§ 1. If the ancient system and custom of judicial proceedings remained, there would be no need to send Legates to inquire into the deeds of magistrates. The Romans ordinarily had annual provincial magistrates. During the time in which a man remained in office, it was lawful for no one to lodge an accusation against him; but as soon as they had departed from the province, they were prosecuted as defendants for many misdeeds. Many were accused, many condemned, and also many acquitted. Later, when judgments had been corrupted, the provinces were plundered. It would altogether be best to restore this method, if frequent change did not greatly obstruct it. But since it is now not so expedient for this to be done, this course must be taken: an annual rendering of accounts should be introduced into custom, the complaints of peoples should be heard, injuries avenged, and the oppressed relieved.
An account of these matters must be required. First, did they do anything against the state? Did a man free enemy commanders with money; did he permit them to escape when he could have detained them; did he attempt to overthrow the highest interest of the state; did allies take up arms through his work and counsel, as is treated in the Varia law? The Sullan law concerning this was most severe and exceeded moderation, being a rival of proscription.
Furthermore, inquiry is ordered into the man who removed an intercession or hindered a Magistrate from exercising his office; who led an army out within a province; who waged war of his own accord; who solicited an army; who pardoned captured enemy commanders or freed them for money; who pardoned captured leaders of robbers; or who did not defend his power in administering. Here the testimony of a woman is accepted; no penalty is established against calumniators; and no dignity is exempted from bloody interrogations.
To this belongs the case in which hostages were killed by his command, a Magistrate was slain, enemy soldiers were assisted, a province was not handed over to his successor or was betrayed to enemies, or money was accepted during embassies.
Yet it rarely happens that provincial Governors are guilty of treason. For they are generally more honored among their own Princes than they could be among enemies under the name of traitor. Formerly it was frequent, when a new Emperor had been elected, immediately to change allegiance and conspire against the Prince. Two other crimes are so customary that they have already passed into accepted practice: embezzling public money and plundering allies. The Romans punished the crime of peculation most severely; at first they vigorously punished injuries to allies, afterward more languidly, and finally neglected them. How frequent peculation—that is, theft of public money—formerly was is proved by the fact that a standing court for peculation and a court for extortion were each entrusted to its own Praetor. Yet more men were accused of peculation because the treasury has many avengers; the cause of allies is easily abandoned.
Money is then extorted from allies in many ways: by hope, fear, malicious fraud, acceptance of gifts, sale of judgments, exactions by attendants, and the usury of publicans. Hence the Senate gave the allies recuperatores. Lucius Calpurnius Piso proposed that a definite Praetor be established for this matter, to whom the allies might flee. There are the Caecilian, Junian, and Servilian laws concerning these matters; under the latter law the Praetor selected four hundred and fifty men. Lest lawsuits be drawn out and the Legates of the allies remain at Rome to their great disadvantage, the Acilian law provided that cases could not be adjourned for further inquiry or deferred to the next day. The Cornelian law added that inquiry should be made in the same manner whether a man had treated provincials or allies lustfully, proudly, or cruelly. It extended this also to those to whom the money had come. The penalty was that, once the defendant had been condemned, damages should be assessed and he should be interdicted from water and fire. And do not marvel: Julius Caesar, the greatest of thieves, enacted a precise law concerning this matter, containing those very heads under which he himself was guilty above all men.
Besides the things said above, it contains these provisions: if anyone accepted money to do more or less of anything from his office; if anyone not possessing the right to testify accepted money to declare or not declare testimony; if anyone accepted it for sending or not sending a soldier, for stating an opinion in the Senate, for granting or not granting a Judge or arbiter; if he entered a public work as accepted before it was completed; if he exceeded the prescribed measure in exacting grain; if he did not leave his accounts in two cities of the province and report the same to the treasury in identical words; or if the Judge’s attendant accepted money.
