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Title: The Audiencia in the Spanish Colonies - As illustrated by the Audiencia of Manila (1583-1800)
Author: Cunningham, Charles Henry
Language: English
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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. Nevertheless, in the cases noted, namely, in settling
disputes between orders, between the secular church and the orders,
between either of these and the civil government, in entertaining
recursos de fuerza, in restraining the interdict, and the abuses of the
Inquisition, the audiencia acted by judicial process as a tribunal of
justice, and not in the capacity of an administrative committee or an
executive agent, as in the cases which have been heretofore described.
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History of the conquest of Mexico. Philadelphia, 1890.
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Provisiones, cédulas, instrucciónes de su magestad de esta
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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.
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