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diff --git a/41443-0.txt b/41443-0.txt new file mode 100644 index 0000000..e8a4cd4 --- /dev/null +++ b/41443-0.txt @@ -0,0 +1,18209 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 41443 *** + + THE AUDIENCIA IN THE SPANISH COLONIES + AS ILLUSTRATED BY THE AUDIENCIA OF MANILA (1583-1800) + + BY + CHARLES HENRY CUNNINGHAM, Ph. D. + Adjunct Professor of History in the University of Texas + + + + UNIVERSITY OF CALIFORNIA PRESS + BERKELEY + 1919 + + + + + + + +PREFACE + + +It seems proper to say at the outset that a general study of the +Spanish colonial system convinced me of the need of an extended +investigation of the audiencia, which was the central institution in +the colonies. It was, however, the circumstance of my being situated +in Manila for some years and thus having at my disposal the original +documents bearing upon the history of the audiencia which was situated +there that led me to study this particular tribunal. At first sight it +may appear that something of direct applicability to Spanish-American +conditions, which would have been gained by the study of the Audiencia +of Mexico, or Guadalajara, or Lima, has thus been lost. Nevertheless, +if it is borne in mind that the audiencia system was common to all the +Spanish colonies, and that the laws by which it was constituted and +regulated applied to the different political divisions of America as +to the Philippines, the assumption will not seem wholly unjustified +that the Audiencia of Manila may be taken as a typical legal and +political institution. + +A large part of the time expended in collecting the materials upon +which this book is based was spent in the various depositories in +Manila. The most notable group of documents there is to be found in the +Philippines Library, and it is with pleasure that I express here my +obligations to Dr. James Alexander Robertson, the librarian; for not +only did Dr. Robertson place at my disposal all the resources of the +library, but he contributed generously from his adequate knowledge of +Philippine history and afforded continual inspiration during the course +of my labors in Manila. I am also deeply conscious of the assistance +so kindly rendered by Don Manuel Artigas, chief of the Division of +Filipiniana, and by Don Manuel Yriarte of the Philippine Archive. + +In addition to research in the Philippines Library, the Philippine +Archive, and the Audiencia Records in Manila approximately three years +have been spent in the archives of Spain. The main centre of my work, +of course, has been the Archive of the Indies at Seville, where +I was given free access to all the available materials, and every +facility was extended to me by the chief of the archive, Don Pedro +Torres Lanzas, and by his obliging assistants. I am also indebted +for many courtesies to Don Miguel Gómez de Campillo of the National +Historical Archive at Madrid, and to Don Juan Montero, chief of the +archive at Simancas. + +The object of this prefatory note would not be achieved if I failed to +express adequately my acknowledgment to my teacher and friend Professor +Frederick J. Teggart, of the University of California. His inspiration +led me to appreciate the importance of institutional studies; his +continued encouragement has helped me over the hard places in the +work; and I am conscious now of the extent to which he has sought, +by vigilant criticism, to guard me against precipitateness. I am +indebted to Professor Herbert Bolton for valuable aid and for advice +in the final presentation of the manuscript; to Dr. Charles Wilson +Hackett for a systematic revision of the Bibliography and of the +footnotes; to Professor E. C. Barker for advice and assistance; to +Professor W. R. Shepherd and Professor Francis S. Philbrick for their +criticism of portions of this book; and to Messrs. A. H. Allen and +Morse A. Cartwright of the University of California Press for their +many manifestations of courtesy and patience in the supervision of +its publication. To Professor H. Morse Stephens of the University of +California and to the generous order of the Native Sons of the Golden +West I am indebted for the rare opportunity of two years of foreign +residence and research in the various archives of Spain. + +Finally, my greatest indebtedness is to my wife, who has cheerfully +given up the pleasures and conveniences of life among friends in home +surroundings to accompany me to less pleasant places, in order that +I might succeed in the work which I have undertaken. + + + Charles H. Cunningham. + + University of Texas, Austin, Texas, + March 1, 1918. + + + + + + + +CONTENTS + + + Pages + + Preface v-vii + + Introduction 1-7 + + + CHAPTER I + + The Audiencias of the Spanish Colonies 8-31 + + + CHAPTER II + + The Establishment of the Audiencia of Manila (1583-1598) 32-82 + + + CHAPTER III + + The Judicial Functions of the Audiencia 83-120 + + + CHAPTER IV + + The Judicial Functions of the Audiencia: The Residencia 121-159 + + + CHAPTER V + + The Semi-Judicial and Administrative Functions of the + Audiencia 160-192 + + + CHAPTER VI + + The Audiencia and the Governor: General Relations 193-225 + + + CHAPTER VII + + The Audiencia and the Governor: The Military Jurisdiction 226-258 + + + CHAPTER VIII + + The Audiencia and the Governor: Conflicts of Jurisdiction 259-303 + + + CHAPTER IX + + The Audiencia and the Governor: The Ad Interim Rule 304-361 + + + CHAPTER X + + The Audiencia and the Church: The Royal Patronage 362-409 + + + CHAPTER XI + + The Audiencia and the Church: The Ecclesiastical + Jurisdiction 410-444 + + Bibliography 445-462 + + Index 463-479 + + + + + + + +INTRODUCTION + + +The audiencia was primarily a judicial tribunal. It has been considered +almost entirely as such by these modern historical writers who have +referred to it in passing. Its legislative, administrative, executive, +and ecclesiastical functions have received little attention. This +may be owing to the fact that little or no documentary study of the +audiencia has heretofore been made. A great deal of attention has been +devoted in this book to the non-judicial functions of the audiencia. A +chapter has been given, indeed, to its purely judicial activities, +but the chief purpose of this investigation has been to show that +the audiencia was more than a court of justice, and to bring out its +governmental and ecclesiastical functions. + +This study will be confined, chronologically, to the period extending +from the time of the creation of the audiencia, at the close of the +sixteenth century, to the end of the eighteenth. This limitation is +advisable, first, because the vastness of the subject requires it, and +second, because the audiencia became more concerned with judicial and +less with administrative, political, and economic affairs through the +constitutional changes which were made at the close of the eighteenth +and at the beginning of the nineteenth centuries. The audiencia thus +loses its interest, from our present viewpoint, after the eighteenth +century. Again, it may be said that owing to the loss of colonies by +Spain in the early nineteenth century, and the general anarchy that +prevailed after 1810, a continuation of an intensive study beyond +that period would be without value because its subject-matter would +be no longer characteristic. + +In assuming that the Audiencia of Manila was typical of all the +audiencias in the Spanish colonial system, it is not claimed that +the tribunal in the Philippines was identical in every function and +detail with those of the other colonies of Spain. It is no doubt +true that local conditions brought about pronounced differences and +that each audiencia had its own local characteristics and powers, +which differed from those of the others. The subject is so vast, +however, and the research required for a comparative study of all +these institutions would be so extensive that it would occupy more +than a lifetime to complete it. + +The main interest of this investigation does not lie in the +organization, the scope, nature, or detailed powers of the audiencia +as an institution of the Philippines, but in its larger relation +to the general field of Spanish colonial history and government. It +applies to the entire field of Spanish colonial administration. It +is related to the government of Perú, New Spain, Cuba, and other +colonies wherein there were audiencias, and where functions similar +to those of the Manila tribunal were exercised. The establishment of +all these audiencias was part of the same movement, and the act of +their creation was the product of experience gained in Spain through +efforts at centralization there. The audiencias of the colonies were +alike dependent on the Council of the Indies; common institutions +and departments of government existed in Spain for the control +and regulation of the tribunals of the colonies. All were of equal +judicial rank before the Council of the Indies, and cases appealed to +the latter from the several audiencias were treated in the same manner +and considered as having equal rank and importance. The general powers +and attributes of these audiencias were prescribed in the same code, +the Recopilación, and general laws and cédulas of reform were expedited +from time to time and sent to the tribunals of all the colonies. Such +is the basis, therefore, of the claim that this is in reality a study +of the audiencia as an institution, illustrated particularly by the +history of that of the Philippines. + +A study of the audiencia of any colony is concerned with all of +the problems that came up in its life--with legal, political, +ecclesiastical, and social conditions. It will be seen that the +audiencia was the one tribunal which regulated, checked, and often +controlled both church and state in the colonies; it represented the +king, and its duty was to see that the royal commands were obeyed; +it was the royal audiencia. Isolated as were the officials of the +Philippines, in those distant seas, removed from any but the most +remote influence of the home government, beset on all sides by hostile +forces, and dependent on themselves alone, conditions there present an +especially favorable field wherein to note the ultimate possibilities +of the authority of the audiencia. It is the design of this treatise to +examine conditions in the Philippines under the aspects noted, and to +assign them their place in the history of Spanish colonization. The +investigation of what was, beyond doubt, the most important and +many-sided institution in the Spanish administration of the Philippines +provides a means of approach to that larger field of study. + +A survey of the Spanish colonial system or a study of the government +of any one colony will reveal the fact that political life and +power there were vested chiefly in three institutions. Upon +these the peace, prosperity and security of each colony largely +depended. These institutions were the audiencia, the office of viceroy, +or captain-general, and the church. By means of the two former the +royal interests in the colony were represented, and through the latter +one of the chief aims of Spain's colonial system was effected, namely, +the conversion of infidels and the subsequent care of their souls. The +church added to its own power in various ways. No study of Spanish +colonial institutions would be complete which failed to consider the +church as a political power. It is to a consideration of these three +chief factors of colonial government, and their interrelation, that +this study will be dedicated. After a review of the circumstances +surrounding the establishment of the Audiencia of Manila, we shall +devote ourselves to a detailed study of the audiencia itself. We +shall first notice the audiencia's judicial functions as a court of +ordinary justice and secondarily as a court of residencia. The second +part of this section will be concerned with the semi-judicial and +administrative functions of the audiencia. + +The title of captain-general was primarily of military significance, +and it was exercised alike by viceroys and governors; the official +designation of the former being "my viceroy and captain-general" +and that of the latter being "my governor and captain-general." Not +all governors were captains-general. + +The viceroys in the larger divisions and the captains-general in the +smaller ones represented the king as head of the church and state +in their several districts. Because these officials were so powerful +and their duties so multitudinous, they came into contact with every +department of the government. The audiencias came into relation with +these officials most frequently. It is therefore necessary to study +the governor and captain-general first from the viewpoint of his +position as chief executive of the colony and as representative of +the king. The frequency of their relations and the identity of their +spheres of authority suggest that we give attention to the conflicts +of jurisdiction of the governor and audiencia; finally, we shall take +note of the occasions on which the audiencia assumed the government +on the event of a vacancy, noticing the laws authorizing such action +and the principles underlying them. + +The importance of the church in the Spanish colonial system has +already been alluded to. The extent of its power and the frequency +and importance of its relations with the audiencia demand considerable +attention. After studying the general phases of the relations of the +audiencia and the church, we shall see that the tribunal exercised +ecclesiastical authority of a very pronounced character. This power it +derived from two sources: first, from the authority that was entrusted +to it by virtue of the royal patronage; second, from its status as a +court of justice with jurisdiction in ecclesiastical affairs similar +to that which it had as an ordinary tribunal of justice. The above +is an outline of the plan of this book. + +That which impresses the modern student most with regard to Spanish +administrative machinery was its failure to effect deliberately the +division of powers which, with our traditions, we consider essential +to a well-balanced government. The terms "executive" and "judicial" +are employed in this book, as they were in Spain's colonies, to +designate functions rather than departments. The viceroy, as president +of the audiencia, had cognizance of certain judicial matters, and +more or less participation in them, though he was forbidden to act +as judge, especially over affairs in which he had already officiated +as executive. The audiencia likewise shared many executive functions, +yet it was not judge of its own acts, for when judgment was passed on +the administrative acts or judicial pronouncements of an oidor, either +on appeal or by review of sentence, that magistrate was expected to +retire, or to be occupied with some other case. So, while there was no +judicial department with solely judicial functions, or a legislative +or executive department, as they are known in some modern states, +there existed certain interrelations which did not entirely result in +confusion, as one might suppose. On the contrary, it may be often noted +that as a resultant of this system, men and acts of an exceedingly +well-balanced and statesmanlike character were produced. We shall see, +moreover, that they were far from meriting the disapprobation that +is frequently heaped upon so-called Spanish governmental incapacity. + +The defects which appear so conspicuous in Spanish administration were +largely due to the extremely methodical turn of the Spanish official +mind, the vastness of the empire which was to be governed, and the +lack of facilities available for efficient administration. It was a +government of expedientes, literally a government on paper. All acts, +estimates, budgets, and plans had to be drafted and written out, +duplicates and triplicates of each report had to be made, advice +had to be taken, and opinions rendered, whether the matter went any +further than the theoretical stage or not. We do much the same in our +modern age, but inventions and labor-saving devices have fortunately +spared us much of the time and effort which a few centuries ago +had to be expended to accomplish proportionate results. The apparent +unwieldiness of the Spanish colonial empire would have been materially +reduced by the use of the telegraph, cable, steamship, typewriter +and carbon-paper. + +An effort has been made that this should be something more than +a theoretical dissertation. A knowledge that certain laws were +promulgated is only half of what is necessary in a study of this +character. It is imperative to understand how these laws were applied, +and whether they were efficiently and effectively carried out. Every +phase of the audiencia's history has, therefore, been illustrated +wherever possible with one or more concrete cases, taken from actual +practice. Many of these illustrations are comparatively insignificant +by themselves, involving persons of no historical importance and +concerning matters of a seemingly trivial nature. Nevertheless, it +has been necessary to consider these matters carefully because they +were typical and true to actual conditions, and because they reveal +better than anything else could the affairs which were the concern +of the audiencia, showing the part played by the tribunal in the life +of the colony. + +In the preparation of this work due deference has been paid to the +standard authorities usually cited by writers of Spanish-American +history. So little attention has been given by students of Spanish +colonial history to the audiencia as an institution, however, that +the present writer has been obliged to depend almost entirely on the +hitherto untouched documentary material in Spain and the Philippines, +and to place almost his sole reliance upon it. This material consists +of laws, cédulas, royal orders, ordinances, correspondence, and lastly, +but most important, records of cases and actual happenings in the +form of letters, memorials, reports, complaints and contemporary +accounts. These latter convey, as nothing else can, an idea of how +the laws were carried out, what was their effect, what part the +audiencia played in the interpretation and execution of the law, +and the relations of the tribunal to the other authorities and +institutions of government. Of this sort of material there is much, +and in its light the history of the Spanish colonies and of their +institutions yet remains to be written. + + + + + + + +CHAPTER I + +THE AUDIENCIAS OF THE SPANISH COLONIES + + +The Spanish system of colonial administration was an adaptation beyond +the seas of fundamental administrative, judicial and ecclesiastical +institutions and principles which had grown up and had proved +serviceable throughout a long period of successful use in Spain. As +the audiencias and their allied officials had shown themselves to be +efficient as agencies of centralization in the isolated provinces +of Spain, so they were utilized, by the organization which they +effected, to bring the colonies nearer the mother country. When +Spain was confronted with the necessity of governing her vast empire, +it was natural that she should profit by her former administrative +experience, and make use of those institutions of government which +had proved successful at home. + +The purpose of the present chapter is to emphasize the fact that, these +institutions which had served in Spain, and were still in process +of development there, were utilized in all of the colonies. The +Philippine audiencia, which will be more particularly studied in +subsequent chapters, was not a rare and isolated exception, but +rather an integral part of a great administrative system. [1] This +will more clearly appear from a sketch of the early development of +colonial administration. + +In accordance with the terms of the concession made by the Catholic +Monarchs at Santa Fé on April 30, 1492, Columbus was given the title of +"Admiral, Viceroy, and Governor of the Undiscovered Lands and Seas of +the Indies." [2] He was likewise entrusted with the duty of proposing +three candidates for the government of each colony, and from these +three names the king was to select one. It was further provided that +the alcaldes and alguaciles for the administration of justice should +be named by Columbus, and that he should hear appeals from these +minor judges in second instance. This is a brief outline of the first +government and judiciary provided for the New World. It is improbable +that this arrangement was the product of any great amount of study +or reflection. It was formulated before the New World had even been +discovered, and this scheme, as well as the conditions of commerce +and tribute which went with it, were largely proposed by Columbus, +and acceded to by the Catholic Monarchs without anticipation of +the tremendous consequences which were to come from that voyage of +discovery and those which were to follow it. + +When Columbus undertook his second and later voyages the Catholic +rulers began to modify the conditions of the original compact +by sending royal representatives with him to take account of his +expeditions. The difficulties which Columbus had in the government of +his West Indian colony are too well known to be more than referred to +here. Through the influence of Fonseca, and the gradual realization of +the tremendous size and importance of the new dominions, the rulers +of Spain began to feel that a mistake had been made in granting to +this Genoese sailor and to his heirs the complete proprietorship and +government of this distant empire. The abrogation of the contract was a +natural consequence. It was the repudiation of a colonial system which +had been created in the dark, and formulated without a knowledge of the +conditions and problems to be met. Such an arrangement was foredoomed +to failure, and if the colonies were to be administered successfully, +reform was necessary. + +In 1507, the towns of Española petitioned the king for the same +privileges and forms of government as were possessed by the towns of +Spain. The request was granted, and municipal rights were bestowed upon +fourteen towns. These concessions included the privilege of electing +their own regidores and alcaldes ordinarios [3] and the rights of +local legislation and administration of justice. The principle was +subsequently enunciated that, + + + inasmuch as the kingdoms of Castile and of the Indies are under + one crown, the laws and the order of government of one should be as + similar to and as much in agreement with the other as possible; our + royal council, in the laws and establishments which are ordered, + must strive to reduce the form and manner of their government to + the style and order by which the kingdoms of Castile and León + are governed and ruled, to the extent that the diversity and + difference of the lands and nations permit. [4] + + +In 1511, a tribunal of independent royal judges was constituted in the +colony of Española to try cases appealed from the town magistrates +and the governor. [5] This judicial body may be considered as the +predecessor of the royal audiencia which was established fifteen years +later. The organization and purpose of the tribunal were exactly +similar to those of the courts existing in the frontier provinces +of Spain before the establishment of audiencias. The chief reason +for its creation was the need of checking the abuses of an absolute +governor. This tribunal was composed of three magistrates, who were +possessed of the licentiate's degree, designated as alcaldes mayores, +and appointed by the king. They were empowered to hear and determine +appeals from the governor and from his tenientes and alcaldes. [6] +These magistrates, acting collectively, became at once official +organs for the expression of the needs of the colony in non-judicial +matters, frequently presenting memorials to the Council of the Indies +independently of the governor. [7] The crown had already assumed +direction of the administrative and executive affairs of the colony of +Puerto Rico, on August 15, 1509, by naming a special governor for that +island. On July 25, 1511, Diego Colón, son of the discoverer, was named +governor of Española, and of the other islands and of the mainland +discovered by his father. This latter act of royal intervention did +not confirm, but rather abrogated in practice, the claims of this same +Colón to the inheritance of the provinces which had been given formerly +to his father. This act maintained the pre-eminence and authority of +the Spanish monarchs in these territories. [8] The further growth and +development of the West Indian colonies, and especially the increasing +Spanish population, called for the establishment of a more efficient +tribunal of administration and justice. This need was met in the +creation of the first audiencia in America, that of Santo Domingo, +which was established September 14, 1526. + +The law, which has been cited already, providing that the +administration of the Indies should be patterned in all ways after +the governments of Castile and León, shows very clearly the natural +influence of the early history and institutions of Spain. The +audiencias established in the colonies were at first similar in +jurisdiction and organization to those of Spain, which country had +already succeeded in governing provinces that were, in effect, almost +as isolated and as far from actual contact with the court as were the +Indies. The audiencia of Spain had proved of immense value as an agency +of direct control. It had been found satisfactory under conditions very +similar to those in the Indies, which were not regarded as foreign +possessions, but as integral parts of Castile, being the property of +the monarchs of that kingdom, and under their personal direction. + +Before proceeding with a description of the growth of the audiencia +system, it is desirable, first, to note the establishment in Spain +of two organs for the administration of colonial affairs. These +may be examined here conveniently, because their creation +antedated the institution of the audiencia in the colonies. The +first, chronologically, as well as in importance, was the Casa de +Contratación, which was created January 10, 1503. [9] This essentially +commercial body was intended at first to supervise the import and +export trade of Spain with the colonies, and to arrange for the +sale and distribution of imported articles, concessions of cargo to +individuals, the lading and discharging of cargo, and the collection of +duties. The functions of this body were soon amplified to the extent +that it was given jurisdiction over emigration to the colonies. In +1509 it was granted further authority over certain criminal cases +relating to trade, and in 1510, letrados were added to the tribunal +of the Casa for the better determination of legal affairs. + +As established in 1503, the Casa de Contratación consisted of a +treasurer, auditor (comptroller), and factor. [10] That the institution +flourished and increased in importance may be deduced from the reform +of Philip II, on September 25, 1583, whereby the above mentioned +officials were retained and a royal audiencia was created within +the Casa. This was composed of three jueces letrados and a fiscal, +besides the numerous subordinate officials who usually accompanied +the judicial tribunal. [11] Though at first it exercised some of the +functions which belonged later to the Council of the Indies, it came +subsequently to be subordinate to that body. [12] It was transferred +to Cádiz in 1717, and was suppressed by the royal decree of June 18, +1790. [13] its remaining attributions being assumed by the Consulado +of Seville. [14] + +The beginnings of the Council of the Indies may be noted in the +creation of a special committee of the Council of Castile for the +supervision of administrative affairs in the colonies. This was +eight years after the establishment of the Casa de Contratación, +when another need than the purely commercial, for which the Casa de +Contratación had served, began to be felt. [15] The inadequacy of +the system devised by the Catholic Monarchs at Santa Fé had already +become evident. The problems of administration in the colonies were +making clear the need of a more effective system of regulation. Just +as the number of suits to be tried before the old tribunal de la cort +del rey had increased to such an extent that the king could no longer +attend to them personally, so the problems of administration in the +new colonies demanded more attention and regulation than could be +provided by the administrative machinery at hand. The functions of +this new tribunal, if it may be designated as such at this time, do +not seem to have been clearly expressed at first, at least by any law +or decree now at hand, but it appears that they were advisory rather +than administrative. It soon became evident that a distinction had +to be made between the prerogatives of this council and those of the +Casa de Contratación. During the early history of these two tribunals +there was considerable conflict of jurisdiction between them. It is +probable that until the reform of August 4, 1524, was promulgated, +active supervision of colonial affairs was maintained by the Council +of Castile, both the Casa de Contratación and this new tribunal of +the Indies acting under its direction. Charles V gave new life to the +tribunal of the Indies on the above date by assigning to it definite +legislative and administrative powers, putting at its head Loaysa, +the general of the Dominican order and his own confessor. The Council +was further modified by Charles V in 1542, and by Philip II in 1571, +in the following terms: + + + It is our royal will that the said council shall have the + supreme jurisdiction in all our occidental Indies ... and of the + affairs which result from them, ... and for the good government + and administration of justice, it may order and make with our + advice, the laws, pragmatics, ordinances and provisions, general + and particular, ... which ... may be required for the good of the + provinces ... and in the matters pertaining to the Indies, that the + said our council be obeyed and respected, and that its provisions + in all, and by all be fulfilled and obeyed in all particulars. [16] + + +The Council of the Indies, as established in 1524, consisted of +a president, a high chancellor, eight members who were lawyers, a +fiscal, two secretaries and a lieutenant chancellor. [17] All these +were required to be of noble birth and qualified by experience and +ability to carry to a successful issue the high responsibilities +which they were called upon to discharge. [18] Besides there was a +corps of accountants, auditors, copyists, reporters and clerks. The +number of these last-mentioned functionaries was enormous, especially +in subsequent years, when correspondence with twelve or thirteen +different colonies was maintained. + +The Council of the Indies was the high court of appeal to which all +cases from the colonial audiencias came for final adjudication. It +was, however, not only a court of appeal in judicial matters, but +also a directive ministry for the supervision of the administrative +acts of the colonial audiencias and executives. + +The unqualified success of the Audiencia of Santo Domingo, both as a +tribunal of justice and as an administrative organ, led to the general +establishment of the institution throughout the Spanish colonial +empire. The audiencias which were created in Spain's colonies from +1526 to 1893 follow in the order of their establishment. [19] + + + Santo Domingo, created September 14, 1526, consisting of a + president, four oidores, [20] and a fiscal. + + Mexico, [21] created November 29, 1527, consisting of two chambers + or salas, a criminal and a civil, a president, eight oidores, + four alcaldes del crimen, and two fiscales for civil and criminal + cases respectively. + + Panamá, created February 30, 1535, with a president, four oidores + and a fiscal. + + Lima, created November 20, 1542, with two chambers, a civil and + a criminal, a president, eight oidores, four criminal alcaldes, + and two fiscales, as in Mexico. + + Santiago de Guatemala, created September 13, 1543, with a + president, five oidores, and a fiscal. + + Guadalajara, created February 15, 1548, with a president, four + oidores, and a fiscal. + + Santa Fé (New Granada), created July 17, 1549, with a president, + four oidores, and a fiscal. + + La Plata (Charcas), created September 4, 1559, with a president, + five oidores, and a fiscal. + + San Francisco de Quito, created November 29, 1563, with a + president, four oidores, and a fiscal. + + Manila, created May 5, 1583, with a president, four oidores, + and a fiscal. + + Santiago de Chile, created February 17, 1609, with a president, + four oidores, and a fiscal. + + Buenos Ayres, created November 2, 1661, with a president, three + oidores, and a fiscal; recreated July 2, 1778, when Buenos Ayres + was made a viceroyalty. + + Caracas, created June 13, 1786, with a regent, three oidores, + and a fiscal. + + Cuzco, created February 26, 1787, with a regent, three oidores, + and a fiscal. + + Puerto Rico, created June 19, 1831, to consist of a president, + regent, three oidores, and a fiscal. + + Havana, created September 26, 1835, reorganized June 16, 1838, + to consist of a regent, four oidores, and two fiscales. [22] + + Puerto Príncipe, transferred in 1797 from Santo Domingo, + reorganized September 26, 1835, to consist of a regent, four + oidores, and a fiscal. This audiencia was suppressed and its + territory added to that of Havana on October 21, 1853. It was + recreated on February 22, 1878, and on May 23, 1879. + + Santiago de Cuba, created September 26, 1835, to consist of + a regent, four oidores, and a fiscal. This audiencia was later + suppressed, and its territory was added to the Audiencia of Havana; + it was again reformed and added to Puerto Príncipe on February + 22, 1878. + + Cebú (Philippines), created February 26, 1886, to consist of a + president, four magistrates, a fiscal, and an assistant fiscal. + + Vigán (Philippines) created on May 19, 1893, to consist of one + chief justice, two associates, a prosecuting attorney, and an + assistant prosecutor. + + +It will be noted that the audiencias of Mexico and Lima contained +the greatest number of magistrates. They were divided into +two salas, a civil and a criminal, with appropriate judges and +fiscales for each. [23] The judges of the criminal branch were +designated as alcaldes and not as oidores. These audiencias were at +first conterminous in territorial jurisdiction with the respective +captaincies-general of those names, but they enjoyed no greater power +or pre-eminence before the Council of the Indies than the audiencias +of the lesser captaincies-general. In the words of the royal decree +of establishment, + + + there are founded twelve royal audiencias and chanceries ... in + order that our vassals may have persons to rule and govern them + in peace and justice, and their districts have been divided + into governments, corregimientos and alcaldes mayores who will + be provided in accordance with our orders and laws and will be + subordinate to our royal audiencias and to our Supreme Council + of the Indies ... and may no change be made without our express + order or that of the Council. [24] + + +Many changes were made in the territorial jurisdiction of the +various audiencias. The audiencias of Lima and Mexico, in addition +to their jurisdiction over their respective viceroyalties, exercised +governmental authority over the adjacent districts when the viceroys +were absent; the Audiencia of Lima over Charcas, Quito and Tierra +Firme (Panamá), and that of Mexico over what was later Guadalajara, +the Philippines, and Yucatán. All of these, except the latter, came +to have audiencias, with the usual powers and authority. [25] + +The first seven audiencias were founded by Charles V. Three were +created by Philip II. The audiencias of Santiago de Chile and Buenos +Ayres were established by Philip III and Philip IV, respectively. The +greater number of these audiencias was created at the time of the most +rapid extension of the tribunals in Spain; their establishment was part +of the same general tendency; they were therefore closely related. When +the audiencias of Santo Domingo and Mexico were formed, there had +been already in existence in Spain the chanceries of Valladolid, and +Granada. Thirteen audiencias were established in Spain after those +of Santo Domingo and New Spain were created in the colonies. The two +Spanish audiencias mentioned above were designated as models for the +tribunals of the Indies, and the principle was laid down that if a +necessary provision was omitted from the laws of establishment of +the colonial audiencias, "all the presidents and audiencias of those +our realms are ordered to preserve the order and practices which are +followed in the chanceries of Granada and Valladolid." [26] + +Territorially, the audiencias of Santo Domingo, Mexico, and Lima were +the nucleii from which and around which most of the other audiencias +were established. Being the first in their respective sections, +they included more territory than they could govern with facility; +thus it later became necessary to divide up their districts. Santo +Domingo held sway at first over Española, Cuba, and Puerto Rico, +with authority also over Venezuela and subsequently over Louisiana +and Florida. [27] New Granada was conceded an audiencia in 1549, +and to this province were added the possessions of Panamá when the +audiencia of that name was suppressed. The Audiencia of Mexico, created +eight years before New Spain was made a viceroyalty, had territorial +jurisdiction at first over a vast empire, which was later divided into +smaller governments with audiencias. Its limits, as defined in the +laws of the Indies, extended on both oceans from the Cape of Florida +to the Cape of Honduras, and included Yucatán, and Tabasco. [28] + +The audiencias of Guadalajara, Santiago de Guatemala, and Manila all +set definite limits to the jurisdiction of the Audiencia of Mexico. The +Audiencia of Lima had authority at first over most of Spanish South +America, but its scope was in the same manner diminished from time +to time by the establishment of the audiencias of Santa Fé, La Plata +(Charcas), Quito, Santiago de Chile, and Buenos Ayres. Before the +Audiencia of Cuzco was instituted in 1787, jurisdiction over that +ancient city and district was divided between the audiencias of Lima +and La Plata; Árica, although it belonged to the district of Lima, +was not governed under that jurisdiction, but was administered by +a corregidor directly responsible to the audiencia at Charcas. [29] +Chile and Panamá were subordinate governmentally to the viceroy of +Perú, but the audiencias were independent. [30] + +Cuba was early divided into two districts under the rule of +captains-general, those of Havana and Santiago de Cuba. [31] By +cédula of February 24, 1784, Havana was made independent of the +Audiencia of Santo Domingo in administrative matters. Aside from the +one at Puerto Príncipe, audiencias were not created in Cuba, however, +until 1835 and 1838, respectively. Prior to this, Cuba was subject to +the Audiencia of Puerto Príncipe, the successor of Santo Domingo, in +judicial matters, as the governments in Cuba were military. However, +military cases were carried before the captains-general of Havana +and of Santiago de Cuba, respectively. [32] + +Although all the audiencias had the same rank before the Council of +the Indies, both as political and judicial tribunals, those of Lima +and Mexico may be said to have been tribunals of the first class, for +reasons which we have noted. Indeed, it must be remembered that it +was the individual captaincy-general that had an audiencia, whether +the captaincy-general happened to be a viceroyalty or not. Judged +by the amount of power they exercised, there were three classes of +audiencias: those of the viceroyalties, of the captaincies-general, and +of the presidencies. On this basis of classification, it may be said +that the first-mentioned were the superior institutions. In matters +of military administration, the captains-general had the same power +as the viceroys, while the audiencias exercised less intervention in +the government than in the presidencies. In the latter, the audiencias +(and presidents) exercised governmental functions as well as judicial, +with appeal to the viceroy. Though they had no military power, +and their scope was strictly limited in financial affairs, these +audiencias actually governed their districts. This the audiencias of +the viceroyalties never did, except when they governed ad interim. + +Before proceeding with a study of the powers and duties of the +colonial audiencias, it would be well to compare them, as to extent +of jurisdiction and authority, with those which were in operation +in Spain. Were they equal? Did the colonial institutions, on account +of their isolation, exercise prerogatives which were unknown to the +tribunals of the Peninsula, or vice versa? These questions were +answered by Juan de Solórzano y Pereyra, a distinguished Spanish +jurist, oidor of the Audiencia of Lima in 1610, and subsequently +councillor of the Indies. [33] Solórzano y Pereyra illustrates +fourteen points of difference wherein the audiencias of the +colonies exceeded those of the Peninsula in power and authority, +in these matters exercising jurisdiction equal to the Council +of Castile. This, he said, was "on account of the great distance +intervening between them and the king or his royal Council of the +Indies, and the dangers which delay may occasion." Therefore, he said, +the audiencias had been permitted many privileges and powers denied +to the audiencias of Spain. The most important of these powers were +as follows: jurisdiction over residencias of corregidores; the right +to send out special investigators (pesquisidores); supervision over +inferior judges--seeing that they properly tried cases under their +authority, care for the education and good treatment of the Indians +in spiritual and temporal matters, and the punishment of officials +who were remiss in that particular; the collection of tithes; the +assumption of the rights and obligations of the royal patronage, +as well as jurisdiction over cases affecting the same, the building +of churches, the installment of curates and holders of benefices, +and the inspection and possible retention of bulls and briefs. + +The colonial audiencias were instructed to guard the royal prerogative, +and were authorized to try all persons accused of usurping the royal +jurisdiction. They were to see that officials, lay and ecclesiastical, +did not charge excessive fees for their services, limiting especially +those exorbitant charges which priests were apt to demand at burials, +funerals, marriages and baptisms. The colonial audiencias were +given supervision over espolios, [34] collecting, administering and +disposing of the properties left by deceased prelates, and paying +claims of heirs and creditors. Another duty was the restraining +of ecclesiastical judges and dignitaries through the recurso de +fuerza. [35] This authority had been permitted to the chanceries of +Valladolid and Granada, only. + +Although viceroys and governors were granted special jurisdiction over +administrative matters, they were authorized to call upon the acuerdos +[36] of the audiencias for counsel and advice whenever an exceptionally +arduous case presented itself. The audiencias were permitted to +entertain appeals against the rulings of viceroys and presidents, but +these appeals could be carried again to the Council of the Indies. In +the same manner that affairs of government belonged to the private +jurisdiction of the executive, so did financial matters, according +to Solórzano y Pereyra. In these, however, the viceroy or governor +was assisted in the solution of perplexing problems by the acuerdo +general de hacienda, a body composed of oidores, oficiales reales [37] +and contadores. On the death, disability, or absence of the viceroy or +governor and captain-general it was ordered that the government should +pass under the charge of the entire audiencia. Lastly, Solórzano y +Pereyra pointed out that while the sole duty of the Spanish oidores +was to try cases, the magistrates of the colonial audiencias were +called upon for a number of miscellaneous functions, such as those of +visitador, or inspector of the provinces, or of other departments of +the government, as asesor of the Santa Cruzada, [38] as inspector of +ships, as auditor de guerra, as asesor of the governor, and as juez +de las executorías, under commission of the Council of the Indies +to collect and remit to the government receiver all money derived +from fines and penalties imposed by official visitors (visitadores), +judges of residencia, etcetera. [39] + +With the exception of the entertainment of the recurso de fuerza, +none of the above-mentioned functions could be exercised by the +audiencias of Spain. Although the colonial audiencias were to a +large extent patterned after those of Spain, they had greater +power and exercised more extensive functions almost from the +beginning. This was chiefly owing to the added responsibilities of +government resulting from the isolation of the colonies and their +distance from the home government. The audiencias in Spain remained +almost purely judicial. There was no need or opportunity for them +to encroach upon the executive, or to usurp its functions, because +of the control exercised by its immediate representatives. In the +colonies the audiencias were themselves established as the agents of +the royal authority, with the special duty of limiting the abuses +of the officials of the crown. In this capacity, aside from their +customary duties, the tribunals exercised far-reaching authority of +a non-judicial character. + +It is desirable to point out in this connection that all the +colonial audiencias utilized the same law in common. Cédulas, +edicts, and decrees were issued to them from a common source, to +be executed under similar circumstances, or on particular occasions +when local conditions demanded such action. The great code of 1680, +the Recopilación de leyes de los Reinos de las Indias, has already +been described as containing laws, both general and particular, +for the regulation of the colonial audiencias. [40] + +In the foregoing paragraphs attention has been directed briefly to +the relations of the audiencias and executives with each other, and +with the central government. Some notice at least should be given +to the means by which the will of the executive and judiciary was +enforced and executed upon and in the local units, the provinces and +towns. We have already seen that the offices of the corregidores, +alcaldes mayores and the alcaldes ordinarios developed in Spain, +the first with jurisdiction over the larger districts, the alcaldes +mayores over the smaller areas and large towns, and the alcaldes +ordinarios in the municipalities. In a general sense, this system +was carried into the colonies; the corregidores and alcaldes mayores +were in charge of the large provinces and districts, the alcaldes +ordinarios were the judges of the Spanish towns. + +Much the same intercourse and relations existed between these officials +in the colonies as had been characteristic of the similar ones of +Spain. But there were some differences: while in Spain the alcaldes +were in most cases city judges, subject to the corregidores, [41] +in the colonies there was little or no difference between alcaldes +mayores and corregidores. They were most frequently appointed by the +executive, sometimes independently, sometimes by the assistance and +advice of the audiencia, as judges and governors of the provinces, +although the laws of the Indies provided for their appointment +by the king. The practice developed of designating them locally, +and of sending their names to Spain for confirmation. Each alcalde +mayor or corregidor resided at the chief town of his province and +combined in himself the functions of judge, inspector of encomiendas, +administrator of hacienda and police, collector of tribute, vicepatron +and captain-general. [42] He was assisted by officials of a minor +category, frequently natives, who exercised jurisdiction over their +fellows. The law also provided for a teniente letrado to assist the +alcalde or corregidor, [43] but in the Philippines there was no such +official, except at irregular intervals in the Visayas. + +These chiefs of provinces were responsible to the audiencias +in matters of justice and to the viceroys or captains-general +in administrative affairs. In Indian relations and in questions +involving encomiendas they were subject to the executive, who had +jurisdiction in first instance, with appeal to the audiencia. The +tribunal could grant encomiendas in default of the regularly appointed +executive. In financial matters the corregidores and alcaldes mayores +were responsible to the executive, but they acted as the agents of +the treasury officials (oficiales reales) in the collection of the +revenue. In their provinces they supervised the building of ships, +the construction of roads and bridges, the repartimientos or polos +[44] of Indians, and the planting of tobacco when the tobacco monopoly +existed in the Philippines. In these matters they were responsible to +the governor, viceroy, or superintendent, and to the various juntas +reales and committees, of which at least one oidor was always a member. + +Tributes from the Indians, tithes from the encomenderos and other +kinds of local taxes were collected by the alcaldes mayores and +corregidores. Acting for the vicepatron, these officials represented +the subdelegated authority of the king over the monasteries and +churches of their provinces. They officiated at the formal bestowal of +benefices, they were expected to maintain harmonious relations with +the priests and friars in their provinces, and to check, by their +personal presence and intervention, if necessary, any tendency on +the part of the churchmen to abuse the Indians or to impose upon them. + +In like manner they were supposed to prevent the ecclesiastical judges +from exceeding their power, and particularly from transgressing +the royal jurisdiction, which frequently occurred in the earlier +years when that authority had not become clearly defined or firmly +established. As the churchmen with whom these officials had to deal +derived their authority from the higher prelates and the provincials of +the orders and often acted by their direction, their opposition to the +local officials of the civil government was frequently so effective +that the latter were obliged to appeal to the audiencia. The latter +tribunal had the power necessary to deal with these cases, and to +restrain the offending churchmen, by bringing pressure to bear upon +their prelates and superiors. + +The provincial governors also had certain military duties. In the +northern provinces of New Spain they had charge of defense, with +responsibility to the viceroy. [45] In the Philippines, however, +and in certain parts of New Spain, where the captain-general took +the place of the viceroy, alcaldes mayores and corregidores acted +as lieutenants of the captains-general, exercising authority of a +military character. [46] They were required to defend their provinces +and districts against invasions, insurrections, Indian outbreaks, +and disturbances. They were authorized to impress men for military +service. Local conditions in Mexico, Perú, Central America, and +the Philippines caused some differentiation in these matters. This +description will serve to convey an impression of the nature of the +duties of these officials and the way in which they acted as the +agents of the captain-general, viceroy, and audiencia. [47] + +It has been already pointed out that the alcaldes mayores and +corregidores had extensive judicial duties; a mere restatement of +that important fact will suffice at this time. In subsequent chapters +we shall study in detail numerous illustrations and instances of the +judicial functions of the provincial judges. It has been noted also +that the alcaldes ordinarios were the judges of the Spanish towns. So +they were in the Philippines, but, as there were only four or five +Spanish towns in the archipelago, the alcaldes ordinarios do not +assume great prominence in this study. These alcaldes were usually +chosen by the ayuntamientos (municipal councils), though they were +appointed on some occasions by the governors. As the Spanish towns +enjoyed special privileges conferred by the king, their judges were +not a part of the regular judicial hierarchy, but were dependent on +their ayuntamientos or the governor. However, an oidor was usually +delegated to inspect the work of the alcalde ordinario. + +With this introductory view of the general field of Spanish colonial +administration, and this presentation of the characters and elements +which are to assume important roles in this discussion because of +their frequent relations with the audiencia, we may enter upon a +more detailed study of a single institution. It has been emphasized +especially that the audiencia in the Philippines was only an integral +part of the governmental machinery used in the colonial empire of +Spain. It is clear, therefore, that we are not studying an isolated +tribunal, for every royal cédula promulgated to the Philippine +audiencia was in some way related to those issued to ten or eleven +other audiencias of equal status or similar character. Although the +Philippines were apart physically, this institution, with its relation +to the provincial and colonial governments on one hand, and the home +government on the other, brought the colony as close as possible to +Spain, and to the other colonies. + +It is certain that the growth of audiencias was a part, not +only of colonial, but of Spanish historical and institutional +development. These institutions served the same purpose in the +colonies that they accomplished in Spain; they were utilized for the +administration of justice, and to check the excesses and abuses of +officials. They were important because they facilitated a greater +degree of centralization. They converged the provincial, colonial, +intercolonial and home governments in the same manner as the audiencias +in Spain brought about unity in provincial and national judicial +administration. + + + + + + + +CHAPTER II + +THE ESTABLISHMENT OF THE AUDIENCIA OF MANILA (1583-1598). + + +The conditions which determined the establishment of an audiencia in +the Philippines differed little, if at all, from those in Spain's +other colonies. All of Spain's dependencies were situated at great +distances from the mother country; the Philippines were farther away +than any. Furthermore, the Philippines were isolated and could not +be successfully maintained, if dependent on, or identified with any +other colony; distance and other factors which we shall note made +undesirable and impracticable a continuance of established relations +with New Spain. If, however, the governor of the Philippines came +to be almost absolute in his authority, his absolutism differed in +degree rather than in kind from that of the governors and viceroys +of other colonies. The contiguity of China and Japan, the constant +danger of military invasion and naval attack by outside enemies and +the dependence of the colony on the commerce of China also made the +case of the Philippines somewhat different from that of the colonies +in America. In general, the situation in the Philippines called for a +distinct audiencia with the same powers and functions as were exercised +by the audiencias of the other colonies. + +A system for the administration of justice in the Philippines had +been definitely established and organized before the audiencia +was inaugurated in 1584. Many prominent features of the judicial +and administrative systems of Spain and America had been already +introduced into the Islands. At the head of both judicial and +administrative affairs was the governor and captain-general, who +was practically absolute, and whose authority was final except +in certain matters of litigation which could be appealed to the +Audiencia of Mexico. Subordinate to him were the alcaldes mayores +and corregidores, whose functions have been already noted. In the +Philippines, as elsewhere, the latter officials acted as magistrates +and governors of provinces, combining judicial and administrative +attributes. Directly subordinate to them were the encomenderos, whose +holdings, including lands and Indians, may be said to have constituted +the unit of the Spanish colonial land system until the close of the +eighteenth century. [48] As in Spain, so in the Spanish towns of the +Philippines, there were alcaldes ordinarios, or municipal judges, +elected by the citizens in some cases, or appointed by the governor +in others. [49] + +But the system as established was defective in many respects. The +governor and captain-general was chief judge, executive, and +commander of the military forces. In him were centralized all the +functions of justice and government, exercised in the provinces +through the alcaldes mayores and corregidores. The latter officials +he appointed ad interim, supervised their administrative duties, +and heard judicial cases appealed from them. He likewise exercised +supervision over the oficiales reales, who were entrusted with the +collection, care and expenditure of the funds of the colony. [50] +During the period before the establishment of the audiencia, the +governor exercised complete control over all branches and departments +of the government,--provincial, municipal, and insular--in matters +of justice, administration, and finance. The centralization of +all this authority in the person of one official made his position +responsible and powerful, but capable of much abuse. And it was the +abuses incidental to the exercise of absolute power by the governor +that led to the establishment of the Audiencia of Manila. + +Probably the most important indirect reason for the establishment +of an audiencia in the Philippines may be noted in the abuses +connected with the administration of the encomiendas. These may +be attributed both to the powerlessness and inefficiency of the +governors, and to their cupidity and deliberate favoritism to the +encomenderos. As a result of the rapid spread of these encomiendas, +[51] settlements, or agricultural estates, for such they were, +and their location in distant and widely separated parts of the +Archipelago, the encomenderos came to have increased responsibilities +and powers. They were far removed from the central authority at +Manila. They were infrequently inspected by the alcaldes mayores +and corregidores in whose districts they were situated. Indeed, +the encomiendas had spread so rapidly in the Philippines that the +governmental machinery provided by Spain was unable to provide for +them. In 1591, for example, there were 267 encomiendas containing +667,612 souls. These were supervised by twelve alcaldes mayores. [52] +One hundred and forty priests were provided to minister to this large +congregation of natives. The Philippine government, with an autocratic +military governor at its head, had been originally designed for one +settlement or province, and not for an extensive military possession, +distributed over a widely separated area, with insufficient means of +communication and transportation. Under the conditions outlined above, +the encomenderos were permitted to forget the benign purposes for +which they had been originally entrusted with the care and protection +of the natives. The Indians on the encomiendas were reduced to the +condition of slaves. They were mistreated, overtaxed, overworked, +cheated, neglected, flogged, and abused. [53] Their protectors had +become their exploiters. The churchmen who were supposed to act as +their guardians and spiritual aids were insufficient in number to +render effective service. Many of the latter served the interests +of the encomenderos, and the latter were decidedly unfavorable to +the introduction of more priests. The local officials of government +and justice were in most cases too far away to care for and protect +the natives, or even to visit the more remote encomiendas in their +districts. Moreover, many of them were themselves encomenderos, +perpetrating abuses on their own tenants, and accordingly little +inclined to sacrifice their own interests for the protection of the +natives on other encomiendas. Finally, the governor, located at the +distant capital, was possibly ignorant of the real state of affairs; +at any rate, he failed to enforce the laws which commanded humane +treatment of the natives, leaving to the encomenderos, the alcaldes +mayores, and corregidores the administration of the provinces and +the supervision of the encomiendas. [54] + +Efforts had been made for the correction of these abuses and to +bring about a more effective control of the encomiendas by the +governor. Early in the history of the Islands the king had empowered +governors and viceroys to grant encomiendas for life, with thirty +years' remission of tribute, to those who had participated in the +conquest. Legaspi and Lavezares, the first two governors of the +Philippines, had given encomiendas without limit to favorites, +relatives, and friends; consequently, when Sande became governor, +he was obliged to direct much of his attention to the eradication of +the resultant evils, and he attempted to establish the encomiendas on +a profitable and honest basis. He dispossessed many of the holders +of these large tracts, and reserved them for the crown, as royal +encomiendas, thus creating a revenue for the newly established and +financially embarrassed government. [55] Sande made royal many of the +hitherto unprofitable encomiendas which had been in private hands. [56] +On account of these acts Sande became very unpopular in Manila, and +so unpleasant were his relations with the residents that, having +no protection or recourse, he was obliged to give up his command, +practically driven from the Islands by his enemies. + +The only person in the Philippines who exercised any sort of check +on the governor was the bishop, with whom he was ordered to consult +frequently. These consultations were often productive of bitter +quarrels. The first prelate of the Philippines, Bishop Salazar, +arrived in 1581, and throughout his ecclesiastical administration +exercised influence of a far-reaching character. It was he who first +showed the need of a royal audiencia to check the encroachments of +the governor on the prerogatives of the church, for the protection of +the natives, and for the safeguarding of the royal interests. Bishop +Salazar was a determined opponent of Governor Sande, whom he accused +of excessive indulgence in trade and the extortion of large sums +from the encomenderos. On June 20, 1582, he wrote to the Council: +"if I were as rich as Governor Sande, I would engage to pay any sum of +money." He also testified that "the government here is a place for the +enrichment of governors; they carry away as much as 400,000 ducats, +knowing that they will have to pay a share of it at the residencia, +but they steal enough to do that also." [57] + +The government of the Philippines, prior to the establishment of the +Audiencia of Manila, during the period 1565-1584, was subordinate +to the viceroy and to the audiencia in Mexico. The time required +for the transmission of documents and correspondence, the fewness of +ships available for the voyage between the Philippines and New Spain, +and the unsatisfactory means of communication resulting therefrom, +seriously inconvenienced the residents of the colony. In matters +of government and justice appeals had to be taken to Mexico. This +proceeding involved great loss of time and expense, and was especially +inimical to the administration of justice. The assignment and +regulation of encomiendas, the supervision of financial affairs, +the control of the Chinese trade, the dispatch of the galleons to +New Spain, and the assignment of cargo-space on these ships, were +all matters which, at that great distance, and at that time, called +for divided control. The execution of all these duties was too great +a charge for the human frailties of one man; the governor could do +it neither honestly nor well. The necessity was apparent of having a +central government in Manila which would be self-sufficient in itself; +that is, independent of New Spain, and at the same time capable of +repairing its own defects. + +The relations which existed between the Manila government and +the authorities of New Spain are illustrated by a letter which +Governor Gonzalo Ronquillo de Peñalosa wrote a month later than +the correspondence above alluded to. In this letter he announced +the arrival of a ship from Mexico, which, he said, bore nothing +but charges against him. These complaints, he alleged, had been +formulated by agents of Dr. Francisco de Sande, his predecessor, +whose residencia he had conducted and whom he had deprived of his +office as governor. Ronquillo wrote that + + + nevertheless, Sande has been received in that royal audiencia of + Mexico as oidor, as a result of which all those who love justice + may well despair. They meddle with my government from Mexico, + giving orders to my corregidores without consulting me, and + addressing private individuals in regard to the supplies, directing + them to keep watch over this or that matter; they impose grave + penalties upon me, and no matter how small the affair may be, they + refuse to listen to me or to hear my side of the question. [58] + + +He concluded by pointing out the inconsistency of his position, +subject as he was to Sande, the man whom he had displaced because +of the former's unfitness to occupy the post of governor. Although +Governor Ronquillo de Peñalosa did not ask for an audiencia on this +occasion, he did petition for an educated assistant to aid him in the +administration of justice. "The trouble here," he wrote to the king, +in the letter above quoted, "is that the people are of such a nature +that, at the same time when justice is done to one, an enemy is made +of another person." The rule of Ronquillo de Peñalosa as governor was +distinctly typical of the possibilities of an absolute executive, far +removed from the restraining influence of the courts, with scarcely +any limitation upon his operations. Appointed as he had been for +life, with proprietary attributes, and with the power of naming his +successor, Ronquillo de Peñalosa was the first governor sent out from +Spain in pursuance of the policy of entrusting frontier commands to +military men who were fitted by profession and experience to deal with +situations which demanded the qualities of the soldier, rather than +those of the administrator and politician. An attempt thus seems to +have been made to remedy the ills which had been characteristic of the +administration of Lavezares and Sande by entrusting the governor with +more centralized power--an attempt to correct the evils of absolutism +with the mailed fist and more absolutism, backed by military power. + +The bishop, who at this time kept the court well informed of the +weaknesses of the government, as they appeared to him, sent many +complaints against Ronquillo de Peñalosa, as other churchmen had +done against former governors. Not only did the bishop himself write +repeatedly, but he influenced the municipal and ecclesiastical chapters +of Manila to send protests against the governor's misrule. It was +largely owing to Salazar's influence that Captain Gabriel de Rivera +(or Ribera) was sent to Spain with a petition signed by most of the +influential men of the colony, asking for various reforms. Among these +the establishment of a royal audiencia was especially requested. [59] + +On the occasion of Ronquillo's death in 1583, the bishop called +attention to the straits into which the colony had fallen as a +result of the tyrannical methods of the deceased governor. [60] He +described Ronquillo's efforts to prevent residents from appealing to +the audiencia and viceroy of New Spain. He stated that the Indians +had been unjustly treated by the encomenderos and alcaldes mayores, +for when appeals had been made to the governor, the latter, on a +plea of being too busy to occupy himself with such minute details, +had ordered the alcaldes mayores to settle the questions at issue +without disturbing him. Ronquillo was said to have engaged extensively +in commerce, monopolizing the ships to the exclusion of the merchants, +and forcing large loans from the officials and residents, who did not +dare to refuse him, lest all their privileges be taken from them. He +had established private encomiendas in nearly every town in Luzon, +appropriating the income therefrom, instead of turning the proceeds +into the royal treasury. [61] This the prelate conceded to be in +accordance with the conditions of the governor's appointment, but +it was nevertheless unjust, as the privilege of holding encomiendas +was denied to other officials, and the treasury of the colony was in +need of the revenue which had been daily enriching the governor. The +bishop accused the governor of seizing Indians, placing them en +encomienda wherever and whenever he found them, irrespective of +whether they were already free, or whether they belonged on other +encomiendas. These acts, he said, had caused the Indians to be +dissatisfied and rebellious, and he evidently was of the opinion that +a revolt was impending when he penned this memorial. "Many times I +have prayed," he wrote, "that God should close the natives' eyes +in order that they may not see the weakness and the little power +with which we might resist them in case they should arise to put +down these evils." The bishop closed this memorial with a vigorous +protest against the continuance of the hereditary principle in the +succession of governors in the Philippines. He made the general +recommendation that in the future governors should be appointed by +the king, with a view to securing men of administrative and executive +ability. He brought forth strenuous objections to the accession of +the ex-governor's nephew. Diego Ronquillo de Peñalosa, who was not +fitted to occupy the post of governor. If the latter assumed the +government, the bishop could see nothing in store for the colony but +a continuation of the evil days which had been extant throughout the +administration of the elder Ronquillo, "who had spent all his time +in gathering wealth for himself by means of trade, shutting his eyes +and ears to those who asked justice of him." Salazar expressed the +opinion that "had Gonzalo Ronquillo de Peñalosa spent as much of his +time in making conquests and discoveries as he had in making packages +[of merchandise], the prosperity of the Islands and the general +welfare would have been his chief aim." [62] + +Although the decree establishing an audiencia in the Philippines +was promulgated before the above memorial reached court, there is no +question but that the influence of Bishop Salazar did much towards +bringing about the creation of a tribunal in the Islands. Indeed, +Salazar has been given all the credit for this by more than one +authority. [63] While the bishop did exert an important influence +in bringing about this change, the support which he received +from residents of the colony was also of immense advantage. Many +individuals, aggrieved by the abuses of the executive, wrote +vigorous complaints against "the tyranny of an absolute governor, +who alone and unchecked, reserves to himself excessive power." Their +letters emphasize the injustice of having appeals carried to Mexico, +"where the people of Manila never get their deserts, and where they +suffer on account of the distance." Various encomenderos had been +wronged by the acts of the governor in dividing their encomiendas, and +reducing the number of Indians thereon; they had appealed to Mexico, +and after waiting over two years, had despaired of ever getting any +return for the money and the time which they had spent in litigation +at the distant capital. As a possible means of relief they requested +the establishment of a royal audiencia at Manila. [64] + +Another person who exerted considerable influence toward the +establishment of an audiencia in the Philippines was Captain +Gabriel de Rivera, who went to Madrid for that purpose. He was +the first procurador general de las islas del poniente, and it was +his duty to represent at court the needs of the colony, and of its +inhabitants. [65] Rivera acted as the personal agent of Salazar in his +advocacy of the establishment of an audiencia, and it was largely due +to his efforts that the institution was established when it was. In +his memorial of February 16, 1582, Rivera criticized the existing +administration in the Philippines, the proprietary governorship, and +the control over commerce which the governor had exercised. The latter +had levied the almojarifazgo and other customs duties in defiance of +the royal cédulas forbidding them, and without consulting the wishes +of the merchants or officials. Rivera alleged that the almojarifazgo +and the alcabala were ruining the commerce of the Islands. [66] +His memorial treated extensively of the abuses which had occurred in +the administration of the encomiendas, and he pointed out numerous +defects in the judicial system of the colonies. + +He suggested the establishment of a royal audiencia to consist +of three judges, having criminal and civil jurisdiction, without +appeal to any other tribunal than the Council of the Indies. The +audiencia as outlined by him was to have administrative powers as +well as judicial; it was to govern as a commission, with a governor +at its head, chosen for a term of six years. [67] This scheme, he +said, if put into operation, would result in no increased expense +to the crown or colony. He proposed the abolition of the three +oficiales reales, suggesting the substitution of three oidores in +their places, thus extending the jurisdiction of the audiencia to +matters of finance. The new tribunal should likewise take cognizance +of the assignment of encomiendas, and see that in all cases the royal +will was obeyed. The audiencia should exercise supervision over the +alcaldes mayores in their relation to the encomiendas, with a view to +remedying the existing abuses and seeing that justice was done to the +Indians. The audiencia should hear cases appealed from the alcaldes +mayores and corregidores instead of allowing these suits to be heard +by the governor or sent to Mexico. Rivera also urged that there should +be a special defender of the Indians as a part of the audiencia. [68] + +Enough has been noted of the evils of the government as it existed +before the establishment of the audiencia to understand the reasons +for the creation of the tribunal. The whole matter summarizes itself +in the excesses of the governor, and the necessity of protecting +all classes of society from his absolutism. These abuses called for +the establishment of a tribunal nearer than New Spain, which would, +in a safe and expeditious manner, impose the necessary limitations +upon the governor, insure an equitable collection and an economical +expenditure of the public revenue, and bring about particularly +the elimination of official corruption. It was desirable to protect +the merchant in his legitimate business, to insure stability in the +relations of church and state, and to obviate the existing evils in +the administration of the provincial governments. The latter meant +the assignment of encomiendas in accordance with the law to deserving +individuals instead of to friends and relatives of the governors, or +to other prominent officials of the colony. It also meant that the +natives on these encomiendas should be protected from the rapacity +of the encomenderos. It was realized that an effort should be made +to insure the imparting of religious instruction to the natives +in partial return for tribute paid by them. Finally, it meant the +establishment of a tribunal which would have power to enforce the +law prescribing that the alcaldes mayores and corregidores should +exercise faithful supervision over these matters which were within +their jurisdiction. A tribunal was needed, not merely to hear such +appeals as might come to it by process of law, but with authority to +intervene actively in affairs of government, checking the abuses of +the governor and protecting the community from his absolutism. + +The proposition to establish an independent audiencia in Manila +was opposed by the viceroy and audiencia of New Spain. The latter +tribunal wrote a letter of protest to the Council of the Indies, +demanding that in matters of government and justice the colony of +the Philippines should continue to bear the same relations to the +viceroyalty of New Spain as did Guadalajara. [69] Rivera answered +these objections in a special memorial, stating that the isolation +of the Philippines alone justified the establishment of an audiencia +and an independent government. He also pointed out that the nearness +of Japan and China and the necessity of dealing with them required the +presence of a sovereign tribunal in Manila. He asserted that the colony +could deal directly with the Council of the Indies more profitably +than through the Audiencia of Mexico. The latter mode of procedure +was indirect and cumbersome and it exposed litigants to the meddling +of the oidores of Mexico in matters which they did not understand. [70] + +Finally, the Audiencia of Manila was established by decree of Philip +II on May 5, 1583, in the following terms: + + + Whereas in the interests of good government and the administration + of our justice, we have accorded the establishment in the city of + Manila in the Island of Luzon of one of our royal audiencias and + chanceries, in which there shall be a president, three oidores, + a fiscal, and the necessary officials; and whereas we have + granted that this audiencia should have the same authority and + preeminence as each one of our royal audiencias which sit in the + town of Valladolid and the city of Granada of these our realms, + and the other audiencias of our Indies: now therefore we order + to be made and sent to the said Island our royal seal, with which + are to be stamped our decisions which are made and issued by the + said president and oidores in the said audiencia. [71] + + +The jurisdiction of the tribunal, it is to be noted, extended +throughout the Island of Luzon and the rest of the islands of the +Archipelago, as well as over "the mainland of China, whether discovered +or yet to be discovered." + +The decree which provided for the foundation of the Audiencia of +Manila consisted of three hundred and thirteen sections. Although +the audiencia was subsequently abolished for a few years, it was +re-established in 1598 and these articles were again utilized. It +is therefore worth while to notice the most important provisions +of the law of establishment, which was to serve as a foundation +for the audiencia during a period of approximately three hundred +years. The first thirty-eight sections were devoted to the creation +of the tribunal, to a definition of its jurisdiction over civil +and criminal cases, and to a determination of the proper method of +procedure in them. The audiencia was to have authority to try cases +of appeal from gobernadores, alcaldes mayores, and other magistrates +of the provinces; it also had jurisdiction over civil cases appealed +from the alcaldes ordinarios of the city and original jurisdiction +over all criminal cases arising within five leagues of the city +of Manila. Appeals were to be tried by revista (review) before the +tribunal. Cases of first instance (vista) were not to be tried in +the tribunal, excepting those to which the government was a party, +or the above-mentioned criminal cases. The judgment of the audiencia +was usually to be final in ordinary suits, and always in criminal +cases. Those involving the government, and civil suits exceeding a +certain value were appealable to the Council of the Indies. Notice of +appeal to the latter tribunal had to be served within one year after +the objectionable decision was rendered, and the party appealing +the case was obliged to post financial bonds covering the expenses +of suit in case the final judgment were not favorable to him. The +decision of the audiencia was to be executed in all cases, even +though an appeal to the Council of the Indies had been made. The +procedure followed in the chanceries of Valladolid and Granada was to +be enforced in the Audiencia of Manila except when the contrary was +especially ordered. Investigations might be made by one judge, but +the concurrence of two was necessary for all decisions involving the +reversal of a former judgment, or in cases wherein a certain amount +was at stake. In the latter case, an assistant judge might be chosen +from outside the audiencia to assist the regular magistrate. + +The audiencia was forbidden to act alone in the selection of judges +of residencias or pesquisidores; it was commanded not to interfere +with governors of provinces, but it had the right, when, charges +had been made by private individuals, to conduct investigations of +governors' official conduct. The audiencia was empowered to investigate +the judges of provinces. Magistrates were forbidden to hear cases +affecting themselves or their relatives, and when a case involving +more than one thousand pesos was before the tribunal, and no oidor was +eligible to try it, an alcalde ordinario might serve in the place of a +regular magistrate, with appeal to the Council of the Indies. Criminal +charges against the oidores were to be tried by the president, with +the assistance, if need be, of such alcaldes ordinarios as the latter +might select. No relative of the president or of an oidor could be +appointed legally to a corregidor-ship or to an encomienda. Oidores +were eligible for appointment by the president from time to time to +inspect the administration of justice and government in the provinces. + +Oidores were forbidden to receive fees from or to act as advocates for +any private person, and they could not hold income-yielding estates in +arable land or cattle. Oidores were forbidden to engage in business, +either singly or in partnership, nor could they avail themselves +of the compulsory services of Indians under pain of deprivation of +office. Any person could bring suit against an oidor. As noted above, +such cases would either be tried by the president or by an alcalde +ordinario on the president's designation. Such cases might be appealed +to the Council of the Indies. + +The audiencia, according to the terms of its establishment, had +extensive authority over matters of government. In case of the +death or incapacity of the president, the audiencia was to assume +control of affairs, the senior oidor filling the post of president +and captain-general, with special charge over military matters. Under +such circumstances the administrative and executive functions were +to be administered by the audiencia as a body. The governor, who was +also president of the audiencia, was ordered to make a complete report +annually to the Council of the Indies on the state of the government +and the finances of the colony, including an account of the gross +income and expenditures, a survey of conditions of the encomiendas +and corregimientos, as well as a report on the conduct of officials, +including oidores. In fact, all matters that came regularly under the +care of the executive were to be covered in the annual report of the +governor and captain-general of the Islands. + +The president was empowered to delegate the oidores, in turn, to make +tours of inspection in the provinces. The magistrates, as visitors, +were to inquire into the character of service rendered by the alcaldes +mayores in the administration of government and justice. They were to +note the state of the towns and their needs, the means taken for the +construction and preservation of public buildings, and the condition +of the Indians on the encomiendas. They were to see whether they were +faithfully and efficiently instructed in religion, or whether they +were permitted to live in ignorance and idolatry. Reports were to +be made by the visitors on the state of the soil, the condition of +the crops and harvests, extent of mineral wealth and timber in the +provinces under investigation, weights and measures, and in fact, +everything that had to do with the general welfare. On these trips +the oidores were authorized to take such action as they felt to be +necessary. Two oidores were also required to make weekly inspections +of the prisons of the colony. + +The decree of establishment also directed that certain phases +of ecclesiastical affairs should claim the attention of the +audiencia. The chief duty of the tribunal in that regard was to keep +the ecclesiastical judges from exceeding their authority, and the +practices of the audiencias of Spain were especially prescribed as +a precedent for the local tribunal. The audiencia was charged with +supervision over the assignment of benefices, and especially with the +settlement of the property and estates of bishops and archbishops who +died in the Islands. The audiencia was ordered to permit nothing to +be done which would be in prejudice of the rights and prerogatives of +the church. The tribunal was instructed to assist the prelates on all +occasions when they petitioned for royal aid. It was also to see that +properly accredited bulls were read and applied in the Spanish towns, +but not in the native villages. + +As noted above, suits involving the royal treasury and the collection +of money for the government were to be reviewed and decided before any +other that might come up in the royal audiencia. It was the duty of the +fiscal to prosecute these cases in the interest of the government. At +the beginning of each year the president and two magistrates were to +audit the reports of the oficiales reales, and if these reports were +not duly and properly rendered, the salaries of these officials were +to be withheld. After auditing the accounts the committee was to count +the money in the royal treasury. The oidores who did this extra work +were to receive an allowance of twenty-five thousand maravedís (about +56 pesos) in addition to their regular salaries. The authorization of +the audiencia was necessary for the payment of extraordinary expenses +not appearing in the regular budget and these disbursements were +made subject to the later approval of the Council of the Indies. The +audiencia was held responsible in these matters by the Council. Full +reports of expenditures made on the responsibility of the audiencia +were to be made to the Council, and the oidores were held accountable +in their residencias for their votes cast in the junta or acuerdo de +hacienda, as the committee was called. + +The audiencia was given supervision over the administration of +the estates of deceased persons; it was to examine the accounts of +executors and see that the wills of the deceased were faithfully +executed and that all was done in accordance with the law. For this +purpose an oidor was delegated each year with authority to dispose +of these cases in the name of the audiencia. In a subsequent chapter +the duties and activities of this administrador or juez de bienes de +difuntos will be enlarged upon. + +Considerable space in this decree was devoted to prescribing the +rules for the trial of cases involving Indians, with a view to +securing justice both in their administration by the encomenderos +and in the supervision which the alcaldes mayores exercised over the +encomenderos. The provision was made that "our said president and +oidores shall always take great care to be informed of the crimes +and abuses which are committed against the Indians under our royal +crown, or against those granted in encomiendas to other persons by +the governors." The audiencia was directed to exercise care that +"the said Indians shall be better treated and instructed in our Holy +Catholic Faith, as our free vassals." + +The audiencia was required to exercise care that suits involving +Indians were neither lengthy nor involved, that decisions were +reached promptly and without unnecessary litigation, and that the +rites, customs, and practices to which the Indians had always been +accustomed should be continued in so far as was practicable. The +audiencia and the bishop were to see that there was a person appointed +in each village to give instruction in religion. Alcaldes mayores were +ordered not to dispossess native chiefs of their rule or authority; +they were, on the contrary, to appeal cases involving them without +delay to the audiencia, or to the visiting oidor. The audiencia was +to devote two days a week to hearing suits to which Indians were +parties. Encomenderos were to be protected by the audiencia in the +possession of their encomiendas. + +A proportionate amount of attention in this cédula is devoted to +outlining the duties of the fiscal, who, from many points of view, was +the most important official directly connected with the tribunal. It +was his function to appear as prosecutor for the government in all +cases tried before the audiencia, and he was forbidden to serve as the +advocate of any private person during his term of office. He should +devote his attention especially to matters involving the exchequer. He +was to prosecute all cases of appeal from the alcaldes mayores and +corregidores on behalf of the government, and "he was to take care +to assist and favor poor Indians in the suits that they have, and to +see that they are not oppressed, maltreated, or wronged." The fiscal, +ordinarily, was not to prosecute unless it were on the complaint of +some person, but in cases of notorious injustice, or when judicial +inquiry was being made, he could take the initiative on his own +account. It was his duty to perform any and all legal acts which were +consistent with his position, and which were designed to bring about +justice or to secure the royal interests. + +The remaining sections of this decree, and, in fact, the greater part +of it, are devoted to establishing the duties of the fiscal and the +minor officials of the audiencia, to fixing a tariff of fees to be +charged for notarial and other legal work and to the determination +of other matters which are of no great consequence to the purposes +of this chapter. + +Among the minor officials attached to the audiencia were the alguacil +mayor and his two deputies. These were to act as the executive officers +of the court and were empowered to make arrests, serve papers and +execute similar functions. Their duties, as a whole, were much like +those of the English or American constable or sheriff. They might +arrest, on their own initiative, persons whom they caught in crime, as, +for example, those playing forbidden games of chance, or indulging in +immoral practices, typical particularly of the Chinese. The alguacil +was responsible for the maintenance of the prison of the audiencia; +for this purpose he could appoint a certain number of jail-wardens. + +There were also clerks of court and notaries, chosen by royal +appointment. Their duties were those customarily required of such +officials, not differing from those of today. The audiencia likewise +had official reporters, similar to the court reporters of the present +day. Advocates and attorneys practicing before the audiencia had +to fulfill certain prescribed requirements in regard to learning, +training, and general ability. Receivers, bailiffs, jail-wardens and +interpreters each received their due amount of space and attention +in this cédula. The interpreters were to assist the Indians who +were defending themselves in a Spanish-speaking court. Among their +duties was the translation of the testimony of witnesses, of the +questions of attorneys and the rulings of the courts into the native +dialects, or into the Spanish language, as the circumstances might +require. These interpreters were also required to assist the natives +in the formulation of legal documents. All these minor officials were +to be regulated in the collection of fees by a legal tariff. Finally, +the audiencia was provided with an archive within which were to be +deposited and kept the great seal of the government, and all official +papers, including records of cases and official acts. + +The new audiencia having been provided for, Santiago de Vera, the +recently appointed governor and captain-general of the Islands and +president of the new tribunal, arrived at Manila on May 28, 1584. In +accordance with the new law, it was his duty to govern the Philippines +in the capacity of executive and military commander, and at the same +time preside over the audiencia in its respective judicial, advisory, +and administrative capacities. The first session of the audiencia was +held on June 15, 1584. [72] The new tribunal was officially brought +into being with much pomp and ceremony, including a procession of +the president and magistrates in their robes of office, and the +celebration of divine service in the cathedral by the bishop. The +president and each of the oidores subsequently made lengthy reports +to the Council of the Indies on the inauguration of the tribunal. + +The most direct and striking consequence of the establishment of +the audiencia in Manila was the discord which it engendered between +the various officials and functionaries of the government. Whereas, +before the inauguration of the tribunal, the chief ill of the colony +had been the unrivaled absolutism and the high-handed proceedings +of the governor, now, with the division of power newly effected, +the creation of new departments, and the checking of one official +against another, strife and contention took the place of despotism. + +There were but few misunderstandings between the oidores over their +judicial duties. The functions of the audiencia, as a court, were +clearly defined and distinctly understood. Although appeals were +made from the audiencia to the Council of the Indies, as appeals +are always made from a minor court to a superior tribunal, there +was little dissatisfaction with the body in the exercise of its +purely legal functions. Its value in protecting the natives on +the encomiendas from the tyranny of their masters, the facility +rendered to the administration of justice by making appeal to New +Spain unnecessary, and the advantage of having immediately at hand +a tribunal with plenary powers were readily recognized. + +The chief objection to the tribunal developed as a result +of the audiencia's interference in matters of government and +administration. Disputes arose between the governor and the oidores, +and among the oidores themselves. The lack of experience in the +local field of the president and magistrates may have been one of +the causes of the unsatisfactory conditions immediately following +the establishment of the audiencia. Another and possibly a more +important reason lay in the nature and wording of the articles of +establishment. A certain amount of confusion existed in the minds +of all as to the extent of power which the audiencia should have in +governmental and ecclesiastical affairs. No definite distinction had +been drawn between the powers of the president and those of the oidores +in matters of government, and the former at once accused the latter +of infringing upon the jurisdiction of the executive. The oidores, +on the other hand, claimed that their advice should be taken in all +matters of appointment, defense, patronage--both ecclesiastical +and secular--finance, commerce and interior administration. They +began to intervene actively in those matters, to the displeasure +of the governor and treasury officials. All the oidores as well +as the fiscal, wrote lengthy memorials and reports to the king, +offering advice on this affair or that, and criticising the governor, +the bishop, and the oficiales reales for acts done within their own +spheres of authority. In sending these reports and in making these +suggestions, the magistrates did not question their own authority and +they resented exceedingly the objections and charges of interference +by those concerned. + +An illustration may be noted in the letter written on July 3, 1584, +by Oidor Melchoir Dávalos to the king. After several clear intimations +that he would like to be governor in case a vacancy should arise +and after modestly setting forth his own qualifications and virtues, +Dávalos wrote a faithful and vivid account of the expeditions which +had been made recently against the Mohammedan Sulus. He petitioned +for a suspension of the law forbidding slavery in order that Spaniards +might avail themselves of captive Moros as slaves. [73] He made several +recommendations in regard to the Chinese, stating particularly that he +was devoting himself to a study of the kind of government best fitted +for the Chinese in Manila. He complained that the Chinese merchants +were draining the Islands of silver, bringing as many as thirty-four +shiploads of Chinese cargo a year. Since nothing of commercial value +was produced in the Philippines, they could take away nothing else +than silver. This incessant drain on the coin imported from Acapulco +was resulting in the impoverishment of the colony and constituted a +source of danger to New Spain as well. The exportation of money was +contrary to royal orders and distinctly prejudicial to the economic +interests of the realm. Dávalos recommended immediate action in the +matter. He then discussed military affairs, alleging that the pay of +the soldiers was insufficient, and their condition miserable. The first +and third of the matters touched upon by the oidor in his memorial, +namely, the war in Mindanao and the condition of the soldiers, belonged +to the private jurisdiction of the governor and captain-general, +[74] the control of the Chinese coming later under the jurisdiction +of the governor, as captain-general, with special inhibition of the +interference of the audiencia. [75] + +This letter furnishes a good illustration of the interference of an +oidor in matters of government. The desire to interfere does not +seem to have been confined to one individual, but was apparently +characteristic of all the magistrates of the audiencia. [76] + +The extensive field over which the oidores claimed cognizance is +shown by a series of memorials which were sent by the audiencia as +a body to the court under the date of June 26, 1586. [77] They are +noted here because they illustrate the diversity of the interests of +the oidores, and because their devotion to these various matters was +characterized as unjustified meddling by the governor and the other +opponents of the audiencia. The concern which the oidores manifested +in the miscellaneous affairs of government constituted, no doubt, +an indirect reason for the temporary removal of the tribunal in 1589. + +These memorials suggested reform in many departments of government. The +inadequate state of defense and the demoralized condition into which +the garrison had fallen was the subject of one letter. Attention was +called to the necessity of obtaining more funds for the fortifications +of the Islands. Reference was made to the continual danger of Japanese +invasion. Another letter dealt with financial affairs. The public +exchequer was reported to be in bad condition, as there was not +enough money in the treasury to pay the expenses of government. The +oidores recommended that their own salaries should be paid out of the +treasury of Mexico. They suggested an increase of tribute as a means +of securing more money. This, they alleged, could be done in justice, +since the amount of tribute paid by the natives of the Philippines +did not equal that levied upon the Indians of New Spain. [78] The +oidores reported an increase of 5000 pesos in the revenues of the +colony as profits from the sale of certain offices which had formerly +been bestowed gratis by the governor upon his friends, the righting +of this wrong being effected through the influence of the fiscal and +oidores who officiated as members of the junta de hacienda. + +While ostensibly seeking means for the enlargement of the income of +the Islands, as noted, the oidores protested against a recent royal +order which had required that the proceeds returned from vacant +encomiendas should be placed in the public treasury. They objected +that this would take away all hope of reward from soldiers and subjects +"who have served your Majesty, reducing them to poverty, with no means +of support after a long career of service." [79] In other words, the +audiencia is here seen registering its objections to the conversion +of private into royal encomiendas, notwithstanding the fact that this +would mean greater revenue for the government. The inconsistency of +this attitude was pointed out by Magistrate Dávalos in his letter of +June 20, 1585. [80] + +Another petition which may reflect some discredit upon the audiencia +was one which asked for the abolition of the one and one-half per +cent tax on imported money, and for the elimination of the three per +cent almojarifazgo. Both of these taxes bore heavily on the Chinese +and on the Spanish merchants of Manila. "These two taxes," wrote +the oidores, "are drawing the life-blood from the Chinese, who would +otherwise bring products of great value to our shores." The oidores +had commenced this memorial by showing the financial needs of the +colony. They had requested assistance from the treasury of Mexico, +yet, in the same communication, they proposed to abolish three of +the most profitable sources of colonial revenue that existed. These +recommendations not only illustrate the wide sphere of influence of +the magistrates, but they also seem to confirm the allegations which +were often brought against them, charges, indeed, which they proffered +against one another--that each was more interested in trade than in the +welfare of the government. Notwithstanding the fact that the economic +life of the colony depended on the Chinese trade, the evidence seems +to indicate that, even this early in the history of the tribunal, its +magistrates had personal interests to serve. In the letter referred +to above, Dávalos, who seems to have been a dissenting party to all +these proceedings, charged his contemporaries with being guilty of +undue mercantile activity. + +In this same memorial the oidores warned the Council against the +Portuguese influence in China, deploring the existence of Macao as +a rival to Manila as a trade emporium in the Orient. The audiencia +warned the court against the influence and operations of Pedro +Unamanú, the successor to Captain Gali, who had gone to China and +Macao, supposedly to take on a cargo of Chinese silks. This was +in defiance of the law which forbade Spaniards to trade in China, +and it was also contrary to the instructions of the viceroy and +audiencia of New Spain. In this connection the oidores stated that +they had recommended to Governor Santiago de Vera that Unamanú should +be arrested and punished for diverting his voyage in the interests +of private trade. In accordance with the advice of the tribunal +the governor had sent orders to Macao, summoning the leader of this +expedition back to Manila; these instructions, however, the governor +of Macao was unable to fulfill. [81] + +This memorial shows that the oidores considered it to be their +duty to inform the court fully as to the part which the audiencia +played in this affair. The matter at hand constituted a question +of disobedience of the law, and the Audiencia of Manila had done +what it could to enforce it. The tribunal had assumed a role quite +as important as that of the governor. The episode shows also that +the audiencia was consulted by the governor in this matter, which +was purely governmental. It would not be unfair to suggest that a +potential factor in stimulating the oidores and merchants of Manila +to prevent the voyage of Pedro Unamanú or the Portuguese to China for +trading purposes must have been the desire to safeguard the Spanish +interests in the Chinese trade, and particularly those of Manila, +which were the sole reliance of the colony. It was essential that +this commerce should be prevented from falling into the hands of +other individuals or nations. + +This memorial also dealt with ecclesiastical affairs. In it was +set forth the audiencia's arguments in certain contentions which +the tribunal had had with the bishop, illustrating the fact that +the audiencia was opposed not only by the governor but also by the +ecclesiastical authorities. It appears that the king had formerly +granted to the church courts a large share of temporal jurisdiction +in the Islands. This former concession now stood in the way of the +royal prerogative and caused endless conflicts between the civil and +ecclesiastical judges. The audiencia took the ground that by virtue of +its own establishment the authority of the church courts over civil +matters was at an end. This the prelate declined to admit. Attention +was also directed by the audiencia to the opposition which Bishop +Salazar had manifested toward the claims advanced by the civil +government for extending its jurisdiction over all the non-Christian +tribes, the bishop alleging that Pope Alexander VI had ceded authority +only over such Indians as had been christianized. [82] + +In truth, the bishop had found after two years of conflict that the +presence of the audiencia had not entirely solved the problems of +administration, but, on the contrary, had increased the complexity +of many of them. He had differed seriously with the oidores on +several occasions. The ministers had opposed him not only in the +larger questions of government and ecclesiastical administration, +but in matters of ceremony as well. This was more than the prelate +could endure. He appealed some of these disputes to the governor +and that official, after having neglected these matters for a long +period, finally referred them to the audiencia, which promptly made +the settlements in its own favor. [83] + +Salazar's influence went far toward bringing about the removal of the +tribunal, as it had helped in causing its establishment in 1584. The +complaints of the bishop against the audiencia brought forth a royal +reprimand for carrying on continual disputes with the audiencia. The +prelate defended himself against these charges in a memorial dated June +24, 1590. [84] He stated that these petty matters of form and ceremony +were of no great consequence. He accused the governor of seeking to +stir up discord between him and the audiencia. As a matter of fact, +he said, the relations between him and the audiencia were far more +harmonious than they had been between the tribunal and the governor, +and on many occasions he had been called in to settle disputes between +the functionaries of the civil government. "It is well known," he +wrote, "within the city and outside of it, that had I not entered +as mediator between the president and oidores there would have been +no peace. It would not have been possible for me to mediate if there +had not been friendly relations between them and me." [85] + +The unpopularity of the audiencia from 1584 to 1586 is proved by +the fact that practically all the authorities in Manila--mercantile, +ecclesiastical, political, and even the magistrates themselves--united +in recommending its recall. On June 26, 1586, a series of petitions +was directed to the Council from various personages and organizations +of the city asking that the audiencia be removed. These included +the municipal cabildo, the bishop, the governor, certain military +officials, and, lastly, several oidores (all, in fact, excepting +Dávalos). These greatly regretted the mistake which had been made +in the establishment of the audiencia, conceded that it had been +a failure, and represented that the financial burden which its +presence had imposed had been too great for the colony to bear. [86] +It is certain that the continual conflicts which had resulted from +the presence of the audiencia had not produced a salutary effect on +the government. + +The audiencia itself wrote to the Council at the same time: "There +has been in this tribunal, between the oidores and the president, +continual misunderstandings as to jurisdiction, which we have decided +to submit to your Majesty to ascertain whether precedence in these +matters belongs to the president or to the oidores." The Manila cabildo +recommended the re-establishment of the governorship with centralized +authority: the power to grant titles, offices and encomiendas, with +exclusive authority over the latter. This would include the power of +appointing encomenderos in the name of the king. The recommendation +was made by the cabildo that consultative authority in matters of +government should be conferred on the ecclesiastical and military +officials. It was also suggested that a defender of the Indians should +be appointed other than the fiscal, for the latter, by nature of +his office, was their prosecutor rather than their defender. It was +the current opinion, this memorial went on to state, that the local +prelate should be restored to his former place as defender of the +Indians, and that he should have authority to dispossess encomenderos, +if necessity for such action arose. + +It has already been stated that Oidor Dávalos was the only official +of importance who would not join in these representations. He believed +that the audiencia was necessary to the prosperity of the colony, and +that, if properly controlled, it would prove beneficial. He believed, +moreover, that the governor was the chief element of discord in the +colony, and that his influence had rendered inefficacious the efforts +of the audiencia to keep peace and to enforce the laws. In a letter +to the king, [87] just a year before the memorial described above, +Dávalos had represented Governor Santiago de Vera as a schemer, +aiming to get absolute control of the government. De Vera, he said, +had gone so far as to influence the bishop and clergy to recommend, +against their better judgment, the abolition of the audiencia. The +governor realized that the tribunal was the one obstacle in the way of +the fulfillment of his designs and had used every possible means to +discredit and humiliate the audiencia and its magistrates. Dávalos +asserted that the appeal of cases to Mexico would inflict great +inconvenience on the people of Manila. He renewed the argument that +Spain should have some sovereign body at that great distance from +the mother country. He enlarged on the future possibilities of the +conquest and rule of the entire Orient by Spain, pointing out the +value of the Philippines as a base of operations. It was, therefore, +of the greatest importance that the Islands should be provided with +the proper sort of government. + +Dávalos was especially bitter in his denunciation of Governor De Vera, +who, he said, had even resorted to force in order to intimidate the +magistrates and had called a council of military officials on one +occasion for consultation in matters of justice and government. The +governor was accused of violating the laws which had forbidden +officials to hold encomiendas; he had given the best posts in the +government to relatives, and had completely set aside the judgments +which Dávalos had rendered in his capacity as juez y administrador de +bienes de difuntos. The audiencia had been powerless to oppose De Vera, +largely, Dávalos inferred, because a majority of the magistrates were +under his influence. + +However unfavorable were the above comments on the governor, the +picture which De Vera drew of himself in a letter to Archbishop +Contreras, [88] at that time viceroy of New Spain, is exceedingly +interesting by way of contrast. In his own words, the governor had +grown "old and worn" in his Majesty's service. According to him, the +audiencia was of no service to the government, and only a drawback, +making his own duties as governor doubly heavy, especially "since the +Council [of the Indias] so poorly seconds my efforts ... everything +concerning the government and war in these islands depends on the +president. He must attend to everything punctually; and, in order to +comply with his Majesty's commands, he must pay over and spend from +the royal treasury what is necessary for the affairs of government +and of war." + +He complained that the audiencia had interfered with his administration +of the finances and had suspended the payment of the drafts which +he had drawn on the treasury. He had no recourse on account of the +delay necessary before an appeal to the Council of the Indies could +be answered. He complained that the audiencia had meddled with affairs +of government on trivial pretexts, rendering him practically powerless. + +During this period the internal troubles of the colony were +supplemented by the interference of the viceroy and audiencia in +Mexico. The latter had been reluctant to surrender their former +authority over the Philippines. There were conflicts of jurisdiction +between the viceroy and the governor and between the two audiencias +over a number of matters, among which affairs of a commercial nature +were preëminent. Both the authorities at Manila and those of Mexico +claimed jurisdiction over the galleons which plied between Manila +and Acapulco. [89] Numerous protests were made during this early +period against what was considered the unauthorized interference of +the Mexican authorities. Those in Manila felt that inasmuch as they +had an audiencia which was co-equal in power with that of New Spain, +they should be independent of the viceroyalty in all the affairs of +justice, government, and commerce. + +The combined memorials of the residents and officials of Manila, which +we have already noted, were presented at court by a new procurator, +Fray Alonso Sánchez. The latter, a Jesuit, was a churchman of high +standing, and his abilities were recognized both at Madrid and in +Rome. Besides carrying commissions from the secular officials, he +represented the bishop, but the latter, distrustful of the influence +at court of a Jesuit commissioned by the secular government, with +which the prelate was constantly at war, determined to send one of +his own supporters to Spain to represent his interests. The emissary +of Salazar was Fray Francisco Ortega, of the Augustinian order. Ortega +followed Sánchez to Spain and rendered valuable service as procurator +of his order at Madrid. [90] + +In written memorials and in personal interviews with the king +and with members of the Council of the Indies, Sánchez summarized +all the arguments heretofore given, asking for the abolition of +the audiencia. The newness of the country, the sparseness of the +population and the poverty of the inhabitants, according to his +argument, made such an institution a financial burden. If it were +continued, the salaries of the magistrates would have to be paid +from Mexico. An audiencia in Manila was not necessary, he urged, +since the chief element of the population was military, and hence +under martial law and jurisdiction. Even before the establishment +of the audiencia it had been necessary to send but few cases to +Mexico; indeed, alleged Sánchez, lawsuits seldom arose in the colony, +and the presence of the audiencia encouraged rather than prevented +litigation among the few merchants who lived in Manila. The discord +caused by the presence of the tribunal and the continual lawsuits +which it encouraged among the Spaniards had a disquieting effect on +the natives, who had no need of such an institution, and who did not +even understand its purposes. The audiencia, instead of serving as a +protection to the natives, was an instrument of tyranny. The Spaniards, +understanding the use of a court which would enforce the contracts +made between them and the ignorant Indians, were often supported +in the seizure of the latter's property, which act, in reality, +amounted to deprivation and legalized robbery. Sánchez stated that +the natives had been terrorized by the audiencia. The magistrates, +versed in the legal customs and practices of Spain rather than of +the Indians, were unfit to administer justice in the Philippines. + +Sánchez also emphasized the international phases of the audiencia's +existence in the Philippines, though with conclusions slightly +different from those which we have already noted. He stated that +the presence of the audiencia had caused the Portuguese, in China, +formerly friendly, to be distrustful of the Spaniards, and this +had resulted in a considerable diminution of trade. This change of +attitude he attributed to the wording of the cédula by which the +tribunal had been created, extending its jurisdiction throughout the +"entire archipelago of China." Sánchez concluded his appeal with +the statement that some act was necessary to restore the confidence +of the Portuguese, whose influence, exerted upon the Chinese, could +spell ruin for Spain's Far Eastern colony. The cancellation of that +claim to China would remove all evidence of Spanish bad faith; it +would show to the Portuguese that the Spaniards had no desire to +encroach on their rights, and through the restoration of commerce +and prosperity the future of the colony would be assured. [91] + +Sufficient has been presented to show that the audiencia, as +established in 1584, was not a success. The chief objection to the +tribunal was not its influence as a court; the real fault seems +to have lain in the indefiniteness of the articles of establishment +which gave it administrative powers, co-ordinate with the governor and +captain-general. Almost every difficulty occurred in the administrative +field. The audiencia also failed to preserve harmony between church +and state and added to these complexities by itself having dissensions +with the bishop. The petty character of the men who constituted this +particular government, their personal selfishness, and their eagerness +to take advantage, in dishonest ways, of the time and the distance +which separated the colony from the royal control, contributed to the +failure of the institution at that time. The audiencia was scarcely +established, and it certainly did not have time to adjust itself to +the new conditions with which it found itself surrounded, before +it was removed. It would seem that the authorities in Madrid were +somewhat hasty in withdrawing the audiencia, for it had proved its +efficacy throughout the entire Spanish empire. The ill success of the +Audiencia of Manila at this time does not prove that the institution +was a failure, or that its establishment was a mistake, for seven years +later it was returned and continued without interruption until 1898, +and continues still as then reorganized. The statement of Philip II on +November 25, 1595, "that experience had proved it to be unnecessary +in a land so new and unsettled" [92] can hardly be justified in view +of subsequent events. + +The causes of the breakdown of the first audiencia may be found +in the circumstances of the time, the personnel of the tribunal, +the indefiniteness of the laws which created it, the novelty of the +situation to magistrates and officials and their failure to adapt +themselves to their duties and to one another. As an institution +of reform the audiencia did not have time to adjust itself to a +permanent status. + +The king, in compliance with the demands of the various organizations +and individuals of Manila as communicated by their respective envoys, +abolished the Audiencia of Manila by royal cédula on August 9, 1589, +ordering the Viceroy of New Spain to take the residencias of all +officials who had been identified with the Manila government. To +carry out these orders Licentiate Herver del Coral was sent from +Mexico to Manila, where he arrived in May, 1590, in company with +the new governor, Gómez Pérez Dasmariñas. [93] Santiago de Vera, +the ex-governor, was promoted to a magistracy in the Audiencia of +Mexico; the oidor, Pedro de Rojas, was made teniente and asesor +to the governor, while the former oidor, Rivera, and Fiscal Ayala, +were left without office. [94] + +The regular organization for the administration of justice in the +provinces was left precisely as it had been when the tribunal was in +existence. The alcaldes mayores and the corregidores still functioned +as judges of first instance and as governors of the provinces. The +alcaldes ordinarios remained the judges of first instance in the +city of Manila. These judges tried cases with appeal to the governor, +and the judgment of the latter was final in cases involving a value +of a thousand ducats or less. Cases of a higher category might be +appealed from the decision of the governor to the Audiencia of Mexico, +and thence, if again appealed, to the Council of the Indies. + +The audiencia of three magistrates and a fiscal was replaced by a +governor, who was both captain-general and sole judge. He was assisted +in the latter capacity, as above noted, by a teniente and asesor, +a lawyer, who advised him in legal affairs and prepared his judicial +decisions for him. This reform was made on the representation of Fray +Sánchez, that Manila had no need of a judicial system more pretentious +than that of any Spanish provincial town. That city was accordingly +reduced to the rank of a city or district, with dependence in judicial +and administrative matters on New Spain, in whose audiencia appeals +from the governor of the Philippines were heard. + +With these new reforms the leading authorities in Manila professed +to be greatly pleased. Bishop Salazar, who was the most influential +person in Manila at this time, expressed his satisfaction to the +king in a letter dated June 24, 1590. [95] He suggested, however, +that the continuance of the audiencia might have been satisfactory +could its members have been paid from the treasury of New Spain. He +reported the arrival of the new governor, and stated that the latter +had already given evidence of a desire to govern wisely and justly. + +Salazar's optimism in regard to the good intentions of the governor +could not have been long continued, for Morga tells us that in the +first year of the government of Gómez Pérez Dasmariñas the need of +an audiencia was felt by many. [96] At that time, all the powers +of government were centralized in the governor, and there was no +immediate authority to which the people could apply for relief. Salazar +had many disputes with the governor over questions relating to the +respective spheres of the church and state, and from the decisions of +the executive the prelate had no recourse. Dasmariñas, on reporting +these matters to the king, stated that the bishop had interfered in +the matter of the collection of the tribute, the government of the +encomiendas, the Chinese trade (in which, the governor alleged that +the prelate had an unpriestly interest), and in the administration of +justice. [97] The prelate had interpreted the removal of the audiencia +as constituting a re-establishment of the concession formerly made to +the church of extensive control in the administration of government +and justice. He claimed that ecclesiastical judges should have the +same civil jurisdiction as they had exercised before the audiencia +was first founded. This, of course, the governor would not tolerate. + +Bishop Salazar was so displeased with the turn which affairs had +taken in Manila that he determined to leave the Islands, and passage +being placed at his disposal by the willing governor, the bishop set +out in July, 1592. [98] On his arrival in Spain, Salazar concerned +himself principally with religious matters, securing some valuable +reforms. Among the latter was the erection of the Philippines into an +archbishopric and the creation of three subordinate bishoprics. Salazar +showed the desirability of the restoration of the audiencia as a +preventive check on the excesses of the governor, but this change +was not made as an immediate consequence of his recommendations. + +A cédula was issued on January 17, 1593, which outlined with more +definiteness a judicial system for the Islands. This reform confirmed +the position of the governor as nominal head of the judiciary, with +jurisdiction over appeals from the lower courts, but it decreed that +these cases should be tried by a letrado. The governor's final and +conclusive jurisdiction was extended to all cases not