History of Mexico (Bancroft)/Volume 3/Chapter 27

by Hubert Howe Bancroft

 

CHAPTER XXVII.

ADMINISTRATIVE AND JUDICIAL SYSTEMS.

1500-1800.

Peculiar Features of Spanish Colonies — The Supreme Authority — Division of the Indies — Provincial Government — Municipalities — Local Administration — Indian Communities — Office-holding, Restrictions and Requisites — Salable Positions — Vanity and Precedence — New Spain, Extent and Divisions — Offices and Duties of the Viceroy — Pomp, Privileges, and Pay — Vicissitudes and Jurisdiction of the Audiencia — Oidores' Tasks and Honors — Different Instance Courts — Costly Litigation — Causes of Crime — Peculiar and Severe Punishments — At the Scaffold.

The Spanish possessions in America partook of the Roman colony features in being acquired by conquest, held as integral parts of the state, and used greatly for the benefit of certain classes; yet they presented many peculiarities. The conquest was performed chiefly by private venture impelled by immediate gain; the sovereign stimulated by similar allurements stepping in to reap the more solid acquisitions, without fostering them by any special encouragement to immigration. The title to the Indias Occidentales, under which term were embraced the transoceanic domains of Spain, including the Philippines,^[1] rested nominally on the grant of Pope Alexander VI. to the Catholic sovereign; and by virtue of this, Charles V. formally declared them incorporated in the crown of Castile inalienably.^[2] All right to lands, all control over natives, all political power, remained with the king, who kept jealous guard over his prerogatives, resolved to exact for himself and his favorite subjects every benefit, and went to the extreme of placing on colonial thought and enterprise restrictions which have generally been condemned as tyrannical.

But Spaniards felt not the yoke. While loving to rule, they preferred also to be ruled. The nobles had trained them in loyalty, so much so that they readily responded to the appeals of the sovereign to aid in humbling the nobility who interfered too much with the free sway of the sceptre. For this they received among other privileges a right to popular representation, but it was not long ere the astute Charles, with the aid of the church, managed to wrest from the communities all power to interfere in state government, and to assume for himself supreme control, which extended also over the church. Still the sovereigns were ever devoted to the faith, and so were ready to be guided by philanthropic prelates and sage counsellors. No country indeed can point to a code superior for general benevolence and wisdom. Its chief defects must be attributed to the mania at Madrid for excessive governing, and to the sway allowed to feeling over staid judgment and determination in dictating and enforcing it, no less than to the constant pressure for money at court, for which so much was sacrificed. While selfish in its restrictions against foreign elements, like the church the supreme authority was sympathetic and lenient within limits, and it looked with paternal care to the interests of all concerned, whether Spaniards, Indians, or mixed breeds, although the first were naturally regarded with special favor. If greedy officials circumvented the laws and used their power for oppression, the lower classes who suffered were ready enough to recognize the good intentions of the government. Thus for centuries its control remained unquestioned, even by the parlies which at times presumed to rise against the viceroy; and thus it was able to carry out as late as 1767 such extraordinary measures as the expulsion of the Jesuits without serious trouble.

The administration of the different dominions of Spain re.sided in different councils, which possessed also legislative power and were wholly independent of each other, subject only to the sovereign who conferred with his ministers and his royal and supreme council of Castile. Thus the transoceanic possessions were intrusted to the supreme council of the Indies, holding permanent sessions at Madrid. Its jurisdiction extended to every department, civil, military, ecclesiastic, and commercial, with particular attention to the welfare of the Indians, and with the existing laws in Spain for guidance in framing cédulas, which together with royal decrees formed the laws for America. Its power corresponded to the vast extent of territory controlled; for by it viceroys and governors were made and unmade, also patriarchs and bishops, even the pope having here to submit for approval his bulls and briefs concerning the Indies.^[3]

For purpose of government the possessions were divided into viceroyalties, provinces of audiencias, of chancillerías reales, and of royal officials, adelantamientos, gobernaciones, alcaldías mayores, corregimientos, alcaldfas ordinarias and of hermandad, town consejos of Spaniards and Indians; and for spiritual administration into sees, parishes, religious provinces, and other divisions, which were intended to conform to the temporal boundaries.^[4] With the discovery of new abuses among the ever transgressing officials, new officers were created, thus forming wheels within wheels for watching watchers and carrying out the king's will. This division was the growth of centuries, and embraced toward the end of Spanish domination the four viceroyalties of Peru, New Spain, New Granada, and Buenos Ayres, a number of more or less independent captain-generalcies, and twelve audiencias, including those at Santo Domingo and Manila.^[5]

The provinces of royal officials were merely revenue districts, whose heads received their appointment from the king, and administered their office under a certain supervision from the viceroy and governors attending their councils; yet they were responsible only to the finance tribunal of the viceregal capital, and this again reported direct to Spain.^[6] Adelantamientos was an early term for gubernatorial districts, generally of undefined limits, to be extended. by further conquest. Gobernaciones were the provinces of governors who usually held also the office of captain-general, and at the audiencia capitals acted as presidents of this body. Over them the audiencias had a passive supervision with active interference only in judicial matters,^[7] and the viceroy could control them only in a limited degree as royal representative. In 1786 the gubernatorial districts were replaced by intendencias, under intendentes, who combined in themselves the political, judicial, financial, and military control, assisted by an asesor.^[8] Their subdelegados exercised in county capitals similar jurisdiction in subordinate degree, replacing gradually alcaldes mayores and corregidores who had for nearly three centuries been ruling as district or county magistrates, with political and economic supervision, sometimes indeed as governors.^[9] These minor rulers also were appointed chiefly by the king, and enjoyed therefore a certain independence, acting in a degree as spies on one another and on their superiors. This policy of subdivision of authority and mutual watch, which could not fail to strengthen the control of the supreme government, was prompted partly by the distance of the colonies, and precipitated by the ambition and quarrelsome disposition of the early governors. Whenever unsatisfactory reports came in concerning any governor or magistrate, the India Council, or its higher representatives, at once despatched a visitador to hold investigation and submit the result, although at times he had power to carry out reforms and penalties on the spot. Usually, however, the only investigation needed was the residencia demanded at the end of his term from every official with any jurisdiction.^[10]

 

Municipal government was vested chiefly in alcaldes and regidores, of whom large cities had two and twelve respectively, and ordinary towns two and six. In minor places many of these offices remained vacant, partly owing to the interference of governors and their lieutenants who wished to retain sole control.^[11] In other places the alcaldes were mere figure-heads. At the founding of a town the municipality was elected for one year;^[12] after that the regidor positions in most places were sold, always with preference for meritorious persons and descendants of conquerors. The duties of the alcalde, who could appoint asesores to aid him, was to take cognizance in first instance of criminal and civil cases, appeals being made to city council, alcalde mayor, governor, or audiencia. He also, assisted by a regidor, gave tariffs to shops and taverns in towns where no governor resided, and in such towns also he presided over the council, a privilege otherwise belonging to the governor, or alcalde mayor, or their lieutenant. None of these presidents had a vote in the assembly, or could interfere in municipal administration. Honorary regidores and communal deputies were, toward the end of the last century, given a place in councils, as in Spain, after a stubborn resistance on the part of the perpetual municipality. They could be elected, every second year, from the trading class.^[13] Other prominent officials, partly chosen from the regidores, partly elected from citizens, although not fully represented in every town, were the alférez real, who carried the banner, the procuradores and sindicos, usually lawyers, who represented the council in legal matters, and made codections, the treasury officers, and the alguacil mayor, or sheriff, who could appoint lieutenants and prison-keepers, and had to carry out the orders of governors and alcaldes without meddling with the alguaciles, or police.^[14]

At the election of alcaldes the municipality chose two alcaldes de mesta, whose duty it was to preside over the semi-annual council of live-stock holders, and to attend to regulations concerning domestic animals.^[15] Municipal funds were derived primarily from lands set aside for each town when founded,^[16] sometimes certain fines could be appropriated; and for urgent public works, suits at law, appointment of agents, and the like, contributions might be levied by the magistrate for amounts not exceeding fifteen thousand maravedís. Audiencias could extend the levy to two hundred pesos, but anything above this amount required royal sanction. Lands and certain other property were leased at auction, and the rents intrusted to depositarios, whose books were usually inspected by an oidor.^[17] Drafts for ordinary expenses were issued by magistrates and council.^[18] The city had eight cuartel districts, five of which were administered judicially by the five alcaldes del crimen of the audiencia, and the remaining three by the alcaldes ordinaries and the corregidor, subject to whom were four petty ward alcaldes in each district, created in later times. There existed also a special patrol, and lighted streets, although the latter feature was secured only until a comparatively recent date, and after many efforts.^[19]

About the same time, 1790, fire-engines were made for the public offices, and regulations issued for the guidance of the people called to assist at fires, with premiums for the first leaders of gangs who obeyed the bell signals of the watchmen in the church towers. Before this the neighbors hurried pell-mell to the scene, and friars and clergy came with images and relics, some of which were even cast into the fire with a view to awe the flames into submission.^[20] Among this crowd of psalm-singers and frantic helpers, thieves found good opportunities while pretending to render aid, Regulations for Indians, as we have repeatedly seen, were full of liberal, benevolent, and as a rule wise measures, though misapplied by rapacious or negligent officials. More consideration was shown for the faults of the natives; special exemptions were granted from taxes, and many privileges extended, as if in regard for their primary right to the soil, and their poverty, and as if they were less responsible beings. The quality of this consideration has no parallel in the history of colonization; there is a pure charity, a tender humanity about it, which we look for in vain among the other nations of Christendom. The encomienda system had been gradually abolished, and liberty granted to the Indians freely to dispose of their labor; yet advantage continued to be taken of their poverty and ignorance, to abuse them, and practically to maintain them in slavery, notwithstanding the many strict laws against advancing money or effects, or otherwise to place them under binding obligation. The alcaldes mayores and corregidores placed to protect them were only too often their chief oppressors, who relentlessly exacted the tribute from which they obtained a percentage, and who sold to them by compulsion useless goods at exorbitant rates. The establishment of intendencias had for its object the reform of these abuses, and improvement certainly took place. The effort to congregate them into villages, particularly near mines and settlements, was still carried on, partly to promote their culture by means of priests and example, partly for advancement of colonization and increase of state revenue, the frequent practice of introducing laborers from a distant province being objectionable in many ways.

