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fees like those of every person connected with the law being fixed, and so they conspired with the rest to prolong the litigation. The sheriff received two and a half per cent for levying, and if the amount was not paid within three days ten per cent was to be added 105 Small fines could, in certain cases, be collected even if notice of appeal had been given.

Aside from the usual causes for crime, there were in New Spain a number of special incentives, such as race antipathy, growing antagonism between castes and classes, slavery, subjection of Indians, isolation of colonists favored partly by mining allurements, and the existence of unsubdued tribes in the mountain regions. The latter features served to maintain the adventurous spirit instilled by conquerors, who still battled on the frontier to extend dominion and settlements; and among a large number lurked the roaming disposition inherited from less settled aborigines. This inclination turned naturally toward highway robbery among the vicious, and the extreme prevalency hereof is generally known. The reader has already become aware how wide-spread was crime in the country,106 and how more than one viceroy earned the gratitude of the country by energetic measures against it, although these suppressions of evil had but a temporary effect. Decrees against indiscriminate carrying of weapons, and other measures produced little good, and during more than one period extraordinary powers were conferred on inferior judges for dealing with malefactors.

A beneficial step was the introduction, in 1631, of the santa hermandad, which like its long-established prototype in Spain acted chiefly as thief-catcher, aided by troops whenever necessary. Even this proved insufficient, however, and so the dreaded acordada was

105 Certain implements, horses, and what not were exempt in instances. In Mexico, Aranzales de los Tribunales, Gobierno, etc., Mex. 1759, 158 folios, are given the fees for all public departments.

106 Statistics of crime are very imperfect, yet valuable deductions may be drawn from those in Gazetas de Mex., 1790–2, v. 8 et seq., and Diarios, Mex., xii.-xiii. passim, and other volumes such as the earlier Gomez, Diario, which gives almost daily accounts of executions.



installed in the beginning of the eighteenth century. This with its vigilant-like features of rapid movement, inflexible sternness, and swift meting of justice, spread a wholesome terror that proved lasting, and did more to check crime than anything else. The power over liberty and life accorded to this body, and at times to local magistrates, led naturally to many abuses, and consequently to certain restrictions, yet the remedy could not have been worse than the disease. Justice was too often defeated by its own officers; for few rose above the temptation of bribery, and many succumbed through insufficiency of pay. And who could severely blame them, when the king placed himself above the law and issued regular tariff's of prices, for which exemption could be granted from laws concerning offices and trade, birth and race stigma,107 and a host of other matters, often with utter disregard for common justice or public welfare? 108 This tampering was promoted by supporting from prison fees the staff connected with this establishment. The rich could here surround themselves with comforts, people of standing enjoyed privileges, and those less favored could often be made to languish in jail for unpaid charges.109 A regidor must visit the prison every Saturday; in audiencia towns two oidores did so,110 attended by fiscal and alcalde, to investigate cases of wrongful detention or maletreatment.

Imprisonment for debt obtained here as elsewhere. Indians were surrendered to private creditors to work off their indebtedness, the pay being regulated accord

107 Special orders were issued at intervals to regulate the assistance by military. Fernando, vii., Doc., 314-27.

108 A mere glance at the lengthy tariff published by the government in the beginning of this century, in the Gazeta, xi. 67-72, reveals the pitiful extent of such mercenary abuse.

109 Yet it was ordered that the poor should not be detained for costs, taxes, or prison fees. Indians were exempt from fees. Each town or village must have a prison built by the community, or from penalty funds, with chapel and separate place for women. The alcayde or keeper must reside at the jail, and with his turnkey visit the prisoners every night. No Indians must be employed. Recop. Ind., ii. 370 et seq. A charity fund existed for the maintenance of prisoners. Revilla Gigedo, Instruc., 30.

1o Also on great holidays, and oftener if required.


ing to their efficiency. They, as well as other castes, could also be sent to convents or public works, or even sold for a term to contractors; and in view of the prevailing official corruption it is easy to imagine the extreme oppression to which this law gave rise.

Punishments in America were more severe than in Spain, fines being double." The greater number of criminals were sent to the frontier, the worst to hard work under the garrisons, others to form settlements there, or even to enlist, particularly for the Philippines, greatly dreaded on account of their climate, the distance and intervening sea lending additional terror. The galleys in Spain and Tierra Firme received a certain number; halters were long in use,113 and the lash was freely administered, even feathering being legally applied. Death penalties were often cruel and preceded by torture, both during the examination and as part of the punishment. The most common form of execution was by garrote, but highway robbery usually entailed hanging and quartering, the head of the criminal being fixed on a stake. The acordada also used the more prolonged method of dragging with horses, and giving the coup de grâce with lances before quartering." Burning at the stake was not restricted to the inquisition, for counterfeiters and persons guilty of bestiality received this sentence.115 A not uncommon mode of dealing with wife-murderers and the like was to cast them into a water-butt, with a cock, a monkey, and a viper. In

111 A man and woman were sold to obraje labor for six years for concealing stolen goods. Robles, Diario, 376-7. At least one third of the pay must be given for sustenance, but no new loans could be contracted whereby the servitude was prolonged. Four months formed the limit in ordinary cases. For drunkenness no servitude should be imposed. Cedulario, MS., iii. 205–11.

