[V-4] 'Por justas causas, y consideraciones conviene, que en todas las capitulaciones que se hicieron para nuevos descubrimientos, se excuse esta palabra conquista, y en su lugar se use de las de pacificacion y poblacion, pues habiéndose de hacer con toda paz y caridad, es nuestra voluntad, que aun este nombre interpretado contra nuestra intencion, no ocasione, ni dé color á lo capitulado, para que se pueda hacer fuerza ni agravio á los Indios.' Recop. de Indias, ii. 2.
[V-5] The best proof of the policy of Spain in regard to the natives of the New World is found in her laws upon the subject. Writers may possibly color their assertions, but by following the royal decrees through successive reigns we have what cannot be controverted. The subject of the treatment of the Indians occupies no inconsiderable space in the Recopilacion de Leyes de las Indias. At the beginning of tit. x. lib. vi. is placed a clause of Isabella's will, solemnly enjoining her successors to see that the Indians were always equitably and kindly treated; and this was the text for future legislation. And now let us glance at the laws; I cannot give them all; but I can assure the reader they are of one tenor. First of all the natives were to be protected by the ecclesiastical and civil authorities. They might marry freely, but always in accordance with Christian usage; must not be taken to Spain; must be civilized, Christianized, taught to speak Spanish, and to love labor, if possible; they might sow seed, breed stock, keep their ancient market-days, buy and sell at pleasure, and even dispose of their lands, only the Spaniards were not allowed to sell them arms or alcoholic liquors. The Inquisition could not touch them, for in religious matters they were subject to the bishop's jurisdiction, and in cases of witchcraft to the civil power. They might have their municipal organizations in imitation of the Spanish town government, with their alcaldes, fiscales, and regidores, elected from among themselves to serve for one year, elections to be held in the presence of the priest. It was made the duty of priests, prelates, all officers of the government, and in fact every Spanish subject, to watch over and protect the Indians. Governors and judges were charged under the severest penalties to see justice done them. Two officers were created at an early day for this purpose, those of protector and defensor, the former having general oversight of the natives and their interests, and the latter appearing in their behalf in court. After a time, when it was thought the aborigines could stand alone, the offices were abolished. But the action was premature, and in 1589 Philip II. ordered them revived. These officers were appointed by the viceroys and president-governors. Indians might appear in courts of law and have counsel assigned them free of any cost; and even in suits between the natives themselves there was to be no expense, the fiscal appearing on one side, and the protector on the other. Philip also gave notice in 1593 that Spaniards who maltreated Indians were to be punished with greater rigor than for badly treating a Spaniard. This was a remarkable law; it is a pity the Puritans and their descendants lacked such a one. Indians might be hired, but they must be paid promptly. They might work in the mines, or carry burdens if they chose, but it must be done voluntarily. Enforced personal service, or any approach to it, was jealously and repeatedly prohibited. Indians under eighteen must not be employed to carry burdens. Let those who sneer at Philip and Spain remember that two centuries after this England could calmly look on and see her own little children, six years of age, working with their mothers in coal-pits. There were many ways the Spaniards had of evading the just and humane laws of their monarchs—instance the trick of employers of getting miners or other laborers in debt to them, and keeping them so, and if they attempted to run away interpose the law for their restraint. It was equivalent to slavery. A native might even sell his labor for an indefinite time, until Felipe III. in 1618 decreed that no Indian could bind himself to work for more than one year. The law endeavored to throw all severe labor upon the negro, who was supposed to be better able to endure it. The black man was likewise placed far below the red in the social scale. It