In the villages so formed no strangers must be allowed, even of their own race,^[21] and those enrolled as settlers must not live away from the place. Large villages had two alcaldes and four regidores,^[22] elected annually from among the people in presence of the curate, who was the adviser and guide in all matters. The election was as a rule nominal, for the offices, particularly the former, fell to the Indian nobles, and in some villages the cacique was perpetual alcalde. This officer could inflict punishment to the extent of a day's imprisonment or eight lashes on drunkards, absentees from mass, and similar offenders. Greater culprits, including half-breeds, must be merely arrested and taken to the nearest Spanish town. The caciques or chiefs retained a certain power independent of any official rank, with right to establish their claims to succession, to wield authority over the Indians within their district, and to exact tribute, although this was moderated if regarded as excessive. They must pay the men employed and inflict only light punishments.^[23] The privileges granted them as nobles were generally abused in tyrannizing over their semi-subjects, partly as a relief to their feelings, which suffered so much from Spanish insolence. The curates and political agents were generally prepared to support them for economic reasons. Special care was taken to dispose of Indian civil and criminal cases promptly and with the least expense. Indeed, processes were not permitted except in grave instances. In audiencia cities, a lawyer and procurador attended exclusively to them, without charging fees, their pay coming from fines or community effects.^[24] Cases of first instance pertained to governors, and at Mexico an Indian tribunal under an oidor or alcalde de crímen, who acted as asesor to the viceroy, attended to this duty.^[25] Among the sources for village revenue was the yield of community land, each Indian being obliged to cultivate a certain amount, or to pay a tax. The funds were generally invested in mortgages, with advice of an oidor and in charge of royal treasury officials, under bond, who disbursed for crown taxes, school and mission expenses, and other purposes. The capital could not be encroached upon, save in extreme cases and with approval of the Indians;^[26] indeed this as well as a part of the inflowing money came to be held almost as crown property, and the real owners met with such difficulty when making demands thereon that they seldom renewed the effort.

 

Office-holding in America possessed special features not alone in its allurements, but in its effect on the destinies of Spanish colonies. Almost every person above the artisan class who migrated to the Indies came to engage in commerce or to obtain office. In fact nearly all the higher posts were occupied by them,^[27] partly on the long established principle, as instanced by the restrictions on oidores, to let no official exercise jurisdiction in a province or district where he was bound by ties of kinship. This seemed the more necessary in countries so distant from the seat of government, and whose population had by personal conquest and colonization acquired more immediate rights and greater freedom of discussing them. To the children born within the bounds of loyal Spain, and influenced by no foreign ties, must, therefore, be intrusted the supervision and management for their king of these less secure possessions. They also had readier access to plead for positions. Creoles could not be wholly excluded, and a share had to be given them; but it was small, very small considering the superior claims of their ancestry, Who had won and loyally transmitted domains so rich.^[28] In addition to the discontent created by the partiality for Spanish-born subjects, the position and favor enjoyed by the latter made them arrogant, and tended to render more marked the caste distinction, all of which must in due time bear fruit.

Nearly all high offices, especially those with jurisdiction, were reserved by the king for his own appointment, and the viceroy or president of audiencia could fill the post only temporarily; yet his recommendation had weight.^[29] It had frequently been declared that descendants of conquerors should be given preference for most offices; then settlers and those born in the country, with special attention to meritorious and married men; but ceaseless intrigues and the pressure of personal interest assisted to nullify this. In the magistracy, ability should receive superior weight; traders could not be given treasury offices; those who had been artisans could not hold alcaldias mayores, corregimientos, and similar positions; planters, mulattoes, mestizos, and natives were also debarred from the higher offices. Adherents and relatives within four degrees of the high dignitaries were declared ineligible for many offices within the same state, but supplementary laws practically annulled this, as well as many other rules,^[30] as we have seen.

While meritorious service formed a main feature in the application for office,^[31] it was above all necessary that the candidate should owe nothing to the treasury. He must tender oath for faithful and loyal performance of duty, give bonds in many cases, and in certain instances inventory of estate. In term offices a certain period must elapse ere the same person could be reappointed.^[32] While lieutenants could be chosen by governors and others in different towns, office could not be held by substitutes without special permission, nor could they be resigned in favor of another. The pay varied greatly even for similar offices according to location and wealth of districts.^[33] Temporary holders, till removed or confirmed, received merely half pay when it fell below a fair amount.^[34] It was clearly specified to whom salaries should come from the royal treasury, and who should receive their pay from fines, fees, and other sources.^[35] Payments were made three times a year, in silver—gold being reserved for Spain^[36]—the time counting from date of taking possession, although several obtained pay from the day of leaving Spain.^[37] To some advances were made for travelling expenses. Certain deductions served to form a pension fund for widows and orphans of those who died in office, and others in form of media anata^[38] went to the king. The civil pension system was created only during the latter part of the eighteenth century, and did not apply to the holders, some of whom received a proportion of pay from other funds after a certain term of service, or when incapacitated.^[39] In protection of the pension funds it was required that officials should not marry wives without sufficient dowries,^[40] nor without permission.

Before the discovery of America a few offices without jurisdiction, or with minor participation therein, were sold to bidders. The practice soon extended, as the mania for office-holding increased and the royal treasury became greedier, and law after law was added to the list which embraced in particular the positions of clerks, notaries, sheriffs, regidores, persons connected with the collecting and management of funds of tribunals, municipalities, mints, and others.^[41] These sales were first authorized in the Indies by decree of June 17, 1559, subsequently amplified in extent and rules,^[42] so as to embrace also in a measure pensions and encomiendas.^[43] Public notice had to be given of vacancies, and a certain time allowed for bidders to prepare themselves to present qualifications, for restrictions as to class and talent applied also here. The sale was held in the presence of an oidor, or other high official, the highest bidder being entitled to the position, with certain exceptions in favor of able or meritorious persons.^[44] Different causes tended to affect prices, such as hard times, which naturally diminished fees, and consequently the valuation. Thus the office of high sheriff to the audiencia at Mexico sold at different times during the period 1605-1621 at 28,750, 122,740, and 50,000 pesos; that of clerk to the civil court varied within a dozen years between 65,000 and 30,000 pesos. The twenty-four receivers' offices of the same tribunal ranged between 3,200 and 2,400 pesos. Regidores of Mexico paid between 10,000 and 6,000 pesos.^[45] The sale conferred different privileges, some holders being allowed to appoint lieutenants, others to buy for minors and administer ad interim, or to renounce in favor of another, which was equivalent to private sale. Many bought positions merely as a speculation, and tendered other offices in payment.^[46]

Yet the latter performances were somewhat hampered by the rule that one half of the value must be paid to the treasury on resigning or disposing of any office for the first time, and one third for subsequent transfers. In cases of private transfers the value was estimated by treasury officials for payment of the deduction.^[47] Such transfers were valid only if the seller lived twenty days after the sale;^[48] otherwise the office fell to the crown, to be sold anew at auction.^[49]

The policy of salable offices is no doubt open to objections, although it does not appear to have been attended with so many evils as might be supposed. Many men invested money in this way to obtain position, or to secure a safe income for themselves or their children, and paid so liberally that the salaries amounted to merely a fair percentage on the investment. This served also as a bond for good conduct. The competition was generally too great to allow of an adequate return in the form of both salary and interest on purchase money. It led also to much corruption and to a low standard of ability.^[50]

It was worth while to pay large sums for a position which entailed privileges, at least honorary and social, such as are eagerly sought for even in countries less subject to class distinction and caste strife than Mexico. The well known punctiliousness of the Spaniard was not a whit relaxed in these far-off regions, and it is amusing to observe the trivialities on which the staid government would waste its attention and decrees. The question of precedence was minutely fixed, even for inferior officials, in processions, at audiences, in church, and elsewhere. In certain cases the clergy should precede all; on other occasions a governor had the precedence. This dignitary could use a cushion, but not so an alcalde mayor,"^[51] and certain officials could enter a tribunal with sword or stick, while others must doff and bow. Many distinctive forms of dress, still reserved on the peninsula for certain classes, had here been usurped by inferior persons, and the judicial cape and collar could be seen on every notary and physician, ay, even on the barber. The lawyers felt particularly indignant at being confounded with their social inferiors, and after a hard struggle obtained permission to wear gauze on their cuffs, and were reconciled. Form of address was also jealously guarded,^[52] and the manner of kissing the pax had to be prescribed lest the arrogant worshipper should place himself on too close equality with royal devotees.

