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i

CL AREND ON L AW SERIE S

Edited by
PAUL CRAIG
ii

C L A R E N D O N L AW SE R I E S
The Concept of Law (3rd edition)
By h. l. a. hart
Law and Values in the European Union
By Stephen Weatherill
Personal Property Law (4th edition)
By Michael Bridge
The Idea of Arbitration
By Jan Paulsson
The Anthropology of Law
By Fernanda Pirie
Law and Gender
By Joanne Conaghan
Land Law (2nd edition)
By Elizabeth Cooke
iii

Bentham and
the Common Law
Tradition
Second Edition

G E R A L D J. P O S T E M A

1
iv

3
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The moral rights of the author have been asserted
First Edition published in 1986
Second Edition published in 2019
Impression: 1
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v

TO DAVID LYONS

and

TO LINDA, IN MEMORIAM
vi
vi

Preface to the First Edition

[Bentham’s writings] are like exploded shells, buried under the

ruins which they have made.
Fitzjames Stephen, Digest of Law of Evidence.

Bentham is a pivotal figure in the history of Anglo-​American jurispru-

dence. He gave both utilitarianism and legal positivism their first detailed
exposition and defence in English, and negotiated a sophisticated marriage
of the two doctrines. But Fitzjames Stephen’s disparaging comment contains
more than a grain of truth. Bentham’s most important jurisprudential work
has lain buried under a great rubble. In this rubble we find the ruins of much
of the practice and ideology of the Common Law system he so mercilessly
and effectively attacked, but also a mountain of inaccessible and largely un-
published manuscripts, the remains of a very long and curiously undiscip-
lined writing career. Spent shells are buried here, to be sure, but live ones
with great explosive potential remain.
Among the potentially most explosive are his early reflections on the
foundations of law and adjudication. They introduce us to a jurisprudential
debate of historic dimensions and fundamental philosophical significance.
Bentham’s writings, and the tradition of debate to which they contribute,
raise questions concerning not only the nature and tasks of law, but also the
role of normative moral-​political theory in the construction and defence of
conceptions of the nature of law.
The present work is the first part of a larger study of these issues of philo-
sophical jurisprudence, issues which remain at the centre of our practice of
law. Durkheim observed that ‘law reproduces the principal forms of social
solidarity’ in a culture.1 To this we might add that a culture’s available con-
ception (or, as in our culture, conceptions) of the nature of law models
masks and interacts with these forms of social solidarity (i.e. forms and con-
ceptions of social order and community). The history of a society and of
its legal practice, and the history of attempts to understand and conceptu-
alize them, shape contemporary forms of ‘social solidarity’, which in turn

1 E. Durkheim, Division of Labor in Society, 68.

vi

viii Preface to the First Edition

shape that practice. Recent debates in Anglo-​American philosophical and

legal circles concerning the nature and foundations of law and the forms and
limits of judicial reasoning (and theories of constitutional judicial review)
have been decisively shaped by the history of our legal practice and attempts
to understand it. A key piece of that history was written in seventeenth-​and
eighteenth-​century Britain at the birth and maturing of its two dominant
legal ideologies: positivism and Common Law theory. The dispute between
these two ideologies is not only historically interesting, it is philosophically
fundamental. The terms of our contemporary debate, the range and nature
of the problems both practical and theoretical needing contemporary solu-
tion, were all set in this period. Perhaps the most powerful witness to the
depth and pervasiveness of this influence is the utter naturalness to us of
these terms and assumptions. It is difficult for us now to conceive of law ex-
cept against the background of these assumptions.
The aim of the following study is to situate these assumptions, to trace
the evolution of the terms of this debate, and thereby to gain some critical
perspective on them. I am convinced that we shall be able more adequately
to address the general philosophical questions that interest us now after we
have fully understood the assuptions and perceptions that have shaped them
and given them life. For such understanding, we must return to this for-
mative period in the history of our legal culture. While my ultimate aim is
critical and philosophical, the immediate aim of this work is historical and
expository. Thus, save for some very sketchy remarks in 9.4 and 13.2, I have
not sought to address directly the philosophical questions raised by the de-
bate between Bentham and the Common Lawyers, nor have I attempted a
full-​scale evaluation of the debate itself. The remarks in 9.4 and 13.2, accord-
ingly, are meant to be no more than tentative suggestions of the directions a
systematic philosophical investigation might take.
A major theme of this study, explored through a number of variations,
is the relationship between authority and reason, and more specifically
between individual rational judgment and the law’s claim to authority.
Bentham and the Common Lawyers took sharply different views of this rela-
tionship, and had sharply different perceptions of the social problems which
gave immediate practical and political urgency to the issue. We shall see how
these assumptions and perceptions called forth contrasting conceptions of
the nature and fundamental tasks of law.
In Bentham’s legal thought, this set of problems took shape as the problem
of the relationship between a strict direct-​utilitarian theory of practical rea-
soning and a strongly positivist conception of laws as publicly accessible and
ix

Preface to the First Edition ix

empirically identifiable authoritative rules with fixed verbal formulations.

This problem is most sharply focused in his theory of adjudication, where
his (‘antinomian’) utilitarian practical philosophy and his positivist concep-
tion of laws intersect and demand reconciliation. For this reason Bentham’s
theory of adjudication is the centre-​piece of this study.
The most obvious path of reconciliation of utilitarianism and positivism
is to interpret Bentham’s theory of practical reasoning along indirect-​(rule-​)
utilitarian lines. But this, we shall see, conflicts with some of Bentham’s
deepest philosophical commitments. His sophisticated attempts to recon-
cile these two doctrines is intelligible, I shall argue, only if we abandon the
received interpretation of his positivism and its philosophical motivation.
An alternative interpretation of his theories of law and judicial reasoning is
detailed and defended in Parts II and III.
This interpretation differs substantially not only from standard textbook
accounts of Bentham’s jurisprudence, but also from some recent scholarly
work, in particular L. J. Hume’s excellent discussion of Bentham’s polit-
ical theory.2 The differences may dissolve into differences of emphasis, al-
though I suspect some will in fact resist any attempt at simple reconciliation.
No doubt the differences are due to the quite different points from which
our interpretations begin and the primary theoretical interests that drive
them. L. J. Hume is mainly concerned with Bentham’s theory of govern-
mental structure, and his focus is on Bentham’s mature work on the consti-
tution. I am more concerned with strictly jurisprudential questions and in
particular with Bentham’s theory of the practical reasoning of judges and
citizens under law. Although Bentham’s work on the Constitutional Code is
enormously important for my interpretation as well, I start from a study of
Bentham’s earliest criticisms of the Common Law tradition, and I try to con-
struct in detail the context of this jurisprudential debate. This starting-​point
is especially useful because it brings to light general principles and concerns
of Bentham’s jurisprudential thought to which he remained committed
throughout his life, principles and concerns which are given their most
vital statement in these early (largely unpublished) writings. (It also high-
lights the important influence of David Hume on Bentham’s legal thought

2 L. J. Hume, Bentham and Bureaucracy, 171–​5, 238–​43, and passim. Because most of Parts
II and III were drafted in near final form some years ago, I was not able to take account of L. J.
Hume’s work in detail without increasing substantially the length of the text. The same is true
for two other excellent recent studies of Bentham from which I learnt a great deal: F. Rosen’s
Jeremy Bentham and Representative Democracy and R. Harrison’s Bentham.
x

x Preface to the First Edition

and draws attention to Hume’s great but seldom-​noticed contributions to

jurisprudence.)
There may be a more comprehensive perspective within which L. J. Hume’s
revised standard interpretation and my revisionist interpretation can be rec-
onciled. Perhaps not. Bentham’s writings are so extensive, and were written
for so many different occasions, problems, and audiences, that it is not sur-
prising if attempts to render the vast rubble of this material into a system-
atic and coherent set of theories yield quite different, conflicting, but equally
plausible interpretations. Throughout this work, I sought an interpretation
of Bentham’s jurisprudence that is honest to the material he left us and to
the historical and intellectual context in which he wrote. But at the same
time I sought a philosophical interpretation of the relationship between
Bentham and the Common Law tradition which can genuinely illuminate
the underlying philosophical and political issues with which they grappled.

Durham, North CarolinaG.J.P.

