While the crown was well aware of the dangers of unnecessarily bruising the susceptibilities of the conquistadores, especially in the early stages of settlement when the political and military situation remained very volatile, it was determined to impose its own authority at the earliest opportunity. Too much was at stake, in terms of both potential American revenues and the commitment entered into with the papacy for the salvation of Indian souls, to permit the kind of laissez-faire approach that would characterize so much of early Stuart policy towards the new plantations. Imbued with a high sense of their own authority, which they had fought so hard to assert in the Iberian peninsula itself, Ferdinand and Isabella moved with speed to meet the obligations incumbent on them as `natural lords' of the Indies, while at the same time maximizing the potential to the crown of its new territorial acquisitions.
This required the rapid development and imposition on the Indies of administrative, judicial and ecclesiastical structures - a process that would be carried forward by Charles V and Philip II. From the first, expeditions of conquest had been accompanied by royal officials whose task was to watch over the crown's interests, and particularly its interests in the sharing out of the spoils. As an incorporated territory the Indies fell within the orbit of the supreme governing body of Castile, the Council of Castile, and in the early years the monarchs would turn for advice on Indies affairs to selected members of the council, and in particular to the Archdeacon of Seville and eventual Bishop of Burgos, Juan Rodriguez de Fonseca, who was effectively the supremo in the management of the Indies trade and the administration of the Indies from 1493 for almost the entire period down to his death in 1524.24 By 1517 this small group of councillors was being spoken of as ,the Council of the Indies',25 and in 1523 this became a formalized and distinctive Council within the conciliar structure of the Spanish Monarchy.26
The newly constituted Council of the Indies, with Fonseca as its first president, was to have the prime responsibility for government, trade, defence and the administration of justice in Spanish America throughout the nearly two centuries of Habsburg rule. Spain thus acquired at an early stage of its imperial enterprise a central organ for the formulation and implementation of policy relating to every aspect of the life of its American possessions. Had Charles I's regime survived, Archbishop Laud's Commission for Regulating Plantations might conceivably have evolved into a broadly similar omnicompetent body. As it was, it would take time, and various experiments, for an even remotely equivalent body - the Board of Trade of 1696 - to be established in England, and even then, as its name suggests, its primary concern was with the commercial aspects of the relationship between the mother country and its American colonies.
The immediate and most pressing task of the councillors of the Indies, following Cortes's conquest of Mexico between 1519 and 1521, was to ensure that it should be followed as quickly as possible by a second conquest - that of the conquerors by the crown. In the early years of the century the crown had fought tenaciously to strip Columbus and his heirs of what quickly came to be seen as the excessive powers and privileges granted to him under the terms of his original `capitulations' with the Catholic Monarchs. With vast riches from the conquered empire of Montezuma in prospect, it was essential that Cortes, who in 1522 had been appointed governor, captain-general and Justicia Mayor of New Spain by a grateful monarch in recognition both of his services and of the realities of Mexico in the immediate aftermath of conquest, should have his wings clipped as those of Columbus had been clipped before him. As the bureaucrats descended on New Spain, the conqueror saw himself stripped of his administrative functions and subjected to a residencia - the normal form of judicial inquiry into the activities of servants of the crown against whom complaints had been lodged. Simultaneously harried and honoured - he received the title of marquis and the grant of substantial lands with 23,000 Indian vassals for his services - he eventually abandoned the struggle and left for Spain in 1539, never to return. Francisco Pizarro, too, was to be simultaneously rewarded with the title of marquis and harassed by treasury officials, and was on the verge of losing his governorship of Peru when he was assassinated by his disappointed rivals in 1541.27
While the conquistadores and the encomenderos were to be dispossessed as quickly as possible of effective powers of government, it was essential to create an administrative apparatus to fill the vacuum. To achieve this, the crown made use of institutions which had been tried and tested at home, and were now pragmatically adapted to meet American needs. The first Audiencia, or high court, in the New World had been established in Santo Domingo in 1511. As more and more mainland territory came under Spanish rule, so more Audiencias were set up: the Audiencia of New Spain in 1530, following a false start three years earlier; of Panama in 1538; of Peru and Guatemala, both in 1543, and of Guadalajara (New Galicia) and Santa Fe de Bogota in 1547. By the end of the century there were ten American Audiencias.28 As a judicial tribunal the Audiencia was modelled on the chancelleries or Audiencias of Valladolid and Granada, but, unlike its counterparts in the Crown of Castile, it would develop administrative as well as judicial functions, as an extension of its obligation to maintain a judicial oversight over all administrative activities in territories far removed from the physical presence of the monarch.