 

New Spain, which for so long a time formed one of the two great territorial departments of the India Council, the other being Peru, embraced five of the twelve audiencias, namely, Santo Domingo, Mexico, Guatemala, Guadalajara, and Manila, besides the captain-generalcy of Florida, extending from the southern border of Costa Rica^[53] into the undefined north, till treaties of the eighteenth and nineteenth centuries gave boundaries along Louisiana and beyond California. The viceroy of Mexico had however a merely nominal authority over any but the audiencia districts of Mexico and Guadalajara, which extended from Guatemala, Chiapas, and the bay of Honduras to the south line of the Florida department, and beyond California, a region forming New Spain proper.^[54] In 1786 this state embraced ten gubernatorial divisions which were now converted into twelve intendencias and three provincias, with two hundred and forty-two alcaldías mayores or partidos.^[55] Two military divisions also existed, those subject to the viceroy as captain-general, and those under the comandante general of the Provincias Internas.

Originally New Spain was under control of a governor, as we have seen, who held also the offices of chief justice and captain-general, with power to appoint lieutenants and other high officers, to grant repartimientos, to exile obnoxious persons, and to condemn to death. Under pressure from envious aspirants to power, the sovereign took the wise precaution of creating an audiencia, like that at Santo Domingo, to administer justice, and watch over the observance of laws, and over the royal interest. Its president acted also as governor till the arrival of the first viceroy in the person of Mendoza.

While representing the king this high official was greatly restricted in his powers, especially in later times. His office embraced those of president of audiencia, governor, and captain-general, terms which to a certain extent indicate the authority wielded. As president, however, he possessed no vote in judicial matters, though he watched the proceedings of the oidores, signed their decisions, and directed to some extent their movements.^[56] As governor, he was the head of the departments of state generally, watching also over religious observance, supervising the treasury,^[57] and looking in particular to the welfare of the Indians. He could promote discovery expeditions, but the privilege to distribute encomiendas and lands was greatly absorbed by minor governors of provinces. Yet with him lay the provisional appointment of governors, captain-generals, and intendentes whenever vacancies occurred, and a number of alcaldías mayores and other offices were assigned to him for free disposal.^[58] This privilege extended also to ecclesiastical offices, where he exercised the royal patronage in selecting one of the three nominees proposed by the bishop.^[59] As royal representative the viceroy had much additional control over the church, which tended greatly to exalt his dignity, however galling this subordination must have been to the clergy.

A still greater influence was derived from the office of captain-general by land and sea, with power to appoint lieutenants, to call out the colonists as a militia body, to levy troops for expeditions, and even to dip into the royal treasury. A council of war served both to guide and control his action however. The duty of attending to the defence of the country enabled him to interpose his authority in a number of ways, and from his decision in military matters there was no appeal except to Spain.^[60] The audiencia had in all important affairs of government to be consulted, in which attitude it was known as the acuerdo; yet in most cases the viceroy could carry out his own decision even if this body objected. The oidores would then have to report to the king, without his knowledge if they chose. In cases of appeal to them from him they could always demand the documents and determine to whom cognizance pertained.^[61]

With the creation of captain-generalcies in Yucatan, and alono; the northern frontier of regencias and intendencias, the power of the viceroy became more and more restricted,^[62] although his duties were by no means reduced, including as they did at least a nominal supervision of affairs even within districts that appeared independent of him. The commercial interests of New Spain in the Philippines called his attention to the Orient; he had frequently to send arms and other aid to the Antilles; and while the government of Florida was subject to no audiencia, the authority of the viceroy could be exercised there, and so with Nueva Vizcaya, Nueva Galicia, and Yucatan.

In the despatch of government affairs he was assisted by a secretarial department of royal appointment,^[63] and his dignity was sustained by prescribed court pomp and ceremonies, many of them being otherwise of exclusively regal character, such as the formal reception by the chapter and bishop on his first visit to the cathedral church.^[64] On certain feast days the audiencia had to accompany him to mass, but not even an oidor could take a seat beside him within the coach.^[65] Indeed the viceregal court was modelled on that of Spain, and the king in many ways encouraged the manifestation of respect toward his representatives.

The formalities connected with his arrival in the country were particularly impressive.^[66] Processions of brilliantly attired citizens with banners and other regalia, headed by official bodies, came forth to receive him at every town along the route, which usually passed from Vera Cruz through Jalapa, Tlascala, and Puebla^[67] to Otumba, the scene of Cortés' brilliant victory, where the outgoing viceroy with the dignitaries from Mexico usually met him,^[68] although a number of officials and citizens had hastened to tender homage long before this. Here took place the informal surrender of government and of the staff of captain-general amidst pomp and festivities; and thereupon the new ruler was escorted with great ceremony to the capital, occasionally under the pall, till strict orders forbade this encroachment on royal privileges. Bells rang, troops paraded, fireworks, bull-fights, and other entertainments followed, and for three days the viceroy dined in public with the representatives of different civil and military bodies. The cathedral formed the objective point of the entrance march, and here the archbishop received him and chanted the te deum.^[69] Some time after the formal assumption of power, by swearing the oath of office, a second pompous entry took place into Mexico, for which costly preparations were made on all sides, by private citizens as well as by guilds and political bodies, the municipality alone expending as much as twenty-six thousand pesos. This extravagance being complained of, the king forbade a second entry, which had absorbed most of the ceremonies and festivities, and limited the drain on public funds for such occasions to eight thousand pesos.^[70]

Many restrictive cédulas were directed against viceregal pomp and abuse, such as using family arms during certain public celebrations, accepting a higher form of address than señoria—excellency being permitted only in late years—obliging the oidores to escort the viceroy to their hall whenever he chose to preside,^[71] and expecting them as well as other dignitaries to make ceremonious calls on his birthday, or during his sickness. In other directions his privileges were extended with a view to preserve the dignity of the royal representative. A guard of honor numbering twenty-five was provided to attend him, and later a special posse for the palace.^[72] His pay was gradually increased from the six thousand ducats enjoyed by Mendoza, to twenty thousand, and later to forty and sixty thousand pesos. Certain legal fees were added for superintending the drainage work and other duties, exceptional grants being made to favorites, with permission to introduce a certain amount of jewelry and merchandise free of duty.^[73] A goodly portion of the government house or palace, and of the buildings at Chapultepec, were set aside for his use, and the service was covered to a great extent from public funds.^[74] Liberality in this direction appeared the more necessary, as only too many viceroys had used their position to enrich themselves, either by direct or indirect sale of places, or aceptance of presents from favor-seekers, or engaging in different undertakings, contrary to law.^[75]

One means intended to check corruption was the limitation of the office to three years.^[76] This rule, however, was seldom adhered to, nearly all holding the power for a longer period, sometimes from twelve to fifteen years, several being twice appointed.^[77] As an encouragement for good conduct, promotion was held forth to the higher paid viceroyalty of Peru, to the India Council, and other positions in Spain. Before leaving the country, this dignitary, like other high officials, had to submit to a residencia to be completed within six months; yet bonds were generally accepted.^[78] He had also to leave a report on the condition of affairs with suggestions for the guidance of his successor.^[79]

In case of death no regal ceremonies were permitted.^[80] Usually a pliego de providencia, or mortaja,^[81] existed wherein a successor was designated; otherwise, till the arrival of a new appointee, and also when the viceroy fell sick, the audiencia assumed the government with the president or regente for captain-general.^[82] While the audiencias were really sovereign tribunals to which appeals might be made even from the decisions of governors, they also possessed a certain supervision over affairs and had to report to the India Council, giving suggestions on all points that might promote the interests of the crown and the welfare of colonists and natives. They were given jurisdiction in the residencias of the inferior judiciary, and could send forth members or special agents to investigate their administration. They had cognizance in matters of tithes, royal patronage, and treasury, and could fix not only notarial and court fees, but those of ecclesiastic tribunals, watch over the friars and clergy, interfere in their estates and revenues, and take cognizance even in cases decided by their visitadores. These powers were not enjoyed by similar bodies in Spain, chiefxy because the supreme councils and government were nearer at hand.^[83]

The first audiencia in America, that at Santo Domingo, enjoyed for a time special supervision over all the new world, and its president attended to the government of the island, without vote injudicial matters. On a similar basis were formed the subsequent bodies, with certain limitations, such as vesting the presidency in the viceroy where one existed, with greater independence of action, and in subordinating certain audiencias to those of older standing.

