to exhibit to another the title of his possession as the law ordains, (see note,) this is limited to those who pretend possession of things of others, or when opinion is against them; and consequently, in any case where defence is made under pretext of feudal, gratuitous, or censual right, they are obliged to exhibit it according to the common opinion of the doctors, (see note,) since it is the foundation of their intent; and not making the exhibition, the presumption is against him that all things are presumed to be free; so in matters of jurisdiction, says Gregorio Lopez and many others, (see note,) that for the reason that the king enters by founding his claim upon all his dominions, even upon lands of lords and of prelates, he can ask these, and compel them to exhibit the titles by which they claim their rights. TITLE VIII. POWERS OF VICEROYS, CAPTAINS.GENERAL AND GOVERNORS, FROM SOLORZANO'S POLITICA INDIANA. [TRANSLATION.] Book 3-Chapter 5-Article 31. Because, as Carolo Pascalio says, and Calisto Ramirez, subjects. have no obligation to investigate or know the orders and instructions of a secret nature which are given to the viceroys, in which bounds are put to their power, for, if they do not obey them, they are subject to reprehension or punishment; but what they may perform must be sustained, because they are in quality of factors or substitutes to royalty, for whose actions he who named them is accountable, and put them in that charge which is indeed conformable to right.* Book 3-Chapter 9—Article 14. But although this, as I said, proceeds with reference to common law, and it is fit that the viceroys and governors of the Indies never cease to bear it in mind, still, as regards the municipal duty of these, the whole, or almost the whole, is left to their discretion and prudence; because, in the conflict or concurrence of these cedulas (royal provisions) and orders de providende, they have not to attend so much to the dates and orders of these as to that which may appear for them most convenient to execute: as also, what the merits and services of those who have presented them ask and require, and the state of things in their countries or provinces, the government of which is com * L. 3. ff. de publicam, § fin. instit. de oblig. quæ es quasi dedic. Cabedus et alii apu Mc. d. c. 4 n. 78. mitted to them. It is thus recommended to them in the royal cedulas which I noticed in the beginning of this chapter, and others of the years 1567, 1605, 1610, directed to the viceroys, at that time, of Peru, Toledo, Monterey, Montesclaros. Book 3-Chapter 10-Article 25. This calls us to another question not less frequent and difficult, upon which I have seen some suits adjourned from a discord of opinionsI mean who is to have the preference of two, of whom one obtained by favor from the court a special encomienda (Indian tribute) by dispensation made to him by his majesty; and another obtained the same in the Indies by grant of the viceroys or governors, having there power to do it, without having notice of the other from his majesty. I judge we can examine and easily solve this question as respects the right, only by informing ourselves, and looking attentively as to the fact of which of these grauts of the same objects preceded the other; for, if we suppose the vacancy to happen in the Indies, and the viceroy or governor, who there is, as the king himself, made the appointment lawfully and immediately, and in exercise and use of his faculties, gave the title and possession thereof to some well deserving person, we must come to the resolution that the grant of this same encomienda, which afterwards may be found to be made by the king in his court, is of itself null and of no value or effect, because there is no vacancy to supply, as we said in chapter five, on account of its being previously occupied, and the grant made in proper time; and the concession made in the name of the king, in virtue of authority sufficient, and his own commission, must be, and must remain always firm and valid as if himself had made it. Of this we have an express text in speaking about what is done by the procurators of Cæsar, (l. 1. de off. Proc. Cæsar,) and others, still more expressive, which decide upon what we are saying upon the subject of gifts.* Book 5-Chapter 12-Article.1. Although it may seem that enough was provided for the maintenance of peace, and for justice, in the provinces of the Indies by the creation of audiences and magistrates, of which mention has been made in the preceding chapters-still, as those went on peopling and distinguishing themselves so much, it became meet, at least, in the principal parts, such as Peru, New Spain, &c., to place governors of greater weight, with the title of viceroys, who should also act as presidents of the audiences there residing, and who should, separately, have in charge the government of those extensive dominions, and of all the military bodies which might there arrive, as their captain general; and should act, watch, and take care of all which royalty in * C. si is qui, 12 de prob. lib. 6, vide verba apud Mc. d. c. num. 35. person would act and take care of if there present; and should be understood to be suitable for the conversion and protection of the Indians, the spreading of the Holy Word, the political administration, and for the peace and tranquillity, and the increase of things spiritual and temporal. ART. 3. And truly, the provinces of the Indies being, as they are, so distant from those of Spain, it became necessary that in these, more than any other, our powerful kings should place these images of their own, who should represent them to the life, and efficaciously, and should maintain in peace and tranquillity the new colonists and their colonies, and should keep them in check, and in proper bounds, by such a dignity and authority as the Romans did when they spread theirs over the best part of the globe, dividing the most remote into two kinds, which they called cousular and pretorean-the emperors themselves taking the government of the principal of these in their own hands, and charging the Senate with the second; and giving to those who went to govern the first, the name of proconsuls, and to the others that of presidents-about which, we have entire chapters in law, where the commentators speak of this more extensively, and an infinity of authors. ART. 4. Some of those observe (in terms of which we speak,) that to those proconsuls or presidents may be likened the viceroys of the present day, although this is not agreed to by Pedro Gregorio, who says that the authority and power is greater of the viceroys, and that, in France, very rarely was such a dignity granted, except to a brother or child of the prince, or one designated as successor to the empire; and I find Bobadilla of the same