^^^•.•' H>i«>7+>')'<.>>>;v'v>^j,r.-^."Vr-*>'I LIBRARY ANNEX 2 mm ■■ ^''O'^^yi^^y'y^M^^i'i ^atnell Uniaerattg Cibratg 3ef . G-. l3u r r . :' Cornell University Library JV 4066.ASC97 The audiencia in the Spanish cojo"'®,® f * 3 1924 006 115 327 ^ Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924006115327 UNIVERSITY OF CALIFORNIA PUBLICATIONS IN HISTORY H. MORSE STEPHENS HERBERT E. BOLTON EDITORS VOLUME IX 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 audieneia, which was the central institution in the colonies. It was, however, the circumstance of ray being situated in Manila for some years and thus having at my disposal the original documents bearing upon the history of the audieneia which was situated there that led me to study this particular tribunal. At first sight it may appear that some- thing of direct applicability to Spanish-American conditions, which would have been gained by the study of the Audieneia of Mexico, or Guadalajara, or Lima, has thus been lost. Neverthe- less, if it is borne in mind that the audieneia system was common to all the Spanish colonies, and that the laws by which it was constituted and regulated applied to the different political divi- sions of America as to the Philippines, the assumption will not seem wholly unjustified that the Audieneia of Manila may be taken as a typical legal and political institution. A large part of the time expended in collecting the material? upon which this book is based was spent in the. various deposi- tories 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 con- tributed 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 assist- ance so kindly rendered by Don Manuel Artigas, chief of the Division of Filipiniana, and by Don Manuel Yriarte of the Philippine Archive. Preface In addition to research in the Philippines Library, the Philip- pine Archive, and the Audiencia Records in Manila approxi- mately 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 Gomez 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 import- ance 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 pre- sentation 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 Pro- fessor 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 Preface 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. vU CONTENTS PAGES Pkepace v-vii Introduction 1-7 CHAPTER I The Audiencias of the Spanish Colonies 8-31 CHAPTER II The Establishment of the Atjdiencia 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 JumisDic- tion - 226-258 CHAPTER VIII The At'diencia and the Go\'Krnor: 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 Audienclv and the Church: The Ecclesiastical Juris- diction 410-444 BiBLlOGR.iPHr - 445-462 Index 463-479 IX INTRODUCTION The audiencia was primarily a judicial tribunal. It has been considered almost entirely as such by these modern his- torical writers who have referred to it in passing. Its legislative, administrative, executive, and ecclesiastical functions have re- ceived 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 thu.« 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 2 Introduction function and detail with those of the other colonies of Spain. It is no doubt true that local conditions brought about pro- nounced 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 audi- encia 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 Peru, 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 cen- tralization there. The audiencias of the colonies were alike depen- dent 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 ap- pealed to the latter from the several audiencias were treated in the same manner and considered as having equal rank and im- portance. The general powers and attributes of these audiencias were prescribed in the same code, the Becopilacion, and gen- eral laws and cedulas 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 particiilarly by the history of that of the Philippines. A study of the audiencia of any colony is concerned with all Introduction 3 of the problems that came up in its life — ^with legal, polit- ical, 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, re- moved from any but the most remote. influence of the home gov- ernment, 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 condi- tions 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 repre- sented, and through the latter one of the chief aims of Spain's colonial system was effected, namely, the conversion of infldels and the subsequent care of their souls, The church added to its own power in various ways. No study of Spanish colonial insti- tutions 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 4 Introduction 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 signifi- cance, 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 ofScials were so powerful and their duties so multitudinous, they came into con- tact 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 gov- ernor 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 Introduction 5 with jurisdiction in ecclesiastical affairs similar to that which it had as an ordinary tribunal of justice. The above is an out- line 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 de- partments. The viceroy, as president of the audiencia, had cog- nizance of certain judicial matters, and more or less participa- tion 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 oid&r, 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 states- manlike character were produced. We shall see, moreover, that they were far from meriting the disapprobation that is fre- quently heaped upon so-called Spanish governmental incapacity. The defects which appear so conspicuous in Spanish admin- istration 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. AU acts, estimates, budgets, and plans had to be drafted and written out, duplicates and triplicates of 6 Introduction each report had to be made, advice had to be taken, and opin- ions 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, there- fore, been illustrated wherever possible with one or more con- crete cases, taken from actual practice. . Many of these illustra- tions 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, cedulas, royal orders, ordinances, correspondence, and Introduction 7 lastly, but most important, records of cases and actual happen- ings 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 thieir institutions yet remains to be written. CHAPTER I THE AUDIENCIAS OP THE SPANISH COLONIES The Spanish system of colonial administration was an adap- tation beyond the seas of fundamental administrative, judicial and ecclesiastical institutions and principles which had grown up and had pro.ved 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 cen- tralization 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 con- fronted 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 ad- ministrative system.^ 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 Monarehs at Santa F6 on April 30, 1492, Columbus was given the title of "Admiral, Viceroy, and Governor of the Un- 1 Vander Linden, In his L'expcunsion oolonvale de VEspagne (p. 360), states that the Philippine audiencia exercised fewer governmental func- tions than did the audiencias of New Spain and Perfl. 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 Perti. It is the Early Colonial Government 9 discovered Lands and Seas of the Indies."^ 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 alcaides and algiiaciles 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 tre- mendous 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 Ponseca, 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 govern- conviction of the writer that the distance and isolation of the Philip- pines, 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 Audi- encia of Mexico. 2"TItulo expedido por los Reyes Cat61icos, 30 de Abril, 1492," in Navarrete, CoSeccitin de viages, II, 9-11; also see Vander Linden, op. dt., 277-283; 338. 10 The Audiencias of the Spanish Colonies ment 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 Espanola 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 ordi- narios^ 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 Leon are governed and ruled, to the extent that the diversity and difference of the lands and nations permit.* In 1511, a tribunal of independent royal judges was con- stituted in the colony of Espanola to try cases appealed from 3 See Altamira, Historia de la civilizacidn espanola, II, 477-480; Bancroft, Histwy of Central Aynerioa, I, 247-288; Helps, Spanish con- quest, (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 inayor or an alcalde de partido might try cases on appeal from these. Generally speaking, alcaldes ordAnarios were town judges, in contrast to alcaldes mayores who had provincial jurisdiction as well. Alcaldes ordinarios and regidores were members of the town ayuntainientos or oaMldos (municipal councils). Regidores did not exercise judicial functions. i Recopilacidn de leyes de los reinos de las ImUas (hereinafter to be referred to as the Becopilacidn) , lib. 2, tit. 2, ley 13. For an account of the Recopilacidn, see footnote 40, below. Predecessor of the Audiencia 11 the town magistrates and the governor.' 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 audieneias. 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.^ 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.'' 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 Colon, son of the dis- coverer, was named governor of Espanola, and of the other islands and of the mainland discovered by his father. This 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 execu- tive, subject to the governor, or adelantado, and in the absence of the latter assumed the government of the colony. Alcaldes in new settle- ments or on expeditions were different in character and exercised func- tions distinct from those of the aZoaWes of the later periods. This earlier type probably existed in Espanola under Columbus (see Ban- croft, 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 CortSs were merely entrusted with judicial powers . . . later those of San Luis PotosI and other places acted also as lieutenants for captains-general, and exercised, in other respects, the duties and ceremonies of gover- nors" (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. 12 The Audiencias of the Spanish Colonies latter act of royal intervention did not confirm, but rather abrogated in practice, the claims of this same Colon 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." The further growth and development of the West Indian colonies, and especially the increasing Spanish population, called for th6 establishment of a more efficient tribunal of administration and justice. This need was met in the creation of the first audieneia in America, that of Santo Domingo, which was established Sep- tember 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 Leon, 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 audieneia 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 pos- sessions, but as integral parts of Castile, being the property of the monarchs of that kingdom, and under their personal direc- tion. Before proceeding with a description of the growth of the audieneia 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 audieneia in the colonies. The first, chronologically, as well as in importance, was the Casa de 8 Altamira, Historia, II, 479. The Casa de Contratacion 13 Contratacion, which was created January 10, 1503." This essen- tially commercial body was intended at first to supervise the im- port 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 am- plified to the extent that it was given jurisdiction over emigra- tion 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 determina- tion of legal affairs. As established in 1503, the Casa de Contratacion consisted of a treasurer, auditor (comptroller), and factor-^" That the insti- tution 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 audi- encia was created within the Casa. This was composed of three jueces letrados and a fiscal, besides the numerous subordinate of- ficials who usually accompanied the judicial tribunal.^^ Thougl^ at first it exercised some of the functions which belonged later to the Council of the Indies, it came subsequently to be subordi- nate to that body.^^ It was transferred to Cadiz in 1717, and was suppressed by the royal decree of June 18, 1790,^^ its re- maining attributions being assumed by the ConstUado of Seville." 9 Bourne, Spain in Amerioa, 222; Vander Linden, L'expanskm coloniale de I' E spagne, SZ9; see note in Bancroft, History o/ Central Amerioa, I, 280-283. 10 Bourne, Spain in America, 222; Moses, The Spanish depende'ricies in South America, I, 250-1; see Col. Doc. Ined., XXXI, 139-155. ^1^ Recopilacidn, 9-1-2, 5. ^■i IMd., 2-2-82, auto 36; Desdevises du Dezert, Espagne de Vwnden regime. Les institutions, 100-101; see Veltla Linaje, Norte de la con- tratacidn de las Indias Occidentales, passim. 13 Zamora y Coronado, BihXioteoa de legislaoidn ultramarima. 1, 450- 451; II, 374 et seq.; also Reoopilacidn, 9-1-1, note 1; Vander Linden, op. cit., 344. "Desdevises du Dezert, op. cit., 100. 14 The Audiencias of the Spanish Colonies 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 Contratacion, when another need than the purely commer- cial, for which the Casa de Contratacion had served, began to be felt.^° The inadequacy of the system devised by the Catholic Monarchs at Santa Fe had already become evident. The prob- lems 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 cart 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 machin- ery 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 Con- tratacion. 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 promul- gated, active supervision of colonial affairs was maintained by the Council of Castile, both the Casa de Contratacion 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 isEscriche, Blocionario, I, 578; see Desdevises du Dezert, Les insti- tutions, 95-102; Robertson, History of America, IV (Book VIII), 21. The Council of the hidies 15 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 adminis- tration of justice, it may order and make with our advice, the laws, pragmatics, ordinances and provisions, general and particlular, . . . 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.is 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.^' 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.^* 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 audJencias came for final ad- judication. It was, however, not only a court of appeal in judi- 1^ Beoopilaci&n, 2-2-2. 17 By the royal decree of March 24, 1834, the Consejo *e Castillo, and the Consejo de Indias were amalgamated. In place of these was created the Trihwnal Supremo de Espana S Indias, with judicial functions an,d a Consejo Real de Espana e Indias for governmental and administrative affairs. On September 28, 1836, the Consejo Real de Espana 6 Indias was suppressed. On July 6, 1845, the Cmisejo de Estado assumed charge of affairs pertaining to the Indies, with a separate Ministerio de Ultra- mar. This reform was re-enacted on September 24, 1853 (Martinez Alcubilla, Diccionario, III, 313-315; Bscriche, 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 Soldrzano y Pereyra, magistrate of the Audiencia of Perfl, JosS de G&l- vez, visitor of New Spain, Governor Simon de Anda y Salazar, and the able fiscal, Francisco Leandro de Viana, of the Philippines. These men rendered very distinguished service in the colonies. 16 The Audiencias of the Spanish Colonies cial matters, but also a directive ministry for the supervision of the administrative acts of the colonial audiencias and ex- ecutives. 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.^' Santo Domingo, created September 14, 1526, consisting of a presi- dent, four oidores,^o and a fiscal. Mbxico,2i created November 29, 1527, consisting of two chambers or salas, a criminal and a civil, a president, eight oidK/res, four alcaldes del crimen, and two fisoales for civil and criminal cases respectively. Panama, created February 30, 1535, with a president, four oidores and a fiscal. Lima, created November 20, 1542, with two chambers, a civil and ^» Recopiladdn, 2-15-2 to 14; see Danvila y CoUado, Reinado de Carlos III, III, 151-157. No attempt is made here to indicate all sub- sequent changes. 20 Oidor, a m-mistro togado who heard and sentenced civil suits in an audiencia (Escriche, Biccioimrio, 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 "audi- tor", which in English means a reviewer of accounts (Spanish, con- twUrr). The Spanish term avMtor has a special meaning, referring to a particular kind of magistrate, as audntor de guerra, auditor de marina or av/iitor de rota (Escriche, Diccumario, 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 criinen. The latter existed only in the larger audiencias of Mexico and Perfl, or in Manila, Havana or Puerto Rico in the later nineteenth century. Alcaldes del crimen in the sixteenth, seventeenth and eighteenth cen- turies 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 plated in the same class. (Escriche, Diccionarrio, I, 154; I, 363-369; II, 661; Bancroft, History of Central America, I, 297; see also Pgrez y l«pez, Teatro de la legistacidn, XXI, 351-369; IV, 525-528; Martinez Alcubilla, Diccumario, I, 525- 526.) 21 The original c6dulas refer to this audiencia as La Audiencia Real de la Nueva Espana — see Puga, Provisuynes, cddulas, f. 7. The Audiencias of the Spanish Colonies 17 a criminal, a president, eight oidcres, four criminal alcaldes, and two fisoales, as in Mexico. Santiago de Guatemala, created September 13, 1543, with a presi- dent, five oitUyres, and a fiscal. Guadalajara, created February 15, 1548, with a president, four oidores, and a fiscal. Santa Ft (New Granada), created July 17, 1549, with & 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 presi- dent, four oidores, and a fiscal. Manila, created May 5,' 1583, with a president, four oidiores, 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. HAVA^'A, created September 26, 1835, reorganized June 16, 1838, to consist of a regent, four oidores, and two fi^cales.^^ Puerto PRfNciPE, transferred in 1797 from Santo Domingo, re- organized 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 Principe on February 22, 1878. CEBtJ (Philippines), created February 26, 1886, to consist of a presi- dent, four magistrates, a fiscal, and an assistant fiscal. ViG-iN (Philippines) created on May 19, 1893, to consist of one 22Zamora y C>)ronado, BiMioteca, I, 452; I, 483-486; Martinez Alcubilla, Diccionario, VIII, under "Justicia". See also Danvila y CoUado, Reinado de Carlos III, VI, 157-158. 18 The Audiencias of the Spanish Colonies chief justice, two associates, a prosecuting attorney, and an assistant prosecutor. It will be noted that the audiencias of Mexico and Lima con- tained the greatest number of magistrates. They were divided into' two solas, a civil and a criminal, with appropriate judges and fiscales for each.^^ 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 Jn peace and justice, and their districts have been divided into govern- ments, corregimientos and alcaldlas 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.2* 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 (Panama), and that of Mexico over what was later Guadalajara, the Philippines, and Yucatan. All of these, except the latter, came to have audiencias, with the usual powers and authority.^' The first seven audiencias were founded by Charles V. Three 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 otheT.—Coleccvin legislativa de Espana, CXXII, 1093-1100. 24 Reoopilacidn, 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 The Extension of Colonial Audiencias 19 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 chan- ceries of Granada and Valladolid. ' '^® 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 re- spective 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 Espanola, Cuba, and Puerto Rico, with authority also over Vene- ?uela and subsequently over Louisiana and Florida.^' New Gra- Mstory of the United States in Spanish archives, 10-12; note also the articles recently published by Desdevises du Dezert in the Reviie his- torique (CXXV, 225-264; CXXVI, 14-60. 225-270) under the title of "Vice-rois et capitalnes gSn&raux des Indes espagnoles a la fin du XVIII siecle." 26 Recopilacidn, 2-15-17. 27j6i(i., 2-15-2. Although the Reoopilacidn and Danvila y CoUado (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 EspaOola (A. I., 139-1-6, torn. 9, fol. 225). There are various refer- ences antedating 1526 in this and the following legajo. 20 The Audiencias of the Spanish Colonies nada was conceded an audiencia in 1549, and to this province were added the possessions of Panama when the audiencia of that name were suppressed. The Audiencia of Mexico, created eight years before New Spain was made a viceroyalty, had terri- torial 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 Yucatan, and Tabasco.^* 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 Fe, 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; Arica, 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.^^ Chile and Panama were subordinate governmentally to the vice- roy of Peru, but the audiencias were independent.^" Cuba was early divided into two districts under the rule of captains-general, those of Havana and Santiago de Cuba.^^ By cedvia of February 24, 1784, Havana was made independ- ent of the Audiencia of Santo Domingo in administrative mat- ters. Aside from the one at Puerto Principe, audiencias were 28 Ibid., 2-15-3. For the exact limits of this audiencia see Puga, Pro- risiones, c^dvias, ft. 12-13; 47-48, and Hackett, "Delimitation of politi- cal jurisdictions in Spanish North America to 1535," in Hispanic Ameriecm Historical Review, I, 60, note 102. 2Bii)id., 2-15-13, 14, 15. soiud., 5-1-2, 3; 2-15-4, 12. 31 lUd., 5-1-16. Classification and Bank 21 not created in Cuba, however, until 1835 and 1838, respectively. Prior to this, Cuba was subject to the Audiencia of Puerto Principe, 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.^^ 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. 32 Zamora y Coronado, Biblioteoa, 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 com- piled from the Reglamento de 4 de Mayo, 1788 (P6rez y L6pez, Teatro, IV. 522-524). — C. -- -0, ^ „^, ^. 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 Ayres 1 2 5 6.000 36,726 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 Domingo 1 2 5 6,600 29.700 Santa F6 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 22 The Audiencias of the Spanish Colonies In the latter, the audiencias (and presidents) exercised gov- ernmental 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 dutifes 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 institu- tions, 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 Solorzano y Pereyra, a distinguished Spanish jurist, oidor of the Audiencia of Lima in 1610, and subsequently councillor of the Indies.^^ Solorzano 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 ac- count 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 33 Solorzano y Pereyra, Politica 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 Reoopilacidn. 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 ecclesi- astical 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 jimta de guerra, including a setting forth of the many royal c4duTas which have been despatched for the latter." Solorzano y Pereyra con- tributed largely to the codification of the laws of the Indies. Jurisdictioii of the Audiencias 23 been permitted many privileges and powers denied to the audi- encias 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 punish- ment of officials who were remiss in that particular; the collec- tion 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 reten- tion 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, limitiiig especially those exorbitant charges which priests were apt to demand at burials, funerals, marriages and baptisms. The colonial audiencias were given supervision over espolios,^^ collecting, administering and disposing of the prop- erties 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.^^ This authority had been permitted to the chanceries of Valladolid and Granada, only. Although viceroys and governors were granted special juris- diction over administrative matters, they were authorized to call upon the acuerdos^^ of the audiencias for counsel and advice whenever an exceptionally arduous case presented itself. The 3* See Chapter X of this book. 35 Recurso «te fuerm, 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. 24 The Audiencias of the Spanish Colonies audieneias were permitted to entertain appeals against the rul- ings 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 Solorzano 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^'' 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, Solorzano y Pereyra pointed out that while the sole duty of the Spanish oidores was to try cases, the magis- trates of the colonial audiencias were called upon for a num- ber of miscellaneous functions, such as those of visitador, or inspector of the provinces, or of other departments of the gov- ernment, as asesor of the Santa Cruzada,^* as inspector of ships, as auditor de guerra, as asesor of the governor, and as juez de las execwtorias, under commission of the Council of the Indies to collect and remit to the government receiver all money 3T The oficiales reales consisted of the tesorero (treasurer), contador (accountant) and factor (disbursing officer and supply agent). See Recopilacidn, 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 acuerAos ie real hacienda should be attended by the president (governor or viceroy), fiscal, senior oidor, and oflcial 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 (Reoopilacidn, 8-3-8, 11, 12). Under certain circumstances the factor was assisted by a ve-eOor 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 oiflcials [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 attend- ing 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, Jos^ de Gdlvez, 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 The Becopilacion de las Indias 25 derived from fines and penalties imposed by official visitors {visitadores) , judges of residencia, etceteras "With the exception of the entertainment of the recurso de fuerza, none of the above-mentioned functions could be exer- cised by the audiencias of Spain. Although the colonial audi- encias 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. Cedulas, 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 Becopilacion 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.''" 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, Dicewruaria, I, 462). Funds for this purpose were raised in the Philippines, paid into the insular treasury and deducted from the subsidy at Acapulco (Recopilacidn, 1-20-24). As noted above, an oid/or acted as asesor of these funds {ihid., 2-16-23). 39 Sol6rzano y Pereyra, PoUtica 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 vlceroyalty and audiencia were printed. This 26 The Audiencias of the Spanish Colonies 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 may ores 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 munici- palities. In a general sense, this system was carried into the colo- nies ; the corregidores and alcaldes mayores were in charge of the collection was given the royal approval in 1548. A similar compilation was made in Peru 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 HernSudez de Liebana, in 1552. On September 4, 1560, Luis Velasco, viceroy of New Spain, was ordered to print a compilation of laws for the Audiencia of Mexico. This com- mission was given to Oidor Puga of that tribunal and executed in 1563. In 1569 Viceroy Francisco Toledo was ordered to make a similar com- pilation for Perfl, but the work was not completed at that time. The first volume actually printed by authority of the Council was accom- plished 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 c^dulas 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 ContratacHdn de Sevilla y para otras oosas de las Indias were printed in the same city. Another ordinance was published for the regulation of the contadv/ria 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 Solfirzano y Pereyra, oidor of the Audiencia of Peru 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 Le6n Pinelo published a Discurso sohre la impcrtancia, forma, y disposicion de la reeopilacion de leyes de Indias. On April 19 of that year Pinelo was ordered to make an examination of all the existing laws and cedulas relative to the government of the colonies, printed or in manuscript, with a view to codification. A magistrate named Aguilar y Acuiia was ordered to collaborate with him. The result of these proceedings was a Swinario de la Recopilacidn General, which continued under process of compila- Provincial Administratian 27 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,*^ 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 cap- tion for a half century. It was finally perfected and publlsned in 1677. In 1668 Pinelo's work was issued as the Autos acordados y decretos de goMerno del Real y Suprenvo Oonsejo de las Indias. Although the collection was practically ready by 1677, it was not officially accepted until May IS, 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 R-eoopilacidn de Jos 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 Reoopilacidn Sunuuria was published in Mexico in two volumes in 1787. The compilations of Zamora y Coronado, Rodriguez San Pedro and Perez y L6pez, cited repeatedly in this work, contain later laws, and serve in the place of the Recopilacidn for the more recent periods. Authorities: Solfirzano y Pereyra, PoUtica Indiana, I, Introduction; G. B. GrifiBn, "A brief bibliographical sketch of the Recopilacion de Indias" in Historical Society of Southern California, PuMioations, 1SS7; Fabi§, Ensayo histdrico de la legislacidn espafiola: Puga, Pro- visiones, cidiilas, (1563); Garcia Icazbalceta, Bibliografla Mexicana del siglo XVI, (1886), 25-26; Bancroft, History of Mexico, III, 550- 5511; History of Central America, I, 225-288; Anteqilera, Historia de la iegislacidn espafiola, 480-483. *i Altamira, Historia, IV, 165-166. 28 The Audiencias of the Spanish Colonies tain-general.*- 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 alcaide or corregidor," 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 iu 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 regu- larly 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 {oficiaies reales) in the collection of the revenue. In their provinces they super- vised the building of ships, the construction of roads and bridges, the repartimientos or polos** 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 com- mittees, 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 vieepatron, 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 main- *2 Recopilacidn, 5-2-2, 3, 7, 15, 19, 28. In this case a local military functionary. *3/6i(j., 37, 39, 41; Moses, Establishment of Spanish Rule in America, 83-84; Vander Linden, L' expansion colonials de VEspagne, 345-361. *i 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 respon- sible for the proper execution of the laws appertaining thereto (Blair and Robertson, The Philippine Islands [hereinafter cited as Blair and Robertson], XIX, 71-76). Provhicial Administraiian 29 tain harmonious relations with the priests and friars in their provinces, and to check, by their personal presence and interven- tion, 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 ecclesiasti- cal 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.*^ In the Philip- pines, 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.*^ They were re- quired to defend their provinces and districts against invasions, insurrections, Indian outbreaks, and disturbances. They w,ere *5 Cartas y expedientes de gobernadores de Durango. (1591-1700), Archivo de Indias, Sevilla, [hereinafter cited as A. I.,] 66-6-17, 18 (these numhers refer to archive place); Cm-tas y Expedientes del Virrey de M^gico qwe traUm die aswntos de Gwadalajara (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 Le6n, Nueva Galicia, Nueva Vizcaya, and New Mexico. 46 This was true of San Luis Potest and Guadalajara in New Spain. See Bancroft, History of Mexico, III, 520; History of Central America, I, 297; Moses, Establishment of Spamsh rule in America, 83. 30 The Audiencias of the Spanish Colonies authorized to impress men for military service. Local conditions in Mexico, Peru, 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 oflScials and the way in which they acted as the agents of the captain-general, viceroy, and audiencia.^^ 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. *7 Bancroft (History of Central America, I, 297) defines the correg- idor 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 poHticos (polit- ical and administrative), de capa y espada (military) and poUtioos 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 ofiacial. 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 de- volved 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 Re- copilacidn, 5-2. Conclusion 31 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 dis- cussion 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 cedula promulgated to the Philippine audiencia was in some way related to those issued to ten or eleven other audieneias of equal status or similar character. Although the Philippines were apart physically, this institution, with its rela- tion 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 audieneias was a part, not only of colonial, but of Spanish historical and institutional de- velopment. 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 ofScials. They were important because they facilitated a greater degree of centralization. They converged the provin- cial, colonial, intercolonial and home governments in the same manner as the audieneias in Spain brought about unity in pro- vincial and national judicial administration. CHAPTER II THE ESTABLISHMENT OF THE AUDIENCIA OF MANILA (1583-1598). The conditions whicli determined the establishment of an audieneia 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 Philip- pines were farther away than any. Furthermore, the Philip- pines 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 im- practicable 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 de- gree rather than in kind from that of the governors and viceroys of other colonies. The contiguity of China and Japan, the con- stant 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 audieneia 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 audi- eneia 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 Early Philippine Government 33 final except in certain matters of litigation which could be appealed to the Audiencia of Mexico. Subordinate to him were the alcaldes ma/yores and corregidores, whose functions have been already noted. In the Philippines, as elsewhere, the latter officials acted as magistrates and governors of provinces, com- bining judicial and administrative attributes. Directly sub- ordinate to them were the encomenderos, whose holdings, includ- ing lands and Indians, may be said to have constituted the unit of the Spanish colonial land system until the close of the eighteenth century.^ As in Spain, so in the Spanish towns of the Philippines, there were alcaldes ordinarios, or municipal 1 The first encomiendas in the Philippines were granted by Legaspi in 1572 (Montero y Vidal, Historia general, I, 42-43). The encomen- deros ruled the Indians in their care with little interference from alcaldes mayores, corregidores, or governors. Vander Linden espe- cially emphasizes the fact that the enoomenderos 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, JJ expansion coloniale de VEspagne, 345-346). The laws of the Indies specified that the encomenderos were to protect, aid and educate them, seeing par- ticularly that they were taught the Catholic Faith (Recopilacidn, 6-8, 9, 10, 11; esp. tit. 9, laws 1-4). The encomenderos, in the guise of benefactors, guardians and pro- tectors of the Indians, supervised the labor of the latter on the en- comiendas, 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 resi- dents 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 34 The Establishment of the Audiencia of Manila judges, elected by the citizens in some cases, or appointed by the governor in others.^ 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 prov- inces through the alcaldes may-ores and corregidores. The latter officials he appointed ad interim, supervised their adminis- trative 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.' During the period before the establish- ment of the audiencia, the governor exercised complete control over all branches and departments of the government, — provin- cial, municipal, and insular — ^in matters of justice, administra- tion, 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 estab- lishment 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 in- ' his people, he thereupon was considered to have assumed the duty of acting as their protector" (Pardo de Tavera, Philippmes census [1905], I, 330). Suffice It to say that, theoretically, the ^noomencberos were the fatherly protectors and benefactors of the helpless, childlike natives, and their every act was to be for the good of their wards. 2 Antequera, Historia de la legisJaci6n espaiiola, 486-487; Bourne, "Historical introduction," in Blair and Robertson, I, 56. 3 Reoopilaeidn, 6-8-38 to 39; 8-9-20 to 24. It seems that the oficiales reales merely supervised the collection of tribute, which was reallj' accomplished in the provinces by the alcaldes mayores and corregidores, who acted as their agents. Martinez de Ztiniga, An historical view of the Philippine Islands, I, 2 ; Ordinances of Good Government, Blair and Robertson, L, 191-264; Recopilacidn. 6-5-64; Montero y Vidal, Historia general, I, 380-385. Abuses of Encomiendas 35 efficiency of the governors, and to their cupidity and deliberate favoritism to the encomenderos. As a result of the rapid spread of these encomiendas* settlements, or agricultural estates, for such they were, and their location in distant and widely separ- ated 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 enoomiendas 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.^ 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 * The Relaei6n of Miguel de Loarca, alcalde mayor of ArSvalo, 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 enoomienda 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, Cebu and ArSvalo. About thirty encomiendas were located close to Manila, ten were near to Cehu, and fifteen near to Arevalo under the jurisdic- tion 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 cddMki 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 encom,iendas (C^dula of August 9, 1589, A. I., 105-2-11). Philip II, on November 30, 1568, had ordered that no enoomienda should yield more than 2000 pesos (Recopilaeidn, 6-8-30). Loarca states that there were also enoomiendas in the Camarines provinces in southeast Luzon and in Ilocos, in the north of the same island. These enoomiendas were under the jurisdiction of the alcaldes mayores and corregidores governing those provinces. (Relation by Loarca, Blair and Robertson, V, 35-187.) s Report of Governor Dasmarinas on the enoomiendas of the Philip- pines, May 31, 1591, in Blair and Robertson, VIII, 96-141. 36 The Estdblishmeni of the Audiencia of Manila 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.^ 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 inter- ests of the encomenderos, and the latter were decidedly unfavor- able 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 en- comiendas in their districts. Moreover, many of them were themselves encomendenos^ 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 super- vision of the encomiendas. '' 8 Blair and Robertson, VII, 269-294, Salazar to the Governor, Janu- ary 25, 1591; Reply of the Governor [no date], ibid., 294-300; Carta del OHspo de Manila sobre la muerte de Ronquillo y los excesos que este oometid . . . , A. I., 68-1-32; Memorial de las cosas . . . dignas de remediar en la Isia, Zulueta Papers. Place numbers not given. These are examples of the hundreds of complaints, mostly by churchmen, against the abuses of the enoomenderos. 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, Seiior Zulueta. These Papers are now in the Philippines Library at Manila. 7 On June 4, 1620, the governor of the Philippines was authorized to Early Reforms 37 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 with- out 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.^ Sande made royal many of the hitherto unprofitable encomiendas which had been in private hands.^ On account of these acts Sande became very unpopular bestow encorrtienclMS, with the provision that it he neglected to do so for a period of sixty days the vacant holdings should he bestowed by the audiencia. On October 24, 1655, Philip lY ordered that acting vice- roys and acting governors should be limited to the faculty ot providing encomiendas ad interim, subject to the subsequent ratification of the Council of the Indies (Recopilacidn, 6-8-8, 1-4, 5, 8, 11, 22). s Blair and Robertson, III, 304-306. 9 In this connection may be noted the distinction between the two classes of encomiendas which was made for purposes of administra- tion. Private enoomiendas 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 gen- erations. Later (after 1655), the usual period of confirmation was ten years, for persons who rented enoomiendas as a business proposition. The royal enoomiendas 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," iMd., 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 38 The Establishment of the Audiencia of Manila in Manila, and so unpleasant were his relations with the resi- dents 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 cheek on the governor was the bishop, with whom h^ was ordered to consult frequently. These consultations were often productive of bitter quarrels. The first prelate of the Philip- pines, 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 cheek 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 Grovernor Sande, I would engage to pay any sum of money." He also testified that "the govern- ment here is a place for the enrichment of governors; they greater number of royal enoamiendas 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 encxymiencltcis, 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 enoomiendias 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 enoomiendas, which had been established to pro- vide revenue for the payment of the salaries of alcaldes mayores, tenientes, ofldales 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 enoomiendas of the value of 8000 pesos a year should be established out of the first private en- oomiendas that were vacated (Misa to the King, May 31, 1595, A I 67-6-29). Relatvons With New Spain 39 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."" The government of the Philippines, prior to the establish- ment 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 corre- spondence, 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 governmept 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 loo great a charge for the human frailties of one man ; the gov- ernor 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 Eonquillo de Penalosa 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 10 Salazar to the Council of the Indies, June 20, 1582, A. I., 68-1-32. 40 The Establishment of the Audiencia of Mwnila 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 oorregidares 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 6f the question." He concluded by pointing out the inconsistency of his posi- tion, subject as he was to Sande, the man whom he had dis- placed because of the former's unfitness to occupy the post of governor. Although Governor Ronquillo de Penalosa 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 Pfenalosa as governor was distinctly typical of the possibilities of an absolute execu- tive, 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 Penalosa 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 politcian. 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 11 Ronquillo de Penalosa to the King, July 15, 1582, A. I., 67-6-6. Abuses of Governors 41 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 Penalosa, as other church- men had done against former governors. Not only did the bishop himself write repfeatedly, 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 in- fluence 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 estab- lishment of a royal audiencia was especially requested.^^ ' 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.^^ 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 en- comenderos 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 dis- turbing him. Ronquillo was said to have engaged extensively in commerce, monopolizing the ships to the exclusion of the mer- chants, and forcing large loans from the oflBcials 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 there- from, instead of turning the proceeds into the royal treasury.^* 12 Morga's Sucesos, Blair and Robertson, XV, 59-60; Carta del Ohispo cbe Manila sobre la muerte de Ronquillo, y de los excesos que este cometio, ... A. I., 68-1-32. 13 Ibid. 14 The cMula of March 1, 1551, had forbidden the bestowal of era- 42 The Establishment of the AuMencia of Manila 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 whenevet he found them, irre- spective 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 suc- cession of governors in the Philippines. He made the general recommendation that in the future governors should be ap- pointed by the king, with a view to seciiring men of adminis- trative and executive ability. He brought forth strenuous objections to the accession of the ex-governor's nephew, Diego Ronquillo de Penalosa, 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 administra- tion 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 ex- pressed the opinion that "had Gonzalo Ronquillo de Peiialosa oomiendas oa ministers of justice, treasury oflacials, viceroys, ecclesi- astics, and governors. According to the terms of the appointment of Gonzalo Ronquillo de PeQalosa as proprietary governor, he had been allowed an enoomienda in each principal town. See iSeoo-pitoeidw, 6-8-12. The Need of an Audiencia 43 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."" Although the decree establishing an audiencia in the Philip- pines 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.'^^ While the bishop did exert an important influence in bringing about this change, the sup- port 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.^' Another person who exerted considerable influence toward the establishment of an audiencia in the Philippines was Cap- tain Gabriel de Rivera, who went to Madrid for that purpose. 15 Op. cit. 16 Including the two principal Spanish historians of the Philippines, Martinez de Zflniga (Estadismo, I, 243) and Montero y Vidal (Historia general, I, 88). 17 These letters, dated June 18, 1583, are among the Zulueta Papers at Manila. 44 The Establishment of the Audiencia of Manila 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.^^ 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 in- stitution was established when it was. In his memorial of February 16, 1582, Rivera criticized the existing administra- tion in the Philippines, the proprietary governorship, and the control over commerce which the governor had exercised. The latter had levied the almojwrifazgo and other customs duties in defiance of the royal cedulas forbidding them, and without consulting the wishes of the merchants or officials. Rivera alleged that the almojarifaego and the alcabala were ruining the commerce of the Islands.^' His memorial treated ISA procurador, according to Escriche (Diecionario, 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 asso.ciated merchants had one or more, the oonsulado, each religious order, etc. These procviradores were usually lawyers, not infrequently men who had been in the islands. An interesting parallel might be noted between the procv/radores and the American colonial agents of prerevolutionary days. Zuiiiga here gives Rivera entire credit for the bringing of the audiencia to Manila — op. cit., I, 175. See note 16, supra. 19 The aloabala (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 puri'ose their accounts were examined by royal ofScials at regular intervals (Escriche, DiccUmario, 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, enoomenderos (having farms and cattle-ranches), ragpickers, cloth- makers, silversmiths, goldsmiths, blacksmiths, andi shoemakers. An alcalMla was paid on wine. By the" c^.dula of June 7, 1576, the rate of alcabala was fixed at two per cent. In Perfi it was raised to four per cent during the administration of the Conde de Chinch6n as viceroy and was collected at that rate there until the c6dula of July 26, 1776, raised it to six per cent. This rate was paid thereafter in the Spanish colonies (.Recopilacidn, 8-13-1 to 14, notes, 2 and 4), except for an in- crease 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 cedulas exist in A. I., 87-1-20). Exemptions from this tax were made in favor of churches. An Avdiencia Requested 45 extensively of the abuses which had occurred in the admin- .istration of the encomiendas, and he pointed out numerous de- fects in the judicial system of the colonies. He suggested the establishment of a royal audiencia to con- sist 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 admin- istrative powers as well as judicial ; it was to. govern as a com- mission, with a governor at its head, chosen for a term of six years.*" This scheme, he said, if put into operation, would re- 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 aloabala in the same way as laymen {Reoopilacidn, 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 libid., 24; see entire Title 13 of Book 8, Recopiladdn, for further specifications regarding the payment of this tax). In 1568 Philip II exempted the Philippines for thirty years. As noted above, the alcahala 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. Perfl for a period of a hundred years (Hid., 8-13-1; note 1), but Philip II ordered it paid in the Philippines on August 9, 1589 (ibid., 9-45-66). The almojuMrifazgo, like the alodtala, 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 ordi- nance of December 28, 1662, 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 (.Hid., 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 itXmojarifazgo 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 Becopilacidn. 