The framework of empire
On 13 May 1625, following the dissolution of the Virginia Company in the previous year and the imposition of direct royal rule on the struggling colony, Charles I issued a proclamation stating that Virginia, the Somers Islands and New England formed of right a part of `Our Royall Empire, descended upon Us and undoubtedly belonging and pertaining unto Us'. `Our full resolution', the proclamation continued, `is to the end that there may be one uniforme course of Government, in, and through, our whole Monarchic. ..'i
`Our Royall Empire' . . . These were high-sounding words, with a portentous, if somewhat ambiguous, ancestry. In 1533 Henry VIII had proclaimed the Realm of England to be an `Empire', a term which seems to have been intended as an assertion not only of national sovereignty but also of claims to territorial authority over England's neighbours, most immediately the Irish and the Scots.2 The first known use of the term `British Empire' dates from 1572, and evoked a historic empire of the British Isles lost in the mists of antiquity; but it was a notion that could be expanded without excessive difficulty to embrace overseas settlements in America.3 When Charles I spoke of `Our Royall Empire' he would seem to have had in mind his own benign government over an empire of British communities, consisting primarily of the kingdoms of England, Scotland, Ireland and the principality of Wales, but now stretching across the Atlantic to include the new American plantations. Between them these constituted `our whole Monarchic', which he envisaged as being ruled by `one uniforme course of Government'.
This was more a matter of aspiration than of fact. Like Habsburg Spain, Great Britain, as united under the rule of James VI and I, was a composite monarchy. In common with its continental counterparts the British composite monarchy of the early Stuarts - `our whole Monarchic' - consisted of different realms and territories with their own distinctive traditions and forms of government, although subject to one and the same monarch. But an overseas settlement governed not by the crown but by a chartered company, even if its charter had been granted by the crown, was an anomaly among such territories; and for a monarch who cherished the vision of `one uniforme course of government' and had a passion for tidying up loose ends, the subjection of Virginia to direct royal rule in the year before his accession no doubt represented a source of considerable satisfaction. Yet although Charles's assertion of a direct interest in overseas settlements clearly showed that he regarded them as something more than mere commercial ventures, his reign did not see much progress in the matter of bringing the American territories under `one uniforme course of government'. The crown did, however, insist that investors and potential colonizers must first secure royal authorization for their projects, and made clear its intention to maintain a general oversight over their activities, which, if properly regulated, could add substantially to national power and prosperity.
While the foundation of the Massachusetts Bay Company in 1629 suggested that, in spite of its failure in Virginia, the chartered company might still have an American future, the trend was towards the establishment not of royal, but proprietary, governments - a system under which land grants and rights of jurisdiction were made to well-connected patron proprietors who possessed privileged access to the monarch and were well placed to mobilize capital and potential settlers. Barbados became a proprietary colony in 1629 as one of a number of West Indies islands that fell within the patent of the Earl of Carlisle,' while George Calvert, Lord Baltimore, was granted the proprietorship of the proposed new settlement of Maryland, with a royal charter being issued to his son, Cecilius Calvert, in 1632, conferring on him powers of government similar to those traditionally exercised by the prince bishops of Durham. With almost regal powers vested in the proprietors, the medieval model of palatinates in the marchlands bordering Scotland and Wales seemed at first sight a promising model for the frontier societies springing up in British America.' Experience, however, was soon to suggest otherwise.
With the British colonizing enterprise still at an experimental stage, and little prospect of rapid returns from investments, it is not surprising that colonial ventures under the early Stuarts should have assumed a variety of forms, resulting in a patchwork of different styles of government and jurisdiction. Although a Commission for Regulating Plantations was set up under the chairmanship of Archbishop Laud in 1634,' the crown was not strong enough, and the colonial economies themselves not developed enough, to allow the imposition of any significant degree of uniformity, or even of central direction. Survival was the first priority, and it was only in the middle decades of the seventeenth century, as the colonies took firm root and the Britain of the Commonwealth and the Restoration established itself as a major maritime and commercial power among European states, that it became possible to think in practical terms of developing a genuinely imperial policy and a more systematic framework for the government of overseas empire. Significantly, it was in this period that the terms `the British [or English] Empire in America' or `o f America' came into use. The more general term `British Empire', used to designate a unitary political body of England, Ireland, Scotland and the colonies, does not seem to have made an appearance before the second quarter of the eighteenth century, following belatedly in the wake of the Anglo-Scottish union of 1707. Even then, however, the term was slow to make its way into print. Before 1763 it appeared in only sixteen titles, with a further 108 added between then and 1800. `Colonies' and `plantations' remained overwhelmingly the terms of first choice.'
The relatively slow and haphazard British moves towards the imposition of empire stood in marked contrast to the speed with which Spain's American territories were formally incorporated within an effective imperial framework. Again, however, the terminology proved ambiguous. When their monarch was elected Holy Roman Emperor in 1519, under the name of Charles V, the Castilians made it clear that for them he was, and remained, primarily King Charles I of Castile.' Castile had no intention of being submerged within a universal empire, a concept towards which it was traditionally hostile. Its king, however, was now not only the Emperor, but also the ruler of a vast composite monarchy, of which Castile was one member, although increasingly Primus inter pares, in a complex of kingdoms and territories that included the Crown of Aragon, the Netherlands and Spain's Italian possessions. On Charles's abdication in 1556, his son Philip II of Spain was left with the bulk of his composite monarchy, but not the imperial title, which went to Charles's brother Ferdinand.
Eventually a name would emerge for the collectivity of lands owing allegiance to Philip and his descendants - the monarquia espanola, the Spanish Monarchy. But along the way various suggestions were made to endow Philip with a title which would give him clear precedence over his closest European competitor, the King of France. In 1564, for instance, he received suggestions that he should style himself Emperor of the Indies, or of the New World.1° This was in line with the argument originally put forward by Hernan Cortes that Charles could legitimately style himself `emperor' of New Spain1' - an argument which he ignored, probably on the grounds that Christendom traditionally knew only one Emperor, the titular head of the Holy Roman Empire. In rejecting the new suggestion, Philip was presumably moved by the same considerations as his father, and especially by the desire not to give unnecessary offence to the Austrian branch of his family. But as early as 1527 Gonzalo Fernandez de Oviedo had written of `this occidental empire of these Indies''12 and Philip's seventeenth-century successors on the Spanish throne would be dignified in various publications with the title of `Emperor of the Indies' or `Emperor of America'. Neither the title, however, nor the term `empire of the Indies' ever quite attained official status during the two centuries of Spanish Habsburg rule.13
While not formally constituting an empire, the transatlantic territories of Spanish settlement were early endowed with their own distinctive juridical status within the Spanish composite monarchy. Nominally, this monarchy consisted of realms and dominions of two types, those acquired by inheritance and dynastic union, and those acquired by conquest. The first type, which were joined in partnership on an equal footing (aeque principaliter in the juridical terminology), would continue to be ruled in accordance with the laws and customs which prevailed at the moment of union. The second, as conquered territories, became subject to the laws of the conqueror. This, at least, was the theory, although in practice even kingdoms like Naples and Navarre which could be classified as 'conquered', tended to retain in large measure their customary forms of government.14
The Indies were indisputably conquered territory, and Alexander VI, in his bull of 1493, specifically stated that they were henceforth to be `united with, and incorporated into, the crown of Castile and Leon'.15 Faced with the options of maintaining the newly acquired transatlantic possessions - still only a few islands - as a separate entity or incorporating them into one or other of the crowns of the recently united Castile and Aragon, Ferdinand and Isabella chose the second option. There is no indication that they ever considered incorporating them into the crown of a now united Spain, of which they were joint monarchs. Their further decision to incorporate the Indies into the Crown of Castile rather than that of Aragon had an obvious logic. Andalusia, from which Columbus's expedition had set sail, formed part of the kingdom of Castile and Leon, and the recently reconquered kingdom of Granada had been incorporated into the Castilian crown. So, too, had the Canary Islands. Any further conquests among the islands of the Atlantic could therefore naturally be conceived of as an extension of Castilian and Andalusian space.
The papal bull of 1493 was addressed to both Ferdinand and Isabella, as joint rulers. On her death in 1504 Isabella bequeathed to her husband the lifetime usufruct of half the crown's revenues from the Indies and certain other dues, on condition that on his death all such revenues should revert to the heirs and successors of the couple on the throne of Castile and Leon. Ferdinand duly complied with this condition in the will drawn up before his death in 1516. Full rights over the Indies then devolved upon their daughter Juana, as Queen of Castile, and - in view of her mental incapacity - on her son Charles, the future emperor.16 The juridical status of the new transatlantic possessions was spelt out in a decree issued by Charles V in Barcelona on 14 September 1519, which began: 'By donation of the Holy Apostolic See and other just and legitimate titles [a clear attempt to avoid exclusive dependence on papal donation as the legitimation of the royal title, by evoking claims based on conquest or first discovery], we are Lord (Senor) of the West Indies, Islands and Mainland of the Ocean Sea, both discovered and to be discovered, and they are incorporated into our Royal Crown of Castile.' The decree went on to state that the union with the Castilian crown was to be perpetual, and to prohibit any alienation or division of the territories in favour of another party.17
The incorporation of the Indies into the Crown of Castile had immense longterm consequences for the development of Spanish America. Technically this was to be a Castilian, rather than a Spanish, America, just as the territories of North America settled from the British Isles were technically to constitute an English, rather than a British, America. Although the kings of Castile were also kings of Aragon, and a number of Aragonese participated in the first stages of Spanish expansion into the New World,18 there was to be a lingering uncertainty over the rights of natives of the Crown of Aragon to move to, and settle in, America. The sixteenth-century legal texts relating to the exclusion of foreigners from the Indies appeared then, as now, ambiguous and contradictory over the exact status of possible immigrants from Aragon, Catalonia and Valencia. In practice it seems that there were no serious impediments to their securing a licence to emigrate to the Indies, but, for geographical and other reasons, those who took advantage of the opportunity turned out to be relatively few19
Much more immediately significant was the endowment of the new American territories with laws and institutions modelled on those of Castile rather than of Aragon. Although there was a strong tradition in medieval Castile, as in the Crown of Aragon, of a contractual relationship between monarch and subjects, and this had penetrated deep into Castilian political culture,20 Castile emerged from the Middle Ages with weaker theoretical and institutional barriers against the authoritarian exercise of kingship than those to be found in the Aragonese realms. Fifteenth-century Castilian jurists in the service of the crown had argued for a `royal absolute power' (poderio real absoluto), which gave wide latitude to the royal prerogative. The sixteenth-century rulers of Castile inherited this useful formula, which could obviously be used to override the crown's contractual obligations in real or alleged emergencies.21 While the moral restraints on Castilian kingship remained strong, the potential for the authoritarian exercise of power was now established; and Charles V's suppression of the Comunero revolt in 1521 would effectively reduce still further the chances of imposing effective institutional restraints in a realm whose representative assembly, the Cortes of Castile, suffered from a number of grave, if not necessarily fatal, weaknesses.
