Empires of the Atlantic World: Britain and Spain in America 1492-1830 (29 page)

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.

In his Ordenanza del Patronazgo of 1574, Philip produced a code of orders designed to reinforce his own authority by subjecting the regulars to the bishops and placing secular clergy in parishes in the place of the friars. 44 This was to prove a long and contentious business, since the friars had no intention of abandoning their Indian flocks. The struggle between seculars and regulars would continue throughout the colonial period. But the institutional and legal structures were now all in place for the functioning of ecclesiastical life in the Indies under close royal control - so close, indeed, that no papal nuncio was allowed to set foot in America, and papal nuncios in Madrid were not allowed to meddle in American business.45 The crown also enjoyed control over the financial arrangements of the American church, which depended on the collection and distribution of tithes by treasury officials. By royal orders of 1539 and 1541 half of the tithes, which were collected in kind and then put up for auction, were shared equally between bishops and deans and cathedral chapters, while the other half were divided into nine parts, of which four went to the payment of parish priests and their assistants, three to the construction and decoration of churches, and the remaining two were absorbed into the royal coffers.46

The mutually reinforcing relationship of church and crown cemented a structure of Spanish royal government in America so all-embracing that Juan de Ovando in the 1570s could justifiably speak of the estado de las Indies, the State of the Indies.47 In less than a century since the beginning of the overseas enterprise, the Spanish crown had established in the New World a system of government and control that might well be the envy of European monarchs struggling to impose their own authority on recalcitrant nobles, privileged corporations and obstreperous Estates close to home.

For all the flaws and defects in the system - the built-in conflicts between competing authorities, the numerous opportunities for procrastination, obstruction and graft - this creation of a `State of the Indies' was by any measure a remarkable achievement, not least because it seems to have defied successfully the normal laws of time and space. The viceroyalties of the Indies were thousands of miles, and an ocean, away. It could take two years for the government in Madrid, the capital of Spain's world-wide monarchy from 1561, to send a message to Lima and receive the reply. Yet, as Francis Bacon relates, `Mendoza, that was viceroy of Peru, was wont to say: That the government of Peru was the best place that the King of Spain gave, save that it was somewhat too near Madrid. 14' An exchange of messages between London and Virginia might take a mere four months, but for the monarchs of Stuart England, struggling to bring a few thousand recalcitrant settlers within the framework of their `royal empire', Spain's government of the Indies could only have looked like a triumphant assertion of the obedience properly due to kings.

Yet the Spanish crown had not imposed its authority without a long and bitter struggle, and at many times and in many places that authority would prove to be more nominal than real. When Castile and England exported their people to America, they also exported pre-existing political cultures which permeated both the institutions of government and the responses of the governed. Those distinctive political cultures produced two distinctive colonial worlds with profoundly different political characteristics, reflecting those of the metropolitan societies out of which they emerged. Yet amidst the contrasts there were also strong points of resemblance.

Driven by the twin imperatives of its thirst for precious metals and its obligations towards its new Indian vassals, the Spanish crown was interventionist from the beginning in its approach to the government of the Indies. It sought to mould the developing colonial society in accordance with its own aspirations, and its own high sense - fortified by university-trained jurists who had entered the royal service - of the all-commanding nature of its divinely ordained authority. Inevitably, however, as it embarked on the task of giving institutional expression to theoretical aspirations, it encountered resistance from those who harboured distinctive aspirations of their own. The friars yearned to establish in the New World a New Jerusalem, free from corrupting secular influences. The conquistadores, for their part, dreamed of exercising lordship over numerous Indian vassals, and so transforming themselves into a hereditary landed aristocracy as rich and socially dominant as the aristocracy of Castile.

The incompatibility of these differing aspirations meant that none of them could be realized in full, and the crown would find itself forced to make open or tacit compromises in its struggle to get its commands obeyed. In embarking on this struggle it began with an important advantage: the success of Ferdinand and Isabella in restoring royal authority in Spain itself, and the mystical prestige conferred on the crown by a miraculous succession of triumphs, including the recovery of Granada from the Moors and the discovery and acquisition of the Indies. The election of Charles in 1519 as Holy Roman Emperor, although it threatened to have unwelcome consequences for Castile, could also be read as a sign of God's continuing favour for the dynasty, as it was by Hernan Cortes, who saw himself benefiting, as Charles's loyal captain, from `God's help and the royal fortune of Your Majesty'.49