POLITICAL INSTITUTIONS OF CENTRAL EUROPE (1400-1650)
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There, as at home, this court system gradually superseded the more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 government, 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.]