With the Indies juridically incorporated into the Castilian crown as a conquered territory, the monarchs in principle were free to govern them as they liked. One institution that they were in no hurry to see transferred to the other side of the Atlantic was a representative assembly, or Cortes, on the Castilian, and still less on the Aragonese, model. The settlers themselves might petition for such assemblies, and viceroys and even the crown itself might occasionally play with the idea of introducing them, but the disadvantages were always held to outweigh the advantages, and the American territories never acquired Cortes of their own.22
Yet although the Indies were seen as a Castilian conquest, and were therefore united to the Castilian crown by what was known as an `accessory' union rather than on a basis of equality, aeque principaliter, the fact remained that the conquerors themselves were the king's own Castilian subjects, and were evolving into pobladores, or settlers, although proudly clinging to their title of conquistadores. As conquerors, they understandably expected their services to be properly remembered and rewarded by a grateful monarch, who could hardly deny them and their descendants the kind of rights which men of their worth would expect to enjoy in Castile. Such a recognition might not extend to the formal establishment of a Cortes, but this did not preclude the development of other institutional devices and forums, notably the cabildo or town council, for expressing collective grievances. Moreover, it was clear that the status of the lands that their valour had brought under Castilian rule should receive some proper acknowledgement. The conquerors had overthrown the empires of the Aztecs and the Incas, and had dispossessed great rulers. In the circumstances, it was natural that the larger preconquest political entities which they had delivered into the hands of their monarch should have a comparable standing to that of the various realms - Leon, Toledo, Cordoba, Murcia, Jaen, Seville and, most recently, Granada - which constituted the Crown of Castile.23 New Spain, New Granada, Quito and Peru would all therefore come to be known as kingdoms, and the conquerors and their descendants expected them to be ruled in a manner appropriate to their status.
While the crown was well aware of the dangers of unnecessarily bruising the susceptibilities of the conquistadores, especially in the early stages of settlement when the political and military situation remained very volatile, it was determined to impose its own authority at the earliest opportunity. Too much was at stake, in terms of both potential American revenues and the commitment entered into with the papacy for the salvation of Indian souls, to permit the kind of laissez-faire approach that would characterize so much of early Stuart policy towards the new plantations. Imbued with a high sense of their own authority, which they had fought so hard to assert in the Iberian peninsula itself, Ferdinand and Isabella moved with speed to meet the obligations incumbent on them as `natural lords' of the Indies, while at the same time maximizing the potential to the crown of its new territorial acquisitions.
This required the rapid development and imposition on the Indies of administrative, judicial and ecclesiastical structures - a process that would be carried forward by Charles V and Philip II. From the first, expeditions of conquest had been accompanied by royal officials whose task was to watch over the crown's interests, and particularly its interests in the sharing out of the spoils. As an incorporated territory the Indies fell within the orbit of the supreme governing body of Castile, the Council of Castile, and in the early years the monarchs would turn for advice on Indies affairs to selected members of the council, and in particular to the Archdeacon of Seville and eventual Bishop of Burgos, Juan Rodriguez de Fonseca, who was effectively the supremo in the management of the Indies trade and the administration of the Indies from 1493 for almost the entire period down to his death in 1524.24 By 1517 this small group of councillors was being spoken of as ,the Council of the Indies',25 and in 1523 this became a formalized and distinctive Council within the conciliar structure of the Spanish Monarchy.26
The newly constituted Council of the Indies, with Fonseca as its first president, was to have the prime responsibility for government, trade, defence and the administration of justice in Spanish America throughout the nearly two centuries of Habsburg rule. Spain thus acquired at an early stage of its imperial enterprise a central organ for the formulation and implementation of policy relating to every aspect of the life of its American possessions. Had Charles I's regime survived, Archbishop Laud's Commission for Regulating Plantations might conceivably have evolved into a broadly similar omnicompetent body. As it was, it would take time, and various experiments, for an even remotely equivalent body - the Board of Trade of 1696 - to be established in England, and even then, as its name suggests, its primary concern was with the commercial aspects of the relationship between the mother country and its American colonies.
The immediate and most pressing task of the councillors of the Indies, following Cortes's conquest of Mexico between 1519 and 1521, was to ensure that it should be followed as quickly as possible by a second conquest - that of the conquerors by the crown. In the early years of the century the crown had fought tenaciously to strip Columbus and his heirs of what quickly came to be seen as the excessive powers and privileges granted to him under the terms of his original `capitulations' with the Catholic Monarchs. With vast riches from the conquered empire of Montezuma in prospect, it was essential that Cortes, who in 1522 had been appointed governor, captain-general and Justicia Mayor of New Spain by a grateful monarch in recognition both of his services and of the realities of Mexico in the immediate aftermath of conquest, should have his wings clipped as those of Columbus had been clipped before him. As the bureaucrats descended on New Spain, the conqueror saw himself stripped of his administrative functions and subjected to a residencia - the normal form of judicial inquiry into the activities of servants of the crown against whom complaints had been lodged. Simultaneously harried and honoured - he received the title of marquis and the grant of substantial lands with 23,000 Indian vassals for his services - he eventually abandoned the struggle and left for Spain in 1539, never to return. Francisco Pizarro, too, was to be simultaneously rewarded with the title of marquis and harassed by treasury officials, and was on the verge of losing his governorship of Peru when he was assassinated by his disappointed rivals in 1541.27
While the conquistadores and the encomenderos were to be dispossessed as quickly as possible of effective powers of government, it was essential to create an administrative apparatus to fill the vacuum. To achieve this, the crown made use of institutions which had been tried and tested at home, and were now pragmatically adapted to meet American needs. The first Audiencia, or high court, in the New World had been established in Santo Domingo in 1511. As more and more mainland territory came under Spanish rule, so more Audiencias were set up: the Audiencia of New Spain in 1530, following a false start three years earlier; of Panama in 1538; of Peru and Guatemala, both in 1543, and of Guadalajara (New Galicia) and Santa Fe de Bogota in 1547. By the end of the century there were ten American Audiencias.28 As a judicial tribunal the Audiencia was modelled on the chancelleries or Audiencias of Valladolid and Granada, but, unlike its counterparts in the Crown of Castile, it would develop administrative as well as judicial functions, as an extension of its obligation to maintain a judicial oversight over all administrative activities in territories far removed from the physical presence of the monarch.
These administrative activities were initially carried out by governors (gobernadores), a title conferred on a number of the early conquistadores. Governorships proved to be particularly useful for the administration and defence of outlying regions, and 35 such provincial governorships existed at one time or another during the course of the sixteenth and seventeenth centuries.29 But the supreme ruling institution over large parts of Spain's empire of the Indies was to be the viceroyalty. This had originally been developed for the government of the medieval Catalan-Aragonese empire in the Mediterranean, and the appointment of Columbus in 1492 as viceroy and governor-general of any lands he discovered may have been modelled on the example of the government of Sardinia.30 As a result of his failures in the government of Hispaniola Columbus was stripped of his viceregal title in 1499, and the viceroyalty went into temporary abeyance in the New World as the crown chose instead to appoint governors, captain-generals and adelantados (the title given to the men put in charge of newly conquered frontier regions during the reconquest of southern Spain from the Moors).
Map 3. Spanish American Viceroyalties and Audiencias (sixteenth and seventeenth centuries).
Based on Francisco Morales Padron, Historia general de America (1975), vol. VI, p. 391.
The conquest of Mexico, however, posed problems of administration on a scale hitherto unprecedented in the Indies. The government of New Spain between 1528 and 1530 by its first Audiencia proved a disaster, with the judges and the conquistadores at each other's throats. Although the new Audiencia appointed in 1530 represented a marked improvement in terms of the quality of government, it was clear that a new and better solution had to be found. In 1535 Don Antonio de Mendoza, the younger son of a prominent Castilian noble house, was appointed first viceroy of New Spain, and held the post with distinction for sixteen years (a length of tenure which would never be equalled, as the viceregal system consolidated itself, and tenures of six to eight years became the norm).
Mendoza's success encouraged the Council of the Indies to repeat the experiment in Peru, which was transformed into a viceroyalty in 1542. New Spain and Peru were to remain the sole American viceroyalties until the elevation in the eighteenth century of New Granada, with its capital in Santa Fe de Bogota, and the region of Rio de la Plata, with its capital in Buenos Aires, to the rank of viceroyalties. In the words of the legislation of 1542, `the kingdoms of New Spain and Peru are to be ruled and governed by viceroys, who shall represent our royal person, hold the superior government, do and administer justice equally to all our subjects and vassals, and concern themselves with everything that will promote the calm, peace, ennoblement and pacification of those provinces ...'31
In effect, therefore, the viceroy was to be the alter ego of a necessarily absentee ruler, and the living mirror of kingship in a distant land. Generally drawn from one or other of the great noble houses of Spain, a viceroy crossed the Atlantic - as befitted his rank - accompanied by a large entourage of family members and servants, all anxious for rich pickings in the New World during his tenure of office. His arrival on American soil, and his passage through his territory to the capital city, was as carefully staged a ritual event as if the king himself were taking possession of his realm. Each new viceroy of New Spain would follow the route to the capital taken by Hernan Cortes. On arrival at the port of Vera Cruz, he would be ceremonially received by the civil and military authorities, and spend a few days in formal duties, like inspecting the fortifications, before setting out on his triumphal progress towards Mexico City. Moving inland by slow stages, he would be greeted in towns and villages along the route by ceremonial arches, decorated streets, singing and dancing Indians, and effusive orations by Spanish and Indian officials. Arriving at the Indian city of Tlaxcala, which had loyally supported Cortes during the conquest of Mexico, he would make a ceremonial entry on horseback, preceded by the indigenous nobility, and followed by vast crowds of Indians to the accompaniment of drums and music. Having thus symbolically recognized the indigenous contribution to the conquest, and enjoyed or endured three days of festivities, he continued on his progress to the creole city of Puebla, to pay a comparable tribute to the Spanish conquerors. Here he spent eight days before moving on to Otumba, the site of Cortes's first victory after the retreat from Tenochtitlan. At Otumba he would be met by the outgoing viceroy, who, in a symbolic transfer of authority, presented him with the baton of command. The triumphal progress, part Roman triumph, part Renaissance royal entry, culminated in Mexico City itself, where the ceremonial arches were more elaborate, the festivities more lavish, the rejoicings more tumultuous, than anywhere else along the route.32
Once he had taken the oath of office and had been installed in the viceregal palace, the new viceroy found himself at the centre of a court where the etiquette and ritual replicated in microcosm those of the royal court in Madrid. As in Madrid, there was a palace guard to protect him.33 For if the king himself was far away, he was also here, and the viceroy, as his living image, was entitled to a regal deference. At the same time, the monarch himself was an absent presence. The portrait of a new ruler would preside over each proclamation ceremony. Royal births and deaths were the occasion for elaborate commemorations in cathedrals and churches. The monumental catafalques for royal exequies again bore the image of the deceased, whose virtues and achievements were symbolically and emblematically depicted. On all these ceremonial occasions the viceroy occupied the centre stage, receiving in his palace delegations bearing congratulations or condolences, and upholding in his person the dignity and authority of his royal master.34
The viceroy was not only the supreme governor in the name of the king; he was also president of the Audiencias within his area of jurisdiction, but was not allowed to intervene directly in judicial business; he was head of the treasury system; and captain-general over the entire territory, although only exercising the duty in a supervisory capacity in those parts of his viceroyalty which possessed a captain-general of their own. He enjoyed considerable powers of patronage and appointment, although viceroy after viceroy would complain that these were not enough.