8-15-26 to 30. 20 Rivera to the King, February 16, 1582, A. I., 1-1-2/24. 46 The Establishment of the Avdiencia of Manila suit in no increased expense to the crown or colony. He pro- posed 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 ap- pealed from the alcaides 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 de- fender of the Indians as a part of the audiencia.^^ Enough has been noted of the evils of the government as it existed before the ' establishment of the audiencia to under- 21 A legal defender of the Indians was wanted in tliis case to serve them in the courts. The hishop, at this time, was protector of the Indians and in that capacity had protested against the abuses of the enoorruenderos. 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 encom,iendas, without touching the revenues of our royal iMOienda which are for other purposes. And we declare that this does not signify that it is our intention to deprive the bishops of the super- intendence and protection of the Indians in general" (Reoopilaci6n, 6-6-8). Philip II, on January 10, 1589, restored the ofBce 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 incon- veniences and injustices had arisen. The law authorized the appoint- ment of a person of good character and morals to the oifice (ibid., 1). The reform of April 9, 1591, required that the appointee should be a lawyer, and that ther^ should be a defender of the Indians attached to each audiencia {ihid., 3). The reform of March 11, 1784, provided that the fiscales should name these protectors in the future. (Ibid., note 1.) Opposition of New Spain 47 stand 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 abso- lutism. 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 elim- ination 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 rela- tives of the governors, or to other prominent officials of the colony. It also meant that the natives on these eiicom,ie)idas should be protected from the rapacity of the encomenderos. It was realized that an effort should be made to insure the im- parting 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 pre- scribing that the alcaldes mayores and corregidores should exercise faithful supervision over these matters which were within their jurisdiction. A tribunal was needed, not merelj- to hear such appeals as might come to it by process of law, but with authority to intervene actively in affairs of govern- ment, cheeking 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 jus- tice the colony of the Philippines should continue to bear the same relations to the viceroyalty of New Spain as did Guada- 48 The Establishment of the Audiencia of Manila lajara.^^ Rivera answered these objections in a special me- morial, stating that the isolation of the Philippines alone justi- fied the establishment of an audiencia and an independent gov- ernment. 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' In- dies 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.^^ 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 administra- tion of our justice, we have accorded the establishment in the city of Manila in the Island of Luz6n of one of our royal audiencias and chan- ceries, in which there shall he a president, three oid/ores, 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 he stamped our decisions which are made and issued by the said president and oidores in the said audiencia. 2* 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 Audi- encia of Manila consisted of three hundred and thirteen see- 22 The Audiencia of Guadalajara was at that time subordinate to the Viceroy of New Spain in matters of war, government, and finance {iMciencba). Itid., 2-15-47, 49 to 54. 23 Rivera to the King, June 26, 1583, A. I., 1-1-2/24. 24 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 cMula, signed by the king and ministers. Establishment of the First Audiencia 49 tions. 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 sec- tions were devoted to the creation of the tribunal, to a defini- tion 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 may ores, and other magistrates of the provinces; it also had jurisdiction over civil cases appealed from the alcaldes ordinarios of the city and original jurisdic- tion 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 govern- ment was a party, or the above-mentioned criminal cases. The judgment of the audiencia was usually to be final in ordinary ruits, and always in criminal cases. Those involving the gov- ernment, and civil suits exceeding a certain value were appeal- able to the Council of the Indies. Notice of appeal to the latter tribunal had to be served within one year after the objection- able decision was rendered, and the party appealing the case was obliged to post financial bonds covering the expenses of suit in ease 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 Gra- nada 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 50 The Establishment of the Audiencia of Manila case, an assistant judge might be chosen from outside the au- diencia 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 con- duct investigations of governors' official conduct. The audi- encia 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 eligi- ble 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 presi- dent or -of an oidor could be appointed legally to a corregidor- ship or to an encomienda. Oidores were eligible for appoint- ment by the president from time to time to inspect the admin- istration of justice and government in the provinces. Oidores were forbidden to receive fees from or to act as ad- vocates 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 presi- dent '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 Regulations for the Audiencia 51 president and captain-general, with special charge over military matters. Under such circumstances the administrative and ex- ecutive 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 ex- penditures, a survey of conditions of the enoomiendas and cor- regimientos, as well as a report on the conduct of officials, includ- ing 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 mag- istrates, as visitors, were to inquire into the character of serv- ice rendered by the alcaides 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 preser- vation 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 per- mitted 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 audi- encia. 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 52 The Establishment of the AvMencia of Manila 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 audi- encia 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 'occa- sions 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 audi- encia. 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 oficiaies reales, and if thesie reports were not duly and prop- erly rendered, the salaries of these officials were to be with- held. After auditing the accounts the committee was to count the money in the royal treasury. The oidores who did this ex- tra work were to receive an allowance of twenty-five thousand maravedi^ (about 56 pesos) in addition to their regular salaries. The authorization of the audiencia was necessary for the pay- ment 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 administra- tion of the estates of deceased persons; it was to examine the accounts of executors and see that the wills of the deceased Functions of the AuMencia ■ 53 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 audieneia. In a subsequent chapter the duties and activities of this administrador or jv^z de bienes de difuntos will be en- larged upon. Considerable space in this decree was devoted to prescrib- ing the rules for the trial of cases involving Indians, with a view to securing justice both in their administration by the en- comenderos 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 audieneia 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 audieneia was required to exercise care that suits in- volving Indians were neither lengthy nOr involved, that deci- sions 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 audieneia and the bishop were to see that there was a person appointed in each village to give instruction in re- ligion. 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 audieneia, or to the visiting oidor. The audieneia was to devote two days a week to hearing suits to which Indians were parties. Encomen- deros were to be protected by the audieneia in the possession of their encomiendas. A proportionate amount of attention in this cedula is devoted to outlining the duties of the fiscal, who, from many points of 54 The Establishment of the Audiencia of Manila 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 per- son during his term of office. He should devote his attention especially to matters involving the exchequer. He was to prose- cute aU cases of appeal from the alcaldes mayores and corregi- dores 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 in- itiative 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 de- termination 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 du- ties, as a whole, were much like those of the English or Ameri- can constable or sheriff. They might arrest, on their own initi- ative, 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; Inauguratian 55 for this purpose he could appoint a certain number of jail-war- dens. 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 audi- encia likewise had official reporters, similar to the court report- ers of the present day. Advocates and attorneys practicing before the audiencia had to fulfill certain prescribed require- ments in regard to learning, training, and general ability. Re- ceivers, bailiffs, jail-wardens and interpreters each received their due amount of space and attention in this cedula. 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 dia- lects, 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 Ma- nila 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 administra- tive capacities. The first session of the audiencia was held on June 15, 1584.-^ The new tribunal was officially brought into 25 Ihid. 56 The Establishment of the Audiencia of Manila 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 re- ports to the Council of the Indies on the inauguration of the tribunal. The most direct and striking consequence of the establish- ment of the audiencia in Manila was the discord which it engen- dered between the various officials and functionaries of the gov- ernment. 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 di- vision of power newly effected, the creation of new depart- ments, 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. Al- though 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 pro- tecting 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 plen- ary powers were readily recognized. ■ The chief objection to the tribunal developed as a result of the audiencia 's interference in matters of government and ad- ministration. Disputes arose between the governor and the oidores, and among the oidores themselves. The lack of experi- ence in the local field of the president and magistrates may have been one of the causes of the unsatisfactory conditions imme- diately following the establishment of the audiencia. Another Dissension 57 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 ecclesiasti- cal 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 infring- ing upon the jurisdiction of the executive. The oidores, on the other hand, claimed that their advice should be taken in all mat- ters 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, offer- ing 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 mak- ing 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 Melehoir Davalos 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, Davalos wrote a faithful and vivid ac- count 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.^* He made several recom- 26 Permission had been granted by Philip II on July 4, 1570, to enslave Mindanaos. A second cidula 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. Recopilacion, 6-2-12. 58 The Establishment of the AvMencia of Manila mendations 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 Acaptdco 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 eco- nomic interests of the realm. Davalos recommended immediate action in the matter. He then discussed military affairs, alleg- ing that the pay of the soldiers was insufficient, and their condi- tion 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,^' the control of the Chinese coming later under the jurisdiction of the governor, as captain- general, with special inhibition of the interference of the audi- encia.^* 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 audi- encia.^' The extensive field over which the oidores claimed cognizance is shown by a series of memorials which were sent by the audi- encia as a body to the court under the date of June 26, 1586.^" They are noted here because they illustrate the diversity of the 27 Rec 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 ease 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 Consti- tution of 1812, the audiencia was given jurisdiction in first 5i RecopilacUin, 2-15-71, which forbade the trial of aloalAes and provincial oflScials before the audiencia. so Council of the Indies to the Fiscal, A. I., 105-2-10. 102 The Judicial Functions of the Audiencia instance over cases involving provincial ofiSeials, and particu- larly 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.^^ But this case dealt primarily with the ofScial conduct of a corregidor, over whom the governor had more direct jurisdiction. The cedula 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.^^ 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 considera- tions of practicability and common sense. As an illustration of this, on June 20, 1686, certain natives of the province of Bulacan 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 se Reoopilacidn, 5-2-3; 2-15-81, 83. 57 This decision conforms with the Recopilacidn, 5-2-3, 4, and 2-15- 68; 117. These laws give to the audiencia and the governor jurisdic- tion over excesses of the provincial judges and executives, and over cases appealed from them. Hid., 2-16-44 gave jurisdiction to the vice- roy over criminal charges against oidores and alcaldes. Coses Involving the Natives 103 of the natives who had perjured themselves that the evidence upon which the Council had acted was false.^^ 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.°* 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 Calderon Enriquez, 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, Cal- deron dispossessed the friars of the lands which they were said 58 Council of the Indies to Audiencia, December 16, 1687, A. I., 105-2-1. The facility with which witnesses may he procured is from one point of view a great aid to the administration of justice in the Philippines today. See Elliott, T?ie Philippines to the end, of the mili- tary regime, 246-8. 59 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. 104 . The Judicial Functions of the Audiencia to have usurped and which they were continuing to hold with- out legitimate title, restoring the lands to the crown. The case was appealed to the audiencia and that tribunal upheld the visitor. Calderon also found that the University of Santo Tomas and ' the Dominicans, in collusion with a clerk of the audiencia, had taken lands from the native town of Silang in 1743. Calderon restored the lands to their rightful owners and his act was ap- proved in judicial review by the audiencia. The friars took ex- ception to this by appealing to the Council of the Indies. The Council notified the audiencia of its afSrmation of the judgment of Calderon and further stated that the lands of Silang, Imiis, San Nicolas, 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 evi- dence 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 jurisdic- tions of the audiencia and Council of the Indies as courts of re- view and appeal in adjusting disputes between the churcji and the Indians. In addition to the above, the audiencia exercised jurisdiction over the religious themselves, both as individuals and as sub- jects of the king, punishing them for violation of the civil laws of the realm to which they were amenable as subjects. An illus- tration of this is furnished by the following case which occurred in 1617. Two Augustinian provincials were murdered, one. Fray Geronimo de Salas, by poisoning, and his successor. Pray Vicente Sep.ulveda, 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 Ecclesiastical Cases . 105 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.^° 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.^^ Speaking generally, the authority of the audiencia over ecclesiastical affairs extended to disputes between orders, be- tween 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.^^ As the question of the ecclesiastical juris- diction of the audiencia will be discussed more fully in subse- quent chapters, no effort will be made at this time to particu- larize 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 govern- ment 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 60 Fuero mixto, in this case a fibero or concession to the ecclesiastical government of jurisdiction over secular matters. See note 53, Chapter XI. of this volume. 61 Audiencia to the King, September 27, 1617, A. I., 67-6-20. Three of these friars were hanged at once, and one, Juan Ocadiz, escaped to New Spain. He was said to be the illegitimate son of Dona Ana of Austria (see Blair and Robertson, XVIII, 82-88). e2 RecomXcucidn, 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. 106 The Judicial Functions of the Audiencia kinds of suits tried judicially in the audiencia. Civil and crim- inal 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 modefti 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 edu- cating the Indians rested but lightly on his conscience. There- fore, 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.^^ 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 connec- tion was prosecuted in 1580 by the asesor of the governor against Dona Lucia de Loaxa, the widow of an encomendero, with the object of dispossessing her of an encomienda held at Butuan, Mindanao.** 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. 63 Recovilaci&n,, 2-15-129. 64 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 segun rl. orden de Julio de 1787. The key to the above exists in the Inventario de autos de la Essma. la Cdmara de Indias, IV, 453, A. I. Encomienda Suits 107 She stated that the governor desired to deprive her of her prop- erty in order that he might bestow it upon a friend. This ease was carried to the Council of the Indies, and it illustrates the effectiveness of the law of Malines, which took from the gov- ernor authority over a case in which he was interested and gave final jurisdiction to the tribunal in Spain. The papers per- taining 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 Gutierrez de Figueroa, second hus- band of Magdalena Rodriguez, widow of an encomendero of Mindanao, filed suit before the governor praying to be continued as possessor of an encow/ienda 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 ease 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 In- dians, brought suit before Governor Ronquillo de Penalosa against Juan de Ayala, a Spaniard holding various encomiendas in different parts of the Island of Luzon, 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.^^ He had also violated the law which prescribed that enoomenderos should live on their encomiendas,^^ and give their personal 65 Recopilacidn, 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). eejtid., 6-9-11, 13. 108 The Judicial Functions of the Audiencia attention to the Indians thereon. Ayala adduced testimony to prove that this law was a dead-letter and that it was dis- regarded by most of the encomenderos. He even showed that there were many of them residing in Spain who held encomien- das in Spain and Peru. Governor Ronquillo felt that the evi- dence 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 pn June 24, 1584, com- municating 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 Acuna, Tello and Fajardo sought on various occasions to retain jurisdiction over suits involving etvoomiendas 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 determina- tion that the audiencia should try suits involving encomiendas, but that in administrative matters relating thereto the will of Encomienda Suits 109 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 Nino 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 enoomendero who had mar- ried the widow of another encomendero, and who had tried to unite and hold both their encomiendas after marriage. The gov- ernor contended that two persons holding enoomietvdas by pre- vious 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, be- cause 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 ap- pealed 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 Dona Juana Leal and Francisco de ReboUedo, residents of Mexico, for possession of an encomienda held in the Philippines. This case affords an illus- tration of the delays to which the course of justice was sub- ject, it being appealed to the Council of the Indies in 1612, and not finally settled till 1620. A suit involving an encomi- enda 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. 110 The Judicial Functions of the Audiencia The encomienda was awarded immediately to Juan de Echevar- ria 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 in- vestigation, 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 resi- dencia. 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 Cebu, 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.*''' The audiencia withheld its judgment on this case, referring it to the Council. That body, after seeking the advice of the royal fiscal and s? The laws of the Indies (Reoopilacidn, 6-19-6) authorized the gov- ernor of the Philippines to assign enoomi/endcs 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 Perti; in the latter it was six years (note to Reoo- pilacidn, 8-22-1). We have record of the extension of an encoviienda in the Philippines to the Hospital of San Juan de D16s for four years by Governor Marquina on July 10, 1789. The c-afrwHa had held this encomienAa 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 enoomien6ia 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. Encomienda amd Property Suits 111 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, auios and testimomios, each expe- diente^^ containing from one hundred to two thousand pages, are marked "seen by the Council", "action of the governor con- ■ firmed", 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 Gongora in 1703 brought suit to recover money owed by Gaspar Sanchez and Bernardo de Guiros 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, thei plain- tiffs being awarded the money originally sued for, with costs 58 Expedientes are defined in Blair and Robertson, LII, 72, note 28, as "all the papers belonging to any matter, judicial, legislative, or execu- tive, consisting of orders, opinions, reports, and all other measures." A te^tirrumio is a duly attested and certified statement or number of state- ments submitted as proof or evidence concerning a given matter. Testi- nwnios include transcripts of letters, c66Mlas, cmtos, 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 avio, or cdcto-to, or given as reasons for a particular action taken by an oflScial or tribunal. Testimonies 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 avail- able and legible because frequently more recently written. 112 The Judiciai Functions of the Aitdiencia 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.*^ In 1736 Gaspar Thome, a Frenchman, sued the estate of a deceased debtor, Juan de Olerte, for 2000 pesos.'^" The case was appealed to the Council of the Indies, and fuUy 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 tend- ency 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 juris- diction of the audiencia was supreme in matters relating thereto,'^ 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.'^ The consvXado, from the time of its establishment, was an ever-present thorn in the side of the audiencia and conflicts over the respective juris- dictions of the tribunals'' were continually arising. We may ^ Inventario, op. oit. 70 Note the appeal of a case involving less than 6000 pesos, which was contrary to the laws of the Indies. {ReoopiJaci&n, 5-13-1). 71 Martinez de Zliniga, Estadisrru), I, 245. 72 Decree for establishment of the OonsuJado, in Manila, December 13, 1769, A. I., 108-3-17. 73 The (xnsuUido was an organization of the merchants of certain authorized cities of the Spanish empire. A consulado had to be estab- lished by royal authorization. The tribunal of the consulado was com- posed 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 oomsuTiado. The Commercial Suits: The Consvlado 113 briefly cite one or two cases to illustrate the respective jurisdic- tions of the audieneia 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.'* Suit was brought originally in the audieneia, but the co-nsulado applied to the governor for jurisdiction in the case on the ground that, as a commercial suit, it should be tried in the consulado.''^ The governor awarded jurisdiction to the audieneia. The con- sulado re-appealed the case, but the Council sustained the gov- ernor's decision on the ground that this was a suit between a private individual and a merchant which should be tried in the audieneia, the tribunal which usually tried cases between in- dividuals. The function of the consulado, the royal decree stated, was to try suits of a commercial character which arose between merchants.''^ An occasion on which the jurisdiction of the audieneia was unquestioned may be noted in the suit which was appealed to the Council of the Indies from the audieneia in 1698, over the wrecking of the galleon "San Francisco Xavier". The admira:l, 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.'' 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.'* The Council referred the ease to the Junta triitmal de alzadas was composed of an (Mot and two merchants. The latter constituted the final court of appeal in the colony in commer- cial cases and exception to their decisions could be taken only in the Council of the Indies. — Martinez de Zflfiiga, Estadisnw, 245-246. 74 Council of the Indies to the Audieneia, January 21, 1808, A. I., 105-2-18. 7s Reoopiladdn, 9-46-40. 76 Hid., 9-46. This section of the laws of the Indies establishes the consulados of Lima and Mexico, and lays down regulations for them. 77 This was before the time of the Consulado of Manila. IB inventario, op. oit. 114 The Judicial Functions of the Audiencia de Guerra,''^ 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.^" The royal fiscal, in the opinion rendered for the guid- ance of the junta, made the comment that frequently the aidores 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 occa- sion. 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.^^ The laws of the Indies authorized the governor and the alcaides del crimen to try cases of strangers,*^ 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 79 The Junta de Guerra was the committee of the Council of the Indies -with jurisdiction over military and naval affairs. When ques- tions of this nature came to the Council they were referred to the Junta, where decision was made and referred hack to the Council. See notes 17 and 36, Chapter VII of this book. 80 Invewtarv}, op- c^i. 51 nid. 52 Beoopilaci&n., 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. Commercial Suits: The CmisiUado 115 tried in the Audieneia 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 cedulas and regulations which re- served 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.*^ During the greater part of the audieneia 's existence there was no consulado in Manila and the jurisdiction of the audieneia in commercial cases extended to suits between mercheints 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 men- tioned in the laws of the Indies as being the concern of the coiisulados of Lima and Mexico.** Officers of the gaUeons 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 permis- sion. They were tried for carrying more slaves than they were allowed by law to carry, for charging exorbitant prices of pas- sage, and for failing to turn in accounts of money collected. Commanders were often held criminally responsible for care- lessness in navigation and for shipwrecks. These cases were tried in the tribunal of the carmdado after 1769. S3 Real Acwerdo de 17 de Julio, 1656, A. I., 67-6-22. (The final ac- tion of the Council is Indicated without date on the margin of the auto of the Audieneia.) St Recopilacidn, 9-46-28; 9-45-13. 116 The Judicial Functions of the Audiencia 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,*^ but unless they were of extraordinary importance, special investigators, usually alcaldes mayores or alcaldes ordinario>s, were delegated to try them in the name of the audiencia.*^ As already stated, most of the criminal eases 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 ease 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 re- manded to the judge who first had tried the ease, for second trial.*' 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 illustra- tion 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 rob- bery, murder, and crimes of a depraved nature were usually of a class unable to finance appeals to the audiencia. This fact prob- ably accounts for the scarcity of criminal cases appealed during the first two centuries of the audiencia 's existence.*' However, ss/eid., 2-15-111. 86Z6id., 71. 87 Foreman, Philippine Islands, 241;. The laws regulating the trial of cases on appeal may be noted in ReoopiZaddn, 5-9, 10, 11, 12, 13. 88 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 " " " " 25, 1776; iUd. Official Favoritism 117 the reforms of the nineteenth century brought £in increased num- ber of cases into the audiencia by systematizing the administra- tion of justice, differentiating the judgeships from adminis- trative offices, and providing for greater facility of appeal.'^ 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 nation- ality. 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 com- 1776 — 48 cases report dated March, 1778; Hid. 1779— 53 " ■' " July 30, 1780; " 1786— 99 " " " May 1, 1778; A. I., 105-2-10. 1789— 51 " '• " June 4, 1790; " 1795— 38 " " " April 4, 1798; " 1822—641 " " " July 3, 1823; A. I., 106-4-21. According to Desdevises du Dezert ("Vice-rois et capitaines g^ngraux des Indes espagnoles," in Revue Mstorigice CXXVI, 59, 60) the Audien- cia 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 ap- proximately the same period. In the criminal sola 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 suiflcient judges had not the latter continually absented themselves on the smallest pre- texts. The charge of indolence was also frequently brought against the magistrates of the Audiencia of Manila. 88 See ooleccion leffislativa de Espana, LXIV, 105-147 (Royal De- cree of January 30, 1855). G6dula of December 6, 1858, in Rodriguez San Pedro, Dicckmario de legislacidn, vMramMrina, VII, 69. C4dula of March 10, 1857, Hid., VIII, 39. Royal Decree of July 4, 1861, Coleccifin legislativa de Espana, LXXXVI, 1-45. The basic principle of these re- forms are to be found in the Constitution of 1812, Martinez Alcubilla, Diccionario, III, 408-458, and in Las Ordenanzas ifuevamente Forma- das para el Regimen y Oovierno interior de la Audiencia Nacional de Manila en cumplimiento de la Ley de 9 de Octre de 181S, sobre arreglo de tribunales. A. I., 106-4-19. 118 The Judicial Functions of the Aud/iencia, posed of judges who were largely under the governor's domi- nation. The tribunal gave the matter a cursory investigation, after which the governor was allowed to go unpunished.'" "We shall see that proceedings were different, however, when offi- cials 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 eases 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 ofioiales reales and they were ordered to accomplish their duties in this particular, if possible, without the assistance of the courts.'^ Numerous cases did come up in the audiencia, however, involving the prosecution of indi- viduals for violations of the aZcabala, quinto, and the tax on the export of silver (comisos). Persons assisting in the ap- prehension 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 auth- orized to the Council of the Indies.®- Referenee 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-gen- eral over military matters, wherein the audiencia had no authority, will be noted when an examination is made of the 90 Blair and Robertson, XX, 35-43, 147, 168, 196-198. SI Recopilacidn, 8-10-16. 92 CdduXas of October 6, 1783, and of November 19, 1805, A. I., 105- 2-18. Limitations and Restrictions 119 relations of. the governor and audieneia in a subsequent chapter. Suffice it to say here that the audieneia did not have jurisdiction as a court over soldierg 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 relat- ing to the Chinese. This subject will be treated in greater detail when we discuss the relations of the audieneia and the governor. During the first two centuries of its existence the audieneia had jurisdiction as a judicial tribunal in the cases and in- stances 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 audieneia. The judicial authority of the audieneia was impeded during the greater part of its history by the failure of the govern- ment 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 Consti- tution of 1812 and the reforms made in pursuance thereof really effected the changes which had long been needed. The audieneia 's jurisdiction was made final in all civil suits and increased in administrative eases; thereafter no appeals were made to the Council of the Indies unless they involved admin- istrative law. Cases involving official dishonesty, incapacity, residencia, pesquisas, treason, disputes between audieneias and other tribunals over eonfiicts 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 120 The Judicial Functions of the Audiencia to the home government more time in which to occupy itself with questions of governmental policy, leaving to the audi- encias more authority and responsibility in purely judicial mat- ters, 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 tne 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 fol- lowing section we shall note its jurisdiction as an adminis- trative 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^ 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 in- centive 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 super- vision 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 servicia.^ The tribunal itself was ready at all times to hear complaints against provin- cial governors and judges, treasury officials, magistrates, gov- ernors, or, in fact, any and all officials holding their positions by virtue of the king's commission.^ 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.* Complaints against alcalde/! ma/yores and corregidores were most likely to be made during the regular investigation of the visiting aidor, which, as we have noted, occurred every three 1 See Cunningham, "Residencia In the Spanish colonies," in the Southwestern Historioal quarterly, XXI, 253-278. ^Ibid., 2-33, 1, 6; literally, a report on character of services. 3 Ibid., 5-11. * IMA., notes 1 to 4. 122 Judicial Functions of .Audiencia; the Besidencia years, but suiBeient complaint might be made to justify the dis- patch of a special investigator at any time.^ The findings of the above inspections might be reviewed by the audiencia and lead to the suspension and dismissal of the official under investigation.* The final action had to be con- firmed by the Council of the Indies in case the person con- cerned were a royal appointee, but in these matters the actito 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 in- vestigate the case, the evidence was submitted to the Council of the Indies and final action was taken by it and not by the audiencia.'' 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 re- moval 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 re- move the governor, though the magistrates could and frequently did bring charges against the governor which led to his dis- missal. Governors actually suspended and removed oidores at 5 Hid., 2-31-1. 6J6id., 5-12-9. 7 IHd.. 5-11-6; see also, 5-12-14. Removal of Officials 123 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 audieneia investigated the conduct of an official whenever circumstances demanded it; the latter was either suspended and recommended for removal, such recom- mendations being made by the audieneia 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.* If exception to the action of the audieneia 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 ac- tion of the lower court the Council approved its action.' 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 prov- ince 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.^° The principle underlying the institution of the residen- sibid., 5-15-36 to 39; 7-1-10 to 13. a Ibid., 5-12-7 to 9. 10 Bancroft, History of Central America, I, 250-1. Special em- phasis should he placed upon the last clause of the above definition. The periodical residencia was not the sole means for the removal of o£Scials 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 modem writers to the residencia. See Bourne, "Historical introduction," in Blair and Robertson, I, 50-52; Moses, Establishment of Spanish ruTe im, America, 172; Vander Linden, L'expansion ooloniale de I'Espagne, 349. 124 Judicial Functions of Audiencia; the Besidencia cia 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 ofScials 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 olfice 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 Philip- pines the resiAencia for a governor lasted six months and was con- ducted 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. "^^ It is important to note at the outset that the residencia was iiot conducted periodically alone, but that it might be held at 11 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. The Pesquisa 125 any time in the career of an oflScial. 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.^^ In the in- vestigation which took place the ofSeial might be fined, or if grave offenses were proved, he might be removed from office. Appeals might be made from the pesquisidw to the audiencia and to the Council of the Indies. In fact, the judgments of the pesquisidor were always reviewed in the local tribunal un- less 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 charts 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 cedula, therefore, authorized the taking of residencias whenever the best interests of the service required it.^^ This cedula 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 12 Recopilacidn, 7-1; 2-15-117. 13 rbid., 5-15-19. 126 Judicial Functions of Audiencia; the Besidencia official uader examination.^* This matter is covered in slightly different terms in the law of June 19, 1620. According to that enactment, a receptor^^ might be sent to conduct the prelimi- nary 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.^^ The authority to determine whether cases merited investiga- tion or not and whether an inquiry should be made, belonged to the acuerdo, while the designation of the judge rested with the governor.^^ The judges sent on these missions were not at first authorized to pass final sentence, their deci- sions 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?^ Appeals might be made to the audiencia and, if the sentence imposed the death penalty or permanent re- moval from office, the appeal might be carried to the Council of the Indies.^" 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.^" The ■oidores, it seems, did not always act as impartial judges when entrusted with these investigations; they were ^ilMd., 20. IB A receptor was a clerk of court, who on special authorization or commission of a tribunal was dispatched to institute judicial proceed- ings on behalf of the court. — Escriche, Diccioruirio, II, 794. 1-e Recopilaci&n, 7-1-16. "76id., 5-15-21. IS Ibid., 7-1-14. i9 76id., 5-12-31. 20 Ibid., 5-15-38. Preliminary Investigation 127 often influenced by the extra reward obtained for these serv- ices, and frequently by prejudice against the oflScials under investigation. Such were the charges implied by Governor Fajardo in 1619 when he wrote: It Is always to be believed that the auditors (oiAores) 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 advlsable.21 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,^- whose resideiicia 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 Senora de la Encarnacion". 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 21 Fajardo to Felipe III, August 10, 1619; Blair and Robertson, XVIII, 276. 22 The Marianas were the islands of the Ladrone Group situated 1200 miles east of the Philippines. 128 Judicial Functions af Audiencia; the Besidencia approved by the audiencia in review on July 24, 1714.^^ 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 sub- jected to a residencia covering his entire career as governor. It may be noted that the two forms of investigation were sepa- rate and distinct on this occasion. Owing to the death of Governor Lizarraga, to the im- prisonment of Oidor Villa, and to the state of anarchy sur- rounding the administration of Torralba as governor, Pimentel was forced to languish in prison several years while he waited residencia. The appointment of Luis de Tagle as his successor and judge of residencia was dated June 25, 1717. This occa- sion 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 23 ExpecUentes relatives d la residencia de Don Antonio Pimentel, OovemadrOr de las Marianas, A. I., 68-4-17 and 18. Applicability of the Kcsidencia 129 in ofBee, 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 resi- dencia. The most sensational and widely known reddencias were, of course, those of viceroys and captains-general, but oidores, treasury officials, encomenderos, alcaldes mayores, cor- regidores, admirals, generals, captains, and constructors of galleons were likewise examined in this way.-* The visitors and special investigators who were sent to examine the govern- ment of the provinces and the state of the Indians on the en- comiendas were also subject to residencia. Besidencias were exacted of all minor officials at the same time that their superiors were examined.^^ Clerks, notaries, secretaries, al- caldes ordiitarios, regidores, and other officials of a minor cate- gory 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 per- functory 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.^^ The practice of taking the residencias of minor officials was definitely abandoned on August 24, 1799, and a rigid inspec- tion by the audiencia of their official acts was authorized.^' Much contradictory legislation appears in the laws of the Indies relative to the method of taking residencias; this due to 2* iSecoiMtocidn., 5-15-3, 4, 8, 10-18. 25J6itf., 5-15-11. 24. 26 Having been excused by the cedillas of July 7, 1789, and January 15, 1795, A. I., 105-2-5. i-t Recopilacidn, 5-15, notes 4, 11. When the resiAencia of a viceroy or president was taken, the oidores were also held responsible for all opinions given conjointly with him in the acuerdo. 130 Judicial Functions of Audienciaj the Residencia the reforms made from time to time. These laws were formu- lated 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.^° In illustration of this characteristic of the laws of the Indies we may note the following example: The cedula of 28 Sinlbaldo de Mas, the able Philippine critic of the nineteenth cen- tury, says in regard to the above characteristic of the Recovilacion and its laws: "Since the Leyes die Jndias are not a constitutional code, but a compilation made in the year 1754 [a footnote amends this statement with the information that the Recopilacidn 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 Rob- ertson, LII, 70. Dr. James Alexander Robertson, in his article on "Legaspi and Philippine colonization" (see American Historical Association, Annwai 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 UUoa, Robertson, and Humboldt as the great all-determining authorities for the latter periods of Spanish colonization. These, indeed, have been supplemented by a few ecclesi- astical 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 institu- tions of present-day Spanish America. Method of Taking the Residencia 131 December -i, 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 cednla of December 28, 1667, according to which judges for the residencicbs 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 cedula of August 30, 1582, was extended to six months.^^ 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, gover- nors, and ministers in the taking of residencias. The king deter- mined that henceforth the judge of residencias should be desig- nated 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, vice- roys, presidents, governors-intendant, corregidor-intendants, and presidents of the Council of the Indies should be appointed by the king.'" 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 resi- -0 Reoopilaci6n, 5-15-1. 30 cMula of August 24, 1799, in Rodriguez San Pedro, Legislacidn uHramaHna, III, 280-281. 132 Judicial Functions of Audiencia; the Residencia dencia.^^ 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 residenciaJ- 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 ease to the court, which act was in fulfillment of his regular duties as fiscal, as prescribed by the laws of the Indies/' 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 nul- lification of all former cedulas, 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 Monte- mayor, the oidor next in rank, to conduct the residencia of the governor.'* 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 cedula 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.'^ Many appeals were made to the Council in accord with this law, and the time of the tribunal was consumed in the sipapeles relativos d la residencia del goiernoAor Salcedo, In- ventario, op. cit.; also A. I., 67-6-10, 67-6-11, 67-3-4. 32 Since all legal advice was furnished the governor by his asesor, Coloma would be examining his own acts. S3 Beoopilacidn, 2-18-27. 34 Cedula of June 17, 1671, A. I., 82-6-10. In view of these proceed- ings, Salcedo's letter of June 25, 1665, in praise of the services of Coloma and Montemayor is interesting (A. I., 67-6-9). 35 Recopilacidn, 5-12-8; 2-16-46, provided for appeal of cases carry- ing death penalty. Appeals 133 consideration of matters comparatively of small importance. To obviate this defect the law viras 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."^ The cedula 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.^^ 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.^* Philip IV initiated further reforms in regard to appeal in 1636. Ordenansa LVI, promulgated at that time, provided that "the said Council [of the Indies] may only have jurisdic- tion 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."^® Ordenama 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, con- demnations of corporal punishment, privation or suspension from office result against them."*" 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. Tiie 36 /6M., 5-12-31. 37/6MJ., B-16-38. 38/6i(i., 39. asiiid., 2-2-58. ioiiid., 64. 134 Judicial Functions of Audiencia; the Residencia 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 atten- tion 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.*^ 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.*^ 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.*' It was decreed by the cedida of December 30, 1776, that an annual deduction of one- fifth of the total salary of the governors and viceroys respec- tively should be made, until sufficient money had been taken out to cover the probable costs and liabilities of their resi- dencias.*^ This was a special assessment, distinct from the media aiiata,*^ and the money deducted thereby was to be re- i^IUd., 5-15-3. *2 There were two kinds of boi).ds, 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. is Reoopilacion, 5-15-3; this cMula was annulled by that of May 21, 1787; see note to law 3 of the same title. "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 oonsulta of March 2, 1773, it being ordered that governors should only post the customary bonds with the presi- dent 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). is Reoopilacidn, 8-19; see notes 11 and 13, Chapter V of this book. Bonds of Residencia 135 turned if nothing detrimental were proved in the residencia. The last year's salaries of alcaides may ores, and corregidores were withheld, pending investigations of their official conduct and a rendering of accounts of collections made by them.^" If an official were cleared of all guilt, the money which had been withheld was returned and the costs of residencia were de- frayed by the royal treasury.*' 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.*^ 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 giv- ing extra pay for residen-cias was abolished.*^ A detailed survey of the governor's residencia in the Philip- pines 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 *6 Reoopilacidn, 8-26-17. iilhU., 5-15-42. 48 ihid., note 12. 49 Royal decree of November 20, 1841, in Rodriguez San Pedro, Legis- lacion ultramairma, I, 282; see also royal order of December 3, 1844 (for Cuba), Hid., 287. 