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The American Nation: A History — Volume 1: European Background of American History, 1300-1600 By Edward Potts Cheyney Characters: 27681

Updated: 2017-12-01 00:02

America's political and social institutions are unquestionably founded upon those of England, and these will be described in their proper place in this volume. But the institutions of three other European nations were for considerable periods dominant in certain parts of the New World, and have left an impress that is even yet far from being effaced. They are those of Spain, France, and Holland.

Since the Indies were, in theory, an outlying part of the kingdom of Castile, they naturally reflected the recently achieved absolutism of the Spanish monarchy. This absolutism in Castile extended over all fields-legislation, judicial action, and administrative control. Although the most formal and permanent statutes were drawn up by the king with the consent of the cortes, or even at its request, yet the custom of issuing pragmatica, or ordinances enacted by royal authority, grew until their provisions filled a large sphere. They were promulgated on all sorts of subjects, and became, immediately on their issue, authoritative rules of action. The whole subsequent legislation for the American colonies, springing as it did from the mere will of the sovereign, was an outcome of this custom.

The king was the fountain of justice, in whose name or by whose grant all temporal jurisdiction was exercised. In no country of Europe was this principle more clearly acknowledged than in Spain. Immediately attending upon him was an audiencia, or group of judicial officers whose duty it was to carry out these functions in the most immediate cases. The audiencia was a high court of law and equity, deciding both civil and criminal cases; and, as is always the case in early stages of government, exercising much administrative and financial control through the forms of judicial action. The insufficiency for these ends of a peripatetic body bound to follow the king in all his movements was early recognized, and the royal audiencia was made stationary at Valladolid. Later a second such court was established, first at Ciudad Real, then, after the conquest, at Granada. Ultimately others were organized in Galicia, Seville, Madrid, Burgos, and several additional centres. The system was early transported and extensively developed in the American possessions, where twelve independent audience existed. There, as at home, this court system gradually superseded the more individual and military rule of the adelantado, which had been characteristic of the early conquest period. [Footnote: Moses, Spanish Rule in America, 66, etc] The adelantado was the representative of the administrative powers of the crown. Five such officials in the fifteenth century governed respectively the provinces of Castile, Leon, Galicia, Andalusia, and Murcia; another was appointed over Granada when it was conquered; and still another administered the temporal affairs of the vast estates of the archbishopric of Toledo. Their duties were partly military, partly civil, and under them were subordinate royal officers with a great variety of titles such as sarjento mayor, alferez real, alcalde. The title of adelantado was naturally given to Columbus, Pizarro, and several of the other early conquistadores as the nearest equivalent to their position as civil and military governors of the wide-spreading, newly conquered lands of America. [Footnote: Moses, Spanish Rule in America, 68, 69, 113.] The supremacy of the crown extended to the church as well as to the state. Spain, in the Middle Ages and far into modern times, presented the anomaly of a nation and government most ardently devoted to orthodox Christianity and to the church, and yet jealous and impatient of the powers of the Pope. In 1482 Isabella protested against the use of a papal provision for the appointment of a foreign cardinal to a Castilian bishopric, and claimed a right to be consulted in all ecclesiastical appointments. A serious contest ensued, the ultimate result of which was that the queen obtained a clear right of appointment, which, in the reign of Charles V., was formally recognized as such by the pope. [Footnote: Vicente de la Fuente, Hist Generate de Espana, V, 150, quoted in Mariejol, L'Espagne sous Ferdinand et Isabelle, 28.]

This position of the monarchs at home made easy and natural the adoption of their position of supreme patrons of the church in Spanish America. In the colonies conquered, settled, and Christianized under their influence they had a completeness of control, not only over appointments, but over the establishment of new church centres and the disposition of the titles to ecclesiastical property generally, which was quite unknown anywhere in Europe.

The supremacy of the crown in Spain is evidenced in no way more markedly than by its entire freedom from dependence on the military and landed classes of the country. Yet the nobility were numerous, rich, and distinguished. In the sixteenth century there were twelve dukes, thirteen marquises, and thirty-six counts in Castile, some of whom had princely estates and power. The heads of such families as that of Mendoza or Gruzman or Lara or Haro or Medina Celi were among the greatest men in Europe. Yet the highest of these nobles was still an immeasurable distance below the king. The option of royal estates, the seizure of the grand masterships, the enforcement and extension of all latent powers of the monarchy had freed the Spanish kings from all danger of control by the great nobility.