exceeding a +thousand ducats in value. Cases of a greater value might be appealed +to the Audiencia of Mexico. [99] The governor was given authority to +name a protector of the Indians. [100] + +The above changes were followed shortly by the cédula of August 18, +1593, by which the title of teniente de capitán-general y asesor +de gobernador y capitán-general de las Islas Filipinas was bestowed +on Don Antonio de Morga, who was probably the most efficient jurist +and one of the most versatile officials that Spain ever sent to her +Asiatic dependency. [101] Morga was at this time not only successor +to the audiencia in judicial matters, but also attorney-general and +sole legal adviser to the governor. His predecessor, Pedro de Rojas, +was transferred to Mexico, in pursuance of the idea, as alleged in the +order of transfer, of removing from the Philippines all the members of +the old audiencia, so that the new scheme, as revised at that time, +might be allowed to work itself out without prejudice. Before his +departure, the residencia of Rojas was conducted by Morga. + +Even the reforms of 1593 did not suffice to make the administration +of justice satisfactory to all parties. From the large amount of +correspondence which exists, embodying complaints against the harsh +methods of Dasmariñas and his successor, Tello, three letters may +be cited which show the attitude of the various officials of the +colony towards the re-establishment of the audiencia. The first of +these was written by Governor Dasmariñas himself, and it may be in +some ways surprising to note that he asked for the restoration of the +audiencia. His reasons, in part, however, were different from those +advanced by his contemporaries. Dasmariñas was of the opinion that an +audiencia would be effective in the nullification of the interdicts +and excommunications imposed by the archbishop and the local prelates, +which he claimed were working havoc with the civil government. [102] + +The treasury officials complained that the absolute government of +the executive was contrary to the interests of real hacienda. Their +objections to the prevailing system were voiced in the second +of the memorials alluded to above, that of Francisco de la Misa, +factor of the royal treasury of Manila. [103] Misa said that under +the former arrangement the audiencia had audited the accounts of the +royal treasury and of the city of Manila each year. In this way the +accounts had been well kept and the funds properly accounted for. The +removal of the audiencia had left the governor with authority over +the nomination of the officials of real hacienda, as well as the +supervision of the accounts. Since Dasmariñas had been governor, no +accounts had been rendered by the minor officials of the treasury, +and, as a consequence, their superiors had been unable to make up +their reports for the Contaduría of Mexico. The governor's attention +had been called to this deficiency repeatedly, but the latter had +displayed no interest in the state of the colony's finances, which, +said Misa, exceeded all other matters in importance. "This comes," the +factor observed, "from placing in charge of Your Majesty's finances a +soldier, unfitted to do else than command troops, and then unchecked +by an audiencia, so far distant from your royal person." The laxity +of the governor and of his subordinates seems to have resulted in +the loss of much revenue. + +Misa also showed that there had been many irregularities in the +sale of offices, deficiencies which the presence of an audiencia +would have checked. Instead of selling the minor clerkships of the +exchequer, the governor had given them to his friends. Two offices, +which were by no means insignificant, those of the chief clerkships +of government and of justice, respectively, had been sold formerly +for four thousand pesos each. The governor, however, had preferred +to have them on his civil patronage list; this would not have been +permitted had an audiencia been present to enforce the law. + +The governor was charged by Misa with extravagance in the expenditure +of the revenue of the colony. The payment of the salaries of new +appointees to offices, friends of the governor, had made heavy drains +on the treasury. The king, by repeated cédulas, had forbidden the +designation of an excessive number of alcaldes and corregidores because +of the desirability of economizing the resources of the colony. While +the audiencia was in existence its consent had been necessary for +the creation of new judicial districts, but since the recall of the +tribunal, the governor had trebled the number of provincial officials, +and, in addition, had permitted each to have a salaried assistant. + +According to Misa, various other evils had resulted from the +absolutism of the governor, among which were numerous abuses which +he had tolerated in the galleon trade. It was alleged that Spanish +merchants in Mexico had sent money to agents in Manila, and in that +way had caused the legal amount brought from Acapulco for investment on +the annual galleon to be exceeded. [104] This, the factor stated, was +due partially to the laxity and corruption of the Acapulco officials, +who had permitted the galleon to leave that port with more than the +authorized amount of money. The governor of the Philippines, however, +could have prevented this abuse had he been so inclined, as the +ships' manifests were always subject to his inspection on arrival +at Manila. The money sent by the merchants of Mexico was invested +in merchandise in the Islands and these goods were shipped back to +Acapulco on the galleon, thus excluding the commerce of the local +merchants. The latter were growing poorer daily while the governor +and his friends were waxing richer. The governor had also exercised +favoritism in the distribution of cargo space, thus rewarding his +friends and punishing his enemies. [105] Since the suppression of the +audiencia these abuses had increased, as there had been no authority +in Manila to hold the governor in check. + +This memorial, from Misa, which was carefully considered at court, +went far toward demonstrating that the restoration of the audiencia +would have beneficial results, so far as the administration of real +hacienda was concerned. + +The third of the letters referred to as reflecting the attitude of +the Manila officials toward the re-establishment of the audiencia +and ultimately contributing to its restoration, was directed to the +court by Antonio de Morga, the efficient lieutenant-governor. Morga, +as did Misa, placed great emphasis on the need in Manila of a more +efficient system for the administration of the exchequer. Morga +was moderate in his characterization of the governor, alleging that +Dasmariñas had been brought completely under the influence of the +ecclesiastics. He expressed the belief that an audiencia would aid +in combatting what he termed the retrogression of the colony under +the influence of the priests. "There should be someone," he wrote, +"to oppose the ecclesiastics in a land so far away from the Audiencia +of Mexico; for, no matter what question is sent there for decision, at +least two years must elapse before despatches can be returned." [106] +No official was better qualified to explain the needs of the colony +in matters of justice than Morga, for he was at that time, in reality, +the supreme court of the Islands. + +The audiencia, after an interregnum of seven years, was restored +by a cédula promulgated by Philip II, November 26, 1595. [107] The +tribunal was to consist of a president, who should also be governor and +captain-general, four oidores, a fiscal, and various subordinates. The +history of the former audiencia and the reasons for its suppression +and re-establishment are summarized in the cédula as follows: + + + I established an audiencia in that city and province in order + that everything might be governed by means of it, and that justice + might be administered with the same universal equality, mildness, + and satisfaction desirable; after its establishment I ordered + it suppressed as experience proved it unnecessary in a land so + new and unsettled; in its place I sent a governor, and though his + administration was excellent, yet, inasmuch as that community had + grown, and I hope that it will continue to grow, I have thought + it advisable to found and establish the said audiencia again. + + +In this cédula, which was addressed to Governor Tello, the king +pointed to the increased importance of the Philippines, and to the +many expeditions by which the Island of Luzón and other islands of +the Archipelago had become pacified and more densely settled. The +increase of commerce with the Chinese was also cited as a reason +for providing the Islands with a more stable government. It was +stated that in the administration of justice there should be as much +efficiency as possible without the loss and inconvenience involved +in appealing cases to Mexico. The governor would have more time for +his increasing administrative and military duties if disengaged from +his former judicial functions. The cédula continued: + + + You [the governor] may find it advisable to have by you persons + with whom to take counsel, in order that matters may be considered + with the requisite conformity and by a sufficiently large body of + advisers; for these reasons I have decided to form an audiencia; + ... you shall be its president, holding that office with those + of my governor and captain-general. [108] + + +Together with this decree of re-establishment the king issued special +instructions to Tello, prescribing in detail the relations which the +governor was to observe with the audiencia. These instructions, in +general, sought to prevent the recurrence of the misunderstandings +which had been so fatal to the earlier tribunal. The governor and +oidores were ordered to co-operate in the formulation of commercial +regulations, with a view, particularly, to securing the Chinese trade, +in the enforcement of the pancada, [109] the consideration of ways and +means to prevent money from passing to China, in matters of taxation +and finance, encomiendas, and the pacification and government of +the wild tribes. By these instructions, it is important to note, +the function of advising the governor in administrative matters was +definitely bestowed upon the oidores. "Matters of importance," the +cédula prescribed, "the said president-governor shall discuss with the +oidores of the said audiencia, so that the latter, after consultation, +may give him their opinion." [110] + +The governor and the magistrates were jointly charged to do all +possible to discourage Indians and Spaniards from wasting their +means in fruitless and petty lawsuits. The natives, according to +this new reglamento, should always be protected against the designs +of those who would take undue advantage of them. The governor was +moreover instructed to confer with the archbishop and audiencia in +ecclesiastical affairs, and the prelates were especially forbidden +to excommunicate and issue declamations from the pulpit against the +officials of the civil government, such as were constantly proclaimed +when Salazar was bishop. Priests were not to meddle with the civil +government, or with the pancada, or with any form of trade. + +The audiencia as reformed, with the powers and duties noted, began +its life in Manila on May 8, 1598. The inauguration of the tribunal +was attended with general rejoicing, and a celebration characterized +by great formality and pomp. The royal seal was conducted through +the city in a procession which was composed of all the royal and +clerical dignitaries. Church, state, and citizenry united in expressing +satisfaction at the restoration of the tribunal, with its consequent +prospect of an efficient government and administration of justice. + +Reforms were made in the scope and composition of the audiencia at +various times during its existence. It developed from a commission +of three magistrates, with a president at its head, with definite +and ill-expressed powers over a vast archipelago, whose population +was sparse and scattered, to a double-chambered tribunal of appeal +in second and third instance, with definite jurisdiction over a +well-organized commonwealth. It would be highly desirable, did space +allow, to review chronologically the important reforms which were +made in the organization, scope and jurisdiction of the Audiencia of +Manila throughout its history. The most important of these, however, +will be noted incidentally in the following pages. + +The audiencia, from the time of its renewal onward, typified and +represented the royal authority, and its tenure was more continuous +than the governorship. Eight times subsequently did the audiencia +assume the reins of government in lieu of the governor. It became +the most reliable channel through which the royal authority made +itself felt in the Islands, and it was especially utilized by the +court as a check on the governor. [111] Whenever occasion arose, +the audiencia interposed as the intermediary and arbiter between +dissenting parties in the name of the sovereign, and its decrees were +listened to with respect. It was no longer a temporary organization, +and so firmly established was it henceforth that no person seriously +considered its recall a possibility. Through a period of three +hundred years the audiencia exercised its functions. It was first +and always a judicial body. It shared executive and administrative +duties with the governor. It frequently exercised attributes of an +advanced legislative character. It participated in the government of +the provinces. It shared the authority of the royal patronage in the +control of ecclesiastical affairs. These various activities will be +studied in subsequent chapters. + + + + + + + +CHAPTER III + +THE JUDICIAL FUNCTIONS OF THE AUDIENCIA + + +The audiencia was first and always a tribunal of justice. It was +established for the purpose of trying cases and settling disputes. Had +it no other functions than the purely judicial, however, it would not +have played the important part which it did in colonial administration +during two hundred years of its existence. Its chief interest to the +student of history and government will not be so much its activity as +a judicial institution as the relations it bore to other departments +of the government. Its extraordinary powers and functions developed +incidentally at first through the establishment of the institution in +colonies where no other agency existed to deal with the unforeseen +problems and necessities which arose from time to time. The gradual +assumption and exercise of non-judicial functions are therefore the +chief characteristics to be noted in the history of the Audiencia +of Manila. + +The aim of this chapter, however, will be to study the audiencia +in its capacity as a civil judiciary and to clear the way for the +discussion in subsequent chapters of the wider, and from the present +viewpoint, more notable fields of its activity. An effort will be made +to describe its judicial procedure, the kinds of cases which it tried, +the limitations on its jurisdiction--what courts were inferior to it, +and what authority was superior. This investigation will be made from +the viewpoint of the historian, rather than from that of the student +of jurisprudence, subject to such limitations as a lack of knowledge +of the law may impose. We shall first consider the procedure of the +audiencia as authorized by the laws of the Indies, illustrating this +procedure by the citation of actual cases in practice. + +The powers and duties of the Audiencia of Manila as defined in the +special decree of establishment of May 5, 1583, have been set forth +in the preceding chapter. By this decree the audiencia was granted +civil and criminal jurisdiction in cases of appeal from the lower +courts and original jurisdiction in those affecting the government, +and the conduct of its officials. The authority of the audiencia in +the latter cases was exercised through the appeals which came to it +from the special investigators and visitors who tried these officials +in first instance. + +The laws of the Indies, after prescribing the time of meeting and +the hours of the daily sessions of the audiencia, made their first +important judicial regulation by forbidding viceroys and presidents +to assist in the determination of suits. Cases must be tried by the +properly qualified oidores, yet the president (viceroy or governor) +was to sign the decisions with the magistrates. [112] Unless the +president were a lawyer, he was even denied cognizance of military +cases. The audiencia had jurisdiction over appeals from the viceroy or +governor in all government matters to which any official or private +citizen might take exception. [113] In case of disagreement between +the audiencia and the president, it was prescribed that the question +at issue should be carried to the Council of the Indies. In case the +majority of the audiencia agreed to follow a certain course of action, +the viceroy or president was forbidden to contravene or oppose that +action. Instead, he was ordered to abide by it, appealing to the +Council of the Indies for final settlement of the contention. [114] + +There were many laws regulating the relations between the audiencia +and the governor, most of which will be noted in greater detail +in a subsequent chapter. The most important were the laws which +ordered that the viceroys of New Spain and Perú should leave to the +audiencias entire jurisdiction over residencias, questions involving +the marriage relation [115] and the administration of property of +deceased persons. [116] A law especially referring to the Philippines +ordered the Audiencia of Manila to abstain from interfering with the +government of the Chinese in the Parián. [117] This did not forbid the +trial on appeal of cases relating to the Chinese, since in practice +the audiencia had authority to take cognizance of such cases. Certain +extra duties were required of the oldest oidor of the audiencia, who +was known as the decano. He was given complete authority over the +tribunal in the absence of the president. He might assign cases to +the magistrates, designate judges for special duties and determine +all matters relating to the interior organization and government +of the tribunal. These functions were assumed, after 1776, by the +regent, and the prerogatives of the office of decano became merely +nominal, except when the regent was absent. In audiencias whose size +permitted it, the oldest oidor, or the regent, after that office was +created, could determine whether sessions should consist of one or two +salas. [118] An audiencia was legally constituted, however, if only +one magistrate were present. [119] The audiencia was commanded to guard +its proceedings with great secrecy, and such rules were formulated for +its magistrates as would enable the tribunal to uphold its dignity, +and command the respect of the commonwealth. + +Cases of first instance were tried by inferior judges who were +below the category of oidores. [120] As noted in a former chapter, +these judges were the alcaldes ordinarios, alcaldes mayores, and +corregidores. The former tried civil and criminal cases in the towns +and cities and the last two exercised extensive jurisdiction in the +provinces. Cases were appealed from them to the audiencia. [121] +The audiencia was forbidden to concern itself with cases of first +instance, excepting certain criminal suits which originated within +five leagues of Manila. [122] + +A separate sala, for the trial of criminal cases was created in the +audiencias of Lima and Mexico. The magistrates serving in these salas +were designated as alcaldes del crimen. They had jurisdiction in +first instance over the criminal cases arising within five leagues +of the capital, as referred to above, and in second instance over +those appealed from the provincial judges. [123] The oidores in these +audiencias confined themselves to civil suits, but in audiencias where +there were no alcaldes del crimen, the oidores were authorized to try +both civil and criminal cases. [124] The magistrates of the Audiencia +of Manila had both criminal and civil jurisdiction, as that tribunal +belonged to the latter class. When the number of oidores present was +insufficient to do the work of the audiencia, alcaldes ordinarios +or alcaldes mayores who had the necessary qualifications might be +transferred temporarily to the tribunal. When acting as oidores they +could not try cases over which they had formerly exercised original +jurisdiction. [125] + +A system of procedure was prescribed for the trial of cases before +the audiencia and the order fixed in which these should come up for +consideration. It was ordered that two slates should be kept, one for +cases classified according to their importance and another for those +to be tried by rotation. Cases of the first category and those which +were especially urgent might supersede the latter, but when there +were none of the former the second slate was to be adhered to. + +Cases relating to real hacienda took precedence over all others. The +president was instructed to see personally that these cases should +not be subjected to delay and that at least one day a week should +be set aside for their adjudication. Next in importance were cases +involving infractions of royal ordinances and laws. Probate cases +were given one day a week. Two days weekly were set aside for the +consideration of suits which arose between Indians and between +Indians and Spaniards. Cases involving the poor, however, were +to take precedence over these. The audiencia was made responsible +for the good treatment of the Indians and it was charged with the +obligation of seeing that all suits to which Indians were parties +should be tried without loss of time. Delays resulting from the +carelessness of lawyers and from their eagerness to profit at the +expense of the natives were discouraged. Matters of slight importance +which pertained to the Indians were to be dispatched by decrees of +the audiencias and viceroys; this provision was designed to avoid +contentious litigation, to which the natives were characteristically +inclined. It also sought thereby to protect them from dishonest judges +and lawyers. Any and all of the cases mentioned in this paragraph were +considered to be of such importance that they were classified among the +first to be tried and determined prior to those involving property, +commercial affairs, and ordinary transactions. Of the latter cases +those already decided were to be reopened before the hearing of new +cases of the same class. Cases involving the poor were to be given +speedy consideration. [126] Length of waiting should be the criterion +for the consideration of the remaining cases. + +The audiencia was empowered to compel testimony from all persons and +authorities. [127] As already noted, the oidores of audiencias which +did not contain alcaldes del crimen were authorized to entertain +appeals from persons who had been condemned to death. [128] The +same was true of all other criminal cases that were admitted to +appeal. Members of religious and military orders were not exempted +from the jurisdiction of the audiencia. [129] + +The laws regulating the audiencia's jurisdiction in civil cases seem to +have varied according to the time and the policy of the government. The +audiencia exercised both original and appellate jurisdiction, as we +have already noted. Most of the civil suits tried by the tribunal were +appealed to it from inferior judges. A law was made in 1563 ordering +that cases involving less than twenty pesos might be tried by verbal +process. [130] This law would seem to have excluded cases of less than +that value from appeal to the audiencia, as the processes had to be +committed to writing in order to be appealed. The cédulas of November +26, 1573, and August 10, 1574, fixed the minimum amount that might +be appealed at six pesos of eight reales, or 3000 maravedís. [131] +Charles V in 1542 promulgated an important law for the regulation of +appeals to the audiencia. It provided that the smallest amount that +might be appealed should be 300,000 maravedís (667 pesos). [132] +This law was re-promulgated on September 24, 1568, and on September +22, 1626. [133] The provisions of these laws, however, probably +applied only to such cases as might come from provincial justices, +since appeals from city judges and ayuntamientos could be taken +over by the audiencia with less trouble and expense, because of +the proximity of the tribunal. As a matter of fact, this opinion +is seemingly substantiated by a new law, dated June 13, 1634, which +ordered that an appeal from an ayuntamiento should not be received +in an audiencia unless the suit involved a sum greater than 60,000 +maravedís, or 133 pesos. [134] This was considerably less, it will +be seen, than the amount fixed as the limit by the law immediately +preceding it, which was promulgated in 1626. + +The laws establishing the finality of the jurisdiction of the +audiencia were also altered from time to time. The earliest law on +the subject, dated April 24, 1545, ordered that no appeal should be +made from the tribunal in cases involving less than 6000 maravedís +(13.3 pesos). [135] This limit was raised to 200 pesos by cédulas of +April 4, 1558, and March 4, 1559, and by the ordinance of 1563. [136] + +In 1542, the jurisdiction of the audiencia was made final in all +cases appealed from the ordinary courts. [137] The execution of all +decisions which were not appealable was rigidly required. [138] By the +ordinance of 1563 it was stipulated that sentences of review which +had been confirmed by the audiencia could not be appealed again, +no matter how large a sum was involved. [139] This was partially +abrogated by the law of February 13, 1620, which ordered that cases +involving 6000 pesos of 450 maravedís each, already terminated on +review by an audiencia, might be further appealed to the king. [140] + +Decisions were reached by the concurrence of a majority of the +magistrates trying the case. When there were only two oidores present +a decision had to be unanimous. In case the full quota of magistrates +were present and the votes were equally divided, the fiscal might +be called in to decide the case, but if the latter were prosecuting +the case, or were otherwise incapacitated, a duly qualified lawyer +might be chosen to serve as a special magistrate. [141] This rule +did not apply to the revision of sentences in civil cases wherein +the value exceeded 300,000 maravedís; in these the concurrence of +three magistrates was necessary. [142] A record of the judicial +decisions of the magistrates was kept in the official journal of +the audiencia. Decisions and legal papers had to be signed by the +magistrates involved. Oidores who registered dissenting opinions were +obliged to affix their signatures to the autos with those who had voted +in the affirmative, but the negative votes were also recorded. [143] + +While the audiencia might repeal the written opinion of an inferior +judge in review of sentence, the revision of verbal decisions of +alcaldes ordinarios could be accomplished only when the alcalde in +question had been summoned before the tribunal and the reasons for his +decision had been investigated in his presence. [144] The audiencia, +therefore, exercised appellate jurisdiction over civil and criminal +cases tried in first instance by the judges of the provinces. + +If an alcalde mayor or other inferior judge failed to comply +with the instructions laid down for his guidance, or if he were +guilty of an abuse in the administration of justice, he was held +to account by the visiting oidor who was dispatched at regular +intervals for the inspection of the provinces--and for the judicial +scrutiny of the provincial courts. In cases of notorious injustice +special pesquisidores, usually oidores, were sent at once for the +correction of the abuse in question, at the expense of the offending +officials. [145] These, if found guilty of wilful disobedience, +were punished in accordance with the gravity of their offenses. The +audiencia had appellate jurisdiction in these cases. [146] The +visiting oidores imposed fines in accordance with a tariff which +had been formulated by the audiencia and approved by the Council +of the Indies. [147] All fines levied by the audiencia, either upon +officials or individuals could be remitted by the president with the +consent of the acuerdo. [148] + +It was the policy of the government to give the audiencia final +jurisdiction in as many cases as possible. It was desirable to endow +the colonial tribunals and authorities with sufficient power to make +them worthy of respect. At the same time it was necessary to relieve +the Council of the Indies of the duty of hearing the vast number of +individual suits which would inevitably come to it if that tribunal +were made too accessible. The Council was occupied with appeals in +government and justice from all of Spain's colonies. It has been +noted that the limit of value of cases which could be appealed from +the audiencia to the Council of the Indies was raised in 1620 from +200 to 6000 pesos. This would seem to indicate a growing tendency +to confine suits involving individuals to the colonial tribunals, +thus increasing the importance of the audiencias, and at the same +time making the Council of the Indies more exclusively a tribunal of +administration. This change, however, was never completely effected, +despite the various expedients adopted to discourage the appeal +of individual cases. Persons appealing were obliged to guarantee +the expenses of suit. The great cost, the delays, and the distance +altogether made appeal difficult. Appeals of longer standing than two +years were not received from the Philippines in the Council of the +Indies. [149] An investigation of the records shows that most of the +cases appealed to the Council of the Indies involved administrative law +in some form, having to do either with the prosecution of officials, +their removal from office, the prosecution of bondsmen, residencias, +conflicts of jurisdiction, or with appeals from the decision of the +audiencia in commercial and ecclesiastical matters. + +The gradual extension of the jurisdiction of the audiencia over +encomiendas may be cited as an example of the changes in the authority +of the tribunal and in its relation to the Council of the Indies. The +first important legislation in regulation of the encomienda was the +celebrated law of Malines, promulgated in that city by Charles V, on +October 20, 1545, and enunciated at successive dates until 1610. The +law prescribed the course which was to be pursued by the audiencia +in suits between individuals relative to encomiendas or the Indians +thereon. In these contentions the Council of the Indies and not the +audiencia was the final arbiter. The duty of the latter tribunal was +to collect evidence in these cases, taking the testimony of witnesses +for both sides and remitting all papers, sealed, to the Council of +the Indies. The council, on consideration of the evidence, rendered +the final decision. The audiencia had to conclude its part of the +investigation and file its report within a period of three months. This +time limit was extended to six months in 1554. The purpose of this law +was to guarantee justice in the assignment and retention of encomiendas +by removing them from the control of the audiencias, whose magistrates, +as experience had proved, often allowed themselves to be influenced +by local prejudices. Encomiendas were to be assigned by the king, +in theory at least, and no other authority save the monarch and his +council could exercise jurisdiction over them. [150] + +The audiencia was, however, authorized to act as the protector of +persons holding Indians on encomiendas, to see that they were not +unjustly deprived of or wrongfully disturbed in their holdings. In +case a person were thus deprived of his Indians, the audiencia was +empowered to restore conditions to their former state. If the aggressor +persisted, or cared to contest the right of his opponent to the Indians +in question, the audiencia was ordered to observe the law of Malines, +collecting all the evidence in the case, and forwarding it to the +Council of the Indies for final decision. The frequency of litigation, +however, and the vast number of unimportant cases which arose under +the provisions of the law of Malines came to demand too much of the +time and attention of the Council of the Indies, thereby causing +many delays in suits involving encomiendas. In order to remedy this +defect, Philip III, on April 17, 1609, conferred on the audiencia +jurisdiction over all cases involving encomiendas, repartimientos, +[151] tributes, and despoliations of Indians up to the value of a +thousand ducats. [152] Cases involving a greater value were still to +be settled in conformity with the law of Malines. Finally, in 1624 +it was ordered that in suits which did not involve more than three +Indians and in cases wherein the costs of litigation exceeded the +amount in dispute, the decree of the governor should prevail. For +obvious reasons, the audiencia could not concern itself with such +cases, but when the value of the Indians justified the attention +of the tribunal, its decisions were final, taking precedence over +those of the governor. [153] This, then, was the final status of the +jurisdiction of the audiencia over encomiendas as set forth in the laws +of the Indies. In the Philippines the authority of the tribunal in +regard to them was neither executive nor legislative, except in such +cases and on such occasions as we shall refer to later. The judicial +authority of the Audiencia of Manila over encomiendas was indisputable. + +Having indicated the general basis upon which the authority of the +audiencia rested, we may more precisely define its jurisdiction by +reviewing a few of the most characteristic cases which were tried +in the tribunal in accordance with the laws already discussed. The +statement has been made that at the time of its establishment the +audiencia was needed as a court of justice and that it was removed +in 1589 for political reasons rather than because of the inadequacy +or failure of the institution as a tribunal of justice. In the +preceding chapter we saw that the audiencia was designed to relieve +the executive of judicial duties, such as the trial of cases appealed +from the alcaldes mayores of the provinces and the alcaldes ordinarios +of the city. These functions, up to the time of the establishment of +the audiencia, had been exercised by the governor. This had resulted +in favoritism and in a perversion of justice to the private ends +of the governor and of his friends. Perhaps the chief evil under +the system had proceeded from the governor's double jurisdiction, +as both executive and judge, over cases involving encomiendas and +encomenderos. The governor assigned encomiendas in the name of the +king, and he was also judge with final jurisdiction over all suits +involving them, the law of Malines being impossible of execution in +the Philippines before the establishment of the audiencia, and after +its withdrawal in 1589. [154] + +The same was true in regard to commercial cases, and complaints +were ever arising against the governor's high-handed proceedings +in the allotment of cargo space on the galleons to his friends, +and his monopolization of the best Chinese goods that came to +Manila. The governor, as in the assignment of encomiendas, enjoyed +an undue advantage in these matters, for at the same time that he +was the executive with the power of bestowing these favors, he was +the sole judge in all contentions which arose regarding commerce. It +was therefore distinctly in the interests of justice that a supreme +court should be established, and it is easy to understand why those +who had profited by the absence of the audiencia should oppose its +restoration, and why others should take the opposite view. + +Soon after the audiencia was abolished in 1589, arguments were +presented at court for its restoration. From the large number of +petitions that were presented, two, aside from those discussed in +the preceding chapter, may be cited here because they illustrate +the disadvantages from a judicial point of view of having the +administration of justice in the hands of the governor, with appeal +to Mexico. Francisco de la Misa, factor of the treasury of Manila, +wrote a memorial to the king on May 31, 1595, [155] referring to the +delay which had arisen in the trial of suits involving encomiendas: the +jurisdiction of the governor was not final; appeals had to be carried +to the Audiencia of Mexico and cases involving a thousand ducats or +more had to be taken from that tribunal to the Council of the Indies; +[156] this meant two appeals and much delay. He mentioned certain +cases which had been pending two years, and showed that, because of +the delay to which they had been subjected in Mexico, it would be at +least two years more before the decisions could be returned. Misa said +that conditions had reverted to the state which had existed before the +audiencia was established; a much larger number of cases was awaiting +trial than the governor and his lieutenant could attempt to try. These +difficulties were multiplied by the fact that there was no fiscal, +an officer whose services as legal adviser to the government and as +prosecuting attorney were indispensable. [157] + +Misa petitioned for a reform of the law which had established the +governor as judge of ultimate recourse in cases involving one thousand +pesos (ducats) or less. He believed it advisable to reduce the limit +of the value of cases settled in the colony from one thousand to four +hundred pesos and appeal all those exceeding the latter sum to the +Audiencia of Mexico. It would result in a more equitable administration +of justice, he stated, if the trial of important cases were conducted +in second instance before that tribunal. This practice, though subject +to great delay, would have the advantage of guaranteeing the review +of these cases by a competent and properly qualified magistracy +rather than by a biased and tyrannical executive. He alleged that +four hundred pesos in the Philippines meant as much as a thousand +elsewhere. Another suggestion advanced by Misa was that suits and +investigations involving real hacienda should be tried by competent +judges, rather than by the governor, whose own personal interest in the +cases was often too great to ensure fair trial. Another evil pointed +out by Misa, and a fairly typical one throughout the history of the +colony, was the delay and uncertainty of the residencia. This defect +was particularly apparent at this time because all cases of residencia +had to be sent to Mexico, since there was no tribunal in Manila +with jurisdiction on appeal over these official investigations. Misa +described the plight of various alcaldes mayores, corregidores, and +other officials who had been investigated and suspended from office, +awaiting the outcome of the residencia. There were no persons to take +their places; as a result, the suspended officials were without gainful +employment, while their districts and offices reverted to a state +of lawlessness, barbarism and disorder, without governor, judges, +or incumbents. The governor had attempted to remedy the trouble +by making temporary appointments from among the removed officials, +but this he had no authority to do; moreover, the reinstatement of +officials whose conduct was under investigation was subversive of +the best interests of government and justice. The governor's action +in these cases had raised a storm of protest in the colony, yet he +was forced to take these steps in preference to leaving the natives +without government and protection. Misa presented this picture of +the state of affairs in the colony to show the evil results of the +absence from the Philippines of a tribunal with authority to conduct +residencias and to provide offices. + +While this series of complaints was not followed by an open advocacy +of the establishment of a royal audiencia in Manila, the defects +which were pointed out showed the desirability of putting an end +to the governor's intervention in judicial matters. There can be no +question but that the arrival at court of such letters showed clearly +the need of a tribunal at Manila for the administration of justice. + +Complaints were also directed against this state of affairs by Antonio +de Morga, lieutenant-governor of the Islands. This official argued +that the commonwealth required an audiencia in order to secure a more +equitable administration of justice. [158] He called attention to the +overcrowded docket of the court over which he presided and emphasized +the impossibility of the satisfactory termination of the cases waiting +to be tried. That the defects referred to in these communications +were appreciated at court is evidenced by the cédula of May 26, +1595, which emphasized the necessity of administering justice in the +Philippines with "universal equality, mildness and satisfaction." [159] + +Nevertheless the presence of a tribunal had the effect of encouraging +the inhabitants of the Islands to litigation. It has been said that +there have been more lawsuits in the Philippines than in any other +country of the same size and population, which remark probably would +apply to any country where the Spanish judicial system had lately +obtained. This condition was no doubt due to the fact that adequate +facilities existed whereby the natives could go to law. Lawyers +and judges were ever unduly ready to encourage and hear any suits +which might arise if there were any way in which profit might be +derived therefrom. Pardo de Tavera, in discussing these phases of +the legal history of the Islands, states that the laws protected the +native, but at the same time they kept him in a state of perpetual +tutelage. Judgments were passed by native magistrates in suits +between natives in the later days of Spanish rule, but in general +throughout the period of Spain's domination suits were prosecuted +under the direction of a protector of the Indians in case one party +to a suit was a Spaniard, or when the rights of the natives were in +any way jeopardized or injured by a Spaniard. "In this manner Spanish +prestige was preserved, inasmuch as it was no longer an Indian who +asked for the punishment of one belonging to a superior race, but a +Spaniard who took up the Indian's cause and conducted the suit against +another Spaniard." [160] Thus it may be seen that in Spain's judicial +system the means were provided, in theory at least, whereby the meanest +native could obtain justice, not only among his fellows, but in cases +to which members of the superior Spanish race were parties. + +The declared purpose of the whole system of legislation for the Indies +was the material and spiritual well-being of the Indians. [161] The +officials of the government, the churchmen, and the encomenderos +were especially charged in their commissions and in official +correspondence to make the protection and welfare of the Indians +their chief concern. Attention has just been directed to the office +of protector of the Indians. The fiscal, or one of his assistants, +attended to that duty in the Audiencia of Manila, while agents +(agentes fiscales) were especially commissioned by the fiscal to act +in that capacity in the provinces. [162] We have also noted that the +oidores were charged with the duty of protecting the Indians when +officiating as visitors in the provinces. Such cases, also those +involving decisions of corregidores and alcaldes mayores by which +the natives were dealt with unjustly, were appealable, under certain +circumstances, to the audiencia. These cases commanded the immediate +attention of the tribunal, to the exclusion of other business. [163] +Among the vast number of cases at our disposal which illustrate the +jurisdiction of the tribunal over such matters, the following may be +selected as typical. On May 16, 1796, the fiscal brought a charge in +the audiencia against the governor, exposing the sufferings inflicted +upon the Indians of the barrio of Santa Ana by the corregidor of Tondo +[164] in connection with the construction of a road. The audiencia +refused to consider the case in first instance, as the matter was not +contentious, but it recommended that the fiscal should make the charges +before the governor and have him render a decision upon the matter; if +exception were taken to his decision the case could be appealed to the +audiencia. The oidores found that they were without jurisdiction over +the case in first instance and they declared that their entertainment +of the suit would be in violation of the laws of the Indies. [165] +The fiscal appealed from the judgment of the audiencia. The Council +of the Indies, in a return communication dated May 13, 1798, [166] +approved the ruling of the audiencia, affirming that in cases of +the nature referred to, the fiscal, as protector of the Indians, +should submit testimony in behalf of the latter to the governor, +who should consider whether the Indians had been wronged and render +his decision accordingly. If exception were taken to the decision of +the governor, the case could then be appealed to the audiencia. While +these appeals and this litigation were in progress, the Indians were +being subjected to repeated hardships. + +This case is illustrative of the ineffectiveness of the system for the +administration of justice in Spain's colonies. It had taken two years +for this appeal to be carried to Spain and receive the attention of +the Council of the Indies. The answer had yet to be returned, probably +requiring at least a year more for the return of the Vera Cruz and +Acapulco galleons and for the proper proceedings to be carried on +in the Manila tribunal. It is questionable whether the Indians in +whose interests this was ultimately done ever received any benefit +from these legal proceedings. + +The case which has just been described involved the trial and +punishment of a corregidor in the defense and protection of the +natives. It is important to note that this case was ordered to be +tried in first instance by the governor and not by the audiencia. The +jurisdiction of the latter tribunal in second instance was confirmed +by the king on this occasion. By the law of October 9, 1812, and by +others made pursuant to the Constitution of 1812, the audiencia was +given jurisdiction in first instance over cases involving provincial +officials, and particularly judges. In regard to the care and +protection of the Indians, which was involved in this controversy, +the law provided that such cases should be treated originally by the +corregidores and alcaldes mayores with appeal to the audiencia. [167] +But this case dealt primarily with the official conduct of a +corregidor, over whom the governor had more direct jurisdiction. The +cédula of May 13, 1798, which constituted the reply of the king to +the appeal of the fiscal in the case described above, ordered that +henceforth in cases affecting the relations of the corregidores and +alcaldes mayores on the one part and the Indians on the other, the +fiscal, audiencia, and governor should act in acuerdo, in that way +avoiding friction and quarrels over jurisdiction. [168] + +That the audiencia did not always try cases relating to the Indians +with requisite promptness, is evidenced by the many and repeated +letters of the king to the tribunal, to the fiscal, as protector of the +Indians, and to the regent, chiding these officials for delay. On many +occasions the royal zeal for justice in the treatment of the Indians, +based on a lack of knowledge of the true nature of the Filipino, +completely overruled all considerations of practicability and common +sense. As an illustration of this, on June 20, 1686, certain natives +of the province of Bulacán sent false evidence to the Council of the +Indies; this testimony was taken in preference to that remitted by +the audiencia, the decision of the latter body being reversed by the +Council of the Indies. The audiencia refused to allow the execution of +the new judgment; the oidores all offered to resign in protest, and +the regent, at the risk of removal, reopened the case. It was proved +by the testimony of a number of officials and by the confessions of +the natives who had perjured themselves that the evidence upon which +the Council had acted was false. [169] A record of these proceedings +was remitted to the Council and that tribunal promptly reversed its +former decision. + +Further illustrations of the authority of the audiencia in cases +involving natives may be seen in suits which arose from time to +time over the illegal treatment of the latter by the friars and the +unjust occupation of the natives' lands by the religious orders. These +suits afford illustration, also, of the services of the audiencia as +an agency to force persons to show their titles to lands which they +held. [170] This jurisdiction will be given more detailed treatment +in the proper place, but the brief citation of one or two cases among +many seems advisable to illustrate the activity of the audiencia in +protecting the Indians, both by trying suits involving them and by +actually intervening in their behalf. + +Various revolts broke out among the Indians near Manila from 1740 +to 1750. These insurrections were said to have been provoked by the +encroachments of the Augustinians and Dominicans on the lands of the +natives. The matter was called to the attention of the home government, +and Pedro Calderón Enríquez, an oidor, was ordered to investigate +the charges made against these religious orders and to ascertain +the validity of their claims to the lands in question. The friars, +when ordered to submit titles to a secular judge, refused to comply, +claiming ecclesiastical exemption. In the face of their opposition, +Calderón dispossessed the friars of the lands which they were said to +have usurped and which they were continuing to hold without legitimate +title, restoring the lands to the crown. The case was appealed to +the audiencia and that tribunal upheld the visitor. + +Calderón also found that the University of Santo Tomás and the +Dominicans, in collusion with a clerk of the audiencia, had taken +lands from the native town of Sílang in 1743. Calderón restored the +lands to their rightful owners and his act was approved in judicial +review by the audiencia. The friars took exception to this by appealing +to the Council of the Indies. The Council notified the audiencia of +its affirmation of the judgment of Calderón and further stated that +the lands of Sílang, Imús, San Nicolás, and Cavite had been unjustly +seized and should be restored. This was not only an affirmation but +an extension of the sentence of the oidor, made by the Council after +the royal fiscal (of the Council of the Indies) had reviewed all the +evidence presented in the case. This suit shows the efforts made to +carry out the royal intention that the natives of Spain's colonies +should be justly treated. It also shows the respective jurisdictions +of the audiencia and Council of the Indies as courts of review and +appeal in adjusting disputes between the church and the Indians. + +In addition to the above, the audiencia exercised jurisdiction over the +religious themselves, both as individuals and as subjects of the king, +punishing them for violation of the civil laws of the realm to which +they were amenable as subjects. An illustration of this is furnished by +the following case which occurred in 1617. Two Augustinian provincials +were murdered, one, Fray Gerónimo de Salas, by poisoning, and his +successor, Fray Vicente Sepúlveda, by strangulation. A tribunal of +friars, composed of nine prominent members of the Augustinian order, +was appointed by the bishop for the investigation of the crime. This +body, after due consideration, caused six members of the order to be +apprehended; four of them were believed to be guilty of the murder +and two were suspected of connivance at the crime. On July 31, 1617, +these six culprits were handed over to the civil government, and on +September 2 of that year, the four guilty ecclesiastics were condemned +to death by the audiencia, while the other two were sentenced to six +years of service in the galleys. This case illustrates the extent +of ecclesiastical jurisdiction exercised respectively by the church +and government tribunals under the fuero mixto. [171] The former, +on this occasion, made the preliminary investigations and handed the +culprits over to the secular authority with recommendations; the latter +conducted the trial, passed sentence and saw to its execution. The +trial and conclusion of this case covered the remarkably short period +of thirty-three days. [172] + +Speaking generally, the authority of the audiencia over ecclesiastical +affairs extended to disputes between orders, between the government +and the church, or its representatives, to cases relating to land +titles, to those alleging abuses of the Indians by the friars, to +cases involving the royal patronage, and to cases of fuerza. [173] +As the question of the ecclesiastical jurisdiction of the audiencia +will be discussed more fully in subsequent chapters, no effort will +be made at this time to particularize concerning its authority over +church affairs, it being merely desirable to suggest the fact here +that the audiencia had jurisdiction in suits involving the church and +the civil government and in those which had to do with the protection +of the natives from the abuses of the ecclesiastics. + +Records of thousands of cases exist to show the different kinds of +suits tried judicially in the audiencia. Civil and criminal matters +came up in the tribunal as in all other courts of law, and hence, +as such, merit only passing attention. Among civil cases possibly the +most typical were those relating to encomiendas. It must be borne in +mind that the Spaniard, however mistakenly from the theoretical point +of view, regarded the encomiendas as property in the same sense as +a modern farmer regards his farm as property. He paid a rental or +tax to the government, he engaged in agriculture for gain, and, as +we have seen, the moral duty of protecting, uplifting, or educating +the Indians rested but lightly on his conscience. Therefore, as these +cases are discussed in the following pages, the value of the property +and not the treatment of the Indians on the encomiendas is the first +consideration. As already stated, the law of Malines reserved for the +Council of the Indies final action in all encomienda suits involving +more than one thousand ducats. [174] + +Many suits involving encomiendas came up prior to the establishment +of the audiencia; the defects apparent in the trial of these cases by +the governor show clearly the need of an audiencia at that time. The +earliest case noted in this connection was prosecuted in 1580 by the +asesor of the governor against Doña Lucía de Loaxa, the widow of an +encomendero, with the object of dispossessing her of an encomienda +held at Butuán, Mindanao. [175] She was charged with having nullified +her title by marriage to another encomendero, since the law forbade +married women to hold encomiendas. In her defense she alleged that +the desire of the governor to enforce the law was only pretense, +since many married women in the Philippines held encomiendas. She +stated that the governor desired to deprive her of her property in +order that he might bestow it upon a friend. This case was carried +to the Council of the Indies, and it illustrates the effectiveness +of the law of Malines, which took from the governor authority over +a case in which he was interested and gave final jurisdiction to the +tribunal in Spain. The papers pertaining to this case were returned +to the governor with orders to do as the law commanded. The defendant +was accordingly removed from the encomienda. + +Another case was disposed of in a slightly different manner. On January +22, 1581, Juan Gutiérrez de Figueroa, second husband of Magdalena +Rodríguez, widow of an encomendero of Mindanao, filed suit before the +governor praying to be continued as possessor of an encomienda which +his wife had held prior to her marriage to him. He brought the suit +on the grounds that he was a soldier and was accordingly deserving +of reward. This case, in accordance with the provisions of Malines, +came within the jurisdiction of the governor. He denied the petition, +but the soldier appealed the case to the Council of the Indies and that +tribunal again reversed the decision of the governor on May 23, 1584. + +In January, 1582, Bishop Salazar, as protector of the Indians, +brought suit before Governor Ronquillo de Peñalosa against Juan de +Ayala, a Spaniard holding various encomiendas in different parts of +the Island of Luzón, but resident in Manila. Two specific charges +were brought against Ayala. He was said to have reduced the Indians +on his encomiendas to the status of slaves, which was forbidden +by the law of November 9, 1526. [176] He had also violated the law +which prescribed that encomenderos should live on their encomiendas, +[177] and give their personal attention to the Indians thereon. Ayala +adduced testimony to prove that this law was a dead-letter and that +it was disregarded by most of the encomenderos. He even showed that +there were many of them residing in Spain who held encomiendas in +Spain and Perú. Governor Ronquillo felt that the evidence at hand was +insufficient to justify a decision in this case, so he permitted it to +be carried to the Council of the Indies. The latter tribunal rendered +its decision on June 24, 1584, communicating to the Audiencia of Manila +its ruling that Ayala should be allowed to retain the encomiendas in +question, but the president and oidores were especially charged to +enforce the law prohibiting slavery in the Indies. + +The procedure in these cases confirms the laws already alluded to, +which were promulgated before the establishment of the audiencia, +that the governor should have jurisdiction in suits involving less +than a thousand ducats, with appeal to the Council of the Indies. It +would also appear, from the data at our command, that the audiencia +inherited the governor's former authority in these matters. + +During the period from 1583 to 1589, and after the re-establishment of +the audiencia in Manila, this tribunal exercised authority over suits +involving encomiendas. There is so much sameness in the nature of these +cases that little would be added by describing them. There appears +evidence of considerable conflict of jurisdiction, however, between +the governor and the audiencia over the adjustment of the latter +to the new situation relative to the encomiendas. Governors Acuña, +Tello and Fajardo sought on various occasions to retain jurisdiction +over suits involving encomiendas on the basis of the law of Malines, +notwithstanding the fact that the audiencia had been given the duty of +trying such cases. When appeals were made to the Council of the Indies, +that tribunal made clear its determination that the audiencia should +try suits involving encomiendas, but that in administrative matters +relating thereto the will of the governor should prevail, unless +his decision were contested through legal channels. An illustration +of such difference of opinion may be noted in the letter written by +Governor Juan Niño de Tavora on August 4, 1628, to the Council of the +Indies. Tavora complained of the action of the audiencia in regard +to the disposal of a case involving an encomendero who had married +the widow of another encomendero, and who had tried to unite and +hold both their encomiendas after marriage. The governor contended +that two persons holding encomiendas by previous right should choose +the more desirable one and relinquish the other, in accordance with +the practice in other places. Especially should this be done in the +Philippines, he held, because there were so few encomiendas in the +Islands. The fiscal approved of this suggestion and made a motion +before the acuerdo of the audiencia that this course should be pursued, +but, as no laws had been promulgated on the subject, there was no +precedent to follow. The audiencia accordingly declared that such +a course as the governor had suggested would not be legal. Tavora +petitioned the Council of the Indies for a ruling on the subject. The +Council sustained the governor in its consulta of January 15, 1630. + +There was apparently no limit to the value of suits involving +encomiendas which might be tried in the audiencia, and appealed to +the Council of the Indies. There exists the record of one case in +which the encomienda was valued at 223,000 pesos. In this suit the +fiscal proceeded against Doña Juana Leal and Francisco de Rebolledo, +residents of Mexico, for possession of an encomienda held in the +Philippines. This case affords an illustration of the delays to +which the course of justice was subject, it being appealed to the +Council of the Indies in 1612, and not finally settled till 1620. A +suit involving an encomienda valued at 430,102 pesos came before +the audiencia in 1703, when two residents of Manila, named Delgado +and Abaurrea, were dispossessed of an encomienda by the governor. The +encomienda was awarded immediately to Juan de Echevarría and Antonio de +Endaya. The latter were prosecuted in the audiencia by the dispossessed +encomenderos, and the tribunal, in compliance with the law of Malines, +made the prescribed investigation, recommending that the governor's +action should be disapproved, since the evidence showed that the +persons installed on the encomienda were distant relatives of the +governor. The Council adopted the recommendations of the audiencia in +this case, ordering that the original encomenderos should be restored +to their estate, and that this breach of royal commands should be +registered against the governor to be answered in his residencia. + +Another suit, of a similar nature to that described above, was +brought in the audiencia in 1713 against Juan de Rivas, who had +been assigned two encomiendas in Leyte and Cebú, respectively, +by the governor, thus depriving one Saramiento who had held them +formerly. The plaintiff claimed that he had made great improvements +on these estates, spending all his income thereon, and as yet had +received no profits from the lands. He petitioned, therefore, that +these encomiendas should be bestowed upon him for another term. [178] +The audiencia withheld its judgment on this case, referring it to the +Council. That body, after seeking the advice of the royal fiscal and +contador, recommended to the king that Saramiento should be allowed to +retain the encomiendas for another term, and it was accordingly done, +a royal order to that effect being expedited on May 29, 1715. + +It is notable how frequently the action of the audiencia or that of +the governor was confirmed by the Council of the Indies. In most of +the cases which have been described, the original papers, including +letters, autos and testimonios, each expediente [179] containing from +one hundred to two thousand pages, are marked "seen by the Council", +"action of the governor confirmed", or "no action to be taken"; +the original decisions being thus confirmed. It may be concluded, +therefore, from this brief study that the audiencia had appellate +jurisdiction as a court of law over suits involving encomiendas, and, +furthermore, that the tribunal acting in that capacity placed a very +effective and definite check on the governor in his executive control +over encomiendas. + +Property suits, aside from those involving encomiendas, were +numerous. One noted case may be cited in which the heirs of Governor +Fausto Cruzat y Góngora in 1703 brought suit to recover money owed +by Gaspar Sánchez and Bernardo de Guirós to the ex-governor. The +audiencia failed to award the sum, which approximated 8000 pesos. The +case was appealed to the Council of the Indies and the decision was +reversed, the plaintiffs being awarded the money originally sued for, +with costs of suit. A similar case was brought by the children and +heirs of Governor Bustamante against Juan de Nebra, general of the +galleon. The case was tried in the audiencia and the tribunal decided +in favor of the defendant. The case was appealed to the Council of +the Indies and the decision was reversed. [180] In 1736 Gaspar Thomé, +a Frenchman, sued the estate of a deceased debtor, Juan de Olerte, +for 2000 pesos. [181] The case was appealed to the Council of the +Indies, and fully two hundred pages of documentary material exist, +carefully annotated and digested, to show how thoroughly and with +what formality a suit of even that small import was tried. We have +already noted the tendency of the government to discourage the appeal +of property suits to the Council of the Indies. The jurisdiction of +the audiencia was final, for the most part, in suits involving sums +from 200 to 6000 pesos. + +As matters of trade were always important in the life and politics of +the Islands, commercial suits commanded a large share of the attention +of the audiencia. Up to 1769 the jurisdiction of the audiencia was +supreme in matters relating thereto, [182] but on December 13 of that +year a consulado was established at Manila, thereby relieving the +audiencia of much of its former control over commercial affairs. [183] +The consulado, from the time of its establishment, was an ever-present +thorn in the side of the audiencia and conflicts over the respective +jurisdictions of the tribunals [184] were continually arising. We +may briefly cite one or two cases to illustrate the respective +jurisdictions of the audiencia and the tribunal of the consulado. On +December 26, 1806, action was brought by two Spaniards against the +British firm of Jacob Smith and Company on account of the inferior +quality of goods sold to the plaintiff by that firm. [185] Suit +was brought originally in the audiencia, but the consulado applied +to the governor for jurisdiction in the case on the ground that, +as a commercial suit, it should be tried in the consulado. [186] +The governor awarded jurisdiction to the audiencia. The consulado +re-appealed the case, but the Council sustained the governor's decision +on the ground that this was a suit between a private individual and +a merchant which should be tried in the audiencia, the tribunal which +usually tried cases between individuals. The function of the consulado, +the royal decree stated, was to try suits of a commercial character +which arose between merchants. [187] + +An occasion on which the jurisdiction of the audiencia was unquestioned +may be noted in the suit which was appealed to the Council of the +Indies from the audiencia in 1698, over the wrecking of the galleon +"San Francisco Xavier". The admiral, Don Esteban Ramos, was held +accountable for the silver carried on the ship and the merchants of +Manila sued him for what they had lost in the wreck. [188] It was +charged that Ramos had landed the silver, but was seeking to conceal +that fact, claiming instead that it was lost. The case was appealed +to the Council by the defendant. [189] The Council referred the case +to the Junta de Guerra, [190] and that tribunal reversed the decision +of the audiencia, declaring that Ramos was a faithful servant of His +Majesty, and still a poor man. There was no possibility of his having +the silver. Ramos was transferred to the Atlantic flota. [191] The +royal fiscal, in the opinion rendered for the guidance of the junta, +made the comment that frequently the oidores of colonial audiencias +were influenced, against their own ideas of justice, by the opinions +and wishes of the most powerful residents. Such was possibly the case +in Manila on this occasion. This statement at least shows that those +in control at Madrid were aware of some of the fundamental weaknesses +of the colonial audiencias. + +Another typical case, indirectly connected with commerce, occurred +in 1713, when the fiscal of the audiencia prosecuted three captains, +Enrique Boynont, Fernando Gall and Diego Brunet, who had arrived at +Cavite in command of French merchant and exploring ships, without the +royal permission to trade in the Islands. These captains, who were +foreigners, of course, were charged with smuggling, and were brought +before the royal audiencia. The charges against them were not proved, +and in due time the cases were dismissed. [192] The laws of the Indies +authorized the governor and the alcaldes del crimen to try cases of +strangers, [193] but in Manila, where there were no magistrates of +this category, such cases were tried by the audiencia. + +Perhaps the most important commercial suit that was ever tried in the +Audiencia of Manila, came before that tribunal in 1656, when several +residents of Mexico were excluded from the use of the galleon and +their goods confiscated. This action was in accordance with repeated +cédulas and regulations which reserved the space in the galleon for +the exclusive use of the Manila merchants and authorities. Mexican +traders, who had from time to time shipped goods on the galleons, +were forbidden to crowd out the Manila merchants, who depended on +that trade exclusively. The fine levied on this occasion amounted to +273,133 pesos. The case was appealed to the Council of the Indies, +the aforesaid decision was upheld, and the sum was finally ordered +paid in Mexico. [194] + +During the greater part of the audiencia's existence there was no +consulado in Manila and the jurisdiction of the audiencia in commercial +cases extended to suits between merchants for space on the galleon. The +tribunal had jurisdiction over the trial of officials for dishonesty in +the assignment of galleon space: investigations of officials charged +with reserving more than their due share of space, and such other +cases as are mentioned in the laws of the Indies as being the concern +of the consulados of Lima and Mexico. [195] Officers of the galleons +were tried for mistreating seamen, for smuggling, for exceeding the +limit of merchandise allowed, for giving passage to lewd women and +to persons travelling on the galleons without permission. They were +tried for carrying more slaves than they were allowed by law to carry, +for charging exorbitant prices of passage, and for failing to turn +in accounts of money collected. Commanders were often held criminally +responsible for carelessness in navigation and for shipwrecks. These +cases were tried in the tribunal of the consulado after 1769. + +The audiencia had appellate jurisdiction over all residents of the +colony, both natives and Spaniards. All crimes committed within five +leagues of the city of Manila were ordered to be tried by the oidores +in first instance, [196] but unless they were of extraordinary +importance, special investigators, usually alcaldes mayores or +alcaldes ordinarios, were delegated to try them in the name of the +audiencia. [197] As already stated, most of the criminal cases arising +in the colony were tried in first instance in the provinces by the +alcaldes mayores. Cases appealed to the audiencia were reviewed in +that tribunal. The trial consisted of an examination of the summary +or abstract of the case as it was originally tried by the lower judge +and, if errors were found to exist, the decision was either reversed +or the case was remanded to the judge who first had tried the case, +for second trial. [198] The audiencia did not try the case with the +defendant present. It merely reviewed the proceedings of the lower +judge. Criminal cases were not ordinarily appealable to the Council +of the Indies. + +The procedure in criminal cases was generally so similar to that +already described that it is unnecessary to give any illustration +of the audiencia's criminal jurisdiction. Most of the cases that +eventually reached the audiencia involved Spaniards, native caciques, +and half-castes. Natives who were charged with robbery, murder, and +crimes of a depraved nature were usually of a class unable to finance +appeals to the audiencia. This fact probably accounts for the scarcity +of criminal cases appealed during the first two centuries of the +audiencia's existence. [199] However, the reforms of the nineteenth +century brought an increased number of cases into the audiencia by +systematizing the administration of justice, differentiating the +judgeships from administrative offices, and providing for greater +facility of appeal. [200] + +It is probable that in criminal as well as in civil cases, Spaniards +derived considerable benefit from the fact that the audiencia was +composed of magistrates of their own nationality. High officials, no +doubt, escaped the consequences of their misdeeds more easily than did +men of more modest social and political attainments. This is shown by +the well-known case of the murder by Governor Fajardo of his wife on +July 21, 1621; this came up before an audiencia which was composed of +judges who were largely under the governor's domination. The tribunal +gave the matter a cursory investigation, after which the governor was +allowed to go unpunished. [201] We shall see that proceedings were +different, however, when officials under investigation were charged +with offenses against the government. The residencia, which dealt +with such charges, was a pitiless form of inquisition in which the +officiating magistrate was in duty bound to find his victim guilty, +if possible. + +Criminal cases of a character slightly different from those described +above were prosecuted by the government for the infraction of any +governmental regulation, or for the evasion of the payment of taxes +or duties. The collection of revenues devolved upon the oficiales +reales and they were ordered to accomplish their duties in this +particular, if possible, without the assistance of the courts. [202] +Numerous cases did come up in the audiencia, however, involving the +prosecution of individuals for violations of the alcabala, quinto, +and the tax on the export of silver (comisos). Persons assisting in +the apprehension of violators of these laws were rewarded with a part +of the proceeds of the fine, the remainder becoming the property of +real hacienda. On October 6, 1783, the final jurisdiction in cases +of smuggling and non-payment of the king's fifth was taken from the +audiencia, appeals being authorized to the Council of the Indies. [203] + +Reference has already been made to the services of an oidor as +special auditor de guerra. This, as well as other matters relating to +the jurisdiction of the governor and captain-general over military +matters, wherein the audiencia had no authority, will be noted when +an examination is made of the relations of the governor and audiencia +in a subsequent chapter. Suffice it to say here that the audiencia +did not have jurisdiction as a court over soldiers or military affairs. + +Closely related to the subject of the defense of the Islands, and +the exercise of judicial authority over soldiers was the special +jurisdiction which the governor had over matters relating to the +Chinese. This subject will be treated in greater detail when we +discuss the relations of the audiencia and the governor. + +During the first two centuries of its existence the audiencia had +jurisdiction as a judicial tribunal in the cases and instances which +have been noted. It had civil and criminal authority, original and +appellate. Its decisions were final in civil suits on claims for six +thousand pesos or less. Criminal cases were settled in the audiencia. + +The judicial authority of the audiencia was impeded during the greater +part of its history by the failure of the government to entrust it +with complete jurisdiction in all civil and criminal matters, and +by the tendency of the latter to interfere in matters of minute and +insignificant detail, which should have been left to the magistrates +of the tribunal. The Constitution of 1812 and the reforms made in +pursuance thereof really effected the changes which had long been +needed. The audiencia's jurisdiction was made final in all civil suits +and increased in administrative cases; thereafter no appeals were +made to the Council of the Indies unless they involved administrative +law. Cases involving official dishonesty, incapacity, residencia, +pesquisas, treason, disputes between audiencias and other tribunals +over conflicts of jurisdiction, and questions of the interpretation of +the law were still carried to Spain. These were important steps for the +improvement of colonial judicial procedure; they served to simplify it, +preventing a multiplicity of cases from being carried to Spain which +should have been settled within the colony. These tardy reforms left to +the home government more time in which to occupy itself with questions +of governmental policy, leaving to the audiencias more authority +and responsibility in purely judicial matters, thus giving to them +a greater prestige in the commonwealths wherein they were situated. + +The qualifications for the magistracy were also raised at this time, +although it cannot be said that the magistrates of the audiencias were +at any time incompetent or lacking in ability. The audiencias of the +colonies were given equal status with those of the Peninsula, and were +thus elevated in dignity and standing to the rank of tribunals of the +first order. The chief defects of the colonial judicial system of the +seventeenth century were thus corrected, though somewhat tardily. It is +unfortunate indeed that these changes applied only to a mere skeleton +of Spain's former colonial empire. + +In this chapter we have discussed the audiencia as a formal court of +justice, with methods, practices, and traditions little different from +those of any tribunal of justice. However, it had judicial authority +more extensive and far-reaching than has yet been indicated. Among the +different kinds of cases over which the audiencia had jurisdiction, +perhaps none was more important, and certainly none was more +exclusively peculiar to the Spanish judicial system than suits of +residencia. So distinct and extraordinary was that phase of judicial +activity that it merits consideration apart from a discussion of the +audiencia's functions as an ordinary court of law. In the following +section we shall note its jurisdiction as an administrative court over +suits wherein the government was a party and wherein the object was +not only to punish offenders, but to act as a preventive of official +misconduct. + + + + + + + +CHAPTER IV + +JUDICIAL FUNCTIONS OF THE AUDIENCIA; THE RESIDENCIA [204] + + +The purpose of the residencia was to uphold the morale of colonial +service by making officials answer for all their acts in a judicial +examination held at the close of their terms. It may be said that +the fear of the residencia was almost the sole incentive to righteous +official conduct or efficient public service, and it will be seen that +the audiencia exercised very pronounced authority in this. Indeed, +the audiencia had general supervision in a semi-judicial capacity over +the services of officials and public servants in the colonies. It was +the function of the audiencia to send reports to the court relative +to the conduct, work, or attitude of any employee or official of the +government, or of any resident of the colony. These reports were known +as informaciones (pareceres) de servicio. [205] The tribunal itself +was ready at all times to hear complaints against provincial governors +and judges, treasury officials, magistrates, governors, or, in fact, +any and all officials holding their positions by virtue of the king's +commission. [206] Charges might be made by a wronged party or by anyone +whose knowledge of an abuse was sufficient to justify charges. Heavy +penalties were imposed upon persons making false or unsubstantiated +charges. [207] Complaints against alcaldes mayores and corregidores +were most likely to be made during the regular investigation of the +visiting oidor, which, as we have noted, occurred every three years, +but sufficient complaint might be made to justify the dispatch of a +special investigator at any time. [208] + +The findings of the above inspections might be reviewed by the +audiencia and lead to the suspension and dismissal of the official +under investigation. [209] The final action had to be confirmed by +the Council of the Indies in case the person concerned were a royal +appointee, but in these matters the action of the local officials was +usually approved. For the removal of oidores and oficiales reales a +slightly different method was pursued. A magistrate of the audiencia +was designated to investigate the case, the evidence was submitted to +the Council of the Indies and final action was taken by it and not by +the audiencia. [210] Any and all charges brought against an official +in these investigations, even though he were cleared at the time, +might be revived in the residencia. + +Suspensions from office were made by the governor with the advice and +consent of the audiencia. The governor had the legal right to make +temporary removals, but on account of the seriousness of such an act, +and the considerations depending upon it, he usually preferred to +have the support of the magistrates in the matter. The governor, as +vicepatron, could suspend prelates and other church officials, but he +seldom, if ever, exercised his powers to the full extent. The audiencia +at Manila, on the other hand, actually drove the archbishop from the +city on various occasions. The suspension and the removal of members +of the ordinary clergy from their districts was a frequent occurrence, +but churchmen were not subject to residencia. The audiencia had no +authority to suspend or remove the governor, though the magistrates +could and frequently did bring charges against the governor which led +to his dismissal. Governors actually suspended and removed oidores at +times, though such acts were protested as violations of the law which +authorized only the Council of the Indies to remove these officials. + +Briefly, the procedure in making these removals was as follows: +the governor and audiencia investigated the conduct of an official +whenever circumstances demanded it; the latter was either suspended +and recommended for removal, such recommendations being made by the +audiencia to the governor or to the Council of the Indies, according +to the rank of the official, or the tribunal could make the removal +itself. [211] If exception to the action of the audiencia were taken, +all the papers relative to the case were forwarded to the Council of +the Indies, and if good reasons were found to exist for the action +of the lower court the Council approved its action. [212] This, +was not the residencia as usually considered. + +Of the various authorities at our disposal, Bancroft gives the most +acceptable characterization of the residencia. He defines it as an +examination held, or an account taken, of the official acts of an +executive or judicial official within the province of his jurisdiction +during the term of his incumbency. This, Bancroft says, was done +at the expiration of the term of office or at stated periods, or, +in case of malfeasance, at any time. [213] The principle underlying +the institution of the residencia was bequeathed to the Spaniards +by the Romans, being similar to and probably derived from their law +which gave the right of accusation to any Roman citizen against an +office-holder. The residencia was conducted by a judicial official, +and it combined the features of a general survey of the career of the +official under investigation, an auditing of his accounts and a formal +trial. Its purpose was to ascertain whether or not the official had +faithfully executed his duties and it served to clear him if he were +proved honest, giving him a clean certificate of recommendation. If +he were found guilty of official misconduct or dishonesty he was +apprehended, degraded, and punished, according to his deserts. + +Professor Bourne has written in regard to the residencia: + + + The residencia ... was an institution peculiar in modern times of + the Spanish colonial system. It was designed to provide a method + by which officials could be held to strict accountability for + all acts during their term of office.... To allow a contest in + the courts involving the governor's powers during his term of + office would be subversive of his authority. He was then to be + kept in bounds by realizing that a day of judgment was impending, + when everyone, even the poorest Indian, might in perfect security + bring forward his accusation. In the Philippines the residencia for + a governor lasted six months and was conducted by his successor + and all the charges made were forwarded to Spain.... The Italian + traveller Gemelli Careri who visited Manila in 1696 characterizes + the governor's residencia as a "dreadful Trial", the strain of + which would sometimes "break their hearts." + + +Professor Bourne stated that it was the opinion of De Pons that +"the severities of the residencia could be mitigated, and no doubt +such was the case in the Philippines. By the end of the eighteenth +century the residencia seems to have lost its efficacy." [214] + +It is important to note at the outset that the residencia was not +conducted periodically alone, but that it might be held at any time +in the career of an official. The term pesquisa was applied to the +form of residencia which was carried out by a special investigator +(pesquisidor), sent when serious charges were made against the conduct +of an official. [215] In the investigation which took place the +official might be fined, or if grave offenses were proved, he might be +removed from office. Appeals might be made from the pesquisidor to the +audiencia and to the Council of the Indies. In fact, the judgments of +the pesquisidor were always reviewed in the local tribunal unless the +investigating judge had been commissioned by the Council of the Indies. + +The distinction which has been made here between the formal residencia +which occurred at the close of the term of office and the pesquisa +which might take place whenever serious charges were made, was first +emphasized in laws promulgated by Charles V in 1538, and by Philip +II in 1591; these aimed to put a stop to the excesses of certain +governors, corregidores, and ministers of justice, who, relying on +the practice then prevailing of taking residencias only at the close +of the official term, had committed unlimited excesses. The new laws, +above referred to, stated that although it had never been the royal +wish that residencias of royal appointees should be taken without +notice having been sent first to the monarch, the above circumstances +had made it necessary for them to be taken when charges were made. This +cédula, therefore, authorized the taking of residencias whenever the +best interests of the service required it. [216] + +This cédula was followed by another which forbade the sending of +special investigators or judges of residencia against governors of +provinces, unless persons of responsible character presented charges +against them, giving bonds to cover the costs. An investigator +was thereupon sent to conduct the trial of the official under +examination. [217] This matter is covered in slightly different +terms in the law of June 19, 1620. According to that enactment, a +receptor [218] might be sent to conduct the preliminary investigations +of corregidores and ordinary justices when these demanded instant +attention and could not await the formal residencia. If, as a result +of this inquiry, the guilt of the official seemed apparent, a more +complete investigation was made by a judge appointed by the president +and audiencia in acuerdo. [219] + +The authority to determine whether cases merited investigation or +not and whether an inquiry should be made, belonged to the acuerdo, +while the designation of the judge rested with the governor. [220] +The judges sent on these missions were not at first authorized to +pass final sentence, their decisions being subject to review in the +audiencia before execution. However, by the law of May 5, 1576, this +added authority was bestowed upon the oidores who conducted special +investigations, or residencias. [221] Appeals might be made to the +audiencia and, if the sentence imposed the death penalty or permanent +removal from office, the appeal might be carried to the Council of the +Indies. [222] The final approval of the Council was required before +action could be taken with regard to any royal appointee, except in +those cases wherein the fine did not exceed one thousand pesos. [223] + +The oidores, it seems, did not always act as impartial judges when +entrusted with these investigations; they were often influenced +by the extra reward obtained for these services, and frequently by +prejudice against the officials under investigation. Such were the +charges implied by Governor Fajardo in 1619 when he wrote: + + + It is always to be believed that the auditors (oidores) to whom the + inquiries are entrusted, ought to make them, not only as judges, + but as interested parties, so that sinister inquiries should not + be sent to your Majesty's royal Council to defraud your royal + treasury and the merits of those who have served well. I assure + your Majesty that I have heard that many inquiries have been made + with less justification than might be advisable. [224] + + +A typical illustration of the jurisdiction of the audiencia in an +investigation of this sort, and of the delay to which the minor +officials were subjected, is shown in the case of Antonio Pimentel, +governor of the Marianas, [225] whose residencia was taken in the +decade following 1711. In this case may be seen the distinction between +the formal residencia, conducted at the close of the regular term of +office, and an investigation of charges brought during the incumbency +of the official. This case illustrates both forms of investigation, +for it originated in a charge of treason brought against Pimentel, +who, it was said, had furnished food and water to the crews of two +English vessels, enemies of Spain, and subsequently these same ships +had captured the galleon, "Nuestra Señora de la Encarnación". The +conduct of the case was given to magistrate Torralba, who, on his +arrival at Guam, sent Pimentel in chains to Manila. Notwithstanding +his defense of ignorance of a state of war existing between Spain +and England, he was sentenced to the forfeiture of the bonds which +he had posted on assuming office, and in addition was deprived of +his position as governor at Guam. This sentence was rendered January +23, 1712, and was approved by the audiencia in review on July 24, +1714. [226] The tribunal sentenced Pimentel to prison and ordered +that his residencia should be taken; accordingly, an examination +was made of all his official acts as governor. Pimentel, therefore, +had not only to stand investigation for the particular act which had +brought about his removal, but he was also subjected to a residencia +covering his entire career as governor. It may be noted that the two +forms of investigation were separate and distinct on this occasion. + +Owing to the death of Governor Lizárraga, to the imprisonment of Oidor +Villa, and to the state of anarchy surrounding the administration +of Torralba as governor, Pimentel was forced to languish in prison +several years while he waited residencia. The appointment of Luís de +Tagle as his successor and judge of residencia was dated June 25, +1717. This occasion was one on which the successor of a governor +took his predecessor's residencia, owing, the commission said, to +the distance and the irregularity of communication between Manila +and Guam. A letter of the audiencia, dated August 9, 1718, advised +the governor that there were 427 unfinished cases on the docket of +the tribunal, and chief among those that ought to be decided without +delay was the review of the residencia of Pimentel; it was added +that there seemed to be no prospect that a boat could get to Guam +before 1719. The record of the termination of this case probably +reposes somewhere in the archives, tied in an aged, yellow packet, +bound by Spanish red tape. + +In summary, it may be said that there were two kinds of investigations +of official conduct, one taken at the completion of the regular term +of office and the other at any time when the needs of the service +required it. They both had the same ultimate purpose of holding +officials responsible for misconduct in office, of giving to all +persons an opportunity of having justice done to them and of deterring +office-holders from future misdeeds. + +Practically all of the colonial officials were subject to +residencia. The most sensational and widely known residencias were, +of course, those of viceroys and captains-general, but oidores, +treasury officials, encomenderos, alcaldes mayores, corregidores, +admirals, generals, captains, and constructors of galleons were +likewise examined in this way. [227] The visitors and special +investigators who were sent to examine the government of the provinces +and the state of the Indians on the encomiendas were also subject +to residencia. Residencias were exacted of all minor officials at +the same time that their superiors were examined. [228] Clerks, +notaries, secretaries, alcaldes ordinarios, regidores, and other +officials of a minor category were investigated at the same time that +the governor was examined, an alcalde or an oidor being delegated by +the new president to review their official conduct. The examination of +these minor officials seems to have become more and more perfunctory +and there was a tendency during the latter part of the nineteenth +century to continue them in office, even without investigation. When, +for instance, Governors Basco y Vargas and Marquina gave up their +offices this formality was omitted. [229] The practice of taking the +residencias of minor officials was definitely abandoned on August 24, +1799, and a rigid inspection by the audiencia of their official acts +was authorized. [230] + +Much contradictory legislation appears in the laws of the Indies +relative to the method of taking residencias; this due to the +reforms made from time to time. These laws were formulated for a +growing empire. A chronological review of them will show that the +residencia was at first more or less of an experiment. Indeed, all +the colonial institutions were in the early periods passing through +an experimental stage and these seemingly contradictory laws were +promulgated or repealed, according to their success or failure when put +into effect. Whenever, therefore, two laws appear to be in conflict, +the one of later date will be found to supersede and repeal the earlier +one. [231] In illustration of this characteristic of the laws of the +Indies we may note the following example: The cédula of December 4, +1630, ordered that the residencia of the governor should be taken +by his successor. This law was seldom, if ever, observed. Owing to +the distance from Spain and New Spain, and the consequent length +of time consumed in voyages, to the unhealthful climate, and to the +dangerous military campaigns in which the governors were compelled +to engage, death frequently intervened before the successor of a +governor arrived. These conditions (which were characteristic of +all of Spain's colonies) did not prevent the residencia from being +taken, but caused the law to be modified by the cédula of December +28, 1667, according to which judges for the residencias of viceroys +and presidents-governor and captains-general were to be designated +by the court. The period of four months, which had been authorized +for the taking of residencias by the cédula of August 30, 1582, was +extended to six months. [232] A change was necessary, the new law +declared, in order to put a stop to the incessant strife, and the +malice which had been shown by viceroys, governors, and ministers in +the taking of residencias. The king determined that henceforth the +judge of residencias should be designated by the court. The magistrate +usually named was the decano. After 1776 the regent almost invariably +conducted these investigations. The important reform of August 24, +1799, ordered that judges of residencia for governors, viceroys, +presidents, governors-intendant, corregidor-intendants, and presidents +of the Council of the Indies should be appointed by the king. [233] + +The first residencia to be conducted in the Philippines in accordance +with the new law of November 28, 1667, was that of Governor Salcedo, +in 1670. This governor had been removed by the commissary of the +Inquisition on October 10, 1668, and Francisco Coloma, the decano, +was ordered to take his residencia. [234] Coloma's intervention in the +matter was protested by the audiencia in a letter to the Council of the +Indies, dated April 7, 1670, on the grounds that the senior oidor was +also the asesor and possible successor of the governor, and for that +reason he was disqualified from taking the latter's residencia. [235] + +The audiencia suspended the proposed action of Coloma, pending the +reply of the Council of the Indies. In addition to the protest of +the audiencia, the fiscal, on May 20, 1670, sent a report of the +case to the court, which act was in fulfillment of his regular +duties as fiscal, as prescribed by the laws of the Indies. [236] +The notes from Manila were effective in bringing about the desired +results. Upon receipt of the communications, the Council of the +Indies, on June 17, 1671, ordered the nullification of all former +cédulas, cancelled Coloma's appointment to take the residencia in +question, on the grounds that he had been the governor's asesor, +and appointed Fernando de Montemayor, the oidor next in rank, to +conduct the residencia of the governor. [237] Salcedo had already +been dead three years, and two more transpired before his residencia +was completed and the autos thereof reviewed by the Council. + +The laws provided ample opportunity for appeal in cases of +residencia. The cédula of November 17, 1526, ordered that appeals +might be made to the Council of the Indies from judges of residencia +in cases involving liabilities in excess of 600 pesos. [238] Many +appeals were made to the Council in accord with this law, and the +time of the tribunal was consumed in the consideration of matters +comparatively of small importance. To obviate this defect the law was +changed on August 7, 1568, to provide that no case could be appealed +to the Council of the Indies unless the sentence imposed capital +punishment or deprivation of office. [239] The cédula of June 23, +1608, ordered that if the fine imposed upon the governor and ministers +of the Philippines did not exceed one thousand pesos the case should +be finished in the audiencia. [240] Cases involving a greater amount +were to be appealed to the Council. Sentence of judges of residencia +were not to be executed pending the trial of appeals to the audiencia +and the Council of the Indies. [241] + +Philip IV initiated further reforms in regard to appeal in +1636. Ordenanza LVI, promulgated at that time, provided that "the said +Council [of the Indies] may only have jurisdiction over the visits and +residencias of the viceroys, presidents, oidores, and officials of our +audiencias and accountants and officials of the tribunals of accounts, +officials of the treasury and those of the governors provided by the +Council with our titles." [242] Ordenanza LXII, issued at the same +time, ordered that "in the visits and residencias which are seen +and determined in our Council of the Indies," cases did not have to +be referred to the king for consultation, excepting when, in "the +residencias of viceroys, presidents, and oidores, alcaldes del crimen, +and fiscales of our royal audiencias of the Indies and governors of +the principal provinces there, condemnations of corporal punishment, +privation or suspension from office result against them." [243] +In these cases the Council was ordered to submit its decisions and +all papers bearing thereon to the king before passing judgment, +so that the final judgment might be rendered by the sovereign in +person. The Council could take final action in the residencias of +military and naval officials without consulting the king. It was, of +course, impossible for the sovereign to give his personal attention +to any of these matters, but the last word was pronounced in these +suits by responsible ministers of the court who stood high in the +royal estimation. + +Officials were usually obliged to submit to residencia before leaving +the colony, also before their promotion to higher posts. [244] Owing, +however, to the paucity of ships plying to New Spain and to the length +of time elapsing between sailing dates, officials could give bonds and +leave before the residencia was completed. [245] This was permitted +only to men of good character, whose services had been uniformly +satisfactory, and who were destined to some other post wherein their +services were indispensable. The investigation was then conducted in +the absence of the official concerned. [246] It was decreed by the +cédula of December 30, 1776, that an annual deduction of one-fifth of +the total salary of the governors and viceroys respectively should +be made, until sufficient money had been taken out to cover the +probable costs and liabilities of their residencias. [247] This was a +special assessment, distinct from the media anata, [248] and the money +deducted thereby was to be returned if nothing detrimental were proved +in the residencia. The last year's salaries of alcaldes mayores and +corregidores were withheld, pending investigations of their official +conduct and a rendering of accounts of collections made by them. [249] +If an official were cleared of all guilt, the money which had been +withheld was returned and the costs of residencia were defrayed by +the royal treasury. [250] In case the official were found guilty +of misconduct, he had to forfeit his deposits, back-salary, bonds, +and frequently to pay a large fine in addition. The amount of the +penalty, of course, depended on the extent of the guilt. It may be +said that in the Philippines the royal treasury suffered no serious +embarrassment through having to bear costs of residencia. + +The judges of residencia who served as such in addition to their +regular duties, received an additional compensation which varied +according to the place where the residencia was held, its distance +from the capital, and other circumstances. [251] This was modified by +a reform of the nineteenth century which awarded extra pay only in the +case the official were fined. This, of course, was intended to afford +the examining judge a stimulating interest in the case. Still later +the system of giving extra pay for residencias was abolished. [252] + +A detailed survey of the governor's residencia in the +Philippines would illustrate the influence of the audiencia in such +investigations. Unfortunately the story would be long and little space +remains for such a purpose. During the first two centuries of Spanish +rule in the Islands the residencias of the governors were especially +stringent, many of these officials suffering deprivation of office, +imprisonment, and exile. The families and dependents of some were +reduced to the last extreme of poverty, while the victims themselves +spent years in some distant province, unable to defend themselves +from their enemies. Many victims of the residencia were purposely +put aside in order that no appeal could be heard from them. One would +occasionally find relief at last in a tardy pardon or in a modification +of sentence, obtained through friends at home, when these could be +reached, but more often death would intervene before the exercise of +executive clemency or revision of sentence could be obtained. + +The factors of petty spite, malice, and personal ambition entered to +an extensive degree in the rendering of testimony at a residencia. A +governor, recently arrived in the colony, would be full of zeal +and ardor to inaugurate a successful administration, and make a +good record for himself. The first duty that presented itself on +his arrival was that of taking or supervising his predecessor's +residencia. Frequently, before arriving at Manila, the new governor +would be in full possession of a complete record of the misdeeds +of his predecessor, and the residencia of the latter was as good as +taken. [253] Oidores, merchants, alcaldes, treasury officials, and +churchmen, compelled to stand aside and see a governor take his choice +out of the best things, leaving for them only the husks, were not slow +in bringing charges at the official residencia. [254] A new governor, +desirous of demonstrating his intention of starting an honest and +vigorous administration, hearing nothing but evil of his predecessor, +would naturally lend himself as an instrument to the malcontents. A +fiscal, after spending six years in conflict with a governor, could be +depended on to bring strenuous prosecution against him. A magistrate +with enmity in his heart for the governor whose residencia he was to +take, was no fit person to conduct an impartial investigation. + +While as a rule the residencias of governors were severe, +due largely to the presence of the audiencia, that of Dr. Sande, +the first governor to submit to this investigation, illustrates +the evils of the residencia as conducted before the establishment +of the audiencia. His successor, Governor Ronquillo de Peñalosa, +conducted Sande's residencia and sentenced him to pay a heavy fine, +but he appealed the case to the Audiencia of Mexico, by which tribunal, +in the meantime, he had been commissioned oidor. We have noted in an +earlier chapter Ronquillo's comments on the abject state into which +the administration of justice had fallen when a man could be promoted +to a magistracy in a tribunal which had jurisdiction over his own case +on appeal. [255] However, after the establishment of the audiencia, +and until the close of the nineteenth century, the residencia went +to the other extreme, and was, as a rule, exceedingly rigorous. + +We may briefly note a few of the most severe residencias in which the +influence of the audiencia told against the victim. In 1625, Gerónimo +de Silva, temporary governor, was imprisoned by the audiencia because +he failed to pursue the Dutch after their defeat in 1617. The real +difficulty lay in the fact that Silva had incurred the enmity of the +senior oidor, who ultimately conducted the residencia, because Silva's +arrival in the Islands deprived that magistrate of the command of the +military and naval forces of the Islands. Again, Governor Corcuera, +after nine years of very successful rule, during which he distinguished +himself in several campaigns of conquest and incidentally aroused the +hostility and jealousy of the oidores, was arrested on charges made +by the audiencia on the arrival of Governor Diego Fajardo in 1644. An +oidor, who was the personal enemy of Corcuera, was designated to +conduct the residencia, the ex-governor was fined 25,000 pesos and +was imprisoned five years while the magistrates of the audiencia +delayed the transmission of the papers which permitted a rehearing +of the case. At last his defense was sent to the Council, the fine +was remitted, he was given salary for the period of his exile, and +the post of governor of the Canaries was conferred upon him. Although +the audiencia was responsible for the injustice in this case, Fajardo, +as president and governor, was held answerable in his own residencia +for his conduct toward his predecessor. + +Governor Simón de Anda y Salazar, one of the most successful +governors the Islands had ever known, was made to suffer from the +personal malice of the oidores when he gave his last residencia in +1776. [256] Among the offenses which were proved against him was +that of exercising prejudice in conducting the residencia of Oidor +Villacorta, conducted under his supervision. The residencia had been +rigorous, due no doubt to personal enmity between the oidor and the +governor, extending over a period of many years. He was also fined +4000 pesos as a price for his excessive zeal in the prosecution of +the residencia of his predecessor, Governor Raón, who had friends in +the audiencia to defend his memory and champion his cause. [257] Anda +was also shown to have absolved certain officials of real hacienda +of financial responsibility, permitting them to leave the Islands +without the consent of the audiencia. These and other charges proved +against him were said to have caused his premature death in 1776. + +Governor José Basco y Vargas, another very efficient governor, +[258] but one who had been opposed throughout his term of office by +the audiencia, was heavily fined in 1787 by the oidor designated to +conduct the investigation. The decision of the judge of residencia was +reversed by the Council of the Indies, however, and Vargas' exceptional +merits were recognized to the extent of his being appointed to the +governorship of Cartagena, with the rank of rear admiral. In taking +the residencia of Vargas, the audiencia had disagreed so completely +that the tribunal was obliged to resort to the extreme measure of +appointing a churchman as arbiter. Fray Gerónimo Caraballo, the curate +of Quiapo, was designated for that duty. + +Aside from the above brief references to notable cases in which the +audiencia exercised jurisdiction over the residencias of governors, +allowing itself to be influenced by considerations other than those +of justice, it seems desirable to review in detail at least one case +of the residencia of a governor, to show more particularly just what +authority was exercised by the tribunal, and just how that authority +was exercised. + +We may select for this purpose the residencia of Governor Felix +Beringuer de Marquina, which was the last to be conducted under the +old laws, and the last, accordingly, of the severe residencias. [259] +As governor and superintendent of real hacienda Marquina assumed +such power as no other governor had ever exercised. He was opposed at +every turn by the audiencia and probably no other governor ever had +so many of his measures vetoed or opposed by the home government as +he. The fiscal and oidores brought many charges against him; these +finally culminated, before the expiration of his term, in the royal +order of February 19, 1792, for the taking of his residencia. The +regent, Agustín de Amparán, was put in possession of the special +charges which had been made against Marquina. According to these the +governor had been careless in defending the Islands against the Moros, +who had insulted and robbed with impunity the various settlements, +with no effort having been made to check their advance. The governor +had transgressed in numerous instances the sphere of the audiencia +and had substituted his own authority. He was said to have been +guilty of immoral relations with certain Spanish women of the colony, +having deliberately and maliciously separated an intendant from his +wife on one occasion by ordering the former to a post of duty where +no woman could go; he had amassed a great fortune through trade and +by diverting the proceeds of the royal revenue to his own private +advantage; he had permitted merchants to conduct business without +proper licenses; he had allowed foreign merchants to remain in Manila +under conditions forbidden by law. [260] These and many others were +the charges brought against Governor Marquina. They may be considered +as typical of the accusations which were usually brought against +governors in their residencias. + +Amparán was commanded by the royal order above-mentioned to remove +Marquina to some spot outside Manila where he could not interfere +with the residencia, but whence he could be summoned at any time, +to give testimony in his own behalf. [261] The regent was instructed +to ascertain from the treasury officials whether Marquina should not +be required to post more than the usual amount of bonds in view of +the grave charges against him. It seems that the law already cited +requiring an annual deduction of one-fifth of the governor's salary to +cover residencia had been abrogated by a royal order dated February +13, 1782; hence there was some apprehension lest Marquina had not +deposited sufficient money. [262] + +In compliance with these orders Marquina was relieved of his office in +September, 1792, and was sent to Laguna de Bay, about thirty miles from +Manila. After five months' delay, the investigation was inaugurated +and it was concluded by July 22, 1793, but Aguilar, the new governor, +intervened and suspended the sentence on the ground that Marquina +had not been given sufficient opportunity to defend himself. Up to +this time Marquina had not testified directly. Aguilar ordered that +the ex-governor should be brought to Manila and that a lawyer should +be appointed for his defense. This was done and the charges which +had been made against him were duly answered. This evidence could +not be incorporated in the official papers of residencia, for they +had been finished and closed by the regent, but it was forwarded to +Spain under separate cover. [263] + +The official papers of Marquina's residencia, as formulated by the +regent of the audiencia, arrived before the Council of the Indies +in due time, together with Marquina's defense which had been sent +separately. The glaring injustice of the investigation as conducted +by Amparán and of the official evidence transmitted, was patent to +the fiscal of the Council. He refused to receive any testimony not +incorporated in the official papers of the case. Marquina was allowed +a retrial by the Council. This resulted in a further delay of three +years; during this period Marquina remained in the provinces with the +exception of the time spent in Manila giving testimony in his second +residencia, which was taken under the direct supervision of Governor +Aguilar. Immediately after his second trial Marquina was transferred +to Mexico, but he was obliged to deposit an additional 50,000 pesos +before his departure from Manila. + +In the ultimate judgment Marquina was pronounced guilty of many +offenses in addition to those mentioned in the charges previously +outlined. He had shown favoritism in the dispensation of official +favors; he had authorized the expenditure of public money for private +ends; he had neglected defense and agriculture; he had been negligent +in the supervision of the various departments of real hacienda and +particularly of tobacco; he had infringed on the jurisdiction of the +royal audiencia. He had indulged in private trade and had granted +special favors to foreign merchants. [264] + +The regent fined him 40,000 pesos outright and, moreover, he was +condemned to pay into the royal treasury an additional fine of 16,000 +pesos to cover certain illegitimate profits made through granting +unlawful trading concessions to an Armenian merchant. This sentence +was not executed immediately, as it had to be confirmed by the Council +of the Indies. On review of the findings and recommendations of the +regent, the Council declared that since the proceedings at the trial +of Marquina had been irregular and the governor had already suffered +the consequences of his own misdeeds, the fine imposed by the judge +of the residencia in Manila might be reduced to 2000 pesos with costs +of trial. Marquina on October 12, 1797, asked to be excused from +the payment of the 2000 pesos, but the Council denied his petition, +declaring that he had been treated with great consideration and mercy +and that nothing more could be done in his behalf, especially since +he had not been adjudged innocent of the charges which had been made +against him. [265] + +Marquina's trial illustrates all the characteristics, the delays, +terrors, and ramifications of a typical residencia of the seventeenth +and eighteenth centuries. Continued complaints against him caused +Marquina's residencia to be taken before the expiration of his +official term. The regent of the audiencia was commissioned by the +court to conduct the investigation because Marquina's successor +had not arrived. That magistrate was prejudiced against Marquina on +account of having witnessed the governor's continual malfeasance in +office. He was unable to conduct an impartial investigation, and +the audiencia, likewise prejudiced, would not intervene in behalf +of the ex-governor. The wrongs done to Marquina in his trial were so +patent that the Council of the Indies ordered a new hearing. A severe +sentence was finally passed by the judge in Manila, but it was modified +by the Council of the Indies through considerations of justice. The +residencia occupied ten years, and during the greater part of that +time the ex-governor remained in exile--a victim of his own misdeeds, +the faulty residencia system, and the hostility of the audiencia. The +customary severity of the residencia was only mitigated in this case +by the presence of an impartial governor, who, unlike most governors +whose desire was to harass their victims, sought to secure a fair +trial for his predecessor. To accomplish this he was obliged to work +against, rather than in co-operation with the audiencia. + +The above method of conducting residencias of governors, presidents, +viceroys, and superintendents was modified, as already mentioned, +by the reform of August 24, 1799. The new law provided that the +court, instead of the new governor, should appoint the examining +judge. The latter was no longer empowered to pronounce sentence of +any sort. He was only to conduct the investigation in the future, +remitting the autos of the case to the Council of the Indies +for final determination and sentence. [266] Again, on March 16, +1797, the royal order of December 30, 1777, was re-enacted and the +practice was revived of deducting annually one-fifth of the salaries +of officials whose incomes were 8000 pesos a year or more. [267] +This law was again promulgated on January 18, 1848. Its purpose was +to secure the retention of a sufficient sum of money to guarantee +all losses incident to the residencia. It apparently continued in +force until July 7, 1860, when governors and captains-general were +declared exempt from these discounts. [268] + +We shall now examine more particularly the jurisdiction of the +audiencia over the residencias of minor officials of the colony. It +has already been pointed out that the residencias of provincial +judges and governors, alcaldes ordinarios and reales oficiales were +taken by judges appointed by the president of the audiencia, with +appeal to the tribunal. These cases, under certain circumstances, +might be taken on second appeal to the Council of the Indies. The +practice in these investigations may be best understood by noting the +development of the law regarding them, for, as we have already noted, +the residencia was the product of years of administrative experience, +during which various methods were tried, and rejected or adopted as +they were found respectively inadvisable or efficacious. + +The earliest cédula on the subject, that of November 17, 1526, ordered +that the audiencia should try all appeals from judges of residencia, +wherein the amount involved did not exceed 600 pesos. A law of Philip +II, dated 1563, forbade viceroys, presidents, and audiencias from +sending judges of residencia or other investigators against judges of +provinces, unless complaint had been lodged against those officials by +a person willing to post bonds and pay the costs in case the charges +proved to be false. [269] + +The cédula of September 3, 1565, laid down the principle that the +residencias of officers appointed by viceroys and presidents should be +taken by commission of those who appointed them. [270] As regularly +appointed corregidores and alcaldes mayores held royal commissions, +[271] they did not, according to this law, give residencia to judges +appointed by the governor. The Council of the Indies, therefore, +should name judges to investigate the official conduct of its own +appointees. As a matter of fact, however, the Council delegated this +authority to the governor and audiencia. This latter practice was +authorized by a clause in the cédula of September 3, 1565, which +provided that residencias of the officials referred to should be +taken under supervision of the audiencias in the districts wherein +the officials resided. This meant that while the audiencia was not +to interfere in the taking of the residencia itself, the tribunal +was to see that the laws regarding residencias were faithfully +executed. The law of March 11, 1591, ordered that if the conduct of +corregidores, alcaldes mayores, and other magistrates demanded that +their residencias should be taken before the completion of their term +of office, the viceroys, presidents, or governors should appoint judges +for the purpose. [272] Nothing was said in this cédula relative to +the authority of the audiencia in this matter, but the law of January +19, 1608, gave to the audiencia the right to try residencia cases on +appeal from the sentences of these special judges. + +The laws of June 3 and June 19, 1620, provided that the governor +and audiencia should decide in acuerdo whether the residencia of a +gobernador, corregidor, or an alcalde mayor should be taken. Neither +the governor nor the audiencia was to have complete authority in +the matter, but each should participate, the audiencia assisting in +the decision as to whether the case merited investigation and the +governor making out the commission and appointing the judge if an +investigation were necessary. The audiencia, alone, was authorized +to appoint judges of residencia for judicial officers only. [273] +The interference of the audiencia in the residencias of governors, +corregidores, alcaldes mayores, and other justices and ministers +provided by royal appointment was definitely forbidden by the cédula +of April 20, 1639, as this jurisdiction was declared to belong to +the Council of the Indies. [274] Although we have evidence that +the Council did exercise such jurisdiction, it was always on review +of cases appealed from the audiencias. While the above prohibition +forbade the audiencia from taking the residencias of these officials +it did not restrain the tribunal from participating in the decision +as to whether a residencia should be taken, or in the review of the +autos of residencia. + +An illustration of the intervention of the Council of the Indies +in residencias of alcaldes mayores is shown in the case of Josef +Tormento, alcalde of Caragara. On June 6, 1786, he was sentenced in +residencia to a pecuniary penalty, perpetual deprivation of office, +and two years' exile from Manila. This sentence was confirmed in +review by the audiencia on October 8 of the same year. The Council +modified this sentence, however, approving the fine, but cancelling +the other provisions. [275] In 1803 the incumbent of the same post, +Antonio Mateo, was incarcerated by order of the audiencia, pending +investigation of the charge made against him that he had used +the funds of his office for private trade. It was shown, however, +that this official knew the location of a quicksilver deposit of +great value, whereupon the governor had him removed from prison, +ordering the suspension of the charges against him, notwithstanding +the protests of the oidores. The fiscal concurred in the action of +the governor. The audiencia appealed the case to the Council of the +Indies, alleging conspiracy between the governor and the fiscal. The +Council, however, on examination of the case, approved their action, +ordered the charges to be dismissed, and gave directions that the +alcalde mayor should be restored to his former position or given +another of equal category as soon as possible. [276] + +Although the cédula of August 24, 1799, gave the audiencia the right +to conduct the residencias of corregidores and alcaldes mayores, this +case involved certain interesting features which should be pointed out +in this connection. In the first place, it shows the manner in which +the Council of the Indies exercised ultimate authority in matters of +residencia. Again, it reveals the influence which the fiscal and even +the governor might have in determining whether suit should be brought, +[277] and finally it indicates that expediency might constitute an +important factor in the ultimate results of a case of this kind. + +The