§ 2. If, amid so many laws and judgments, there were not lacking men who plundered or raged at their own peril, knowing that penalties must be paid upon conviction, what will happen where the administration is longer and there is no fear of the laws? What Scauri, Galbae, Hortensii, Pleminii, Verreses, Felices, and Flori may we suppose that the hope of impunity will produce? So many and so pious laws were established by the Kings of the Spains for the benefit of the Indians; but nothing was as effective as the Legates and Bishops sent into those regions to restrain the injuries of the Governors. This, therefore, must be established: a province will never be rightly governed except by a very few men, unless the Propraetor or Viceroy fears the King as much as the subjects fear the Viceroy. This practice therefore formerly belonged to all kingdoms, and must also be employed now.
§ 3. Empires are either middling, great, or very extensive; I speak of the expanses of lands and seas. In all of them a different system can and ought to be instituted. The Athenians possessed a middling Empire. Because access was easy from a moderate distance, they drew all the greater judicial proceedings and causes into their city. Thus Xenophon in Περὶ Ἀθηναίων πολιτείας, On the Polity of the Athenians:
The Athenian people appear to act imprudently in this too, because they compel the allies to sail to Athens to seek justice. But they themselves set forth the advantages which arise from this for the Athenian people. First, they receive pay from the Prytaneis throughout the whole year. Next, while sitting at home, without a sea voyage, they administer the allied cities; they preserve the popular party and oppress their adversaries in judgments. But if each city had jurisdiction at home, since the Athenians are hated, they would overthrow from among themselves those who were greatest friends of the Athenian people.
To these things it is added that the Athenian people make these gains while the allies seek justice at Athens. First, the hundredth tax is greater for the city at Piraeus. Next, if anyone owns an upper room or a slave for hire, he gains from it. Furthermore, heralds conduct their business better because of the journeys of the allies.
In addition, if the allies did not come to court, they would honor only those Athenians who sailed to them—Generals, Captains of triremes, and Legates. But now each of the allies is compelled to court the Athenian people, understanding that he must go to Athens to undergo trial and plead his cause before no others than the people, who assuredly are the law at Athens. Therefore he is compelled to supplicate in the courts and, whenever anyone enters, to grasp his hand. For this reason the allies become more the servants of the Athenian people.
Add that, because of their possessions and principal offices distant from their own borders, they incidentally learn to row, both they themselves and their companions. For a man who sails often must grasp an oar, as must his servant, and must learn the names of nautical equipment. They become good pilots both through experience of vessels and through practice. Some practice by steering a vessel, others by steering a merchant ship; some pass from this to triremes, while many, as soon as they enter ships, row, since they can do so because they have practiced throughout their whole life.
The Athenians acted with a bad end, indeed, but under a specious title. Accordingly, although most matters were badly established, their Governors who commanded the cities were nevertheless restrained by great fear from inflicting injuries upon the allies. For since men from all the cities traveled to Athens for the sake of their causes, while the Athenian people judged, the crimes of powerful men could not remain hidden. Since the more powerful were also hated in a popular form of the city, they could not hope for pardon from the people. For this reason the Athenians were more pleasing than the Lacedaemonians, whose rule over the cities of Greece was harsher.
If the Empire is great, such as the Spanish Empire is now and the Roman Empire was under the ancient Emperors, the Emperor or King can travel around the provinces, as Hadrian formerly did according to Spartianus, and punish Procurators and Governors for their deeds. Herodotus relates that in ancient times the Kings of the Persians were accustomed to traverse their kingdom to see whether there was anything which needed royal assistance. Plato says the same about Minos, but his dominion was enclosed within narrower bounds. In great Empires this is more difficult.
For very extensive Empires, such as that of the King of the
Spains, can never everywhere enjoy the presence of their Prince. Nor is it expedient: if he were to make a journey to America or the East at his own peril, he would place all his kingdoms in danger. Therefore, in inspecting and governing them, he needs the best and most steadfast men.