The chief characteristic of the Castilian nobility, however, was not its wealth, but its numbers. Next in rank to the great nobles, or ricos hombres, were the caballeros, the knights, and below them was a vast number of hidalgos, mere gentlemen. In Castile all were accounted gentlemen who were sons of gentlemen, legitimate or illegitimate; all those who took up their residence in a city newly conquered from the Moors, providing themselves with horse and arms without engaging in trade; those who lived without trade in certain provinces and cities which had that privilege. Whether rich or poor, those who belonged to the noble class had many privileges: they paid none of the general taxes; they were free from imprisonment for debt; they had the preference in appointments to office in state and church; they had precedence on all public occasions; and, except in case of treason or heresy, they had the privilege in case of execution of being decapitated instead of hanged. [Footnote: Mariejol, L'Espagne sous Ferdinand et Isabelle, 278-284.]

These hidalgos and caballeros, many of them poor, living on inadequate estates, in service to other nobles or in irregular ways in the towns, furnished promising material for volunteer forces in war, for distant conquest, and for an expanding government service; but they were weak elements of economic progress. The conquistadores of Spanish America, the soldiers in Italy and the Netherlands, and the drones of Spain were all to be found among the teeming lower Spanish nobility and gentry. They made admirable soldiers. With all their pride and all their indolence, Spanish gentlemen were not too proud to fight, even in the ranks and afoot; or too lazy to endure effort and privation when they were for a military end. The Spaniards as a race were then, as now, abstemious, and could make long marches on a slender commissariat. Many of them were used to the extremes of heat and cold of the mountainous regions of their native country, and were fitted for the most trying of long campaigns, All the material was ready to the hand of the king for use in his European campaigns, or to be let loose for adventure in America. With this acknowledged position of legislative, judicial, administrative, and ecclesiastical supremacy at home; with the headship of a numerous, loyal, and warlike nobility; with the possession of a numerous trained official class, it was easy for the Spanish monarchs to impose a centralized and homogeneous system of despotic government upon the distant and widespread colonies of America.

The assertion of the absolute authority of the king over the Indies was never neglected or allowed to lapse. The adventurers who discovered and explored the West Indies, Central and South America, Mexico, and much of what is now territory of the United States; the captains who conquered these lands; the governors who organized and ruled them; the colonists who occupied them-all drew their permission so to act from the king, or if they went beyond their commissions quickly legitimated their actions by an appeal to him for an act of indemnity and a more adequate commission. Foreigners were by the edict of the king excluded from the Spanish possessions, or permitted a narrow field of action there; the policy of the colonies in matters of trade, relations with the natives, religion, and finance was dictated by the king. Upon the advice of his Council of the Indies he issued a continuous series of rules and ordinances, and finally drew up for the American possessions the "New Laws."

Yet supreme over her colonies as was the absolute monarchy of Spain, a false idea of their condition would be obtained if it were forgotten that the monarchy was only one of the national institutions. Other political habits of the people were firmly established as well as that of subserviency to the crown. Spain was the classic land of participation of all classes in government through the cortes; almost as old as the monarchy were the fueros, or franchises and charters; protected by these fueros, the cities and towns had become numerous, powerful, and almost self-governing; and even rural communities had in many cases a complicated and semi-independent system of control of their own affairs.

The cortes may be neglected here, since no such representative body ever arose in the colonies; but the same is not true of local self- governing municipalities. Not only were they characteristic of Spain, but analogous institutions were established as a Spanish population grew up and was organized in the Indies, where there was a strong tendency to revert to practical self-government and thus to defeat the centralizing policy of the monarchy.

Several hundred cities, towns, and rural communities in Spain held fueros granted to them by the king, a great noble, or some ecclesiastical body. These charters in many cases dated from the eleventh or twelfth century and conceded the most extensive rights and privileges. Under them townsmen could surround themselves with a wall, organize a military force, elect their own magistrates, judge their own inhabitants, collect their own taxes, pay only a fixed sum to the crown, and in other ways live almost as a separate political body under the general protection only of the king. [Footnote: Antequera, Hist. de la Legislation Espanola, 128-139.]