practice of granting jurisdiction over the residencia of an +official to the authority that appointed him seems to have been +followed repeatedly. This principle was enunciated in the cédula of +August 20, 1758, but on August 8, 1764, a royal decree authorized +viceroys and presidents to name judges of residencia for all officials +holding royal appointments, with the condition that the autos should +be forwarded to the Council of the Indies. This law was repealed on +April 23, 1769. [278] + +The cédula of August 24, 1799, which has been mentioned several times +in this chapter, was a reform of the greatest importance in the history +of the residencia. Prior to its promulgation, all officials had to +give residencia, but this law abolished that universal requirement. It +provided that residencias of corregidores, alcaldes mayores, and +subdelegate-intendants should be taken only when charges had been +made against them. This might occur at any time during their term of +office, or at the close of their service. These investigations had to +be concluded within four months, but if charges were not made against +an official his past record was not investigated. + +The length of time consumed in all residencias except those of +viceroys was limited to four months. The period allotted for these +investigations was divided into two parts. [279] During the first half, +edicts or notices of residencia were posted throughout the district +of the official concerned. These were printed in Spanish and in the +common dialect, so that natives and others concerned might read and +know that the official was giving up his post and that charges might +be brought against him, setting forth any misconduct, undue harshness, +tyranny or dishonesty of which he had been guilty during his term +of office. These notices invited them to register any complaints +which they might wish to make and gave them sixty days in which to +do it. At the close of this period the judge of residencia opened an +investigation in the town wherein the official under examination had +resided, usually the capital of the province. The actual trial of +residencia might consume sixty days, or it might be perfunctory in +its character and occupy a much shorter period, the entire question +of time depending on the amount of evidence presented against the +retiring official. On the other hand, as we have seen, the residencia +of a governor might occupy ten years. + +If the judge were taking a residencia in the provinces he was +frequently delayed in arriving at his post of duty, owing to the +pressure of other business, or to the uncertainty of transportation +facilities. In that event, he could not open the judicial investigation +until the allotted period had almost transpired. + +In the trial, two distinct lines of investigation were usually pursued: +charges which had been made against the official were investigated +and the records of his office were examined. The discovery was +frequently made through this procedure that the official had embezzled +money belonging to the government, usually investing it in private +ventures. The inquiry might show that he had been careless in the +execution of the duties of his office, remiss in his attention to +encomiendas, particularly neglecting the Indians thereon, or too +ignorant and incompetent to try properly, record, and transmit the +autos of the cases which had come to him in first instance. These +defects might not become apparent until they were revealed in this +examination. + +The judge of residencia would seem to have been well occupied during +the time that he was conducting the investigation. He received and +reviewed all charges made. In addition to auditing the records of +the office, he had to pursue inquiries as to the truth of these +charges. He examined witnesses both for and against the defendant, +and was supposed to give the official under investigation every +opportunity to defend himself. He was relieved, however, of the +trouble and responsibility of checking up the financial accounts of the +official under residencia. This important matter was turned over to the +treasury officials, who ascertained shortages, and held the bondsmen +of the official under investigation responsible. [280] The judges +of residencia, and the oidores making investigations and reviewing +cases of residencia were ordered to confine their examinations to +"criminal and legal matters and charges which result against those +under residencia." [281] + +After all the evidence had been taken and the case had been duly tried, +the judge of residencia was authorized to render sentence. Sentences +were executed by the examining judge if the penalty did not +exceed twenty-five thousand maravedís. The latter cases were not +appealable. If the fine were less than two hundred ducats and the +defendant desired to appeal, he was obliged to pay the fine or deposit +the amount thereof. His case would then be reviewed by the audiencia +and in order to effect this, notice of appeal had to be submitted in +sufficient time to permit the record of the entire case to be reduced +to writing. If, on review, the audiencia found that the defendant +was not guilty of the charges which had been brought against him, +the money taken as a fine or deposit was restored. If the amount +of the fine exceeded two hundred ducats, or if the defendant had +been convicted of serious crimes, the judge was authorized to take +the proper and necessary steps for the detention of the prisoner +and the seizure of his property pending a new trial in the higher +tribunal. [282] Cases involving more than one thousand pesos could +be carried to the Council of the Indies. + +A thoroughly typical case, illustrating all of the ramifications of +a provincial official's residencia, was that of Francisco Fernández +Zéndera, alcalde mayor and military captain of the province of +Ilocos. [283] It was investigated first by a judge appointed by the +acuerdo, it was reviewed by the audiencia and it was finally carried +to the Council of the Indies. It was characteristic in another sense, +namely, in that twelve years passed before the matter was settled. + +After Zéndera had occupied his post three years, complaints against +him were brought to the attention of the fiscal. In his capacity as +prosecuting official and as protector of the Indians, he made a motion +before the audiencia in acuerdo, that a judge of residencia should be +sent to conduct an investigation of Zéndera's official conduct. The +following charges against Zéndera had been sent to the governor, and +on the basis of these, the fiscal, governor, and audiencia decided +to conduct the investigation: First, Zéndera had compelled natives to +work for him on his own estates, building houses, granaries, fences, +tilling the soil and planting crops, from two hundred to three hundred +men having worked for him continually, without pay or food; second, +the arbitrary methods of this alcalde mayor left the natives without +money with which to buy their food or to pay their tribute; third, +not only were the men forced to labor, but the women were obliged to +sew, spin and embroider without pay, and the product of their labor +was confiscated by the alcalde mayor. + +The audiencia and the governor, in acuerdo, having taken note of +these charges, commissioned Angel Moguel, chief secretary of the +government, to conduct the residencia of the alcalde. Moguel was put in +possession of the necessary documents and departed at once for Vigán, +the head city of the province. On November 7, 1782, he posted notices +to the effect that Zéndera's residencia was to be taken, calling on +the residents to make formal charges against him. Moguel suspended +Zéndera from office and accepted 20,000 pesos from two of his friends +as bonds to cover the residencia, this sum offsetting the valuation of +the properties for which Zéndera was responsible. These were additional +to other bonds which Zéndera had posted on his accession to office. + +For some unassigned reason, only twenty-five days were allowed for the +filing of complaints, but during this time eighty-eight charges were +made, most of which were variations of those mentioned above. Zéndera +was said to have been uncompromising in his administration of justice; +he had imposed excessive fines; he had imprisoned the natives without +giving them opportunities for defense; he had refused to allow them +to appeal their cases. [284] Not being a lawyer, he lacked sufficient +qualifications for the proper conduct of trials; moreover he had +refused to employ a teniente or asesor. He had failed to supervise +and enforce the instruction of Spanish, and he had done nothing to +assist in the education of the natives. Zéndera was charged with +having suppressed all commerce except his own, going so far as to +arrest merchants of other provinces who came to Ilocos to trade. This +he had done to secure his own monopoly in commercial matters. He had, +moreover, suppressed the trade of the Ilocanos with the Igorrotes. He +had failed to segregate the men from the women in the provincial +prison. It was said that he had neglected to publish the governor's +edicts (bandos) from Manila. He had shown partiality to Spanish priests +in preference to the native clergy. He was charged with having taken +rice as tribute at a low price, turning it over to the treasury +officials at a higher rate, thereby making great profits for himself. + +Zéndera was found guilty of almost every charge made against him. The +sentence of residencia was pronounced by the judge commissioned for +the purpose on August 13, 1782. The defendant was fined 8000 pesos and +sentenced to deprivation of office for a period of eight years. [285] +The audiencia, in turn, reviewed the case, and that tribunal, on May +20, 1783, finding the autos of the case incomplete, ordered Moguel +back to Vigán for a second time to complete the investigation. The +judgment of residencia after this second investigation was made was +the same as before, and the case was carried to the Council of the +Indies on November 7, 1785. It seems that in this case the audiencia +was somewhat slow in granting the appeal, for on February 19, 1788, +a cédula was expedited which ordered the audiencia to forward all the +autos in its possession bearing on the case. The final judgment of the +Council of the Indies was rendered March 23, 1794. The fine of 8000 +pesos was reduced to 3000 pesos, and the portion of the sentence which +had ordered a deprivation of office was remitted altogether. [286] + +The cédula of August 24, 1799, already referred to, greatly altered +the applicability of the residencias to provincial as well as +insular officials. Its greatest importance was due to the fact that +it authorized investigations of corregidores, alcaldes mayores, +and sub-delegate intendants only when charges were made against +them; otherwise it was assumed that their official conduct had been +satisfactory, and accordingly no residencias were held. Before the +officials could be transferred to other posts they were obliged to +show certificates of clearance from former positions. The audiencia +was given final jurisdiction over the residencias of these officials, +with inhibition of appeal. At the same time the tribunal was denied +jurisdiction in any instance over the residencias of viceroys, +captains-general, presidents, governors, treasury officials, oidores, +and intendants. [287] After the suppression of the Council of the +Indies on March 24, 1834, the latter cases were finished in the +Supreme Tribunal of Justice, and that tribunal continued to exercise +this jurisdiction till the close of the nineteenth century. [288] + +The cédula above referred to abolished the residencias of tenientes +letrados, alcaldes ordinarios, regidores, clerks, procurators, +syndics, alguaciles, and other minor officials. In place of the formal +investigation and judgment after the term of office was completed, +the audiencia was given more complete control over their official acts, +with the duty of seeing that justice was administered, jails inspected +and kept clean, prisoners given a speedy trial and not molested with +undue exactions, and the police supervised. The tribunal was also +empowered to see that the ayuntamientos conducted their elections +impartially and that the municipal officials executed their duties +faithfully. In this way the formal investigation at the close of +the term of these minor officials was replaced by a more efficient +supervision of their acts by the audiencia. The constitutional +reforms of the early nineteenth century gave to the audiencia original +jurisdiction over the trial of judges of first instance, with appeal +to the Supreme Tribunal of Justice. This authority was suppressed +in 1815, and continued so until 1835, when it was restored to the +audiencias of the colonies. + +Although the reform of August 24, 1799, recognized the residencias of +alcaldes mayores, tenientes, and corregidores, merely transferring +jurisdiction over these to the audiencias, it would seem that this +investigation retained less of its former severity from this time +onwards. In fact, some authorities infer that the residencia was +abolished after 1799. [289] This was not the case, however, as the +residencia was recognized by laws promulgated as lately as 1870. [290] + +The audiencia also had jurisdiction over the residencias of galleon +officials. These had to submit to residencia at the termination of each +voyage. An oidor was designated by the governor for the inspection of +the ship, for the examination of its papers, for the consideration +of complaints against the officers of ill-treatment of passengers +and crews during the voyage. [291] An investigation was conducted on +the occasion of the loss of a ship. Then a thorough inquiry was made +in an endeavor to discover negligence on the part of the admiral, +general, or other officials. The exercise of a similar authority +over cases involving the loss of galleons has been discussed in the +preceding chapter. + +In pursuance of this authority, Magistrate Torralba was commissioned +in 1710 to take the residencia of the officers of the galleon "Nuestra +Señora del Rosario y San Vicente Ferrer", which was wrecked in the +Straits of San Bernardino on the voyage from Acapulco in 1709. [292] +As great diligence had been shown by them in landing the treasure and +sending it overland, the matter was dropped. A similar investigation +was conducted in 1743 in the case of the galleon "Cobadonga", which +was captured by the British. The charge was made that neither the +"Cobadonga" nor her convoy, "El Pilar", had offered any resistance, +and that the latter had deserted the galleon and had taken refuge +in flight. [293] The officers were arrested and thrown into prison +on charges brought by the fiscal, but they were cleared in the +investigation which proved that the ships were not in a condition +to fight. + +The various laws and cases which have been cited in this chapter show +that the trial of residencia of captains-general, treasury officials, +oidores, intendants, alcaldes mayores, and alcaldes ordinarios was +a judicial function over which the audiencia had a large share of +authority. It is safe to say that no residencia was ever taken in +the Philippines, after the audiencia had been established there, +in which that tribunal did not exercise some degree of authority. As +the laws and regulations of the residencia varied at different times, +the extent of the jurisdiction of the audiencia in this matter was +not always the same. The audiencia either assisted in the examination +of the charges or in the designation of the judge. The magistrate +selected was usually an oidor. Oidores were liable to designation to +conduct inquiries, and the audiencia, as a tribunal, tried these cases +in review. The tribunal exercised supervision over the work of the +investigating judge. The case was either finished in the audiencia, +or reviewed there and appealed to the Council of the Indies through +the action of the audiencia. The Council of the Indies was the supreme +arbiter in all cases, prior to 1799. Subsequently the Council, or the +Supreme Tribunal of Justice after 1834, retained final jurisdiction +over the residencias of the higher officials only. In the residencias +of provincial or local officials the jurisdiction of the audiencia +was final. + + + + + + + +CHAPTER V + +THE SEMI-JUDICIAL AND ADMINISTRATIVE FUNCTIONS OF THE AUDIENCIA. + + +Aside from the activities which have been described, the magistrates +of the audiencia rendered important services in various administrative +capacities. From the beginning until the end of the eighteenth century +the oidores were assigned to special commissions or judgeships with +jurisdiction over such miscellaneous secular and ecclesiastical matters +as did not come readily under any other department or authority. In +practically all cases these functions involved the oidores in their +individual capacities rather than as magistrates of a tribunal of +justice. Though their work was independent of the audiencia, their +decisions were reviewed in the audiencia in many cases. In short, it +may be said that when any unforeseen or unclassified matter came up +for solution, it was usually assigned to a magistrate of the audiencia. + +The exercise of these extra functions was especially characteristic +of the history of the audiencia down to 1785, when the reforms +of the intendancy were introduced throughout the Spanish colonial +empire. These important reforms grouped these administrative functions +about a central head, the superintendent, and lessened the duties +of the oidores in these matters, confining the magistrates more +particularly to judicial duties. It may be said, however, that the +oidores exercised these extra functions practically till the end of +the eighteenth century, which period comprised the greater part of +the existence of the colonial audiencia. + +The laws of the Indies empowered the president of the audiencia +to designate oidores to serve on these commissions. Additional +compensation and travelling expenses were given for these extra +services. [294] The president was forbidden to send magistrates on +commissions to places outside the district of the audiencia, which, of +course, would have been impossible in the Philippines. Appointment to +some of these commissions was considered by the magistrates as highly +desirable. Frequent disagreements arose over these appointments, and +the king was obliged to issue pacificatory cédulas, from time to time, +to allay the discord and strife which arose over the appointments +to the more lucrative of these places. The principle was laid down +repeatedly that special commissions should be assigned fairly among +the ministers, and that in their distribution only the aptitude of +the magistrates for the particular tasks should be considered. [295] +The term of service for these special posts was a year. No change was +allowed in the incumbency of a particular commission unless on account +of death, sickness, or removal for incompetency. Appointments to these +extra duties were made in the royal name, and appointees were obliged +to make reports to the court on the termination of the commission +held. Magistrates were held responsible for their service in this +capacity in their residencias. In large audiencias such as Mexico, +Lima, and Buenos Ayres in the eighteenth century, many commissions +of this character were served by regular commissioners who held no +other posts, but in the smaller colonies such as the Philippines, +Puerto Rico, and Cuba, they were held by oidores when the duties +connected with the commissions did not entail sufficient work to +occupy all the time of the appointee. + +The most important and profitable commissions were awarded to the +senior magistrate of the audiencia. He was charged permanently with +the duty of seeing that all the decrees, fines, and decisions of +the Council of the Indies were executed, collections being made +in accordance with the instructions of that body. These included +fines imposed in residencia and other penalties exacted on different +occasions by the audiencia, or by the Council of the Indies. Among +the latter were confiscations of property and fines for smuggling, +for the illegal exportation of silver, and for the evasion of the +king's fifth, [296] the alcabala and the almojarifazgo. The senior +magistrate was authorized to retain as compensation three per cent +of the amount collected, and he was ordered to give account to the +audiencia of collections made by him in accordance with the law. [297] +Another magistrate was asesor of the Santa Cruzada, and it was his duty +to give legal advice and to act as special attorney for that department +of ecclesiastical activity. [298] The president, fiscal, and the senior +oidor concurred in the acuerdos which treated of matters pertaining to +real hacienda. [299] This was known as the junta ordinaria. A tribunal +of appeals above the junta ordinaria was created later, and in its +activities, also, the magistrates of the audiencia participated. [300] +The audiencia also heard judicially certain cases of appeal involving +the royal treasury, but magistrates who had participated in the junta +mentioned above were not allowed to hear again the cases in which +their previous vote had been given. Each oidor served in turn for the +period of six months on the board of auctions. [301] Magistrates were +appointed by the governor, yearly, in turn, to serve as inspectors +of the government. In this capacity they were expected to examine +and report on the administration of justice and on the work of the +audiencia, the royal treasury and the officials connected therewith, +visitors, provincial officials and those of the city of Manila. The +inspecting magistrate was authorized to examine the records of these +officials and to use any other legitimate means in performance of +his special duties. [302] + +An oidor was designated by the president to make periodical inspections +in the provinces. This official had to attend to a variety of matters +while on visits of inspection. He was required to make a census +of the towns, and inquire into the prosperity of the inhabitants; +to audit the accounts of the town officials, and to see whether the +provincial governor or magistrate had been faithful in the execution +of his duties. He was supposed to visit the encomiendas and note the +treatment of the Indians thereon, to find out whether the natives were +properly and sufficiently instructed, or whether they were permitted +to remain in idolatry and idleness. He inspected the churches and +monasteries, seeing that they contained the requisite number of +religious and no more, and noting whether the natives under the charge +of the ecclesiastics were well treated. In the same way he inspected +the curacies of the towns. The visiting oidor was especially required +to give careful attention to the corregidores and alcaldes mayores, +inspecting their judicial and administrative activities and holding +them responsible for any irregularities, especially with regard to +the treatment of the Indians. The visitor was required to inspect +inns and taverns, to ascertain whether they observed the regular +tariffs, and whether the drugs sold in the provinces were of good +quality. He also inspected highways and bridges. If the visitor +found anything wrong he was authorized to take immediate steps, on +his own responsibility, to remedy the defects, reporting any action +taken to the audiencia without delay. As seen in the last chapter, +the immediate consequence of the visit was frequently the residencia +of the official inspected. The visitor was provided with sufficient +funds to defray his expenses, so that he would not be a burden on the +encomenderos or Indians. The president of the audiencia was forbidden +to order visits to the same province more frequently than once every +three years, unless, after an investigation, such action was declared +necessary by vote of the acuerdo. [303] + +The audiencia exercised supervision over certain matters of church +finance. These included tithes, the funds of temporalities, and of +certain charitable societies, and jurisdiction over the adjustment of +estates and properties left by deceased prelates. In connection with +the latter was the duty of auditing the accounts of benefices which +were subject to the royal patronage whenever a transfer of occupants +was made. These matters, though miscellaneous in their character, +and accordingly pertinent here, may be reserved for a subsequent +chapter which will be dedicated to a discussion of the relations of +the audiencia and the Church. + +An oidor in the Philippines served as judge of medias anatas. [304] +These taxes were levied upon the salaries of all officials of +royal appointment, except ecclesiastics, these exactions varying in +amount from one-half the first year's income to one-tenth of the +gross salary of each official. The cédula of June 2, 1632, [305] +ordered the judge-commissioner of medias anatas to surrender the +money which he had collected to the treasury officials who in turn +were to transmit it to Spain. [306] More definite information as to +the nature of the duties of the judge-commissioner of these funds may +be gathered from the cédula of December 14, 1776, by which Oidor Félix +Díaz Quejada y Obrero was appointed as commissioner of medias anatas in +the Philippines. This magistrate was authorized to retain four per cent +of all that he collected. This percentage, the cédula stated, was the +same as was paid to the commissioner of medias anatas of New Spain. The +cédula ordered Quejada to collect this tax from all royal appointees, +but not from governors of towns or Indian caciques who were elected +yearly, and who, of course, were not royal appointees. Appeals from +judgments of the commissioner of medias anatas were to be entertained +in the Council of the Indies only, and not in the audiencia. [307] + +It has been pointed out already in this chapter that the effect +of the reforms of the intendancy was to limit the jurisdiction of +the oidores over special commissions. This is especially true of +those relating to finance. An illustration of this is shown in the +disputes which occurred between the oidores and the governor, over +the conservatorships of betel, [308] wine, tobacco, playing-cards, +and cockpits. When these sources of income developed in the latter +part of the seventeenth century, their supervision, as usual, had been +conferred on oidores with title of asesores or jueces-conservadores +(judge conservators). [309] This was done in disregard of the laws of +the Indies, wherein was expressed the desirability of conferring these +assessorships, if possible, on properly qualified officials, other +than oidores. The magistrate holding a commission was to attend to +the legal duties and adjudicate all suits in connection therewith. The +latter regulation was made in order that when the cases were brought +to trial the magistrate might not be incapacitated by having rendered +decisions in them ahead. The law continued in the following strain: + + + when a case so urgent and extraordinary offers itself that an + oidor must be appointed, warning is hereby given that ... the same + magistrate who tried the case originally may not be judge. [310] + + +This law conceded that oidores might serve when other magistrates +were not available. + +Governor Marquina, superintendente subdelegado de real hacienda from +1789 to 1793, refused to permit oidores to serve as asesores of the +monopolies of betel, wine, and tobacco. These magistrates claimed, +however, that they were entitled to the appointments, since they +had occupied these positions before July 26, 1784, the date of the +creation of the intendancy in the Philippines. They conceded that +they had been relieved of jurisdiction over these rents on that date, +and that the authority formerly exercised by them had been assumed by +the intendant. [311] By the cédula of November 23, 1787, however, the +intendancy had been abolished and the government restored to "the state +and condition which had previously existed." [312] This would mean +that the oidores should again hold these asesorías, and on the basis +of this reasoning they demanded that the governor should return them. + +The oidores did not tamely submit to a deprivation of their posts as +asesores on the occasion of the establishment of the intendancy. They +complained to the king, alleging that these appointments belonged +to them by their own right. The king inquired of Governor Basco y +Vargas why the oidores had not been designated for these duties. The +governor replied that the supervision of the rents had been assumed by +the intendant, but that their direction belonged at that time to the +governor and superintendent, by virtue of the cédula of November 23, +1787. [313] He stated that the oidores had no right of their own to +these asesorías, since the faculty of appointing asesores had been +conferred on the governor (or viceroy) by the laws of the Indies, +[314] and in times past governors had appointed lawyers who were not +oidores. There was therefore no obligation on the part of the governor +to give these places to oidores; indeed, the laws of the Indies had +emphasized the undesirability of doing so. [315] + +Basco y Vargas, in pursuance of this conception of his rights and +duties, combined all of these asesorías under the direction of one +office, placing them under the orders of his own asesor, leaving +oidores in charge of each minor asesoría, except that of tobacco, +which was placed under the immediate direction of the governor's +asesor. The king approved this action, giving the new official a +new title, that of asesor de todo lo directivo y lo económico de la +superintendencia subdelegada de la real hacienda de Filipinas. [316] +The local authority appointed Magistrate Castillo y Negrete to this +new position at once, but the king, on the ground that the law [317] +forbade an oidor to hold such an office, disapproved of the appointment +and gave the place to Rufino de Rivera, who had formerly been auditor +de guerra and asesor de gobierno. + +As soon as Governor Marquina assumed office, he relieved the +magistrates of the audiencia of all share in the administration of +these monopolies, combining all these branches of real hacienda under +the asesor above mentioned. On August 3, 1791, the audiencia protested +against the acts of the governor, basing its claims to a continuance +of authority on the cédula of March 20, 1790, by which the king had +authorized the oidores to administer all the monopolies except tobacco. + +On August 16, 1791, Governor Marquina answered the complaint of the +audiencia in a memorial of his own, in which he set forth his position +in summarized form, giving a history of the entire contention, +and defining his position with precision and clarity. [318] He +claimed that the cédulas which had been issued up to that time had +recognized the right of the governor to dispose of these asesorías, +which did not and never had belonged to the oidores by their own +right. As superintendent of real hacienda, he (the governor) was +judge-conservator of all the asesorías, and by cédula of March 20, +1790, he had been authorized to control them through his asesor. The +latter official had also been ordered to administer the rent of tobacco +directly as the agent of the governor and to supervise the others +in the governor's name. The oidores had been forbidden to hold these +positions, except under exceptional circumstances, which, in Marquina's +judgment, did not exist at this time, [319] since there was present +in the colony a special asesor whose duty it was to supervise these +monopolies. The audiencia would have to try certain cases on appeal +as a judicial body, and oidores who had already rendered decisions +as judge-conservators could not justly render decisions when the same +cases were appealed. He declared that he had the approval of the king +in his contention, and was therefore confident of his position. + +The governor's will prevailed, and the magistrates were deprived of +the commissions which they had formerly held; these were given over +to regular officials of real hacienda. Contentious cases, however, +that did not pertain exclusively to finance were tried on appeal +in the audiencia and that body exercised regular, but not special, +jurisdiction in them thereafter. + +One of the most important offices which the oidores were called on +to perform was that of juez de difuntos. The duties of this office +consisted largely in the administration of the funds and property +of persons who died intestate, or without heirs in the colony. This +work was entrusted to the colonial audiencia as a body in 1526, +and any judge therein might be delegated from the tribunal for the +adjustment of an estate. + +The first law providing for a special administrator was proclaimed +at Valladolid on April 16, 1550. It stated that many of the heirs of +persons who died in the colonies had been defrauded of their rightful +dues by the carelessness, omission, illegal procedure, and usurpation +of the ministers who had diverted the property to their own uses; this +condition of affairs made reform imperative. Viceroys and presidents +of royal audiencias, while retaining power of removal for cause, +were commanded henceforth to name, at the beginning of each year, +an oidor from the local audiencia to act as juez de difuntos. [320] +This judge was authorized to collect, administer, rent, sell, and +have general supervision over the property of deceased persons to +the same extent that the audiencia previously had. The acts of the +judge were appealable to the audiencia of the district wherein he +officiated. On December 15, 1609, a law was proclaimed by Philip +III which extended the term of this judge from one to two years. The +early laws provided no extra salary for the juez de difuntos. It was +prescribed that his decisions should be respected by the audiencia and +by the other officials of the government, the viceroys and presidents +being especially instructed not to allow any other official to usurp +his functions. + +In case the juez de difuntos should fail to execute his duties, +or should exceed his powers, it was the duty of the fiscal to bring +the abuse to the attention of the audiencia, and that tribunal was +supposed to see that the proper methods were enforced. The jurisdiction +of this special magistrate was to extend to the settling of the +estates of intestates, and of testates leaving property to persons in +Spain. His authority was valid over the property of deceased officials, +merchants, and encomenderos, and it might be extended to the cases +of foreigners. He also assisted in the disposal of property left +by clerics. When the latter died intestate, the proceeds of their +estates were added to the fund known as the bienes de difuntos. No +distinction was made between property left by them and that left +by civil employees of the government or private citizens. If these +priests had made testaments, it was the duty of the juez de difuntos +to see that the property reached the donees without the interference +of the prelates. [321] + +As in other cases noted in this and in former chapters, so in the +administration of the estates left by intestate decedents the laws +seem to have undergone considerable change. In 1526, Charles V ordered +that such estates were to be administered under the supervision of the +audiencia. In 1550, the place of special juez de difuntos was created +in each audiencia, the post to be filled by a magistrate designated +by the president. In 1653, Philip IV added to the importance of the +office by decreeing that all intestate cases should be administered by +a special juez de difuntos, irrespective as to whether the heirs were +in Spain, or at the place where the death took place. [322] This law +provided that if children or descendants were left whose legitimacy +was unquestioned, the heirs being in the colony, or if a will legally +attested and witnessed were left, the case was to be settled in the +ordinary courts. If there were doubt, however, as to the validity +of the claims of persons representing themselves as descendants, or +if there were no heirs, the case would then be administered by the +juez de difuntos. Settlements made by the ordinary justices were not +reviewed in the royal audiencia. The authority accorded them frequently +afforded pretexts for their intervention in cases which should have +been settled by the juez de difuntos, particularly when heirs were +left in Spain and in other colonies. A number of disagreements arose +over this point, but all doubt was conclusively settled by the cédula +of January 31, 1772, which awarded such jurisdiction to the juez +de difuntos. [323] This was confirmed by the law of September 28, +1797. Foreigners residing outside the dominions were not allowed to +inherit property left to them in the colonies, even though they were +lineal descendants. [324] Heirs or others claiming property left by +deceased persons must appear in person, or have others appear for +them, properly authorized, and must prove conclusively their rights +as heirs or creditors. + +The cédula of September 28, 1797, was a codification and a +reclassification of all previous laws on the subject of this +jurisdiction. The provisions of this law, briefly stated, were as +follows: (1) These judges should not under any circumstances have +jurisdiction over property left by will, or without will, when the +heirs were present and when there was no question of their right to the +property. (2) In order that these judges have power of intervention, +it must be well known or appear by judicial process that either all +the heirs or the greater number of them were absent. (3) They were not +to have jurisdiction over property left by Indians or caciques. (4) +They should not usually have authority to settle up the estates or +property of native clerics, because their heirs would presumably be +present. These cases were therefore subject to the jurisdiction of +the ordinary courts, unless it were shown that there were heirs in +Spain. Under no circumstances should the ecclesiastical authorities +have intervention in these cases. (5) When the heirs were present, the +audiencia was ordered to enforce the law which forbade the intervention +of both the juez de difuntos and the ordinary judge. [325] In these +cases the heirs were allowed to assume their property intact, without +its being sold and thereby costs incurred. (6) The practice which had +hitherto been followed by the juez de difuntos of diverting a fifth of +the property of those who died intestate for the repose of the souls +of the dead should cease from that time onward, and the proceeds of +said property should be handed over without deduction to the heirs and +relatives of the deceased, in accordance with the cédula of June 20, +1766. [326] (7) The juez de difuntos was forbidden to intervene in +the settlement of estates or property left to heirs by will. [327] + +It would appear, then, that the oidor detailed as juez de difuntos +had jurisdiction over cases of intestacy, over the settlement of +property when no heirs were apparent, or when there was doubt as to +the existence of heirs, and in cases where the designated testamentary +donees were outside the colony. The ordinary justices administered +estates in two capacities, namely, when testaments were to be executed, +the heirs being present, or when they acted as agents for the juez +de difuntos. The latter was privileged to call upon the corregidores, +alcaldes mayores, and other ordinary justices to execute provisions in +the provinces, and these officials were obliged, when so designated, +to settle estates subject to the supervision of the juez. [328] + +When the heirs were resident in Spain, or in some colony other than +the Philippines, the estates of deceased persons were sold and the +money was set aside to be remitted to Spain. The collective sum of +these properties, sold and unsold, was designated as the bienes de +difuntos. [329] At stated periods the juez de difuntos was required to +turn over the funds that he had collected, or received in the execution +of his duties, to the oficiales reales, first deducting three per +cent of their gross amount for his services. [330] His accounts, +which were sent to the Council of the Indies, were also audited by +these officials, and the audiencia likewise held him accountable for +any abuses or errors other than financial. He was also held responsible +in his residencia. The fiscal was his prosecutor in case of suit. The +juez de difuntos, on his part, was authorized to require reports +from the agents and administrators who served him in the provinces, +and all necessary safeguards were taken for his protection. [331] + +Theoretically, the juez de difuntos, acting through the oficiales +reales, sent such money as he had collected to the Casa de Contratación +of Seville, or, after June 18, 1790, the date of the extinction of +that body, to the juez de arribadas in Cádiz. [332] Thence it was +distributed among the heirs in various parts of Spain, or, in case +no heirs were found, it was to remain in a fund by itself, until +otherwise appropriated or disposed of by the crown. The money was sent +at the risk of the heirs, eighteen per cent of the gross amount being +deducted to pay the costs of transfer. [333] In actual practice, +however, the funds derived from the Philippines were retained at +Manila, itemized accounts of them being forwarded to Acapulco, the +proper amount being deducted there from the annual subsidy. [334] +This rendered unnecessary the actual transfer of money. The juez de +difuntos in Mexico received the funds from the Philippines, together +with reports and accounts relating thereto, and remitted them to +Spain. There occurred many instances in which this magistrate in +Mexico found mistakes in the reports rendered by his subordinate +in Manila. A great deal of criticism was made from time to time, of +alleged irregularities in the administration of these funds in the +Philippines; in fact, successive royal cédulas repeatedly charged +the Philippine officials with maladministration. [335] The general +superintendent of finance, Aparici, in a report to the Council, +stated on July 19, 1797, that these funds had never been properly +accounted for, and that glaring defects--even dishonesty, had always +existed. [336] These faults, he alleged, were owing to the fact that +the funds were not directly administered, but were paid into the +treasury of Mexico, and that because of this roundabout method direct +control could not be exercised. Although this high official pointed +out these defects and made recommendations for the betterment of the +service, no change was made, and the funds continued to be remitted +to Mexico until 1815, when the suspension of the regular galleon +eliminated the possibility of this practice. [337] + +The juez de difuntos was frequently opposed in the exercise of his +special jurisdiction by other officials of the colony. Many cases +involving these conflicts of jurisdiction were appealed to the Council +of the Indies. Among the most frequent were the quarrels which took +place between the captain-general and the juez de difuntos over +the question of the special military jurisdiction of the latter, +and the claim of the juez de difuntos to administer the property +of military and galleon officials. For example, on July 6, 1757, +the juez appealed to the Council for jurisdiction over the property +of a deceased galleon official on the basis of the rights conceded to +him by the laws of the Indies; [338] the governor claimed the right to +administer this property on the ground that the galleon officials were +appointed by him, and that they were held by the laws of the Indies +to be under the military jurisdiction. This case was decided in favor +of the juez de difuntos, and may be considered as having established +a precedent for his subsequent jurisdiction over such cases. [339] + +Probably the most notable case of conflict between the civil and +military jurisdictions and one which involved the juez de difuntos +occurred at the time of the death of the lieutenant-governor and king's +lieutenant, Pedro Sarrio. The latter had left his property by will to +his brother, the Marqués de Algorja, a resident of Alicante. He had +appointed a resident of Manila as executor. The governor claimed that +the right to administer the property belonged to the executor. The +juez de difuntos, on the ground that Sarrio had left heirs in Spain, +contended that the funds should be administered by him, as the executor +did not have authority to transmit the property to Spain. This case +was carried to the Council of the Indies; no record appears of its +ultimate solution, but it is illustrative of the commonly accepted +principle that the juez de difuntos should have authority over the +administration of all property which had to be transmitted to Spain for +distribution among heirs. [340] The governor's contention against it +was based on the fact that Sarrio was a military official. As we have +already seen, the law of August 29, 1798, authorized the settlement +of the property of soldiers by special military courts. [341] + +Other sources of frequent dispute were the respective claims of the +juez de difuntos and the oficiales reales for jurisdiction over +property left by persons who were indebted to the royal treasury +at the time of their death. On the occasion of the death of the +corregidores of Tondo and Ilocos, in 1776 and 1778, respectively, +without having made wills, the oficiales reales took steps to make an +immediate seizure of the property of the deceased officials. They +demanded that all documents and papers pertaining to the cases +should be surrendered at once into their hands in order that the +amount owing to the government might be collected. Governor Basco y +Vargas interposed on the ground that since these officials had died +intestate, the settlement of their property should be effected by +the juez de difuntos; it being incumbent upon the oficiales reales +to present the claims to the judge. [342] + +Shortly after this decision had been rendered, the alcalde mayor of +Tayabas died, leaving a deficit of 7000 pesos, and the officials of +the royal treasury immediately brought suit in the audiencia on the +basis of the laws of the Indies for jurisdiction in the case prior +to that of the juez de difuntos. They alleged that the law provided +that the treasury officials should have precedence in collections, +and that debts due to the real hacienda should be settled prior to +all others. Moreover, they claimed that all officials should assist +them in making these collections and that no restrictions should +be placed upon their activities. Further evidence in support of the +contentions of the treasury officials was submitted in the substance +of the royal cédula of April 23, 1770, which declared that these +judges should be entrusted exclusively with the collection of royal +funds. "Furthermore," the cédula stated, "if any case shall arise which +pertains to finance and at the same time to the juez de difuntos, the +latter may not make the advocation, because, however favorable may be +his jurisdiction, that of the royal treasury is more favorable." [343] +The oficiales reales insisted that they should not be required to go +before the juez de difuntos for any purpose, since the laws of the +Indies [344] gave them the power of inspecting the accounts of the juez +de difuntos and of keeping and administering these funds. [345] The +more recent cédula of October 13, 1780, had decreed that the accounts +of the juez de difuntos should be approved by the treasury officials, +and on this basis they were able to advance claims to seniority. + +This dispute, though brought for adjudication before the audiencia, +was not settled by the tribunal. The evidence pertaining to the case +was collected and referred to the Council on December 22, 1786. The +cédula which finally disposed of the matter was issued May 4, 1794, +in the following terms: + + + It is indisputable that the ministers of our real hacienda are + authorized to have jurisdiction over all debtors of my royal + treasury ... with preference to the ordinary jurisdiction of the + juez de difuntos, or to the judge commissioned to settle property + of intestates or to pay creditors; ... the accounts of my real + hacienda shall be settled by my royal judges before the juez de + difuntos may have cognizance. [346] + + +By this decree it was definitely established that the treasury +officials should have precedence over the regular judges in the +settlements of estates of officials and individuals against whom +the royal treasury had claims. After the demands of the government +were paid, those of private individuals might be settled, and it was +ordered that the juez de difuntos, as the champion of individual +claims, should always give precedence to the oficiales reales who +represented the interests of the government. + +The organization for the administration of these funds presented a +complete hierarchy. The actions of the juez de difuntos were subject +to review by the Audiencia of Manila. The funds from the Philippines +were deducted from the subsidy at Acapulco, and forwarded to the Casa +de Contratación of Seville (or the juez de arribadas at Cádiz, after +1790) by the juez de difuntos of Mexico. The heirs in Spain were then +found, and the money transferred to them, less discounts covering costs +of transmission to Spain. In case appeals were made from the decision +or settlement of the juez de difuntos, the records of his proceedings +in the case under consideration were reviewed by the Council of the +Indies. The method of procedure there was to refer these documents and +accounts to the Contaduría General, where all accounts for the Council +were audited and settled, and the recommendations of that tribunal were +accepted. The constitutional reforms of the nineteenth century gave the +audiencia increased authority in the final settlement of these matters, +and its decision was made final in practically all contentious cases, +though, of course, final judgments involving heirs who were resident +in Spain might still be appealed by them to the Council of the Indies +or the Supreme Tribunal of Justice. + +Aside from the activities of the magistrates as members of the juntas +de hacienda, described earlier in this chapter, it would perhaps be +safe to assert that the tribunal exercised general supervision over +financial affairs in the colony until the time of the establishment +of the intendancy (1785-87). Correspondence between the Council of +the Indies and the Audiencia of Manila would seem to indicate that the +magistrates were expected to transmit, and did send, in fact, reports +on colonial finances to the Council of the Indies. Among the reports +of the oidores about twenty of these periodical statements have been +found, covering irregularly the period from 1609 to 1780. No doubt a +complete set exists. These generally embody a detailed audit of the +accounts of the oficiales reales. Numerous commissions were also sent +to the audiencia from time to time, ordering the magistrates to give +special attention to financial affairs, such as the collection of +licenses from Chinese; to see that tithes were efficiently collected +and reported, to see that the tax on metals (mined) was paid, and +offering special rewards in case of apprehension. It has already been +shown that the king on August 8, 1609, asked the audiencia whether +the king's fifth had been commuted to a tenth in the Philippines. On +July 21, 1756, the audiencia reported on the number of ships that +had entered the harbor of Manila during the year before. On May 4, +1760, Francisco Leandro de Viana, the fiscal, charged the merchants +of Manila with wholesale fraud in the payment of the almojarifazgo, +paying only 3% when the law of 1714, then in force, had ordered the +payment of 8%. Viana's report charged the oidores with responsibility +for this deliberate violation of the law, alleging that the oidores +had been profiting thereby. It was on this occasion that the fiscal +recommended the establishment of a consulado at Manila, which would +remove from the magistrates of the audiencia all temptation to use +their positions for private profit in violation of the commercial +laws of the realm. [347] The part played by the magistrates in the +administration of the trade with Acapulco may also be mentioned +here. This will be discussed in a subsequent chapter. [348] + +Apart from the extra duties and commissions already noted, the +audiencia was utilized for a variety of purposes which are too +miscellaneous to be classified, but too important to be omitted +from this discussion. Duplicates of executive orders relating to +subjects far removed from the jurisdiction of the audiencia as a +court, were sent to it, with instructions that the tribunal take +note of numerous matters, such as seeing that the laws were properly +executed, observing the effect of reforms, and reporting on their +availability and adaptability at various times and places. Copies of +new laws relating to civil and ecclesiastical affairs were sent to +the audiencia for its information. + +The above practices were never more prominently evident than during the +constitutional reforms from 1810 to 1823. [349] That period, of course, +was a time of change and stress, and the audiencia seems to have been +regarded as the one stable authority in the Philippines. Cédulas and +executive orders were issued to the audiencia without regard to the +department of government to which they applied. By the cédula of June +14, 1811, the audiencia was made responsible for the execution of all +the orders of the superior government. On March 18, 1812, oaths of +all civil and judicial officials were ordered to be administered by +the audiencia. A royal order was received by the Audiencia of Manila +on January 19, 1813, which forbade the existence of free-masonry in +the Islands. The audiencia was made responsible for the execution +of all these cédulas and decrees. On August 6, 1813, the tribunal +acknowledged receipt of the law of April 25, 1810, which forbade +foreigners to land in the Islands without passports. The audiencia +was again made responsible for the execution of the reforms of 1812, +1815, 1823, 1834, and 1835, by which the entire administrative and +judicial systems of the colony were reorganized. + +The conduct of officials was continually under the observation of +the oidores, and special reports were frequently sent to the Council +from the audiencia in review of the progress of the government in +general, or in elucidation of some special phase of it. [350] A few +more examples of these investigations which were charged upon the +oidores may be reviewed here, together with the reports made by the +magistrates in compliance with royal instructions. + +The king, on August 9, 1609, wrote to the audiencia, asking for +information concerning the truth of a certain report which had come to +him regarding a custom practiced among the natives before the arrival +of the Spaniards, and which was said still to be in operation. It +had been asserted that the children of a free man and a slave woman +would be half-slave and half-free, and the progeny of these children +by subsequent marriage would be classed as a fourth, an eighth, or +a sixteenth slave or free. It was said that the natives recognized +varying degrees of freedom and slavery. The king, in the letter above +referred to, expressed a desire to know the truth of these reports, +and he ordered the audiencia to instruct him fully concerning these +alleged practices and customs. He called attention to the existing law +which forbade Spaniards to hold slaves, and he requested information +as to how great a hold this barbarous custom had upon the natives, +and how it might be eradicated with the least possible inconvenience +and loss. [351] + +The audiencia was required to submit data regularly concerning the +religious orders, showing the number of friars belonging to each order +and designating the provinces that were held by each. The tribunal +was often asked to make recommendations for the regulation of the +religious. As we shall note in a subsequent chapter, one of the regular +duties of the audiencia was to send in a yearly report on the number of +religious arriving in or departing from the Islands. The tribunal had +jurisdiction over the royal colleges and universities; it exercised +supervision over courses of study and instruction given in them, +and the oidores reported concerning these matters from time to time. + +The audiencia kept the court informed as to the number of Spaniards +in the Islands, the occupation of each, and his attitude toward the +government. It reported on the number of Chinese and other foreigners +in the Islands, the amount of tribute paid by the Chinese, and +the extent of the Chinese trade. From time to time the magistrates +were asked by the court to make special reports on these or other +subjects. They were required to report from time to time on the number +and services of the officials of the government, major and subordinate, +whether they were all needed, the quality of their services, and what +reforms could be made to effect greater economy and efficiency. The +audiencia was especially charged with the duty of seeing that the +provincial officials were not so numerous as to be a burden on the +natives. The government realized that oppression of the Indians +would result from the presence of too many Spaniards among them, +and the effort was continually made to limit the number of these +undesirables. The audiencia, in short, was the representative of the +king in all these matters. + +On several occasions the audiencia assumed the initiative, or +assisted materially, in the accomplishment of various functions of an +extraordinary character. It played an important role in checking the +epidemic of smallpox which ravaged the Islands from 1790 to 1794. On +January 18, 1790, Governor Marquina reported that this disease had been +playing havoc with the Indians in various parts of the Islands. [352] +He had raised 2385 pesos by voluntary contributions from different +officials and corporations, and had appointed a committee to administer +the funds. This committee consisted of representatives of the different +religious communities and the consulado, the archbishop, the chief +of the contaduría, the fiscal, the regent and the magistrates of the +audiencia. Soon after this letter was written Marquina's residencia was +taken, and the king, on January 24, 1794, wrote to the regent, asking +him to act as executive of the general committee already appointed +to conduct the campaign against this epidemic, and to report what +progress had been made in combatting it, suggesting that a general +committee of sanitation should be constituted to handle such cases +in the future. [353] + +In the cédula of November 26, 1765, we find another illustration of +the extraordinary functions of the magistrates of the audiencia. The +governor was ordered on this occasion to appoint a committee to +consider ways and means of remedying the damage done to agriculture and +commerce in the Islands as a result of the depredations of the English +upon their occupation of various parts of the Islands. This committee +was to consist of the fiscal as president, the oidores, the chief of +the contaduría, the alcaldes ordinarios of the city, and the alcaldes +mayores of the districts immediately outside the city. It was ordered +to meet at stated periods to discuss and recommend ways and means of +improvement, proper taxation, and other measures calculated to bring +about a revival of agriculture. This committee was the forerunner +of the Sociedad de Amigos del País, which was established during the +administration of Governor José Basco y Vargas. [354] + +The variety of the functions of the audiencia is well illustrated by +a report made on July 20, 1757, in compliance with a royal order of +inquiry as to how much money should be expended by the Philippine +government on the inauguration ceremonies of the governor. [355] +Besides noting an added duty of the tribunal, this is illustrative +of the pomp and ceremony utilized to impress the inhabitants of the +colonies with the grandeur of Spain and her government. After a lengthy +investigation, the audiencia stated in reply that the government of +Perú had been authorized to spend 12,000 pesos in the reception of +a viceroy, while New Spain could spend 8000 pesos. As much as 4000 +pesos had been spent in Manila in times past. Since the Philippines +was a colony of less importance than these, and the governor there +was of inferior rank to the viceroy, and as even these sums were +extravagant, it was the opinion of the tribunal that the government at +Manila should limit itself to an expenditure of 2000 pesos. This may +be considered as an example of the work accomplished by the oidores +in checking the excesses of the other officials and departments of +the government. [356] + +The audiencia had general authority over the inspection and censorship +of books which were printed in the colony or imported. This power was +conceded by a series of laws promulgated at different times from 1556 +to 1668. [357] At the earlier date it was ordered that no book treating +of the Indies should be printed without first having been inspected, +approved, and licensed by the Council of the Indies, and none could +be introduced into the Indies without the express permission of that +body. [358] Books of fables and other profane publications were not +allowed in the colonies under any circumstances. The Council of the +Indies, by enactment of May 8, 1584, authorized the audiencia to +publish books and dictionaries in the native dialects, and a later +law stipulated that twenty copies of each book should be sent to the +Council of the Indies to be placed on file there. [359] The oidores +and the oficiales reales whose duty it was to inspect the ships +which arrived from New Spain were ordered to search for forbidden and +heretical books, but in doing this they must act in conformity with +the expurgatories of the Inquisition. [360] By cédula of October 10, +1575, and of December 2, 1580, the right to print books of prayer +and of divine service for Spain and the Indies was conceded to the +monastery of San Lorenzo. This same cédula ordered that viceroys, +presidents, and oidores should see that no other service-books were +used in the churches and monasteries, and that books printed by any +other agency should not be permitted to enter the Islands. [361] + +In conformity with the above regulations, the Audiencia of Manila, +on July 21, 1787, suppressed a book which had been written by the +commissary of the Inquisition, on the ground that this functionary +had published it on the authority of the archbishop alone, and without +authorization of the Council of the Indies, as was required by law. The +case was appealed by the commissary to the Council, and the latter +body, while approving the action of the audiencia in suppressing the +book, and reprimanding the archbishop, after an examination of the +volume, allowed its publication in conformity with the laws of the +Indies. [362] Taken together, the relations of the audiencia and the +commissary of the Inquisition in most matters, and particularly in +the publication of books, were harmonious, and the same strife and +trouble did not occur in the Philippines that developed in Mexico, +Naples, and Perú over the question. [363] + +On January 26, 1816, the audiencia forbade the publication of any +book without its express permission. [364] As a result, considerable +trouble arose with the governor and the fiscal, neither of whom had +been consulted when the auto was passed. The fiscal contended that the +audiencia was violating the law which had reserved to the Council the +power to give licenses for the publication of books; moreover, it was +asserted, the law required the governor and audiencia to act in acuerdo +in matters pertaining to the suppression and licensing of books, +the tribunal not being authorized to proceed alone. The audiencia +contended in reply that these laws could no longer be interpreted +to mean that the governor should have authority over matters of a +purely judicial nature, such as these were, because he was no longer +president of the audiencia, and hence not a judicial official. [365] +The tribunal furthermore based its contention on two enactments--one, +a royal order dated October 1, 1770, which directed certain prelates +to apply to the audiencia for permission to have a religious work +published, and the other, dated July 21, 1787, already cited, by +which the king confirmed the refusal of the audiencia to allow the +publication of a work prepared by the commissary of the Inquisition, +when he had failed to seek the authority of the audiencia. It is clear, +however, that on this occasion the audiencia was guilty of deliberate +misinterpretation of the law in its own favor. The Council of the +Indies had the final right to decide as to the contents of the book, +and the audiencia merely suspended publication, pending the action of +the Council. The audiencia was never given the power to pass finally +on the contents of books, except those dealing with languages and +dialects. The ultimate right of passing on all religious publications +was retained by the Council of the Indies, while the audiencia was +authorized merely to suspend the publication and circulation of books +which had not complied with the above royal ordinances. After the +suppression of the Council of the Indies and the establishment of +the Supreme Tribunal of Justice, there was a tendency toward giving +the colonial governments a wider degree of latitude in such matters. + +It has been noted already, in the cédula of October 9, 1812, and +in subsequent reforms, that all matters of a contentious nature +should be settled in the audiencias and not carried to the tribunal +in Spain. A further reform in the censorship of books was made on +October 4, 1839, when the control of these matters was placed in the +hands of two censors, appointed by the acuerdo and the archbishop, +respectively. In case a decision were made to suppress a certain book, +a legal proceeding had to be instituted before the fiscal, who became +the arbiter if a disagreement arose between the censors. Seizure was +justified on the grounds that the publication contained something +contrary to the legitimate interests of the throne or of the +religion. Condemned books were not only seized, but sent from the +colony. [366] The responsibilities of censorship were thus shared +until October 7, 1856, when, on account of the many disagreements +which had arisen as a result of this divided authority, the superior +government decreed that a standing board of censors should be created, +to consist of eight members, four to be appointed by the archbishop +and four by the governor. This board was to be presided over by the +fiscal of the audiencia. [367] + +Among other important functions of a non-judicial character was +the audiencia's duty of keeping the archives of the government. The +tribunal had a number of records in which entries were made concerning +its work. [368] A registry was kept of the votes of the oidores +in suits involving a hundred thousand maravedís or more. Further, +separate records were kept of all resolutions of the acuerdo relative +to government and finance, respectively, Thursday afternoon of each +week being devoted to the latter. Likewise, a book of cédulas and royal +provisions was kept by the audiencia, and on the basis of these the +tribunal formed all judgments and gave advice when requested. Separate +files were kept for copies of all royal orders, cédulas and letters, +one for secret, and the other for open correspondence. In another +volume an account was kept of the amounts received from fines and +from funds liquidated for the expenses of justice. As already stated, +lists were also maintained of all persons residing in the colony, +with an account of their quality and work, their attitude toward the +government, their occupation, and, if they were officials, the nature +and character of their services. [369] The audiencia kept a book +of residencias, which has been described in a former chapter. Also +records of persons coming to and leaving the Islands, with appropriate +entries concerning them, were preserved in this archive. + +Besides the special duties of the oidores indicated in this chapter, +there were others which will be described later in more detail. The +residencia has been already treated. Other duties will be noted in +connection with the relation of the audiencia and the governor. Some +are more closely related to the religious and the ecclesiastical +institutions of the colony, and merit special treatment in that +connection. The audiencia, moreover, had extensive functions in +relation to the commercial and economic life of the colony. A fuller +comprehension of these numerous activities may be gained in the +following chapters where they are discussed in connection with two +of the most powerful factors in the colony's life--the governor and +the church. + + + + + + + +CHAPTER VI + +THE AUDIENCIA AND THE GOVERNOR: GENERAL RELATIONS + + +The audiencia was brought into closer and more frequent relationship +with the governor than with any other authority in the colony. The +governor was president of the royal audiencia and hence was nominally +its chief magistrate. This brought him into touch with its functions +as a court. The governor was chief executive of the colony, and +in that capacity was responsible for administrative, financial, and +military affairs. It will be noted that the audiencia, in various ways, +exercised powers of intervention in all of these matters. + +The official title of the governor of the Philippines up to 1861 was +governor, captain-general, and president of the royal audiencia. [370] +a combination of three important functions. In his capacity as +governor, he was chief executive of the civil government, with +authority over all administrative departments, including finance, +and over ecclesiastical affairs. As captain-general, the governor +was commander-in-chief of the military forces, with the special duty +of providing for the defense of the Islands. As president of the +audiencia, the governor retained his authority as executive while +entering the field of the judiciary. Though he could not act as +judge, himself, nevertheless we have seen in former chapters that +he exercised extensive authority over the tribunal, its procedure, +and its magistrates. + +It will accordingly be our aim in this chapter to discuss the +general relations of the audiencia and the governor. These include +administrative, financial, and ecclesiastical functions, and those +involving the government of the provinces. To these will be added +such further observations as remain to be made concerning the judicial +relations of the governor and audiencia, leaving apart for discussion +in another chapter as an integral subject, the military jurisdiction +and the respective participation of the audiencia and the governor +in the matter of defense. + +Generally speaking, the governor of the Philippines occupied the same +relative position, within and without the colony, as did the viceroy in +New Spain, and during the greater part of the history of the Islands he +was independent of the government of New Spain and was responsible to +the Spanish court directly, in the same manner as the viceroy. [371] +The independence of the Philippine government may be said to have +been practically complete, with such exceptions as will be mentioned +in a subsequent chapter, treating of the ad interim rule, after the +re-establishment of the audiencia in 1598. The governor was the chief +administrative official of the colony, and the provincial governments +derived their authority from him; he was the royal vice-patron, +and in this capacity he bore the same relation to the church in the +colony as the king did to the church in Spain. Likewise as the king +was the theoretical head of the state, and was limited and assisted +in the exercise of his authority over the empire by the Council of +the Indies, so the governor and captain general of the Philippines +(and the viceroy in New Spain and Perú) was the head of the colony, +and was limited by the audiencia. The audiencias of all the colonies +were equally dependent on the Council of the Indies. + +Professor Bourne very aptly characterizes the office of governor of +the Philippines and its relations to the audiencia. He writes: + + + The Philippine Islands were constituted a kingdom and placed under + the charge of a governor and captain general, whose powers were + truly royal and limited only by the check imposed by the Supreme + Court (the Audiencia) and by the ordeal of the residencia at the + expiration of his term of office. Among his extensive prerogatives + was his appointing power which embraced all branches of the civil + service in the islands. He also was ex officio the President of + the Audiencia. His salary was $8000 a year, but his income might + be largely augmented by gifts or bribes. The limitations upon the + power of the Governor imposed by the Audiencia, in the opinion of + the French astronomer Le Gentil, were the only safeguard against + an arbitrary despotism, yet Zúñiga, a generation later pronounced + its efforts in this direction generally ineffectual. [372] + + +Juan José Delgado, who gives us perhaps the most comprehensive and +realistic survey of the Philippines of any of the ecclesiastical +historians of those Islands, describes the nature of the office of +governor as follows: + + + The governors of these Islands have absolute authority to + provide and to attend to all that pertains to the royal estate, + government, war; they have consultations in different matters with + the oidores of the royal audiencia; they try in the first instance + the criminal causes of the soldiers, and they appoint alcaldes, + corregidores, deputy and chief justices of all the Islands for + the exercise of government, justice, war, ... and besides many + other preëminences conceded by royal decrees to the presidency + of the royal audiencia and chancery. [373] + +The governors of these Islands [he wrote] are almost absolute, and +are like private masters of them. They exercise supreme authority, +by reason of their charge, for receiving and sending embassies to +the neighboring kings and tyrants, ... they can make peace, make +and declare war, and take vengeance on those who insult us, without +awaiting any resolution from the Court for it. Therefore many kings +have rendered vassalage and paid tribute to the governors, have +recognized them as their superiors, have respected and feared their +arms, have solicited their friendship, and have tried to procure +friendly relations and commerce with them; and those who have broken +their word with them have been punished. [374] + + +The governor of the Philippines, like the viceroy of New Spain, +was the administrative head of the colony, and as such exercised +supervision over all the departments of the government, likewise +over ecclesiastical affairs. He was directed to devote himself to +the service of God, and to labor for the welfare of the souls of the +natives and inhabitants of the provinces, governing them in peace +and quietude, endeavoring to bring about their spiritual and moral +uplift and their numerical increase. The governors (or viceroys) +were instructed by the laws of the Indies + + + to provide all things which are convenient for the administration + and execution of justice, ... to maintain the government and + defense of their districts, exercising very special care for the + good treatment, conservation and augmentation of the Indians, + and especially the collection, administration, account and care + of the royal exchequer. + + +They were instructed, in short, to do all for the provinces under +their charge [375] that the king, himself, might do. The laws of the +Indies ordered the audiencia, the religious authorities and the civil +officials to acknowledge the governor [or viceroy] as their chief. The +laws emphasized as the special duties of the governor the supervision +and augmentation of the finances, the defense of the colony, and +general supervision over all officials, executive and judicial, +central and provincial. + +Foremost among the responsibilities of the executive was that of +supervising the administration of the colonial exchequer. In this, +however, he was assisted by the audiencia. The customary oficiales +reales were among the first officials created for the Philippine +government, and they were responsible to the governor. At the time of +the creation of the audiencia, it was ordered that the governor and +two oidores should audit the accounts of the oficiales reales, but +this power was transferred to Governor Dasmariñas when the audiencia +was removed in 1589. In 1602 the right of inspection of accounts was +returned to the oidores, [376] but the governor, it was stated, as +executive head of the government, was responsible, and he exercised +direct intervention in these matters, limited only by the annual +inspection of the oidores. During the greater part of the history of +the Islands the governor exercised supervision over the collection and +the administration of the public revenue, in accordance with the law, +[377] and he was required to be present at the weekly meetings of the +junta de hacienda, of which two magistrates were members, there to +pass on all financial measures and to authorize expenditures. [378] +The governor had control over the sale of offices, jointly with the +oficiales reales, but from the correspondence on these subjects it +is clear that the audiencia was designed to check the governor's +authority in that particular. [379] The governor was forbidden to +authorize extraordinary expenditures from the treasury without express +royal permission, except in cases of riot, or invasion. [380] This +regulation was almost impossible of faithful execution, and as his +duties increased and became more complicated, the governor was unable +to give as complete attention to these matters as the laws of the +Indies prescribed. Although the governor had these financial powers, +he could not decide cases appealed from the oficiales reales. These +were regarded as contentious cases and as such were resolved by +the audiencia. [381] In Mexico and Lima, wherein there were higher +tribunals of accounts than in Manila (contaduría mayor), the audiencia +did not have this jurisdiction. + +From 1784 to 1787 the governor was temporarily deprived of the +leadership in financial matters by virtue of the Ordinance of +Intendants, but the oidores retained membership in the colonial board +of audits, together with the intendant, who had taken the governor's +former place as the responsible head of the colony's finances. In 1787 +the governor was restored to his former position with respect to the +exchequer, with the official title of superintendente subdelegado de +real hacienda. It is sufficient to say that the governor's relation +to this new department did not materially lessen the authority of +the audiencia with regard to the finances of the colony. + +Although the appointing power was claimed by many governors as their +sole prerogative, the audiencia imposed a very decided check on +their exercise of this authority. The governor had the right to make +appointments in all departments of the government, except in certain +so-called offices of royal designation, to which the governor made +tentative appointments, subject to subsequent royal confirmation. [382] +Although the law of February 8, 1610, exempted appointments made by the +governor of the Philippines from the necessity of royal confirmation, +[383] in practice these nominations were sent to the court for approval +in the same manner as were those from Spain's other colonies. + +The audiencia intervened in the matter of appointments in two ways. In +case it succeeded to the government on the death of the governor +the tribunal exercised all the prerogatives of appointment. [384] +When the governor was present he was obliged to refer the names +of all candidates to the acuerdo. [385] This was made necessary +because the governor, being new to the Islands and unfamiliar +with local conditions, was not so well fitted to pass upon the +merits of candidates for office as were the oidores who had become +permanently identified with the interests of the colony and whose +opinion was of weight in these matters. Thus it came about that +the audiencia exercised joint authority with the governor in making +appointments. [386] The question of the relative authority of the +audiencia and governor in making appointments was a source of conflict +throughout the history of the Islands. + +When the governor submitted the name of a candidate to the acuerdo it +was the duty of the magistrates to furnish all the information possible +regarding the character, fitness, and ability of the person under +consideration for the position. If the audiencia and the governor +should disagree and the latter still persisted in an appointment, +it was the duty of the audiencia to submit, forwarding all evidence +relative to the candidate to the Council of the Indies, the latter body +ultimately taking such action as it deemed best. When the nominations +of the governor reached the Council of the Indies for confirmation, +that tribunal relied extensively upon information furnished by the +audiencia concerning the candidates under consideration. + +As already stated, the king retained the right to appoint certain +so-called "officials of royal designation." These varied at different +times, but, in general, included corregidores, alcaldes mayores, +oficiales reales, oidores, regents, and, of course, viceroys, +governors, and captains-general. [387] All these officials, +except those last named, could be temporarily designated by the +executive. Although the law placed corregidores, alcaldes mayores, +and oficiales reales in this category, their designation by the court, +like the confirmation of encomiendas, was usually nominal. Many of +these offices were filled in Spain and Mexico, while some appointees +were named from the Philippines, and probably in the majority of the +latter cases the royal appointment merely amounted to a confirmation of +a temporary appointment made by the governor. The post of governor of +the Philippines was filled temporarily by the viceroy of New Spain +until about 1720. In the same manner the governor of Ternate was +named by the Philippine executive, with the advice and consent of +the audiencia. These ad interim appointments were valid until the +king made them regular by confirmation, or sent persons from Spain +to hold them permanently. + +When a vacancy occurred among the offices of royal designation, +it was the governor's duty to forward a list of candidates, or +nominees, and from this list the king, or the Council of the Indies +in his name, made a permanent appointment. [388] In the meantime +a temporary appointment was often made by the governor, in acuerdo +with the audiencia, and the name of the appointee was placed first +on the list remitted to the court. This procedure was followed in +the appointment of encomenderos, corregidores, alcaldes mayores, and +treasury officials. It was seldom done in the cases of oidores and +fiscales, who, because of their special or professional character, +were usually sent directly from Spain or from New Spain. Unless there +were special reasons to the contrary, for instance, the filing of an +adverse report by the audiencia, or a protest on the part of residents, +the governor's temporary appointments were usually confirmed and +made permanent. Temporary appointees with salaries exceeding 1000 +pesos a year only received half-salary until their appointments were +confirmed. [389] At least two years and frequently four transpired +before the regular appointment arrived, and as the terms were from +three to five years for the majority of these offices, the governor's +candidate was usually the incumbent a considerable portion of the time, +whether his nomination were confirmed or not. Neither relatives nor +dependents of governors or oidores could be legally appointed to any +office. [390] This mandate was often violated, as we shall see. It +was the duty of the regent and the fiscal to certify to the court +that appointees were not relatives of the governor or oidores. [391] + +In an instruction directed exclusively to the Philippine audiencia, +the king ordered the tribunal to see that offices were bestowed only +upon persons "who by fitness or qualifications are best able to hold +them." [392] It appears that this law, or another promulgated about +the same time, gave to the fiscal and the oidores the right to pass on +the qualifications of encomenderos, alcaldes mayores, corregidores, +and other minor officials, on condition that preference should be +given to conquerors, settlers, and their descendants. Governor Alonso +Fajardo remonstrated that this new practice hampered the work of the +governor, and created difficulties between him and the oidores. [393] +A yet later law, dated October 1, 1624, gave the governor (and viceroy) +the right to make temporary appointments of all judicial officials, +without the interposition of the audiencia. [394] On February 22, +1680, the power of making permanent appointments of alcaldes mayores +and corregidores was vested in the governor and the audiencia. [395] +In view of this law, the Audiencia of Manila claimed and actually +exercised authority in the appointment of provincial officials from +that time onward. + +Vacancies in the audiencia itself were filled temporarily by the +governor. In case the audiencia were governing ad interim it could +designate magistrates from the outside to try cases, but the power +of the audiencia, as provided by these laws, was secondary to that of +the governor if he were present. Under no circumstances were permanent +appointments to the audiencia to be made by any authority other than +the king and Council. In case there were a vacancy in the office +of fiscal the junior oidor was authorized to fill the place. [396] +Conversely, it also occurred that when an extra oidor was needed, +the fiscal might be temporarily designated to fill the place. [397] +It was also ordered that if the fiscal could not be spared from his +office on account of his numerous and important duties, a lawyer +might be named to act as fiscal ad interim. [398] In New Spain +an alcalde del crimen took the place of the junior oidor when the +latter occupied the fiscalía. There were no alcaldes del crimen in +the Philippines, but the cédula of February 8, 1610, above cited, +was always quoted as furnishing justification for the appointment +of oidores ad interim by the governor. [399] In a subsequent chapter +we shall refer to several occasions on which this was done; indeed, +entire audiencias were re-constituted by certain governors. + +The audiencia was required to see that the appointees designated +by the governor duly complied with the requirements of residencia; +likewise that they were properly installed in office, and that they +did not serve in offices for which they had neither authority nor +qualifications. [400] Notwithstanding the variety and the conflicting +character of the laws bearing on matters of appointment, a careful +consideration of law and practice leads to the conclusion that the +governor, as chief executive, had the power of making appointments, +but in the execution of this duty he was ordered to consult the +audiencia, although, strictly speaking, he was not obliged to follow +its advice. If there were good reasons for not appointing an official +recommended by the governor, the oidores could send representations +to the Council of the Indies, setting forth their objections, and the +Council might confirm or nullify the appointment, as it chose. The +audiencia could make appointments if it were in temporary charge of +the government. The authority which the audiencia exercised in regard +to appointments varied according to circumstances. If the governor +were new at his post, weak or indulgent, the audiencia exercised more +extensive authority than was conceded by the laws. If the governor were +experienced, efficient, and a man of strong personality and dominating +character, the tribunal exercised less power in regard to appointments, +and, in fact, in all other matters pertaining to government. + +Closely related to the appointing power was the duty which the governor +had of submitting annually to the court a list of all the officials +of the colony, with comments on the character of their services, and +with recommendations for promotion or dismissal from office. [401] The +oidores were included in these reports. [402] It was also the function +of the governor to report on the administration of justice. [403] +The governor was instructed to inform the court in case the oidores +engaged in forbidden commercial ventures, either directly, through +the agency of their wives, or through other intermediaries. [404] He +was authorized, moreover, to investigate and report on the public and +private conduct of the magistrates and of their wives as well [405] +and to exert himself to see that their actions were at all times in +consonance with the dignity of their rank and positions and of such a +character as would reflect credit on the royal name and entitle them to +the respect of the residents of the colony. The confidential reports +of the governor to the king might include all of these matters, and +many others too numerous to mention. On the other hand, the audiencia, +as a body, was authorized to direct the attention of the Council to +any irregularities of which the governor might be guilty, and thus +a system of checks and balances was maintained. [406] However, the +oidores were forbidden to make charges individually. This injunction +was so frequently disregarded that it was practically a dead-letter. + +Typical of the governor's authority over all the officials of the +colony, and incidentally over the oidores, was his power to grant +or withhold permission to marry within the colony. The earlier laws +on this subject absolutely forbade viceroys, presidents, oidores, +alcaldes, or their children to marry within their districts. [407] +Deprivation of office and forfeiture of salary were the penalties +for infraction of these regulations. These laws were followed by +others which required the president (viceroy or governor) to report +immediately to the Council the case of any magistrate guilty of +violating the law forbidding the marriage of officials. [408] It +was not until 1754 that a law was promulgated providing for special +marriage dispensations to be granted by the Council of the Indies upon +the recommendation of the president of the audiencia. [409] In 1789 +the president was authorized to concede permission to accountants +and treasury officials, but not to oidores. [410] The prohibition +was applied to magistrates until 1843, and the only condition under +which they were permitted to marry within the colony was by virtue +of the express permission of the supreme tribunal in Spain. In 1848, +the president of the audiencia was authorized to grant marriage +licenses to magistrates on condition that the contracting parties +were "of equal quality, customs, and of corresponding circumstances," +permission having first been obtained from Spain, [411] the president +alone passing upon the requisite qualifications. + +The chief reason for the restrictions and prohibitions placed +on the marriage of magistrates seems to have been the conviction +that officers of justice would compromise themselves by marriage, +acquiring vast numbers of relatives and dependents, thereby making +it impossible to render impartial decisions or administer justice as +evenly and dispassionately as they would were they not so familiarly +known in their districts. It was also necessary to prevent officials +from lowering their dignity by union with natives and half-castes. The +marriage of officials with natives of the Philippines was not regarded +with favor at any time by the Spanish government. + +It seems that the above prohibition did not apply with the same force +to fiscales as to magistrates. This is illustrated by a case which +arose in 1804 when Fiscal Miguel Díaz de Rivera was deprived of his +office by royal decree for having married without the permission of +the Council of the Indies. [412] The fiscal had married the daughter +of the corregidor of Pangasinán, who was a colonel in the Spanish +army. The mother of the girl was a Eurasian from Madras, and had +been a subject of Great Britain. Under the date of May 27, 1805, +Díaz sent a petition to the king, bearing the endorsement of Governor +Aguilar, demanding his restoration to office. Among the reasons cited +for the proposed reinstatement of the fiscal, it was said that Díaz, +being a prosecutor and not a magistrate, was not subject to the same +regulations and conditions as the oidores, whose judicial duties +rendered impossible their marriage within the Islands. Aguilar stated +that the purpose of the law had been to debar ministers from making +such marriage connections as would diminish the respect which the +community should have for them as oidores of a royal audiencia, thus +undermining their standing as magistrates. In this instance there +could have been no case of degradation because of the high standing +of the mother and father. Moreover, a fiscal could not be regarded +as a magistrate, and the same laws did not apply to both classes of +officials. As an outcome of these representations Díaz was restored +to office by the royal decree of October 13, 1806. [413] + +A duty similar to that just noted, inasmuch as it was indicative +of the authority of the governor over the oidores, was his power +to examine and try criminal charges against the magistrates. A law +which was in force from 1550 to 1620 ordered that the president +should be assisted in the trial of criminal charges against oidores +by alcaldes ordinarios. On September 5, 1620, this law was modified +by the enactment of another, which ordered that in cases involving +imprisonment, heavy fines, removal from office, or the death penalty, +the governor should make the investigation and refer the autos to +the Council of the Indies for final judgment. + +This law still left the trial of oidores for misdemeanors in the +governor's jurisdiction, but in cases of sedition or notorious offenses +which required immediate action in order to furnish a public example +for its effect on the natives, the president was required to confer +with the audiencia, and to act in accordance with its judgment. By +this law the president was forbidden to make more than temporary +suspensions of oidores from their offices. In no case could they be +permanent unless first approved by the Council of the Indies. [414] +Notwithstanding this law, it may be noted that certain governors +went so far on some occasions as to remove, imprison, and exile +magistrates and to appoint a new audiencia. [415] The judicial power +of the governor over such cases was further altered by the Royal +Instruction of Regents of June 26, 1776, by which he was forbidden +to impose any penalty on the oidores without the concurrence of the +acuerdo and the regent. [416] The president and the acuerdo could +rebuke and discipline oidores, privately, when their conduct demanded +it. Even on such an occasion as this the magistrate was to be given +full opportunity to defend himself. If a private investigation of +the conduct of an oidor were necessary, the inquiry could be still +conducted by the senior magistrate. [417] Oidores, on the other hand, +had no jurisdiction over the trial of charges against the president, +unless it were in his residencia. In this event the investigation +might be conducted by a magistrate designated by the governor or by +the Council of the Indies. [418] + +Aside from his executive and military duties, the governor was +president of the royal audiencia. This arrangement had the advantage +of giving him an opportunity to know and appreciate the legal needs +of the colony. It brought him in constant contact with judicial minds, +and his position in this regard was no doubt calculated to keep him in +the straight and narrow path of the law. Nevertheless, the governor, +who was usually a soldier, but seldom a lawyer, did not participate +as a magistrate in the trial of cases, and his activities in the +tribunal were directive, rather than judicial. His opinions in all +legal and administrative matters were prepared by his asesor. [419] + +As president of the audiencia the governor exercised two important +powers. One authorized him to divide the audiencia into salas and to +designate oidores to try cases within the tribunal, to inspect the +provinces, to take residencias, or to attend to semi-administrative +matters, such as have been noted in the preceding chapter. [420] +The other was the power to decide whether a contention was of +judicial, governmental, military, or ecclesiastical character, and +to assign it to the proper department or tribunal. [421] This power +was significant because it made the governor the supreme arbiter +between all conflicting authorities in the colony. Frequently he +decided disputes between the audiencia and the ecclesiastical courts, +between the audiencia and the consulado, or between the oidores and +the oficiales reales in matters relative to the jurisdiction of these +tribunals over questions at issue. + +While the magistrates were allowed to proceed practically without +interference in affairs of justice, the governor was instructed to keep +himself informed concerning the judicial work of the audiencia. [422] +While forbidden to alter the judgments of the tribunal or to tamper +with its sentences, [423] he could excuse or remit fines with the +consent of the oidores. The governor could commute sentences in +criminal cases. The final pardoning power rested with the king and it +was exercised upon the recommendation of the governor or the prelates +[424] and the Council of the Indies. There were exceptional occasions, +however, on which the governor assumed the responsibility of pardoning +criminals. + +After the creation of the office of regent in the audiencias of +the colonies, in 1776, the governor's position as president of the +audiencia became purely nominal, the regent actually officiating as +chief justice, though the president was still legally required to +affix his signature to all judicial decisions of the tribunal. The +frequent and extended absences of the governor from the capital and the +multiplicity of his administrative duties prevented him from attending +to these matters with requisite promptness, and injustice consequently +resulted from the requirement. Many complaints were made from 1776 +onward against this condition of affairs, with the result that a +modification in the existing law was made on October 24, 1803, making +valid the signature of the regent to all decisions of the audiencia, +when the governor was absent from the colony on expeditions of conquest +or tours of inspection. [425] At all other times the governor, as +president, affixed his signature to all legal acts and autos, although +he did not participate in their decisions. The law remained thus +until 1861, when the governorship was separated from the presidency, +the acuerdo was abolished, and the regent was made president of the +audiencia with authority to sign all judicial decisions. [426] + +We have already noted that the governor exercised special judicial +powers, independent of the audiencia. Among these the military +jurisdiction stands pre-eminent, and it will be discussed separately in +the following chapter. The governor was also empowered to try Indians +in first instance, with appeal to the audiencia. [427] The actual +trial of these cases, however, was delegated to the alcaldes mayores +and corregidores with appeal to the audiencia. It was impossible +for the governor, occupied as he was with the multitudinous affairs +of his office, to concern himself personally with the thousands of +petty cases among the Indians, or between Indians and Spaniards. He +had jurisdiction over suits involving the condemnation of property +through which public roads were to pass. [428] The special jurisdiction +of the governor, assisted by the audiencia, over cases affecting the +royal ecclesiastical patronage will be discussed later. + +The laws of the Indies would seem to indicate that both the +governor and the audiencia exercised independently the power to +exile undesirable residents from the colony. It was stipulated that +if sentence of exile were passed by the governor and the offenders +were sent to Spain, the necessary papers, issued by the governor, +should accompany them. [429] If the decree of banishment were imposed +by the audiencia in its judicial capacity, the governor was forbidden +to commute the sentence or otherwise interfere in the matter. [430] The +audiencia frequently sentenced criminals or other undesirables to spend +terms of varying lengths in the provinces or in the Marianas. This, +as we have seen, was commonly one of the trials connected with the +residencia. We have a noteworthy illustration of the action of the +audiencia in acuerdo with the governor in the banishment of Archbishop +Felipe Pardo, who was exiled by the acuerdo of the audiencia and +Governor Juan de Vargas Hurtado, in 1684. Vargas was succeeded the +same year by Governor Curuzaelegui, who recalled the prelate from +exile and forced the audiencia to endorse the act of recall. + +Closely related to the governor's jurisdiction over banishment +was his jurisdiction over cases of persons entering the Islands or +departing from them without royal permission. [431] He exercised +final jurisdiction here over civil and ecclesiastical authorities, +encomenderos, and private persons. The law forbade any person to enter +or leave the Islands without the royal permission, and the governor +was charged with the execution of this law. Encomenderos were not to +leave the Islands on pain of confiscation of their encomiendas. [432] +While the laws of May 25, 1596, and of June 4, 1620, gave authority +to the governor over the religious, relative to their entrance into +the Islands and departure therefrom, [433] the cédula of July 12, +1640, authorized the audiencia to enforce the law on this subject; +especially was the tribunal to see that no ecclesiastics departed for +Japan and China without the proper authority. [434] Although there +can be no doubt of the finality of the governor's jurisdiction in +this matter, yet the audiencia exercised an advisory power, and an +authority to check irregularities, particularly with a view to seeing +that the governor did his duty and fulfilled his obligations in the +matter. Numerous instances exist to show that whenever this subject was +treated in a royal order or decree, copies of the law were sent to the +audiencia for its information. On other occasions when there was reason +to believe that there had been irregularities in the procedure of a +governor, the audiencia complained to the Council of the Indies. This +was done for example in 1779 when Governor Sarrio conceded permission +for several priests to go to Mexico. This action the audiencia claimed +to be irregular, since the Council of the Indies had not been notified +or consulted. The king, on March 6, 1781, approved the action of the +governor on the basis of the laws above referred to. [435] + +Besides his judicial authority the governor shared legislative +functions with the audiencia. We have noted in an earlier chapter +that the acuerdo passed ordinances for the domestic welfare and local +government of the colony. It prescribed rules and issued regulations +for merchants, encomenderos, and religious, in accordance with the +rulings for royal ecclesiastical patronage. The acuerdo developed +from the advisory power of the audiencia. The king in his first +decrees ordered the viceroys and presidents to consult with the +oidores whenever the interests of the government demanded it, [436] +and if necessary the opinions of the magistrates could be required +in writing. When an agreement was reached upon a given subject, they +voted in acuerdo and gradually that acuerdo came to have the force +of law. On many occasions the acuerdo prevailed over the governor's +will. There was no constitutional basis for this, and the acuerdo, +when it became a legislative function in passing ordinances and +overruling the governor himself, assumed prerogatives which were +never exercised by the audiencias of Spain. [437] + +The laws of the Indies established the governor as the sole executive, +and forbade the audiencia to interfere with the government. [438] +The governor, occupied by his extensive administrative and military +duties, came to devote less attention to the judicial side of his +office, which was left almost entirely to the audiencia. So it +developed that the acuerdos in reference to judicial matters--the +establishment of tariffs and rules for their observance and the +dispatch of pesquisidores and visitors to the provinces, came in the +latter eighteenth and early nineteenth centuries to be increasingly +the concern of the audiencia. The authority of the tribunal in these +matters was recognized by the Constitution of 1812 and the reforms +made in pursuance thereof. [439] + +In the same manner the acuerdo came to be recognized in governmental +and administrative matters. The enactments of these legislative +sessions of the audiencia were known as autos acordados. They +ultimately came to embrace a wide field. The audiencia passed laws for +the regulation of the provinces; it made rulings which the alcaldes +mayores and corregidores were to follow in the collection of tribute; +it prescribed their relations with the parish priests; it issued +regulations for the conduct of the friars and the ordinary clergy +relative to the royal patronage. Laws were passed for the encouragement +of agriculture and industry and the regulation of commerce. Rice, +tobacco and silk culture, the production of cinnamon and cocoanuts, +the breeding of fowls, the regulation of cock-fighting, cloth-making +and ship-building all came in for their share of attention in the +acuerdo. [440] + +The audiencia, in the exercise of the acuerdo power, passed ordinances +for the enforcement of the laws forbidding the unauthorized departure +of persons from the Islands; it helped to fix the rate of passage +on the galleons and on the coast-wise ships. It made regulations for +the Chinese in the Parián, it prescribed the conditions under which +licenses might be issued to Chinese merchants and it passed ordinances +for the better enforcement of the laws prohibiting the immigration +of the Chinese. The acuerdo concerned itself with the maintenance +of prisons and the care of prisoners, the residencias of provincial +officials, the auditing of accounts, the collection of the revenue, +and the supervision of the officials of the treasury. Ordinances +were passed enforcing the general law which ordered that the natives +should not live together in Christian communities without marriage, +that they should attend religious ceremonies, that they should +be instructed in religion, and that they should not be exploited, +either by the civil or ecclesiastical authorities. It is, of course, +understood that the audiencia in no way trespassed the authority +of the church in issuing these regulations; indeed it was quite the +contrary; these ordinances were passed on the basis of the authority +of the royal patronage, with the design of assisting the vice-patron +(the governor) in the execution of his duties, and the church was +aided rather than impeded thereby. It must be remembered, of course, +that the governor, as president of the audiencia, presided in these +acuerdos, and that in most cases, actually, as well as in theory, +these autos acordados were his will. + +There were many occasions in the history of the Islands when +the acuerdo was influential in the formulation of far-reaching +reforms. The well-known "Ordinances of Good Government," issued +by Governor Corcuera in 1642 for the observance of the provincial +officials, and repromulgated with modifications by Cruzat y Góngora +in 1696 and by Raón in 1768 were formulated by the acuerdo. [441] +Similarly were those formulated that were proposed by Marquina in +1790. The local regulations for the consulado, established in 1769, +were formulated by the audiencia largely on the recommendations +of the able fiscal, Francisco Leandro de Viana. In the same manner +the new plan of constitutional government given to the Philippines +in 1812 was drafted by the audiencia at the request of the Council +of the Indies. [442] Likewise the plans for the government of the +intendancy were submitted to the acuerdo by Governor Basco y Vargas +in 1785. Indeed, these, as well as the scheme of 1787-8, were actually +written by two magistrates of the audiencia, the former plan by Oidor +Ciriaco Gonzales Carvajal, subsequently intendant, and the latter by +Oidor Castillo y Negrete. [443] + +There were occasions when the audiencia enacted administrative +measures in which the governor failed to participate. These were +especially noticeable during the administrations of Acuña, Fajardo, and +Corcuera--governors who spent much of their time away from Manila. A +more recent instance of this occurred in 1790 when the natives of +the province of Ilocos revolted against a tyrannical and dissolute +alcalde mayor. The acuerdo, notwithstanding the objection of Governor +Marquina, removed the offending official and appointed another, and +this action was subsequently approved by the king. [444] According +to the laws of the Indies the authority of removal and appointment +of such officials rested with the governor. [445] The tendency of the +acuerdo to act in civil affairs without the advice or presence of the +governor was checked by the royal order of November 12, 1840, wherein +the audiencia was ordered not to attempt to carry its acuerdos into +execution without the authority of the superior government. [446] +The evil effects of the audiencia's intervention in provincial +government were pointed out in 1842 by Sinibaldo de Mas, when he wrote: +"the government of the provinces is in charge of an alcalde-mayor, +who is at once judge of first instance, chief of political matters, +subdelegate of the treasury, and war-captain or military commandant, +for whose different attributes he is subject to authorities distinct +from one another." [447] + +The audiencia was deprived of its acuerdo power in governmental +matters by the Constitution of 1812, but it was still retained in +judicial affairs. In 1815 and again in 1823 on the restoration of +the monarchy, the full acuerdo power as practiced before 1812 was +resumed by the audiencia. Official recognition of the acuerdo was +made publicly by Governor Torres, who succeeded Enrile on March 18, +1834. In his inaugural address this governor avowed his purpose to be +the extension and improvement of commerce, the army and agriculture, +"but, in order to develop these to their highest extent, and to +realize the utmost success in my administration," he said, "I count +on the co-operation of all the authorities, and particularly of +the real acuerdo, of which I have the honor to be president." [448] +The audiencia was finally excluded from the acuerdo in administrative +matters by the reform of July 4, 1861; since then the tribunal has been +purely judicial, the legislative functions of government having been +assumed by the Administrative Council (Consejo de Administración) of +which the president and fiscal, and usually two oidores at least were +members. Thus, even after the reform of 1861, the oidores continued +to participate in legislative functions, though the audiencia as a +body did not. [449] + +Typical of the multitudinous duties of the governor, and illustrative +at the same time of his relations with the audiencia, were the various +subjects treated in the Instruction of the king to Governor Pedro de +Acuña, dated February 16, 1602, [450] which is chosen for citation +here because of its comprehensive character, and also because of +its availability. Beginning with the reminder that the governor +should confer with the Viceroy of New Spain whenever necessary, this +comprehensive paper treated first of the defense of the Islands against +the Japanese, and of the maintenance of a garrison in Mindanao. The +matter of tribute was taken up, and the desirability was shown of +having the natives pay tribute in kind rather than in money. It was +said that the latter method encouraged the natives to indolence, +for as soon as they had earned enough money to pay their tribute they +ceased work altogether. The governor was advised to consult with the +audiencia in regard to this matter. The king ordered the governor +to cut down expenses and to economize by the elimination of as many +offices as possible. He recommended, in particular, the abolition of +the offices of corregidor and alcalde mayor. + +The king warned Acuña against a continuation of the dishonesty of +past governors in the lading of ships for New Spain. He declared that +thereafter the allotment of freight should not be left to the friends +of the governor, but the matter should be personally supervised by the +governor and an oidor. The frauds which had been common also in the +assignment of encomiendas in the colony must cease; to effect this the +governor was temporarily deprived of jurisdiction over this matter. Who +was to assign the encomiendas in the future was not divulged. [451] + +The governor was instructed to see that the salable offices were +not conferred on the relatives of the oidores, nor given to his own +relatives, but that they should be disposed of to persons offering +the most money for them. It had been charged that governors and +audiencias had connived together in the past to deprive persons of +offices to which they were legitimately entitled. This had been done +by allowing favorites to hold more than one office, and by favoritism +in the sale of these positions. These abuses must be stopped, the king +said; it was ordered that in the future no person should be allowed +to hold more than one office, that as many of these as possible should +be sold, with unrestricted competitive bidding. + +The governor and the fiscal were ordered to exercise care and diligence +in the inspection of the returning galleon, to see especially that +it brought no unregistered money from persons in Mexico. Acuña's +predecessor, Tello, had recommended that west-bound galleons should +stop at the Ladrones to leave priests and soldiers, and to minister +to the needs of Spaniards already there. This was authorized and +the governor was instructed to see that it was done. The governor +was also ordered on this occasion to make an investigation of the +audiencia. Complaints had been coming to the court for a long time +against the laxity of the tribunal in the administration of justice, +and of the commercial activities of the oidores. The governor was to +aid the fiscal in the prosecution of any oidores who were remiss, to +the extent of sending them under arrest to New Spain if the charges +against them justified such action. + +This Instruction, it will be noted, required the governor to +intervene actively in practically all the governmental affairs that +came up in the colony. He was to exercise authority with regard to +defense, finance, and revenue. He was to exercise supervision over +provincial affairs so as to insure the good treatment of the natives +and the beneficent administration of the encomiendas. He was to give +his attention to the galleon trade and to the disposal of offices +within the colony. If doubt or difficulty arose in any of these +matters of administration, he was to demand from the audiencia, its +assistance, counsel, and support. The governor was also authorized +to see that justice was administered effectively, though he was not +to intervene directly in that matter, except to see that abuses were +eradicated. This Instruction shows that the governor was regarded as +the chief executive of the government. He was the responsible head in +the judicial, administrative, and military spheres. The audiencia, +on the other hand, had consultative functions, aimed to assist the +governor when he required it, but to restrict him when he sought to +exceed his powers. Instructions similar to this were given to many +succeeding governors. A citation of these would prove nothing new, +however. + +In the same manner that the Instruction to Acuña gives us an idea of +the relative functions of the audiencia and the governorship in 1602, +so the criticisms of the able Spanish diplomat, Sinibaldo de Mas, +written in 1842, aid us in estimating their respective spheres in the +nineteenth century. This opinion is valuable because it summarizes +the result of two hundred and fifty years of the interaction of these +political institutions in the Islands. Mas showed the reason for the +establishment of the intendancy, and the conferring of added powers +upon the audiencia and criticized the relations existing between the +governor and these institutions in the following terms: + + + To set some balance to his power (that of the governor), because of + the distance from the throne, certain privileges and preëminences + have been granted to other persons, especially to the Audiencia, + even to the point of making of the latter a court of appeal + against the measures of the chief of the islands. Besides, + the revenues have been removed from his jurisdiction, and the + office of the intendant has been constituted, who obeys no + others than the orders communicated to him by the ministry of + the treasury from Madrid. It is very obvious that this single + point is quite sufficient to paralyze completely the action of + the governor-general. Besides, since there are many matters which + require to be passed on by distinct ministries, it happens that + two contrary orders touch the same matter, or that one order is + lacking, which is enough to render its execution impossible ... a + chief may detain a communication, even after he has received it, + if it does not suit him. This system of setting obstacles in the + way of the governor of a distant colony is wise and absolutely + necessary, ... there results rather than a balance among the + various departments of authority a confusion of jurisdictions, + the fatal fount of eternal discord. [452] + + +Mas made extensive quotations which were calculated to show "the +great confusion and contrariety of the orders to governor and +audiencia." This characteristic of the laws of the Indies has +repeatedly been referred to in this treatise, and we shall note +its results in a subsequent chapter dealing with the conflicts of +jurisdiction between the audiencia and the governor. + +It is clear, therefore, that the decision of the governor was not final +in administrative affairs. Persons dissatisfied with his executive +actions or decisions in such matters were privileged to appeal to the +audiencia. If the findings of the tribunal differed from those of the +governor, and if the governor were still unyielding, his will was to +be obeyed but the case was thereupon appealed to the Council of the +Indies. [453] If the case were one of law and justice the governor, +on the other hand, was instructed to abide by the decision of the +audiencia, but he was privileged to carry the case to the Council of +the Indies. Thus it was that each of these authorities had a sphere +wherein its word was law, and its decisions final in the colony. + +It was prescribed, however, that when there were differences of opinion +between the governor and the audiencia an effort should be made both +by the governor and the audiencia to avoid notorious disagreements +which would furnish a bad example to the natives, or otherwise degrade +the dignity of the royal tribunal or governor. Viceroys, presidents, +and audiencias were forbidden to take action in cases wherein there +was doubt as to their jurisdiction, or wherein there was a question +as to the advisability of taking final action. [454] + +It would appear, therefore, from this survey of the laws, that the +audiencia was provided with ample means for restraining the action +of the governor. This it could do either by admonition, by appealing +from his decisions in administrative matters, or by blocking him in +the acuerdo. It was evidently the design of those who planned the +legislation of the Indies to guard at all times against the excesses +of an all-powerful executive. Such was certainly the purpose of +the establishment of the audiencia, both in the Americas and in the +Philippines. Taking into consideration the three hundred years of +Philippine history, however, it cannot be said that in the actual +operation of the government these precautions were entirely effective. + +According to the laws of the Indies the governor, as executive, had +his own sphere in which the oidores were forbidden to interfere. [455] +In the light of our investigation, however, it would appear that +this exclusive field was exceedingly limited, and that even it was +continually subject to the encroachments of the audiencia. In the +exercise of his military authority the governor was independent +of the tribunal, although we shall see that on some occasions the +audiencia exercised military jurisdiction in an executive capacity, +and that there were times when the governor was glad to call upon +the audiencia for assistance in this matter. As president of the +audiencia the governor exercised considerable authority during the +first half of the history of the colony, but from 1776 to 1861 his +position as president was merely nominal, and at the latter date it +was abolished. He was the chief administrative official of the colony, +and his authority in this particular was more far-reaching than in +any other. In this, however, he was limited by the acuerdo of the +audiencia, which developed, as we have seen, from an advisory to a +legislative function, and ultimately had the effect of limiting the +governor in his hitherto exclusive field. + + + + + + + +CHAPTER VII + +THE AUDIENCIA AND THE GOVERNOR: THE MILITARY JURISDICTION + + +The isolation of the Philippines, their distance from the home +country and New Spain, and their proximity to the colonies and trade +routes of rival nations, made the problem of defense the foremost +consideration. This was almost equally true of New Spain, Perú, and +the West Indian colonies, all of which were exposed to the attack +of outside enemies, though, of course, they were neither as isolated +nor as far away as the Philippines. + +The necessity of being ever on the alert, constantly prepared to resist +invasion and to put down insurrection, gave a military character to +the governments of these colonies. The viceroys and governors were in +most cases trained soldiers. In addition to their other prerogatives, +they exercised the office and title of captain-general and as such +they commanded the military and naval forces of their colonies, +inadequate as these forces sometimes were. During the first two +hundred years governors and viceroys were largely selected on the basis +of their past military exploits on the continent or in America. The +administrations of the different Philippine governors of the sixteenth +and seventeenth centuries were characterized rather by their devotion +to military affairs than by economic improvements or administrative +efficiency. The supervision of judicial and governmental affairs +was thus left for long periods in the hands of other officials and +authorities, to be reclaimed or fought over by the governors when +their time was not taken up by military conquests. + +It is practically agreed among all authorities who have written on +the Philippines that the leading consideration and necessity of the +government during two hundred years was military defense. These writers +comprise officials who saw service there and commentators who visited +the Islands and studied the government. In their recommendations and +comments they unite in urging that the defense of the Islands should +not be neglected; that the