136 Judicial Functions of Audiencia; the Besidencia families and dependjents of some were reduced to the last ex- treme 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 in- tervene 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 posses- sion of a complete record of the misdeeds of his predecessor, and the residencia of the latter was as good as taken.'" Oidores, merchants, alcaldes, treasury oflScials, 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.^^ A 50 Officials, desirous of ingratiating tliemselves into the favor of ttie 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 exer- cise of dishonest methods. 51 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 Besidencia of the Governor 137 new governor, desirous of demonstrating his intention of start- ing 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 residen-cias 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 Penalosa, conducted Sande 's residencia and sentenced him to pay a heavy fine, but he appealed the ease 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 ad- ministration of justice. had fallen when a man could be pro- moted to a magistracy in a tribunal which had jurisdiction over his own case on appeal.'^ However, after the establish- ment of the audiencia, and until the close of the nineteenth profit, commercial and otherwise, legitimate and iWegitimate, his enemies gave him no rest at the time of his residencia. (According to Martinez de Zuniga lEstadismo, I, 242] the emoluments of the gov- ernor, aside from his salary, aggregated 20,000 pesos a year.) It is prob- able 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, enoomiendas, and com- mercial 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. S2 Chapter II of this book. 138 Judicial Functions of Aitdiencia; the Besidencia 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 residencies in which the influence of the audiencia told against the victim. In 1625, Geronimo de Silva, temporary governor, was impris- oned by the audiencia because he failed to pursue the Dutqh 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 ar- rival in the Islands deprived that magistrate of the command of the military and naval forces of the Islands. Again, Gov- ernor Corcuera, after nine years of very successful rule, during which he distinguished himself in several campaigns of con- quest and incidentally aroused the hostility and jealousy of the oidor es, 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 im- prisoned five years while the magistrates of the audiencia de- layed the transmission of the papers which permitted a rehear- ing 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 Simon de Anda y Salazar, one of the most suc- cessful 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.^^ Among the offenses which were 53 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 Resid^ncia of the Governor 139 proved against him was that of exercising prejudice in conduct- ing the nsidencio of Oidor Villacorta, conducted under his supervision. The residencia, had been rigorous, due no doubt to personal enmity between the oid-or 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 Raon, who had friends in the audi- eneia to defend his memory and champion his cause.^* Anda was also shown to have absolved certain officials of real haci- enda 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 pre- mature death in 1776. Governor Jose Baseo y Vargas, another very efficient gov- first came to the Philippines during the administration of Governor Arandfa, 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 member- ship 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). ^* Anda had more than the usual number of re»idencias to super- vise at the beginning of his term. Owing to some misapprehension on the part of his predecessor. Governor Ra6n, no resid'Cncia was re- quired of La Torre, the teniente d-e7 rcy who tooli over the govern- ment in 1764. Owing to the anarchical condition in Manila consequent upon the invasion of the British, and the ecclesiastical rule preceding that event, neither Arandla, Espeleta, nor Rojo had given residencia. The audiencia and Ra6n in acuerdo on October 26, 1768, voted that governors' resi^encias should be dispensed with, and apparently be- lieved that this action settled the matter. On November 9, 1770, the Council of the Indies disapproved of this stand, fined Ra6n (who had died the preceding July), and ordered Anda to take the residencias of Arandia (governor, 1754-1759), Espeleta (archbishop-governor, 1759- 1761), Rojo (archbishop-governor, 1761-1764), Oidor Villacorta, and Governor Ra6n. These orders ' he complied with, conducting the in- vestigations with his characteristic thoroughness, though Rojo and Ra6n were dead. Villacorta was imprisoned and heavily fined. The sentences against Arandfa, Ra6n and Villacorta were moderated bv the Council of the Indies on September 9, 1772. — A. I., 105-2-31. 140 Judicial Functions of Audiencia; the Besidencia ernor,^^ 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 ap- pointing a churchman as arbiter. Pray G-eronimo 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 de- tail at least one case of the residencia of a governor, to show more pai-tieularly just Avhat 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 con- ducted under the old laws, and the last, accordingly, of the severe residencias.^^ As governor and superintendent of real hMcienda Marquina assumed such power as no other governor had ever exercised. He was opposed at every turn by the 55 As we shall note in another chapter, Jos6 Basco y Vargas in- augurated the reforms of the intendancy in the Philippines, retaining the post of governor, while Ciriaco Gonzales Carvajal was first intend- ente de g-werra y real hacienda. — A. I., 105-3-5 and 107-5-19; see Chap^ ter V, note 20, of this work. 5s This residencia, was held under the same laws that had pre- vailed 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. Residencia of the Governor 141 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, Agustin de Amparan, was put in pos session of ihe 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 sepa- rated 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 ilanila under conditions forbidden by law.^' 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. Amparan was commanded by the royal order above-men- tioned to remove Marquina to some spot outside Manila where he could not mterfere with the residencia, but whence he could be summoned at any time, to give testimony in his own J)e- half.^* The regent was instructed to ascertain from the treas- ury officials whether Marquina should not be required to post more than the usual amount of bonds in view of the grave 57 Audiencia to the King, June 28, 1791, A. I., 108-4-18. 58 Instructions to Amparan, February 19, 1792, A. I., 105-2-10. 142 Judicial Functions of Audiencia; the Besidencia charges against him. It seems that the law already cited re- quiring 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.^" 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 sus- pended 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 an- swered. 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.^" 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 59 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 Helarion Pastor, flsoal de la real hacienda, Manuel de Sota, contador de cuentas, Fran- cisco Mtinoz, teniente del rey, Rufino Su^rez Rivera, nsesor, and Miguel Formento, clerk of the treasury. A separate commission was made for the residencia of each of these. 60 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 Cor- cuera, Silva, and Torralba, victims of residen-cia, to be seized, im- prisoned, and exiled without opportunities for defense, while their investigations were being conducted. This case serves well to illus- trate the fact that by the close of the eighteenth century the resi- den-cia had grown more humane. Besidencia of the Governor 143 had been sent separately. The glaring injustice of the in- vestigation as conducted by Amparan and of the official evi- dence 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 super- vision 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 dispensa- tion 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 to- bacco; he had infringed on the jurisdiction of the royal audiencia. He had indulged in private trade and had granted special favors to foreign merchants.®^ 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 61 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 (jFSecojwZocMJn, 2-16-54, 62), but he had connived at the infraction of another law which forbade trade to foreigners (iHd., 9-27-1, 5, 7 and note 2). 144 Judicial Functimis of Audiencia; the Besidencia 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 adjiidged innocent of the charges which had been made against him.*^ Marquina 's trial illustrates all the characteristics, the de- lays, 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 ofScial term. The regent of the audiencia was commissioned by the court to conduct the investigation because Marquina 's successor had not arrived. That "magis- trate 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 62 It is an interesting commentary on Spanish methods that, not- withstanding 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 gfenferaux 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 in- advertently refers to Marquina as having come from the Marianas to Mexico. He came from the Philippines and not from the Marianas. The Reform of 1799 145 were so patent that the Council of the Indies ordered a new hearing. A severe sentence was finally passed by th6 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 accom- plish 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 al- ready 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 a^itos of the case to the Council of the Indies for final determination and sentence.*^ 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.** 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.*' 63 RecopilOiciOn, 5-15, notes 4 and 5. 64i?eaZe* resoluciones del Consejo, 4 de Marzo, 1794, A. I., 106-4- 18; Royal Order of January 18, 1848, Rodriguez San Pedro, Legislacidn tiltramarina, I, 290. 65 These discounts were "considered subversive of their authority 146 Judicial Functions of Audiencia; the Besidencia We shall now exaniine more particularly the jurisdiction of the audiencia over the residencids of minor officials of the colony. It has already been pointed out that the residencias of provincial judges and governors, alcaldes ordinarios and reaies oficiaZes were taken by judges appointed by the presi- dent of the audiencia, with appeal to the triljunal. 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 develop- ment of the law regarding them, for, as we have already noted, the residencia was the product of years of administrative ex- perience, during which various methods were tried, and re- jected or adopted as they were found respectively inadvisable or efficacious. The earliest cedula 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 ex- ceed 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.*" The cedula of September 3, 1565, laid down the principle that the residencias of officers appointed by viceroys and presi- [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 com- munication which enables said authorities to consult with the govern- ment of Her Majesty in all the steps which are considered necessary in the territory of their command." — ^Royal order of July 7, 1860, in. Rodriguez San Pedro, L/egislacion iiltramarivui, I, 287. ^s Recopilacidn, 5-15-20. Provincial Officials 147 dents should be taken by commission of those who appointed them.*' As regularly appointed corregidores and alcaldes mayores held royal commissions,^* 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 author- ized by a clause in the cedvZa 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 audi- encia 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, presi- dents, or governors should appoint judges for the purpose."" Nothing was said in this cedula 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 gobemador, 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 par- ticipate, 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 eT Ibid., 4. 68 lUd,., 5-2-1, 2, 7. 69 76id., 5-15-19. 148 Judicial Functions of Audiencia; the Residencia necessary. The audiencia, alone, was authorized to appoint judges of residencia for judicial officers only.'"' The interfer- ence of the audiencia in the residencias of governors, corregi- dores, aicaldes mayores, and other justices and ministers pro- vided by royal appointment was definitely forbidden by the cedula of April 20, 1639, as this jurisdiction was declared to belong to the Council of the Indies.'^ Although we have evi- dence 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 pro- visions.'^ 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 weis shown, however, that this official knew the location of a quick- silver 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 eon- 7oiJ)id., 7-1-16; 5-15-21. 7^1Ua., 2-15-69; see 2-2-58, 64. 72 King to the Fiscal, September 29, 1788, A. I., 105-2-10. Provincial Officials 149 spiraey 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/^ Although the cedula 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,'* and finally it indicates that expediency might constitute an important fac- tor in the ultimate results of a ease of this kind. The practice of granting jurisdiction over the residencia of an ofiBcial to the authority that appointed him seems to have been followed repeatedly. This principle was enunciated in the cedula of August 20, 1758, but on August 8, 1764, a royal decree authorized viceroys and presidents to name judges of residencia for all ofiScials 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.'= The cedula of August 24, 1799, which has been mentioned several times in this chapter, was a reform of the greatest im- portance in the history of the residencia. Prior to its pro- mulgation, all officials had to give residencia, but this law abolished that universal requirement. It provided that resi- dencias of corregidores, alcaldes nwyores, and subdelegate- intendants should be taken only when charges had been made against them. This might occur at any time during their term T3 King to the Audiencia, October 6, 1806, A. I., 105-2-18. 7i Reoopilaci6n, 2-18-27. 73 Jiid., 5-15, note 4. 150 Judicial Functions of Audiencia; the Residencia of ofSce, 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 inves- tigated. 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.'^ Duriiig 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 de- pending on the amount of evidence presented against the re- tiring official. On the other hand, as we have seen, the resi- dencia 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 76J6id., 5-15-27 to 49. Conduct of the Trial 151 pursued: charges which had been made against the official were investigated and the records of his office were examined. The discovery was freqiiently made through this procedure that the official had embezzled money belonging to the govern- ment, 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 re- vealed in this examination. The judge of residencia would seem to have been well occupied during the time that he was conducting the investi- gation. He received and reviewed all charges made. In addi- tion to auditing the records of the office, he had to pursue inquiries as to the truth of these charges. He examined wit- nesses 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 respon- sible.'' The judges of residencia, and the oidores making in- vestigations and reviewing cases of residencia were ordered to confine their examinations to "criminal and legal matters and charges which result against those under residencia."'^ 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 ■JT Ibid., 8-1-28; 5-15-35. Heavy penalties were prescribed for those who offered insecure financial guarantees (ibid.. 5-15-33 to 36). 78 76mZ., 34. 152 Judicial Functions of Audiencia; the Besidencia the penalty did not exceed twenty-five thousand maravedis. 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 de- fendant 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.'*" Cases involving more than one thousand pesos could be carried to the Council of the Indies. A thoroughly typical ease, illustrating all of the ramifica- tions of a provincial official's residencia, was that of Francisco Fernandez Zendera, alcalde mayor and military captain of the province of Ilocos.*" It was investigated first by a judge ap- pointed 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 Zendera 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 In- dians, he made a motion before the audiencia in acuerdo, that a judge of residencia should be sent to conduct an investiga- TD76MJ., 39, 40. 80 EacpedAente de Don Frco. Pem&tidez Zendera, alcalde mayor y oapitdn de guerra de la provimcia de Ilooos, . . . su residencia perir diente de informe de to atudienda, 1794, A. I., 106-5-4 and 5. The papers relating to this trial easily aggregate 4000 pages. A Typical Case 153 tion of Zendera's official conduct. The following charges against Zendera had been sent to the governor, and on the basis of these, the fiscal, governor, and audiencia decided to conduct the investigation: First, Zendera had compelled na- tives to work for him on his own estates, building houses, gran- aries, fences, tilling the soil and planting crops, from two hundred to three hundred men having worked for him con- tinually, 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 aciierdo, having taken note of these charges, commissioned Angel Moguel, chief secre- tary of the government, to conduct the residencia of the alcalde. Moguel was put in possession of the necessary docu- ments and departed at once for Vigan, the head city of the province. On November 7, 1782, he posted notices to the effect that Zendera's residencia was to be taken, calling on the resi- dents to make formal charges against him. Moguel suspended Zendera 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 Zendera was responsi- ble. These were additional to other bonds which Zendera 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. Zendera was said to have been un- compromising 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 154 Judicial Functions of Audiencia; the Residencia to appeal their eases.*^ Not being a lawyer, he lacked suffi- cient 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. Zendera was charged with having suppressed all commerce except his own, going so far as to arrest merchants of other provinces who came to Iloeos 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 pro- vincial prison. It was said that he had neglected to publish the governor's edicts (handos) 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. Zendera 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 depriva- 81 It was said that lie had shown favoritism In his dealings with some of the barangay (district) chiefs, allowing them unhridled 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. Zendera had, of course, e:ftended favors to these hara/ngay chiefs in exchange for reciprocal advantages. (The alcaldes mayores ruled the native popu- lation, through these chiefs at this time. Later they utilized the gohemadorcillos, who were native or mestizo governors of the small towns. — See Malcolm, The govemnvent of the Philippme Islands, 64-72.) It was also charged that he had allowed cock-fights whenever re- quested, instead of restricting these to holidays and Sundays as the law prescribed. On these occasions he collected two reates 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. The Reform of 1799 155 tion of office for a period of eight years.'^ The audiencia, in turn, reviewed the case, and that tribunal, on May 20, 1783, finding the auios of the ease incomplete, ordered Moguel back to Vigan for a second time to complete the investigation. The judgment of reside ncia 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 ap- peal, for on February 19, 1788, a cedula was expedited which ordered the audiencia to forward all the autos in its posses- sion 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 sen- tence which had ordered a deprivation of office was remitted altogether.^^ The cedidu 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 m^yores, and sub-delegate intendants only when charges were made against them; otherwise it was assumed that their offi- cial conduct had been satisfactory, and accordingly no resi- dencias were held. Before the officials could be transferred to 82 In taking the residencias of oorregidores and alcaldes mayores the audiencia frequently took great responsibility upon itself. On July 10, 1800, on taking the rest*ei»ci» of Luis Rodriguez Varela, alcalde rrMyor of Pangasinan, the audiencia suspended the decoration of the peguena 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. S3 The original sentence probably denied to Zendera the privilege of holding the oflBce of alcalde rrw/yor 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 ZSndera did not apply to all positions of honor and trust. 156 Judicial Functions of Audiencia; the Besidencia other posts they were obliged to show certificates of clearance from former positions. The audiencia was given final juris- diction over the residencias of these officials, with inhibition of appeal. At the same time the tribunalwas denied jurisdiction in any instance over the residen-cias of viceroys, captains-gen- eral, presidents, governors, treasury officials, oidores, and in- tendants.^^ 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 €xercise this jurisdiction till the close of the nineteenth century.*^ The cedula above referred to abolished the residencias of tenientes letrados, alcaldes ordinarios, regidores, clerks, pro- curators, syndics, algiMciles, 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 jus- tice was administered, jails inspected and kept clean, prisoners 81 CMula of August 24, 1799, Reoopilacion, 5-15, notes 4 and 5; see also Rodriguez San Pedro, Legislaei&n. vitramarbrbo, I, 282. 85 Escriche, Diccionarki, I, 578; see also royal order of November 20, 1841, and of January 18, 1848, in Rodriguez San Pedro, LegislacAon ul- tramarina, 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 estab- lished Its independence of the executive and judiciary. The king dis- approved of his attitude and ordered that henceforth the officials of real hacieruda 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 Recopilacidn, 2-15-69; 5-15-15 and Ordenanza die Intendtentes de Buenos Ayres, Art. 305.) This decree •ordered that the residencms of the intendants and their assistants should be submitted to the audiencia. The cedmla of August 24, 1799, so frequently cited in this chapter, gave final jurisdiction to the audiencia over the residenmas of intendentes-correffidores. but it de- creed that superintendents should give residencia directly to the Coun- cil of the Indies. Later Reforms 15T 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 im- partially 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 constitu- tional reforms of the early nineteenth century gave to the audien- cia 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 residencies 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.^^ This was not the case, however, as the residencia was recognized by laws promulgated as lately as 1870.*' K6 Martinez Alcubilla (Diccioiwrio, XI, 477) and Escriche (Diccion- ario, II, 819) state that the cMula of August 24, 1799, abolished the residencia. The latter states that the residencia was eliminated be- cause 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 ex- tracts from the laws of August 24, 1799, September 26, 1835, and No- vember 20, 1841, wherein were provided regulations for the future con- tinuance of the residencm. 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. S7 See C6dula of July 7, 1860, in Rodriguez San Pedro, Legislaci&n- uttra marina. III, 287; royal order of July 25, 1865, ibid., X, 99; royal order of October 25, 1870, Coleccion legislatira. CV, 442-465. The eminent authority, Manuel Bernaidez Pizarro, writing from Manila on April 26, 1827, deplored the laxity which was characteristic of the method of conducting trials of residencm, and recommended 158 Judicial Functions of Audiencia; the Besidencia The audiencia also had jurisdiction over the reddencias 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.** 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 residencias of the officers of the galleon "Nuestra Senora del Eosario y San Vicente Fer- rer", which was wrecked in the Straits of San Bernardino on the voyage from Acapuleo in 1709.*' As great diligence had been shown by them in landing the treasure and sending it over- land, 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 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 ofiBce 'who lack all the qualifications necessary for any public office whatever.' . . . not only have they used their au- thority 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 resicleneia as a means of remedying these defects. ss Reeopilacidn, 5-15-17 and 18; 9-45-42. 89 Governor to Council of the Indies, January 4, 1710, A. I., 68-4-15. Conclusion 159 galleon and had taken refuge in flight.'"' 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, alcaides 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 audi- encia 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 designa- tion 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 fin- ished 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 resi- dencias of the higher officials only. In the residencias of pro- vincial or local officials the jurisdiction of the audiencia was final. s» Concepcibn, XI, 132-234 (Anson's depredations). CHAPTER V THE SEMI-JUDICIAL AND ADMINISTRATIVE FUNCTIONS OP THE AUDIENCIA. Aside from the activities which have been described, the magistrates of the audieneia 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 miscel- laneous secular and ecclesiastical matters as did not come readily under any other department or authority. In practi- cally 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 audi- eneia, their decisions were reviewed in the audieneia in many eases. 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 audieneia. The exercise of these extra functions was especially charac- teristic of the history of the audieneia 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 super- intendent, and lessened the duties of the- oidores in these mat- ters, 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 exist- ence of the colonial audieneia. The laws of the Indies empowered the president of the audieneia to designate oidores to serve on these commissions. Designation of Magistrates 161 Additional compensation and travelling expenses were given for these extra services.^ 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. Fre- quent disagreements arose over these appointments, and the king was obliged to issue pacificatory cedulas, from time to time, to allay the discord and strife which arose over the appointments to the more lucrative of these places. The prin- ciple was laid down repeatedly that special commissions should be assigned fairly among the ministers, and that in their dis- tribution only the aptitude of the magistrates for the particular tasks should be considered.^ The term of service for these special posts was a year. No change was allowed in the in- cumbency 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 con- nected 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 1 Reoopilacidn, 2-16-40; see also 7-1-15. 2 Law of November 10, 1818, A. I., 106-4-19; see Real instrucci&n dada d los reffentes de las audiencias, 20 de JvmAo de 1776, in Rodriguez San Pedro, Legislacidn ultramarina, VII, 22-28; Zamora y Coronado, Ap6ndice. 19-33. 162 Semi-Judicial and Administrative Functions permanently with the duty of seeing that all the decrees, fines, and decisions of the Council of the Indies were executed, col- lections 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,* the alcabala and the almojarifazgo. The senior magistrate was authorized to retain as compensation three per cent of the amount col- lected, and he was ordered to give account to the audiencia of collections made by him in accordance with the law.* 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.^ The president, fiscal, and the senior oidor concurred in the acuerdos which treated of matters pertaining to real hacienda.^ 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.'^ The audiencia also 3 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 (Reoopilaci&n,, 8-10-1). Philip II conceded a commutation of this tax to ten per cent in favor of adelamtados, 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. * rUd., 2-16-19 to 22. slbid., 23. 6 Ibid., 24. This junta is to be distinguished from the real con- taduria, which was composed of the oficiales reales. See Martinez de Zflniga, Estadismo, 246. 7 This was the junta swperior de la real Jmcienda, created for Manila by the law of July 24, 1784. It was one of the reforms of the in- tendancy. It cannot be said, however, that these reforms became ef- fective until 1787, though the c6dulas of July 17 and 24, 1784, which ordered them, were received in Manila on December 5, 1785. These Miscellameous Cmnmissions 163 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.* 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 offi- cials and those of the city of Manila. The inspecting magis- trate was authorized to examine the records of these officials and to use any other legitimate means in performance of his special duties.® An oidor was designated by the president to make peri- odical 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 c^dulas ordered the formation of a government locally, which would conform to the general principles of the intendancy and which were laid down in the c^dulas 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 jimta svxperior were heard In the Audiencia of Manila. The cidula of that date, received in Manila on June 30, 1793, ordered that such appeals should be car- ried 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 superintendrnte dr 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 (.Jos4 de Gdlwe, 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 iHd., 302-3. a Reoopilaci6n, 2-16-34. »IUd., 2-15-169. 164 Semi-Judicial and Administrative Functions magistrate had been faithful in the execution of his duties. He was supposed to visit the encomiendas and note the treat- ment of the Indians thereon, to find out whether the natives were properly and suflBciently 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 responsi- ble for any irregularities, especially with regard to the treat- ment 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 de- • fects, 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 in- spected. The visitor was provided with sufficient funds to defray his expenses, so that he would not be a burden on the encomende- ros 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}" The audiencia exercised supervision over certain matters of church finance. These included tithes, the funds of tempor- alities, and of certain charitable societies, and jurisdiction over the adjustment of estates and properties left by deceased pre- 10 itid., 2-31-1 to 3. Church Finances 165 lates. 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 accord- ingly pertinent here, may be reserved for a subsequent chap- ter 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.^^ These taxes were levied upon the salaries of all offi- cials 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 cedula of June 2, 1632,^- ordered the judge-commissioner of medias atwias to sur- render the money which he had collected to the treasury officials who in ttirn were to transmit it to Spain.^^ More definite in- formation as to the nature of the duties of the judge-commis- sioner of these funds may be gathered from the cedida of De- cember 14, 1776, by which Oidor Felix Diaz Quejada y Obrero was appointed as commissioner of mediae anatas in the Philip- pines. This magistrate was authorized to retain four per cent of all that he collected. This percentage, the cedula stated, was the same as was paid to the commissioner of medias a)iatas of New Spain. The cedula ordered Quejada to collect this tax from ii76id., 8-19 (general subject of medias anatas). Holders of ec- clesiastical benefices were subsequently obliged to pay the media anata, althougb they were especially exempted by the cedula of June 2, 1632. The media anata (civil and ecclesiastical) was paid until December 28, 1846, when this tax, together with the Umza (a tax formerly paid by the nobility, but subsequently required of all classes in lieu of mili- tary service) was abolished (Martinez Alcubilla, Dicci(yiMez d/e difwntos 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 (Reoopilacidn, 57, 70) . As noted above, the practice had arisen of making deductions from the subsidy equivalent to the amount of Henes 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 pre- served 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 assur- ance 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 176 Semi^ Judicial and Administrative Functions 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.*^ This rendered unnecessary the actual transfer of money. The jiiez de difuntas in Mexico received the funds from the Philip- pines, 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 criti- cism was made from time to time, of alleged irregularities in of the Indies, May 22, 1770, A. I., 107-3-9). By the c6dula 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 super- intendent) authorized an advance of 54,049 pesos from the hienes de difimtas, which sum constituted the entire amount on hand. On April 25, 1815, the fiscal of the contaAwria 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 per- sons 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 {RecopUaci6n, 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 jiiez 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 Philip- pines 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. 4iJ6id., 60. See the articles on the Philippine sitvado by E. G. Bourne and James A. Leroy in the American historical revieic. X, 459-461, 929-932; XI. 722-723. Bienes de Difuntos 177 the administration of these funds in the Philippines; in fact, successive royal ccdulas reipeatedly charged the Philippine offi- cials with maladministration.*^ 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.*^ These faults, he alleged, were owing to the fact that the funds were not directly administered, but were paid into the treas\iry 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 sus- pension of the regular galleon eliminated the possibility of this practice.** 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 ap- pealed to the Council of the Indies. Among the most frequent were the quarrels which took place between the captain-general *2Cedutas of November 26, 1776, September 9, 1778, October 13, 1780, June 12, 1783, February 17, 1786, A. I., 107-3-9. 43 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 jiiez 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 jweces de dAfvmUts, 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, Jvi.ez de Difimtos die 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). 44 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.— 76td, 412. 178 Semi-Judicial and Administrative Functions and the juez de difuntos over the question of the special mili- tary jurisdiction of the latter, and the claim of the juez de difuntos to administer the property of military and galleon ofi&cials. For example, on July 6, 1757, the juez appealed to the Council for jurisdiction over the property of a deceased galleon oflBcial on the basis of the rights conceded to him by the laws of the Indies ;*' the governor claimed the right to administer this property on the ground that the galleon officials were ap- pointed by him, and that they were held by the laws of the In- dies to be under the military jurisdiction. This case was de- cided in favor of the juez de difuntos, and may be considered as having established a precedent for his subsequent jurisdic- tion over such cases.*^ 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 Marques de Al- gorja, 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 prop- erty which had to be transmitted to Spain for distribution i^ Recopilacion, 2-32-7. *6Villacorta 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. Conflicts of Jurisdictimi 179 among heirs.*^ The governor's contention against it was based on the fact that Sarrio was a military official. As we have al- ready seen, the law of August 29, 1798, authorized the settle- ment of the property of soldiers by special military courts.** Other sources of frequent dispute were the respective claims of the juez de difuntos and the oficiales reales for juris- diction 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 177S, 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 eases 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 jitez de difuntos; it being incumbent upon the ofidaies reales to present the claims to the judge.*® 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 jurisdic- tion 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 "Marquina to the Ck)uiicil of the Indies, June 18, 1790, A. I., 107-5-18. *8 Becopitoctdn, 2-32, note 2. isjfttd., 5-12-14. Basco y Vargas to the King, June 6, 1778, A. I., 105-2-9. 180 Semi-Judicial and Administrative Functions the treasury officials was submitted in the substance of the royal cedvla of April 23, 1770, which declared that these judges should be entrusted exclusively with the collection of royal funds. "Furthermore," the cedula 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. "=° The oficiales reales in- sisted that they should not be required to go before the juez de difuntos for any purpose, since the laws of the Indies"^ gave them the power of inspecting the accounts of the juez de difuntos and of keeping and administering these funds.^^ The more recent cedula of October 13, 1780, had decreed that the accounts of the juez de ddfuntos 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 per- taining to the case was collected and referred to the Council on December 22, 1786. The cedula 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 jiiez de difuntos, or to the judge commissioned to settle property of intestates or to pay creditors; . . . the accounts of my real hadenda shall be settled by my royal judges before the juez de ddfuntos may have cognizance.53 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 5oC6dulas of April 23, 1770, October 13, 1780, and May 4, 1794, A. I., 105-2-10. SI- Reoopilacidn, 2-32-28. 52 Ibid., law 25. 53 Cedula of May 4, 1794, A. I., 105-2-10. The Settlement of Appeals 181 the royal treasury had claims. After the demands of the gov- ernment were paid, those of private individuals might be set- tled, and it was ordered that the juez de difuntos, as the cham- pion of individual claims, should always give precedence to the oficiales reales who represented the interests of the gov- ernment. The organization for the administration of these funds pre- sented 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 sub- sidy at Acapulco, and forwarded to the Casa de Contratacion of Seville (or the juez de arribadas at Cadiz, after 1790) by the juez de difuntos of Mexico. The heirs in Spain were then found, and the money transferred to them, less discounts cov- ering 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 Coimcil of the Indies. The method of procedure there was to refer these documents and accounts to the Contaduria OeneraL, 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 aU 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 h Aeioerdo of January 15, 1814, A. I., 106-4-19; see also Montero y Vidal, Historia general. III, 404; 430. TiCarvajal to the King, December 5, 1785, A. I., 107-5-14; Gar- vajal to the Audiencia of Manila, December 29, 1787, A. I., 107-5-15; Testimonio del expediente soire poner la real jurisdicci6n y el goHerno y policia de estas islas en el ser y estado que tenlan antes, December 20, 1788, A. I., 107-5-18, 105-3-5. 218 Audiencia and Governor: Genera! Relations acuerdo, notwithstanding the objection of Governor Marquina, removed the offending official and appointed another, and this action was subsequently approved by the kingJ^ According to the laws of the Indies the authority of removal and appoint- ment of such officials rested with the governor.''* The tendency of the acuerdo to act in civil affairs without the advice or pres- ence 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." The evil effects of the audiencia 's inter- vention in provincial government were pointed out in 1842 by Sinibaldo de Mas, when he wrote: "the government of the prov- inces is in charge of an alcalde-mayor, who is at once judge of first instance, chief of political matters, subdelegate of the treas- ury, and war-captain or military commandant, for whose differ- ent attributes he is subject to authorities distinct from one an- other. "'» "King to the Audiencia, August 13, 1793, A. I., 105-2-10. 16 Reoovilacidn, 3-2-70 (after 1680), 67. 77 Rodriguez San Pedro, Legislacidn ultramarvna, VII, 67. 78 Mas, "Internal political condition of the Philippines," in Blair and Robertson, LII, 70-73. Mas was a Spanish diplomatic official sta- tioned in China, who visited the Islands in 1842 on a semi-official mission. This writer was not favorably impressed with the effective- ness of the acvierdo. 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 cxuerdo, 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 The Acuerdo 219 The audieneia was deprived of its acuerdo power in 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 audieneia. 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 ex- tent, and to realize the utmost success in my administration," he said, "I count on the co-operation of all the authorities, and particularlj' of the real acuerdo, of which I have the honor to be president. "'° The audieneia 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 position through favoritism and is not a lawyer, and decides ques- tions 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 1 1790 J. 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 audieneia, the governor was obliged to contend with a number of other oflScials, departments, and regulations, which effectively prevented him from exercising absolute power, even at the sacrifice of eflSciency. 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 audieneia was the only civil authority or tribunal present to exercise any check on the executive in adminis- trative affairs. However, in the last century the importance of the audieneia 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. 79 Governor Torres to the Queen, March 18, 1835, A. I., 106-4-21. 220 Avdiencia and Governor: General Relations functions of government having been assumed by the Adminis- trative Council {Consejo de Administracion) of which the presi- dent and fiscal, and usually two oidores at least were members. Thus, even after the reform of 1861, the oidores continued to par- ticipate in legislative functions, though the audiencia as a body did not.^" 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 Acuna, dated February 16, 1602,^^ 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 com- prehensive 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 de- sirability 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 gov- ernor to cut down expenses and to economize by the elimina- tion of as many offices as possible. He recommended, in particu- lar, the abolition of the offices of corregidor and alcalde rnayw. 8" Coleccidn legislativa de Espana, LXXXVI, 1-45. Elliott, In his Philippmes to the end of the mAMtary 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 im. 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 special- ization of 1861 deprived the governor-general of his judicial powers." 81 Instruction of the King to Governor Acuua, February 16, 1602, Blair and Robertson, XI, 263-88. The Sphere of the Governor 221 The king warned Acuiia against a continuation of the dis- honesty 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 gov- ernor was temporarily deprived of jurisdiction over this matter. Who was to assign the encomiendas in the future was not divulged.*- 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 per- sons 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 legiti- mately 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 82 Fray Sanchez, 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 estab- lishment. Nevertheless the governor's authority to bestow encomi- endas was recognized by the royal instructions to Governor Dasmarinas, issued May 25, 1593 (Blair and Robertson, IX, 232). The statement of Sanchez 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. Encomiendm were con- ceded by different governors in the Philippines throughout the eighteenth century. This matter has been discussed in an earlier note. 222 Audiencia and Governor: General Relations in Mexico. Acuna'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 la'Sity 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 er- radicated. This Instruction shows that the governor was re- garded 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. In- structions similar to this were given to many succeeding gov- ernors. A citation of these would prove nothing new, however. In the same manner that the Instruction to Acuna gives us Their Respective Spheres 223 an idea of the relative functions of the audiencia and the gov- ernorship in 1602, so the criticisms of the able Spanish diplo- mat, Sinibaldo de Mas, written in 1842, aid us in estimating their respective spheres in the nineteenth century. This opin- ion 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 preeminences 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 tlie chief of the islands. Besides, the revenues have been removed from his jurisdiction, and the oflBce 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 hap- pens 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 depart- ments of authority a confusion of jurisdictions, the fatal fount of eternal discord.sa 83 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 gov- ern 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 juris- diction 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 incoriwrated into the new laws of the last half of the nine- teenth century (i^id., 78-85). 224 Aiidiencia and Governor: General Relations Mas made extensive quotations which were calculated to show "the great confusion and contrariety of the orders to gov- ernor 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 gov- ernor. ' 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 privi- leged 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.** 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 ex- ample to the natives, or otherwise degrade the dignity of the royal tribunal or governor. Viceroys, presidents, and audi- encias 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.*^ It would appear, therefore, from this survey of the laws, that the audiencia was provided with ample means for restrain- ing the action of the governor. This it could do either by ad- monition, by appealing from his decisions in administrative Si Recopilacion, 5-12-22; 2-15-35; 36, 41. s5/6id., 3-3-51. Limitations on the Governor 225 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 Philip- pine 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 execu- tive, had his own sphere in which the oidores were forbidden to interfere.'® 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 posi- tion 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. S6 76id., 2-15-35, 36, 41; 3-3-2, 34, 42; 3-14-1; 5-12-22. 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 colo- nies and trade routes of rival nations, made the problem of defense the foremost consideration. This was almost equally true of New Spain, Peru, 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 pre- pared 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 writ- The Governor's Military Prerogative 227 ten 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 com- ments 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 mili- tary 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 al- most unlimited powers, until their abuses led to the re-estab- lishment 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 Acuna 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 ac- tion of a soldier, without the interference of a body of magis- trates.^ Similar recommendations were made by a majority of lAcufia to Felipe III, July 15, 1604, Blair and Robertson, XIII, 235. Acuna stated that the soldiers and military officials were "dis- contented 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 in- terfering with them. He stated that it was the opinion of all right- 228 Audiencia and Governor: Military Jurisdiction the succeeding governors, but more especially by Pajardo, Cor- cuera, Vargas, Arandia, and even by Anda who had risen from the post of oidor to that of governor and military commander.^ The conviction that the government should be pre-eminently military was not held by governors alone. Fernando de los Rios 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.^ This opinion was also advanced by Fray Alonso Sanchez, procurator of the Islands at Madrid in 1589, and the emissary whose arguments were chiefly instrumental in bringing about the suppression of the audiencia.* 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 gov- ernor and the audiencia, recommending that the former should attend solely to war and government, while the latter should confine itself to matters of justice.^ This opinion was shared by Juan Jose 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."* Delgado re- commended that governors of the Philippines should be picked thinking men that soldiers were of more use in the colony than judges {Hid., 237). 2 The terms of these governors were as follows: Fajardo, 1618- 1624; Corcuera, 1635-1644; Vargas, 1678-1684; Arandia, 1754-1759; Anda, 1762-1764, 1770-1776. 3 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. * These arguments are noted in detail in Chapter II of this volume. 