July 1985
xi

Preface to the Second Edition

Bentham and the Common Law Tradition (BCLT) was first published in
1986, but it was written over a period extending from 1979 to 1985, a time of
extraordinary creative activity in Anglo-​American political and legal phil-
osophy. In 1962, H.L.A. Hart’s Concept of Law reinvigorated philosophical
reflection on the nature of law and in the late 1970s Ronald Dworkin (Taking
Rights Seriously, 1978) and Joseph Raz (The Authority of Law, 1979) initiated
an intense debate over the core doctrines of positivist legal theory. Similar
major strides forward were made in moral and political philosophy. In 1965,
David Lyons published Forms and Limits of Utilitarianism and John Rawls
published A Theory of Justice in 1972. The latter, especially, gave new life to
the enterprise of political philosophy in the English-​speaking world that had
lain dormant for decades. The central doctrines, merits, and limits of legal
positivism and of political utilitarianism were again at the centre of a vig-
orous philosophical debate.
As a young philosopher, I wanted to enter this debate. I chose to do so in-
directly, by exploring the roots of these two philosophical traditions in the
work of Jeremy Bentham. The 1970s had seen a resurgence of interest in the
work of Jeremy Bentham, largely due to initial efforts by the Bentham Project
to publish Bentham’s vast body of writings in modern, scholarly editions.
Especially important was the publication of three early works of Bentham—​
his Introduction to the Principles of Morals and Legislation, Of Laws in
General, and Fragment on Government/​Comment on the Commentaries—​
edited by H. L. A. Hart and J. H. Burns. David Lyons’ In the Interest of the
Governed, Ross Harrison’s Bentham, Fred Rosen’s Jeremy Bentham and
Representative Government, and Hart’s Essays on Bentham spurred scholars
to look much more deeply into the moral and jurisprudential writings of
Jeremy Bentham.
I first decided to join the growing group of scholars because Bentham
was reputed to be the father of modern utilitarianism and of legal posi-
tivism. The juxtaposition of these two general theories in his work puzzled
me. Initially, I wondered how a committed legal positivist could dismiss
English Common Law as ‘a thing merely imaginary’ and how a utilitarian
committed to the principle of utility as the ‘ruler and decider of all things’
could embrace a project of codification that seemed to relegate judicial
xi

xii Preface to the Second Edition

decision-​making to rigid rule-​application. I decided to look to Bentham’s

work to find a way to resolve this tension. Also, it struck me at the time that
contemporary legal philosophers were content to ignore the long history of
reflection on law and its role in society (except, of course, for obligatory
discussions of John Austin and Aquinas). I sensed that the philosophical
debate at the time was much the worse for this willful ignorance. I came in-
creasingly to believe that genuinely philosophical jurisprudence involves ex-
tended, critical engagement with its history. Only through such engagement,
I thought, can we hope to see beyond the horizons of immediate theoretical
and practical concerns and interests and to recast our disputes in fresh and
newly productive terms.
Thus, in writing BCLT I sought a genuinely philosophical engagement
with Bentham’s sophisticated legal and political theories. I believed that for
this purpose it was not appropriate to engage with him simply as a virtual
contemporary. I thought, rather, that only uncovering the themes, theories,
and arguments of Bentham, the historically situated philosopher and legal
reformer, would suffice. My aim was not merely to translate Bentham’s posi-
tivist doctrine into the conceptual framework of late twentieth century ana-
lytic legal philosophy, but at the same time it was not my aim merely to bring
to light a composite of the views of the historical Bentham. Rather, I sought
a historically informed and philosophically engaged critical reconstruction
of Bentham’s views and his arguments for them. This required, first, that
I situate his work in its historical and theoretical context, and the prob-
lems, issues, and challenges characteristic of it. Second, it required locating
Bentham’s core jurisprudential doctrines in the context of his vast body of
work. A key interpretive principle guided me: Bentham’s formulations of
general or abstract themes or doctrines must be read in light of his often
extremely detailed attempts to apply them to a variety of practical circum-
stances. I believed that Bentham deserved to be treated as a careful writer
and a serious philosopher, who sought to articulate a coherent, comprehen-
sive public philosophy in which rational understanding of the nature, tasks,
and limits of law played a crucial role.
This two-​fold interpretive strategy led me first to explore the practice and
nascent theory of classical English common law, represented first by Bentham’s
main target, William Blackstone, but more importantly by Blackstone’s so-
phisticated seventeenth-​century predecessors, especially Sir Matthew Hale.
To capture the full significance for Bentham of the classical common-​law
mode of understanding and practising law, I found it necessary to locate
common-​law jurisprudence in the context of the larger philosophical debate,
xi

Preface to the Second Edition xiii

represented by Hobbes and Aquinas and later Hume, about the relationship
between reason, convention, authority, and law. Hume’s work provided a
bridge from the philosophically naïve work of seventeenth-​century jurists
to the philosophically sophisticated eighteenth-​ century Enlightenment-​
Empiricist tradition of moral and political philosophy in which Bentham
found himself at the beginning of his career. Hume proved especially helpful
for understanding Bentham not only because he introduced Bentham to
the idea that public utility was the measure of all (political) virtue, but even
more because he explored the relationship between utility and rule-​governed
social practices (‘justice’ in his terminology) and convinced Bentham of the
fundamental utility-​relevance of expectations for the coordination of social
interaction. He also developed an account of conventions that enabled me
to explain key features of Bentham’s notion of sovereignty. BCLT’s project of
relating these various theoretical approaches to understanding legal practice
and institutions to each other resulted in novel interpretations of classical
common-​law jurisprudence, Humean political and legal philosophy, and
Bentham’s utilitarian jurisprudence.
Among the most important themes emerging from the reconstruction
of Bentham’s legal theory in BCLT are the following. First, attracting the
greatest attention is the thesis that Bentham did not embrace the meth-
odological positivism of John Austin and contemporary analytic legal phil-
osophy, as Hart had claimed. BCLT argues that rather than constructing a
morally neutral, strictly conceptual analysis of the concept of law Bentham
grounded his account of the nature of law—​and indeed his proposal for the
concept of law—​on distinctively utilitarian grounds. He self-​consciously
practised what I call ‘normative jurisprudence’. I defend the philosophical
coherence and appropriateness of this approach in Chapter 9 after setting
out Bentham’s use of this method in preceding chapters. A crucial, related
theme of BCLT is that Bentham maintained that the fundamental task of
law is to promote what he called ‘security’—​which involves securing le-
gitimate expectations in thick contexts of social interaction and securing
full and effective accountability of the exercise of ruling power (‘security
against misrule’, as he called it). This, according to Bentham, is the primary
end of law; its most effective means, he argued, is publicity. This deep com-
mitment to publicity and utility—​understood as securing expectations and
accountability—​led Bentham to embrace the model of laws as commands of
sovereign lawmakers. Laws, so conceived, require explicit public articula-
tion and manifest authenticity that can be determined without engaging in
extended debate over the moral adequacy of the laws. Thus, BCLT argues,
xvi

xiv Preface to the Second Edition

Bentham proposed to conceive of laws in familiar positivist terms; but he

did so not on morally neutral, conceptual grounds, but on the morally en-
gaged, utilitarian grounds. Only laws so conceived could hope to serve the
end of security, Bentham maintained.
However, he qualified this command model almost as soon as he articu-
lated it. He departed from the familiar Austinian model in two important
respects explored in BCLT. First, he developed a notion of sovereignty far
more sophisticated and nuanced than Austin’s. BCLT argues that his under-
standing of the criteria of authenticity of laws, provided by the notion of
sovereignty, rests on a keen understanding of the public role of law in co-
ordinating social interaction, and on the role that criteria of authenticity
play in the ordinary (utilitarian) practical reasoning of law subjects. Second,
Bentham’s publicity-​security project also engaged him in a deep exploration
of the essential systematic nature of law. He explored the basic logical and
structural features of law, arguing that we can understand what a single law
is only by seeing how laws fit together logically and substantively as a co-
herent system aimed at enabling social coordination. He also argued that,
although the mandatory or directive character of law (what he often called
the ‘penal’ part of law) is often the most immediately apparent to us, the
more fundamental and functionally prior feature of law is its constitutive
character. Bentham argued that it is by constructing and constituting social
and political relations—​frameworks within which rational, utility-​minded
individuals interact in their daily lives—​that law does its most important
expectation-​securing and accountability-​securing work. Sanction-​backed
directives, on his view, are auxiliaries, supporting this primary work of law.
Thus, BCLT argues that a core notion of Bentham’s general jurisprudential
theory is his idea of a ‘pannomion’—​a complete and comprehensive code (or
interrelated system of codes) of law, the provisions of which are internally
related to each other and their reasonableness is exhibited in their organ-
ization, structure, and explicit articulation. Bentham’s work on the civil as
well as penal codes, on procedure and evidence, and on the political con-
stitution of power, is integral to his view of the nature of law. Accordingly,
another important task of BCLT is to explore Bentham’s principles of insti-
tutional design and his view of the relation between institutional incentives
and disincentives and rational, utility-​based decision-​making. This discus-
sion is especially important for understanding Bentham’s mature theory of
adjudication.
One major problem running through much of Bentham’s writings is
how to reconcile the need for certainty and stability of social and political
xv