governor should be given adequate forces +with sufficient jurisdiction over them and over the other elements +of the colony to defend it successfully from invasion or insurrection. + +It was the policy of the government throughout the history of +the Islands to conserve and keep intact the governor's military +jurisdiction. We have noted in an earlier chapter that one of the +main reasons for the suppression of the audiencia in 1589 was that +it interfered too extensively with the military jurisdiction of +the governor. During the decade following the extinction of the +tribunal, the military governors were given almost unlimited powers, +until their abuses led to the re-establishment of the tribunal to +guard against these excesses. We shall see in the following chapter +that the limitations placed upon them by the audiencia were always a +source of complaint by the various governors. Governor Acuña went so +far as to recommend the suppression of the tribunal because the needs +of the colony were military and had to be met by the firm action of +a soldier, without the interference of a body of magistrates. [456] +Similar recommendations were made by a majority of the succeeding +governors, but more especially by Fajardo, Corcuera, Vargas, Arandía, +and even by Anda who had risen from the post of oidor to that of +governor and military commander. [457] + +The conviction that the government should be pre-eminently military was +not held by governors alone. Fernando de los Ríos Coronel, procurator +of the Philippines at the Court of Madrid in 1597, urged that the +government should be of a military character and that the practice +of sending soldiers to govern the Islands should be continued. [458] +This opinion was also advanced by Fray Alonso Sánchez, procurator +of the Islands at Madrid in 1589, and the emissary whose arguments +were chiefly instrumental in bringing about the suppression of the +audiencia. [459] Francisco Leandro de Viana, the most efficient +fiscal that the Islands ever had, and afterwards councillor of +the Indies, recognized the military attributes of the governor's +position. He urged a separation of the spheres of the governor and +the audiencia, recommending that the former should attend solely to +war and government, while the latter should confine itself to matters +of justice. [460] + +This opinion was shared by Juan José Delgado, the able Jesuit +historian, who expressed the conviction that the "islands need +disinterested military governors, not merchants; and men of resolution +and character, not students, who are more fit to govern monasteries +than communities of heroes." [461] Delgado recommended that governors +of the Philippines should be picked men, selected for their military +qualities. The distance and isolation of the colony and its proximity +to the great empires of China and Japan made defense the first +requisite. Delgado believed that a soldier would be less amenable +to bribes and that commercial ventures would be less attractive to +him. [462] He recommended that governors should be absolute in affairs +of government and war and that all departments and officials of the +government should be subject to him. + +While most of the independent commentators writing on the subject +seem to have conceived of the duties of the governor as savoring +more of war than of peace, we may note that Manuel Bernáldez +Pizarro, for many years a resident and official in the Philippines, +writing in 1827, urged that the governors there should be efficient +administrators rather than soldiers. It must be remembered, however, +that the political conditions in the Philippines during his period +were widely different from those of the seventeenth and eighteenth +centuries when the Islands were constantly exposed to the attack +of outside enemies and liable to insurrections within. The chief +problems of the nineteenth century were administrative, rather than +military. He pointed out that governors had already exhibited too much +of the militant spirit in dealing with the problems of government, +"not heeding the opinions and customs of the country, but depending +on the force of arms," or their asesores. [463] This had the effect +of causing dissensions between the governor and audiencia, and the +resultant discord had furnished a very bad example for the natives +and residents of the colony. + +The characteristic tendency throughout the history, of the Islands +to lay stress on the military side of the governor's position +was commented on by Montero y Vidal, the modern historian of the +Philippines, in the following terms: + + + The authority of the governor-general is complete, and so great a + number of attributes conferred on one functionary, incompetent, + as a general rule, for everything outside of military affairs, + is certainly prejudicial to the right exercise of his duty; + ... since 1822 the government has always devolved upon an official; + a general, and in the case of his death, a segundo cabo, and, + in case of the death of the latter, a commandant of the naval + station. [464] + + +The preservation of the peace and the maintenance of the defense +of the Islands was the chief responsibility and the most important +duty of the governor and captain-general. Although the audiencia was +ordered to do all that it could to assist, nevertheless the tribunal +was strictly forbidden to restrict or hinder the governor in the +execution of his military duties. [465] The governor's position as +commander-in-chief of the king's forces, and his pre-eminence in +military affairs, were generally recognized. + +Notwithstanding the fact that the early laws conferred exclusive +military powers on the governor, a glance at three hundred years of +Spanish colonial history will show that the audiencias participated +in these matters in two different ways. In fact, an analysis of +the military jurisdiction shows the presence and the exercise, +in general, of two kinds of activity. These consisted, first, of +a special judicial system for the trial of persons under military +law and distinct from the civil jurisdiction, and second, of the +control and disposition of the military forces of the Islands, and +their utilization for defense. One, therefore, was judicial, the +other was administrative, but both of these forces of activity were +within the military sphere. The problem of this chapter, therefore, +consists in determining the conditions, circumstances, and extent of +the audiencia's participation in military affairs, and of its relation +to the authority and jurisdiction of the governor and captain-general. + +As commander-in-chief, the governor was at the head of a special +judicial system for the trial of soldiers under the military +law. This judicial system was independent of the audiencia, and the +latter body, during the greater part of the history of the Islands, +was denied jurisdiction in these cases, even on appeal. [466] We +have already noted, however, the tendency of the law to excuse +these busy executives from direct participation in ordinary +judicial activities. Notwithstanding the governor's status in the +above-mentioned particular, he seldom intervened personally in +the trial of such cases. His position with regard to the military +jurisdiction was similar to his relation with the audiencia, of which +he was president, but over which he seldom presided. + +The actual trial of the criminal cases of soldiers was conducted in +first instance by military tribunals and magistrates. Most prominent +among the latter were the castellán and the maestre de campo. The +captains, themselves, had certain judicial authority within their +companies. [467] Appeals were made from these military judges of +first instance to the captain-general. If there had been notorious +injustice or a grave infraction of the law in the trial of a case of +first instance, it was the governor's duty either to refer the case +to some other magistrate than to the one who originally tried it, or +to a special judicial tribunal. An oidor might be designated to serve +in this tribunal. When the magistrates served in this capacity they +were responsible entirely to the governor and were not identified +with the audiencia. Oidores frequently objected to this service, +but the governor was usually able to enforce these demands, which +were in accordance with the laws and approved by the home government. + +The captain-general exercised the pardoning power. Under some +circumstances cases might be appealed to Spain, but in these suits, +most of which involved personal crimes and misdemeanors, the decision +of the captain-general or the local military tribunal was usually +final, if for no other reason than the fact that the soldiers in +Manila lacked the means to carry their cases further. Those cases +which were appealed usually involved principles of law desirable to +be tested by reference to a higher tribunal. The junta de guerra +de Indias received all appeals from the military officials of the +colonies and solved all questions of a judicial or administrative +character that were carried to it. + +The junta de guerra consisted of four ministers of the Supreme Council +of War who were designated to sit with an equal number of ministers +of the Council of the Indies. [468] It was, in fact, the executive +committee and at the same time the special tribunal of military affairs +for the Council of the Indies. It passed upon such military questions +as were nominally referred to it by the president of the Council of +the Indies, although these cases automatically came to this junta +without the intervention of the president of the Council. It had +jurisdiction over appeals in cases affecting soldiers tried in first +or second instance in the colonies, over the administrative matters of +armament and defense: the equipment of fleets and military operations, +garrisons, military supplies, and munitions. It also tried appeals from +the tribunal of the Casa de Contratación, and, in fact, it exercised +general supervision over that institution in its various activities. + +This was the machinery which existed for the adjudication of military +cases during the greater part of the history of the Islands, the +magistrates of the audiencia officiating as auditores de guerra when +designated by the governor. [469] The royal decree of January 30, 1855, +made a radical reform in this particular, adding two new magistrates, +an auditor de guerra and an auditor de marina and to some extent +relieving the ministers of the audiencia. These magistrates were +appointed by the Minister of War and had original and secondary +jurisdiction over cases involving soldiers and sailors of the +fleet. These new magistrates served as ministers of the audiencia +when their special duties permitted, and they were ordered to consult +with the governor from time to time in regard to matters pertaining to +their respective fields. Though the audiencia was forbidden to concern +itself with cases which belonged to the military jurisdiction, the +regent and two magistrates of the tribunal, acting with the auditor +de guerra or the auditor de marina, could resolve themselves into a +special court for the trial in second instance of cases pertaining +to the respective fields of the last two officials. [470] + +Two or three cases may be described here which illustrate the method of +procedure in the trial of military cases by the tribunals. On January +22, 1787, a royal order was issued on the recommendation of the junta +de guerra de Indias, approving of a sentence of death pronounced upon +a soldier in the Philippines four years before. This soldier had been +sentenced in first instance by the castellán. The captain-general, on +appeal, affirmed the sentence, and the junta de guerra approved the +proceedings when the case was appealed a second time. [471] Another +case, and one which illustrates the slowness of the proceedings of +this junta, as well as the nature of its jurisdiction, was that of a +soldier who had set fire to a powder magazine, causing it to explode, +thereby killing several persons. The culprit was sentenced by the +consejo ordinario de guerra, a sort of local military and strategic +committee, composed of local military officers (in this case a kind +of court-martial), [472] but Governor Basco y Vargas, upon the advice +of his asesor, suspended sentence, directing the case to the junta de +guerra. Nothing was done, however, and on December 10, 1788, Governor +Marquina, successor to Basco y Vargas, wrote to the president of the +Council of the Indies, calling attention to the fact that this soldier +had been in prison for six years awaiting the action of the Council +of the Indies. [473] The matter was then referred to the junta and +the sentence was approved by that tribunal. + +As in all other departments and activities of government, so +in this, there were many opportunities for conflict between the +audiencia and the governor as to authority over cases which by +their nature bordered on the sphere of both the civil and military +jurisdictions. The governor who had the power to assign cases to +whatever tribunal he chose, often took advantage of his position to +bring the trial of civil cases within his own military sphere. Among +these were suits involving the militiamen. These were subject to the +military jurisdiction when they were under arms, and at other times, +being civilians, they were subject to the civil authorities. [474] +An instance of a case of this kind occurred in 1800. A militiaman, +Josef Ruy, had killed an Indian, and the audiencia, on the basis of +its authority over Indians, had sentenced the culprit to death. The +governor, after sentence was passed, reopened the case on the ground +that as a member of the militia, Ruy was subject to the military +and not to the civil jurisdiction, although the militia was not +at that time in active service. The judgment of the audiencia was +therefore suspended. The case, meanwhile, had been appealed to the +Council of the Indies, and that tribunal had approved the sentence of +the audiencia, apparently without taking note of the fact that the +case involved the military jurisdiction. A short time afterward the +Council received a second report from the audiencia, stating that +jurisdiction over the case had been surrendered to the governor on +account of its military character. This procedure was accordingly +approved by the Council. Soon after, report came of the receipt by +the audiencia of the former judgment of the Council, relative to the +action first taken by the audiencia, with the information that since +the will of the Council was known, the governor had surrendered the +prisoner again to the jurisdiction of the audiencia. Disgusted at +the contradiction and cross-purposes at which the authorities in +the Islands were working, the king decreed on March 27, 1802, that +cases involving Indians should be tried in the audiencia, but that +this poor wretch had been tried and retried, condemned and condemned +over again so often that he had already expatiated his crime. He was +accordingly authorized to go free. [475] + +The king administered a severe reprimand to the governor and oidores on +this occasion for their insistence on these small points of personal +dignity in which the real purpose of the law was entirely overlooked +in the pompous insistence of these officials on what they imagined +to be their own particular rights. The case just alluded to began +in 1792, and was carried through ten years of petty strife. The +blame for this cannot be ascribed entirely to the magistrates of +the audiencia, or to the governor, who had to act in accordance with +the law as he interpreted it. The real fault lay in the failure of +the Spanish governmental system to place implicit confidence in the +judgment and ability of its servants. Considering the final ends of +justice, it made little difference whether sentence was pronounced +upon this individual by the governor as military commander, or as +president of the audiencia. It is true that the authorities might +have compromised on many occasions; indeed, from the viewpoint of +history it may be said that they should have done so, instead of so +often wasting their energies on these petty battles. These incessant +disputes were encouraged and facilitated by the ease with which appeals +could be made to Spain, thus hindering the immediate execution of +decisions. The Council of the Indies interfered in details which should +have been left entirely to the colonial authorities. This interference +encouraged appeal, and matters of no relative importance to Spain's +colonial empire frequently occupied a large share of the attention +of the sovereign tribunal. Colonial officials were not entrusted with +the authority and responsibility which they should have had, and the +central government wasted its time attending to small affairs which +should have been concluded by subordinates in the colonies. + +The governor frequently claimed jurisdiction over cases involving +retired soldiers on the grounds that they had once been under the +fuero militar. He also claimed jurisdiction in suits affecting widows +of soldiers, all of which, in accordance with the law of December +11, 1788, should have been tried by the audiencia. [476] Another +abuse frequently perpetrated by the governor was the assumption of +jurisdiction over suits for the payment by military officials of bonds +which they had assumed for defaulted civil officials. [477] In doing +this he was encroaching on the rights of the oficiales reales, and +these were always supported by the audiencia in the contentions which +arose over this question. Cases involving conflicts of jurisdiction +between the civil and military authorities were appealed to the Council +of the Indies, and there, after considerable delay, the proper sphere +of authority was always determined. + +While the audiencia as a tribunal was forbidden jurisdiction in the +trial of cases involving war, we have already shown that the governor +exercised the right of designating oidores to try cases of this nature +on second appeal. The power of enforcing this right depended entirely +on the governor. Frequently the efforts of the governor along these +lines were attended with much difficulty as were those of Governor +Marquina in 1789 when he sought to designate an oidor to assist in the +trial of Antonio Callejo, naval artilleryman on a frigate of war. The +case had first been tried before the proper military judge, but it +was referred on appeal to a tribunal of which an alcalde ordinario of +the city was a member. The governor designated Oidor Yuguanzo to act +as a member of this tribunal for the trial of the case of Callejo on +review. The magistrate begged to be excused on the ground that all his +time was occupied with the trial of civil cases in the audiencia. The +governor called on all the other oidores successively, and all +declined to act. At last he peremptorily ordered Yuguanzo to serve, +telling him that if he objected he might carry the matter to the king +in the regular way, which, according to the laws of the Indies, was to +comply with the governor's demands, under protest, while appealing the +question of disagreement to the Council of the Indies. [478] This was +accordingly done, the magistrate basing his claim to exemption on the +law which prohibited the governor from sending oidores on commissions +outside the audiencia. [479] The governor at the same time filed a +memorial which forestalled all the arguments of the oidor. [480] He +stated that the real cause of the disinclination of the magistrates of +the audiencia to serve as auditores de guerra was their indolence, and +not the pressure of their excessive duties. It was contrary to their +ideas of dignity to be associated with the acting auditor de guerra, +who was not a letrado, and it was therefore considered a sacrifice of +their own personal dignity. The governor stated that no argument could +justify such an attitude on the part of the oidores. The inconsistency +of their position was further shown, he alleged, by the fact that they +had served regularly on the tribunal of appeals of the consulado, in +company with two merchants who were not even lawyers. Hence there could +be no reason for their refusal to serve with an alcalde ordinario. + +The governor based his right to call upon the regular magistrates for +this service on that section of the laws of the Indies applying +to Española, Nuevo Reino, and Tierra Firme, which declared +that jurisdiction over cases affecting soldiers belonged to the +captain-general with inhibition of the audiencia, and that soldiers, +during the time they were under arms, should not be tried on criminal +charges. [481] The governor, according to this law, might call +upon a magistrate to serve as special auditor de guerra for the +determination of cases in second instance. Finally, by April 20, +1784, the king had extended this rule to all other colonies. [482] +Although we have no record of the reply of the tribunal in Spain, +the strength of the governor's position could not well be questioned, +especially since he was resting his case on a law made in 1784, +which was completely up-to-date, while the magistrate's contention +was based on one promulgated in 1609. [483] + +Aside from the duty of the oidores to try military cases when +commissioned by the governor to do so, it will be seen that the +tribunal itself exercised much more extensive authority in the +actual administration of military affairs. Two factors may be said +to have contributed to this. One was the fact that the audiencia +was frequently consulted by the king or governor in regard to +the defense of the colony. The other may be seen in the actual +assumption of the government at various times by the audiencia, and +the successful defense of the Islands by the military forces under +the leadership of the oidores. Notwithstanding the fact that the +governor's recognized sphere of action was military, and in spite of +the repeated prohibitions against the interference of the tribunal +in these matters, the audiencia received considerable official +encouragement and authorization to interest itself in military affairs. + +As the problems of general administration were too serious for +the solution of one man without advisors, so the governor also +found it frequently undesirable to assume sole responsibility for +military affairs. The audiencia shared the acuerdo power in these +matters to a lesser degree than it did in government. The hostility +of the Japanese in the early years, the fear of the Chinese, the +danger of native outbreaks, the raids of the Moro pirates, and the +incursions of the Portuguese, Dutch, and English aroused the fears +of the commonwealth to such an extent that defense was felt to be a +matter of common concern. The governor, upon whom legally rested the +obligations and responsibilities of defense, was glad to share these +duties with any authority that could be of assistance. The history +of the Philippines is replete with instances in which the audiencia +either gave counsel in matters pertaining to defense, or took an +active part in resistance. There were even occasions on which it +advocated offensive warfare. [484] + +We have seen in an earlier chapter that the audiencia manifested a keen +interest in military affairs immediately upon its establishment. In the +chapter on the establishment of the tribunal we noted the memorials +of individual oidores and of the audiencia as a tribunal, advising +the governor and the king as to the necessity of conquering the Moros, +and on the best way of putting down insurrections in the Islands. The +question of defense against the Portuguese and the Dutch was also +discussed in the letters of the oidores. In some cases their advice +was considered, on other occasions the governor complained against +them for exceeding their jurisdiction. One of the most noteworthy +instances of the recognized intervention of the oidores in military +matters was on April 19, 1586, when a council, called together by +Governor Sande and consisting of the governor, the bishop, and the +oidores, considered the immediate occupation of China. This was urged +by Governor Sande, but he was overruled by the moderate counsels of +the bishop and magistrates. [485] + +No better illustration of the willingness of the governor to share +his military responsibilities can be given than the reliance +of Governor Dasmariñas on the religious authorities for advice +in military affairs, after the suppression of the audiencia in +1589. [486] He consulted with them on ways and means of defending the +colony against the Japanese, whose threatening attitude during his +administration rendered precarious the continuance of Spanish power +in the Islands. On one occasion he consulted the religious orders +as to the advisability of expelling all Japanese and Chinese traders +from Manila. The accumulation of provisions against a possible siege, +the seizure of the persons and property of all Japanese residents, +the establishment of a place of refuge for women, children, and +sick persons in case of invasion, and the appropriation of the +property of the natives as a pledge of their good behavior in the +event of hostilities, were measures proposed by the governor to the +religious for their consideration. Dasmariñas, on another occasion, +asked the advice of the Augustinians, Dominicans, and Jesuits as +to the best manner of dealing with an insurrection in Zambales, +and the religious authorities, after quoting scholars, saints, and +theologians, made lengthy recommendations. [487] These facts make +clear the unwillingness of this governor to take the initiative in +affairs pertaining to his own special province. He was content to ask +and receive the advice of priests, monks, and magistrates, on military +affairs. He was willing to seek the counsel of any and all available +persons or authorities who could or would advise him. It is, of course, +clear that the audiencia, when in existence, would be preferred as +a source of advice and counsel to a community of religious. + +Not only did the governor set a precedent of seeking the advice of +the audiencia during this early period, but the king often sought the +opinion of the magistrates in regard to military affairs. Various +matters were referred by the sovereign to the oidores at different +times: questions involving the building of walls and fortifications +of Manila, and the number and size of cannon needed for the proper +equipment of the latter; the audiencia was asked whether it would +be better to bring gunpowder from New Spain or to manufacture it in +the Islands; the magistrates were required on several occasions to +furnish information as to the number of men needed for the defense +of the Islands, and whether the natives would make good soldiers. The +audiencia furnished information to the king concerning the availability +of the various Philippine woods for shipbuilding, and it furnished +estimates as to the probable cost of ships both for commerce and +war. [488] All these matters were supposed to come within the special +military jurisdiction of the governor, yet, not only that official, +but the king himself, required the advice of the magistrates on +these questions. + +The conquest of Mindanao and the war in the Moluccas were also subjects +of correspondence between the court and the local audiencia. [489] +The king, on various occasions, requested information of the oidores +concerning the natives and their attitude towards law and order, +whether the various tribes were quiet, by nature peaceful or warlike, +and what measures, in the opinions of the magistrates, would be best in +dealing with them. The audiencia was consulted on other occasions as to +the best manner of fortifying the Visayan Islands against the attacks +of the Moros, and northern Luzón against the Chinese and Japanese, +the possible cost and most suitable locations of fortifications, +and their availability and probable value in repelling invasions. + +The reliance of the governor and the court upon the magistrates of the +audiencia for advice in the matter of defense was not characteristic +only of the early years of Philippine history. In 1744 Governor Torre +submitted his scheme for the fortification of the city of Manila to +the audiencia before he sent it to the king for final approval. [490] +Torre was aided by a regular council of war (consejo de guerra) of +which the oidores were members and he submitted questions relative +to the defense of the Islands to this council. In 1746, this local +council of war reported on the advisability and feasibility of +manufacturing guns and powder in the colony. [491] Governor Obando, +writing in 1748 to the king, and commenting on the relationship of +the previous governor with the audiencia in the matter of defense, +divided between his predecessor and the audiencia the responsibility +for the payment of ten thousand pesos to bribe the Dutch to keep away +from the city, and not to reduce it. [492] In a subsequent chapter we +shall discuss the important part played by the audiencia in the defense +and surrender of the Islands to the British in 1762. These incidents, +taken at random from various governors' administrations, show that the +audiencia was required to do all that it could to assist the governor +and captain-general in the defense of the colony. It was also called +upon to advise the court on military affairs; thus it was frequently +able to assist in formulating and guiding the policies of the home +government with regard to defense and military administration. In +this way an indirect, but distinct check was placed upon the governor +in his own field, and an incapable or radical executive was thus +prevented from endangering the peace and security of the colony. + +But the influence of the audiencia operated much more effectively +in defense of the colony than through the advice which it rendered +either to the king or to the governor. From 1601 to 1625, during which +period the residents of the colony were continually alarmed by the +unceasing encroachments of the Dutch, the audiencia was frequently +obliged to assume responsibility for the defense of the colony. In +1600 and 1601, when Francisco Tello de Guzmán was governor, Antonio de +Morga, the senior oidor, led an expedition against the Dutch pirate +Van Noordt and defeated him in Manila Bay. In 1607, the audiencia, +then in charge of the government, maintained the defense of Manila +and Cavite against the Dutch. [493] While Governor Pedro de Acuña +was absent in the Moluccas in 1605-1606 on a campaign of conquest, +the audiencia entertained and responded to a petition from the king +of Tidore for assistance in resisting the oppression of the king +of Ternate. The war in the Moluccas was continued by the interim +government of the audiencia (1606-1608). + +The audiencia repeatedly assumed charge of the government during +the frequent absences of Governor Juan de Silva (1609-1616) on +expeditions of conquest; and it governed two years after his death +(1616-1618). Under the leadership of Oidor Andrés de Alcaraz the +military and naval forces of the Islands repeatedly repelled the +invasions of the Dutch. [494] Of special merit was the work of this +oidor in the preparation and equipment of a fleet of seven galleons +which he led in the battle of Playa Honda, on April 14, 1617. In +order to raise money with which to meet the expenses of this campaign, +the audiencia was compelled to resort to the extraordinary recourse +of seizing the money of Manila merchants on its arrival from Acapulco +on the galleon. It also forced loans from residents and officials who +were in the colony. The audiencia authorized the sale and the payment +in advance for space on the galleon of the coming year. Alcaraz, +in a report to the king, stated that the oidores had labored with +diligence for the defense of the colony, personally concerning +themselves with the casting of artillery, the drilling of soldiers, +the obtaining of supplies, and in otherwise preparing the city for +more adequate defense. [495] + +Under the leadership of the able soldiers and captains-general, Juan +Niño de Tavora (1626-1632), Sebastián Hurtado de Corcuera (1634-1635), +and Diego Fajardo (1644-1653), the audiencia interfered but little +with the notable military operations of that period. Exception to this +statement must be made in the cases of the capture and relinquishment +of the island of Formosa in 1629 and 1642, respectively. The audiencia +was unreservedly opposed to the proposed conquest of the island +by Governor Tavora, who, nevertheless, undertook the expedition +and carried it to a successful conclusion. When Governor Corcuera +decided that the position of the Spaniards in Formosa was untenable +and resolved to withdraw the garrison, the audiencia was equally +forceful in its remonstrances. It sent charges to the court against +the governor, alleging that this loss, and that of the Moluccas the +year before would assuredly lead to the greater disaster of the loss +of the Philippines. [496] + +The important part played by the audiencia in the defense of +Manila against the British in 1762 will be discussed in another +chapter. While Governor Rojo and the majority of the oidores were +in the city, surrounded by the enemy, Oidor Anda y Salazar, who had +been sent to the provinces as visitor, organized and maintained a +defense against the enemy. When he was commanded by the governor to +surrender, he refused, successfully maintaining the claim that as +the sole, legally-appointed oidor who had not surrendered, he was +both audiencia and governor, and as such his actions were legal. His +claims were recognized and approved by the king. This is perhaps the +most peculiar and extraordinary example of the audiencia's assumption +of military power. + +The frequent assumption of the government by the audiencia, with +responsibility for matters of defense and military administration +may be cited as an additional reason for its reluctance to +entirely abandon its interest in these affairs on the arrival of a +governor. Notwithstanding this, and the additional fact that the king +and governor frequently consulted the audiencia on military affairs, +the tribunal did not always seek to retain preëminence in military +affairs. This fact is shown by a letter which the audiencia wrote in +1598, acknowledging that "the only cases in which the governor is +entitled to entire jurisdiction are those over soldiers--and these +cases he may try independently, since he is captain-general." [497] +There were numerous other occasions on which the audiencia unreservedly +recognized the jurisdiction of the governor, often protesting against +his excesses in military matters, but going no further than to register +its protestations. For instance, it charged Governor Fajardo with +carelessness in the outfitting of ships to resist the Dutch. One +ship, it was said, was so poorly equipped that it sank before it +left port. Fajardo was moreover accused of removing the commander of +one of these ships, substituting his fifteen-year-old brother, Luís +Fajardo, at a salary of 40,000 pesos. The audiencia contented itself +with remonstrances against these wrongs, but it made no attempt to +interfere. [498] Fajardo had his way in these matters, but he would +have been compelled to answer for them personally in his residencia +had he not died before that investigation took place. + +The governor's accountability for the government of the Chinese was +closely related to his jurisdiction over military affairs. The Chinese +were regarded with great suspicion by the residents of Manila, who +lived in constant fear of an outbreak in the Parián, or of a descent +upon the coast of Luzón by Chinese from without. The problem of the +Chinese was therefore essentially one of defense, and as such it +was entrusted to the governor and captain-general. Nevertheless, the +audiencia claimed the right to intervene in many matters pertaining +to the government of these people, and there was much dissension +between the oidores and the governor over this question. The governor +on some occasions rigidly resisted the claims of the audiencia to +exercise jurisdiction over the Chinese, and on others he invited +the participation of the tribunal. This state of affairs was brought +about by the seeming conflict of the laws bearing upon this question. + +The earliest legislation to be found in the laws of the Indies dealing +with the government of the Chinese was enacted on April 15, 1603. [499] +This law forbade the alcaldes ordinarios to exercise jurisdiction +over suits of the Chinese in the Parián, but it ordered that all cases +involving them should be tried by a special alcalde of the Parián with +right of appeal to the audiencia. A special judge was thus created +by this law, with jurisdiction over the Chinese. [500] The purpose of +this enactment was to establish a system of judicial procedure for the +Chinese, whereby the latter might be kept apart from the Spaniards and +natives in judicial as well as in governmental administration. This +necessity was partly based on economic considerations, and partly +on racial and religious reasons; it was designed essentially for the +protection of the Spaniards. [501] + +On the basis of the above law of April 15, 1603, the audiencia +immediately proceeded to concern itself with the government of the +Chinese. It claimed jurisdiction particularly over the right to issue +licenses allowing Chinese to reside and trade in the Philippines. This +authority was also claimed by the governor and captain-general, +who was responsible for the defense of the Islands. The audiencia +also proceeded to issue regulations for the Chinese trade, laying +itself open to the charge of selfish interest in these commercial +activities. Complaints against the audiencia's intervention reaching +the court, new regulations were issued on November 4 and December 1, +1606, which forbade the audiencia to concern itself with anything +relative to the government and administration of the Parián, or with +the Chinese who might come to the Islands for the purpose of trade, +except at the solicitation of the governor. [502] In the letter +accompanying these orders, the king informed Governor Acuña that +although the Chinese in the Parián were under his charge, he was to +take no important steps for their government without first consulting +the audiencia. The inference of this law is clear, therefore, that the +audiencia might have other activities than the purely judicial. This +implication gave rise later to a considerable difference of opinion, +but in consequence of this law the governor was established as the +fountain of authority in Chinese affairs, with the oidores in a +secondary position. + +On June 12, 1614, Philip III re-enacted the above law with some +modifications. The fiscal was made legal protector of the Chinese. He +was ordered to advise the alcalde of the Parián in legal matters +pertaining to them, and the alcalde was to take no important steps +without the advice and assistance of the fiscal. [503] The governor +was ordered not to allow any ordinary or special judge, alcalde del +crimen, or oidor, to exercise jurisdiction in first instance over civil +suits or criminal cases of the Chinese, or to make inspections in the +Parián. The last clause of this law, however, qualified and rendered +dubious the effect and meaning of the entire enactment, by adding, +"unless in a case so extraordinary, necessary and imperative that it +may appear convenient to limit this rule." + +It will not be extraneous to point out here that this was a common +weakness of many laws, by which they were frequently rendered +entirely inapplicable. In this case, for example, the evident object +was to prevent the oidores from interfering in Chinese affairs, +thus guaranteeing the government and administration by officials +who were endowed with knowledge and understanding of their racial +characteristics and peculiarities, while centering the ultimate +responsibility for them in the governor. It was realized, however, +that exceptional cases might arise in which some other procedure +might be advisable, and accordingly a loophole was left whereby the +entire law could be nullified. The audiencia was thus given a basis +for intervention in the government of the Chinese whenever it suited +the convenience of the magistrates. This defect is emphasized here +because this particular exception justified the intervention of the +audiencia on many occasions, and was a cause of continual contention +between the governor and the audiencia in Chinese affairs. + +Although it is difficult to settle conclusively the question of +the extent of jurisdiction which the governor and the audiencia, +respectively, exercised over the Chinese in the Parián, a few cases +may be presented in this connection to show that both the governor and +the audiencia were justified by royal authority in advancing claims to +control. On December 4, 1630, the king wrote a scathing arraignment of +the audiencia for having entertained an appeal from the Chinese over +the head of the governor, practically disregarding the latter, and for +making recommendations relative to the Chinese and to military affairs, +which questions were entirely outside its province. [504] One of the +items of the report of the recent visitor-general to the Philippines, +Licentiate Francisco de Rojas y Ornate in 1629, had been a charge that +the audiencia had condemned and fined a Chinese merchant for smuggling +munitions of war into the colony, after the latter had proved that he +had been acting under the instructions of Governor Silva. [505] The +visitor-general took the position that this case was entirely within +the military sphere; therefore the governor's decision was final, +and the audiencia was proceeding without jurisdiction in attempting +to deal with it. The king called upon the tribunal to justify its +action in the matter. [506] It is to be noted that in this case the +point at issue was not that the audiencia was interfering with a +Chinaman who should have been punished by another authority, but that +in assuming jurisdiction the audiencia had infringed on the special +prerogatives of the governor with regard to war and government. The +frequency and seriousness of the Chinese insurrections in the early +seventeenth century, and the fear of a hostile invasion from China, +placed all questions of dealing with the Chinese upon a military basis, +hence the authority of the governor. + +Much correspondence of various kinds might be cited to show that +the governor was encouraged to consult the audiencia on Chinese +affairs. Not only was the governor expected to do this, but the +king himself directed many letters to the "governor and audiencia" +and to the "governor and oidores," in which he asked for advice and +information bearing upon Chinese affairs. As we have already seen, +cédulas treating of these matters were frequently expedited to the +"governor and audiencia." The audiencia was requested by the royal +authority on August 8, 1609, to submit information as to the truth of +various statements by persons in the Islands that the Chinese were +carrying away vast quantities of silver. The audiencia was ordered +to enact measures which would stop this abuse, which, if persisted +in, would inevitably result in an impoverishment of the Philippine +community and government. The oidores were asked to suggest a course +of action which would result in the retention of the Chinese trade +and at the same time prevent the Chinese from doing irreparable damage +to the royal exchequer in the ways alluded to. [507] + +In further illustration of the same subject, we may note the +instructions of the king to Governor Silva, dated March 27, 1616. On +this occasion the king prescribed a course of action for the governor +to follow in case of the invasion of the Islands by the Chinese and +Japanese. He was especially directed to prevent a union of the Chinese +in the Parián with the forces of the expected invaders. Silva was +ordered to take no steps without first consulting the oidores. [508] +On July 25, 1619, having received news of the insubordination of the +Chinese in Manila and of the danger of a revolt among them, the king +wrote to the "president and oidores" expressing the belief that too +many Chinese had been admitted to the Islands and that thereafter only +enough should be permitted to man the ships and carry on trade. [509] +The authorities to whom this letter was directed were charged not +to allow the royal will relative to this matter to be disregarded, +which, of course, implied the exercise of an executive power on the +part of the magistrates, in addition to consultative authority. + +Again, on December 31, 1630, the king wrote to the governor and +audiencia, stating that there had been received at the court from the +Chinese of the Parián, a series of memorials, letters and petitions, +complaining against the rigor of Spanish administration and requesting +that they might be governed by mandarins, governors and alcaldes +mayores of the "Chinese nation." The king signified his unwillingness +to comply with their request at this time, and accordingly ordered +the governor and audiencia to permit no changes to be made. [510] +On July 27, 1713, the tribunal, acting in a legislative capacity, +decreed that within thirty days "all Moros, Armenians, Malabars, +Chinese and other enemies of the Holy Faith" should be lodged in the +Parián when visiting Manila, or when living there temporarily for +purposes of visit or trade. Penalties were also prescribed for the +infraction of the above law. [511] This affords one illustration out +of many which could be cited of the legislation of the audiencia in +Chinese affairs. [512] + +On May 14, 1790, the king wrote to the "governor and president +of the royal audiencia" and also to the tribunal, ordering the +re-establishment of the Parián. This Chinese quarter had been abolished +since 1756. It was agreed that the Chinese in this district should be +ruled by an alcalde, who should also hear cases in first instance, +with appeal to the audiencia. It was furthermore decreed that the +Chinese population in the Islands should be fixed at 4000 and that each +individual should be taxed at the rate of six pesos per capita. [513] +This tax was to be collected by the cabecilla of the Chinese, a sort +of local leader, subject to the alcalde of the Parián. This cédula, +the king stated, was originally suggested by the acuerdo of the +audiencia, and had been submitted for royal approval, which had been +duly conceded. This correspondence, which shows the real operation +of the government much more accurately than the citation of laws +alone could do, makes it quite clear that throughout the history of +the Islands, notwithstanding the existence of many cédulas to the +contrary, the audiencia exercised advisory power in regard to the +government of the Chinese. This authority was repeatedly recognized +by the governor and by the king himself. + +After the inauguration of the superintendency of real hacienda +at Manila in 1787, the incumbent of that office was made largely +responsible for the Chinese. This was probably so arranged because the +care and administration of the Chinese at that time involved questions +of finance rather than of war and defense. It will be remembered, +too, that, during much of the time, the office of superintendent was +combined with that of governor. A number of disputes arose between the +governor and the intendant after the latter office was created in 1785, +[514] but after the union of the governorship with the superintendency, +no further occasion of dispute arose. During the greater part of the +nineteenth century, the peculiar nature of the office of intendant +gave to the latter official the duty of collecting the licenses of +the Chinese, subject to the superintendent. + +There yet remains something to be said regarding the administration of +justice among the Chinese, and we must note certain typical disputes +and disagreements which arose in that connection. That the audiencia +had authority to try cases in second instance involving the Chinese +has already been stated. Likewise the oidores were liable to special +delegation to try cases of an extraordinary character which arose +among the Chinese, as, for example in 1786, when Oidor Bolívar y +Meña was designated to try in first instance charges which had been +made against Chinese bakers in the Parián, who were said to have +put a quantity of powdered glass in bread which they had made for +the Spaniards. This case was regarded as one of more than ordinary +significance, as involving treason and insurrection, and it was +accordingly tried by an oidor who had been especially delegated for +the purpose by the governor. [515] + +The question of Chinese jurisdiction is further illustrated by +a dispute which arose in the colony between the audiencia and the +governor, and which was carried to the king by the latter functionary +on June 30, 1793. Oidor Moreno had ordered the arrest of the Chinese +cabecilla of the Parián on a criminal charge. [516] The detention of +the Chinaman was conceded to be justifiable, but Governor Marquina +alleged that Moreno had entirely disregarded the cédula of October +11, 1784, which had ordered that in case of the arrest of any royal +official, notification should be served to the governor in sufficient +time for him to take the proper precautions for the safeguarding of +any of His Majesty's property which might be in the care or under the +protection of the official in question. He said that this particular +arrest was typical of the petty interference of the oidores and +illustrative of the slight pretexts upon which they frequently upset +the whole system of government and caused untold annoyances. On account +of the many difficulties in the collection of the tribute which had +presented themselves as a consequence of the arrest of this particular +Chinese official, and because the latter was especially efficient, +the governor had asked the audiencia to permit the cabecilla to be +excused on condition that he should bind himself to return to the +custody of the audiencia after he had collected the taxes. This the +tribunal had refused. The government, as a consequence, had been put to +much inconvenience in finding a substitute, and the sum collected had +been considerably less than was usually obtained, owing to the lack +of experience of the new collector. After the cabecilla had been in +prison over four months, he was brought to trial, and nothing being +proved against him, he was freed. The audiencia, however, had won +its point, and had manifested its right to the last word in judicial +affairs relating to the Chinese. + +The difference between the appellate jurisdiction of the audiencia in +contentious cases involving Chinese and in administrative matters which +it did not have is illustrated by a case which came up in 1794 and +lasted through twelve years of litigation. In the year aforementioned, +the ayuntamiento of Manila brought suit before an alcalde ordinario +of the city against a Chinese, Augustín Chagisco, on a charge of +the failure of the latter properly to fulfill a contract which he +had made to supply the city with meat. The alcalde ordinario, before +whom suit had been brought in first instance, cancelled the contract, +and the Chinese appealed to the audiencia. The tribunal, after due +consideration of the case, restored Chagisco to his status as provider +of meats (abastecedor de carne) for the city. Instead of appealing +the case as one of law, the ayuntamiento wrote to the king on January +19, 1796, alleging that the audiencia had interfered in behalf of a +Chinese whose services the ayuntamiento had discontinued as provider +of meats, over which matter the audiencia had no jurisdiction. The +king immediately gave expression of his approval of the stand of the +ayuntamiento, being of the impression that the question at stake was +one of appointment only. [517] At the same time the king demanded +a full explanation from the oidores as to why they had interfered +in this matter which was so far removed from their jurisdiction. The +audiencia, in reply, sent all the records and testimonios of the suit +to the Council, and that tribunal called upon the ayuntamiento in +due time to explain why it had misrepresented the case. After a long +period of acrimonious correspondence between the Manila authorities, +the case was concluded on February 19, 1806, by a reversal of the +earlier decision, and His Majesty sent a letter of congratulation +and approval to the audiencia in appreciation of its stand in the +matter. [518] The king informed the tribunal that it had been entirely +regular in its proceedings, having reversed the decision of the alcalde +ordinario in a legal suit which had been appealed by the Chinese to the +audiencia in protest against the adverse decision of the lower court. + +Without carrying this discussion further, it is clear that the +audiencia had general appellate jurisdiction in cases involving the +Chinese. These cases, when they originated in the Parián, were tried +in first instance by special judges for the Chinese, but suits brought +against a Chinese who lived outside, or suits of a semi-public nature, +as the one just noted, might be tried in first instance by the ordinary +judges. It has also been noted that oidores were sometimes delegated +to try cases in first instance involving treason or insurrection of +Chinese. In regard to matters of government, it may be said that +the governor was held responsible, but even in these the oidores +participated in an advisory capacity. + + + + + + + +CHAPTER VIII + +THE AUDIENCIA AND THE GOVERNOR: CONFLICTS OF JURISDICTION + + +Although it may be said that the relations of the governor and the +audiencia were comparatively peaceful and harmonious throughout the +history of the Philippines, there were many conflicts of jurisdiction +and these struggles for power assume great prominence on account of +their bitterness. An investigation of the principles underlying them +and the arguments advanced by the contending parties will go far +towards explaining the relationship of the audiencia with the governor. + +Certain factors and conditions were always prevalent in the colony +to cause trouble and provoke enmity between the governor and +the oidores. Chief among these were the rivalry between them for +commercial profits, jealously of power and advancement, and the +desire on the part of all, and particularly of the governors, to +enrich themselves. Officials tended to regard their appointments +as commissions to engage in profitable ventures and business +undertakings--opportunities which were to be immediately improved. It +is probable that the presence of the audiencia did more to check +this tendency than any other agency, for the documents bearing on +the history of the colony are replete with charges made by oidores +and fiscales against governors. It is also true that the oidores +did effective work in correcting the misdeeds of the provincial +governors and justices on their official tours of inspection. That the +audiencia should accomplish this result was to be expected, since the +leading purpose of its establishment was to check the excesses of the +governor. The other side of the question cannot be neglected, however, +for charges were made in sufficient number against the oidores. It +is with these charges and counter-charges, memorials, complaints, +and arguments that the present chapter is concerned. + +The method to be pursued in this chapter will be that of indicating +in all fairness both sides of these conflicts, not with the purpose +of seeing which side was right, but with the object of obtaining +the respective viewpoints of the governors and magistrates. We shall +first consider evidence which was submitted in behalf of the audiencia +against the governor, and in turn, that of the governors against the +oidores. This method of procedure is the only one feasible since the +materials here utilized consist mostly of arguments for or against +the governor or audiencia, respectively. + +We have already seen that the first notorious disagreement in the +colony arose between Bishop Salazar and Governors Ronquillo de Peñalosa +and Santiago de Vera. This occurred before the establishment of the +audiencia. The audiencia was in fact established partly to have an +impartial tribunal present to arbitrate such disputes, and partly to +check the excesses of the governor. [519] We have also given attention +to the charges made by Oidor Dávalos against his fellow-magistrates +and the governor shortly after the audiencia was established. It has +been noted that the incessant quarreling between the governor and +the audiencia from 1584 to 1589 was one of the causes for abolishing +the tribunal at the latter date. From 1590 to 1595 the governor was +supreme in matters of government, war, and justice. It was clearly +shown during this period that the discord of a quarrelsome tribunal +was eminently to be preferred to the unchecked abuses of an autocratic +governor. In 1595 the audiencia was re-established by royal enactment; +from that date onward it became a permanent part of the government, +notwithstanding the fact that its relations with the other institutions +of the colony were not harmonious. + +There were two complaints most frequently made against governors. One +of these was their commercial excesses and the other, their abuse +of the power of appointment. The former consisted of the monopoly +of galleon space for themselves, or their friends, the acceptance +of bribes from merchants for various favors, or the manipulation of +the Chinese trade in some way for their own advantage. The tendency +of governors to appoint their friends and relatives to office, +notwithstanding the royal prohibition, and the apparent inability of +the audiencia to prevent this was a source of complaint, especially +during the early years of the colony. [520] Dishonest proceedings in +the sale of offices, including the retention of the money received and +the disposal of offices to friends for nominal sums, were among the +irregularities of the early governors. These abuses the magistrates +often knowingly permitted in return for some favor allowed them +by the governor. That the laws which forbade these abuses of the +power of appointment had been openly and flagrantly violated was +a charge brought up repeatedly in the residencias of governors and +magistrates. An examination of the correspondence of the seventeenth +and eighteenth centuries would almost lead to the belief that the +home government despaired of ever righting these wrongs, and left +them unpunished, rather directing efforts towards reform in other +channels in the hope of remedying greater defects. + +Perhaps no governor more flagrantly disregarded the audiencia +and the royal authority which it represented, or more frequently +laid himself open to complaints on account of his violent conduct +than Alonso Fajardo, who ruled from 1618 to 1624. Numerous charges +were brought against him by the audiencia, some of which concerned +itself, and some had to do with the general administration of the +government. It was charged that Fajardo sought to usurp the judicial +functions of the tribunal, and to assume control of the administration +of justice. He had on one occasion broken up a session of the court +during the trial of a certain person for murder, ordering a sergeant +to take him out and hang him. Fajardo defended himself against this +accusation by alleging that the criminal was a sailor from the royal +fleet, whom he, as captain-general, had already condemned, and that +the audiencia was acting illegally in entertaining the case. Fajardo +was said to have released prisoners at his own pleasure, and to have +abused the pardoning power. He had made threats of violence against +the magistrates in the court-room. + +The audiencia not only complained against this governor's interference +with the exercise of its functions as a court, but it manifested a +wider interest than the purely judicial by complaining against the +excesses of the governor in his own administrative field. The charge +was made that Fajardo had bought up due-bills and treasury certificates +from the soldiers and other creditors of the government, at less than +their face value, and had presented them to the oficiales reales, +realizing the full amount on them, and retaining the proceeds. He +was charged with exacting large sums from the Chinese in exchange for +trading privileges, retaining the money himself instead of putting it +into the treasury. He was said to have forced loans from the merchants +in order to make up financial deficits, and to have taken money out of +the treasury, secretly, at night. Another charge brought against him +was that of allowing favorites to go out and meet the incoming ships +of the Chinese, thereby obtaining for himself and for them the choice +parts of the cargoes in advance of the merchants of Manila. [521] +There is no evidence that the tribunal was able to put a stop to +these abuses. + +Oidor Álvaro Messa y Lugo, in a letter written to the king on July 20, +1622, continued the campaign which had been started by the audiencia +against this governor. He claimed that Fajardo had sought to prevent +officials and private citizens from sending complaints to Spain against +him by examining all the outgoing mail before it left the colony. The +oidor showed that wastefulness, private trade, bribery, carelessness +in the administration of the exchequer, neglect of shipbuilding, +corruption, and personal violence were among the misdeeds of this +governor. Messa reported that he had tried unsuccessfully to authorize +the auditing of the accounts of the galleon for two successive years, +in accordance with the royal instructions which ordered that it +should be done at the termination of each voyage by the fiscal and +two oidores. [522] Messa said that the governor feared to have the +colony's finances examined for it was well known that they were in +a deplorable state. + +One instance of the governor's financial ingenuity which was given +by Messa, illustrates the limitations placed by the audiencia on the +governor's appointing power. The audiencia relieved the secretary of +government, Pedro Muñoz, of his office upon the expiration of his +term, selling the place to Diego de Rueda for 8000 pesos. Fajardo +dispossessed Rueda and restored the office to its former incumbent +for 1500 pesos. The audiencia's action in disposing of this office +without the consent of the governor was justified by a law promulgated +on November 13, 1581, ordering that offices should be bestowed only +upon persons of such qualities and attributes as met with the approval +of the royal justices. [523] The governor emerged triumphant in this +contest, however, because it was generally recognized at that time +that his word should be final in matters of appointment. Although +we have seen in a former chapter that the governor consulted with +the audiencia when an important appointment was to be made, the +audiencia's intervention in matters of appointment depended largely +on the strength of the tribunal and the relations existing between +it and the governor. During this administration the audiencia was +notoriously weak and harmony did not exist. + +The memorial presented by Messa y Lugo was chiefly concerned with the +story of his own arbitrary arrest and imprisonment at the instigation +of Fajardo on trumped-up charges, as he alleged. The judicial inquiry +lasted two months, and it furnishes an excellent example of the power +of a governor over a weak audiencia. The occasion for the investigation +had been a disagreement between the governor and the oidor over +the latter's claim to act as administrator of the property of Oidor +Alcaraz, who had died in office. The governor, by the appointment +of a magistrate favorable to himself as juez de difuntos, had hoped +to control the administration of the property, since Messa was under +sentence of residencia, and the remaining magistrates of the audiencia +were favorable to him. Moreover, Fajardo wished to forestall certain +charges of misgovernment which he knew that Messa was prepared to +make against him. Consequently the governor designated an alcalde of +the city to conduct the residencia. Messa was given practically no +opportunity to defend himself. His property was sequestrated, even +to his wife's clothing. Seeing that he could not obtain justice, +he escaped from prison and took refuge in a Dominican convent. + +Messa, from the seclusion of the monastery, challenged the legality of +the governor's procedure. According to his contention, the previous +law authorizing the governor to name an alcalde ordinario to try +an oidor, was now a dead-letter. Its chief defect had been that an +alcalde, who was the creature of the governor, would always aim to +render a decision pleasing to his master. He urged that the law +then in force authorized the governor to proceed with the trial +of an oidor, only upon consulting the audiencia, and moreover that +resulting condemnations, if they were personal or corporal, should be +confirmed by the Council of the Indies. [524] Messa therefore claimed +that the governor had no authority to proceed with this case alone, +since "those nearest (your Majesty), as are the auditors (oidores), +cannot be imprisoned or proceeded against except by your Majesty or +the royal Council, or by your order." + +The oidor then proceeded to show the extent to which, in his opinion, +the governor might intervene in the sessions and proceedings of the +audiencia. He wrote: + + + The president, in virtue of his superintendency over the Audiencia, + may ordain to the auditors what may be the just and reasonable + in matters that pertain to the government and its conservation; + and even, in the heated arguments that are wont to arise between + the auditors, has authority, in case the nature of the affair + might require it, to retire each auditor to his own house, until + they make up the quarrel; and, should he deem it advisable, + he may inform your Majesty. For the ordinance does not say that + the president and alcaldes shall proceed, arrest, sentence and + execute justice in criminal cases affecting the auditors. [525] + + +This is the interpretation which Messa placed upon the law giving +authority over the trial of magistrates of the audiencia to the +governor. + +Messa then proceeded to discuss other matters relative to the +respective spheres of the governor and audiencia. The governor had +broken open the chest of the audiencia, extracting a large sum and +spending it without accounting for the expenditure, and without +any beneficial results. He was guilty of four murders, one of his +victims being his wife. The audiencia should be empowered to try him +for these crimes, but it lacked jurisdiction. During his term Fajardo +had exercised such absolute power that justice had been paralyzed and +litigants were holding back their suits from trial because justice +could not be obtained in the audiencia. The governor had sent from +the Islands more than a million pesos in goods and money, all of +which he had obtained through fraudulent and illegitimate means. + +The governor had quarreled finally with the oidores who had remained +faithful to him; one of these had become incapacitated through +sickness, while the other had taken refuge in a Jesuit convent. The +audiencia was thus dissolved. The governor, feeling the need of +a tribunal, withdrew the charges against Messa, and ordered the +latter to come back and resume his office. The oidor complied, but his +hostility toward the governor had in no way abated. Messa concluded his +memorial with the request that a visitor should be sent to the colony +to investigate the charges which had been made against the governor, +and at the same time to restore the audiencia to its rightful position +in the colony. He stated his conviction that the office of governor +should be abolished, and that the audiencia should be empowered to +act in his place. This belief he justified by the statement that the +audiencia had already successfully acted in the capacity of governor +and had administered affairs with great satisfaction. + +The power which the governor had of imprisoning and chastising +magistrates of the audiencia who dared to oppose him, enabled him to +emerge victorious in his struggles with that body. He was even able +to completely suppress the audiencia. Nevertheless he was obliged, +through the need of the tribunal which he had vanquished, to restore +it again, although it was opposed to him. In no less than three cases +governors, in order to comply with the law requiring that there should +be at least one oidor of royal appointment, were obliged to restore to +the audiencia magistrates who had formerly been under arrest. Being in +possession of all the powers of an executive, the governor was usually +able to reduce the audiencia to subserviency, unless the dispositions +of the opposing oidores were such that they would not submit. On +the whole, the audiencia seemed unable to check the excesses of the +governor, by virtue of its authority, and the oidores were obliged +to confine themselves to protests and appeals to the king; these, +only after years of delay, effected the removal or punishment of the +governor and the appointment of another to continue his excesses. + +The complaints which Messa made on this occasion resulted in bringing +to the Islands a visitor who conducted a lengthy, though somewhat +tardy, investigation. Fajardo was already beyond the punishment of +earthy kings and tribunals. But his property was seized and his +heirs were fined; aside, however, from the removal of various of +Fajardo's subordinates, the government was but little better for the +protestations and appeals made by the audiencia. The oidores, instead +of obtaining the desired reform measures, were usually rewarded for +opposing a tyrannical governor and appealing to the court for support, +by a reprimand for quarreling and an admonition to be quiet and +peaceful, to preserve harmony, to attend strictly to their own affairs, +and to abstain from interference with the government. Indeed, judging +from the many similar replies which the oidores received in answer to +their charges against governors, it appears that the preservation of +harmonious relations between the officials of the colony was much more +important than good government. Usually, however, in these struggles +between the audiencia and the governor the contentions of one side +or the other were based on law and justice. The effectiveness of +the Spanish colonial government would have been greatly increased +had the Council of the Indies taken advantage of these opportunities +to investigate the principles at stake and support the right side, +rather than by issuing impotent injunctions and remonstrances. + +The most significant controversy which ever occurred in the Philippines +between the governor and the audiencia arose in connection with the +banishment of Archbishop Pardo in 1683. It is not the purpose here +to give a detailed account of the Pardo controversy, which will be +discussed again in connection with the relations of the audiencia and +the church. However, since this episode involves certain incidents +illustrating important phases of the relationship of the governor and +the audiencia, it is desirable to refer to it here in considerable +detail. + +The real occasion for this conflict was the defiance of the laws of +the royal ecclesiastical patronage by the archbishop, who insisted on +making ecclesiastical appointments without consulting the governor. The +governor appealed to the audiencia for support, and the tribunal +exercised jurisdiction over the case on the basis of its right to try +cases of fuerza and to prevent ecclesiastical judges from infringing on +the civil jurisdiction. Juan Sánchez, the secretary of the audiencia, +relates that, owing to the interference of the Dominicans and Jesuits, +and their harsh public criticism from the pulpit of the audiencia and +government, "the royal Audiencia felt obliged to advise its president, +then Don Juan de Vargas, that he should apply a corrective to these +acts." [526] This corrective was the banishment to Spain of certain +individuals of the Dominican order to answer for their misdeeds +and ultimately the exile of Archbishop Pardo from the city. It is +enough to say that Governor Juan de Vargas Hurtado and the audiencia +acted in harmony on this occasion, presenting a solid front to the +ecclesiastical power. When the new governor, Curuzaelegui, arrived, +however, he forced the audiencia to ask pardon and absolution from +the archbishop, which the magistrates did on their knees. The new +governor disgraced Vargas in the residencia, waiving for a time +the residencias of the oidores. Pardo was recalled from exile, and +the audiencia was forced to legalize his restoration to his see on +October 25, 1684. Thus the new governor and the archbishop triumphed +over the combined forces of the ex-governor and the audiencia. + +It is clear that the power of the new governor was derived chiefly +from his status as royal vicepatron, acting in conjunction with the +archbishop. This power Vargas had formerly employed in co-operation +with the audiencia, and thereby both had gained their victory over +the prelate before the arrival of the new governor. Curuzaelegui used +the same authority to recall Pardo; and in so doing he was probably +the only governor in the history of the Islands who ever supported +a prelate against the advice of the audiencia. The combination of +a governor and an audiencia was much more frequent, as we shall +see. The position of the governor was strengthened, also, by his +commission to conduct the residencia of Vargas, and the respect +which the audiencia had for him was increased by the fact that in +judging the ex-governor's misdeeds he was also authorized to hold +the oidores responsible for all their official opinions and acts +in acuerdo with the disgraced governor. [527] Another source of the +governor's strength was to be found in the royal instructions which +he carried with him to stop the quarrels previously existing in the +colony. The oidores very prudently submitted to the new governor, +and therefore, for a time, they were patronized by the latter, who +utilized their intimate knowledge of local affairs to aid him in +obtaining control of the government and familiarizing himself with +it. Meanwhile he literally held the residencia over their heads. + +The attitude of the new governor toward the audiencia during the first +six months may be described as conciliatory. That he did not act with +entire independence of it is attested by the fact that when Vargas +appealed to the tribunal against the ecclesiastical penalties imposed +by the archbishop, the governor signed the act ordering the absolution +of his predecessor. When the archbishop persisted in his intention +to humiliate Vargas on the ground that the Inquisition demanded such +action, the new governor threatened again to expel the prelate if +he did not desist. [528] His pacificatory efforts also resulted in a +temporary cessation of the hostility between the archbishop and the +audiencia; he held private conferences with the oidores, manifesting +repeatedly his determination to proceed harmoniously with them. As +a result of this treatment, the magistrates were emboldened to urge +that the return of the prelate was contrary to law, and inconsistent +with all precedent. + +Finally, unable to resist the pressure exerted by the archbishop, +and obtaining advance information of the royal condemnation of the +audiencia for its acts in the banishment of Pardo, the governor +arrested, imprisoned, and exiled the magistrates, temporarily +reconstituting the tribunal with local and more subservient +members. [529] Curuzaelegui's proceedings were thenceforth as +high-handed as they had formerly been conciliatory, and from that +time onward the residents of the colony were subjected to the rule +of an absolute governor, aided by an unscrupulous and vindictive +prelate and a subservient audiencia. Just before his imprisonment, +Magistrate Bolívar, in a letter to the Minister of the Indies, +described the chaos existent in Manila as follows: + + + Here there is no will, save that of a governor, since he is + absolute, we all had to acquiesce, under compulsion and pressure, + in the restitution of the archbishop; [530] ... to state the + case in few words, the archbishop does whatever suits his whim, + without there being anyone to restrain him. [531] + + +Fray Luís Pimentel, a Jesuit, in a letter which he wrote to a friend, +stated that the arrest of the oidores by the governor had been inspired +by personal spite and a desire for revenge. He had desired to punish +magistrates Viga and Bolívar, particularly for their opposition to him +in matters of administration and in his trading-schemes. The governor +was also said to have been actuated by a suspicion that these oidores +had formulated elaborate charges of misgovernment against him, and +he desired to prevent these complaints from reaching the king. [532] + +Pimentel proceeded to relate that the governor then found himself +embarrassed without the aid of an audiencia, and had accordingly +formed another of his own selection. This body was careful to execute +the governor's will in every particular; consequently there was no +check on his misrule. This new audiencia approved all the acts of +the archbishop and refused to entertain the appeals of the ex-governor, + + + royal decrees were despatched against the preachers (Jesuits) + who zealously proclaimed from the pulpits the arbitrary and + malicious character of the recent acts, and the Dominicans alone + had the privilege to utter whatever absurdities they pleased in + the pulpits.... No authentic statement of the evil deeds of these + years can be sent to the court for the scriveners are intimidated + and will not give official statements of what occurs, except + what may be in favor of the governor and the archbishop. Item, + (this) is written in much distrust and fear, on account of the + numerous spies who go about prying into and noting everything + that is done. [533] + + +Pimentel stated that the archbishop, who was a Dominican, had used +this rupture between the governor and the audiencia, and the favor of +the governor, particularly, as an occasion and pretext for imposing +on the Jesuits and Franciscans. He had deprived them of their lands +and parishes, and had obtained many favors for the Dominicans and +Augustinians at the expense of the rival orders. "It seems as if +the governor had come to the islands," Pimentel wrote, "for nothing +else than to encourage the Dominicans in their rebellious acts, to +trample on the laws, to abolish recourse to the royal Audiencia, to +sow dissension, to be a tyrant, to disturb the peace, and to enable +the archbishop to secure whatever he wishes, even though he imposes +so grievous a captivity on the commonwealth." [534] + +The Pardo controversy and its consequences show the extremes to which +a weakened audiencia was reduced on occasion by a new governor who +came to the Islands, armed with recent royal decrees instructing +him to bring about peace and order. Curuzaelegui, assisted by the +royal visitor, who bore instructions even more recent than those +of the governor, imprisoned and exiled the oidores, confiscated +their property and brought about their ruination and death. He +then appointed another audiencia of his own choice. All these acts +were strictly legal, and in accordance with his instructions. The +governor's conduct before the appointment of the visitor was more +lenient and tolerant than afterwards. This shows that he realized the +necessity of fulfilling the royal will, the policies of which were +entrusted to Valdivia for execution, even at the expense of harmony +with the local tribunal. Had he not been assured of the support of +the church on the one hand, and of the royal approval on the other, +as shown by the commission of Valdivia, it is improbable that he +would have broken with the audiencia, or would have attempted to use +his power so extensively. The presence of an audiencia was necessary +to the government of Curuzaelegui. This is shown by his conciliatory +attitude toward the tribunal of Vargas, until he knew that it was +under the condemnation of the king, also by his own act in forming +a new one. This controversy clearly illustrates the extent to which +a governor might use his power, and it shows, on the other hand, +the indispensable character of the audiencia, even at a time when it +was least powerful. Curuzaelegui, in the name of the king, completely +obliterated the legally constituted audiencia, appointing another to +serve until it could be legalized by regular appointment. + +Chronologically speaking, the next great struggle which throws +light on the subject which we are considering, occurred during the +administration of Governor Bustamante (1717-1719). The audiencia was +reduced to a deplorable state of helplessness and inefficiency on +this occasion, and the circumstances surrounding its relationship +with the governor were in many ways similar to those which have +been described. For a period of two and a half years antecedent +to the coming of Bustamante, the government of the Philippines had +been nominally in the hands of the audiencia, but in reality, under +the control of the senior magistrate, Torralba. One of the first +acts of Bustamante, after his arrival in the Islands, was to take +the residencia of Torralba, and this investigation led him to make +serious charges against the other magistrates. In the residencia which +followed, the finances of the colony were found to be in bad condition, +and all the officials of the civil government, as well as many of +the churchmen, were discovered to be deeply interested in private +trade, to the neglect of their duties and to the detriment of the +government. Large amounts of money were found to have been smuggled +without permission into the colony on the galleon from Mexico. The +accounts of the treasury department were discovered to have been +loosely kept, and many of the officials, including magistrates of the +audiencia, were found to be serving without financial guarantees. [535] + +Bustamante immediately took steps to re-organize the government and +to place the finances of the colony on a sound footing. He put a stop +to the smuggling, forced the merchants to pay the authorized duties, +and imposed fines on those who had been guilty of negligence and +misconduct. At the end of six months the efforts of Bustamante had +netted a sum of 293,000 pesos to the royal treasury. His successful +efforts towards clearing up the finances of the colony, making +every person pay his just dues without regard to position, rank, +or affiliation, and the seeming harshness of his methods incurred +general hostility and contributed largely to his downfall. [536] + +His investigation of the finances was said to have revealed a +shortage of over 700,000 pesos, for which he held Torralba and the +other magistrates responsible, putting, most of the blame, however, on +Torralba. All but one of the magistrates were arrested and incarcerated +in Fort Santiago. Before this was done, however, Bustamante asked +the advice of the archbishop, the religious corporations, and the +universities, as to what steps he should take in the matter. He +recognized that he would be seriously embarrassed without an audiencia, +but the investigations which he had made showed that all of the oidores +were guilty of misappropriation of the government funds. Would he +be justified in forming an audiencia of his own selection, composed +of duly qualified lawyers, with one minister of royal designation +remaining? It was his opinion that the presence of one regularly +appointed magistrate would lend legality to the entire tribunal, so he +asked advice as to which of the three oidores would be most suitable to +retain. He cited as a precedent in favor of his reconstitution of the +audiencia the action of Governor Curuzaelegui in 1687 and 1688 when he +exiled and imprisoned the oidores and reformed the audiencia with his +own appointees. Bustamante proposed to do exactly what Curuzaelegui had +done, that is, to act as president himself, appointing the fiscal as +oidor, and designating a duly qualified lawyer and an assistant fiscal +to fill the other vacant places. Bustamante expressed an apparently +sincere desire to do justice to all. He desired, particularly, that the +administration of justice in the courts should be allowed to proceed +without interruption and without that loss to the commonwealth which +would come from the absence of a tribunal. [537] + +The replies given by the orders on this occasion involve important +laws and principles which underlie the nature of the audiencia and its +relation to the governorship. The archbishop, in a subsequent report to +the king on the government of Bustamante, stated that all the religious +authorities in the colony advised the governor against the destruction +of the audiencia, and questioned the authority of the prelate to +constitute another. [538] It seems, however, from an investigation +of the letters, that the Jesuits counseled the governor in favor of +the proposed action. The reasoning of the Jesuit theologians was as +follows: there should be retained in the Philippines, according to +the Recopilación de Indias, [539] four oidores and a fiscal for the +proper administration of justice, and if the fiscal were the only +remaining member of the old audiencia he would become an oidor in +case of a vacancy, by virtue of the recognized law. [540] Owing to +the multitudinous duties of the oidores and to the great importance +of the audiencia, great harm would arise if there were not enough +magistrates. Since the governor's jurisdiction extended to all +departments of government, it was the opinion of the Jesuits that +it was incumbent on him to take such steps as might seem necessary +for the preservation of the government. This was specially imperative +since it was his duty to see that there was no delay or neglect in the +administration of justice. Inasmuch as the audiencia was indispensable +to him as vicepatron in its jurisdiction over ecclesiastical affairs, +and because of its consultative powers in all affairs of government +and finance, the governor should have the right to create an audiencia, +if one did not exist, or if the members who were regularly constituted +by royal appointment were incapacitated from service. [541] + +The opinion of the Dominicans of the University of Santo Tomás differed +widely from that advanced by the Jesuits. Their advice coincided +with that of the archbishop, being to the effect that it would not be +convenient to qualify one of the ministers alone, but that all of them +should be restored to the audiencia. This meant that Bustamante should +recede from his position, remove all the oidores from prison, and +accept them as an audiencia. If the three oidores deserved punishment +it would be unfair to the remaining two magistrates to exempt one, +and such action would lay the governor open to charges of inconsistency +and favoritism. The Dominicans contended that only the king in council +could suspend or remove oidores, and that such power was not given +to any other authority, not even to a viceroy. [542] Though + + + in Sicily and Naples this right is granted, in the Indies the + contrary is true, because only the king that appointed them may + suspend them, and it is commanded that the viceroys must not + interfere with or impede their jurisdiction. [543] + + +The Dominicans were of the opinion that the governor had authority +to discipline the oidores, but in so doing he could not go so far +as to remove them from the tribunal unless commanded to do so by +the Council of the Indies. Whatever disciplinary action the governor +might decide on, it should not be taken on his own authority, but in +the execution of the orders of the Council of the Indies. + +This opinion, the Dominicans alleged, was in accordance with the laws +of the Indies. [544] They cited, in support of their argument, an +instance in which the king reproved Gálvez, the Viceroy of New Spain, +because, without the authority of the Council, Gálvez had suspended a +magistrate of the Audiencia of Mexico, whom he should have honored and +to "whom he should have accorded the treatment of a colleague." [545] +The Dominicans expressed the opinion that the prosperity of the +Islands and the welfare of the government depended on the audiencia, +and though it might be desirable to remove the oidores for personal +guilt, it could not be done in this case without wrecking the entire +government. The king, himself, had shown respect for the inviolability +of the audiencia when, in 1710, he had judged all the ministers to be +equally guilty of not having fulfilled the laws and ordinances on the +occasion of the coming to the Islands of the Patriarch of Antioch, +[546] satisfying himself with the removal of the decano only and +allowing the other magistrates to remain. + +Disregarding the advice of this learned body, turning a deaf ear to +the protestations of the archbishop, and heeding only the counsel +of the Jesuits, which was more favorable to his wishes, Bustamante +proceeded to execute his own will in a manner which proved distasteful +even to the order whose advice he was following. [547] He arrested +and imprisoned the guilty magistrates and created a new tribunal +out of his own clientele, leaving only Villa, a former magistrate, +in office. The latter protested against the action of the governor, +and retired to the convent of Guadalupe, near Pásig. Informed that +there was a conspiracy against his life and needing the counsel of some +person, or persons, on whom he could rely, Bustamante was well-nigh +desperate. His government, as it then stood, lacked the complexity of +legality which the presence of one oidor of royal nomination would +have given it. In order to remedy this defect he released Torralba, +the guiltiest of the former magistrates, and the man under arrest for +the defalcation of 700,000 pesos of the king's revenue. Torralba's +crimes had been notorious, and the act of Bustamante in associating +himself with a person of the unsavory reputation and the unpopularity +of Torralba not only divorced him from whatever popular sympathy he +might have had among the residents of the colony, but it aroused the +hostility and antagonism of the Jesuits who had been heretofore the +governor's friends. Aside from the unfortunate character of the act, +it was also illegal, being contrary to the law which directed that in +case an oidor were suspended from his place he should not be restored +without the consent of the king and the Council of the Indies. [548] + +The newly constituted audiencia busied itself at once with the task +of government. Archbishop de la Cuesta, among others, questioned the +legality of the tribunal's opposition to the excommunication of its +members. He was arrested by the governor, and then arose the contest +which culminated in the murder of Bustamante, in the suppression of +his audiencia and in the first officially recognized government by a +prelate in the Philippines. The archbishop reappointed all the former +magistrates to office, with the exception of Torralba, and the misdeeds +of the government of Bustamante were saddled upon the ex-magistrate. + +Two noteworthy considerations stand out prominently in connection +with this struggle; first, the influence of the governor over the +audiencia, and his power to deprive regularly appointed magistrates +of their positions and to constitute a new audiencia if he chose, +notwithstanding the prohibition of the laws, and, second, the complete +control by a governor over an audiencia which he had created. It is +not necessary to state that the Madrid government discredited all +the later acts of Bustamante's administration, including the recall +of Torralba, who was a self-confessed criminal under arrest, when +restored by the governor. There is nothing to show, however, that the +king disapproved of the acts of Bustamante in creating a new audiencia, +unless it were the royal approval of Cuesta's act of reconstituting +the old tribunal. Torralba, in his residencia, was made to suffer for +all the misdeeds of his government (in reality that of the audiencia, +Torralba being decano, 1715-1717), as well as for those of Bustamante +(1717-1719). + +The audiencia, after it had been reconstituted by the +archbishop-governor, neglected to investigate the causes of the +governor's death, alleging as a reason that + + + this proceeding will greatly disturb the community; that to + proceed against these persons will be to cast odium on and grieve + nearly all the citizens, since the commotion was so general; + that all those who went out on that occasion did so "in defense + of the ecclesiastical immunity, the preservation of this city, + the self-defense of its inhabitants, and the reputation of the + [Spanish] nation;" and that to carry out this plan would be likely + to cause some disturbance of the public peace. [549] + + +In a word, the influence of the archbishop was sufficient to keep +the audiencia from undertaking a formal investigation of the causes +of the governor's death. It was quite generally recognized that the +murder had been committed in the interests of the prelate, probably +by an assassin who had been in his pay, or in that of his friends, +the Jesuits. This is another illustration of the subserviency of +the audiencia to the governing power, on this occasion a churchman, +who had actively participated in the removal of his predecessor. + +An interesting though ineffective protest was made by the audiencia +against the appointment of José Basco y Vargas as Governor of the +Philippines in 1778. A communication was sent to the court describing +the abject state into which the king had degraded the audiencia by +subordinating it to a man whose title and rank as Captain of Frigate +gave him only the right to be addressed as You, while each of the +magistrates enjoyed the title of Lordship. The Council rejected the +complaint as an absurdity, after which certain oidores conspired +to bring charges against Basco y Vargas, to arrest him and to make +Sarrio governor. The latter had been ad interim governor after the +death of Anda, and he was at that time the beneficiary of the title and +position of segundo cabo, or second in command of the king's forces in +the Islands. Sarrio refused to join the magistrates in their revolt +against the governor. Basco y Vargas was informed of their treason, +and it is significant that he complied with the royal laws, not +by attempting to punish the offenders himself, but by sending the +recalcitrant magistrates to Spain where they were dealt with by the +Council of the Indies. [550] + +This was only a prelude to the discord which existed throughout the +administration of this able governor. The king was obliged to issue +special cédulas on various occasions, ordering a cessation of the +perpetual discord. [551] Basco y Vargas formed a society for the +advancement of the economic interests of the Islands, [552] and in +that, as well as in his successful organization of the profitable +tobacco monopoly, he was opposed by the audiencia. The tribunal claimed +that the governor was limiting its sphere of authority in inaugurating +these reforms. [553] Basco y Vargas recommended and brought about the +separation of the superintendency of real hacienda from the rest of +the government. This the audiencia also opposed, but in the contest +over jurisdiction which ensued between the governor and the intendant, +the governor and the audiencia acted in complete harmony, because this +new official threatened their mutual interests and prerogatives. [554] + +Outlawry and highway robbery became so common throughout the Islands +during the term of Basco y Vargas that the governor appointed +prosecutors, sheriffs, and judges-extraordinary to assist in the +preservation of order, which the alcaldes mayores were not able +to accomplish by themselves. The audiencia, feeling that this was +a grave intrusion upon its prerogatives, appealed to the king and +succeeded in bringing the sovereign displeasure upon the head of +the governor. The royal cédula stated that there was no need of +these additional officials. The judicial machinery which had been +provided for the Philippines from the beginning was sufficient. The +governor was warned, furthermore, to abstain from meddling with the +jurisdiction of the audiencia. [555] This case confirms the statement +already made in this treatise that during this period and, in fact, +after the establishment of the regency in 1776, the governor exercised +a diminished authority in judicial affairs. When Basco y Vargas took +his office as governor of the Philippine Islands, he was obliged to +subscribe to two oaths, one as governor, and the other as president +of the audiencia, but he was warned by a special decree of the king +to keep from confusing these two functions as former governors had +done. [556] + +Many disagreements took place between the audiencia and Governor +Marquina, who succeeded Basco y Vargas. Marquina quarreled with the +audiencia over almost every act of government in which he had relations +with the tribunal. Marquina was said to have repeatedly disregarded +the acuerdo and to have done as he pleased in matters wherein the +audiencia had been or should have been consulted. There was a bitter +contest in 1789, shortly after the arrival of this governor, because +he had excused various officials of real hacienda from appearing when +summoned to the audiencia to serve as witnesses. Marquina did this, he +claimed, because they were needed in the provinces as financial agents, +and because their absence from their posts of duty would entail a grave +loss to the government. The audiencia solved the matter by forwarding +all the correspondence relative to these cases to the Council of the +Indies. It may be said that Marquina, in exempting these witnesses, +was acting in his capacity as president of the audiencia, but in +his solicitude that no loss should occur to the royal exchequer he +was acting as superintendent of real hacienda, which was within his +authority. [557] + +In 1790 Marquina recommended the abolition of the audiencia on the +grounds that its continued presence constituted an obstruction to +the harmonious working of the machinery of government. He said that +the tribunal was a powerful weapon in the hands of men who used it +for their own personal advancement. In the place of an audiencia +he suggested the substitution of three asesores, one for civil and +criminal cases, one for real hacienda, and another for commerce and the +consulado. These asesores would have jurisdiction over the cases which +corresponded to these three departments. This scheme, he believed, +would effectively provide for all the judicial cases arising in the +Islands. [558] To this scheme, however, the Council paid no heed. + +Considerable attention has been given in another chapter to +the charges made by the audiencia against Marquina at the +time of his residencia. These complaints show that a state of +continual disagreement had existed between these two authorities +throughout the entire term of the governor, and the bringing of +these charges was instrumental in making Marquina undergo a very +strict investigation. Personal jealousy was no small factor in these +continual recriminations. At no subsequent date, however, were the +large issues at stake which were characteristic of the struggle between +the audiencia and the governor at the time of Fajardo, Curuzaelegui, +and Bustamante. Those were death-struggles on the issue of whether +the audiencia should be an independent tribunal or whether it should +be subservient and subject to the governor. During those struggles the +tribunal was momentarily suppressed, or converted into an instrument, +in the hands of the governor. But these were exceptional cases, and +during the greater part of the long period of three hundred years +the relations between the audiencia and the executive were not so +discordant as they would seem to have been, judging by the instances +cited in this chapter. The audiencia, on all occasions of dispute +with the governor, was able to offer a formidable resistance to his +so-called encroachments on the prerogatives of the tribunal. Although +the governor, on most of the occasions noted above, occupied the +stronger position, owing to his more recent instructions, the support +given to him by the church, and his control of the residencias of the +magistrates, nevertheless it may be said that either authority was +sufficiently powerful and independent to be respected as an antagonist +by the other, and each was indispensable to the other. + +These disagreements have been discussed in the foregoing pages largely +from the view-point of the audiencia. Practically all the charges and +complaints which have been cited were made in behalf of the audiencia, +and these show the magistrates in almost all cases to have been acting +in defense of their rights against usurpation and tyranny. Fairness +demands, however, that the other side should be presented in the +same manner. [559] Reference will now be made to a few of the many +memorials heretofore unquoted, which were sent by various governors +in protest against the alleged excesses of the audiencia. + +As a first instance we may note the criticisms which Governor Gómez +Pérez Dasmariñas made of the first audiencia which served from 1584 +to 1589. We shall also consider the complaints which Dasmariñas made +against Pedro de Rojas, former oidor and later teniente and asesor of +that governor (1589-1593). Dasmariñas came to the colony shortly after +the first audiencia had been suppressed and from his correspondence +one may estimate the prevailing opinion of the tribunal which had +been recently removed. The governor wrote as follows: + + + As the royal Audiencia was here so haughty and domineering, he + (Pedro de Rojas) retains that authority and harshness, with which + he tries to reduce all others as his vassals. In the matters of + justice that he discusses, he is unable to be impartial, but is + in many matters very biased. This is because of his trading and + trafficking, which the president and all the auditors (oidores) + carried on from the time of their arrival--and with so great + avidity, trying to secure it all to themselves, that I find no + rich men here beside them. This is the reason why Rojas ... and + the auditors opposed the pancada in order that the consignments + of money sent by them to China might not be known--which, at last, + have come to light. [560] + + +The governor charged the audiencia, moreover, with having opposed +the three per cent tax levied for the construction of the city +wall. Indeed, he accused the magistrates of having influenced +the friars to oppose all his acts as governor. He referred to +the commercial excesses of the oidores, saying: "If the matter of +inspection and the residencia held here had fallen to my order and +commission, as it fell to that of the Viceroy of Nueva España, I +would have proved to your Majesty the investments of past years." He +concluded with the statement that Rojas had been so busy with gain that +he had been unable to attend to his other duties; he was "puffed up +with the authority and name of auditor" (i. e., oidor). He protested +against the transfer of Rojas to an office in Mexico, "for," he wrote, +"such men go delighted with their interests and gains from trade here, +they are fettered and biased by their relations with the trade of +this country." + +Thus we see that even this early in the history of the Islands, +the oidores as well as the governors were accused of a predominating +interest in commercial affairs. + +Governor Pedro de Acuña recommended the suppression of the audiencia +in 1604, although he said that he had had no serious trouble with +that tribunal. His chief reason in favoring its removal was that +an appreciable saving would be realized thereby. The audiencia was, +moreover, very unpopular in Manila. He alleged that the name of oidor +was so odious that it was in itself an offense. He stated that affairs +had come to such a pass that + + + because I, in conformity to what your Majesty has ordered, have + attempted to maintain and have maintained amicable relations + with the auditors; and have shown, on various occasions, more + patience and endurance than the people considered right; and more + than seemed fitting to my situation, in order not to give rise to + scandal; some have conceived hatred for me, publicly saying that + ... I was neglecting to look after them, and that I could correct + the evil which the Audiencia was doing. But as I cannot do that, + it has seemed to me the best means to let the public see that + there was good feeling between me and the Audiencia. [561] + + +Here we have the case of a governor, who, in order to get along in +harmony with a quarrelsome and unpopular audiencia, gave way to it +on many occasions, and even incurred the displeasure of the residents +of the colony on account of what seemed to them to be the governor's +easy-going attitude. His zeal for the king's service, as he expressed +it, moved him to recommend the abolition of the tribunal. He said that +the audiencia would not be missed if it were removed, since there +were only twelve hundred residents in the colony and there were few +cases to be tried. Most of the suits arising in the Islands could +be adjudicated by the alcaldes ordinarios and appeals could be sent +to Mexico. The acuerdo, or administrative session, Acuña alleged, +existed in name only. + +Acuña made practically the same charges that have been so often +repeated already in this chapter. The magistrates had interfered +in the appointment of officials, which the governor claimed as his +sole prerogative. Each magistrate was accompanied on his journey +to the Islands by a vast company of relatives and dependents, +who came to get rich. These persons ultimately monopolized all the +offices. Notwithstanding the king's orders which forbade that offices +should be held by relatives of oidores, the governor was placed in +such a position that if he did not allow these persons to hold office, +the magistrates would take revenge by opposing him at every turn, thus +ruining the success of his administration. [562] The same was true of +trade, for these relatives had to live, and if the government could +not support them, they had to be assigned privileges and advantages +in trade, which the oidores by virtue of their official positions +could guarantee. [563] + +In view of all these abuses and evils which, directly or indirectly, +proceeded from the audiencia, Acuña maintained that all the powers of +government, war and justice, should be concentrated in the office of +governor and captain-general. The country, he said, was more at war +than at peace. It was essentially military, by virtue of its location +and isolation. Acuña contended that all authorities and departments +of the government should therefore be dependent on a military chief +rather than on a high court of justice which was out of sympathy +with the spirit and needs of the colony. In a government so new as +that of the Philippines, the same laws and punishments should not +be enforced so rigidly as in more settled parts, yet the magistrates +of the audiencia had failed to understand that their functions in a +colony of this character should be in any way different than those of +a similar tribunal in Spain. Acuña stated that there had been occasions +in which the audiencia, in possession of partial evidence in regard to +a military matter, had interfered with an action which the governor +had wished to take. He had thus been rendered powerless to exercise +sovereignty which rightfully belonged to him, and which, if put into +effect, would no doubt have been for the best interests of the colony. + +In addition to the above representations, the governor laid great +stress on the financial advantages which would be derived from a +suppression of the tribunal. He stated that the colony was short +of money, a condition of which the magistrates were well aware, +yet they always insisted on being the first to collect their own +salaries, to the exclusion, if necessary, of all other officials in the +colony. [564] With the money saved from the abolition of the audiencia, +an armed fleet could be provided for the defense of the Islands. This +was badly needed, and there was no other way of obtaining the necessary +ships. The Chinese rebellion of the year before [565] had caused +a diminution of 46,000 pesos in the commercial duties collected, +[566] and the consequent shortage of money in the treasury of the +colony furnished further reasons for the dismissal of this useless +and burdensome tribunal. Acuña admitted that the institution of +the audiencia might be successful in larger dependencies of Spain, +where the people were prosperous and where the government had an +assured income, but in the Philippines, where the citizens were poor, +with scarcely any means of support, and harassed by many magistrates +and their dependents, the audiencia had been a failure and a serious +burden. + +Acuña's concluding statement very aptly sizes up the situation and +voices his demand for the abolition of the tribunal. He wrote: + + + The difficulty which presents itself to me in this matter is + that, if the Audiencia is abolished and everything left in charge + of the governor, there will be but slow and poor remedy for the + grievances and disorders which may occur. For they must be taken to + the Audiencia of Mexico, which is so far away that the aggrieved + ones would consume both life and property before the business was + settled ... all say that they consider government by one person the + best, when he governs justly. These men (who believe in the above) + know what the governor can do without the Audiencia, and with it; + and they believe that it is better when there are not so many + to command them, for they have never seen the audiencias redress + illegal acts by the governors.... Although there is no doubt that + much of what this paper recounts occurs in other regions where + there are audiencias, it must be remembered that in this country, + which is the newest of all and more engaged in war than any of the + others; and where the hardships of conquest and maintenance are + so omnipresent; and your Majesty has little profit or advantage, + except the cargo of cloth which goes to Nueva Hespaña (sic), and + which is divided among all; and as the resources of the country are + so scant that there is no place to go in order to seek a livelihood + outside of Manila: there is much criticism in this matter, and the + people are much aggrieved at seeing themselves in the utmost part + of the world, harassed and troubled by so many magistrates and + officers and their dependents, and at having so many to satisfy; + and that matters are in such a state that he who has an auditor + for a protector may, it appears, go wherever he wishes and with + as much as he wishes, and he who has not must be ruined. [567] + + +This brings us to the administration of Governor Alonso Fajardo +(1618-1624), whose relations with the audiencia we have already +shown to have been very unpleasant. Fully as many charges were +brought against the oidores by that governor as were put forward +by the magistrates against him. According to Fajardo, the oidores +had so used their power of appointment that it amounted to virtual +dictation. Fajardo, like Acuña, found his control over the filling +of offices greatly diminished. He energetically protested against the +proposition which had been made to increase the size of the court from +four to five magistrates. He stated that the amount of legal business +which came before the tribunal did not justify an augmentation of +the number of oidores; he recommended that the magistrates should +spend their time more advantageously, and waste less in quarreling +among themselves and in wreaking their passions on their rivals. Like +Acuña, Fajardo complained against the presence of so large a number +of relatives and personal followers of the oidores, whose lust for +office had to be satisfied. [568] The magistrates had engaged in trade +through intermediaries, and had spent the time which should have +been devoted to the administration of justice in devising schemes +whereby they and their agents could get the most out of forbidden +commercial transactions, and at the same time be protected in their +illicit activities. Fajardo claimed that the magistrates had abused +their positions to such an extent that they had become an intolerable +incumbrance to the colony. + +Strife and discord between the audiencia and the governor were perhaps +more bitter during the administration of Fajardo than at any other time +in the history of the Islands. This governor accused the magistrates +of deliberately attempting in all petty and inconsequential ways to +harass him into compliance with its desires. He wrote that he had +done everything possible to keep peace with the oidores, even at a +sacrifice of the respect of the other elements of the colony. [569] +This testimony is practically identical with that submitted by +Governor Acuña in 1604. The influence of the tribunal in the matter of +appointments, judging by this and by other statements and allegations +already quoted, and by the laws themselves, must have been great. + +The tendency to fill offices with friends and relatives was +characteristic not only of the magistrates, but of the viceroys and +governors as well. More laws are to be found in the Recopilación +which guard against such abuses by governors and viceroys than by +the magistrates of the audiencia. [570] Bearing in mind, of course, +that there are two sides to the question, it is at least clear that +the audiencia was successful in one of the purposes for which it was +created--namely, that of preventing the governor from exercising entire +control over appointments. We have the confession of Governor Fajardo +here and of Governor Acuña in the preceding paragraphs that those +governors were unable to prevent the oidores from filling offices with +their own friends. Although we have been following the governor's side +of the question in these last few pages, we have noted in the preceding +chapter that the laws of the Indies gave to the audiencia the right of +participating in acuerdo with the governor in matters of appointment. + +Governor Fajardo's method of referring matters to the audiencia +for advice is interesting. Instead of submitting questions to the +acuerdo for the general advice and opinion of all the oidores, he was +said to have sought to escape the obligation of acting in accordance +with the advice given him, by asking the oidores for their individual +opinions concerning matters on which he desired advice. The audiencia +took exception to this method of procedure, alleging that he was +thus escaping the responsibilities of the acuerdo. Fajardo defended +himself against the accusation by the statement that the oidores met +together so seldom that he had been unable to submit questions to +the magistrates collectively in accordance with the law. + +Fajardo also complained against the failure of the oidores to comply +with his instructions in regard to the inspection of the provinces. He +stated that the magistrates disliked to bestir themselves from their +inactive and indolent lives amid the comforts of Manila, and no +inspections had been made during the three years prior to the date +of this letter. Philip III, without raising his voice in indignation +or decreeing any punishment upon those officials who had refused to +execute his decrees, mildly solicited that they should devote their +care and attention to the matter in the future. He remonstrated that +this was the only way in which the facts relating to the country and +to the interests and needs of its people could be ascertained. + + + These inspections are very essential, since they are based on the + relief of miserable persons, and in no way can the condition of + affairs be fully ascertained unless by means of these inspections; + and the most advisable measures can hardly be well understood, + if the condition and facts of what ought to be remedied and + can be bettered are not known. Hence I again charge you to + pay especial attention to these inspections. The Audiencia + is commanded to observe the orders that you shall give in your + capacity as president so that each auditor, when it concerns him, + may observe his obligations and go out on the inspections. [571] + + +In reply to these observations, the Council ordered Fajardo to +make recommendations for the reform of the government, stating +that such suggestions as he would make would be duly considered and +observed. [572] + +On his arrival in the Islands, Fajardo, as yet unfamiliar with the +duties and conditions of his office, expressed his unwillingness to +recommend the entire abolition of the audiencia, preferring to have +present a council which he could consult regarding the problems of +his new office. The tribunal in the Philippines was probably not so +important as were those in Spain, under the immediate supervision of +the king, "where," as he expressed it, + + + one obtains strict justice, administered by upright and holy + men--the people here considering that those who are farthest from + meriting that name are those who are farthest from the presence + of your Majesty and your royal counselors.... In what pertains + to me, I do not petition you for anything in this matter, since + in no respect can it be ill for me to have someone to consult, + and who will relieve me in matters of justice. [573] + + +Fajardo's act in forming a new audiencia after he had suppressed the +real one shows that the audiencia was essential to him in the two +particulars mentioned by him in the above letter. + +That his attitude towards this question was somewhat altered by three +years' experience as governor of the Philippines is shown in his +memorial of July 21, 1621. On this occasion Fajardo argued against +the continuation of the tribunal, showing himself to be of the same +opinion as Acuña, who, it will be remembered, contended that because +the colony was military in character, there should be one person to +control affairs, without any interference whatsoever. He wrote: + + + I beg your Majesty that while it shall last (the war) you may + be pleased to discontinue the Audiencia here, as it is this that + most hinders and opposes the administration and the government, + ... This is the enemy which most afflicts this commonwealth, and + most causes dissensions, parties, factions, and hatred between + the citizens--each auditor persecuting those citizens who are not + wholly of his own faction, especially those who extend aid and + good-will toward the governor, against whom, as it seems, they + show themselves always in league. They always make declarations + of grievances [against him] because they are not each one given, + as used to be and is the custom here, whatever they may ask + for their sons, relatives and servants; and they habitually + discredit the governor by launching through secret channels false + and malicious reports, and afterward securing witnesses of their + publicity. They even, as I have written to your Majesty, manage to + have religious and preachers publish these reports to which end, + and for his own security, each one of the auditors has formed an + alliance with the religious order which receives him best. [574] + + +He summarized as follows: + + + I consider this government much more difficult, with the auditors + of this Audiencia, than it is or would be even if there were more + war, for that war which they cause within its boundaries appears + beyond remedy, on account of their abilities and rank. [575] + + +An abundance of evidence exists on both sides of this controversy; +letters of complaint against the governor and charges against the +oidores by the governor. The vividness and apparent directness of +the charges and the apparent sincerity of both the governor and the +oidores make it extremely difficult, and, in fact, quite impossible +to decide on the basis of the evidence presented, who was right or +wrong, which charges, true or untrue, and who was really responsible +for the difficulties. It would appear that the king was prone to +sympathize with the governor rather than with the audiencia, for in +practically all cases the decision of the sovereign was adverse to +the tribunal. The fact that the governor was the royal representative +was probably a large factor in securing him the support of the home +government. Yet, on the other hand, the audiencia was in the same +sense the royal tribunal. + +Governor Fajardo affords an example of a successful military man +who, having won fame for himself in the wars of the continent, but +without legal knowledge or administrative experience, was called to the +government of a distant and isolated colony, with the responsibility of +continuing in harmonious relations with a hostile civil and judicial +tribunal on the one hand, with whose powers and functions he was +not familiar, and an equally hostile religious institution on the +other. Men of military training usually had great contempt for the +abilities and good intentions of priests and lawyers in those days, +and it was frequently evident, both by their actions and by their +own confessions, that conquistadores of the stamp of Fajardo, Acuña, +and Corcuera were little fitted for the exercise of administrative +and governmental functions, however useful they might be in adding +to the domain of the Spanish empire. + +Thus, there being present in the colony a tribunal of trained lawyers +who were at the same time capable and experienced administrators, +the governors became accustomed to rely on them for advice and +assistance, in compliance with the commands of the laws of the +Indies. As one governor of military tastes and training succeeded +another, each lacking administrative ability and experience, the +audiencia came to assume an increased share in the governmental +activity of the colony. This tendency was accentuated by the fact +that the governor was absent from the capital city on campaigns of +conquest and defense a large share of his time. Ability as a soldier +and commander was always the chief criterion for the selection of a +governor and captain-general, and military affairs were given more +attention by far than matters of administration. Spain's policy +of selecting soldiers instead of administrators for the post of +governor went far towards making the audiencia more than a court of +justice, and towards giving it a share in the executive functions +of government. This tendency was also furthered by the fact that +the audiencia came to assume the entire administration on the death +or absence of the governor, a power which it did not always exercise +well, but which it always relinquished with reluctance. + +The Salcedo affair in 1668-1670 emphasizes other differences than +those of the audiencia and the governor, yet reference should be +made to it in this connection, because, after all, the oidores were +concerned indirectly in the struggle. An examination of the data at +our command will reveal the fact that the refusal or failure of the +oidores to intervene in behalf of the governor led to his defeat and +humiliation by the commissary of the Inquisition. The audiencia might +have prevented that disaster had the magistrates been so inclined. + +Before Governor Salcedo was arrested, imprisoned and sent to Mexico +in 1668 by the commissary of the Inquisition on charges of a purely +ecclesiastical character, the two oidores, Bónifaz and Montemayor, +were consulted by the enemies of the governor as to the legality +of the proposed action. There is every reason to believe that the +entire plot was worked out beforehand with the fore-knowledge and +consent of the oidores. Inharmonious relations had existed before the +arrest of the governor between Salcedo and his associates, because +of his independence and his unwillingness to provide offices and +opportunities for commercial profit for their relatives. The exact +part which the audiencia played in the arrest of Salcedo is not known, +since the entire plot was schemed