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Government and Law in Spanish Colonial America (revised)

©    2001  Donald J. Mabry

Political institutions 

1)    Role of criollos (Spaniards born in the New World) was very restricted.

2)    All of the  European settled areas were governed by these institutions. There are examples of illegal institutions such as the King of the Mosquitoes and Palmares in Brazil but these are unusual. Castas (non-European people, either mixed or non-mixed) were excluded from government service except for a few town councils or cabildos. Caciques (Indian leaders) did serve on occasion.

    The great changes in European philosophy the 17th and the 18th didn't affect the Spanish world worth speaking  about. Eighteenth century Enlightenment heard a little bit more lightly in America but not until after 1750. Colonial ideas conservative except, where, they met unknown situations such as the how to deal with Indians.

Casa de Contratación (House of Trade), 1503-1790

    Purpose was the foster and regulate trade and navigation. Operated in Sevilla until 1717 when it was moved to the coastal city of Cádiz.

    Casa created the consulado (merchants' guild) in Sevilla which had the exclusive right to trade with the New World. The consulado had extensive economic and judicial duties concerning overseas trade. Consulados created in Mexico and Peru as the other end of the system. Spanish believed in the efficacy of monopoly, a belief stemming from their desire to control.

Casa's duties included:

  1. Licensing and regulating shipping and emigration
  2. providing training in geography, pilotage, and navigation
  3. creating and maintaining records and research
  4. collecting some taxes and tariffs
  5. handling royal revenues shipped from America
  6. making judgments on matters arising from trade and navigation issues
  7. assisting with overseas communication
  8. supervising the convoy system (flota) that was operated for 200 years

    Gradually lost its powers in the 18th century. Some of its powers were transferred to the new Ministry of Marine and the Indies. The restriction on which ports could be used was ended beginning in 1763. The Casa was abolished in 1790.

Council of the Indies (Real y Supremo Consejo de las Indias)

    Founded in 1524, the Consejo had all kinds of functions. Subdivision into chambers to deal with specialized problems. For 200 years, they were the chief Spanish governmental institutions. Others had some power in the 18th century.

  1.     proposed top officials
  2.     power of confirming minor officials appointed by colonials
  3.     corresponded with (1) officials (2) important people (quite a lot)
  4.     Sent investigating officers
  5.     Verified accounts of royal officials
  6.     debated ways to increase crown revenue
  7.     final board of appeal
  8.     had original jurisdiction in cases of large encomiendas
  9.     sent and reviewed  residencias (reviews of colonial officials)
  10.     passed legislation

    Lasted approximately 200 years. Had a fluctuating membership of six to ten councilors plus numerous lower officials.  In 1714, it was reorganized and then replaced by a minister in the latter part of the 18th century.

    Both the Casa and the Consejo were in Spanish. Together with the king, they made sure that the colonies existed to serve Spain.

    In Spanish America,  there were many government officials. Some, such as the adelantado (a military official) was important only during the Conquest. Others were more enduring. All followed the principle of "Obedezco pero no cumplo," I obey but I do not carry out, for everyone understood how very far it was between Spain and the New World and circumstances could have change since the Crown had been given the information upon which it based an order. It was imperative that royal authority always be acknowledged, especially since the Crown only sent powerful men to represent it in the New World, men who might develop ambitions of their own.

Viceroy

    The Viceroy was very important, for he stood for the king in the New World. He was always a man of great consequence in Spain, holding a socio-economic position fit for a king. When he arrived at his post, he was given an almost royal welcome with great ceremony at his entrance to the capital. When he was invested in office, the public ceremony was akin to a coronation. These ceremonies were very important as sources of amusement for the populace as well as a means to impress them and curry favor. The viceroy received a tremendous salary. The viceroyalty was one of the principal institutions on which the Crown relied. Once in a while a very good viceroy would serve elsewhere in America. The first was created for New Spain in 1529 followed by the one for Peru in 1542. In 1717, the viceroyalty of New Granada (northern South America) was created in response to other Europeans trying to take Spanish territory in the Caribbean region. In 1776, the viceroyalty of Río de la Plata, centered in Buenos Aires, was created to bolster Spanish influence in southern South America. They served three to eight years.

    Within a viceroyalty was the captaincies-general. The captain-general operated much like a junior viceroy, usually governing a region distant from the viceregal capital, such as Chile and Guatemala.

Audiencia

    The oidores (judges) were the most important officials. They were important and distinguished people in Spain with legal training and were people of great consequence and with high salaries in the colonies. In their powers, there was some overlapping with the viceroy's power, done by the Crown to create rivalry between the two institutions, a rivalry it would have to adjudicate.