Notwithstanding many differences among the towns in size, character, and political privileges, among those of Castile there was a certain similarity of organization which may be described as follows, and may be looked upon as the type on which municipalities in Spanish America were originally constructed. [Footnote: Bourne, Spain in America, chap. xv.]

The citizens who possessed full political rights were known in the most general sense as vecinos; when acting as electors they were spoken of as forming the concejo, cabildo, or council. The actual body which met and directed municipal affairs was the ayuntamiento, made up of the more important magistrates and officials, of whom there was usually a considerable number and variety. The alcaldes exercised judicial functions, both civil and criminal; the regidores had charge of the administrative work of the community; the corregidores of its oversight in the interest of the king; the alguazil mayor commanded the military forces; the mayor domo had the oversight of the town property. In some towns one or more of the alcaldes had the title of alcalde mayor, and held a presiding function. There were various lower officials, such as alarifes, rayones, and others in great variety. [Footnote: Antequera, Hist. de la Legislation Espanola, App. ix., 542.] The town officials were in some cases appointed by the king, in others elected by the vecinos, in still others divided between royal and local appointment. They were usually drawn from the body of the citizens, but in some cases from gentlemen or even noblemen who had houses in the town or simply owned property there.

This municipal organization and certain other ancient institutions tended to reappear in the colonies, and thus to modify and limit that absolutism of the central government which was without doubt the leading characteristic of the Spanish colonial system. The provincial interests of the colonists also opposed the monarchy. The great distance of the colonies from Spain, the rigidity of official custom, the difference between the interests of the colonists and the desires of the government, and the lack of vigor at home combined to prevent a really effective control of the colonies. "Obedezcase, pero no se cumpla" (Let it be obeyed, but not enforced) was a saying sufficiently descriptive of the attitude of the colonies towards unpopular decrees from home.

The servitude of men of dependent races, which became such a fundamental characteristic of Spanish America, is an instance of this incompleteness of control by the central government. Slavery was a product of American conditions and was not general in the mother- country. A small number of Moorish slaves captured in war and of negroes imported through Portugal were scattered through Spain, but they did not form a class, and were protected rather than depressed by the law. [Footnote: Lea, The Moriscos of Spain, 2.]

Slavery in America was always distasteful to the home governme

nt, and only reluctantly permitted because of the apparent necessities of the case and in the hope of ameliorating the lot of the Indians. The whole plan of the asiento was based on the principle of regulating and limiting slavery. The shameful extermination of the native races of the West Indies is a long, sad history of kindly intentions and wise regulations on the part of the home government, made nugatory by the determined self-interest and heartless cruelty of the colonists. [Footnote: Lea, "The Indian Policy of Spain" (in Yale Review, August, 1899); Bourne, Spain in America, chap. xviii.] The fervor of Las Casas could readily obtain from the Spanish monarchs proclamations declaring the freedom of the Indians and even definite statutes providing for their good treatment; but neither his fervor nor the monarch's power could secure the enforcement of the laws or save the miserable natives. [Footnote: Lea, "The Indian Policy of Spain" (Yale Review, August, 1899), 132, 135, 138, 141, 143. etc]

In theory the Spanish sovereigns ruled the Indies with an autocratic sway. In practice the colonies were governed by a bureaucracy or, more commonly, allowed to drift. Yet by the forms of Spanish rule they were deprived of all wholesome local freedom, of all power of independent action, and of all deliberate choice of their own policy. They did not, therefore, develop during their colonial period a robust provincial life and character; and only late and with great difficulty did they struggle into independence and obtain self-government. [Footnote: Paxson, The Independence of the South-American Republics, chap. i.]

The institutions of France which were transferred to the New World or which exercised a direct influence on its political development belong to a period a century or a century and a half later than those of Spain which have just been described. Yet during that period there had been no essential alteration in the general direction of political development in France, and the system which Canada reflected in the seventeenth century was a more elaborate rather than a different system from that of the sixteenth. This development had, indeed, been in progress since the Hundred Years' War, and consisted in the steady rise of the power of the centralized monarchy. In Spain we have seen a sudden growth of absolutism and centralization within one reign. In France the foundation of the absolute monarchy was laid earlier, it was constructed more uniformly, and the resulting edifice was more firm and symmetrical.