and executed under the cloak of the +Inquisition; but the fact remains that Oidores Montemayor and Bónifaz +each hoped to assume the management of governmental affairs upon the +exile of Salcedo. Indeed, the ambitions of Bónifaz were realized. The +removal of Salcedo culminated in the usurpation of the government by +Bónifaz, in the exile of Montemayor, his rival, to the provinces, and +in the complete suppression of the audiencia for a year. It is said +that Bónifaz, through a usurper, ruled beneficently and well, and that +he little deserved the sentence of death which was pronounced on him +by the Council of the Indies. The authority for the assertion that +his rule was meritorious was ecclesiastical and hence, in this case, +possibly questionable. [576] It is certain, at least, that Bónifaz and +his government were under the complete domination of the church. [577] + +It has been frequently stated in this chapter, that jealousy and +rivalry were always determining factors in the relationship of +the audiencia and the governor. A new executive, until familiar +with the duties of his station, was always glad to seek the advice +and assistance of the oidores, meanwhile permitting the audiencia +to assume many functions which belonged to him as governor. A new +governor was gracious, and agreeable to all, and we find that most +of the favorable comments made concerning governors by magistrates, +prelates, and officials were pronounced when the environment was new +to them or to the governor. When the routine of official duties became +irksome and opportunities for private profit presented themselves, +as always happened in the course of time, friction arose, and jealousy +and discord took the place of the goodwill and harmony which at first +seemed so promising. + +The most contaminating influence in the colony was the commercial +spirit. Governors and magistrates engaged in trade on a large scale, +and the churchmen also yielded to the commercial instinct. The latter +assertion will be enlarged upon in its proper place; proof of the +commercial activities of governors and magistrates has already been +given. The resentment of the oidores always led them to place every +conceivable opposition in the way of the governor when it was seen +that he was obtaining more than his fair share of profit from trade, +appointments, or indulgences to the Chinese. This led to a refusal +to ratify his appointments in many cases, to oppose him in the +acuerdo, to incite the residents of the colony against him, and to do +everything possible to make a failure of his administration. Governors +on the other hand might employ one of two methods in dealing with the +magistrates. That most commonly pursued was to allow them a liberal +share of the booty, commercial or political, the latter obtained +by permitting them to disregard the law by giving offices to their +relatives and followers, thereby purchasing their favor. The other +method was to meet their charges with counter-charges, which were +probably as truthful, though usually not so serious as those which the +magistrates made against them. The administrations of those governors +who openly opposed the audiencia and sought to keep it within the +limits of its jurisdiction as a judicial tribunal, were most notable +for their conflicts. + +The Court of Madrid was unable to remedy these defects in colonial +administration. It could and did discipline the officials by sending +an occasional visitor, or by forcing them to give vigorous residencias, +but these punishments only led to greater abuses in order to reimburse +themselves for the fines which they had to pay. Officials were able +to send away large sums of money and consignments of merchandise, +and then, after having paid liberal penalties, they returned +to Spain and lived in comfortable retirement. Acceptance of the +office of governor, oidor, corregidor, or alcalde mayor was made +with a foreknowledge that disputes would arise, enemies would bring +accusations, and punishments would be meted out, whether deserved or +not. This condition led to the abuses which have been noted, and the +recriminations and struggles between authorities. From the view-point +of these officials the Philippines were neither governed for the good +of the natives nor for the residents, nor for the honor of Spain, nor +for the propagation of the Catholic religion, but merely for the profit +and advancement of those who were on the ground to take advantage +of their opportunities. They were struggles for profit; pure and +simple contests between the officials either to get all the proceeds +possible from their offices or to keep other officials from getting +all, and thus to get a share for themselves. There were exceptions, +of course, to the conditions and circumstances just noted. Some +able and well-intentioned men came to the Islands, as came to all of +Spain's colonies, among whom may be mentioned Oidor Antonio de Morga, +the fiscal, Francisco Leandro de Viana, and Governors Anda y Salazar, +Basco y Vargas, Aguilar, Enrile, and others of the nineteenth century +when opportunities for gain were somewhat diminished. Some of these +officials erred on the side of over-strictness, and their efforts to +restrain the avarice of their colleagues and to infuse the spirit of +honesty into their administrations united the opposition and led to +battles as violent and unrelenting as those which were fought when +all parties were dishonest. + +In a chapter which deals alone with the conflicts of jurisdiction +which occurred between the governor and the audiencia, it would be +possible to arrive at an entirely mistaken conclusion. Disagreements +and differences were frequent as well as pronounced, yet the history +of the Philippines throughout the three hundred years of Spanish rule +is not a record of perpetual strife. It is, of course, understood +that no effort has been made in this chapter to describe all the +struggles which occurred in the Islands between the audiencia and +the governor. Those which have been reviewed were selected for the +purpose because they illustrate, in a general way, the subjects over +which disagreements arose, and the principles underlying them. + +We have noted, in general, that the audiencia exercised functions +and prerogatives which were not conferred upon it by the laws of the +Indies. The type of men who were appointed to the office of governor +and captain-general made inevitable the accretion of power in the +hands of the magistrates. The audiencia gradually came to assume +more attributes than the solely judicial ones. Necessity compelled +the governor in many instances to entrust the tribunal with many of +his own functions because of his lack of skill and experience as an +administrator or on account of his devotion to military affairs. In +these ways the acuerdo came to be legislative as well as advisory; the +frequent absence of the governor, or his death, led to the audiencia's +assumption of the governorship and the tribunal was always reluctant +to surrender the administrative powers once gained. + +Jealousy between officials and the resultant conflicts of authority +may be classified together as a cause of strife. These difficulties +resulted in part from the fact that the sphere of authority of each +official was not defined with exactness in the laws of the Indies, +and also because those laws were often countermanded by later +cédulas of whose existence the colonial officials were not always +aware. Spanish laws were frequently repealed and subsequently put +in force without notice; this was always a source of confusion. Then +again the exceptional opportunities for trade offered by the transfer +of the rich oriental cargoes at Manila tempted oidores and governors +alike. The trading privileges conceded by the government did not +always end when the limit of permission was reached. Some officials, +and particularly governors, could command more than their rightful +share of galleon space; this led to disputes and recriminations which +often interfered seriously with the government. We have noted that the +appointing power which belonged nominally to the governor and which was +shared by the oidores was also a source of much trouble. The knowledge +that the residencia would ultimately bring about the punishment of +guilty officials and enemies, the distance and isolation of the colony, +and the length of time necessary for communication--all these factors +made it possible for officials to commit excesses. Another cause of +discord was what might be termed the reaction of the executive against +the increased power and authority of the audiencia. This accretion +of power was due to the complete dependence of the governor on the +tribunal in administrative matters, especially at the beginning of +his term, the increasing power of the acuerdo, the superiority of the +audiencia as a court of appeals from the decisions of the governor, +and the fact that the latter always needed the presence of the +audiencia to lend legality to his government. + +It may be stated, nevertheless, that the governor actually held the +more powerful position in the colony, and that he most frequently +emerged victor in the various struggles with the audiencia. Various +reasons may be assigned for this. The governor was the personal +representative of the king, and in this capacity he had the backing +of the home government. He commanded the military forces in the +colony. The authority of the royal patronage was vested in the +governor; he was thus often able to command the support of the church +and clergy in his struggles with the audiencia. The authority over the +disposal of offices, either by sale or appointment belonged legally to +the governor, although this power was effectively disputed and often +shared by the audiencia. The governor employed the last-mentioned power +on some occasions to the extent of reforming and reconstituting the +audiencia, thus making the government entirely dependent on him. A +new governor always carried with him a more recent appointment than +those of the oidores whom he found in the colony, and aside from this +he usually possessed definite instructions embodying the royal will +on all current issues. The control of the residencias of the oidores +was usually in the hands of the governor, and lastly, the laissez +faire attitude of the Spanish government, its extreme conservatism, +and its apparent reluctance to correct the evils and abuses which +were reported to it--all these were potent factors in leaving the +balance of power as it had been, in the hands of the governor, +notwithstanding the presence of the audiencia. + +A previously quoted statement made by a famous British historian in +his description of the relative powers of the viceroys of New Spain, +and Perú, and their respective audiencias, may be used here, with +equal effect, to characterize the situation in the Philippines, and +to summarize this part of our discussion: "They (the magistrates of +the audiencia) may advise, they may remonstrate; but in the event of +a direct collision between their opinion and the will of the viceroy +(governor), what he determines must be brought into execution, and +nothing remains for them but to lay the matter before the king and +the Council of the Indies." [578] + + + + + + + +CHAPTER IX + +THE AUDIENCIA AND THE GOVERNOR: THE AD INTERIM RULE + + +The most extensive non-judicial activity in which the audiencia +participated at any time was its assumption of the provisional +government of the colony during vacancies in the governorship. Aside +from the ten different occasions on which this was done, the audiencia +very frequently assumed control of the government when the exigencies +of defense and foreign conquest rendered necessary the temporary +absence of the governor. This was true at irregular intervals during +the administrations of Governors Pedro Bravo de Acuña (1602-1606), +Juan de Silva (1609-1616), Juan Niño de Tavora (1626-1632), Sebastián +Hurtado de Corcuera (1635-1644) and Diego Fajardo (1644-1653). The +administrations of these several governors were characterized by +extensive military operations, largely in a foreign field, and the +audiencia not only took over governmental affairs but it assumed +the obligations of defense during their absence. On such occasions, +of course, the tribunal retained its exercise of judicial functions. + +Since the audiencias in Perú and New Spain assumed the government +much earlier than did the audiencia in the Philippines, and as the +laws authorizing the rule of the audiencia were promulgated first to +meet conditions in those viceroyalties, it seems advisable to inquire +into the circumstances surrounding the establishment and development +of this practice there. Having done this, we shall proceed to a study +of the ad interim rule of the Audiencia of Manila, noting particularly +the causes of the success or failure of its administration and the +effect of this practice upon the subsequent relations of the audiencia +and the governor. + +The first law in the Recopilación authorizing the assumption of the +government by an audiencia was promulgated as early as March 19, +1550. This law provided that in case of a vacancy in the office of +Viceroy of Perú, the audiencia there should succeed to the governments +of Perú, Charcas, Quito and Tierra Firme, and that the three last-named +subordinate audiencias should obey the mandates of the Audiencia +of Lima until a permanent successor to the viceroy was named. [579] +This law was proclaimed again on November 20, 1606. + +Even before the promulgation of the above law the audiencias of Lima +and Mexico had assumed control of the government in their respective +viceroyalties. Shortly after the death of Francisco Pizarro, the +conqueror, an audiencia was sent to Perú, arriving at Lima in January, +1544, in company with Blasco Núñez Vela, the first viceroy. The +rigidity and thoroughness with which this new executive enforced the +New Laws which were entrusted to him met with the opposition of the +residents of the colony, and the audiencia accordingly removed him +from his position as viceroy and suspended the operation of the code +referred to, assuming charge of affairs itself. [580] Its rule was +brief, however, for on October 28, 1544, it invited Gonzalo Pizarro, +the brother of the conqueror, into the city and turned the government +over to him, proclaiming him Governor and Captain-General of Perú. + +During the period from 1544 to 1551, until the arrival in Perú of +Viceroy Mendoza, the audiencia exercised control of governmental +affairs. It made and unmade captains-general and viceroys, irrespective +of royal appointments. It suspended the New Laws of 1542 and its +commands were obeyed. From 1550 to 1551 it governed alone. In these +incidents we note that the audiencia actually assumed the government +ad interim prior to the time of the promulgation of the law of March +19, 1550, exercising administrative as well as judicial powers, +thirty-five years before the Audiencia of Manila was created. "To +it (the audiencia) were confided in the beginning and later in +the absence of the viceroy," writes Moses, "all matters with which +governmental authority might properly deal." [581] He further states +that "the audiencia in its executive capacity, failed to justify the +expectations of the king, and a new order of things was introduced +by the appointment of a viceroy" (Mendoza, April 17, 1535) for New +Spain. [582] + +These powers were not only exercised by the Audiencia of Lima, but +also by a second tribunal which was created in 1549 at Santa Fé de +Bogotá. The latter body was endowed permanently with both judicial +and administrative powers, appealing important cases to the superior +government at Lima. This audiencia had the status of a presidency. Its +president was often captain-general, visitador, and senior magistrate, +and in exercising the functions of these various offices he was in +all respects the most powerful official in New Granada, always being +able to enforce his will over the other magistrates. At times this +official acted with entire independence of the Viceroy of Perú. [583] +The exercise of military functions by this president and audiencia +is especially to be noticed in the part they played in putting down +the Pijáo Indian revolt in 1565. [584] On the whole, however, judging +by the strife prevailing in the colony, the various struggles between +the oidores and the president, and between the audiencia or president +and the archbishop, the government could never have been considered +successful. The official corruption which became apparent as a result +of the pesquisas and residencias held during the rule of the Audiencia +of Santa Fé could scarcely have encouraged the home government to +entrust that tribunal with the administration of affairs in the future. + +The defects referred to above in connection with the government +of the Audiencia of Santa Fé did not deter the Spanish crown from +founding the Audiencia of Charcas in 1559. This tribunal, "like +the audiencias established elsewhere, exercised not only judicial, +but also administrative powers." [585] It had jurisdiction over +the neighboring city of Potosí. Again we may note the case of the +Audiencia of Santiago de Chile, which was established on August 27, +1565. Its members arrived in 1567 and the audiencia was installed at +Concepción "as the supreme court of the colony, and, at the same time, +in accordance with the royal decree, it became the administrative +head of the government. In this latter capacity it undertook to +reorganize the military forces." Later, in 1568, Melchoir Bravo de +Saravia assumed the office and functions of the governorship of Chile +(1568-1575) and the audiencia became a judicial tribunal, without +other attributes. [586] + +We may gather from these various citations taken from the early +history of the audiencias of South America that these tribunals not +only exercised the authority of governing ad interim, but that they +had permanent governmental and administrative powers as well. It +would seem, as Professor Moses has suggested, that the original +purpose of the Spanish government had been to entrust the executive +and administrative functions in the dependencies to the audiencia, and +that the endowment of the viceroys and captains-general with extensive +executive powers was an expedient to which Spain was obliged to turn +after the breakdown of the audiencia as an administrative agency. The +main fact to be emphasized in this connection is that during the +period of the promulgation of the laws which we are now studying, +the minor audiencias were exercising regular governmental powers. + +The Audiencia of Mexico, which was created in 1527 to check the +excesses of Hernán Cortés, had participated in governmental affairs +even before the events described above. This tribunal, which was +composed of four magistrates, with the notorious Guzmán as president, +conducted the residencias of Cortés and his followers, and after +obtaining control of the government, administered affairs to suit +its own convenience. [587] It was at this time, and as a result of +these abuses, Bancroft tells us, that the Spanish government decided +to establish a viceroyalty in New Spain, with a semiregal court and +regal pretensions. A new tribunal was left in charge of governmental +affairs while this reform was being inaugurated. This second audiencia +governed with great satisfaction, correcting the abuses of its +predecessor and devoting itself to various improvements. [588] + +Although the audiencia of 1528-1535 exercised the administrative +functions above mentioned, Bancroft brings forth no evidence in +support of the theory that it was ever the royal intention to entrust +the institution of the audiencia permanently with administrative +authority. He states that as early as 1530, three years after the +establishment of the first tribunal in Mexico, the sovereigns had +already decided to establish a viceroyalty. Although the audiencia +was entrusted with the government for a few years, the above facts +would seem to indicate that this was only a temporary arrangement. The +audiencia's chief attributes were judicial, and we have repeatedly +noted that the principal object of its establishment, aside from +the administration of justice, was to check the abuses of the +captain-general. + +Cortés retained his rank as captain-general after the audiencia +was established. The conqueror was in reality reduced to a secondary +position, and he was compelled repeatedly to acknowledge the supremacy +of the audiencia. His commission was recognized by the tribunal on its +arrival, but soon after its establishment the oidores exhibited a royal +order requiring that "Cortés, in all his operations, should consult +the president and oidores and act only on their approval." [589] +Even in his field, as commander of the military forces, Cortés was +subordinated to the tribunal, and the audiencia and the conqueror +quarrelled bitterly over practically all matters which presented +themselves for solution. The audiencia had been created to meet +extraordinary and unusual conditions. It was the business of the +tribunal to correct the abuses which had previously been inflicted +on the colony by Cortés, and it did so. On the arrival of Mendoza in +1535, however, the audiencia surrendered the control of administrative +affairs, and it did not assume them again, except in the regular way +in conjunction with the viceroy, until it next served to administer +the ad interim government. [590] + +The first legal provision for the succession of the audiencia +in Mexico, according to Bancroft, was contained in the royal +instructions to Visitor Valderrama, who arrived in Mexico in +1563. These instructions, says Bancroft, provided that in the event +of the death or inability of the viceroy to discharge his duties, the +audiencia should rule temporarily. [591] This was indeed timely, in +view of the death of Viceroy Velasco on July 31, 1564. The audiencia, +which was legally authorized to take charge of the government, +was under investigation when the death of the viceroy occurred, +and the tribunal was dominated during the first half of its rule by +the visitor, who, Bancroft tells us, was virtually viceroy. [592] +Valderrama dismissed two of the oidores, and sent them to Spain. The +audiencia was even less able to administer justice during the early +part of its ad interim government than it had been when the viceroy +was alive. After the departure of the visitor, however, the audiencia +inaugurated a season of proscription and reprisal which bade fair +to include every opponent of the oidores in the colony. Matters had +reached a very unsatisfactory state, indeed, when the new viceroy, +the Marqués de Falcés, arrived at Mexico on October 14, 1566. [593] + +In view of the fact that the next important law dealing with +the question of the succession was not promulgated until 1600, +a continuance of this survey of affairs in New Spain will not be +necessary. The audiencia there did not again assume the government +until 1612, and then only for a very short period. We have already +noticed the conditions under which the Audiencia of Mexico was +created, and the various occasions on which it assumed charge +of the government. Though entrusted with the government upon its +establishment, the example set by three years of its unsatisfactory +rule convinced the Spanish monarch of the unwisdom of entrusting such +governmental authority to the audiencia permanently. Therefore, a +viceroy was sent out in 1535, and it was not until 1563 that the first +law was promulgated which provided for the temporary government by +the audiencia when there was a vacancy in the office of viceroy. This +was thirteen years after such a law had been promulgated for Perú, +and fourteen years after an audiencia had been created, with all the +functions of government, at Santa Fé de Bogotá. + +The cédula of February 12, 1569, following in sequence that of March +5, 1550, provided that the faculty of filling vacancies among the +oficiales reales, in case of death or removal from office, should +rest with the viceroy, president, or the audiencia, if the latter +body were governing. [594] This, of course, was a recognition of the +principle of the assumption of the government by the audiencia. This +law was not confined in its application to any particular territory, +but was general in its scope and applicable wherever an audiencia +existed. It was later confirmed by the cédula of August 24, 1619. [595] + +The next law dealing with the subject of succession was promulgated on +January 3, 1600. It applied especially to New Spain, and it provided +that in case of a vacancy in the office of viceroy, either by death or +by promotion, the audiencia should assume charge of the government of +the provinces there, and it should execute the duties which ordinarily +devolved upon the viceroy, performing them "as he could, would and +ought to do." It furthermore ordered the subordinate Audiencia of +Guadalajara, under such circumstances, to obey and fulfill the orders +which the Audiencia of Mexico might give or send, in the same manner +as it would do, were those orders issued by the viceroy. [596] Under +a separate title on this same date the assumption of the government +of the minor dependencies of Perú and New Spain by the respective +audiencias was authorized in case of the illness or absence of the +viceroy. In other words, this law authorized in New Spain the same +procedure in case of the death or absence of the viceroy as had +already prevailed in South America for half a century. + +The above laws form a precedent for the subsequent authorization of +the Audiencia of Manila to assume charge of the government on the +death of the governor. This authorization was given on April 12, +1664, but the Audiencia of Manila, like those of Mexico and Lima, +had already assumed the functions of the executive on four earlier +occasions, and the king, in the cédula of 1664, merely recognized, +with some qualifications, a practice which had been followed in the +Philippines for half a century. A cédula dated as early as September +13, 1608, had authorized the nomination in advance by the Viceroy of +New Spain of a resident of the Islands to assume the governorship on +the death of the regular governor. [597] The intention of this law +seems to have been to guard against the ills incident to a vacancy +in the governorship by an arrangement whereby some person should be +appointed in advance and thus be ready to assume the command without +delay. Whatever the royal intentions may have been, this law was never +effective in bringing about the benefits for which it was designed. In +fact, this particular provision met with general dissatisfaction +in the Philippines, and the audiencia, acting in accordance with +the custom observed in other parts of Spain's dominions, continued +to govern on the demise of the governor, ruling two or three years +on some occasions, until the arrival of a temporary governor, sent +from New Spain. So flagrantly was the prescribed method of procedure +violated in the Philippines that in 1630, Visitor Francisco de Rojas +y Ornate reminded the Council of the Indies of the existing law (that +of 1608) and recommended that henceforth on the death of a governor +the audiencia should have nothing to do with administration, but that +one of three persons secretly designated by the viceroy should take +over the government at once, thus eliminating all possibility of the +interference of the tribunal. [598] + +The irregularities and inconveniences arising from the inefficacy +of the law of 1608 led to the promulgation of the cédulas of January +30, 1635, and of April 2, 1664, and to the enactment of the consulta +of September 9, 1669. These regulations applied exclusively to the +Philippines, and they legalized the intervention of the audiencia +in governmental affairs on the death of the governor. The first of +these admitted the right of the audiencia to administer political +affairs, but ordered that military defense should be in the hands +of a person appointed in advance by the Viceroy of New Spain. The +cédula of April 2, 1664, ordered that the audiencia should serve +temporarily during vacancies in the governorship until the temporary +appointee of the viceroy should arrive. This law further prescribed +that the audiencia should assume charge of political affairs while the +senior magistrate should take over the military command. He was to see +that the forces and defenses of the Islands were adequately kept up, +and that the soldiers were disciplined; he was authorized to command +them in case of insurrection or invasion. The consulta of September +9, 1669, above referred to, re-enacted the cédula of April 2, 1664, +but in addition it specifically ordered that the viceroy should not +designate a temporary governor until news of the death of the regular +incumbent was received, and then that no resident or native of the +Philippines should be appointed. [599] + +The Council of the Indies, by the law of September 29, 1623, had +already sought to guard against any undue assumption of power on +the part of the audiencia by ordering that when the viceroy was +absent from the capital city, but within his own district, he should +still retain his status as governor, and neither the audiencia nor +any of the oidores should interfere in governmental affairs. [600] +This law was not applicable to the Philippines alone, but it was of +general validity, throughout Spain's dominions. The control of the +audiencia in governmental affairs was only to become effective when +the governor was absent from the colony, or incapacitated through +sickness or death. Otherwise the governor's sphere of authority was +to be recognized by the tribunal. + +A variety of laws exist in the Recopilación prescribing the duties and +conduct of the audiencia when it had charge of governmental affairs, +and defining the relationship which should exist between the oidores +under such conditions. The magistrates were ordered to proceed +harmoniously and moderately both in the execution of governmental +affairs and in the administration of justice, not erring either on the +side of excessive severity, or of undue moderation. They were to devote +special attention to the increase and care of the royal revenue during +these times. [601] The right to grant encomiendas, essentially the +function of the governing authority, was conceded to the audiencia +when it acted in the capacity of governor. All such concessions +ultimately had to be confirmed by the king. On these occasions, +also, the audiencia filled vacancies and made appointments. However, +the oidores were warned against discharging officials and vacating +offices in order to fill them with their dependents and friends. [602] +All appointments made by the audiencia were to become void after the +arrival of a regular governor, unless they had subsequently received +the royal confirmation. When a vacancy arose, it was the duty of the +senior magistrate to propose a candidate, but the actual filling +of the place was to be effected by the acuerdo vote of the entire +audiencia. [603] + +The laws provided that the audiencia, as a body, should exercise +two distinct types or classes of powers when in charge of the +government. These were designated as governmental and military. The +exercise of these functions was assigned respectively to the audiencia +as a body, and to the senior magistrate, individually. While an +effort was made to insure the fair and equal participation of all +in government in case of a vacancy, the senior magistrate assumed +the position and honors of the executive, though not granted all the +governor's powers. [604] In the functions and duties of administration +all the magistrates were to participate. As noted above, each +was to have a share in the exercise of the appointing power, the +administration of colonial finances, participation in the acuerdo, +and in every other function except defense, which was entrusted to the +senior oidor. In this capacity, the oidor was always the most prominent +figure in the government. Among those who distinguished themselves +through the exercise of this power were Rojas, Morga, Alcaraz, Bónifaz, +Coloma, Montemayor, and above all, Anda. Although these men were +assisted and supported by their colleagues of the audiencia, and the +parts played by the latter were not without importance, the periods +of rule of the audiencia are always identified with the names of the +senior oidores, while those of the ordinary magistrates are forgotten. + +A complete understanding of the governmental functions and authority of +the audiencia, and the relation of the latter to the other departments +of government under these conditions may best be obtained by a review +of the circumstances and conditions of the audiencia's rule during +vacancies in the Philippines. The first occasion which in any way +approached the temporary rule of an audiencia in the Philippines was +in 1593, after the murder of Governor Gómez Pérez Dasmariñas. Pedro +de Rojas, who had been a magistrate of the audiencia when it was +suppressed in 1589, was at that time sole judge, with the additional +rank of lieutenant-governor and asesor, standing next to the governor +in authority. [605] After the death of Gómez Pérez Dasmariñas, +Rojas had occupied the governor's chair less than a year when he was +succeeded by the deceased governor's son, Luís Pérez Dasmariñas, +who became governor on the authority of a royal order found among +the papers of his father, whereby he was given the power to name +his successor. [606] His tenure seems to have been only temporary, +however, for as soon as news reached the court of the death of the +elder Dasmariñas, Francisco Tello de Guzmán was appointed permanent +governor and an audiencia was sent to the Islands, arriving at Manila +in 1596. [607] Meanwhile Rojas was succeeded as lieutenant-governor and +asesor by Antonio de Morga. According to Montero y Vidal, Dasmariñas +turned over the government to Morga in 1595, but it is more probable +that Morga assumed the temporary governorship when Dasmariñas was +in Cambodia and elsewhere fighting against the Dutch. In fact, +this conclusion is confirmed by Zúñiga. [608] At any rate, Morga +administered both governmental and military affairs on several +occasions when the various governors were absent from the Islands, +engaged in expeditions of conquest. + +On the suppression of the audiencia in 1589, the administration of +justice remained entirely in the hands of the lieutenant-governor +and asesor. This position was first occupied by Rojas, and later by +Morga, who succeeded to the same judicial duties and enjoyed the same +prerogatives as had formerly belonged to the audiencia. In the absence +of the tribunal, therefore, they assumed functions which elsewhere +were carried out by the audiencia on the death of the governor or +viceroy, partly because they had taken the place of the audiencia, and +partly because they were lieutenants-governor. After the audiencia was +re-established in 1598, Morga continued in charge of military affairs +when the governor was absent or dead, while the audiencia administered +the government, not by virtue of any laws relating especially to the +Philippines, but seemingly because this was the general practice in +all of Spain's colonies. Morga's defense of Manila against the Dutch +in 1600 has been referred to in an earlier chapter. + +Not only did the audiencia do much in defense against outside enemies +at this time, but it carried on offensive operations against them +in the Moluccas after the deaths of Governors Tello and Acuña. The +Japanese who were residing in the city also caused trouble, and the +audiencia was under the necessity of taking repressive measures against +them. [609] In 1606, while Governor Acuña was absent from the colony, +the fortification of Cavite, the equipment of a fleet and the defense +of the city were undertaken and carried out successfully by Oidor +Almansa. [610] Then on the death of Governor Acuña the audiencia +succeeded to the government and it managed affairs from June 24, +1606, to June 15, 1608, with Almansa in charge of military affairs. + +The various governmental matters with which the audiencia concerned +itself during this period are shown in a memorial which it sent +to the king on July 6, 1606. After reporting the death of Governor +Acuña, and its succession to the government, the audiencia took up +questions of finance and commerce. It stated that the money in the +treasury was insufficient for the necessary expenses of the colony, +owing to the extraordinary outlays which had been necessary to defray +the costs of the wars and expeditions which had been undertaken +at this time. The audiencia suggested that the galleon returns be +increased from 500,000 to 1,000,000 pesos a year. It was pointed out +in this connection that the total cost of transporting goods from +Manila to Acapulco, including freight and duty, aggregated thirty +per cent of their value, leaving to the merchants a profit of only +350,000 pesos. The oidores admitted that this arrangement might have +been ample and satisfactory when the colony was small or when there +was peace, but at that time, when the inhabitants of the colony +had been forced to expend so much of their revenue for defense, a +larger return was necessary. [611] Further recommendations were made +regarding commerce and the management of the galleons. It was said +that their great size encouraged smuggling; in order to avoid this, +and at the same time to contribute to the revenues of the colony, +it was urged that the ships should carry cargo to the limit of their +capacity, instead of being restricted to an insufficient amount. Large +reductions of salaries of ships' officers, soldiers, and sailors were +urged. The oidores did not think it advisable to forbid the crews and +officers of the galleons to trade, however, since their interest in +the cargo would encourage them to be obedient and loyal. [612] The +audiencia concluded its memorial with an appeal for the reform of the +freight and customs charges on the galleon. The abolition of all fixed +duties was recommended; instead, it was suggested that these duties +be graduated to meet the regular expenses of the colony as they were +incurred year by year. This recommendation was made on the basis of +the theory that duties should not be levied for the benefit of the +king's exchequer, but only for the support and maintenance of the +merchants and inhabitants of the colony. [613] This memorial would +seem to indicate that the audiencia, when acting in the capacity +of governor, exercised considerable authority and assumed entire +responsibility for the commercial and financial affairs of the colony. + +Zúñiga, after describing the success of Oidor Almansa in putting down +an insurrection of the Japanese, characterized the administration of +affairs by the audiencia during this period as follows: + + + The Royal Audience conducted themselves with great approbation in + the civil administration, until the year 1608, when Don Rodrigo + Vivero of Laredo, who was named by the Viceroy as Governor ad + interim, arrived at Manila, and having had great experience in + the management of the Indians in New Spain, he availed himself + of it on this occasion, giving instructions to that effect to + the chief judges, and other ministers of justice. He governed + with much satisfaction for one year, when he delivered up the + insignia of his office, and returned to Mexico. [614] + + +Vivero arrived in the colony on June 15, 1608. Vivero was the first +of the military governors appointed from New Spain. Under this and +succeeding arrangements, these governors exercised absolute control +of military affairs, while the audiencia concerned itself solely +with matters of government, the senior magistrate, of course, not +participating in military affairs. + +Vivero was relieved in 1609 by Governor Juan de Silva, who had +a permanent appointment and served for seven years. Silva's +administration was characterized by his military exploits, chief +among which was his defense of the colony against the attacks of the +Dutch pirate, Wittert, and subsequently of Spielberg. These frequent +expeditions gave the audiencia many opportunities to assume charge of +affairs, and after Silva's death in the Moluccas the tribunal ruled +from April 19, 1616, to June 8, 1619. During a part of this time +Andrés de Alcaraz, the senior magistrate, exercised the duties of +captain-general, successfully defending the city against the Dutch. On +September 30, 1617, the office of military governor devolved on +Gerónimo de Silva, who was especially designated for the post by the +royal order of March 20, 1616. [615] He was not an oidor, however, +but had served as governor of Ternate, having recently returned from +the Moluccas. [616] + +While the post of captain-general devolved upon Silva, the audiencia +retained control of administrative affairs in the colony until Alonso +Fajardo y Tenza, the next royal appointee, arrived on June 8, 1618, +to enter upon the duties of governor and captain-general. As we have +already seen, Alcaraz was relieved of his military responsibilities on +September 30, 1617, and was at once obliged to submit to residencia. In +this trial he was compelled to answer for his failure to warn the +Chinese traders, who usually approached the Islands at that time of +the year, of the presence of the Dutch. As a result of his oversight +in this matter, a large quantity of merchandise, including provisions +for the city, had fallen into the hands of the enemy. He was also held +accountable for the disaster which had occurred to a portion of the +Spanish fleet in the battle of Playa Honda through the appointment of +the son of one of the oidores to its command. [617] Alcaraz, senior +oidor, who was legally responsible for defense, was compelled to +answer for the failure of this inefficient commander. The choice of +a relative of one of the oidores was a violation of the laws of the +Indies. [618] Although Oidor Alcaraz seems to have acquitted himself +well of his duties as commander of the military forces, seven galleons +were lost in an expedition to the Moluccas during the rule of the +audiencia, and considerable difficulty was experienced in fixing +responsibility for this disaster. Alcaraz claimed that Silva was +answerable; the latter maintained that the audiencia was to blame, +and the audiencia disclaimed responsibility because, it alleged, +"the audiencia was entrusted with government and not war." In an +investigation ultimately made in 1625, Silva was deprived of his +office and was prevented from leaving the Islands. + +Governor Fajardo has left us a number of comments and criticisms of +the work of the audiencia as governor. His observations are timely and +appropriate, since the tribunal had been in charge of the government +for two years preceding his rule, and he was brought intimately in +touch with the deeds and mistakes of the previous administration. [619] +Fajardo's comments relate to the abuse of the appointing power by the +audiencia, and the failure of that body to provide adequately for the +defense of the colony. In support of the former charge, Fajardo said +that the magistrates had appointed several officials for life, which +was forbidden by the laws, since the audiencia was only permitted +to fill offices for the period of its rule. [620] The audiencia had +also infringed upon the prerogatives of the governor by the permanent +bestowal of encomiendas. Fajardo stated that when he arrived in the +Islands he found all the offices and encomiendas filled with friends +and dependents of the oidores. Thus as a direct consequence the success +of his administration was impaired by the presence of officials who +regarded him, their chief, with hostility. He cited an instance in +which similar infringements upon the rights of the viceroy by the +Audiencia of Mexico had been nullified by the royal veto, and he urged +that some definite cédula or law should be promulgated relative to +these matters in the Philippines. [621] + +The difficulty of fixing responsibility for the loss of the galleons +in the expedition to the Moluccas led Fajardo to criticise the +practice of allowing the audiencia to assume control of affairs +during vacancies. He regarded it as a cumbrous proceeding which could +only result in chaotic and incompetent government. No better results +could be expected when a body of magistrates and lawyers undertook +to rule an isolated colony, and especially when one of them assumed +responsibility for military affairs, which could not be successfully +carried out by any but a military man. He emphasized the necessity of +locating responsibility for every department of government in a central +authority. He recommended the designation of "two military men of such +standing and ability that, when the governor and captain-general is +absent, they might succeed to those duties." [622] He considered it +advisable that during vacancies, as well as when the regular governor +was present, authority should rest with one person and not be scattered +or divided among a number of magistrates. + +Gerónimo de Silva had been given a commission from the viceroy to +assume the post of captain-general, and upon the demise of Fajardo in +1624, he took charge of military affairs, while the audiencia retained +the government. Silva's responsibility for the loss of the ships in +1617, already referred to, as well as for other disasters in 1624, +caused him to be removed from the command and confined in Fort Santiago +where he remained until released by the new temporary governor, +Fernando de Silva, who arrived in 1625. The latter commanded the +military forces, while the audiencia administered the government. [623] + +Of far-reaching importance was the action of the audiencia in 1624, in +nullifying the action taken by the former governor, Alonso Fajardo, +relative to the construction of a seminary for Japanese priests +and students. This edifice had been partially constructed when the +audiencia took over the government. It is interesting to note that +the oidores, although not collectively responsible for the defense +of the colony, took a stand on this occasion in a matter which had +to do with the common security. The objections of the oidores were +significant. The location of the seminary within three hundred feet +of the wall was thought to be unwise in view of the danger of a +Japanese revolt. The Japanese emperor had signified his disapproval +of Christianity on many occasions by banishing and torturing numerous +friars who had gone to Japan from the Islands. He had forbidden the +worship and propagation of Christianity in his empire. There were at +that time rumors of an impending conquest of China and the Philippines +by the Japanese, consequently the audiencia did not wish to invite +the emperor's wrath upon the colony by attempting to proselyte +his subjects. The audiencia thought best to stop this before the +displeasure and enmity of the Japanese were incurred. Fear of the +loss of trade with China, dread of an alliance of the Japanese with +the Dutch, making probable a concerted attack on the Philippines, +and the danger of an outbreak of the Japanese already within the +colony in conjunction with an attack by those without, were all +considerations which induced the audiencia to take responsibility +upon itself in this matter. [624] + +The official correspondence of the governor following immediately +upon the administration of an audiencia is always valuable as showing +the state of affairs under the preceding rule. That of Fernando de +Silva coincides closely with the correspondence of Governor Fajardo +in charging the audiencia with many misdeeds, chief among which were +the abuse of the appointing power and the concession of encomiendas +without authorization. Silva, on his accession to the governorship, +also found the finances of the colony in a bad condition, great waste +having been incurred in their administration. There had been neither +peace nor order; the oidores had quarreled among themselves, and +residents were leaving the city as a consequence of this turmoil. The +oidores had, without cause, dismissed all the officials appointed by +Fajardo, filling their places with their friends. [625] The following +account of the excesses of the audiencia was given by Silva: + + + Under pretext of the arrest and removal of Don Geronimo de Silva, + Licentiate Legaspi, ... exercised the office of captain-general, + carrying the staff of office and making them lower the banners + to him, and address him as "your Lordship," and his wife as + "my lady." He immediately appointed his elder son to the post of + sargento-mayor of this camp, and his younger son to a company, + while another company was assigned to a relative of Auditor Matias + Flores y Cassila (also an oidor). Others were assigned to brothers + of the said Don Matias, the fiscal, and other auditors, except + Don Albaro (Messa y Lugo), who refused to have anything given to + his household. Upon seeing the illegality of these appointments, + I issued an act declaring them vacant and restoring those posts + to those who had held them before. [626] + + +That the king had not entirely lost confidence in the audiencia, +notwithstanding the above complaints, is attested by the instruction +issued by the Council of the Indies to Francisco de Rojas y Ornate, +royal visitor to the Philippines. [627] This communication, which was +dated August 17, 1628, approved the stand which the audiencia had taken +in insisting that all money obtained from Chinese trading-licenses +should be put into the royal treasury and accounted for by the +oficiales reales before it was spent. It appears that the governor +had hitherto used this money as an extra fund upon which to draw for +the expenses of the colony. The king also approved the attitude of +the audiencia in denying to persons in New Spain the right of using +the Manila galleon for the shipment of their goods, and in refusing to +allow money sent by them to the Islands to be invested in the Chinese +trade. Silva contended that the audiencia had no right to intervene +in either of the above matters, but in this Silva was not sustained, +Rojas y Ornate being instructed to see that Governor Tavora respected +the action of the audiencia in the two particulars referred to. [628] + +The audiencia assumed management of political affairs in 1632, on +the death of Governor Juan Niño de Tavora, but neither the audiencia +as a body, nor the senior oidor personally were entrusted with the +military command. This responsibility devolved on Lorenzo de Olazo, +the maestre de campo, who had been designated by the viceroy of New +Spain to assume temporary charge of military affairs. He was succeeded +the following year by Juan Cerezo de Salamanca, who had been sent from +Mexico by the viceroy as soon as the death of Tavora was announced in +that city. Cerezo served ad interim for three years, and during his +administration the audiencia acted solely as a judicial body, not +attempting to interfere in governmental or military affairs. [629] +It was under the rule of this governor that important expeditions +were undertaken against the Moros in the South, and the first fort +and settlement were made at Zamboanga. + +It is to be especially noted that in the appointment of Olazo and +Cerezo in 1632 and 1633 respectively, the senior oidor was deprived +of the control of military affairs. This had been done also in +1617 and in 1624 when Gerónimo de Silva, governor of Ternate, had +taken charge of military affairs during vacancies in the regular +governorship. Temporary appointments had been made on two different +occasions by the Marqués de Cerralbo, Viceroy of New Spain, once in +the sending of Fernando de Silva after the death of Governor Fajardo, +and on this occasion, when Cerezo de Salamanca took the place of +Governor Juan Niño de Tavora, after the audiencia had governed +a year. Experience had shown that the assumption of the military +command by the senior oidor was not productive of the most satisfactory +results. It was not to be expected, of course, that a magistrate would +administer military affairs with the skill of a captain-general, and +we have seen that various governors recommended that the practice +should no longer be continued. So it came about that the law of +1608 was revived, and the viceroy appointed a temporary governor to +assume control of military affairs, the audiencia being restricted +to judicial and administrative functions. In 1633, on the accession +of Cerezo de Salamanca, the audiencia was deprived of the right of +intervention in the last mentioned activity, and was confined to its +judicial duties alone. This was confirmed by the cédula of January +30, 1635, which relieved the Audiencia of Manila of all jurisdiction +over military affairs during vacancies, ordering that they were to +be administered by a temporary appointee of the viceroy. [630] + +Nevertheless, considerable opposition to this method of filling +vacancies in the governorship had developed within the colony. This +is shown in various protests which came from the Islands from time +to time. These are set forth with great clarity in the correspondence +of the governors. Corcuera, in a letter written to Philip IV on June +30, 1636, stated that these temporary governors had allowed persons +in Mexico to make large fortunes out of the Philippine trade, and +that the governors had devoted most of their time when in Manila to +serving as agents of the residents of Mexico. Corcuera, however, +seemed to regard the audiencia as incapable of government, for he +claimed that in the brief term of a year in which the tribunal had +ruled, three years prior to his accession, it had run the colony into +debt from 80,000 to 100,000 pesos. He charged the oidores with the +same dishonest practice as had been alleged against Governor Fajardo, +namely, that they had issued due-bills in payment of debts and had +bought them up later at less than their face value, realizing the +full amount on them upon their presentation to the treasury later. He +stated that these warrants were not only bought by the oidores, but +by practically all the officials of the government. During Cerezo's +term a sum in excess of 100,000 pesos was said to have been paid out +to officials as usury. [631] + +Corcuera presented a scheme of reform designed to remedy the evils +resulting from the succession either of the audiencia or of an +irresponsible military commander to the ad interim governorship. He +recommended that the regularly appointed governor should be assisted +by five commissioners, who should be military men, holding the +respective commands of Fort Santiago, Cavite, the Port of Manila, +Formosa, and the Parián. These were to be eligible in the order named +in case of a vacancy. This plan, like so many of the schemes of the +soldier governors, only took cognizance of the military side of the +governor's office. The marked tendency of these commanders was to +continually underestimate the administrative and political phases +of their positions. The plan of Corcuera was not adopted, however, +and the viceroy continued to appoint temporary governors to succeed +the audiencia when it assumed the government ad interim. + +Governor Diego Fajardo, on July 10, 1651, wrote a letter to the +king protesting against the policy of appointment which was then in +force. He said: + + + I should be unfaithful to Your Majesty if I did not advise you + of the inconveniences arising from the appointment of governors + by the Viceroy of New Spain; the practice of sending money from + Mexico for investment in this colony has continued and increased, + to the exclusion and deprivation of the merchants of these + Islands.... Investments have been made by the viceroys through + the agency of others. [632] + + +Fajardo urged that the audiencia should be permitted to retain the +government as it had done formerly. He showed the advantages accruing +to the colony from a continuity of policy which would result from the +rule of the oidores. He showed that the incursions of the viceroys +and residents of Mexico upon the galleon trade would more likely be +checked by the oidores than by any other agency, adding moreover that +this particular matter should be attended to at once since the life and +prosperity of the colony depended on the control of the Acapulco and +Chinese commerce by the merchants of Manila. [633] A similar argument +was presented by Governor Manrique de Lara in a letter written July 19, +1654. This governor urged that a commission of magistrates, familiar +with the needs of the colony through experience and long residence, was +better fitted to rule for the common good than a stranger, appointed +by a distant viceroy, coming to the Islands as most of the temporary +governors had done, with the sole purpose of exploitation. [634] + +Probably the sentiments of the residents and officials of the +Philippines were best and most effectively expressed on this subject in +the letter written by the audiencia to the king on July 19, 1654. [635] +The audiencia, on this occasion, described the inconveniences +resulting from the appointment of a resident of the Islands by the +Viceroy of New Spain. It was alleged that these appointees, being +already established in the Islands as merchants, officials, lawyers, +and even as soldiers, spent all their time in the service of their +own special interests. The commercial abuses of these appointees were +said to be notorious. The presence of so many relatives, friends, and +business connections made it impossible for these temporary rulers to +officiate properly as presidents of the audiencia, or to administer +the affairs of the government with diligence and impartiality. + +As a result of the general dissatisfaction in the colony, which was +reflected in the above letters, and in compliance with the repeated +requests previously made for reform, the law of April 2, 1664, was +proclaimed, and followed by the consulta of September 9, 1669, which +has been already referred to. These laws still recognized the right of +the Viceroy of New Spain to appoint governors temporarily, but these +were no longer to be designated in advance from the residents of the +Islands. While the senior magistrate was to have charge of military +affairs, he was to seek the advice of such military officials as +were stationed in the colony, "exercising very particular care and +vigilance in all that pertains to military affairs, endeavoring to +keep the presidios well stocked and provided with all the defenses +necessary for whatever occasion may arise." This, then, was a return +to the practice which had prevailed prior to September 13, 1608, +when the Viceroy of New Spain was first authorized to appoint a +temporary governor in advance of the death of the incumbent. Although +the audiencia assumed the government with partial legal justification +from 1593 onward, the period from 1664 to 1719 may rightly be said +to constitute the era of the audiencia's authorized rule. + +An occasion for the exercise of the new law occurred in 1668, +when Governor Diego de Salcedo was arrested and imprisoned by the +commissary of the Inquisition. In accordance with the law of April +2, 1664, just referred to, the audiencia was entitled to assume the +government until the arrival of the provisional governor from New +Spain. A dispute arose between the two most eligible oidores, Francisco +de Coloma and Francisco Montemayor y Mansilla, for the honors of the +military command. Coloma had been commissioned as magistrate of the +Audiencia of Manila before Montemayor, who maintained his claim to the +headship of military affairs on the grounds that he had arrived in +the Philippines earlier than Coloma. [636] These two officials were +unable to agree as to their respective rights, and Juan Manuel de la +Peña Bónifaz, junior magistrate of the audiencia, took advantage of +the discord to further his own interests. Put forward by the commissary +of the Inquisition and by the ecclesiastical element of the colony as +arbiter in the contention between his two colleagues, he solidified +his own power until he was able to usurp the entire government. He +issued orders to the soldiers, compromised with Coloma, exiled +Montemayor, enacted financial and governmental measures, appointed +his friends to office, and in general acted the part of a dictator, +combining in his own person all the functions of the military, +judicial and executive departments. [637] The audiencia, of course, +was entirely suppressed. Certain ecclesiastical authorities state +that he governed with greater consideration and fairness than many +of his predecessors, and that his rule was more just than that of +the audiencia had been. [638] The spirit of his administration was +particularly favorable to the churchmen, by whose favor he gained +office, and by whose aid he was able to retain his position. His +successor, Manuel de León, was appointed regular governor as soon as +news of the arrest of Salcedo reached Spain. Bónifaz was apprehended +and sentenced to pay the customary penalty for treason, but death +intervened and defrauded the king's justice. It may be considered, in +a sense, that Bónifaz conferred a service upon the colony by forcibly +putting an end to the disputes which had been prevalent between the +rival oidores whose claims could not have been settled for three +years at least--the time necessary for the Council of the Indies to +transmit to the distant colony a ruling on the points at issue. + +The audiencia next took over the government in April, 1679, on the +death of Governor León, and it retained control of affairs until the +arrival of Governor Juan de Vargas Hurtado in September, 1678. The +rule of the tribunal on this occasion was without sensational +features. Oidor Francisco de Coloma, in whose favor the Council of +the Indies had declared in the dispute described above, assumed charge +of military affairs, serving as captain-general until his death. His +seniority was acknowledged by Montemayor, who was called back from +exile to a place in the audiencia. [639] + +The inefficiency of the audiencia as a governing agency as shown +in the episode just described was surpassed by the state of utter +impotency to which the tribunal was reduced during the Pardo +controversy in 1684. Though at first successful in exiling the +archbishop, the audiencia and Governor Vargas were later completely +undone by the intriguing of the new governor, Curuzaelegui, with +the prelate to discredit the previous administration. The struggle +ended in the restoration of the prelate, the residencia of Vargas +and the appointment of a new tribunal which was calculated to be more +subservient to the commands of the new governor and the prelate. This +audiencia assumed the government after the death of Curuzaelegui on +April 17, 1689, with Alonzo de Ávila as chief executive. [640] + +The events of the Pardo controversy prepared the way for a period of +rule by an audiencia in which the entire government was dominated +by the ecclesiastics. Archbishop Pardo and his successors were +the real governors and the victory of the church over the various +officials of civil administration lowered the moral tone of the entire +government. Corruption flourished and the vigor of the administration +decayed. [641] It is clear that the depravity of the civil government +proceeded largely from the weakness of the audiencia and its submission +to the governor. The latter was under orders from no less an authority +than the king, himself, to put an end to the disputes between church +and state in the colony and to bring about peace; it also happened +that the situation in the colony at that time caused the governor to +lean towards the side of Pardo and his supporters. The audiencia was +entirely disregarded both by Governor Curuzaelegui and by the court, +which may be attributed in some measure to that policy of the Spanish +government previously alluded to--that of sacrificing principle in +order to preserve harmony. There is no doubt but that the weakness +and inefficiency of the audiencia during these two controversies +contributed largely to the subsequent decision of the court to deprive +the audiencia of the right of governing ad interim. + +The last occasion on which the audiencia regularly assumed the +government of the Islands, and one which demonstrated still more +conclusively the inefficiency of the audiencia as governor, occurred +in 1715, after the death of Governor Lizarraga. His rule had been +uncommonly quiet and peaceful, and the period of extortion and strife +which succeeded it furnished a marked contrast to that governor's +administration. The audiencia ruled from February 4, 1715, to August +9, 1717, with Oidor José Torralba as senior magistrate. The reports +sent by Torralba to the court during the two years of his service +as military commander show that the audiencia as a body played a +very small part in the government. This was again the rule of a +dictator. We have seen in a former chapter that Torralba was held +accountable in his residencia for a deficit of 700,000 pesos which +developed during this period; [642] it is difficult to understand +how this could have been possible had the senior magistrate concerned +himself solely with military affairs. Concepción states that Torralba, +inflated by his position, and ambitious of getting absolute control +of the government, drove from office the oidores who dared to oppose +him. [643] He refused to honor the royal cédula of April 15, 1713, +which ordered the reinstatement of Oidor Pavón to his place as senior +oidor since the fulfillment of this order would have deprived Torralba +of his command. + +Torralba reported great progress in the repair and restoration of +royal and municipal warehouses, hospitals, convents, and churches +during his administration. The wall of Manila was re-built and new +bronze guns were cast and placed thereon. As acting captain-general, +Torralba inspected Fort Santiago, and, "noting grave needs both +in construction and in the morale of troops," made the necessary +repairs, reforms and corrections. [644] He concerned himself also +with the promotion and appointment of military officials. These +latter acts were vigorously resisted by the maestre de campo, and by +other military officials, as encroachments on their authority. They +ultimately sought to bring about the nullification of all Torralba's +"unjustifiable acts of interference within the military sphere." [645] +Whether animated by a sincere desire to see the natives justly treated, +or rather by his natural dislike of the friars, Torralba intervened +on various occasions for the protection of the Indians against the +encroachments and abuses of the churchmen on the encomiendas and +in the native towns. These acts were carried out in the name of the +audiencia, and in accordance with the law, ultimately meeting with +the approval of the Council of the Indies. [646] + +A great deal of dissatisfaction, both at the court and in the colony, +had resulted from the audiencia's assumption of the government at +various times since 1664. We have already noted that the restoration +of this authority to the audiencia was attended by the disgraceful +quarrel between Coloma and Montemayor and the usurpation of Bónifaz in +1668. The Pardo controversy did not produce a favorable impression of +the activities of the audiencia. Torralba's dictatorship in the name +of the audiencia from 1715 to 1717, conspicuous for the huge deficit +in which it culminated, demonstrated the unfitness of the audiencia +to be entrusted with the rule of the Islands. + +Indeed, it may be said that the various experiments made by the +monarchs during the seventeenth and early eighteenth centuries for +the purpose of perfecting a system whereby the governorship could +be satisfactorily filled ad interim had failed to demonstrate or +develop any authority capable of maintaining harmony or decent +government. Co-operation among the authorities of the colony was +practically unknown. The royal disapproval was passed upon practically +all the official acts of these interim administrations. The thirst +for personal glory, and the desire for private gain invariably +induced some official who was stronger than his contemporaries to +assume control of affairs; thus the government of the colony was made +repeatedly to subserve personal ends, and civil and political life +was characterized by its strife and discord. The probabilities that +the temporary administration of the audiencia would not be entirely +successful had been recognized from the beginning, and in order to +guard against its misrule the king had authorized the appointment of +a temporary governor by the Viceroy of New Spain. It was unavoidable, +however, that the audiencia should govern until the arrival of this +official. For a time the alternative was tried of allowing the maestre +de campo to assume the military command, but this resulted in such an +incompetent rule that the former prerogatives of the audiencia were +restored. Whether the audiencia was capable of governing successfully +or not, it certainly had the power to make or mar the government of +any other person or authority, whether he was regularly appointed by +the king, or chosen temporarily by the viceroy. + +The church, as represented by a succession of triumphant archbishops, +had exercised the preponderance of power and authority throughout the +forty years of strife, ending with the death of Governor Bustamante. We +need not be concerned here with the various struggles and disagreements +with governors and audiencias, but the fact remains that the church +was the only institution existing during this period which was able to +present a solid and united front to its enemies, or which manifested +any symptoms of power, unity or royal approbation. The culmination +of ecclesiastical power was virtually reached on October 11, 1719, +when Governor Bustamante was murdered by emissaries of the church +and Fray Francisco de la Cuesta, Archbishop of Manila, assumed the +vacant governorship. + +Zúñiga, the Dominican historian, says that the archbishop declined the +governorship on this occasion, but was subsequently prevailed upon +to accept it. [647] It is certain that the tribunal was in no state +or condition to take charge of affairs; its administration had been +discredited by the murder of its protector, its senior magistrate had +been proved an embezzler in his residencia, and the remaining members +of the tribunal were not qualified to remain in office. Oidores +Villa and Pavón, removed by Torralba and Bustamante, were restored +by the archbishop, and were content to recognize him as president +of the audiencia. Each of them had his own claims to the position of +acting-governor and had Cuesta not occupied the governorship with their +consent, these oidores would either have been languishing in banishment +as punishment for having resisted the prelate, or they would have +been struggling for the honors of a position occupied by a pretended +mediator, as on former occasions. So there can be no doubt that it +was best for all concerned that the church was powerful at this time; +the colony had had enough of strife and murder and there was urgent +need of some authority with sufficient power to bring about peace. It +is sufficient to say that the audiencia renounced its claims to the +government, and, according to Zúñiga, who devotes an unusual amount +of space to this important epoch in the ecclesiastical history of the +Islands, the people were very content with the archbishop's rule after +the injustice and oppression of Bustamante. [648] It may be noted that +the archbishop exercised complete authority over the audiencia, even +to the extent of restoring oidores who had been unlawfully dismissed, +and of acting as an intermediary between magistrates. He was master +of the situation and his interim rule was preferred by the sovereign +and by the people to that of the audiencia. + +The royal order of September 8, 1720, legalizing the government of +the prelates, applied not only to the administration of Cuesta, but it +established a precedent for the temporary rule of four prelates. [649] +In compliance with this decree, three sealed envelopes (pliegos de +providencia) were sent to the audiencia to be placed unopened in +the archives of that tribunal, and the seals were to be broken only +on the death of the governor. These envelopes were accompanied by an +order from the king, directing that the person mentioned in the first +envelope should be recognized as temporary governor. In case of his +absence or incapacity to serve, the second envelope was to be opened +and the directions contained therein were to be followed, and if +these could not be complied with, the third envelope was to be opened. + +No further necessity for the observance of this law of succession +arose until after the death of Governor Gaspar de la Torre, when, +on August 15, 1745, the first envelope was opened in the presence of +the audiencia. The post of archbishop being vacant at this time it +became necessary to follow the directions prescribed by the second +envelope. It was found that Fray Juan de Arrechedera, Bishop of +Nueva Segovia, had been designated as the governor's successor. The +audiencia relinquished the control of affairs into his hands and he +governed for a period of five years. + +It would seem that the ecclesiastical calling of this governor in no +way incapacitated or hindered him in the execution of his duties. His +administration was characterized especially by various measures taken +for the defense and fortification of the Islands. He suppressed several +insurrections in Ilocos and Cagayán, dispatching military forces under +the command of alcaldes mayores against the revolting natives. He +repelled several Moro raids and made treaties of peace with the Sultan +of Sulu. [650] There is no evidence of discord between the governor and +the audiencia during this period. Although Archbishop Trinidad arrived +and took possession of his see on August 27, 1747, he made no attempt +to take charge of political affairs. [651] He permitted Arrechedera +to continue as governor for three years, handing over to him + + + a royal mandate, for the absolute expulsion of the Chinese + [which was never] ... carried into execution, the interest of + the Governor being too deeply involved in the suspension of it, + the Chinese paying him a contribution for his forbearance. The + Archbishop found that Arrechedera was strongly attached to this + nation, and he became so far a convert to his sentiments on this + subject that he did not put the royal order in force.... This + seems to have been the only error committed by this illustrious + prelate during the time he held the government. In all other + respects his conduct reflected the highest honour on him. [652] + + +The third time the government was taken over by a prelate was in 1759 +on the death of Governor Arandía. On this occasion it became necessary +to open the third pliego de providencia. The metropolitan see of Manila +and the diocese of Nueva Segovia being vacant, Bishop Espeleta of Cebú +was the senior prelate of the Islands. Shortly after the accession +of Espeleta, Manuel Rojo, the new archbishop, arrived, commanding +Espeleta to vacate the governorship at once. Rojo refused, citing the +precedent established by Bishop Arrechedera. Espeleta appealed to the +audiencia for support, but the oidores were unable to agree on the +question, two of them, Calderón and Galbán supporting Rojo, and the +other two remaining in favor of the retention of the governorship by +Espeleta. The question was left to the fiscal, Francisco Leandro de +Viana, who advised that the matter should be carried to the Council +of the Indies for final settlement. [653] It transpired, therefore, +that Espeleta retained the governorship from 1759 until 1761, and he +did very effective work in repelling the raids of the Moros, who had +been ravaging the provinces with impunity for some time. + +The prosecution of Dr. Santiago Orendaín occupied a large share of +Espeleta's attention during his administration. This controversy +should be noted here because it illustrates the relations between +the audiencia and an ecclesiastical governor. Orendaín had been +the advisor (asesor) of Governor Arandía, and was held responsible +for the repressive measures taken against the church during the +administration of the latter. The rule of an unscrupulous prelate +presented an excellent opportunity for revenge and Orendaín's +prosecution was unanimously demanded by the ecclesiastical element of +the colony. The magistrates also welcomed the opportunity to retaliate +upon a hitherto successful, but unpopular, rival. The fiscal brought +action against Orendaín, who sought refuge in an Augustinian convent, +whereupon the civil authorities forced an entrance into the asylum, +seizing Orendaín and imprisoning him in Fort Santiago. The provisor +of the ecclesiastical court excommunicated Magistrate Villacorta, +who had exculpated Orendaín in his trial, but the ban was disregarded +by the audiencia. A division over the question arose in the tribunal, +and matters were assuming a threatening aspect, when the authorized +appointment of Governor Rojo arrived. Espeleta gave up his office, +and the first act of the new governor was to restore Orendaín to full +favor as his counsellor. The affair of Dr. Orendaín illustrates a phase +of Spanish colonial administration which is too characteristic to be +left unnoticed here. Aside from the influence which Orendaín exercised +over Governor Arandía, his persecution shows the measure of personal +rancour which even a prelate might put into his administration, +spending practically two years in the pursuit of revenge. In this he +was supported by the audiencia. In this affair neither the church nor +the audiencia were animated so much by motives of right and justice +as they were influenced by personal feelings. + +The rule of Archbishop Rojo from 1761 to 1764 was a notable one +in the history of the Philippines. The principal event during +his administration was the capture of Manila by the British. This +furnished the occasion for the resistance of Oidor Simón de Anda y +Salazar, in the name of the audiencia, both to the English and to +the archbishop who had ordered his surrender. These events show +the complete incapacity of an ecclesiastical governor of Rojo's +type and personality to fulfill the military requirements of his +position. In the operations of Anda we note how a man of decisive +action, energy, courage, and loyalty was able to force the issue and +deprive the archbishop-governor of the executive functions which +he had assumed legally, but which he was unable to dispense. This +episode illustrates, furthermore, the general disregard of the laws +which placed the governorship in the hands of a man who was unfit +for its exercise, showing again that in the selection of a person to +carry out the duties of governor the military side of the situation +could not be disregarded. + +Anda, at the time of the accession of Rojo, was a junior magistrate +in the audiencia, having arrived in Manila on July 21, 1761. [654] +The British squadron entered Manila Bay on September 22, 1762. The +British subsequently attacked the city, the fall of which seemed +imminent on account of the neglectful state into which the defense had +fallen. [655] The proposition was made to the archbishop-governor by +Fiscal Francisco Leandro de Viana and the audiencia that Oidor Anda +should be dispatched to the provinces with the title of Governor +and Captain-general of the Islands for the purpose of maintaining +and defending them under the sovereignty of the Spanish monarch, +[656] and "in order that he might keep the natives quiet in their +Christian instruction and in their obedience to the king." [657] The +archbishop refused to accede to this proposition on the grounds that +"neither he nor the Audiencia had any authority to create a governor +and captain-general, which was the proper privilege of his Majesty; +and that it was enough to give him the title of visitor of the land +... and ... of lieutenant of the captain-general." [658] This was done, +therefore, and Anda left on the night of October 3, 1762, with these +titles and powers. + +It is important to note that Anda was not given the title of governor +and captain-general, but that as oidor he was commissioned visitador +de tierras and teniente de gobernador y capitán general. [659] The +authority to designate oidores as visitors of the provinces was +a function regularly exercised by the president of the audiencia +and authorized by the laws of the Indies. [660] It appears from the +above that Anda was sent to the provinces to defend them against the +English. This was the main object as stated in the original proposition +of the audiencia. Zúñiga states the purpose of the departure of Anda to +have been "to maintain the islands in obedience to the King of Spain," +[661] and this is corroborated by the testimonies of Anda, [662] +Viana [663] and of Rojo, [664] himself. In view of these facts, Rojo's +failure to co-operate with Anda, his proneness to listen to those who +counseled surrender, his complete reversal of tactics in repeatedly +summoning Anda to abdicate, and his willingness even to betray Anda +into the hands of the British are almost inexplicable. [665] + +Anda organized a provisional government in his capacity as +lieutenant-governor. He disregarded the repeated summons of the +archbishop to return to the city and surrender to the British. In +a letter to the archbishop, dated October 21, 1762, Anda justified +his position and made clear that he was not acting on the basis +of any delegation of power as captain-general, which authority, +he acknowledged, still rested with Rojo. He stated that he had been +appointed visitor-general of the provinces "with the real mission +of protecting them if the English captured Manila;" in case this +happened he was to solicit the aid of prelates, religious and alcaldes +mayores in defending the Islands. He complained that Rojo had already +"endeavored to influence the prelates, religious and natives to +submit to the British." [666] He urged that Rojo should desist from +his opposition to his efforts, pointing out the great desirability +of their co-operation. + +When Anda became convinced of the infirmity of Rojo and the uselessness +of further attempts at co-operation with him he completely changed +his attitude towards his own position and towards the question of the +defense and government of the Islands. While he had hitherto recognized +Rojo as governor and captain-general, he now assumed the position that +the archbishop was a prisoner in the city and he therefore refused to +recognize the orders of the latter. Anda issued a call to all loyal +inhabitants to defend the honor of Spain. He ordered the alcaldes +mayores to pay no heed to the dispatches and commands issued by the +archbishop or the British in the city. He set himself up as governor +and captain-general of the Islands, subsequently moving his capital +to Bacolor, Pampanga. He obtained possession of the funds of the +royal treasury, which had been sent to the province of Laguna when +the English had appeared, and he turned a deaf ear to the demands of +the archbishop that the money should be returned to the city in order +that it might be applied on the payment of the four million-peso war +indemnity imposed by the victorious British. Anda enlisted a military +force aggregating eight thousand men, and he successfully prevented +the enemy from doing more than capture Cavite, Pásig, and a few other +places of minor importance. Notwithstanding the demands of the British, +who had placed a price of four thousand pesos on his head, and the +entreaties of the archbishop, Anda resisted until he was assured that +peace was definitely arranged between Spain and Great Britain. [667] + +The justification which Anda offered for his conduct was as follows: +the regular governor and the audiencia (excepting himself) were +prisoners in the city of Manila; their positions and places +were therefore vacant, and Anda, as the sole oidor who was not +incapacitated, should accordingly succeed and had succeeded to the +management of political affairs and defense. He was both audiencia +and governor. In support of his contention that he himself was the +legally constituted audiencia, he cited the law promulgated by Philip +III on August 14, 1620, declaring that "in some of the audiencias +of the Indies it has happened, and it might happen still that the +oidores being absent and ... only one remaining, ... in such cases the +audiencia is to be conserved and continued with only one oidor." [668] +Anda had been a legally appointed oidor on special delegation to +the provinces when the city fell into the hands of the British; +the governor and the remaining oidores had become prisoners and +were civilly dead; being the only magistrate of the audiencia yet on +duty, he was at once audiencia and governor. He stated that he would +surrender his office to the archbishop and audiencia when both had +regained their liberty, but he warned the archbishop that if he went +to the extreme of surrendering the Islands, he (Anda) "would in no +wise obey so unjust and absurd a treaty," and furthermore stated that +if the British wished to rule the country, they would have to conquer +it first. He expressed the conviction that neither the archbishop nor +any other authority except the king had the power to surrender the +Islands. [669] In these arguments and sentiments Anda was supported +by the fiscal, Francisco Leandro de Viana, and by Oidores Galbán and +Villacorta, who subsequently escaped from the city and joined him in +the provinces, aiding him in his resistance to the invaders. + +Although the British had agreed in their terms of capitulation that +the audiencia should continue in the exercise of its normal powers +in Manila, [670] that tribunal and the archbishop were virtually +prisoners; the idea of their recognition therefore appears almost +an absurdity. The oidores acted as members of the council of +war which considered the proposition made by the British for the +surrender of the city, but if we may trust the testimony of Viana, +the archbishop, influenced by his favorites, Monroy and Orendaín, +forced the magistrates to sign the articles of capitulation. Viana +says that in the various matters which came up for solution after the +city had surrendered, the oidores were formally consulted, but the +archbishop followed his own counsel, or that of his favorites. [671] + +The position of Rojo after the escape of the fiscal and the oidores +was an exceedingly unpleasant one. The English commander complained +that the prelate and the audiencia had failed to keep the agreement +which had been made between them; in escaping, the fiscal and the +oidores had violated their oaths; the indemnity had not been paid; +the provinces had not surrendered and Anda was still continuing his +resistance. The sack of the city was threatened. These conditions made +Rojo redouble his efforts to betray Anda and to get possession of +the treasure which had come on the patache, "Filipino". The British +offered remission of tribute to all natives then in insurrection who +would surrender. Anda was charged with responsibility for the danger +with which the city was threatened. He was said to have prevented +the fulfillment of the treaty between Rojo and the British. To this +Anda replied that he had not been a party to the treaty. The state +of perpetual worry in which Rojo was kept brought about his death +on January 30, 1764. Even before this he had practically lost his +status as governor and the British were treating with Anda for the +surrender of the Islands. [672] This continued until the legitimacy +of the position of Anda was recognized by Governor Torre. [673] + +A statement of the above facts aids in clarifying our view of +Anda's position. It certainly can be said that there was neither an +audiencia nor a governor with sovereign powers in Manila; this lack +furnished a reasonable basis for Anda's claims. However clearly it was +established that a vacancy existed in the governorship, his position +would have been sufficiently tenable had it been based solely on the +grounds that the archbishop had delegated him as lieutenant of the +captain-general, with military powers. The archbishop-governor had +granted him that title and those powers for the very purpose for which +he had utilized them, namely, for the defense of the Islands against +the British. In view of the support which was extended to Anda in his +contention that he was governor and captain-general as long as the +archbishop and the regularly constituted audiencia were prisoners, +it is not easy to understand why it was necessary for him to justify +himself by advancing the claim, first, that he was the audiencia, +and, second, that he was the governor because he had the authority +of the audiencia. The only accountable reason for this was probably +the necessity of nullifying the commands of the archbishop which +were being issued from the captured city. He may have felt that such +measures were imperative in order to gain and retain the respect of +the natives and provincial officials who were not under his immediate +influence and who were consequently more independent and inclined to +be insurrectionary and riotous. Yet, it is hardly possible that the +legal arguments advanced in support of his claims were understood by +this class. + +It does not appear, moreover, that Anda was entirely justified in his +argument by the laws. No doubt he was right in regarding himself as +the audiencia, on the basis of the laws cited by him. However, the +law did not at that time authorize the succession of the audiencia +to a vacancy in the governorship. The cédulas of September 8, 1720, +and of August 15, 1731, were still in force in the Philippines, and +by virtue of these and by the special cédula promulgated in 1761 in +favor of Rojo, an ecclesiastic was authorized to act as governor +in case of a vacancy. According to law and precedent, the post +vacated by the archbishop-governor should have been filled by the +bishop of Nueva Segovia, and by the bishop of Cebú, respectively. It +is true that neither of these ecclesiastics put forth any effort +to maintain their legal rights, probably for the reason that they +realized their incapacity to organize and conduct the defense of the +Islands as well as Anda had done. The audiencia had not succeeded to +the government since 1715; it had been forbidden to do so in 1720 and +subsequently. It is therefore difficult to understand how Anda could +have seriously advanced the claim that in his capacity as sole oidor +he should succeed to the government. + +Aside from the opposition of the archbishop, there does not seem to +have been any great difference of opinion on the question of whether +Anda could rightfully claim the prerogatives of the audiencia and +governorship at the same time. Rojo paid no attention to the legal +arguments advanced by Anda, but contended that both the governor and +the audiencia were still in full possession of their powers and in +complete enjoyment of their liberties within the city. No comment +is to be found on Anda's contention in the royal dispatches which +were sent in answer to his reports. It is important to note, however, +that after the death of the archbishop, and after the restoration of +peace, the fiscal was of the opinion that the government should go +to Fray Ustáriz, bishop of Nueva Segovia. [674] In this opinion he +was seconded by Oidor Galbán. + +It would seem that Anda was supported in his resistance to Archbishop +Rojo and the British largely on grounds of expediency. This is +clearly brought out in a letter which Fiscal Viana wrote to the king +on October 30, 1762, stating his opinion that: + + + Since the Audiencia and governor are unable to exercise their + duties, Anda, as the only active and unembarrassed minister who is + able to retain his place under the authority of Your Majesty, has + declared himself governor, royal audiencia and captain-general. It + is evident that, being a prisoner, the archbishop cannot be + governor and captain-general, and it is equally certain that + the government and office of captain-general falls back on the + audiencia and the oldest oidor. [675] + + +This argument savors of expediency and sound practicability rather +than of interest in the legal quibble. Had Viana been convinced of +the legality of Anda's claims he would not subsequently have supported +Ustáriz. Viana contended that neither the archbishop nor the audiencia +enjoyed sovereign powers when they were prisoners. Anda, on the other +hand, was in such a position that he could utilize his legal powers; +he used them to good advantage and effectively, therefore he was +entitled to recognition. + +Aside from the question of legality, it is important to note that Anda +was the only person who was able to exercise sovereign powers during +this time. It is certain, moreover, that he prevented the Islands +from falling into the hands of the British and that he maintained the +continuity of the sovereignty of Spain in the Islands from 1762 to +1764. During his rule in the provinces he exercised practically all +the functions of a normal government. Aside from the management of +military affairs he administered the finances and levied tribute. As +noted above, he contrived to obtain possession of the royal treasure +which had been sent to Laguna; he was consequently better equipped +financially than he would have been otherwise, and better than his +rivals in the city. His finances were also augmented by the favorable +circumstance of his capture of the "Filipino" which was returning +from Acapulco with the proceeds of the sale of her former cargo. [676] + +Other functions of a semi-military and governmental character were +exercised by Anda in his capacity as acting governor. In some of these +matters he was assisted by the fiscal and audiencia in the latter part +of his administration. He regulated the prices of provisions in order +to prevent them from attaining prohibitive proportions. He did all that +he could to further and encourage interprovincial trade. He issued +orders in regulation of wages. In order to discourage drunkenness +he forbade the sale of nipa wine except in small quantities. He +discouraged the importation of wine from Laguna. He took measures +to prevent the Chinese from counterfeiting or chipping coins, and +he declared what should be legal tender. He forbade the shipment of +provisions to the beleaguered city and refused to permit the natives +under his jurisdiction to shelter or otherwise assist an Englishman. He +prevented secular priests from communicating with the archbishop. In +order to encourage service in the army he exempted natives from the +polo, or labor tax, and he also made certain exceptions to the general +rule for the payment of tribute to offset the decree of the British +who had offered wholesale exemption from the payment of tribute +in order to attract the natives. Anda issued very severe orders to +prevent looting and extortion on the part of his soldiers. Because of +the alliance between the Chinese and the British, Anda was obliged +to take repressive measures against the former. He forbade games of +dice, cock-fighting and card-playing so as to raise the morale of +the natives, to prevent thefts and to encourage law and order. He +prescribed the death penalty for theft. Anda's rule was little less +than a dictatorship, with all the powers of government centered in +himself and in his immediate advisors. [677] + +It has already been pointed out that when Anda's resistance gave +certain assurances of success, the fiscal, Viana, and the oidores, +Galbán and Villacorta, escaped to his capital, attached themselves to +his cause and assumed a share in his government. Anda was willing +to recognize them as magistrates of the audiencia, and as such +they officiated. Villacorta made some trouble for Anda, however, +by claiming the right to act as governor on the ground that he was +Anda's senior in the audiencia. This was generally recognized, but +Anda refused to accede to his demands, and the matter was dropped +for a time. [678] Anda found that his colleagues, Viana and Galbán, +were of the opinion that Bishop Ustáriz was legally entitled to the +office of governor, but there was some doubt in their minds whether +he should be invited at that time to act as governor. Anda consulted +the Bishop of Camarines and that prelate expressed his willingness +to submit to the decision of the audiencia. The Augustinians and +Dominicans were of the same opinion, but the Jesuits and Franciscans + + + told him, that in the then (sic) situation of the islands he alone + could preserve the public tranquillity, and on that account he + ought to retain the supreme authority. This diversity of opinion + was not very gratifying to Señor Anda, and although the troops + were in his favour, he was by no means desirous of having recourse + to violence. [679] + + +Shortly after the death of Archbishop Rojo, Anda received dispatches +informing him that peace had been restored between Spain and England; +[680] at the same time the British received orders to evacuate the +city. Now that Anda's presence in the field as military commander was +no longer absolutely required, a three-cornered fight arose among the +supporters of Villacorta, Ustáriz and Anda. Each of these contenders +was able to advance a reasonable claim. Villacorta was certainly +the senior magistrate, and thus he had a better right legally to the +office than Anda. Ustáriz was bishop of Nueva Segovia and as such, was +entitled to the governorship according to the most recent law. "Anda +had in his favor the circumstance of having defended the islands, +and of having prevented the English from advancing to the northern +provinces; and, above all, he commanded the troops, who were attached +to him, and this served to check the pretensions of the others." [681] + +The arrival of the interim governor, Francisco Xavier de la Torre, +put an end to these disputes. He had been dispatched to the Islands +by the Viceroy of New Spain with the title of teniente del rey +(king's lieutenant), and in accordance with his instructions he +assumed the temporary government on March 17, 1764, which he retained +until the arrival of Governor Raón in July, 1765. Anda's residencia +was taken by his successor, and it was found that the finances of +the colony had been faithfully and honestly administered during his +administration. He was able to account for all of the money taken +from the "Filipino", turning over two million pesos of these funds +to the new governor, accounting for the balance. Anda was recalled +to Spain, where he was presented at court, receiving the personal +thanks of the sovereign. [682] + +Torre's accession to the governorship marks the discontinuance in +the Philippines of the practice of allowing the archbishop to take +charge of the government during vacancies. On no subsequent occasion +in the history of the Islands did an ecclesiastic take over the rule +of the Islands. [683] It would seem that this plan of succession was +abandoned quite generally throughout Spain's dominions, though there +is no instance in which the rule of a prelate ever resulted quite +so disastrously as in the Philippines from 1762 to 1764. Torre's +accession marks the return to the practice introduced in 1608 and +followed from time to time throughout the history of the Islands. + +The audiencia, as a tribunal, concerned itself no further with +the temporary government of the Islands. On September 30, 1762, a +new cédula authorized the appointment of a teniente del rey by the +viceroy of New Spain, and the succession of this official was ordered +in case of a vacancy. This law was repromulgated on two subsequent +occasions, the first time on November 23, 1774, and again on July 2, +1779. [684] The plan of succession which it authorized was followed +quite generally in the subsequent history of the Islands, until the +separation of New Spain in 1821 rendered impossible the appointment of +a teniente by the viceroy. Anda's government was the last occasion on +which the audiencia, in reality or in theory, ever attempted to rule +by its own right, except by association with the teniente del rey, +with whom it acted in the usual advisory capacity, as authorized in +the above-mentioned laws. + +By the Royal Instruction of Regents of 1776, the regent was authorized +to act as president of the audiencia during the absence of the +governor, and in case there were no regent, the senior magistrate of +the audiencia was to take his place. [685] This law was confirmed +by the cédula of August 2, 1789, which ordered that viceroys and +presidents, on going outside of their capitals, "should assign to +the regents the faculties for the dispatch of the most important +and immediate affairs." [686] A subsequent law, dated July 30, 1779, +stated that "these important and immediate affairs" did not include +"the duties and functions of the captain-general." Again, the royal +order of October 23, 1806, [687] commanded that the audiencia should +in no case take control of the government when there was a vacancy, +but that the name of the temporary governor should be contained in +an envelope which was to be opened on the death of the governor, or +on his absence from the district. In case provision had not been made +in this way, it was ordered that the government should be taken over +by the ranking military officer of the colony, if he were higher than +the grade of colonel; if not, the regent or decano should be temporary +president, governor and captain-general, without ceding the exercise +of any of the functions of this office to the audiencia. [688] This +law was suspended by the royal order of July 12, 1812, and by the +decree of November 2, 1834, which ordered that the segundo cabo, or +lieutenant-commander of the king's forces should succeed the governor +and captain-general. [689] It is important to note that these laws +were applicable throughout the Spanish colonial empire. Subsequent +vacancies in the Philippines were filled by military men, and the +audiencia refrained from interference with the government. + +Considering the question in its broadest phases, it cannot be said that +the audiencia administered the ad interim rule with a great degree of +success. This method of filling vacancies in the governorship failed +for a number of reasons. Owing to the divided composition of the +tribunal, the rivalry and personal jealousy of the magistrates and +the perpetual quarrels and struggles which arose as a consequence, +the periods of its rule became wild scrambles for power in which +the strongest survived and reaped all the benefits of office. By +their example, the oidores stimulated others to wrong-doing, and in +their efforts to secure advantages for themselves they oppressed the +residents, Spanish and native, with the burden of their misrule. They +did not scruple to indulge in dishonest practices whenever occasion +offered; indeed, they went out of their way to seek such opportunities. + +Perhaps the gravest defect of the rule of the audiencia lay in +its failure as an executive, owing to the divided character of +its composition. There was much jealousy, but neither unity nor +centralized responsibility. In their governmental capacity the oidores +frequently enacted measures and made recommendations of a statesmanlike +character, although they did not always succeed in enforcing them. The +magistrates were neither experienced legislators nor trained soldiers, +and the latter defect seems to have been a cause of considerable +dissatisfaction, especially among the military classes. These were +naturally jealous of an assumption of military power by lawyers, whose +commands they refused to obey. Nevertheless it must be conceded that +such individual oidores as Morga, Alcaraz, Almansa and Anda acquitted +themselves of their military duties with great credit when called upon. + +The reform which gave the government to the churchmen was designed to +obviate the defects expressed above. It was believed that a prelate +would not be open to so many ventures of a questionable and mainly +commercial character. Moreover, the archbishops in Mexico and elsewhere +had fulfilled the duties of the executive on former occasions with +a fair degree of success. The church was the most powerful, highly +centralized and unified institution in the Philippines at the time +when both the audiencia and the governorship were weakest. The +ecclesiastical authority had repeatedly triumphed over the civil +government, and the former gave promise of being able to control +matters more effectively in the future than the audiencia had done in +the past. The rule of the churchmen did not remedy matters, however, +except that it produced harmony through the exercise of force. During +the rule of the archbishops, with the exception of that of Rojo, the +audiencia was so completely dominated by the ecclesiastical power that +the tribunal could scarcely be considered a factor in the government. + +There were various defects in the rule of the ecclesiastics. Of these, +perhaps the most prominent was their failure to meet the military +requirements of the position. Because of the natural incongruity +existing between ecclesiastical and military duties, they were +obliged to delegate the command of the troops to military leaders, +who thus exercised an influence never realized by them during the +rule of the audiencia. Archbishop Rojo was unwilling to trust the +problem of defense to any other person, though unable to cope with +the situation himself. Hence Anda forced his way to the front because +he was fitted to command and Rojo was not. As administrators and +executives the prelates were as efficient as any others, but they were +never able to reconcile successfully the opposition of the civil, +political, and commercial elements, who were displeased with the +rule of an ecclesiastic. Surprising as it may seem, the government +of a prelate was usually most unsatisfactory to the churchmen and +religious authorities. If the prelate-governor were a friar, his rule +was resented by the members of all the rival orders. If he were a +secular priest, he was opposed by the friars of all the orders. + +The failure of Rojo was enough to condemn the practice of permitting +ecclesiastics to assume the government, but aside from that, there was +a more significant and fundamental reason. The increasing political +authority of the church at that time, both in the colonies and in the +mother country, its widespread and almost irresistible dominance over +temporal affairs, demanded a radical change of policy whereby this +dangerous ecclesiastical power could be checked. The rule of Anda, +though technically based on that law which gave the succession to +the tribunal, was not a typical instance of the government of the +audiencia, nor did that period present all the features of such +a rule. The influence of the audiencia as a body was practically +nil. Anda governed because he was a strong man, not because he was +sole oidor or because he was lieutenant-governor. His government was +virtually a dictatorship, based on military power, but, nevertheless, +just and benevolent. His extra-judicial actions met with the king's +approval, because they were efficient. + +History will show that the Audiencia of Manila assumed temporary +charge of the government because the distance and isolation of the +colony rendered such a course necessary and because it was thought +that the audiencia was best fitted to assume control. The government +by the audiencia in the Philippines was not an isolated incident, +but was typical of the entire Spanish colonial empire. Owing to the +conditions which we have noted, and judged by the standards which +constitute good government, the rule of the audiencia was neither +successful nor satisfactory. Its most far-reaching defect, as far as +the relations of the audiencia and the governor were concerned, lay +in the wholesale exercise of administrative and military functions by +the magistrates of the audiencia. This impaired the quality of their +services as impartial magistrates and contributed in most cases to an +insatiable thirst for power. The magistrates were loath to surrender +the exercise of these governmental activities on the accession of +the succeeding governor, the audiencia displaying a marked tendency +to continue in the exercise of administrative control. This, then, +was a decided cause of strife and dissension between the audiencia +and the governor. + + + + + + + +CHAPTER X + +THE AUDIENCIA AND THE CHURCH: THE ROYAL PATRONAGE + + +The audiencia was frequently brought into contact with the +powerful ecclesiastical organization in the Philippines. We have +already referred in this book to some of the notable occasions of +this relationship. Before the establishment of the audiencia the +church exercised an extensive authority in governmental affairs. The +ecclesiastics aided the civil government by administering justice in +the provinces when there were no civil courts. The prelates of the +Islands, the provincials of the religious orders and even the friars +advised the governors and provincial officials on Indian affairs +and the administration of the encomiendas. When the advice of the +church was solicited by the home government as to the advisability of +removing the audiencia, the suggestions of Fray Alonso Sánchez and +Bishop Salazar went far toward bringing about a final solution of +the problem of government in the Philippines. [690] These were some +of the ways in which the influence of the church was impressed upon +the audiencia. + +The creation of an audiencia, with judicial and advisory functions, +put an end to the exercise of these extraordinary powers by the +church and tended to confine its activities to the ecclesiastical +field. Nevertheless, the prelates continued to advise the governors +in administrative matters throughout the entire history of the +Islands. Their influence was especially strong in matters relating +to the natives, their government and protection, and the archbishops +even went so far at times as to give advice on questions of foreign +policy. Most of the time this counsel was solicited and was well +received. From 1650 onwards, as we noted in the last chapter, the +church waxed exceedingly strong in the Philippines and the prelates not +only advised, but dominated governors and audiencias. In 1668, Governor +Diego Salcedo was unseated, imprisoned and exiled by the commissary +of the Inquisition, while a pliant magistrate of the audiencia took +over the government and administered affairs in a manner entirely +satisfactory to his ecclesiastical supporters. The period from 1684 to +1690 showed the weakness of the audiencia when opposed by a powerful +prelate allied to a hostile governor. And in 1719 the church reached +the climax of its power by bringing about the murder of a governor, +and then succeeding him, overcoming every opposing element in the +colony, including the audiencia. From that time onward the prelates +governed during vacancies in the governorship--something which the +audiencia had failed to do. Finally, in 1762, Simón de Anda y Salazar +assumed the reigns of government and the obligations of defense, +an act which was sanctioned technically because he was an oidor but +really because he was an able man, capable of accomplishing what the +church had failed to do. + +In this chapter it is not our purpose to review the historical facts of +the relations of the audiencia and the church or the growth of clerical +influence over the audiencia. These matters have been referred to in +earlier chapters. It is rather the design to study here the influence +which the audiencia, in its turn, exercised in ecclesiastical affairs, +noting whence it derived its authority and what was the nature of +its powers. + +The audiencia was established as the ultimate local authority, +co-ordinate with the governor (or the viceroy in New Spain or Perú), +for enforcing the laws of the royal patronage. [691] Not only was +it authorized to act as a tribunal in these matters, but also to +officiate as an active executive agent. It is clear that although +the governor was the royal vicepatron, he was not expected to act +alone and unsupported in dealing with the powerful and often hostile +ecclesiastical authority. In former chapters of this treatise +attention has been given to the considerations which forced him +to share the duties and responsibilities of government, finance, +commercial supervision, and even military affairs with the audiencia; +the support of that body was even more necessary in dealing with the +powerful ecclesiastical organization. + +The authority which the audiencia exercised jointly with the royal +vicepatron was based upon the law ordering + + + our viceroys, presidents, oidores and governors of the Indies + to see, guard, and fulfill (the laws), and in the provinces, + towns, and churches (in the Indies) to see that all laws and + pre-eminences which pertain to our royal patronage are guarded + and fulfilled, ... which they will do by the best means that may + appear to them convenient, giving all the orders and instructions + necessary to the end that all (the instructions) that we may give + shall be carried out in due form; and we pray and charge [692] + our bishops and archbishops, deans, and ecclesiastical chapters of + the metropolitan and cathedral churches and cathedrals and all the + curates and occupants of benefices, clerics, sacristans and other + ecclesiastical persons, and the provincials, guardians, priors + and other religious of the orders, in so far as it is incumbent + upon them, to guard and fulfill them (the laws and preëminences + of the king) and see them fulfilled and obeyed, conforming with + our viceroys, presidents, audiencias and governors as much as + may be appropriate and necessary. [693] + + +In accordance with this law the audiencia exercised the right of +intervention in practically all matters to which the authority of +the vicepatron extended. Foremost among these were the supervision +and administration of ecclesiastical revenues, the administration +of vacant benefices, the extension of missionary influences and the +construction of churches and monasteries. The audiencia, moreover, +had authority over the reception and installation of prelates, +parish priests, and regulars, and their removal for cause. In all +these matters the audiencia was responsible directly to the king and +made reports thereon; in fact, it may be said that the tribunal, +in co-ordination with the vicepatron, served as a connecting link +between the church in the Islands and the royal council in Spain. + +An analysis of the relations between the audiencia and the church +will show that the tribunal exercised two kinds of ecclesiastical +powers. These may be regarded respectively as executive and +judicial. Although it was in their union that the audiencia exercised +its most extensive and far-reaching power of ecclesiastical control, +it is advisable for several reasons that these powers should be +considered as distinct from one another. They will therefore be +discussed separately in this treatise. In this chapter we shall +consider only the first of these powers--the one which was most +directly concerned with the maintenance of the royal patronage--namely, +the authority which the audiencia exercised co-ordinately with the +governor in the supervision and control of the church in the colony. + +Although there appears to have been no conflict of authority between +the governor and the audiencia over their mutual relations under the +laws of the royal patronage, it is advisable at the outset to settle +one difficulty which may present itself in this connection. Many of +these powers which the audiencia exercised were conferred upon the +vicepatron exclusively. Indeed, a study of the laws alone would suggest +the possibility of a conflict of jurisdiction between the governor and +the audiencia in matters relating to the royal patronage. In actual +practice, however, the governor shared the powers of ecclesiastical +supervision with the audiencia, and their relations were harmonious +in all matters appertaining thereto. Indeed, there is record of fewer +conflicts between the audiencia and the governor in this field of +activity than in any other. + +It would seem that the intervention of the audiencia in ecclesiastical +matters developed in the same manner and for the same reason as +it came to have authority in matters of government, finance and +military administration. The manifest impossibility of the successful +administration of the many affairs of civil and ecclesiastical +government by the governor (or viceroy in New Spain and Perú) +made inevitable the division of power, which, though real, was not +always formally recognized by the laws. The audiencia was the only +body available with which the governor (or viceroy) might share these +responsibilities. Its judicial character, and the talent, training, and +administrative ability and experience (wider than that of the governor +himself) of its members made it the logical institution to which +the executive should naturally turn for advice and assistance. Not +only did he require counsel, but the moral and physical support of a +tribunal of weight and authority was invaluable in dealing with the +united forces of a powerful ecclesiastical hierarchy. This is the +best possible explanation of that gradual assumption of authority by +the audiencia which seems to have been so indefinitely, yet freely +conceded, and which apparently grew up neither in conflict with the +law nor yet entirely in accord with it, but which, now recognized, +and now ignored, was never denied or prohibited. + +The cédula of October 6, 1578, in explanation of the various forms of +address in the expedition of royal cédulas, was designed to make clear +the respective jurisdictions of the vicepatron and the audiencia +in ecclesiastical as well as in other governmental affairs. It +ordered that + + + when our royal cédulas refer in particular to the viceroys, they + alone shall attend to their fulfillment without other intervention; + if they designate the viceroy, or president or audiencia, they + shall all attend to their execution in accordance with the opinion + of the greater part of them that are in the audiencia, and the + viceroy or president shall not have more than one vote like the + rest that may be present, provided that this do not contravene + the superior government which we regularly commit to our viceroys + and presidents. [694] + + +While more than a joint authority with the vicepatron cannot be claimed +for the audiencia, and that authority not necessarily coequal, this +cédula established beyond question the royal intention of recognizing +the audiencia as a support and an aid to the governor. This law +applied to all the affairs of government, not pertaining any more +extensively to the ecclesiastical than to the administrative sphere, +but this cédula, together with what actually happened, may be taken +as evidence that the audiencia was meant to have jurisdiction in +ecclesiastical affairs when royal cédulas granting or assuming the +exercise of such jurisdiction were addressed to it. + +The right of the officials of the civil government to interfere +in questions of patronage was seldom seriously questioned by the +churchmen, although there were some notable instances in which +religious authorities objected to this exercise of power. Bishop +Salazar, in his opposition to the plan of Fray Alonso Sánchez +at the court of Madrid (1593-1595), expressed his disapproval +of the interference of the governor and audiencia in questions of +patronage. His opposition is further attested by several of his letters +and declarations enunciated previous to that time. [695] He admitted +that the civil government, by virtue of the bulls of Alexander VI and +Julius II, should act as the defender and champion of the church, but +he opposed any further participation in ecclesiastical affairs by the +civil power. Salazar's arguments are worth noting because they were +advanced during the formative period of the Islands' history. It was +during his prelacy that the basis of all future relations of church and +state was established. The arguments of Bishop Salazar were repeated +with little variation by Archbishop Poblete in his controversy with +Governor Salcedo in 1665 and later by Archbishop Pardo in 1686. [696] + +In considering this question, the calm and impartial judgment of +a scholar is eminently preferable to the passionate arguments of +a prelate deeply concerned in the outcome of the dispute. Let us +turn from the field of original research to a modern Spanish writer +on church history and law. Fray Matias Gómez Zamora, writing from +the vantage ground of the modern day, characterizes the acts of the +government officials of the earlier era as excessive and unjustified by +papal bull or ecclesiastical canon. He even goes a step farther when he +declares that "many royal decrees and cédulas were wrongfully issued, +without proper basis." He cites examples to prove his contention and +among these he points to the foundation of churches and monasteries by +civil authorities without the confirmation of the prelate, alleging +that such practices were entirely illegal. [697] In like manner, +he criticises the cédulas of October 19, 1756, and of June 24, 1762, +which bestowed upon the governor jurisdiction as vicepatron, [698] +with the right of settling whatever questions might arise. "But," +he writes, "it is clear that the viceroys, the audiencias and the +governors did not have, nor could they have spiritual jurisdiction +over the persons or property of the ecclesiastics, because in no +case can power which is delegated be greater than he to whom it is +delegated." [699] Thus does this distinguished writer attack the +foundation of the entire institution whereby Spain controlled the +church in her colonies during a period of three hundred years. + +Notwithstanding the fact that the governor was the civil head +of the church in the colony, it would be possible to fill this +chapter completely with quotations of laws which were addressed +to the audiencia in recognition of its right of intervention +in ecclesiastical matters. The necessity of reserving space for +specific cases illustrative of history and practice permits only a +scanty summary of the most important of these laws. In practically +all these cases the audiencia participated conjointly with the +vicepatron. The interposition of the audiencia was authorized in +the calling of provincial councils and synods, and the resolutions +of these bodies had to be examined by the viceroys, presidents, +and oidores to see that they were in accordance with the laws of +the royal patronage. [700] The audiencia was empowered to examine +all papal bulls and briefs and to suspend those which had not been +properly authorized by the Council of the Indies. Disputes between +prelates and arguments of churchmen based on bulls and briefs were +to be referred by the audiencia to the Council of the Indies. The +audiencia was authorized to enforce all properly authorized bulls +and briefs and to exercise care that the ecclesiastical courts were +granted their proper jurisdiction in accordance with canon law. [701] + +The audiencia was authorized to enforce the law which forbade laymen +to trade with priests. Punishment in the latter case was not meted +out by that tribunal, but the offending churchmen were handed over +to the prelates. [702] The audiencia, viceroy, and governors were +commanded to exercise supervision over the prelates and provincials, +receiving from the latter annual reports on the state, membership, and +progress of the religious orders and the work performed by them, which +information in turn was forwarded to the Council of the Indies. [703] +All possible assistance was to be furnished by the audiencia and +governor to missionaries remaining in the Philippines or going to +Japan. [704] The governor and audiencia were ordered to supervise +closely the work of ecclesiastical visitors in the provinces, +exercising special care that the natives were not imposed on or +abused. The oidores were prohibited from interference with