was criminal for a negro or mixed-breed to have an Indian work for him, although voluntarily and for pay; nor might an African even go to the house of an American. The law endeavored to guard the Indian in his privacy, as well as in his rights. It studied to make the lot of the aboriginal as peaceful and comfortable under Christian civilization as under heathen barbarism. More it could not do; it could not do this much; after the pacifying raid through the primeval garden, all Europe could not restore it. But Spain's monarchs did their best to mitigate the sufferings caused by Spain's unruly sons. The cacique might hold his place among his people, and follow ancient usage in regard to his succession, but he must not enslave them, or inflict upon them the ancient cruel customs, such as giving Indian girls in lieu of tribute, or burying servants with their dead masters. And these petty rulers must stay at home and attend to their affairs; Indians could not leave one pueblo to take up their residence in another, and caciques could not go to Spain without special license from the king. The natives were ordered to live in communities, and have a fixed residence, and their lands were not in consequence to be taken from them. They must not ride on horseback, for that would make them too nearly equal to the cavalier in battle; they must not hold dances without permission, for then they might plot conspiracies, or give themselves up to serve heathen gods as of old; they must not work in gold or silver, an illiberal restriction which lost to the world the finest of America's arts. Spaniards could not place a cattle rancho within 1½ leagues of a native pueblo; or swine, sheep, or goats within half a league; the Indians might lawfully kill cattle trespassing on their lands. In a pueblo of Indians neither Spaniard, nor mulatto, nor negro should live. No traveller might spend the night at the house of a native if an inn was at hand. No Spanish or mestizo merchant might remain in an Indian pueblo more than three days, nor another white man more than two days. Beside the property of individuals each Indian pueblo had some common property, and a strong-box in which the community money and title-deeds were kept. Caciques must not call themselves lords of pueblos, as that detracted from royal preëminence; they must be called caciques simply. The cacique must not attempt feudal fashions; he must not oppress his people, or take more than the stipulated tribute; and he who worked for the cacique must be paid by the cacique. In criminal matters the jurisdiction of caciques over their people could not extend to death or mutilation. On the other hand a cacique could not be tried by the ordinary Spanish justice of the peace, but only by the judge of a district. The last four laws were made by Charles V. in 1538. And beside these were many other edicts promulgated by the Spanish monarchs during two and a half centuries, notable for their wisdom, energy, and humanity. By the continued outrages and excesses of their subjects in the New World the temper of the crown was often severely tried. Thus was found written by Felipe IV. with his own hand, on a decree of the council ordering the immediate suppression of all those infamous evils practised in spite of laws against them, a sentiment which was fully reiterated by his son Cárlos II. in 1680:—'I will that you give satisfaction to me and to the world concerning the manner of treating those my vassals,' so reads the writing; 'and if this be not done, so that as in response to this letter I may see exemplary punishment meted offenders, I shall hold myself disobeyed; and be assured that if you do not remedy it, I will. The least omissions I shall consider grave crimes against God and against me; the evil conduct tending as it does to the total ruin and destruction of those realms whose natives I hold in estimation; and I will that they be treated as is merited by vassals who serve the monarchy so well, and have so contributed to its grandeur and enlightenment.' See further, Tapia, Hist. Civ. Española, passim; Cogolludo, Hist. Yucathan, 71-3; Ramirez, Vida Motolinia, in Icazbalceta, Col. Doc., i. lxvi.; Las Casas, Carta, in Pacheco and Cárdenas, Col. Doc., vii. 290-338.
[V-6] Twenty-five pounds. The Spanish pound is a little more than the English pound. There are four arrobas in a quintal.