The extension of the royal household, the sub-division of the royal councils, the creation of the parlements, [Footnote: Lavisse, Histoire de France, V., pt. i., 215.] the appointment of governors of provinces, bailiffs, and intendants, and the establishment of a complicated hierarchy of financial and judicial officers and official bodies, [Footnote: Ibid., V., 247.] were processes which arose from the fundamental conditions of France and from the genius of her government. In this development there were periods of rapid growth, as that of Francis I.; of temporary reaction, as that of the religious wars. Of the periods of the former none was more important and definitive than that which was in progress during the years in which Canada was struggling into existence-that is to say, the reigns of Henry IV. and Louis XIII., from 1589 to 1643. By the latter date, that of the accession of Louis XIV., the work was accomplished. France was, in theory and in practice, a despotism. It was so in theory, for Louis himself could declare, "All power, all authority, are in the hand of the king, and there can be none other in the kingdom than those which be established there." The epigram attributed to that monarch, "L'etat, c'est moi," was not an exaggerated description of the royal functions, according to the views of the king and of his most thoughtful ministers. "The ruler ought not to render accounts to any one of what he ordains. … No one can say to him, 'Why do you do thus?'" said Bossuet. In his copy-book as a child Louis XIV. was taught to write, "To kings homage is due; they do what they please." In practice the absolute power was no less a reality, since by royal decree the king not only made war and peace, determined upon foreign and internal policy, established religion, and codified law, but also disposed of the property of his subjects through arbitrary taxation. A systematic scheme of government, in which all lines should converge upward to the sovereign, could be drawn more justly for France in the seventeenth century than for any political structure since the Notitia Dignitatum was drawn up for the later Roman Empire.

The royal government was as simple territorially as it was in functions. It extended over all the territory of France and of the French possessions beyond the seas. Instead of a collection of provinces, of some of which the king was direct ruler, of others only feudal lord, as had been his position in the fourteenth century, he was now king equally over every one of his subjects in every part of his dominions. The administration of this territory had been transferred from its feudal lords to the king by the appointment in the fifteenth century of governors of the provinces, whose position was almost that of viceroys.

An even more effective instrument of royal control was afterwards created in the form of the intendants. Dating in their beginning from the middle of the sixteenth century, reintroduced by Henry IV. in his reconstruction of France after the religious wars, [Footnote: Rambaud, Hist. de la Civilisation Francaise, I., 537.] these officials were settled upon by Richelieu in the period between 1624 and 1641 as the principal agents and representatives of royal power. Eventually each province had its intendant alongside of the governor, and these thirty- four officials exercised the real government over France. They were drawn not from the great nobility, as were the governors, but from the petty nobility or purely official class; they had no local connections or interests apart from the crown which they served; they could be removed at will; they exercised powers only by consent and direction of the crown; they were, therefore, absolutely dependent. On the other hand, they were habitually invested with powers of almost unbounded extent. They could withdraw cases from the ordinary judges and hear and decide them themselves; they recruited and organized the army; they had oversight of the churches, the schools, roads, canals, agriculture, trade, and industries; they must see that peace was kept; and they must watch over and report on the actions of all other royal officials in the province, including the governor. It was the intendant who made the despotic government of the king a reality. John Law declared, in a letter to D'Argenson, that "this kingdom of France is governed by thirty intendants."

This despotism undoubtedly made France great, but it cost a terrible price. Like all supreme powers, it was jealous, and suffered no other public institutions to exist alongside of it. In competition with its power all older bodies became weak. The Estates General did not meet again after 1614; the parlements humbled themselves; provincial, municipal, and communal governments dropped into obscurity; the individual man, unless he was a functionary, lost all habit of political initiative, independence, or criticism. The mighty machine of the government was too vast, too complicated, and too distant for the common man to do aught but submit himself to it and lose much of his individual force thereby.

Enforced orthodoxy in religion was a natural outcome of the unity and symmetry of government; hence, notwithstanding the large number of Huguenots, the economic value of the Protestant element in the population, and the tolerance which might be expected from so enlightened a government, the Edict of Nantes was repealed in 1685, and, theoretically at least, all the population of France and of the French possessions were after this time orthodox Catholic Christians, thus again obtaining uniformity, but at the price of almost irreparable loss of population and of activity of mind.