the internal +government of the religious orders. [705] Members of orders could not +usually be removed by their provincials without the consent of the +vicepatron and the audiencia, the authority of the latter extending to +the removal and exile of offending priests. [706] The audiencia was +ordered to make every possible effort to preserve harmony among the +religious and to adjust all differences arising between the orders, +or within them. [707] The tribunal was authorized to keep prelates +from exceeding their authority in passing judgment on erring priests, +especially to see that no punishments were imposed such as would +interfere with the prerogatives of the civil government. [708] + +The following brief summary of laws of the early period, although +possibly repeating data already given, shows the extent of the +participation of the audiencia in the regulation of ecclesiastical +affairs: [709] + + + All ecclesiastics holding office were first to gain the recognition + of the viceroy, president, audiencia or whatever authority might + be in charge of the province. + + A list of the members of each order was to be furnished by their + provincial to the governing authority. Any changes subsequently + made in the membership of the orders had to be reported in the + same way. + + The names of all religious teachers were to be submitted to the + audiencia, governor or other authority in control, for inspection + and approval. + + The audiencia was instructed to inform itself relative to the + efficiency of the clergy and of religious teachers working + among the Indians, and to see that those lacking in educational + qualifications or in general capacity were not permitted to enter + the Islands. [710] + + Notices of removals or of new appointments made among the + clergy were to be sent to the governor, audiencia, and to the + bishop. [711] + + +The jurisdiction of the audiencia under the royal patronage extended +to practically all classes of churchmen and church affairs. [712] By +the cédulas of August 4, 1574, and of October 25, 1667, the audiencia +acquired the right of passing on the credentials of prelates who came +to the Islands. That tribunal was entrusted with the duty of seeing +that bishops and archbishops carried with them the duly attested +confirmation of the Council of the Indies, and no prelate was allowed +to leave the Islands unless he had the permission of the governor or +audiencia. [713] The tribunal exercised a check on the governor in this +particular and saw to it that in granting this permission he did not +show favoritism or otherwise violate the laws of the royal patronage. + +Two striking illustrations of the audiencia's jurisdiction over the +inspection of the credentials of the prelates and higher churchmen +occur in the history of the Philippines. In 1674, Francisco de Palóu, +a French bishop who had been engaged in missionary work in China, +was cast upon the shores of the Philippines. The audiencia immediately +dispatched orders for his detention, and he was not permitted to return +to his district on the ground that his presence and jurisdiction in +China constituted an encroachment on the rights of Spain. China had +been conceded to Spain by Alexander VI, and by virtue of the royal +patronage, the right of making ecclesiastical appointments and the +exercise of jurisdiction there were prerogatives belonging to the +Spanish crown. [714] + +A similar case occurred in 1704, when Archbishop Tourón, a French +delegate destined for China, arrived in Manila. He was received by +the governor and audiencia, as he bore a legally executed commission +from the pope for the visitation of all the churches in the Orient, +and for the settlement of all ecclesiastical controversies which had +arisen there. The royal acuerdo considered that the dispatches and +credentials which he carried were in accordance with the law. Tourón +was accordingly permitted to set up an ecclesiastical court. He +suspended Archbishop Camacho from his office and freed from prison +some of the worst criminals in the Islands. He ordered the regulars +to submit to diocesan visitation; but they refused to obey him since +they had already rejected the efforts of the archbishop to enforce +the principle. The Council of the Indies ultimately disapproved of +the admission of this foreign ecclesiastic without the authorization +of the Spanish government [715] and as a consequence ordered the +removal of the governor and senior oidor, heavily fined the remaining +magistrates and reduced Archbishop Camacho to the position of Bishop +of Guadalajara. [716] + +In its joint capacity as assistant to the vicepatron and as a high +court with jurisdiction over ecclesiastical cases, the audiencia +settled disputes between rival claimants to positions of authority +in the church, particularly to the position of archbishop. The law +which had been in force up to 1619 prescribed that the ecclesiastical +chapter should fill the vacancy with a temporary incumbent, but some +effort had already been made to have the senior bishop succeed to the +post. Bishop Arce of Cebú was opposed to this plan on the ground that +each prelate had more than he could do in the proper administration +of his own bishopric. [717] Nevertheless it may be noted that on +January 22, 1630, Arce was made acting archbishop of the metropolitan +see of Manila by virtue of the acuerdo of the audiencia and the +vicepatron. [718] Arce's accession to the post was in accordance with +a papal bull which had been promulgated with the king's approval at +some date between 1619 and 1630. There had been a three-cornered +fight between the ecclesiastical chapter, the Bishop of Cebú, and +the Bishop of Nueva Segovia, and this conflict had been settled +by the acuerdo in favor of Arce, while the chapter appealed to the +Council of the Indies. When Guerrero, the new appointee, arrived, he +immediately laid claim to the office, which Arce refused to surrender +on account of an irregularity in the archbishop's appointment. Arce +appealed to the audiencia, but the tribunal refused to authorize +any innovations. [719] In a statement to the king, dated October 17, +1655, he related that in 1629 the governor and audiencia had solicited +that he come to Manila and take the place vacated through the death +of Archbishop Serrano. This would seem to indicate that the audiencia +had acted solely on the basis of its authority derived from the royal +patronage, but in settling the dispute among the various ecclesiastical +authorities it also acted judicially. Guerrero's credentials finally +came, apparently executed in the proper form and they were referred +to the audiencia by the governor. The tribunal, when it had satisfied +itself that the commission was valid, placed thereon the stamp of +its approval and accepted Guerrero as archbishop. Then the latter, +in the words of Governor Corcuera, presented himself "in the royal +court of justice (the audiencia) before which he appeared to be +presented [to his see], he swore upon the gospels not to interfere +with your Majesty's jurisdiction, to respect your royal patronage, +and to be always your royal vassal." [720] In other words, he took +his oath of office as archbishop in the audiencia. + +The above may be considered as a typical case of the temporary +designation of a prelate for the archbishopric of Manila by the +audiencia. To cite further instances of a similar nature would be +unnecessary. The tribunal continued to inspect the credentials of +bishops and archbishops before they were admitted to their posts +throughout the history of the Islands. This practice was followed +even during the period from 1660 to 1762 when the church counted +for more as a political institution than either the audiencia or the +governor. [721] + +The audiencia exercised intervention in the removal of curates from +their parishes. [722] As noted, already, these removals were made by +the vicepatron upon the recommendation of the prelate concerned. Of +course, when the audiencia was governing ad interim it made these +removals itself. It also intervened when the vicepatron was present +on occasions when he requested the support of the tribunal or failed +to act himself. The judicial authority of the audiencia, exercised +through its entertainment of appeals from curates who had been removed, +will be considered in the next chapter. + +A great many reasons for removals were purely ecclesiastical, such +as questions of the private lives and conduct of priests and friars +and their insubordination and non-compliance with ecclesiastical +or monastic rules. With these matters the audiencia did not concern +itself unless deportation was involved, or the offenses of the priests +constituted crimes against the civil government. There is record of +many removals from curacies because of infractions of the marriage +laws by priests, such, for instance, as uniting heathen Chinese with +Christian women, which was a violation of the pragmatic law of March +23, 1776. Such cases, and indeed all which had to do with removals +from curacies after 1795, were settled by ecclesiastical tribunals +with appeal to the papal delegate, without the intervention of the +audiencia. [723] + +The operation of the removal of regulars for cause was slightly +different. Unless the regular was the holder of a parish and subject +to episcopal visitation, the prelate had no jurisdiction over him, +and neither the governor nor the audiencia could interfere in the +matter, unless such intervention was requested by the provincial. [724] +When the deportation of regulars not holding curacies was decreed, +the consent of the vicepatron or audiencia, acting for him, was +necessary. This was usually given on the recommendation of the +provincial, and the exile accordingly became an act of the civil +government. The formal consent of the Council of the Indies was +necessary for all deportations of this character, but the complete +exercise of this prerogative gradually devolved upon the vicepatron, +who notified the Council of the act. [725] + +The crimes of priests or ecclesiastics against the law and order of +the realm were punishable in the same manner and by the same agency +as the simpler violations of ordinary subjects. Attention has already +been given in another part of this treatise to a case in which the +audiencia, in 1617, tried and punished six Augustinian friars who had +been convicted of murder. [726] Their guilt was first ascertained by +a preliminary investigation within the order, after which they were +handed over to the audiencia. + +The statement has been made above that the audiencia was not allowed to +interfere in the internal régime of the convents or monasteries. [727] +However, when the provincials of the orders were unable to keep +the friars in subordination they frequently called upon the civil +government for support and assistance. This was done in 1715 when the +Castilian Recollects rebelled against their provincial, incorporated +themselves into a separate chapter, and entrenched themselves in +the convent at Bagumbayan, outside the Manila wall. Oidor Torralba, +then acting as governor and vicepatron, came to the support of the +provincial upon appeal. He cannonaded the recalcitrants, arresting +and imprisoning them on their surrender, and finally banished their +leaders. [728] On this same occasion, it may be noted, the provincial +solicited the aid of the archbishop, whose interference the rebellious +friars had resisted as an attempt at episcopal visitation. + +The disciplinary jurisdiction over priests and friars referred to +above suggests a similar authority which the audiencia exercised over +the prelates. Within the period of one year after the installation of +Archbishop Guerrero at Manila in 1636, the governor, with the support +of the audiencia, had banished this same prelate and his ecclesiastical +provisor, [729] condemning the former to pay a fine of 2000 ducats. The +governor contrived also to influence the judge-conservator [730] +to pronounce a ban of excommunication upon them both, in return +for a like censure that had already been passed on the governor by +the prelate. [731] The banishment of Archbishop Poblete by Governor +Salcedo and the audiencia prior to the arrest of that governor by +the commissary of the Inquisition, the exile of Archbishop Pardo in +1684, and the imprisonment of Archbishop de la Cuesta by Governor +Bustamante and the audiencia in 1719, are incidents in the history +of the Islands which serve well as illustrations of the disciplinary +and coercive jurisdiction of the vicepatron and audiencia over the +churchmen. These events need only be referred to here, as they have +already been discussed in relation to other phases of the history of +the audiencia. + +As visitors of the provinces, the oidores were required to inspect +the ecclesiastical work of the parish priests and to note their care +and treatment of the Indians. [732] In the exercise of these duties +they were protected by a law which forbade prelates to proceed against +them with censures while they were carrying on such investigations. Le +Gentil, the noted French traveller, who visited the Islands during +the middle of the eighteenth century, testified that the oidores +did not fulfill their duty with great faithfulness. Le Gentil stated +that on account of their dependence on the hospitality of the priests +when travelling from place to place in the provinces, the visitors' +inspections were merely perfunctory and of little value. [733] + +The above testimony is not corroborated, however, by the report of +Oidor Francisco Guerela who was sent to Camarines in 1702 to take +account of tribute and to inquire into the state of the encomiendas. He +reported that in the curacies which were administered by the +Franciscans there was an entire absence of religious instruction, +the natives were mistreated, and they were permitted to continue in +idolatry, drunkenness, and superstition. Neither the priests nor the +alcaldes mayores exerted any uplifting or civilizing influence. The +alcaldes mayores, it was alleged, connived with the priests to +defraud the natives by the imposition of excessive tribute and by the +exaction of all sorts of fraudulent ecclesiastical tithes. The oidor +in this case sought to remedy this state of affairs by dispatching +reformatory edicts against the friars, and by posting notices and +copies of royal decrees and cédulas designed to inform the natives +of their rights under the law and to warn them against the imposture +of the friars. Whereupon the Franciscans appealed to the Bishop of +Camarines and persuaded him to excommunicate the oidor on the grounds +that he had usurped the ecclesiastical jurisdiction. This appeal to +the papal delegate was in direct violation of the cédula mentioned +above, protecting such visitations against ecclesiastical censure. The +oidor appealed to the audiencia and that body solicited the prelate +by ruego y encargo to remove his censures. The audiencia would go no +further, however, as two of the magistrates were personally hostile +to Guerela, hence the oidor was obliged to remain in the provinces at +the mercy of the friars. After six months of isolation, Guerela, who +was broken in health, sent an appeal for aid to the king on June 20, +1702. This memorial embodied a full account of his attempts to make +necessary reforms in the provinces subject to his visitation. [734] It +was presented to the Council of the Indies on October 14, 1706. [735] +Three observations might be made from this incident. First, there was +little vigor, promptitude, or effectiveness in the Spanish judicial +system as therein exemplified. It took four years for this petition to +be presented to the Council and considerably more time for an answer +to be made. Secondly, this affair shows to what extent petty spite +and private quarrels interfered with good government and efficient +administration. Thirdly, it illustrates the fact that the entire +civil government, including the audiencia, was very much under the +domination and influence of the ecclesiastics. + +An inspection which was similar to that just described was made +by Oidor José Torralba, in 1713, in the provinces of Albay and +Cebú. Torralba was unable to complete his work, owing to his recall +to Manila, where he was obliged to resume his place in the audiencia +on account of the insufficient number of magistrates present in the +tribunal. It seems that in the provinces subject to his visitation, +the former charges of the Franciscans had been turned over to the +seculars, most of whom were natives. Torralba reported that under +the careless and incompetent administration of the parish priests, +the churches had gone to ruin and all Indian instruction had been +abandoned. In his report he commented unfavorably on the stupidity and +immorality of the native clergy, alleging that in them lay one of the +causes of the poverty and degradation of the people. He recommended +the restoration of the regulars. [736] Torralba's recommendations +were not followed. Either because of his hurried departure from +the provinces where he left his work unfinished, or because of the +disinclination or lack of authority of the audiencia and vicepatron, +no definite steps were taken at this time for the amelioration of +the condition of the people or for the reform of the clergy. + +That the interests of the friars were vigorously and effectively +championed at the court is evidenced by the royal decree of June +14, 1714, which was dispatched not alone to the Philippines, but +which was made general in Perú and New Spain. [737] It forbade the +governors and audiencias using their authority as vicepatrons to +justify their interference with the interior administration of the +convents and monasteries of the orders, which it was complained they +were doing without authorization. This decree particularly emphasized +the principle which has already been set forth in this treatise that +the vicepatrons and audiencias should not concern themselves with +the discipline and punishment of friars not holding curacies. The +promulgation of this decree was brought about as a result of the +efforts of the commissary of the Franciscan order in Madrid. + +Not only were the oidores required to inspect the work of the parish +priests, but the audiencia, in the exercise of the royal patronage, +was authorized to receive, assist, and supervise the ecclesiastical +visitors who came from Spain or Mexico, or were designated from the +ranks of the local clergy to inspect the orders. [738] These visitors +were also authorized to inspect friars who were in charge of parishes, +[739] and when on these tours of inspection they might be accompanied +by the prelate in charge of the curacies retained by the friars +under inspection. The audiencia was to co-operate in all possible +ways with these visitors, and should any question arise between them +and a prelate over jurisdiction, the tribunal was to do everything +possible to bring about a harmonious adjustment of the points of +difference. This is illustrated by a case which arose in 1776, when +Fray Joseph Pereyra was given a royal commission to make a general +investigation of the Augustinian order in the Philippines. Fiscal +Andrade of the audiencia demanded that Pereyra should submit all +his documents for inspection on the basis of the royal patronage +and other laws, [740] but the audiencia, under the presidency of +Governor Anda, refused to support the fiscal. The king, on April 6, +1778, rebuked the audiencia for its failure to support the royal +patronage, citing two cédulas, those of July 2 and of October 14, +1773, respectively, in which he had already admonished the vicepatron +in that particular. [741] The failure of the audiencia and governor +to exercise all their prerogatives in support of the royal patronage +on these various occasions can probably be attributed to dissensions +within the tribunal and to the corrupting influence of the church. + +The statement has frequently been made in this treatise that the +audiencia served as a connecting link between the court and the +colony. It constituted a channel through which a large amount +of correspondence was carried on, and one of the duties most +frequently required was that of furnishing special and regular +reports and informaciones [742] on various subjects connected with the +church. [743] Notwithstanding the vast number of ecclesiastics present +in the colony, who could and did make special and regular reports, +and were indeed required to make them, the audiencia was frequently +called upon to render reports on precisely the same subjects as those +covered by the churchmen. In this way points of view other than +the ecclesiastical were obtained. Thus the advice of magistrates, +lawyers and men in active touch with the government served to temper +ecclesiastical opinion in the same way that the advice of prelates +exercised an influence on matters purely governmental. Taking into +consideration their position in the colony, the oidores were better +qualified to obtain and impart information concerning the church than +most authorities. + +To indicate the vast field of special subjects in which the oidores +were required to report, various instances may be mentioned. On July +1, 1598, the king desired information concerning the alleged need of a +greater amount of space on the galleon for the support of the bishopric +of Nueva Segovia. The archbishop and the bishop of that diocese had +both recommended that more cargo-space be given to the church. The +king desired to know whether, in the opinion of the oidores, the +privilege of shipping two hundred tons would be sufficient for the +needs of the bishopric in question. [744] Again, on December 7, 1610, +the audiencia was called upon to forward to the Council of the Indies +evidence bearing upon a dispute between the natives of Quiapo and the +Jesuits over lands claimed by the latter society. [745] On another +occasion the king requested of the audiencia a report concerning the +work, deserts, and financial condition of the convent of Santa Clara, +which had asked for royal aid. [746] Frequently the audiencia was +called upon to take a census of the number of priests, secular and +regular, in the Islands and to report on the size of each order, the +number of friars holding secular curacies in each, and the number of +missionaries. [747] It came to be its regular duty to furnish these +reports at stated intervals, and when, for some reason, it failed +to render them, a royal reprimand was forthcoming. A yearly report +was also made on the number of friars entering the Islands, how many +had gone to China, the number of souls ministered to by each order, +how large was each province, and how many people there were in each +curacy. [748] + +It is interesting to know that the churchmen were also held responsible +for this information and that reports on these same subjects were +required of the prelates and provincials. [749] It is evident that +the report of the audiencia was utilized as a check to prevent +misrepresentation on the part of the friars, especially since it was +always the object of each order to prove that it was over-worked and +in urgent need of more members. As friars were sent to the Islands +at the royal expense, [750] and as they were supported after their +arrival by the royal treasury, the exercise of economy was always +desirable. On the other hand, it was to the interest of an order to +make its requirements and accomplishments appear as great as possible. + +Another function which the audiencia came to exercise by virtue of +its authority in behalf of the royal patronage was that of general +supervision over the colleges and universities. In the laws of +the Indies this duty was imposed upon the viceroys and governors, +[751] and nothing was said of the authority of the audiencia in +that particular. According to the laws of the Indies, in fact, +the audiencia had little jurisdiction or authority over colleges, +universities and seminaries, but as the administration of these was +entirely in the hands of the church, the audiencia came to exercise +much the same authority over education that it did over other +church activities. [752] Oidores and fiscales were forbidden to act +as rectors, but they might participate in the law examinations to +satisfy themselves whether the standard of instruction in the royal +universities and colleges was sufficiently high, and whether the +education, training and ability of candidates for the licentiate's +degree gave evidence of their fitness. [753] According to the royal +decree of November 27, 1623, the University of Santo Tomás was founded +in the Philippines with the advice of the governor and acuerdo of +the audiencia. [754] Here again that tribunal may be seen in the act +of assuming non-judicial functions which primarily belonged to the +governor through the unwillingness or inability of that official to +act alone. + +The audiencia early exercised advisory powers in educational +affairs. The Jesuits as early as 1585 had requested permission to +found and establish a college or seminary in Manila, and the king, +on January 11, 1587, requested of the audiencia a report on the +general conduct, progress and accomplishments of the Jesuit order, +asking in particular what benefit would accrue from the establishment +of a Jesuit college in Manila. The audiencia, in its report of June +25, 1588, characterized their work as very effective, the learning +and ability of their personnel remarkable, but in the opinion of the +oidores there was scarcely any need of a college in Manila at that +time, and there were no means of supporting one. [755] + +When Santo Tomás became a royal university in 1648, the Jesuits were +obliged to sue in the audiencia for the right to continue the bestowal +of academic degrees. Their request was denied by the tribunal, but +the decision was reversed by the Council of the Indies in 1653. [756] +On May 3, 1722, San José was made a royal college and was subjected +to the visitation and patronage of the audiencia. In 1769, when the +Jesuits were suppressed, an attempt was made to continue San José as +a secular institution under the supervision of the audiencia. This +brought forth such determined opposition from the Dominicans and +from the friends and supporters of Santo Tomás that on June 30, +1778, a cédula was issued ordering the audiencia to close San José +and hand over all students in attendance there to the archbishop, so +that they might be placed in secular colleges and seminaries. [757] +This was done, and the audiencia rendered to the Council of the +Indies a report on the administration of the finances pertaining +to the transaction. The revenues derived from all unsold properties +belonging to the Jesuits were included in the temporalities, and the +income from these were transmitted to the royal treasury. Subsequently +the archbishop attempted to assume jurisdiction over these Jesuit +properties and funds, and to this the audiencia objected. In 1784 +the matter was finally settled by the decree of the king in answer +to an appeal which had been carried by the prelate from the audiencia +to the Council of the Indies. He sustained the audiencia and forbade +the prelate from interfering with these temporalities. + +The Dominicans were more successful in the maintenance of an +educational institution. [758] On the occasion of the extension of +the charter of the University of Santo Tomás on May 17, 1680, the +king ordered "my president and the auditors of my Audiencia of that +city, and request and charge the archbishop of the city, the bishops +of the said islands, the ecclesiastical and secular cabildos, the +superiors of the orders, and any other of my judges and justices," +... to acknowledge the University of Santo Tomás as a beneficiary of +the royal patronage. Its title was formally extended on June 21, 1681, +by act of the audiencia. [759] The tribunal not only exercised the +right of patronage over the Dominican university, but also over the +College of San Juan de Letrán, a seminary for boys which was founded +in 1640 and maintained by the Dominicans as an adjunct to Santo Tomás. + +Reports, recommendations, and informaciones exist in abundance to +prove that the audiencia exercised considerable influence in the life +and history of these institutions. The tribunal celebrated acuerdos to +improve the instruction in mathematics, physics, law and medicine. It +provided for the examination of students, passed on their credentials, +made regulations for the bestowal of degrees and decided upon the +fitness of prospective teachers. [760] It supervised the records +of these institutions, audited their finances and sent reports to +the king and Council concerning the work of the universities and +colleges. In its jurisdiction and authority over these educational +institutions the audiencia served in behalf of the sovereign as his +royal tribunal. These were royal universities, endowed with special +royal charters and privileges and it was fitting that they should +be controlled by the royal audiencia in the king's name. In addition +to this, as they were administered by the church, the audiencia and +the vicepatron exercised joint control over them, in the name of +the royal patronage in the same manner that they supervised other +ecclesiastical activities. + +As we have already noted, the audiencia exercised jurisdiction over +matters of church finance. The most notable examples of its control +may be seen in the administration of tithes, [761] the funds of +temporalities, obras pias, funds of the Crusade, and espolios of +the prelates. + +The audiencia was authorized to guard the royal interest in the matter +of the collection and the administration of tithes, particularly with +a view to seeing that over-ambitious churchmen did not obtain more +than their share, and that in the collection of the tithes they did +not oppress the natives. The special care of the oidores was to see +that tithes be not paid directly to the prelates. [762] In fact, +these funds were to be administered by the civil government, and +prelates were not to be allowed to interfere with their collection. No +changes were to be made in the authorized manner of collecting these +funds on the responsibility of colonial officials. Recommendations +for reform should be made to the Council of the Indies either by +the prelate or by the audiencia. [763] The audiencia was ordered to +see that the proper division and distribution of tithes were made, +and that the two-ninths of the gross sum collected was duly set aside +for the crown, in accordance with the law. [764] + +Further evidence that the audiencia was regarded as the instrument +of the royal will in these matters is afforded by the circumstances +leading up to the reforms of 1768 and 1786; and it should be noted +particularly that the king and Council relied on that tribunal +for advice and assistance in the drafting and execution of these +measures. A number of tentative laws and proposals for changes in the +system of collection and administration of the tithes was sent to the +audiencia, from time to time, prior to 1768, and the magistrates were +required to submit opinions as to the availability and applicability +of the proposed measures. In 1768 a decree was issued fixing the +tithe at ten reales per Indian. Previous to that year a number of +religious orders owning large tracts of agricultural land had refused +to pay these taxes, and the audiencia, by virtue of the royal order +of September 25, 1768, was ordered to enforce the law, which it did, +even proceeding to the seizure of the chattels of the recalcitrant +friars. [765] On December 11, 1775, the audiencia passed an ordinance +diminishing the tithes to be paid by natives, mestizos, Chinese +and Japanese by one-half real per person. [766] On July 12, 1778, +the king asked the audiencia to submit evidence on the question of +whether the law worked any hardship on the inhabitants of the colony, +and whether encomenderos and friars were paying their share. [767] +At the same time, and on the same date, the royal approval was given +to the auto which the audiencia had enacted on December 11, 1775. The +recommendations of the audiencia were also largely followed in the +decree of January 20, 1786, which was merely a repromulgation of an +earlier auto of the audiencia, which ordered that tithes should not +be collected directly from the Indians unless the latter were owners +of lands. Otherwise they were to be collected from the landlords. [768] + +By subsequent laws the audiencia was temporarily deprived of +its jurisdiction over tithes. When the Philippine government was +reorganized in 1787 by the Ordinance of Intendants, many of the special +commissions which had been previously retained by the magistrates were +ceded to the superintendent of real hacienda. The actual collection +of tithes was made the duty of the superintendent by cédula of October +6, 1792, [769] but because of its relation to the royal patronage the +audiencia, in practice, found it convenient to retain control. Governor +Aguilar, who was also superintendent of real hacienda, wrote to the +king on July 31, 1799, [770] alleging that there was no reason why +the audiencia should exercise this authority, when, by virtue of its +financial nature, this duty belonged to the superintendent. He stated +that the audiencia had been given this jurisdiction when there had been +no other authority for the collection of tithes, but that as it was +not a controversial matter, there was no reason for the continuance +of this condition. In the letter referred to Aguilar stated that he +had attempted to put his interpretation of the law into execution, +but in so doing had been opposed by the audiencia. The answer to this +appeal does not appear in connection with the original, but the royal +cédula of April 21, 1803, restored to the audiencia jurisdiction over +the collection of tithes. [771] + +It may be said, however, that with the creation of the superintendency +the audiencia was shorn of many of the miscellaneous functions with +which it had been formerly endowed. The funds of the temporalities, +however, did not come under this category. They were greatly augmented +in 1767 when the Jesuits were suppressed, and as was usual with such +miscellaneous and unclassified duties, as well as on account of the +audiencia's relation to the royal patronage, the administration of +these funds came under the charge of an oidor whose official title was +"administrator of the funds of the temporalities." [772] + +Nevertheless, the audiencia's share of direct control over these +funds was still considerable. On January 23, 1803, a cédula was issued +ordering that the money of the temporalities and obras pias should be +put at the disposal of the acuerdo of the audiencia. [773] A report +was submitted to that tribunal by Superintendent Aguilar on July 20, +1804, in accordance with this cédula. The report of Aguilar showed +a balance on hand of 151,625 pesos waiting to be sent to Spain +by the first transportation. In 1809, the jurisdiction of these +funds was completely restored to the audiencia, with the provision +that the oidores who acted as their administrators should receive a +three per cent commission. As the funds were constantly drawn upon, +and there were no further confiscations of property of this sort, +they can be accounted as of little importance, yielding practically +no revenue from that date. Owing to the continual appeals of the +government for money with which to defray the expenses of putting +down the various insurrections from 1808 to 1814 and subsequently, +the funds of the temporalities, like every other peso that came into +the treasuries of the colonies, were sent to Spain as rapidly as they +were collected. [774] + +The audiencia also audited the accounts of the obras pías, though +its jurisdiction over these funds was often opposed. [775] The chief +foundations of the obras pías in Manila were the Santa Misericordia +and San Juan de Diós. The wealth and power of the Misericordia became +so great, [776] and so well did it profit by the various immunities +extended to it, that by the early part of the eighteenth century +it had become the object of the distrust and envy of all classes of +Manila society. It was chiefly disliked because it had been permitted +to utilize so much free space on the galleon. Other inconveniences +had arisen from its participation in trade, wherein, possessed of so +many advantages, it was enabled to derive profits and benefits that +were denied to competing merchants in the colony. Complaints were made +against it by certain religious orders, merchants, treasury officials, +oidores, and the governor, himself. It was the consensus of opinion +among these that the accounts of this society should be inspected +by the government, and, in accordance with these recommendations, +a cédula was expedited, ordering the society to submit its accounts +to the audiencia for inspection and approval. [777] + +The suspicions of the general public were confirmed, and the popular +distrust increased when the inspection of Oidor Calderón revealed +that the finances of the society had been carelessly kept, and that +the books contained numerous discrepancies. The scrutiny of the +oidor showed the existence of a deficit of 383,437 pesos; that is, +the records called for property in the hands of the society to the +value of that sum which could not be found. The Misericordia, in a +series of protests, accounted for the discrepancies by alleging that +the audiencia had declared many of its debtors bankrupt. Relief from +the inspection was requested on the grounds that the local feeling +and the prejudice of the oidores would cause them to be unfair to the +society. It pleaded that the inspection should be made by the chief +accountant of the Council of the Indies (contador de cuentas) once +in five years. In this request it was supported by the recommendation +of this official. [778] + +On April 19, 1755, the cédula of November 9, 1747, was modified on +the basis of these protests, and in lieu of the annual inspection of +the oidor was substituted the requirement that once in three years the +Misericordia should submit its own accounts. [779] This brought forth +a storm of protest from the residents of Manila, headed by Governor +Arandía, who went to some length to describe the abuses which had +arisen in the past from the unrestricted liberty which the Misericordia +had enjoyed. He accused the society of dishonest political practices, +interference with the government, bribery and corruption. He said that +behind its commercial operations there existed a veiled scheme by which +the church was seeking to monopolize the trade of the Islands. [780] +The opposition of the governor and residents bore fruit to the extent +that a compromise was made in the royal cédula of February 21, 1759, +which restored the practice of having oidores inspect the accounts of +the Misericordia, though the examination was to be held only once in +five years. This, of course, was sufficiently lenient to defeat the +entire scheme. Oidores were forbidden to interfere with the property +of the society at any other time and in any other manner. [781] + +The Misericordia maintained a stubborn and vigorous resistance to +the principle of visitation by the audiencia, but as far as may be +judged by the data at hand, the law was not changed again, and the +audiencia continued to exercise supervision. That the audiencia was +prone to overstep its authority in the matter of these inspections +is shown by an incident which occurred in 1776-1777. In the regular +quinquennial inspection of the records of the Misericordia a number +of abuses were uncovered. The funds were found to have been carelessly +administered, and the books inaccurately kept, owing to the negligence, +incapacity, and corruption of the members to whom the funds had been +entrusted. Governor Sarrio, as vicepatron, appointed Oidor Calderón +as receiver and administrator of the funds, with the charge that the +oidor should suspend all payments until the accounts were straightened +out. The Misericordia protested and on April 25, 1778, the king ordered +the governor and audiencia to desist from further interference with +the funds of the society, the royal disapproval being based on the +cédula of February 21, 1759, which, while authorizing the inspection +of the books of the society, forbade any minister "to interfere with +or interrupt said House in the administration or distribution of its +funds." [782] + +The cédula of February 21, 1759, was reaffirmed on repeated occasions +when the Misericordia refused to submit its books to the audiencia. The +last law touching upon this particular question was promulgated on +August 2, 1787, when it was decreed that the accounts, books, records, +and work of the Misericordia and its officials should be subject to +the inspection of the audiencia. [783] + +Not only was the opposition of the Misericordia a source of dispute +between that society and the audiencia, but the matter of financial +inspection caused disputes between the audiencia and other officials +and departments of the government. The reforms of 1787 made trouble +between the superintendent and the audiencia. Since this was a +financial matter, the former claimed the right of auditing these +accounts, which the audiencia refused to concede for the reason that +it had always had supervision over these funds (when the right was +exercised by any secular authority). The question was definitely +settled by the cédula of January 22, 1803, which ordered that "the +money of temporalities, pious funds, and charitable societies should be +put at the disposal of the acuerdo, and that if any matters relative to +those branches were then pending before the superintendent, they should +be remitted at once to the audiencia." [784] This was accordingly +done by Governor (and Superintendent) Aguilar, [785] and after that +time the jurisdiction of the audiencia was no longer questioned. + +Shortly after the establishment of the consulado of Manila in 1769, +a bitter dispute arose between that body and the audiencia for +jurisdiction over cases involving the commerce of the Misericordia. On +the basis of the cédula of July 8, 1774, the consulado claimed +exclusive jurisdiction over all disputes involving trade which arose +between merchants. It advanced the contention that in all suits +involving losses of galleons the society should be considered in the +case of an individual merchant. The audiencia, basing its claims on the +royal patronage, declared the consulado to have exceeded its powers, +in assuming the jurisdiction described above, and fined several of +its members. The consulado appealed the case, and in reply the king +promulgated a cédula on June 7, 1775, declaring that neither to the +audiencia nor to the consulado belonged the jurisdiction over such +cases, but that they should be tried in first instance by the Council +of the Indies. [786] The reasons assigned for this decision were that +the consulado could not try such cases because merchants constituted +its membership and because the fiscal and two oidores also belonged to +its tribunal. Neither the audiencia nor the consulado, accordingly, +could impartially try commercial suits between merchants and the +Misericordia; accordingly thereafter all evidence should be submitted +to the Council for special action. + +The audiencia and the governor had supervision over espolios and vacant +benefices. [787] When a prelate entered into office it was his duty to +file with the fiscal an inventory of all properties belonging to him +at the time of his advent to the diocese. [788] On the occasion of his +death a treasury official was designated to estimate and administer +the property left, pay the debts of the deceased churchman, execute +his will with regard to his property in accordance with the law, +and turn over the residue to the royal treasury. This process was +known as taking the espolio. + +The espolio of a deceased prelate was taken, according to the early +laws, by an official of the royal treasury, who was designated by the +president for the purpose, and who officiated under the supervision of +the audiencia. The tribunal verified the autos and substantiated the +proceedings of the agent. [789] Whether any modifications in the manner +of collecting, distributing or accounting for the funds or properties +derived from these espolios were made elsewhere is not clear, but +in the Philippines the abuses which arose in the settling of these +ecclesiastical estates and benefices made the personal intervention +of the oidores necessary on a number of occasions. By royal cédula +of June 23, 1712, it was ordered that in all the audiencias of the +Indies the magistrate next in rank to the senior oidor should be +constituted as the + + + private judge, who, with the concurrence of the oficiales reales, + should have jurisdiction over and should proceed against, receive + and collect all the products and rents of the vacant archbishoprics + and bishoprics until the day on which the new prelates should + take possession of their offices, proceeding with full cognizance + ... to the collection ... of whatever might be due, ... with the + assistance of the oficiales reales who in this matter are subject + to the royal audiencia. [790] + + +By this same law the audiencias, viceroys, presidents and tribunals +were forbidden to interfere with this judge in the execution of +his duties, or to impede the execution or the law in any manner +whatsoever. The estates of prelates were thus placed on a basis similar +to that occupied by the properties of civilians, which, we have noted, +were administered by a special magistrate of the audiencia. This cédula +also provided that all money left as a residue, after the debts of +the prelates were paid, should be sent to the king for distribution. + +In view of the above-mentioned law, the practice followed in 1715, +on the death of Bishop Gorospe of Nueva Segovia, seems to have been a +direct violation of the royal command, and somewhat different from the +usual method of settling the estates of prelates. As soon as Gorospe +died at Magaldán, Pangasinán, the alcalde mayor of the province sent +immediate notification to the governor and audiencia. The tribunal, +in acuerdo, on the motion of the fiscal, authorized the alcalde mayor +and the treasury officials to take the espolio of that prelate, which +order was duly complied with. [791] The audiencia also dispatched a +formal notification to Archbishop de la Cuesta and the metropolitan +chapter, designating the former as the ecclesiastical governor of +the bishopric. [792] + +The significant feature of this espolio is that it was taken by an +official as inferior in rank as an alcalde mayor through the express +authorization of the audiencia, instead of being conducted by the +second magistrate of the audiencia as the law directed. It is possible +that the arrival of the cédula of June 24, 1712, had been delayed, or +that this may have been a case, so frequent in the Spanish colonies, +of compliance without obedience. Certain it is that the conditions +of life and travel in the provinces were of such a character that an +oidor would have found it more comfortable to remain in the capital +and delegate the disagreeable duties of the espolio in a far-distant +province to the resident alcalde mayor. Attention has already been +called to various complaints made by governors and others against the +disinclination of the magistrates to submit to the inconveniences of +provincial inspections. Again, it is very probable that the time and +attention of the magistrate whose duty it should have been to take +this espolio were occupied with more important judicial duties. [793] + +The citation or further multiplication of data relative to espolios +would be monotonous and unprofitable. Sufficient has been said +already to show the extensive participation of the audiencia in +the administration and settlement of the estates of prelates and the +assignment and care of vacant benefices. It may be noted, however, that +the audiencia suffered little if any diminution of its authority over +the espolio through the Ordinance of Intendants. That code deprived +the oficiales reales and oidores of the duty, formerly incumbent on +them, of taking espolios and conferred it upon the intendants and +corregidor-intendants of provinces. However, it was still required +that the papers relative to the proceedings should be submitted +afterward to the audiencia for legalization and approval. [794] +Appeals and cases of litigation arising from them were to be settled +in the audiencia. This decree made little difference in the procedure +in the Philippines, as the corregidor-intendants were never instituted +there, and the oidores continued in the settlement of these matters, +subject to the designation of the superintendent, who, it will be +remembered, was also governor and president of the audiencia. The +tribunal passed, as always, on all acts of espolio and heard cases +affecting them on appeal. In this manner the properties of the prelates +were administered in a conservative and legal manner and the interests +of the crown were safeguarded. + +The audiencia exercised joint authority with the vicepatron over +questions relating to the construction of churches and the conservation +of ecclesiastical property. No monastery, convent, college, hospital, +or other religious institution could be founded without the consent +of the king, and this permission was obtained through the viceroy, +governor, or audiencia upon the recommendation of the prelate of +the diocese. [795] The laws of the Indies conceded that matters +which did not admit of delay could be settled by the president and +audiencia. [796] In fact, as early as August 15, 1620, Governor Fajardo +acknowledged receipt of a letter from the king in which occurred the +statement that "no church or convent, not even a chapel, ought to be, +or can be, founded unless concurrent with your permission, and that of +the Audiencia." [797] It was provided that all petitions of religious +orders for permission to construct convents and monasteries should be +referred to the council, with the recommendations of the audiencia, +but in actual practice, when the advice of the audiencia was in the +affirmative, the vicepatron gave the desired consent, reporting on his +action to the Council of the Indies. Thus we see that the governor and +audiencia in reality exercised complete authority in uncontested cases. + +A large number of communications written to the audiencia by the royal +authorities exist, illustrating the nature and extent of the influence +of the audiencia in these matters. In 1604, the king learned that the +Augustinians of Cavite had founded a convent with no other authority +than that of the governor. This was contrary to the laws of the +royal patronage and the audiencia was ordered to correct the abuse, +and to see that the royal orders were obeyed in the future. [798] On +another occasion the audiencia was ordered to correct certain abuses +of the Jesuits, who had dispossessed the natives of their lands and +had built various structures thereon. The lands were ordered to be +returned to their rightful owners and the buildings destroyed. [799] + +The ambitions of the friars to construct monasteries, convents and +hospitals, and otherwise to manifest their powers and add to their +increasing strength had to be checked frequently. The audiencia was +called upon to do this throughout the history of the Islands. Possibly +the best illustration of the authority of the audiencia in these +matters may be noted in the part which it played in restraining the +Augustinians from the further extension of their influence during +the period from 1763 to 1778. The entire matter was summarized in the +consulta of the Council of the Indies dated December 10, 1777, and the +cédula of April 6, 1778, with unfavorable results for the Augustinians. + +On November 17, 1770, the provincial of this order applied for +permission to construct a convent in Cavite and solicited an +appropriation of four thousand pesos for this purpose. It was +suggested that the money should be supplied either by the income +from vacant benefices or from the profits of the sale of betel to +the natives. The provincial laid special claim to royal aid on the +extraordinary justification that the convent of his order at Imús, +Cavite, had been bombarded and destroyed by the British in 1763. On +August 16, 1772, the Council of the Indies referred the matter to the +Audiencia of Manila and the tribunal, after an exhaustive investigation +of the subject, recommended non-compliance with the provincial's +request. In its report, the audiencia reviewed the former attempts +of this order to extend its power and influence. On December 2, 1765, +it had tried to obtain permission to construct a convent at Nagtaján, +which the audiencia and Fiscal Viana frustrated. The Augustinians +tried again on February 20, 1766, asking for permission to build at +Bagumbayan. This plan the audiencia was also able to defeat. On August +16, 1772, this same order, impatient at the delay of the Council in +answering its petition of November 17, 1770, and still persistent, +solicited permission from the governor alone, not alluding to the +fact that a petition of this sort was at that time pending before +the Council of the Indies. This request was considered in the acuerdo +with unfavorable consequences for the Augustinians. + +The report of the audiencia was forwarded to the court and was +there reviewed by Francisco Leandro de Viana, formerly fiscal of the +Audiencia of Manila and at that time a member of the Council. Viana +recommended that not only should the desired permission be refused +but a rigid investigation of the legitimacy of titles to properties +held by the Augustinians should be made. He regarded as especially +reprehensible the deliberate effort on the part of the provincial to +obtain this permission from the governor in view of the unfavorable +attitude of the Council of the Indies and of the laws ordering that +licenses for the construction of convents should be given only by +the Council of the Indies, after consultation with the prelate of +the ecclesiastical district and with the audiencia, governor, or +viceroy. [800] In this way, due very largely to the influence of +the audiencia, the efforts of this order to extend its authority +were checkmated. This may be considered as a typical case of the +intervention of the audiencia in behalf of the royal patronage. + +It will be noted in another connection that the audiencia was called +upon, from 1680 to 1720, partly as a tribunal of justice and partly as +an agent of the royal patron, to investigate the titles of the lands of +the friars, and, by this proceeding, the tribunal deprived the orders +of much of the property which they had usurped. [801] It may also be +noted that an oidor regularly inspected the royal hospital at Manila, +[802] and when prelates and curates were transferred from one district +or parish to another, property left by them was inventoried and +taken under the direction of the audiencia. [803] These measures were +designed to insure the security and conservation of royal property. + +In summary, it may be said that the audiencia possessed joint authority +with, but not equal to the vicepatron in the regulation and supervision +of religious affairs. As a tribunal, and as an agent of the civil +government, the audiencia supported and assisted the vicepatron. At +times, indeed, it acted in his stead. We have seen that the audiencia +labored in the interests of the royal authority when it passed on the +acts of provincial synods and councils, and it inspected bulls and +briefs before they were allowed to become operative in the colony. It +sought always to bring about a peaceful settlement of disputes between +prelates, curates, and religious orders. Acting in the interests of the +civil government, the oidores made inspections in the provinces, noting +the work of the friars and parish priests in their particular fields, +giving special attention to the treatment afforded to the Indians by +their ecclesiastical protectors. The tribunal acted as the patron of +the royal colleges and universities. It regulated the administration +of ecclesiastical finances, devoting especial attention to tithes, +obras pías and espolios. And finally, as we have just noted, it was +endowed with considerable authority in determining the advisability of +authorizing the construction of churches, monasteries, and convents, +or of permitting the orders to extend their influence in various parts +of the colony. The intervention of the audiencia in these matters +was recognized by the court at Madrid and by the ecclesiastics of +the Philippines. + + + + + + + +CHAPTER XI + +THE AUDIENCIA AND THE CHURCH: THE ECCLESIASTICAL JURISDICTION + + +In the same manner that the audiencia performed the functions of a +civil court, so did it exercise jurisdiction as a superior tribunal or +court of appeal over prelates, church tribunals, and ecclesiastical +judges. It will be our purpose in this chapter to determine the +relations of the audiencia with the various ecclesiastical tribunals +and to direct attention to the occasions on which it acted as a court, +either with original or appellate jurisdiction in ecclesiastical cases. + +In this particular phase of the investigation an effort will be +made to distinguish between the ecclesiastical jurisdiction of the +audiencia and its acts relative to the royal patronage. Not only may +this distinction be made for conveniences of discussion, but it will +be readily seen that the character of the powers and jurisdiction +exercised was widely different. When acting as a tribunal of appeal +over prelates, provincials, and ecclesiastical courts the chief +concern of the audiencia was the administration of justice. When +acting in defense of the royal patronage, as noted in the preceding +chapter, its authority was primarily executive and administrative, +designed always to safeguard the interests of the civil government. + +It is, of course, true that all the power exercised by the civil +government over the church proceeded from authority invested in the +former by the laws of the royal patronage. [804] Nevertheless, it must +be observed that there were times when the audiencia exercised the +function of an impartial, disinterested court, with no aim or object +other than that of maintaining simple justice. It may be conceded, +for example, that the authority which the audiencia exercised in +the settlement of disputes between religious orders and between the +prelates and the regulars partook of the same judicial character +as the jurisdiction which it had in settling disputes between civil +corporations and individuals. The intervention of the audiencia for +the protection of the Indians from the abuses of the churchmen, +[805] its entertainment of the recurso de fuerza [806] and its +function as a court of appeals for the protection of the natives +against ecclesiastical tribunals may be said to have constituted acts +in defense of the royal interests as well as in securing the ends of +common justice. In restraining church authorities from the intemperate +use of the interdict, [807] or from a too liberal extension of the +right of asylum, [808] the audiencia was not seeking the ends of +justice (though judicial proceedings were instituted) so much as it +was defending the royal prerogative and protecting the officials of +the civil government. This may also be said of its efforts to prevent +the abuse of power by the commissary of the Inquisition. In these +last-mentioned activities, therefore, the audiencia may be said to +have acted in defense of the royal patronage, though in all these +cases its method of procedure was that of a court of justice. + +The church in the Spanish colonies had its own judicial tribunals +for the trial and settlement of cases arising within it which did not +concern the civil government. [809] The division of authority between +the civil and ecclesiastical courts and the respective jurisdictions +of each are described by Professor Moses, who writes: + + + The courts of the civil government and not the ecclesiastical + authorities considered ... all questions involving the limits + of bishoprics, the rights and prerogatives of the holders of + benefices, controversies between ecclesiastical councils and + their bishops and archbishops concerning the administration + of the Church, all disputes between parish priests and their + parishes, in a word, all cases that in any manner touched the royal + patronage. Even matters spiritual and cases between persons of a + privileged tribunal were not excepted from the civil jurisdiction; + but certain cases might be brought before the viceroy, and, if + desired, an appeal might be taken from the viceroy's decision to + the audiencia. [810] + + +It will be our function in this chapter to determine the participation +of the civil courts in these matters. + +The power of intervention in ecclesiastical matters which was +exercised by the civil tribunals was always a source of discord +in the Philippines. The attitude of the churchmen on this question +is well shown by a letter written January 20, 1688, by Fray Alonso +Laudín, procurator in Madrid for the Franciscans of the Philippines, +in protest against the encroachments of civil government. He wrote that + + + the principal causes of trouble in the Philippines are the + disagreements which continually exist between the royal audiencia + and the ecclesiastical judges; ... the ministers of the royal + audiencia, by virtue of the royal patronage of Your Majesty whom + they represent, ... hold ... that the audiencia has ecclesiastical + jurisdiction over the Church and over purely ecclesiastical + persons, over spiritual cases and the administration of the Holy + Sacrament, ... and spiritual and territorial jurisdiction in + regular and secular parishes. [811] + + +Laudín described the helplessness of the ecclesiastical judges and the +ineffectiveness of their jurisdiction, circumscribed as it was by that +of the civil magistrates. He stated that all the judicial acts of the +ecclesiastical ordinaries were rendered null by the magistrates of +the audiencia and that the ecclesiastical authorities were reduced +to such a condition that they did not know where to turn for relief +or remedy, as even the papal decrees were rendered ineffectual by +the encroachments of the civil jurisdiction. He stated that "the +ecclesiastical judges see in all this a meddling and interference +with the ecclesiastical jurisdiction, which has always been allowed, +but they cannot hereafter give fulfillment to the provisions of the +audiencia, even at the risk of expulsion from their districts." Laudín +was of the opinion that the laws had been misinterpreted by the civil +officials and that the king had never intended that the churchmen +should be so entirely shorn of their powers. He concluded his appeal +with the solicitation that such laws should be made as would determine +the questions at issue and bring about harmony between church and +state in the Islands. This should be done, he said, "in order that +each may be caused to see clearly the duties and jurisdiction which +belongs to him and that each may freely make use of his own powers +and prerogatives, and thus avoid suits and other disagreements." + +The laws of the Indies prescribed that the most harmonious +relations should prevail between the ecclesiastical and civil +magistrates. The audiencia was commanded to aid the prelates and +ecclesiastical magistrates in the exercise of their jurisdiction, +neither interfering with them nor permitting them to be molested by +other civil authorities. [812] These laws, like those of the royal +patronage, not only gave to the civil government a commanding position +with relation to the church, but they established the magistrates as +the supervisors and guardians of the church courts. + +It was the duty of the audiencia, on the other hand, to guard strictly +the prerogatives of the civil magistrates, and, in fact, those of all +officials of the government, and not to allow the ecclesiastics to +infringe on their jurisdiction through acts of fuerza, interdicts, +or by any other illegal means. [813] The ecclesiastical courts were +forbidden to try laymen or those subject in first instance to the +jurisdiction of the civil courts. They were forbidden to imprison +private subjects, or embargo or sell their property without first +seeking the consent and co-operation of the secular arm. [814] They +were forbidden to try any cases except those involving the church, and +they could not, without the aid of the civil authorities, impose fines +or condemn persons to labor. [815] In general, they were solicited +to work in harmony with the audiencia, and to give all possible +assistance to that body. [816] Wherein doubt existed or where there +was reason to believe that an action might constitute an interference +with the civil prerogative, the ecclesiastical judges were ordered +to ask the advice of the secular authorities. The ecclesiastical and +secular magistrates were enjoined to aid each other actively when +occasion demanded, the prelates supporting the audiencia, and the +latter dispatching provisions to its magistrates and subdelegates in +support of the ecclesiastical judges and tribunals. [817] + +The laws cited above did not become effective suddenly, but were +evolved through a long period of dissension and dispute between +the ecclesiastical and the civil authorities. Before the audiencia +was established in the Islands, the parish priests, friars, and +ecclesiastical ordinaries in many cases exercised the duties of local +judges in both the spiritual and temporal spheres. There can be no +question but that the church rendered very efficient service in this +particular, especially under the leadership of Bishop Salazar. [818] + +The surrender of their prerogatives by the ecclesiastics was +gradually though reluctantly made as the civil courts became more +firmly established in the Islands. At first, the entire clergy, with +few exceptions, from the bishop to the most isolated parish priest, +opposed the change, and regarded the assumption of their former +powers by the civil authorities as unauthorized usurpation. [819] +It was with great difficulty that the churchmen were able to adjust +themselves to the new conditions. They were required frequently +to aid the civil authorities in the apprehension of criminals and +in the obtaining of testimony, thus co-operating generally in the +administration of justice. [820] A noteworthy conflict arose when the +audiencia summoned Bishop Salazar before it to testify as an ordinary +witness, and to explain his own actions on various occasions, in +retarding the work of the civil courts. These summonses he regarded +as detracting from his ecclesiastical immunity. Subsequently, the +audiencia was admonished that on no occasion should churchmen be +called to act as witnesses. [821] So it came about that although the +intervention of the audiencia was prescribed by the laws of the Indies +and admitted elsewhere in the Philippines, owing to the strength of +the ecclesiastical organization, and its former prominence in affairs +of government, the assumption of its legal power by the audiencia was +necessarily gradual. Nevertheless, the tribunal ultimately attained +extensive authority in ecclesiastical affairs, an analysis of which +will now be made. + +The audiencia exercised jurisdiction as a high court of appeal over +suits to which the religious orders were parties. Most of these cases +originated in misunderstandings or contentions over jurisdiction, +titles to land, and over the claims relating to occupation of provinces +under the royal patronage, which the various orders advanced. Most +frequent of all were the suits between the orders, as to jurisdiction +over provinces. An example of this is furnished by the contention +which arose in 1736 between the Jesuits and the Recollects for the +exclusive right to minister in Mindanao. Another case of a similar +nature was the adjudication of a dispute between the Recollects and +the Dominicans for spiritual jurisdiction in the province of Zambales, +as a result of which the Recollects were finally ordered to confine +their missionary activities to Mindoro. [822] Another case was the +dispute between the Franciscans and the Observant friars. A large +number of the latter arrived in the Islands in 1648 with letters from +the Viceroy of New Spain. They were at once given territory which had +been previously assigned to the Franciscans. On the basis of a brief +of Urban VIII, prohibiting the occupation of the same province by +two different orders, the Franciscans brought suit in the audiencia +with the result that the newcomers were not only dispossessed of the +province that had been assigned to them, but their patents and briefs +were cancelled on the grounds that they were not properly authorized +by the Council of the Indies. [823] + +Reference was made in the last chapter to the suits which occurred +between the Jesuits and Dominicans, the two orders most extensively +interested in higher education, for the right to maintain universities +in Manila. The greater number of these disputes, in fact all of them, +seem to have been based on the rivalry of their two colleges and on +their zeal for royal favor and patronage. When Santo Tomás became a +royal university in 1648, and was empowered to grant degrees as such, +the Jesuits brought suit in the audiencia for the right to confer +honors of a like character in their college of San José. The audiencia +denied their petition; the case was appealed to the Council of the +Indies, and the higher authority decided that both institutions should +enjoy equally the privilege of conferring scholastic honors. [824] +The rivalry and bitter feeling between these two orders did not +cease with this settlement, but in 1683 the Dominicans again brought +suit in the audiencia, seeking to limit the educational activities +of the Jesuits. The matter was again carried to the Council of the +Indies. Although the decision was made in favor of the Jesuits, the +disagreements between the two orders, the charges and counter-charges, +and the influence of Archbishop Pardo, a Dominican, in behalf of +his own order, went far beyond the authority of the audiencia, whose +efforts to restrain them were entirely ineffectual. [825] + +Even the natives themselves, at times, went so far as to sue the +religious orders in the audiencia. This was done in 1738 when the +mestizos of Santa Cruz brought suit against the Jesuits, because the +latter had sought to make the residents of Santa Cruz pay for certain +improvements in the parishes of that district. These improvements had +been authorized by the Jesuits, and from them the society had derived +great benefit, while the residents had derived no particular good from +them. [826] In 1737, on complaint of the natives, an investigation was +conducted by Oidor Calderón which put a check upon certain transactions +of the Jesuits in the province of Batangas. It was proved that they +had collected rents repeatedly from the Indians for lands to which +they had no title. + +The most significant and decisive judicial authority which the +audiencia exercised in ecclesiastical matters, and that which was +productive of more conflicts and opposition on the part of the church +than any other cause, was the jurisdiction of the tribunal over +the secular church courts, at the head of which was the metropolitan +tribunal of the archbishop. The method of intervention most frequently +followed in cases appealed from the archbishop was by the entertainment +of the recurso de fuerza. [827] In this way the civil jurisdiction, +acting through the audiencia, could intervene for its own protection, +and by means of this special procedure that tribunal actually did +restrain the ecclesiastical judges more frequently and effectively +in important cases than in any other way. It was on the grounds of +fuerza that the audiencia justified its action in practically all +cases of interference with the jurisdiction of the church courts. + +Cases of fuerza were those which came to the audiencia through the +abuse of their judicial powers by prelates or ecclesiastical judges; +cases, literally, in which the latter had usurped or trespassed the +authority of the civil courts or government. [828] The execution of +the decision of an ecclesiastical judge could be suspended by an edict +of the audiencia on the grounds of fuerza, while the case was being +investigated by that tribunal. [829] The civil government usually +took the initiative in these appeals, but there were occasions in +the history of the Islands in which ecclesiastical authorities and +tribunals interposed recursos de fuerza against the archbishop. In +dealing with these cases the audiencia first ascertained whether fuerza +had been committed and then, if the results of the investigation +were affirmative, the tribunal was empowered to raise the fuerza +(alzar or quitar la fuerza) [830] and place limitations upon +the ecclesiastical authority in order to prevent future abuse of +power. [831] The audiencia was without authority to fine prelates, +bishops, or ecclesiastical judges, but it had sufficient jurisdiction +to remedy excesses and restore conditions to their former state. The +tribunal was urged to use the utmost discretion in dispossessing +offending prelates and judges of their benefices or positions, [832] +as a punishment for fuerza, and not to proceed to such lengths except +in exceptional cases, wherein the strictest measures were necessary. On +such occasions the audiencia might exile the offending ecclesiastic, +giving account of its act to the Council of the Indies. [833] All +proceedings of this nature had to be carried on secretly and with +the greatest possible dispatch and brevity, [834] and all churchmen +who were deprived of their benefices through the recurso de fuerza +had the privilege of an appeal to the Council of the Indies. [835] + +In the treatment of cases of fuerza an informal judicial hearing +was given; the spirit of the proceeding was supposed to be that of +a harmonious investigation, in which both sides, ecclesiastical and +civil, were mutually and equally concerned in the solution of a given +problem, and in ascertaining wherein error had been committed. The +object of this proceeding was said to be the furtherance of the +interests of the crown, the salvation of souls and the spread of +the benevolent influence of the church. That the spirit of peace and +harmony failed to manifest itself at many of these investigations, +is shown by the bitter contests which arose between the civil and +ecclesiastical judges as results of the entertainment of the recurso +de fuerza. The spiritual authorities alleged on these occasions that +they regarded the restraining action of the government as presumption, +unauthorized by ecclesiastical canons. + +In the well-known Pardo controversy (1683-1689), references to which +may be found in any history of the Philippines, there occurred many +occasions on which the audiencia was obliged to avail itself of the +recurso de fuerza. By this means the audiencia sought to restrain +Archbishop Pardo from usurping the civil jurisdiction and that of the +religious orders and of the metropolitan chapter. Interference with +these orders was in violation of the royal patronage, the ultimate +authority over them being the patron and not the archbishop. Such +action, therefore, became a civil offense, punishable by the civil +tribunals, the highest of which and the one properly equipped to +deal with such cases, was the audiencia. It will be noted that Pardo +paid the penalty of exile for repeatedly ignoring the audiencia and +its right of interposition through the recurso de fuerza, and the +subsequent ineffectiveness of the audiencia was due to reasons and +conditions other than the decline of the authority and importance of +the recurso de fuerza. This controversy which is more fully described +in preceding chapters affords the best example extant of the operation +of the recurso de fuerza, its nature and effects, hence the citation +of minor cases is rendered unnecessary. + +Closely related to the question of fuerza as illustrating the +jurisdiction of the audiencia over the church courts, occurs that +of the interdict. A price which the civil authorities frequently +had to pay for the entertainment of the recurso de fuerza, or any +other opposition, in fact, to the unrestricted authority of the +ecclesiastics, was the penalty which usually accompanied the interdict, +of being forbidden to participate in religious rites and ceremonies, +or to continue receiving the customary spiritual consolations and +benefits of the church. [836] The authority of the audiencia to +restrain the excessive use of this weapon by the ecclesiastics may be +considered to have been judicial in its nature, since the prelates, by +undue use of the episcopal censure, went beyond their ecclesiastical +jurisdiction and encroached upon the royal prerogative. A form of +judicial inquiry was instituted to ascertain the act and degree +of encroachment; indeed, the excessive use of the interdict was +interpreted to constitute fuerza, and the method just described was +employed by the tribunal to combat it. + +We may turn again to the Pardo controversy for an example of the +intervention of the audiencia to restrain a prelate from excessive +use of the interdict. Pardo, after his return from exile, fulminated +censures against ex-Governor Juan de Vargas and the entire audiencia +which had supported him against the archbishop. The ban against +the oidores was quickly removed, technically on the grounds that +the magistrates were still royal officials, but in reality for the +sake of expediency. Vargas, however, was not absolved. The audiencia, +according to the existing laws, had the right to force the prelate to +remove the ban, [837] but owing to dissensions within the tribunal, the +opposition of the new governor, the increasing power of the archbishop, +the certainty that the royal authority had already disapproved of its +acts, and the impending visitation of a royal commissioner (Valdivia), +who had instructions to settle the discord and strife at Manila at +any cost, the oidores thought it best not to take this step. The +archbishop refused to absolve Vargas because of the technical reason +that his case came under the jurisdiction of the Inquisition. + +The audiencia was expected to restrain the interdict whenever +this ecclesiastical prohibition interfered with the government or +incapacitated the officials thereof from executing their duties. The +interdict was not to interfere with the royal prerogative, nor was +it to be imposed for insignificant causes or personal reasons. [838] +The audiencia was given the special injunction not to interfere +with censures generally, but to permit them to be applied in needful +cases, the oidores bearing in mind only the requirement that these +ecclesiastical measures should not be allowed to interfere with the +civil government. [839] + +It had frequently been the practice of the prelates to pronounce +censures against oidores and alcaldes, who, in proceeding with +their duties as inspectors of the provinces, encroached upon +what the churchmen regarded as their own particular and private +jurisdiction. This, of course, was forbidden, and the audiencia, +by way of fuerza, usually entertained appeals from these officials +of the civil government and set aside all such acts on the part +of the representatives of the church. Reference was made in the +last chapter to the circumstances surrounding the effort of Oidor +Guerela to inspect the province of Camarines. This magistrate was +excommunicated by the bishop of that diocese and was compelled to +remain in banishment five months, the audiencia refusing to set aside +the censure on account of the personal animosity of the magistrates +toward Guerela. Nevertheless, prelates were enjoined to obey the +audiencia when that tribunal ordered the cancellation or suspension +of an episcopal censure or prohibition. [840] When an appeal was +made to the audiencia from such an act by an alcalde, oidor, visitor, +or other official at some distance from the capital, the prelate was +expected, upon the judicial summons of the audiencia, to suspend his +censure until the facts of the case had been ascertained, and the +decision of the tribunal had been rendered. [841] This was the law, +but occasionally, as in the case of Guerela, local circumstances +rendered impossible or undesirable the fulfillment of the law. + +It has been shown in the preceding chapter that before the coming of +the audiencia, the church had utilized the weapon of excommunication +on very slight pretext, and it had been partly for the purpose of +restraining this abuse that the audiencia was established. [842] The +early governors, especially, had many difficulties with this phase of +ecclesiastical high-handedness and the letters of such executives as +De Vera, Tello, Dasmariñas, and Morga complained continually against +this particular abuse of power by the prelates, [843] regretting +the lack of any authority to set aside these excessive acts on the +part of the churchmen. All the above-mentioned governors had been +excommunicated for various acts in opposition to the ecclesiastical +power. Governor Ronquillo, in the characteristic letter which is +quoted in another part of this treatise, reported that the audiencia, +after its establishment, had effectively restrained the excesses +of excommunication on the part of the church. [844] Indeed, during +the twenty-five years succeeding Ronquillo's term as governor, the +audiencia had so frequently set aside ecclesiastical censures, and +so completely terminated the abuses of the privilege of sanctuary by +friars and priests, in fact so generally held at naught the principle +of ecclesiastical immunity, that the king, on November 13, 1626, was +obliged to issue a special cédula in restraint of his Manila tribunal +and for the protection of the ecclesiastical jurisdictions. [845] + +Examination of a large number of cases shows that the method by which +the audiencia set aside excommunication was usually through an ultimate +reliance on force. Nevertheless, taking three hundred years of the +history of the Philippines into consideration, there were relatively +few cases in which matters went so far that the audiencia actually had +to use force, the case being usually that the judicial protest of the +tribunal against an abuse of this kind was sufficient. Theoretically, +any act of excommunication or interdict was suspended, ipso facto, +by the intervention of the audiencia pending further investigation, +and the prelate was required to abide by the decision of the tribunal. + +The following typical cases may be cited to show that the audiencia +frequently did rely on the civil power, as a last resort, for the +enforcement of its injunctions. In 1623, an oidor was excommunicated +for having violated the ecclesiastical sanctuary in seizing Juan +Soto de Vega, a fugitive from justice, who had taken refuge in the +cathedral. The audiencia, finding itself opposed by the metropolitan +court, sent a constable to arrest the provisor who had fulminated +the excommunication, threatening the latter with a fine of two +thousand pesos and banishment if he did not desist and cancel the +censure. The archbishop, who at first supported the provisor, was put +under military guard at the behest of the audiencia. The Jesuits then +used their good offices in behalf of the government, as a result of +which the matter was arbitrated and peace was brought about. [846] +In 1636, however, the archbishop and provisor were banished and fined +heavily, because they persisted in a censure which the audiencia +had restrained. Their continual refusal to harken to the commands +of the vicepatron and the royal tribunal and their insistence on the +censure were adjudged to constitute fuerza. This case originated in +the violation of the right of asylum by the governor and the arrest +of a murderer who had taken refuge in the Augustinian convent. So +open was the defiance of the civil government that the criminal was +executed in the courtyard, under the very windows of the convent +wherein were congregated the prelate and his supporters who were +commanded not to touch the body for three days. [847] The archbishop +was removed from his convent by soldiers at the command of the acuerdo +and banished to the island of Corregidor, where he remained twenty-six +days, after which mediation was effected and the weak old prelate, +tottering with age, was restored to his metropolitan capital. [848] +Montero y Vidal states that this case is interesting and important as +a test of the power of the governor; for many persons, he alleges, +did not believe that the governor could raise an interdict. [849] +That he was enabled to do so, with the support of the audiencia and +with the aid of his military forces there can be no question. + +Some reference should be made at this time to the abuses of the +interdict by Archbishop Pardo. This prelate went so far as to place +a ban upon the church of the Jesuits because it contained the dead +body of an offending oidor. For reasons other than the lack of legal +authority, the audiencia was powerless to restrain his censures at +that time. On another occasion the audiencia and governor, by placing +armed guards at the doors of the Dominican church and preventing +the celebration of services therein, suppressed an interdict which +had been issued through the influence of that order on behalf of +Archbishop Pardo. Governor Bustamante claimed that he was acting +in accordance with his own properly constituted authority in 1719, +when he appointed his own audiencia, set aside repeated interdicts, +penetrated the asylum of the church, arrested the archbishop and defied +the entire ecclesiastical organization. He seems to have exceeded +his powers no more flagrantly than did some of his predecessors +under like circumstances; yet, for personal and political reasons, +he was unable to count on the support of the other elements of the +colony in this struggle with the ecclesiastical power and the battle +ended disastrously for him. Acting-Governor Anda, relying on armed +force alone, defended Manila against the British, achieved victory +for his cause and secured the approbation of the king in the face of +repeated ecclesiastical censures from Archbishop Rojo. These incidents, +which occupy a prominent place in the history of the Philippines, +illustrate the usual method by which ecclesiastical censures were set +aside in actual practice, either by the audiencia or by the vicepatron, +who was supported by the tribunal. + +A department of the church over which the audiencia did not have +such complete authority, either judicially or administratively, was +the Inquisition. Properly speaking, there was no tribunal of the Holy +Office in the Philippines, the Inquisition being represented in Manila +by a commissary. [850] This representative was sufficiently powerful, +however, to constitute a worthy opponent for the civil power and one +who, on account of the immunities which he enjoyed and because of the +secret methods which he was able to employ, kept all the tribunals +and authorities of the civil government at a respectful distance. + +Although the laws of the Indies directed that the inquisitors who were +sent to the colonies should present their titles to the audiencias and +viceroys, this did not give the civil authorities any advantage over +them. The audiencia was expected to formally receive the inquisitors +and to pay them all due respect. [851] At the time of the establishment +of the Inquisition in Manila, no audiencia as yet existed. From the +very beginning, however, the dignitaries of the Inquisition were +placed under special royal protection, with complete power over +their own sphere. Officials of the government and all other persons +were warned and enjoined not to interfere with or oppose them in any +way. As early as May 22, 1610, the Council of the Indies placed itself +and all subordinate audiencias and governors in a position inferior +to that of the Inquisition. The interference of civil magistrates +with the inquisitors in behalf of the government was forbidden, [852] +even the ordinary means of protection were denied them. The recurso +de fuerza could not be employed, nor could the interdicts of the +inquisitors be raised, even in notorious cases of their infringement +upon the royal jurisdiction. [853] Little change was made in these +laws until the latter part of the eighteenth century. The oidores +were ordered to lend such secular aid as might be required, and were +originally instructed to obey the mandates and carry out the orders of +the inquisitors without inquiries into the religious reason for any +action the latter might take. Each judge, ecclesiastical or royal, +was to limit himself strictly to his own particular field and thus +conflicts of authority were to be avoided. + +The laws of the Indies prescribed many regulations which were +designed to induce harmony and co-operation between the officials +of the Inquisition and those of the civil government. Viceroys, +audiencias and governors were authorized to execute the sentences of +the representatives of the Inquisition and to extend to them every +facility and assistance. [854] Oidores and executives were forbidden +to open the mail or tamper with the correspondence or legal documents +of the inquisitors. [855] Oidores and fiscales were authorized to +give legal advice to the judges of the Inquisition when counsel +of this kind was required. [856] The inquisitors were to be given +precedence over the officials of the civil government in everything +pertaining to the official duties of the former, but in questions of +civil administration and in matters of ceremony, the oidores took +precedence over inquisitors, unless the latter enjoyed higher rank +by virtue of some other office. [857] + +The tendency of the laws, however, through a period of two hundred +years, was to delimit and circumscribe the authority of the Inquisition +in matters bordering on the jurisdiction of the civil government. This +is seen, especially, in the offense of polygamy, which, up to 1754, +was dealt with solely by the Inquisition. By the cédula of March +19th of that year, polygamy was brought under the fuero mixto; +[858] the same law ordered that prisoners, after punishment by the +inquisitorial tribunal for heresy, should be dealt with by civil +judges for an offense against the laws of the realm. On September 7, +1766, this crime was again made punishable solely by the Inquisition, +but on August 10, 1788, jurisdiction over cases of polygamy was taken +entirely from the Inquisition and given to the royal justices. [859] +This may be considered as indicative of the decline of the authority +of the Inquisition in the eighteenth century. The inquisitors, of +course, were not permitted to exercise jurisdiction over the Chinese, +or over the aboriginal inhabitants of the Islands. [860] + +In its relations with the civil power in the Philippines, and +particularly with the audiencia, two charges have been brought +against the Inquisition. The first was that in the early years of +the Islands' history, it was utilized by the prelates for the more +complete usurpation of powers belonging to the civil government and the +audiencia. The tribunal, of course, was left entirely without recourse, +by virtue of the exemptions and immunities of the Inquisition mentioned +above. On July 20, 1585, the audiencia, in a letter to the king, +cited several instances in which Bishop Salazar, unwilling to cede his +claims to jurisdiction over certain civil offenders, handed them over +to the commissary of the Inquisition, instead of surrendering them +to the audiencia, to which jurisdiction over such cases belonged. The +audiencia, appealing to the king for aid, alleged that the prelate had +taken undue advantage of the civil power, "by sheltering himself behind +the Inquisition, ... where the audiencia has no jurisdiction." [861] +This charge was also brought against Salazar by the Jesuit, Sánchez, +in his memorial of 1591. [862] It is significant that no decree was +issued during the earlier era which authorized the audiencia to repair +the abuses of the inquisitors, although on many occasions the audiencia +and the local court of the Inquisition were respectively enjoined to +confine themselves to their own particular fields of authority. [863] + +The second charge made against the Inquisition was that it allowed +itself to be influenced, utilized, and possessed by individuals +and private interests for their own selfish ends. Under these +conditions the audiencia was powerless; the Inquisition openly +fought the government and vanquished it entirely on various notable +occasions. There may be found no better illustration of this than +the Salcedo affair in 1667 and 1668, during which the commissary +of the Inquisition was the instrument of the governor's enemies, +proceeding to such excesses in his zeal that he ultimately proved to +be the agent of his own downfall. [864] + +The various sacerdotal historians of the Philippines, in treating +of the Salcedo affair, agree that the failure of the audiencia to +do its duty in checking the so-called excesses of the governor led +the prelate and the ecclesiastical dignitaries of the colony to +turn to the Inquisition for relief. [865] Among the acts of treason +and heresy of which Governor Salcedo was said to have been guilty, +the most conspicuous were his negotiations with the Dutch at Batavia +for the conquest by them of the city of Manila. [866] This was the +leading pretext for his arrest. We have already mentioned in a former +chapter that the conduct of the oidores was not above reproach on this +occasion. Immediately after the removal of the governor, a dispute +arose between magistrates Coloma and Montemayor for the control of +affairs, only to be settled by the usurpation of the government by +the ecclesiastical candidate, Bónifaz. With Salcedo out of the way +and the audiencia intimidated and powerless, the Inquisition and the +ecclesiastics ruled with a high hand for a period of three years, +until the arrival of the new governor, Manuel de León, in 1671. [867] + +The audiencia, after it had been reconstructed by Governor León, +gave some account to the king of the excesses of "Fray Joseph de +Paternina, religious of the order of San Agustín, and commissary +of the Holy Inquisition, who has been so vain and haughty since +the imprisonment of Governor Salcedo, a thing very unfortunate +for these Islands." [868] The most harmful result of the affair, +in the estimation of the audiencia, was the growing feeling on the +part of the people of the Philippines "that the Inquisition (was) +the most powerful agency there, and that every person in the colony +was subject to it." The effrontery of the commissary was said to have +gone so far on one occasion that he entered the acuerdo session of +the audiencia and violently interfered with its proceedings, forcibly +arresting and carrying away persons attendant thereupon. This defiant +and insolent act was the greatest offense that could be offered to +the royal authority, and the audiencia felt that if a continuance of +these excesses were tolerated the royal tribunal would be despised +and held at naught by the very citizens who should regard it with +the most veneration. + +A list of the acts of aggression on the part of the commissary was +submitted by the audiencia at this time. He had commuted a sentence +pronounced by the tribunal and had excused various fines imposed +by the tribunal, declaring publicly that it was not necessary to +obey the acts of this body of lawyers. He had excommunicated all the +magistrates of the audiencia, who remained for a long period without +recourse and without the privileges of religious communion. He had +interfered on behalf of an encomendero who was on trial before +the audiencia. He had produced such a state of affairs that the +impotence of the civil government was a subject of common jest, even +in the mouths of the natives. The supporters of the government had +been reduced to a panic of fear, not knowing where the wrath of the +Inquisition would fall next. The commissary, on the other hand, had +fortified himself with claims of immunity and had acted in defiance +of royal and ecclesiastical law by erecting a tribunal of which he +was the head, notwithstanding the fact that such an institution was +forbidden in the Philippines. The audiencia presented this picture +of affairs in its memorial, admitting its incapacity to cope with +this powerful institution, whose acts were prepared and executed in +secrecy. The evil situation for which he was responsible could only be +repaired by an appeal to Mexico. Meanwhile the government and people +in the Philippines were compelled to suffer the consequences of his +assumption of authority. + +There was no tribunal or any other agency in the Philippines able to +place an effective check on the triumphant inquisitor. The only relief +that could come was furnished on June 4, 1671, in the appointment of a +new commissary, who was ordered to arrest Paternina and send him back +to New Spain. This timely relief emanated from the tribunal of the +Inquisition of Mexico, which by this act manifested its disapproval +of all that had been done by its ambitious agent. On August 12, 1672, +the Council of the Indies also disapproved of Paternina's acts in +connection with the establishment of a Philippine tribunal. [869] +The new commissary did nothing toward the continuance of the tribunal +which his predecessor had established illegally. + +With these manifestations of the royal support, the audiencia, +which had been reconstituted on the arrival of Governor León, +regained its authority and proceeded ably to second the executive +in his struggle with the powerful ecclesiastical organization. The +new commissary, who had lost his papers in a shipwreck, appealed to +the tribunal for recognition and support in a struggle which he had +undertaken against the Franciscans. Through the aid given him by +the audiencia, he imprisoned the provincial and definitor of that +order. Then the audiencia reconsidered its decision and effected +the liberation of the two prisoners on the ground that the title of +the commissary did not authorize him to act at this time. [870] In +interfering with and actually cancelling the acts of the commissary, +the audiencia was exceeding its authority, for the laws prescribed +that his decisions could be reversed only by his immediate superior, +the tribunal of Mexico. However, the audiencia maintained that it +was acting in accordance with the law which authorized it to receive +and recognize inquisitors. On this occasion it was merely deciding +that the commissary was acting without proper authority since his +credentials had never arrived. [871] At this time, the moral standing +of the Philippine agent of the Inquisition was at a very low ebb, +both in Manila and Madrid, which, of course, influenced the decision +of the audiencia. + +The Salcedo affair and the succeeding events make it clear that +neither the authority of the audiencia nor of the Inquisition was +unlimited. The fear and respect with which the latter institution +was regarded contributed to its momentary triumph. The audiencia did +not interfere with or seek to restrain the acts of the commissary; +indeed, the tribunal connived at the exile of the vicepatron since the +oidores expected to profit from the act. During these three years the +Inquisition allied itself practically to every interest in the colony +which had been opposed to the governor. The royal interests were +for a time forgotten and wholly unchampioned, owing to the weakness +of the audiencia, the removal of the governor, and the united front +presented by the ecclesiastical element. This condition was altered by +the arrival of a new governor who bore evidence of the disapprobation +of the superior government. The tribunal of Mexico discountenanced the +acts of its former representative, and that disapproval was further +emphasized by the adverse attitude of the Council of the Indies. The +audiencia was restored to its proper position, and, in conjunction +with the vicepatron, it resumed its status as the agent of the royal +will. So it may be asserted that the supremacy of both authorities +was relative, recognition depending partially on local circumstances +and ultimately on the attitude of the superior government. In fact, it +may be said that the latter was the deciding factor. In the struggle +itself, before the decision of the home authorities was rendered, +the preponderance of power was enjoyed by the Inquisition. This was +owing to the advantages which law and precedent had given to it as +a privileged ecclesiastical tribunal, although the efficacy of the +Inquisition lay for the most part in the immunities which were extended +to it and in its swift, unexpected and secret methods. Its ultimate +defeat on this occasion, and the continued abuse of its power, did much +to detract from its prestige and authority in the Philippines. [872] + +During the eighteenth century considerable authority over the +Inquisition was given to the civil courts. The former position of +supremacy, wherein its authority could not be so much as questioned +by a secular tribunal, was gone forever. On August 2, 1748, a decree +was promulgated whereby chanceries, audiencias, and corregidores were +authorized to restrain any inquisitorial tribunal from maltreating +its own prisoners. [873] This same law provided for the punishment by +the civil courts of inquisitors who contravened this law. This was the +first regulation which really gave to the audiencia the power necessary +to restrain the acts of the Inquisition. We find no indication of any +such liberal legislation in the sixteenth and seventeenth centuries, +but by the time this law was promulgated, the power of the church in +Spain was considerably reduced and that of the Inquisition was already +on the decline. By a number of subsequent laws the Inquisition was +gradually but surely limited in power and authority. We have already +noted that on August 10, 1788, jurisdiction over the crime of polygamy +and over cases involving the infraction of the marriage relation +was taken from the Inquisition and given to the civil courts. [874] +By the cédula of December 12, 1807, authority was given to the royal +justices to receive inquisitors, inspect their titles and to assign +them to their districts, assisting them in all possible ways. The civil +authorities were ordered to guard against an excessive number of these +functionaries. The magistrates were especially instructed to act as +guardians of the royal prerogative in dealing with the representative +of the Inquisition and to report to the superior government on their +relations with them. By this cédula the authority of the inquisitorial +agents was distinctly limited to matters of faith, with appeal to +the tribunal of the Inquisition. The magistrates were ordered to see +that these instructions were followed. [875] In this way the civil +authorities, and particularly the magistrates of the audiencias, +became the guardians of the royal prerogative against the agents of +the Inquisition, who were kept within the proper bounds of a purely +religious jurisdiction. + +It would be desirable, did time and space allow it, to illustrate +further the jurisdiction of the audiencia over ecclesiastical affairs +by showing in detail the part which the tribunal played in the friar +lands litigation [876] and in the disputes over ecclesiastical +visitation in the seventeenth and eighteenth centuries in the +Philippines. It will be sufficient here to state that the government +sought at irregular intervals and with varying degrees of success, +to make the orders prove titles to lands in the same manner that was +required of other corporations and individuals. [877] The audiencia, +as a tribunal, and the individual magistrates as special commissioners, +participated judicially in the examination of these titles and in +the correction of the abuses which were discovered. The oidores, when +serving as special magistrates for the verification of these titles, +officiated in a double capacity. By the very nature of the services +rendered they were judges. They were also agents of the royal patron +and as such they represented the person of the king, ascertaining +whether the royal rights had been usurped or infringed upon. + +Closely similar to the jurisdiction of the audiencia as a court +of final resort in the testing of the titles to lands occupied +by religious orders was that which it exercised in the matter of +ecclesiastical visitation. This was a question of a more thoroughly +religious character which did not concern the civil government +as intimately as did the matter of friar lands. In general, +it may be said that the audiencia was utilized by both sides in +the various disputes which arose in connection with ecclesiastical +visitation. During the ecclesiastical administrations of Archbishops +Salazar, Serrano, Poblete, Camacho, Pardo and Justa y Rufina, +practically until the end of the eighteenth century, this question +was continually agitated. These archbishops attempted to visit and +inspect the curacies which were held by friars in lieu of secular +priests. [878] The archbishops relied on the audiencia for assistance +in the enforcement of their claims and the friars sought its protection +as a court of justice to shield them from the visitation of the +prelate. As in the matter of the friar lands, so in this question, +the audiencia acted both as a tribunal of justice and as an agent +and champion of the royal patronage. Indeed, the laws of the Indies +established the audiencia as a tribunal and as a compelling authority +for the enforcement of ecclesiastical visitation. [879] The archbishop +was directed to appeal to the audiencia or vicepatron for assistance +in the subjection of offending curates, [880] but he was forbidden +to visit the regulars in their convents, [881] which, of course, +did not prevent his visiting them when in charge of curacies. On the +other hand, the audiencia was forbidden to entertain appeals on the +ground of fuerza from regulars who objected to the visitation of the +prelates. [882] + +Local conditions in the Philippines did much toward determining +the character of the support rendered by the audiencia both to the +archbishops and to the friars. During the later months of the Pardo +controversy, when the audiencia had been demoralized by the triumph of +the archbishop and the visitor, Valdivia, the decision of the tribunal +had but little weight and the prelate did as he wished in regard to +the matter of visitation. In Camacho's time, when the friars were on +the point of leaving the Islands rather than submit to visitation, the +audiencia and the governor wisely counseled moderation and completely +abandoned the obstinate prelate. During Anda's term of office the +question was again taken up, but the effort to enforce the principle +was abandoned because the government could not find seculars, either +Spanish or native, to take the place of the friars who threatened to +leave the Islands if visitation were insisted upon. The magistrates +likewise rendered invaluable service in imparting legal advice to the +vicepatron, friars and others interested. They also kept the court +informed as to what was actually transpiring in the colony. It may +be seen, therefore, that the audiencia participated in two important +ways in the enforcement of episcopal visitation. It was primarily a +court; it acted as agent of the royal patron. In these capacities the +influence of the tribunal was greatest. It also exercised functions of +an advisory character in aiding the authorities concerned to ascertain +their rights according to the existing law. [883] + +In summarizing the results of the investigation with which this chapter +has been concerned, it may be said that the audiencia constituted a +court of appeal in ecclesiastical cases wherein the services of an +impartial, non-ecclesiastical tribunal were required, or wherein +the defense of the royal jurisdiction against the aggression of +the churchmen was involved. In defending the civil government from +ecclesiastical usurpation the audiencia acted in defense of the royal +patronage. 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Mexico, 1678. + + +Montero y Vidal, José + + El archipiélago Filipino y las islas Marianas, Carolinas, y Palaos; + su historia, geografía y estadística. Madrid, 1886. + + Historia general de Filipinas desde el descubrimiento de dichas + islas hasta nuestros días. 3 vols. Madrid, 1887-1895. + + +Morga, Antonio de + + Sucesos de las islas Filipinas. Obra publicada en Méjico el año + de 1609, nuevamente sacada á luz y anotada por José Rizal. Paris, + 1890. [First ed., Mexico, 1609. English translation by Henry + Stanley, London, 1868.] + + +Moses, Bernard + + South America on the eve of emancipation. New York, 1908. + + The establishment of Spanish rule in America. New York, 1898. + + The Spanish dependencies in South America. 2 vols. London, 1914. + + +Murillo Velarde, Pedro + + Historia de la provincia de Philipinas de la Compañia de + Jesus. Manila, 1749. + + +Navarrete, Martín Fernández de + + Colección de los viages y descubrimientos que hicieron por mar + los Españoles desde fines del siglo xv. 5 vols. Madrid, 1825-1837. + + + New laws of the Indies for the good treatment and preservation + of the Indians (1542-1543). London, 1893. + + Ordenanza general formada de orden de Su Majestad para el gobierno + é instrucción de intendentes subdelegados y demás empleados de + Indias. Madrid, 1803. + + Ordenanzas para el régimen y gobierno de la real Audiencia + de Manila con el reglamento para su secretaría, aprobadas las + primeras por real decreto.... Manila, 1868. + + +Pardo de Tavera, Trinidad Hipólito + + Biblioteca Filipina. Washington, 1903. + + Reseña histórica de Filipinas desde su descubrimiento hasta + 1903. Manila, 1906. + + "The judiciary of the Philippine Islands," in Census of the + Philippine Islands, I, 389-410. Washington, 1905. + + "The power of the monastic orders," in Census of the Philippine + Islands, I, 340-346. Washington, 1905. + + +Parrás, Pedro Joseph + + Gobierno de los regulares de la América. 2 vols. Madrid, 1783. + + +Pastels, Pablo + + See Colín, Francisco. + + Misión de la compañia de Jesús de Filipinas en el siglo XIX. 3 + vols. Barcelona, 1917. + + +Pérez y López, Antonio Xavier + + Teatro de la legislación de España é Indias. 28 vols. Madrid, + 1791-1798. + + +Pons, Francisco Raymond Joseph de + + A voyage to the eastern part of Tierra Firma, or the Spanish + Main, in South America, during the years 1801, 1802, 1803 and + 1804. Tr. [from the French] by an American gentleman. New York, + 1806. [First ed., Paris, 1806.] + + +Prescott, William H. + + History of the conquest of Mexico. Philadelphia, 1890. + + +Priestley, Herbert I. + + José de Gálvez: visitor-general of New Spain, 1765-1771. Berkeley, + 1916. + + +Puga, Vasco de + + Provisiones, cédulas, instrucciónes de su magestad de esta + Nueva España (1525-1563). 2 vols. Mexico, 1878-1879. [First ed., + Mexico, 1563.] + + Real ordenanza de 13 de Octubre para el restablicimiento é + instrucción de intendentes de provincias y exércitos. Madrid, 1749. + + Real ordenanza para el establicimiento é instrucción de intendentes + de exército y provincia en el virreinato de Buenos Ayres. Madrid, + 1782. + + Real ordenanza para el establicimiento y instrucción de intendentes + de exército y provincia en el reino de la Nueva España. Madrid, + 1786. + + Reales ordenanzas formadas por el superior gobierno y real acuerdo + de estas islas en 26 de Febrero de 1768. Para el buen gobierno + de los gobernadores, corregidores y alcaldes mayores de sus + provincias. Manila, 1834. + + Recopilación de leyes de los reinos de las Indias. 5th ed., + 2 vols. Madrid, 1841. [1st ed., 4 vols., Madrid, 1681; 2d ed., + 4 vols., Madrid, 1754; 3d ed., 4 vols., Madrid, 1774; 4th ed., + 3 vols., Madrid, 1791.] + + +Retana, Wencesláo Emelio + + Catálogo abreviado de la biblioteca Filipina. Madrid, 1898. + + +Ricafort, Mariano + + Reglamento para establecer la comisión de policía, ordenada con + acuerdo de la real audiencia de las islas Filipinas. Sampáloc, + 1826. + + +Robertson, James Alexander + + Bibliography of the Philippine Islands. Cleveland, 1908. + + "Catholicism in the Philippines," in The Catholic historical + review, III, 375-391. + + "Legaspi and Philippine colonization," in American Historical + Association, Annual report, 1907, I, 143-156. Washington, 1908. + + "Notes on the archives of the Philippines," in American Historical + Association, Annual report, 1910, 423-425. Washington, 1912. + + "The social structure of, and idea of law among, early Philippine + peoples; and a recently-discovered pre-hispanic criminal code + of the Philippine Islands," in The Pacific Ocean in history + (Stephens and Bolton, editors), 160-191. New York, 1917. + + +Robertson, William + + The history of the discovery and settlement of America. New York, + 1858. [First ed., London, 1777.] + + +Rodríguez Bérriz, Miguel + + Diccionario de la administración de Filipinas. 17 vols. Manila, + 1887. + + +Rodríguez San Pedro, Joaquín + + Legislación ultramarina, publicada con la colaboración de Chorot, + Pierre, y Gonzales Junguitú. 16 vols. Madrid, 1865-1869. + + +Roscher, Wilhelm Georg Friedrich + + The Spanish colonial system. E. G. Bourne, ed. New York, 1904. + + +Salazar, Domingo de + + Carta relación de las cosas de la China y de los Chinos del Parián + de Manila, enviada al rey Felipe II desde Manila el 24 de Junio + de 1590. Madrid, 1897. + + +Salazar, Vicente de + + Historia de la provincia de santissimo rosario de + Philipinas. Manila, 1742. + + +San Agustín, Gaspar de + + Conquistas de las islas Filipinas. Madrid, 1698. + + +San Antonio, Juan Francisco de + + Chrónicas de la apostólica provincia de San Gregorio de religiosos + descalzos de N. S. P. S. Francisco en las islas Philipinas, China, + Japón. 3 vols. Manila, 1738-1744. + + +Santa Cruz, Baltasar de + + Tomo segundo de la historia de la provincia de Santo Rosario de + Filipinas. Zaragoza, 1693. + + +Schmidt, Gustavus + + The civil law of Spain and Mexico. New Orleans, 1851. + + +Schurz, William Lytle + + "The Chinese in the Philippines," in The Pacific Ocean in history + (Stephens and Bolton, editors), 214-222. New York, 1917. + + "The Manila galleon and California," in The Southwestern historical + quarterly, XXI, 107-126. + + +Shepherd, William R. + + Guide to the materials for the history of the United States in + Spanish archives. Washington, 1907. + + +Smith, Donald Eugene + + The viceroy of New Spain. Berkeley, 1913. + + Sobre una reseña histórica de Filipinas. Colección de articulos + que han visto la luz pública ... en refutación de los calumniosos + errores que el Doctor T. H. Pardo de Tavera ha escrito contra las + beneméritas ordenes religiosas de Filipinas en su reseña histórica, + impresa en Manila. Manila, 1906. + + +Solórzano Pereira, Juan de + + Política Indiana. Madrid, 1776. [First ed., Madrid, 1647.] + + Superior decreto sobre las funciones que debe llenar el + Sr. Intendente de Manila tocante al tesoro agricultural é + industrial del reino. Manila, 1829. + + +Stephens, H. M., and Bolton, H. E. (editors) + + The Pacific Ocean in history. New York, 1917. + + +Ulloa, Antonio de, and Juan y Santacilla, Jorge + + Noticias secretas de América. Londres, 1826. [Abridged and + translated into English, Boston, 1851.] + + +United States, Library of Congress + + Bibliography of the Philippine Islands: a list of books with + references to periodicals on the Philippine Islands in the Library + of Congress. Washington, 1903. + + +Vander Linden, Herman + + L'expansion coloniale de l'Espagne jusqu'au début du XIXe siècle, + in Lannoy and Vander Linden, Histoire de l'expansion coloniale + des peuples européens: Portugal et Espagne. Bruxelles, Paris, 1907. + + +Veitia Linaje, Joseph de + + Norte de la contratación de las Indias Occidentales. Seville, 1672. + + +Vindel, Pedro + + Biblioteca oriental ... relativas á Filipinas, Japón, China y + otras partes de Asia y Oceanía. Madrid, 1911. + + +Worcester, Dean Conant + + The Philippines, past and present. 2 vols. New York, 1914. + + +Zamora y Coronado, José María + + Apéndice al registro de legislación ultramarina. Havana, 1835. + + Biblioteca de legislación ultramarina en forma de diccionario + alfabético. 7 vols. Madrid, 1844-1849. + + +Zúñiga + + See Martínez de Zúñiga, Joaquin. + + + + + +MANUSCRIPT MATERIALS FROM THE ARCHIVE OF THE INDIES [884] + + +I. Audiencia de Filipinas. + +(a) Ramo Secular. + +1584-1700: Consultas originales correspondientes de esta +Audiencia. 67-6-3. [885] + +1568-1808: Registros de oficios y partes: reales ordenes dirigidas +á las autoridades y particulares de la audiencia. 105-2-11 to 18. 8 +legajos. + +1594-1698: Decretos originales correspondientes á dicha +audiencia. 67-6-4. + +1600-1700: Peticiones y memoriales sueltos decretados por el +Consejo. 67-6-5. + +1567-1699: Cartas y expedientes del Gobr. de Filipinas vistos en el +Consejo. 67-6-6 to 17. 12 legajos. + +1583-1699: Cartas y expedientes del presidente y oidores de esta +audiencia vistos en el Consejo. 67-6-18 to 26. 7 legajos. + +1564-1699: Cartas y expedientes de los oficiales reales de Filipinas +vistos en el Consejo. 67-6-29 to 33. 5 legajos. + +1565-1650: Cartas y expedientes de personas seculares de dicha +audiencia. 67-6-34 to 42. 9 legajos. + +1629-1791: Reales cédulas, mercedes y informes sobre +encomiendas. 105-2-24. + +1651-1699: Cartas y expedientes de personas seculares de esta +audiencia. 68-1-1 to 2. 2 legajos. + +1616-1700: Confirmaciones de encomiendas de Indios. 68-1-5 to 16. 12 +legajos. + +1572-1691: Autos y otros papeles del Gobernador de Filipinas Don +Juan de Silva contra los oficiales reales sobre uso excesivo de sus +oficios. 68-1-21. + +1670: Expediente formado de los procedimientos de Don Francisco +Samaniego Tuesta, Oidor de la Audiencia de Manila. 68-1-23. + +1615-1837: Materias gubernativas. 105-3-12. + +1608-1762: Cartas y expedientes del presidente y oidores de aquella +audiencia. 68-4-12 to 35. 24 legajos. + +1622-1825: Reales cédulas, nombramientos y informes acerca del +presidente, oidores y subalternos de la audiencia. 106-2-15. + +1651-1850: Duplicados de gobernadores de Filipinas. 105-4-7 to 24; +105-5-1 to 24; 105-6-1 to 24; 105-7-1 to 24; 106-1-1 to 27; 106-2-1 +to 14. 111 legajos. + +1670-1831: Inventario de cédulas y consultas. 105-2-5. + +1671-1756: Indices de la correspondencia del gobor., auda., +oficiales reales y sugetos particulares del distrito de aquella real +audiencia. 68-2-30. + +1675-1765: Cartas y expedientes del gobernador de Filipinas. 68-3-4 +to 33 and 68-4-1 to 11. 40 legajos. + +1684-1744: Expediente sobre la expulsión de los Sangleyes. 68-5-16. + +1685-1688: Testimonios de autos obrados en Acapulco, Méjico +y Filipinas, en razón de descubrir los bienes del gobernador de +Manila, Don Juan de Vargas Hurtado y su cuñado Don Francisco Guerrero +Ardila. 68-1-24. + +1687-1690: Testimonios de autos sobre la rebelión, conversión y +expulsión de los Sangleyes de China. 68-1-25. + +1699-1760: Cartas y expedientes del Virrey de Nueva España que tratan +de asuntos de Filipinas. 68-3-1 to 3. 3 legajos. + +1703-1850: Duplicados del presidente y oidores de la Audiencia de +Filipinas. 106-2-17 to 25; 106-3-1 to 28; 106-4-1 to 21. 58 legajos. + +1711-1722: Expte. sobre la restitución de las plazas de oidores de +la Audiencia de Manila á Don Gregorio Manuel de Villa y Don José +Antonio Pabón; y lo resuelto contra Don José Torralba, oidor de la +misma audiencia. 68-5-30 to 31. 2 legajos. + +1715-1727: Expte. sobre los procedimientos del Gobr. Don Fernando +Bustillo Bustamante y sobre la muerte violenta que sufrió dicho +gobernador y su hijo. 68-6-1 to 5. 5 legajos. + +1718-1784: Expte. sobre competencia entre el gobernador y audiencia +sobre remisión a España bajo partida de registro de Don Diego Martínez +de Araque, regente de la misma y otros ministros. 106-5-1 to 3. 3 +legajos. + +1728-1829: Remisiones al consejo, cámara y ministros. 105-3-10 to +11. 2 legajos. + +1729-1748: Gobiernos de los capitanes generales, Marqués de Torre +Campo, Don Fernández Valdés Tamón, Don Gaspar de la Torre, é interino +del Obispo de Nueva Segovia. 105-3-25. + +1740: Duplicados de la causa criminal y prisión de Don Cristobal +Pérez de Arroyo, fiscal de aquella audiencia, remitido por el +gobernador. 106-4-23 to 28. 6 legajos. + +1746-1767: Gobierno del capitán-general, Marqués de Obando. 105-3-26. + +1752-1762: Gobiernos de los capitanes-generales, Don Pedro Manuel de +Arandía y Don José de Crispo. 105-4-1. + +1753: Correspondencia del Gobernador Marqués de Obando, dando noticias +del estado de aquellas Islas. 105-4-2. + +1755-1789: Expediente sobre expulsión de los Sangleyes ó Chinos +Católicos por delitos de infidelidad y otros durante la ocupación de +la plaza por los Ingleses. 107-2-27 to 30. 4 legajos. + +1759-1821: Correspondencia con gobernadores. 105-4-3 to 4. 2 legajos. + +1762-1766: Expediente de la reclamación hecha por Inglaterra de dos +miliones de pesos capitulados en la toma de la plaza de Manila. 107-3-1 +to 2. 2 legajos. + +1765-1824: Informes sobre materias gubernativas. 105-3-13 to 14. 2 +legajos. + +1769-1780: Gobierno del Capitán-General Don Simón de Anda. 105-4-5. + +1776-1787: Gobierno de los Capitanes-Generales Don José Vazco y Vargas +y Don Felipe Veringuer de Marquina. 105-4-6. + +1691-1819: Informe sobre el ramo de tributos y renumeración de +Indios. 108-1-9. + +1682: Materias de real hacienda. 107-3-12. + +1733-1824: Materias gubernativas de la real hacienda. 107-3-11. + +1751-1833: Expte. sobre bienes de difuntos. 107-3-9. + +1755-1830: Cuentas de tributos, contribución directa y ramo á cargo +de los corregidores y alcaldes mayores. 108-1-10 to 13. 4 legajos. + +1759-1833: Cuentas de real hacienda. 107-7-25 to 32; 108-1-1 to +8. 16 legajos. + +1762-1765: Expte. relativo al sitio y toma de Manila por los +Ingleses. 107-3-3 to 6. 4 legajos. + +1773-1821: Expedientes de provisiones de empleos de real +hacienda. 107-3-13 to 14. 2 legajos. + +1783: Expte. sobre avalúo de la alcaicería de San Fernando, manejo, +ejercicio y facultades de su castellano y lo actuado contra Don +Fernando de Mier y Noriega que fué el primero. 107-3-8. + +1787-1849: Duplicados de superintendentes é intendentes de ejército +y real hacienda. 107-5-15 to 31; 107-6-1 to 31; 107-7-1 to 21. 69 +legajos. + +1784-1787: Expediente sobre establicimiento de intendencias y +sub-intendencias. 107-5-14. + +1794: Expte. de Don Frco. Fernández Cendero, Alcalde Mayor y Capitán +de Guerra de la provincia de Ilocos, sobre su residencia pendiente +de informe de la audiencia. 106-5-4. + +(b) Ramo Eclesiástico. + +1579-1697: Cartas y expedientes del Arzobispo de Manila. 68-1-32 and +33. 2 legajos. + +1569-1700: Cartas y expedientes de los misioneros de Filipinas. 68-1-37 +to 41. 5 legajos. + +1570-1696: Cartas y expedientes de personas eclesiásticas de +Filipinas. 68-1-42 to 44. 3 legajos. + +1586-1700: Cartas y expedientes del cabildo eclesiástico de +Filipinas. 68-1-35 to 36. 2 legajos. + +1597-1698: Cartas y expedientes de los obispos sufraganeos de Manila, +á saber, Nueva Segovia, Nueva Cáceres, Santissimo Nombre de Jesús o +Cebú. 68-1-34. + +1626-1795: Reales cédulas y informes sobre diezmos. 108-5-24. + +1681-1689: Testimonios de autos respectivos al Arzobispo de Manila +y otros. 68-2-1 to 2. 2 legajos. + +1692: Expte. sobre la extrañeza y prisión del Arzobispo de Manila +Don Fray Felipe Pardo y discordias ocuridas entre las religiones de +Santo Domingo y la Compañia de Jesus. 68-2-4 to 5. 2 legajos. + +1702-1832: Consultas de materias y provisiones eclesiásticas. 108-5-21 +to 22. 2 legajos. + +1726-1815: Reales cédulas y informes sobre medias anatas y mesadas +eclesiásticas. 108-5-19. + +1751: El Gobernador Marqués de Obando da cuenta con testimonio de los +informes que se han podido adquirir sobre el número de religiosos +que hay en aquellas islas y de los que necesitan para la reducción +de los indios gentiles. 108-6-27 to 28. 2 legajos. + +1760: Expte. del Obispo de Cebú, gobernador interino de aquellas Yslas +y el Arzobispo de Manila sobre en cual de los dos había de recaer el +mando de ellas. 