Preface to the Second Edition xv

arrangements on the one hand, and the rational demand for flexibility to
meet ever-​changing circumstances on the other. From Hume, Bentham
learned the utility of stable institutions and systematic arrangements of rules,
but I argue that he was also convinced that the fundamental rational prin-
ciple by which we must evaluate acts, rules, and institutions—​the principle
of utility—​was also the most fundamental principle for rational decision-​
making. Since even the most well-​constructed and rationally grounded
rules may call for actions which, in the particular circumstances, fail to
meet the demands of utility, these two understandings of utility, law, and ra-
tional decision-​making seem to be in conflict. Bentham struggled with this
problem early in his career, seeking a way to introduce stability into all-​too-​
flexible and radically uncertain common-​law practice. Through codification
of the law, Bentham sought to address the problem of instability of law, but
it left him with the task of defining the discipline of judicial reasoning in
the shadow of ideal codes. Perhaps the most controversial thesis of BCLT
holds that Bentham reconciled certainty and flexibility by according judges
wide discretion to decide particular cases according to their best judgment
of the balance of utilities, guaranteeing the accountability and appropriate
motivation of such discretionary decision-​making through institutional
incentives, and by insuring that their decisions lacked the force of prece-
dent. BCLT argues that Bentham sought a creative institutional, rather than
a theoretical, solution to the certainty/​flexibility problem. However, I con-
clude that ultimately this ingenious solution either fails to meet Bentham’s
own demanding standards of publicity or falls victim to the same criticisms
that he directed against common-​law practice of his day. In the Afterword
(Chapter 14), I revise my understanding of Bentham’s institutional account
of adjudication in light of subsequent criticism.
Emerging from this extended exploration of the work of Bentham is a
philosophical account of the nature of law that fits no familiar category and
forces rethinking of the traditional contrast between positivism and natural
law theories. Bentham’s critique of classical common-​law jurisprudence
offers for our consideration two sharply different approaches to the problem
of securing publicity and a robust rule of law. Also emerging from this study
of Bentham’s legal philosophy is a model of jurisprudential method that
stands in stark contrast to Austin’s jurisprudence and much current ana-
lytic legal philosophy. In none of his theorizing did Bentham exclude from
his view political, sociological, economic, or moral considerations. His cre-
ative jurisprudential intellect ranged freely over all provinces of thought.
xvi

xvi Preface to the Second Edition

His methodological approach and the substantive doctrines it generated still

warrant serious critical attention from legal theorists and philosophers.
A brief note on the text: this second edition of BCLT reproduces the ori-
ginal 1986 text, except for occasional minor editorial corrections. Endnotes
direct readers to subsequently published work in which I elaborate and
in some cases revise views expressed in the text. Since 1986, the Bentham
Project has published much of Bentham’s work on jurisprudence and re-
lated issues in excellent critical editions by the Bentham Project. Especially
relevant to this study was the publication of Of the Limits of the Penal
Branch of Jurisprudence, edited by Philip Schofield (Oxford: Clarendon
Press, 2010), which supersedes Of Laws in General, edited by H. L. A. Hart
(London: Athlone Press, 1970). I have chosen not to alter original citations
to OLG for all references to material common to these versions, although
I have occasionally noted revisions that can be found in Limits.
Finally, I dedicate this edition in loving memory of Linda T. Postema, and
in gratitude to David Lyons, mentor, guide, and inspiration.
xvi

Acknowledgements

Research for this work was begun in 1978 under grants from the National
Endowment for the Humanities and The American Council of Learned
Societies. I am very grateful for their generosity, without which the pro-
ject in its present form would never have been conceived. A research de-
velopment grant from the Arts and Sciences Foundation of the University
of North Carolina at Chapel Hill enabled me to prepare the manuscript for
publication.
Throughout the long gestation of this work I have benefited in many ways
from a large number of people, more than I can now name or even recall.
Courtesy and co-​operation were freely extended to me by all the members
and staff of the Bentham Project at University College London and the staff
of the manuscripts library of the College. They made my several visits not
only productive, but also genuinely delightful, experiences. Professor J. H.
Burns was a generous and unerring guide through the morass of Bentham
manuscripts and helped me greatly to situate Bentham’s work historic-
ally. John Dinwiddy and Charles Bahmueller helped me at several points.
Claire Gobbi was always ready to assist, with grace, intelligence, and charm.
Professor H. L. A. Hart read and commented on portions of early drafts,
as did Ross Harrison. I benefited greatly from conversations with them.
William Twining’s encouragement, support, and colleagueship over these
years carried me through times when I thought the project was beyond my
means. David Lyons taught me the value of both careful textual scholarship
and rigorous philosophical reflection on problems of jurisprudence. I hope
this work approaches the standards he set for both.
A special word of thanks goes to David Lieberman. Much of the inter-
pretation of Parts II and III was hammered out in conversations with him
over the years, and I could not have begun to write Part I without the su-
perb guidance of his own yet unpublished work. He tirelessly read draft after
draft. They are much better for it.
My colleagues at Johns Hopkins University and the University of North
Carolina at Chapel Hill have generously supported my seemingly inter-
minable work on Bentham. Especially helpful were Stephen Darwall,
Richard Flathman, W. D. Falk, and Thomas Hill, Jr., who read portions
of the manuscript and gave wise critical advice. I also benefited from the
xvi

xviii Acknowledgements

critical comments of Bikhu Parekh and Annette Baier on selected chapters.

Claire Miller, Brad Wilson, Carolyn Joines, and Muriel Dyer helped prepare
draft after draft, always under impossible deadlines. I am grateful for their
cheerful and efficient service.
To my family, Linda Triezenberg Postema and Alicia Sue Postema, I owe
a special debt. Pushkin’s ‘Capricious belles of the grand monde’ may have
redeemed their otherwise ‘insupportable conversation’ with an occasional
brilliant interpretation of Bentham (Onegin, Ch. 1, verse xlii), but yet an-
other interpretation of Bentham from me had the opposite effect on dinner-​
time conversation. Nevertheless, through the years Linda and Alicia have
unselfishly supported and encouraged my all-​consuming preoccupation
and cheerfully indulged my ‘insupportable conversation’. While this debt
can never be fully repaid, I acknowledge it with joy and dedicate this work
to them.
I also wish to thank the following for permission to quote copyrighted
material:
The Oxford University Press for passages quoted from Hume’s Treatise of
Human Nature and Enquiries.
The Athlone Press, London, for passages drawn from Bentham’s Of Laws
in General, Introduction to the Principles of Morals and Legislation, and
Comment on the Commentaries and Fragment on Government.
Editors and publishers of Revue Internationale de Philosophie for material
which appeared in an article by me in that journal.
xi

Contents

Abbreviations xxv

PA RT I : L AW, C U S T OM , A N D R E A S O N

1 Elements of Classical Common Law Theory 3

1.1 Law as Immemorial Custom 4
1.2 The Customary Foundations of Lex Scripta 13
Enacted law and parliamentary sovereignty 14
Hale on the foundations of enacted law 19
Common Law theory and the language of politics 26
1.3 Reason and Principle in Common Law Theory 29
Two conceptions of reason in Common Law theory 30
An historical conception of reason 35

2 Law, Social Union, and Collective Rationality 38

2.1 Authority, Justice, and Co-​ordination 39
2.2 Sovereign Commands and Individual Reason 45
The jurisprudence of Hobbes’s Dialogue 45
Subjectivism 47
Social union 50
Reason, commands, and law 54
2.3 Common Law Scepticism 59
Roots of the strategy of scepticism 59
Wisdom of the ages 62
Collective wisdom 65
Community practice constitutive of reason 68
Conventionalism 75

3 Hume’s Jurisprudence: Law, Justice, and Human Nature 79

3.1 Law and Justice 80
Justice as a juridical notion 80
From property to public works: historical and analytic dimensions 82
Hume and Common Law theory 86
3.2 Human Nature and the Artifice of Justice 88
The artifice of justice 88
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7, but it seems that there were four children in all. Those who write the more
common form of Suarez are more explicit, and deserve at least equal credit with
Gomara.

