History of Central America, Volume 1, 1501-1530 / The Works of Hubert Howe Bancroft, Volume 6

by Hubert Howe Bancroft

[V-11] Irving says 1510. I cannot undertake to correct all the minor errors of popular writers, having neither the space nor the inclination. It would seem that in the present, and like instances, of which there are many, the mistake springs from an easy carelessness which regards the difference of a year or two in the date of the settlement of an island as of no consequence; for Las Casas, and other authorities who agree better than usual in this case, were before Mr Irving at the time he entered in his manuscript the wrong date. Important and sometimes even unimportant discrepancies of original or standard authorities will always be carefully noted in these pages. What I shall endeavor to avoid is captious criticism, and the pointing out of insignificant errors merely for the satisfaction of proving others in the wrong.

[V-12] Maria, widow of Diego, demanded of the audiencia of Santo Domingo for her son Luis, then six years of age, the viceroyalty of Veragua, which was refused. She then carried her claim to Spain, where the title of admiral was conferred on Luis, and many other benefits were extended by the emperor to the family, but the title of viceroy was withheld. Subsequently Luis, having instituted court proceedings which were referred to an arbitration, succeeded in having himself declared captain-general of Española. Shortly before his death he relinquished the claim to the viceroyalty of the New World for the titles of duke of Veraguas and marquis of Jamaica, and gave his right to a tenth of the produce of the Indies for a pension of a thousand doubloons. Luis was succeeded by a nephew, Diego, by whose death the legitimate male line was extinguished. Then followed more litigation, female claimants now being conspicuous, until in the beginning of the seventeenth century we find in the Portuguese house of Braganza the titles the discoverer once so coveted, they being then conferred on Nuño Gelves, grandson of the third daughter of Diego, son of Christopher Columbus, and who then might write his name De Portugallo Colon, duque de Veraguas, marqués de la Jamaica, y almirante de las Indias.

[V-13] The Consejo Supremo de Indias, Supreme Council of the Indies, sometimes termed the Consejo de Indias, or India Council, was a body possessing executive as well as judicial powers, in permanent session at Madrid, and having the same jurisdiction over Spanish colonies in America that was held in Spain by the other supreme councils, especially the Consejo de Castilla. Immediately after its discovery the American portion of the Spanish realm was superintended by the Council of Castile, or by councillors selected therefrom. But with the constantly increasing burden of business the creation of a separate supreme tribunal became necessary. Thus the machinery set in motion by Ferdinand was augmented by Charles, and further improved by Philip, until these vast western interests were watched over with undeviating care. Thence all measures for the government and commerce of Spanish America issued; it was the tribunal likewise of ultimate resort where all questions relating thereto were adjudicated. For many years, however, the India Council had no formal existence. Fonseca; Hernando de Vega, comendador mayor of Leon; Mercurino Gatinara, afterward superintendent of all the councils; a gentleman of the emperor's bedchamber called De Lassao; Francisco de Vargas, treasurer-general of Castile, and others, acted specially at the request of their sovereign. This fact gave rise to errors of date into which several historians fell. Thus Prescott, Ferd. and Isabella, iii. 452, says, copying Robertson, Hist. Am., ii. 358, that the Council of the Indies was first established by Ferdinand in 1511. Helps, Span. Conq., ii. 28—drawing a false inference from a false inference drawn by Herrera, ii. ii. xx., who makes the date 1517—goes on to describe a council for Indian affairs, dating its organization 1518, and of which Fonseca was president, and Vega, Zapata, Peter Martyr, and Padilla were members.