[V-7] Repartimiento, a distribution; repartir, to divide; encomienda, a charge, a commandery; encomendar, to give in charge; encomendero, he who holds an encomienda. In Spain an encomienda, as here understood, was a dignity in the four military orders, endowed with a rental, and held by certain members of the order. It was acquired through the liberality of the crown as a reward for services in the wars against the Moors. The lands taken from the Infidels were divided among Christian commanders; the inhabitants of those lands were crown tenants, and life-rights to their services were given these commanders. In the legislation of the Indies, encomienda was the patronage conferred by royal favor over a portion of the natives, coupled with the obligation to teach them the doctrines of the Church, and to defend their persons and property. It was originally intended that the recipients of these favors were to be the discoverers, conquerors, meritorious settlers, and their descendants; but in this as in many other respects the wishes of the monarchs and their advisers did not always reach the mark. The system begun in the New World by Columbus, Bobadilla, and Ovando was continued by Vasco Nuñez, Pedrarias, Cortés, and Pizarro, and finally became general. Royal decrees upon the subject, which seemed to grow more and more intricate as new possessions were pacified, began with a law by Ferdinand the Catholic in 1509, reiterated by Philip II. in 1580, to the effect that immediately upon the pacification of a province the governor should divide the natives among the settlers. The natives thus distributed were held for a term of years, or during the life of the holder, or for two or more lives—that is, during the life of the first holder, and that of his heir, and perhaps that of his heir's heir, or until the king should otherwise decree. Solorzano, De Indiarum Jure, ii. lib. ii. cap. i.; Acosta, De Procur. Ind., iii. cap. x. When by this course three fourths of certain populations had been 'recommended' to their death, at the representation of Las Casas, the king in 1523 decreed that 'as God our lord had made the Indians free,' they must not be enslaved on this or any other pretext; 'and therefore we command that it be done no more, and that those already distributed be set at liberty.' Remesal, Hist. Chyapa, 10. But by this abolition the destruction of the colonies was threatened. Petition followed petition for the restoration of the system, until the king finally yielded. Solorzano, Política Indiana, i. 225. In 1542 encomiendas were again abolished, and again the king was obliged to restore them. Meanwhile every effort possible was made by the crown to prevent abuses. The encomendero must fulfil in person the intention of the law. He must not leave without permission from the governor, and then his duties must be delegated to a responsible agent. If away for four months without permission, his encomienda was to be declared vacant. The encomendero must not hire out any natives, or pledge them to creditors, under penalty of loss of Indians and a fine of 50,000 maravedís. No one could appropriate any natives except those legally assigned. When it was seen how those in office misused their power, in 1530, in 1532, in 1542, in 1551, and in 1563 all civil and ecclesiastical functionaries were forbidden to hold encomiendas; but in 1544 Philip II. excepted from this prohibition tenientes de gobernadores, corregidores, and alcaldes mayores de pueblos. Indians should not be given in encomienda to the daughters of royal officials, or to sons unless married. It was just and reasonable that the savages should pay the Spaniards tribute, for so God had appointed, so the pope had ordained, and the king had commanded; but it was the collection of this tribute only, and not the deprivation of liberty, or of any personal rights, that the encomienda was intended to cover. And for this tax, which whosoever enjoys the boon of civilization must surely pay, the vassal was to receive protection, and the still more blessed boon of Christianity. Nor must this impost under any consideration be made burdensome.
The manner of making assessments was minutely defined by edicts of Charles V. at divers dates from 1528 to 1555, and of Philip II. from the beginning to the end of his reign. In substance they were as follows. The king made responsible to him the viceroys, and the presidents and audiencias, who, by the aid of a commissioner and assessors, fixed the rates in their respective districts. The assessors having first heard a solemn mass of the Holy Ghost, in order to enlighten their understanding that they might justly regard the value of the rental and equitably determine the rate, they were to swear with all solemnity before the priest this to do without bias. They were personally to inspect all the pueblos of the province, noting the number of settlers and natives in each pueblo, and the quality of the land. They were to ascertain what the natives had originally paid to their caciques as tribute, and never make the new rate higher, but always lower, than the old one. For surely they should not be worse off in serving Spain than in serving their heathen lords. After thus carefully examining the resources and capabilities of the tributaries, and never infringing on the comfort of the women and children, the assessors should fix the rate according to God and their conscience. The natives might pay in money if they preferred, but payment should be required only in kind, in whatever produce grew on their lands. They must not be required to raise anything specially for this purpose; and from not over two or three kinds of produce should tribute be taken; a few chickens, or a pig or two, need not be counted at all. It was the intention of the monarchs that from a tenth to a fifth might in this way be taken, though the encomendero too often managed to get twice or thrice as much, or all the natives had. The Indians must be made to understand how