[68] Velazquez was married not long after his arrival in Cuba to the daughter of
Contador Cuéllar. The bride died within the same week. Herrera, dec. i. lib. ix. cap.
ix. ‘Velazquez fauoreciala por amor de otra su hermana, q̄ tenia ruin fama, y aun
el era demasiado mugeril.’ Gomara, Hist. Mex., 7. Delaporte, Reisen, x. 141-2,
assumes that Cortés won the love of her whom Velazquez wished to possess;
while Gordon, Anc. Mex., ii. 32, supposes that the bride had been the object of
Velazquez’ gallantry; hence the trouble. Folsom, on the other hand, marries one of
the Suarez sisters to Velazquez, and calls him the brother-in-law of Cortés.
Cortés, Despatches, 9, 11-12.

[69] Gomara, Hist. Mex., 7, insists that Velazquez had no motive for anger except
the refusal of Cortés to marry. The meeting of conspirators at his house gave
plausibility to the charges of his enemies. By others it is even stated that at these
meetings Cortés defended the governor against the charges of the conspirators
and overruled their plots. De Rebus Gestis Ferdinandi Cortesii, in Icazbalceta, Col.
Doc., i. 325-6. The preponderance of evidence, however, is against this
supposition.

[70] ‘Estando para se embarcar en una canoa de indios con sus papeles, fué
Diego Velazquez avisado y hízolo prender y quísolo ahorcar.’ Las Casas, Hist.
Ind., iv. 11. He was cast in the fort prison, lest the army should proclaim him
general. ‘Timebat ne si quis,’ etc. De Rebus Gestis Ferdinandi Cortesii, in
Icazbalceta, Col. Doc., i. 325 and 326-7.

[71] In De Rebus Gestis Ferdinandi Cortesii, in Icazbalceta, Col. Doc., i. 326-7, it

is related that Cortés broke the ropes holding him by means of a stick, and filed
the padlock of the chains. Seizing a bludgeon he advanced on the sleeping jailer,
resolved to break his head if he moved. But Cristóbal de Lagos either slept or
pretended not to hear the noise as Cortés seized the sword and shield at his head.
Swinging open a small window, Cortés slid down and hurried to the sanctuary,
giving on the way a word of cheer and advice to the conspirators who were held
within the prison.

[72] ‘Cortés ... tuuo por cierto q̄ lo embiariã a santo Domingo o a España.’
Gomara, Hist. Mex., 7. There would have been no reasons for his fears on this
score, if he possessed papers implicating Velazquez, as Gomara states. Another
version is that the alcaldes imposed a heavy sentence on Cortés, after his
capture, and that Velazquez, on being appealed to by Duero and others, was
noble-minded enough to grant a pardon. He discharged him from his service,
however, and had him placed on board a ship for Española. Torquemada, i. 348.
Herrera says that Catalina lived near the church, and while Cortés was making
love to her an alguacil named Juan Escudero, whom Cortés afterward hanged in
Mexico, came up behind him and pinioned his arms, while the soldiers rushed to
his assistance. Dec. i. lib. ix. cap. ix.; Cortés, Residencia, i. 63, etc. Las Casas,
Hist. Ind., iv. 11; De Rebus Gestis Ferdinandi Cortesii, in Icazbalceta, i. 327-8, give
minutely the mode of capture.

[73] Broke the pump and crawled through, ‘Organum pneumaticum,’ etc. De
Rebus Gestis Ferdinandi Cortesii, in Icazbalceta, Col. Doc., i. 329.

[74] The current of the Macaguanigua River did not allow him to enter it, and
elsewhere the breakers would upset the boat. Stripping himself, he tied to his
head certain documents against Velazquez, held by him as notary of the
ayuntamiento and clerk of the treasurer, and thereupon swam ashore. He entered
his house, consulted with Juan Suarez, and reëntered the temple, armed.
Gomara, Hist. Mex., 7. De Rebus Gestis Ferdinandi Cortesii, in Icazbalceta, vi.
329-30, refers to a friend of Cortés chained in the same ship’s hold, and states
that Cortés rowed ashore. On the way to the house of Suarez he narrowly
escapes a patrol. Having secured arms, he proceeds to cheer his captive
partisans, and then enters the sanctuary. At dawn the captain of the vessel from
which Cortés escaped comes also to the temple, to secure himself against
Velazquez’ wrath, no doubt, but is refused admission into the sacristy by his
fellow-refugee, who suspects the man, and fears that the provisions may not
outlast the siege. In Herrera, dec. i. lib. ix. cap. viii., Cortés drifts about on a log
and is finally cast ashore.

[75] So the story was current at the time, and I doubt not it contains some degree
of truth, notwithstanding Las Casas, Hist. Ind., iv. 11-12, scouts it as a pure
fabrication. He knew both men; Velazquez as a proud chief, exacting the deepest
reverence from those around him, and making them tremble at his frown; while
Cortés was in those days so lowly and humble as to be glad to curry favor with the
meanest servants of the governor. The good bishop is evidently prejudiced. In De
Rebus Gestis Ferdinandi Cortesii, in Icazbalceta, Col. Doc., i. 332-4, the facts are
a little elaborated and contradictory, as usual. Cortés escapes the guard round the
church, and reaches the farm. ‘Halloh, señores!’ he shouts, ‘Cortés is at the door,
and salutes Señor Velazquez, his excellent and gallant captain.’ Velazquez is
astonished, yet pleased, at the arrival of one whom he always had regarded as a
friend and beloved brother. He orders supper and bed to be prepared; but Cortés
insists that none shall approach, or he will lance them. He demands to know what
complaints there are against him. He abhors the suspicion of being a traitor, and
will clear himself. ‘Receive me,’ he concludes, ‘in your favor with the same good
faith that I return to it.’ ‘Now I believe,’ answers Velazquez, ‘that you regard as
highly my name and fame as your own loyalty.’ They shake hands, and Cortés
now enters the house to fully explain the misunderstanding. After supper they
retire to one bed. In the morning the messenger, Diego Orellana, arrives to
announce Cortés’ flight, and finds them lying side by side. Cortés will not proceed
with the expedition just then; but after arranging his affairs he joins, to the delight
of the general, who follows his advice implicitly, as he had done in former
campaigns. After their victorious return Cortés enjoys greater honors than ever.
Peralta, who also gives the story at length, states that Cortés surprised Velazquez
asleep. At the request of the governor he gave himself up to the jailer in order to
be formally released. Nat. Hist., 58-62. Still Peralta is a little confused.

[76] She was received by Cortés in Mexico, after the conquest, with great
distinction; but died in about three months after her arrival.

[77] Las Casas, who, as usual, will have a fling at Cortés, writes: ‘Tuvo Cortés un
hijo ó hija, no sé si en su mujer, y suplicó á Diego Velazquez que tuviese por bien
de se lo sacar de la pila en el baptismo y ser su compadre, lo que Diego
Velazquez aceptó, por honralle.’ Hist. Ind., iv. 13. Among Cortés’ children a natural
daughter by a Cuban Indian is mentioned, Bernal Diaz, Hist. Verdad., 238, but it is
not likely that Cortés would ask the governor to stand godfather to a natural child.
The same writer makes Velazquez the groomsman or sponsor at the marriage.
‘Fue su padrino, quando Cortés se velò con Doña Catalina;’ Id., 13; Vetancvrt,
Teatro Mex., pt. iii. 109. Although compadre is not unfrequently used as a mere
term of friendship, it is not likely to have been applied by a marriage padrino;
hence the title of co-father indicates that it originated at the font.

[78] An office granted only to men of note and to leading conquistadores. Solis,
Hist. Mex., i. 46. It conveyed the title of ‘muy virtuoso señor,’ the governor being
called ‘muy magnífico señor,’ Pacheco and Cárdenas, Col. Doc., xii. 225, and
permitted the holder to walk side by side with the governor. Herrera, dec. ii. lib. iii.
cap. xii. ‘Auia sido dos vezes Alcalde en la Villa de Sãtiago de Boroco, adõde era
vezino: porque en aquestas tierras se tiene por mucha honra.’ Bernal Diaz, Hist.
Verdad., 13. He does not refer to him as alcalde at Santiago de Cuba, where the
fleet is fitting out, as he clearly states. Gomara, Hist. Mex., 4, mentions merely that
he was here before the quarrel with Velazquez. Some writers assume that
Santiago de Cuba is the same as Santiago de Baracoa, but Herrera, loc. cit., and
others, observe the distinction.
 CHAPTER V.
SAILING OF THE EXPEDITION.

1518-1519.