5 Viana to Carlos III, May 1, 1767, Blair and Robertson, L, 126-135. 6 Delgado, 212-215, reproduced in Blair and Robertson, XVII, 316. Importance of Military Defense 229 men, selected for their military qualities. The distance and isola- tion 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 commer- cial ventures would be less attractive to him.^ He recommended that governors should be absolute in affairs of government and war and that all departments and oiBcials 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 jManuel Bernaldez Pizarro, for many years a resident and offi- cial in the Philippines, writing in 1827, urged that the gov- ernors there should be efficient administrators rather than sol- diers. It must be remembered, however, that the political con- ditions in the Philippines during his period were widely different from those of the seventeenth and eighteenth cen- turies 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.^ This had the effect of causing dis- sensions 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 r "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 com- munity are incredible" (ibid., 317). s Reforms in Pilipinas, April 26, 1827, by Manuel Bernaldez Pizarro, Blair and Robertson, LI, 219; see 213-218. 230 Audiencia and Governor: Military Jurisdiction 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 exe^rcise of his duty; . . . since 1822 the government has always devolved upon an oflBcial; a general, and in the case of his death, a segundo odbo, and, in case of the death of the latter, a commandant of the naval station.s 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.^" 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 hun- dred years of Spanish colonial history will show that the audi- encias 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 jurisdic- tion, and second, of the control and disposition of the military forces of the Islands, and their utilization for defense. One, Montero y Vidal, ArcMpielago Filipino, 162-168. "The Spanish regime 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). '^0 Recopilacidn, 3-3-3. Military Tribunals 231 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, qonsists 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 mili- tary law. This judicial system was independent of the audi- encia, and the latter body, during the greater part of the his- tory of the Islands, was denied jurisdiction in these cases, even on appeal.^^ 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 aboveonentioned particular, he seldom intervened personally in the trial^or^such cases. His position with re- gard 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 con- ducted in first instance by military tribunals and magistrates. Most prominent among the latter were the castellan and the maestre de campo. The captains, themselves, had certain judi- cial authority within their companies.^^ Appeals were made from these military judges of first instance to the captain- general. If there had been notorious injustice or a grave in- fraction 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 ii/fttd., 3-11-1 to 3. 12 J6t*., 3-11-1. 2, 3 to 10; 3-10-3, 11; 5-10-15. 232 AudieTwia and Governor: Military Jurisdiction capacity they were responsible entirely to the governor and were not identified with the audieneia. Oidores frequently ob- jected 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 mis- demeanors, the decision of the 9aptain-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 Su- preme Council of War who were designated to sit with an equal number of ministers of the Council of the Indies.*^ 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 inter- vention 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 Contratacion, ^^nid., 2-2-72, 74, 77; Consulta de 18 de Fetrero de 1673 sobre atrihuckmes de Xa Junta de Guerra de Indias, A. I., 141-5-8. Audit ores de Guerra: Procedure 233 and, in fact, it exercised general supervision over that institu- tion in its various activities. This was the machinery which existed for the adjudication of military eases 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.^* The royal decree of January 30, 1855, made a radical reform in this particular, adding two new magistrates, an auditor de guerra and an audi- tor de marina and to some eitent 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 magis- trates 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 juris- diction, the regent and two magistrates of the tribunal, acting with the auditor de guerra or the auditor de marina, could re- solve themselves into a special court for the trial in second instance of cases pertaining to the respective fields of the last two officials.^^ 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, approv- ing 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 castellan. The captain-general, on ap- ^i AiiMtor 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). 15 Royal order of January 30, 1855, Coleccidn legislativa de Espana, LXIV, 105-147. 234 Audiencia and Governor: Military Jurisdiction peal, afSrmed the sentence, and the junta de guerra approved the proceedings when the ease was appealed a second time.^* Another case, and one which illustrates the slowness of the pro- ceedings 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),^^ but Governor Basco y Vargas, upon the advice of his asesw, sus- pended sentence, directing the case to the junta de guerra. Nothing was done, however, and on December 10, 1788, Gov- ernor 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.^' 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 18 Royal order of January 22, 1787. A. I., 107-5-16. 17 That the consejo de guerra was something more than a (tribunal of) courtmartial and that it actually participated in the adminis- tration of military affairs may he seen in the c6dvM 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 (Recopilacidn, 3-4-3). 18 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 othfer parts, he said, but it was un- desirable in the Philippines on account of the isolation and the distance. He recommended instead that these cases should . be ap- pealed to a board consisting of the governor and two asesores — one his own, and the other an oidlor to be designated by him. This recommendation was not accepted (A. I., 106-1-18). Cmiflicts of Jurisdiction 235 and military jurisdictions. The governor who had the power to assign eases to whatever tribunal he chose, often took ad- vantage 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.^* An instance of a ease of this kind occurred in 1800. A militiaman, Josef Euy, 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, al- though the militia was not at that time in active service. The jiidgment 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 audi- encia, stating that jurisdiction over the case had been sur- rendered to the governor on account of its militarj^ 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 aiithorities in the Islands were working, the king decreed on Slarch 27, 1802, that cases involving Indians should be tried in the audiencia, but that this poor wretch had been tried and re- 19 Audiencia to Vaidez, December 11, 1788, A. I., 107-5-16. 236 Audiencia and Governor: Military Jurisdiction tried, condemned and condemned over again so often that he iad already expatiated his crime. He was accordingly author- ized to go free.^" 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 car- ried 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 en- couraged 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 offtcials were not entrusted with the authority and responsi- bility which they should have had, and the central government 20 Royal order of March 27, 1802, A. I., 107-5-16. Services of the Magistrates 237 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 mUitar. 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 audieneia.-^ 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.-- In doing this he was encroaching on the rights of the oficiales reaies, and these were always sup- ported by the audieneia in the contentions v 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 audieneia as a tribunal was forbidden jurisdic- tion in the trial of cases involving war, we have already shown that the governor exercised the right of designating aidores to try cases of this nature on second appeal. The power of en- forcing this right depended entirely on the governor. Fre- quently the efforts of the governor along these lines were attended with much difficulty as were those of Governor Mar- quina 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 21 Case of Don Diego Salvatierra, November 20, 1792, A. I., 105- 2-10. 22 Case of Don Josef de Xviles, November 2, 1792, A. I., 105-2-10. 238 Audiencia and Governor: Military Jurisdiction 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, un- der protest, while appealing the question of disagreement to the Council of the Indies.^^ This was accordingly done, the magistrate basing his claim to exemption on the law which pro- hibited the governor from sending oidores on commissions out- side the audiencia.^* The governor at the same time filed a memorial which forestalled all the arguments of the oidor?^ He stated that the real cause of the disinclination of the magis- trates 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 cmisulado, in company with two merchants who were not 2s Recopilacidn, 2-16-12; 2-15-36. ■iilUd., 2-16-11. 25 The memorial which the governor sent in answer to the argu- ments of the ddior was an interesting exposition of his opinion of the audiencia. He said that the lack of time alleged by the oiAor 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 S^paniards and Indians were few, he alleged, since most of the questions involving commerce were tried in the tribunal of the oonsulaAo (Governor Marquina to the super- intendent-general, July 10, 1789, A. I., 107-5-18) ; see Chapter III, note 88. Services of the Magistrates 239 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 magis- trates for this service on that section of the laws of the Indies applying to Espanola, Nuevo Keino, and Tierra Firme, which declared that jurisdiction over cases affecting soldiers belonged to the captain-general with inhibition of the audieneia, and that soldiers, during the time they were under arms, should not be tried on criminal charges.^° 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 eolonies.^^ Although we have no record of the reply of the tribunal in Spain, the strength of the gov- ernor'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.^* 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 audieneia 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 audieneia, and the successful defense of the Islands by the military forces under the leadership of the oidores. Notwithstanding the fact that the governor's recog- nized sphere of action was military, and in spite of the re- 28 Recopiladdn, 3-11-2. ^T Ibid., note 2.- 28 See citation of the ced-uM. of January 24, 1773, applicable to Perti, wherein an oidor was permanently charged with the duty of serving as auditor de guerra {ibid.). 240 Audiencia and Governor: Military Jurisdiction peated prohibitions against the interference of the tribunal in these matters, the audiencia received considerable official en- couragement 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 responsi- bility for military affairs. The audiencia shared the acuerdo power in these matters to a lesser degree than it did in gov- ernment. 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 Portu- guese, Dutch, and English aroused the fears of the common- wealth 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 as- sistance. The history of the Philippines is replete with in- stances 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.^" We have seen in an earlier chapter that the audiencia mani- fested 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 28 Morga states that after the audiencia was established In May, 1584, "they (the oidoresi) began to attend to the affairs both of justice and of war and government" (Morga's Sucesos, Blair and Rob- ertson, XV, 60). Defense 241 also discussed in the letters of the oddores. In some cases their advice was considered, on other occasions the governor com- plained 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 consist- ing 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.^" No better illustration of the willingness of the governor to share his military responsibilities can be given than the reliance of Governor Dasmarinas on the religious authorities for advice in military affairs, after the suppression of the audiencia in 1589.^^ He consulted with them on ways and means of defending the colony against the Japanese, whose threatening attitude during his administration rendered pre- carious the continuance of Spanish power in the Islands. On one occasion he consulted the religious orders as to the advisa- bility of expelling all Japanese and Chinese traders from 30 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 op- posite those regions — that of Labrador." A note suggests that this probably referred to the St. Lawrence River. Delgado says that Gov- ernor 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 aflSxed 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 through- out this series from Volumes VI to XXXV (1584-1650) especially. The general subject is covered in A. I., 67-6-6 to 26. 31 Luz6n Menaced, Blair and Robertson, VIII, 284-297. We shall see, in the next chapter, that Governor Bustamante, on a similar occa- sion, asked for the written advice of the various ecclesiastical authori- ties and corporations on the question of whether he had a right to remove and appoint oidores without express royal authorization. 242 Audiencia and Governor: Military Jurisdiction 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 appro- priation of the property of the natives as a pledge of their good behavior in the event of hostilities, were measures pro- posed by the governor to the religious for their consideration. Dasmarinas, 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.^^ These facts make clear the unwillingness of this governor to taJie 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 mili- tary 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 oc- casions to furnish information as to the number of men needed for the defense of the Islands, and whether the 82 Opinions of the religious communities on tlie war with the Zam- bales. January 19-20, 1592, Blair and Robertson, VIII, 199-233. The Advisory Powers 243 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.^^ 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 Mo- luccas were also subjects of correspondence between the court and the local audiencia.^* 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 meas- ures, in the opinions of the magistrates, would be best in deal- ing 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 Luzon 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 magis- trates 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 fortifica- tion of the city of Manila to the audiencia before he sent it to the king for final approval.^^ 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 33 Audiencia to the King, January 7, 1597, A. I., 105-2-1. 34 A. I., 105-2-1 to 10 are replete with documents illustrating this phase of the relation of the audiencia and the governor. 35 Torre to the King, July 26, 1744, A. I., 108-2-21. 244 Audiencia and Governor: Military Jurisdiction reported on the advisability and feasibility of manufacturing guns and powder in the colony.^® Governor Obando, writing in 1748 to the king, and commenting on the relationship of the previous governor with the audiencia in the matter of de- fense, 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.^' 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 ran- dom from various governors' administrations, show that the audiencia was required to do all that it could to assist the gov- ernor 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 36 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 mem- bership of this council. 37 Obando to the King, August 15, 1748, A. I., 108-2-21. Defense 245 the Dutch, the audieneia was frequently obliged to assume responsibility for the defense of the colony. In 1600 and 1601, when Francisco Tello de Guzman 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 audieneia, then in charge of the government, maintained the defense of Manila and Cavite against the Dutch.^* While Gov- ernor Pedro de Acuna was absent in the Moluccas in 1605-1606 on a campaign of conquest, the audieneia entertained and re- sponded 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 audieneia (1606-1608). The audieneia 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 Andres de Alearaz the military and naval forces of the Islands repeatedly repelled the invasions of the Dutch.^^ 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 audieneia was compelled to resort to the extraordinary recourse of seiz- ing the money of Manila merchants on its arrival from Aca- pulco on the galleon. It also forced loans from residents and officials who were in the colony. The audieneia authorized the sale and the payment in advance for space on the galleon of the coming year. Alearaz, in a report to the king, stated that the aidores 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 asMorga's Sucesos, Blair and Robertson, XV, 205-237. 39 Martinez de Zuniga, An historical view, I, 239-241. 246 Audiencia and Governor: Military Jurisdiction in otherwise preparing the city for more adequate defense.*" Under the leadership of the able soldiers and captains- general, Juan Nino de Tavora (1626-1632), Sebastian Hurtado de Corcuera (1634-1635), and Diego Fajardo (1644-1653), the audiencia interfered but little with the notable military op- erations 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 audi- encia 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 garri- son, 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 as- suredly lead to the greater disaster of the loss of the Philip- pines.*^ The important part played by the audiencia in the defense of Manila against the British in 1762 will be discussed in an- other 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, or- ganized 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 audi- encia and governor, and as such his actions were legal. His 40 In recommending the services of Licentiate Madrid y Luna, oi4or 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). 41 Formosa lost to Spain, Blair and Robertson, XXXV, 128-162. The Audiencia's Military Activities 247 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 audi- encia, with responsibility for matters of defense and military administration may be cited as an additional reason for its reluctsmce to entirely abandon its interest in these affairs on the arrival of a governor. Notwithstanding this, and the addi- tional fact that the king and governor frequently consulted the audiencia on military affairs, the tribunal did not always seek to retain preeminence 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."*- 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 Grovernor 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 ac- cused of removing the commander of one of these ships, sub- stituting his fifteen-year-old brother, Luis Fajardo, at a salary of 40,000 pesos. The audiencia contented itself with remon- strances against these wrongs, but it made no attempt to in- terfere.*^ 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 42 Audiencia to the King, July 15, 1598, A. I.. 67-6-18. 43 Audiencia to Felipe III, August 8, 1620, Blair and Robertson, XIX, 77-89. 248 Audiencia and Governor: Military Jurisdiction affairs. The Chinese were regarded with great suspicion by the residents of Manila, who lived in constant fear of an out- break in the Parian, or of a descent upon the coast of Luzon by Chinese from without. The problem of the Chinese was therefore essentially one of defense, and as such it was en- trusted to the governor and captain-general. Nevertheless, the audiencia claimed the right to intervene in many matters per- taining 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 Chi- nese, 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.** This law forbade the alcaldes ordiruwios to exercise jurisdiction over suits of the Chinese in the Parian, but it ordered that all cases involving them should be tried by a special alcalde of the Parian with right of appeal to the audiencia. A special judge was thus created by this law, with jurisdiction over the Chinese.*^ 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 administra- tion. This necessity was partly based on econon\ic considera- ii Reoojyilacion, 5-3-24; also A. I., 105-2-1. 45 Reoopilaci&n, 2-15-55. Don Antonio de Morga, writing in his SucesO'S in 1609, described the Chinese government of the Parian as follows: "The Chinese have a governor of their own race, a Christian, who has his oiBcials 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 Parian, and from all these to the Audiencia, which also gives especial attention to this nation and what- ever pertains to it" (Morga's Sucesos, Blair and Robertson, XVI, 197). See W. L. Schurz, "The Chinese in the Philippines," in TTi* Pacific Ocean in history, 214-222. The Chinese 249 tions, and partly on racial and religious reasons; it was de- signed essentially for the protection of the Spaniards.*^ On the basis of the above law of April 15, 1603, the audi- €ncia immediately proceeded to concern itself with the govern- ment 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. Com- plaints 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 any- thing relative to the government and administration of the Parian, or with the Chinese who might come to the Islands for the purpose of trade, except at the solicitation of the governor.*' In the letter accompanying these orders, the king informed Governor Acuna that although the Chinese in the Parian were under his charge, he was to take no important steps for their government without first consulting the audi- encia. 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 es- tablished as the fountain of authority in Chinese affairs, with the oidores in a secondary position. 46 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. *T Cedula of December 1, 1606, A. I., 105-2-1. 250 Avdiencia and Governor: Military Jurisdiction On June 12, 1614, Philip III re-enacted the above law with some modifications. The fiscai was made legal protector of the Chinese. He was ordered to advise the alcalde of the Parian in legal matters pertaining to them, and the alcalde was to take no important steps without the advice and assistance of the fiscal.*^ The governor was ordered not to allow any ordinary or special judge, alcaide 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 Parian. 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 fre- quently rendered entirely inapplicable. In this case, for ex- ample, the evident object was to prevent the oidores from inter- fering in Chinese affairs, thus guaranteeing the government and administration by officials who were endowed with knowledge and understanding of their racial characteristics and peculiari- ties, 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 audieneia was thus given a basis for intervention in the government of the Chinese whenever it suited the convenience of the magistrates. This defect is empha- sized here because this particular exception justified the inter- vention of the audieneia on many occasions, and was a cause of continual contention between the governor and the audieneia in Chinese affairs. Although it is difficult to settle conclusively the question *8 Recopilacidn, 6-18-6. Administrative Authority 251 of the extent of jurisdiction which the governor and the audi- encia, respectively, exercised over the Chinese in the Parian, 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 enter- tained an appeal from the Chinese over the head of the governor, practically disregarding the latter, and for making recommenda- tions relative to the Chinese and to military affairs, which ques- tions were entirely outside its province.*^ 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 in- structions of Governor Silva.'° 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.^^ It is to be noted that in this case the point at issue was not that the audiencia was interfering with a China- man 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 *9King 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. 30 Royal instructions to Geronimo Ortiz y Capata, February 4, 1631, A. I.. 105-2-1. 51 King to the Audiencia, December 4, 1630, A. I., 105-2-10. 252 Audiencia and Governor: Military Jurisdiction with the Chinese upon a military basis, hence the authority of the governor. i 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, cedillas 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 state- ments 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 Philip- pine 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.^^ 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 Parian with the forces of the expected invaders. Silva was ordered to take no steps with- out first consulting the oidores.^^ 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 52 King to the Audiencia, August 8, 1609, A. I., 105-2-1. 53 King to Governor Silva, March 27, 1616, A. I., 105-2-1. Advisory Functions 253 many Chinese had been admitted to the Islands and that there- after only enough should be permitted to man the ships and carry on trade.'* 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 Parian, a series of memorials, letters and petitions, complaining against the rigor of Spanish admin- istration and requesting that they might be governed by man- darins, governors and alcaldes may ores 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.^^ On July 27, 1713, the tri- bunal, 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 Parian 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.'' This affords one illustration out of many which could be cited of the legislation of the audiencia in Chi- nese affairs.^^ On May 14, 1790, the king wrote to the "governor and presi- dent of the royal audiencia" and also to the tribunal, ordering the re-establishment of the Parian. This Chinese quarter had been abolished since 1756. It was agreed that the Chinese in =* King to the President and oidores, July 25, 1619, A. I., 105-2-1. 53 King to the President and oidores, December 21, 1630, A. I., 105-2-1. 56 Acuerdo of July 27, 1713, A. I., 68-4-17. 57 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. 254 Avdiencia and Governor: Military Jurisdiction 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.^^ This tax was to be collected by the cabecilla of the Chinese, a sort of local leader, subject to the alcalde of the Parian, This cedula, the king stated, was originally suggested by the acuerdo of the audiencia, and had been submitted for royal approval, which had been duly con- ceded. 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 cedulas 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 reai haci- enda at Manila in 1787, the incumbent of that ofBce 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,'^ but after the union of the governorship with the superintendency, 58 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, Lll, 57-58, note). 69 Consulta of June 28, 1786; Intendant Carvajal to King, Decem- ber 31, 1787, and other letters; A. I., 107-5-15. Judicial Authority 255 no further occasion of dispute arose. During the greater part of the nineteenth century, the peculiar nature of the office of in- tendant 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 admin- istration of justice among the Chinese, and we must note certain typical disputes and disagreements which arose in that con- nection. That the audiencia had authority to try cases in second instance involving the Chinese has already been stated. Like- wise 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 Bolivar y Mena was designated to try in first instance charges which had been made against Chinese bakers in the Parian, who were said to have put a quan- tity of powdered glass in bread which they had made for the Spaniards. This case was regarded as one of more than ordi- nary significance, as involving treason and insurrection, and it was accordingly tried by an oidor who had been especially dele- gated for the purpose by the governor."" 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 Parian on a criminal charge.®^ The detention of the Chinaman was conceded to be justifiable, but Governor Marquina alleged that Moreno had entirely disregarded the cedula of October 11, 1784, which had ordered that in case of the arrest of any royal official, notifica- tion should be served to the governor in sufficient time for him to take the proper precautions .for the safeguarding of any of 60 Testimonio tfe wutos sobre sublevacidn de los saaigleyes, sub- stanciaAos y Oetermina&os por el oidor, Don Pedro Sebastian Bolivar y Mena, 1686-1600, A. I., 68-1-27. 61 Marquina to the King. June 30, 1793, A. I., 107-5-22. 256 Aiidiencia and Governor: Military Jurisdiction His Majesty's property which- might be in the care or under the protection of the ofScial in question. He said that this par- ticular arrest was typical of the petty interference of the oidores and illustrative of the slight pretexts upon which they fre- quently upset the whole system of government and caused untold annoyances. On account' of the many difficulties in the collec- tion of the tribute which had presented themselves as a conse- quence of the arrest of this particular Chinese official, and be- cause the latter was especially efficient, the governor had asked the audiencia to permit the caiecilla 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 col- lected 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 admin- istrative matters which it did not have is illustrated by a case which came up in 1794 and lasted through twelve years of liti- gation. In the year aforementioned, the ayuntamiento of Manila brought suit before an alcalde ordinario of the city against a Chinese, Augustin 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 ordinwrio, 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 pro- vider of meats {ahastecedor de came) for the city. Instead of Judicial Authority 257 appealing the case as one of law, the ayuntamiento wrote to the king on January 19, 1796, alleging that the audiencia had inter- fered 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 ex- pression of his approval of the stand of the ayuntamiento, being of the impression that the question at stake was one of appoint- ment only.®^ At the same time the king demanded a full ex- ^ planation 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 ayunta- miento in due time to explain why it had misrepresented the case. After a long period of acrimonious correspondence be- tween the Manila authorities, the ease was concluded on Feb- ruary 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.®^ The king informed the tribunal that it had been entirely regular in its proceedings, having reversed the decision of the alcaide 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 eases involving the Chinese. These cases, when they originated in the Parian, 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 62 King to the Audiencia, November 30, 1797, A. I., 105-2-18. 63 King to the Audiencia, February 19, 1806, iUd. 258 Audieivcia and Governor: Military Jurisdiction 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 aijd 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 investiga- tion of the principles underlying them and the arguments ad- vanced by the contending parties will go far towards explain- ing 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, jealou^ of power and advancement, and the desire on the part of all, and particularly of the governors, to enrich themselves. Officials tended to re- gard 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 iiscales 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 260 Audiencia and Governor: Conflicts of Jurisdiction 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 sub- mitted 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 Eonquillo de Penalosa 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.^ We have also given attention to the charges made by Oidor Davalos 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 dis- 1 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 oflSce from Spanish times to the present. Dr. Barrows states that Miguel Lopez de Legaspi became governor and captain-general of the Philippines when the office was created in 1567. The original cidula of establishment and appointment is in Blair and Robertson, III, 62-66, and bears the date of August 14, 1569. See Bar- rows, "The governor-general of the Philippines under Spain and the United States," in The Pacific Ocean in history, p. 239. Abuses 261 cord 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 in- stitutions 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 audi- encia to prevent this was a source of complaint, especially during the early years of the colony.^ Dishonest proceedings in the sale of offices, including the retention of the money re- ceived and the disposal of offices to friends for nominal sums, were among tlie 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 re- peatedly in the residencias of governors and magistrates. An examination of the correspondence of the seventeentli 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 -'Fiscal to the King, July 21. 1599, Blair and Robertson, XI, 114, 115: Maldonado to the King, June 28, 1605, ibid., XIII, 307-315. 262 Audiencia and Governor: Conflicts of Jurisdiction 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 adminis- tration 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 com- plaining against the excesses of the governor in his own admin- istrative 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 reaies, 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 Acnisatimis Against Fajardo 263 the cargoes in advance of the merchants of Manila.^ There is no evidence that the tribunal was able to put a stop to these abuses. Oidor Alvaro 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 send- ing complaints to Spain against him by examining all the out- going mail before it left the colony. The oidor showed that wastefulness, private trade, bribery, carelessness in the admin- istration of the exchequer, neglect of shipbuilding, corruption, and personal violence were among the misdeeds of this gov- ernor. 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 voy- age by the fiscal and two oidores.* Messa said that the gov- ernor 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 audi- encia on the governor 's appointing power. The audiencia relieved the secretary of government, Pedro Munoz, 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, or- dering that offices should be bestowed only upon persons of such qualities and attributes as met with the approval of the 3 Audiencia to Felipe III, August 8, 1620, Hid., XIX, 87-89; see also Messa y Lugo to King, July 30, 1622, ibid., XX, 161-163. i Messa y Lugo to the King, July 30, 1622, iUd., XX, 162-163 ; see Recopiladdn, 9-45-3. 264 Andiencia and Governor: Conflicts of Jurisdiction royal justices.*^' 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 ap- pointment. Although we have seen in a former chapter that the governor consulted with the audieneia when an important appointment was to be made, the audieneia 's intervention in matters of appointment depended largely on the strength of the tribunal and the relations existing between it and the gov- ernor. During this administration the audieneia was notori- ously weak and harmony did not exist. The memorial presented by Messa y.Lugo was chiefly con- cerned with the story of his own arbitrary arrest and imprison- ment 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 audieneia. 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 appoint- ment 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 audieneia 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 *a Recopilacion, 8-20-1. The Governor's Ahtises 265 legality of the governor's procedure. According to his conten- tion, the previous law authorizing the governor to name an alcalde ordiTiario 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 con- demnations, if they were personal or corporal, should be con- firmed by the Council of the Indies.^ Messa therefore claimed that the governor had no authority to proceed with this case alone, since ''those nearest (your Majesty), as are the auditors {oidor es), cannot be imprisoned or proceeded against except by your Majesty or the royal Council, or by your order." The aider 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 superlntendency 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 pro- ceed, arrest, sentence and execute justice in criminal cases affecting the auditors.6 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 gov- ernor had broken open the chest of the audiencia, extracting a large sum and spending it without accounting for the expendi- ^ Recopilacidn, 2-16-43 and 44. 6 Messa y Lugo to the King, op. ait, 186. 266 Audiencia and Governor: Conflicts of Jurisdiction ture, 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 abso- lute 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 in- capacitated 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 gov- ernor, 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 audi- encia should be empowered to act in his place. This belief he justified by the statement that the audiencia had already suc- cessfully acted in the capacity of governor and had adminis- tered 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, al- though it was opposed to him. In no less than three cases gov- Defeat of the Audiencia 267 ernors, in order to comply with the law requiring that there should be at least one oidar 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 con- fine 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 ap- peals made by the audiencia. The oidores, instead of obtaining the desired reform measures, were usually rewarded for oppos- ing a tyrannical governor and appealing to the court for sup- port, 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 oiBcials of the colony was much more important than good government. Usually, however, in these struggles between the audiencia and the governor the conten- tions of one side or the other were based on law and justice. The effectiveness of the Spanish colonial government would 268 Audiencia and Governor: Conflicts of Jurisdiction 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 import- ant phases of the relationship of the governor and the audi- encia, 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 con- sulting 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 fiterza and to pre- vent ecclesiastical judges from infringing on the civil jurisdic- tion. Juan Sanchez, 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 audi- encia 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. ' '^ 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, how- 7 Blair and Robertson, XXXIX. 177. The Governor as Vicc-Patraii 26^ ever, he forced the audieneia 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 re^encws of the oidores. Pardo was recalled from exile, and the audieneia was forced to legalize his restora- tion to his see on October 25, 1684. Thus the new governor and the archbisliop triumphed over the combined forces of the ex-governor and the audieneia. It is clear that the power of the new governor was derived chiefly from his status as royal vicepatron, acting in con- junction with the archbishop. This power Vargas had for- merly employed in co-operation with the audieneia, and thereby both had gained their victory over the prelate before the ar- rival 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 audieneia. The combination of a governor and an audieneia 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 audieneia 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 gov- ernor.* 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 him- self with it. ileanwhile he literally held the residencia over their heads. s In accordance with Recopilacion, 5-15-2. 270 Audiencia and Governor: Conflicts of Jurisdiction 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 tribuns^l against the ecclesiastical penalties imposed by the archbishop, the governor signed the act ordering the absolution of his prede- cessor. 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.' His pacificatory efforts also re- sulted 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 pro- ceed 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 arch- bishop, and obtaining advance information of the royal con- demnation of the audiencia for its acts in the banishment of Pardo, the governor arrested, imprisoned, and exiled the magis- trates, temporarily reconstituting the tribunal with local and more subservient members.^" Curuzaelegui 's proceedings were thenceforth as high-handed as they had formerly been concili- atory, 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 apdi- » Foreman, Pfiiliptnne IsJOnds, 60; Blair and Robertson, XXXIX, 208-219. 10 The governor arrested and imprisoned magistrates Zalaeta and Lezana before the arrival of Valdivia. Oidor Viga was exiled to Samar and Bolivar 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 resiAencia was taken and his property confiscated (Blair and Robertson, XXXIX, 135, 231-233, 277, 281-295). Defeat of the Audiencia 271 encia. Just before his imprisonment, Magistrate Bolivar, in a letter to the Minister of the Indies, described the chaos ex- istent in Manila as follows: Here there is no will, save that of a governor, since he is abso- lute, we all had to acquiesce, under compulsion and pressure, in the restitution of the archbishop;" ... to state the case in few words, the archbishop does whatever suits his whim, without there being anyone to restrain him. 12 Fray Luis 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 Bolivar, par- ticularly for their opposition to him in matters of administra- tion 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.^^ 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 11 Bolivar to vaidez, June 15, 1685, Hid., 221. 12 Ibid., 223. 13 Pimentel to Rodriguez, 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. 272 Audiencia and Governor: Conflicts of Jurisdiction authentic statement of the evil deeds of these years can be sent to the court for the scriveners are intimidated and will not give oiScial statements of what occurs, except whJtt may be In favor of the governor and the archbishop. Itenu, (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." 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 ob- tained 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 common- wealth. "^^ The Par do controversy and its consequences show the ex- tremes 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 instruc- tions even more recent than those of the governorj 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 con- duct 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 14 Pimentel to Rodriguez, February 8, 1688, XXXIX, 239-240. i5/6id., 242-243. The Need of an Audiciicia 273 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 ex- tensively. 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 con- stituted 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 Bustaiaante (1717-1719). The audiencia was reduced to a deplorable state of helplessness and inefficiency on this occasion, and the circumstances sur- rounding 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 Busta- mante, after his arrival in the Islands, was to take the resi- dencia 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 274 Audiencia and Governor: Conflicts of Jurisdiction 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 audi- encia, were found to be serving without financial guarantees. ^^ Bustamante immediately took steps to re-organize the gov- ernment and to place the finances of the colony on g, 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.^' 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, 16 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 in- vestigated. Wholesale bribery was the leading charge against him. He had levied blackmail on aloalAes mayores, enoomenderos, and Chinese and Spanish merchants. He was also charged with the misuse of gov- ernment 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 Di6s, in Cavite, in 1736. 17 Government of Bustamante, Blair and Robertson, XLIV, 151; this account (pages 148-165) is a summary of Concepcifin, Historia general, IX, 183-424; see also Montero y Vidal, Historia general,!, 410-429. Busiamante and the Aiidiencia 275 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 investiga- tions 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 prece- dent 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 in- terruption and without that loss to the commonwealth which would come from the absence of a tribunal.^* 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 con- stitute another.^'' It seems, however, from an investigation of 18 Consulta Sel gobiemo de Filipmas sobre la formacidn de aquella audiencia, 2 de Mayo de 1718, Zulueta Mss., Manila. 19 Report of Archbishop de la Cuesta on the Bustamante Affair, June 28, 1720, Blair and Robertson, XLIV, 182-195. 276 Audiencia and Governor: Conflicts of Jurisdiction 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 Recopilacion de Indi-as,'" 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 recog- nized law.^'^ 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 govern- ment, 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 vieepatron 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 ap- pointment were incapacitated from service.-^ The opinion of the Dominicans of the University of Santo Tomas 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 20 Recopilacidn, 2-15-11. 21 Ibid., 2-16-29. 22 Contestacion de la Compania de Jesus, de Mayo de 1718, Zulueta Mss., Manila. Advisory Functions 277 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.^^ Though in Sicily and Naples this right is feranted, 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 im- pede their jurisdiction.24 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 com- manded to do so by the Council of the Indies. Whatever disci- plinary 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.-^ They cited, in support of their argument, an instance in which the king reproved Galvez, the Viceroy of New Spain, because, without the authority of the Council, Galvez had suspended a magistrate of the Audiencia of Jlexico. whom he should have honored and to "whom he should have accorded the treatment of a colleague. "^° 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. •yo Recopiladon, 2-16-93. =* Opinidn de la Unirrersida-d de Santo Tomds, 9 de Mayo de 171S. Zulueta Mss., Manila. 25 Recopilacidn, 2-16-44. =6 The legal phases of this question together with the opinions of the royal fiscal and the leading councillors are set forth in the con-sulta of the Council of the Indies of March 18, 1720, A. I., 68-2-8. In this con- salta an effort is made to fix responsibility for the murder of the gov- ernor, and to determine the legality of his acts. 278 Aiidiencia and Governor: Conflicts of Jurisdiction 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 occa- sion of the coming to the Islands of the Patriarch of Antioch,^'' 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.^* He arrested and imprisoned the guilty magistrates and created a new tribunal out of his own clientele, leaving only Villa, a former magistrate, in ofSce. The latter protested against the action of the governor, and retired to the convent of Guadalupe, near Pasig. Informed that there was a conspiracy against his life and needing the counsel of some per- son, 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 27 This refers to the reception of the French papal delegate, Touron, 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. 28 Fr. Diego de Otazo, the Jesuit confessor of Bustamante, in a let- ter to his superior, 'described the power of the governor and his treat- ment 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 suflBcient; for either he hides them, or he does not ful- fill 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] comniunities (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 re- mains 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.) The Suppression of the Audicncia 279 nomination would have given it. In order to remedy this de- fect he released Torralba, the guiltiest of the former magis- trates, 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 con- trary 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.^^ The newlj^ constituted audicncia 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 audicncia 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 gov- ernor over the audicncia, and his power to deprive regularly appointed magistrates of their positions and to constitute a new audicncia if he chose, notwithstanding the prohibition of the laws, and, second, the complete control by a governor over an audicncia which he had created. It is not necessary to state that the Madrid government discredited all the later acts 29 Recopilacidn, 2-16-93. 280 Audiencia and Governor: Conflicts of Jurisdiction of Bustamante's administration, including the recall of Tor- ralba, who was a self-confessed criminal under ari"est, when re- stored by the governor. There is nothing to show, however, that the king disapproved of the acts of Bustamante in creat- ing 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 arch- bishop-governor, neglected to investigate the causes of the gov- ernor'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 im- munity, the preservation of this city, the self-defense of its inhabi- tants, 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.so 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 illustra- tion of the subserviency of the audiencia to the governing power, on this occasion a churchman, who had actively partici- pated in the removal of his predecessor. An interesting though ineffective protest was made by the audiencia against the appointment of Jose Baseo y Vargas as Governor of the Philippines in 1778. A communication was so Government of Bustamante (from C!oncepCi6n), Blair and Robert- son, XLIV. 161. Opposition to Basco y Vargas 281 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 com- plaint as an absurditj^ after which certain w'dores conspired to bring charges against Basco y Vargas, to arrest him and to make Sarrio governor. The latter had been ad interim gov- ernor 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.