At first only four oidores had been appointed for Mexico, but it soon became apparent that this number was too small to attend even to the increasing civil suits and government cases, while the criminal department was greatly neglected.^[84] This led to an increase of their number and the appointment of additional officers till the bod}an the middle of the eighteenth century consisted of twelve oidores, six alcaldes del crímen, two fiscales or prosecutors, one alguacil mayor or high sheriff, one canciller who kept the royal seal, with a number of minor attaches,^[85] divided into three courts, two for civil and one for criminal cases. Changes continued to take place, and by law of 1776 a regente was appointed for each audiencia, who constituted a kind of chief justice, with power to regulate the duties of theoidores, to form special courts, to sit as judge in any court, and to preside in absence of the viceroy or president. Indeed, he absorbed a certain degree of authority from the latter,^[86] and was entitled to special respect. About the same time the number of oidores was reduced to ten, with five alcaldes del crímen and two fiscales, forming only two courts.^[87] A special fiscal attended to treasury matters. The inferior audiencias had only five oidores, with president, regente, and two fiscals, in two courts, together with alguacil mayor, canciller, and minor attaches, but without alcaldes.^[88] The alcaldes del crímen had cognizance, in first instance, in civil and criminal cases within five leagues of the capital, and in second instance of criminal cases for all the audiencia district, with appeal only to themselves. In death penalties the affirmative votes of three alcaldes were required, and in cases of doubt oidores could be assigned to assist in obtaining a decision.^[89]

The audiencia courts had hours and days for certain subjects, such as finance, Indians, the poor, and these last had to be given as much preference as possible. They had also special duties which brought additional revenue, and these were the mo.st acceptable; for considering the dignity to be sustained, their pay of four thousand five hundred pesos was small.^[90] They took in turn the posts of judges of appeal from different subcourts, and could also accept missions to investigate and supervise departments in county and town.^[91] These missions were independent of the tours of inspection which an oidor had to perform every three years, or oftener if decreed expedient, accompanied by the clerk of the court and other officials, for holding investigation into civil, criminal, and ecclesiastical matters. A liberal sum was allowed him for expenses, since no gifts even of provisions could be accepted.^[92]

A number of laws prescribed the ceremonies with which the dignity of this high tribunal should be upheld. Their court chamber itself had an imposing appearance. At the further end rose a dais covered with rich carpets under a canopy of damask garnished with gold lace. Here stood the velvet-covered chair with footstool for the viceroy. On either side sat the oidores, the regente and eldest member nearest. A little lower were seats on both sides for the attorney-general, high sheriff, counsel for the poor, protector and defender of Indians, and lawyers having cases before the court. The nobility and city counclimmen received seats according to precedence, when called by business. Still lower were places for notaries and solicitors. Opposite to the oidores sat the clerk of the court and relator, and behind them was the wooden railing which separated the assembly from the common people. For the latter no seats were provided, and they were required to uncover their heads and speak only in lowest whisper. Lawyers and others also bared their heads on addressing: the court; and when the counsel was supposed to have sufficiently discussed a point his harangue was cut short.

As a body the audiencia used to receive the señoria title, and the oidores that of su merced, your worship. Later the señoria was extended to them also.^[93] Military honors were accorded by the guard, and at church the prebendaries escorted them from the door and tendered holy water. This treatment was granted to them only as a body;^[94] nor could they enjoy it very often, for their visits to church, officially, were restricted to certain feast-days. Private parties and entertainments, even attendance at funerals, were forbidden to them; in fact any social intercourse whereby friendships might be formed to influence their minds as judges. As for securing a good marriage within their districts for a son or daughter, this was out of the question. No near relative of an oidor could be appointed to the magistracy within his district, or plead before him as an advocate; so said the law, though it was frequently overruled. Certain of these strictures and honors applied also to lawyers. At first forbidden to enter the country, they had at last to be endured, and now rejoiced in the possession of a royal college for drilling recruits. Besides sporting gauze on their cuffs to distinguish them from folk of lower order, they could boast of oath-bound reputation, for they were sworn under penalty never to aid a bad cause.^[95] Such strictness indicates the noble efforts of the crown for the right administration of justice, but also its recognition of human weakness; and in truth abuses were only too frequent in all departments, notably during visits of inspection. Nevertheless it must be admitted that the decisions of the audiencia courts were as a rule creditable, and won for them just respect.

While the Guatemala tribunal was independent of Mexico, that of Guadalajara, after several attempts at freedom, was obliged to take a subordinate place in certain cases of appeal, and to leave to the viceroy the superintendency of war and finance matters.^[96] Later, when an intendente with military power assumed the presidency, the subordination decreased. Its jurisdiction varied at different times, Nueva Vizcaya being at one time the easternmost province, but of late it extended from sea to sea, the line running from a point ten leagues north of Rio Pánuco, through San Luis Potosí, along the south border of Zacatecas, and between Ayotitlan and Purificacion to the Pacific.^[97]

Both audiencias had their archives, in charge of the canciller, for the preservation of decrees received and issued, of reports and petitions, the latter having to pass through this channel for endorsement, and for elimination of trivial or unsupported statements that might otherwise trouble or perplex the home government. The form of despatches to Spain required half of every page to be left as margin for subsequent annotations, and with division of the subject into distinct paragraphs, in the order of ecclesiastical, political, financial, and military matters, each with references to the attached documents arranged in similar order.^[98] The chief depository for documents was of course at Mexico, and a large proportion of cedulas were directed to the viceroy for transmission, with the privilege of putting his own construction on them, or even of withholding them should they prove inexpedient.

Although the alcaldes del crímen, and even oidores in certain cases and circuits took cognizance in first instance, yet this was as a rule left to the alcaldes ordinaries, of whom every town of any size had two.^[99] To viceroys and governors pertained first instance in Indian cases. First cognizance was also exercised by a number of industrial corporations, such as the consulado in disputes between traders, and the protomedicato in affairs among the medical profesions. Among miners, territorial deputies acted in first instance with appeal to intendentes assisted by two miners. The jurisdiction of these bodies was lessened toward the close of the last century; yet Revilla Gigedo suggested a greater curtailment, for officials connected with such courts went so far in their eagerness to obtain suits as to stir up discord, cast discredit on the legal tribunals, and assume too much independence.^[100] The church retained a wide jurisdiction, although secular tribunals were assuming more interference. The provisorato de Indias attended to questions of faith exclusively among the aborigines. The edicts of the inquisition had of late to be submitted to the viceroy. The military jurisdiction was controlled by the royal representative as captain-general, assisted by an oidor acting as auditor de guerra. In the second instance this auditor was given a colleague. The captain-generals of Yucatan and Provincias Internas acted independently with their auditors.^[101]

Appeals from alcaldes ordinaries were to alcaldes mayores, except at Mexico and Lima, where the audiencia received them. Municipal bodies decided in certain appeals concerning values not exceeding sixty thousand maravedís.^[102] Two oidores could decide in suits of menor cuantía, which were fixed at 300,000 maravedís, and even in larger cases, except at Mexico and Lima, where three votes were required. The council of the Indies formed the tribunal of ultimate resort for America. In values of six thousand pesos and over, a second appeal was allowed to this body, when five members assisted. If the decision proved adverse to the petitioner a fine of one thousand ducats was imposed.^[103]

Notwithstanding the efforts of the crown to smooth the paths of law, as instanced by the decree forbidding processes to be formed for cases of less value than twenty pesos,^[104] litigation was costly, for the fees were numerous and considerably higher than in Spain, those of the canciller, for example, being triple the amounts charged in the Peninsula. Lawyers were strictly forbidden to accept percentages on value involved, or share in the results of a suit, their fees like those of every person connected with the law being fixed, and so they conspired with the rest to prolong the litigation. The sheriff received two and a half per cent for levying, and if the amount was not paid within three days ten per cent was to be added.^[105] Small fines could, in certain cases, be collected even if notice of appeal had been given.

Aside from the usual causes for crime, there were in New Spain a number of special incentives, such as race antipathy, growing antagonism between castes and classes, slavery, subjection of Indians, isolation of colonists favored partly by mining allurements, and the existence of unsubdued tribes in the mountain regions. The latter features served to maintain the adventurous spirit instilled by conquerors, who still battled on the frontier to extend dominion and settlements; and among a large number lurked the roaming disposition inherited from less settled aborigines. This inclination turned naturally toward highway robbery among the vicious, and the extreme prevalency hereof is generally known. The reader has already become aware how wide-spread was crime in the country,^[106] and how more than one viceroy earned the gratitude of the country by energetic measures against it, although these suppressions of evil had but a temporary effect. Decrees against indiscriminate carrying of weapons, and other measures produced little good, and during more than one period extraordinary powers were conferred on inferior judges for dealing with malefactors.

A beneficial step was the introduction, in 1631, of the Santa hermandad, which like its long-established prototype in Spain acted chiefly as thief-catcher, aided by troops whenever necessary. Even this proved insufficient, however, and so the dreaded acordada was installed in the beginning of the eighteenth century. This with its vigilant-like features of rapid movement, inflexible sternness, and swift meting of justice, spread a wholesome terror that proved lasting, and did more to check crime than anything else. The power over liberty and life accorded to this body, and at times to local magistrates, led naturally to many abuses, and consequently to certain restrictions, yet the remedy could not have been worse than the disease. Justice was too often defeated by its own officers; for few rose above the temptation of bribery, and many succumbed through insufficiency of pay. And who could severely blame them, when the king placed himself above the law and issued regular tariffs of prices, for which exemption could be granted from laws concerning offices and trade, birth and race stigma,^[107] and a host of other matters, often with utter disregard for common justice or public welfare?^[108] This tampering was promoted by supporting from prison fees the staff connected with this establishment. The rich could here surround themselves with comforts, people of standing enjoyed privileges, and those less favored could often be made to languish in jail for unpaid charges.^[109] A regidor must visit the prison every Saturday; in audiencia towns two oidores did so,^[110] attended by fiscal and alcalde, to investigate cases of wrongful detention or maletreatment.

Imprisonment for debt obtained here as elsewhere. Indians were surrendered to private creditors to work off their indebtedness, the pay being regulated according to their efficiency. They, as well as other castes, could also be sent to convents or public works,^[111] or even sold for a term to contractors; and in view of the prevailing official corruption it is easy to imagine the extreme oppression to which this law gave rise.