108-6-29. + +1762: Expte. sobre embargo de bienes de Don Santiago de Orendain y +su mujer Doña Maria Dominga Arráez, vecinos de Manila, por deudas al +ramo de bulas de la Cruzada y otros excesos. 108-7-18 to 19. 2 legajos. + +1769: Pliegos remitidos al Consejo por el arzobispo para S. S. sobre +el estado de curato y fundamentos de los regulares para eximirse de +la jurisdicción del diocesano. 108-6-5 to 6. 2 legajos. + +1772: Expte. sobre la remoción de los religiosos de S. Agustín de +las doctrinas de la Provincia de Pampanga, secularización de curatos +de aquellas Yslas y sujeción de las religiones al real patronato y +visita de los ordinarios. 108-6-31 to 35. 5 legajos. + +1777: Expte. sobre competencia entre el Arzobispo de Manila, Obispo +Sufragano de Nueva Cáceres, vice-patrono real y fiscal de la real +audiencia, por disposición al presbítero Don Vicente Ygnacio de Arroyo +del curato de Santa Cruz. 108-6-36. + +1778: Expte. sobre aprobación de las ordenanzas de la Casa de +Misericordia de Manila é el permiso concedido para que esta pueda +remitir sus cuentas sin intervención de la real audiencia. 106-5-8. + +1778: Expte. de la real audiencia sobre el espolio del Arzobispo Don +Manuel Antonio Rojo y demandas introducidas contra él. 108-7-1 to +2. 2 legajos. + +1780: Cuatro exptes. unidos sobre pago de diezmo por los religiones +y naturales de aquellas Yslas, sin embargo de no estar en +practica.... 108-7-3. + + + +II. Secretaria de Nueva España. + +(a) Ramo Secular y Eclesiástico. + +1630-1759: Consultas y decretos originales. 68-2-8 to 12. 5 legajos. + +1671-1756: Indices de la correspondencia del gobernador, audiencia, +oficiales reales y sugetos particulares del distrito de aquella +audiencia. 68-2-31. + +(b) Ramo Secular. + +1724: Expte. sobre el registro del galeón de Filipinas nombrado el +Santo Cristo de Burgos que hizo viage el año 1723 desde el puerto de +Cavite al de Acapulco. 68-6-11. + +1728-1732: Expte. de la Hermandad de la Misericordia de Manila sobre +amplificación de sus facultades y privilegios. 68-6-16. + +1735-1741: Expte. sobre los 162,992 pesos que se sacaron del +comercio. 68-6-23. + +1739-1746: Testimonio de autos originados sobre la visita y composición +de tierras encargadas al Oidor Don Pedro Calderón, del Consejo de +S. M. 68-6-26. + +1740-1744: Expte. sobre la prisión y causa criminal seguida contra Don +Cristobal Pérez de Arroyo, fiscal de la Audiencia de Manila. 68-6-28 +to 31. 4 legajos. + +1741-1751: Exptes. y autos sobre la sublevación de los pueblos tagalos +y otros por vejaciones recibidas de los religiosos de Santo Domingo +y San Agustín, pacificados por el Oidor Pedro Calderón. 68-6-40 to +44. 5 legajos. + +1743: Testimonio de autos de la visita que hizo el Oidor Don José +Ygnacio de Arzadún, remitidos por la Audiencia de Manila. 68-3-32 to +35. 4 legajos. + +1743-1753: Exptes. sobre la presa que hicieron los Ingleses del +navío Covadonga y libertad de los oficiales que mandaba.... 68-6-38 +to 39. 2 legajos. + +1745-1755: Exptes. del subdelegado Don Pedro Calderón de la Barca +sobre tierras. 68-6-45. + +1752-1755: Expte. sobre las altercaciones sufridas por el comercio +de Filipinas á causa de las novedades introducidas por el Gobernador +Marqués de Obando. 68-6-50-51. 2 legajos. + +1756-1758: Expte. sobre los excesos cometidos por el Gobernador Don +Pedro Manuel de Arandía. 68-6-53. + +1644-1760: Provisiones de plazas togados de la Audiencia de +Manila. 69-1-1. + +1654-1745: Testimonios de autos que se hallaron sin cartas de remisión +entre los papeles del distrito de la Audiencia de Manila. 69-1-13 to +17. 5 legajos. + + + +(c) Ramo Eclesiástico. + +1660-1761: Cartas y expedientes de personas eclesiásticas del distrito +de aquella audiencia. 69-1-24 to 29. 6 legajos. + +1604-1696: Expedientes sobre la visita de los religiosos por los +ordinarios. 69-1-30 to 32. 3 legajos. + +1691-1696: Exptes. sobre que en las vacantes del arzobispado de Manila, +gobierne el cabildo eclesiástico. 69-1-34. + +1698-1704: Expediente sobre la resistencia hecha por las religiones +á presentar sus títulos de las tierras y estancias. 69-1-37. + +1702-1761: Cartas y expedientes del Arzobispo de Manila. 69-1-18 to +20. 3 legajos. + +1704-1719: Expte. sobre causa formada á Fray Bartólome Marrón, de la +Orden de Predicadores, por un manifiesto esto que imprimió y publicó +sobre varios puntos de real patronato. 69-1-38. + +1710-1730: Expte. sobre corregir las ordenanzas del Colegio Seminario +de San Felipe, etc. 69-1-40. + +1730-1740: Tres testimonios de autos pertenecientes á un expediente +... del cabildo eclesiástico de Manila, sobre organización de +boletas. 69-2-1. + +1737-1746: Expte. sobre erección de un seminario para la educación +de religiosos misioneros de la Orden de San Agustín. 69-2-3. + + + + + + + +NOTES + + +[1] Vander Linden, in his L'expansion coloniale de L'Espagne (p. 360), +states that the Philippine audiencia exercised fewer governmental +functions than did the audiencias of New Spain and Peru. It is true +that the jurisdiction of the Audiencia of Manila was confined to a +territory which was politically and economically of less importance +to Spain and to the world in general than New Spain and Perú. It is +the conviction of the writer that the distance and isolation of the +Philippines, their proximity to Japan, China, and the hostile colonies +of the Portuguese and the Dutch, the necessities of self-dependence +and defense, the corruption of the governors and officials and the +problem of dealing independently with the ecclesiastical organization +within the colony, forced the Audiencia of Manila to take upon itself +powers and responsibilities as extensive, at least, as were assumed +by the Audiencia of Mexico. + +[2] "Título expedido por los Reyes Católicos, 30 de Abril, 1492," +in Navarrete, Colección de viages, II, 9-11; also see Vander Linden, +op. cit., 277-283; 338. + +[3] See Altamira, Historia de la civilización española, II, 477-480; +Bancroft, History of Central America, I, 247-288; Helps, Spanish +conquest, (1856), I, 187-227: + +In the Spanish colonies an alcalde was usually an ordinary judge, +not always trained in the law to the extent of being a letrado or +togado. An alcalde ordinario or an alcalde de ayuntamiento tried cases +in first instance. An alcalde mayor or an alcalde de partido might try +cases on appeal from these. Generally speaking, alcaldes ordinarios +were town judges, in contrast to alcaldes mayores who had provincial +jurisdiction as well. Alcaldes ordinarios and regidores were members +of the town ayuntamientos or cabildos (municipal councils). Regidores +did not exercise judicial functions. + +[4] Recopilación de leyes de los reinos de las Indias (hereinafter +to be referred to as the Recopilación), lib. 2, tit. 2, ley 13. For +an account of the Recopilación, see footnote 40, below. + +[5] Bancroft, History of Central America, I, 269; see note 27 of +this chapter. + +[6] In some of the early Spanish colonies the alcalde was elected +by his fellow-townsmen. He exercised the functions of judge and +chief executive, subject to the governor, or adelantado, and in the +absence of the latter assumed the government of the colony. Alcaldes +in new settlements or on expeditions were different in character and +exercised functions distinct from those of the alcaldes of the later +periods. This earlier type probably existed in Española under Columbus +(see Bancroft, History of Central America, I, 175, 330, note 7). That +their duties varied in different colonies may be deduced from the +statement of Bancroft that "the alcaldes mayores of New Spain under +Cortés were merely entrusted with judicial powers ... later those +of San Luís Potosí and other places acted also as lieutenants for +captains-general, and exercised, in other respects, the duties and +ceremonies of governors" (Bancroft, History of Mexico, III, 520). The +term, therefore, does not always convey a clear impression of the +exact nature of the duties attached to the office. + +[7] Bancroft, History of Central America, I, 269. + +[8] Altamira, Historia, II, 479. + +[9] Bourne, Spain in America. 222; Vander Linden, L'expansion coloniale +de l'Espagne, 339; see note in Bancroft, History of Central America, +I. 280-283. + +[10] Bourne, Spain in America, 222; Moses, The Spanish dependencies +in South America. I, 250-1; see Col. Doc. Ined., XXXI, 139-155. + +[11] Recopilación, 9-1-2, 5. + +[12] Ibid., 2-2-82, auto 36; Desdevises du Dezert, Espagne de l'ancien +régime. Les institutions. 100-101; see Veitia Linaje, Norte de la +contratación de las Indias Occidentales, passim. + +[13] Zamora y Coronado, Biblioteca de legislación ultramarina, 1, +450-451; II, 374 et seq.; also Recopilación, 9-1-1, note 1; Vander +Linden, op. cit., 344. + +[14] Desdevises du Dezert, op. cit., 100. + +[15] Escriche, Diccionario, I, 578; see Desdevises du Dezert, +Les institutions, 95-102; Robertson, History of America, IV (Book +VIII), 21. + +[16] Recopilación, 2-2-2. + +[17] By the royal decree of March 24, 1834, the Consejo de Castilla +and the Consejo de Indias were amalgamated. In place of these was +created the Tribunal Supremo de España é Indias, with judicial +functions and a Consejo Real de España é Indias for governmental +and administrative affairs. On September 28, 1836, the Consejo Real +de España é Indias was suppressed. On July 6, 1845, the Consejo de +Estado assumed charge of affairs pertaining to the Indies, with +a separate Ministerio de Ultramar. This reform was re-enacted on +September 24, 1853 (Martínez Alcubilla, Diccionario, III, 313-315; +Escriche, Diccionario, I, 578-579). + +[18] It became the practice in later years to reward successful +colonial administrators, including viceroys, governors, and +magistrates, with membership in this council. Among those so elevated +were Juan Solórzano y Pereyra, magistrate of the Audiencia of Perú, +José de Gálvez, visitor of New Spain, Governor Simón de Anda y +Salazar, and the able fiscal, Francisco Leandro de Viana, of the +Philippines. These men rendered very distinguished service in the +colonies. + +[19] Recopilación, 2-15-2 to 14; see Danvila y Collado, Reinado de +Carlos III, III, 151-157. No attempt is made here to indicate all +subsequent changes. + +[20] Oidor, a ministro togado who heard and sentenced civil suits +in an audiencia (Escriche, Diccionario, II, 661). In this treatise +the Spanish term oidor will be retained throughout to designate a +magistrate of that particular class. Oidor is sometimes incorrectly +translated into "auditor", which in English means a reviewer of +accounts (Spanish, contador). The Spanish term auditor has a special +meaning, referring to a particular kind of magistrate, as auditor de +guerra, auditor de marina or auditor de rota (Escriche, Diccionario, I, +369-371). Blair and Robertson, in their Philippine Islands (Cleveland, +1908), have used the terms oidor and "auditor" interchangeably, or +rather, in almost all cases they have translated oidor as "auditor", +but this usage will not be followed here for the reasons given. + + The oidor is also to be distinguished from the alcalde del + crimen. The latter existed only in the larger audiencias of + Mexico and Perú, or in Manila, Havana or Puerto Rico in the + later nineteenth century. Alcaldes del crimen in the sixteenth, + seventeenth and eighteenth centuries were subordinate in rank to + oidores, but by virtue of the reforms of 1812, 1836 and 1837, the + latter were required to be togados, and the ministers of all the + audiencias were placed in the same class. (Escriche, Diccionario, + I, 154; I, 363-369; II, 661; Bancroft, History of Central America, + I, 297; see also Pérez y López, Teatro de la legislación, XXI, + 351-369; IV, 525-528; Martínez Alcubilla, Diccionario, I, 525-526.) + +[21] The original cédulas refer to this audiencia as La Audiencia +Real de la Nueva España--see Puga, Provisiones, cédulas, f. 7. + +[22] Zamora y Coronado, Biblioteca, I, 452; I, 483-486; Martínez +Alcubilla, Diccionario, VIII, under "Justicia". See also Danvila y +Collado, Reinado de Carlos III, VI, 157-158. + +[23] By the royal decree of May 23, 1879, the audiencias at Havana +and Manila were each given a civil and criminal sala and a fiscal was +provided for each sala as in the audiencias of Mexico and Lima. When +it was necessary, oidores could be transferred from one sala to the +other.--Colección legislativa de España, CXXII, 1093-1100. + +[24] Recopilación, 2-15-1. + +[25] See Professor Shepherd's brief description of the governmental +machinery of Spain's colonies, in his Guide to the materials for the +history of the United States in Spanish archives, 10-12; note also +the articles recently published by Desdevises du Dezert in the Revue +historique (CXXV, 225-264; CXXVI, 14-60, 225-270) under the title of +"Vice-rois et capitaines généraux des Indes espagnoles a la fin du +XVIII siècle." + +[26] Recopilación, 2-15-17. + +[27] Ibid., 2-15-2. Although the Recopilación and Danvila y Collado +(cited in note 19) give the date of the establishment of the Audiencia +of Santo Domingo as 1526, the royal decree issued at Pamplona, +October 22, 1523, is addressed to nros oydores de la audiencia real +de la Ysla Española (A. I., 139-1-6, tom. 9, fol. 225). There are +various references antedating 1526 in this and the following legajo. + +[28] Ibid., 2-15-3. For the exact limits of this audiencia see Puga, +Provisiones, cédulas, ff. 12-13; 47-48, and Hackett, "Delimitation +of political jurisdictions in Spanish North America to 1535," in +Hispanic American Historical Review, I, 60, note 102. + +[29] Ibid., 2-15-13, 14, 15. + +[30] Ibid., 5-1-2, 3; 2-15-4, 12. + +[31] Ibid., 5-1-16. + +[32] Zamora y Coronado, Biblioteca, I, 486-487. The following will +give some idea of the size and rank of the respective audiencias +of the Spanish colonies in the later eighteenth century. This table +was compiled from the Reglamento de 4 de Mayo, 1788 (Pérez y López, +Teatro, IV, 522-524). + + +Audiencia. No. of No. of Magistrates. Salary of Total + Salas. fiscales. regent, budget, + pesos. pesos. +Lima 2 2 15 10,000 95,000 +Mexico 2 2 15 9,000 85,500 +Charcas 1 2 5 9,725 43,745 +Chile 1 2 5 9,720 43,740 +Buenos 1 2 5 6,000 36,726 +Ayres +Manila 1 2 5 7,000 31,500 +Guadalajara 1 2 5 6,600 29,700 +Guatemala 1 2 5 6,600 29,700 +Santo 1 2 5 6,600 29,700 +Domingo +Santa Fé 1 2 5 6,600 29,700 +Quito 1 2 5 6,600 29,700 +Cuzco 1 1 3 9,000 27,000 +Caracas 1 1 3 5,000 18,200 + + +[33] Solórzano y Pereyra, Política Indiana (Madrid, 1647). This +was the first great general work on the political institutions +of the Indies, and probably the most valuable and comprehensive +of its kind ever published, barring possibly the Recopilación. It +comprises history, description, law, discussions of suits and cases, +litigation and legal citations. Its ample title-page states that +it is "divided into six books, in which, with great distinction +and study, are treated and resolved all matters relating to the +discovery, description, acquisition and retention of the Indies, +and their peculiar government, as well as concerning the persons of +the Indians and their services, tributes, tithes and encomiendas, +as concerning spiritual and ecclesiastical affairs and doctrine, +inquisitors, commissaries of crusade and of the religious. And in +regard to temporal affairs, concerning the secular magistrates, +viceroys, presidents, audiencias, the Supreme Council and its junta +de guerra, including a setting forth of the many royal cédulas which +have been despatched for the latter." Solórzano y Pereyra contributed +largely to the codification of the laws of the Indies. + +[34] See Chapter X of this book. + +[35] Recurso de fuerza, see footnote 3, Chapter XI of this work. + +[36] The origin and nature of the acuerdo is explained in Chapter VI, +note 78, of this book; see also Chapter III, note 37. + +[37] The oficiales reales consisted of the tesorero (treasurer), +contador (accountant) and factor (disbursing officer and supply +agent). See Recopilación, 8-4-34, 35; 8-2-5, 6. + +The laws of March 2, 1618, and of November 17, 1626, ordered that in +colonies having audiencias the acuerdos de real hacienda should be +attended by the president (governor or viceroy), fiscal, senior oidor, +and oficial real, respectively. In case there were no audiencia, +the session should then consist of all the oficiales reales and the +governor, and then the votes of the treasury officials should be final +(Recopilación, 8-3-8, 11, 12). Under certain circumstances the factor +was assisted by a veedor and a proveedor. The duties of the latter +officials were largely administrative (ibid., 8-4-38 to 39). + +Bancroft (History of Mexico, III, 520) states that "the provinces of +royal officials [oficiales reales] were merely revenue districts whose +heads received their appointment from the king, and administered +their office under a certain supervision from the viceroy and +governors attending their councils; yet they were responsible only +to the tribunal of finance in the viceregal capital, and this again +reported direct to Spain." See also Priestley, José de Gálvez, 76-82. + +[38] Bull of the Santa Cruzada, the apostolic bull by which the popes +conceded certain indulgences to those who went to the conquest of +Jerusalem, and later to the Spaniards who contributed alms to aid +in the war against the Africans. It was called cruzada because +the soldiers wore crosses as emblems (Escriche, Diccionario, I, +462). Funds for this purpose were raised in the Philippines, paid +into the insular treasury and deducted from the subsidy at Acapulco +(Recopilación, 1-20-24). As noted above, an oidor acted as asesor of +these funds (ibid., 2-16-23). + +[39] Solórzano y Pereyra, Política Indiana, II, 271-279. + +[40] The first attempt at the codification of the laws for the +governing of the colonies was made in New Spain in 1545, when the +ordinances for the government of that viceroyalty and audiencia +were printed. This collection was given the royal approval in +1548. A similar compilation was made in Perú in 1552 by Viceroy +Mendoza. The first intimation of a universal code is to be found +in the recommendations of the fiscal of the Council of the Indies, +Francisco Hernández de Liebana, in 1552. On September 4, 1560, Luís +Velasco, viceroy of New Spain, was ordered to print a compilation +of laws for the Audiencia of Mexico. This commission was given to +Oidor Puga of that tribunal and executed in 1563. In 1569 Viceroy +Francisco Toledo was ordered to make a similar compilation for Perú, +but the work was not completed at that time. The first volume actually +printed by authority of the Council was accomplished in 1593. This +was the beginning of the code of the Indies, but the volume which was +published pertained only to the regimen of the Council of the Indies +itself, and made no regulations for the colonies. A more extensive +collection of provisions, letters, orders and cédulas was published +on the authority of the Council by Diego de Encinas, a clerk of that +tribunal, in 1596. In 1603, the Ordenanzas reales para la Casa de +Contratación de Sevilla y para otras cosas de las Indias were printed +in the same city. Another ordinance was published for the regulation +of the contaduría mayor. + +Various compilations were made by the oidores from time to time, either +for their own use, or in compliance with the royal commands. Among +the latter, perhaps the most famous and certainly the most useful was +that of Juan de Solórzano y Pereyra, oidor of the Audiencia of Perú +and later a member of the Council of the Indies. This collection +was made at Lima in compliance with the commission of Philip IV, +issued in 1610. The work, consisting of six volumes, received +the stamp of royal approval on July 3, 1627. In 1623 León Pinelo +published a Discurso sobre la importancia, forma, y disposición de la +recopilación de leyes de Indias. On April 19 of that year Pinelo was +ordered to make an examination of all the existing laws and cédulas +relative to the government of the colonies, printed or in manuscript, +with a view to codification. A magistrate named Aguilar y Acuña was +ordered to collaborate with him. The result of these proceedings was +a Sumario de la Recopilación General, which continued under process of +compilation for a half century. It was finally perfected and published +in 1677. In 1668 Pinelo's work was issued as the Autos acordados y +decretos de gobierno del Real y Supremo Consejo de las Indias. + +Although the collection was practically ready by 1677, it was not +officially accepted until May 18, 1680. On that day it was promulgated +by Charles II, king of Spain. On November 1, 1681, the work was ordered +published by the India House, and the Recopilación de los Reynos de +Indias was issued at Madrid in four volumes. Subsequent editions were +printed in 1754, 1774, 1791 and 1841. The last-mentioned contains in +its index reforms down to 1820. A Recopilación Sumaria was published in +Mexico in two volumes in 1787. The compilations of Zamora y Coronado, +Rodríguez San Pedro and Pérez y López, cited repeatedly in this work, +contain later laws, and serve in the place of the Recopilación for +the more recent periods. + +Authorities: Solórzano y Pereyra, Política Indiana, I, Introduction; +G. B. Griffin, "A brief bibliographical sketch of the Recopilación de +Indias" in Historical Society of Southern California, Publications, +1887; Fabié, Ensayo histórico de la legislación española; Puga, +Provisiones, cédulas, (1563); Garcia Icazbalceta, Bibliografía +Mexicana del siglo XVI, (1886), 25-26; Bancroft, History of Mexico, +III, 550-551; History of Central America, I, 225-288; Antequera, +Historia de la legislación española, 480-483. + +[41] Altamira, Historia, IV, 165-166. + +[42] Recopilación, 5-2-2, 3, 7, 15, 19, 28. In this case a local +military functionary. + +[43] Ibid., 37, 39, 41; Moses, Establishment of Spanish Rule in +America, 83-84; Vander Linden, L'expansion coloniale de l'Espagne, +345-361. + +[44] Repartimientos or polos; referring to the forced labor of natives +on public works, such as ship and road-building. The provincial +officials exercised supervision over this obligatory service, and were +held responsible for the proper execution of the laws appertaining +thereto (Blair and Robertson, The Philippine Islands [hereinafter +cited as Blair and Robertson], XIX, 71-76). + +[45] Cartas y expedientes de gobernadores de Durango, (1591-1700), +Archivo de Indias, Sevilla, [hereinafter cited as A. I.,] 66-6-17, +18 (these numbers refer to archive place); Cartas y Expedientes del +Virrey de Mégico que tratan de asuntos de Guadalajara (1698-1760), +A. I., 67-2-10 to 13. These two series contain hundreds of letters +on this subject, as do other series, relating to Nuevo León, Nueva +Galicia, Nueva Vizcaya, and New Mexico. + +[46] This was true of San Luís Potosí and Guadalajara in New Spain. See +Bancroft, History of Mexico, III, 520; History of Central America, +I, 297; Moses, Establishment of Spanish rule in America, 83. + +[47] Bancroft (History of Central America, I, 297) defines the +corregidor as a magistrate with civil and criminal jurisdiction in +the first instance, and gubernatorial inspection in the political +and economic government of all the towns of the district assigned +to him. There were corregidores letrados (learned in the law), +corregidores políticos (political and administrative), de capa +y espada (military) and políticos y militares (administrative and +military). When the corregidor was not a lawyer by profession, unless +he had an asesor of his own, the alcalde mayor, if possessed of legal +knowledge, became his advisor, which greatly increased the importance +of the last-mentioned official. The alcalde mayor was appointed by +the king. It was required that he should be a lawyer by profession, +twenty-six years of age, and of good character. Practically, in cases +of this kind, when the governor was not a letrado, civil, criminal, +and some phases of military authority devolved on the alcalde mayor; +the first two ex-officio, and the latter as the legal advisor of the +military chief. In new colonies this officer was invested with powers +almost equal to those of the governor.--See Recopilación, 5-2. + +[48] The first encomiendas in the Philippines were granted by +Legaspi in 1572 (Montero y Vidal, Historia general, I, 42-43). The +encomenderos ruled the Indians in their care with little interference +from alcaldes mayores, corregidores, or governors. Vander Linden +especially emphasizes the fact that the encomenderos were not supposed +to act as the private masters of the Indians on their holdings, +but were to act as the representatives of the king (Vander Linden, +L'expansion coloniale de l'Espagne, 345-346). The laws of the Indies +specified that the encomenderos were to protect, aid and educate +them, seeing particularly that they were taught the Catholic Faith +(Recopilación, 6-8, 9, 10, 11; esp. tit. 9, laws 1-4). + +The encomenderos, in the guise of benefactors, guardians and protectors +of the Indians, supervised the labor of the latter on the encomiendas, +drawing remuneration therefrom, collecting tribute from them, and +retaining a share of that. Aside from the very intimate relationship +of the encomenderos as the guardians of the Indians in spiritual and +temporal things, they were not considered as officials in the same +sense as were the alcaldes mayores and corregidores. + +Dr. Pardo de Tavera characterizes the duties and relations of the +encomenderos to the Indians as follows: "The encomenderos were the +first Spaniards after the conquest and pacification of the colony who +represented the civil authority of Spain in the Islands: they were +obliged to maintain order and secure the well-being of the Indian +residents of their encomiendas or holdings, and to defend their +tenants against any encroachments on their rights by the Spaniards, +soldiers, alcaldes, and judges; and to endeavor to bring their tenants +together in towns and furnish them with opportunities to be converted +to the Christian religion, and to help them build churches and convents +... encomenderos were charged with the succor and support of the people +on their holdings in case of any calamity, famine or public disaster, +and they were prohibited from charging tribute in bulk against the +various barangayes, that is to say, they should not make the chiefs of +a family or tribe responsible for the payment of tribute by the various +members, nor were the encomenderos allowed to use force to secure the +payment of a tribute. When an encomendero received a tribute from his +people, he thereupon was considered to have assumed the duty of acting +as their protector" (Pardo de Tavera, Philippines census [1905], I, +330). Suffice it to say that, theoretically, the encomenderos were +the fatherly protectors and benefactors of the helpless, childlike +natives, and their every act was to be for the good of their wards. + +[49] Antequera, Historia de la legislation española, 486-487; Bourne, +"Historical introduction," in Blair and Robertson, I, 56. + +[50] Recopilación, 6-8-38 to 39; 8-9-20 to 24. It seems that the +oficiales reales merely supervised the collection of tribute, which +was really accomplished in the provinces by the alcaldes mayores +and corregidores, who acted as their agents. Martinez de Zúñiga, An +historical view of the Philippine Islands, I, 2; Ordinances of Good +Government, Blair and Robertson, L, 191-264; Recopilación. 6-5-64; +Montero y Vidal, Historia general, I, 380-385. + +[51] The Relación of Miguél de Loarca, alcalde mayor of Arévalo, Panay, +gives us a good idea of the rapidity with which this institution spread +within ten years in the Philippines. It indicates the extent to which +the encomienda was utilized as a means of opening up and settling the +country. This report is dated June 12, 1582. At that time there were +three principal centers of administration in the Islands: Manila, +Cebú and Arévalo. About thirty encomiendas were located close to +Manila, ten were near to Cebú, and fifteen near to Arévalo under the +jurisdiction of Loarca. The latter group consisted of about 20,000 +Indians. Encomiendas varied in size from 250 to 1500 natives, but +the ideal encomienda was supposed to contain 500 souls. By cédula, +of August 9, 1589, royal authority was extended for the increase of +the size of encomiendas in the Philippines to 800 or 1000 persons, +if necessary, in order to bear the greater expenses of instruction and +defense. This was bitterly opposed by the churchmen on account of the +additional missionary labors incumbent on the priests assigned to these +larger encomiendas (Cédula of August 9, 1589, A. I., 105-2-11). Philip +II, on November 30, 1568, had ordered that no encomienda should yield +more than 2000 pesos (Recopilación, 6-8-30). + +Loarca states that there were also encomiendas in the Camarines +provinces in southeast Luzon and in IIocos, in the north of the same +island. These encomiendas were under the jurisdiction of the alcaldes +mayores and corregidores governing those provinces. (Relation by +Loarca, Blair and Robertson, V, 35-187.) + +[52] Report of Governor Dasmariñas on the encomiendas of the +Philippines, May 31, 1591, in Blair and Robertson, VIII, 96-141. + +[53] Blair and Robertson, VII, 269-294, Salazar to the Governor, +January 25, 1591; Reply of the Governor [no date], ibid., 294-300; +Carta del Obispo de Manila sotre la muerte de Ronquillo y los excesos +que este cometió..., A. I., 68-1-32; Memorial de las cosas ... dignas +de remediar en la Isla, Zulueta Papers. Place numbers not given. These +are examples of the hundreds of complaints, mostly by churchmen, +against the abuses of the encomenderos. It would be impossible to +cite them all. + +The Zulueta Papers are transcripts from the Archive of the Indies of +Seville, the National Library of Madrid, and the British Museum. They +were copied under the direction of a Filipino scholar, Señor +Zulueta. These Papers are now in the Philippines Library at Manila. + +[54] On June 4, 1620, the governor of the Philippines was authorized +to bestow encomiendas, with the provision that if he neglected +to do so for a period of sixty days the vacant holdings should be +bestowed by the audiencia. On October 24, 1655, Philip IV ordered +that acting viceroys and acting governors should be limited to the +faculty of providing encomiendas ad interim, subject to the subsequent +ratification of the Council of the Indies (Recopilación, 6-8-8, 1-4, +5, 8, 11, 22). + +[55] Blair and Robertson, III, 304-306. + +[56] In this connection may be noted the distinction between +the two classes of encomiendas which was made for purposes of +administration. Private encomiendas were those which had been +granted to private persons, conquerors, discoverers, soldiers, or +persons who paid a regular rent, usually a third of the gross tribute +collected. These were originally granted for life, and might be held +for two subsequent generations. Later (after 1655), the usual period +of confirmation was ten years, for persons who rented encomiendas +as a business proposition. The royal encomiendas were situated near +cities or ports and the income from them was reserved for the expenses +and necessities of the royal estate, the payment of salaries, and +other governmental expenses. Private encomiendas became royal on the +death of an incumbent if he had no heirs, or on the expiration of the +contract. The tribute from royal encomiendas was collected by the royal +treasury. Morga's Sucesos, Blair and Robertson, XVI, 157; also ibid., +VIII, 27; see Bourne, "Historical introduction," ibid., I, 39-40. + +On June 7, 1597, the king, as a suggestion for the increase of funds +for the maintenance of the government, wrote to the audiencia that a +greater number of royal encomiendas should be established, and that +the governor should not be permitted to assign so many to private +persons (King to the Audiencia, June 7, 1597, A. I., 105-2-1). On +February 16, 1602, the king again addressed the audiencia on the +subject of the royal encomiendas, desiring to know why the tribute +from them had so materially decreased, it having reached the low mark +of 2500 pesos. In answer, the same reason for this falling off was +suggested as in the letter above quoted, namely, that the governor +had assigned many encomiendas to his friends (King to the Audiencia, +February 16, 1602, A. I., 105-2-1). Francisco de la Misa, factor of +the royal treasury of Manila, in a letter to the king, dated May 31, +1595, stated that the royal encomiendas, which had been established to +provide revenue for the payment of the salaries of alcaldes mayores, +tenientes, oficiales reales, and even that of the governor, had +diminished greatly in number, so that not enough revenue was derived +from them to meet the expenses for which they had been created. Misa +concluded with a recommendation that eight royal encomiendas of the +value of 8000 pesos a year should be established out of the first +private encomiendas that were vacated (Misa to the King, May 31, +1595, A. I. 67-6-29). + +[57] Salazar to the Council of the Indies, June 20, 1582, A. I., +68-1-32. + +[58] Ronquillo de Peñalosa to the King, July 15, 1582, A. I., 67-6-6. + +[59] Morga's Sucesos, Blair and Robertson, XV, 59-60; Carta del +Obispo de Manila sobre la muerte de Ronquillo, y de los excesos que +este cometio, ... A. I., 68-1-32. + +[60] Ibid. + +[61] The cédula of March 1, 1551, had forbidden the bestowal of +encomiendas on ministers of justice, treasury officials, viceroys, +ecclesiastics, and governors. According to the terms of the appointment +of Gonzalo Ronquillo de Peñalosa as proprietary governor, he had been +allowed an encomienda in each principal town. See Recopilación, 6-8-12. + +[62] Op. cit. + +[63] Including the two principal Spanish historians of the Philippines, +Martínez de Zúñiga (Estadismo, I, 243) and Montero y Vidal (Historia +general, I, 88). + +[64] These letters, dated June 18, 1583, are among the Zulueta Papers +at Manila. + +[65] A procurador, according to Escriche (Diccionario, II, 759), +"is one who, by virtue of power or faculty conceded by another, +acts in his name." There were in later times several procurators +representing different interests of the Philippines at the Court +of Madrid. The associated merchants had one or more, the consulado, +each religious order, etc. These procuradores were usually lawyers, +not infrequently men who had been in the islands. An interesting +parallel might be noted between the procuradores and the American +colonial agents of prerevolutionary days. Zúñiga here gives Rivera +entire credit for the bringing of the audiencia to Manila--op. cit., +I, 175. See note 16, supra. + +[66] The alcabala (al que vale, "according to value") was a +percentage tax levied on goods (movable and immovable) sold or +exchanged. Merchants were held accountable for the payment of this tax, +and for this purpose their accounts were examined by royal officials +at regular intervals (Escriche, Diccionario, I, 143). It was first +introduced into the Indies by Philip II in 1574, having been levied in +Spain as early as 1079, though not in its perfected form. In accordance +with the tariff of November 1, 1591, it was exacted from merchants, +apothecaries, encomenderos (having farms and cattle-ranches), +ragpickers, cloth-makers, silversmiths, goldsmiths, blacksmiths, +and shoemakers. An alcabala was paid on wine. By the cédula of June +7, 1576, the rate of alcabala was fixed at two per cent. In Perú it +was raised to four per cent during the administration of the Conde +de Chinchón as viceroy and was collected at that rate there until the +cédula of July 26, 1776, raised it to six per cent. This rate was paid +thereafter in the Spanish colonies (Recopilación, 8-13-1 to 14, notes, +2 and 4), except for an increase in the rate to 8 per cent in 1782, to +meet the added expenses of war. The old rate of 6 per cent was restored +in 1791 (transcripts of these cédulas exist in A. I., 87-1-20). + +Exemptions from this tax were made in favor of churches, monasteries, +and prelates when they bought or sold goods not for profit. When they +engaged in commerce for its own sake they were obliged to pay the +alcabala in the same way as laymen (Recopilación, 8-13-17). Goods +belonging to the Santa Cruzada, provisions bought, sold or stored +which were destined for the poor, and munitions of war paid no alcabala +(ibid., 18-23). Indians were also exempted under certain circumstances +(ibid., 24; see entire Title 13 of Book 8, Recopilación, for further +specifications regarding the payment of this tax). In 1568 Philip +II exempted the Philippines for thirty years. As noted above, the +alcabala was not introduced regularly into the Indies until 1574, +though it was levied in individual cases as early as 1558. Even +earlier than this Pizarro had obtained the right to levy it in Perú +for a period of a hundred years (ibid., 8-13-1; note 1), but Philip II +ordered it paid in the Philippines on August 9, 1589 (ibid., 9-45-66). + +The almojarifazgo, like the alcabala, had been utilized early in the +history of the Peninsula and because a productive source of revenue, +it was introduced into the Indies. The earliest law dealing with +this tax in New Spain was promulgated by Charles V on October 18, +1553, exempting cargoes which had already paid the tax in Spain. On +June 24, 1566, and on December 28, 1568, Philip II ordered a five +per cent export tax on all goods leaving Seville for the Indies +(the ordinance of December 28, 1562, having fixed it at two and a +half per cent) and an import tax in the Indies on these same goods +of ten per cent, making in all a tax of fifteen per cent. Wine was +to pay a ten per cent import and export tax respectively, making a +total of twenty per cent paid on that commodity (ibid., 8-15-1, 2, +8). The law of April 21, 1574, ordered a two and a half export and +a five per cent import tax on goods shipped between colonies (ibid., +10). On August 9, 1589, a three per cent almojarifazgo was authorized +in the Philippines, with exemptions on provisions, munitions, and +other specified articles brought to the Islands by the Chinese, +Japanese, Siamese, and Borneans (ibid., 22, 24). The tax on Chinese +merchandise was raised from three to six per cent on November 20, +1606 (ibid., 23). Chinese goods from the Philippines paid a ten per +cent almojarifazgo at Acapulco. This tax was also paid on leaving +the Philippines or other New Spain ports and on entrance at Acapulco +(ibid., 21). For exemptions see Recopilación, 8-15-26 to 30. + +[67] Rivera to the King, February 16, 1582, A. I., 1-1-2/24. + +[68] A legal defender of the Indians was wanted in this case to serve +them in the courts. The bishop, at this time, was protector of the +Indians and in that capacity had protested against the abuses of the +encomenderos. The bishop, of course, could not enter the courts and +defend the Indians in litigation. + +The law of March 17, 1593, which ultimately established a defender +of the Indians in Manila, filled the need voiced by Rivera. The +law referred to read as follows: "The protection and defense of the +Indians in the Philippines was entrusted by us to the bishops there, +but having recognized that the latter cannot conform to the demands, +autos and judicial summons which require their personal presence, +we order that our president-governor shall name a protector and +defender of the Indians, assigning to him a sufficient salary from +the taxes levied pro rata upon the Indians who are under the royal +jurisdiction and on private encomiendas, without touching the revenues +of our royal hacienda which are for other purposes. And we declare that +this does not signify that it is our intention to deprive the bishops +of the superintendence and protection of the Indians in general" +(Recopilación, 6-6-8). + +Philip II, on January 10, 1589, restored the office of protector or +defender of the Indians in the Indies generally. It was stated in +this law that as a result of the earlier abolition of the office +many inconveniences and injustices had arisen. The law authorized +the appointment of a person of good character and morals to the +office (ibid., 1). The reform of April 9, 1591, required that the +appointee should be a lawyer, and that there should be a defender of +the Indians attached to each audiencia (ibid., 3). The reform of March +11, 1784, provided that the fiscales should name these protectors in +the future. (Ibid., note 1.) + +[69] The Audiencia of Guadalajara was at that time subordinate to +the Viceroy of New Spain in matters of war, government, and finance +(hacienda). Ibid., 2-15-47, 49 to 54. + +[70] Rivera to the King, June 26, 1583, A. I., 1-1-2/24. + +[71] Foundation of the Audiencia, Blair and Robertson, V, 274-318; VI, +35-43; also in A. I., 1-1-3/25, the latter being the original cédula, +signed by the king and ministers. + +[72] Ibid. + +[73] Permission had been granted by Philip II on July 4, 1570, +to enslave Mindanaos. A second cédula permitting the Spaniards in +the Philippines to do this was promulgated by Philip III on May 29, +1620. This act was rendered justifiable in the eyes of the Spaniards +by the fact that they were dealing with semi-savages who were of +the Mohammedan faith, and accordingly the ceaseless enemies of the +Spaniards. Recopilación, 6-2-12. + +[74] Recopilación, 3-10-13, 14; see Chapter VIII of this book. + +[75] Recopilación, 2-15-55, promulgated November 4, 1606; see also +6-18-5 and 5-3-24. + +[76] Dávalos to the King, July 3, 1584, A. I., 67-6-18. + +[77] Audiencia to the Council of the Indies, June 26, 1586, A. I., +67-6-18. + +[78] The Recopilación is singularly indefinite regarding the rate or +amount of tribute to be assessed in New Spain. Beyond the stipulation +that tribute levied under the supervision of viceroys, presidents, +and audiencias should be moderate and just, practically nothing is +said as to the amount that should be collected (See cédulas of June 19, +1536, and September 29, 1555, Recopilación, 6-5-21), excepting certain +increases as stipulated in the law of November 1, 1591 (ley 16). + +According to the laws just cited, the rate was to be fixed by the +officials mentioned above. By cédula of December 19, 1534, the +oficiales reales were empowered to fix the rate of tribute (ibid., +28). Reductions in the rate of tribute were to be authorized by +the fiscal and oficiales reales (ibid., 29). Apparently the rate +varied according to the locality (ibid., 1 to 5, 16, 17), and in the +cédulas of 1536 and 1555, cited above, consideration was given to +the rate formerly paid by the Indians to their caciques. Fonseca y +Urrutia (Historia de la real hacienda, I, 417 et seq.) tell us that +the tribute paid in the province of Tlascala in 1572 was 13 reales; +in 1564 the rate for New Spain was fixed at two pesos, and in 1600 it +was reduced to one peso of eight reales. (Bancroft, History of Mexico, +II, 586-9.) Humboldt (Political Essay, II, 431-2) states that there +had been a gradual diminution of tribute paid by the Indians during +the hundred years preceding his visit. In 1601, he states, Indians +paid 32 reales tribute and 4 reales additional, de servicio, in all, +about 23 francs. It had been reduced, little by little, till the +amount actually paid was from 5 to 15 francs, and, "in the greater +part of Mexico," he states, "the head-tax amounts to 11 francs." + +Archbishop Benavides, of Manila, writing in 1600 (Zulueta Papers, +date and place number not given) pleaded for the abolition of the +tribute in the Philippines, stating that while the collection of +tribute in New Spain was justifiable because the natives had been +accustomed to paying tribute before the Spaniards came, the custom was +entirely new in the Philippines, since the native princes had never +levied tribute. On the other hand, various persons writing from the +Philippines at different times urged that the tribute there should +be increased to the rate imposed in New Spain. + +The money value of the tribute in the Philippines was fixed at eight +reales by Legaspi. It could be paid either in gold or in kind. De +Morga tells us that the encomenderos made great profit by receiving +the payment in rice, cotton, cloth, fowls, and other commodities, at +a cheap rate, selling those same articles later to the improvident +natives at greatly increased prices (Morga's Sucesos, Blair and +Robertson, XVI, 159). When Dasmariñas arrived as governor in 1590, +the tribute was raised from eight to ten reales (cédula of August 9, +1589, Recopilación, 6-5-65, also A. I., 105-2-11). While the eight +reales were to be appropriated by the encomenderos, the additional +two reales were to be distributed between the religious and military +governments in proportions of one-half to one and a half (Blair and +Robertson, XVI, 160). + +In the instructions of May 23, 1593, to Governor Dasmariñas, reference +was made to a current rate of eight reales (ibid., IX, 249), so it +would seem that the local rate had been reduced from ten to eight +reales at some date between 1589 and 1593. On February 16, 1602, +the rate was restored at ten reales (Recopilación, 6-5-65), and was +so continued until a subsequent regulation made optional on the part +of the natives the payment of the ten reales or four reales and a +fowl. On August 19, 1623, Fray Juan de Balmaseda complained that the +encomenderos were making the natives pay ten reales in addition to +the fowl and that the above law was thus resulting in the payment of +sixteen reales tribute (A. I., 68-1-63). Accordingly, on November 21, +1625, a cédula was issued which eliminated the substitution of the +fowl, and the rate was restored at ten reales, payable in gold or +silver (A. I., 105-2-1). The king, in response to complaints against +the collection of tributes in the provinces of Camarines and Albay, +issued a cédula on September 25, 1697, ordering the observance in +the Philippines of Book 6, Title 5, of the Recopilación de Indias, +which meant the correction of the abuse above referred to (A. I., +68-4-12). It would seem that the rate of ten reales was levied +throughout the seventeenth century. + +[79] Audiencia to the Council of the Indies, June 26, 1586, A. I., +67-6-18. + +[80] Dávalos to the King, June 20, 1585, A. I., 67-6-18. + +[81] Pereyra to Santiago de Vera, July 10, 1597, A. I., 68-1-33. + +[82] This involves the real patronato, which will be dealt with in +Chapter X of this book. + +[83] Dávalos to the King, June 20, 1585, A. I., 67-6-18. + +[84] Memorial of Salazar, June 24, 1590, A. I., 67-6-67. + +[85] Ibid. + +[86] Memorials of the organization and officials of Manila for the +removal of the royal audiencia, June 26, 1586, A. I., 68-1-33. + +[87] Dávalos to the King, June 20, 1585, A. I., 67-6-18. + +[88] Santiago de Vera to Contreras, June 20, 1585, Blair and Robertson +VI, 67-68. + +[89] See Recopilación, 9-45, for regulations of the galleon trade +between Acapulco and Manila. By these laws, promulgated from 1583 to +1636, the governor of the Philippines was given authority in Manila +over the dispatching, manning, lading, and control of the galleon +(see Recopilación, 9-45-3, 4, 20, 24, 29, 40, 41, 42, 44, 45, 59). He +retained these powers until the latter part of the eighteenth century, +when the abuses resulting from his control were eliminated (Martínez +de Zúñiga, Estadismo, I, 268). + +[90] Montero y Vidal, Historia general, I, 94-95; Martínez de Zúñiga, +An historical view, I, 183-186; see Ortega's Memorials to the King, +Blair and Robertson, IX, 95-119. + +[91] Memoria y consultas de Fr. Alonso Sánchez (no date given), +A. I., 67-6-27; see also Juan de la Concepción, Historia general +de Filipinas [cited hereinafter as Concepción, Historia general], +II, 103-184. These agreements are interesting because they show +how intensely nationalistic were the respective sentiments of the +Spaniards and Portuguese with regard to their Asiatic colonies, +notwithstanding the fact that since 1580 the home governments of +the two nations had been united. This correspondence illustrates +the fact that the Portuguese regarded their former colonies as still +distinctively their own. + +[92] Royal cédula for the restoration of the Audiencia of Manila, +November 25, 1595, A. I., 106-4-19. + +[93] Morga's Sucesos, Blair and Robertson, XV, 65-66. + +[94] Suppressed Audiencia to the King, June 20, 1590, Blair and +Robertson, VII, 208-211; also Recopilación, 2-15-181. + +[95] Salazar to Felipe II, June 24, 1590, Blair and Robertson, +VII, 252. + +[96] Morga's Sucesos, Blair and Robertson, XV, 75. + +[97] Dasmariñas to Felipe II, June 20, 1591, Blair and Robertson, +VIII, 142-168, passim. + +[98] Salazar, on reaching the Spanish court, was made first archbishop +of the Philippines. He died on December 4, 1594, before he could +assume his new post. + +[99] Cédula of January 17, 1593, Blair and Robertson, VIII, 315. + +[100] Ibid.; see also cédula of same date in Recopilación, 6-6-8. + +[101] Morga remained in the Philippines throughout a period of +eight years and during this time distinguished himself as a lawyer +and judge, administrator, soldier, and later as a historian. It was +due to his energies as senior magistrate that Van Noordt, the Dutch +free-booter, was defeated at the entrance of Manila Bay. Morga, in +his Sucesos, already quoted several times, has left us a scholarly +view of conditions as they existed at the time of his residence in the +Islands. Morga left the Philippines on July 10, 1603, with a promotion +to the Audiencia of Mexico; he served in New Spain for several years +and in 1616 he was again promoted to the post of president of the +Audiencia of Quito. + +[102] Dasmariñas to the King, December 6, 1595, A. I., 67-6-18. + +[103] Misa to the King, May 31, 1595, A. I., 67-6-29. + +[104] The amount legally permitted to be taken to the Philippines +at this time was 500,000 pesos (subsequently 1,000,000 pesos). The +galleon, on the voyage from Manila to Acapulco, could carry merchandise +to the registered value of 250,000 pesos (later 500,000 pesos). This +regulation was first enacted January 11, 1593 (Recopilación 9-45-6, +9). On the same date residents of New Spain were forbidden to trade +in the Philippines and the entire Philippine and Chinese trade was +expressly reserved to subjects in the Philippines. The latter were +given the exclusive privilege of sending goods to New Spain (ibid., +1). They were permitted to buy only from the Chinese merchants who came +to Manila (ibid., 34).--See Martinez de Zúñiga, Estadismo, I, 266-270. + +[105] Cédula of January 11, 1593, Recopilación, 9-45-44. + +[106] Morga to Philip II, July 6, 1596, Blair and Robertson, IX, 271. + +[107] Ordinance for the re-establishment of the Audiencia of Manila, +November 26, 1595, A. I., 106-4-19; also in Blair and Robertson, +IX, 189-191. + +[108] The Archbishop of Manila, in a letter to the king, on August 15, +1624, stated that the principal motive which influenced Philip II to +re-establish the audiencia at the time of Governor Tello, was that in a +district so remote and distant from his royal presence the governors +might not be so absolute, but that there might be a superior arm +to check them, and to prevent their extortions from innocent people +(Blair and Robertson, XXI, 95). It is certain, too, that the audiencia +was also destined to champion the royal prerogative in the face of +the encroachments of the higher officials of the church. This need +was especially urged by Morga. + + Grao y Monfalcón, the procurator of the merchants of Manila at the + court in 1636, wrote on June 13 of that year: "In the year 590 the + royal Audiencia of Manila was suppressed ... and its suppression + must also be reckoned among the hardships of that city ... because + of those which it suffered until the year 597, when the Audiencia + was reëstablished (sic)." (Blair and Robertson, XXVII, 189). + +[109] Pancada, the wholesale purchase of the goods brought to Manila +by the Chinese. These goods were bought by a committee of two or +three persons, acting for the governor and ayuntamiento, then sold +or apportioned among the merchants of the city in proportion to the +amount of money which they were able to invest. This arrangement +was designed to give all the merchants a chance to buy and at the +same time to prevent the Chinese from selling at exorbitant prices +(Cédula of January 11, 1593, Recopilación, 9-45-34.) + +[110] Cédulas of May 5, 1583, and May 25, 1596, Recopilación, +2-15-11. It will be noted that this authority was granted to the first +audiencia established in Manila. This same faculty was conferred +by the Ordenanzas nuevamente formadas para el régimen y govierno +de la audiencia nacional de Manila, Art. I, Chap. 1, Sec. 1 (A. I., +106-4-19). + +[111] Martínez de Zúñiga has this to say concerning the work and +purpose of the tribunal: "The royal audiencia was established to +check the despotism of the governor, whom it has never impeded, +because its learned members were always the weaker, and the governor +may send them as prisoners to Spain, exile them to the provinces to +take census, or imprison them in Fort Santiago, as has been done" +(Martínez de Zúñiga, Estadismo, I, 244). + +[112] Recopilación, 2-15-32. + +[113] Ibid., 34-36, 44. + +[114] Ibid., 41. + +[115] Certain phases of these questions remained within the +jurisdiction of the church courts. + +[116] Recopilación, 2-15-53. + +[117] Parián, a market-place; the name given to the quarter set aside +by the government wherein the Chinese were confined. This restriction +was imposed in 1603, to give added security to the city of Manila, +endangered by a Chinese uprising at that time.--See Montero y Vidal, +Historia general, III, 146-148; Recopilación, 2-15-55; 5-3-24; 6-18-5. + +[118] Ibid., 2-15-64; 2-16-16 to 20. + +[119] Ibid., 2-15-180. + +[120] Ibid., 70. See Chapter I of this book. + +[121] Ibid., 71. + +[122] Ibid., 3, 5, 67. See Chapter I, note 20, for distinction between +oidores and alcaldes del crimen. + +[123] Ibid., 68; 2-19-2. + +[124] Ibid., 1, 3. + +[125] Ibid., 2-15-63, 71. + +[126] Ibid., 2-15-74 to 85. + +[127] Ibid., 90-91. + +[128] Ibid., 93. + +[129] Exemption from the jurisdiction of the civil authority having +been claimed by the military and religious orders of Santiago, +Calatrava, and Alcántara, Philip IV, on April 1, 1635, gave +jurisdiction over these orders to the audiencias.--Ibid., 96. + +[130] Ibid., 5-10-1. + +[131] Ibid., 2. + +[132] According to the Recopilación, 5-13-1 (laws of October 20, +1545, February 13, 1620, and the Ordinance of Audiencias [1563]), +the value of the peso was fixed at 450 maravedís. + +[133] Recopilación, 2-15-88. + +[134] Ibid., 5-12-20. + +[135] Ibid., 5-12-29. + +[136] Ibid., 5-10-3. + +[137] Ibid., 5-13-8. + +[138] Ibid., 4, 7. + +[139] Ibid., 5-10-4. + +[140] Ibid., 5-13-1. + +[141] Ibid., 2-15-97. + +[142] Ibid., 88. + +[143] Ibid., 103, 107, 108. Magistrates were forbidden to sign +decisions during office hours--valuable time which should be devoted +to hearing cases (ibid., 109). + +[144] Ibid., 105. + +[145] Ibid., 117. Pesquisidores were special investigators with +extraordinary executive and judicial powers who were sent out by +the home or central government when need arose to correct abuses in +colonial or provincial administration. Visitadores (visitors) were +sent regularly to inspect the government of a province or colony. The +governor was supposed to dispatch visitors to examine the work of +alcaldes mayores and corregidores every three years. + +[146] Ibid., 118. + +[147] Ibid., 178. + +[148] Recopilación, 5-15-21. Acuerdo, the joint consultative action +of the governor and audiencia. See Chapter VI of this book and note +78 of the same chapter. + +[149] Ibid., 5-13-3. The periods of validity of cases appealed from +the audiencias of Ultramar varied with the distance and the time +necessary for the transmission of autos to the Council. The time +assigned by the laws of the Indies was as follows: Chile, one and +a half years, Tierra Firme, New Granada, Santo Domingo, New Spain, +one year, and the Philippines, two years. This law was promulgated +first on September 24, 1621, and again on March 30, 1629. + +[150] Recopilación, 2-15-123 to 133. + +[151] Ibid., 133 (1563). Helps (Spanish conquest, I, 102, 103-104) +states that the repartimiento system was originated in 1496, from +the requirement of Columbus that the natives of Hispaniola should pay +him a certain quantity of gold as tribute. In view of the inability +of the natives to meet the demands of the Spaniards in regard to +the precious metal, "the villagers were ordered to make (and work) +the farms in the Spanish settlements. This may be considered as the +beginning of the system of repartimientos, or encomiendas, as they +were afterwards called." + +In a subsequent chapter the same author tells of the difficulty which +Ovando had in compelling the Indians to live among the Spaniards, to +pay tribute and accept religious teaching. Ferdinand and Isabella, +in a letter dated December 20, 1503, directed Ovando to compel the +Indians to deal with the Spaniards, to work for wages, to go to mass, +to be instructed in the faith, and further, that they should do all +these things "as free persons, for so they are." ... "Ovando adopted +the following system," says Helps; "he distributed Indians amongst +the Castillians, giving to one man fifty, to another a hundred; with +a deed that ran thus: 'to you, such a one, is given an encomienda +of so many Indians, with such a Cacique, and you are to teach them +the things of our Holy Catholic Faith'. The word encomienda ... was a +term belonging to the military orders, corresponding to our commandery +or preceptory; and this term naturally enough came into use with the +appointment, as governors in the Indies, of men, who held authority +in those orders, such as Bobadilla and Ovando." (See also Bancroft, +History of Central America, I, 262.) "With respect to the implied +condition of teaching the Indians 'the Holy Catholic Faith' it was +no more attended to from the first than any formal clause in a deed, +which is supposed by the parties concerned to be a mere formality." + +"We have now arrived," continues Helps, "at the climax of the +repartimiento system. That which Bobadilla did illegally, was now done +with proper formalities on parchment: ... We may notice again that the +first repartimientos made by Columbus ... apportioned to any Spaniard, +whom he thought fit, such and such lands, to be worked by such a +Cacique and his people--a very different procedure to giving men--a +feudal system, not a system of slavery."--Helps, Spanish conquest, +I, 138-139. + +[152] Recopilación, 2-15-129. + +[153] Ibid., 127. + +[154] Ibid., 5-15-181. + +[155] Francisco de la Misa to the King, May 31, 1595, A. I. 67-1-29. + +[156] In this and in other letters of officials in the Philippines +we find the amount frequently referred to as 1000 pesos, although in +the Recopilación (2-15-129 [1609]) the jurisdiction is fixed at 1000 +ducats. According to law 181 (1589), the authority of the governor (the +audiencia had been suppressed) was extended to cases of the same value. + +[157] It is probable that Misa meant that there was not sufficient +distinction between the governor's asesor and the teniente de +gobierno. This combined post was filled by Pedro de Rojas until +1593 and then by Antonio de Morga. These officials were the private +advisers of the governors in legal matters, and active magistrates +at the same time. + +[158] Memorial of Antonio de Morga, July 6, 1596, Blair and Robertson, +IX, 271 et seq. + +[159] Cédula of May 26, 1596, A. I., 106-4-19. + +[160] Pardo de Tavera, in Census of the Philippine Islands, I. 335. + +[161] Recopilación, 1-1, 2, 3; 5-1. + +[162] King to the President and Oidores, February 16, 1602, A. I., +105-2-1; Cédula of October 25, 1870; Colección legislativa de España, +CV, 449-463; Cédula of April 12, 1875, ibid., CXIV, 516-524. + +[163] Recopilación, 2-15-81, 83. + +[164] Tondo is now a district or ward of the city of Manila. At the +time referred to here, the barrio of Santa Ana (small district under a +teniente of a corregidor or alcalde mayor) was within the jurisdiction +of the corregimiento of Tondo. + +[165] Recopilación, 2-15-71, which forbade the trial of alcaldes and +provincial officials before the audiencia. + +[166] Council of the Indies to the Fiscal, A. I., 105-2-10. + +[167] Recopilación, 5-2-3; 2-15-81, 83. + +[168] This decision conforms with the Recopilación, 5-2-3, 4, and +2-15-68; 117. These laws give to the audiencia and the governor +jurisdiction over excesses of the provincial judges and executives, +and over cases appealed from them. Ibid., 2-16-44 gave jurisdiction +to the viceroy over criminal charges against oidores and alcaldes. + +[169] Council of the Indies to Audiencia, December 16, 1687, A. I., +105-2-1. The facility with which witnesses may be procured is from +one point of view a great aid to the administration of justice in +the Philippines today. See Elliott, The Philippines to the end of +the military règime, 246-8. + +[170] Royal decree on Usurpation of Indian Lands, November 7, 1751, +Blair and Robertson, LXVII, 27-34. See Cunningham, "Origin of the friar +lands question in the Philippines" in Political science review. X, +465 480. + +[171] Fuero mixto, in this case a fuero or concession to the +ecclesiastical government of jurisdiction over secular matters. See +note 53, Chapter XI, of this volume. + +[172] Audiencia to the King, September 27, 1617, A. I., 67-6-20. Three +of these friars were hanged at once, and one, Juan Ocádiz, escaped +to New Spain. He was said to be the illegitimate son of Doña Ana of +Austria (see Blair and Robertson, XVIII, 82-88). + +[173] Recopilación, 2-15-134 to 153; 2-16-15; 2-18-29, 30; 1-4-3, +20; 1-6-26, 39, 57; 1-7-18, 29 to 31; 2-15-146, 147, 149. See note 3, +Chapter XI, of this volume. + +[174] Recopilación, 2-15-129. + +[175] This case and the others dealt with in this section involving +encomiendas are to be found in the Inventario de los pleytos en la +real audiencia de Manila que se hallen en el rl. y supremo consejo +de las Indias y remiten al rl. archivo en Sevilla según rl. orden +de Julio de 1787. The key to the above exists in the Inventario de +autos de la Essma. la Cámara de Indias, IV, 453, A. I. + +[176] Recopilación, 6-2-1. This prohibition was first imposed by +Charles V on the above date and subsequently by Philip II and Philip +III (see laws 1 to 14, same title). + +[177] Ibid., 6-9-11, 13. + +[178] The laws of the Indies (Recopilación, 6-19-6) authorized the +governor of the Philippines to assign encomiendas ad interim for +the period of six years (promulgated August 25, 1646). By the laws +of May 1, 1774, and June 8, 1792, the period was made five years +in all the colonies except Perú; in the latter it was six years +(note to Recopilación, 8-22-1). We have record of the extension of an +encomienda in the Philippines to the Hospital of San Juan de Diós for +four years by Governor Marquina on July 10, 1789. The cofradía had +held this encomienda for ten years, and on its petition the governor +made this additional concession, subject to royal confirmation (A. I., +107-5-18). The above episode is at variance with the statement of +Bancroft (History of Central America, I, 264) that the encomienda +system came to an end in 1721. Helps states that the encomienda system +"remained in full force until the reign of Charles The Third of Spain, +at which period, it appears, it was annulled."--See Helps Spanish +conquest, IV, 240. + +[179] Expedientes are defined in Blair and Robertson, LII, 72, note +28, as "all the papers belonging to any matter, judicial, legislative, +or executive, consisting of orders, opinions, reports, and all other +measures." A testimonio is a duly attested and certified statement or +number of statements submitted as proof or evidence concerning a given +matter. Testimonios include transcripts of letters, cédulas, autos, +and expedientes on a particular subject, usually bound together. They +may extend over a period of a hundred years or more, showing step +by step the factors leading up to the formulation of any auto, +or cédula, or given as reasons for a particular action taken by an +official or tribunal. Testimonios form a large part of the material in +the Archive of the Indies. They are of the same value as originals, +and they are certainly more available and legible because frequently +more recently written. + +[180] Inventario, op. cit. + +[181] Note the appeal of a case involving less than 6000 pesos, +which was contrary to the laws of the Indies. (Recopilación, 5-13-1). + +[182] Martínez de Zúñiga, Estadismo, I, 245. + +[183] Decree for establishment of the Consulado, in Manila, December +13, 1769, A. I., 108-3-17. + +[184] The consulado was an organization of the merchants of certain +authorized cities of the Spanish empire. A consulado had to be +established by royal authorization. The tribunal of the consulado was +composed of two consuls and a prior, who were chosen for terms of two +years and one year respectively. They were chosen by twelve electors +who in turn were designated by the members of the consulado. The +tribunal de alzadas was composed of an oidor and two merchants. The +latter constituted the final court of appeal in the colony in +commercial cases and exception to their decisions could be taken only +in the Council of the Indies.--Martínez de Zúñiga, Estadismo, 245-246. + +[185] Council of the Indies to the Audiencia, January 21, 1808, +A. I., 105-2-18. + +[186] Recopilación, 9-46-40. + +[187] Ibid., 9-46. This section of the laws of the Indies establishes +the consulados of Lima and Mexico, and lays down regulations for them. + +[188] This was before the time of the Consulado of Manila. + +[189] Inventario, op. cit. + +[190] The Junta de Guerra, was the committee of the Council of +the Indies with jurisdiction over military and naval affairs. When +questions of this nature came to the Council they were referred to the +Junta, where decision was made and referred back to the Council. See +notes 17 and 36, Chapter VII of this book. + +[191] Inventario, op. cit. + +[192] Ibid. + +[193] Recopilación, 2-1-14; see also 9-27-35, 37, 2-2-39, also 9-27-3, +5, 13, 28, 29, 40, 47. These laws forbid the entrance of foreign +ships and individuals to the ports of the Indies. + +[194] Real Acuerdo de 17 de Julio, 1656, A. I., 67-6-22. (The final +action of the Council is indicated without date on the margin of the +auto of the Audiencia.) + +[195] Recopilación, 9-46-28; 9-45-13. + +[196] Ibid., 2-15-111. + +[197] Ibid., 71. + +[198] Foreman, Philippine Islands, 241. The laws regulating the trial +of cases on appeal may be noted in Recopilación, 5-9, 10, 11, 12, 13. + +[199] The following figures have been taken from various reports of +the audiencia to the Council of the Indies, and they show the number +of criminal cases tried in the tribunal in the years designated: + + +1710--51 cases ... report dated December 11, 1711; A. I., 105-2-9. +1774--34 cases ... report dated December 25, 1776; ibid. +1776--48 cases ... report dated March, 1778; ibid. +1779--53 cases ... report dated July 30, 1780; ibid. +1786--99 cases ... report dated May 1, 1778; A. I., 105-2-10. +1789--51 cases ... report dated June 4, 1790; A. I., 105-2-10. +1795--38 cases ... report dated April 4, 1798; A. I., 105-2-10. +1822--641 cases ... report dated July 3, 1823; A. I., 106-4-21. + + +According to Desdevises du Dezert ("Vice-rois et capitaines généraux +des Indes espagnoles," in Revue historique CXXVI, 59, 60) the +Audiencia of Lima decided 89 civil cases on appeal from February +11, 1788, to January 5, 1789. At the end of this period there were +122 cases waiting on the docket. In the chamber of first instance +of the same audiencia 72 cases were tried and 124 remained to be +tried at the end of approximately the same period. In the criminal +sala during the year 1788, there were 7 death sentences rendered, +16 sentences for robbery, 14 cases tried involving personal injury, +15 for carrying arms in face of the prohibition of the law, and 6 +cases of adultery. The magistrates excused themselves for this rather +contemptible showing by alleging that the membership of the tribunal +had not been complete, to which the king made answer that there would +have been sufficient judges had not the latter continually absented +themselves on the smallest pretexts. The charge of indolence was also +frequently brought against the magistrates of the Audiencia of Manila. + +[200] See Colección legislativa de España, LXIV, 105-147 (Royal +Decree of January 30, 1855). Cédula of December 6, 1858, in Rodríguez +San Pedro, Diccionario de legislación ultramarina, VII, 69. Cédula +of March 10, 1857, ibid., VIII, 39. Royal Decree of July 4, 1861, +Colección legislativa de España. LXXXVI, 1-45. The basic principle of +these reforms are to be found in the Constitution of 1812, Martínez +Alcubilla, Diccionario, III, 408-458, and in Las Ordenanzas Nuevamente +Formadas para el Régimen y Govierno interior de la Audiencia Nacional +de Manila en cumplimiento de la Ley de 9 de Octre de 1812, sobre +arreglo de tribunales. A. I., 106-4-19. + +[201] Blair and Robertson, XX, 35-43, 147, 168, 196-198. + +[202] Recopilación, 8-10-16. + +[203] Cédulas of October 6, 1783, and of November 19, 1805, A. I., +105-2-18. + +[204] See Cunningham, "Residencia in the Spanish colonies," in the +Southwestern historical quarterly, XXI, 253-278. + +[205] Ibid., 2-33, 1, 6; literally, a report on character of services. + +[206] Ibid., 5-11. + +[207] Ibid., notes 1 to 4. + +[208] Ibid., 2-31-1. + +[209] Ibid., 5-12-9. + +[210] Ibid., 5-11-6; see also, 5-12-14. + +[211] Ibid., 5-15-36 to 39; 7-1-10 to 13. + +[212] Ibid., 5-12-7 to 9. + +[213] Bancroft, History of Central America, I, 250-1. Special emphasis +should be placed upon the last clause of the above definition. The +periodical residencia was not the sole means for the removal of +officials in the Spanish colonies. The conclusion seems to have been +reached by many historians that officials were permitted to conduct +themselves carelessly, running their offices to suit their own personal +convenience from the date of their appointment, in the assurance that +their tenure was sure until the termination of a specified term, +and that the periodical residencia was the only occasion on which +they might be held to answer for their sins. Only the most scant +attention has been given by modern writers to the residencia. See +Bourne, "Historical introduction," in Blair and Robertson, I, 50-52; +Moses, Establishment of Spanish rule in America, 172; Vander Linden, +L'expansion coloniale de l'Espagne, 349. + +[214] Bourne, "Historical introduction," Blair and Robertson, I, +51-52; see De Pons, Voyage, II, 25; Churchill, Voyages, IV, 427-428; +see also Barrows, "The governor general of the Philippines, under +Spain and the United States," in The Pacific Ocean in history, 246. + +[215] Recopilación, 7-1; 2-15-117. + +[216] Ibid., 5-15-19. + +[217] Ibid., 20. + +[218] A receptor was a clerk of court, who on special authorization +or commission of a tribunal was dispatched to institute judicial +proceedings on behalf of the court.--Escriche, Diccionario, II, 794. + +[219] Recopilación, 7-1-16. + +[220] Ibid., 5-15-21. + +[221] Ibid., 7-1-14. + +[222] Ibid., 5-12-31. + +[223] Ibid., 5-15-38. + +[224] Fajardo to Felipe III, August 10, 1619; Blair and Robertson, +XVIII, 276. + +[225] The Marianas were the islands of the Ladrone Group situated +1200 miles east of the Philippines. + +[226] Expedientes relativos á la residencia de Don Antonio Pimentel, +Governador de las Marianas, A. I., 68-4-17 and 18. + +[227] Recopilación, 5-15-3, 4, 8, 10-18. + +[228] Ibid., 5-15-11, 24. + +[229] Having been excused by the cédulas of July 7, 1789, and January +15, 1795, A. I., 105-2-5. + +[230] Recopilación, 5-15, notes 4, 11. When the residencia of a viceroy +or president was taken, the oidores were also held responsible for +all opinions given conjointly with him in the acuerdo. + +[231] Sinibaldo de Mas, the able Philippine critic of the nineteenth +century, says in regard to the above characteristic of the Recopilación +and its laws: "Since the Leyes de Indias are not a constitutional +code, but a compilation made in the year 1754 [a footnote amends this +statement with the information that the Recopilación was first made +in 1681] of royal orders despatched at various epochs and by distinct +monarchs, ... there results ... a confusion of jurisdictions."--Mas, +Internal political condition of the Philippines, Blair and Robertson, +LII, 70. + +Dr. James Alexander Robertson, in his article on "Legaspi and +Philippine colonization" (see American Historical Association, +Annual report, 1907, I, 150 and note), characterizes the laws of +the Indies as "that mass of contradictory legislation," largely +"ecclesiastical in tone," ill-digested, and "utterly at variance with +one another." Dr. Robertson also states that "it is from a too close +following of these laws and a too great neglect of actual conditions +that writers on the colonial policy of Spain have at times fallen into +error." On the other hand, it may be said, that not enough use has +been made by modern writers of the laws of the Indies, and there is +need of such investigation as will test that oft-repeated statement +that the laws of the Indies were not enforced. Up to the present, +Latin American scholarship has been content with a rehashing of Helps +and Prescott, for the early periods, omitting the seventeenth century +and the greater part of the eighteenth altogether, and fixing on +Juan y Ulloa, Robertson, and Humboldt as the great all-determining +authorities for the latter periods of Spanish colonization. These, +indeed, have been supplemented by a few ecclesiastical histories, each +of which has been written to prove a particular thesis. The present +writer dares to believe, after some attempt to harmonize the laws +of the Indies with actual practice, that these laws were actually +used as a basis of colonial government, and that, while not always +effectively enforced, they were by no means a dead-letter until Spain +actually lost her colonies and are not today, for it is easy to see +in the laws of the Indies the fundamentals of the institutions of +present-day Spanish America. + +[232] Recopilación, 5-15-1. + +[233] Cédula of August 24, 1799, in Rodríguez San Pedro, Legislación +ultramarina, III, 280-281. + +[234] Papeles relativos á la residencia del gobernador +Salcedo. Inventario, op. cit.; also A. I., 67-6-10, 67-6-11, 67-3-4. + +[235] Since all legal advice was furnished the governor by his asesor, +Coloma would be examining his own acts. + +[236] Recopilación, 2-18-27. + +[237] Cédula of June 17, 1671, A. I., 82-6-10. In view of these +proceedings, Salcedo's letter of June 25, 1665, in praise of the +services of Coloma and Montemayor is interesting (A. I., 67-6-9). + +[238] Recopilación, 5-12-8; 2-16-46, provided for appeal of cases +carrying death penalty. + +[239] Ibid., 5-12-31. + +[240] Ibid., 5-15-38. + +[241] Ibid., 39. + +[242] Ibid., 2-2-58. + +[243] Ibid., 64. + +[244] Ibid., 5-15-3. + +[245] There were two kinds of bonds, those posted at the beginning +of a term of office, and special bonds of residencia, given at the +time of that investigation. The last-mentioned were not required +if the office were not a responsible one or if the charges were not +sufficiently serious. + +[246] Recopilación, 5-15-3; this cédula was annulled by that of May +21, 1787; see note to law 3 of the same title. + +[247] King to Basco y Vargas, December 30, 1776 (A. I., +107-5-20). These annual deductions of one-fifth were first authorized +on August 26, 1757, on the recommendation of the Council of the +Indies. They were discontinued by the consulta of March 2, 1773, +it being ordered that governors should only post the customary bonds +with the president of the Council of the Indies. We see here that the +practice was restored on December 30, 1776. This requirement seems to +have been confined to governors of the Philippines (A. I., 105-2-21). + +[248] Recopilación, 8-19; see notes 11 and 13, Chapter V of this book. + +[249] Recopilación, 8-26-17. + +[250] Ibid., 5-15-42. + +[251] Ibid., note 12. + +[252] Royal decree of November 20, 1841, in Rodríguez San Pedro, +Legislación ultramarina, I, 282; see also royal order of December 3, +1844 (for Cuba), ibid., 287. + +[253] Officials, desirous of ingratiating themselves into the favor +of the new executive, frequently journeyed by land and sea from Manila +as far as the Straits of San Bernardino. The privilege thus gained of +returning to Manila in company with the new governor, gave them the +unrestricted or unqualified opportunity to poison his mind with tales +of the misdeeds of the incumbent, and insinuations as to the wealth +which the latter had heaped up for himself through the exercise of +dishonest methods. + +[254] The residencia of a governor presented a splendid opportunity +to his enemies for revenge. A governor was always in a fair way to +make enemies; consequently any such awaited the residencia of their +former oppressor with great eagerness. In case a governor did make +fair profit out of his office, and there were many opportunities for +profit, commercial and otherwise, legitimate and illegitimate, his +enemies gave him no rest at the time of his residencia. (According to +Martínez de Zúñiga [Estadismo. I, 242] the emoluments of the governor, +aside from his salary, aggregated 20,000 pesos a year.) It is probable +that most of the governors were dishonest, as the opportunities for +corruption were numerous, and the temptations offered by the position +were too powerful to be resisted by any human being. Thousands of +miles from Spain, in an age of slow communication, entrusted with +the assignment of all sorts of lucrative offices, encomiendas, and +commercial privileges, and having friends, relatives, and special +interests to serve, a governor was surrounded by countless officials +who were eagerly awaiting their share of booty, and who were ready +at a moment's notice to turn traitor if they could gain by such an +act. It may be said of the Spanish colonial governor as was said of +Verres of old, that in stealing, one must steal threefold, once for +himself, once for his judges, and once to pay the penalty. + +[255] Chapter II of this book. + +[256] Montero y Vidal, Historia general, II, 253-258. Anda, as it will +be noted later, spent an earlier term of service in the Philippines. He +first came to the Philippines during the administration of Governor +Arandía, as oidor of the audiencia. He had therefore been obliged +to submit to residencia on a previous occasion; in 1764 a review was +made of his official conduct as oidor, and especially of his acts in +defiance of Archbishop Rojo, in setting up claims to the governorship +of the Islands and resisting the British. His conduct was approved, +and he received high honor and promotion at the court, being advanced +to membership in the Council of Castile. On November 19, 1769, he was +granted an annual pension of 3000 pesos for life. On September 8, 1777, +this pension was continued in favor of his eldest son (A. I., 106-4-4). + +[257] Anda had more than the usual number of residencias to supervise +at the beginning of his term. Owing to some misapprehension on the +part of his predecessor, Governor Raón, no residencia was required +of La Torre, the teniente del rey who took over the government in +1764. Owing to the anarchical condition in Manila consequent upon the +invasion of the British, and the ecclesiastical rule preceding that +event, neither Arandía, Espeleta, nor Rojo had given residencia. The +audiencia and Raón in acuerdo on October 26, 1768, voted that +governors' residencias should be dispensed with, and apparently +believed that this action settled the matter. On November 9, 1770, +the Council of the Indies disapproved of this stand, fined Raón (who +had died the preceding July), and ordered Anda to take the residencias +of Arandía (governor, 1754-1759), Espeleta (archbishop-governor, +1759-1761), Rojo (archbishop-governor, 1761-1764), Oidor Villacorta, +and Governor Raón. These orders he complied with, conducting the +investigations with his characteristic thoroughness, though Rojo +and Raón were dead. Villacorta was imprisoned and heavily fined. The +sentences against Arandía, Raón and Villacorta were moderated by the +Council of the Indies on September 9, 1772.--A. I., 105-2-31. + +[258] As we shall note in another chapter, José Basco y Vargas +inaugurated the reforms of the intendancy in the Philippines, +retaining the post of governor, while Ciriaco Gonzales Carvajal +was first intendente de guerra y real hacienda.--A. I., 105-3-5 and +107-5-19; see Chapter V, note 20, of this work. + +[259] This residencia was held under the same laws that had prevailed +throughout the seventeenth and eighteenth centuries. A feature common +to them all, particularly, was the fact that the regent, or some other +colonial magistrate conducted the investigation and gave sentence, +which might be appealed to the Council of the Indies. This gave an +opportunity for great injustice to be done to the governor by his +enemies, and it did not give him an impartial hearing. The laws of +1799 still permitted a local magistrate to collect the evidence, +but the decision was rendered by the Council of the Indies. + +[260] Audiencia to the King, June 28, 1791, A. I., 108-4-18. + +[261] Instructions to Amparán, February 19, 1792, A. I., 105-2-10. + +[262] Instructions were also given at the same time for investigations +of the official conduct of numerous persons who had been identified +with the government of Marquina. Among these were Helarión +Pastor, fiscal de la real hacienda. Manuel de Sota, contador de +cuentas. Francisco Múñoz, teniente del rey. Rufino Suárez Rivera, +asesor, and Miguel Formento, clerk of the treasury. A separate +commission was made for the residencia of each of these. + +[263] The just and honorable conduct of Marquina's successor on this +occasion may be contrasted with that of his various predecessors, +whose unfairness, bigotry, and stupidity had caused governors +Corcuera, Silva, and Torralba, victims of residencia, to be seized, +imprisoned, and exiled without opportunities for defense, while +their investigations were being conducted. This case serves well to +illustrate the fact that by the close of the eighteenth century the +residencia had grown more humane. + +[264] He was charged with having entered into a conspiracy with an +Armenian merchant to secure trade which should have gone to Spanish +merchants. In this particular venture he had made a profit of 16,000 +pesos and in so doing he had not only violated the laws of the Indies +which forbade officials to trade (Recopilación, 2-16-54, 62), but he +had connived at the infraction of another law which forbade trade to +foreigners (ibid., 9-27-1, 5, 7 and note 2). + +[265] It is an interesting commentary on Spanish methods that, +notwithstanding Marquina's misgovernment in the Philippines, he was +promoted to the post of viceroy of New Spain, which position he held +from 1800 to 1803. + +Desdevises du Dezert, in his article on "Vice-rois et capitaines +généraux des Indes espagnoles" (Revue historique, CXXV, 241), shows +that Marquina continued his peculations while viceroy of New Spain, +engaging in the smuggling trade with Jamaica, and enriching himself +to the extent that in thirty-two months he was able to send twelve +million pesos on his own account to Spain. Desdevises du Dezert +inadvertently refers to Marquina as having come from the Marianas to +Mexico. He came from the Philippines and not from the Marianas. + +[266] Recopilación, 5-15, notes 4 and 5. + +[267] Reales resoluciones del Consejo, 4 de Marzo, 1794, A. I., +106-4-18; Royal Order of January 18, 1848, Rodríguez San Pedro, +Legislación ultramarina, I, 290. + +[268] These discounts were "considered subversive of their authority +[that of the governors]; ... the best guarantee of their acts is not +a discount of some thousands of pesos, which is always penurious +when compared with the honor and dignity of the persons called, +on account of their elevated character and distinguished services, +to hold these posts, and if, in former times, this practice had some +foundation in the tardiness of communication between the Peninsula +and these provinces, it does not exist today in view of the frequency +of communication which enables said authorities to consult with +the government of Her Majesty in all the steps which are considered +necessary in the territory of their command."--Royal order of July 7, +1860, in Rodríguez San Pedro, Legislación ultramarina, I, 287. + +[269] Recopilación, 5-15-20. + +[270] Ibid., 4. + +[271] Ibid., 5-2-1, 2, 7. + +[272] Ibid., 5-15-19. + +[273] Ibid., 7-1-16; 5-15-21. + +[274] Ibid., 2-15-69; see 2-2-58, 64. + +[275] King to the Fiscal, September 29, 1788, A. I., 105-2-10. + +[276] King to the Audiencia, October 6, 1806, A. I., 105-2-18. + +[277] Recopilación, 2-18-27. + +[278] Ibid., 5-15, note 4. + +[279] Ibid., 5-15-27 to 49. + +[280] Ibid., 8-1-28; 5-15-35. Heavy penalties were prescribed for +those who offered insecure financial guarantees (ibid., 5-15-33 to 36). + +[281] Ibid., 34. + +[282] Ibid., 39, 40. + +[283] Expediente de Don Frco. Fernández Zéndera, alcalde mayor +y capitán de guerra de la provincia de Ilocos. ... su residencia +pendiente de informe de la audiencia, 1794, A. I., 106-5-4 and 5. The +papers relating to this trial easily aggregate 4000 pages. + +[284] It was said that he had shown favoritism in his dealings with +some of the barangay (district) chiefs, allowing them unbridled +license in the collection of tribute and in the enforcement of +compulsory labor, most of which they utilized for their own, or for +his, benefit. One chief was said to have gone so far as to forcibly +take carabaos from the natives when the latter were working them +in the fields. Zéndera had, of course, extended favors to these +barangay chiefs in exchange for reciprocal advantages. (The alcaldes +mayores ruled the native population through these chiefs at this +time. Later they utilized the gobernadorcillos, who were native or +mestizo governors of the small towns.--See Malcolm, The government +of the Philippine Islands, 64-72.) + +It was also charged that he had allowed cock-fights whenever +requested, instead of restricting these to holidays and Sundays +as the law prescribed. On these occasions he collected two reales +from each entrant, and in addition he took the slain birds, alleging +that they were for the consumption of the inmates of the provincial +prison. Testimony was produced to show that the prisoners had never +eaten fowl. + +[285] In taking the residencias of corregidores and alcaldes mayores +the audiencia frequently took great responsibility upon itself. On +July 10, 1800, on taking the residencia of Luís Rodríguez Varela, +alcalde mayor of Pangasinán, the audiencia suspended the decoration +of the pequeña cruz, which had been conferred upon this official by +the royal authority. The deprivation, in this case, was tentative, +pending the investigation of the charges which had been made of +shortages in the finances of his province.--Audiencia to the King, +July 10, 1800, A. I., 106-4-18. + +[286] The original sentence probably denied to Zéndera the privilege +of holding the office of alcalde mayor only, since he occupied the +post of regidor of the city of Manila, pending the appeal of his +case to the Council of the Indies. It is evident, therefore, that +the sentence which was pronounced upon Zéndera did not apply to all +positions of honor and trust. + +[287] Cédula of August 24, 1799, Recopilación, 5-15, notes 4 and 5; +see also Rodríguez San Pedro, Legislación ultramarina, I, 282. + +[288] Escriche, Diccionario. I, 578; see also royal order of November +20, 1841, and of January 18, 1848, in Rodríguez San Pedro, Legislación +ultramarina, I, 282; 290. When the Intendancy was established in +1784-7, an effort was made by the newly created officials to escape +the residencia. The entire term of the first intendant, Carvajal (or +Carbajal), had been devoted to an assertion of his independence of +the governor and audiencia. Carvajal interpreted the law requiring all +officials of the government to give residencia every five years to the +Department of Justice as not applying to him or his subordinates. He +pointed to the stipulation in the ordinance which created his +department, and established its independence of the executive and +judiciary. The king disapproved of his attitude and ordered that +henceforth the officials of real hacienda should give residencia +in the same manner as other officials, in accordance with the laws +of the Indies. (King to Carvajal. July 29, 1788, A. I., 107-5-19, +citing Recopilación, 2-15-69; 5-15-15 and Ordenanza de Intendentes +de Buenos Ayres, Art. 305.) This decree ordered that the residencias +of the intendants and their assistants should be submitted to the +audiencia. The cédula of August 24, 1799, so frequently cited in this +chapter, gave final jurisdiction to the audiencia over the residencias +of intendentes-corregidores, but it decreed that superintendents +should give residencia directly to the Council of the Indies. + +[289] Martínez Alcubilla (Diccionario, XI, 477) and Escriche +(Diccionario, II, 819) state that the cédula of August 24, 1799, +abolished the residencia. The latter states that the residencia +was eliminated because of the corruption of judges, and as the +judges of residencia had proved to be a grave infliction on the +towns, mistreating witnesses and defendants on many occasions, +it was thought advisable to discontinue the practice of holding +these investigations. Escriche also quotes extracts from the laws +of August 24, 1799, September 26, 1835, and November 20, 1841, +wherein were provided regulations for the future continuance of the +residencia. Cases involving viceroys, captains-general, and presidents +of audiencias were to be tried in the Supreme Tribunal of Justice in +first instance. Alcaldes mayores, corregidores, military and political +governors who were not presidents were to be tried in the audiencias +which exercised jurisdiction over their districts. + +[290] See Cédula of July 7, 1860, in Rodríguez San Pedro, Legislación +ultramarina, III, 287; royal order of July 25, 1865, ibid., X, 99; +royal order of October 25, 1870, Colección legislativa, CV, 442-465. + +The eminent authority, Manuel Bernáldez Pizarro, writing from Manila +on April 26, 1827, deplored the laxity which was characteristic +of the method of conducting trials of residencia, and recommended +that they be made more effective and just. He criticized especially +the prevailing system of holding the alcaldes mayores to a strict +accountability; who, he wrote, "as they have permission to trade, +are more tempted to evade or infringe the laws; and many persons are +appointed to that office 'who lack all the qualifications necessary +for any public office whatever,' ... not only have they used their +authority to possess themselves of the property of the Indians +... and defrauded the Indians with unjust exactions; but they have +humiliated the religious, stolen moneys from the king ... [and] +have thrown the provinces into a condition of effervescence and of +conspiracy against the government." (Blair and Robertson, LI, 212, +212-213.) Pizarro recommended a more stringent residencia as a means +of remedying these defects. + +[291] Recopilación, 5-15-17 and 18; 9-45-42. + +[292] Governor to Council of the Indies, January 4, 1710, A. I., +68-4-15. + +[293] Concepción, XI, 132-234 (Anson's depredations). + +[294] Recopilación, 2-16-40; see also 7-1-15. + +[295] Law of November 10, 1818, A. I., 106-4-19; see Real instrucción +dada á los regentes de las audiencias, 20 de Junio de 1776, in +Rodríguez San Pedro, Legislación ultramarina, VII, 22-28; Zamora y +Coronado, Apéndice. 19-33. + +[296] A tax on silver, gold and other metals (as well as on pearls) +mined in the Indies. This tax was first authorized on February 5, 1504 +(Recopilación, 8-10-1). Philip II conceded a commutation of this tax to +ten per cent in favor of adelantados, their successors and other early +settlers (ibid., 4-3-19). A draft of a letter exists in A. I., 106-6-6, +written about 1585 by Governor Sande of the Philippines, asking for +an extension of this dispensation.--See Blair and Robertson, IV, 87, +par. 114 and note. On August 8, 1609, the king inquired of the Manila +audiencia whether the tax was a fifth or a tenth.--A. I., 102-2-1. + +[297] Ibid., 2-16-19 to 22. + +[298] Ibid., 23. + +[299] Ibid., 24. This junta is to be distinguished from the real +contaduría, which was composed of the oficiales reales. See Martínez +de Zúñiga, Estadismo, 246. + +[300] This was the junta superior de la real hacienda, created +for Manila by the law of July 24, 1784. It was one of the reforms +of the intendancy. It cannot be said, however, that these reforms +became effective until 1787, though the cédulas of July 17 and 24, +1784, which ordered them, were received in Manila on December 5, +1785. These cédulas ordered the formation of a government locally, +which would conform to the general principles of the intendancy and +which were laid down in the cédulas referred to. These plans had +to be referred to Spain on appeal. Subsequently the Ordinance of +Intendants of Buenos Ayres was applied to the Philippines.--A. I., +107-5-14. Until January 11, 1791, all appeals from the junta superior +were heard in the Audiencia of Manila. The cédula of that date, +received in Manila on June 30, 1793, ordered that such appeals should +be carried to the Council of the Indies.--A. I., 107-5-22. The junta +superior de real hacienda did much toward relieving the audiencia of +its advisory functions as in matters of finance and commerce. Many +evidences of this may be noted in the reports and correspondence of the +superintendente de real hacienda de Manila.--A. I., 107-5-14; 107-5-15 +to 31; 107-6-1 to 31; 107-7-1 to 21. Priestley (José de Gálvez, +338-9) shows that even after the establishment of the intendancy in +New Spain, the audiencia retained the administration of crown lands, +notwithstanding the provisions of the new laws which ordered that +they should be controlled by the junta superior. See also ibid., 302-3. + +[301] Recopilación, 2-16-34. + +[302] Ibid., 2-15-169. + +[303] Ibid., 2-31-1 to 3. + +[304] Ibid., 8-19 (general subject of medias anatas). Holders of +ecclesiastical benefices were subsequently obliged to pay the media +anata, although they were especially exempted by the cédula of +June 2, 1632. The media anata (civil and ecclesiastical) was paid +until December 28, 1846, when this tax, together with the lanza (a +tax formerly paid by the nobility, but subsequently required of all +classes in lieu of military service) was abolished (Martínez Alcubilla, +Diccionario, I, 407). + +[305] Ibid., 8-19-1 and 2. + +[306] The cédula of July 3, 1664, reorganized the system of medias +anatas, authorizing their division into two separate allotments, +one payable at the court on the appointment of the official +concerned, and the second within or at the end of eighteen months +after his appointment, at the capital of the district wherein he +served. Guarantees had to be given that the second payment would be +made when due, and interest was charged at the rate of eight per cent +a year on the amount remaining to be paid (ibid., 4). + +[307] Cédula of December 14, 1776, A. I., 105-2-16. + +[308] The extensive use of the betel-nut by the natives of the +Philippines encouraged the Spanish government to monopolize its +production and sale, and a considerable revenue was derived from it. In +1786 the profit from the sale of betel was 16,770 pesos (Report of +Intendant, January 8, 1788, A. I., 107-5-15), and the next year the +sum collected was 15,207 pesos (Report of Intendant, June 21, 1789, +107-5-18). Other monopolies during the same period yielded as follows: +Tobacco, 258,743 pesos; wine, 73,636 pesos; cockpits, 8,375 pesos; +tributes, 174,494 pesos (Report of Intendant, June 21, 1789). + +[309] Juez conservador (civil), a judge named por privilegio del rey, +with private jurisdiction over the civil affairs of some community +or guild, for the protection of its interests and estates or the +collection of its rents (Escriche, Diccionario, II, 260). + +[310] Recopilación, 3-3-35. + +[311] Report on the establishment of the Intendancy in Manila, +December 5, 1785, A. I., 107-5-19. + +[312] Testimonio and transcript of the royal cédula of November 23, +1787; King to Marquina, June 15, 1791, A. I., 105-2-10. + +[313] The first intendant, Ciriaco Gonzales Carvajal, was given +the title of intendente de guerra y real hacienda, by virtue of the +cédulas of July 17 and 24, 1784. By the reform of November 23, 1787, +the duties of his office were united to those of the governor, whose +title, under the new arrangement, was gobernador y capitán general +y superintendente de la real hacienda (A. I., 105-3-5 and 107-5-19; +see Chapter IV, note 55, of this work.) + +[314] Recopilación, 3-3-35. + +[315] Basco y Vargas to the King, May 9, 1786, A. I., 107-5-19. + +[316] Cédula of March 20, 1790, A. I., 107-5-19. + +[317] Recopilación, 3-3-35. + +[318] Marquina to the Audiencia, August 16, 1791, A. I., 107-5-19. + +[319] Recopilación, 3-3-35, cited in notes 21 and 24 of this chapter. + +[320] Ibid., 2-32-1. + +[321] Ibid., 7 and note; 8. + +[322] Ibid., 43. + +[323] Ibid., 42, note 4; 47, note 7. These cases may be noted in +A. I., 68-4-12. + +[324] Ibid., 44. The cédula of July 16, 1776, ordered the +confiscation of property left by foreigners, forbidding that it +should be sent outside of the realm either by the juez de difuntos +or by the testamentary executor. In accordance with this regulation +the superintendent, in 1800, seized the property of a Spaniard who +had married a lady of Madras. The Spaniard had left a will providing +for the transfer of his property to his wife, naming an executor +to administer the will. This was opposed by the juez de difuntos, +but when the case was appealed the action of the superintendent was +approved (Aguilar to Soler, July 8, 1800, A. I., 107-5-24). + +[325] See Recopilación, 2-32-42. + +[326] A case appealed to the Council of the Indies on June 4, +1806, involved the property of Antonio Rodríguez de la Peña, +deceased. Rodríguez had bequeathed 35,875 reales to his father; the +Augustinians claimed 11,875 reales, or one-third of the entire estate, +for prayers said in behalf of the soul of the departed one. The +contaduría general in Madrid refused to allow payment (Aparici to +the Council of the Indies, June 4, 1806, A. I., 107-3-8). + +[327] Recopilación, 2-32, note 7. + +[328] Ibid., 10. + +[329] Ibid., 32-33, 40, 60. + +[330] Ibid., 16, 32, 33. + +[331] Ibid., 16-18, 27-29, 31. + +[332] Ibid., 46, and note. + +[333] Ibid., 48-56, 59. + +The report to the Council of the Indies of Pedro Aparici, general +superintendent of real hacienda, on July 8, 1805, shows in detail the +method of settlement in Spain. This report was submitted to cover the +administration of the property of Alberto Reyes, who died in Manila +in 1803. The statement was as follows: + + + Total property left 123,700 r. + Executor's commission 741 r. 16 m. + Administration 1,237 r. + Expenses 123 r. 18 m. + Total deductions 2,102 r. + Balance to be distributed among heirs 121,598 r. + Two-thirds left to brother as per will 81,066 r. + One-third left to parents as per will 40,532 r. + + +Another illustration of the disposal of money left under slightly +different circumstances may be noted in the Royal Order of February +14, 1800, to the juez de arribadas at Cádiz. The king ordered the +transmission of 8024 pesos to the royal treasury because of the +impossibility of finding the heirs of Antonio Manuel Pereda, who +died at Manila in 1767. By the terms of his will, 2000 pesos had been +left to the Third Order of St. Francis, 200 pesos to poor widows and +orphans, and the balance was left to his mother. The lady had died, +however, and as there were no heirs apparent, the money was ordered +transferred to the royal treasury (A. I., 107-3-9). + +These large sums, constantly on hand, intact and available, were always +a source of grave temptation to governors and treasury officials. Loans +were frequently taken from this fund for ordinary or unusual expenses +of the government. At first the juez de difuntos objected forcibly to +the governor's seeming disregard of the royal instructions regarding +these funds. The laws of the Indies had commanded that they should be +held inviolable (Recopilación, 57, 70). As noted above, the practice +had arisen of making deductions from the subsidy equivalent to the +amount of bienes de difuntos produced in the Philippines, and of +retaining the money in Acapulco. This practice worked havoc with the +fulfillment of the law which had ordered that these funds be preserved +intact. The governor and the treasury officials had fallen into the +practice of appropriating such available funds as existed in the caja +de difuntos for purposes of local administration, with the assurance +that the money would be properly accounted for in Mexico. Governor +Anda seems to have been a leading offender in this matter. In 1767 he +borrowed 19,729 pesos from the juez de difuntos and in 1768 another +sum of 30,000 pesos was taken (Landazurri to the Council of the +Indies, May 22, 1770, A. I., 107-3-9). By the cédula of October 9, +1777, the king approved the action of Governor Anda in borrowing +from these funds on three other occasions to the extent of 25,000, +14,206, and 24,477 pesos, respectively, for the fortification of the +city. It was ordered that this should not be done again, however, +except under extraordinary circumstances (A. I., 107-3-9). + +After being permitted for a long period of time, the practice which the +Manila authorities had followed of making these deductions was finally +disapproved by the home government. In 1806, because of the non-arrival +of the galleon with the subsidy, the governor (and superintendent) +authorized an advance of 54,049 pesos from the bienes de difuntos, +which sum constituted the entire amount on hand. On April 25, 1815, +the fiscal of the contaduría general de las Indias handed down an +adverse opinion on this action (A. I., 107-3-9). Although the practice +of allowing small loans from the funds of deceased persons had been +practiced in the Philippines in case of exceptional circumstances, +it was his opinion that the whole proceeding had been contrary to +the laws of the Indies (Recopilación, 2-32-57). He advised that in +the future there should be no interference with this money until the +deduction had been authorized by the juez de difuntos in Mexico, +and the judge should act only after he had received the report of +the corresponding official in the Philippines. + +If the above advice were followed, at least a year would pass before +the report of the Manila judge could reach Mexico, and be returned. It +was not to be supposed that the officials in the Philippines would +wait for any such formality when in need of money for the current +expenses of government. This is another example of the cumbrousness +and lack of expedition of Spanish colonial administration, as affected +by time and distance. It will be noted, also, that this practice +had been going on since the time of Anda (1768), and the Council of +the Indies did not pronounce against it decisively until 1815. The +particular litigation which brought about its condemnation arose in +1806 and continued throughout a period of nine years. + +[334] Ibid., 60. See the articles on the Philippine situado by +E. G. Bourne and James A. Leroy in the American historical review, +X, 459-461, 929-932; XI, 722-723. + +[335] Cédulas of November 26, 1776, September 9, 1778, October 13, +1780, June 12, 1783, February 17, 1786, A. I., 107-3-9. + +[336] Aparici to the Council of the Indies, July 19, 1797, A. I., +107-3-9. + +An examination of a few typical accounts of this department will +show that the sums involved were always considerable. On June 6, +1767, the juez de difuntos in Manila had 45,563 pesos on hand; +on June 17, 1781, 31,009 pesos; on June 29, 1783, 27,636 pesos; +on July 28, 1801, 40,827 pesos (see reports of various jueces de +difuntos. A. I., 107-3-9). The total receipts of the office of juez +de difuntos in Manila for the year terminating January 25, 1819, were +10,750 pesos. Payments against the fund that year were 27,747 pesos, +which were made possible by a balance on hand at the beginning of the +year of 52,900 pesos (Report of Vicente de Posadas, Juez de Difuntos +de Manila, January 25, 1819, A. I., 107-3-9). On March 31, 1828, +the funds of this department amounted to 32,657 pesos (A. I., 107-3-9). + +[337] The last state galleon left Manila for Mexico in 1811, and +the last ship sailed from Acapulco to Manila in 1815 (Foreman, +Philippine Islands, 243; and Montero y Vidal, Historia general, II, +413, note). The galleon service was suppressed by decree of the Cortes, +September 14, 1813.--Ibid., 412. + +[338] Recopilación, 2-32-7. + +[339] Villacorta to the Council of the Indies, July 6, 1757, A. I., +106-4-15. The evidence of this case also exists in A. I., 107-3-9, +and is cited in connection with a later dispute of the same character. + +[340] Marquina to the Council of the Indies, June 18, 1790, A. I., +107-5-18. + +[341] Recopilación, 2-32, note 2. + +[342] Ibid., 5-12-14. Basco y Vargas to the King, June 6, 1778, +A. I., 105-2-9. + +[343] Cédulas of April 23, 1770, October 13, 1780, and May 4, 1794, +A. I., 105-2-10. + +[344] Recopilación, 2-32-28. + +[345] Ibid., law 25. + +[346] Cédula of May 4, 1794, A. I., 105-2-10. + +[347] A. I., 106-4-17; 108-3-17; 105-2-10 to 32. See Bibliography under +"Manuscripts used." + +[348] The author has at his disposal abundant data for each subject +covering each decade and century, showing that the powers mentioned +were characteristic throughout. It is to be hoped that the reader +will appreciate the impossibility of giving more than a few citations +for each case, not because they are not available, but because there +is not room for them. It was the writer's original plan to write two +additional chapters, one on the commercial duties of the audiencia, +and another on the financial powers. Because of a lack of space these +chapters have been omitted. + +[349] A. I., 106-4-18. + +[350] As noted in the preceding chapter. + +[351] King to the Audiencia, August 8, 1609, A. I., 105-2-1. + +[352] Marquina to the King, January 18, 1790, A. I., 105-2-10. + +[353] King to the Regent of Manila, January 24, 1794, ibid. + +[354] See, Plan económico del gobernador de Filipinas José Basco y +Vargas, 1 de Septre, 1779, y carta que lo acompaña, No. 157, de 11 +de Dicre de 1779 (printed); A. I., 106-1-14; see Barrows, History of +the Philippines, 242. + +[355] Memorial of July 20, 1757, A. I., 106-4-15. + +[356] See Moses, South America on the eve of emancipation, 27-31, +for an account of the festivities and formalities at the installation +of the viceroy at Lima. It will be noted that the audiencia played +an important part in the ceremonies. Professor Moses here utilizes +a description contained in Juan y Ulloa, Voyage, II, 46-50. + +[357] Recopilación, 1-24-1 to 15. + +[358] Ibid., 1 and 2. + +[359] Ibid., 3; 15. The cédula of October 10, 1752, gave to the +audiencia the right to authorize the publication of legal treatises, +ordinances and enactments. The regent was given control over this +matter by the Instrucción of June 20, 1776 (A. I., 106-212). See +Montero y Vidal, Historia general, III, 304 and 485, with reference +to the publication of the autos acordados of 1866. + +[360] Ibid., 7 and 12. + +[361] Ibid., 8. + +[362] Ibid., 1 and 2. + +[363] See Lea, The Inquisition in the Spanish dependencies, 70, 204, +265; 444-446. + +[364] Acuerdo of January 26, 1816, A. I., 106-4-19. + +[365] The constitutional reforms of 1812 included the separation of +the governorship from the presidency of the audiencia. In 1814 the +governor was again made president, and the offices were not entirely +separated until 1861. The governor's intervention in matters of +justice was merely nominal, however, after the creation of the office +of regent, in 1776.--Cédula of March 11, 1776, A. I., 106-2-12; Royal +Instruction to Regents, June 20, 1776, in Rodríguez San Pedro, VII, +22-23; Ordenanzas para el gobierno de la Audiencia de Manila, 9 de +Octubre, 1812; A. I., 106-4-19; Acuerdo de 15 de Enero, 1814, ibid. + +[366] Montero y Vidal, III, 30. + +[367] Ibid., 251. + +[368] Recopilación, 2-15-156 to 166. + +[369] On the basis of this the governor compiled and sent to Spain +a yearly report on the work of the magistrates, prosecutors, and +subalterns of the audiencia, setting forth the salaries paid and +character of services rendered, making recommendations for promotion +or complaints against these officials. Vacancies in the tribunal were +reported at the same time and in the same manner. + +[370] Recopilación, 2-15-11. Note the brief discussion of this +relationship in Smith, The viceroy of New Spain, 152-156. Dr. Smith +shows that the chief purpose of the Spanish government in establishing +the viceroy and audiencia together was to guarantee a check and +balance of one upon the other. Quoting Revilla Gigedo (Instruction, +Article 20), he says: "The presidency of the audiencia places the +viceroy at the head of that body but not to give orders to it, as +even his acts in matters of justice are subject to it; and although +he is present at its sessions, which is very difficult, considering +the grave and continuous occupations which so vast a command imposes +upon him, he does not have a vote in matters which are regularly +dealt with there--that is, matters of justice." Dr. Smith shows (162) +that the effect of the later laws of the eighteenth century was to +deprive "the viceroys absolutely of any part in the procedure of the +administration of justice, either alone or in company with the other +judges, voting with them in the audiencia" (from Revilla Gigedo, +Instruction, Article 64). The limitation of the governor of the +Philippines in legal matters is discussed further on in this chapter. + +[371] See Moses, Establishment of Spanish rule in America, 70-71. + +Philip III ordered the viceroy of New Spain to "give aid to the +governor and captain-general of the Philippines in whatever may occur, +and above all ... to send him on demand whatever may seem necessary +of arms, men, munitions, and money for the conservation of those +Islands, salaries, and presidios, and other matters under his care +(Recopilación, 3-4-13)." The viceroys also exercised a certain degree +of authority over the despatch of the galleons from Acapulco (ibid., +9-45-25 to 31, 47, 74 to 76). Aside from the points indicated, the +Philippines were normally as independent of New Spain as the latter +was independent of the Philippines. + +[372] Bourne, "Historical introduction," Blair and Robertson, I, 49-50. + +[373] Delgado, Historia de Filipinas, 212-215. + +[374] Delgado illustrates this statement as follows: "The legitimate +King of Borney, who had been dispossessed of his kingdom ... begged +for help from Don Francisco Sande, Governor of these Islands. Governor +Sande went with his fleet, fought with and drove away the tyrant, and +put the legitimate king in possession; the latter rendered obedience +to the governor, appointed in the place of the King of España, and +subjected himself to this crown as vassal and tributary." Further on +he writes, "His Majesty also ordered Sande, by a decree of April 9, +1586, to sustain friendship with China, and forbade him to make war; +for, as some authors say, Sande had the intention of conquering +that Empire, ... although it may be said that the idea was simply +speculative; the Council forbade it, and ordered him thenceforth to +observe what was prescribed" (ibid., see Blair and Robertson, XVII, +317-320, whose translation differs slightly from the above). + +[375] Recopilación, 3-3-2; 63, 64; 3-14-1, 33. + +[376] Instructions to Acuña, February 16, 1602, Blair and Robertson, +XI, 273-4. + +[377] Recopilación, 3-3-55; 3-2-33. + +[378] Ibid., 3-3-56; 2-15-159. + +[379] King to the Audiencia, December 4, 1777, A. I., 105-2-9. It +was seen in the preceding chapter, that the audiencia reported to +the Council of the Indies on the finances of the colony. + +[380] Recopilación, 3-3-57. + +[381] Ibid., 2-15-76 and 77. + +[382] Ibid., 3-2-1 to 6; 2-15-172. Governors and viceroys were +authorized by the cédula of April 20, 1776, to make permanent +appointments to offices whose salaries did not exceed 400 pesos +(ibid., 3-2, note 2). + +[383] Ibid., 3-2-67. + +[384] Ibid., 3-2-1, 10 to 12, 47, 48; 8-4-24. + +[385] Ibid., 3-2-8. + +[386] Villacorta to the King, July 6, 1767, A. I., 106-4-15. + +[387] Recopilación, 3-2-3, 4 and note, 21, 22, 47, 70; 5-2-5, 7, 8-4-1. + +[388] Ibid., 3-2-1, 2, 3, 8-4-1. + +[389] Ibid., 51. After February 20, 1785, this regulation applied +only to offices yielding more than 2000 pesos a year.--Ibid., note 17. + +[390] Ibid., 27. + +[391] Ibid., 33, 38. + +[392] King to the Audiencia, August 9, 1609, A. I., 105-2-1. + +[393] Fajardo to the King, December 10, 1621, Blair and Robertson, +XX, 138-140. + +[394] Recopilación, 2-15-34; 5-12-24; 2-16-29. + +[395] Ibid., 2-2-70. + +[396] Ibid., 3-2-45; 2-16-29. + +[397] Although a sufficient number of oidores were usually present +in Manila to suffice for the judicial needs of the audiencia, on +many occasions there were only two or three available. When but +few cases were before the tribunal, the junior oidor could easily +be spared to act as fiscal. However, when a magistrate was needed, +owing to the multiplicity of cases to be tried, or the absence of two +or more magistrates on special commissions, the need was very urgent, +and the fiscal was then liable to be called upon to serve. + +[398] Recopilación, 2-16-30. + +[399] Ibid., 3-2-67. + +[400] Ibid., 2-15-173 and 174. + +[401] Ibid., 3-3-70. + +[402] Ibid., 3-14-6, 7; Felipe III to Fajardo, December 13, 1620, +Blair and Robertson, XIX, 174-175. + +[403] Recopilación, 3-14-5, 6, 8. + +[404] Ibid., 2-16-59, 62 to 64; 3-3-39. A confirmation of the latter +was so often reported that it seems to have been expected, and nothing +was done about it. It would seem that practically every official in +the colony conducted a mercantile business as a side-issue. + +[405] Felipe IV to Fajardo, October 9, 1623, Blair and Robertson, +XX, 259; Recopilación, 2-16-66, 67. + +[406] Recopilación, 2-15-36, 39, 40. + +[407] Ibid., 2-16-82 to 84. + +[408] Ibid., 87. + +[409] Ibid., 82, note 20 (Cédula of January 23, 1754). + +[410] Cédula of July 13, 1789, A. I., 107-5-20. On June 21, 1784, +the Council of the Indies recommended that permission to marry within +his district be accorded to Oidor Ciriaco Gonzales Carvajal (A. I., +105-3-2); the same concession was recommended in the case of Oidor +Felipe Cisneros, June 30, 1788 (A. I., 105-3-4), and again to Francisco +Xavier de Mendieta, January 22, 1791 (A. I., 105-3-5). + +[411] Royal order of April 3, 1848; Rodríguez San Pedro, Legislación +ultramarina, VII, 79. + +[412] Royal order of December 2, 1804, A. I., 106-4-18. + +[413] Royal decree of October 13, 1806, A. I., 106-4-18. + +[414] Laws of May 3, 1605 and September 5, 1620, Recopilación, +2-16-43 and 44. + +[415] This was done, for example, by governors Fajardo and Bustamante, +while this law was still in force (1618-1624 and 1717-1719, +respectively). The observation of this law in Chile was commanded in +a royal order expedited to the president of the audiencia there on +September 22, 1725; see Recopilación, 2-16, note 13. + +[416] Ibid., note 14. + +[417] Ibid., 2-16-51. + +[418] Discussed in Chapter IV of this treatise. + +[419] Governors, captains-general, and viceroys were assisted by +an asesor, or legal adviser, who gave his opinion in all matters +of law that came up for solution. The necessity for this official +developed through the fact that as most governors were soldiers, +they were incapable of rendering judgment on legal and administrative +questions. As counselor to the governor, this official bore the same +relation to the executive as the fiscal did to the audiencia. The +asesor was held responsible in the residencia for all decisions +rendered by the governor in matters of justice, and in governmental +affairs the governor and asesor were jointly responsible. Frequently +the asesor was able to block completely the work of the audiencia and +his opinion nullified the judgments of magistrates who were as learned +in the law and as well qualified, if not better, than he. Martínez de +Zúñiga (Estadismo, I, 224) discusses the influence of the asesor in the +following terms: "Expedientes are sent to one of the two royal fiscales +to ascertain their legality; afterwards they are sent to the asesor +whom the governors must consult; the latter place (of asesor) is a very +good one, ... besides 2000 pesos as salary it has its private revenues +in addition to 500 pesos yearly from each of the royal monopolies +(discussed in Chapter V of this volume). There are many persons in +Manila who are exempted from ordinary justice through their military +connections or on account of being employed in the royal monopolies, +and as they depend on him, he exercises great power; ... there are few +who desire him for an enemy, for when they least think of it they are +in need of his favorable opinion in some expediente which they have +brought before the government." The laws of the Indies forbade that an +oidor should act as the governor's asesor if any other appointee with +the requisite qualifications were available (Recopilación, 3-3-35, +and note). See cédula (and accompanying expedientes) of September 26, +1756, A. I., 106-4-16. + +[420] Recopilación, 2-15-61 to 63, 169; 2-16-12, 31, 32. + +[421] Ibid., 2-15-38. + +[422] Ibid., 3-3-36, 38. + +[423] Ibid., 3-3-60. Relative to the relations of the viceroys and +audiencias of the Spanish colonies, Robertson (The History of America, +IV, 19-20) says: "The Spanish viceroys have often attempted to intrude +themselves into the seat of justice, and with an ambition which +their distance from the controul (sic) of a superior rendered bold, +have aspired at a power which their master does not venture to assume +... the viceroys have been prohibited, in the most explicit terms, +by repeated laws, from interfering in the judicial proceedings of the +courts of Audience, or from delivering an opinion, or giving a voice +with respect to any point litigated before them. In some particular +cases, in which any question of civil right is involved, even the +political regulations of the viceroy may be brought under review of +the court of Audience, which in those instances, may be deemed an +intermediate power between him and the people, as a constitutional +barrier to circumscribe his jurisdiction. But as legal restraints +on a person who represents the sovereign, and is clothed with his +authority, are little suited to the genius of Spanish policy; the +hesitation and reserve with which it confers this power on the courts +of Audience are remarkable. They may advise, they may remonstrate; +but in the event of a direct collision between their opinion and the +will of the viceroy, what he determines must be brought into execution, +and nothing remains for them, but to lay the matter before the king +and the Council of the Indies." + +[424] Recopilación. 