    The audiencia sat as  a court of justice, which was its chief function. As time went by and population grew,  it divided into special courts and added a number of oidores. Could question the actions of other officials and discipline them. It sent visitas (inspections). Had legislative authority through the actas acuerdas. It could execute laws. When it was in a viceregal city, the viceroy was automatically its president but there was always tension between the audiencia and the viceroy no matter where the audiencia sat.

Corregidor

    He was a lesser royal official within the jurisdictional area of an audiencia. Some dealt only with Indians, making sure that the Crown got its share of the tribute.

Intendant

    They were high royal officials who were given military and economic power over a large area in order to increase Crown revenue and defend against enemies. They were a French invention. Intendant system was started about 1760, but was not established every place. Constituted tinkering with system and did not represent fundamental changes. The creation of the system did indicate recognition of the need for change.

Presido-mission system

    Spain established a presidio (fort) in a frontier area either because the native inhabitants or Europeans were threatening the region. Presidios didn't always have a mission attached. When there were both, they reinforced each other. They were moved or were extinguished when the job was done. They played an important role in protecting the empire.

Spanish Towns

    There were both ecclesiastical and civil cabildos. The ecclesiastical cabildos were called a chapter. Town life has a long history in Spain and Portugal.Middle class in medieval ages had gotten concessions, but had lost most power by 1492. They did have important functions. The Spanish were townsmen or wanted to be. When they came to the New World, they laid out towns.

    A citizen of a town was a vecino. The class system so well defined that they knew who deserved to be a vecino, usually all Spaniards. The term didn't mean Indians or Negroes. A person had to  be a vecino for town council to pay any attention to you. Alcalde was on the town council but he is different in having judicial functions. Jurisdiction was quite broad and encompassed a large territory. In geographical scope, it resembled a county in the United States. The cabildo controlled town lands, common pastures, and the common woodlock. There was a tremendous  amount of  charcoal making in the colonial period so control of the woodlocks was important. So much wood was cut that the land was denuded, causing erosion.

    Cabildos did quite a lot on a local scale. They didn't have many revenue sources, but received quite a bit from animal slaughtering, taxation, income from town lands, and luxury taxes.

    In the very beginning, the conquistador appointed and then there were elections and then selling of offices and hereditary. Members of the cabildos were primarily criollos.

Functions:

  1.        erection of public buildings, including cemetaries
  2.        control municipal processions and ceremonies,
  3.        mail service, weights and measures
  4.        police functions  
  5.        bullfights, woodcutting, rustling
  6.        control of carrying of guns
  7.        control dress of lower classes and use of capes
  8.        in the late colonial period, cafes ( like English coffee houses) 
  9.        vagrants -- got be be a terrible  burden
  10.        sometimes schools but mighty  few
  11.        towns fought each other, conducted law suits against each other
  12.        sent officials (procurador) to Spain to lobby

    Result of their existence was their critical importance in developing a sense of Americanism and feelings of  discrimination. Cabildo abierto was similar to a town meeting of vecinos and was called in a variety of ways. It was quite important in the independence period because it was a means of political action. Not important enough to be concerned about befiore that period.

Visita

    It was the sending of inspectors to check on events and people. Some were scheduled; some were an unannounced audit. Result of  its work  led to change.

Residencia

    When a high official left office, his actions were reviewed by a residencia, often taking months. The system was designed to prevent corruption and abuse. However, some of these officials simply stole more money so they could afford to bribe the residencia.

Generalizations Regarding the Governmental System

  1.     lacked provincial assemblies
  2.     didn't have federalism experience
  3.     highly oligarchic system of government, one for the upper classes and one for the others
  4.     most people governed by encomederos or hacendados
  5.     tremendous amount of unpredictability; one couldn't be sure how the system was going to work in terms of how it was set up. There was a          tremendous amount of personalism, which was an invitation  to corruption. In fact, there was enough corruption that it had its own rules.
  6.     discrimination against criollos
  7.     size and distance
  8.     used Amerind institutions.
  9.     Alliance between the civil and the ecclesiastical authorities
  10.     when laws were created, old laws not repealed
  11.     had goal ambiguity and conflicting standards.  In Spanish world, what you were really doing was giving power to the lower echelons in                  government. They had to decide which rules applied.

    The upper class outside of government did a lot more of the decision making that one might realize. Most people obeyed their encomendero or hacendado and had little contact with a government official.

