Chapter XXVII: Revolt of the Cakchiquels (3)

[V-2] As this word will often occur in these pages, and as
neither the term nor the institution it symbolizes has any
equivalent in English, I will enter here a full explanation.
_Residencia_ was the examination or account taken of the
official acts of an executive or judicial officer during
the term of his _residence_ within the province of his
jurisdiction, and while in the exercise of the functions of
his office. This was done at the expiration of the term of
office, or at stated periods, or in case of malefeasance at
any time. The person making the examination was appointed by
the king, or in New World affairs by the _Consejo de Indias_,
or by a viceroy, and was called a _juez de residencia_.
Before this judge, within a given time, any one might appear
and make complaint, and offer evidence against the retiring
or suspended official, who might refute and rebut as in an
ordinary tribunal. The residencia of any officer appointed by
the crown must be taken by a judge appointed by the crown; the
residencia of officers appointed in the Indies by viceroys,
audiencias, or president-governors, was taken by a judge
appointed by the same authority. Following are some of the
changes rung upon the subject by royal decrees, the better
to make it fit the government of the Indies. The 10th of
June, 1523, and again the 17th of November, 1526, Charles V.
decreed that appeal might be made from the judge of residencia
to the Council of the Indies, except in private demands not
exceeding 600 pesos de oro, when appeal was to the audiencia.
In 1530 viceroys and president-governors were directed to take
the residencia of _visitadores de Indios_ that wrong-doing
to the natives might not escape punishment; and by a later
law proclamations of residencias must be made in such manner
that the Indians might know thereof. The _Ordenanzas de
Audiencias_ of Philip II. of 1563 and 1567, state that in
some cities of the Indies it was customary to appoint at
certain seasons two regidores, who, with an alcalde, acted
as _fieles ejecutores_. At the beginning of every year the
viceroy, or the president, in a city which was the residence
of an audiencia, had to appoint an _oidor_ to take the
residencia of the fieles ejecutores of the previous year.
The same was to be done if those offices had been sold to
the city, _villa_, or _lugar_; but in such cases it was left
to the discretion of the viceroy or president to cause them
to be taken when necessary, not allowing them to become too
commonplace. Philip II. in 1573, and his successors as late
as 1680, directed that in residencias of governors and their
subordinates, when the fine did not exceed 20,000 maravedís,
execution should issue immediately; in damages granted from
private demands to the amount of 200 ducats, the condemned
was to give bonds to respond. While an official was undergoing
his residencia it was equivalent to his being under arrest, as
he could neither exercise office nor, except in certain cases
specified, leave the place. Thus the law of 1530, reiterated
in 1581, stated that from the time of the proclamation of a
residencia till its conclusion _alguaciles mayores_ and their
_tenientes_ should be suspended from carrying the _varas_,
or from exercising any of the functions of office. In 1583,
in 1620, and in 1680, it was ordered that such judges of
residencia as were appointed in the Indies should be selected
by a viceroy and audiencia, or by a president and audiencia,
acting in accord. Salaries of jueces de residencia were
ordered by Felipe III. in 1618 to be paid by the official
tried if found guilty, if not by the audiencia appointing.
Before this, in 1610, the same sovereign had ordered notaries
employed in residencias taken by _corregidores_ to be paid in
like manner. The next monarch directed that ships' officers
should be subject to residencia in the form of a _visita_;
and in visitas to _galeones_ and _flotas_ none but common
sailors, artillerymen, and soldiers should be exempt. Cárlos
II. in 1667 decreed that the residencia of a viceroy must
be terminated within six months from the publication of the
notice of the judge taking it. Felipe III. in 1619, and Cárlos
II. in 1680, ordered that viceroys and presidents should send
annually to the crown lists of persons suitable for conducting
residencias, so that no one might be chosen to act upon the
official under whose jurisdiction he resided. See _Recop.
de Indias_, ii. 176-89. Of the report of the residencia the
original was sent to the Council of the Indies, and a copy
deposited in the archives of the audiencia. So burdensome
were these trials, so corrupt became the judges, that later,
in America, the residencia seemed rather to defeat than to
promote justice, and in 1799 it was abolished so far as the
subordinate officers were concerned.

[V-3] Originally written _fijodalgo_, son of something.
Later applied to gentlemen, country gentlemen perhaps more
particularly. Oviedo, ii. 466, calls Diego de Nicuesa 'hombre
de limpia sangre de hijosdalgo,' a man of pure gentle blood.
Concerning the origin of the word _hidalgo_, Juan de la Puente
states that during the Moorish wars, whenever a large town was
captured the king kept it; the villages he gave to captains
who had distinguished themselves, and who were called at first
_ricos homes_, and afterward _grandes_. To minor meritorious
persons something less was given, a portion of the spoils or
a grant of land, but always something; hence their descendants
were called _fijosdalgos_, _hijosdalgos_, or _hidalgos_, sons
of something. In the _Dic. Univ._ authorities are quoted
showing that the word _hidalgo_ originated with the Roman
colonists of Spain, called _Itálicos_, who were exempt from
imposts. Hence those enjoying similar benefits were called
_Itálicos_, which word in lapse of time became _hidalgo_.

[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.

[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.