These administrative activities were initially carried out by governors (gobernadores), a title conferred on a number of the early conquistadores. Governorships proved to be particularly useful for the administration and defence of outlying regions, and 35 such provincial governorships existed at one time or another during the course of the sixteenth and seventeenth centuries.29 But the supreme ruling institution over large parts of Spain's empire of the Indies was to be the viceroyalty. This had originally been developed for the government of the medieval Catalan-Aragonese empire in the Mediterranean, and the appointment of Columbus in 1492 as viceroy and governor-general of any lands he discovered may have been modelled on the example of the government of Sardinia.30 As a result of his failures in the government of Hispaniola Columbus was stripped of his viceregal title in 1499, and the viceroyalty went into temporary abeyance in the New World as the crown chose instead to appoint governors, captain-generals and adelantados (the title given to the men put in charge of newly conquered frontier regions during the reconquest of southern Spain from the Moors).
Map 3. Spanish American Viceroyalties and Audiencias (sixteenth and seventeenth centuries).
Based on Francisco Morales Padron, Historia general de America (1975), vol. VI, p. 391.
The conquest of Mexico, however, posed problems of administration on a scale hitherto unprecedented in the Indies. The government of New Spain between 1528 and 1530 by its first Audiencia proved a disaster, with the judges and the conquistadores at each other's throats. Although the new Audiencia appointed in 1530 represented a marked improvement in terms of the quality of government, it was clear that a new and better solution had to be found. In 1535 Don Antonio de Mendoza, the younger son of a prominent Castilian noble house, was appointed first viceroy of New Spain, and held the post with distinction for sixteen years (a length of tenure which would never be equalled, as the viceregal system consolidated itself, and tenures of six to eight years became the norm).
Mendoza's success encouraged the Council of the Indies to repeat the experiment in Peru, which was transformed into a viceroyalty in 1542. New Spain and Peru were to remain the sole American viceroyalties until the elevation in the eighteenth century of New Granada, with its capital in Santa Fe de Bogota, and the region of Rio de la Plata, with its capital in Buenos Aires, to the rank of viceroyalties. In the words of the legislation of 1542, `the kingdoms of New Spain and Peru are to be ruled and governed by viceroys, who shall represent our royal person, hold the superior government, do and administer justice equally to all our subjects and vassals, and concern themselves with everything that will promote the calm, peace, ennoblement and pacification of those provinces ...'31
In effect, therefore, the
viceroy was to be the alter ego of a necessarily absentee ruler, and the living mirror of kingship in a distant land. Generally drawn from one or other of the great noble houses of Spain, a viceroy crossed the Atlantic - as befitted his rank - accompanied by a large entourage of family members and servants, all anxious for rich pickings in the New World during his tenure of office. His arrival on American soil, and his passage through his territory to the capital city, was as carefully staged a ritual event as if the king himself were taking possession of his realm. Each new viceroy of New Spain would follow the route to the capital taken by Hernan Cortes. On arrival at the port of Vera Cruz, he would be ceremonially received by the civil and military authorities, and spend a few days in formal duties, like inspecting the fortifications, before setting out on his triumphal progress towards Mexico City. Moving inland by slow stages, he would be greeted in towns and villages along the route by ceremonial arches, decorated streets, singing and dancing Indians, and effusive orations by Spanish and Indian officials. Arriving at the Indian city of Tlaxcala, which had loyally supported Cortes during the conquest of Mexico, he would make a ceremonial entry on horseback, preceded by the indigenous nobility, and followed by vast crowds of Indians to the accompaniment of drums and music. Having thus symbolically recognized the indigenous contribution to the conquest, and enjoyed or endured three days of festivities, he continued on his progress to the creole city of Puebla, to pay a comparable tribute to the Spanish conquerors. Here he spent eight days before moving on to Otumba, the site of Cortes's first victory after the retreat from Tenochtitlan. At Otumba he would be met by the outgoing viceroy, who, in a symbolic transfer of authority, presented him with the baton of command. The triumphal progress, part Roman triumph, part Renaissance royal entry, culminated in Mexico City itself, where the ceremonial arches were more elaborate, the festivities more lavish, the rejoicings more tumultuous, than anywhere else along the route.32