Yet alongside this supreme despotic government had been preserved certain relics of feudalism. The sovereigns and great ministers who had humbled the aristocracy did not wish to humiliate it. While depriving the nobles of all political power they had carefully preserved to them their social privileges. This was done partly by giving them a favored position in the administration of the great machine of centralized royal government, partly by allowing the continuance of old feudal privileges. To the nobles were reserved all the higher positions in the army, navy, civil service, administration of the provinces, and in the church; [Footnote: Rambaud, Hist. de la Civilisation Francaise, II., 75-78.] and the government of French possessions beyond the seas was in almost all cases given to noblemen.

Of the feudal privileges of the nobility a number were profitable in money or gratifying to pride. Every landed noble had some degree of jurisdiction, frequently that of "high, mean, and petty justice"-that is to say, the right of trying and settling a large variety of judicial matters among his tenants; his right of punishment extending in some cases even to the infliction of the death penalty. He had the right to receive certain payments upon every sale or lease of the lands of any inhabitant of his fief; he received fees upon sales of cattle, grain, wine, meat, and other articles within the limits of his lands; he alone had the privilege of hunting and fishing or of collecting a fee for granting the privilege to others; and he alone could keep a dove-cote or a rabbit-warren; he had the banalites-i.e., the right of requiring all tenants on his estates to grind their grain at his mill and to bake at his oven; he had corvees-the right to a certain amount of unpaid labor from his tenants; his land was exempt from the taille, the most burdensome of taxes; and he had many other and diverse seigneurial rights, often, indeed, more vexatious to the tenant than they were profitable to the seigneur. [Footnote: Rambaud, Hist. de la Civilisation Francaise, II., 84-90.] These rights of land-holders were survivals from an earlier period; but they were survivals which still had great value and considerable vitality. Although permitted to exist by the absolute monarchy, they were in reality antagonistic to it in spirit, and might at any time, and actually did, become a serious disadvantage to it. Among the more primitive surroundings of Canada these privileges of a landed aristocracy obtained new life and vigor, and feudalism played a conspicuous if not a leading part in the troubled history of that colony. [Footnote: Parkman, The Old Regime in Canada, chaps. xii.-xv.]

Of the political institutions of Holland not so much need be said, for New Netherland was a commercial not a political creation, the factory of a trading company, not a self-governing colony. Yet, under the general control of the West India Company, municipal institutions were established at Manhattan, and in the form of the patroonships feudal powers were granted to large landholders along the Hudson and Long Island Sound; and in both these cases the models were drawn in large part from the home land.

The United Netherlands was a confederation of seven provinces, Holland being far the most influential. But Holland itself, as was true of the others, was in many respects a confederation of municipalities. The peculiar history of the country had been such that from a comparatively early period the towns and cities had obtained charters from their overlord, the count of Holland, or from lesser noblemen, granting them the most extensive rights and privileges. These rights had continued to be extended till the power of the count within the towns was narrowly restricted. His representative was the schout, but that official exercised rather a prosecuting and executing than an independent power, bringing offenders before a town court, [Footnote: Davies, History of Holland, I., 77.] and carrying out its judgments.

The schepens who made up this court, with two or more burgomasters and a certain number of prominent citizens, organized as a council or vroedschap, carried on the affairs of the city, making its laws, exercising its jurisdiction, and administering its finances in almost entire independence of the central government. [Footnote: Fruin, Geschiedniss der Staatsinstellingen in Nederland,68, 69.] The representatives of the larger towns, along with the deputies of the nobles, also made up the states of Holland, any one city having the right of veto in any proposed national action. [Footnote: Davies, History of Holland, I, 85.] Outside of the towns the open country was either domains of the count, or fiefs held from him by church corporations or nobles. On the latter many old feudal powers survived through the sixteenth century. The nobles exercised always low and sometimes high jurisdiction, they taxed their own tenants, they carried on private war with other nobles, and they enjoyed an exemption from the payment of taxes. The feudal conditions in these rural domains and the highly developed internal organization of the cities seem at first glance diametrically opposed; but, after all, their relation to the central government was much the same, the city being treated as a fief held by its council; [Footnote: Jameson, in Magazine of Am. Hist., VIII., chap, i, 316.] and as a matter of fact it was these two institutions which were introduced into New Netherland. [Footnote: O'Callaghan, Documentary History of New York, I., 385-394.]

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