Punishments in America were more severe than in Spain, fines being double.^[112] The greater number of criminals were sent to the frontier, the worst to hard work under the garrisons, others to form settlements there, or even to enlist, particularly for the Philippines, greatly dreaded on account of their climate, the distance and intervening sea lending additional terror. The galleys in Spain and Tierra Firme received a certain number; halters were long in use,^[113] and the lash was freely administered, even feathering being legally applied. Death penalties were often cruel and preceded by torture, both during the examination and as part of the punishment. The most common form of execution was by garrote, but highway robbery usually entailed hanging and quartering, the head of the criminal being fixed on a stake. The acordada also used the more prolonged method of dragging with horses, and giving the coup de gréce with lances before quartering.^[114] Burning at the stake was not restricted to the inquisition, for counterfeiters and persons guilty of bestiality received this sentence.^[115] A not uncommon mode of dealing with wife-murderers and the like was to cast them into a water-butt, with a cock, a monkey, and a viper. Inso far so good many cases the adjuncts were merely figurative. Conformance to the letter rather than the spirit of the law seemed to be uppermost with its servant, and thus we find instances of dead men being hanged in fulfilment of sentence,^[116] and little regard paid to age. On one occasion a man eighty-five years of age and a boy of fourteen were hanged for robbery, the former being first tortured till his arms snapped.^[117]

In sentencing to death the courts proceeded with great formality. The condemned was expected to kiss the paper of sentence after hearing it read. The priests then took charge of him, and brothers of mercy brought in the special crucifix, el Santo Cristo de la misericordia, with which to direct his devotion. Arrayed in a white cloak,^[118] with eyes bandaged, he was thereupon placed on a hide dragged by a horse a nominal form of dragging to death and conducted forth. First marched the piper and crier, proclaiming the crime, followed by four to six of the police, several members of the benevolent archicofradia society, and brothers with torches and candles. Then came the victim on the hide, partly lifted by charitable persons on either side, attendant priests, and infantry, closing with two court officials on horseback. On reaching the scaffold in the square of the town, surrounded by troops, the condemned was supported by a priest and the executioner, and fortified with prayer till the time for hanging. A sermon impressed the warning on the multitude, and the corpse was thereupon taken to the nearest water, placed in a cask containing the painted figures of a cock, a serpent, and a monkey, and rolled awhile on the surface,^[119] after which it was conducted by the court and police officials to the jail and surrendered to brothers of mercy, who attended to the funeral.

The material of the present chapter rests mainly on Recopilacion de Leyes de los Reynos de Indias, the official embodiment of the laws for America issued by the king and India Council during the three centuries of Spanish rule. A history of this valuable work together with an analysis of its contents has been given in Hist. Cent. Am., i. 285-8, this series. It does not, however, contain all the laws issued, nor does it indicate more than a small part of the variations they have undergone, and the student is accordingly obliged to consult a number of other collections made before its first publication, in 1681, or between the dates of its later editions, some bearing on special subjects or districts, others covering a limited period. Foremost among these as the first collection printed in America is the Provicioves, Cédulas, etc., prepared by Oidor Puga of the Mexico audiencia, and published at this city in 1563. It is generally known by his name and embraces merely the laws concerning New Spain up to this date. The method of Puga is faulty, and this is the more to be regretted as the work is invaluable for the early history of the country. Montemayor, oidor of the same audiencia, who by supreme order reissued in 1671 the Sumarios of laws for all the Indies printed in 1628 under the care of Aguiar and Acuña, added to it the decrees directed to New Spain during this interval. It was published at Mexico as Sumarios de las Cedulas, in a bulky folio. Two distinct supplements contain the important decrees of the audiencia and viceroys and governors respectively, since the formation of the government. Occasional laws are given in full, the rest cover in extract form half of each page, the other half being reserved for very imperfect marginal notes. Before he came to Mexico Montemayor had been governor and captain-general of Española, and consequently president of its audiencia. The growing rarity of this work induced Oidor Beleña in 1787 to publish at Mexico by subscription a collection supplementary to that of the 1681 edition of the Recopilacion de Indias, under the title of Recopilacion Sumaria, in two folio volumes. To this he prefixed a reprint of the two appendices of Montemayor, and two collections of the audiencia and criminal court decrees which had appeared since his time. Although the division of the subject into five parts is inconvenient, yet the work is far superior to its predecessors, with more useful marginals. The second volume is reserved for the decrees and regulations requiring full text. The pretentious Biblioteca de Legislacion Ultramarina, issued at Madrid 18 11 4 6 by Zamora y Coronado, contains all the latest important laws for the reduced possessions of Spain beyond the ocean, but it is very faulty for the eighteenth and the opening of the present century, the important changes made during this stirring period being reserved either for hasty summaries or occasional imperfect notes.

In addition to these collections and those mentioned in other volumes, I have consulted for this chapter Ordenanzas del Consejo Real, Madrid, 1681; Providencias Reales, MS., Mexico, 1784; Réales Cedulas, MS., 2 vols.; Cedulario, MS., 3 vols., containing a selection of the more important decrees, in full text, touching New Spain, and serving therefore as valuable auxiliaries to the standard publications. Ordenes de la Corona, 7 vols., partly in printed form but chiefly manuscript, possesses the additional interest of containing numerous originals with the signatures of the kings, from Philip II. to Carlos III., of ministers, prelates, and judges. The last volume of Disposiciones Varios, 6 vols., is peculiar as being reserved chiefly for edicts of the inquisition on books, morals, and articles of faith. Fernando VII., Decretos, Mex. 1836, contains the cédulas issued by this monarch during the stirring times which preceded the independence of the mainland colonies.

Hardly less important than the laws, for a subject like the preceding, are the instructions left by different viceroys to their successors. Not all of these have been preserved, and many of these dignitaries neglected to do their duty in this respect; nevertheless the more important have been issued in manuscript and print, and stand on my shelves as Vireyes, Instrucciones, in two series, partly MS., and relating also to residencias, with several original documents. The value of this class of papers for history, induced the Mexican.government to publish a number of them, together with pertinent letters, under the title of Instrucciones que los Vireyes. . . dejaron, Mexico, 1867. The most valuable of the instructions are undoubtedly those of Revilla Gigedo the younger, the ablest ruler of New Spain, whose name has found an imperishable monument in the many reforms effected by him, in the embellishments of his capital, and in political writings, notably the Instruccion, 1794, which has been reprinted more than once in quite voluminous form, and widely distributed also in manuscript. The careful arrangement of subjects and paragraphs accords with the clear and pointed style, and enables one readily to grasp the exhaustive review presented of every department of government, with its accompanying criticisms and suggestions. Several of his letters are preserved, and I possess a collection of his decrees forming a folio volume. The importance of the period following Revilla Gigedo's rule has led me to obtain manucript copies also of their instructions, including Branciforte's and Azanza's, which are modelled on the preceding, though less bulky.

A useful adjunct to this material is presented in the Memorial y Noticias Sacras y Reales, 1646, of Calle, which forms semi-official statistics of districts and towns, sees and offices in the five audiencia districts of the New Spain royalty, together with some account of official routine. Pinelo refers in detail to his several manuscripts on similar subjects. Epitome, ii. 798-9. More particularly devoted to routine and form are Moreno, Reglas, Mexico, 1637, for judicial officers; Martinez, Librería de Jueces, Madrid, 1791, for guidance of unprofessional magistrates; Mexico, Aranceles de las Tribunales, etc., Mexico, 1759, giving duties and fees of courts and court officials; Mexico, Circular Nombramientos, MS., Certif. de las Mercedes, MS., and Yrolo, Opera, Mexico, 1605, provide forms for official proceedings; Leyes, Varias Anotaciones, MS., in eight books, concerns chiefly officials and their duties, but the notes are of little value; Ejidos de Mexico, Autos, MS., gives valuable information about town lands in connection with legal proceedings by the Mexico municipality for protecting its grants. Official statistics are given in Zuñiga y Ontiveros, Calend. Man. y Guia Forasteros, Mex. 1789, and in Guia Forast. of later years, while the colonial system finds reviewers in such books as Villarroel, Enfermedades Polit., and Campillo, Nuevo Sistema, Madrid, 1789. Campillo wrote the book as early as 1743, and before this a number of papers appeared from his pen on Similar topics which did not a little to promote reforms in administration.