Financial administration

    The royal officials (oficiales reales) were treasury officials. Didn't have multiple functions because the Crown wanted them to focus on getting money.  The treasurer lived in the regional capital and had a treasury box. The treasury included the treasurer, comptroller,  factor (business manager), and other officials. In 16th century, sometimes there was an overseer. Treasurer and comptroller had deputies in other places. Sometimes very important places had separate treasury officials.

Collection of Taxes

    Some were directly collected by royal officials. They took out the quinto at the mines. The Crown used tax farming to collect the alcabala. There were customs duties on imports (almajarifazo) and the crusada (the tax which had been instituted to pay for crusades). Tax farmers paid direct to royal treasury for the franchise.

    Indian tribute was one of the major sources of  revenue. Indians paid in kind and factors the sold goods and sent the proceeds, minus their cut, to the royal treasury. The corregidor de los indios was charged with extracting as much as possible from the Indians.

    Treasury officials were supervised by accounting officials. At first, accounting was a department of the Consejo. Treasury officials dispersed funds for salaries and expenses and then shipped surplus back to Spain. The treasury system was understaffed, and the accounting system even more so. Auditing fell way behind. The more it fell behind, the more corruption occurred. Audits in the 16th century led to the creation of audiencias. One could appeal rulings to the Consejo.Tribunal of Accounts created about 1603 in Mexico City,  Lima, and Bogotá

Crown appointments

    The Crown steadily increased surveillance of the local governments. It replaced encomenderos with corregidores in Indian areas to reduce their power and to insure that income would go to the Crown. Towns saw the strengthening of appointment to cabildos. The Crown was leery of cabildos because of the 1520 revolt of comuneros there. Crown prohibited the gathering of officials without crown permission in ordrer to discourage conspiracies. It wanted to keep people atomized.

    Administrative system system which was set up in the late 16th century really lasted until the end of the empire.

    In 1606, Crown made an important effort to a make colonial office more attractive by making offices renouncible. An officeholder could resign in favor of someone else. The Crown got a fee out of the process. Revenue source! This made offices more valuable, more expensive to get. Could mortgage offices you were trying to get. Resulted in the creation of brokers. This made it easy for the ambitious to borrow money from one of these brokers to buy an office. Work your way up as you made money from a lower office to finance buying a higher one. The selling of offices was never really extended system to major offices. Started to extend under Charles II. System reformed in the 18th century.

    The worse thing about all this was the multiplication of offices. All those involved, including the Crown, wanted more offices created but doing so made the bureaucracy even more cumbersome. It's doubtful if income from offices was worth it.

Advantages to the sale offices

  1. lasted a long time
  2. discouraged nepotism among high officials
  3. encouraged people to settle in America
  4. gave them income for economic development 
  5. work showed remarkable uniformity; you could depend upon it 
  6. turned up a lot of information 
  7. with tremendous effort could get it executed.

Judicial system

    The Spanish legal tradition was rich and complex . Used Roman law with other elements. Hard to trace older influences; don't know how much Germanic or Arabic influence. A lot of Roman law in the system which was brought  into it in the 13th century. Coincides with the strengthening of Spanish kingdoms. Shows great influence of canon law. In 300 years before 1492, changes in the law included:

  1.     conversion of servile holdings into leases, reelecting the movement towards individualism
  2.     continuation of upper class privileges. Growth of grazing privileges as more important than agricultural rights because the upper class owned          herds and flocks.
  3.     corporations recognized. Confradías and gremios were particularly important corporations. Confradías provided a burial function as well as          a fraternal function for their members. Sometimes confradías were related to gremios.

Codifications of the law

    Each merely an addition or earlier codes. Recopilación de las leyes de las Indias is an example.

    Which Spanish law was transferred America? Public land law primarily. Generally, private law of America was the private law of the kingdom of Castille. New World changes in the private law caused by changes in status, primarily. Some changes touched on church jurisdiction because of the different circumstances in the New World.

    The divergence of law of Spain and America grew as time passed. Differences in regions necessitated modification. As touched family, property, succession, etc,, Spanish American law was like that of Castille. The differences were:

  1.     marriage among Indians
  2.     encomiendas
  3.     testaments involving Indians
  4.     canonical marriage was the same as Spain's with some modifications
  5.     mixed marriage rules
  6.     officials, marrying locals
  7.     juridical condition of women. The emigration of women was slight.
  8.     protect Indians
  9.     women holding public office
  10.     women and encomienda
  11.     female behavior
  12.     restrictions on foreigners
  13.     trade in certain provinces
  14.     Seville trade monopoly

    There was the absence of precedent law. Instead, they followed codes and judicial principles. There were no juries. No evidence that proves that the jury system is any better than Roman-based laws.