It was the first of August, 1524, that the office proper of the Council of the Indies was created. See Solorzano, Politica Indiana, ii. 394. The decree of final organization may be found in the Recop. de Indias, i. 228. It sets forth that in view of the great benefits, under divine favor, the crown daily receives by the enlargement of the realm, the monarch by the grace of God feeling his obligation to govern these kingdoms well, for the better service of God and the well-being of those lands, it was ordered that there should always reside at court this tribunal. It should have a president; the grand chancellor of the Indies should also be a councillor; its members, whose number must be eight, should be letrados, men learned in the law. There were to be a fiscal, two secretaries, and a deputy grand chancellor, all of noble birth, upright in morals, prudent, and God-fearing men. There must be, also, three relatores, or readers, and a notary, all of experience, diligence, and fidelity; four expert contadores de cuentas, accountants and auditors; a treasurer-general; two solicitadores fiscales, crown attorneys; a chief chronicler and cosmographer; a professor of mathematics; a tasador to tax costs of suits; a lawyer and a procurador for poor suitors; a chaplain to say mass on council days; four door-keepers, and a bailiff, all taking oath on assuming duty to keep secret the acts of the council. The first president appointed was Fray García de Loaysa, at the time general of the Dominicans, confessor of the emperor, and bishop of Osma, and later cardinal and archbishop of Seville. The first councillors were Luis Vaca, bishop of the Canary Islands; Gonzalo Maldonado, later bishop of Ciudad Rodrigo; Diego Beltran; the prothonotary, Pedro Martyr de Anglería, abbot of Jamaica, and Lorenzo Galindez de Carbajal. Prado was the first fiscal. A list of the earlier presidents, councillors, and officials may be found at the end of Descripcion de las Indias Occidentales, in vol. i. Barcia's edition of Herrera.

The jurisdiction of the council extended to every department, civil, military, ecclesiastical, and commercial, and no other council in Spain might have cognizance of any affairs appertaining to the New World. Two thirds of the members must approve of any law or ordinance before it was presented to the king for his signature. In the Recopilacion de las Indias, i. 228-323, is given the legislation on the council to 1680. Philip II. ordered the council to be obeyed equally in Spain and in the Indies. Three members were to constitute a quorum, and sit from three to five hours every day except holidays. For purposes of temporal government the New World was to be divided into viceroyalties, provinces of audiencias, and chancillerías reales, or sovereign tribunals of lesser weight than audiencias, and provinces of the officials of the royal exchequer, adelantamientos, or the government of an adelantado, gobernaciones, or governmentships, alcaldías mayores, corregimientos, alcaldías ordinarias, and of the hermandad, concejos de Españoles y de Indios; and for spiritual government into archbishoprics and suffragan bishoprics, abbeys, parishes, and diezmerías, or tithing districts, and provinces of the religious orders. The division for temporal matters was to conform as nearly as possible to that for spiritual affairs. The council was commanded to have for its chief care the conversion and good treatment of the Indians. The laws made by the Council for the Indies should conform as nearly as possible to the existing laws of Spain. In selecting ecclesiastics and civil officers for the Indies, the greatest care should be exercised that none but good men were sent, and their final nomination must rest with the king. Nepotism was strictly prohibited, and offices were not to be sold. In 1600 Felipe III. ordered that twice a week should be held a council of war, composed of eight members, four of whom were councillors of the Indies, and four specially selected by the king. It was decreed in 1584 that the offices of governors, corregidores, and alcaldes mayores of the Indies, when bestowed on persons residing in Spain, should be for five years; when residents in the Indies were appointed, it should be for three years. Felipe IV. in 1636 ordered that in the archives of the council, beside records, should be kept manuscripts and printed books treating on matters moral, religious, historical, political, and scientific, touching the Indies, all that had been or should be issued; and publishers of books of this class were required by law to deposit one copy each in these archives. Two keys were ordered kept, one by the councillor appointed by the president, and the other by the senior secretary. And when the archives of the council became too full, a portion might be sent to Simancas. It was early ordered that the chronicler of the council should write a history, natural and political, of the Indies, every facility being afforded him; and before drawing his last quarter's salary each year, he must present what he had written. So it was with the cosmographer, who was to calculate eclipses, compile guide-books, prepare tables and descriptions, and give an annual lecture. The regulations governing this august body were most wise, and it was the constant aim of the Spanish monarchs to increase its power and sustain its authority. Its jurisdiction extended over half the world, being absolute on sea and land. By it viceroys were made and unmade, also presidents and governors; and, in ecclesiastical rule, patriarchs, archbishops, bishops, and lesser spiritual dignitaries. His Holiness himself was second here. All bulls or briefs of indulgences issued by the pope must be laid before the Consejo de Cruzada, and pass through the Council of the Indies. The Consejo de Indias continued in Spain till by a law of the Cortes, March 24, 1834, it was abolished, as indeed was the Consejo de Castilla. The judicial functions of the two were vested in the Tribunal Supremo de España é Indias; their executive powers in the Consejo Real de España é Indias, both being created by the same law.