The Quality of Leader Desired—Instructions Issued to Hernan Cortés,

Commander-in-Chief—The Character of Cortés Undergoes a Change—
Cost of the Expedition—By whom Borne—Places Established for
Enlistment—The Banner—Cortés Puts on the Great Man—More of his
Character—The Scene at Santiago Harbor—The Governor’s Jester—
Dark Suspicions of Velazquez—Departure from Santiago—Cortés at
Trinidad—Fresh Recruits—Verdugo Receives Orders to Depose
Cortés—The Fleet Proceeds to San Cristóbal, or The Habana—Review
at Guaguanico—Speech of Cortés—Organization into Companies—
Departure from Cuba.

With relations so lovingly established, and with a personal

knowledge of the military genius of Cortés, and the strength and
versatility of his character, it would seem that here would be the first
instant choice of the governor for the command of the important
expedition now in preparation. But the quality of the man required did
not altogether hinge on merit. As we have seen, Velazquez required
for his purpose an anomalous creation. He must be able but humble;
able to command men, and able likewise to obey his chief; honest to
Velazquez, but false, if necessary, to all the world else. It was not an
Alexander or an Alcibiades that was wanted; not so much a man as
a thing: “Piper, non homo,” as Petronius Arbiter said; pungent as
pepper, and not a human being.
 Be this as it may, the sordid friendship of Láres and Duero
prevailed with the governor, and on the 23d of October, 1518, his
instructions to Hernan Cortés, commander-in-chief of the expedition,
were drawn up before the notary, Alonso de Escalante, in
accordance with the permission granted by the authorities at Santo
Domingo, which limited the enterprise to exploration; the privilege to
colonize depending on royal favor for which Velazquez must sue in
Spain.[79]
One would think that after these twenty-five years of experience
there could be found no ecclesiastic or ruler so childish as to expect
morality or humanity from the wolves of Spain let loose among the
naked and defenceless of America. And yet we find the friars of
Española, in pursuance of the devout and high-minded views
expressed by Velazquez, subscribing to instructions which enjoin
Cortés to observe a conduct befitting a Christian soldier, as if there
were any reasonable hope of his doing so. He must prohibit
blasphemy, licentiousness, and gambling among his men, and on no
account molest the natives, but gently inform them of the glory of
God, and of the Catholic king. Possession must be taken in
Velazquez’ name and the secrets of the country ascertained. Search
must be made for Grijalva and Olid, and for the Christian captives
supposed to be in Yucatan. We might again mark the double-dealing
of the governor, who discharges Grijalva for not having settled
contrary to his instructions, while charging the new commander not
to seize the country, yet expecting him to do so.[80] The instructions
consist of thirty clauses, and the document reflects no credit on the
scrivener.[81]
Man and his character are subject to environment. Neither is
finished until decay has well set in. Long before the receipt of his
commission the adolescent Cortés was a creation of the past; even
the adult Cortés was a different being before and after his
appointment. His action now was the expression of new intuitions.
Always under the influence of turbulent emotions, his ambition had
suddenly become more aggressive. In pure impulses, in refined
feelings, in noble instincts, he was essentially defective. He harbored
no ideal of duty, such as we have seen in the mind of Grijalva. His
code of ethics was neither broad nor catholic. And notwithstanding
his great respect for religion, so great indeed as to excite suspicion
that he cared very little for it; notwithstanding his outward piety, and
his devotion to the church, the lighter immoralities fitted him with an
ease and grace that hampered his movements not in the least. Yet
for all this the alcalde of Santiago suddenly became a great man, not
in name only, but actually; wellnigh revolutionizing the society of
which he himself was the product. To him, and to others, his
commission was a match applied to explosive material, letting loose
the latent force. The leaders of the first gulf-shore expeditions,
Córdoba, Grijalva, and Cortés, present themselves before us in
relatively increasing proportions. Córdoba, the first, was least,
though a most gentlemanly and kind-hearted pirate. Grijalva, though
second to Cortés in talents and fame, was far before him in honesty.
During the preparations which quickly followed the appointment of
Cortés, the inherent qualities of the man developed to a degree
alarming alike to friends and enemies, and astonishing to himself. He
found his nature a strong one, with magnetic attractions, and an
affinity with danger. He found himself possessed of that higher
courage of the mind which begets self-confidence, breeds the hero,
and ends in the achievement of the uttermost. And genius was there;
he began to feel it and to know it: the genius of ambition and
egotism, whose central figure was himself, an all-prevailing
sentiment, before which right, religion, humanity, and even life itself,
must be subservient. His rapidly evolving will was becoming
ponderous, overwhelming. Fame was becoming to him what
ambition was to Columbus; only he possessed his idea instead of
being possessed by it. Sufficiently educated for the purposes of
statecraft, opportunity alone was needed to enable him to turn every
weapon to the furtherance of his own designs. Without attempting to
pry into the occult, he now began to see things with a large and
liberal eye. Life was assuming tremendous realities, which bridled
impulse; yet it was an ordeal he believed he could face. While in
sophistry he found himself equal to Euripides, he began to put on
bombast such as Æschylus could not have scorned, and to display
an energy as sublime as that of Archilochus; yet all this time his
good sense was supplemented by graceful courtesy. All who worship
the bright wit and intellectual versatility that flatter ambition and yield
unscrupulous success may henceforth bow the knee to Hernan
Cortés.
No sooner was his commission sealed than Cortés set himself
about the task of collecting his many requirements. His own few
thousand pesos of ready money were quickly spent; then he
mortgaged his estates, and borrowed to the uttermost from his
friends. Velazquez was free with everything except his substance;
free with his advice and ostentation, free with the ships of others,
and willing to sell to the expedition the products of his farm at
exorbitant prices. Nevertheless the investment to the governor, as
well as to Cortés, was large, the former furnishing some ships of his
own and some money, the whole cost of vessels and outfit being
about twenty thousand ducats.[82]
Establishing places of enlistment throughout the island, Cortés
roused to action his many friends, both in person and by letter. At
principal settlements the expedition was proclaimed about the
streets, in the king’s name, by the beating of drums and the voice of
the crier. One third of the proceeds of the adventure was promised
the soldiers and subalterns, two thirds going to the outfitters.[83] A
banner of black taffeta was embroidered with the royal arms in gold,
and blue and white flames surrounding a red cross, and round the
border it bore the inscription, “Amici sequamur crucem, si nos
habuerimus fidem in hoc signo vincemus.” Friends, let us follow the
cross, and if we have faith under this sign we shall conquer.[84]
Assuming a dress and bearing more fitting a military
commander, Cortés threw open his doors, and by judiciously
combining the frank joviality of a soldier with the liberal hospitality of
a man of wealth, he rapidly drew to his adventure all the available
men of the island. There were not lacking those to sneer at this
assumption of preëminence, which flaunted it so bravely with plume
and medal, with martial music and retinue, saying, here was a lord
without lands.[85] But they little knew the strength and firmness of
him who, having once put on the great man, would lay the livery
down but with his life. This soldierly display, always taking to the
Castilian fancy, could scarcely be called affectation, for the genius
which commands success was present, and the firmness of resolve
was covered with such pleasing affability as to render its presence
scarcely suspected. With his fine soldierly qualities were financial
and executive ability, and fair common sense, a rare combination in
a Spanish cavalier. While loving adventure he did not altogether hate
ideas. His world now spread itself before him, as divided into two
unequal classes, those that use others, and those that are used by
others, and he resolved himself forever into the former category. Like
Diogenes, though enslaved at Crete, Cortés felt that if he could do
one thing better than another it was to command men. Coupled with
this egotism was the sensible intuition that the mastery of others
begins with self-mastery. Indeed his command over himself, as well
as over others, was most remarkable. “By my conscience!” was a
favorite oath, which implies not brutal passion. At times a swelling
vein in the forehead, and another in the throat, indicated rising anger,
manifested also by a peculiarity of throwing off his cloak; but the
voice would remain decorous, and the words seldom passed beyond
a “Mal pese á vos!” May it bear heavily upon you. To the insolent
soldier, whom we shall often find overstepping the bounds of
prudence, he would merely say, “Be silent!” or “Go, in God’s name,
and be more careful if you would escape punishment.” Equally
composed in argument, he wielded his persuasive powers to their
best advantage. Rio de Avenida, the Rushing River, was at one time
a nickname, and later he affected long hair and lawsuits. At the
gaming-table, to which he was greatly addicted, he won or lost with
equal sang-froid, ever ready with a witticism to smooth the varying
course of fortune. Though he did not hesitate as gay Lothario to
invade the family of another, most unreasonably he was very jealous
lest his own family should be invaded. While liberal to friend or
mistress, and ready to sacrifice almost anything to gain an object, he
was not always regarded as over-generous by his men, too many of
whom were of that class, however, that nothing would satisfy.
Although a fair eater, he drank but little, and confined himself to
simple diet. This moderation also extended to dress, which, before
his elevation, was not only neat but tasteful in its rich simplicity,
ornamented with few but choice jewels, and with little diversity. A
love of pomp, however, developed with his rising fortunes, more
particularly in the way of showy residences and a large retinue,
which accorded well with the courtly manners native to the Spaniard
claiming noble blood. Cervantes says that in the army even the
niggardly become prodigal.
Cortés found the way of throwing into his cause not only himself,
but others, in some respects as able as himself. His liberal measures
and enthusiasm became infectious, and brought to enrolment
wealthy volunteers, who furnished not only their own outfit, but
helped to provide others.[86] Within a short time there joined over
three hundred men, among them some high in the service and
confidence of the governor—instance, Francisco de Morla his
chamberlain, Martin Ramos de Láres a Basque, Pedro Escudero,
Juan Ruano, Escobar, and Diego de Ordaz mayordomo of
Velazquez, and instructed by him to watch proceedings and secretly
report.
The harbor of Santiago at this time presented a busy scene.
There were the hurrying to and fro of laborers and recruits, the clang
of carpenters’ hammers upon ships undergoing repairs, the
collecting of goods, and the loading of vessels. Every day the
landing was enlivened by the presence of the governor, often arm-in-
arm with his most dutiful and compliant captain-general, surrounded
by gayly dressed attendants and followed by half the town. On one
of these visits of inspection, while engaged in friendly conversation
respecting the progress of affairs, the Governor’s jester,
Francisquillo, who was present, as usual, performing his antics
before his master, cried out, “Ah, friend Diego!” Then to Cortés, “And
how fares our brave captain, he of Medellin and Estremadura? Be
careful, good master, or we shall soon have to beat the bush for this
same Cortés.” Velazquez laughed heartily, and turning to his
companion exclaimed, “Compadre, do you hear this fool?” “What,
señor?” replied Cortés, pretending preoccupation. “He says you will
run away with our fleet,” replied Velazquez. “Pay no attention to the
knave, your worship; I am very sure these infamous pleasantries
never emanated from his mad brain,” rejoined Cortés, deeply
chagrined. And ere the laugh died away on the lips of the governor
his timid breast was chilled by fearful forebodings. What if it were
true, thought Velazquez, and this fellow, whom I have lifted from his
low estate, should declare for himself on reaching New Spain? Then
he called to mind his late quarrel with Cortés, and the courage,
energy, and determination displayed by the latter throughout. The
governor trembled when he thought of it. About him were enough of
the disappointed only too ready to fan these suspicions into a flame.
[87]