    The Recopilación de las leyes de las Indias was a compendium of laws. Tons of other records as well. Most common piece of legislation sent out was called a cédula. Cedularios were a collection of cédulas. Recopilación was supposed to take care of all laws on imperial basis. Didn't. Didn't repeal earlier laws. Made very little difference as far as the empire was concerned. This is of  interest to us because it pointd up the difficulty of change in the Spanish world. It has been described as as a fraction of the exceptions to Spanish common law.

    Crown wanted its legislation to be enforced, especially with regard to the Indians. The machinery to enforce the laws was elaborate.

Judiciary

    Magistrates and judges were highly honored in Spain. The Crown of Castille engaged in a great deal of legislative activity, especially decree legislation. Degree legislation still a very prominent kind of Latin American legislation today. tradition of legislation executive power is strong in Latin America today. King thought of more as a judicial figure than legislative. He was the head of the courts. The "principle  task of government in America was judging between conflicting interests instead of planning " and "the most serious obligation that your majesty owes in the governing of Spanish America is justice" were statements of the king's proper role.

    The most trusted institution was the court, especially the audiencia. The judge was the most trusted individual. Juridicals didn't have large vested interests and great expectations. Judges were dependent upon the Crown. They were trained in law schools and believed in absolute monarchs and centralized government. Usually, they had no great military ambition or political ambition. They had respect for all forms of law. They were good bureaucrats. Judges were respected by the semi-military upper classes.

Audiencias

    Audiencia was usually thought to be the most important and characteristic of colonial institutions. There were ten in the 16th century. These courts has administrative duties and some political power. They had extensive influence. They were over all other courts. They reviewed residencias. Could send special commissions to investigate. They had original jurisdiction in the case of royal patronage and large encomiendas. Audiencia decided when question of encroachment of jurisdiction arose. It could assess legal fees; set ecclesiastical fees for sacraments; set and publish Indian tributes and see to enforcement thereof. As a committee sat as an acuerdo out of which came actas acuerdas. Acuerdo hacienda dealt with treasury matters. In certain cases, it had jurisdiction over Indians affairs. It was tremendously important.

    There were attempts to regulate daily life of the oidores. A fiscal  was a prosecuting attorney. Oidores and fiscales were supposed to live together in one building. The Crown tried to keep them from building  up local interests. Their duties were prescribed.  Oidores were  given higher salaries than anyone but viceroys. Didn't make them enormously rich but they were very well off. Most were peninsulares.Some did in fact become interested in colonial affairs.

Other administrative officials

    The administrative system involved a lot of officials other than the ones mentioned above. There were clerks (escribianos or scribblers), and town clerks. The clerical officials were the ones who knew what was going on. Often guided affairs unobtrusively. Provided permanency and continuity. They stayed for life. They were non-salaried employees who earned fees. There so many of these low-level administrative officials that crown could pay all of them. There were fixed fees for services performed and special fees (bribes?) to speed things up. These fees in the major places amounted to quite a lot. There was great competition to get the major posts, evidence that they were highly valued. The Crown had. trouble filling these positions in little towns, for there was little money in them. Sometimes, the Crown couldn't. This partly explains why people moved to cities. Couldn't get anything done in small towns.

    There was a huge number of applicants for the good positions. Bureaucratic office mania. To live outside the public budget is to live in error would have been their motto. Even non-paying office brought a modicum of prestige and, possibly, the chance to get a paying job. doing a job was not as important as having it. Conquistadores and relatives, especially sons, demanded jobs; they were the most numerous class applying for these jobs in the early days. They made poor scribblers. Charles I (V) let most of these inferior postions go to private patronage. There were two kinds of appointment: (1) honorific (2)  make money. Jobs were leased.

    Philip II saw some of the evils of this system.  Kept appointments much more his own hands. Didn't end the sale of minor offices; Crown sold them as a "reform." Made sale more effective in terms of Crown control.

    There came to be the public sale in the American provinces where offices were auctioned to the highest bidder. It was a provisional sale, for the person had to prove that there were no obstacles, such as race, to his holding the job. One exceptions to highest bidder rule was being a viceroy's son. Applicants had to send receipts and notarized proof that they were honest, of "pure blood," etc.

    Proof  of the system? It brought in revenue and prevented colonials from building up local support. The system was accepted by the public, who thought of jobs as property. The Crown wouldn't accept sale of judicial offices. The empire used this system and lasted 300 years.

You can read about other topics in colonial Latin American history by buying and reading Colonial Latin America by Don Mabry.

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