Once he had taken the oath of office and had been installed in the viceregal palace, the new viceroy found himself at the centre of a court where the etiquette and ritual replicated in microcosm those of the royal court in Madrid. As in Madrid, there was a palace guard to protect him.33 For if the king himself was far away, he was also here, and the viceroy, as his living image, was entitled to a regal deference. At the same time, the monarch himself was an absent presence. The portrait of a new ruler would preside over each proclamation ceremony. Royal births and deaths were the occasion for elaborate commemorations in cathedrals and churches. The monumental catafalques for royal exequies again bore the image of the deceased, whose virtues and achievements were symbolically and emblematically depicted. On all these ceremonial occasions the viceroy occupied the centre stage, receiving in his palace delegations bearing congratulations or condolences, and upholding in his person the dignity and authority of his royal master.34
The viceroy was not only the supreme governor in the name of the king; he was also president of the Audiencias within his area of jurisdiction, but was not allowed to intervene directly in judicial business; he was head of the treasury system; and captain-general over the entire territory, although only exercising the duty in a supervisory capacity in those parts of his viceroyalty which possessed a captain-general of their own. He enjoyed considerable powers of patronage and appointment, although viceroy after viceroy would complain that these were not enough.
Subordinate to the viceroy were the governors of the various provinces within his viceroyalty, together with the officers of local government, alcaldes mayores (the title most commonly used in New Spain) and corregidores - equivalents of the officials in Castile who exercised local authority on behalf of the crown.35 Municipal councils - the cabildos - formed an integral part of this administrative structure of the Indies, where the crown, starting from scratch, was better placed than in the Iberian peninsula, with its accretion of historic municipal privileges and corporate rights, to create a system of government directly dependent on royal and imperial control.36 If the `modernity' of the modern state is defined in terms of its possession of institutional structures capable of conveying the commands of a central authority to distant localities, the government of colonial Spanish America was more `modern' than the government of Spain, or indeed of that of almost every Early Modern European state.
From the middle of the sixteenth century, therefore, an elaborate administrative chain of command existed for Spain's empire of the Indies. It ran from the Council of the Indies in Spain itself, to the viceroys in Mexico City and Lima, and then down to treasury and local officials and town governments. A parallel judicial system ran similarly from the Council of the Indies to the viceroys and the various Audiencias and judicial officers. The operations of this administrative and judicial bureaucracy were governed by a set of laws, dispositions and practices that again had been developed in Castile but were subsequently adapted, as the occasion demanded, to the special requirements of the Indies.
Since the Indies had been incorporated into the Crown of Castile, they were essentially to be ruled by the Castilian legal system. A Roman Law system, it incorporated some of the traditional law of Castile, and was codified by jurists schooled in Roman and canon law, in the great thirteenth-century legal compilation, the Siete Partidas of Alfonso X.37 The monarch, as the supreme source of authority, was expected to maintain justice in accordance with divine and natural law on the basis of this compilation, which was extended and modified over time by royal decrees issued either on his own initiative or in the light of representations made by the Castilian Cortes. It soon became apparent, however, that laws compiled for Castile would not necessarily cover all the circumstances of life in America. Increasingly, therefore, the Council of the Indies found it necessary to make special provision for local situations in the New World, as it did when creating the American viceroyalties.