I regret having to spoil a good story; but the truth is, the drama
reported by Bartolomé Las Casas, and reiterated by Herrera and
Prescott, was never performed. It tells how Cortés put to sea,
Prescott asserts the very night after the jester’s warning; and that in
the morning, when the governor, early roused from his bed, rushed
down to the landing with all the town at his heels, Cortés returned
part way in an armed boat and bandied words with him. Beside
being improbable, almost impossible, this version is not sustained by
the best authorities.[88] The fact is, some time elapsed, after the
suspicions of the governor had first been aroused, before the sailing
of the fleet, during which interval Grijalva with his ships returned.
Gomara states that Velazquez sought to break with Cortés and
send only Grijalva’s vessels, with another commander; but to this
Láres and Duero, whose advice was asked by the governor, made
strong objection, saying that Cortés and his friends had spent too
much money now to abandon the enterprise, which was very true;
for like the appetite of Angaston which came with eating, the more
Cortés tasted the sweets of popularity and power, the more stomach
he had for the business. And the more the suspicions of the
governor grew, the greater were the captain-general’s assurances of
devotion, and the firmer became the determination of Cortés and his
followers to prosecute this adventure, in which they had staked their
all.[89]
Warned by Láres and Duero of every plot, Cortés hurried
preparations, sending friends to forage, and shipping stores with the
utmost despatch, meanwhile giving secret orders for all to be ready
to embark at a moment’s notice. Finally, the hour having come, on
the evening of the 17th of November, with a few trusty adherents,
Cortés presented himself before the governor, and politely took his
leave. It fell suddenly on Velazquez, in whose eyes all movements
relating to the expedition had of late become the manœuvres of men
conspired to overreach him. But having neither the excuse nor the
ability to stop the expedition he let the officers depart.
 By playing with the devil one soon learns to play the devil. From
the governor’s house Cortés hastened to the public meat depository,
seized and added to his stores the town’s next week’s supply, and
left the keeper, Fernando Alfonso, a gold chain, all he had remaining
wherewith to make payment.[90] It was a dull, dry, gray November
morning, the 18th, very early, after mass had been said, when the
squadron, consisting of six vessels, sailed out of Santiago harbor
amidst the vivas of the populace and the inward cursings of the
governor.[91] But of little avail was Velazquez’ remorse; for Cortés
carried no Æolian wind-bags to drive him back from his destination.