^^ This was only a prelude to the discord which existed throughout the administration of this able governor. The king was obliged to issue special cedulas on various occasions, order- ing a cessation of the perpetual discord. ^^ Basco y Vargas formed a society for the advancement of the economic interests of the Islands,^^ and in that, as well as in his successful organ- ization 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."* 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 con- 31 RecopiUucidn. 2-16-43, 44, 46. 32 King to Basco y Vargas, December 10, 1783, A. I., 105-2-10. is SociedaA (7« los Amigos del Pais, 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. -4 Audiencia to the King, December 17, 1788, A. I., 106-4-17. 282 Audiencia and Governor: Conflicts of Jurisdiction test over jurisdiction which ensued between the governor and the intendant, the governor and the audiencia acted in com- plete harmony, because this new official threatened their mutual interests and prerogatives.^' Outlawry and highway robbery became so common through- out the Islands during the term of Basco y Vargas that the governor appointed prosecutors, sheriffs, and judges-extraordi- nary to assist in the preservation of order, which the alcalde's may ores were not able to accomplish by themselves. The audi- encia, feeling that this was a grave intrusion upon its pre- rogatives, appealed to the king and succeeded in bringing the sovereign displeasure upon the head of the governor. The royal cedula 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 gov- ernor was warned, furthermore, to abstain from meddling with the jurisdiction of the audiencia. ^^ 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 Philip- pine Islands, he was obliged to subscribe to two oaths, one as governor, and the other as president of the audiencia, buti he was warned by a special decree of the king to keep from con- fusing these two functions as former governors had done." 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 govern- ment in which he had relations with the tribunal. Marquina was said to have repeatedly disregarded the acuerdo and to ss Expedientes sobre establecimAento de intenciencias y subintenden- cias en Filipinos, A. I., 105-1-17, 107-5-18, 105-3-5, 146-6-13. 36 King to the Audiencia, August 1, 1788, A. I., 105-2-lC. 37 King to Basco y Vargas, October. 9, 1777, A. I., 105-2-9. Marqiii)M and the Audiencia 283 have done as he pleased in matters wherein the audiencia had been or should have been consulted. There was a bitter con- test in 1789, shortly after the arrival of this governor, because he had excused various officials of red hacienda from appear- ing 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 govern- ment. 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 wit- nesses, 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."* In 1790 Marquina recommended the abolition of the audi- encia 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 ad- vancement. In the place of an audiencia he suggested the sub- stitution of three asesores, one for civil and criminal cases, one for real hacienda, and another for commerce and the cmi- sidado. 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 eases arising in the Islands.'"' 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 33 Audiencia to the King, December 23, 1789, A. I., 106-4-17. 39 Montero y Vidal, Historia general, II, 324, note. 284 Audiencia and Governor: Conflicts of Jurisdiction continual disagreement had existed between these two authori- ties throughout the entire term of the governor, and the bring- ing 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 subse- quent 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 Busta- mante. 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. JBut these were exceptional cases, and during the greater part of the long period of three hundred years the relations be- tween 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 dis- pute with the governor, was able to offer a formidable resist- ance 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 resideiwias of the magistrates, neverthe- less it may be said that either authority was sufSciently power- ful 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. Practi- cally 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 de- mands, however, that the other side should be presented in the Criticisms of the Aiidiencia 28& same manner.*" Reference will now be made to a few of the many memorials heretofore unquoted, which were sent by various gov- ernors in protest against the alleged excesses of the audiencia. As a first instance we may note the criticisms which Grov- ernor Gomez Perez Dasmarinas made of the first audiencia 'which served from 1584 to 1589. We shall also consider the- complaints which Dasmarinas made against Pedro de Ro.ias, former oidor and later tenieiite and asesor of that governor (1589-1593). Dasmarinas came to the colony shortly after the first audiencia had been suppressed and from his correspond- ence 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, lie- ( 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 unahle to he 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 them- selves, 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.*i 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 Vice- *oFor 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. *i Dasmariiias to Felipe II, June 6, 1592, Blair and Robertson, VIII,. 253. 286 Audiencia and Governor: Conflicts of Jurisdiction Toy of Nueva Espana, I would have proved to your Majesty the investments of past years." He concluded with the state- ment that Kojas 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 Eojas 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 Acuna 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 favor- ing its removal was that an appreciable saving would be real- ized thereby. The audiencia was, moreover, very unpopular in Manila. He alleged that the name of (wdor 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 wliat your Majesty has ordered, have at- tempted 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 neg- lecting 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 be- tween me and the Audiencia-''^ 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 dis- pleasure of the residents of the colony on account of what 42 Acufia to Felipe III, July 15, 1604, Blair and Robertson, XIII, 232. Criticisms of the Audiencia 287 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 administra- tive session, Acuna alleged, existed in name only. Acuna 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 accom- panied 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 rela- tives of oidores, the governor was placed in such a position that if he did not allow these persons to hold office, the magis- trates would take revenge by opposing him at every turn, thus ruining the success of his administration.*^ 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.** 43 Acuna 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 ihe governors, in order not to dis- please the auditors, give up their claims and dare not insist upon them" (i6id., 234). "Acuiia 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 common- wealth, for they take up the whole cargo. They desire to be preferred 288 Audiencia and Governor: Conflicts of Jurisdiction In view of all these abuses and evils which, directly or indirectly, proceeded from the audiencia, Acufia 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 essen- tially military, by virtue of its location and isolation. Acuna contended that all authorities and departments of the goveVn- raent should therefore be dependent on a miliary 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 punish- ments should not be enforced so rigidly as in more settled parts, yet the magistrates of the audiencia had failed to under- stand that their functions in a colony of this character should be in any way different than those of a similar tribunal in Spain. Acuna 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 gov- ernor had wished to take. He had thus been rendered power- less to exercise sovereignty which rightfully belonged to him. 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" (.iHd., 234-5). Acuna testified that the magistrates had rendered life unpleasant for the residents of the colony, because of their selfishness. He con- tinued: "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). Removal Becommended 289 and which, if put into eifect, 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 de- rived from a suppression of the tribunal. He stated that the colony was short of money, a condition of which the magis- trates 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.*^ "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*® had caused a diminution of 46,000 pesos in the commercial duties collected,*^ and the *5 Their salaries must be preferred, he wrote, "even if it be from the stated fund for the religious orders, bishops, ministers of instruc- tion, and for the military forces, who are before them in order, — they have difficulties and misunderstandings with the royal officials (t6ierlod 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 (Recopila- ci6n, 2-16-63). This last-mentioned privilege was abused, however, imtil 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 salleon "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 320 Audiencia and Governor: The Ad Interim Rule 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 recommenda- tion 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.^' This memorial would seem to indicate that the audiencia, when acting in the capacity of governor, exer- cised considerable authority and assumed entire responsibility for the commercial and financial affairs of the colony. Zuniga, after describing the success of Oidor AlmajQsa 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 Rodrlgo Vivero ot 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 Governor Arandia, caused much opposition on the part of the au- diencia (ExpeAlente 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 onhiMo of Manila. On March 27, 1714, they were conceded the right to ship 132 fwrdAllos, the specifications of which were not given. It was mentioned, however, in the consulUi 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 oonsulta of October 7, 1789 (A. I., 105-3-5). The c6duTa of April 25, 1803, conceded five holetas. each valued at one hundred pesos, to each regidor. The oidores were each allowed ten ioletas by this cMula (A. I., 106-2-15). 35 Audiencia to Felipe III, July 6, 1606, Blair and Robertson, XIV, 147. Exclusion from Military Control 321 for one year, when he delivered up the insignia of his office, and re- turned to Mexico.36 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 exer- cised 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 ex- ploits, 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 Andres 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 Geronimo de Silva, who was especially desig- nated for the post by the royal order of March 20, 1616.^^ He was not an oidor, however, but had served as governor of Ternate, having recently returned from the Moluccas.^® While the post of captain-general devolved upon Silva, the audiencia retained control of administrative affairs in the col- ony 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, 36 Martinez de Zuuiga, An Mstorical view, I, 230-331. 37 IMd., I, 239, et seq.; Montero y Vidal, Historia general, I, 162, et seq. 38 Martinez de Zuiiiga, op. cit., I, 241; Montero y Vidal, op. cit., I, 166. 322 Audiencia and Governor: The Ad Interim Rule 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, in- cluding 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.^' Alcaraz, senior oidor, who was legally responsible for defense, was compelled to an- swer 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.*" Although Oidor Alcaraz seems to have acquit- ted 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 re- sponsibility 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 pre- vented from leaving the Islands. Governor Fajardo has left us a number of comments and criticisms of the work of the audiencia as governor. His ob- servations 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.*^ Fajardo 's com- ments relate to the abuse of the appointing power by the i^Inventwrio de Resicbeneias, A. I. op. cit. 40 King to the Audiencia, August 9, 1609, A. I., 105-2-1. 41 See Chapter VII, notes 49 to 56. Defects 323 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 oiBcials for life, which was forbidden by the laws, since the audiencia was only permitted to fill oflSces for the period of its rule.^- The audiencia had also infringed upon the prerogatives of the governor by the permanent bestowal of encom,iendas. Fajardo stated that when he arrived in the Islands he found all the offices and encomiendns filled with friends and depend- ents 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 in- stance 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 cedtUa or law should be promulgated relative to these matters in the Philip- pines.** The difficulty of fixing responsibility for the loss of the galleons in the expedition to the iloluccas led Fajardo to criticise the practice of allowing the audiencia to assume con- trol 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 affaii-s, which could not be successfully carried out by any but a military man. He emphasized the necessity of locat- 4= Becopitacton, 2-15-56: 3-2-47; 3-2-11 and 12. 43 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 cedillas 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 govern- ment ad interim (.RecopiJacidn. 2-15-56; 3-2-47: 3-2-11 and 12). 324 Audiencia and Governor: The Ad Interim Rule ing 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 gov- ernor and captain-general is absent, they might succeed to those duties."** He considered it advisable that during vacan- cies, as well as when the regular governor was present, au- thority should rest with one person and not be scattered* or divided among a number of magistrates. Geronimo 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 responsi- bility 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, Fer- nando de Silva, who arrived in 1625. The latter commanded the military forces, while the audiencia administered the gov- ernment.*^ 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 par- 4* Fajardo to Felipe III, August 10, 1618, Blair and Robertson, XVIII, 124-125. *5 Martinez de Ztiniga, An Jiistorical view, I, 250-251. The latter Silva was a relative of the viceroy, the Marques 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 For- mosa, Silva having ordered the alcalde mayor of CagaySn 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. Zuiiiga says that the latter "exerted themselves with such zeal, that in a short time they built several towns, and w^ere 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). Defense 325 tially constructed when the audiencia took over the government. It is interesting to note that the oidores, although not collec- tively 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, conse- quently 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 Philip- pines, and the danger of an outbreak of the Japanese alreadj' within the colony in conjunction with an attack by those with- out, were all considerations which induced the audiencia to take responsibility upon itself in this matter.*® The official correspondence of the governor following imme- diately upon the administration of an audiencia is always valu- able as showing the state of affairs under the preceding rule. That of Fernando de Silva coincides closely with the corre- spondence of Governor Fajardo in charging the audiencia with many misdeeds, chief among which were the abuse of the ap- pointing power and the concession of encomiendas without au- thorization. Silva, on his accession to the governorship, also found the finances of the colony in a bad condition, great waste 16 Audiencia to the King, July 24 and August 15, 1624, Blair and Robertson, XXI, 84-97. 326 Audiencia and Governor: The Ad Interim Rule 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 aU the officials appointed by Fajardo, filling their places with their friends. "' 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 oflSce of captain-general, carry- ing 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 Matlas Plores y Cassila (also an oidor). Others were assigned to brothers of the said Don Matlas, the fiscal, and other auditors, except Don Albaro (Messa y Lugo), who re- fused to have anything given to his household. Upon seeing the ille- gality of these appointments, I issued an act declaring them vacant and restoring those posts to those who had held them before.^s That the king had not entirely lost confidence in the audi- encia, notwithstanding the above complaints, is attested by the instruction issued by the Council of the Indies to Francisco de Eojas y Ornate, royal visitor to the Philippines.*^ This com- munication, which was dated August 17, 1628, approved the stand which the audiencia had taken in insisting that all money " Silva to Felipe IV, August 4, 1625, Blair and Robertson, XXII, 62-78. *8 76itf., XXII, 66. The governor estimated the services of the mag- istrates 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: "Ge- ronimo 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 .luan de Valderrama does as his wife says; and Don Matlas 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 com- munity, which is always disturbed by him" (Silva to Felipe IV, July 30, 1626, Blair and Robertson, XXII, 102). 49 Instructions to Francisco de Rojas y Ornate, August 17, 1628, A. I., 105-2-1. Limitations 327 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 ex- penses 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 audi- encia had no right to intervene in either of the above matters, hut in. this Silva was not sustained, Kojas y Ornate being in- structed to see that Governor Tavora respected the action of the audiencia in the two particulars referred to.^° The audiencia assumed management of political affairs in 1632, on the death of Governor Juan Niiao 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 tem- porary charge of military affairs. He was succeeded the fol- lowing 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 govern- mental or military affairs." It was under the rule of this gov- 50 See Royal Instructions to Rojas y Ornate and Tavora (dupli- cates), June 4, 1627, A. I., 105-2-1, 51 Martinez de Zfiniga, An historical view, I, 2G4-266, Montero y Vidal, Historia general, 1, 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 Espaiia authority, in case of deaths and vacancies in this government, to send commissions to those who are to have charge of military mat- ters; 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). 328 Audiencia and Governor: The Ad Interim Rule ernor that important expeditions were undertaken against the Mores 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 Geronimo de Silva,- governor of Ternate, had taken charge of military affairs dur- ing vacancies in the regular governorship. Temporary ap- pointments had been made on two different occasions by the Marques de Cerralbo, Viceroy of New Spain, once in the send- ing of Fernando de Silva after the death of Governor Fajardo, and on this occasion, when Cerezo de Salamanca took the place of Governor Juan Nino 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 produc- tive of the most satisfactory results. It was not to be ex- pected, of course, that a magisti:ate 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 re- stricted to judicial and administrative functions. In 1633, on the accession of Cerezo de Salamanca, the audiencia was de- prived of the right of intervention in the last mentioned activity, and was confined to its judicial duties alone. This was confirmed by the cedula, 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 .^^ Nevertheless, considerable opposition to this method of fill- 52 Cidula of January 30, 1635, A. I., 67-6-3. Criticisms 329 ing 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 ilexico. Corcuera, how- ever, seemed to regard the audiencia as incapable of govern- ment, for he claimed that in the brief term of a year in whicli 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 Pajardo, namely, that they had issued duebills in payment of debts aud 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 hy 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 .^^ 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 JMauila, Formosa, and the Parian. 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 gov- 53 Corcuera to Felipe IV, June 30, 1636, Blair and Robertson, XXVI, 150 et seq. 330 Audiencia and Governor: The Ad Interim Rule ernor's office. The marked tendeacy of these commanders was to continually underestimate the administrative and political phases of their positions. The plan of Coreuera was not adopted, however, and the viceroy continued to appoint tempo- rary 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 unfaitMul 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.5* Fajardo urged that the audiencia should he permitted to re- tain 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.'^ 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 tem- porary governors had done, with the sole purpose of ex- ploitation.^" 54 Fajardo to the King, July 10, 1651, A. I., 67-6-9. 55 Ibid. 56 Governor Lara to the King, July 19, 1654, A. I., 67-6-9. The Viceroy's Intervention 331 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 audieneia to the king on July 19, 1654.^' The audieneia, 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 con- nections made it impossible for these temporary rulers to officiate properly as presidents of the audieneia, or to admin- ister the affairs of the government with diligence and im- partiality. 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 par- ticular care and vigilance in all that pertains to military affairs, endeavoring to keep the presidios well stocked and pro- vided 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 gov- 5T CMula of April 2, 1664, with testimonios of former cedulas and correspondence on succession, A. I., 67-6-3. 332 Audiencia and Governor: The Ad Interim Rule ernor in advance of the death of the incumbent. Although the audiencia assumed the government with partial legal justi- fication from 1593 onward, the period from 1664 to 1719 may rightly be said to constitute the era of the audiencia 's author- ized rule. An occasion for the exercise of the new law occurred in 1668, when Governor Diego de Salcedo was arrested and im- prisoned 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 mili- tary command. Coloma had been commissioned as magistrate of the Audiencia of Manila before Montemayor, who main- tained his claim to the headship of military affairs on the grounds that he had arrived in the Philippines earlier than Coloma.^* These two officials were unable to agree as to their respective rights, and Juan Manuel de la Pena Bonifaz, 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 ar- biter 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, ap- pointed 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.^^ The audiencia. 58 These two magistrates had come to the Islands on the same ship; Montemayor had disembarked at CagaySn and had come to the city by land, arriving a few days earlier than Coloma (Montero y Vidal, Historia general, I, 336). 50 Events in Pilipinas, 1668, Blair and Robertson, XXXVII, 23-63; also correspondence of Governor Manuel de Le6n, and consultas of the Restoration to Authority 333 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.°° 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 Leon, was appointed regular governor as soon as news of the arrest of Saleedo reached Spain. Bonifaz was apprehended and sentenced to pay the customary penalty for treason, but death intervened and defrauded the king's justice. It may be con- sidered, in a sense, that Bonifaz 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 neces- sary 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 Grovernor Leon, and it retained control of affairs until the arrival of Governor Juan de Vargas Hur- tado 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."^ The inefficiency of the audiencia as a governing agency as Council of the Indies on Saleedo 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 Saleedo affair," in the Catholic historical review, III, 417-445. 60 Augustinlans in the Philippines, 1641-70, Blair and Robertson, XXXVII, 273-275; also Oonsulta of Council of the Indies, July 16, 1674, A. I., 67-6-3. 61 Montero y Vidal, Historia general, I, 354-361. 334 Audiencia and Governor: The Ad Interim Rule shown in the episode just described was surpassed by the state of utter impoteney 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 gov- ernor, 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 Curuza- elegui on April 17, 1689, with Alonzo de Avila as chief executive.^^ The events of the Pardo controversy prepared the way for a period of rule by an audiencia in which the entire govern- ment 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.®^ 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 62 Ibid., I, 375. See Chapters X and XI of this book. 63 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 au- thor'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 Mstorical review. III, 375-391. Unfitness for Rule 335 by Governor Curuzaelegui and by the court, which may be attributed in some measure to that policy of the Spanish gov- ernment 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 gov- ernor, 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 audi- encia ruled from February 4, 1715, to August 9, 1717, with Oidor Jose 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;^* it is difficult to 64 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 miatas, 16,373 pesos; almojari- fazgo, 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 c6dula of Octo- ber 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 336 Audiencia and Governor : The Ad Interim Rule understand how this could have been possible had the senior magistrate concerned himself solely with military affairs. Concepeion 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.^^ He refused to honor the royal cedaila of April 15, 1713, which ordered the reinstatement of Oidor Pavon to his place as senior oidor siqce the fulfillment of this order would have deprived Torralba of his command. Torralba reported great progress in the repair and restora- tion 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 cor- rections.^" He concerned himself also with the promotion and appointment of military officials. These latter acts were vigor- ously 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 "unjusti- fiable acts of interference within the military sphere. ' '*' "Whether animated by a sincere desire to see the natives justly treated, or rather by his natural dislike of the friars, Torralba inter- vened on various occasions for the protection of the Indians against the encroachments and abuses of the churchmen on the collected the sum of 7,042 pesos (Torralba to King, July 8, 1716, A. I., 68-4-18). «5 Concepcifin, Historia general, IX, 44, et seg. Pavon, it will be remembered, had been removed for advising Governor Zabalburti to receive the French papal delegate, Touron. In 1718 all of Torralba's acts against Tourfin 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). 66 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. 6? Royal Fiscal to the Council, August 21, 1719, A. I., 68-4-18. Unfitness for Rule 337 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.^' 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 Bonifaz 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 mterim had failed to demonstrate or develop any authority capable of maintain- ing 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 char- acterized 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 ap- es Torralba to the King, June 15, 1716 [with approval of Council indicated on margin], A. I., 68-4-18; Reoopilacidn, 6-8, 6-9, 6-10. 338 Audiencia and Governor: The Ad Interim Rule pointment of a temporary governor by the Viceroy of New Spain. It was unavoidable, however, that the audiencia should govern until the arrival of this ofScial. For a time the alterna- tive was tried of allowing the niaestre 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 govern- ment of any other person or authority, whether he was regu- larly 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 gov- ernors 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 ap- probation. The culmination of ecclesiastical power was virtu- ally reached on October 11, 1719, when Governor Bustamante was murdered by emissaries of the church and Pray Francisco de la Cuesta, Archbishop of Manila, assumed the vacant gov- ernorship. Ziiiiiga, the Dominican historian, says that the archbishop declined the governorship on this occasion, but was sub- sequently prevailed upon to accept it.^^ 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 69 Martinez de Zfliilga, An historical view, II, 37-40. Substitutimi of Ecclesiastical Bide 339 tribunal were not qualified to remain in office. Oidores Villa and Pavon, removed by Torralba and Bustamante, were re- stored 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 Zuniga, who devotes an unusual amount of space to this im- portant 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.'^'' It may be noted that the archbishop exercised complete authority over the audi- encia, even to the extent of restoring oidores who had been un- lawfully 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 gov- 70 Zuiilga, 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 tran- quillity 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 Senor Velasco (an oidor who had been imprisoned by Torralba), and assume the reins of gov- ernment himself, which was exactly what had been effected by the late disturbance." — Martinez de Zuiliga, op. cit, II, 39-40. 340 Audiencia and Governor: The Ad Interim Bide ernment of the prelates, applied not only to the administration' of Cuesta, but it established a precedent for the temporary rule of four prelates.'^ 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 suc- cession 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 relin- quished 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 71 Royal order of September 8, 1720, A. I., 106-4^16. Testimonio of c^dula 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 Mechoacan 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. Ecclesiastical Government 341 various measures taken for the defense and fortification of the Islands. He suppressed several insurrections in Ilocos and Cagayan, dispatching military forces under the command of alcaldes mayores against the revolting natives. He repelled several iloro raids and made treaties of peace with the Sultan of S\ilu.'- There is no evidence of discord between the gov- ernor and the audiencia during this period. Although Arch- bishop Trinidad arrived and took possession of his see on August 27, 1747, he made no attempt to take charge of politi- cal affairs." He permitted Arrechedera to continue as gov- ernor 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 Arreche- dera was strongly attached to this nation, and he became so far a con- vert 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.'* The third time the government was taken over by a prelate was in 1759 on the death of Governor Arandia. On this occa- sion it became necessary to open the third pliego de provi- dcncia. The metropolitan see of IManila and the diocese of Nueva Segovia being vacant, Bishop Espeleta of Cebu was the senior prelate of the Islands. Shortly after the accession of Espeleta, Manuel Rojo, the new archbishop, arrived, command- ing Espeleta to vacate the governorship at once. Rojo refused, T^ Martinez de Zflniga, op. cit., II, 84-95; Montero y Vidal, Bistoria general. I, 480-495. "3 Martinez de Zuuiga says he carried a special government commis- sion 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- (Zflniga, 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). ^i Martinez de Zfliiiga, An historical view. II, 89-90. 342 Audiencia and Governor: The Ad Interim Bvle citing the precedent established by Bishop Arrechedera. Es- peleta appealed to the audiencia for support, but the oidores were unable to agree on the question, two of them, Calderon and Galban 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 o§ the Indies for final settlement.'^' It transpired, therefore, that Es- peleta 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 Orendain occupied a large share of Espeleta 's attention during his admini^ra- tion. This controversy should be noted here because it illus- trates the relations between the audiencia and an ecclesiastical governor. Orendain had been the advisor (asesor) of Governor Arandia, 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 Orendain 's prosecution was unani- mously 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 Orendain, who sought refuge in an Augustinian convent, whereupon the civil authorities forced an entrance into the asylum, seizing Orendain and imprisoning him in Fort Santiago. The provisor of the ecclesiastical court excommunicated Magistrate Villacorta, who had exculpated Orendain in his trial, but the ban was disregarded by the audiencia. A division over the question arose in the tribunal. T5 Opinion of Pedro Calderfin Enrfquez, 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. The Rule of Rpjo 343 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 Orendain to full favor as his counsellor. The affair of Dr. Orendain illustrates a phase of Spanish colon- ial administration which is too characteristic to be left un- noticed here. Aside from the influence which Orendain exercised over Governor Arandia, his persecution shows the measure of per- sonal rancour which even a prelate might put into his admin- istration, 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 Simon 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 Kojo'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 arch- bishop-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 344 Audiencia and Governor: The Ad Interim Rule 21, 1761J* The British squadron entered Manila Bay on Sep- tember 22, 1762. The British subsequently attacked the city, the fall of which seemed imminent on account of the neglectful state inter which the defense had f alien.'' The proposition was made to the archbishop-governor by Fiscal Francisco Leandro de Viana and the audiencia that Oidor Anda should be dis- patched to the provinces with the title of Governor and Capfain- general of the Islands for the purpose of maintaining and de- fending them under the sovereignty of the Spanish monarch,"* and "in order that he might keep the natives quiet in their Christian instruction and in their obedience to the king."'^ 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."*" 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 com- missioned visitador de tierras and teniente de gobernador y capitdn general.^^ The authority to designate oidores &s visit- ors of the provinces was a function regularly exercised by the president of the audiencia and authorized by the laws of the Indies.*^ It appears from the above that Anda was sent to the 76 Anda was sixty-two years of age when he left Manila to under- take the defense of the provinces (Blair and Robertson, XLIX, 211). ^^ Relacidn de la conquista de Manila por los Ingleses y presa del galedn de Santisima Trinidad en el mes de Octubre de 1162. A. I., 107-1-15. 78 Manifiesto of Viana, March 8, 1762, A. I., 107-3-2. 79 Rojo's Narrative, Blair and Robertson, XLIX, 210. soiUd., 210-211. 81 Testimonio del Secretario de Cdmara, IS de Novienibre. 1762, A I , 107-3-2. 82 Reoopilaci6n, 2-31-1 to 14. The British Conquest of Manila 345 provinces to defend them against the English. This was the main object as stated in the original proposition of the audi- encia. Zuniga states the purpose of the departure of Anda to have been "to maintain the islands in obedience to the King of Spain, ' '*= and this is corroborated by the testimonies of Anda,'* Viana^' and of Eojo,'« 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.*' S3 Martinez de Zfluiga, An historical view, II, 180. 84 TestirM>nio del Seeretario de Cdmara (authorized and sworn to by Anda), JS de Noviembre, 176S, A. I., 107-3-2. S5 Testimonio del fisoal, Francisco Lemuiro de Tiana, 8 de Marzo, 1763. A. I., 107-3-2. 86 Rojo's Narrative, op. cit., Testittwrnio de D. Antonio Diaz, {ayu- dante de Rojo) ... . ^8 de Noviemtire de n'62, A. I., 107-3-4. 37 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 do- minion 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 Gen til (Voyage, II, 252) characterizes him as follows: "Arch- bishop 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 346 Audiencia and Governor: The Ad Interim Rule Anda organized a provisional government in his capacity as lieutenant-governor. He disregarded the repeated sunimons 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-gen- eral, 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.'"* He urged that Rojo should desist from his opposition to his efforts, pointing out the great de- sirability of their co-operation. When Anda became convinced of the infirmity of Rojo and the uselessness of further attempts at co-operation with him h& 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 de Orendain, 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 as- serted 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). Ztiniga, 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 (Martinez de Zunlga, An historical view, II, 239). 88 Anda to Rojo, October 20, 1762, Blair and Robertson, XLIX, 153- 154. The Government of Anda 347 to recognize the orders of the latter. Anda issued a call to all loyal inhabitants to defend the honor of Spain. He ordered the alcaides mayores to pay no heed to the dispatches and com- mands 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 arch- bishop 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, P4sig, and a few other places of minor im- portance. 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.«« 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 con- tention 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 89 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 ar- rival of the new governor, Francisco Xavier de la Torre. See Anda to Rojo, July 29, 1763, A. I., 107-3-4. 348 Audiencia and Governor: The Ad Interim Rule happened, and it might happen still that the oidores being ab- sent and . . . only one remaining, ... in such eases the audiencia is to be conserved and continued with only one oidor."^" 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 audi- encia 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 sur- render the Islands.'^ In these arguments and sentiments Anda was supported by the fiscal, Francisco Leandro de Viana, and by Oidores Galban and Villacorta, who subsequently escaped from the city and joined him in the provinces, aiding him in his re- sistance to the invaders. Although the British had agreed in their terms of capitu- lation that the audiencia should continue in the exercise of its normal powers in Manila,"^ that tribunal and the archbishop so Recopilacidn, 2-15-180. 91 Anda to Rojo, October 30, 1762 (-with testimonios of witnesses), A. I., 107-3-3; Reoopilacidn, 2-15-57 and 58. On October 20, 1762, Anda wrote as follows: "I said and I repeat that the presidency and gov- ernment fell to the royal Audiencia; and I add that the latter is con- served and continued in me, that I am the sole and only minister, that by my absence fi'om 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 titulo, since my associates are lacking and have been imprisoned with your Excellency in the fatal loss of that capital." < Blair and Robertson, XLIX, 136). 92 Relacidn Ae la conquista de Manila par los Ingleses, . . . 1761- 1764, A. I., 107-1-15. The Government of Anda 349 were virtually prisoners; the idea of their recognition there- fore appears almost an absurdity. The oidores acted as mem- bers 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, Moiiroy and Orendain, 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 surren- dered, the oidores were formally consulted, but the archbishop followed his own counsel, or that of his favorites.'^ The position of Rojo after the escape of the fiscai and the oidores was an exceedingly unpleasant one. The English com- mander complained that the prelate and the audieneia 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 patciche, "Filipino". The British offered remission of tribute to all natives then in insur- rection who would surrender. Anda was charged with respon- sibility for the danger with which the city was threatened- He was said to have prevented the fulfillment of the treaty between Eojo 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.^* This continued until the legiti- 93 Memorial of Viana, March 8, 1763, A. I., 107-3-2. 94 Blair and Robertson. XLIX, 172-175. 350 Audiencia and Governor: The Ad Interim Bute macy of the position of Anda was recognized by Governor Torre.®^ 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 suf- ficiently 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 under- stand why it was necessary for him to justify himself by ad- vancing 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 conse- quently more independent and inclined to be insurrectionary and riotous. Yet, it is hardly possible that the legal argu- ments advanced in support of his claims were understood by this class. It does not appear, moreover, that Anda was entirely justi- fied in his argument by the laws. No doubt he was right in 95 Report of Governor Francisco Xavier de la Torre on the Negotia- tions for the Evacuation of the City of Manila, 1764, A. I., 107-1-15. The Government of Anda 351 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 cedulas 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 cedula 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 Cebu, re- spectively. 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 ques- tion of whether Anda could rightfully claim the prerogatives of the audiencia and governorship at the same time. Eojo 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 restora- tion of peace, the fisccd was of the opinion that the govern- ment should go to Fray Ustariz, bishop of Nueva Segovia.''^ In this opinion he was seconded by Oidor Galban. 96 Martinez de Zuniga, An historical view, II, 234. 352 Audiencia and Governor: The Ad Interim Rule It would seem that Anda was supported in his resistance to Archbishop Rojo and the British largely on grounds of ex- pediency. This is clearly brought out in a letter which Fiscal Viana wrote to the king on October 30, 1762, stating his opin- ion 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 him- self 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.^'' 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 subse- quently have supported Ustariz. 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 sov- ereign 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 sov- ereignty 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 manage- ment of military affairs he administered the finances and levied tribute. As noted above, he contrived to obtain posses- sion 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 87 Viana to the King, October 30, 1762, A. I., 107-3-2. The Government of Anda 353 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.'* Other functions of a semi-military and governmental char- acter were exercised by Anda in his capacity as acting gov- ernor. 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 coun- terfeiting or chipping coins, and he declared what should be legal tender. He forbade the shipment of provisions to the belea^ered 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 arch- bishop. 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 ex- emption from the payment of tribute in order to attract the natives. Anda issued very severe orders to prevent looting and 98 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 Knglish did not leave them completely desolate, since without this aid, the subsistence of the state would have been impossible" (Anda to Car- los 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 offi- cials obeyed the law which forbade an annual return exceeding 1,000,- 000 pesos. See Martinez de ZfiiSiga, Estadismo, I, 266-270. 354 Audiencia and Governor: The Ad Interim Rule 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 gov- ernment centered in himself and in his immediate advisors.^^ It has already been pointed out that when Anda's resistance gave certain assurances of success, the fiscal, Viana, and the oidores, Galban and Villaeorta, 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 ofiSciated. Villaeorta 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.^°° Anda found that his colleagues, Viana and Galban, were of the opinion that Bishop Ustariz 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 ex- pressed his willingness to submit to the decision of the audi- encia. 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 gratify- ing to Seiior Anda, and although the troops were in his favour, he was by no means desirous of having recourse to violence.ioi 99 Anda to Carlos III, June 22, 1764, Blair and Robertson, XLIX, 262-268. 100 Martinez de Zfliiiga, An Mstorical view, II, 234-235. 101 Ibid.. II. 235; see Montero y Vidal, HisUyria aeneral. II. 65-66. Royal Approval 355 Shortly after the death of Archbishop Rojo, Anda received dispatches inf ormiing him that peace had been restored between Spain and England;'"- 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, Ustariz and Anda. Each of these contenders was able to ad- vance a reasonable claim. Villacorta was certainly the senior magistrate, and thus he had a better right legally to the office than Anda. Ustariz 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 de- fended the islands, and of having prevented the English from advancing to the northern provinces; and, above all, he .com- manded the troops, who were attached to him, and this served to cheek the pretensions of the others."'"^ 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 teni- ente del rey (king's lieutenant), and in accordance with his in- structions he assumed the temporary government on March 17, 1764, which he retained until the arrival of Governor Raon 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. 1(1- 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-gobemtidor 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 Brit- ish forces evacuated the same day. Montero y Vidal [op. dt., 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. 103 Martinez de Zuuiga, An historical view, II, 241. 356 Audiencia and Governor: The Ad Interim Bute 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 re- called to Spain, where he was presented at court, receiving the personal thanks of the sovereign.^"* Torre's accession to the governorship marks the discontinu- ance in the Philippines of the practice of allowing the 'arch- bishop 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.^"^ 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 fol- lowed 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 Septem- ber 30, 1762, a new cedula authorized the appointment of a teniente del rey by the viceroy of New Spain, and the succes- sion 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."° • 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 occa- sion on which the audiencia, in reality or in theory, ever at- tempted to rule by its own right, except by association with 104 Anda was made Councillor of Castile on November 6, 1767. A life's pension was bestowed on him on November 19, 1769. He re- mained in Spain until 1770 when he returned to the Philippines as governor (A. I., 106-4-4). 105 In Mexico two prelates governed ad interim after this time — Peralta in 1787 and Beaumont in 1809. Bolton, Guide, 469-470. 106 Cedmlas of November 23, 1774, and July 2, 1779, A. I., 102-2-9. The Audiencia's Bide Abolished 357 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."' This law was confirmed by the cedula 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. "^"^ A subsequent law, dated July 30, 1779, stated that "these im- portant and immediate affairs" did not include "the duties and functions of the captain-general." Again, the royal order of October 23, 1806,^°^ 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 mili- tary officer of the colony, if he were higher than the grade of colonel; if not, the regent or decano should be temporary presi- dent, governor and captain-general, without ceding the exercise of any of the functions of this office to the audiencia.^^" 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 cdbo, or lieutenant-commander of the king's forces should suc- 107 Articles 61 and 63, Royal Instruction of Regents, Rodriguez San Pedro, Legislacvin ultramaHna, VII, 22-28. This Instruction trans- belonged to the senior magistrates of the audiencias. These are de- ferred to the regent all the powers and prerogatives which formerly- fined in Recopilacion, 2-15-57 and 58. 108 Recopilacidn, 2-15, note 16. 109 IMd.; also A. I., 102-2-9. 110 Royal order of October 25, 1806, Recopilacion (1841), II, Apcndice. 