Subordinate to the viceroy were the governors of the various provinces within his viceroyalty, together with the officers of local government, alcaldes mayores (the title most commonly used in New Spain) and corregidores - equivalents of the officials in Castile who exercised local authority on behalf of the crown.35 Municipal councils - the cabildos - formed an integral part of this administrative structure of the Indies, where the crown, starting from scratch, was better placed than in the Iberian peninsula, with its accretion of historic municipal privileges and corporate rights, to create a system of government directly dependent on royal and imperial control.36 If the `modernity' of the modern state is defined in terms of its possession of institutional structures capable of conveying the commands of a central authority to distant localities, the government of colonial Spanish America was more `modern' than the government of Spain, or indeed of that of almost every Early Modern European state.
From the middle of the sixteenth century, therefore, an elaborate administrative chain of command existed for Spain's empire of the Indies. It ran from the Council of the Indies in Spain itself, to the viceroys in Mexico City and Lima, and then down to treasury and local officials and town governments. A parallel judicial system ran similarly from the Council of the Indies to the viceroys and the various Audiencias and judicial officers. The operations of this administrative and judicial bureaucracy were governed by a set of laws, dispositions and practices that again had been developed in Castile but were subsequently adapted, as the occasion demanded, to the special requirements of the Indies.
Since the Indies had been incorporated into the Crown of Castile, they were essentially to be ruled by the Castilian legal system. A Roman Law system, it incorporated some of the traditional law of Castile, and was codified by jurists schooled in Roman and canon law, in the great thirteenth-century legal compilation, the Siete Partidas of Alfonso X.37 The monarch, as the supreme source of authority, was expected to maintain justice in accordance with divine and natural law on the basis of this compilation, which was extended and modified over time by royal decrees issued either on his own initiative or in the light of representations made by the Castilian Cortes. It soon became apparent, however, that laws compiled for Castile would not necessarily cover all the circumstances of life in America. Increasingly, therefore, the Council of the Indies found it necessary to make special provision for local situations in the New World, as it did when creating the American viceroyalties.
Even if the Indies were conquered territory, the Council of the Indies was not legislating in a total vacuum, since the Indian populations of the conquered territories - some of them loyal allies, like the Tlaxcalans of central Mexico, and therefore deserving of special treatment - possessed their own laws and customs. Naturally respectful of established custom, the immediate instinct of sixteenthcentury Spaniards was to recognize the validity of existing Indian legal arrangements and practices where they did not openly conflict with Castilian law and requirements. But the indigenous law that survived the conquest was subject to an inevitable process of erosion as the character of Indian society was transformed by Christianization and the pressures of colonial rule. Pre-conquest records might continue to be used for the settlement of boundary disputes and for suits of Indian against Indian, but by the time that a General Indian Court of New Spain was established in 1585 it was more likely to be Spanish than Indian law that the Court found itself enforcing.38
As the Council of the Indies began to enact ever more special measures for the American territories, however, and as the viceroys drew up special regulations and provisions for their own territories, this Spanish law was no longer exactly that of Castile. Unlike the Anglo-American world, the Hispanic world was not governed by case law and judicial precedent, but by specific enactments and codified provisions. The result of this was a confusing tangle of enactments, which left the councillors of the Indies in growing doubt as to what was, or was not, the law. In the 1560s Philip II, with his habitual concern for close regulation and for the imposition of order on chaos, turned his attention to the Council of the Indies. A royal official, Juan de Ovando, was appointed to conduct a visit of inquiry into the Council, on which he was subsequently to serve as a great reforming president between 1571 and his death in 1575. Ovando identified as one of the Council's greatest problems the fact that `neither in the Council nor in the Indies does information exist about the laws and ordinances by which those States are ruled and governed.'39 He then set about reducing them to some sort of order, but the so-called Codigo Ovandino remained unfinished at the time of his death.
The work was not taken up again until the following century, when two councillors of the Indies, Antonio de Leon Pinelo and Juan de Solorzano y Pereira, both embarked on attempts at codification, which again remained uncompleted at the time of their death S.40 But eventually, in 1680, during the reign of Carlos II, these earlier efforts bore fruit in the publication of a vast compendium, Recopilacion de las leyes de Indies, a belated companion to the Recopilacion of the laws of Castile published by order of Philip II in 1567. In spite of the crown's desire to keep them unified, the laws of Castile and America were inevitably moving apart. Even this, however, was not the full extent of the process of fragmentation. By 1680 a universal code for the Indies had come to acquire a certain phantom quality. Five years after its publication, Peru significantly responded to the Recopilacion by printing its own Recopilacion provincial, a compilation of the provisions and ordinances issued by the Peruvian viceroys.41 Each territory of Spanish America was gradually acquiring its own corpus of legislation tailored to suit its own special requirements.
The administrative and judicial apparatus imposed on Castile's conquered Indian possessions was accompanied by an increasingly elaborate ecclesiastical apparatus developed in response to the papacy's concession to the Crown of Castile of the Patronato of the Indies.42 The Patronato gave the crown enormous powers in the Indies, which it exercised to the full. While the colonization of Spanish America was a joint church-state enterprise, it was one in which the crown from the first had the upper hand. The church in the Indies began as a missionary church, with the religious orders taking the lead in the work of evangelization, but the secular clergy followed in the wake of the friars, just as the bureaucrats followed in the wake of the conquistadores. Although the religious orders remained immensely powerful, and continued to receive strong royal support, the normal apparatus of formal church government was established bit by bit under royal direction, initially almost in parallel to the mendicant structures. All ecclesiastical appointments were made by the monarch on the basis of recommendations by the Council of the Indies, which divided the territory into dioceses - 31 by the end of the sixteenth century, including the four archbishoprics of Mexico City, Lima, Santo Domingo and Santa Fe de Bogota.43 The affirmation of episcopal authority over the church in the Indies would fully conform to the requirements of the Council of Trent, but it also provided the crown with a means of reining in the mendicant orders, which by the middle years of the sixteenth century were well on the way to becoming a power unto themselves. Philip II was no more inclined to see his authority subverted by the friars than by the encomenderos, with whom the friars often acted in collusion.
In his Ordenanza del Patronazgo of 1574, Philip produced a code of orders designed to reinforce his own authority by subjecting the regulars to the bishops and placing secular clergy in parishes in the place of the friars. 44 This was to prove a long and contentious business, since the friars had no intention of abandoning their Indian flocks. The struggle between seculars and regulars would continue throughout the colonial period. But the institutional and legal structures were now all in place for the functioning of ecclesiastical life in the Indies under close royal control - so close, indeed, that no papal nuncio was allowed to set foot in America, and papal nuncios in Madrid were not allowed to meddle in American business.45 The crown also enjoyed control over the financial arrangements of the American church, which depended on the collection and distribution of tithes by treasury officials. By royal orders of 1539 and 1541 half of the tithes, which were collected in kind and then put up for auction, were shared equally between bishops and deans and cathedral chapters, while the other half were divided into nine parts, of which four went to the payment of parish priests and their assistants, three to the construction and decoration of churches, and the remaining two were absorbed into the royal coffers.46
The mutually reinforcing relationship of church and crown cemented a structure of Spanish royal government in America so all-embracing that Juan de Ovando in the 1570s could justifiably speak of the estado de las Indies, the State of the Indies.47 In less than a century since the beginning of the overseas enterprise, the Spanish crown had established in the New World a system of government and control that might well be the envy of European monarchs struggling to impose their own authority on recalcitrant nobles, privileged corporations and obstreperous Estates close to home.
For all the flaws and defects in the system - the built-in conflicts between competing authorities, the numerous opportunities for procrastination, obstruction and graft - this creation of a `State of the Indies' was by any measure a remarkable achievement, not least because it seems to have defied successfully the normal laws of time and space. The viceroyalties of the Indies were thousands of miles, and an ocean, away. It could take two years for the government in Madrid, the capital of Spain's world-wide monarchy from 1561, to send a message to Lima and receive the reply. Yet, as Francis Bacon relates, `Mendoza, that was viceroy of Peru, was wont to say: That the government of Peru was the best place that the King of Spain gave, save that it was somewhat too near Madrid. 14' An exchange of messages between London and Virginia might take a mere four months, but for the monarchs of Stuart England, struggling to bring a few thousand recalcitrant settlers within the framework of their `royal empire', Spain's government of the Indies could only have looked like a triumphant assertion of the obedience properly due to kings.
Authority and resistance
Yet the Spanish crown had not imposed its authority without a long and bitter struggle, and at many times and in many places that authority would prove to be more nominal than real. When Castile and England exported their people to America, they also exported pre-existing political cultures which permeated both the institutions of government and the responses of the governed. Those distinctive political cultures produced two distinctive colonial worlds with profoundly different political characteristics, reflecting those of the metropolitan societies out of which they emerged. Yet amidst the contrasts there were also strong points of resemblance.
Driven by the twin imperatives of its thirst for precious metals and its obligations towards its new Indian vassals, the Spanish crown was interventionist from the beginning in its approach to the government of the Indies. It sought to mould the developing colonial society in accordance with its own aspirations, and its own high sense - fortified by university-trained jurists who had entered the royal service - of the all-commanding nature of its divinely ordained authority. Inevitably, however, as it embarked on the task of giving institutional expression to theoretical aspirations, it encountered resistance from those who harboured distinctive aspirations of their own. The friars yearned to establish in the New World a New Jerusalem, free from corrupting secular influences. The conquistadores, for their part, dreamed of exercising lordship over numerous Indian vassals, and so transforming themselves into a hereditary landed aristocracy as rich and socially dominant as the aristocracy of Castile.