Despatching one of the vessels to Jamaica[92] for provisions,

Cortés touched at Macaca for further supplies, and thence steered
for Trinidad, where he was received with demonstrations of
enthusiasm by the alcalde mayor, Francisco Verdugo brother-in-law
of Velazquez, and by other hidalgos, who placed their houses at his
disposal. Raising his standard before his quarters, he proclaimed the
expedition and invited volunteers, as he had done at Santiago. Soon
his force was augmented by over one hundred of Grijalva’s men.
Here also joined several captains and hidalgos, afterward famous in
New Spain adventure. There were the five brothers Alvarado, Alonso
de Ávila, Gonzalo Mejía afterward treasurer at Mexico, Cristóbal de
Olid, Alonzo Hernandez Puertocarrero cousin of the count of
Medellin, Gonzalo de Sandoval who became so great a friend of
Cortés, Juan Velazquez de Leon a relative of the governor, and
others.[93] From the plantations of Santi Espíritu and elsewhere
came many. This Cortés beheld with proud satisfaction, and
welcomed these important acquisitions with martial music and peals
of artillery.
In seeking supplies Cortés paid little heed to rights of property,
so long as he obtained what he needed; he was subsequently not a
little proud of his success. “By my faith,” he boasts in Spain in 1542,
“but I did play the corsair genteelly.” Among the arbitrary purchases
was that of a vessel from Jamaica laden with provisions for the
mines, for which the owner might accept promissory notes or
nothing.[94] Another vessel from the same place, on the same
mission, Cortés sent Ordaz to seize and convey to Cape San
Antonio, or perhaps to San Cristóbal where we afterward find him,
there to await the fleet. This captain, it will be remembered, was the
spy of Velazquez, and to him, therefore, rather than to another, was
given this mission, to prevent his watching proceedings at Trinidad.
The commander of the seized vessel was Juan Nuñez Sedeño, who
was induced to join the expedition.[95] Meanwhile in the breast of
Velazquez was stirred afresh the poison of jealousy by an astrologer,
one Juan Millan, employed by the enemies of Cortés to work on the
fears of the governor. The result was the arrival at Trinidad, in hot
haste, of two messengers from the governor, with orders for Verdugo
to detain the fleet, the command of which had been transferred to
Vasco Porcallo. Moreover, all the retainers of Velazquez were called
upon to aid in deposing Cortés. It was no difficult matter, however,
for Cortés to persuade Verdugo of two things: first, that there were
no grounds for Velazquez’ fears, and secondly, if there were, force
would now avail him nothing. So strong was Cortés in his position
that he could easily lay the town in ashes should its authorities
attempt to interfere in his purposes. Taking one of the messengers,
Pedro Lasso, into his service, by the other Cortés wrote Velazquez,
in language most respectful, begging him to believe that he would
always be true to his God, his king, and his dear friend and governor.
In like notes the robin and the screech-owl muffle their voices when
danger is near, so as to conceal the distance, and make themselves
seem far away. Thus passed twelve days, according to Bernal Diaz,
at Trinidad, when one of the vessels was despatched to the north
side of the island for supplies, and the fleet departed for San
Cristóbal, then Habana,[96] while Pedro de Alvarado, with fifty
soldiers and all the horses, proceeded thither overland, adding to
their number at the plantations on the way.
One night during the voyage to San Cristóbal, the flag-ship was
separated from the other vessels and stranded on a reef near Isla de
Pinos. With skill and promptness Cortés transferred the contents in
small boats to the shore, set free the lightened vessel, and,
reloading, joined his captains at San Cristóbal. This accident delayed
him seven days, during which time there was no small stir among his
men at San Cristóbal as to who should command the fleet in case its
captain-general failed to appear. Conspicuous among these
questioners was Ordaz, who claimed precedence as Velazquez’
representative. But the arrival of the commander put an end to the
controversy and spread unbounded joy throughout the armada.
Landing, he accepted the hospitality of Pedro Barba, lieutenant of
Velazquez. Among those who joined him here were Francisco
Montejo, the future conqueror of Yucatan, and Diego de Soto, who in
Mexico became the mayordomo of Cortés. Again the commander rid
himself of Ordaz by sending him with a vessel to the plantations near
Cape San Antonio, there to await the fleet. The artillery was landed
and cleaned; the cross-bows were tested and the firelocks polished.
Cotton armor was secured. More provisions being required,
Quesada, the Episcopal tithe-collector, contributed his stock.
Warranted, as he thought, by his success and prospects, and
well aware of the effect on the Spanish mind of some degree of
ostentation and military display, Cortés put on the paraphernalia of
still greater leadership, and appointed a chamberlain, a chief butler,
and a mayordomo, in the persons of Rodrigo Rangel, Guzman, and
Juan de Cáceres, which pomp he ever after maintained.[97] Gaspar
de Garnica now arrived with letters from Velazquez to Barba, Ordaz,
Leon, and others, ordering and entreating them to stop the fleet,
arrest Cortés, and send him a prisoner to Santiago. It was of no
avail, however. Soldiers, officers, even Barba himself, were
enthusiastic for Cortés, who once more wrote the governor, in terms
as courteous as they were costless, and shortly afterward, on the
10th of February, 1519, the fleet again set sail.[98] Guaguanico, on
the north side of Cape San Antonio, was the place appointed for
muster and apportionment.[99] Meanwhile Pedro Alvarado was sent
forward with sixty soldiers in the San Sebastian to bring Ordaz to the
rendezvous, but driven by a gale beyond his goal and near to
Yucatan, he thought it useless to return, and so proceeded to
Cozumel Island, where he arrived two days before the others. The
expedition consisted of twelve vessels, the flag-ship or capitana of
one hundred tons, three others of from sixty to eighty tons, and the
rest small brigantines and open craft, including a transport
commanded by Ginés Nortes. The soldiers numbered five hundred
and eight, and the sailors one hundred and nine, including officers
and pilots. The priests present were Juan Diaz and Bartolomé de
Olmedo, of the Order of Mercy. Under Juan Benitez and Pedro de
Guzman were thirty-two crossbowmen; thirteen men only carried
firelocks, the rest being armed with swords and spears. The artillery
consisted of ten bronzed guns and four falconets, and was in charge
of Francisco de Orozco, aided by Mesa Usagre, Arbenga, and
others. About two hundred Cuban Indians, together with some native
women and negro slaves, were brought for service, despite the
prohibitory clause in the instructions. Sixteen horses receive the
minute description and glowing encomium of the soldier Diaz, and
play an important part in the coming campaign. The supplies
included some five thousand tocinos, or pieces of salt pork, six
thousand loads of maize and yucca, fowl, vegetables, groceries, and
other provisions. For barter were beads, bells, mirrors, needles,
ribbons, knives, hatchets, cotton goods, and other articles.[100]
The force was divided into eleven companies, each under a
captain having control on sea and land. The names of the captains
were Alonso Hernandez Puertocarrero, Alonso de Ávila, Diego de
Ordaz, Francisco de Montejo, Francisco de Morla, Escobar, Juan de
Escalante, Juan Velazquez de Leon, Cristóbal de Olid, Pedro de
Alvarado, and Cortés, with Anton de Alaminos as chief pilot.[101]
From this list it will be seen that those but lately regarded as of
the Velazquez party received their full share in the command. This
cannot be attributed so much to the captain-general’s sense of
fairness, which forbade him to take advantage of interests voluntarily
intrusted to his care, as to a studied policy whereby he hoped to win
for his purposes certain men of influence, whom it would, for that
matter, have been dangerous to remove.
Before the review, Cortés addressed his soldiers in a speech as
shrewd and stirring as that of Marcius at Corioli. Pointing to the
thousands of unbaptized, he awakened their religious zeal; dwelling
on the grandeur of the undertaking, he stimulated their ambition;
referring to the vast wealth these lands contained, he excited their
cupidity. Greater and richer lands than all the Spanish kingdoms, he
called them, and inhabited by strange races, only awaiting
submission to their invincible arms. Their whole fortune was invested
in the fleet that carried them; but who would regret so trifling an
expenditure when compared with the glorious results to follow? They
were setting out upon a career of conquest in the name of their God,
who had always befriended the Spanish nation; and in the name of
their emperor, for whom they would achieve greater deeds than any
ever performed. Riches lay spread before them; but like good and
brave men they must look with him to the higher and nobler reward
of glory. “Nevertheless,” he archly added, “be true to me, as am I to
you, and ere long I will load you with wealth such as you have never
dreamed of. I will not say it is to be won without hardships; but who
of you are afraid? We are few, but we are brave. Let us therefore on
with the work so well begun, joyously and confidently to the
end!”[102] There is no passion so artful as avarice in hiding itself
under some virtue. Sometimes it is progress, sometimes patriotism,
but its warmest cloak has ever been religion. There is a double profit
to the devotee whose religion gratifies his avarice, and whose
avarice is made a part of his religion.
On the morning of February 18th mass was said, the campaign
standard blessed, and Saint Peter invoked, whereupon the prows
were pointed toward the islands of the west. All the vessels were to
follow the flagship, whose light should be their guide by night; in
case of separation they were to steer for Cape Catoche and thence
proceed to Cozumel.[103]

FOOTNOTES
[79] ‘Fray Luys de Figueroa, fray Alonso de santo Domingo, y fray Bernaldino
Mãçenedo, q̄ eran los gouernadores, dieron la licencia para Fernando Cortés
como capitan y armador cõ Diego Velazquez.’ Gomara, Hist. Mex., 12. The
Fathers no doubt required to know the name of the commander. ‘His litteris
Cortesius confirmatus,’ is the statement in De Rebus Gestis Ferdinandi Cortesii, in
Icazbalceta, Col. Doc., i. 344, in reference to their permit. This authority intimates
that Salcedo, at a later date probably, obtained license from the Fathers for
warfare in Yucatan and for the settlement of the mainland, but this is not confirmed
anywhere. Id., 350.

[80] Evidently Velazquez desired his captains to disobey instructions and colonize.
He could not officially authorize them to do so, not having as yet received
permission from Spain. Neither Velazquez nor Cortés had any intention in this
instance of confining this enterprise to trade, or protecting the natives, or imposing
morality upon the men. It was well understood by all that licentiousness and
plunder were to be the reward for perils to be undergone. ‘Atque etiam quod
Grijalvae prætentâ causa auxilii ferendi quod Alvaradus postulabat, ire licebat,’ is
the pointed observation in De Rebus Gestis Ferdinandi Cortesii, in Icazbalceta,
Col. Doc., i. 343-4. Bernal Diaz, Hist. Verdad., 13, refers to promises of Indian
repartimientos in the new regions as an inducement for volunteers. Cortés’
statement at Vera Cruz, that he had no order to settle, means nothing in view of
the motives then actuating him. Secret agreements between governors and
lieutenants for defrauding the crown and promoting their own aims were only too
common; and this is overlooked by those who trust merely to the instructions for
arguments on this point.

[81] The full text of the instructions is to be found in Pacheco and Cárdenas, Col.
Doc., xii. 225-46; Col. Doc. Inéd., i. 385, 406; Alaman, Disert., i. App. ii. 1-27, with
notes, reproduced in Zamacois, Hist. Méj., ii. 791-815. The Muñoz copy, given in
Prescott’s Mex., iii. 434-9, preserved the original spelling in the preamble, but the
clauses are abbreviated, though Prescott does not appear to be aware of it.