the appraisement was made, and that it was not done in the interests of the Spaniards alone. Then the assessor must put in writing what each had to pay, and leave the original with the cacique, giving one copy to the encomendero, and sending one to the Council of the Indies, or to the viceroy, or to the audiencia. For the encomendero to practise extortion, or demand more than the schedule called for, there were pronounced the severest penalties, even to the loss of the encomienda and half his goods. Natives voluntarily coming forward and entering in encomienda were excused from paying tribute for ten years; and, in any event, for the first two years after congregating in pueblos but one half the usual tribute could be legally exacted. Males were taxed after the eighteenth year; caciques, elder sons, women, and alcaldes in office were exempt. After the gift, the encomienda was the property of the encomendero, not to be taken from him before the expiration of his term without cause. In every encomienda there must be a church, and where there was none, the natives must be stimulated to build one, the priest to be paid out of the rental. In every pueblo of 100 or more natives, two or three must be taught to sing, so that they might act as choristers; also a native sacristan—these to be exempt from tribute. In 1568 Philip II. ordered that no encomendero should receive a rental of over 2000 pesos; any excess was to be returned to the crown and employed as pensions. The same monarch directed in 1573 that when an encomienda fell vacant, a viceroy or governor might, if he deemed best, appropriate the rental to benevolent objects, and defer granting it again till the king's pleasure should be known. And again, in 1583, that the encomendero must have a house of his own, built of stone for purposes of defence, in the city of his residence; and he must keep his family there. He should maintain no house in the town of the Indians, nor should he have any building there except a granary. In 1592 it was decreed that Indians in encomienda could be given to none but residents in the Indies. When an encomienda became vacant, so it was decreed in 1594 and subsequently, the fact was advertised for from twenty to thirty days, during which time applicants might prefer their respective claims, and recite services rendered the crown by themselves or their ancestors. Preference was always to be given to the descendants of discoverers and settlers. Two or three small encomiendas might sometimes be joined in one. And never might religious training be forgotten; when the rental was not sufficient for the support of the encomendero and the instructor, the latter must have the revenue. Felipe III. in 1602, 1611, 1616, 1618, and 1620, decreed that as a rule but one encomienda could be held by one person; still more seldom could one be given up and another taken. There was to be no such thing as commerce in them. They were a trust. Much evil had arisen from dividing encomiendas, and it should be done no more. Felipe IV. in 1655 ordered that governors under royal commission and those named by the viceroy ad interim might give Indians in encomienda, but alcaldes ordinarios holding temporarily the office of governor were not allowed this privilege. Recop. de Indias, ii. 249-284 and passim. Finally, toward the close of the seventeenth century, the monarchs, becoming more and more straitened in their need of money, ordered that encomenderos should pay a portion of their revenue to the crown; then a larger portion was demanded; and then the whole of it. In 1721 the system came to an end. But after endeavoring for two hundred years to get back what they had given away, the monarchs found there was nothing left of it, the natives having by this time merged with sometimes slightly whitened skins into the civilized pueblos.
[V-8] It was decreed by the emperor in 1555 that the Casa de Contratacion should have an arca de tres llaves, a chest of three keys; after which the government strong-box became common in Spanish America. It was usually in the form of a sailor's chest, of heavy wood bound with brass or iron, and having three locks fastening the lid by hasps. The strong-box of the India House, the law goes on to say, must remain in the custody of the treasurer, who was responsible for its safe keeping. One of the keys was held by the tesorero, one by the contador, and one by the factor. Out of the hand of any one of these three royal officers his key could not lawfully go; and no one but they might put into the chest or take out of it any thing, under penalty, on the official permitting it, of four times the value of the things so handled. In this box were kept, temporarily, all gold, silver, pearls, and precious stones that came from the Indies on the king's account, or were recovered for him by suits at law brought before the India House in Spain. Recop. de Indias, iii. 17.
[V-9] Oviedo, i. 103, says that when the Jeronimite friars arrived a few days before Christmas, 1516, the jueces de apelacion 'ya se llamaban oydores, é su auditorio ya se deçia audiençia Real.' Herrera, ii. ii. iv., treating of the instructions given the Jeronimites remarks, that it was ordered also that the jueces de apelacion should be submitted to residencia. After that he writes jueces de apelacion, and audiencia indifferently. Las Casas, Hist. Ind., v. 45, treating of events in 1518-20, says 'jueces de apelacion;' relating the occurrences of 1521, 165, 177, he writes 'audiencia,' and 'cuatro oidores.' Writing the king August 30, 1520, Pacheco and Cárdenas, Col. Doc., xiii. 332-48, the court styles itself Real Audiencia, the members signing the communication. In Pacheco and Cárdenas, Col. Doc., xiv. 568, the presidents of this audiencia are given as Luis de Figueroa, 1523; Sebastian Ramirez in 1527; Fuente Mayor in 1533; Maldonado in 1552; Alonso Arias de Herrera in 1560; and in 1566 Diego de Vera, who was sent to Panamá as president when he was succeeded by Doctor Mejía.