358 Audiencia and Governor: The Ad Interim Rule ceed the governor and captain-general. ^^^ 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 inter- ference 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 per- sonal jealously 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 ef- forts 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 when- ever 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 ex- perienced legislators nor trained soldiers, and the latter defect seems to have been a cause of considerable dissatisfaction, es- pecially 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 con- 111 Rogdrfguez San Pedro, LegislacUn ultraviarina, I, 90-91. Failure of Ecclesiastical Government 359 ceded 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 cen- tralized and unified institution in the Philippines at the time when both the audieneia 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 audieneia had done in the past. The rule of the churchmen did not remedy matters, however, except that it produced har- mony through the exercise of force. During the rule of the archbishops, with the exception of that of Rojo, the audieneia was so completely dominated by the ecclesiastical power that the tribunal could scarcely be considered a factor in the gov- ernment. 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 mili- tary leaders, who thus exercised an influence never realized by them during the rule of the audieneia. Archbishop Rojo was un- willing 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 pre- lates were as efficient as any others, but they were never able 360 Audiencia and Governor: The Ad Interim Bute 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 tnat 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 dictator- ship, based on military power, but, nevertheless, just and benevo- lent. 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 Character of the Audiencia's Rule 361 good government, the rule of the audieneia was neither suc- cessful nor satisfactory. Its most far-reaching defect, as far as the relations of the audieneia and the governor were concerned, lay in the wholesale exercise of administrative and military functions by the magistrates of the audieneia. This impaired the quality of their services as impartial magistrates and contributed in most cases to an insatiable thirst for power. The magis- trates were loath to surrender the exercise of these govern- mental activities on the accession of the succeeding governor, the audieneia displaying a marked tendency to continue in the exercise of administrative control. This, then, was a decided cause of strife and dissension between the audieneia and the governor. CHAPTER X THE AUDIENCIA AND THE CHURCH : THE ROYAL PATRONAGE The audieneia 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 occa- sions of this relationship. Before the establishment of the audieneia the church exercised an extensive authority in gov- ernmental 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 encomieiidas. When the advice of the church was solicited by the home government as to the advisability of removing the audieneia, the suggestions of Fray Alonso Sanchez and Bishop Salazar went far toward bringing about a final solution of the problem of government in the Philippines.^ These were some of the ways in which the influence of the church was impressed upon the audieneia. The creation of an audieneia, 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 infiuence was especially strong in matters relating to the natives, their government and protection, and the archbishops even went so far at times as to 1 Concepci6n, Eistoria general. III, 336, et seg. This is discussed in Chapter II of this volume. Original materials exist in A. I., 68-1-32. Influence of Church 363 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 aifairs in a manner entirely satisfactory to his ecclesiastical supporters. The period from 1684 to 1690 showed the weak- ness 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 governor- ship — something which the audiencia had failed to do. Finally, in 1762, Simon de Anda y Salazar assumed the reigns of govern- ment and the obligations of defense, an act which was sanc- tioned 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 de- rived its authority and what was the nature of its powers. The audiencia was established as the ultimate local au- thority, co-ordinate with the governor (or the viceroy in New Spain or Peru), for enforcing the laws of the royal patronage.^ 2 The royal patronage in the Indies was hased on the hulls of Alex- ander VI, dated May 4, 1493, and Novemher 16, 1501, and on that of 364 Audiencia and Church: The Royal Patronage 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 vieepatron, he was not expected to act alone and unsupported in dealing with the powerful and often hostile ecclesiastical authority. In former 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 patnymato 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 assign- ment of benefices and provinces to the different orders, the confirma- tion of minor ecclesiastical appointments, and, in fact, general super- vision and control over the regular and secular clergy in the colonies (Reoo^laoi&n, 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 nomi- nated by the Spanish king and to other ecclesiastical duties of a nom- inal 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 church- men, 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 appoint- ment by the crown to vacant benefices and to all the higher church oiflces 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 conces- sion 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 de- clared that the right of patronage belonged privately to the king. As a result of this, says Professor Altamira, "the Spanish clergy con- sidered 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 arch- Wshop." (Altamira y Crevea, Histdria, III, 418-19.) The laws of the royal patronage centralized the supervision and The Basis of Royal Patronage 36& chapters of this treatise attention has been given to the con- siderations which forced him to share the duties and responsi- bilities of government, finance, commercial supervision, and even military affairs with the audieneia; the support of that body was even more necessary in dealing with the powerful ecclesiastical organization. The authority which the audieneia 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 instruc- tions) that we may give shall be carried out in due form; and we pray and cTwrges 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 preeminences of the king) and see them fulfilled and obeyed, conforming with our viceroys,. 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 govern- ment. 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 sup- port the prelates in the exercise of episcopal visitation. His consent was necessary to the suppression, division, or union of districts, cura- cies 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 ReoopiJacion, 1-6; for general observations on the royal patronage see G6mez Zamora, Regio paironato; Parr^s, El ffobi- emo de los regulares de la America, I, 2-16; Mendieta, Historw, eclesi- dstica, 20-21, 186-196; Hernaez, Coleccwn de hulas. 12-28. 3 This is a translation of ruego y en-cargo, 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 sup- posed to form a precedent for general use within the Spanish colonial empire. 366 Audiencia and Church: The Royal Patronage presidents, audienclas and govembrs as much as may be appropriate and necessary.* 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 missiqpary 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 rea- sons 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 au- thority 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 * Recopilacion, 1-6-47. Growth of Audiencia's Authority 367 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 ecclesi- astical 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 gov- ernor 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 Peru) made inevitable the divi- sion 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 possi- ble 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 pro- hibited. 368 Audiencia and Church: The Royal Patronage The cedula of October 6, 1578, in explanation of the various forms of address in the expedition of royal cedulas, was de- signed to make clear the respective jurisdictions of the vice- patron and the audiencia in ecclesiastical as well as in other governmental affairs. It ordered that when our royal ceAulas 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 he present, provided that this do not contravene the superior government which we regularly commit to our viceroys and presidents-^ While more than a joint authority with the vicepatron cannot be claimed for the audiencia, and that authority not neces- sarily coequal, this cedula 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 ecclesi- astical than to the administrative sphere, but this cedula, to- gether with what actually happened, may be taken as evidence that the audiencia was meant to have jurisdiction in ecclesi- astical affairs when royal cedulas 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 ^IMd., 2-1-10. Laws 11 and 12 of the same title did not in any way diminish the authority of the royal audienca. Law 11, dated May 16, 1571, antedating the one ahove quoted, declared that although cedillas 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, recog- nized 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. Ecclesiastical Opposition 369 Sanchez at the court of Madrid (1593-1595), expressed his dis- approval 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.'' 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 thej"^ 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 Arch- bishop Poblete in his controversy with Governor Solcedo in 1665 and later by Archbishop Pardo in 1686.^ 6 Concepci6n, as cited in note 1 of this chapter. Salazar's argu- ments are outlined in Chapter II of this treatise. ^ Archbishop Pardo's well known opposition to the exercise of gov- ernmental control on the basis of the royal patronage and his resist- ance 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 mat- ters." 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 oflBcial should command or summon to justice a prelate who is charged with the welfare of the souls of the people of his common- wealth" (Pardo to King, September 7, 1686, A. I., 68-1-44). A violent, though Ineffective resistance was maintained by the church when Governor Simfin de Anda y Salazar sought to abolish 370 Audiencia and Church: The Royal Patronage In considering this question, the calm and impartial judg- ment 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 modem Spanish writer on church history and law. Fray Matias Gomez Zamora, writing from the vantage ground of the modern day, characterizes the acts of the government offi- cials 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 cedulas were wrong- fully issued, without proper basis." He cites examples to prove his contention and among these he points to the founda- certain practices observed in the chanting of mass. Anda based his action on his authority as vlcepatron. 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 ecclesi- astical 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 ecclesi- astical authorities of the colony In his efforts, as the churchmen de- scribed 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 sup- ported 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 Sebastian de Asuncifin, a Recollect, and of Antonio de San Pr6spero, 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 ad- ministrative affairs (Expediente de los provindales de Filipinos, 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 gov- ernmental control on the basis of the royal patronage gave him pre- eminence in these same matters. Ecclesiastical Opposition 371 tion of churches and monasteries by civil authorities without the confirmation of the prelate, alleging that such practices were entirely illegal.^ In like manner, he criticises the cedulas of October 19, 1756, and of June 24, 1762, which bestowed upon the governor jurisdiction as vicepatron,^ 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."^" 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 audieneia in recognition of its right of inter- vention 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 audieneia participated conjointly with the vicepatron. The interposition of the audi- eneia was authorized in the calling of provincial councils and sjTiods, 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.^^ The audi- 8 G6mez Zamora, Regio patronato, 330 et scq. sibid., 330-354. io/6id., 378. 1-1 Reooxnlaci6n, 1-8-2, 3, 6. A dispute concerning the jurisdic- tion of the audieneia over the findings of synods arose in 1773 and again in 1776, when the Bishop of Nueva Segovia protested against the ruling of the audieneia that all the deliberations of a provincial synod ■which had heen 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 audieneia (King to the Audencia, October 19, 1776, A. I., 105-2-9). 372 Audiencia cmd Church: The Royal Patronage eneia 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 argu- ments 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.^^ The audiencia was authorized to enforce the law which for- bade 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.^^ 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 in- formation in turn was forwarded to the Council of the Indies." All possible assistance was to be furnished by the audiencia and governor to missionaries remaining in the Philippines or going to Japan.^^ 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 im- posed on or abused. The aidores were prohibited from inter- ference with the internal government of the religious orders.'^* Members of orders could not usually be removed by their pro- vincials without the consent of the vicepatron and the audi- encia, the authority of the latter extending to the removal and exile of offending priests.^'' The audiencia was ordered to make 12 ReodpiUicidn, 1-9-2, 7, 10. 13 Recopilacidn, 1-13-23. lilMd., 1-14-1, 20, 42; 3-14-3. i->Ibid., 1-14-34, 38. iBihid., 44, 67. IT This law was nullified by the cMula of August 1, 1795, which forbade the intervention of the vicepatron and audiencia in these matters. See Recopilacidn, 1-6, note 17, also 1-14-37. Summary of Laws 373 every possible effort to preserve harmony among the religious and to adjust all differences arising between the orders, or within them.i^ 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 gov- ernment.^^ The following brief summary of laws of the early period, although possibly repeating data already given, shows the ex- tent of the participation of the audieneia in the regulation of ecclesiastical affairs :-° All ecclesiastics holding ofiBce were first to gain the recognition of the viceroy, president, audieneia 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 subse- auently 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 audieneia, governor or other authority in control, for inspection and approval. The audieneia 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.21 Notices of removals or of new appointments made among the clergy were to be sent to the governor, audieneia, and to the bishop.-" The jurisdiction of the. audieneia under the royal patronage extended to practically all classes of churchmen and church affairs.^^ By the cedulas of August 4, 1574, and of October 25, 1667, the audieneia acquired the right of passing on the credentials of prelates who came to the Islands. That tribunal i8 76id., 68. 10 Ibid., 71, 75. 20 Cedula of June 1, 1574, Blair and Robertson, XXI, 27-31. 21 CMula of November 14, 1603, Blair and Robertson, XXI, 50-52, note. 22 Royal order of April 6, 1609, A. I., 105-2-1. 23 RecopUaci6n, 1-14; 1-7-54. 374 Audiencia and Church: The Boyal Patronage was entrusted with the duty of seeing that bishops and arch- bishops 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 audi- encia.^* 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 Phillipines. In 1674, Francisco de Palou, a French bishop who had been engaged in missionary work in China, was east upon the shores of the Philippines. The audiencia immediately dispatched orders for his detention, and he was not permitted to return to his dis- trict 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 belong- ing to the Spanish crown. ^'^ A similar case occurred in 1704, when Archbishop Touron, iilbid., 1-7-1, 36. 25 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 consuUa of the latter tribunal, enacted January 22, 1781. The Audiencia of Manila had called the attention of the home govern- ment 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 pre- sentation 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). Reception of Papal Delegate 375 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. Touron was ac- cordingly permitted to set up an ecclesiastical court. He sus- pended Archbishop Camacho from his ofBce 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 ecclesi- astic without the authorization of the Spanish government^® and as a consequence ordered the removal of the governor and senior oidor, heavily fined the remaining magistrates and re- duced Archbishop Camacho to the position of Bishop of Guadalajara.^' In its joint capacity as assistant to the vicepatron and as a high court with jurisdiction over ecclesiastical cases, the audi- encia settled disputes between rival claimants to positions of authority in the church, particularly to the position of arch- bishop. The law which had been in force up to 1619 Tpve- 2e RecopiUj^6n, 1-6-31 and 1-14-12, treat of the admission of for- eign 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 intro- duction into the Indies. 27 Touron 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 (oonsvMa of the Council of the Indies on the report of the proceedings of Cardinal Touron in China, Feb- ruary 24, 1710, A. I., 68-2-8). That his proceedings were recognized by the Spanish government is shown by the consuJta of April 21, 1708, whereby 4000 pesos were voted to defray the expenses of Tour6n in the Philippines and China. This money was added to the Philippine sub- sidy in Mexico (ibid.). 376 Audiencia and Church: The Royal Patronage scribed that the ecclesiastical chapter should fill the vacancy with a temporary inetunbent, but some effort had already been made to have the senior bishop succeed to the post. Bishop Arce of Cebu was opposed to this plan on the ground that each pre- late had more than he could do in the proper administration of his own bishopric.^* 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.^" 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 ecclesias- tical chapter, the Bishop of Cebu, 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 sur- render on account of an irregularity in the archbishop's ap- pointment. Arce appealed to the audiencia, but the tribunal refused to authorize any innovations.^" In a statement to the king, dated October 17, 1655, he related that in 1629 the gov- ernor 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 ecclesi- astical authorities it also acted judicially. Guerrero's creden- tials finally came, apparently executed in the proper form and they were referred to the audiencia by the governor. The asArce to Philip III, July 30, 1619, Blair and Robertson, XVIII, 238-239. 29 Diaz, Conguistas, II, 267, et seq. ; Martinez de Zuiiiga, An histori- cal view, I, 259. soTavora to Philip IV, July 8, 1632, Blair and Robertson, XXIV, 224-228. Arbitration of Ecclesiastical Disputes 377 tribunal, when it had satisfied itself that the commission was Talid, placed thereon the stamp of its approval and accepted Ouerrelro 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 pre- sented [to his see], he swore upon the gospels not to interfere with your Majesty's jurisdiction, to respect your royal patron- age, and to be always your royal vassal. "^^ 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 tempo- rary 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 ad- mitted 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 insti- tution than either the audiencia or the governor.'- The audiencia exercised intervention in the removal of «urates from their parishes.^^ As noted already, these removals were made by the vicepatron upon the recommendation of the prelate concerned. Of course, when the audiencia was govern- ing a-d interim it made these removals itself. It also intervened when the vicepatron was present on occasions when he re- 31 Corcuera to Philip IV, June 30, 1636, Blair and Robertson, XXVII, 21. 32 The cedula of December 15, 1797, authorized the installation ot the Bishop of Nueva Segovia as archbishop in the vacant see of, Ma- nila, on the death of the incumbent, in accordance with the require- ments of the royal patronage. On September 8, 1800, the Bishop of Cebfl was designated as archbishop in the same manner. The instal- lations were made by the vicepatron on the strength of these c4dulas, with the understanding that the latter were to be followed by the proper papal bulls, executed in due form. CedniUis of December 15, 1797, and of September 9, 1800, A. I., 105-2-18. 33 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. RecopiUicion, 3-6-38, note 17. 378 Audiencia and Church: The Royal Patronage quested the support of the tribunal or failed to act himselL 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 ecclesiasti- cal, 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 audi- encia 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 inter- vention of the audiencia.^* 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 audi- encia could interfere in the matter, unless such intervention was requested by the provincial.^^ When the deportation of 31 Cedula of August 1, 1795, and of September 16, 1803, A. I., 105- ^-10; Reoopilacion, 1-6, note 17. »5 Recopilaci&n, 1-14-71 to 75; the entire title (1,4) 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 gov- ernment to correct the abuses of Fray Alonso Zamudio, an Augustin- ian, who was in charge of a parish, and who therefore was subject tO' episcopal visitation. He was charged with immoral and vicious con- duct. The provincial of his order made an investigation and reported that the evidence brought against him would warrant his prosecu- tion. 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 Discipline of Ecclesiastics Bl^ 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 govern- ment. The formal consent of the Council of the Indies was necessary for all deportations of this character, but the com- plete exercise of this prerogative gradually devolved upon the vicepatron, who notified the Council of the act.^'' 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.^^ 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 regime of the convents or monasteries.^* 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. acuerdo with the audiencia. A ruego y encargo was dispatched by the tribunal, soliciting the surrender of the friar. He was accord- ingly handed over to the civil authorities and was incarcerated in Fort Santiago until the sentence could be executed Unformacidn (tef juez-provisor, v testimonio de los abusos del fraile Alonso Zamudio, May 27, 1650, A. I., 67-6-9). 36 ReoopiJacidn, 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 re- quest 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 per- taining to the royal patronage (King to the Audiencia, April 13, 1777, A. I., 105-2-9). 3T This has been discussed in Chapter III of this treatise. 38 Reoopilaci&n, 1-14-67. 380 Audiencia and Church: The Royal Patronage This was done in 1715 when the Castilian Recollects rebelled against their provincial, incorporated themselves into a sepa- rate 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.^" 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 ex- ercised 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,*" condemning the former to pay a fine of 2000 ducats. The governor contrived also to influence the judge-conservator*^ 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.*- 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 Oovernor Bustamante and the audiencia in 1719, are incidents 39 Concepcion, Historia general, IX, 190; Montero y Vldal, Historia general, I, 400-401. 40 "Provisores and vioarios generales exercise the ordinary ecclesi- astical 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. *i jMCg-ocwiserwMtor, an ecclesiastical or secular (not civil) judge named by the pope with jurisdiction or power to defend a particular church, monastery or convent. (Escriche, Diccumario, II, 260). 42 Nuns of St. Clare to King, Blair and Robertson, XXVI, 24. Magistrates as Ecclesiastical Visitors 381 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 re- lation 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." In the exercise of these duties they were protected by a law which forbade pre- lates 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 vis- itors' inspections were merely perfunctory and of little value.** 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 encamicndas. He reported that in the curacies which were administered by the Franciscans there was an entire ab- sence 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 alc^ildes 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 tliis state of affairs by dis- patching reformatory edicts against the friars, and by posting notices and copies of royal decrees and. cedulas designed to <3 JSeoopita-citin, 2-31-1, 8; 6-10-8, 9. ** Le Gentil, in Blair and Robertson. XXVIII, 218. ■382 Audiencia and Church: The Royal Patronage inform the natives of their rights under the law and to warn them against the imposture of the friats. Whereupon the Franciscans appealed to the Bishop of Camarines and per- suaded 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 cedula 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 magis- trates 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 jiecessary reforms in the provinces subject to his visitation.*^ It was presented to the Council of the Indies on October 14, 1706.** 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 quar- rels interfered with good government and efficient administra- tion. Thirdly, it illustrates the fact that the entire civil gov- ernment, 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 Jose Torralba, in 1713, in the provinces of Albay and Cebu. Torralba was unable to complete his work, owing to his recall to Manila, where he was obliged to resume Jiis place in the audiencia on account of the insufficient number is Beoopilaci&n, 3-14-28. 46 Guerela to the Council, June 20, 1702, A. I., 68-4-12. Provincial Inspections 383 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.*' 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 effec- tively 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 Peru and New Spain.*^ 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 prin- ciple 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 47 Report of Torralba, July 20, 1713, A. I., 68-4-16. Torralba was charged in his residenda with having received bribes from the Fran- ciscans 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. *8 Royal decree of February 14, 1713, A. I., 68-4-18. 384 Audiencia and Church: The Boyal Patronage ■ 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.*^ These visitors were also authorized to inspect friars who were in charge of parishes,^" 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 de- manded that Pereyra should submit all his documents for in- spection on the basis of the royal patronage and other laws." but the audiencia, under the presidency of Governor Anda, refused to support the fiscal. The king, on April 6, 1778, re- buked the audiencia for its failure to support the royal patron- age, citing two cedulas, those of July 2 and of October 14, 1773, respectively, in which he had already admonished the vieepatron in that particular.^^ 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 cor- rupting influence of the church. is Recopilacidn, 1-14-42 to 46; 1-7-21 to 31; 1-6-49; 2-15-146 and 147. 50 Royal decree of December 31, 1622, Blair and Robertson, XX, 253. 51 RecopiicDciiin, 2-18-18. 52 King to the Audiencia, April 6, 1778, A. I., 105-2-9. Reports to Court 385 The statement has frequently heen made in this treatise that the audieneia 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 informacio)ies^^ on various subjects connected with the church."* 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 audieneia 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 ad- vice of prelates exercised an influence on matters purely gov- ernmental. 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 con- cerning 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 recom- mended that more cargo-space be given to the church. The king 5s informacwn, a legally-attested document establishing proof of some act or crime (Escriche, Dicdonwrio, II, 156). In the broader sense an informacHn was an opinion or a body of evidence on a special topic drawn up and legally attested by the proper authority. These inforniadones appear to have been submitted by the audieneia, or by individual oidores, contadores, oflciales reales and others, hut in all cases they were legally drawn up and sworn to. An informaoi&n 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. 5i Recopilacion, 2-23-13, 12, 15. 386 Audiencia amd Church: The Boyal Patronage 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.'^ 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.^^ On another occasion the king requested of the audiencia a report concerning the work, deserts, and finan- cial condition of the convent of Santa Clara, which had asked for royal aid.^' 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 num- ber of friars holding secular curacies in each, and the number of missionaries.^^ 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 enter- ing 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.^' 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."" It is evident that the report of the audiencia was utilized as a check to prevent misrepresentation on the part of the friars, espe- cially since it was always the object of each order to prove that it was over-worked and in urgent need of more members. As 55 King to the Audiencia, July 1, 1598, A. I., 105-2-1. 58 King to the Audiencia, December 7, 1610, Blair and Robertson, XVII, 151-152. 57 King to the Audiencia, August 17, 1628, A. I., 105-2-1. 58 RecopiUundn, 1-14-1. 59I6id., 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. eo Reoopilaeidn, 1-14-2, 3, 4. Higher Education 387 friars were sent to the Islands at the royal expense," 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 require- ments 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 vice- roys and governors,*- 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 adminis- tion of these was entirely in the hands of the church, the audi- encia came to exercise much the same authority over education that it did over other church activities.*^ Oidores and fiscales were forbidden to act as rectors, but they might participate in the law examinations to satisfy themselves whether the stand- ard of instruction in the royal universities and colleges was sufficiently high, and whether the education, training and abil- ity of candidates for the licentiate's degree gave evidence of their fitness."* According to the royal decree of November 27, 1623, the University of Santo Tomas was founded in the Philip- pines with the advice of the governor and acuerdo of the audiencia.*^ Here again that tribunal may be seen in the act 6i/6id., 1-14-90, 91, 20. Missionaries were so badly needed in the colonies in the sixteenth century that they were sent free of ex- pense. 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 sufiBcient numbers, and increased prosperity, to establish them- selves in communities . .' . both king sind pope extended privileges and protection to them in order to facilitate the labors of their calling." (Bancroft, History of Mexico, III, 702.) ^2 jteoopilaci&n, 3-14-4. 63 /bid., 1-22-7. einid., 19. 65 7&Mi., 1-22-53. 388 Audiencia and Church: The Royal Patrmiage of assmning non-judicial functions which primarily belonged to the governor through the unwillingness or inability of that ofiScial to act alone. The audiencia early exercised advisory powers in educa- tional affairs. The Jesuits as early as 1585 had requested per- mission to found and establish a college or seminary in Manila, and the king, on January 11, 1587, requested of the au&iencia 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.^^. When Santo Tomas 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.«^ On May 3, 1722, San Jose 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 Jose as a secular institution under the supervision of the audiencia. This brought forth such determined opposition from the Dominicans 66 Audiencia to Felipe II, June 25, 1588, Blair and Robertson, VI, 318. The Jesuits, on July 8, 1598, again requested permission to be- stow 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 Jose 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 clonatlons of individuals. 6TMontero y Vidal, Historia general, I, 283-294; Pastel-Colin, Labor evang^ttoa, III, 414-418. Higher Education 389 and from the friends and supporters of Santo Tomas that on June 30, 1778, a cedula was issued ordering the audieneia to close San Jose and hand over all students in attendance there to the archbishop, so that they might be placed in secular col- leges and seminaries.''^ This was done, and the audieneia ren- dered to the Council of the Indies a report on the administra- tion 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 audieneia 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 audieneia to the Council of the Indies. He sustained the audieneia and forbade the prelate from interfering with these temporalities. The Dominicans were more successful in the maintenance of an educational institution.'*^ On the occasion of the extension of the charter of the Universty of Santo Tomas on May 17, 1680, the king ordered "my president and the auditors of my Audieneia 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 Uni- versity of Santo Tomas as a beneficiary of the royal patronage. Its title was formally extended on June 21, 1681, by act of the audieneia.'^" The tribunal not only exercised the right of 68 C6dv.la of June 30, 1778, A. I., 105-2-9. 69 The college of Santo TomAs 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 uni- versity in 1645 and its title was extended at various times subse- quently (Montero y Vidal, Historia general, I, 169 [note], 283). 70 Blair and Robertson, XXXVIII, 78-80. 390 Audiencia amd Church: The Boyai Patronage patronage over the Dominican university, but also over the College of San Juan de Letran, a seminary for boys which was founded in 1640 and maintained by the Dominicans as an ad- junct to Santo Tomas. Reports, recommendations, and informaciones exist in abund- ance to prove that the audiencia exercised considerable influ- ence in the life and history of these institutions. The t]?ibunal celebrated acuerdos to improve the instruction in mathematics, physics, liiw 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 pros- pective teachers.''^ It supervised the records of these institu- tions, 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 institu- tions 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 man- ner that they supervised other ecclesiastical activities. 71 A number of testimonios exist in A. I., 105-2-6 bearing on suits of natives and Chinese mestisfos who aspired to enter the royal uni- versity. 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 mestiea, Fran- cisco de Borja, against the IJniversity of Santo Tom^s 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 flsoal, declared In its oonsulta of July 17, 1780, that the laws of the Indies (Recopil(U}i6n, 1-22-57) denied to mestizos, Chinese, and mula.ttoes 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. Church Finance 391 As we have already noted, the audiencia exercised juris- diction over matters of church finance. The most notable ex- amples of its control may be seen in the administration of tithes/^ the funds of temporalities, abras pias, funds of the Crusade, and espolios of the prelates. 72 Ecclesiastical tithes (dieztnos), according to Martinez Alcubilla, were "taxes upon the products of the earth which the producers paid from the entire product of their labor, without deduction of the ex- penses to which they were put, or consideration of the capital invested" (Martinez Alcubilla, Diccionario, V, 412). Escriche defines the ecclesi- astical tithe as "the part which is paid by the faithful for the mainte- nance 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 encom-enderos (Recopilacidn, 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 c6d/uMs 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 sulBcient for the decent support of divine worship, its pre- lates and ministers" (Recopilacion, 1-16-1 and 23). The c^tJttJa 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. vili], 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 (noverws), of which two were to be reserved for the crown, three for the construction of churches and hos- pitals, two for salaries of curates, and the remaining two portions were to be set aside to pay the dignitaries and subalterns of the diocese {Recopilaci&n, 1-16-23). In case the portion reserved for the salaries of curates proved in- sufficient, the royal treasury guaranteed a yearly stipend of from one hundred to a hundred and twenty pesos to each priest. This cddula was amended by the regulation of March 28, 162D, which provided that the royal ninths should be taken from the gross amount of tithes paid in (Recopilacidn, 1-16-25). So it developed that the crown came to assume entire jurisdiction over the administration of the tithes, retain- 392 Auddencia and Church: The Royal Patronage 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 church- men 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/^ In fact, these funds were to be ad- ministered 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 oflScials. Recommendations for reform should be made to the Council of the Indies either by the prelate or by the audiencia.^* 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.'''* 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 ing a portion of these episcopal rents for non-ecclesiastical purposes. The royal share was placed in the treasury and was administered by the ofioui,les 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, sub- ject to the supervision of the alcaldes mayones, who were responsible in turn for this particular matter to an oiclior and a royal treasury official of the central government {Hid., 1-16-1, 30). These rwvenos 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 novenes 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. Ill, 666-668 and note 57); see Priestley, Jos4 de Gdlveis, 249-253, for data on the administration of tithes in New Spain. '■s Recopilaci&n, 1-16-11, 3. ■alMd., 13. 75 76id., 24; also Real Ordenanza de Intendentes de Nueva Espafia, Art, 193. Eccleciasfical Tithes 393 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 admin- istration of the tithes was sent to the audiencia, from time to time, prior to 1768, and the magistrates were required to sub- mit opinions as to the availability and applicability of the pro- posed 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.^^ On December 11, 1775, the audi- encia passed an ordinance diminishing the tithes to be paid by natives, mestizos, Chinese and Japanese by one-half real per person.'" 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 encomenderas and friars were paying their share.'^^ 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 foUow^ed 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 thev were to be collected from the landlords.'" -6 Royal order of September 25, 1768, A. I., 107-5-23; see also Royal decree of July 9, 1785, A. I., 106-2-15. TT Testinwnios accompanying wuto of December 11, 1775, A. I., 105-2-9. •8 King to the Audiencia, July 12, 1778, A. I., 105-2-9. T!) 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 cMulas ex- pressly order it. This is interesting, in view of the fact that Gomez Zamora, in his Regio Patronato (381 et seq.) says that in the Philip- 394 Auddencia a/nd Church: The Royal Patronage By subsequent laws the audiencia was temporarily deprived of its jurisdiction over tithes. When the Philippine govern- ment was reorganized in 1787 by the Ordinance of Intend- ants, many of the special commissions which had been pre- viously retained by the jnagistrates were ceded to the superin- tendent of real hacienda. The actual collection of tithes was made the duty of the superintendent by cedula of October 6, 1792,^° 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 haci- enda, wrote to the king on July 31, 1799,'^ 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 contro- versial 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 execu- tion, 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 cedula of April 21, 1803, restored to the audiencia jurisdiction over the collection of tithes.*^ It may be said, however, that with the creation of the superintendency the audiencia was shorn of many of the mis- cellaneous functions with which it had been formerly endowed. pines the natives were not called upon for tithes. Montero y Vidal (Historia general. III, 179) cites the c6Aula, of May 23, 1801, which exempted Indians from the payment of tithes. 80 Montero y Vldal, Historia general, III, 179; also King to the Audiencia, October 6, 1792, A. I., 105-2-10. 81 Aguilar to Soler, July 31, 1799, A. I., 107-5-23. 82 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 administracidn geneml de tribwtos lists of all taxable property under their jurisdiction (Montero y Vidal, Historia general. III, 178). The Ordinance of Intendanis 395 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 miscel- laneous and unclassified duties, as well as on account of the audieneia's relation to the royal patronage, the administration of these funds came under the charge of an oidor whose offi- cial title was "administrator of the funds of the temporal- ities. "»« Nevertheless, the audieneia's share of direct control over these funds was still considerable. On January 23, 1803, a cedula was issued ordering that the money of the temporalities and oiras pias should be put at the disposal of the acuerdo of the audiencia.^* A report was submitted to that tribunal by Superintendent Aguilar on July 20, 1804, in accordance with this cedula. The report of Aguilar showed a balance on hand of 151,625 pesos waiting to be sent to Spain by the first trans- portation. In 1809, the jurisdiction of these funds was com- pletely 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 prop- erty 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 tem- poralities, like every other peso that came into the treasuries 83 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 heen 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. «* Cidula of January 22, 1803, A.' I. 107-5-29. 396 Audiencia and Church: The Royal Patronage of the colonies, were sent to Spain as rapidly as they were coUected.^^ The audiencia also audited the accounts of the obras pias, though its jurisdiction over these funds was often opposed.*" 85 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 "vol- untary 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 oonsulado, the contadores, ofici- ales, reales, obras pias, prelates, temporalties, the Compania de Fili- pinas, 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 prov- inces by the oomegidores, alcaldes irrMyores and intendentes. The various provinces and districts contributed on this occasion as follows: Tondo, 31,059 pesos; Laguna, 2768 pesos; Cebfl, 300 pesos; Albay, 85 pesos; CS,piz, 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 (oontribiiciones valimitarias or darectas, or donativos voliiaitarios) 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 commun- ities (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 gov- ernment. Priestley, Jos^ de Gdlvez, 370-71, sheds some light on the matter of these forced contributions in New Spain. 86 Martinez Alcubilla, Diccionario, X, 719. The obras pias 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 Dios. ■ The former was a branch of a larger organization of the same name, which had originated in Portugal, and was quite generally estab- lished 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 chil- dren, the support of the poor, and particularly of the orphans and Temporalities and Obras Pias 397 The chief foundations of thp airas pirn in Manila were the Santa Misericordia and San Juan de Dios. The wealth and power of the Misericordia became so great,^' 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. Com- plaints were made against it by certain religious orders, mer- chants, treasury officials, oidores, and the governor, himself. It widows of soldiers. This society flourished from the beginning under the favor of certain governors and oi^iores and by their assistance and by that of other friends, and through the endowment by the govern- ment of a large amount of free space on the galleon, it became a wealthy and powerful institution. San Juan de Dios, which wa^ organ- ized as a brotherhood, was established in the Philippines in 1617 with avowed charitable purposes. In the ccdiila of February 10, 1617, the king ordered the audiencia at Manila to place the hospitals under the care of this brotherhood (Blair and Robertson, XLVIl, 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. 87 By 1660, the Misericordia had received in contributions the sum of 356,363 pesos. In 1619, the treasury at Manila had become so ex- hausted by the expenses involved in resisting the Dutch that Governor Fajardo borrowed from the society the sum of 39,599 pesos. Later (Jovernor 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 Unforme del Contadar de Cuentas, SI Ae Etiero, 11 5o, 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 recov- ered. 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). 398 Audiencia and Church: The Royal Patronage 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 cedula was expedited, ordering the society to submit its accounts to the audiencia for inspection and approval.*^ The suspicions of the general public were confirmed, and the popular distrust increased when the inspection of 0idor Calderon revealed that the finances of the society had been carelessly kept, and that the books contained numerous dis- crepancies. 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 pro- tests, 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.*' On April 19, 1755, the cedula 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.^" This brought forth a storm of protest from the residents of Manila, headed by Governor Arandia, who went to some length to describe the abuses which had arisen in the past from the unrestricted liberty which the Misericordia had en- joyed. He accused the society of dishonest political practices. 88 Cidula of November 8, 1747, with testimonAos of previous cor- respondence, A. I., 106-5-8. sa informe del Contador de Cuentas del Consejo de Indias, 31 de Er,^o de 1755, A. I., 106-5-8. 30 Cedula of April 19, 1755, A. I., 106-5-8. Inspection of Oifas Pias 399 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.^^ The opposition of the governor and residents bore fruit to the extent that a compromise was made in the royal cedula of February 21, 1759, which restored the practice of having oidores inspect the accounts of the Miseri- cordia, 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.^^ The Misericordia maintained a stubborn and vigorous re- sistance 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 super- vision. 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 in- spection 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 Calderon as receiver and administrator of the funds, with the charge that the oidor should suspend all payments until the accounts were straightened out. The Mis- ericordia 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 cedula of February 21, 1759, which, while authorizing the inspection of the books of the society, forbade any minister 91 Arandia to the King, July 24, 1757, A. I., 106-5-8. 92 Cedilla of February 21, 1759, A. I., 106-5-8. 400 Audiencia and Church: The Royal Patronage "to interfere with or interrupt said House in the administra- tion or distribution of its funds.""' The cedula of February 21, 1759, was reaffirmed on re- peated occasions when the Misericordia refused to submit its books to the audiencia. The last law touching upon this par- ticular question was promulgated on August 2, 1787, when it was decreed that the accounts, books, records, and work ©f the Misericordia and its officials should be subject to the inspection of the audiencia.®* 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 audi- encia 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 cedula 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 super- intendent, they should be remitted at once to the audiencia."®^ This was accordingly done by Governor (and Superintendent) Aguilar,"* and after that time the jurisdiction of the audiencia was no longer questioned. Shortly after the establishment of the cansulado of Manila in 1769, a bitter dispute arose between that body and the audiencia for jurisdiction over cases involving the commerce of 93 King to the Audiencia, April 25, 1778, A. I., 105-2-9. 9* G^diOa of August 2, 1787, A. I., 105-2-10. 95 Aguilar to the King, July 20, 1804, A. I., 107-5-29. 96 The capital of the society was at that time estimated at 151,625 pesos. Inspection of Obras Pias 401 the Misericordia. On the basis of the cedula 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 patron- age, declared the consuLado to have exceeded its powers, in assuming the jurisdiction described above, and fined several of its members. The cansviado appealed the case, and in reply the king promulgated a cedula on June 7, 1775, declaring that neither to the audiencia nor to the coiistdado belonged the jurisdiction over such eases, but that they should be tried in first instance by the Council of the Indies."