The incompatibility of these differing aspirations meant that none of them could be realized in full, and the crown would find itself forced to make open or tacit compromises in its struggle to get its commands obeyed. In embarking on this struggle it began with an important advantage: the success of Ferdinand and Isabella in restoring royal authority in Spain itself, and the mystical prestige conferred on the crown by a miraculous succession of triumphs, including the recovery of Granada from the Moors and the discovery and acquisition of the Indies. The election of Charles in 1519 as Holy Roman Emperor, although it threatened to have unwelcome consequences for Castile, could also be read as a sign of God's continuing favour for the dynasty, as it was by Hernan Cortes, who saw himself benefiting, as Charles's loyal captain, from `God's help and the royal fortune of Your Majesty'.49
The mystique of kingship, together with the realities of political life in the Spain created by Ferdinand and Isabella, therefore combined to inculcate in the generation that conquered America an instinctive sense of the deference that should be paid to the crown. Hernan Cortes, even when defying the authority of his immediate superior, the royal governor of Cuba, went to extreme pains to represent his action as being taken solely in order to promote the higher interests of his prince - as the prince himself would appreciate as soon as he was in possession of the facts. This identification of themselves with royal authority was to be a constant in the life of the conquistadores, and reinforced that sense of loyalty which was to be a trump card in the hands of royal officials determined to give reality to that authority three thousand miles from home.
At the same time, however, the crown's authority by no means went unchallenged, even in Castile itself. Cortes's conquest of Mexico coincided almost exactly with one of the greatest political upheavals in Castilian history, the revolt of the Comuneros, in which the policies and actions of the new king and his Flemish advisers were openly challenged by the cities of the Castilian heartland in the name of the community of the realm.50 Although the Comuneros were defeated in battle in 1521, the beliefs and assumptions that informed their rebellion had been exported to America alongside the cult of loyalty, and they too would take deep root in the political culture of the emerging colonial world.
At the heart of these beliefs and assumptions lay the conviction that the well-being of the community depended on the proper functioning of a contractual relationship between the ruler and the ruled. Prince and subjects together formed an organic community, a corpus mysticum, designed to enable its members to live good and sociable lives according to their respective social stations, under the benevolent rule of a monarch who governed, following the dictates of his conscience, in accordance with divine and natural law. The good prince would not swerve into tyranny, and his subjects in return would serve, obey and advise him faithfully. These were the assumptions that found practical expression in the code of the Siete Partidas, well known to Hernan Cortes and his fellow conquistadores." Deriving from Aristotle by way of Aquinas, they were reformulated at a theoretical level for sixteenth-century Spaniards by the neoThomist scholastics of the School of Salamanca.12 They constituted the premise on which the Spanish patrimonial state in the Indies was constructed, just as they also constituted the premise underlying legitimate resistance to the actions of that state when it acted in ways that were deemed to run counter to the common weal, the bien comun.53
The contractualist doctrines built in to Spanish theories of the state allowed for different levels of resistance. The first and most fundamental of these, which was to have a long and important life in the Indies, was articulated in the formula originally deriving from the Basques and subsequently embedded in later medieval Castilian law, of obeying but not complying. An official or an individual receiving a royal order which he considered inappropriate or unjust would symbolically place it on his head while pronouncing the ritual words that he would obey but not comply: se acata (or se obedece) Pero no se cumple. This simultaneously demonstrated respect for the royal authority while asserting the inapplicability of royal orders in this particular instance. Appearances were thus preserved, and time was given to all parties for reflection. This formula, which was to be incorporated into the laws of the Indies in 1528, provided an ideal mechanism for containing dissent, and preventing disputes from turning into open confrontation.54 Hernan Cortes took obedience without compliance one stage further when, on arriving on the coast of Mexico, he ignored the governor of Cuba's orders that he was to conduct an expedition of reconnaissance rather than conquest. Instead, he denounced him as a `tyrant', and appealed over his head directly to the monarch.55 The right of appeal was fundamental in this society, as was the right of the vassal to be heard by his prince, and between them they provided an essential device for conflict resolution.
The final recourse against what was perceived as `tyrannical' government or unreasonable laws was resort to arms. The most explosive situation faced by the Spanish crown in America before the late eighteenth century was that created by the New Laws of 1542, and particularly law 35, forbidding the creation of new encomiendas and providing for the reversion of existing encomiendas to the crown on the death of the current holder. Faced with the prospect of a revolt by the encomenderos, the viceroy of New Spain, Antonio de Mendoza, in effect activated the process of obeying but not complying by persuading the royal official sent out to enforce the laws to suspend those relating to the encomienda until an appeal could be heard by the Council of the Indies.56
In the highly volatile Peru of the early 1540s the story took a different and more tragic turn. The conquistadores had fought a bitter civil war over the spoils of conquest, the governor, Francisco Pizarro, had been assassinated, and royal authority had yet to be firmly established. Blasco Nunez Vela, the first viceroy appointed to the newly created viceroyalty, was sent out to Lima in 1543 with instructions to enforce the New Laws. The news of the crown's intentions preceded him. An orchestrated response was prepared by the town councils, acting under the leadership of the cabildo of Cuzco. At the same time Gonzalo Pizarro, claiming the governorship of Peru in succession to his dead brother, stepped into the political arena as the leader of the encomenderos, who claimed that their services had been insufficiently recognized and rewarded. To cries of `Long live the king and down with bad ministers' - the standard cry of protest in the Spanish Monarchy - Pizarro set out to recruit an army.
The justification for the revolt threatening the new viceroy on his arrival was the defence of the common weal. The jurists who lent their support to Pizarro argued that `certain royal laws affecting these kingdoms had been made and decreed without their representatives being present' - a clear reference to the traditional formula that `what affects all should be agreed by all.' The viceroy proved intransigent, and in the uprising that followed he was defeated in battle and executed on the battlefield. Gonzalo Pizarro, supremely confident both of his own popularity and of the rightness of his cause, then went far beyond the limits of an already dubious legitimacy by replacing the royal arms by the Pizarro arms on the standards carried by his army. He also did nothing to prevent his adherents from letting it be known that he would shortly be proclaimed king of an independent Peru. Such a proclamation was averted by the timely arrival and skilful manoeuvring of Nunez Vela's replacement, Pedro de La Gasca, who announced a general amnesty in advance of his arrival - an offer that Pizarro rejected. Having divided the opposition, La Gasca then defeated Pizarro in battle, and had him tried and executed for lese majeste in 1548. Honour was subsequently satisfied all round, as Charles V, having already revoked the law abolishing the encomienda, accepted that the rebels, in appealing to him, had recognized his authority. Much of the blame could thus be laid on Nunez Vela for rejecting their supplication. In this way the ground was prepared for the consolidation of royal government in Peru on the basis of an act of oblivion, and of a tacit compromise that rested on the assumption of the fundamental loyalty of the encomenderos and settlers to their lawful monarch.57
Pizarro's rebellion was a highly unusual act of outright defiance to the authority of the crown in colonial Spanish America, just as the revolt of the Comuneros remained a unique act of large-scale armed insurrection in the history of Habsburg Castile. Both in Castile and in the Indies a heavy state apparatus was imposed on society in the name of royal authority. But the weight of this apparatus was to some extent alleviated by a political culture which, although lacking the more obvious institutional restraints on the arbitrary exercise of power, was postulated on the basis of a reciprocal relationship that required and expected a continuous process of negotiation between the monarch and his subjects. Lobbying and petitioning (fig. 13), compromise and counter-compromise, formed the everyday stuff of political life in Spain's empire of the Indies. Over the best part of three centuries this tacit compact between monarch and subjects did much to ensure a high degree of outward compliance to the orders of the crown. The settlers remained loyal to a distant monarch, who, they continued to believe, would respond to their complaints and redress their grievances once he was properly informed. It was a convenient fiction in which all parties participated during the period of Habsburg rule, and when it began to wear thin under the new Bourbon dynasty in the eighteenth century, the loyalty which held Spain and its overseas possessions together would be strained to the limits.
The combination of a bureaucratic state structure with a culture of loyalty that permitted resistance within certain understood limits gave colonial Spanish America the appearance of a politically stable society. Reality did not always coincide with appearance, but conflicts were in general resolved and crises contained. The political stability, however, had the effect of trivializing much of public life. With so many areas of government under the control of royal officials, a substantial amount of the colonial elite's time and energy in the Habsbsurg period was devoted to maintaining the outward and more symbolic manifestations of power and status. Although there were always unwelcome encroachments on local autonomy to be fended off, much political energy was expended in endless jockeying over rank and ceremonial within the narrow confines of municipal life.
Such matters would also occupy the colonial elites of British America. Here, however, the nature of colonial government allowed considerably more scope for the independent exercise of effective political power. This was a society whose political and administrative institutions were more likely to evolve from below than to be imposed from above. It was also a society that operated in a political culture more effectively grounded in notions of representation than the political culture transferred to America from Castile.
The absence of close control by the British crown in the early stages of colonization left considerable latitude for the evolution of those forms of government that seemed most appropriate to the people actively involved in the process of overseas enterprise and settlement - the financial backers of the enterprise and the colonists themselves - as long as they operated within the framework of their royal charter. Care was taken in drawing up the Virginia Company's charter of 1606 to guarantee to the colonists and their children all the `liberties, franchises and immunities' enjoyed under English laws.58 But the imposition of martial law in 1611 following the early troubles of the colony was hardly a source of encouragement to colonists or potential colonists looking to find themselves in possession of the `liberties, franchises and immunities' of Englishmen. The `Great Charter' of 1618 was designed to respond to their grievances by improving administration, settling the question of land tenure, and replacing martial law with English common law The reforms included provision for the establishment of a Virginia Assembly, which met for the first time in 1619.59 It was in 1619, too, that Nathaniel Butler arrived as governor in the faction-ridden island of Bermuda with instructions from the Bermuda Company to summon an assembly as quickly as possible, because `every man will more willingly obey laws to which he hath yielded his consent.'60 In stark contrast to Spanish America, therefore, representative forms of government came to British America within a few years of settlement.
The Virginia Assembly of 1619 and the Bermuda Assembly of 1620 were attempts to resolve problems relating to public order, local administration and the raising of taxes for public purposes by recourse to the well-tried English expedient of involving the `political nation', and through it the wider community, in the processes of government. The `political nation' in the colonial context, as in the metropolitan, meant property-holders, but the nature of that context was likely, especially in the initial stages of settlement, to favour a franchise that was wider than in England. As early as 1623 reports of `democracy' in Plymouth Colony were causing concern at home, and William Bradford had to reassure the colony's supporters that women and children did not possess the vote.61 Practice would vary widely from one colony to the next, but there were continuing uncertainties about the definition of `freemen' on the farther shores of the Atlantic. In relation both to voting and to office-holding, these uncertainties enlarged the range of opportunities for many immigrants well beyond what they could have expected at home.