[V-10] The word audiencia, from audire, to hear, has a variety of significations in Spanish; meaning, namely, the act of hearing, the tribunal, the courtroom and building, and finally, jurisdiction. Oidor, he who hears, comes from the same root, but is now applied only to the magistrate of an audiencia. The more important general laws governing audiencias in the New World were the following. In 1528 the emperor ordered, and the decree was reiterated in 1548, 1569, 1575, and 1589, that each audiencia should make a tariff of fees of notaries and other officers, which must not exceed five times those in Spain. In 1530 the mandates of this tribunal were made of equal force with those of the king himself. Should any one demand it, decisions in civil suits were to be rendered in one case before another was begun; suits of poor persons always to have preference in time of hearing. Even dissenting judges must sign the decision, making it unanimous. On the first business day of each year, all the members and officers being present, the laws governing audiencias should be read. In 1541 the emperor ordered that in 'first instance' alcaldes, regidores, alguaciles mayores, and escribanos should not be brought before the audiencia; in each pueblo one alcalde should have cognizance of what affected the other, and both of matters concerning its other officers. In 1540, and many times thereafter, the audiencia was charged to look to the welfare of the natives, to watch narrowly the conduct of governors and other officials, and to punish excesses. While in October, 1545, the emperor was at Malines, hence known as the law of Malinas, directions were given for procedure in cases of claims of Indians. Menor cuantía in suits was fixed at 300,000 maravedís; not exceeding this amount two oidores might decide; also in suits of mayor cuantía, except at Lima and Mexico where three votes were necessary as in Spanish law. It was ordered in 1548 that audiencias must not meddle with questions of rank and precedence. In 1551, Saturdays and two other days in the week were set aside, there being no suits of poor persons, for hearing disputes between Indians, and between Indians and Spaniards. More casos de corte, that is important suits taken from lower courts, were not to be admitted by an audiencia of the Indies than was customary in Spain. This was in 1552, and repeated in 1572. In 1553 it was ordered that any person having a grievance against a president or viceroy might appeal to the audiencia, the accused officer being forbidden to preside at such times. If the president was a bishop he was not permitted to adjudicate in matters ecclesiastic. Six years later all petitions presented were to be admitted. Philip II. in 1561 ordered that suits of the royal treasury should have precedence over all others. The year 1563 was prolific in regulations for the audiencia. Where the president of an audiencia was governor and captain-general, the tribunal should not meddle in matters of war, unless the president was absent, or unless specially directed by the crown. In the city where the audiencia is held there must be an Audiencia House, and the president must live there, and keep there the royal seal, the registry, the jail, and the mint; in this house must be a striking clock; and if there be no such building provided, the residence of the president shall in the mean time be so used. On every day not a feast-day the audiencia must sit at least three hours, beginning at 7 a. m. in summer, and 8 a. m. in winter, and at least three oidores must be present. Audiencias must not annul sentences of exile; or, unless bonds for payment are given, grant letters of delay to condemned treasury debtors. The majority decide. The governor, alcalde mayor, or other person refusing obedience to any mandate of the tribunal must be visited by a judge and punished. In exceptional cases only the audiencia might touch the royal treasury. Each audiencia must keep a book in which was to be recorded—where the amount in question was over 100,000 maravedís, or, in other important cases—the verdict of each oidor; and the president must swear to keep secret the contents of this book unless ordered by the king to divulge the same. A book should also be kept in which was to be entered anything affecting the treasury; and another the fines imposed. Audiencias could appoint only to certain offices. Philip II. further ordered during the subsequent years of his reign, that audiencias must keep secret the instructions from the crown; that they must not interfere with the lower courts, or with the courts of ecclesiastics, except in cases provided by law, but rather aid them; that they should register the names of persons coming from Spain, with their New World address; that with such matters as residencias, compelling married men to live with