^ The reasons assigned for this decision were that the coiisulado 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 superdsion over espolios and vacant benefices.^* "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.'® On the occasion of his death a treasury official was 97 King to the Audiencia and GonsvMclo, June 7, 1775, A. I., 105-2-9. 89 The term espolio was applied to the properties which archbishops and bishops left at the time of their death, such property having accu- mulated when they were in oflSce. All possessions of deceased pre- lates reverted to the crown in accordance with the c6dula 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, Diccimario, 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. 99 Recopilacidn, 1-7-38, 39. 402 Audiencia and Church: The Boyai Patronage designated to estimate and administer the property left, pay the debts of the deceased churchman, execute his will with re- gard 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.^*"" Whether any modifications in the manner of collecting, dis- tributing 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 interven- tion of the oidores necessary on a number of occasions. By royal cedMla 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 oflciales 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 au- diencia. i<^i 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 cedula also provided that all 100 lua., 37, 40. loiCefJuto of June 24, 1712, A. I., 68-4-17; Recopilaci6n, 1-7, note 8. Direction of Espolios 403 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 es- tates of prelates. As soon as Gorospe died at Magald^n, Pangasinan, the alcalde mayor of the province sent imme- diate notification to the governor and audiencia. The triWnal, 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."^ 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.^"^ The significant feature of this espolio is that it was taken by an official as inferior in rank as an alcalde mmjor 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 cedula of June 24, 1712, had been delayed, or that this may have been a case, so frequent in the Spanish colonies, of compliance with- out 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 sub- io2AMto de Espolio of Bishop Gorospe, May 28, 1715, A. I. 68-4-18. 103 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 arch- bishop, by virtue of his position, became temporary ecclesiastical gov- ernor, with jurisdiction over the revenues of the diocese. The benefice was considered vacant until the appointment of a regular bishop. 404 Aiidiencia aiui Church: The Royal Patronage mit 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 oc- cupied with more important judicial duties.^"* 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 audieneia 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 audieneia suffered little if any diminution of its authority over the espolio through the Ordinance of Intendants. That code deprived the oficiales reales and mdores of the duty, formerly incumbent on them, of taking espolios and conferred it upon the intendants and cor- regidor-intendants of provinces. However, it was still required that the papers relative to the proceedings should be submitted 10* A fairly typical example of an espolio was that of Bisliop Are- valo of Nueva C&ceres, rendered by the audieneia 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 C!ollege of Santo TomS,s, 2000 pesos; bequest to the cathedral of Nueva CSceres, 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, W (te Julio, 1759, AvMencia de Mamla, A. I., 106-4-16). On June 14, 1774, the audieneia reviewed the autos of espolio of the Bishop of Cebfl, the total of which aggregated 11,210 pesos. The papers were duly forwarded to the ContaclMria 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 {Gonsultas del Gonsejo, 20 de Marzo, ITiS, 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 Cebfl on May 6, 1783 (A. I., 105-2-10). By way of contrast, the fact may be noted that the espolio of Arch- bishop Santos y Rufina yielded 92 pesos. {Auto de Espolio del Arzo- bispo Santos y Rufina, 20 de Octuire, 1192, A. I., 105-2-10.) Consiructimi of Churches 405 afterward to the audiencia for legalization and approval.^''^ . Appeals and eases of litigation arising from them were to be settled in the audieneia. 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 audieneia. 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 adminis- tered 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 ob- tained through the viceroy, governor, or audiencia upon the recommendation of the prelate of the diocese. ^"^ The laws of the Indies conceded that matters which did not admit of delay could be settled by the president and audiencia."^ In fact, as early as August 15, 1620, Governor Fajardo acknowledged receipt of a letter from the king in which occurred the state- ment 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. "^"^ It was provided that all peti- tions of religious orders for permission to construct convents and monasteries should be referred to the council, with the recommendations of the audieneia, but in actual practice, when 105 Real Ordenanza de Intendentes de Nueva Espafia, Artlculos 227, 228, 229. 106 Becopilacion, 1-3-1; 1-4-25. lOT/sid., 1-2-14. 108 Fajardo to the King, August 15, 1620, Blair and Robertson, XIX, 163. 406 Audiencia and Church: The Royal Patronage the advice of the audiencia was in the affirmative, the vice- patron 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. ^"^ On another occa- sion 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.^^" The ambitions of the friars to construct monasteries, con- vents 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 his- tory of the Islands. Possibly the best illustration of the authority of the audiencia in these matters may be noted in the part wMch 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 cedula 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 109 King to the Audiencia, June (?) 1604, A. I., 105-2-1. 110 King to the Audiencia, October 30, 1634, A. I., 105-2-1. Restraints on Religious Orders 407 suggested that the money should be supplied either by the in- come 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 Imus, 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-com- pliance with the provincial's request. In its report, the audi- encia 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 Nagtajan, 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 gov- ernor 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 consequeinces 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 atti- tude of the Council of the Indies and of the laws ordering that licenses for the construction of convents should be given only bv the Council of the Indies, after consultation with the pre- 408 Audiencia and Church: The Boyal Patranage late of the ecclesiastical district and with the audiencia, gov- ernor, or vieeroy.^^^ In this way, due very largely to the in- fluence of the audiencia, the efforts of this order to extend its authority were checkmated. This may be considered as a typi- cal 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 investi- gate the titles of the lands of the friars, and, by this proceed- ing, the tribunal deprived the orders of much of the property which they had usurped.^^^ It may also be noted that an oidor regularly inspected the royal hospital at Manila,^^^ 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.^" 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 sup- ported 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 111 Recopilacion, 1-3-1, 1-6-2. The expediente covering this case is in A. I., 105-3-1. The cMvM of April 6, 1778, and testirrionios are in A. I., 105-2-1. 112 See Cunningham, "Origin of the friar lands question in the Philippines," in The American politioal science review, X (August, 1916) pp. 465-480. 113 Recopilacidn, 1-4-20. ii4 76id., 1-2-20. Assisting the Vice-Patron 409 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 spe- cial 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 adminis- tration of ecclesiastical finances, devoting especial attention to tithes, obras pias and espolios. And finally, as we have just noted, it was endowed with considerable authority in determin- ing 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 tribu- nals, 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 discus- sion, 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 ecclesi- astical courts the chief concern of the audiencia was the ad- ministration 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.^ Neverthe- less, it must be observed that there were times when the audi- encia exercised the function of an impartial, disinterested court, with no aim or object other than that of maintaining simple 1 See Note 2 of the preceding chapter. -Bases of Authority 411 justice. It may be conceded, for example, that the authority which the audiencia exercised in the settlement of disputes be- tween religious orders and between the prelates and the regu- lars 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 protec- tion of the Indians from the abuses of the churchmen,- its entertainment of the recurso de fuerza? 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 in- temperate use of the interdict,* or from a too liberal extension of the right of asylum,^ the audiencia was not seeking the ends 2 Recopilaci6n, 2-16-138. 3 See Note by A. P. Cueliing, in Blair and Robertson, V, 292. ( Escriche (DiccUmario, I, 838-9) defines ftuerza as "the wrong which an eccle- siastical 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 fuertsa or violence may be terminated or undone. There are three ways men- tioned by Alcubilla in which an ecclesiastical judge may commit fweraa: 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 al- lowed (Martinez Alcubilla, Diccionario. V, 807). 1 Recopilaci'in, 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 cer- tain 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 pro- hibit the saying of mass in a low voice behind closed doors and with- out the ringing of bells. A priest who violates the interdict may be pronounced "irregular", but a layman who does so may incur the pen- alty of excommunication (see Catholic Encyclopedia, under "Interdict"). 5 This refers to the privilege extended by the church to offenders against the laws of the realm, who were allowed to take refuge from 412 Audiencia and Church: Ecclesiastical Jurisdiction of justice (though judicial proceedings 'were instituted) so much as it was defending the royal prerogative and protecting the ofiScials 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 proc^edure 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.^ The division of the civil authorities in a church or convent. This practice was recog- nized 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 premedi- tated. The privilege was often abused by individual churchmen (Escriche, Bicdcmario, I, 353). 6 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 (tem- poral). 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 juris- diction by themselves but by means of their provisores or vioarios. These latter may be either gerwrales or fordnem. . . . The term proviS'Or 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; . . . fordneos are the others established as delegates in certain parts of the diocese in order to facilitate the administration of justice; no appointments to these oflSces may be made without the- royal approbation. The au- thority of the provisores and vioarios cease by death of the prelate from whom they obtained the nomination, and is reassumed by the caiildo 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 Ecclesiastical Tribunals 413 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 authori- ties considered ... all questions involving the limits of bishoprics, the rights and prerogatives of the holders of henefices, 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.'' 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 vioarios, ordmarios who dis- charge the functions of judges of first instance. As the ohispos exento^ 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 sclieme outlined In the preceding paragraphs. The three bishops of Nueva Segovia, Cama- rines, and Cebti 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 a\:cordance 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 metropoli- tan, 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, ascer- taining the general character of the work of the orders, the conduct of their dignitaries and the regularity of their administration. ' Moses, South America on the eve of emancipation, 126. 414 Audiencia and Church: Ecclesiastical Jurisdiction It will be our function in this chapter to determine the partici- pation 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 dis- cord in the Philippines. The attitude of the churchmen on this question is well shown by a. letter written January 20, 1688, by Fray Alonso Laudin, 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 disagree- ments 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-^ Laudin 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 ecclesi- astical jurisdiction, which has always been allowed, but they cannot hereafter give fulfillment to the provisions of the audi- encia, even at the risk of expulsion from their districts." Laudin was of the opinion that the laws had been misinter- preted by the civil officials and that the king had never in- tended that the churchmen should be so entirely shorn of their powers. He concluded his appeal with the solicitation that 8 Carta de Fr. Francisco de LavMn . . . al Consejo de Indias, 20 de Enero, 1668, A. I., 68-1-44. Church Courts 415 such laws should be made as would determine the questions at issue and bring about harmony between church and state in the Islfinds. 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 dis- agreements." 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 jurisdic- tion, neither interfering with them nor permitting them to be .molested by other civil authorities.^ 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 ofScials of the govermnent, and not to allow the ecclesiastics to infringe on their jurisdiction through acts of fuerza, interdicts, or by any other illegal means.^" The ecclesiastical courts were forbidden to trj' laymen or those subject in first instance to the jurisdiction of the civil courts. They were forbidden to imprison private subjects, or embargo or seU their property without first seeking the consent and co- operation of the secular arm.^^ They were forbidden to try any cases except those iovolving the church, and they could not, without the aid of the civil authorities, impose fines or condemn persons to labor.^- In general, they were solicited to s Reoopilaciiin, 1-7-54; 2-15-150; 3-1-4; Escriche. Diccitynario, II, 453. 10 JJecoptloctdn, 1-10-1, 2. 11 Escriche, Diccionario, II, 453. 12 J?ecopita«<}n, 1-10-4, 6, 7, 12; 1-7-12. 416 Audiencia wnd Church: Ecclesiastical Jurisdiction work in harmony with the audiencia, and to give all possible assistance to that body.^^ 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 support- ing the audiencia, and the latter dispatching provisions to its magistrates and subdelegates in support of the ecclesiastical judges and tribunals.^* The laws cited above did not become effective- suddenly, but were evolved through a long period of dissension and dis- pute 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 ren- dered very efficient service in this particular, especially under the leadership of Bishop Salazar.^^ 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 iso- lated parish priest, opposed the change, and regarded the assumption of their former powers by the civil authorities as unauthorized usurpation.^^ It was with great difficulty that 13 lUd., 11. iilUd., 2-16-153; 1-10-13; 3-1-3. 15 As an example of this we may refer to the work of the Augustin- ians in bringing to the light of judicial scrutiny the abuses of certain encom&nderos against the Indians of Mindanao. This was in 1581, before the audiencia was established. The offending enoowbencLeros 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). 16 The opposition of Salazar to what he termed the encroachment of the civil jurisdiction was based on the assumption that the royal The Grawth of Authoriiy 417 the churchmen were able to adjust themselves to the new con- ditions. They were required frequently to aid the civil author- ities in the apprehension of criminals and in the obtaining of testimony, thus co-operating generally in the administration of justice.^' 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. Sub- sequently, the audiencia was admonished that on no occasion should churchmen be called to act as witnesses.^' So it came about that although the intervention of the audiencia was pre- scribed 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 govern- ment, the assumption of its legal power by the audiencia was necessarily gradual. Nevertheless, the tribunal ultimately at- tained extensive authority in ecclesiastical affairs, an analysis of which will now be made. patronage did not extend to tribes which lived in an uncivilized and savage state. He contended that the pope had not conceded this, con- sequently, 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). 17 Cabildo de Moaiila to the King, A. I., 68-1-35. 18 Fajardo to Felipe III, August 15, 1620, Blair and Robertson, XIX, 155. The pendulum seems, however, to have swung in the other direc- tion 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 aloalAe Tnayw in Batangas, destroyed his house, mal- treated his person, and, in the presence of the natives, publicly ac- complished 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 investiga- tion and forwarded the papers relative to the case to the court for final action. See Chapter X, note 35. 418 Audiencia and Church: Ecclesiastical Jurisdiction The audiencia exercised jurisdiction as a high court of ap- peal over suits to which the religious orders were parties. Most of these eases 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 ex- ample of this is furnished by the contention which arose in 1736 between the Jestiits 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.^' 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 Spaia. 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.^" 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 19 Blair and Robertson, XXVIIl, 314-15; see XLI, 22-25, 134, 231-4, 239, 255. 20Montero y Vidal, Historia general, 283-284. Suits Between Orders 419 favor and patronage. When Santo Tom&s 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 honoi's of a like character in their college of San Jose. The audiencia denied their petition; the case was ap- pealed to the Council of the Indies, and the higher authority decided that both institutions should enjoy equally the privilege of conferring scholastic honors.-^ 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. Al- though the decision was made in favor of the Jesuits, the dis- agreements 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.-- 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 mesthos 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.^^ In 1737, on complaint of the natives, an investigation was conducted by Oidor Calderon which put a check upon certain transactions of the Jesuits in the province of Batangas. It was proved that =1 Letter of Pray iliguel de Solano, May 7, 1753, A. I., 67-6-4. 22 0rellana to Carlos II, February 24, 1683, Blair and Robertson, XXXVIII, 81-85. =3 Concepci6n, Historia general, IX, 107. There are records of many suits of this character throughout the history of Juan de la Coneepci6n. 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. 420 Audiencia and Church: Ecclesiastical Jurisdiction 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.^* 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 re- strain 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.^^ The execution of the decision of an ecclesi- astical judge could be suspended by an edict of the audiencia on the grounds of fuerza, while the case was being investigated by that tribunal.^® The civil government usually took the initiative in these appeals, but there were occasions in the his- tory of the Islands in which ecclesiastical authorities and tribunals interposed recursos de fuerza against the archbishop. In dealing with these eases the audiencia first ascertained whether fuerza had been committed and then, if the results 24 See note 3 of tills chapter. 25 Martinez Alcubilla, Diccionario. V, 807. 26 iSecopitaddn, 1-10-10; 2-15-136. ' Recursos de Fuerza 421 of the investigation were affirmative, the tribunal was empow- ered to raise the fuerza {alzar or quitar la fuerza)-' and place limitations upon the ecclesiastical authority in order to pre- vent future abuse of power. ^* 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,^^ as a punishment for fuerza, and not to proceed to such lengths except in excep- tional cases, wherein the strictest measures were necessary. On such occasions the audiencia might exile the offending ecclesi- astic, giving account of its act to the Council of the Indies.^" All proceedings of this nature had to be carried on secretly and with the greatest possible dispatch and brevity,^^ and all churchmen who were deprived of their benefices through the re- curso de fuerza had the privilege of an appeal to the Council of the Indies.^- 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 27 Aliiar or guitar to fuerisa was the act on the part of a royal tri- bunal of abrogating, annulling, or reforming the effects of violence committed by an ecclesiastical judge. — Escriche, Dicdonario, I, 839. 2s Reoopilacidn, 2-15-134, 135. 29 Ibid., 2-15-143. 30 Ibid., 144. 31 /Bid., 152 and 142. 32j&id., 2-2-4. 422 Audiencia and Church: Ecclesiastical Jurisdiction bitter contests whidi 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 presump- tion, unauthorized by ecclesiastical canons. In the well-known Pardo controversy (1683-1689), refer- ences to which may be found in any history of the PhiMppines, 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 usurp- ing 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 chap- ters 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 fre- quently 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 eus- Restraint of Interdict 423 ternary spiritual consolations and benefits of the church.** 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 Avas instituted to ascertain the act and degree of en- croachment; 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 controvery 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 archbisliop. 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 re- move the ban,** but owing to dissensions within the tribunal, the opposition of the new governor, the increasing power of the archbishop, the certainty that the roj-al authority had al- ready 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 when- ever this ecclesiastical prohibition interfered with the govern- ss Escriche, Diccionario, I, 712. ci Reccpilacion, 2-15-148: See expediente on affairs in the Philip- pines. 1690. A. I.. 67-6-3. 424 Aiidiencia and Church: Ecclesiastical Jurisdiction merit 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.^' The audiencia was given the special injunction not to interfere with censures generally, but to per- mit 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.^* It had frequently been the practice of the prelates to pro- nounce censures against oidores and alcaldes, who, in proceed- ing with their duties as inspectors of the provinces, encroached upon what the churchmen regarded as their own particular and private jurisdicton. 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 Querela to inspect the province of Camarines. This magistrate was excommunicated by the bishop of that diocese and was compelled to remain in banish- ment five months, the audiencia refusing to set aside the cen- sure 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.^^ 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 sum- mons 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.^' This was the law, but occasionally, as in ssIUd., 1-7-47. selhid., 2-15-149. 3T JfiitJ., 1-10-9. ssiud., 10; 2-15-136. Restraint of Interdict 425 the case of Querela, local circumstances rendered impossible or xindesirable 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.^' The early governors, especially, had many difficulties with this phase of ecclesiastical high-handedness and the letters of such executives as De Vera, Tello, Dasmariiias, and Morga complained continually against this particular abuse of power by the prelates,*" 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. Gov- ■ernor Eonquillo, 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 ex- communication on the part of the church.*^ Indeed, during the twenty-five years succeeding Eonquillo 's term as governor, the audiencia had so frequently set aside ecclesiastical cen- sures, 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 iing, on November 13, 1626, was obliged to issue a special cedilla in restraint of his Manila tribunal and for the protection of the ecclesiastical jurisdiction.*^ Examination of a large number of cases shows that the method by which the audiencia set aside excommunication was 39 This is discussed in the preceding chapter. 40 A I., 1-1-3/25; Blair and Robertson, VIII, 275-281; X, 79, 245-275. 4iRonquillo to the King, July 12, 1599, A. I., 67-6-6, cited in the preceding chapter. i^CMula of November 13, 1626, A. I., 105-2-1; for cases of tlie •excommunication of viceroys and oickires and other matters relating to the Inquisition in Perfl and in New Spain see Lea, The inquisition hi the Spanish dependencies, 191-298, 319-451. 426 Audiencia and Church: Ecclesiastical Jurisdiction usually through an ultimate reliance on force. Nevertheless, taking three hundred years of the history of the Philip- pines 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. Theoreti- cally, 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 ecclesiasti- cal 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' con- stable to arrest the provisor who had fulminated the excom- munication, 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 gov- ernment, as a result of which the matter was arbitrated and peace was brought about.*^ 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 barken to the commands of the vice- patron and the royal tribunal and their insistence on the cen- sure were adjudged to constitute fuerza. This ease originated in the violation of the right of asylum by the governor and the arrest of a murderer who had taken refuge in the Augus- ta Corcuera to Felipe IV, September 25, 1623, Blair and Robertson, XXVI, 104-107. Ultimate Reliance on F'Orce 427 tinian convent. So open was the defiance of the civil govern- ment that the criminal was executed in the courtyard, under the very windows of the convent wherein were congregated the prelate and his siipporters who were commanded not to touch the body for three days.** 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 metro- politan capital.*^ Montero y Vidal states that this case is interesting and important as a test of the power of the gov- ernor; for many persons, he alleges, did not believe that the governor could raise an interdict.*^ 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 power- less 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 Arch- bishop Pardo. Governor Bustamante claimed that he was act- ing in accordance with his own properly constituted authority in 1719, when he appointed his own audiencia, set aside re- peated interdicts, penetrated the asylum of the church, arrested the archbishop and defied the entire ecclesiastical organization. ** Martinez de Zuuiga, An historical view, I, 268. 45 Relation of 1635-1636, Blair and Robertson, XXVI, 39-40; see also Corcuera to Felipe IV, Blair and Robertson, XXVI, 60-127; Mon- tero y Vidal, Historia general, I, 195-196. *6 Montero y Vidal, op. cit., I, 193-197. 428 Audiencia and Church: Ecclesiastical Jurisdiction 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 Eojo. 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 audi- encia 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 adminis- tratively, was the Inquisition. Properly speaking, there was no tribunal of the Holy Office in the Philippines, the Inquisi- tion being represented in Manila by a commissary.*' This representative was sufi&ciently powerful, however, to constitute a worthy opponent for the civil power and one who, on account 47 The Inquisition, as represented by one commissary and three alternates (who were usually bishops) was established in the Philip- pines 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 per- vert Christian morals (Perez y Lopez, Teatro, XXVIII, 208). The In- quisitor 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 olEce." The In- quisition 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 jurisdic- tion. 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. The Avdieiicia and the Inquisition 4:29 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 inquisi- tors 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 ex- pected to formally receive the inquisitors and to pay them all due respect.*' At the time of the establishment of the Inquisi- tion in Manila, no audiencia as yet existed. From the very be- ginning, 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 gov- ernors in a position inferior to that of the Inquisition. The interference of civil magistrates with the inquisitors in behalf of the government was forbidden,*" even the ordinary means of protection were denied them. The rcctirso 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.^" Little change was made in these laws un- til 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 *8 Recopilacion, 1-19-1. 48 Law ol May 22, 1610, RecopUocion. 1-19-2. 50 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. {Cidula of March 10, 1553, Recopilacion, 1-19-4). 430 Audiencia and Church: Ecclesiastical Jurisdiction 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 govern- ment. 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.'^ Oidores and executives were forbidden to open the mail or tamper with the correspondence or legal documents of the inquisitors.'" Oidores and fiscales were authorized to give legal advice to the judges of the Inquisition when counsel of this kind was re- quired.'^ 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.'* 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 cedula of March 19th of that year, polygamy was brought under the fuero mixta f^ 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, 51 Reoopilaoidn, 1-19-18, 19. 52/6id., 16. 53 Hid., 21 and 22. silWd., 3-15-78. 55 "When a case may be tried indistinctly either by an ecclesiastical or lay judge it is said that the case is of the fuero mixta 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" (Bscriche, Diccionario, I, 832-833). The Audiencia and the Inquisition 431 1766, this crime was again made punishable solely by the In- quisition, but on August 10, 1788, jurisdiction over cases of polygamy was taken entirely from the Inquisition and given to the royal justices.^® 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 per- mitted to exercise jurisdiction over the Chinese, or over the aboriginal inhabitants of the Islands.^' 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 prel- ates 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 ex- emptions 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 sur- rendering 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. ' '°* This charge 56 See note to Reoopilaoion, 1-19-4. 57 Le Grentil, II, 172. Reoopilacidn, 6-1-35. 58 Audiencia to the King, July 20, 1585, A. I., 67-6-18. On June 26, 1586, the audiencia recommended the discontinuance of the Inqui- sition in the Philippines on the ground that it had been utilized "as a citadel for the shelter of those desirous of resisting the royal author- ity" (Audiencia to the King, A. I., 68-1-33). Archbishop Santibanez, on the other hand, was desirous of converting the inquisitorial author- ity 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. — Santibanez to Philip Hi June 24, 1598, Blair and Robertson, X, 151). 432 Audiencia and Church: Ecclesiastical Jurisdiction was also brought against Salazar by the Jesuit, Sanchez, in his memorial of 1591.°° 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 respect- ively enjoined to confine themselves to their own particular fields of authority.*" The second charge made against the Inquisition was that it allowed itself to be influenced, utilized, and possessed by in- dividuals and private interests for their own selfish ends. Under these conditions the audiencia was powerless; the In- quisition 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 ex- cesses in his zeal that he ultimately proved to be the agent of his own downfall.*^ 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 Audi- encia 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). oo Cited already in various connections, particularly in Chapters II and X of this treatise. 60 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. 61 Lea, in his well-known work on The inquisition in the Spanish The Salcedo Affair, 1668 433 The various sacerdotal historians of tlie Philippines, in treat- ing 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."'- Among the acts of treason 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 admin- istration" (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. 62 The leading church historians of the Philippines — Martinez de Zuiliga, Salazar, Fonseca and Concepci6n — 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, B6nifaz, Montemayor, Lefin, and the Mu- nicipal Cablldo, 1670-1, A. I., 67-6-3; see also note to Ventura del Arco Mss., in Blair and Robertson, XXXVII, 262). Zuniga, 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 (Martinez de Zfluiga, An historical view, I, 307-308). Fonseca charges him with avarice, maintainijig that all classes of society in Manila were disgusted with the governor's com- mercial 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; repre- sentative citizens of Manila petitioned the audiencia, asking that it deprive him of the government, . . . and the royal acnerdo 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, His- toria de la provincia de santissimo Rosario. Libro V, Capltulo VIII, quoted in Sobre una resena histiirica. 92). Concepci6n, the Augus- tinian 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 oidorcs were therefore reluctant to take action against the governor (Concepcion, Historia general, VII, 137-138, 162-200). 434 Audiencia and Church: Ecclesiastical Jurisdiction 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."^ This was the leading pretext for his arrest. We have already men- tioned in a former chapter that the conduct of the oidores was not above reproach on this occasion. Immediately after the re- moval 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, Bonifaz. With Salcedo out of the way and the audi- encia intimidated and powerless, the Inquisition and the eccles- iastics ruled with a high hand for a period of three years, until the arrival of the new governor, Manuel de Leon, in 1671."* 63 Salcedo was charged witli 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 cap- ture the colony for Holland. It is evident that there was no lack of charges against Salcedo (The original correspondence and oonsuttas 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 Sal- cedo, says that "in 1668, Governor Salcedo had some difference with (the friais) . . . 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 con- spiracy and, one night while the governor slept, the conspirators, among whom were the provincial of the Franciscans, the gtuardidn 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 con- sidering the latter insecure, they carriod him to that of San Augustin, loading him with a heavy chain" (Pardo de Tavera, Beseiia Histdrica, 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. 64 That Governor Leon had a trying position to fill may be believed by his description of affairs as he found them in Manila, and of his The Audiencia and the Inquisition 435 The audiencia, after it had been reconstructed by Governor Leon, gave some account to the king of the excesses of "Fray Joseph de Paternina, religious of the order of San Agustin, and commissary of the Holy Inquisition, who has been so vain and haughty since the imprisonment of Governor Saleedo, a thing very unfortunate for these Islands. "«' 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 aouerdo session of the audi- encia 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 commis- sary was submitted by the audiencia at this time. He had com- muted 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, 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 Saleedo, my (his) predecessor, and his interference in matters wherein he had no real jurisdiction." Leon reported having prevailed upon the royal audiencia to order the commissary to refrain from meddling in affairs which did not con- cern 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, con- stituting a sinister power whose strength was not fully realized (Le6n to Coimcil, June 10, 1671, and July 4, 1672; Consulta of the Council of the Indies, July 16, 1674, A. I., 67-6-3). 65 Audiencia to the King, June 15, 1671, A. I., 67-6-10. 436 Audiencia and Church: Ecclesiastical Jurisdiction 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 audi- encia. He had produced such a state of affairs that the impotence of the civil government was a subject of com- mon 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 Philip- pines able to place an effective check on the triumphant in- quisitor. The only relief that could come was furnished on June 4, 1671, in the appointment of a new commissarj'^, 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 dis- approval 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."* The new commissary did nothing toward the continuance of the tribunal which his predecessor had established illegally. 66 Consulta of the Council, August 12, 1672, A. I., 67-6-10. The Audiencia and the Inquisition 437 With these manifestations of the royal support, the audi- encia, which had been reconstituted on the arrival of Governor Leon, regained its authority and proceeded ably to second the executive in his struggle with the powerful ecclesiastical organi- zation. The new commissary, who had lost his papers in a shipwreck, appealed to the tribunal for recognition and sup- port in a struggle which he had undertaken against the Fran- ciscans. Through the aid given him by the audiencia, he im- prisoned 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 com- missary did not authorize him to act at this time.*' In inter- fering with and actually cancelling the acts of the commissary, the audiencia was exceeding its authority, for the laws pre- scribed that his decisions could be reversed only by his imme- diate 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.^^ 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 Inquisi- tion was unlimited. The fear and respect with which the latter institution was regarded contributed to its momentary triumph. The atidiencia 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 c- Montero y Vidal, I, 356. 68 Acwerdo of August 24, 1672, A. I., 67-6-10. 438 Audiencia and Church: Ecclesiastical Jurisdiction practically to every interest in the colony which had been op- posed 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. T^e tri- bunal of Mexico discountenanced the acts of its former repre- sentative, 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 authori- ties was relative, recognition depending partially on local cir- cumstances and ultimately on the attitude of the superior gov- ernment. In fact, it may be said that the latter was the decid- ing 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 ecclesi- astical 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 Philip- pines."^ 69 While the Salcedo affair accurately depicts the power which the Inquisition assumed on a partlculaT 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 muph 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. The Audiencia and the Inquisitimi 439 During the eighteenth century considerable authority over the Inquisition was given to the civil courtp. The former posi- tion 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, audieneias, and corregidores were authorized to restrain any inquisitorial tribunal from maltreating its own prisoners.™ This same law provided for the punishment by the civil courts of inquisitors who contravened this law. This was the first regu- lation 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 rela- tion was taken from the Inquisition and given to the civil courts.'^ By the ceduh 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 tliem in all possible ways. The civil authorities were ordered to guard against an excessive number of these functionaries. The magis- trates were especially instructed to act as guardians of the royal prerogative in dealing with the representative of the In- quisition and to report to the superior government on their relations with them. By this cedula the authority of the in- quisitorial agents was distinctly limited to matters of faith, with appeal to the tribunal of the Inquisition. The magistrates 70 Reales resoluciones no recopiladas, Perez y Lopez, Te-atro, XXVIII, 207. 71 Recopilacidn, 1-19, note 2. 440 Audiencia and Church: Ecclesiastical Jurisdiction were ordered to see that these instructions were foUowed/- In this way the civil authorities, and particularly the magis- trates 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 juris- diction. It would be desirable, did time and space allow it, to illus- trate further the jurisdiction of the audiencia over ecclesiastical affairs by showing in detail the part which the tribunal played in the friar lands litigation^^ and in the disputes over ecclesi- astical visitation in the seventeenth and eighteenth centuries in the Philippines. It will be sufiScient here to state that the government sought at irregular intervals and with varying 72J6mJ., note 1. This tendency culminated in the decree of Febru- ary 22, 1813, which suppressed the Supreme Tribunal of the Inquisi- tion 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 Inquisi- tion 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 f6, which turned out to be in reality inquisitorial tribunals with practically the same author- ity which former tribunals had exercised. They inflicted corporal and spiritual punishments and guarded in their ministry the most inviol- able 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 Feb- ruary 6, 1830, a c6dv,la 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 pre- lates to exercise jurisdiction with appeal to the Department of Grace and Justice (Escriche, Diccimuvrio, I, 773). 73 The author has treated this subject in a separate monograph en- titled "The origin of the friar lands question in the Philippines," in The American political science review, X, 463-480. Litigation Over Friar Lands 441 degrees of success, to make the orders prove titles to lands in the same manner that was required of other corporations and individuals/* 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 audieneia as a court of final resort in the testing of the titles to lands occu- pied 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 adminis- trations 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 1* The friar lands litigation began in 1687 and continued until 1751. The efforts of the government met with considerable opposition. The oidories 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 ffeneral, I, 385, ei seg.; Con- cepci6n, Historia general, VIII, 192-206; PMlippme Census, I, 342- 343- Solve vma reseOa Jiistdrica by the Dominicans of Manila. 65-89). 442 Audiencia and Church: Ecclesiastical Jurisdiction which were held by friars in lieu of secular priests." The archbishops relied on the audiencia for assistance in the en- forcement 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 ques- tion, 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 visi- tation.^* The archbishop was directed to appeal to the audi- encia or vicepatron for assistance in the subjection of offending curates,^' but he was forbidden to visit the regulars in their convents,'^ 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.''* Local conditions in the Philippines did much toward de- termining the character of the support rendered by the audi- encia 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 mat- ter of visitation. In Camacho's time, when the friars were on 75 "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 per- mit them to become parish priests. Under this order a very large number of these parishes in America in the first century were occu- pied by friars. But in the middle of the eighteenth century, this privi- lege was withdrawn, leaving them only two friars in a conventual province" (Mosrs, South America on the eve of emancipation, 138-139). 76 See Cunningham, "The question of ecclesiastical visitation in the Philippines," in The Pacific Ocean in history, 223-237. 7T Reoopilaci6n, 1-15-28. 78 lUd., 29. 79 /bid., 31. Ecclesiastical Visitation Controversies 443 the point of leaving the Islands rather than submit to visita- tion, the audiencia and the governor wisely counseled modera- tion 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 nati\e, to take the place of the friars who threatened to leave the Islands if visitation were insisted upon. The magistrates like- wise 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 partici- pated 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 char- acter in aiding the authorities concerned to ascertain their rights according to the existing law.^" 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 de- fending the civil government from ecclesiastical usurpation the audiencia acted in defense of the royal patronage: Neverthe- less, 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 so Valuable materials, for the most part original, on the visitation controversy may be found in Blair and Eobertson, 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 (kisioria general, I, '86-87, 295, 398; II, 134-138, 257 et seq.) presents a good secondary account of the subject. 444 Audiencia and Church: Ecclesiastical Jurisdiction 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 administra- tive committee or an executive agent, as in the cases which have been heretofore described. BIBLIOGRAPHY list op printed works cited Alcesjo, Antojtio de Diccionario geogriifico-liistorico de las Indias Ocddentales 6 Amer- ica. 5 vols. Madrid, 1786-1789. AXT.VMIRA Y CREVEA, RAFAEL Historia de Espaiia y de la civilizacwii espauola. 3d ed, 4 vols. Barcelona, 1913. ALVAUKZ DE AbrEU, ANTONIO Extracto historial. Madrid, 1736. Aj«tequbra, Jos£ MARiA Historia de la legislacidn espco'iola. desdc los tiempos mas rcmotos hasta nuestros dias. 2d ed., Madrid, 1884. Abtigas, Manuel El seti'icio de aduanKis en Filipiiws. Madrid, 1895. Baxcroft, Hubert Howe History of Central America. 3 vols. San Francisco, 1882-1887. History of Mexico. 6 vols. San Francisco, 1883-1888. Bakbows, David P. A history of the Philippines. Indianapolis, 1905. "The governor-general of the Philippines under Spain and the United States," in Tlie Pacific Ocestitiici(in del Boletin Oficial por real orden de 18 de Mayo de 1860 y ptii)Uc6 su ultimo num-ero el 12 de Agosto de 1898. Manila, 1860-1898. Garcia Icazbalceta, JoAQufN Don Fray JxuMi de Zumdrraga. Mexico, 1881. G6m;ez Zamora, Matias Regio patronato, espanol i indinno. Madrid, 1897. GovANTES, Fet.tpe MarIa de Cow/penMo de la historia de Filipinos. Manila, 1877. Yida de Don Sividn de Anda y Salazar. Manila, 1862. GRAU T MONFALCdN, JuAN Memorial informatorio al rey . . . por la . . . ciwdad de Ma/nila soJyre las pretensiones de aqwella dwdad, 6 islas, y sus vecinos, y moradores, y coniercio con la Nueva Espana. Madrid, 1637. Justificacidn de la conservacidn, y comercio de las islas Filipinas. Madrid, 1640. Gritfin, George Butler "A brief bibliographical sketch of the Recopilacion de Indias," in Historical Society of Southern California, Publications, 1887. San Francisco, 1888. Hackett, Charles Wilson "Delimitation of political jurisdictions in Spanish North America to 1535," in The Hispanic American historical review, 1, 40-69. Hartzenbusch, Eugenio Apiintes para un catAlogo de peri6dicos Madrilenos. Madrid, 1894. Helps, Arthur Tfte Spanish conquest in America. 4 vols. New York, 1900-1904. M. Oppenheim, ed. [First ed., London, 1855-61.] 450 Bibliography HbrnIez, Fkancisco Javier Coleccidn de buUis, breves y otros documentos relativos d la Igle- sia de America y Filipinos. 2 vols. Bruselas, 1879. Histoire de la persecution de deux saints evSques par les Jesuites, - . . I'un Dow, Bernardin de Cardenas, evegue du Paraguay dans I'Amer- ique meridionale, Tautre Dom, Philippe Pardo, airchSveque de VEglise de Manila, metropolitaine des isles Philippines dans les InMes Orientales. Manila, 1691. Humboldt, Alexander von Political essay on the kvngdom, o/ Wew Spain. 4 vols. London, 1811. Instruccidn que los virreyes de Nueva EspaMa dejwon a sus suoesores. 2 vols. Mexico, 1873. JAGOB, Feodob Yiages por Filipiruis traducidas del alemdn por 8. Vidal y Solar. Madrid, 1875. Juan de la Concepci6n See Concepcion. Lafuente, Modesto Historia general de Espaiia. 25 vols. Barcelona, 1889-1890. Lannot, Charles de L'expansion ooloniale du Portugal jusqu' au d4but du XIXe siScle, in Lannoy and Vander Linden, Histoire de l'expansion coloniale des pe-wples europ6ens: Portugal et Espagne. Bruxelles, Paris, 1907. La PfiRousE, Jean Francois de Galaup Voyage de ha P6rouse autour du rrvonde. Paris, 1797. Lea, Henry Charles A history o1 the inquisition in Spain. 4 vols. New York, 1906- 1907. The inquisition in the Spanish dependencies. New York, 1908. Legentil de la Galaisi^re, Guillaume Joseph Hyacinthe Jean Baptistb Voyage dans les mers de I'Inde, fait par ordre du roi, d Voccasion du passage de Vin-us, sur le disque de soleil, le 6 juin 1161, & le S du mSme mois 1169. 