§ 4. But no man’s virtue must be trusted in such a way that the Prince does not know the account of his administration, both because magistracy reveals the man and because honors easily change virtue. Nicholas Bellus relates this praiseworthy practice in the Kingdom of Sweden:
Above the Viscounts, he says, is a superior or Prefect who is called in Latin the Lawgiver, an office which approaches nearest to the Royal Majesty. He is very like the Seneschals of France, and such men are called Lamem by the Swedes, as though Supreme Justiciars. An appeal lies from the Viscounts to the Prefects and Lawgivers; from them to the Royal Council; and from this to the King himself. The Royal Majesty moreover affirms that in those kingdoms there are eleven Prefects or Lawgivers, to whom more than three hundred Viscountcies are subject. The Lawgivers travel around and inspect a part of their territory every year, until, after inspecting it on every side and completing a kind of circuit, they return again to inspect the earlier part. Just as this contributes wonderfully to knowing in detail the condition of the state and applying opportune remedies to public diseases, so it relieves and revives the peoples, since they exact the tax by turns from the territories and parishes which they inspect, and all are not burdened at once.
The knee is regarded as closer to everyone than the calf, as Theocritus used to say. Each man cares for his private interests. In their sacrifices the Persians prayed for the King and kingdom, not for themselves; yet each man plundered for himself. The same is done now also unless a daily examination strikes fear.
In this manner administration now proceeds more rightly in the New World. For at first the inhabitants were treated with the greatest severity, both on account of their innate barbarity and savagery and because the avarice and cruelty of the soldiers was harsher toward cannibals. It exasperated everyone that, neglecting treaties and oaths, the victors slaughtered all without regard. But when Theologians perceived that the wretched were oppressed, they vigorously pleaded their cause. Francis of Zumárraga, of the Seraphic Order and endowed with true zeal, reported the whole matter to Charles V; Rodrigo Minaya, having journeyed to Paul III for this cause, obtained assistance for the liberty of the Indians. Bartolomé de las Casas also vigorously opposed the oppressors. The jurist La Gasca reformed the jurisdiction. Now the matter is most excellently constituted.
For the Viceroys have their Counselors; they have other independent Governors in the kingdom; they have Bishops whose care it is that all things be administered justly. There are nine supreme Consistories or judicial Parliaments in New Spain and five in Peru, from which there is no appeal. Reports concerning matters to be done are made almost every month. This is done more expeditiously because those matters are judged not suddenly and rashly but deliberately. For other established councils govern all these matters, and the King decrees after hearing the opinion of the Counselors. These councils are the Privy Council, the Council of War, and those of Italy, Aragon, Navarre, Belgium, and the Indies. The account of all matters is referred to them; they respond; and the command for execution is written by the King. Thus the deeds and errors of all are reported and judged not only in Spain but even in the most distant provinces, and are requited by reward or punishment.
Bellus says:
Cities are governed by one of their own citizens, upon whom the King bestows the name and authority of Governor, and by Counselors whom the citizens themselves elect. When the Governor has completed his magistracy, inquiry is almost always made into his acts by a careful proceeding. After this proceeding has been examined, the Royal Council reports the things badly done to the King’s Majesty, who chastises the Governor if he understands that he was unjust and criminal; but if he perceives that the man fulfilled the due parts of justice and diligence, he exalts him to greater and nobler offices. Finally, there is no man who conducts himself honestly and according to virtue for the King and state who is not most generously rewarded, just as, conversely, those who fail in their office through dejection of spirit, negligence, or injustice are punished and chastised. This assuredly is the principal cause and reason by which this most sacred Crown is preserved and is exalted more from day to day.
It has sometimes come into my mind to marvel how, contrary to the custom of all kingdoms, so great a Monarchy has stood for so long a time without sedition, rebellion, or revolt. Besides divine providence, I find no other cause than that the deeds of all men are in the sight of the Royal Councils and of the King. For a hundred years the Spains have held the Indies and various dominions in such remote and inaccessible provinces, with so great an occasion for treaties with barbarians and so great a license for sinning; yet scarcely any revolts or tumults have been heard of, and only the Pizarros waged civil wars in America.
But if we examine the mature Roman Empire, no decade will be found in which there were not more seditions, conspiracies, plunderings of allies, peculations, and crimes of extortion than that so widely extended Monarchy saw in a whole century. This is a sign that the kingdom abounds in excellent laws and men.
§ 5. This, therefore, is the support of a kingdom which is not only most powerful but is also spread in different directions toward the East and West: everything is so filled with inspectors and with men writing to the King and the Royal Councils that the beginnings of plots and injuries can easily be suppressed and their authors discovered.