More significant, however, than variations in the character of the franchise was the sheer fact of representation through the institutionalized forum of representative assemblies, such as were not allowed to emerge in the viceroyalties of Mexico and Peru. Once the pattern had been established in Virginia and Bermuda there was every chance that it would be followed elsewhere as new colonies were founded. This was partly because voting was an established feature of joint stock companies, and was therefore likely to be transferred with relative ease to colonial settlements operating under company charters. The most striking example was provided by the Massachusetts Bay colony, which was unique in that both the charter and the government moved across the Atlantic with the first settlers. Once a year the adult free males of the Bay colony would assemble in their capacity as company stockholders to elect a governor and assistant governor for the coming year.62 But, irrespective of the practices of company organization, there were other forces at work to push the new colonies towards the establishment of government by consent. At a time when some of the most influential leaders of the opposition to Charles I were involved in colonial ventures, and when the very existence of parliament itself was under threat from the crown, there was a strong natural predisposition to re-create in the colonies representative bodies modelled on an institution that had come to be identified with the preservation of traditional English liberties.
By 1640 eight such assemblies had been set up in the colonies, six of them during the period in which Charles I attempted to rule at home without a parliament: Massachusetts Bay, Maryland, Connecticut, Plymouth, New Haven and Barbados.63 Pressure for the establishment of these assemblies tended to come from the colonists themselves, although Lord Baltimore's charter for the creation of his proprietary colony of Maryland had already empowered him to make laws with the advice of the assembled freemen.64 Once a colony had been founded, however, it was difficult, as James, Duke of York, would eventually discover in his proprietary colony of New York,65 to withhold permission for the summoning of an assembly when the other British colonies possessed them and were competing for settlers. The Special Court of Assize, petitioning the duke in 1681 against the burden of taxes which it condemned as arbitrary, complained that the inhabitants of New York were `wholly shut out or deprived of any share, vote, or interest in the government ... contrary to the laws, rights, liberties and privileges, of the subject; so that we are esteemed as nothing, and have become a reproach to the neighbours in other of his majesty's colonies, who flourish, under the fruition and protection of his majesty's unparalleled form and method of government, . . . the undoubted birthright of all his subjects.' With his colony in turmoil, his own position in England temporarily weakened, and English legal opinion coming out in support of the independence of local assemblies, James had no option but to give New Yorkers the assembly they demanded.66
New or potential colonists were thus likely to regard the possession of a representative assembly as a visible guarantee that settlement in the New World would not involve any diminution of their English liberties. For the proprietors, too, such assemblies offered certain advantages. While they might well prove obstreperous, they also offered the best means available for committing settlers to the financing and defence of their colony, and served as a convenient forum for the resolution of disputes.
Yet the creation of an assembly in a royal or proprietary colony was sooner or later bound to raise questions about the character and extent of its powers. Just as the Spanish crown could look on its American possessions as `conquered' territories, so the British crown, taking the conquered kingdom of Ireland as a precedent, could regard the Caribbean and North American settlements in the same light. Naturally, British settlers were as eager as Spanish settlers to reject the inferior status implicit in the notion of a conquered territory, and to insist on their entitlement to the rights and privileges that they would have enjoyed had they stayed at home. Where Spanish colonists claimed these privileges by virtue of their own descent from the conquerors, or argued that the pre-conquest character of Mexico and Peru as kingdoms elevated them above mere `colonial' status, English colonists were insistent that the `vacant' lands they had settled fell outside the definition of `conquered' territories. Yet this argument was never fully accepted in England itself, and as late as the 1760s Sir William Blackstone was asserting that not only Ireland but also the American plantations were conquered lands.67
While London might not be amenable to the colonists' arguments, a representative assembly offered them a forum in which they could press for their rights as Englishmen against governors disposed to trample on those rights. Even if English settlers could not resort to the Spanish symbolic procedure of obeying but not complying, it was still possible for them to refuse to comply with a royal order or a governor's instructions on the grounds that the king was misin- formed.68 A governor, as the chief colonial executive, found himself, moreover, in a considerably weaker position than a viceroy or governor in Spanish America, in spite of what often appeared on paper to be substantial powers.
Nominally, a governor in an English royal colony enjoyed extensive powers of appointment and patronage, including the authority to issue grants of land .61 in practice he was liable, like his Spanish counterpart, to find these powers circumscribed by the determination of home officials to encroach on his patronage, and also by the stringent terms of his instructions.70 The already detailed set of royal instructions for governors seems to have become even more constraining to independent action following an attempt at revision in 1752. Horace Walpole commented ironically on those issued in 1753 to Sir Danvers Osborn, the new governor of New York, that they were `better calculated for the latitude of Mexico and for a Spanish tribunal than for a free rich British settlement'.71
An English royal governor was not normally surrounded by the pomp and circumstance of his Spanish viceregal counterpart, although one or two governors compensated for this by bringing a retinue of servants on a truly Spanish scale. James II's governor-general of Jamaica, the second Duke of Albermarle, was accompanied by 150 servants, but Joseph Dudley, appointed governor of Massachusetts in 1702, seems to have found five sufficient.72 A new governor on arrival would be greeted by a seventeen-gun salute from the harbour guns, and a receiving party on the wharf. There would be a procession to the statehouse along a route lined by the local militia, followed by a reading of the governor's commission and his swearing the oath of office. There might be illuminations and fireworks in the evening, but it was entirely in keeping with the relative informality of the proceedings, as compared with those in New Spain and Peru, that the day was likely to end with dinner and entertainment in a local coffee-house or tavern.73
British governors, like their Spanish counterparts, were well aware that they were the physical representatives on American soil of the person of the monarch, although few of them took the identification as far as Lord Cornbury, the governor of New York and New Jersey from 1702 to 1708, is alleged to have done. On the basis of contemporary charges of cross-dressing he has entered the historical record as having dressed up to resemble his sovereign, Queen Anne, but the atmosphere of early eighteenth-century New York politics was highly scurrilous, and charges of cross-dressing look like no more than attempts by his enemies to discredit him.74
While transvestism may have been a step too far, royal governors were expected to do everything in their power to embody in their own persons the figure of the monarch and sustain an appropriate degree of display. Cornbury himself travelled through his colonial domain in style, often accompanied by a train of local gentry. Everywhere he entertained on a generous scale, and he was careful to reciprocate in full the hospitality accorded him when he was met by Indian chiefs.75 Of around three hundred governors or deputy-governors appointed by the crown during the period of colonial rule, one in every four was a peer, the son of a peer, or the holder of a title'76 and such liberality was expected of men of rank.
From the later seventeenth century the English colonies were being absorbed into what was becoming a transatlantic network of patronage." In Britain, as in Spain, high office constituted a form of outdoor relief for hard-pressed members of the aristocracy. `Governours', wrote Lewis Morris Jr. to the Lords of Trade in 1729, `do not come here to take the air', but `... to repair a shattered fortune, or acquire an Estate. 171 They could look forward to some five years in office to achieve this happy resolution of their problems - a tenure approaching that of a Spanish viceroy, who could normally expect an initial three-year term of service to be extended for a further three years.79 Military and naval service was also a passport to a colonial governorship in British America, while in Spanish America the Bourbons showed a willingness, unlike the later Habsburgs, to select for viceregal appointments members of the lower nobility and even the professional classes who had distinguished themselves in administrative or military service.SO The Spanish crown, however, with its deep suspicion of creole aspirations, did not follow the British crown in countenancing the appointment of colonials to head colonial governments, like Sir Henry Moore, an eighteenth-century governor of New York."
Suspicion, indeed, pervaded the attitude of the imperial authorities in Madrid to every aspect of the government of their American possessions. Too much was at stake for them to run any risks. There were endless opportunities for royal officials to enrich themselves, or to enter into tacit and mutually advantageous alliances with the creole elite. It was for this reason that Philip II ordered in 1575 that viceroys and judges of the Audiencias should not marry a wife from their area of jurisdiction, and Madrid would make desperate if doomed attempts over the years to ensure that the matrimonial prohibitions were upheld, and that royal officials should as far as possible be socially isolated from the surrounding population.82
Spain's officials in America, too, were subjected to numerous checks and controls. Viceroys would report on Audiencias and Audiencias on viceroys, and there was a permanent tension in their relationship which was perfectly capable of leading to a total breakdown of communications between the two, as happened in New Spain during the tumultuous viceroyalty of the Marquis of Gelves between 1621 and 1624.83 All those who felt themselves aggrieved had the right to bypass the local authorities and make their complaints directly to Madrid, and this method of control by accusation and innuendo was reinforced by institutional checks. These took the form of visitas, or visitations, in which a visitor was sent out to inquire into the activities of an official, or group of officials, suspected or accused of irregularities. In addition, all officials at the end of their term of office would be subjected to a residencia, consisting of a judicial review of their conduct during their period of tenure.84
No British governor in colonial America had serious reason to fear such draconian proceedings. Slanders and innuendoes might fly to and fro across the Atlantic, but the casual attitude of successive British administrations to so many aspects of colonial life was far removed from the legalistic approach adopted by the Council of the Indies in Madrid, the majority of whose members were professionally trained Roman Law jurists. Yet even if a British governor was not exposed to the constant scrutiny and intrusive investigations from the imperial centre to which his Spanish counterpart was condemned, the authority he could command in his area of government was likely to be less.
He was expected to govern with the advice of a council, usually of twelve members, drawn from among the colonists, and also doubling as the upper house of colonial assemblies. Governors and councils often worked well together, but even when a governor's relations with his council were good, he had to move with caution, if only because the councillors were unlikely to approve measures prejudicial to their own interests and those of the colony's elite.85 It was precisely to counteract this kind of local pressure that the Spanish crown had placed its restrictions on the judges of an Audiencia - the nearest equivalent to the governor's council - forbidding them to acquire land or marry in the area of their jurisdiction.
A British royal or proprietary governor was also at a serious disadvantage in matters of finance. In Spanish America, royal administration was financed by income from the crown's fifth of the production of precious metals and its share of the church's tithes. It could also count on the annual per capita tribute paid by the Indians, together with a set of dues levied on the transatlantic trade.86 It was true that the settlers and their descendants were exempt from direct taxation as a reward for their services in conquering and settling the land, but, as the costs of administration rose, the crown sought to introduce various forms of indirect taxation. This process began in 1575 with the levying in New Spain of one of Castile's most important taxes, the alcabala, a sales tax initially set at 2 per cent. In 1591 the tax was extended to Peru, where its introduction provoked strong resistance. 87
In Spanish America, as in Spain itself, the crown was forced to turn to merchantfinanciers to advance funds in anticipation of revenues still to be received. In many respects, however, it was successful in developing an effective imperial fiscal system, particularly in terms of its ability to respond to changing requirements. A network of regional treasury offices (cajas reales) was set up, with royal officials controlling the collection and registration of revenue under the supervision of a principal treasury office located in a viceregal capital or a major administrative centre. Regional treasuries would pay their surplus funds into the principal treasury. By 1600 fourteen of these regional treasury offices were in existence, and a further seventeen were created in the seventeenth century. Each caja possessed its own area of jurisdiction, and treasuries were added, and sometimes eliminated, as circumstances changed. The discovery of new silver deposits, or new-found prosperity in some outlying region of empire, was likely to be followed by the establishment of a caja real. The system possessed a further element of flexibility in providing the opportunity for the transfer of cash from one region to another in the light of local needs. The Mexican treasury, for example, in addition to the annual remittance of `surplus' funds to Spain, was called upon to subsidize some of the more impoverished outposts of empire, like the Caribbean islands, Florida and the Philippines, by the transfer of funds, known as situados. While the system lent itself to exploitation by merchants and local officials who were in the fortunate position of being able to lay their hands on the monies remitted to their region, in principle the mechanism for the redistribution of tax revenues made it possible to allocate resources, and especially resources for defence, in response to imperial priorities and requirements.88
Colonial government in British America, by contrast, lacked a strong and independent fiscal base, and there was no apparatus for the allocation of resources at the imperial level.89 In the absence of silver mines and of a densely settled Indian tax-paying population, government had necessarily to be funded by the colonists themselves. Although quit-rents were payable to the crown in royal provinces where the king claimed an immediate title to the soil, they met only a fraction of the costs of government, even in the colonies where such rents were collected.90 As a result, governors were forced to turn to colonial assemblies for money, including in some instances their own salaries. It was precisely to avoid this kind of financial dependence on the colonists that Ferdinand and Isabella had set themselves against the creation of parliamentary institutions in America.