opinion-afterwards Alciato and others, whom he names. (See references.) ART. 6. But however this may be, (their similitude to other titles,) it is of little importance. What I reckon as certain is, that the person to whom there is the greatest likeness, is to the kings themselves who appoint them and send them out, generally choosing them from titled gentry, and the most worthy in Spain of his chamber counsel, causing them, in he provinces which are entrusted to them, to be looked upon, as I have said, as their own person-to be their substitutes: for this is properly signified in the Latin word proreges, or vicereges, which, in the common language, we call viceroys; and in Catalonia and other parts they are called alterego, on account of this ubiquity of likeness or representation, which is also treated of in some chapters of common law, and the laws of the Partidas; and which are described extensively by Budeo, Casaneo, and other authors. (See references.) ART. 7. From which it happens that, regularly, in the provinces which are entrusted to them, and in every case, and in all things VOL. I.-49 which are not especially excepted, they possess and exercise the same power, authority, and jurisdiction, with the king who names them; and this not so much as a delegation as in the common way, as is proved by the texts, and by the doctors already quoted, and a number of others which are cited by Avendano, Humada, Cordan, Tollada, Bobadilla, Calisto Remirez, Berarto, and others of the moderns, and, in particular, Juan Francisco de Ponte, and J. M. Novario, who have written especial and copious treatises upon the office and power of the viceroys, and who reprove Fontanela, who, in too general terms, calls it delegated: and to these I add the latest, Marco Zuerio, who, in one of his political emblems, expressed well this representation with the painting of a seal, which, the wax being warm, receives, in which it is stamped or printed, with the addition of the letters for motto, aller et idem; and he applies it to this communication and representation which the kings make of their majesty to the viceroys whom they send to govern provinces where themselves cannot be present, they remaining with their power entire, although it be transmitted or transferred from one to others. ART. S. And, approaching nearer to the municipal right of our Indies, almost every thing which relates to this great power and dignity of viceroys will be found in the cédulas which I have already quoted, and, in particular, that part regarding their representation in one issued at the Escorial 19th July, 1614, from which is inferred "that, to the viceroys, there is and must be observed the same obedience and respect as to the king, without putting the least difficulty, contradiction, or interpretation, under the penalty of those who should contravene, incurring the punishments ordained by law, who do not obey the royal orders, and the others which are there marked and related." (See references.) ART. 9. And all this is very right; for, wherever the representation of another is given, there is the true copy of that other, of which the image is produced or represented agreeably to the understanding of a text, and, as Tiraquelo explains at great length, and other authors; and, in general, this representation is more resplendent when the viceroys and magistrates are further removed from the masters who influence and communicate it to them, as Plutarch finely expresses it by the example of the moon, which becomes of greater size and splendor in proportion as she removes from the sun, which is the object which gives her that splendor. ART. 10. From all which I infer, in the first place, that this viceroyal power and dignity being of this nature, and so great as has been said, and that it has to be exercised in so many, and such arduous affairs and cases as occur generally in the Indies, the prince ought to look well to the persons he chooses and sends upon these employments; since, even in those of oidors and other ministers of less note, I demonstrated the necessity of the same caution in other chapters; and, as to governors who are sent to new provinces or warlike, this is adverted to in elegant expressions by Cassiodoro. (See references.) ART. 11. And the Padre Josef de Acosta is not less elegant in treating of the qualities of the viceroys, when he says that, if the Romans took so much pains to send to their remote provinces, and such as were lately conquered, men of the first choice, perfect and experienced, whom they knew, and scarcely trusted others than the very consuls of their own city-much greater pains are required with viceroys for the New World, which is so much farther distant from the eyes of their kings, and is composed of so many different nations and mixtures of people, and comprehends so many new provinces, in which every day there occurs some new and unthought of affairs -where mutiny and sedition are contemplated-where sudden and dangerous changes are experienced-where municipal laws are not known, or not found sufficient for every case: and, if we wish to make use of the Roman code, or the Castilian, these do not square with those of the country-and the very state of the republic is so inconstant, varied, and different in itself every day, that things which yesterday might be judged and considered as very straight and regulated, to-day would become unjust and pernicious. Book 5-Chapter 13-Page 376-Article 2. The first established rule and sentence is, that viceroys can act and despatch in the provinces of their government, in cases which have not been especially excepted, all that the prince who named them might or could do if he were himself present; and for this reason and cause his jurisdiction and power must be held and judged more as a thing established than delegated. (See references.) ART. 3. All which is indeed conformable to the purpose for which these honorable and pre-eminent employments were instituted, which was, as it appears, that subjects who live and reside in such remote provinces may not be obliged to go and seek the king, who lives so far off; and that they may have near to them a substitute of his, to whom they can apply; with whom and of whom they can treat: they can ask and obtain all which they might expect from the king himself, or obtain from him even in those things requiring power, or especial provision, as, after Andres of Milan and Francisco de Ponte, is explained well by Capiblanco, Mastrillo, Gambacurta, and others, who treat of this. And speaking of this, the lawyer Ulpiano dares to say, in an absolute style, "that there is no case in the provinces which cannot be despatched by them;" and the same doctrine, with many examples to confirm it, are taught to us by many other texts. of law, civil, canonical, and royal. |