The next most important agency in the management of New World affairs was the Casa de Contratacion, house or board of trade, supreme in commercial matters, save only in its subordination to the Consejo de Indias, in common with every other power below absolute royalty. As before stated, on the return of Columbus from his first voyage, Fonseca, with two or three assistants, was appointed to take charge of the business appertaining to the discovery, the nature or importance of which was then but faintly conceived. This Indian office or agency was established at Seville, with a branch office in the form of a custom-house at Cádiz. But before the expiration of the first decade the New World business had so increased, and the New World dimensions were so rapidly expanding, that it was found necessary to enlarge the capabilities and powers of the India Office; hence by decrees of January 20, and June 5, 1503, was ordered established at Seville the Casa de Contratacion de las Indias, or India house of trade, that commerce between the mother country and the Indian colonies might be promoted. The first cédula ordered the office placed in the arsenal, the second in a building known as the alcazar viejo, and in that part of it called the cuarto de los almirantes, or admirals' quarters. The board consisted of a president, three royal officers, or judges, to wit, treasurer, auditor, and factor; also three judges bred to the law; one fiscal, and other lesser officers and attendants. Among the first to serve, beside Fonseca, were Sancho de Matienzo, a canon of Seville, treasurer; Francisco Pinelo, factor, or general agent; and Jimeno de Berviesca, contador, or auditor. By law those three officers were to reside in the building; and were to despatch all ships going to the Indies, and receive all merchandise coming thence. In all which they were scrupulously to respect the agreement made with Columbus by the sovereigns. They were, moreover, to proclaim that licenses for discovery and trade would be given, under just conditions, to all seeking them and filing commensurate bonds. See Nueva España, Brev. Res. MS.; Veitia Linage, Norte de la Contratacion; Recop. de Indias; Solorzano, Pol. Ind.; Zamora y Coronado, Bib. Leg. Ult.; Young's Hist. Mex., 40-6; Democratic Review, i. 264-9; Walton's Exposé, 24; Niles' S. Am. and Mex., 65-8; Revolution in Sp. Am., 5-6; Purchas, His Pilgrimes, iv. 916-17. An officer appointed by the king resided at Cádiz to despatch vessels under the supervision of the Casa de Contratacion. The India House was a court of judicature no less than a board of trade; it had cognizance in all civil, criminal, and commercial questions arising from the traffic of Spain with the Indies, appeal being to the Council of the Indies. I will mention a few only of the more important of the many minor orders regulating this board. The volume and variety of its business rapidly increased from year to year. In 1510 Diego Colon was instructed to inform its officers concerning all that he should write to the king. The board was obliged to possess itself of the minutest knowledge concerning New World affairs, and of persons asking permission to go thither, and in the execution of its duties it was not to be interfered with even by royal officers of high rank. The actual powers conferred on the three officials first named by Queen Juana are not given by any of the chronicles, or collections of laws, which I have examined. Indeed, the powers and jurisdiction of the board were never clearly defined until the issuing of the ordinances of the 23d of August, 1543, known as the ordenanzas de la casa, and which should not be confounded with the ordenanzas of other years. Every day but feast-days the board should meet for business, and remain in session for three hours in the forenoon, and on the afternoons of Mondays, Wednesdays, and Fridays for the despatch of ships. Absence involved primarily loss of pay, and finally loss of office. If this be not time sufficient for the business, they must take more time. The president and judges together should transact the business; a judge might not act singly except upon a matter referred to him by all. The notary should keep in his book an account of the hours of absence among the officers. Before the platform on which sat the judges, benches were ordered placed for the convenience of the visitadores, or inspectors of ships, and such other honorable persons having business there as should be invited by the tribunal to sit. The authorities of Seville should not interfere in the trial and punishment of crimes committed on board ships sailing to and from the Indies. If the penalty was death or mutilation, the offender was to be tried by the three judges, members of the board, learned in the law. In the civil suits of private persons, appertaining to the Indies, litigants were given the option of bringing their disputes before the judges of the India House, or before the ordinary justice of Seville. Disputes arising from shipwreck, loss of cargo, and frauds connected therewith, were all brought before the India House. Traders to the Indies residing in Seville were authorized to meet and elect a prior and consul, or consuls, which consulate should be called the Universidad de los Cargadores á las Indias, and hold their meetings in the Casa de Contratacion. No foreigner, his son or grandson could so hold office. This consulate had cognizance in disputes between these merchants and factors in matters relative to purchases, sales, freights, insurance, and bankruptcy, all being subordinate to the regular tribunal of the India House. Appeals were from the consulate to one of the regular judges selected annually to that duty. The consulate could address the king only through the Casa de Contratacion, and government despatches from the Indies must be forwarded by the board. As justice alone was the object of these merchants, and not chicanery, or the distortion of evidence, parties to suits before the consulate were not allowed lawyers. That harmony might be maintained, the Casa de Contratacion should carry out the orders of the audiencia de grados of Seville, if deemed conformable to law, and to existing regulations of the board. Communications from the board to the king must be signed by the president and judges conjointly, and no letter must treat of more than a single subject. All gold, silver, pearls, and precious stones coming from the Indies were first to be deposited in the India House, and thence distributed to the owners. The king's share was to be placed in a safe with three keys, or if this was too small, then in a room having three keys. Other safes were to be kept, one for each kind of property. Accounts of receipts at the India House were to be rendered the king every year. The board must render an annual statement of its expenditures on religiosos sent to the Indies. Felipe IV. ordered that the board should collect from all ships and merchandise, including a pro rata on the king's share, the cost for convoying them forth and back. Such was the famous India House at Seville, modest in its beginning, mighty in its accomplishments, through which passed into Spain the almost fabulous wealth of Spanish America.