 

I give herewith in compact form, for further review, the authorities consulted for the preceding chapter: Puga, Cedulario, 80-1, 101-2, 127, 134, 150-1, 161, 180-207; Reales Céulas, MS., i. 10-13, 30-4, 65-80, 203-3; ii. 22, 74, 86, 109-63, 237; Ordenes de la Corona, MS., i. passim; ii. 16; iii.-64 et seq.; Cedulario, MS., i. 34-46, 169-76; iii. 39-58, 164-6, 192-7, 205-11; iv. i.; Providencias Reales, MS., passim; Vireyes de Mexico, MS., 1-4; Recop. de Ind., i.-ii., passim; Montemayor, Sumarios, 1 et seq.; Mexico, Ordenanzas Ciudad, MS., 1-34; Monumentos Domin. Esp., MS., 125-8; Linares, Inst., MS., 124; Beleña, Recop., i., passim; Ordenanzas del Consejo Real, 1-206; Revilla Gigedo, Bandos, nos. 2-72; Id., Instruccion, MS., i. 43-99, 199; ii. 121-5; Id., Residencia, MS., 438-9; Azanza, Ynstr., MS., 4-49, 77, 102-3; Calle, Mem. y Not., 7, 43-100, 132, 165-83; Gonzalez Dávila, Teatro Ecles., ii. 101; Col. Doc. Inéd., xxi. 439, 462-93; Medina, Crón. S. Diego, 227-34, 246; Villa-Señor, Theatro, i. 17-19, 37-50, 61-89, 120-82; Pacheco and Cardenas, Col. Doc., xvii. 178; Cartas de Ind., 266; Doc. Hist. Mex., série i. tom. i. 38-9, 139-164, 315-76, 412-26, 457, 474-83, 504, 545; ii. 72-4, 99, 111, 124 et seq.; Cogolludo, Hist. Yuc., 404; Papeles de Jesuitas, MS., 391; Ejidos de Mex., MS., 70 et seq.; America, Descrip., MS., 103-4; Certificacion de las Mercedes, MS., 92; Rockwell's Span, and Mex. Law, 405-6; Morelli, Fasti Novi Orbis, 281-3; San Miguel, Segunda Guia, 142-60; Villarroel, Enfermedades, 68-127; Fernando VII., Documentos, 314-27; Lerda de Tejada, Apunt. Hist., no. 5, 388-92; Campillo, Nuevo Sistema, passim; Guerra, Rev. N. Esp., 617-18; Martinez, Libreria, iii. 69-122, 373; Cavo, Tres Siglos, i. 158; Ancona, Hist. Yuc., Zamacois, Hist. Méj., iv. 5-46; V. 290, 579, 600, 625-80; x. 131-25; Pap. Var., v. 39-57; cxlii. 10-12; cliii. 14-55; Zavala, Rev. Mex., 19; Viagero Univ., xxvi. 265-70, 283-4; xxvii. 48; Rivera, Gohernantes de Mex., i. 110, 156, 186, 225, 240-2, 203; Bejamar, Discurso Export., 1-32; Spanish Empire in Am., 10.3-34; Torrente, Hist. Rev., i. 7; Mayer's Mex. Azt., i. 260 1; Alvarez, Estudios Hist., iii. 194, 380-1, 433-4; Ogilby's Am., 263-4; Alaman, Hist. Mex., i.' 25, 44-57, 113-14; iii. 25; Calvo, Annales Hist., i. 1-10; Zamora, Bib. Leg., iv. 214-26, 523-37; Moreno, Reglas Ciertas, passim; Greenhow's Or. and Cal., 104—5; Id., Memoir, 34; Dicc. Univ., viii. 735-6; x. 442-3; Emigrado Observador, 5-24; Zuñiga y O., Calend., 37-46; Young's Hist, of Mex., 61; Guia de Forasteros, 1797, 47-78, 107-135; Gutierrez, Leyes de Ref., 528-36; Ribadeneíra, Compendio, 1-631; Diario Mex., i., passim; ii. 195, 337-9; iii. 491-2; iv. 10-30, 389-90, 407; V. 4, 525-30; vi. 29-31; vii. 418; viii. 108, 214—15, 408-60; ix. 099-70; X. 127, 528; xii. 396, 644; xiii. 27, 152, 267, 416, 700; Gazeta Mex., i. 8-127; ii. 235, 411; iii. 130, 153, 410; iv. 16-92; v. 3-8, 276; x. 106-17; xii. 4; xiv. 160-6.

 

 