112 Recop. Ind., ii. 379.

113 For restrictions, see Ordenes de la Corona, MS., i. 187-92; criminals who enlisted for the Moluccas received both pardon and high pay, 125 pesos. Robles, Diario, ii. 230-2.

114 Gazetas Mex. (1790), iv. 62.


115 Quemado con una yegua, complice de su bestial crimen.' Id., 1787-9, ii. 411, iii. 410. Sodomites were also burned. Robles, Diario, 99, 110-11, 135-6, 157, 222, 271; Guijo, Diario, in Doc. Hist. Mex., série i. tom. i. 38-9, 367, 371-2,


many cases the adjuncts were merely figurative. Conformance to the letter rather than the spirit of the law seemed to be uppermost with its servant, and thus we find instances of dead men being hanged in fulfilment of sentence,118 and little regard paid to age. On one occasion a man eighty-five years of age and a boy of fourteen were hanged for robbery, the former being first tortured till his arms snapped.117


In sentencing to death the courts proceeded with great formality. The condemned was expected to kiss the paper of sentence after hearing it read. The priests then took charge of him, and brothers of mercy brought in the special crucifix, el Santo Cristo de la misericordia, with which to direct his devotion. Arrayed in a white cloak,118 with eyes bandaged, he was thereupon placed on a hide dragged by a horsea nominal form of dragging to death-and conducted forth. First marched the piper and crier, proclaiming the crime, followed by four to six of the police, several members of the benevolent archicofradia society, and brothers with torches and candles. Then came the victim on the hide, partly lifted by charitable persons on either side, attendant priests, and infantry, closing with two court officials on horseback. On reaching the scaffold in the square of the town, surrounded by troops, the condemned was supported by a priest and the executioner, and fortified with prayer till the time for hanging. A sermon impressed the warning on the multitude, and the corpse was thereupon taken to the nearest water, placed in a cask containing the painted figures of a cock, a serpent, and a monkey, and rolled awhile on the surface,119 after which it was conducted by the court and police offi

116 Guijo, Diario, 38-9.

117 Id., 376-7. In execution of what they considered duty, the alcaldes in many instances braved the episcopal anathema by taking fugitives from the sanctuary.

118 For plebeians. Nobles had a black robe, the scaffold being also draped, and they were exempt from the ignominious noose.

119 A figurative fulfilment of the sentence that the body be cast to the waters so as to leave no memory of the deed. Diario, Mex., 1806, ii. 337-9.

cials to the jail and surrendered to brothers of mercy, who attended to the funeral.

The material of the present chapter rests mainly on Recopilacion de Leyes de los Reynos de Indias, the official embodiment of the laws for America issued by the king and India Council during the three centuries of Spanish rule. A history of this valuable work together with an analysis of its contents has been given in Hist. Cent. Am., i. 285-8, this series. It does not, however, contain all the laws issued, nor does it indicate more than a small part of the variations they have undergone, and the student is accordingly obliged to consult a number of other collections made before its first publication, in 1681, or between the dates of its later editions, some bearing on special subjects or districts, others covering a limited period. Foremost among these as the first collection printed in America is the Proviciones, Cédulas, etc., prepared by Oidor Puga of the Mexico audiencia, and published at this city in 1563. It is generally known by his name and embraces merely the laws concerning New Spain up to this date. The method of Puga is faulty, and this is the more to be regretted as the work is invaluable for the early history of the country. Montemayor, oidor of the same audiencia, who by supreme order reissued in 1671 the Sumarios of laws for all the Indies printed in 1628 under the care of Aguiar and Acuña, added to it the decrees directed to New Spain during this interval. It was published at Mexico as Sumarios de las Cedulas, in a bulky folio. Two distinct supplements contain the important decrees of the audiencia and viceroys and governors respectively, since the formation of the government. Occasional laws are given in full, the rest cover in extract form half of each page, the other half being reserved for very imperfect marginal notes. Before he came to Mexico Montemayor had been governor and captain-general of Española, and consequently president of its audiencia. The growing rarity of this work induced Oidor Beleña in 1787 to publish at Mexico by subscription a collection supplementary to that of the 1681 edition of the Recopilacion de Indias, under the title of Recopilacion Sumaria, in two folio volumes. To this he prefixed a reprint of the two appendices of Montemayor, and two collections of the audiencia and criminal court decrees which had appeared since his time. Although the division of the subject into five parts is inconvenient, yet the work is far superior to its predecessors, with more useful marginals. The second volume is reserved for the decrees and regulations requiring full text. The pretentious Biblioteca de Legislacion Ultramarina, issued at Madrid 1844-46 by Zamora y Coronado, contains all the latest important laws for the reduced possessions of Spain beyond the ocean, but it is very faulty for the eighteenth and the opening of the present century, the important changes made during this stirring period being reserved either for hasty summaries or occasional imperfect notes.

In addition to these collections and those mentioned in other volumes, I have consulted for this chapter Ordenanzas del Consejo Real, Madrid, 1681; Providencias Reales, MS., Mexico, 1784; Reales Cédulas, MS., 2 vols.; Cedulario, MS., 3 vols., containing a selection of the more important decrees, in full text, touching New Spain, and serving therefore as valuable auxiliaries to the

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