[V-14] Recopilacion de Leyes de los Reynos de las Indias, of which I make general use in referring to the laws passed in Spain for the regulation of the affairs of the New World, is the result of several previous efforts in the direction of compilation. It was published at Madrid, the first edition in four volumes, by order of Cárlos II. in 1681, and the fourth edition in three volumes, under the direction of the Royal and Supreme Council of the Indies, in 1791. The work aimed to embody all laws in force at the date of the respective editions relative to the Spanish American colonies. The three volumes are divided into nine books, and each book into from eight to forty-six titles. The first title of the first book is De la Santa Fe Católica, a subject then second to none in grave importance. In fact the whole of the first book is devoted to ecclesiastical and kindred matters. The second book refers in the main to tribunals and officials; the third in a great measure to the army; the fourth to discoveries and settlements; the fifth to executive and judicial offices; the sixth to Indians, including treatment, repartimientos and encomiendas; the seventh to crimes and punishments; the eighth to the management of the royal treasury; and the ninth to the India House and the commerce of the Indies. By a decree of the emperor in 1550, which was embodied in the ordinances of audiencias in 1563, by Philip II., it was ordered that all cédulas and provisiones should be copied in extenso in a book set apart for that service, and of which great care should be taken, and that the said documents were to be filed chronologically in the archives of each audiencia. In 1571, by Philip II., it was decreed, and the decree embodied in the Recopilacion of 1680, that cédulas and provisiones concerning the royal treasury should be kept in a separate book.