1. 'Començados à contar por. . . treinta y nueve, ó por quarenta Grades de longitud Occidental del Meridiano de Toledo, que es por la Boca del Rio Marañon; i por la Oriental, por la Ciudad de Malàca.' Herrera, Descrip. Ind., 2. The question is more fully discussed in Morelli, Fasti Novi Orbis, 281-3, yet with the conclusion, 'linea demarcationis, nondum definitum est.'
2. Text of decree in Recop. Ind., i. 523.
3. For the history and rules of this body see Hist. Cent. Amer., i. 280-2, this series.
4. As declared by supreme order of 1571. Sees were to correspond to gubernatorial provinces, and so forth. Remesal. Hist. Chyapa, 632.
5. The creation, jurisdiction, and composition of each may be found in Recop. de Ind., i. 323 et seq.; Zamora, Bib. Leg. Ult.,i. and passim.
6. As will be explained in the chapter on finance.
7. Florida was subject to no audiencia, owing to its distance.
8. As explained in another chapter.
9. The alcaldes mayores of New Spain under Cortés were merely intrusted with judicial matters, as we have seen; later those of San Luis Potosi and other places acted also as lieutenants for captain-generals, and exercised in other respects the duties and ceremonies of governors. The term therefore does not always convey a clear idea of what the dignity consisted. Corregidores were intended to replaee encomenderos when the Indians fell to the crown, as explained in Hist. Mex., ii. 329-30, but alcaldes mayores undertook similar duties.
10. As fully explained in Hist. Cent. Am., i. 250-1, this series. See also Recop. Ind., i. 344, 368, 512, ii. 163 et seq.
11. Revilla Gigedo states that only 28 towns in New Spain had two alcaldes toward the end of the eighteenth century. Instruc., 18. Some places had increased the number to three, but this was checked.
12. None to be reëlected within two years. In one place the Recop. Ind., ii. 31, 129, has it three years. The district governor or his superior confirmed the election. In the Provincias Internas the militia captains were in later times made perpetual alcaldes, the lieutenants regidores, and sergeant procurador.
13. Revilla Gigedo, Instruc., 35-6. The other regidores could not engage in trade. Their duty was to supervise markets, shops, streets, movements of population, and the like. In case of death the alcalde was succeeded by a regidor.
14. These were appointed by governors, alcaldes mayores, or alcaldes, and existed also in Indian villages, where alguaciles mayores did not figure.
15. The councils were held on January 16th and August 31st, in convenient places, and must be attended by at least five hermanos de la mesta, a dignity to which every owner of 300 head of small stock and 20 mares or cows was entitled. Recop. hid., ii. 135-8.
16. For this and other features connected with formation of towns see Hist. Cent. Am., i. 496-8, this series.
17. Fieles executores shared in certain trusts and supervised the honesty of dealers, particularly in provisions.
18. Drafts on these funds must not exceed 3,000 maravedis, and salaries could not be assigned thereon without superior permit; yet they could be drawn upon for royal celebrations—not for the reception of prelates and other dignitaries. Yet much money was spent on suits and display.
19. Under Revilla Gigedo's energetic rule. Since 1776 repeated orders had come to enforce street lighting, first on the part of well-to-do citizens and shopkeepers, later by systematic levies on the part of the ward alcaldes. All this failing, the city council was given the control, and lamps were erected at a cost of 35,429 pesos, the annual expense for oil and labor being about 24,000 pesos, covered by a tax of three reals on each cargo of flour, which yielded 30,000. Eight corporals supervised the lighting. Bevilla Gigedo, Instruc., 71-3. The ordinary revenue of the city came to nearly half a million. Id., 38. Villa-Señor specifies different sources and amounts. Teatro, i. 53-6.
20. Id., 73-4; Guijo, Diario, in Doc. Hist. Mex.0, série i. tom. i. 412-13.
21. Though they may own land there. Travellers could stay two days, traders not over three.
22. A medium-size village had two regidores, and one of 40 to 80 Indians only one alcalde and one regidor.
23. No ordinary judge could seize a cacique, except for grave offence. No mestizo could hold this dignity. Recop. Ind., ii. 245-9; Zamora, Bib. Leg. Ult., i. 152 et seq.; Icazba'ceta, Col. Doc., ii. 1-24.
24. In suits before the audiencia the fiscal defended one party, the protector the other. Recop. lnd., ii. 243. The protector and defensor offices were suppressed in 1582, but revived a few years later.
25. For its support a tax of half a real was levied on each Indian. Id., 200. A clerk and relator assisted. Azanza, Instruc., MS., 11. The oidor received 400 pesos a year for this extra duty. Indians could freely give powers of attorney so as to avoid appearance in person.
26. The audiencia appointed the needed clerk and collector. Recop. Ind., ii. 214 et seq.
27. Of 70 viceroys in America only three were creoles, accidentally so in being born of officials; and of 600 captain-generals only 14. In 1808 only one bishopric and a few canonries were held by creoles in Mexico. Alaman, Méj., i. 12-13.
28. The liberal Cárlos III. sought to remedy this injustice in a measure, but the effort did not prove lasting.
29. Even the temporary appointment of governors was in certain cases withheld from him, but he had a number of alcaldías mayores and other grades at his entire disposal. The governor of a province could appoint temporary treasure officials, but his selection might be set aside by the president of an audiencia, and his by the viceroy, who again had to yield to the sovereign. Recop. Ind., i. 525-6.
30. It was declared that persons of merit should not suffer from the rule, and this sufficed to open the gate for evasion. A papal decree of 1739 condemns the restrictions against breeds as excessive. Morelli, Fasti Novi Orbis, 564-5.
31. Form of application may be found in Doc. Ecles. Mex., MS., iv. pt. 6.
32. Three years by decree of 1687. Ordenes de la Corona, MS., i. 88. Calle gives the form for despatching confirmations and titles. Mem. y Not., 173-5.
33. During the seventeenth century the Recop. Ind., ii. 114—16, instances the following: corregidor of Mexico, 500,000 maravedis; governor and captain-general of Yucatan, 1,000 pesos de minas; corregidor of Vera Cruz, 1,000 pesos; alcalde mayor and captain of war at Acapulco, 1,000 ducados; alcalde mayor of Tabasco, 300 ducados; Guadalajara governor and president, 3,500 ducados; governor and captain-general of Nueva Vizcaya, 2,000 pesos de minas, and corregidor of Zacatecas, 1,000.
34. By decree of 1790 those with less than 400 pesos were exempt, and this limit being shown to be too low for decently supporting the official, a decree of 1792 raised it to 1,000, with a partial reduction on amounts less than 2,000. Revilla Gigedo, Bandos, no. 72.
35. The Mexican treasury had to supply funds for the Philippines and other quarters when their treasuries were empty.
36. Recop. Ind., ii. 581 et seq.
37. Yet a decree of 1646 decided that pay must be allowed only from date of taking possession. Id., 255. Salaries stopped with death. No deduction was made during sickness or justified absence.
38. The sources were a half month's pay, a small regular percentage, also salaries accruing during vacancies, termed vacaciones; also deductions from certain offices, called quitas, and other sources. From the latter came special pensions for meritorious persons. For particulars see Fonseca, Hist. Hac., vi. 97 et seq.; Mex. Legis., April 1853, 31 et seq.
39. Certain treasury officials had to deposit one fifth of their pay as additional bond.
40. Brides even of subalterns had to bring 3,000 pesos fuertes. Revilla Gigedo, Bandos, no. 5.
41. For details see Recop. Ind., ii. 548-59; Fonseca, Hist. Hac., iii. 62 et seq.; Calle, Mem. y Not., 178-9.
42. Id., 7.
43. Recop. Ind., ii. 555-6.
44. It was specially decreed, for instance, that the positions of regidores should be given at lower rates to deserving men.
45. Further instances in Calle, Mem. y Not., 49-51.
46. Credit was not extended over long terms.
47. Communities had in some cases obtained the right to salable offices, and in case of a new incumbent they also must pay the deduction.
48. The transfer must be laid before the governor or other superior authority within 70 days; within 30 days after landing if resignation was made at sea. Royal confirmation of office must be presented within four years, or it would be sold. Cédula, in Pacheco and Cárdenas, Col. Doc., xvii. 369-74.
49. Without return of any part of its value to the late holder. In case of resignation to the crown the deduction is made on the estimated value; and the treasury reaped the benefit from any higher sale price. The office could be attached for debt.
50. Revilla Gigedo recommends fixed salaries for notaries and others, and measures for introducing better men. Instruc., 28.
51. Yet he of San Luis Potosí had this and other honors granted. Arlegui, Chron. Zac., 57-8.
52. Viceroy and audiencia were addressed as vos by the king, but they must use an impersonal form with governors; yet the audiencia called a juez de provincia vos. The viceroy used merced, worship, in addressing the municipality of Mexico. Recop. Ind., i. 638 et seq.; Montemayor, Svmarios, 114-17; Ordenes de la Corona, MS., i. 142.
53. 'Cabo de Tiburón y rio de Congos, por donde confina con las Provincias de Tierra Firme.' Alcedo, ii. 78. Most of the early geographers apply the name of New Spain loosely even to Panamá. Descrip. Amer., 103-4. Thesaurus Geog., ii. 253; Sanson, L'Amér., 17; Luyts, Geog., 708; Apiano, Cosmog., 6-7, 75; Mendoza, Hist. China, 304; Ortellius, Teatrvm, 1-3. The church historian Gonzalez Dávila follows the council division in saying 'Arzobispo de Sto Domingo en Nueva España.' Teatro, ii. 101. Mancera in 1664 applies it as a captain-generalcy to a rather limited space. Doc. Inéd., xxi. 490-3; Medina, Chrón. S. Diego, 227. The subordination of the different audiencias to the viceroyalties of Peru and Mexico is explained in Recop. de Ind., i. 339, ii. 114-16 etc.; Laet, Novus Orbis, 220. During the temporary transfer of the Guatemala audiencia to Panamá. in 1563 a Ime from bay of Fonseca to Ulua River formed the south border, Gracias á Dios town belonging to New Spain. Reales Céd., in Pacheco and Cárdenas, Col. Doc., xvii. 532.
54. As explained in Hist. Mex., ii. 279. The boundary question is discussed in Hist. Cent. Am., ii. 713-15 (note 39), this series.
55. Alcedo, ii. 79, implies that the whole region from Costa Rica northward contained only 128 alcaldías mayores and corregimientos, but Villa-Señor, Teatro, i. 26, writing in 1746, 40 years earlier, mentions 149 alone in four out of the six sees of New Spain proper. The provinces underwent changes in number and limits.
56. He took cognizance in first instance of Indian cases, and indirect cognizance in the sessions of the civil, fiscal, and others, as Azanza explains in his Instrucciones, MS., 11. The pardoning power was greatly restricted by a decree of 1054. Montemayor, Svmarios, 100. See also Recop. de Ind., i. 373.
57. Every Thursday he presided over the treasury council, and directed the steps for increasing revenues. Yet he could not grant exemption from tribute, or dispose of funds save in extraordinary cases. He might send officials to investigate the management of collectors' departments. His power in this respect was similar to that of the superintendente general de real hacienda in Spain. Beleña, i. 333.
58. Calle gives a list of them with their values. Mem. y Not., 100, 105-8. Their number varied at the pleasure of the king, and to some viceroys special permission was issued to confer a certain number on 'servants and adherents,' which otherwise could not be allowed. Reales Cédulas, MS., ii. 237. The power to appoint governors ad interim of the Philippines was at times withdrawn. Doc. Inéd., xxi. 402-3.
59. Or rejecting all. This privilege had much to do with the frequent and bitter quarrels between the political and ecclesiastical chiefs.
60. The military system will be considered in connection with the forming of the standing army. Revilla Gigedo comments on the captain-generalcy as the most important of the offices. Instruc., 129.
61. The power to so determine was granted only in later times. The privilege to follow his own decision in most cases served greatly to exalt the viceregal authority, as intended.
62. A source of regret, says Revilla Gigedo, since communication with Spain had become so easy as to allow the sovereign to interfere in case of mistakes on the part of his representative. Instruc., 4.