their wives, and the estates of deceased persons, presidents and viceroys should not intermeddle, but leave them to the other members; that they should use no funds resulting from their judgments, but draw on the treasury for expenses; that when an audiencia was to be closed, a governor should be appointed with power to continue and determine pending suits, but he should institute no new suits, and appeals lie to the nearest audiencia; that they should not make public the frailties of ecclesiastics, but examine charges against them in secret; that royal despatches for the audiencia must not be opened by the president alone, but at an acuerdo, and in presence of the oidores and fiscal, and if thought necessary the escribano de cámara must be present; and that they must not remit to the Council of the Indies trivial matters for decision. In subsequent reigns during the seventeenth century it was at various times decreed that a president might impeach an oidor before the Council of the Indies, though he could not send him to Spain, but no oidor might impeach his president except by royal command; that audiencias should exercise their functions in love and temperance, especially during a vacancy in the office of president or viceroy; that in their visits to the jail the oidores should not entertain petitions of those condemned to death by the ordinary justices in consultation with the criminal section of the audiencia, nor should they on such visits take cognizance of anything not specially confided to them; that they should not legitimize natural children, but refer such cases to the Council of the Indies; that each year the president should designate an oidor to oversee the officers and attachés and punish their faults; that no favoritism should be shown appointees of viceroys or presidents; one oidor might transact business, if the audiencia were reduced to that extremity; in arriving at a decision the junior member should vote first, then the next youngest, and so on up to the senior member. This from the Recopilacion de las Indias, i. 323-70. In the Politica Indiana of Solorzano, ii. 271-82, may be found how the audiencias of America differed from those of Spain. Larger powers were given the former by reason of their distance from the throne. They were given jurisdiction in the residencias of the inferior judiciary; they could commission pesquisidores, or special judges, and order execution to issue where an inferior judge had neglected to do so. They had cognizance in matters of tithes, of royal patronage, patrimony, treasury matters, and jurisdiction; they could even fix the fee-bill of the ecclesiastical tribunals, settle the estates of bishops, retain apostolic bulls which they deemed prejudicial to the royal patronage, and they could watch and regulate the conduct of all ecclesiastical officials. In making appointments the viceroy was obliged to take the opinion of the audiencia. Persons aggrieved might appeal from the viceroy to the audiencia. On the death, absence, or inability of the viceroy the senior oidor stood in his place. None of these powers were given audiencias in Spain. This and kindred subjects are treated at great length by Solórzano y Pereira, who was a noted Spanish jurist, born at Madrid in 1575. He studied at Salamanca, and in 1609 was appointed by Felipe III. oidor of the audiencia of Lima. Later he became fiscal and councillor in the Consejo de Hacienda, the Consejo de Indias, and the Consejo de Castilla. He published several works on jurisprudence, the most conspicuous being Disquisitiones de Indiarum jure, 2 vols, folio, Madrid, 1629-39. It was reprinted in 1777, an edition meanwhile appearing in Lyons in 1672. A Spanish translation by Valenzuela was published at Madrid in 1648, and reprinted in 1776. I have used both the Latin edition and the Spanish, but the latter is preferable.
The work is a commentary on the laws of the Indies, wonderfully concise for a Spanish lawyer of that period, and was of great utility at a time when those laws were in chaotic condition.
To conclude my remarks on audiencias in America I will only say that ultimately their number was eleven; and one at Manila, which, like that of Santo Domingo, had a president, oidores, and a fiscal, and exercised executive as well as judicial functions. The eleven, including that of Santo Domingo, were those of Mexico and Lima, each being presided over by a viceroy, and having 8 oidores, 4 alcaldes del crímen, and 2 fiscales; and those of Guatemala, Guadalajara, Panamá, Chile, La Plata, Quito, Santa Fé, and Buenos Ayres. These several audiencias were formed at different times soon after the establishing of government in the respective places. See further, Montemayor, Svmarios, 110-11; Revue Américaine, i. 3-32; Zamora y Coronado, Biblioteca de Legislacion Ultramarina, passim.