Outside the New England charter colonies, representative assemblies for much of the seventeenth century were slow to find their feet, and were liable to be dominated by the governors and their councils.91 Yet the potential for conflict existed from the start, as governors anxiously sought ways of covering the rising costs of administration and defence, while assemblies began to appreciate the political leverage offered by control of the purse strings. It was the same story as that of the House of Commons, with which the assemblies or their lower houses increasingly tended to identify themselves. In Virginia, where the governor's council had been the dominant element for the first sixty or seventy years of the assembly's existence, William Fitzhugh, a lawyer, proudly referred in 1687 to the House of Burgesses, now sitting as a separate branch of the assembly, as `our Parliament here'.92 By the eighteenth century, following the historical model of the House of Commons, the lower houses were seeking sole authority over the raising and disbursement of revenues, and were gradually eroding the legislative powers of the governors' councils.93
In contrast to Spanish viceroys and governors, British colonial governors were also handicapped by the absence of a royal bureaucracy. Without it, they were overwhelmingly dependent on local resources for providing the officers of government and justice, especially in the first decades of settlement when the patterns of administration were being laid down. While overall responsibility for administration in the colony rested with the governor and his council, they naturally looked to English precedents as they set about establishing a framework of government. Unable to count on a regular provision of judges and officials from Britain, equivalent to the stream of Spanish judges and officials travelling over to take up posts in the Indies, they had no choice but to rely on the co-operation of the local elite. As a result, the English system of local self-government at the king's command was transferred to the colonies.
One disadvantage of this was that for a large part of the seventeenth century, and in some colonies beyond it, elites were still in the making. This meant that there was no substantial pool of colonists with a tradition of administrative and judicial service, like the English country gentry, to occupy the posts that had to be filled. By the 1630s the first-generation elite of Virginia, heavily composed of immigrants drawn from the upper ranks of the English social hierarchy, had largely died out. It would take time in this ruthlessly competitive land-grabbing society to forge from among the successful planters a new and stable elite with the inclination, capacity and sense of service to discharge the burdens of office with dedication and competence.94
As plantations began to spread through the Tidewater, creating problems of communication over long distances, it ceased to be possible for the governor and his council to perform the tasks of local government, and new institutions were urgently needed to help maintain law and order and regulate disputes. Eight shires, or counties, were established in Virginia in 1634, `which are to be governed as the shires in England. And Lieutenants to be appointed the same as in England, and in a more especial manner to take care of the war against the Indians. And as in England sheriffs shall be elected to have the same power as there; and sergeants, and bailiffs where need requires."' By 1668, with a flood of immigrants pushing up Virginia's population from 5,000 to 40,000, the number of counties in Virginia had grown to twenty, each with its own county court consisting of justices of the peace, a sheriff with policing and tax-collecting duties, and a clerk and several minor officials.96
The operations of these county courts were modelled on English quarter and petty sessions, although with little of the splendour of their English originals.97 Ceremonially, this was a pared-down version adapted to the more rugged requirements of early colonial society, but, as the General Assembly devolved more and more duties on them, the courts accumulated powers that came to extend beyond those to be found at the equivalent level in England. They became in effect units of government, with a wide range of responsibilities in the management of local life. In the absence of church courts in Virginia, the county courts took over a range of functions which in the home country fell within the sphere of ecclesiastical jurisdiction, like the right to probate wills. In many areas of concern, including those of public and private morality, they worked in close partnership with the vestries, the governing bodies of the parishes into which the county was divided.98 In Spanish America the church-state partnership ran all the way down the administrative scale, with the institutional church heavily subordinated to royal authorities enforcing regalist policies. In the Anglican colony of Virginia, it operated primarily at the local level, with church business subject to management by the local planter oligarchies which came to dominate county life as a whole.
As the powers of jurisdiction of the county courts were continually augmented by the General Assembly, an essentially decentralized system of government and justice established itself in Virginia, as also in the neighbouring colony of Maryland. The governor and his council increasingly retreated from local government, and, with justices of the peace empowered to hear all cases in criminal law and equity after 1645, the council, sitting as a court, reduced the range of its activities until it was effectively transformed into a court of appeals. Nominally, appointment of justices of the peace rested with the governor, but from the 1660s he was doing little more than formally ratifying choices made at the local level as the planters competed for, and carved up, offices in the county courts among themselves.99
Some settlers, as `new men' who had crossed the Atlantic in search of social betterment, had little or no experience of administering the law at home, although many would at some stage of their lives have come into contact with the courts in England, whether as jurymen, witnesses, plaintiffs or defendants. A number, however, had studied law at the universities and the Inns of Court. Yet even these were confronted on arrival in America with conditions very different from those they knew at home, and now found themselves called upon to meet the heavy challenge of devising and implementing laws that had to be shaped to conform to the needs of societies in the making.
They could only do this by making creative use of such legal traditions as lay to hand, combining them, as appropriate, with the injunctions of divine law and a strong dose of pragmatism. Renaissance England, like Renaissance Spain, was a country endowed not with one system of laws but several. In Spain, a land where Christian, Jewish and Moorish legal systems had coexisted in the Middle Ages, Christian and royal law, although now triumphant, was still hemmed in by customary law, in the form of regional and local juridical privileges, or fueros. It was also restricted by corporate privileges - the fuero militar, granting various immunities to soldiers, and the fuero eclesikstico, which confined a wide range of offences to the church courts, and shielded the clergy from secular jurisdiction. Legal pluralism was equally the order of the day in Tudor and early Stuart England. Not only did civilian lawyers continue to contest the claims of the common law to supremacy, but the common law courts competed in a crowded field with a multiplicity of courts, each with its own form of jurisdiction - church courts, admiralty courts, law merchant courts, local and manor courts, and prerogative courts like the Star Chamber.'°°
Out of this welter of legal systems the first settlers in each new colony had to fashion a legal and court system which would enable them to build civil societies in an alien environment and regulate their relations with the indigenous peoples into whose lands they had moved. In Spanish America, royal officials were quickly on the scene to impose royal justice and the laws of Castile. In the English settlements, on the other hand, the settlers were left largely to their own devices, and had to come up with creative answers of their own, drawing as best they could on legal memories, and guided by William Lambarde's Eirenarcha (1581), Michael Dalton's The Countrey justice of 1619, and other essential handbooks for English justices of the peace.
The transplantation of cultures leads to selectivity, as emigrants, especially if drawn from different regions, are driven by circumstance to pare down to a single common denominator, or a few essentials, the forms and institutions of the mother country which will give order to their lives in an alien world. Not surprisingly, therefore, the multiplicity of courts to be found in England gave way in the colonies to a unified court system.10' Yet at the same time the absence of central direction from England, and the presence of numerous different settlements along the eastern seaboard, tended to have an opposite effect when it came to drafting new legal codes. Each colony struck out on its own to shape a system of laws appropriate to its needs, and although colonies borrowed ideas from each other, their codes inevitably reflected the time of origin of the initial settlement, the character and aspirations of the first wave of settlers, and the situation they found on their arrival in America.
In early Virginia, for instance, the need to discipline a tumultuous colony found expression in a resort to the prerogative notions of English military justice and the judicial practices of the English border regions. Gradually, as the colony was stabilized, the colonists incorporated appropriate aspects of the common law, while at the same time the Virginia General Assembly displayed growing confidence in drafting statutes to cover novel circumstances.102 The lawmakers of Massachusetts, for their part, drew on a wide range of sources in addition to the common law, including the Scriptures, European concepts of civil and natural law, English and foreign local customs, and the law reform proposals being advocated in the home country during the colony's early years. The outcome was the carefully devised Massachusetts legal code of 1648, which gained wide popular acceptance. The aggrieved were encouraged to take their chances at law, and, as a result, the Massachusetts courts provided a valuable forum for conflict resolution in a naturally contentious society.lo3
The plurality of the legal systems established in seventeenth-century English America, however, was to come under growing pressure during the second half of the century, as a consequence both of developments in the home country and of the determination of the imperial government under the later Stuarts to take the colonies in hand. In the Civil War period the English prerogative courts were abolished, and they were not restored when the monarchy returned in 1660. The church courts, although re-established, saw the scope of their jurisdiction reduced. The implications were clear. The common law was close to achieving definitive victory over its adversaries, and the effects of this were soon to be felt in the colonies. In the years immediately before and after the Glorious Revolution, imperial officials embarked on a strenuous attempt to bring colonial legal systems into line with the practices of the English common law At the same time, the arrival in America of growing numbers of settlers who had been trained in the common law, and the increasing tendency of the settlers themselves to send their sons to England for a legal education at the Inns of Court, inevitably led to the gradual anglicization of colonial law and legal practice.
The progressive subordination of the diversified legal culture of the colonies to the uniformity of the English common law in the century between the 1680s and the 1770s necessarily involved the closing of several avenues for redress that had been open to suitors in the settler communities during the early years of settlement. At the same time, growing professionalization in the world of the common law led to rising costs of litigation, which in turn discouraged the poor from bringing suits.104 Yet, as in Spain's American territories, the uniformity was far from absolute. In both colonial worlds, specific local circumstances continued to require local legislation; and the presence or proximity of Indians forced the settler societies into accommodation with indigenous customs and traditions, especially in the borderlands.
In British America, moreover, there were matters of great moment on which the common law was largely silent. These included slavery, questions of landownership and distribution, and the resolution of border disputes. On such subjects, each colony tended to develop its own rules and practices, or borrow them from others. A degree of legal pluralism therefore continued to survive within the tightening legal framework of a British Atlantic civilization. But by degrees that framework of shared Atlantic law and practices came to be prized in the American colonies as guaranteeing the fundamental English liberties. One of the most fundamental of these liberties was the right to judgment by one's peers.