63. By cédula of 1778 the assistants of the department were increased to eight, called officiales, with a porter. The pay of the youngest was 450 pesos. Ordenes de la Corona, MS., i. 151; Disposiciones Varias, i. 33. The audiencia secretaries could also be called upon. In secret affairs a private secretary might be employed. The annual appropriation for stationery was in 1758 fixed at 400 pesos. Certif. Mercedes, MS., 92. In less important matters the viceroy could abbreviate his signature to media firma.
64. The details of observances are given in Recop. de Ind., i. 632-4. Prelates could use train-bearers, but not on appearing before the viceroy. At Mexico he must dine only with his family, and observe other exclusiveness; but out of the capital greater freedom was enjoyed. Humboldt, Essai Pol., ii. 802.
65. Rules are laid down for the deference to be observed by different officials, an alcalde for instance being allowed to sit only on the carriage step. Montemayor, Svmarios, 117-18 et seq. The coach was drawn by six mules, and other coaches stopped as it passed, their male occupants rising to salute. Estalla, XXV. 295.
66. In order to swell his importance he was made general of the fleet conveying him to New Spain, free passage being provided for all his retinue within reasonable limits. Only his unmarried daughters or very young sons could accompany him, lest he should be induced to provide near relatives with positions.
67. Occasionally Tlascala was omitted, and on one or two occasions Pánuco served as landing-place. Special receptions were tendered by the clergy at the principal church.
68. Chapultepec or Guadalupe was also selected, but toward the end of the last century San Cristóbal came to be the meeting-place. Beleña, i. 360.
69. A chaplain having first removed the silver spurs of the great man. Estalla, XX vi. 293-5.
70. Ordenes de la Corona, MS., i. 9 et seq. Calle shows that the pall was allowed to certain viceroys. Mem. y Not, 57. In Peru the expenditure was extended to 12,000 pesos. For additional features connected wth the entry and assumption of government see Hist Mex., ii. 379, this series. Panes describes the ceremonies at towns on the way to Mexico. Vireyes, MS., 125-8. In Montemayor, Sumarios, 161, is given the form for taking the oath of office.
71. The viceregal chair or throne in the audiencia chamber could not be occupied by the oidor who took his place as president.
72. Of 30 men with captain and lieutenants, created in 1792. The guard of honor consisted of a captain, a lieutenant, 3 non-commissioned officers, and 20 halberdiers, with a monthly pay of 16 pesos or more, the captain alone receiving double pay, and later that of infantry captain. The men paid for their uniform and arms. Their allowance came from vacated encomiendas and other sources. The viceroy of Peru had a guard of 50 with three hundred pesos a year.
73. The amount varied. Calle mentions 16,000 ducats' worth of effects, besides 8,000 in plate, and an annual importation for the household to the value of 4,000 ducats. Mem. y Not., 56-7. A year's pay was allowed till 1766 for going and returning to the post. Boletin, i. 360. See also Hist. Mex., ii. 37 6, this series. One fifth of the 60,000 was allowed for the office of captain-general, and exempt from the anata deduction. The ruler at Lima had larger pay and more privileges.
74. The preference in selecting servants should be given to descendants of conquerors. The yearly expenditure for palace repairs must not exceed 10,000 pesos. Reales Cedulas, M.S., ii. 115. An account of the rooms occupied by the viceregal suite in 1771 is given in Vireyes Instruc., MS., pt. vii. 1-3.
75. They could give preference in the sale of quicksilver, or favor traders for places and goods. Gage assumes that some of them made a million a year, and bribed courtiers in Spain to procure an extension of time. Voy., i. 224. On birthdays of the viceroy's consort, carriages, gold chains, and other costly presents flowed in from all directions, an incentive being given to donors bj' inviting them to comedy representations at the palace. Guijo, in Doc. Hist. Mex., série i. tom. i. 482-3.
76. Cédulas of 1555, 1663, etc. Recop. de Ind., i. 56.
77. Among others Velasco the younger. Mendoza ruled nearly 15 years; and three others from 12 to 14 years.
78. Equivalent to about a year's salary.
79. Under penalty of a year's pay. Yet many failed to comply, says Mancera, Instruc., in Doc. Inéd., xxi. 439; perhaps verbal communications with the successor were deemed sufficient.
80. 'Los Oydores. . . no entren con luto en los estrados de la Audiencia.' Montemayor, Sumarios, 115.
81. A document kept under seal, wherein the king named a successor in case of accident to the incumbent of this office.
82. During later years the military sub-inspector assumed control of his department. Ordenes de la Corona, MS., iii. 158. Cédulario, MS., iii. 57 et seq. The archbishop had more than once been called to the office; but by cédula of 1739 the succession was declared inadvisable. The oidores during their rule had to furnish monthly reports of proceedings and were restricted in appointing officials and other privileges. Reales Cedulas, MS., i. 33-4.
83. They could report also on the conduct of the viceroy, assembling for such purpose without his intervention. Montemayor, Svmarios, 101.
84. 'Se olvidan, o se mueren los presos en la carçel antes que Llegue la exsecucion.' Velasco, Carta, in Cartas de Indias, 266.
85. Such as the relatores, who made the brief; the escribanos, or clerks of the court with his aids; receptores, receivers or treasurers, with as many as 24 deputies, whose positions were salable; repartidores, assessors and distributors; tasadores, appraisers; procuradores, proctors, as many as 12, salable positions; interpreters, and messengers. Recop. de Ind., i. 443 et seq. Villa-Señor, Theatro, i. 37, et seq. The fund for paying the minor court attachés came from the half grano tax on pulque, which was too small. Revilla Gigedo, Instruc., 30.
86. Yet the viceroy could still decide on the formation of certain courts, and the assignment of oidores to certain duties. Regulations concerning this office are given in Zamora, Bib. Leg. Ult., v. 297, et seq.; Beleña, Recop., ii. 360.
87. A sort of third court was formed for intestate cases.
88. Revilla Gigedo objected to this reduced number of oidores as excessive, and considered the regente superfluous. Instruc., 15-17; Zamora, i. 453.
89. For date of creation and duties, see Recop. de Ind.; Zamora, i. 172; Beleña, etc. The regulations for audiencias in general have been fully considered in Hist. Cent. Am., i. 270-3. Special and minute rules for conscience and conduct are given in Moreno, Reglas, 59 pp., Mexico, 1637. Annotations etc. in Leges Varias, Anot., 31 etc.; Providencias Reales, MS., 29 et seq.
90. For oidores, alcaldes, and fiscales; the regente had 9,000, the relatores 700, and fiscales' aids 800. Mex., Circular Nomb., MS., pt. 7. In 1558 the oidores' pay had been increased from 650,000 maravedis to 800,000. Puga, Cedulurio, 20.3. The criminal fiscal was generally promoted to the civil department. The civil relatores had in Calle's time 500 pesos de oro pay, and 250 in fees, but the criminal relatores had only 500. The porteros had 400 ducats. The last two classes were appointed by the president of the Lidia Council. Mem. y Not., 47.
91. An allowance of 12 pesos a day was granted for visiting duty. Ordenes de la Corona, MS., iii. 57-8, 164. Oidores should properly go only in graver cases, and resident judges must be employed whenever possible. Recop. Ind., 346-7. The appointment was frequently made by the viceroy. One supervised the theatre; another the lottery, the cruzada, the drainage, or other department.
92. It was 200,000 maravedis in Calle's time. Mem. y Not., 132. City notaries had to be visited every year
93. Ejidos de Mex., MS., 70, etc. The viceroy on giving them audience was not expected to listen to them seated. Cedidario, MS., iii. 10.
94. They and the royal officials sat on the right, or evangel side, the municipality on the left, or epistola side; the viceroy between them in special chair with cushion, a piece of furniture not allowed in official or public capacity to any one else, unless to the oidor ruling ad interim. The oidores could use only carpet and chair.
95. All had to pass an examination. Recop. Ind., i. 443 et seq.
96. Puga, Cedulario, 134, 161, 180. Yet neither should interfere too much. Excesses on the part of military officers could be punished by this audiencia, and when visitadores were needed in Nueva Vizcaya the viceroy should merely nominate them, leaving the appointment to the superior experience of the tribunal nearer the province. Recop. Ind., i. 367.
97. Cedulario, MS., iii. 9-10; Humboldt, Essai Pol., i. 146. See also Hist. North Mex. States, i., this series.
98. Id., 372 Yrolo, Opera, Mex. 1605, 4to, is a curious old book devoted wholly to forms for legal and public documents. It is full of marginal notes, illustrated with floriated capitals.
99. At Mexico the five audiencia alcaldes attended to cases of first instance, and Revilla Gigedo objects to her two alcaldes ordinaries as useless, yet each of her eight cuarteles had four alcaldes de barrio who possessed a certain cognizance and supervision.
100. This right of exemption from ordinary jurisdiction was known as fuero. He also objected to the privilege of Cortés' heirs to appoint on their estate alcaldes mayores and corregidores who took cognizance, with appeal to the juez de privado del estado, an oidor, and finally to the audiencia. Instruc., 24-8. The dukedom of Atlixco had similar privileges. Sailors fell partly under the jurisdiction of the governor of Vera Cruz and the comisario de marina at San Blas.
101. The auditor of Vera Cruz acted merely as asesor. Id., 22.
102. Appeals from fieles executores in cases not exceeding 30 ducats went to the municipal council; if over that amount, to the audiencia. No reconsideration was allowed in values of 6,000 maravedís appealed to the audiencia.2
103. Divided between the defendants, the judges, and the royal treasury. In appeals from the casa de contratacion to the India Council, the civil suit must be for not less than 600,000 maravedís. Recop. Ind., ii. 161 et seq. A law of 1545 changed the lowest value for appeal from audiencias from 10,000 to 6,000 pesos. Puga, Cedulario, 101-2.
104. The clerk of the court receiving in such cases only half a peso from each party.
105. Certain implements, horses, and what not were exempt in instances. In Mexico, Aranzales de los Tribunales, Gobierno, etc., Mex. 1759, 158 folios, are given the fees for all public departments.
106. Statisties of crime are very imperfect, yet valuable deductions may be drawn from those in Gazetas de Mex., 1790-2, v. Set seq., and Diarios, Mex., xii.-xiii. passim, and other volumes such as the earlier Gomez, Diario, which gives almost daily accounts of executions.
107. Special orders were issued at intervals to regulate the assistance by military. Fernando, vii., Doc., 314-27.
108. A mere glance at the lengthy tariff published by the government in the beginning of this century, in the Gazeta, xi. 67-72, reveals the pitiful extent of such mercenary abuse.
109. Yet it was ordered that the poor should not be detained for costs, taxes, or prison fees. Indians were exempt from fees. Each town or village must have a prison built by the community, or from penalty funds, with chapel and separate place for women. The alcayde or keeper must reside at the jail, and with his turnkey visit the prisoners every night. No Indians must be employed. Recop. Ind., ii. 370 et seq. A charity fund existed for the maintenance of prisoners. Revilla Gigedo, Instruc., 30.
110. Also on great holidays, and oftener if required.
111. A man and woman were sold to obraje labor for six years for concealing stolen goods, Robles, Diario, 376-7. At least one third of the pay must be given for sustenance, but no new loans could be contracted whereby the servitude was prolonged. Four months formed the limit in ordinary cases. For drunkenness no servitude should be imposed. Cedulario, MS., iii. 205-11.
112. Recop. Ind., ii. 379.
113. For restrictions, see Ordenes de la Corona, MS., i. 187-92; criminals who enlisted for the Moluccas received both pardon and high pay, 125 pesos. Robles, Diario, ii. 230-2.
114. Gazetas Mex. (1790), iv. 62.
115. 'Quemado con una yegua, complice de su bestial crimen.' Id., 1787-9, ii. 411, iii. 410. Sodomites were also burned. Robles, Diario, 99, 110-11, 135-6, 157, 222, 271; Guijo, Diario, in Doc. Hist. Mex., série i. tom. i. 38-9, 307, 371-2.
116. Guijo, Diario, 38-9.
117. 376-7. In execution of what they considered duty, the alcaldes in many instances braved the episcopal anathema by taking fugitives from the sanctuary.
118. For plebeians. Nobles had a black robe, the scaffold being also draped, and they were exempt from the ignominious noose.
119. A figurative fulfilment of the sentence that the body be cast to the waters so as to leave no memory of the deed. Diario, Mex., 1806, ii. 337-9.