from Spanish. America amounted to approxi­

mately 9,800,000 piastros more than imports, and much of this went into the hands of private individuals rather than the government•^ The Consulado of Seville, which began as an extra-legal body to aid in the development of shipping and trade, soon became so powerful that it controlled the Casa de Contratacion, Council of the Indies, and in many respects dictated to the king.

It became in all respects a closed corporation of wealthy

merchants who had complete control of commerce in Spain.

The

crovm’s attempts at control were usually in the form of higher taxes, and to this the members of the consulado retaliated by indulging more heavily in illicit trade.

Not only was the

consulado at Seville powerful, but the consulados at ¥era Cruz, Mexico, and Lima also exerted great control over commerce in the New World. According to Bancroft, "A consulate or commercial tri­ bunal was originated in the city of Mexico in 1581,

under whose

protection the growing commerce of the country might be regulated". As the wealth of Peru was the first to bear fruit the commercial system had already been established there.

Mexico at this

time was fast becoming the trading center for traders from Asia,

^Wilhelm Roscher, The Spanish Colonial System. Henry Holt and Company, 1904, pp. 40-41. ^History of Mexico. II,

p. 753.

108 America and Europe and the harbors of Vera Cruz and Acapulco 1 had become famous in the world of commerce. From the middle of the sixteenth century no vessel might cross the Atlantic unless laden with a cargo of consi­ derable value. The minimum by the seventeenth century was set at 500,000 maravedis.

This naturally confined trade to the

wealthier houses which composed the consulados.

Direct trade

was prohibited between Buenos Aires and Spain, and all goods must be sent through Panama, Peru and Paraguay, and thus down to Buenos Aires#

By the time commodities reached this

province they sometimes cost three times their original value. The Spanish feared illicit operations of Portugal in that region and the consequent loss of Peruvian ores.

The Peruvian

merchants who owned the mercantile fleet probably objected to this weakening of the monopoly they held.2 The government held monopolies on the sale of gunpowder, tobacco, quiek silver, playing cards, salt, lead, tin, and N 5 many other products. This increased the prices on these goods. Wealthy merchants cornered the market in certain products and would sell them at excessive rates.

The system tended towards

monopoly and only wealthy merchants could pay the sums required

^Bancroft, Mexico, II, p. 753. 2

Chapman, Colonial Hispanic America, p. 157.

3Ibid.

p. 158.

109 even to obtain permission to sliip goods to or from Spain. They were in a better position to secure favors from officials, who usually could be induced to render favorable decisions by the use of bribery. The consulsdos in the Hew World were similar to the ones in Spain.

They retained certain administrative and judi­

cial functions.

Quarrels between merchants were usually set­

tled by their own courts.

Frequent quarrels arose between the

wholesale and retail merchants, the former, who were wealthier, usually won.

They were favored by laws and officials alike.

2

The consulado of Mexico had at its head one prior and two consules, who were elected by thirty merchants and served both as executive committee and tribunal of the organization. In association with them were five diputados who exercised an advisory function.

The consulado was maintained by funds

derived from the collection of the averia.

It was authorized

to employ clerks, porters, attorneys, special representatives 3 before the viceroy, and agents in Spain. The prior and consules held court three times a week. They had jurisdiction over all suits concerning commerce, be­ tween merchant and merchant, between partners!, or in controversies

■^Chapman, op. cit. p. 163. 2 Ibid.

p. 164.

3 Priestley, Jose de Galvez, pp. 71-2.

resulting from sales or exchanges, or fulfillment of shipping contracts.

Appeal from the consulado was to an oidor of the

audiencia appointed annually for the purpose by the viceroy. If judgement was reversed by the oidor, he might review the case sitting with* two merchants chosen by himself. there was no further appeal.

Beyond this

Questions of competency of juris­

diction were determined by the viceroy without appeal.1 The consulado of Mexico had territorial jurisdiction over the entire viceroyalty, Guatemala, Yucatan and Socomisco. Hearings at first were intended to be oral and brief, but in practice they became long formal trials.

As a result of this

practice its judicial functions were gradually absorbed by the audiencia and other courts.

2

As commerce was the most important item in the Spanish colonies, it was the cause of frequent disputes.

This was

especially true in Manila, whose whole existence depended on the trade carried there from China and thence to Acapulco in a ship sent once a year.

The consulado of Manila claimed ex­

clusive jurisdiction over disputes involving trade in the basis of the cedula of July 8, 1774.

The audiencia of Manila, how­

ever, advanced the contention that since the loss of a galleon

Priestley, Jose de Galvez, p. 72. 2

Loc. cit.

Ill affected the whole of society the case should he referred to the audiencia.

It further declared that the consulado had

exceeded its powers in assuming jurisdiction and proceeded to fine several of its members.

The consulado then appealed

the case, to which the king replied with a cedula on June 7, 1775, which declared that neither had jurisdiction hut that the case should he tried hy the Council of the Indies."** It had always been specifically decreed that no official of the government could participate in commerce, hut this decree was usually scrupulously ignored.

It is interesting

to note that conditions ran more smoothly under a dishonest governor than an honest one.

Oidores and churchmen usually

remained in the colonies for a longer period than the governor, so that when the new governor arrived he was expected to overlook such matters as smuggling, illicit trade, and unlawful participation in commerce.

Officials and merchants usually

worked together in the evasion of obnoxious taxes imposed by the government.

Bustamente, governor of the Philippines from

1717 to 1719, attempted to initiate reforms and clean up the government.

He succeeded for a period of two years, but he

aroused the antagonism of the oidores and consulado and was dismissed as governor of the colony.

1

Cunningham, The Audiencia in the Spanish Colonies, p. 401. Ibid.

p.