The earliest printed collection of laws relating solely to the Indies is that of the ordenanzas for the government of the audiencia of Mexico. This was issued in 1548. In 1552 a similar collection was made by order of the viceroy of Peru, Antonio de Mendoza, for the government of the audiencia of Lima, but was not printed at that time. Later the fiscal of Mexico, Antonio Maldonado, began a compilation to which he gave the name Repertorio de las Cedulas, Provisiones, i Ordenanzas Reales, but it does not appear that he ever completed his task, although a royal cédula in 1556 authorized him to do so. Upon the representation in 1552 by Francisco Hernandez de Liébana, fiscal of the Council of the Indies, of the urgent necessity of such a work, a royal cédula was issued in 1560, directing the viceroy of New Spain, Luis de Velasco, to have prepared and printed such regulations as were in force within the jurisdiction of the audiencia of Mexico, which was done in 1563 under the direction of Vasco de Puga, oidor of the audiencia. Francisco de Toledo, sent from Spain in 1569 as viceroy of Peru, was ordered to make a similar compilation covering the limits of his viceroyalty, but it was afterward thought better the work should be done in Spain. Hence in 1570 Philip II. ordered made a general compilation of laws and provisions for the government of the Indies, which was intended as a code, obsolete laws being omitted, new ones provided where necessary, and those in conflict reconciled. Of this work, from some cause not satisfactorily explained, probably from the death of the author, only the title relating to the Consejo de Indias and its ordenanzas was printed, although the whole of the first book had been prepared.

In 1581 some ordinances relative to the Casa de Contratacion and its judges were printed at Madrid; and more of a similar nature in 1585, beside the Leyes y Ordenanzas for the government of the Indies, and the ordinances of 1582 concerning the despatch of fleets for New Spain and Tierra Firme, printed at Madrid; and in Guatemala the ordenanzas of July 14, 1556, relating to the Universidad de los Mercaderes de Sevilla. In 1594 the marqués de Cañete, viceroy of Peru, published at Lima a small volume of ordinances relative to the good treatment of the Indians. But the want of a general compilation becoming more and more apparent, Diego de Encinas, a clerk in the office of the king's secretary, was ordered to prepare a copy of all provisiones, cédulas, cartas, ordenanzas, and instrucciones despatched prior to 1596, which work was printed at Madrid, in four folio volumes, the same year. Harrisse is mistaken when he says these volumes were suppressed, not having been authorized; for not only is their authorization distinctly stated over the king's own hand in the enacting clause of the Recopilacion de las Indias, May 18, 1680, where it says that Philip II. ordered Encinas to do this work, but that owing to their faulty arrangement the volumes 'aun no han satisfecho el intento de recopilar en forma conveniente,' which clearly shows them to have been in use up to that time. Shortly after this, Alvar Gomez de Abaunza, oidor of the audiencia of Guatemala, and subsequently alcalde del crímen of the audiencia of Mexico, compiled two large volumes under the title of Repertorio de Cedulas Reales, which were not printed. And in Spain, Diego de Zorrilla made an attempt to revive the project of the recopilacion de leyes, by making extracts from Encinas and adding laws of later date; but having received an appointment as oidor of the audiencia of Quito, he left the work incomplete and in manuscript. Others made similar attempts; I shall not be able to enumerate them all, or give a full list even of the printed collections. For example, in 1603 was published at Valladolid a folio entitled Ordenanças Reales del Consejo de Indias, and another thin folio called Leyes y Ordenanças Nuevamente hechas por su Magestad, para la gouernaciõ de las Indias; later appeared a folio entitled Ordenanças de la Casa de la Contratacion de Sevilla, and another, Ordenanças Reales para el gobierno de los Tribunales de Contaduría Mayor en los Reynos de las Indias. In 1606 Hernando de Villagomez began to arrange cédulas and other laws relating to the Indies; and two years after, the celebrated conde de Lémos being president of the Council, Villagomez, and Rodrigo de Aguiar y Acuña, member of the Council of the Indies, were appointed a committee to compile the laws; but nothing came of it, even Fernando Carrillo failing to complete their unfinished task. Juan de Solórzano y Pereira, oidor of the audiencia of Lima, also began a collection of cédulas, and sent to the Council of the Indies the first book of his contemplated work, with the titles of the other five books which he intended to compile. In a carta real he was thanked for what he had done, and charged to continue his labors, sending each book as prepared to the Council. I have no evidence that he did so.

All this time our book was a-building, and indeed for 170 years more. A complete history of this one work would fill a volume; obviously in a bibliographical note, even of undue length, only the more prominent agencies and incidents of its being can be touched upon.