3-3-27, promulgated July 19, 1614, conferred +general pardoning power on the viceroy. + +[425] Regent to the King, July 9, 1793, A. I., 106-4-18; Cédula of +October 24, 1803, A. I., 105-2-10. + +[426] Royal decree of July 4, 1861, Colección legislativa, LXXXVI, +1-45. + +[427] Recopilación, 3-3-65. It is to be noted that the New Laws +of 1542 conferred on the audiencias the duty of protecting the +Indians. Professor Moses, in his Spanish dependencies in South America, +I, (212-3), says: "The audiencias were commanded to inquire into the +treatment which the Indians had received at the hands of governors +and private persons; and, in case of excesses and ill-treatment, the +guilty parties should be punished.... While it was acknowledged that +some persons had a sufficient title to hold Indians, it was ordered +that when the number held was excessive, the audiencia should gather +the necessary information and reduce the allotments made to the said +persons in a fair and moderate quantity 'and place the rest under +the Crown'." + +[428] Ibid., 53. + +[429] Ibid., 3-3-61; 3-4-7. We have a notable illustration of this in +the banishment of Archbishop Poblete by Governor Salcedo (1663-1668) as +a result of the resistance of the former to Salcedo's intervention in +ecclesiastical matters on the basis of the royal patronage. Salcedo did +not solicit the aid or intervention of the audiencia in this matter. + +[430] Ibid., 2-16-8. + +[431] Ibid., 3-3-58; King to Audiencia, March 6, 1781, A. I., 105-2-9. + +[432] Instruction to Tello, May 25, 1596, Blair and Robertson, IX, +229, 232-233, 238-239. + +[433] Recopilación, 1-14-29 to 31. + +[434] Ibid., 31. + +[435] King to the Audiencia, March 6, 1781, A. I., 105-2-9. + +[436] Recopilación, 3-3-45. + +[437] This is treated in the first chapter of this book. See Solórzano, +Política Indiana, II, 271-279. + +[438] Recopilación, 2-15-11. + +[439] Constitution of 1812, Martínez Alcubilla, III, 408 et seq.; +Acuerdo for the promulgation of the Constitution of 1812, Montero y +Vidal, III, 404; Acuerdo of January 15, 1814, Ordenanzas, etc., A. I., +106-4-19; Cédula of September 26, 1835, Zamora y Coronado, Apéndice, +41-138; Royal Decree of January 30, 1855, Colección legislativa, +LX, 105-147; see also Royal Instruction to Regents, June 20, 1776, +and Cédula of April 8, 1778, in Rodríguez San Pedro, Legislación +ultramarina, VII, 22-28. + +[440] Ordinances enacted by the Audiencia of Manila, June 13 to +December 19, 1598, Blair and Robertson, X, 293-316; Ordinances etc., +January 7, to June 15, 1599, ibid., XI, 1-81. Reference may also +be made to the five volume Colección de autos acordados de la real +audiencia ... de Manila, 1861-1866; see also Estadísticas de las causas +y expedientes de gobierno despachadas por la audiencia de Filipinas +durante el año de 1876. For New Spain we have the Recopilación sumaria +de algunos autos acordados de la real audiencia de Nueva España, +Mexico, 1787. Of similar import and character was the well-known +collection of Puga, cited in the bibliography of this volume. See +also Solórzano, Política Indiana (2 vols.). + +[441] Blair and Robertson, L, 191-264; see, also, Montero y Vidal, +Historia general, I, 380-385, also correspondence relative to the +modifications of these ordinances by Raón in A. I., 105-4-5. Marquina's +efforts along this line may be noted in A. I., 105-4-6. + +[442] Acuerdo of January 15, 1814, A. I., 106-4-19; see also Montero +y Vidal, Historia general, III, 404; 430. + +[443] Carvajal to the King, December 5, 1785, A. I., 107-5-14; +Carvajal to the Audiencia of Manila, December 29, 1787, A. I., +107-5-15; Testimonio del expediente sobre poner la real jurisdicción +y el gobierno y policía de estas islas en el ser y estado que tenían +antes, December 20, 1788, A. I., 107-5-18, 105-3-5. + +[444] King to the Audiencia, August 13, 1793, A. I., 105-2-10. + +[445] Recopilación, 3-2-70 (after 1680), 67. + +[446] Rodríguez San Pedro, Legislación ultramarina, VII, 67. + +[447] Mas, "Internal political condition of the Philippines," in +Blair and Robertson, LII, 70-73. Mas was a Spanish diplomatic official +stationed in China, who visited the Islands in 1842 on a semi-official +mission. This writer was not favorably impressed with the effectiveness +of the acuerdo. He wrote: "Whatever difficulty occurs in the fulfilment +of an order, it must be solved by means of a conference and advice +[consulta], from which a reply is not obtained until from twelve +to fourteen months." Instead of governmental matters being referred +to the acuerdo, Mas stated that they were referred to Spain, hence +there was great delay. He stated that the governor scarcely decided +any question by himself, and those which were solved in the colony +were referred to the asesor, and "from this practice," he continued, +"arises the system of expedientes, which reigns, and which is so fatal +to the prosperity and good government of the country, since very often +the arrangement that appears good to some, is contrary to the opinions +or interests of others.... Thus much valuable time is lost and the +expedientes result in only a waste of paper, besides great injury +to the islands. The governor often has to conform to the opinions +expressed in the expediente, although he knows they will be the cause +of injustice. On the other hand, the governor is often directly at +fault, because he enforces his own opinion on his assessor (sp.), who +has often obtained his position through favoritism and is not a lawyer, +and decides questions according to the will of the governor.... The +chiefs of the various departments carry on correspondence with the +directors-general of their respective departments in Madrid, without +the knowledge of the governor, a fact that increases the confusion +and disorder." (See also Revilla Gigedo's description of the evils of +the expediente in New Spain [1790]. Smith, The viceroy of New Spain, +190-191.) + +This description of the Philippine government in 1842 would seem +to indicate that aside from the limitations imposed upon his rule +by the audiencia, the governor was obliged to contend with a number +of other officials, departments, and regulations, which effectively +prevented him from exercising absolute power, even at the sacrifice +of efficiency. We note in this description, moreover, that tendency +of Spanish colonial government which has been emphasized so often in +this treatise--namely, the failure of the home government to leave +to the colonial officials sufficient scope of action or authority +to deal adequately with the ordinary problems of government. Up to +the end of the eighteenth century the audiencia was the only civil +authority or tribunal present to exercise any check on the executive +in administrative affairs. However, in the last century the importance +of the audiencia in this regard was diminished by the creation of +other departments, ministries, and offices, by the elimination of +time and space, due to the progress of invention, which brought the +colonies nearer to Spain, and finally by the fact that the tribunal +itself was more and more confined to judicial affairs. + +[448] Governor Torres to the Queen, March 18, 1835, A. I., 106-4-21. + +[449] Colección legislativa de España, LXXXVI, 1-45. Elliott, in +his Philippines to the end of the military regime, p. 242, states +incorrectly that this reform took place in 1865. Mr. Elliott did not +make use of the sources. It is to be noted, too, that Dr. Barrows +in his article on "The governor general of the Philippines," in The +Pacific Ocean in history makes contradictory statements relative to +this matter. On page 242 he asserts that the governor was president +of the audiencia till 1844, and on page 248 the statement occurs that +"a further specialization of 1861 deprived the governor-general of +his judicial powers." + +[450] Instruction of the King to Governor Acuña, February 16, 1602, +Blair and Robertson, XI, 263-88. + +[451] Fray Sánchez, in his memorial of July 26, 1586, stated that +the audiencia had stopped the practice of conceding encomiendas +(A. I., 67-6-27), which the governors had followed prior to its +establishment. Nevertheless the governor's authority to bestow +encomiendas was recognized by the royal instructions to Governor +Dasmariñas, issued May 25, 1593 (Blair and Robertson, IX, 232). The +statement of Sánchez may be interpreted to mean that the audiencia +had stopped the abuses which had been perpetrated by various governors +in bestowing encomiendas on their friends. Encomiendas were conceded +by different governors in the Philippines throughout the eighteenth +century. This matter has been discussed in an earlier note. + +[452] Mas, "Internal political conditions of the Philippines, 1842," +Blair and Robertson, LII, 69-70 and note. The keen observations of this +official on social and governmental conditions in the Philippines are +peculiarly pertinent, and they are as true in many regards today as +they were seventy-five years ago. He recommended a regency to govern +the Philippines, consisting of the governor as president, a military +commander and an intendant of finance. The audiencia, according to his +plan of reform, was to be limited to judicial affairs, with appellate +jurisdiction over civil, criminal, and commercial cases. Instead of +the audiencia as a court of appeals against the governor, the regency +was to entertain appeals from the audiencia. Many of his ideas were +incorporated into the new laws of the last half of the nineteenth +century (ibid., 78-85). + +[453] Recopilación, 5-12-22; 2-15-35; 36, 41. + +[454] Ibid., 3-3-51. + +[455] Ibid., 2-15-35, 36, 41; 3-3-2, 34, 42; 3-14-1; 5-12-22. + +[456] Acuña to Felipe III, July 15, 1604, Blair and Robertson, +XIII, 235. Acuña stated that the soldiers and military officials +were "discontented and grieved at the ill-treatment which the said +auditors accord them; and at seeing that they are hindered by them, +an auditor commanding at his will the arrest of a captain, official, or +soldier, without cause or reason, and interfering in all the details of +service--even going so far as to inspect their quarters, and send them +to the public prison, for very trivial affairs, against all military +precedents." The governor said that when affairs went on in a peaceful +and orderly way, it was because the oidores were not interfering with +them. He stated that it was the opinion of all right-thinking men +that soldiers were of more use in the colony than judges (ibid., 237). + +[457] The terms of these governors were as follows: Fajardo, 1618-1624; +Corcuera, 1635-1644; Vargas, 1678-1684; Arandía, 1754-1759; Anda, +1762-1764, 1770-1776. + +[458] Rios Coronel to the King, June 27, 1597, A. I., 67-6-19; see also +Bourne, "Historical introduction," in Blair and Robertson, I, 53, note. + +[459] These arguments are noted in detail in Chapter II of this volume. + +[460] Viana to Carlos III, May 1, 1767, Blair and Robertson, L, +126-135. + +[461] Delgado, 212-215, reproduced in Blair and Robertson, XVII, 316. + +[462] "But," he continued, "if a man come to these islands with the +intention of escaping his natural poverty by humoring the rich and +powerful, and even obeying them, the wrongs accruing to the community +are incredible" (ibid., 317). + +[463] Reforms in Filipinas, April 26, 1827, by Manuel Bernáldez +Pizarro, Blair and Robertson, LI, 219; see 213-218. + +[464] Montero y Vidal, Archipiélago Filipino, 162-168. "The Spanish +régime in Filipinas lasted 333 years.... During that time there were +97 governors--not counting some twenty who served for less than one +year each, mostly ad interim, and the average length of their terms of +office was a little less than three and one-half years, a fact which +is an important element in the administrative history of the islands" +(Blair and Robertson, L, 74, note 46). + +[465] Recopilación, 3-3-3. + +[466] Ibid., 3-11-1 to 3. + +[467] Ibid., 3-11-1, 2, 3 to 10; 3-10-3, 11; 5-10-15. + +[468] Ibid., 2-2-72, 74, 77; Consulta de 18 de Febrero de 1673 sobre +atribuciones de la Junta de Guerra de Indias, A. I., 141-5-8. + +[469] Auditor de guerra, "the juez letrado, who has jurisdiction +in first instance over cases under the military law, subordinate to +the captain or commandant-general of an army or province" (Escriche, +Diccionario, I, 369). + +[470] Royal order of January 30, 1855, Colección legislativa de España, +LXIV, 105-147. + +[471] Royal order of January 22, 1787, A. I., 107-5-16. + +[472] That the consejo de guerra was something more than a +(tribunal of) courtmartial and that it actually participated in +the administration of military affairs may be seen in the cédula of +June 22, 1599, which authorized the local consejo to act with the +audiencia and cabildo in restraining the military officials in the +provinces from imposing undue exactions on the natives, assessing +them too heavily or confiscating their property in the equipment of +military forces in time of threatened invasion (Recopilación, 3-4-3). + +[473] On March 12, 1781, Governor Basco y Vargas complained to the +king against the inconvenience of having to appeal the decisions of +the local council of war to the Supreme Council in Madrid. This was +the practice followed in other parts, he said, but it was undesirable +in the Philippines on account of the isolation and the distance. He +recommended instead that these cases should be appealed to a board +consisting of the governor and two asesores--one his own, and the +other an oidor to be designated by him. This recommendation was not +accepted (A. I., 106-1-18). + +[474] Audiencia to Váldez, December 11, 1788, A. I., 107-5-16. + +[475] Royal order of March 27, 1802, A. I., 107-5-16. + +[476] Case of Don Diego Salvatierra, November 20, 1792, A. I., +105-2-10. + +[477] Case of Don Josef de Áviles, November 2, 1792, A. I., 105-2-10. + +[478] Recopilación, 2-16-12; 2-15-36. + +[479] Ibid., 2-16-11. + +[480] The memorial which the governor sent in answer to the arguments +of the oidor was an interesting exposition of his opinion of the +audiencia. He said that the lack of time alleged by the oidor was +a mere pretense, as the regular sessions of the audiencia did not +exceed three hours a day. The governor stated that none of the oidores +were occupied more than that length of time, excepting those who +had special conservatorships of cockpits, tobacco, cards, betel, and +wine. The suits of Spaniards and Indians were few, he alleged, since +most of the questions involving commerce were tried in the tribunal +of the consulado (Governor Marquina to the superintendent-general, +July 10, 1789, A. I., 107-5-18); see Chapter III, note 88. + +[481] Recopilación, 3-11-2. + +[482] Ibid., note 2. + +[483] See citation of the cédula of January 24, 1773, applicable +to Perú, wherein an oidor was permanently charged with the duty of +serving as auditor de guerra (ibid.). + +[484] Morga states that after the audiencia was established in May, +1584, "they (the oidores) began to attend to the affairs both of +justice and of war and government" (Morga's Sucesos, Blair and +Robertson, XV, 60). + +[485] Memorial of April 19, 1586, Blair and Robertson, VI, 197-233. The +purpose of the proposed expedition was declared to be to "forestall the +danger that the French and English, and other heretics and northern +nations, will discover and navigate that strait which certainly +lies opposite those regions--that of Labrador." A note suggests +that this probably referred to the St. Lawrence River. Delgado says +that Governor Sande called this council together on April 9, 1586, +evidently meaning Santiago de Vera, as the latter became governor +in 1584, and Sande left the Islands in 1580. De Vera's signature is +affixed to this petition. Other letters of special importance, from +the audiencia or individual oidores to the court, entirely or in part +on military affairs, written during this period, may be noted in Blair +and Robertson, VI, 56-65, 157-233, 254-264, 265-274, 311-321, XVII, +251-280, and throughout this series from Volumes VI to XXXV (1584-1650) +especially. The general subject is covered in A. I., 67-6-6 to 26. + +[486] Luzón Menaced, Blair and Robertson, VIII, 284-297. We shall see, +in the next chapter, that Governor Bustamante, on a similar occasion, +asked for the written advice of the various ecclesiastical authorities +and corporations on the question of whether he had a right to remove +and appoint oidores without express royal authorization. + +[487] Opinions of the religious communities on the war with the +Zambales. January 19-20, 1592, Blair and Robertson, VIII, 199-233. + +[488] Audiencia to the King, January 7, 1597, A. I., 105-2-1. + +[489] A. I., 105-2-1 to 10 are replete with documents illustrating +this phase of the relation of the audiencia and the governor. + +[490] Torre to the King, July 26, 1744, A. I., 108-2-21. + +[491] Report of Council of War, June 18, 1746, A. I., 108-2-21. See +note 17 of this chapter, which deals with the local council of war. On +the occasion referred to, it acted as a courtmartial. It also had power +to advise the governor, and even to prevent the military officials from +taking steps which would inflict injustice on the natives in connection +with military operations. Here it may be seen that magistrates were +actually members of this council, and in this capacity they advised +the governor as to the best means of fortifying and defending the +Islands. The laws of the Indies are singularly lacking in definite +statements as to the legal composition and membership of this council. + +[492] Obando to the King, August 15, 1748, A. I., 108-2-21. + +[493] Morga's Sucesos, Blair and Robertson, XV, 205-237. + +[494] Martínez de Zúñiga, An historical view, I, 239-241. + +[495] In recommending the services of Licentiate Madrid y Luna, +oidor of the Manila audiencia, Alcaraz wrote to the king as follows: +"On that account, and for the good accomplished by his services in +this Royal Audiencia, the said Licentiate Madrid claims that your +Majesty should grant him as a reward permission to marry some of his +seven daughters and three sons in Mexico" (Alcaraz to Felipe III, +August 10, 1617, Blair and Robertson, XVIII, 52). + +[496] Formosa lost to Spain, Blair and Robertson, XXXV, 128-162. + +[497] Audiencia to the King, July 15, 1598, A. I., 67-6-18. + +[498] Audiencia to Felipe III, August 8, 1620, Blair and Robertson, +XIX, 77-89. + +[499] Recopilación, 5-3-24; also A. I., 105-2-1. + +[500] Recopilación, 2-15-55. Don Antonio de Morga, writing in his +Sucesos in 1609, described the Chinese government of the Parián as +follows: "The Chinese have a governor of their own race, a Christian, +who has his officials and assistants. He hears their cases in affairs +of justice, in their domestic and business affairs; appeals from him +go to the alcalde-mayor of Tondo, or of the Parián, and from all these +to the Audiencia, which also gives especial attention to this nation +and whatever pertains to it" (Morga's Sucesos, Blair and Robertson, +XVI, 197). See W. L. Schurz, "The Chinese in the Philippines," in +The Pacific Ocean in history, 214-222. + +[501] The Chinese were altogether too shrewd in business for the other +residents of Manila. The desire to avoid trouble and to keep from +provoking the Chinese to rebellion were also factors, and there were +institutional and religious reasons. The Chinese were of different +race and heritage and their practices and beliefs were regarded by +the Catholic Spaniards as altogether heathenish and heretical, and +judging by almost any standard of morality and cleanliness it must +be conceded that some of them at least were indecent and revolting. + +[502] Cédula of December 1, 1606, A. I., 105-2-1. + +[503] Recopilación, 6-18-6. + +[504] King to the Audiencia, December 4, 1630, A. I., 105-2-10. The +Chinese had asked the king on this occasion to remove Governor +Tavora. The magistrates, jealous of the governor, and desiring to +see him dispossessed of his office, forwarded this request to the king. + +[505] Royal instructions to Gerónimo Ortiz y Capata; February 4, +1631, A. I., 105-2-1. + +[506] King to the Audiencia, December 4, 1630, A. I., 105-2-10. + +[507] King to the Audiencia, August 8, 1609, A. I., 105-2-1. + +[508] King to Governor Silva, March 27, 1616, A. I., 105-2-1. + +[509] King to the President and oidores, July 25, 1619, A. I., 105-2-1. + +[510] King to the President and oidores, December 21, 1630, A. I., +105-2-1. + +[511] Acuerdo of July 27, 1713, A. I., 68-4-17. + +[512] Attention was called in the last chapter to the acuerdo power of +the audiencia in Chinese affairs. It was seen there that the audiencia +passed ordinances regulating the Chinese trade, also their organization +and manner of living in the Islands. + +[513] King to the President and oidores, May 14, 1790, A. I., +105-9-10. This tax was collected from the Chinese in 1852, when Jagor, +the celebrated German traveller, visited the Islands. Chinese who +were engaged in agriculture paid merely the tribute of twelve reales, +which was collected from natives as well. In addition to the tax of +six dollars (probably Mexican, which were equivalent to the silver +peso) merchants paid an industrial tax of twelve, thirty, sixty, or +one hundred dollars, according to the amount of business transacted +(Blair and Robertson, LII, 57-58, note). + +[514] Consulta of June 28, 1786; Intendant Carvajal to King, December +31, 1787, and other letters; A. I., 107-5-15. + +[515] Testimonio de autos sobre sublevación de los sangleyes, +substanciados y determinados por el oidor, Don Pedro Sebastián Bolívar +y Meña, 1686-1690, A. I., 68-1-27. + +[516] Marquina to the King, June 30, 1793, A. I., 107-5-22. + +[517] King to the Audiencia, November 30, 1797, A. I., 105-2-18. + +[518] King to the Audiencia, February 19, 1806, ibid. + +[519] See Chapter II, notes 61 and 64 of this book. The study which +Dr. David P. Barrows has recently made of the office of governor +and captain-general is of value in showing the continuity, and at +the same time the evolution of the office from Spanish times to +the present. Dr. Barrows states that Miguel López de Legaspi became +governor and captain-general of the Philippines when the office was +created in 1567. The original cédula of establishment and appointment +is in Blair and Robertson, III, 62-66, and bears the date of August +14, 1569. See Barrows, "The governor-general of the Philippines under +Spain and the United States," in The Pacific Ocean in history. p. 239. + +[520] Fiscal to the King, July 21, 1599, Blair and Robertson, XI, +114, 115; Maldonado to the King, June 28, 1605, ibid., XIII, 307-315. + +[521] Audiencia to Felipe III, August 8, 1620, ibid., XIX, 87-89; +see also Messa y Lugo to King, July 30, 1622, ibid., XX, 161-163. + +[522] Messa y Lugo to the King, July 30, 1622, ibid., XX, 162-163; +see Recopilación, 9-45-3. + +[523] Recopilación, 8-20-1. + +[524] Recopilación, 2-16-43 and 44. + +[525] Messa y Lugo to the King, op. cit., 186. + +[526] Blair and Robertson, XXXIX, 177. + +[527] In accordance with Recopilación, 5-15-2. + +[528] Foreman, Philippine Islands, 60; Blair and Robertson, XXXIX, +208-219. + +[529] The governor arrested and imprisoned magistrates Zalaeta +and Lezana before the arrival of Valdivia. Oidor Viga was exiled to +Samar and Bolívar was sent to Mariveles. Both of these last-mentioned +magistrates died in exile. By the time Valdivia arrived Fiscal Alanis +was the only person connected with the former audiencia who was left +to be punished. His residencia was taken and his property confiscated +(Blair and Robertson, XXXIX, 135, 231-233, 277, 281-295). + +[530] Bolívar to Valdez, June 15, 1685, ibid., 221. + +[531] Ibid., 223. + +[532] Pimentel to Rodríguez, February 8, 1688. Blair and Robertson, +XXXIX, 240. Pimentel accused the governor of scandalous conduct, +"in the matter of chastity, not sparing any woman, whatever may be +her rank or condition; and he keeps some worthless women who serve +as procuresses for conveying to him those whose society will give him +most pleasure." Pimentel stated that the archbishop and the friars of +the city did nothing to check this conduct, but knowingly permitted it. + +[533] Pimentel to Rodríguez, February 8, 1688, XXXIX, 239-240. + +[534] Ibid., 242-243. + +[535] Torralba to the King, June 23, 1718, A. I., 68-4-18. When +Governor Bustamante arrived in Manila in 1717, Torralba's services as +oidor and temporary governor, extending over a period of eight years, +were investigated. Wholesale bribery was the leading charge against +him. He had levied blackmail on alcaldes mayores, encomenderos, and +Chinese and Spanish merchants. He was also charged with the misuse of +government funds, and was held responsible for large deficits. It was +said that he had sent his wife to Macao with most of this ill-gotten +money. In his residencia he was fined 120,000 pesos, exiled forever +from Madrid, Manila and New Spain, and was reduced subsequently to +such poverty that he was compelled to beg. He died a pauper in the +hospital of San Juan de Diós, in Cavite, in 1736. + +[536] Government of Bustamante, Blair and Robertson, XLIV, 151; this +account (pages 148-165) is a summary of Concepción, Historia general, +IX, 183-424; see also Montero y Vidal, Historia general, I, 410-429. + +[537] Consulta del gobierno de Filipinas sobre la formación de aquella +audiencia, 2 de Mayo de 1718, Zulueta Mss., Manila. + +[538] Report of Archbishop de la Cuesta on the Bustamante Affair, +June 28, 1720, Blair and Robertson, XLIV, 182-195. + +[539] Recopilación, 2-15-11. + +[540] Ibid., 2-16-29. + +[541] Contestación de la Compañía de Jesús, 6 de Mayo de 1718, +Zulueta Mss., Manila. + +[542] Recopilación, 2-16-93. + +[543] Opinión de la Universidad de Santo Tomás, 9 de Mayo de 1718, +Zulueta Mss., Manila. + +[544] Recopilación, 2-16-44. + +[545] The legal phases of this question together with the opinions +of the royal fiscal and the leading councillors are set forth in +the consulta of the Council of the Indies of March 18, 1720, A. I., +68-2-8. In this consulta an effort is made to fix responsibility for +the murder of the governor, and to determine the legality of his acts. + +[546] This refers to the reception of the French papal delegate, +Tourón, who came to the Islands to inspect the archbishopric, and who +was received by the audiencia without the authority of the Council +of the Indies. This will be treated further in Chapter X of this book. + +[547] Fr. Diego de Otazo, the Jesuit confessor of Bustamante, in a +letter to his superior, described the power of the governor and his +treatment of the audiencia as follows: "Here, my father," he wrote, +"the governor takes away and establishes, gives, commands, unmakes and +makes more despotically than does the king himself;... Royal decrees +are not sufficient; for either he hides them, or he does not fulfill +them as he ought. The Audiencia does not serve [as a check] on him, +for he suppresses and he establishes it, when and how he pleases; +nor do other bodies, whether chapters or [religious] communities +(dare to oppose him), ... for he does the same thing [with them]. And +never do there lack pretexts for doing thus, even though such bodies +are appointed by the king; and with the pretext that account of the +matter has already been rendered to Madrid, what he has begun remains +permanently done, or else he proceeds to change it, as seems good to +him." (Letter of Diego de Otazo, S. J., November 19, 1719, Blair and +Robertson, XLIV, 175.) + +[548] Recopilación, 2-16-93. + +[549] Government of Bustamante (from Concepción), Blair and Robertson, +XLIV, 161. + +[550] Recopilación. 2-16-43, 44, 46. + +[551] King to Basco y Vargas, December 10, 1783, A. I., 105-2-10. + +[552] Sociedad de los Amigos del País, an economic, commercial, +and agricultural society established in the Philippines by Governor +Basco y Vargas in 1780.--Original autos and plans for society in +A. I., 106-1-14. + +[553] Audiencia to the King, December 17, 1788, A. I., 106-4-17. + +[554] Expedientes sobre establecimiento de intendencias y +subintendencias en Filipinas, A. I., 105-1-17, 107-5-18, 105-3-5, +146-6-13. + +[555] King to the Audiencia, August 1, 1788, A. I., 105-2-10. + +[556] King to Basco y Vargas, October 9, 1777, A. I., 105-2-9. + +[557] Audiencia to the King, December 23, 1789, A. I., 106-4-17. + +[558] Montero y Vidal, Historia general, II, 324, note. + +[559] For further testimony bearing upon the formative period of +the audiencia's history, see Chapter II of this volume, wherein +are described the conflicts attendant on the establishment of the +audiencia in the Philippines. + +[560] Dasmariñas to Felipe II, June 6, 1592, Blair and Robertson, +VIII, 253. + +[561] Acuña to Felipe III, July 15, 1604, Blair and Robertson, +XIII, 232. + +[562] Acuña continued as follows: "If the governors do not consent +to this (the appointment of the relatives and dependents of oidores), +the auditors dislike them, and seek means and expedients whereby the +worthy persons to whom the said offices and livings are given shall +not be received therein. Accordingly the governors, in order not to +displease the auditors, give up their claims and dare not insist upon +them" (ibid., 234). + +[563] Acuña further commented on their commercial abuses: "The said +creatures and connections of the said auditors trade and traffic a +great deal in merchandise from China; and the citizens complain that +it is with the auditors' money (their own or borrowed), and that with +the favor they receive they cause great injury to the commonwealth, for +they take up the whole cargo. They desire to be preferred therein, and +in buying the cloth and in every other way, try to take advantage. If +the president wishes to remedy this they do not cease to offer him +little annoyances; for the auditors know how to magnify themselves, +in such a manner that they give one to understand that any one of +them is greater than he; and they attain this by saying that what +the president or governor does they can cancel, and that what the +auditors decree has no appeal, recourse, or redress" (ibid., 234-5). + +Acuña testified that the magistrates had rendered life unpleasant +for the residents of the colony, because of their selfishness. He +continued: "the resources of this land are scanty, but if there is +anything good the auditors also say that they want it for themselves; +and when there is a Chinese embroiderer, tailor, carver, or other +workman, they proceed to take him.... Such benefits do not extend +to the citizens; but rather, if any of these things are available, +the said auditors demand them and by entreaty and intimidation get +possession of them. It is the same thing in regard to jewels, slave men +and women, articles of dress, and other things.... We are compelled +to overlook these things, and others of more importance, that we may +not experience worse trouble; ... as your Majesty is five thousand +leguas from here and redress comes so slowly" (ibid., 235-236). + +[564] Their salaries must be preferred, he wrote, "even if it be +from the stated fund for the religious orders, bishops, ministers +of instruction, and for the military forces, who are before them in +order,--they have difficulties and misunderstandings with the royal +officials (ibid., 236) ... as the treasury is always straitened +(sic), and, on account of the great care which the auditors take +to collect their salaries, as it cannot be so prompt as they would +wish, they seek borrowed money from the citizens--who give it to +them, willingly or unwillingly, each one according to his means or +designs. From this follow difficulties, to which they pay no heed; +as some of them demand these loans from persons who are parties to +suits at the time, who grant these to the auditors in order to place +them under obligations, and profit by them" (ibid., 239). + +[565] The rebellion referred to here occurred in 1603. It was said to +have been instigated by two mysterious mandarins who came to Manila for +the alleged purpose of searching for a mountain of silver, which was +located near Cavite. On the Eve of St. Francis the Chinese made their +attack with great success, owing, the ecclesiastical element claimed, +to the personal intervention of St. Francis, who appeared on the +walls and led his followers to victory. In this revolt 24,000 Chinese +were hunted down and slain. In 1639 another rebellion occurred. A +third insurrection of the Chinese took place in 1660. In 1763 the +Chinese joined with the British in their attack on the city. It is +estimated that Anda, in his campaign in the provinces, put an end +to 6,000 Chinese. Another massacre, and the last in the history of +the Islands, took place in 1820. This was an uprising of the natives +against all foreigners who were thought to be responsible for the +plague of cholera then raging (Foreman, Philippine Islands, 108-119; +A. I., 105-1 to 10 and 68-1-27). + +[566] The entire dependence of the colony on the Chinese trade is +attested by Concepción (Historia general, IV, 53). He states that: +"Without the trade and commerce of the Chinese these dominions could +not have subsisted." Morga, in his Sucesos (349), further testifies: +"It is true the town cannot exist without the Chinese, as they are +the workers in all trades and business, and are very industrious, +working for small wages." + +[567] Acuña to Felipe III, July 15, 1604, Blair and Robertson, XIII, +239-241. + +[568] Fajardo described "the oppression caused by the multitude of +relatives and followers (of the auditors); their appropriation of +the offices and emoluments, to the injury of the meritorious; their +hatred and hostility to those who unfortunately fall out with them; +their trading and trafficking, although it be by an intermediary, since +they, being men of influence, buy the goods at wholesale and protect +their agents." He stated that this caused him great embarrassment and +made good government almost an impossibility (Fajardo to Felipe III, +August 10, 1618, Blair and Robertson, XVIII, 126). + +[569] "The auditors," Fajardo wrote, "have few important matters that +oblige them to close application, (and) they must apply the greater +part of their time to devising petty tricks on the president in order +to vex and weary him, until, [as they hope] not only will he allow them +to live according to their own inclination but also their relatives +and followers shall, in whatever posts they desire, be employed and +profited. And since harmony has never been seen here without this +expedient, one would think it easy to believe such a supposition" +(Fajardo to the King, August 15, 1620, Blair and Robertson, XIX, +120-121). + +[570] Recopilación, 8-20, 21, 22. + +[571] Decree written on margin of letter: Fajardo to the King, August +15, 1620, Blair and Robertson, XIX, 136. + +[572] Ibid., 122. + +[573] Fajardo to Felipe III, August 10, 1618, Blair and Robertson, +XVIII, 126. + +[574] Fajardo to the King, July 21, 1621, Blair and Robertson, XX, 53. + +[575] Ibid., 54. Fajardo continued as follows: "To such a point has it +(the dissension) gone that if this country were not involved in the +perils of war as it has been, and as they are still threatening it, +I should beseech your Majesty to place it in charge of some other +person, who would be more interested in documents. But may God not +choose that I should be relieved from the service of your Majesty, +in which from the age of fifteen years I have been engaged; ... It +would be no little pleasure to me to be employed in naval and military +affairs and other things in which, with my counsel and my personal +aid, I might be able to help; and to know that the matter of auditors +and their demands, their rivalries, and their faultfinding, should +concern another."--Ibid., 55-56. + +[576] Concepción, Historia general. VII, 168 et seq.; see Lea, +Inquisition in the Spanish dependencies. 299-318, and Cunningham, +"The inquisition in the Spanish colonies; the Salcedo affair," in the +Catholic historical review, III, 417-445. The Salcedo affair will be +more fully discussed in Chapter XI, of this book, which treats of the +relations of the audiencia and the church; citations 60-72, Chapter XI. + +[577] See Augustinians in Philippines, in Blair and Robertson, XXXVII, +235, 239, 269-273. + +[578] Robertson, History of America, IV, 20. See Chapter VI, note 54, +of this book. + +[579] Recopilación, 2-15-46. + +[580] Moses, The Spanish dependencies in South America. 1, 221. The +Council of the Indies manifested its disapproval of the acts of the +audiencia and of Pizarro by commissioning Pedro de Gasca as president +of the Audiencia of Lima. Gasca was ordered to restore that viceroyalty +to the sovereignty of Spain, and to do whatever the king would do under +like circumstances. This was in May, 1546. "He (Gasca) was at the head +of every department of the administration," writes Professor Moses; +"he might raise troops, appoint and remove officers, and declare war; +he might exercise the royal prerogative of pardoning offenses; and was +especially commissioned to grant an amnesty to all who had been engaged +in the rebellion. He was authorized to revoke the ordinances which +had caused the popular uprising and the overthrow of Blasco Núñez; +and, returning to the earlier practice, he might make repartimientos, +or confirm those which had been previously made. In accordance with +his expressed wish, he was granted no specific salary, but he might +make any demands on the treasuries of Panama and Peru." Ibid., I, 225. + +[581] Ibid., I, 264. + +[582] Ibid., I, 267. + +[583] Ibid., I, 276-301. See Recopilación, 2-15-8. + +[584] Ibid., II, 82. + +[585] Ibid., II, 16. + +[586] Ibid., I, 361. + +[587] Bancroft, History of Mexico, II, 273-295. + +[588] Ibid., II, 318-340; 367-381. + +[589] Ibid., II, 410. + +[590] An audiencia was created at Compostela, Nueva Galicia, in +1548. This tribunal bore the same relation to the audiencia and viceroy +in Mexico as did that of Santa Fé de Bogotá to those in Lima. The +Audiencia of Nueva Galicia had both judicial and administrative +functions, exercising its jurisdiction over the partidos and +corregimientos, with their respective alcaldes and corregidores. It +concerned itself, moreover, with projects of conquest, discovery, +the development of mines, and internal improvement. Subsequently this +audiencia was transferred to Guadalajara and given that name. See +Recopilación, 2-15-7. + +[591] Bancroft, History of Mexico, II, 586. + +[592] Ibid., II, 602-7. + +[593] It is interesting to note that in 1564, while the Audiencia of +Mexico was governing ad interim, the voyage of Legaspi and Urdaneta +was undertaken, and the first permanent settlement was made in the +Philippines by authorization of that tribunal. Bancroft (History of +Mexico, II, 599-600) is both indefinite and inaccurate in his account +of the expedition of Legaspi and Urdaneta to the Philippines. He +says: "Finally on the 21st of November, 1564, the squadron sailed, +and after a prosperous voyage, reached Luzón, where Legaspi founded +the city of Manila." It is well known that Legaspi did not sail +directly to Luzón, as Bancroft implies, but he visited a number of +islands in the Archipelago before he settled at Cebú on April 27, +1565. Manila was not formally claimed until May 19, 1571 (Montero y +Vidal, Historia general, I, 39; Martínez de Zúñiga, An historical view, +113-119). Bancroft (op. cit., II, 743) states that Manila was founded +in 1564 by Miguel de Legaspi. Manila was a prosperous commercial center +before the Spaniards came to the Islands. Dr. James A. Robertson in his +article entitled "Legaspi and Philippine colonization" (see American +Historical Association, Annual report, 1907, I, 154), states on the +basis of original documents that "this well-situated and busy trade +center was erected into a Spanish city on June 3, 1571, and on the +24th the necessary officials were appointed." Dr. Robertson states +in a note (p. 154) that "possession was taken of Luzon, June 6, 1570." + +[594] Recopilación, 8-4-24. + +[595] Ibid., 3-2-47. + +[596] Ibid., 2-15-47 and 48. + +[597] King to the Audiencia, November 23, 1774, quotes the cédula +of September 13, 1608, as testimonio; A. I., 105-2-9. A copy of this +cédula also exists in A. I., 67-6-3. + +[598] Testimonio al acuerdo de 19 de Julio de 1654, Audiencia de +Manila, A. I., 67-6-3. See Recopilación, 2-15-58. + +[599] Copies of the cédula of January 30, 1635, and of April 2, 1664, +and of the consulta of September 9, 1669, exist in A. I., 67-6-3. + +[600] Recopilación, 2-15-45. It will be seen that this law was slightly +modified by laws promulgated in the eighteenth century. + +[601] Ibid., 60. + +[602] Ibid., 56; 3-2-12, 13, 53, 28-33. + +[603] Ibid., 9-11. + +[604] Ibid., 10. + +[605] Montero y Vidal, Historia general, I, 94; Martínez de Zúñiga, +An historical view, I, 184-192. + +[606] Ibid., I, 192. + +[607] Ibid., I, 199. + +[608] Montero y Vidal, op. cit., I, 106-107; Martínez de Zúñiga, +op. cit., I, 195. + +[609] Morga's Sucesos, Blair and Robertson, XVI, 61. + +[610] Acuña designated Almansa to supervise military affairs instead +of Oidor Maldonado, who was in reality senior magistrate, and as such +should have assumed the direction of military affairs in accordance +with the practice elsewhere, and in compliance with the laws of the +Indies. The fiscal objected to this illegal procedure, as he termed it, +alleging that the governor was not authorized by law to choose his +own successor. He pointed out that, according to the existing laws, +the senior magistrate should succeed to the military command by his +own right, without the interference either of the governor or the +audiencia. Notwithstanding this protest, Almansa continued to hold +the post of acting captain-general, for which it was said that he +was better fitted than Maldonado. + +[611] Audiencia to Felipe III, July 6, 1606, Blair and Robertson, +XIV, 140-148. These demands were ultimately met by a subsidy from +the treasury of New Spain. It may be remarked in this connection, +that the oidores were probably interested in somewhat more than +increased revenue for defense, since they were known to have been +absorbed in commercial ventures. This episode marks the beginning of +a struggle on the part of the Manila merchants for increased trading +privileges--a battle which continued until the close of the eighteenth +century. They were opposed by the merchants of Cádiz and Seville, +and it was in the interest of these last-mentioned cities that the +Manila trade was restricted (Royal order of November 10, 1605, and +King to the Audiencia, February 6, 1606, A. I., 105-2-1). + +[612] Although the laws of the Indies forbade the oidores from trading +(Recopilación, 2-16-59, 60, 62, 64, 66), and the correspondence of the +period shows that the oidores were at first denied trading privileges, +(King to Conde de Monterrey, April 14, 1597; A. I., 105-2-1), they +were allowed to send to Spain sufficient cloth, silk and other +dress materials for their own use and for that of their families +(Recopilación, 2-16-63). This last-mentioned privilege was abused, +however, until the right of each official to send only a limited +amount of cargo on the galleon was generally recognized. For example, +the cargo list of the galleon "Trinidad" in 1753, shows that ministers +were assigned six boletas, or bales, of the nominal value of 125 pesos +each--that being only half the amount usually allowed. This reduction, +effected by Governor Arandía, caused much opposition on the part of +the audiencia (Expediente of January 30, 1754; A. I., 108-3-11). The +officials having first claim on the right to send goods in the galleon +were those of the municipal cabildo of Manila. On March 27, 1714, they +were conceded the right to ship 132 fardillos, the specifications of +which were not given. It was mentioned, however, in the consulta which +recommended this bestowal that this was a re-enactment of the grant +of 1699, and that it was the policy of the king to be generous to the +regidores in this matter because they were not given salaries (A. I., +68-2-8). The royal order of June 30, 1786, bestowed on the regidores +the right to ship one ton of goods. This right was confirmed by the +consulta of October 7, 1789 (A. I., 105-3-5). The cédula of April +25, 1803, conceded five boletas, each valued at one hundred pesos, +to each regidor. The oidores were each allowed ten boletas by this +cédula (A. I., 106-2-15). + +[613] Audiencia to Felipe III, July 6, 1606, Blair and Robertson, +XIV, 147. + +[614] Martínez de Zúñiga, An historical view, I, 230-331. + +[615] Ibid., I, 239, et seq.; Montero y Vidal, Historia general, I, +162, et seq. + +[616] Martínez de Zúñiga, op. cit., I, 241; Montero y Vidal, op. cit., +I, 166. + +[617] Inventario de Residencias, A. I. op. cit. + +[618] King to the Audiencia, August 9, 1609, A. I., 105-2-1. + +[619] See Chapter VII, notes 49 to 56. + +[620] Recopilación, 2-15-56; 3-2-47; 3-2-11 and 12. + +[621] Fajardo to Felipe III, August 10, 1618, Blair and Robertson, +XVIII, 127. In regard to the points covered in the above letter +of Fajardo, the audiencia legally lacked the power of granting +encomiendas at this time, although it undoubtedly bestowed them, +nevertheless. The power to grant encomiendas for the period of its +temporary rule was granted October 24, 1655. Moreover, by cédulas of +May 25, 1596, August 24, 1619, and September 5, 1620, the audiencia +was conceded authority to make temporary appointments to offices when +it assumed the government ad interim (Recopilación, 2-15-56; 3-2-47; +3-2-11 and 12). + +[622] Fajardo to Felipe III, August 10, 1618, Blair and Robertson, +XVIII, 124-125. + +[623] Martínez de Zúñiga, An historical view, I, 250-251. The latter +Silva was a relative of the viceroy, the Marqués de Cerralbo. He +was well known in the Philippines, where he had formerly resided and +married the daughter of an influential resident. He held the temporary +governorship about a year. It was during his administration, and +through his efforts, that the first Spanish expedition was made to +Formosa, Silva having ordered the alcalde mayor of Cagayán to land +there with a military force and establish fortifications. This was +done; thereupon a large number of Dominican friars sought and obtained +permission for the spiritual conquest of the Island. Zúñiga says that +the latter "exerted themselves with such zeal, that in a short time +they built several towns, and were able to number the greater part +of the natives among the professors of our faith" (ibid., I, 252-253; +Montero y Vidal, Historia general, I, 180-181). + +[624] Audiencia to the King, July 24 and August 15, 1624, Blair and +Robertson, XXI, 84-97. + +[625] Silva to Felipe IV, August 4, 1625, Blair and Robertson, +XXII, 62-78. + +[626] Ibid., XXII, 66. The governor estimated the services of the +magistrates in a special report to the king on July 30, 1626. He +stated that Messa was "an upright judge, and zealous in the service +of your Majesty." His comments on the other three were as follows: +"Geronimo de Lagaspi does what his two sons wish, whom, on account +of their reckless lives, the governors cannot employ, and thus they +are unable to satisfy their father, who is not contented except with +favors. Don Juan de Valderrama does as his wife says; and Don Matias +Flores, although a young man, is less harmful;... He makes all the +profit he can from the office, and on the whole is not acceptable to +the community, which is always disturbed by him" (Silva to Felipe IV, +July 30, 1626, Blair and Robertson, XXII, 102). + +[627] Instructions to Francisco de Rojas y Ornate, August 17, 1628, +A. I., 105-2-1. + +[628] See Royal Instructions to Rojas y Ornate and Tavora (duplicates), +June 4, 1627, A. I., 105-2-1. + +[629] Martínez de Zúñiga, An historical view, I, 264-266, Montero y +Vidal, Historia general, I, 189-200. The method of filling vacancies +in the governorship during this period was described in a letter from +Governor Corcuera, Cerezo's successor, to the king, dated June 30, +1636. He wrote: "Your Majesty has conceded to your viceroys of Nueva +España authority, in case of deaths and vacancies in this government, +to send commissions to those who are to have charge of military +matters; and until the arrival of the regularly appointed governor +you order them to send another governor from Mexico" (Corcuera to +Felipe IV, June 30, 1636, Blair and Robertson, XXVI, 150). + +[630] Cédula of January 30, 1635, A. I., 67-6-3. + +[631] Corcuera to Felipe IV, June 30, 1636. Blair and Robertson, +XXVI, 150 et seq. + +[632] Fajardo to the King, July 10, 1651, A. I., 67-6-9. + +[633] Ibid. + +[634] Governor Lara to the King, July 19, 1654, A. I., 67-6-9. + +[635] Cédula of April 2, 1664, with testimonios of former cédulas +and correspondence on succession, A. I., 67-6-3. + +[636] These two magistrates had come to the Islands on the same ship; +Montemayor had disembarked at Cagayán and had come to the city by +land, arriving a few days earlier than Coloma (Montero y Vidal, +Historia general, I, 336). + +[637] Events in Filipinas, 1668, Blair and Robertson, XXXVII, 23-63; +also correspondence of Governor Manuel de León, and consultas of the +Council of the Indies on Salcedo Affair, 1670-1673, A. I., 67-6-9, +10, 11; 67-6-3. For a more extended account of this episode, see +Cunningham, "The inquisition in the Philippines; the Salcedo affair," +in the Catholic historical review, III, 417-445. + +[638] Augustinians in the Philippines, 1641-70, Blair and Robertson, +XXXVII, 273-275; also Consulta of Council of the Indies, July 16, +1674, A. I., 67-6-3. + +[639] Montero y Vidal, Historia general, I, 354-361. + +[640] Ibid., I, 375. See Chapters X and XI of this book. + +[641] There is no question of the harmful effects of the intervention +of the church in the government on this occasion. For a general +survey of this subject throughout the history of the Philippines, +see the author's article entitled "The ecclesiastical influence in +the Philippines" (1565-1850) in The American journal of theology, +XXII, 161-186, and Robertson, "Catholicism in the Philippine Islands," +in The Catholic historical review, III, 375-391. + +[642] See Chapter VIII, note 16. On June 30, 1716, Torralba forwarded +an elaborate memorial to the king, showing that the finances were +in an excellent state, a net gain of 38,554 pesos having accrued to +the treasury since the beginning of the audiencia's rule. On the day +that this report was filed there existed in the treasury, according to +Torralba's figures, a favorable balance of 294,000 pesos. This report +contains the following interesting data: Income from the subsidy, +250,000 pesos; betel monopoly, 13,167 pesos; tributes, 109,152 +pesos; royal auctions, 20,377 pesos; medias anatas, 16,373 pesos; +almojarifazgo, 20,377 pesos; wine monopoly, 14,000 pesos (Report of +Torralba on Financial Affairs, June 30, 1716, A. I., 68-4-18). In a +letter dated July 8, 1716, Torralba reported his compliance with the +cédula of October 10, 1713, by means of which the king had appealed +for a "free gift or contribution on the part of the inhabitants of the +Islands to assist in putting down a Catalonian conspiracy." Torralba +stated that the audiencia had seen to the fulfillment of this command +and had collected the sum of 7,042 pesos (Torralba to King, July 8, +1716, A. I., 68-4-18). + +[643] Concepción, Historia general, IX, 44, et seq. Pavón, it will +be remembered, had been removed for advising Governor Zabalburú to +receive the French papal delegate, Tourón. In 1718 all of Torralba's +acts against Tourón and Villa were nullified by the Council of the +Indies, and those officials were restored to office, while Torralba +was condemned to perpetual exile (A. I., 68-2-8). + +[644] Torralba to the King, July 15, 1715, A. I., 68-4-18; another +report of Torralba on the same subject, dated September 1, 1717, +exists in A. I., 68-2-8. + +[645] Royal Fiscal to the Council, August 21, 1719, A. I., 68-4-18. + +[646] Torralba to the King, June 15, 1716 [with approval of Council +indicated on margin], A. I., 68-4-18; Recopilación, 6-8, 6-9, 6-10. + +[647] Martínez de Zúñiga, An historical view, II, 37-40. + +[648] Zúñiga, who was favorable to the rule of the churchmen, writes: +"There never appeared less confusion at an insurrection than on the +present occasion, every individual seeming satisfied with his lot in +being relieved from unjust oppression and violence. The archbishop, +who had assumed the reins of government, was the only person +whose mind was not at ease; but in a short time he was restored to +tranquillity by the arrival of a royal order, enjoining him to suspend +the Governor from his office, and imprison him; replace the Royal +Audience on the same footing as before; set at liberty Señor Velasco +(an oidor who had been imprisoned by Torralba), and assume the reins +of government himself, which was exactly what had been effected by +the late disturbance."--Martínez de Zúñiga, op. cit., II, 39-40. + +[649] Royal order of September 8, 1720, A. I., 106-4-16. Testimonio of +cédula of November 23, 1774, A. I., 105-2-9. Two years later, the home +government showed its disapprobation of the rigorous acts of Cuesta +by demoting him from his place as Archbishop of the Philippines to +the minor post of Bishop of Mechoacán in New Spain (Montero y Vidal, +Historia general, I, 432). The assumption of the government by Cuesta +invited the suspicion that he had been a party to the murder of the +governor. Seven archbishops had already ruled on various occasions +in New Spain (Bolton, Guide, 469-470). It is surprising that such an +attempt to solve this problem was not made earlier in the history of +the Philippines. + +[650] Martínez de Zúñiga, op. cit., II, 84-95; Montero y Vidal, +Historia general, I, 480-495. + +[651] Martínez de Zúñiga says he carried a special government +commission as governor ad interim, and his refusal to accept the office +was later used as a precedent by Bishop Espeleta in his refusal to turn +over the governorship to Archbishop Rojo (Zúñiga, An historical view, +II, 89). Evidently he had all the qualifications necessary to fill +the office of governor, for he had been a member of the Audiencia of +Quito for seventeen years, and had been also a member of the Council +of the Indies (Blair and Robertson, XLVIII, 145-146). + +[652] Martínez de Zúñiga, An historical view, II, 89-90. + +[653] Opinion of Pedro Calderón Enríquez, July 26, 1759. Opinion of +Francisco Leandro Viana, July 31, 1759, Autos of Appeal, August 3, +1759, A. I., 106-4-16. Montero y Vidal (Historia general, II, 8) +states that Espeleta used intimidation to secure the office. + +[654] Anda was sixty-two years of age when he left Manila to undertake +the defense of the provinces (Blair and Robertson, XLIX, 211). + +[655] Relación de la conquista de Manila por los Ingleses y presa +del galeón de Santísima Trinidad en el mes de Octubre de 1762. A. I., +107-1-15. + +[656] Manifiesto of Viana, March 8, 1762, A. I., 107-3-2. + +[657] Rojo's Narrative, Blair and Robertson, XLIX, 210. + +[658] Ibid., 210-211. + +[659] Testimonio del Secretario de Cámara, 13 de Noviembre, +1762. A. I., 107-3-2. + +[660] Recopilación, 2-31-1 to 14. + +[661] Martínez de Zúñiga, An historical view, II, 180. + +[662] Testimonio del Secretario de Cámara (authorized and sworn to +by Anda), 13 de Noviembre, 1762, A. I., 107-3-2. + +[663] Testimonio del fiscal, Francisco Leandro de Viana. 8 de Marzo, +1763. A. I., 107-3-2. + +[664] Rojo's Narrative, op. cit., Testimonio de D. Antonio Díaz, +(ayudante de Rojo) ... 28 de Noviembre de 1762, A. I., 107-3-4. + +[665] Montero y Vidal (Historia general, II, 67; see, also, note 114, +Blair and Robertson, XLIX, 176) summarizes the life and character +of Archbishop Rojo as follows: "This prelate was more imbecile than +traitor.... His obstinacy in submitting the Islands to the dominion +of the English; his struggles against Anda ... his absolute ignorance +of his powers ... his pardonable ignorance of whatever concerned the +military defense of the archipelago, his calm submission to whatever +the English advised, even in matters clearly opposed to the integrity +and interests of Spain ... give an exact idea of the capacity and +character of the unfortunate one who had the misfortune in such +an anxious time to exercise a command for which he was lacking in +intelligence, valor and in all other attributes necessary to its +successful accomplishment." + +Le Gentil (Voyage, II, 252) characterizes him as follows: "Archbishop +Rojo was a capable man for the management of finances; he was clever +in business and very zealous for the service of the king; but he did +not understand anything of military affairs; ... he was between two +fires, and being of an irresolute disposition, he did not know which +way to turn, ... besieged on one side by oidores, on the other side +by monks, he would not (otherwise) have waited till the English were +on the assault." + +Charges of indecent living and riotous conduct were made by Anda in +his various letters to the Archbishop. While the English were at the +gates of the city, the prelate was passing his hours with indecent +women. Anda stated that Rojo alternated between the dance-hall and +the pulpit, leaving to others the question of defense. Anda stated +that Rojo had allowed himself to be influenced by the traitorous +Santiago de Orendaín, refusing to listen to the more loyal counsel +of the king's ministers (Blair and Robertson, XLIX, 132-160). + +Francisco Leandro de Viana, the fiscal, believed that the archbishop +neither wished to be a traitor to the king nor to his country, but +he asserted that he (Viana) was the only person in the colony who was +so charitable in his opinion. He felt that Rojo's stand was a result +of his incapacity, timorousness, irresolution and ignorance. Viana, +like Anda, commented on the archbishop's lasciviousness and immorality +(Viana to Rojo, March 1, 1763, A. I., 107-3-2). + +Zúñiga, the ecclesiastical historian, seeing through priestly eyes, +affirmed that Rojo was guilty of only one error during his rule. This +was his engagement to pay four millions of pesos to the English and +to deliver up the Islands to them (Martínez de Zúñiga, An historical +view, II, 239). + +[666] Anda to Rojo, October 20, 1762, Blair and Robertson, XLIX, +153-154. + +[667] When news of the temporary suspension of hostilities reached +him in July, 1763, Anda refused to place confidence in the assurances +either of the British or of the archbishop. He held out until the +arrival of the new governor, Francisco Xavier de la Torre. See Anda +to Rojo, July 29, 1763, A. I., 107-3-4. + +[668] Recopilación, 2-15-180. + +[669] Anda to Rojo, October 30, 1762 (with testimonios of witnesses), +A. I., 107-3-3; Recopilación, 2-15-57 and 58. On October 20, 1762, +Anda wrote as follows: "I said and I repeat that the presidency and +government fell to the royal Audiencia; and I add that the latter is +conserved and continued in me, that I am the sole and only minister, +that by my absence from that capital because of the commissions +confided to me at a convenient time, I remained free from the enemies +... so that in my person is met the prescriptions of law clxxx of +the above-cited book and título, since my associates are lacking and +have been imprisoned with your Excellency in the fatal loss of that +capital." (Blair and Robertson, XLIX, 136). + +[670] Relación de la conquista de Manila por los Ingleses, +... 1761-1764, A. I., 107-1-15. + +[671] Memorial of Viana, March 8, 1763, A. I., 107-3-2. + +[672] Blair and Robertson, XLIX, 172-175. + +[673] Report of Governor Francisco Xavier de la Torre on the +Negotiations for the Evacuation of the City of Manila, 1764, A. I., +107-1-15. + +[674] Martínez de Zúñiga, An historical view, II, 234. + +[675] Viana to the King, October 30, 1762, A. I., 107-3-2. + +[676] By this seizure the sum of 2,253,111 pesos was realized in the +interests of his government and at the same time, of course, it was +kept from falling into the hands of the British. Anda subsequently +reported to Governor Torre that the capture of the treasure of the +"Filipino" made possible the conservation of the Islands, "and that +the English did not leave them completely desolate, since without this +aid, the subsistence of the state would have been impossible." (Anda +to Carlos III, June and July, 1764, Blair and Robertson, XLIX, 299). + +The fact that the galleon carried a cargo of over two million pesos +affords no small insight into the way in which the merchants and +officials obeyed the law which forbade an annual return exceeding +1,000,000 pesos. See Martínez de Zúñiga, Estadismo, I, 266-270. + +[677] Anda to Carlos III, June 22, 1764, Blair and Robertson, XLIX, +262-268. + +[678] Martínez de Zúñiga, An historical view, II, 234-235. + +[679] Ibid., II, 235; see Montero y Vidal, Historia general, II, 65-66. + +[680] Montero y Vidal, op. cit., II, 68-70. The treaty of peace between +England and Spain was signed on February 10, 1763. Notice had been +served on Anda several times that suspensions of military operations +had been authorized, but the oidor-gobernador was suspicious, and +would not respond to the overtures of the British. The Spanish troops +under Anda's command entered Manila on June 10, 1764, and the British +forces evacuated the same day. Montero y Vidal (op. cit., II, 71) +states that the new governor, Torre, feigned illness on the day of +the transfer of sovereignty that Anda might be enabled to receive the +keys of the city and thus not be deprived of the honors which he had +so faithfully earned. + +[681] Martínez de Zúñiga, An historical view, II, 241. + +[682] Anda was made Councillor of Castile on November 6, 1767. A +life's pension was bestowed on him on November 19, 1769. He remained +in Spain until 1770 when he returned to the Philippines as governor +(A. I., 106-4-4). + +[683] In Mexico two prelates governed ad interim after this +time--Peralta in 1787 and Beaumont in 1809. Bolton, Guide, 469-470. + +[684] Cédulas of November 23, 1774, and July 2, 1779, A. I., 102-2-9. + +[685] Articles 61 and 63, Royal Instruction of Regents, Rodríguez +San Pedro, Legislación ultramarina, VII, 22-28. This Instruction +transferred to the regent all the powers and prerogatives which +formerly belonged to the senior magistrates of the audiencias. These +are defined in Recopilación, 2-15-57 and 58. + +[686] Recopilación, 2-15, note 16. + +[687] Ibid.; also A. I., 102-2-9. + +[688] Royal order of October 25, 1806, Recopilación (1841), II, +Apéndice. + +[689] Rodríguez San Pedro, Legislación ultramarina, I, 90-91. + +[690] Concepción, Historia general, III, 336, et seq. This is +discussed in Chapter II of this volume. Original materials exist in +A. I., 68-1-32. + +[691] The royal patronage in the Indies was based on the bulls of +Alexander VI, dated May 4, 1493, and November 16, 1501, and on that of +Julius II, dated July 28, 1508. By the first two bulls the temporal and +spiritual jurisdiction of the Indies was conceded to the monarchs of +Spain and by the last one the universal patronato was given. Aside from +the responsibilities of government, this concession involved the duty +of christianizing the natives and the right of collecting tithes from +them. By virtue of these papal bulls the Spanish rulers were granted +the right of nominating prelates for the Indies, the assignment of +benefices and provinces to the different orders, the confirmation of +minor ecclesiastical appointments, and, in fact, general supervision +and control over the regular and secular clergy in the colonies +(Recopilación, 1-6-1 to 7). By these acts the pope was relieved of +all direct responsibility for the spiritual government of Spain's +over-sea dominions, his authority being limited to the approval of +prelates nominated by the Spanish king and to other ecclesiastical +duties of a nominal character. + +The patronato real in Spain furnished a precedent for that of her +colonial empire. Although the royal patronage in Spain and in the +colonies were closely associated, the beginning of this relationship +may be found in the early years of Spanish history, when concessions +were granted by the king to nobles, cities, and similarly, to +churchmen, in exchange for fealty of some sort. For example, the +vast tracts of land in Spain were received by the church as a gift +from the state, wherefore the state reserved the right to declare who +should hold these lands and enjoy these privileges and also the power +to dictate the conditions under which they were to be held. The right +of appointment by the crown to vacant benefices and to all the higher +church offices were applications of this principle. (See Cunningham, +"The institutional background of Latin American history," in the +Hispanic American historical review, Vol, I, pp. 24-39.) + +The concession of 1501 by Alexander VI was only one of a number of +privileges of the sort accorded by the popes to the Spanish crown. The +emperor, Charles V, obtained from Pope Hadrian VI the perpetual +right to nominate prelates and abbots to vacant benefices. In 1543 +the Spanish government further demanded and received the concession +that all posts within the church in Spain and her colonies should be +held by Spaniards. In 1538 the right of the church to issue bulls and +briefs affecting the colonies was limited. In 1574 Philip II declared +that the right of patronage belonged privately to the king. As a result +of this, says Professor Altamira, "the Spanish clergy considered itself +more closely bound to the king than to the pope, ... more dependent on +the court than on the curia, ... more eager for the privileges of the +crown than for the rights of the church, ... the bishops were obliged +to obey the monarch more than the archbishop." (Altamira y Crevea, +História, III, 418-19.) + +The laws of the royal patronage centralized the supervision and control +of the clergy of the Philippines in the person of the governor of the +Islands. The latter was vicepatron and representative of the king in +ecclesiastical matters. He was the responsible head of church affairs +in the Islands so far as these matters concerned the government. He +was legally authorized and required to receive and assign prelates, to +confirm minor appointments by the prelates to parishes and curacies, +to make removals from the same when necessary, to make temporary +assignments of provinces to the regulars and to support the prelates in +the exercise of episcopal visitation. His consent was necessary to the +suppression, division, or union of districts, curacies and parishes, +and no priest could leave the Islands without his consent. The +king was patron, but the exercise of his authority in the colonies +was delegated to the respective viceroys and governors. See entire +title of Recopilación, 1-6; for general observations on the royal +patronage see Gómez Zamora, Regio patronato: Parrás, El gobierno de +los regulares de la América, I, 2-16; Mendieta, Historia eclesiástica, +20-21, 186-196; Hernáez, Colección de bulas, 12-28. + +[692] This is a translation of ruego y encargo, which form civil +officials were required to employ on all occasions in addressing +ecclesiastical officials. The king himself observed this rule and +his act was supposed to form a precedent for general use within the +Spanish colonial empire. + +[693] Recopilación, 1-6-47. + +[694] Ibid., 2-1-10. Laws 11 and 12 of the same title did not in any +way diminish the authority of the royal audiencia. Law 11, dated May +16, 1571, antedating the one above quoted, declared that although +cédulas on governmental subjects were occasionally addressed to the +"president and oidores," the viceroys and presidents might have +private jurisdiction over these matters. Law 12, dated April 6, +1638, recognized the fact that ministers of justice were frequently +addressed on (governmental) subjects, which, it declared, should not +be construed to prejudice the viceroy's pre-eminence in these matters. + +[695] Concepción, as cited in note 1 of this chapter. Salazar's +arguments are outlined in Chapter II of this treatise. + +[696] Archbishop Pardo's well known opposition to the exercise of +governmental control on the basis of the royal patronage and his +resistance to the pretensions of ultimate superiority over the church +which the temporal government claimed and assumed are referred to in +another part of this treatise. In a letter written by the archbishop +relative to the ecclesiastical controversy bearing his name, Pardo +made the assertion that no person was more zealous to encourage or +conform to the royal authority than he, for he realized the necessity +of complete temporal jurisdiction over all things secular. He stated +that he had always encouraged the ecclesiastics to comply with the +just demands of the civil government, "for it is just," he wrote to +the king, "to observe the temporal things over which Your Majesty has +providence, since the secular power must be obeyed, ... yet I cannot +offend the royal person by allowing him or his servants to transgress +the rules or authority of God without interposing my influence against +it, even at the risk of being disgraced; ... while I am allied to +the civil authority in things secular, I am the superior in spiritual +matters." He continued: "God has placed side by side the ecclesiastical +and temporal authorities and the latter were intended to be subject +to the former, and therefore, the temporal ministers ought to cede to +the spiritual, according to the rules of the Holy Catholic Church. It +is manifestly unjust, therefore, that a governor, maestre de campo, +or other royal official should command or summon to justice a prelate +who is charged with the welfare of the souls of the people of his +commonwealth" (Pardo to King, September 7, 1686, A. I., 68-1-44). + +A violent, though ineffective resistance was maintained by the church +when Governor Simón de Anda y Salazar sought to abolish certain +practices observed in the chanting of mass. Anda based his action +on his authority as vicepatron. In his stand he was supported by the +archbishop and by two suffragan bishops. However, Bishop de Luna, of +Camarines, who was also papal delegate, violently opposed "sending +[a copy of] this scandalous mandate to the royal Audiencia--a body +consisting of three magistrates, to whom an appeal may lie against the +governor" (Letter of a Franciscan Friar, December 13, 1771, Blair and +Robertson, L, 318-319.) That a soldier should be the final arbiter in +a question belonging so pre-eminently to the ecclesiastical sphere, +seemed to this bishop to be entirely subversive of the interests of +religion and he turned to the audiencia for protection and support. The +governor sent a squad of soldiers to arrest the prelate, and the +latter was forced to leave the Islands. + +In 1770, Governor Anda was vehemently opposed by the ecclesiastical +authorities of the colony in his efforts, as the churchmen described +it, "to interfere in the governmental and judicial rights and +pre-eminences of the church." This was during the struggle over the +question of episcopal visitation; in this matter the governor supported +the archbishop. The former had gone so far as to declare that the +friars had neither the right nor the authority to administer the +sacraments. The replies of Fray Sebastián de Asunción, a Recollect, +and of Antonio de San Próspero, of the Augustinians, attacked the +whole foundation of the royal patronage, claiming that the church +should be given entire control in ecclesiastical matters. According +to their views the attention of the governor should be confined to +administrative affairs (Expediente de los provinciales de Filipinas, 15 +de Julio, 1772, A. I., 107-7-6). As these friars were the provincials +of their orders, their opinions are of value in reflecting the +ideas of the religious in the Islands on the subject of episcopal +visitation. These opinions were contrary to the accepted practices +and to the ideas of men of higher standing in Spain's colonial empire. + +Archbishop Pardo's well-known opposition to the exercise of +governmental control on the basis of the royal patronage gave him +pre-eminence in these same matters. + +[697] Gómez Zamora, Regio patronato, 330 et seq. + +[698] Ibid., 330-354. + +[699] Ibid., 378. + +[700] Recopilación, 1-8-2, 3, 6. A dispute concerning the jurisdiction +of the audiencia over the findings of synods arose in 1773 and again +in 1776, when the Bishop of Nueva Segovia protested against the ruling +of the audiencia that all the deliberations of a provincial synod +which had been held in that bishopric should be submitted for its +approval. The bishop appealed to the Council of the Indies and that +body approved the action of the audiencia (King to the Audiencia, +October 19, 1776, A. I., 105-2-9). + +[701] Recopilación, 1-9-2, 7, 10. + +[702] Recopilación, 1-13-23. + +[703] Ibid., 1-14-1, 20, 42; 3-14-3. + +[704] Ibid., 1-14-34, 38. + +[705] Ibid., 44, 67. + +[706] This law was nullified by the cédula of August 1, 1795, which +forbade the intervention of the vicepatron and audiencia in these +matters. See Recopilación, 1-6, note 17, also 1-14-37. + +[707] Ibid., 68. + +[708] Ibid., 71, 75. + +[709] Cédula of June 1, 1574, Blair and Robertson, XXI, 27-31. + +[710] Cédula of November 14, 1603, Blair and Robertson, XXI, 50-52, +note. + +[711] Royal order of April 6, 1609, A. I., 105-2-1. + +[712] Recopilación, 1-14; 1-7-54. + +[713] Ibid., 1-7-1, 36. + +[714] Montero y Vidal, Historia general, I, 357-358. Illustrative of +this same authority on the part of the audiencia and the Council of the +Indies was the consulta of the latter tribunal, enacted January 22, +1781. The Audiencia of Manila had called the attention of the home +government to the fact that the nomination of Fray Manuel de Obelar, +a Dominican, to the post of apostolic vicar of the province of Fukien, +China, had been irregular because it had lacked the formality of +presentation by the Spanish monarch. Other nominations, namely, those +of 1753 and 1759, were cited as examples wherein this formality had +not been lacking. The Council of the Indies recommended to the King +that the nomination should be accepted and that an ayuda de costa +should be voted, but that His Holiness should be notified through the +Spanish ambassador in Rome that in the future the requirements of the +royal patronage should be observed, and that no appointments in China, +Spain, or in the Spanish colonies should be made without the consent +of the Spanish monarch (A. I., 105-3-2). + +[715] Recopilación, 1-6-31 and 1-14-12, treat of the admission of +foreign prelates and visitors to ecclesiastical posts within the +Spanish colonial empire. The latter law stipulates, in addition, +that all bulls must be confirmed by the Council of the Indies before +their introduction into the Indies. + +[716] Tourón proceeded to China, where he continued his inspection. He +revoked many of the privileges of the Spanish friars there and forced +their retirement to Manila (consulta of the Council of the Indies on +the report of the proceedings of Cardinal Tourón in China, February +24, 1710, A. I., 68-2-8). That his proceedings were recognized by +the Spanish government is shown by the consulta of April 21, 1708, +whereby 4000 pesos were voted to defray the expenses of Tourón in +the Philippines and China. This money was added to the Philippine +subsidy in Mexico (ibid.). + +[717] Arce to Philip III, July 30, 1619, Blair and Robertson, XVIII, +238-239. + +[718] Díaz, Conquistas, II, 267, et seq.; Martínez de Zúñiga, An +historical view, I, 259. + +[719] Tavora to Philip IV, July 8, 1632, Blair and Robertson, XXIV, +224-228. + +[720] Corcuera to Philip IV, June 30, 1636, Blair and Robertson, +XXVII, 21. + +[721] The cédula of December 15, 1797, authorized the installation of +the Bishop of Nueva Segovia as archbishop in the vacant see of Manila, +on the death of the incumbent, in accordance with the requirements +of the royal patronage. On September 8, 1800, the Bishop of Cebú +was designated as archbishop in the same manner. The installations +were made by the vicepatron on the strength of these cédulas, with +the understanding that the latter were to be followed by the proper +papal bulls, executed in due form. Cédulas of December 15, 1797, +and of September 9, 1800, A. I., 105-2-18. + +[722] The vicepatron had a right to do this in conjunction with the +prelate until August 1, 1795, when authority was bestowed upon the +latter without the interference of the civil government. Recopilación, +1-6-38, note 17. + +[723] Cédula of August 1, 1795, and of September 16, 1803, A. I., +105-2-10; Recopilación, 1-6, note 17. + +[724] Recopilación, 1-14-71 to 75; the entire title (14) of this +book deals with the general subject of the religious orders. The +method of procedure in such cases may be illustrated by the efforts +of the government to correct the abuses of Fray Alonso Zamudio, an +Augustinian, who was in charge of a parish, and who therefore was +subject to episcopal visitation. He was charged with immoral and +vicious conduct. The provincial of his order made an investigation +and reported that the evidence brought against him would warrant his +prosecution. He recommended the removal of the friar, which, he stated, +he could not himself bring about because Zamudio was acting as a parish +priest. The provisor of the archbishopric recommended the banishment +of Zamudio, which act was carried out by the governor in acuerdo with +the audiencia. A ruego y encargo was dispatched by the tribunal, +soliciting the surrender of the friar. He was accordingly handed +over to the civil authorities and was incarcerated in Fort Santiago +until the sentence could be executed (Información del juez-provisor, +y testimonio de los abusos del fraile Alonso Zamudio, May 21, 1650, +A. I., 67-6-9). + +[725] Recopilación, 1-14-71, 72. An illustration of the operation of +this sort of banishment may be noted in the case of three Augustinian +friars whose deportation was requested by their provincial. The request +was ignored by Governor Anda, whereupon the provincial wrote directly +to the court; consequently on April 13, 1777, the king ordered the +audiencia to see that these three friars were returned to Spain; +Anda was advised to give more attention in the future to matters +pertaining to the royal patronage (King to the Audiencia, April 13, +1777, A. I., 105-2-9). + +[726] This has been discussed in Chapter III of this treatise. + +[727] Recopilación, 1-14-67. + +[728] Concepción, Historia general, IX, 190; Montero y Vidal, Historia +general, I, 400-401. + +[729] "Provisores and vicarios generales exercise the ordinary +ecclesiastical jurisdiction throughout the entire territory of the +diocese and reside in the head city of the bishopric or archbishopric" +(Escriche, Diccionario, II, 453). The magistrates and other judicial +functionaries of the ecclesiastical jurisdiction will be described +at greater length in the succeeding chapter. + +[730] Juez-conservador, an ecclesiastical or secular (not civil) judge +named by the pope with jurisdiction or power to defend a particular +church, monastery or convent. (Escriche, Diccionario, II, 260). + +[731] Nuns of St. Clare to King, Blair and Robertson, XXVI, 24. + +[732] Recopilación, 2-31-1, 8; 6-10-8, 9. + +[733] Le Gentil, in Blair and Robertson, XXVIII, 218. + +[734] Recopilación, 3-14-28. + +[735] Guerela to the Council, June 20, 1702, A. I., 68-4-12. + +[736] Report of Torralba, July 20, 1713, A. I., 68-4-16. Torralba +was charged in his residencia with having received bribes from the +Franciscans for making this report, which was favorable to them and +which was designed to bring about the restoration of the curacies to +the friars of that order. + +[737] Royal decree of February 14, 1713, A. I., 68-4-18. + +[738] Recopilación, 1-14-42 to 46; 1-7-21 to 31; 1-6-49; 2-15-146 +and 147. + +[739] Royal decree of December 31, 1622, Blair and Robertson, XX, 253. + +[740] Recopilación, 2-18-18. + +[741] King to the Audiencia, April 6, 1778, A. I., 105-2-9. + +[742] Información, a legally-attested document establishing proof of +some act or crime (Escriche, Diccionario, II, 156). In the broader +sense an información was an opinion or a body of evidence on a special +topic drawn up and legally attested by the proper authority. These +informaciones appear to have been submitted by the audiencia, or by +individual oidores, contadores, oficiales reales and others, but in +all cases they were legally drawn up and sworn to. An información +was always a special report, drawn up in compliance with a request +or command and is thus to be distinguished from a regular yearly or +semi-annual report. + +[743] Recopilación, 2-23-13, 12, 15. + +[744] King to the Audiencia, July 1, 1598, A. I., 105-2-1. + +[745] King to the Audiencia, December 7, 1610, Blair and Robertson, +XVII, 151-152. + +[746] King to the Audiencia, August 17, 1628, A. I., 105-2-1. + +[747] Recopilación, 1-14-1. + +[748] Ibid., 1-14-31 to 34, 38, 40, 91, 92; 2-33-11 to 15. Hundreds +of these reports appear in A. I., 105-2-1 to 10. + +[749] Recopilación, 1-14-2, 3, 4. + +[750] Ibid., 1-14-90, 91, 20. Missionaries were so badly needed in +the colonies in the sixteenth century that they were sent free of +expense. The governors and viceroys were commanded to pay particular +attention to them, assisting and providing for them in all possible +ways. "Until the members of the different orders were enabled, +by their sufficient numbers and increased prosperity, to establish +themselves in communities ... both king and pope extended privileges +and protection to them in order to facilitate the labors of their +calling." (Bancroft, History of Mexico, III, 702.) + +[751] Recopilación, 3-14-4. + +[752] Ibid., 1-22-7. + +[753] Ibid., 19. + +[754] Ibid., 1-22-53. + +[755] Audiencia to Felipe II, June 25, 1588, Blair and Robertson, VI, +318. The Jesuits, on July 8, 1598, again requested permission to bestow +the degrees of licentiate and doctor, urging that the distance from +Europe was so great that the universities there were inaccessible to +students of the Philippines. At that time the petition of the Jesuits +was not granted, but that order succeeded in getting permission +to establish the college of San José in 1601. This institution was +enabled to maintain itself without royal aid until 1767. Its chief +support was derived from the immense wealth of the society and from +the large donations of individuals. + +[756] Montero y Vidal, Historia general, I, 283-294; Pastel-Colín, +Labor evangélica, III, 414-418. + +[757] Cédula of June 30, 1778, A. I., 105-2-9. + +[758] The college of Santo Tomás was founded on August 15, 1619, +eighteen years after the foundation of the rival college of the +Jesuits. Due largely to the guiding influence and paternal care of +a number of Dominican archbishops it grew and prospered. It became a +royal university in 1645 and its title was extended at various times +subsequently (Montero y Vidal, Historia general, I, 169 [note], 283). + +[759] Blair and Robertson, XXXVIII, 78-80. + +[760] A number of testimonios exist in A. I., 105-2-6 bearing on +suits of natives and Chinese mestizos who aspired to enter the royal +university. In later years they were admitted, but these institutions +were primarily intended for the children of Spaniards. Of especial +interest was the suit brought in the audiencia by the Chinese mestizo, +Francisco de Borja, against the University of Santo Tomás for the +degree of master of arts, which the educational institution refused +to grant on account of the nationality of the plaintiff. The suit +was carried to the Council of the Indies, and that tribunal, after +requiring the opinion of the royal fiscal, declared in its consulta +of July 17, 1780, that the laws of the Indies (Recopilación, 1-22-57) +denied to mestizos, Chinese, and mulattoes the right of studying in +the royal universities, but once having qualified, however, there +was nothing in the origin or nature of an infidel that should prevent +his receiving his degree (A. I., 105-3-1). Another question which was +deliberated with much care was whether illegitimate children should +be admitted as students or qualified as licentiates. + +[761] Ecclesiastical tithes (diezmos), according to Martínez Alcubilla, +were "taxes upon the products of the earth which the producers paid +from the entire product of their labor, without deduction of the +expenses to which they were put, or consideration of the capital +invested" (Martínez Alcubilla, Diccionario, V, 412). Escriche defines +the ecclesiastical tithe as "the part which is paid by the faithful for +the maintenance of the ministers of the church," usually consisting +of a tenth of their products, although at times it was less, varying +with the use and custom of the locality (Escriche, Diccionario, +I, 638). This payment was required from merchants, farmers and +encomenderos (Recopilación, 1-16-1 to 10). In 1537 Viceroy Mendoza was +directed to exact tithes from the natives (Bancroft, History of Mexico, +III, 666). This was again ordered by the cédulas of July 12, 1778, +and January 20, 1786 (A. I., 105-2-9). Subsequently the agricultural +estates of friars were made liable to the payment of tithes. As early +as 1655 the Jesuits in New Spain were obliged to pay tithes on all +crops and productions of their estates (Bancroft, History of Mexico, +III, 668). + +The purpose to which these funds were theoretically devoted was the +support and maintenance of the church. The right of collecting and +administering them was conceded to the crown by Pope Alexander VI +in the bull of November 16, 1501, in "full, absolute and irrevocable +ownership, with the condition that the crown should assist the church +with a sum sufficient for the decent support of divine worship, its +prelates and ministers" (Recopilación, 1-16-1 and 23). The cédula +of April 29, 1648 reaffirmed and amplified this bull, ordering in +addition that one-third of all money arising from vacant benefices +should be set aside for the support of the church, while the residue +should be sent to Spain (ibid., 1-7-41; see also 1-16-28 and Article +8, Real Ordenanza de Intendentes de Buenos Ayres; Robertson, History +of America, IV [Bk. viii], note XXXII). + +On February 3, 1541, Charles V prescribed that the tithes should be +divided into four equal parts, two of which were to go to the prelate +and chapter of the diocese, while the remaining two parts were to +be further separated into ninths (novenos), of which two were to +be reserved for the crown, three for the construction of churches +and hospitals, two for salaries of curates, and the remaining two +portions were to be set aside to pay the dignitaries and subalterns +of the diocese (Recopilación, 1-16-23). + +In case the portion reserved for the salaries of curates proved +insufficient, the royal treasury guaranteed a yearly stipend of from +one hundred to a hundred and twenty pesos to each priest. This cédula +was amended by the regulation of March 28, 1620, which provided that +the royal ninths should be taken from the gross amount of tithes paid +in (Recopilación, 1-16-25). So it developed that the crown came to +assume entire jurisdiction over the administration of the tithes, +retaining a portion of these episcopal rents for non-ecclesiastical +purposes. The royal share was placed in the treasury and was +administered by the oficiales reales, leaving only seven-ninths of +the money actually obtained to be expended for the support of the +church. These funds were collected in the provinces by the provincial +revenue officials, subject to the supervision of the alcaldes mayores, +who were responsible in turn for this particular matter to an oidor +and a royal treasury official of the central government (Ibid., +1-16-1, 30). + +These novenos were not infrequently farmed out in New Spain, and at the +auctions thereof frauds were as repeatedly committed as at the sales +of other royalties. Instructions were issued ordering the Audiencia +of Mexico to investigate the nature of these transactions. In March, +1728, the royal novenos were leased for a period of nine years at +$19,000 annually. When this lease expired they were let again for +a similar period at $20,000 a year (Bancroft, History of Mexico, +III, 666-668 and note 57); see Priestley, José de Gálvez, 249-253, +for data on the administration of tithes in New Spain. + +[762] Recopilación, 1-16-11, 3. + +[763] Ibid., 13. + +[764] Ibid., 24; also Real Ordenanza de Intendentes de Nueva España, +Art., 193. + +[765] Royal order of September 25, 1768, A. I., 107-5-23; see also +Royal decree of July 9, 1785, A. I., 106-2-15. + +[766] Testimonios accompanying auto of December 11, 1775, A. I., +105-2-9. + +[767] King to the Audiencia, July 12, 1778, A. I., 105-2-9. + +[768] Decree of January 20, 1786, repromulgated December 16, 1796, +A. I., 105-2-10. While the laws of the Indies make no mention of the +requirement that the natives should pay tithes, the above cédulas +expressly order it. This is interesting, in view of the fact that +Gómez Zamora, in his Regio Patronato (381 et seq.) says that in the +Philippines the natives were not called upon for tithes. Montero y +Vidal (Historia general, III, 179) cites the cédula of May 23, 1801, +which exempted Indians from the payment of tithes. + +[769] Montero y Vidal, Historia general, III, 179; also King to the +Audiencia, October 6, 1792, A. I., 105-2-10. + +[770] Aguilar to Soler, July 31, 1799, A. I., 107-5-23. + +[771] On August 17, 1853, the superintendent of real hacienda of Manila +made an effort to revive the payment of tithes, which practice had +become extinct. He ordered the religious provincials to present in +the administración general de tributos lists of all taxable property +under their jurisdiction (Montero y Vidal, Historia general, III, 178). + +[772] While the temporalities were originally the endowments of +the sovereign for the support of the clergy, in the Philippines at +this time they were chiefly derived from the sale of jewels, lands, +live-stock, and other chattel properties of the Jesuit order, which +had been suppressed in 1769. Property to the value of 2,000,000 +pesos fell into the hands of the government on this occasion. The +temporalities did not include convents, school buildings, colleges, +churches and church furnishings. The latter were turned over to the +archbishop and the secular church. + +[773] Cédula of January 22, 1803, A. I. 107-5-29. + +[774] A very instructive and hitherto unexplored field of investigation +lies in the reports of the different officials and bodies in +the colonies which were entrusted with the duty of collecting and +forwarding money to help Spain in putting down the various revolts of +the late eighteenth and early nineteenth centuries. We may note the +letter of Governor Aguilar, dated July 20, 1804, in which he reported +compliance with the royal order of June 20, 1798, relative to the +raising of money for the purposes indicated. He had opened two public +subscriptions for "voluntary offerings" to aid in putting down the +Catalonian revolt of 1798. In the first subscription, 80,946 pesos +were raised and in the second, 15,397 pesos. The Dominicans alone +gave 5000 pesos, the magistrates of the audiencia, the members of the +consulado, the contadores, oficiales, reales, obras pías, prelates, +temporalities, the Compañia de Filipinas, the monte pio militar, +the veteran soldiers, religious orders and other organizations and +individuals each contributing their share. Aguilar reported that +subscriptions had been opened in all the provinces by the corregidores, +alcaldes mayores and intendentes. The various provinces and districts +contributed on this occasion as follows: Tondo, 11,059 pesos; Laguna, +2768 pesos; Cebú, 300 pesos; Albay, 85 pesos; Cápiz, 318 pesos; +Leyte, 21 pesos; Antique, 4 pesos; Samar, 1090 pesos; Zambales, 41 +pesos; Calamianes, 1607 pesos; Mindoro, 221 pesos. This money was +sent to the Viceroy of New Spain, and was forwarded to Spain by him +together with the remittances collected for the same purposes in that +viceroyalty. Reports of alcaldes mayores show that these assessments +(contribuciones voluntarias or directas, or donativos voluntarios) +varied from half a real from the poorest Indian to five hundred +pesos from the wealthier landlords and merchants. In many cases these +assessments practically amounted to confiscations (Aguilar to the King, +July 20, 1804, A. I., 105-3-23). + +On June 18, 1806, the king acknowledged receipt of money which had +been confiscated from the common funds of the village communities +(King to Aguilar, June 18, 1806, A. I., 105-2-18). + +Hume, in his Modern Spain (158), says that in 1809 the colonies +contributed 3,000,000 pounds sterling for the relief of the home +government. Priestley, José de Gálvez, 370-71, sheds some light on +the matter of these forced contributions in New Spain. + +[775] Martínez Alcubilla, Diccionario, X, 719. The obras pías were +charitable associations or corporations, usually under ecclesiastical +control, which were founded and supported by persons who contributed +or willed their money for beneficent objects. In Manila there were two +leading societies of this character, the Santa Misericordia and San +Juan de Diós. The former was a branch of a larger organization of the +same name, which had originated in Portugal, and was quite generally +established throughout Spain, Portugal and their colonies. A branch was +founded in Manila in 1596, with the object, as stated in the articles +of establishment, of erecting and maintaining a college for orphan +children, the support of the poor, and particularly of the orphans and +widows of soldiers. This society flourished from the beginning under +the favor of certain governors and oidores and by their assistance and +by that of other friends, and through the endowment by the government +of a large amount of free space on the galleon, it became a wealthy +and powerful institution. San Juan de Diós, which was organized as a +brotherhood, was established in the Philippines in 1617 with avowed +charitable purposes. In the cédula of February 10, 1617, the king +ordered the audiencia at Manila to place the hospitals under the care +of this brotherhood (Blair and Robertson, XLVII, 164-165). Though it +did not attain the wealth or importance of the Misericordia and it +never had the extensive relations with the government of the other +society, it did exceedingly valuable work in the Islands, going far +toward accomplishing the purposes for which it was founded. + +[776] By 1660, the Misericordia had received in contributions the +sum of 356,363 pesos. In 1619, the treasury at Manila had become so +exhausted by the expenses involved in resisting the Dutch that Governor +Fajardo borrowed from the society the sum of 39,599 pesos. Later +Governor Corcuera exacted a loan of 104,609 pesos. In all, up to 1670, +an aggregate of 441,909 pesos had been borrowed from this wealthy +society for the current expenses of the government. In 1762-3 the +Misericordia contributed the sum of 195,588 pesos as tribute money +to the British and was, according to its own accounts, despoiled of +301,597 pesos, making a total of 506,184 pesos, and leaving a balance +of 193,246 pesos (Procurador de la Misericordia de Manila al Rey, +23 de Julio, 1764, A. I., 106-5-8). + +The capital of the Misericordia of Manila on January 31, 1755, +was estimated at 701,477 pesos (Informe del Contador de Cuentas, +31 de Enero, 1755, A. I., 106-5-8). In the occupation of Manila by +the British and in the loss and despoliation of property suffered +thereby, the Misericordia received a blow from which it never entirely +recovered. By July 20, 1804, the capital of the society had dwindled +to 151,625 pesos (Aguilar to the King, July 20, 1804, A. I., 107-5-29). + +[777] Cédula of November 8, 1747, with testimonios of previous +correspondence, A. I., 106-5-8. + +[778] Informe del Contador de Cuentas del Consejo de Indias, 31 de +Enero de 1755, A. I., 106-5-8. + +[779] Cédula of April 19, 1755, A. I., 106-5-8. + +[780] Arandía to the King, July 24, 1757, A. I., 106-5-8. + +[781] Cédula of February 21, 1759, A. I., 106-5-8. + +[782] King to the Audiencia, April 25, 1778, A. I., 105-2-9. + +[783] Cédula of August 2, 1787, A. I., 105-2-10. + +[784] Aguilar to the King, July 20, 1804, A. I., 107-5-29. + +[785] The capital of the society was at that time estimated at +151,625 pesos. + +[786] King to the Audiencia and Consulado, June 7, 1775, A. I., +105-2-9. + +[787] The term espolio was applied to the properties which archbishops +and bishops left at the time of their death, such property having +accumulated when they were in office. All possessions of deceased +prelates reverted to the crown in accordance with the cédula of March +25, 1620. The rents from vacant benefices accumulated from the time +of the death of a prelate to the appointment of another to succeed +him (Escriche, Diccionario, I, 735; Bancroft, History of Mexico, +III, 699). The money derived from espolios and vacant benefices was +aggregated to the royal treasury for such subsequent distribution as +appeared necessary for the relief of cathedrals, parishes, colleges, +asylums, and charitable institutions. + +[788] Recopilación, 1-7-38, 39. + +[789] Ibid., 37, 40. + +[790] Cédula of June 24, 1712, A. I., 68-4-17; Recopilación, 1-7, +note 8. + +[791] Auto de Espolio of Bishop Gorospe, May 28, 1715, A. I., 68-4-18. + +[792] In the colonial bishoprics the temporary successor of a deceased +prelate was usually designated by the local diocesan chapter. If, +as was the case in the Philippines, the latter body were lacking, the +archbishop, by virtue of his position, became temporary ecclesiastical +governor, with jurisdiction over the revenues of the diocese. The +benefice was considered vacant until the appointment of a regular +bishop. + +[793] A fairly typical example of an espolio was that of Bishop Arévalo +of Nueva Cáceres, rendered by the audiencia on July 19, 1759. The total +sum left by that prelate was 19,000 pesos. The leading items of the +espolio were: costs, 1919 pesos; bequest to College of Santo Tomás, +2000 pesos; bequest to the cathedral of Nueva Cáceres, 400 pesos; +bequest to the brother of the deceased, the Marquis of Monte Castro, +1000 pesos. The remaining portion was paid to creditors in sums +varying from 20 to 300 pesos, leaving something over 6000 pesos for +the crown (Auto de Espolio, 20 de Julio, 1759, Audiencia de Manila, +A. I., 106-4-16). + +On June 14, 1774, the audiencia reviewed the autos of espolio of +the Bishop of Cebú, the total of which aggregated 11,210 pesos. The +papers were duly forwarded to the Contaduría General, at Madrid, +and were approved by that tribunal on June 20, 1778 (A. I., 105-2-9). + +Owing to the anarchical conditions prevailing at the time of the +death of Archbishop Rojo, his espolio had to be postponed until June +26, 1777, and the royal treasury received 3078 pesos therefrom. The +prelate left a valuable library to the College of San Ildefonso in +the city of Mexico, and 13,617 pesos in money to be distributed among +his personal creditors and heirs (Consultas del Consejo, 20 de Marzo, +1778, A. I., 108-7-1 and 2; 105-3-2). + +The large sum of 12,000 pesos was netted to the royal treasury +by the espolio of Bishop Espeleta of Cebú on May 6, 1783 (A. I., +105-2-10). By way of contrast, the fact may be noted that the espolio +of Archbishop Santos y Rufina yielded 92 pesos. (Auto de Espolio del +Arzobispo Santos y Rufina, 20 de Octubre, 1792, A. I., 105-2-10.) + +[794] Real Ordenanza de Intendentes de Nueva España, Artículos 227, +228, 229. + +[795] Recopilación, 1-3-1; 1-4-25. + +[796] Ibid., 1-2-14. + +[797] Fajardo to the King, August 15, 1620, Blair and Robertson, +XIX, 163. + +[798] King to the Audiencia, June (?) 1604, A. I., 105-2-1. + +[799] King to the Audiencia, October 30, 1634, A. I., 105-2-1. + +[800] Recopilación, 1-3-1, 1-6-2. The expediente covering this case +is in A. I., 105-3-1. The cédula of April 6, 1778, and testimonios +are in A. I., 105-2-1. + +[801] See Cunningham, "Origin of the friar lands question in the +Philippines," in The American political science review, X (August, +1916) pp. 465-480. + +[802] Recopilación, 1-4-20. + +[803] Ibid., 1-2-20. + +[804] See Note 2 of the preceding chapter. + +[805] Recopilación, 2-16-138. + +[806] See Note by A. P. Cushing, in Blair and Robertson, V, +292. Escriche (Diccionario, I, 838-9) defines fuerza as "the wrong +which an ecclesiastical judge does to a party when he assumes +jurisdiction over a case which does not belong to him, or when +he fails to observe the rules prescribed by the laws and canons, +or when he unjustly denies appeal." Recurso de fuerza is defined as +the reclamation to a civil judge, made by a person believing himself +aggrieved by an ecclesiastical judge, imploring the protection of +the former in order that the fuerza or violence may be terminated +or undone. There are three ways mentioned by Alcubilla in which an +ecclesiastical judge may commit fuerza: 1. When he assumes jurisdiction +in a purely temporal case, which by its very nature is not rightfully +subject to his authority. 2. When, by trying a case whose jurisdiction +belongs to him, he fails to observe the method and form prescribed +by the laws and canons. 3. When he refuses to allow appeals which +should be rightfully allowed (Martínez Alcubilla, Diccionario, V, 807). + +[807] Recopilación, 2-15-148, 149. The interdict, as defined +by Escriche (Diccionario, I, 712), is a prohibition, mandate, +or censure, pronounced by an ecclesiastical authority by which is +prohibited the use of certain spiritual privileges which are common +to all. The effect of the interdict may be to prohibit Christian +burial, the administration of the sacraments or the celebration of +divine services. Exception may be made in rare cases of baptisms, +confirmation and confession for the dying. Even though the interdict +may be pronounced it does not prohibit the saying of mass in a +low voice behind closed doors and without the ringing of bells. A +priest who violates the interdict may be pronounced "irregular", +but a layman who does so may incur the penalty of excommunication +(see Catholic Encyclopedia, under "Interdict"). + +[808] This refers to the privilege extended by the church to offenders +against the laws of the realm, who were allowed to take refuge from +the civil authorities in a church or convent. This practice was +recognized by the government. By a bull of Clement XIV, the right of +extending asylum was limited to a few churches only, the number of +these depending on the population of the town or city. Those guilty +of certain specified crimes of the most heinous character were +denied the privilege of sanctuary. The act of sheltering oneself +under the protection of God was supposed to be spontaneous and not +premeditated. The privilege was often abused by individual churchmen +(Escriche, Diccionario, I, 353). + +[809] A clarifying description of the ecclesiastical jurisdiction +has been given by Escriche. He defines it as "the power of the +Church for the trial and adjudication of civil and criminal affairs +exercised either by its own right or by concession of princes." This +jurisdiction, says Escriche, is of two kinds, inherent (spiritual) +and privileged (temporal). After classifying the different cases which +fall naturally under each category, he describes the tribunals for +the interpretation of canon law. "The ecclesiastical jurisdiction," +he writes, "the inherent, as well as the privileged, is exercised, +in first instance, by the bishops and archbishops in their respective +dioceses, in the second, by the metropolitan with respect to the +suffragans, and in the third, by the papal delegate. The bishops +and archbishops do not exercise the jurisdiction by themselves +but by means of their provisores or vicarios. These latter may be +either generales or foráneos.... The term provisor or vicar-general +is used to designate him who exercises the ordinary ecclesiastical +jurisdiction in the entire territory of the diocese and resides in +the episcopal city situated therein; ... foráneos are the others +established as delegates in certain parts of the diocese in order to +facilitate the administration of justice; no appointments to these +offices may be made without the royal approbation. The authority +of the provisores and vicarios cease by death of the prelate from +whom they obtained the nomination, and is reassumed by the cabildo +or chapter, sede vacante, which selects persons to succeed them" +(Escriche, Diccionario, II, 453). + +Escriche further describes this hierarchy of ecclesiastical judges: +"The metropolitans, then, are the ordinary judges of first instance +with regard to the archbishoprics and at the same time they are +the judges of appeal from the suffragans, and, accordingly, they +are accustomed to appoint, aside from the provisores or vicarios, +ordinarios who discharge the functions of judges of first instance. As +the obispos exentos are not subject to a metropolitan, but directly +to the holy see, recourses of appeals from their decisions go to the +papal delegate." The cases of appeal from the metropolitans and other +ecclesiastical judges were heard in third and last instance by the +tribunal known as the rota of the papal delegate, which was composed +of the nuncio of the pope, and the ecclesiastical auditors appointed +by the crown. + +The ecclesiastical courts of the Philippines conformed generally, in +organization and limits of jurisdiction, to the scheme outlined in the +preceding paragraphs. The three bishops of Nueva Segovia, Camarines, +and Cebú had their courts in the chief towns of their respective +dioceses. They were assisted by the customary provisores. Appeals +were carried from them to the court of the metropolitan which was +located in Manila; this latter tribunal consisted of the archbishop, +the vicar-general, and a notary. Above this court was that of the +papal delegate who tried cases of appeal from the lower tribunal in +accordance with canon law. In conformity with a bull of Gregory XIII, +dated May 15, 1572, the authority of the papal delegate in appeal cases +was final; "he might overrule and even supersede the metropolitan, +as being the judge in final appeal." The Bishop of Camarines most +frequently acted as papal delegate (Blair and Robertson, XLII, 27, +Note 4). Aside from these courts there was that of the commissary of +the Inquisition whose jurisdiction will be subsequently noted. + +Each order, also, had its own judicial machinery for the settlement +of cases arising within it. The courts of the orders were presided +over by their provincials, generals and commissaries, and were +composed of those dignitaries and other magistrates selected in +accordance with their own rules. Special investigators or visitors +were also delegated to try cases arising within the orders, and to +make inspections, ascertaining the general character of the work of +the orders, the conduct of their dignitaries and the regularity of +their administration. + +[810] Moses, South America on the eve of emancipation, 126. + +[811] Carta de Fr. Francisco de Laudín ... al Consejo de Indias, +20 de Enero, 1668, A. I., 68-1-44. + +[812] Recopilación, 1-7-54; 2-15-150; 3-1-4; Escriche, Diccionario, +II, 453. + +[813] Recopilación, 1-10-1, 2. + +[814] Escriche, Diccionario, II, 453. + +[815] Recopilación, 1-10-4, 6, 7, 12; 1-7-12. + +[816] Ibid., 11. + +[817] Ibid., 2-15-153; 1-10-13; 3-1-3. + +[818] As an example of this we may refer to the work of the +Augustinians in bringing to the light of judicial scrutiny the abuses +of certain encomenderos against the Indians of Mindanao. This was in +1581, before the audiencia was established. The offending encomenderos +were brought to Manila and tried by Bishop Salazar, who temporarily +deprived them of their holdings and sentenced them to imprisonment and +fines (Governor to the King [day and month not given], A. I., 67-6-6). + +[819] The opposition of Salazar to what he termed the encroachment +of the civil jurisdiction was based on the assumption that the royal +patronage did not extend to tribes which lived in an uncivilized +and savage state. He contended that the pope had not conceded +this, consequently, as bishop, he had entire jurisdiction without +interference from the audiencia or governor over the Mohammedans +(as he termed all non-Christians) and the Chinese (A. I., 1-1-3/25). + +[820] Cabildo de Manila to the King, A. I, 68-1-35. + +[821] Fajardo to Felipe III, August 15, 1620, Blair and Robertson, +XIX, 155. The pendulum seems, however, to have swung in the other +direction at times. In 1604, the audiencia was charged with having +tried members of religious orders in absentia without giving them a +chance to summon witnesses or otherwise to defend themselves (King +to Audiencia, October 30, 1604, A. I., 105-2-1). That the audiencia +did not always have power to discipline the friars for infractions of +the royal laws in 1626, is attested by the case of an Augustinian who +led an assault on an alcalde mayor in Batangas, destroyed his house, +maltreated his person, and, in the presence of the natives, publicly +accomplished his disgrace. The king demanded from the audiencia a +statement of all the facts of the case so that he and the Council +might take proper steps for the punishment of the offending religious +and the protection of His Majesty's servants in the future (King to +Audiencia, May 21, 1623, A. I., 105-2-1). The audiencia conducted an +investigation and forwarded the papers relative to the case to the +court for final action. See Chapter X, note 35. + +[822] Blair and Robertson, XXVIII, 314-15; see XLI, 22-25, 134, 231-4, +239, 255. + +[823] Montero y Vidal, Historia general, 283-284. + +[824] Letter of Fray Miguel de Solano, May 7, 1753, A. I., 67-6-4. + +[825] Orellana to Carlos II, February 24, 1683, Blair and Robertson, +XXXVIII, 81-85. + +[826] Concepción, Historia general, IX, 107. There are records of +many suits of this character throughout the history of Juan de la +Concepción. The original documents relating thereto are to be found +in A. I., 105-3-1 to 10. See also A. I., 67-6-3, 67-6-9 to 11. + +[827] See note 3 of this chapter. + +[828] Martínez Alcubilla, Diccionario, V, 807. + +[829] Recopilación, 1-10-10; 2-15-136. + +[830] Alzar or quitar la fuerza was the act on the part of a royal +tribunal of abrogating, annulling, or reforming the effects of violence +committed by an ecclesiastical judge.--Escriche, Diccionario, I, 839. + +[831] Recopilación, 2-15-134, 135. + +[832] Ibid., 2-15-143. + +[833] Ibid., 144. + +[834] Ibid., 152 and 142. + +[835] Ibid., 2-2-4. + +[836] Escriche, Diccionario, I, 712. + +[837] Recopilación, 2-15-148: See expediente on affairs in the +Philippines, 1690, A. I., 67-6-3. + +[838] Ibid., 1-7-47. + +[839] Ibid., 2-15-149. + +[840] Ibid., 1-10-9. + +[841] Ibid., 10; 2-15-136. + +[842] This is discussed in the preceding chapter. + +[843] A. I., 1-1-3/25; Blair and Robertson, VIII, 275-281; X, 79, +245-275. + +[844] Ronquillo to the King, July 12, 1599, A. I., 67-6-6, cited in +the preceding chapter. + +[845] Cédula of November 13, 1626, A. I., 105-2-1; for cases of the +excommunication of viceroys and oidores and other matters relating +to the Inquisition in Perú and in New Spain see Lea, The inquisition +in the Spanish dependencies, 191-298, 319-451. + +[846] Corcuera to Felipe IV, September 25, 1623, Blair and Robertson, +XXVI, 104-107. + +[847] Martínez de Zúñiga, An historical view, I, 268. + +[848] Relation of 1635-1636, Blair and Robertson, XXVI, 39-40; +see also Corcuera to Felipe IV, Blair and Robertson, XXVI, 60-127; +Montero y Vidal, Historia general, I, 195-196. + +[849] Montero y Vidal, op. cit., I, 193-197. + +[850] The Inquisition, as represented by one commissary and +three alternates (who were usually bishops) was established in the +Philippines on March 1, 1583. The commissary of the Inquisition had +for his special field all questions of faith and heresy, clearing +away the errors and superstitions against the dogma and the lax +opinions which pervert Christian morals (Pérez y López, Teatro, +XXVIII, 208). The Inquisitor of the Philippines was instructed, +on his arrival, to present his papers "to the ecclesiastical and +lay chapters in order that they might receive him and recognize +him in so high and holy an office." The Inquisition was represented +continuously in the Philippines until 1813. With the introduction +of this dignitary may be noted the presence in the Philippines of +at least five authorities with ecclesiastical jurisdiction. The +ordinary ecclesiastical tribunals dealt with contentions within +the Church. The papal delegate tried cases which had been appealed +from these ecclesiastical courts. The regular orders had their own +particular tribunals for the rule and discipline of their members +and the audiencia exercised such ecclesiastical jurisdiction as we +have noted in this chapter. There may be slight wonder, therefore, +in view of the presence of so many ecclesiastical tribunals with +similar powers, that there were frequent conflicts of authority. + +[851] Recopilación, 1-19-1. + +[852] Law of May 22, 1610, Recopilación, 1-19-2. + +[853] The authorized proceeding in such a case was to appeal to +the General Council of the Inquisition, which held its sessions at +the court. This tribunal was authorized to nullify or reverse any +harmful act or decision which the ordinary inquisitors might resolve +upon. (Cédula of March 10, 1553, Recopilación, 1-19-4). + +[854] Recopilación, 1-19-18, 19. + +[855] Ibid., 16. + +[856] Ibid., 21 and 22. + +[857] Ibid., 3-15-78. + +[858] "When a case may be tried indistinctly either by an +ecclesiastical or lay judge it is said that the case is of the +fuero mixto and then either of the two judges may take up the case, +but the judge who begins it must be the last to try it" (Escriche, +Diccionario, I, 832-833). + +[859] See note to Recopilación, 1-19-4. + +[860] Le Gentil, II, 172. Recopilación, 6-1-35. + +[861] Audiencia to the King, July 20, 1585, A. I., 67-6-18. On +June 26, 1586, the audiencia recommended the discontinuance of +the Inquisition in the Philippines on the ground that it had +been utilized "as a citadel for the shelter of those desirous +of resisting the royal authority" (Audiencia to the King, A. I., +68-1-33). Archbishop Santibañez, on the other hand, was desirous of +converting the inquisitorial authority into a tribunal to consist +of two ecclesiastics and one oidor. He argued that the distance from +Mexico made procedure cumbersome, and it was manifestly unjust that +residents of the Philippines should be judged by a foreign court +(referring to the tribunal in Mexico.--Santibañez to Philip II, +June 24, 1598, Blair and Robertson, X, 151). These same sentiments +were expressed sixty years later by Francisco Bello, procurator at +Madrid for the religious orders. The Council of the Indies returned +the petition which had been submitted by this last-named ecclesiastic, +to the Viceroy of New Spain, and to the Audiencia and Archbishop of +Manila, respectively, for their advice. The consensus of opinion +was against the idea of creating a tribunal in Manila, partially +on account of the expense. It was also shown that such a reform +would have meant a loss of power to the viceroyalty of New Spain, +and by the adoption of such a suggestion there would be created a +powerful tribunal which would seriously inconvenience the authority +and supremacy of the audiencia and the archbishop at Manila (Consulta +of the Council of the Indies, March 15, 1659, A. I., 67-6-22). + +[862] Cited already in various connections, particularly in Chapters +II and X of this treatise. + +[863] In the Philippines, archbishops were frequently able to combine +the functions and offices of metropolitan prelate and commissary of +the Inquisition. This gave greater pre-eminence to the archbishop and +made the situation more difficult for the civil authorities. We have +already noted an illustration of this in the case of Archbishop Pardo +(1683-1689). Being also commissary of the Inquisition, he refused to +grant absolution to ex-Governor Vargas, claiming that his authority +as sole inquisitor was not sufficient to justify such action on his +part without first receiving advice from the tribunal in Mexico. + +[864] Lea, in his well-known work on The inquisition in the Spanish +dependencies says that "while this branch of the Inquisition (referring +to that in the Philippines) accomplished so little for the faith, +it was eminently successful in the function of contributing to +the disorder and confusion which so disastrously affected Spanish +colonial administration" (p. 308). For a more detailed account of +this episode see Cunningham, "The inquisition in the Philippines: +the Salcedo affair," in The Catholic historical review, III, 417-445. + +[865] The leading church historians of the Philippines--Martínez de +Zúñiga, Salazar, Fonseca and Concepción--were naturally unfavorable +to Salcedo in their accounts of the events of his administration. All +agree, however, that Salcedo was a man of energy and precision, who, at +the beginning of his rule, gave promise of universal satisfaction. The +correspondence of the civil officials who were contemporaneous with +the governor, and the letters of Salcedo himself show that his chief +concern was the enforcement of the laws and the elimination of the +ecclesiastical and commercial graft with which the administration of +the government of the Philippines was permeated on his arrival in +the Islands (Letters of Coloma, Bónifaz, Montemayor, León, and the +Municipal Cabildo, 1670-1, A. I., 67-6-3; see also note to Ventura +del Arco Mss., in Blair and Robertson, XXXVII, 262). + +Zúñiga, however, states that Salcedo's commercial reforms were +only intended for the benefit of himself and his friends, and that +he reserved the chief articles of trade for himself, leaving only +second-rate and spoiled goods for the merchants. This same historian +states that the governor arranged for the early departure of the +galleon on one occasion, with his goods on board, leaving those +of the majority of the merchants unshipped (Martínez de Zúñiga, +An historical view, I, 307-308). Fonseca charges him with avarice, +maintaining that all classes of society in Manila were disgusted +with the governor's commercial transactions and were shocked at his +exile of the archbishop. This historian relates that "the magistracy, +the army, the merchants, arts and industries, ... all raised their +voices against the badly directed government of Salcedo, determining +to over-turn him; representative citizens of Manila petitioned the +audiencia, asking that it deprive him of the government, ... and the +royal acuerdo determined to do so, but at the last moment the judges +disagreed over the question of whose signature should precede the +others; this question remained in litigation, and blocked the action +of the royal acuerdo" (Fonseca, Historia de la provincia de santissimo +Rosario. Libro V, Capítulo VIII, quoted in Sobre una reseña histórica, +92). Concepción, the Augustinian historian, confirms the above, and +gives a more clarifying reason for the failure of the audiencia to +oust the governor--namely, that the latter was sharing his commercial +profits with the magistrates, thereby purchasing their favors; the +oidores were therefore reluctant to take action against the governor +(Concepción, Historia general, VII, 137-138, 162-200). + +[866] Salcedo was charged with plotting to sell the Islands to the +Dutch and with surrounding himself with Flemings, one of whom was a +Calvinist. It was alleged that he had already sent large sums of money +to Macao, including a large part of the funds in the Manila treasury, +and that he was preparing to depart in person. It was said moreover +that he intended to return in command of a Dutch squadron and capture +the colony for Holland. It is evident that there was no lack of charges +against Salcedo (The original correspondence and consultas of the +various tribunals which considered the charges against Salcedo may +be noted in A. I., 67-6-3. See Blair and Robertson, XXXVII, 37-60, +Lea, The inquisition in the Spanish dependencies, 299-318, and the +ecclesiastical authorities mentioned in the preceding note). + +Dr. Pardo de Tavera, in his account of the arrest of Governor Salcedo, +says that "in 1668, Governor Salcedo had some difference with (the +friars) ... and the archbishop and as a result, the latter decided to +avenge themselves, plotting with the military officials, regidores and +merchants to bring him before the Inquisition. They made a conspiracy +and, one night while the governor slept, the conspirators, among +whom were the provincial of the Franciscans, the guardián of the +convent of that order in Manila, and various other ecclesiastics, +entered his room, surprising him while he slept, and placed him in +irons. He was thus taken to the convent of the Franciscans, but +considering the latter insecure, they carried him to that of San +Augustín, loading him with a heavy chain" (Pardo de Tavera, Reseña +Histórica, 37). After a period of imprisonment in Manila, Salcedo +was ordered to Mexico for trial by the tribunal of the Inquisition, +as the local authority was without authority to take further action +in the matter. Salcedo never reached his destination, however, +as he died at sea. This was subsequently the fate of Paternina, +the inquisitor who was responsible for his disgrace. + +[867] That Governor León had a trying position to fill may be +believed by his description of affairs as he found them in Manila, +and of his struggles to restore the royal authority to its proper +status. He gave a full account of "the excessive presumption of the +commissary of the Inquisition in the arrest of Don Diego Salcedo, +my (his) predecessor, and his interference in matters wherein he had +no real jurisdiction." León reported having prevailed upon the royal +audiencia to order the commissary to refrain from meddling in affairs +which did not concern the Inquisition. The ways of the Inquisition he +described as "dark and secret;" it was "a danger and a fearful power," +a "monster, feared by all," working, not in the light of day, but +insidiously, constituting a sinister power whose strength was not +fully realized (León to Council, June 10, 1671, and July 4, 1672; +Consulta of the Council of the Indies, July 16, 1674, A. I., 67-6-3). + +[868] Audiencia to the King, June 15, 1671, A. I., 67-6-10. + +[869] Consulta of the Council, August 12, 1672, A. I., 67-6-10. + +[870] Montero y Vidal, I, 356. + +[871] Acuerdo of August 24, 1672, A. I., 67-6-10. + +[872] While the Salcedo affair accurately depicts the power which the +Inquisition assumed on a particular occasion, the episode cannot be +said to illustrate its power and influence throughout the history of +the Islands. Indeed, never on any former or subsequent occasion did the +Inquisition constitute such a menace to the state. It was generally +prevented from exercising too much power in the Philippines by its +own isolation. Represented by a single agent, who was not always on +good terms with the other ecclesiastical authorities there, and who +was thousands of miles from his immediate superior, the tribunal of +Mexico, he was confronted and opposed by the combined civil, secular +and monastic powers. Owing to these circumstances, the commissary +of the Inquisition in the Philippines could not, single-handed and +unaided, constitute a long-continued danger to the commonwealth. + +[873] Reales resoluciones no recopiladas, Pérez y López, Teatro, +XXVIII, 207. + +[874] Recopilación, 1-19, note 2. + +[875] Ibid., note 1. This tendency culminated in the decree of February +22, 1813, which suppressed the Supreme Tribunal of the Inquisition and +renewed the jurisdiction of bishops and vicars over cases involving +the faith, as had been the practice before the Inquisition was +instituted. All property belonging to the Inquisition reverted to the +crown. Soon after the restoration of Ferdinand VII the Inquisition +was revived, against the will of that monarch, it is said, but it +was again abolished by the decrees of March 9, 1820, and July 1, 1835. + +As a result of the suppression of the Tribunal of the Inquisition +on March 9, 1820, and the transfer of its authority over matters of +faith to the vicars and bishops, Escriche says that "in the exercise +of their jurisdiction some of these prelates exceeded their authority +and established in their respective dioceses juntas de fé, which turned +out to be in reality inquisitorial tribunals with practically the same +authority which former tribunals had exercised. They inflicted corporal +and spiritual punishments and guarded in their ministry the most +inviolable secrecy." As soon as reports of this unexpected assumption +of authority came to the notice of the government, Ferdinand hastened +to order the suppression of these self-constituted tribunals, without +immediate success, however. Escriche tells us that they continued +their excesses for some time, "depriving accused persons of the +means of defense, keeping from them the names of persons testifying +against them," flagrantly disregarding the dispositions of the brief +of Pius VII, dated October 5, 1829, in prohibition of exactly these +abuses. On February 6, 1830, a cédula was expedited which authorized +appeals in cases of this nature until three conforming decisions were +rendered. The decree of July 1, 1835, abolished these tribunals, +ordering the prelates to exercise jurisdiction with appeal to the +Department of Grace and Justice (Escriche, Diccionario, I, 773). + +[876] The author has treated this subject in a separate monograph +entitled "The origin of the friar lands question in the Philippines," +in The American political science review, X, 463-480. + +[877] The friar lands litigation began in 1687 and continued +until 1751. The efforts of the government met with considerable +opposition. The oidores who were charged with the inspection of the +titles to these lands frequently abandoned their commissions and +recommended that the friars be left alone. However, in the year last +mentioned, the opposition of the Franciscans, the last of the resisting +orders, was overcome (Correspondence regarding friar lands exists in +A. I., 68-4-12 and 68-6-26). See also the Camacho Controversy, Blair +and Robertson, XLII, 25-116; Montero y Vidal, Historia general, I, +385, et seq.; Concepción, Historia general, VIII, 192-206; Philippine +Census, I, 342-343; Sobre una reseña histórica by the Dominicans of +Manila, 65-89. + +[878] "In America [and in the Philippines] the monks were given +a somewhat unusual position. According to the canon law they were +not able to hold beneficed curacies, but the extent of the American +field, and the limited number of the clergy available to occupy it, +induced Leo X, Adrian VI, Paul III, Clement VIII, and Pius V to permit +them to become parish priests. Under this order a very large number +of these parishes in America in the first century were occupied by +friars. But in the middle of the eighteenth century, this privilege +was withdrawn, leaving them only two friars in a conventual province" +(Moses, South America on the eve of emancipation, 138-139). + +[879] See Cunningham, "The question of ecclesiastical visitation in +the Philippines," in The Pacific Ocean in history, 223-237. + +[880] Recopilación, 1-15-28. + +[881] Ibid., 29. + +[882] Ibid., 31. + +[883] Valuable materials, for the most part original, on the visitation +controversy may be found in Blair and Robertson, XXIV, 247; XXIX, +191; XLII, 25-116; XX, 87; XXI, 32-78; XXXVII, 193-200. See also +A. I., 69-1-29, 68-4-16, 106-4-21, 105-2-9, 106-4-31. Montero y +Vidal (Historia general, I, 86-87, 295, 398; II, 134-138, 257 et +seq.) presents a good secondary account of the subject. + +[884] This legajo list was obtained from the index of the collection +of manuscripts in the section known as Audiencia de Filipinas, of the +Archive of the Indies in Seville. The aim is only to present legajos +which contain material on the audiencia. A more complete list covering +all the Philippine material in this depository may be found in Blair +and Robertson, LIII. + +[885] The above system of reference to documents in the Archive of +the Indies is used universally, and it has been employed consistently +in this treatise. The manuscripts are wrapped and tied in bundles +(legajos), which, in turn, are to be found in large cases (estantes), +and the shelves (cajones) of the cases are numbered. The meaning +of the above reference therefore is Estante 68, Cajón 6, Legajo 3, +indicating that legajo number 3 is to be found on Shelf 6 of Case 68 +of the Archive. A legajo contains in the neighborhood of 2,000 pages +of hand-written manuscript. The documents may be originals, certified +copies or ordinary drafts or duplicates. They are supposed to be +grouped according to subject-matter, and usually the materials in a +given cajón deal with a phase of the same question. Legajos in a given +cajón and manuscripts in a given legajo, roughly speaking, are arranged +chronologically, though in many cases they have lost their original +order owing to careless handling. This description is sufficient +to identify any document to which this classification is applied, +as these numbers are not duplicated, though often the documents are, +and copies of the same manuscript may be found in different cajones. + + + + + + +End of the Project Gutenberg EBook of The Audiencia in the Spanish Colonies, by +Charles Henry Cunningham + +*** END OF THE PROJECT GUTENBERG EBOOK 41443 *** |