Even if the Indies were conquered territory, the Council of the Indies was not legislating in a total vacuum, since the Indian populations of the conquered territories - some of them loyal allies, like the Tlaxcalans of central Mexico, and therefore deserving of special treatment - possessed their own laws and customs. Naturally respectful of established custom, the immediate instinct of sixteenthcentury Spaniards was to recognize the validity of existing Indian legal arrangements and practices where they did not openly conflict with Castilian law and requirements. But the indigenous law that survived the conquest was subject to an inevitable process of erosion as the character of Indian society was transformed by Christianization and the pressures of colonial rule. Pre-conquest records might continue to be used for the settlement of boundary disputes and for suits of Indian against Indian, but by the time that a General Indian Court of New Spain was established in 1585 it was more likely to be Spanish than Indian law that the Court found itself enforcing.38
As the Council of the Indies began to enact ever more special measures for the American territories, however, and as the viceroys drew up special regulations and provisions for their own territories, this Spanish law was no longer exactly that of Castile. Unlike the Anglo-American world, the Hispanic world was not governed by case law and judicial precedent, but by specific enactments and codified provisions. The result of this was a confusing tangle of enactments, which left the councillors of the Indies in growing doubt as to what was, or was not, the law. In the 1560s Philip II, with his habitual concern for close regulation and for the imposition of order on chaos, turned his attention to the Council of the Indies. A royal official, Juan de Ovando, was appointed to conduct a visit of inquiry into the Council, on which he was subsequently to serve as a great reforming president between 1571 and his death in 1575. Ovando identified as one of the Council's greatest problems the fact that `neither in the Council nor in the Indies does information exist about the laws and ordinances by which those States are ruled and governed.'39 He then set about reducing them to some sort of order, but the so-called Codigo Ovandino remained unfinished at the time of his death.
The work
was not taken up again until the following century, when two councillors of the Indies, Antonio de Leon Pinelo and Juan de Solorzano y Pereira, both embarked on attempts at codification, which again remained uncompleted at the time of their death S.40 But eventually, in 1680, during the reign of Carlos II, these earlier efforts bore fruit in the publication of a vast compendium, Recopilacion de las leyes de Indies, a belated companion to the Recopilacion of the laws of Castile published by order of Philip II in 1567. In spite of the crown's desire to keep them unified, the laws of Castile and America were inevitably moving apart. Even this, however, was not the full extent of the process of fragmentation. By 1680 a universal code for the Indies had come to acquire a certain phantom quality. Five years after its publication, Peru significantly responded to the Recopilacion by printing its own Recopilacion provincial, a compilation of the provisions and ordinances issued by the Peruvian viceroys.41 Each territory of Spanish America was gradually acquiring its own corpus of legislation tailored to suit its own special requirements.
The administrative and judicial apparatus imposed on Castile's conquered Indian possessions was accompanied by an increasingly elaborate ecclesiastical apparatus developed in response to the papacy's concession to the Crown of Castile of the Patronato of the Indies.42 The Patronato gave the crown enormous powers in the Indies, which it exercised to the full. While the colonization of Spanish America was a joint church-state enterprise, it was one in which the crown from the first had the upper hand. The church in the Indies began as a missionary church, with the religious orders taking the lead in the work of evangelization, but the secular clergy followed in the wake of the friars, just as the bureaucrats followed in the wake of the conquistadores. Although the religious orders remained immensely powerful, and continued to receive strong royal support, the normal apparatus of formal church government was established bit by bit under royal direction, initially almost in parallel to the mendicant structures. All ecclesiastical appointments were made by the monarch on the basis of recommendations by the Council of the Indies, which divided the territory into dioceses - 31 by the end of the sixteenth century, including the four archbishoprics of Mexico City, Lima, Santo Domingo and Santa Fe de Bogota.43 The affirmation of episcopal authority over the church in the Indies would fully conform to the requirements of the Council of Trent, but it also provided the crown with a means of reining in the mendicant orders, which by the middle years of the sixteenth century were well on the way to becoming a power unto themselves. Philip II was no more inclined to see his authority subverted by the friars than by the encomenderos, with whom the friars often acted in collusion.
Empires of the Atlantic World: Britain and Spain in America 1492-1830 Page 22