some parish churches.* This principle of preference in favour of the Creoles, was still carried further; so much so, that all foreigners, amongst whom are enumerated, such as are not naturalized in Castile, viz. Aragonese, Catalans, Valencians, &c. though allowed to go over to reside or traffic there, were not eligible to any ecclesiastical benefice in Spanish America, not even when named by the king himself. Thus it was, that to empower the Navarrans, naturalized in Castile, for the above purposes, an express law of the Indies became necessary. ‡

With regard to temporal dignities and offices, the laws are not less explicit. Many royal decrees contained amongst the laws of the Indies, expressly declare, “that in all cases of government, justice, administration of finance, commissions, encomiendas of Indians, &c. the first discoverers, then the pacificators, and lastly the settlers, and those born in the said provinces" (of America) "are to be preferred." Nor are these, and many others that might be named, vain and pompous privileges, granted at the instance of flattery, extorted in any undue manner, or obtained without the surrendry of good equivalents and consideration. On the contrary, they form the basis of the social compact, instituted between the kings of Spain and the first conquerors and settlers, on behalf of themselves and their posterity; who thus ceded up to the crown of Castile, those regions they had discovered by their enterprize, won by their blood, and settled with their own for tunes, on condition that they, the said kings, kept the compacts and agreements contained in the laws of the Indies,

* Ibid, ley 2, tit. 2, lib. 1. et alibi.

+ Ibid, ley 31, tit. 6, lib. 1.

Ibid, ley 32, tit. 6, lib 1

1

wherein they are termed privileges; the basis of which has been just quoted.*

§ Even the Indians, in accepting the dominion of Spain, came under certain stipulations, called in the laws, 'capitulations; by which their rights were defined, and their relative situation, as social beings, was established. Charles V. after the consultation held with Las Casas, at Valladolid, in 1545, declared, that the wars waged against them were unjust and tyrannical; and even prior to that period, in 1587, it had been decreed, that those of their laws and customs, which were not opposed to the spirit of the Christian religion, should be observed with equal force, as if they had been specially decreed by the king. An acknowledgment was made of their classes and nobility; these were exempted from tribute, as were also their caciques, lords, magistrates, and governors, who were, besides, allowed the right of addressing the king in person. The compacts formed with the Indians of Tlaxcala and others, in consideration of their auxiliary aid, are, also, seen in the respective accounts of the Mexican and Peruvian conquests. After the establishment of Spanish power, when any insurrections amongst the Indians occurred, the kings always ordered new privileges, grants, and exemptions to be offered to them, as a means of pacification; and every thing, in theory at least, tended to inspire them with confidence, in the solemn pledges and promises made to them.† Remesal observes, that the laws and compacts made in favour of the Indians, are, in substance, mere conclusions, drawn from the writings of Las Casas, in which,

* Vide, La Revolucion de Mexico, tom. 2, lib. 14, lately printed in London, wherein this point is treated at full length and with great erudition.

Ibid, ley 9, tit. 4, lib. 4.

having proved the injustice and horrors of the conquests, he argued that the kings of Spain, as the protectors of the gospel (the only title by which the new world was at first held*)were rigorously bound in justice, not to injure them in their natural rights, property, or persons.† In numberless other royal orders and decrees, it is further commanded, to "treat the Indians well; as free men, and vassals of the crown of Castile, as in fact they are." Thus by the laws themselves, the legislative power over the Indians, is not left absolute and arbitrary in the hands of the monarch himself, much less so, in those of the self created governments of Spain.

Even the social footing of the negroes in Spanish America, was established by a solemn compact, made between Bayano their king, and the Marquis de Cañete, viceroy of Peru, in 1557. According to Garcilasso,+ they then agreed to lay down their arms, on condition that they were allowed to settle as natives of the country, and had the privilege of freeing themselves, when ever they were possessed of the requisite funds. Their free descendants of colour, are consequently entitled to the rights of their forefathers, yet, as will hereafter be seen, the Cortes themselves have not only deprived them of the right of citizenship, but have even excluded them from the general census.

§ Thus does it appear, that from the time of queen Isa

* Vide Alonzo de jedas address to the Indians, in Robertson's History of America, vol. 1, note 23, page 269; also Pope Alexander sixth's Grant, and queen Isabella's will.

+ Revolucion de Mexico, tom. 2, lib. 14.

+ Cement del Peru, part 2, lib. 3, cap. 3.

The price for freeing a prime negro, fixed by law, is 300 dollars, which not being left to the will of the master, as in our colonies and those of the French, greatly promotes emancipation.

of the armed force he had at his command, excluded the grandees and prelates from the Cortes in 1538; thereby reducing this popular representation solely to the deputies of the towns and cities, from whom he stood in need of subsidies for the public service. From that time, the Cortes declined, in such a way, as to become a mere ceremony, to swear in a new king; and in fact, the general Cortes were never since assembled for public business, till lately in La Isla de Leon.

§ The whole of Spanish America, as before stated, was governed by a supreme council, called of the Indies, equal in honours and in power with that of Castile, and so independent of it, and of all other branches of government, that no law premulgated in Spain, nor even a bull of the Pope, was legal or valid on the other side of the Atlantic, unless authorized by the seal of the said council of the Indies. Like that of Castile, it was further empowered to enact laws relating to America, in concurrence with the king. A code of particular laws, was also given to the American provinces, but the monarchical constitution, was declared equally extending to them.

§ Such were the rights, privileges, and equality granted and sanctioned by the respective sovereigns of Spain, to the discoverers and settlers of the new world; such as they are yet found in their own legislative code, and in the primitive grants, charters, and compacts, on which their possession of these countries, was founded. From these faithful sources, it is, as well as from the ancient histories of the conquest, that the above grounds have been extracted. Hence may it fairly be deduced, that the relative situation of the ultramarine provinces to Spain, originally, was not that of dependent colonies on

a parent state; but that they were, by their own prerogatives, and by the laws themselves, made equal with Castile, and were even placed on a more eligible footing than their sister provinces of the Peninsula, which, like themselves, had been successively added to the said crown of Castile. It further results, that the king was their chief, if not, only and immediate bond of union.

Humboldt, who was not only theoretically conversant with the legislation of Spanish America, but also confessedly, the most accurate and enlightened observer who has visited those long secluded regions, expressly says, "that the Kings of Spain, by taking the title of Kings of the Indies, have considered these distant possessions, rather as integral parts of the Spanish monarchy, as provinces dependent on the crown of Castile, than as colonies in the sense attached to this word, since the sixteenth century, by the commercial nations of Europe.* In another part of the same work, he adds, "According to old Spanish laws, each viceroyalty is not governed as a domain of the crown, but as an insulated province, separated from the mother country. All the institutions, that together form an European government, are to be found in the Spanish colonies, which we might compare to a system of confederated states, were the colonists not deprived of several important rights in their commercial relations with the old world.† Solórzano, one of the compilers of the laws of the Indies, and besides, one of the most learned of the Spanish jurisconsults of his time, confesses, "that the Indies were incorporated to the crown of Castile, as feudatory king

* Essai Politique, chap. 12, lib.5.

Ibid, chap. 6, liv. 13.