[82] The ownership of the expedition has been a moot question, some authors
regarding it as pertaining chiefly to Velazquez, while others accord it wholly to
Cortés and his friends. According to Gomara, after receiving the vessel brought by
Alvarado, and another provided by Velazquez, Cortés, aided by his friends, bought
two large and two small vessels before leaving Santiago; and at least two more
were bought after this with bills forced upon the owners. The rest of the fleet
appears to have been made up from the transport spoken of and from Grijalva’s
vessels. The latter is to be regarded as Velazquez’ contribution, for in the
testimony before the royal council in Spain, Montejo, the trusted friend of the
commander, declares that on delivering them over to the governor he received the
order to join Cortés, with the vessels, of course. His statements, and those of the
captain Puertocarrero, confirmed by the letter of the ayuntamiento of Villa Rica to
the emperor, agree that, from their own observations and the accounts given by
others, Cortés must have contributed not only seven vessels, but expended over
5000 castellanos on the outfit, beside procuring goods and provisions, while
Velazquez furnished only one third, chiefly in clothes, provisions, wines, and other
effects, which he sold through an agent to the company, the witnesses included, at
exorbitant prices. Montejo had heard that Velazquez contributed three vessels, but
whether these were exclusive of Grijalva’s fleet is not clear. He is also supposed to
have lent Cortés 2000 castellanos, and to have given twelve or thirteen hundred
loads of bread, and 300 tocinos, beside 1800 castellanos in goods, to be sold to
the party at high prices. Every other supply was furnished by Cortés, who
maintained the whole force without touching the ship’s stores, while remaining in
Cuba, no doubt. Col. Doc. Inéd., i. 487-90. Puertocarrero adds that Cortés’
liberality to men in advancing means and outfits was generally admitted. He
himself had received a horse from the commander. He gives a list of the
outrageously high prices charged by Velazquez for his supplies. Id., 491-5.
Another member of the expedition states that Cortés furnished seven vessels, and
Velazquez three, two more belonging to the latter joining the fleet afterward.
Cortés paid for all the outfit. Extract appended to Carta del Ayunt. de V. Cruz, in
Col. Doc. Inéd., i. 419-20: ‘Casi las dos partes ... á su (Cortés) costa, asi en
navios como en bastimentos de mar.’ ‘Todo el concierto de la dicha armada se
hizo á voluntad de dicho Diego Velazquez, aunque ni puso ni gastó él mas de la
tercia parte de ella.... La mayor parte de la dicha tercia parte ... fué emplear sus
dineros en vinos y en ropas y en otras cosas de poco valor para nos lo vender acá
(V. Cruz) en mucha mas cantidad de lo que á él le costó.’ Carta de la Justicia de
Veracruz, 10 de julio, 1519, in Cortés, Cartas, 8; Pacheco and Cárdenas, Col.
Doc., xiv. 37. Claiming to have no ready money of his own, Velazquez took for the
expedition 1000 castellanos from the estate of Narvaez in his charge. Gomara,
Hist. Mex., 12-13. ‘Salió de la Isla de Cuba ... con quince navíos suyos.’ Cortés,
Memorial, 1542, in Cortés, Escritos Sueltos, 310. Peter Martyr assumes that
Cuban colonists furnished the fleet with the governor’s consent, and elected
Cortés commander. Dec. iv. cap. vi. Solis, Hist. Mex., i. 61, considers that
Velazquez held only a minor share in the expedition. Montejo stated in a general
way that he spent all his fortune on joining the expedition. Cent. Am., 1554-55,
127-30, in Squiers MS. In De Rebus Gestis Ferdinandi Cortesii it is asserted that
Cortés expended 6000 pesos of his own, and 6000 ducats borrowed money,
beside what Velazquez lent him; his expenditures being in all 15,000 pesos.
Velazquez gave not one real, but merely sold goods at exorbitant figures, or made
advances at a high interest, even the vessels provided by him being transferred to
the commander under an expensive charter. ‘Sunt pretereà, multi Hispani viri boni
qui et nunc vivunt, et qui cum ea classis de qua agimus, apparabatur, aderant. Hi
in hujus causæ defensione, cujus apud Consilium Regium Indicum Cortesius est
accusatus, testes jurati asserunt Velazquium nihil omnino ex propriâ facultate in
Cortesii classem impendisse.’ This would indicate that Montejo and
Puertocarrero’s testimony was confirmed by many others. The agent, Juan Diaz,
who attended to the sale of the goods and the collection of the advances, fell in
the retreat from Mexico, and his money was lost. Icazbalceta, Col. Doc., i. 345-9.
This testimony by members of the expedition merits the foremost attention in the
question, particularly since the fewer statements on the other side are based
wholly on supposition. It is somewhat qualified, however, by the consideration that
both Montejo and Puertocarrero were stanch friends of Cortés, and that the letter
of the ayuntamiento was prepared in his presence. It must also be borne in mind
that a goodly proportion of the share attributed to him consisted of vessels and
effects obtained upon his credit as captain-general of the fleet, and also in a semi-
piratical manner. The statements in Cortés, Memorial, and in De Rebus Gestis
Ferdinandi Cortesii, indicate, beside, a hardly warranted attempt to regard
Velazquez’ contribution chiefly as a loan to the commander or to the party, his
vessels being spoken of as chartered. Another proportion belonged to wealthy
volunteers. On the whole, however, it may be concluded that Cortés could lay
claim to a larger share in the expedition than Velazquez; but the latter possessed
the title of being not only the discoverer, through his captains, of the regions to be
conquered, but the projector of the expedition. Oviedo, while believing that the
fleet belonged with more right to the governor, feels no pity for the treatment he
received, in view of his own conduct to Diego Colon. Complacently he cites the
proverb: ‘Matarás y matarte han: y matarán quien te matare.’ As you do unto
others, so shall be done unto you. Oviedo asserts that he has seen testimony
showing that Cortés and his men did not sail at their own expense, but from his
own statement it appears that the instructions of Velazquez, wherein he speaks of
the expedition as sent in his name, is the chief feature in this so-called testimony;
i. 538-9. Las Casas naturally sides with Velazquez, and estimates that he
expended over 20,000 castellanos; he had no need for, nor would he have
stooped to a partnership, at least with a man like Cortés. Hist. Ind., iv. 448.
Herrera, dec. ii. lib. iii. cap. xi., copies this, and Torquemada, i. 359, reverses this
figure in favor of Cortés.

[83] Testimonio de Puertocarrero, in Col. Doc. Inéd., i. 491. ‘Mãdo dar pregones, y
tocar sus atambores, y trompetas en nombre de su Magestad, y en su Real
nombre por Diego Velazquez para que qualesquier personas que quisiessen ir en
su compañía à las tierras nuevamente descubiertas â los conquistar y doblar, les
darian sus partes del oro plata, y joyas que se huviesse, y encomiendas de Indios
despues de pacificada.’ Bernal Diaz, Hist. Verdad., 13. Mark here the promise of
encomiendas to the volunteers. The word ‘doblar’ doubtless meant to explore or to
sail round the new islands. Bernal Diaz does not fail to observe that the royal
license had not yet arrived to warrant these proclamations.

[84] See Landa, Rel. de Yuc., 23; Tapia, Rel., in Icazbalceta, Col. Doc., ii. 554;
Fancourt, Hist. Yuc., 27, leaves out the middle sentence; Gomara, Hist. Mex., 15;
Torquemada, i. 364, and others give only the Spanish translation. Prescott says
the flag was of velvet, and attributes the sign to the labarum of Constantine, which,
to say the least, is somewhat far-fetched. Bernal Diaz, Hist. Verdad., 13, places
the motto upon ‘estandartes, y vanderas labradas de oro cõ las armas Reales, y
una Cruz de cada parte, juntamente con las armas de nuestro Rey.’

[85] ‘Se puso vn penacho de plumas con su medalla de oro.’ Bernal Diaz, Hist.
Verdad., 13. ‘Tomo casa. Hizo Mesa. Y començo a yr con armas, y mucha
compañía. De que muchos murmurauan, diziendo que tenia estado sin señorio.’
Gomara, Hist. Mex., 13.

[86] Cortés himself was very liberal in advancing money or necessaries.

Puertocarrero, loc. cit. This cavalier received a horse which Cortés bought at
Trinidad with gold fringes taken from his mantle. Bernal Diaz, Hist. Verdad., 14.
‘Dio a muchos soldados ... dineros con obligaciõ de man comun.’ Gomara, Hist.
Mex., 12.

[87] Las Casas, Hist. Ind., iv. 450-1; Herrera, dec. ii. lib. iii. cap. xi. Bernal Diaz,
Hist. Verdad., 13, relates the incident as having occurred on the way to Sunday
mass. The fool, whom he calls Cervantes, was walking in front of his master and
Cortés, uttering nonsense in prose and rhyme; finally he said in a louder voice, ‘By
my faith, master Diego, a nice captain have you chosen: one who will run away
with the fleet, I warrant, for he has courage and enterprise.’ Duero, who walked