Trial by jury as a fundamental right of Englishmen had been extended to Virginia by the charter of 1606, but Tudor and early Stuart England had seen a trend to limit the use of juries in favour of more summary forms of justice. The resulting uncertainty in the mother country over the use of juries crossed the Atlantic with the settlers. In the Chesapeake colonies, with their thinly scattered population, it was difficult and expensive to assemble a jury, and for much of the seventeenth century juries tended to be dispensed with, even in civil cases. The magistrates of Puritan New England, whose reverence for biblical law exceeded their reverence for the English common law, showed a strong preference for summary justice - a preference not, however, shared by Rhode Island, whose settlers had moved there from the Bay colony in the hope of escaping from the rigours of magisterial justice, and who not unnaturally possessed a special fondness for juries. In the second half of the century, however, as freemen became increasingly resentful of magisterial domination, and as fears grew about threats to liberty under the later Stuarts, juries became an increasingly established feature of public life throughout the New England colonies, to the point that civil juries came to be used far more extensively than they were in England itself.'05
Jury service, the holding of local office, voting for, and membership in, an assembly - all this exposed settlers in British America to a considerably wider range of opportunities in the management of their affairs than were available for the creole population of Spanish America. Spaniards found such active popular participation in matters of government and justice both alarming and odd, to judge from the reactions of one of them whose ship ran aground on Bermuda in 1639. `As in England,' he noted, `authority here is placed in the hands of the humblest and lowest in the Republic, and not entrusted to educated persons having an aptitude for office ... The Judges and Governor appoint twelve persons of the Republic and instruct them to consider all matters and documents in the causes that have been heard in their presence, and to give their verdict. These twelve persons then leave the Sessions house and are conducted by one of the other officials to the church and are there left locked in with orders not to be let out until they have decided the cases. 1106
Authority in Spain's American possessions could certainly not be described as being `in the hands of the humblest and lowest in the Republic'. Instead, it was exercised by royal officials sent out from Spain, together with a select group of creoles. Until the sale of public offices allowed growing numbers of the creole elite to infiltrate the royal administration as the seventeenth century proceeded'107 active creole engagement in government tended to be confined to the running of municipal affairs, and was characterized by a heavy bias towards oligarchical control.
The town of Popayan, the capital of the province of the same name in the kingdom of New Granada, offers a telling illustration of the restricted nature of municipal government, and of the uncertain relationship between a local elite and the royal authorities.10S A town of some 150 permanent Spanish households in the seventeenth century, it had a mixed population of around 2,000 inhabitants, consisting of Spaniards, mestizos, Indians and blacks. Either the provincial governor, as the crown's representative, or, more frequently, his deputy, presided over the meetings of the cabildo, the town council, which consisted in 1612 of eight members - a number that varied over subsequent decades, depending on the readiness of the crown to create and sell new seats on the town council, and citizens to buy. The cabildo was composed of proprietary members who had purchased their seats from the crown, along with three elected members chosen annually by the proprietary members. Election did at least allow for the incorporation into the town's government of prominent newcomers, but control of the wide range of municipal business, both administrative and judicial, rested effectively with a handful of Spanish families who seem to have acquired greater internal cohesion as the century progressed. In principle, open town meetings - cabildos abiertos - could be convened, but only six are recorded for the entire seventeenth century. Yet for all the influence of Popayan's oligarchy at the provincial as well as the municipal level, the cabildo's powers were circumscribed by those of the governor, who had to authorize all but the smallest municipal levies. The degree of its influence therefore depended at any given moment on the oligarchy's success in forging an effective working relationship with the governor and his deputy. Not surprisingly, the ill-defined nature of the relationship between municipality and the imperial government meant that important business was at least as likely to be conducted through private negotiation as through public transaction. It is some indication of the closed, informal and personalized character of Popayan's town government that the cabildo never got round to producing a set of ordinances for the regulation of municipal business.
The extreme opposite of Popayan's method of conducting its business was to be found in New England, where, in spite of the existence of county courts, the town constituted the principal organ of local government. Town meetings of resident householders would take the major decisions, while electing a group of `selectmen' to manage business between the meetings. Seventeenth-century Easthampton, for instance, was a small town on Long Island which, although transferred against its wishes from Connecticut to the province of New York, was shaped by its characteristically New England style of government. 10' Three selectmen, chosen by the householders, looked after the town's business for the year, sometimes with the help of an additional four, while a variety of officials, ranging from the recorder and constables to highway overseers and fence viewers, were responsible for different aspects of municipal life. In all this, Easthampton was typical of New England towns, as it was, too, in its recourse to ad hoc committees to deal with special issues."0 In Spanish America, on the other hand, there is nothing to suggest that government by committee became a way of life.
New England, however, was not all British America, and the degree of popular participation in local government varied substantially from colony to colony. In the Southern Colonies in particular, local government was in the hands of selfselecting members of the planter elite. The city of New York held its first elections for aldermen and assistants in 1686, but the governor and council made the appointments to all the other city offices. Philadelphia, founded in 1681, possessed a broad suffrage, but the city charter of 1691 was modelled on that of closed English corporate towns, with the municipal corporation constituted as a self-perpetuating body, although elections were held annually for sheriffs, commissioners and tax assessors."
Even in seventeenth-century New England the system of municipal government was liable to be less genuinely popular than it appears at first sight. Due deference tended to be paid to social status when it came to appointments, as in Easthampton, where committee memberships and major offices circulated among a small group of citizens, while half the remaining householders held no office at all. 112 Many New Englanders also found themselves excluded from active participation in town life, either because they did not conform to the requirements of church membership, or, as the seventeenth century proceeded, because they lacked the necessary property qualifications."'
Yet the nature of New England's system of town government did much to enhance each town's sense of its corporate identity as a close-knit community, and of the collective responsibility of the householders for the management of civic business. The effect was to place a powerful emphasis on stability, order and the maintenance of religious and moral values inherited from the past, while simultaneously fostering a strong commitment to independence from outside interference. The combination of corporate independence and individual obligation to the upholding of an ideal community was bound to create problems for the royal authorities as soon as they sought to intervene in colonial life. Obstinacy was to become second nature to colonial New England.
The potential for trouble was symbolically illustrated as early as 1634 when John Endecott, who had been the Massachusetts Bay Company's governor of the settlement at Salem, cut the red cross out of the royal ensign, on the grounds that it was a popish symbol. In spite of considerable concern that this would give `occasion to the state of England to think ill of us',114 Massachusetts managed to hold on to its own distinctive flag, shorn of the offending cross, until the last years of the century."' Such a degree of defiance would have been unthinkable in Spanish America once Gonzalo Pizarro's followers, after flaunting the Pizarro arms in place of the royal arms on their banners, had gone down to defeat. There was, however, a stand-off with the royal authorities in Mexico City, which never reconciled itself to the conventional coat of arms conferred on it by Charles V As proud inheritors of the conquered Tenochtitlan, the city authorities appropriated the Aztec emblem of an eagle devouring a serpent and poised on a cactus, which they deftly placed above the new civic arms. In 1642, after eagles and serpents began to proliferate on municipal buildings, the viceroy, Bishop Palafox, took alarm at these idolatrous symbols and ordered their removal from the city's arms. But the serpent-devouring eagle was becoming a potent symbol of Mexico's distinctive identity, and - never entirely suppressed - it would once more come to rest on its cactus during the struggle for independence. 116
Clinging obstinately to its flag, Massachusetts, both insolent and obdurate, was to prove a constant thorn in the side of the Stuarts. Already in the late 1630s, when Archbishop Laud's Committee on Plantations challenged the colony's charter, the General Court warned him that `the common people here will conceive that his Majesty hath cast them off, and that, hereby, they are freed from their allegiance and subjection ...'117 In the event it was to be the English and the Scots in the next few years who would free themselves from `their allegiance and subjection' to Charles I.
The English Civil War and the king's execution in 1649 raised, not only for Massachusetts but for all the colonies, major questions about the exact nature of their relationship with the mother country. Not only did the Civil War sharply reduce the inflow of capital and immigrants to the colonies,"' but it also created fundamental problems of allegiance, and posed questions about the exact location of imperial authority that would hover over the Anglo-American relationship until the coming of independence. No comparable challenge would confront the Spanish empire in America until the Napoleonic invasion brought about the collapse of royal authority in Spain in 1808. The transition from Habsburgs to Bourbons in 1700, which brought conflict to the peninsula, provoked only a few passing tremors in the American viceroyalties.119
For the colonies, as for the British Isles themselves, the outbreak of the Civil War brought divided loyalties.120 Virginia remained faithful to the king and the Anglican establishment; Maryland briefly overthrew its government in favour of parliament, and descended between 1645 and 1647 into a period of turbulence graphically known as `the plundering time';121 and many New England settlers went home in the 1640s to help establish the New Jerusalem in the mother country and join the parliamentary cause.122 But the absorption of the English in their own affairs during the 1640s gave the colonies even more scope than they had previously enjoyed to go their own way. Governor Winthrop of Massachusetts made the most of the opportunity to press on with the creation of new settlements and to form a Confederation of the United Colonies of New England for mutual defence. 121 The colonies could not, however, count on being indefinitely left to their own devices. As early as 1643 the Long Parliament set up a committee under the chairmanship of the Earl of Warwick to keep an oversight over colonial affairs.
This committee, although interventionist in the West Indies in response to the activities of the royalists, and supportive of Roger Williams's attempts to secure an independent charter for Rhode Island, was generally respectful of legitimate authority in the colonies. But its activities raised troubling questions about whether the ultimate power in colonial affairs lay with king or parliament. As early as 1621 Sir George Calvert had claimed that the king's American possessions were his by right and were therefore not subject to the laws of parliament.124 This question of the ultimate location of authority became acute after the execution of the king, since several of the colonies - Virginia, Maryland, Antigua, Barbados and Bermuda - proclaimed Charles II as the new monarch on his father's death. Parliament responded to these unwelcome colonial assertions of loyalty to the Stuarts by passing in 1650 an Act declaring that the colonies, having been `planted at the Cost, and settled by the People, and by Authority of this Nation', were subject to the laws of the nation in parliament. 121
When this Act was followed in the succeeding year by the Navigation Act, it must have seemed to the colonies that the Commonwealth represented at least as grave a threat as monarchy to their cherished rights. Parliament's bark, however, proved fiercer than its bite, and Cromwell turned out to be reluctant to interfere in colonial politics. The colonies therefore reached the Restoration of 1660 relatively unscathed. If anything, they emerged with enhanced confidence in their ability to manage their own affairs as a result of the uncertainties of the Interregnum and the impact of those uncertainties on the authority of royal and proprietary governors. Yet the growing economic importance of the colonies to the mother country, both as markets for English manufactures and as sources of supply for raw materials, meant that sooner or later the restored royal government was likely to make an effort to strengthen its authority over its imperial territories. It was in line with the sharpened perception of the colonies' value to England that the Earl of Clarendon urged on Charles II `a great esteem for the plantations and the improvement of them by all ways that could reasonably be proposed to him'.126
Clarendon's concern for the future development of the colonies, expressed in the creation in 1660 of two advisory Councils, for Trade and Foreign Plantations,'' harked back, as might be expected, to the age of Charles I and Archbishop Laud. But it also took into account the new naval and commercial realities of the Interregnum, and the growth of state power under Cromwell, whose conquest of Jamaica represented an important and potentially lucrative reinforcement of the British presence in the Caribbean. The government of Charles II, at once goaded and hampered by its perpetual need of funds, was to inch its way towards the formulation of a more coherent imperial policy, although this was constantly to be undercut by short-term considerations of immediate financial advantage. A government, for instance, that had ambitions to produce a more uniform pattern of colonial administration, had no hesitation in adding to its complexities by simultaneously creating new colonies on a proprietary basis in order to gratify friends and increase its revenues. Carolina, granted to eight proprietors including the future Earl of Shaftesbury, in 1663; New York, handed over to James, Duke of York, in 1664 after its capture from the Dutch; the jerseys, transferred that same year by the Duke of York to Sir George Carteret and Lord Berkeley; and William Penn's settlement of Pennsylvania in 1681, were all set up as charter colonies. Only Jamaica, its long-term status still uncertain after its seizure from Spain in 1655, was incorporated into the English empire in America as a royal colony.
