Government and Law in Spanish Colonial America
© 2001 Donald J. Mabry
1) Role of criollos (Spaniards born in the New World) was very
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:
- Licensing and regulating shipping and emigration
- providing training in geography, pilotage, and navigation
- creating and maintaining records and research
- collecting some taxes and tariffs
- handling royal revenues shipped from America
- making judgments on matters arising from trade and navigation issues
- assisting with overseas communication
- 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.
- proposed top officials
- power of confirming minor officials appointed by colonials
- corresponded with (1) officials (2) important people (quite a lot)
- Sent investigating officers
- Verified accounts of royal officials
- debated ways to increase crown revenue
- final board of appeal
- had original jurisdiction in cases of large encomiendas
- sent and reviewed residencias (reviews of colonial officials)
- 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.
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.
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.
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
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
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.
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
- erection of public buildings, including cemetaries
- control municipal processions and ceremonies,
- mail service, weights and measures
- police functions
- bullfights, woodcutting, rustling
- control of carrying of guns
- control dress of lower classes and use of
- in the late colonial period, cafes ( like
English coffee houses)
- vagrants -- got be be a terrible burden
- sometimes schools but mighty few
- towns fought each other, conducted law suits
against each other
- 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.
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
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
Generalizations Regarding the Governmental System
- lacked provincial assemblies
- didn't have federalism experience
- highly oligarchic system of government, one for the upper classes and
one for the others
- most people governed by encomederos or hacendados
- 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.
- discrimination against criollos
- size and distance
- used Amerind institutions.
- Alliance between the civil and the ecclesiastical authorities
- when laws were created, old laws not repealed
- 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.
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
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
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
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
- lasted a long time
- discouraged nepotism among high officials
- encouraged people to settle in America
- gave them income for economic development
- work showed remarkable uniformity; you could depend upon it
- turned up a lot of information
- with tremendous effort could get it executed.
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:
- conversion of servile holdings into leases, reelecting the movement
- continuation of upper class privileges. Growth of grazing privileges
as more important than agricultural rights because the upper class owned
herds and flocks.
- 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
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:
- marriage among Indians
- testaments involving Indians
- canonical marriage was the same as Spain's with some modifications
- mixed marriage rules
- officials, marrying locals
- juridical condition of women. The emigration of women was slight.
- protect Indians
- women holding public office
- women and encomienda
- female behavior
- restrictions on foreigners
- trade in certain provinces
- 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.
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.
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.
Click on the book cover or the title to go to Llumina Press.