Yet in spite of a casualness in the disposal of territory that seems to belie its own perceived best interests, the crown under the later Stuarts was moving, however erratically, towards increased intervention in American affairs, prompted partly by considerations of profit and power, and partly in response to pressures from within the colonies themselves. In an age of system-building, whether in intellectual life or in politics, the creation of a rational and orderly imperial system seemed to offer the best hope of securing maximum benefits from the growing prosperity of the colonies. The France of Louis XIV provided an obvious model as it moved to consolidate and extend its presence in America. But it would be surprising if some at least of Charles II's ministers and officials were not also influenced in their formulation of the new system by the Spanish model, designed to integrate America into a tight imperial framework and to regulate colonial trade to the benefit of the metropolis. In the Council for Trade and Plantations of 1660, and its various successor bodies, culminating in the Board of Trade in 1696, can be seen an embryonic Council of the Indies; in the Navigation Acts and the attempts to enforce them, a Spanish-style monopoly of the transatlantic trade; and in the proposals for a Dominion of New England, which would take shape under James II, the first stage of an ambitious programme for the consolidation of the American colonies into three or four viceroyalties on the Spanish model.121
Under the new programme that was being slowly forged in London, the New World settlers, who for so long had been left to their own devices, would, for the first time in their collective experience, be brought face to face with the intrusive state. That collective experience, however, in some instances already reached back three generations, and this made the assertion of the royal prerogative in America by the later Stuarts a very different proposition from its assertion by the Spanish crown over the conquistadores and first settlers of Mexico and Peru. The Earl of Sandwich, himself recently returned from an extended embassy in Spain, recognized as much in his `Comments upon New England' of 1671: `They are at present a numerous and thriving people and in twenty years are more likely (if civil wars or other accidents prevent them not) to be mighty rich and powerful and not at all careful of their dependence upon old England.' For this reason he took `the way of roughness and peremptory orders, with force to back them, to be utterly unadvisable. For they are already too strong to be compelled ... And though I apprehend them yet not at that point to cast us off voluntarily and of choice: yet I believe if we use severity towards them in their Government civil or religious, that they will (being made desperate) set up for themselves and reject us.'129
`They are already too strong to be compelled.' The verdict was perhaps too gloomy. Changing conditions in New England in the 1670s and 1680s - King Philip's War, the threat from the French in Canada, the increasingly complex ties between Massachusetts merchants and the British commercial system - were to make the New England colonists more amenable to the imperial authority in the last years of the century than at the time when Sandwich delivered himself of his `Comments'.13o Yet the instinct to resist was strong, and this was true even of the new colony of Jamaica, which started its life under the British crown with a military government, and - as a conquered island on the model of Ireland - offered unique opportunities for the assertion of the royal prerogative. Already in 1660, with half of the island's British population consisting of settlers from the older colonies, the governor, Colonel D'Oyley, had to promise that taxes would be levied only by their representatives.13' Jamaica's assembly was soon flexing its muscles, and at the end of the 1670s it successfully fought off attempts by the Privy Council to introduce Poyning's Law, a measure originally devised for Ireland and requiring the prior consent of the council to the passage of local legislation. `It was', argued the Speaker, Captain Samuel Long, `against law and justice to alter the constitution Jamaica had so long lived under. 1112 `So long' amounted to some sixteen years of English rule, the earliest of them under military government. English liberties, it seemed, had rapidly taken root in fertile Caribbean soil.
So-called `garrison government' by army officers might, if systematically pursued as a policy objective, have laid the foundations of a more autocratic system of imperial rule in British America.133 This would have brought it more into line with French Canada than with Spanish America, where - outside Chile and the frontier regions - there was little military presence at any level before the eighteenth century. But it is easier to see in the appointment of military men to colonial governorships a form of outdoor relief for the superannuated and unemployed than a carefully thought-out design to impose royal power on the colonies, although professional soldiers certainly had their uses when colonists proved obdurate. The despatch of a thousand-strong expeditionary force from England to crush Bacon's Rebellion in 1676, for example, gave the crown the opportunity to curb the powers of the Virginia assembly, remodel the colony's system of government, and secure a grant of a perpetual duty on tobacco exports which yielded a substantial permanent revenue. 114 Yet if the crown was thinking in terms of continuing garrison government, it did not achieve its aims. In 1682, with their pay badly in arrears, the troops had to be disbanded.13'
Government ministers and officials in the London of Charles II, however, were itching to get their hands on a greater share of American revenues, and were busily hatching schemes to secure a greater degree of royal authority over the crown's wayward transatlantic possessions. Sent out on a fact-finding mission to the colonies in 1676 by the newly established Privy Council committee, known as the Lords of Trade, Edward Randoph, who was to have an important career as a royal official in America, was horrified by the lack of respect shown to the crown in Massachusetts, and looked forward to the day when `it shall please his Majesty fully to resolve upon the reducing this Plantation to their due Obedience'.136 This day looked like dawning exactly ten years later, when Sir Edmund Andros, a military man and a former governor of New York for James, Duke of York, arrived in Boston as the first royal governor of the newly created Dominion of New England. 117
The decision to consolidate the New England colonies into a single dominion under a royal governor was an attempt by the authorities in London to resolve through a dramatic intervention in colonial life the various problems that had exercised them since the Restoration.13' The traditional lack of respect for the crown in Massachusetts; the perennial shortfall in the royal revenues; the desire to impose closer control over the increasingly lucrative transatlantic trade; the growing costs of colonial defence at a time of war with France - all these suggested the desirability of introducing some uniformity into the existing patchwork of colonial government, and of grouping the New England colonies together into a union under a single governor. Randolph's activities in the colonies in the early 1680s suggested that there were significant groups in colonial society, like the moderate Puritans and Anglican merchants, who would welcome reform and would be ready to co-operate with the royal authorities to bring it about.139 If Andros played his cards well, he could capitalize on these divisions to strengthen royal influence through a centralized form of government, and similar policies might in due course be extended to the Middle Colonies and those of the South.
Yet the dangers were obvious, and had already been foreshadowed in the proprietary colony of New York, where the Duke of York had replaced Andros as governor by an Irish Catholic, Colonel Thomas Dongan, a former lieutenantgovernor of Tangier. In conceding the New Yorkers an assembly, the duke tied the concession to a grant large enough to pay off the public debts and provide sufficient revenue to support the government and the garrison in perpetuity. When writs for the assembly were sent out in September 1683, Easthampton was one of the towns to instruct its representatives to stand up for the maintenance of `our privileges and English liberties'. Drawing for its inspiration on Magna Carta and the 1628 Petition of Right, the assembly proceeded to draw up a `Charter of Libertyes and Privileges', designed to establish the colony's government on a firm contractual basis. The charter was rejected by the Duke of York, and in October 1684, in what looked like the beginnings of a systematic assault by the crown on colonial charters along the lines of its assault on chartered corporations in England, the charter of Massachusetts was revoked.140
The accession of the Duke of York to the English throne in 1685 inevitably heightened the fears of the colonies that a Catholic conspiracy was afoot for the imposition of arbitrary rule in America. The instructions given Governor Andros by James II in 1686 for the establishment of the Dominion of New England included the introduction of major changes in the system of land tenure, the establishment of religious liberty, which could only be seen as a devious attempt to promote popery, and the abolition of representative assemblies. It was already too late for this. New revenue-raising attempts quickly ran into resistance, as in Essex County, where the town government of Ipswich voted that `it did abridge them of their liberty as Englishmen'.14'
New Englanders would not have found much cause for comfort in the response of judge Joseph Dudley to one of the Essex County defendants: `They must not think the privileges of Englishmen would follow them to the end of the world. 142 The colonists, however, were well aware of the growing resistance to the government of James II in the mother country. In defying judge Dudley and asserting their claims to equality of status with their English brothers and sisters, they transformed the English struggle for the preservation of English religion and English liberties into a common Atlantic cause. When news reached America of the Glorious Revolution of 1688 they were ready for action. Revolution in Britain was followed by upheavals in the colonies - most notably in Massachusetts, New York and Maryland - and the overthrow of the hated Andros, whose arrogant, arbitrary and secretive character had alienated even his natural supporters. The experiment of centralized government in a Dominion of New England had come to a humiliating end.143
The Stuart invasion of colonial liberties ended in failure, partly because the imperial policies pursued by the crown were inconsistent and erratically pursued, but also because of deep divisions within British political culture of the seventeenth century. The Civil War had exposed the fissures in English politics and society, and these fissures, although papered over, persisted after the restoration of the monarchy. The Lords of Trade, for instance, were divided between those who favoured a forceful assertion of royal prerogative and supported the Anglican establishment, and those who were inclined by conviction and tradition to support a strong parliament and to side with the dissenters.144 Such political and religious divisions militated against the formulation and pursuit of a coherent policy designed to enhance royal control over the colonies, and gave the representative bodies already well entrenched in America room to manoeuvre when they felt themselves threatened by the power of the crown.
Where the Council of the Indies in Madrid, for all its factional divisions, was united in its determination to uphold the royal authority, some ministers and officials in London spoke the language of the prerogative while others spoke the language of liberty and consent. These divisions ultimately made it impossible for the later Stuarts to realize, by means of Whitehall's proposed system of Dominion government, Charles I's original ambition of introducing `one uniforme Course of government' in the American plantations. The Revolution of 1688 decisively reaffirmed the primacy of the principle of representation on both sides of the English Atlantic. It also ensured the definitive acceptance, however reluctant, of religious pluralism as a necessary component of the political and social ordering of the British Atlantic community. For that community after 1688 there could be no turning back.