2 vols. Paris, 1779-1781. Leroy, James A. The Americans in the Philippines. 2 vols. Boston and New York, 1914. "The Philippine 'situado' from the treasury of New Spain," in The Amerioam, historical review, X, 929-932; XI, 722-723. Bibliography 451 Review: Blair and Robertson (editors), The PMHppine Islands, 149S-189S, in The Amerioan histwioal revi&w, XI, 681-687; XII, 143-145; 912-915. Leroy-Beaulietj, Paul De la colonization chez les peuples nvodemes. 2 vols. Paris, 1902. LowERY, Woodbury The Spanish settlements vnthim, the present limits of the United, States, 151S-1561. New York, 1901. Malcolm, George A. The government of the Philippine Islands, its d/evelopTwent and fundamental. Rochester, 1916. Mallat de Bassilau, Jean Les Philipipines ; histoire, geographic, nioev/rs, agriculture, indus- trie et commerce des colonies espagnoles dans VOceanie. 2 vols. Paris, 1846. Marichalar, a., and Manrique, Cayetano Historia de la legislaci-dn y recitaciones del derecho civil de Espana. 9 vols. Madrid, 1861-1872. Martinez Alctjbilla, Marcelo Diccionario de la administracion expaHola, peninsular y ultra- marina. 12 vols. Madrid, 1868. MaKtInEZ de ZtJNIGA, JOAQUfN An historical view of the Philippine Islands: exhibiting their dis- covery, population, language, govern/ment, 'manners, customs, productions and commerce. Translated by John Mayer. Lon- don, 1814. Estadismo de las islas Filipinos, 6 mis viajes por este pais. . . . Puhlioa esta obra por primera vez extensamente anotada W. E. Retana. 2 vols. Madrid, 1893. Historia de las islas Filipinos. 2 vols. Sampaloc, 1803. Mas, Sinibaldo de Informe soire el estado de las islas Filipirvas en 1842. Madrid, 1843. Maubtua, Victor N. Anteoedentes de la Recopilaci6n de InMas. Madrid, 1906. Medina, Josi: Toribio Bibliografia espanola de las islas Filipinos (1523-1810). Santiago de Chile, 1897-1898. Historia del tribunal del Somto Oficio de la inquisicidn en Chile. 2 vols. Santiago de Chile, 1890. 452 Bibliography MENDfzABAi, Francisco Investigaciones aceroa del origen, historia y organizacion de la real chancillerla de Valladolid, su jurisdicci6n y oo-mpetencia, in lie- vista de archivos, MMiotecas y museos, tercera epoca, XXX, (1914), 62-72; 243-264, 437-452. Madrid, 1914. Mendieta, Ger6nimo de Historia eclesidstica Indiana. Mexico, 1870. < MONTEMATOE Y C6kD0BA, JuAN FRANCISCO 'Sumarios de las c6dulas, ordenes y provisvones reales . . . para la Nueva Espana y otras partes. Mexico, 1678. MONTERO Y VlDAL, Josfi El archipi4lago Filipino y las islas Marianas, Garolinas, y Palaos; su historia, geografia y estadistica. Madrid, 1886. Historia general de Filipinos desde el descuhrimiento de dichas islas hasta nuestros dias. 3 vols. Madrid, 1887-1895. MoRGA, Antonio de Sucesos de las islas Filipinas. Oira puhlicada en M^jico el afio de 1609, nuevamente saca-da d luz .y anotada por Jos6 Risal. Paris, 1890. [First ed., Mexico, 1609. English translation by Henry Stanley, London, 1868.] Moses, Bernard South America on the eve of emancipation. New York, 1908. Tlie establishment of Spanish rule in America. New York, 1898. The Spanish dependencies in South America. 2 vols. London, 1914. Murillo Velarde, Pedro Historia de la provincia de Philipinas de la Gomipania de Jesus. Manila, 1749. Navaerete, MAETfN FernAndez de Golecci6n de los viages y descubrimientos que hicieron por mar los Espanoles desde fines del siglo xv. 5 vols. Madrid, 1825-1837. New laws of the Indies for the good treatment and preservation of . the Indians (1542-154S). London, 1893. Ordenanza general formada de orden de Su Majestad para el goMerno 4 instrucci6n de intendentes sutdelegados y demds empleados de Indias. Madrid, 1803. Ordenanzas para el rigimen y goMemo de la real Audiencia de Manila con el reglamento para su seoretaria, aproiadas las primera-s por real decreto . . . Manila, 1868. Bibliography 453 Pardo de Taveka, Trinidad Hip6lito BiWioteca Filipina. Washington, 1903. Reseiia histdrica de Filipinas desde su descwbrimiento hasta 1903. Manila, 1906. "The judiciary of the Philippine Islands," in Censtis of the Philip- pine Islands, I, 389-410. Washington, 1905. "The power of the monastic orders," in Census oj the Philippine Islands, I, 340-346. Washington, 1905. ParrAs, Pedro Joseph GoUemo de los regulares de la Amdrica. 2 vols. Madrid, 1783. Pastels, Pablo See Colin, Francisco. Misidn de la covipania de Jesi'is de Filipinas en el siglo XIX. 3 vols. Barcelona, 1917. P£rez t Li6pez, Antonio Xavier Teatro de la legislacidn de Espana 6 Indias. 28 vols. Madrid, 1791-1798. Poxs, Francisco Raymond Joseph de A voyage to the eastern part of Tierra Firma, or the Spanish Main, in South America, during the years 1801, 1802, ISOS and 180J,. Tr. [from the French] by an American gentleman. New York, 1806. [First ed., Paris, 1806.] Prescott, William H. History of tlie conquest of Mexico. Philadelphia, 1890. Priestley, Herbert I. ■Jos4 de Gdlvez: visitor-general of New Spain, 1765-1771. Berkeley, 1916. PUGA, VaSCO de Provisiones, cidulas, instrucddnes de sw magestad de esta Nueva Espana (1525-1563). 2 vols. Mexico, 1878-1879. [First ed., Mex- ico, 1563.] Real ordenanza de 13 de Octubre para el restablidmiento 6 vnstrucci6n de intendentes de provincias y ex4rcitos. Madrid, 1749. Real ordenanza para el establicimienta 6 instrucddn de intendentes de excrcito y provincia en el virreinato de Buenos Ayres. Madrid, 1782. Real ordenanza para el establicimicnto y in-stmccion de in-ten-deji-ies de excrcito y provincia en el rein/> de la Nueva Espana. Madrid, 1786. Reales ordenamzas formadas por el superior goMemo y real acuuerdo de estas islas en 26 de Febrero de 1768. Para el biien gobiemo de los 454 Bibliography gotemadores, corregidores y alcaldes mayores de sus provimcias. Manila, 1834. Reoopilaci&n, die leyes de los revrws de las IndAas. 5th ed., 2 vols. Madrid, 1841. [1st ed., 4 vols., Madrid, 1681; 2d ed., 4 vols., Madrid, 1754; 3d ed., 4 vols., Madrid, 1774; 4tli ed., 3 vols., Madrid, 1791.] Retana, Wenceslao Emelio Gatdlogo aireviado de la biblioteca Filipina. Madrid, 1898. RlCATOKT, MAMANO Reglamento para establecer la comision de policia, ordenada con acuerdo de la real audiencia de las islas Filipinas. Sampaioc, 1826. KoBEETSON, James Alexander Biiliograpliy of the Philippine Islamls. Cleveland, 1908. "Catholicism in the Philippines," in The Catholic historioal review, III, 375-391. "Legaspi and Philippine colonization," in American Historical Asso- ciation, Anrntal report, 1907, I, 143-156. Washington, 1908. "Notes on the archives of the Philippines," in American Historical Association, Amvual report, 1910. 423-425. Washington, 1912. "The social structure of, and idea of law among, early Philippine peoples; and a recently-discovered pre-hispanic criminal code of the Philippine Islands," in The Paoiflc Ocean in history (Steph- ens and Bolton, editors), 160-191. New York, lftl7. Robertson, William The history of tTie discovery and settlement of America. New York, 1858. [First ed., London, 1777.] RODEfODEZ BltBIilZ, MiGTJEL Diccionario de la administracidn de Filipinas. 17 vols. Manila, 1887. RoDRfGUEZ San Pedro, JoAQufN Legislacidn uUmmarina, publicada con la colaioracidn de Chorot, Pierre, y Gonzales JtrngvAtH. 16 vols. Madrid, 1865-1869. ROSCHEB, WlLBDELM GEORG FrIEDRICH The Spanish colonial system. E. G. Bourne, ed. New York, 1904. Salazae, Domingo de ' Carta relaci&n de las cosas de la China y de los Chi/nos del Parian de Manila, enviada al rey Felipe II desde Manila el 24 de Junto de 1590. Madrid, 1897. Salazae, Vicente de Historia die la provincia de samtissimo rosario de Philipinas. Manila. 1742. Bibliography 455 San AgustIn, Gaspar de Conguistas de las islas Filipinos. Madrid, 1698. San Antonio, Juan Feancisco de Chrdnioas de la apostdlica provincia de San Oregorio de religvosos descalzos de N. 8. P. 8. Francisco en las islas Philipinas, China, Japdn. 3 vols. Manila, 1738-1744. Santa Cruz, Baltasar de Tonw segundo de la Mstoria de la provincia de Santo Rosario de Filipinos. Zaragoza, 1693. Schmidt, Gustavus The civil law of Spain and Mexico. New Orleans, 1851. ScHURZ, WnxiAM Lytle "The Chinese in the Philippines," in The Pacific Ocean in history (Stephens and Bolton, editors), 214-222. New York, 1917. "The Manila galleon and California," in The Southwestern his- torical qwarterly, XXI, 107-126. Shepherd, William R. Guide to the materials for the history of the United States in Span- ish archives. Washington, 1907. Smith, Donald Eugene The viceroy of New Spain. Berkeley, 1913. Sohre una resena histdrica de Filipinas. Coleccidn de articnlos que han visto la luz piiMioa ... on. nefutacion de los oalumniosos erores que el Doctor T. H. Pardo de Tavera ha escrito contra las Itenem^^ritas ordenes religiosas de Filipinas en su reseiia histdrica, impresa en Manila. Manila, 1906. Sol6rzano Pereira, Juan de Polltica Indiana. Madrid, 1776. [First ed., Madrid, 1647.] Superior decreto scire las funciones que dehe llenar el Sr. Intendente de Manila tooamte ai tesoro agricultural 6 industrial del reino. Manila, 1829. Stephens, H. M., and Bolton, H. B. (editors)" Tlie Pacific Oceam, in history. New York, 1917. Ulloa, Antonio de, and Juan y Santacilla, Jorge Noticias secretas de America. Londres, 1826. [Abridged and trans- lated into English, Boston, 1851.] United States, Library or Congress Bibliography of the PhiUppime Islands: a list of books with refer- ences to periodicals on the Philippine Islands in the Library of Congress. Washington, 1903. 456 Bibliography Vander Linden, Herman L'expansion colonialc de VEspagne jusqu'au diiut du XIXe sidcle, in Lannoy and Vander Linden, Histoire de Vexpansion coloniale des peuples europiens: Portugal et Espagne. Bruxelles, Paris, 1907. Veitia Linaje, Joseph de Norte de la oontratacion de las Indias Occidentales. Seville, 1672. ViNDEL, Pedro BihUoteca oriental . . . relativas d Filipinos, Jaipdn, China y otras partes de Asia y Oceania. Madrid, 1911. Worcester, Dean Conant The Philippines, past and present. 2 vols. New York, 1914. Zamora t Coronado, Jos6 MarJa Ap^ndice al registro de legisladdn ultramarina. Havana, 1835. Biblioteoa de legisladdn ultramarina en forma de diccionario alfa- T)6tioo. 7 vols. Madrid, 1844-1849. ZtrSiGA See Martinez de Zfliiiga, Joaquin. MANUSCRIPT MATEEIALS FROM THE ARCHIVE OF THE INDIES^ I. Audiencia de Filipinos. (a) Ramo Secular. 1584-1700: Consultas originales correspondientes de esta Audiencia. 67-6-3.2 1 This legajo list was obtained from the index of the collection of manuscripts in the section known as Audiencia de FilipvrMS, 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 cover- ing all the Philippine material in this depository may be found in Blair and Robertson, LIII. 2 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 bimdles (legajos), which, in turn, are to be found in large cases (estantes), and the shelves (oajones) of the cases are numbered. The meaning of the above reference therefore is Estamte 68, Cajon 6, Legajo 3, indi- cating 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. Tie 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 oajon deal with a phase of the same question. Legajos in a given oaji'm and manuscripts in a given legajo, roughly speaking, are Bibliography 457 1568-1808: Reglstros de oflcios y partes: reales ordenes dirigldas & las autoridades y particulares de la audlencia. 105-2-11 to 18. 8 legajos. 1594-1698: Decretos orlginales correspondientes a dicha audiencla. €7-6-4. 1600-1700: Peticiones y memorlales sueltos decretados por el Con- sejo. 67-6-5. 1567-1699: Cartas y expedientes del Gobr. de Fllipinas vistos en el Consejo. 67-6-6 to 17. 12 legajos. 1583-1699: Cartas y expedientes del presidente y oidores de esta audiencla vistos en el Consejo. 67-6-18 to 26. 7 legajos. 1564-1699: Cartas y expedientes de los oficiales reales de Filiplnas vistos en el Consejo. 67-6-29 to 33. 5 legajos. 1565-1650: Cartas y expedientes de personas seculares de dicha audiencla. 67-6-34 to 42. 9 legajos. 1629-1791: Reales cfidulas, mercedes y informes sobre encomiendas. 105-2-24. 1651-1699: Cartas y expedientes de personas seculares de esta audiencla. 68-1-1 to 2. 2 legajos. 1616-1700: Confirmaciones de encomiendas de Indies. 68-1-5 to 16. 12 legajos. 1572-1691: Autos y otros papeles del Gobernador de Filiplnas Don Juan de Silva contra los oficiales reales sobre use excesivo de sus oficios. 68-1-21. 1670: Expediente formado de los procedimientos de Don Francisco Samaniego Tuesta, Older de la Audiencla de Manila. 68-1-23. 1615-1837: Materias gubernativas. 105-3-12. 1608-1762: Cartas y expedientes del presidente y oidores de aquella audiencla. 68-4-12 to 35. 24 legajos. 1622-1825: Reales c6dulas, nombramientos y informes acerca del presidente, oidores y subalternos de la audiencla. 106-2-15. 1651-1850: Duplicados de gobernadores de Filiplnas. 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. Ill legajos. 1670-1831: Inventario de c§dulas y consultas. 105-2-5. 1671-1756: Indices de la correspondencia del gobor., auda., oficiales reales y sugetos particulares del distrito de aquella real audiencla. 68-2-30. 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. 458 Bibliography 1675-1765: Cartas y expedientes del gobernador de Filipinas. 68- 3-4 to 33 and 68-4-1 to 11. 40 legajos. 1684-1744: Expedlente sobre la expulsi6n de los Sangleyes. 68-5-16. 1685-1688: Testimonies de autos obrados en Acapulco, Mejico y Filipinas, en raz6n de descubrir los bienes del gobernador de Manila, Don Juan de Vargas Hurtado y su cufiado Don Francisco Guerrero Ardila. 68-1-24. 1687-1690: Testimonios de autos sobre la rebelion, conversion y expulsion de los Sangleyes de China. 68-1-25. 1699-1760: Cartas y expedientes del Virrey de Nueva Espana 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: Bxpte. sobre la restituci6n de las plazas de oidores de la Audiencia de Manila a Don Gregorio Manuel de Villa y Don Jos6 An- tonio Pabon ; y lo resuelto contra Don Jos6 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 sufrlo dicho gobernador y su hijo. 68-6-1 to 5. 5 legajos. 1718-1784: Expte. sobre competencia entre el gobernador y au- diencia sobre remision a Espana bajo partida de registro de Don Diego Martinez de Araque, regente de la misma y otros ministros. 106-5-1 to 3. 3 legajos. 1728-1829: Remisiones al consejo, c3.mara y ministros. 105-3-10 to 11. 2 legajos. 1729-1748: Goblernos de los capitanes generales, Marques de Torre Campo, Don Fernandez Vald6s Tamon, Don Gaspar de la Torre, e interino del Obispo de Nueva Segovia. 105-3-25. 1740: Duplicados de la causa criminal y prisidn de Don Cristobal Perez- de Arroyo, fiscal de aquella audiencia, remitido por el gobernador. 106-4-23 to 28. 6 legajos. 1746-1767: Gobierno del capitan-general, Marques de Obando. 105- 3-26. 1752-1762: Gobiernos de los capitanes-generales, Don Pedro Manuel de Arandia y Don Jos§ de Crispo. 105-4-1. 1753: Correspondencia del Gobernador Marques de Obando, dando noticias del estado de aquellas Islas. 105-4-2. 1755-1789: Expediente sobre expulsi6n de los Sangleyes 6 Chinos Catolicos por delitos de infidelidad y otros durante la ocupaci6n 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. Bibliography 459 1762-1766: Expedlente de la reclamaci6n 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 materlas gubernativas. 105-3-13 to 14. 2 legajos. 1769-1780: Gobierno del Capitan-General Don Simfin de Anda. 105-4-5. 1776-1787: Gobierno de los Capltanes-Generales Don"jos6 Vazco y Vargas y Don Felipe Veringuer de Marquina. 105-4-6. 1691-1819: Informe sobre el ramo de tributos y renumeracion 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, contribuci6n directa y ramo a, 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 In- gleses. 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 avaluo de la alcaicerla de San Fernando, manejo, ejercicio y facultades de su castellano y lo actuado contra Don Fer- nando de Mier y Noriega que fu6 el primero. 107-3-8. 1787-1849: Duplicados de superintendentes § intendentes de ejfircito y real hacienda. 107-5-15 to 31; 107-6-1 to 31; 107-7-1 to 21. 69 legajos. 1784-1787: Bxpediente sobre establicimiento de intendencias y sub- intendencias. 107-5-14. 1794: Expte. de Don Frco. Fernandez Cendero, Alcalde Mayor y Capltan de Guerra de la provincia de Ilocos, sobre su residencia pen- diente de informe de la audiencia. 106-5-4. (b) Ramo Eclesidstico. 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 eclesidsticas de Fili- pinas. 68-1-42 to 44. 3 legajos. 1586-1700: Cartas y expedientes del cabildo eclesiAstico de Fili- pinas. 68-1-35 to 36. 2 legajos. 460 Bibliography 1597-1698: Cartas y expedientes de los obispos sufraganeos de Manila, a saber, Nueva Segovia, Nueva CSceres, Santissimo Nombre de Jeslis o Cebli. 68-1-34. 1626-1795: Reales cSdulas y informes sobrB diezmos. 108-5-24. 1681-1689 : Testimonlos de autos respectivos al Arzobispo de Manila y otros. 68-2-1 to 2. 2 legajos. 1692: Expte. sobre la extraneza y prisifin del Arzobispo de Manila Don Fray Felipe Pardo y discordias ocuridas entre las religiones de Santo Domingo y la Compania de Jesus. 68-2-4 to 5. 2 legajos. 1702-1832: Consultas de materias y provisiones eclesiasticas. 108- 5-21 to 22. 2 legajos. 1726-1815: Reales c^dulas y informes sobre medias anatas y mesadas eclesiasticas. 108-5-19. 1751: El Gobernador Marques de Obando da cuenta con testimonio de los informes que se ban podido adquirir sobre el nflmero de relig- iosos que hay en aquellas islas y de los que necesitan para la reducci6n de los indios gentiles. 108-6-27 to 28. 2 legajos. 1760: Expte. del Obispo de Cebfl, gobernador interino de aquellas Yslas y el Arzobispo de Manila sobre en cual de los dos habia de recaer «1 mando de ellas. 108-6-29. 1762: Expte. sobre embargo de bienes de Don Santiago de Orendain y su mujer Dona Maria Dominga ArrS.ez, 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 jurisdicclon del diocesano. 108-6-5 to 6. 2 legajos. 1772: Expte. sobre la remociSn de los rellgiosos de S. Agustin de las doctrinas de la Provincia de Pampanga, secularizacion de curatos de aquellas Yslas y sujecion 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 Cdceres, vice-patrono real y fiscal de la real audiencia, por dlsposiciSn al presbltero Don Vicente Ygnaclo de Arroyo del curato de Santa Cruz. 108-6-36. 1778: Expte. sobre aprobaci6n de las ordenanzas de la Casa de Misericordia de Manila 6 el permiso concedido para que esta pueda remitir sus cuentas sin intervencion 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 el. 108-7-1 to 2. 2 legajos. 1780: Cuatro exptes. unidos sobre pago de diezmo por los reli- giones y naturales de aquellas Yslas, sin embargo de no estar en prac- tica . . . 108-7-3. Bibliography 461 II. Secretaria de Nueva Espai'ia. (a) Ramo Secular y Eclesidstico. 1630-1759: Consultas y decretos originales. 68-2-8 to 12. 5 legajos. 1671-1756: Indices de la correspondencia del gobernador, au- diencia, oficiales reales y sugetos partlculares del distrlto de aquella audiencia. 68-2-31. (b) JRamo Secular. 1724: Expte. sobre el reglstro del gale6ii de Flllpinas nombrado el Santo Cristo de Burgos que hlzo viage el ano 1723 desde el puerto de Cavite al de Acapulco. 68-6-11. 1728-1732: Expte. de la Hermandad de la Misericordla de Manila sobre amplincaci6n de sus facultades y privileglos. 68-6-16. 1735-1741: Expte. sobre los 162,992 pesos que se sacaron del comercio. 68-6-23. 1739-1746: Testimonlo de autos originados sobre la visita y com- posici6n de tlerras encargadas al Oidor Don Pedro Calderfin, del Con- sejo de S. M. 68-6-26. 1740-1744: Expte. sobre la prlsl6n y causa criminal seguida contra Don Cristobal P6rez de Arroyo, fiscal de la Audiencia de Manila. 68- 6-28 to 31. 4 legajos. 1741-1751: Exptes. y autos sobre la sublevacifin de los pueblos tagalos y otros por vejaciones recibidas de los religiosos de Santo Domingo y San Agustin, paciflcados por el Oidor Pedro Calderfin. 68-6-40 to 44. 5 legajos. 1743: Testimonio de autos de la visita que hizo el Oidor Don JosS Ygnacio de Arzadlin, remitidos por la Audiencia de Manila. 68-3-32 to 35. 4 legajos. 1743-1753: Exptes. sobre la presa que hicleron los Ingleses del navio Covadonga y libertad de los oficiales que mandaba . . . 68-6-38 to 39. 2 legajos. 1745-1755: Exptes. del subdelegado Don Pedro Calderon de la Barca sobre tierras. 68-6-45. 1752-1755: Expte. sobre las altercaciones sufridas por el comercio de Fllipinas & causa de las novedades introducidas por el Gobernador Marques de Obando. 68-6-50-51. 2 legajos. 175C-1758: Expte. sobre los excesos cometidos por el Gobernador Don Pedro Manuel de Arandia. 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 remisidn entre los papeles del distrito de la Audiencia de Manila. 69-1-13 to 17. 5 legajos. 462 Bibliography (c) Ramo Eclesidstico. 1660-1761: Cartas y expedientes de personas eclesiSsticas del dis- trito de aquella audiencia. 69-1-24 to 29. 6 legajos. 1604-1696: Expedientes sobre la visita de los religiosos por los ordlnarios. 69-1-30 to 32. 3 legajos. 1691-1696: Elxptes. sobre que en las vacantes del arzoblspado de Manila, gobierne el cabildo eclesidstico. 69-1-34. 1698-1704: Expediente sobre la resistencia hecha por las religlones a presentar sus titulos de las tierras y estanclas. 69-1-37. i 1702-1761: Cartas y expedientes del Arzobispo de Manila. 69-1-18 to 20. 3 legajos. 1704-1719: Expte. sobre causa formada S, Fray Bartolome Marron, de la Orden de Predicadores, por un manifiesto esto que imprimid y publico sobre varios puntos de real patronato. 69-1-38. 1710-1730: Expte. sobre corregir las ordenanzas del Colegio Semi- nario de San Felipe, etc. 69-1-40. 1730-1740: Tres testlmonios de autos pertenecientes a un expe- diente . . . del cabildo eclesiastico de Manila, sobre organizacidn de boletas. 69-2-1. 1737-1746: Expte. sobre erecci6n de un seminario para la edu- caci6n de religiosos misioneros de la Orden de San Agustln. 69-2-3. INDEX* Acapulco, 67 note 42, 76-77, 77 note 57, 174. Acuerdo, 23, 91, 91 note 37, 126, 129 note 27, 147, 162, 164, 189, 190, 195-196, 199, 200, 208, 210, 211, 213-220, 225, 240ff., 252- 254, 269, 287, 293, 299, 301, 302, 315, 367, 375, 376, 387, 390, 400, 403, 427, 435; development of. In judicial matters, 214-215, in governmental and administra- tive matters, 215, in ecclesiasti- cal matters, 367; autos aoor- dados, 215-216; influence of, in reform measures (Constitu- tion of 1812, government of the intendancy, etc. ) , 217 ; ad- ministrative action independ- ent of governor, 217-218, evil effects of, 218; loss of power, 219-220. Acuerdo de hacienda, 24, 52, 60. Acuiia, see Bravo de Acuna. Ad interim, administration, 304- 361; laws authorizing, 305, 310-314; history of, in South America, 305-308, in New Spain, 308-312, in Philippines, 312-314, 316-338; laws regard- ing in the Recopilacion, 314- 316; failure of the audiencia, 337-338, 358-359, 361; failure of the church, 359-360; plan of succession, 356-358. See also Audiencia of Manila; Lima; Mexico; Peru. Adelantado, 11 note 6, 162 note 3. Administracion, Consejo de, 220, 220 note 80. *Univ. Calif. Puhl. Hist., vol. 9. Agriculture in the Philippines, committee of audiencia charged with encouragement of, 186. Aguilar y Ponce de Leon, Rafael, governor, 142ff., 142 note 60, 300, 396 note 85. Albay, 382. Aloabala, 44, 44 note 19, 162. Alcalde, 9, 10 note 3, 11 note 6; judges with criminal jurisdic- tion in Lima and Mexico, 18. Alcalde del crimen, 16 note 20, 86, 86 note 11, 88, 203; author- ized to try cases of strangers, 114. Alcalde del Paridn, 248, 248 note 45, 250. Alcalde mayor. 53ff., 100, 116, 135, 157, 196, 218, 282, 287, 300, 309 note 12, 346-347, 381, 396 note 85, 417; qualifications, powers, duties, 11, 26-30, 218; in the Philippines, 33; supervision over encom,enderos, 53; con- duct toward Indians, 53, 212; jurisdiction, 86, 116; residen- cia, 129, 148-149, 152-155; ad- ministration of estates, 174; method of appointment, 200, 201, 202; charged with trial of Indian cases, 212; regulations of acuerdo concerning, 215; su- pervision of collection of ec- clesiastical tithes, 392 note 72. Alcalde ordinario, jurisdiction, 26, 30. 71, 86, 116, 207, 237, 248; in the Philippines, 33-34; residencia, 129. [463] Index Alcaraz, Andres de, oidor, 245, 246 note 40, 321-322. Alguacil, 9, 54. Almansa, Pedro de, oidor, 318, 318 note 32. Almojarifazgo, 44, 45 note 19, 61, 162, 182, 335 note 64. Aleadas, tribunal de, 112 note 73. Ampardn, Augustln de, regent, 141ff. Auda y Salazar, Simdn de, oidor and governor, 15 note 18, 138 notes 53, 54, 175 note 40, 228 note 2, 246-247, 289, 289 note 46, 343ff., 343 note 76, 345 note 87, 347 note 89, 356 note 104, 360, 363, 369 note 7, 428, 443; assumption of government, 347-356; residencia, 354, 356. Antioch, Patriarch of, 278. Appointment, power of, 302, 303, 315, 316, 323. Appointments, ecclesiastical, 374, 374 note 25, 375, 377. Arandia, Santisteban, Pedro Manuel de, 139 note 54, 228 note 2, 341, 342, 343. Arce, Pedro de. Bishop of Cebfl, 376. Argvalo, 35 note 4. Arrechedera, Juan de, bishop and governor, 340, 341. Arrihadas, Juez de, 174, 175 note 40, 181. Asesor, 72, 97 note 46, 132, 154, 166, 167ff., 209, 209 note 50, 218 note 78, 229 note 18, 283, 285, 317, 342; de Santa Cru- zada, 162. Asylum, right of, 411, 411 note 5, 426, 427. Audiencia, integral part of ad- ministrative system, 1, 31; three classes of, powers and duties, 21-22; magistrates of, 21 note 32, qualifications, 120; basis of, 83-94, 276; relation to council of the Indies, 92, 104; purpose, 260, 292; abuses of, 285, 287 notes 43, 44, 322- 330; historical development of powers, 296-297; succession of, 310-314; of South America, 307-308. Audiencia, colonial (Royal), creation, jurisdiction, organ- ization, 10-12, 13, list of, 16- 17; early history, 18-22; modeled on audiencias of Granada and Yalladolid, 19; compared to those in Spain, 22-31 ; magistrates, func- tions of, 24; duties of gov- ernor as president of, 208- 211; office of regent of, 211. Audiencia of Manila, 17; terri- torial jurisdiction, 20; condi- tions of establishment, 32-47; opposition to, 47-48; estab- lished, 48; provisions of law of establishment, 49-55; presi- dent of, 55; difficulties, 56-70; arguments for abolishment, 68-70; breakdown of first audi- encia, 71; ad interim govern- ment, 71-78; restoration, 78- 79, 96-98; inauguration of new audiencia, 80-82; appointive power, 199-202, 204; method of appointment to, 202; oversight of qualifications of appointees, 203. Ad interim rule, laws -on, 312- 314; duties and conduct pre- scribed, 314-315; types of powers, 315-316; history of, 316-338; failure of, 337-338, 358-359, 361. Administrative and semi-judi- cial functions, 160-192; the senior magistrate, 161-162; the asesor of the Santa Cru- zada, 162; the junta ordi- naria, 162; supervision over matters of church finance, 164-165 ; magistrates de- prived of commissions, 169; administration of estates, 170; general supervision [464] Index over financial affairs, 181- 1S2; miscellaneous duties as representative of the King, 183; responsible for execu- tion of ci'dnlas and decrees, 183-184; census statistics, 185', sanitary matters, 186; agriculture and commerce, 186; expense of inaugura- tion ceremonies of the gov- ernor, 187; inspection, publi- cation and censorship of books, 187-191; keeping of the archives, 191. Judicial functions, civil and criminal, 84-120; appellate jurisdiction, 84, 101-102, 119, over Indians, 100-103, over religious, 104, ,185, over judges of first instance, 157; suits involving encomiendas, 108-110; final jurisdiction, 91. 112, 113, 118, 119; power to pronounce sentence of ex- ile, 212; advisory power, 213; development of, in the acuerdo, 214-215; residencia, 121-159, jurisdiction over, 127, 148-149, 156-159; court of appeal in, 126, 132-134, 147; judges of, 131, 135, 145, 146; method of procedure, 129-131, 150-152. See also Oidores. Military functions, judicial, and administrative, 230- 231; members of military tribunal designated by gov- ernor, 233, 237-239; advisory capacity (to governor), 239- 241, 243-244, (to king), 242- 244; assumption of govern- ment, 244-247; secondary position in government of Chinese, 249-251, 253, 254; jurisdiction in military af- fairs, 255-258, 317-319, 320, 328, 331-332. Audiencia of Manila in relation to the Church, 362, 409, 410. Functions in ecclesiastical affairs: ultimate local au- thority in enforcing laws of royal patronage, 363- 364, 370; right of opposed by church, 368-371; au- thority shared with vicepa- tron, 365-366, 368-370; two kinds of ecclesiastical powers, executive and ju- dicial, 366; historical de- velopment of, 367. Executive powers: examina- tion of resolutions of coun- cils, synods, 371, of papal bulls, briefs, etc., 372; en- forcement of law forbid- ding laymen to trade with priests, supervision over prelates and provincials, assistance of missionaries, supervision of ecclesias- tical visitors, removal of members of religious or- ders, etc., 372-373; brief summary of laws, 373; ju- risdiction over all classes of churchmen, 373-375 ; settlement of disputes be- tween rival claimants to positions of authority par- ticularly to position of archbishop, 375-377 ; in- tervention in removal of curates, 377-378; removal of regulars for cause, 378- 379; disciplinary jurisdic- tion in crimes of priests or ecclesiastics, 379-380; assistance in Internal dis- order, 379; inspection over prelates, 380-381; of ec- clesiastical work of parish priests, 381-384; reception and supervision of eccle- siastical visitors from Spain or Mexico, 384; re-, ports to the court, 385- 386; supervision of col- leges and universities, 387; advisory powers in educational affairs, 388- 390; jurisdiction over mat- ters of church finance. [465] Index 391-401 (see The Church, finances); supervision over espolios and vacant benefices, 401-405 ; con- struction of churches and conservation of ecclesias- tical property, 405-408; summary, 408-409. Judicial powers (ecclesiasti- cal Jurisdiction); distinc- tion between, and its acts relative to royal patronage, 410-412; division of au- thority between civil and ecclesiastical courts, 412- 413; power of interven- tion in ecclesiastical mat- ters, 414-415; duty to guard prerogatives of civil magistrates, 415 ; limita- lions of ecclesiastical courts, 415; gradual growth of authority in ec- clesiastical affairs, 416- 417; high court of appeal 'in suits to which religious orders were parties, 418- 420; jurisdiction over sec- ular church courts (metro- politan tribunal - of arch- bishop), 420; recurso de fuerza, 420-423, 424, 426, 429; interdict (excom- munication), 422-428 (see also the Inquisition); court of final resort in testing land titles, 440- 441; jurisdiction over ec- clesiastical visitations, 441-442 ; conduct influ- enced by local conditions, 442-443 ; summary, 443- 444. . Audiencia of Manila in relation to the governor, 84-85, 95-96, 102, 108-109, 122, 147, 214; con- flicts with, 131-132, 140-145, 263-273, 285-298; summary of relations, 299-303. See also Acuerdo Conflicts; Governor; Residencia, etc., etc. Auditor, 16 note 20. Auditor de guerra, 16 note 20, 24, 118, 233, 233 note 14, 238ff. Auditor de marina, 16 note 20, 233. Auditor de Rota, 16 note 20. Augustinians, 68, 103ff., 272, 354, 378 note 35, 379 and note 36, 384, 406-408, 416 note 15. Autos, 111. ♦ Autos acordados, 27 note 40, 215 note 71, 216. Ayala, Gaspar de, fiscal, 71. Ayuntamientos, 30, 157, 252. Basco y Vargas, Jos€, governor, 129, 139-140, 140 note 55, 179, 217, 234, 234 note 18, 280ff. Beringuer de Marquina, Felix, 129, 140 note 56, 167ff., 217- 218, 229 note 7, 234, 255-256; residencia of, 140-145, 282- 284. BernS.ldez Pizarro, Manuel, 157 note 87. Bienes de difuntos, 53, 66, 171ff., 174, 177 note 43, 181. Bolivar y Mena, Pedro Sebas- tian de, oidor, 255. B6nifaz, see Peiia B6nlfaz. Bravo de Acuna, Pedro de, gov- ernor, 108, 217, 220ff., 227, 227 note 1, 245, 286ff. and 43 and 44, 304. Bravo de Saravia, Melchoir, 307. Bribery, 261, 274 note 16, 329, 341, 383 note 47, 398-399. British, The, hostility of, 158, 186, 240, 244, 246; alliance with Chinese, 289 note 46, 354; capture of Manila, 343, 397 note 87. Buenos Ayres, audiencia of, 17, 19, 20, 161. Bustamente y Rueda, Fernando Manuel de, governor, 241, 241 note 31, 338, 380; conflict with audiencia, 273-280, 427; mur- der of, 279-280. [466] Index Cabecilla, 254, 255-256. Cabll^o, 65, 376. Caciques, 116, 173. Cadiz, 13, 174, 319 note 33. CalderSn EnrSquez, Pedro, oidor, 103, 342, 342 note 75, 398, 399, 419-420. Camacho y Avila, Diego, arch- bishop, 375. Camarines, bishop of, 354, 369 note 7. Captain-general, see Governor and captain-general. See also Mexico. Captaincies-general, rank of audiencias, 21-22. Caracas, audiencia of, 17, 17 note 32. Carvajal, see Gonzales Carvajal. Casa de Contratacidn, 232-233; organization, functions, juris- diction, 12-14. Castellan, 231, 233. Castillo y Negrete, Manuel de, oidor, 168, 217. Cavite, 114, 245, 274, 347, 406- 407. Cebti, audiencia of, 17, 35 note 4, 382; bishop of, 376; encomien- das in, 110. Cedulas, significance of form of address used, 368, 368 note 5. Censorship, 187-191. Cerezo de Salamanca, Juan, 327- 328. Charcas, audiencia of, 20, 21 note 32, 305, 307. Charles V, founds audiencia of Manila, 18. Chile, Santiago de, audiencia, 17, 20—21 307. China, 32,' 48, 69-70, 80, 196 note 5, 213, 229, 241, 241 note 30, 285, 325, 374, 375 note 27, 386; Dominicans in, 374 note 25; taxation, 44 note 18. Chinese, problems in connection with commerce with, 58, 61, 62-63, 69, 79, 80, 85, 240, 241, 330, 354; jurisdiction over, 119, 431; licenses (taxes), 182, 216, 249, 255, 326, 393; data concerning collected by audi- encia, 185; regulations of aouerdo concerning, 216; gov- ernment of, 247-258; adminis- tration of justice among, 255- 258; revolt of, 289, 289 note 46; marriage with, 378; edu- cation of (mestizos), 390 note 71. Church, 185, 190, 195, 197, 214, 268ff.; construction of, 23, 405; and the audiencia, 29, 51- 52, 63, 362-444; influence of, 41ff., 73, 80, 103ff., 241 note 31, 242, 274ff., 295, 334, 334 note 63, 338ff., ,338 note 70, 342ff., 354, 359-360, .387ff., 416ff., 432 note 58; property of, 173, 173 note 33; councils,. 371. . Ad interim rule, 338-355, 356, 359-360; legalization of, 339- 390; relations between audi- encia and ecclesiastical gov- ernor illustrated, 342-343; rule of Archbishop Rajo, 343-351. See also The Audi- encia of Manila in relation to the Church. Finances, under supervision of audiencia, 164, 391-401; tithes, 182, 391-394; funds of temporalities, 391, 395- 396; oiras pias (Santa Mis- ericordia and San Juan de DIos), 395-401; taking of espolios, 401-405. Churchmen, not subject to resi- dencia, 122; reports and infor- maci6nes required of, 386-387. Cisneros, Felipe, oidor, 205, 205 note 41. Code of 1680, see Recopilaci6n de leyes de los Reinos de las Indian. [467] Index College of San Juan de Letr5.n, 390. Coloma y Maceda, Francisco de, oidor, 131-132, 332ff., 434. Columbus, colonial system un- der, 8-10. Comisos, 118. Commerce, see Trade. Commissions, 160-191, 203 note 28, 238ff., 238 note 25, 327 note 51, 348 note 91, 394, 440-442. Compensation of officials, 72, 161, 195, 199, 199 note 13, 201, 201 note 20, 209 note 50, 247, 289, 289 note 45, 305 note 2, 319-320, 391 note 72. Confiscation of property, 270 note 10, 272. Conflicts, between officials and authorities, 63-64, 169-J70, 291-292, 292 noie-50, 334-335; of jurisdiction," 14, 56, 67, 73, 161, 172, 177-181, 210, 223 note 83, 224, 234-235, 236, 292 note 50, 326, 358, 361, 382. Conquest, expeditions of, 243, 317; of Orient, projected by Spain, 66. Consejo de Guerra, 234 and[ notes 17 and 18, 243-244 and note 36. Constitution of 1812, 101-102, 215, 219; reforms effected by, 119; drafted by audiencia_in acuerdo, 217. Consulado de Manila, 115, 210, 283, 296 note 85; establish- ment, 112, 182; relation to audiencia, 112; function, 113; jurisdiction, 115, 400-401. Consulado de Sevilla, 13. Gontador, 24, 385 note 53; de cuentas, 398. Contaduria, 186; de cuentas de Mexico, 75; general, 173 note 33, 181; mayor (Mexico y Lima), 198. Contreras, see Moya de Con- treras. Corcuera. Sebastian Hurtado de, 138, 142 note 60, 217, 228, 246, 304, 327 note 51, 377, 397 noJe 87. Corregidor, 26-30, 30 note 47, 33ff., 33 note 3, 40, 47, 53ff., 71, 76, 86, lOOff., 121, 126, 174, 179, 196, 200ff., 206, 212, 215, 300, 309 note 12, 396 note 85, 439; residencias of, 135j 147- 149, 157 note 86. Gorregimientos, 18, 51, 309 note 12. Corte del Rey, tribunal of, 14. Cortes, Hernan, captain-general of Mexico, 308-309. Council of Castile, 14, 14 note 17. Council of the Indies, 11, 13, 14- 16, 18, 24, 48, 52, 67, 68, 72, 84, 107, lllff., 125, 132ff., 140, 143ff., 155 not? 83, 159, 162- 163, 174, 177-178, 190, 195, 196 note 5, 200, 203-204, 205, 210 note 54, 224, 234, 235, 265, 268, 277, 279-281, 303, 305, 305 note 2, 313, 333, 371 note 11, 372, 372-374, 382, 388, 389, 392, 401, 421, 429. Cruzat y Gongora, Fausto, gov- ernor, 111, 217. Cuba, audiencias in, 17, 20-21, 161; under Santo Domingo, 19. Cuesta, Fray Francisco de la, archbishop and governor, 279ff., 338, 340 note 71, 380. Curuzaelegui y Arriola, Gabriel de, governor, 213, 272-273, 275, 268-269, 334. Cuzco, audiencia of, 17, 20, 21 note 32. Dasmarinas, see Perez Dasma- rinas. Davalos, Melchoir, oidor, 57ff., 260. Decano, 85, 131, 161-162, 280, 316, 357. Defense, 59, 141, 197, 220, 222, 225ff.; the audiencia and, 59, 230ff., 239ff., 242ff., 244ff., 244 [468] Index note 36; of Manila, 246, 248; of Philippine Islands, 313-314, 317ff., 324, 336, 340-341, 344ff., 363. Delgado, Juan 3os6, historian and Jesuit, 195; cited on office of governor of the Philip- pines, 195, 228-229. Diaz de Rivera, Francisco, fiscal, 206. Diaz Quejada y Obrero, Felix, 165-166. Diezmos, collection of, 23; juris- diction of audiencia over, 391ff., 391 note 72, 393 note 79. Dominicans, 103ff., 242, 264, 268, 271-272, 276-277, 324 note 45, 338-339, 354, 374 note 25, 389- 390, 396 note 85, 418ff., 427. Durango, Governor, letters of, 29 note 45. Dutch, 240, 244, 317, 321, 325, 397 note 87, 434, 434 note 63; attacks of, 245. Education, 23; under supervi- sion of audiencia, 185, 387, 388 note 66. See also College of San Juan de LetrSn; San Jos6, royal college of; University of Santo Tom&s. Encomenderos, relation to Span- ish colonial land system, 33; responsibilities and powers, 35-36; subject to residencia, 129; method of appointment, 201; forbidden to leave Philip- pines, 213. Encomiendas, 28, 33 note 1, 34ff., 35 note 4, 37, 46, 47, 51, 96, 110, 110 note 67, 213, 221, 221 note 82, 315, 323, 323 note 43, 336-337, 381, 393, 410 note 15; inspection of, 164; origin of, 93 note 40; suits of, 92ff., 106ff. See also Audiencia; Law of Malines. English, see British. Enrile y Alcedo, Pascual, gov- ernor, 219, 300. Espanola, early government, 10, 11; under audiencia of Santo Domingo, 19. Espeleta, see Lino de Bspeleta. Espolios, 23, 391, 401, 401 note 89, 402, 403, 404 note 104. Excommunication, of officials, 75, 80, 279, 411, 411 note 4, 415, 422-428; abuse of, 380, 382; limitations, 424, 425, 427, 435; setting aside of, 425-428. Exile, sentence of, 212-213, 212 note 60, 268-269, 339, 379 note 36, 422; of Archbishop Pardo, 270; of churchmen, 270, 378- 379; of governor, 142; of oidores, 270 note 10. Expedientes, 209 note 50, 218 note 78. Factor, 24 note 37. Fajardo y Chacfin, Diego, 138, 304, 330. Fajardo y Tenza, Alonso, gov- ernor, 108, 117-118, 127, 202, '217, 228 note 2, 246, 247, 262, 265ff., 291, 321, 322ff., 397 note 87. Palces, Marques de, 310. Fernandez Zendera, Francisco, alcalde mayor, 152-155. Finance, see Real hacienda. Finances, church, see The Church, finances. Fiscal, 53-54, 65, 72, 97, lOOff., 114, 137, 141, 149, 201, 221, 250, 259, 263, 275, 318 note 32, 349, 354, 384, 387, 403, 407; royal, 85, 114, 143, 277, 390 note 71; de la contaduria general de Indias, 175 note 40; de real hacienda, 142 note 59. Fiscales, number of, 21 note 32, 38, 430; marriage of, 206-207. Flores y Cassila, Matias, oidor, 326. Florida, under Audiencia of Santo Domingo, 19; Cape of, 20. [469] Index Fonseca y Azevedo, Alfonso, Archbishop of Seville, 9. Foreigners, in Philippines, 170, 375, 375 note 26; forbidden to trade, 143 note 61; inheritance of property, 172, 172 note 31; prosecution of, 114, 114 note 82. Formosa, capture and loss, 246. Franciscans, 272, 354, 381-382, 383, 384, 434 note 63, 437, 441 note 74. Free-masonry forbidden, 183. Friars, see Religious. Friar lands, 408-409, 440-442, note 75. Fuero mixto, 105, 60; -fuero mili- tar, 237, 430 note 55. Fuerza, 414, 426. Fuerza, Recurso de, 23, 25, 420- 423, 424, 426, 429, 444. Galbin y Ventura, Manuel de, oidor, 354. Galleons, 67, 67 note 42, 113, 12'?, 134, 158-159, 177, 177 note 44, 188, 194 note 2, 216-221, 222, 263, 274; galleon space, 77, 95, 115, 261, 302, 318-320, 319 note 33, 319 note 34, 327, 349, 353, 353 note 98, 385-386, 397ff.; galleon officials, 127-128, 158- 159; galleon trade, limitations on, 76-77, 77 note 57, 95-96, on valuation of suits, 88ff., 91- 92. Galvez, Jose de, 15. Gasca, Pedro de, 305 note 2. Gobernadorcillos, 154 note 81. Goiernadores, of provinces, 27, 30 note 45, 48; residencias of, 147-149. Gonzales Carvajal, Ciriaco, 140 note 55, 156 note 85, 205 note 41, 217. Gorospe e Irala, Diego, bishop, 403. Governor, powers and duties, 39, abuse of, 41-43, 66, 75-76, 141, 221ff., 272-273, 278, 278 note 28; authorized to try cases of strangers, 114; legal right to remove officials, 122- 123; judges of residencia des- ignated by, 126; residencia of, 135-145, 157 note 86; com- mercial excesses, 261; relation to home government, 296; ap- pointment of, 321, 327ff., 330ff.; ad interim, 328-329, 329-333. . Captain-general, 79; military jurisdiction claimed by, 177- 179, 237; independent in ex- ercise of military authority, 225, 230; need of military qusLlifications, 228; head of special judicial system for trial of soldiers under mili- tary law, 118, 231-247; par- doning power, 232; designa- tion of auditor de guerra, 233; sharing of authority, 241-242, 243-244; jurisdic- tion over Chinese, 119, 247- 258; military powers, 321. President of royal audiencia, 208-211, 216, 225; oversight of judicial work of audien- cia, 210; pardoning power, 210-211; governorship sepa- rated from presidency, 211. Royal vice patron, 195, 216, 268, 269; relation to provin- cial governments, 195, 196. Viceroy, general relations to the audiencia, 193-204 ; official title, 193; threefold functions, 193-194; administrative func- tions, 196, 224 ; supervision of administration of colonial exchequer, 197-198; appoint- ing power, 198-204, abuse of, 261, 292, limitation of, 263; conflicts over, with audien- cia, 199-200, temporary ap- pointments (ad interim, etc.), 200-202, 203; reports on services and recommen- dations for promotion or dismissal of officials, 204- 208; independent judicial [470] Index powers: jurisdiction over Indian cases, 211, over prop- erty condemnation suits, 212; power to exile, 212, over travelers, 213-214; rel- ative authority of governor and audiencia, laws of the Indies on, 214, 218; relations between detailed, 220-225 ; influence on, and power over, illustrated, 273-280. Granada, chancery of, 19, 23. Grao y Monfalc6n, Juan, 79 note 61. Great Britain, see British. Guadalajara, audiencia of, cre- ated, 17, 20; size and rank, 21 note 32; mentioned, 309 note 12, 312. Guam, Island of, 127-128. Guatemala, audiencia of, see Santiago de Guatemala. Guerela, Francisco, oidor, 381- 382, 424. Ouerra, auditor de, appointment, jurisdiction, duties, 233; com- plaint regarding, 238. Consejo ordinario de, 234. Junta de, 22 note 32, 113-114, 114 note 79, 232, 233, 234. Jwita de, de las Indias, organ- ization and jurisdiction, 232- 233; instances of method of procedure, 233-234. See also Marina, auditor de. Guerrero, Hernando, archbishop, 376-377, 380. Hacienda, see Real hacienda. Hacienda, acuerdo general de, 24; junta de, see Acuerdo de hacienda. Havana, audiencia of, 17, 21 note 32. Honduras, Cape of, boundary of. New Spain, 20. Humboldt, Alexander von, 60 note 31, 131. Hurtado de Corcuera, SebastiS.n, see Corcuera, Sebastian Hur- tado de. Igorrotes, 154. Ilocanos, 154. Ilocos, 179, 217, 341; encomien- das in, 35 note 4. Indians, provisions for just treatment and protection of, 23, 53ff., 87, 99-102, 104, 107, 152-156, 164, 336-337, 380-381, 411; taxation of, 28, 93, exemp- tion from, 353; employment, in road-building, and ship- building, 28; jurisdiction of governor over, 211. Indies, Council of the, see Coun- cil of the Indies. Informaciones de servicio, 121, 385 and note 53. Inquisition, in Manila, relations with audiencia, 188-189; su- preme power of, 429-430, 434; gradual delimitation and cir- ■ oumscription of authority, 430- 431, 439-440; utilized by prel- ates for usurpation of powers belonging to civil government and audiencia, 431-432; util- ized, influenced and possessed by individuals and private in- terests for selfish ends, 432- 434; excesses of commissary Paterniva, 435-436; struggle and ultimate defeat of weak audiencia and governor with, 437-438; authority over given to civil courts, 439-440. Intendants, 255 ; Ordinance of, 198, 404-4057— Interdicts, see Excommunica- tion. Intestates, administration of es- tates of, 170-181. Japan, relations with Philip- pines, 32, 48, 213, 220, 229, 324-325, 372. Japanese, 59, 240, 241-242; insur- rection of, 320. [471] Index Jesuits, in Philippines, 68, 266, 268, 271 note 13, 272, 276, 278 note 28, 241, 280, 354, 386, 388-389, note 66, 395, 418ff., 426. Juan, Jorge, authority on Span- ish colonization, 130 note 28. Judges, see alcalde, corregidor, juez Ae, oidor, residencia, etc. Juez conservador, 166 and note 16, 380 note 41. Jues letrado, 13. Juez de difuntos, 170ff., 172-173, 264. Junta de guerra, 22 note 32, 113- 114, 114 note 79, 232, 233, 234. Junta ordinaria de la real ha- cienda, 162, 162 note 6. Junta superior de la real ha- cienda, 162 note 7. Justice, administration of, before establishment of audiencia, 40; in provinces, 26-31, 32; under audiencia, 49, 56ff., 71- 74, 79, 80, 83-120, 137-138, 153- 154, 196-197, 210 and note 54, 218 note 78, 227, 234ff., 255ff., 259-303, 307-309, 310, 315, 317, 362, 382, 401, 410ff., 442, 444. See also Audiencia, judicial functions, military jurisdic- tion; Audiencia, president of; Chinese; Governor (captain- general) ; Guerra, auditor de, junta de, etc. King, oflScials appointed by, 200; final pardoning power, 210. King's Fifth, see Quinto. Ladrones (Marianas Islands), 127, 144; galleons instructed to stop at, 222. Lanza, 165 woie 11. La Plata, audiencia of, 17, 20, 21 note 32. Laudin, Fray Alonso, 414. Lavezares, Guido de, 37. Laws of the Indies, see Recopi- lacidn de leyes de las Indias. Leandro de Viana, Francisco, fiscal, 15 note 18, 182, 217, 300, 345 note 85, 354, 407. Legaspi, Geronimo de, governor, 37, 326, 326 note 48. Le Gentil de la Galaisiere, Jo- seph Hyacinthe, 195, 381. Legislation, see Acuerdo. Leon, Manuel de, governor, 333, 434ff., 434 note 64. • Letrado, 13, 74, 238. Leyte, encomiendas in, 110. Lieutenant-governor, 316, 317. Lima, audiencia of, 18-21, 86, 117 note 88; assumption of government by (,ad interim rule), 305-306. Lino de Espeleta, Miguel de, bishop and governor, 139 note 54, 341-342, 341 note 73; es- polio, 404 note 104. LizS,rraga, Conde de, governor, 128, 335. Loarca, Miguel de, encomendero, 35 note 4. Louisiana, under audiencia of Santo Domingo, 19. Lcpez de Legaspi, Miguel de, governor, 37. 260 iiote 1. Luzon, 35 note 4, 243, 248, 310. Macao, rival to Manila, 62. Madras, 172 note 31, 206. Maestre de campo, 231, 336, 338, 369 note 7. Maldonado, see Rivera Maldo- nado. Malines, Law of, 92-93, 94, 95, 106, 107, 108. Blanila, captured by British, 343, 344, 349. Marianas Islands, 127, 144, 222. Marique de Lara, Sabiniano, 330. Marina, auditor de, appointment, jurisdiction, duties, 233. Marquina, see Berlnguer de Marquina. [472] Index Marriage, of officials, laws for- bidding, 205-207; of natives, ordinance enforcing, 216. Mas, Sinibaldo de, 130; cited on interference of audiencias, 218, 218 7iote 78; cited on relative functions of audiencia and governor, 223, 223 note 83. Medias anatas, 165-166, 165 notes 11, 13, 335 note 64. Mestizos, Chinese, 390 note 71, 393, 419. Messa y Lugo, Alvaro, oidor, 263ff. Mexico, 115, 177; audiencia, cre- ated, 16-22, appeals to, from Philippines, 43, 66-69, 71, 74, 78, 96, 137, 277, 290; assump- tion of government by audien- cia, 305, 308-309, provision of succession, 310-311; captaincy- general of CortSs, 309. Mindanao, 220, 243, 418. Mindoro, Recollects jn, 418. Misa, Francisco de la, factor, in re encomiendas, criticizes the government, 37 note 9; memo- rial of, 75ff., 96ff. Misericordia, see Santa Miseri- cordia. Missionaries, see Religious. Moluccas, expeditions to, 243, 245, 246, 318, 321, 323. Monopolies, royal, 166ff., 166 note 15, 281, 335 note 64. Montemayor y Mansilla, Fran- cisco de, oidor, 297ff., 332ff., 332 note 58, 434. Monte plo, 396 note 85. Montero y Vidal, cited on mili- tary aspect of governor's po- sition, 230. Morga, Antonio de, teniente y asesor, 74 note 54, 77, 98-99, 245, 248 note 45, 300, 317ff. Moros, defense against, 141, 243, 341. Moses, B., cited on assumption of government by audiencia, 306; cited on division of au- thority between civil and ec- clesiastical courts, 412-413. Moya de Contreras, Pedro, arch- bishop and viceroy, 67. Natives, see Indians. New Granada, audiencia of, 19- 20. New Mexico, references to, 29 note 45. New Spain, audiencias of, com- parison of powers with audien- cia of Manila, 8 note 1; gov- ernment of, 29, 40, 45 note 19, 203, 226, 304, 383; relations with Manila, 72, 194-195, 194 note 2; viceroy of, 47-48, 185- 196, 200, 220, 277, 285-286, 303, 306, 308ff., 312-313, 327, 356; assumption of government by, 304-312, 314. Niilo de Tavora, Juan, governor, 109, 246, 251 note 49, 304, 327, 328. Nueva Galicia, references to cor- respondence regarding, 29 note 45; audiencia of, 309 note 12. Nueva Segovia, Bishop of, 340, 351, 371 note 11, 376, 377 note 32, 403. Nueva Vizcaya, references to cor- respondence relating to, 29 note 45. Nuevo Lefin, references to cor- respondence relating to, 29 note 45. Notaries, 55. Novenos, 381 note 72, 392. Nunez Vela, Blasco, 305. Obando y Soils, Jos6 Francisco de, governor, 244. Ohras Pias, 391, 396-401. Observants, Order of, 418. Offices, sale of, 221, 261, 263, 302- 303. [473] Index Officials, minor, appointment of, 146ff., 202; residencias of, 156, 159. Oflciales reales, 24, 23 note 37, 28, 34 note 3, 46, 75, 118, 174, 210, 237, 262, 385 note 53, 391 note 72; removal of, 122-123; dispute with juez de difuntos over administrative matters, 179-181; accounts of audited by oidor, 182, 196; inspectors of ships, 188; method of ap- pointment, 200, 201, of filling vacancies, 311; taking of es- polios of prelates, 402-405. Oidores, duty of, 24; special du- ties, 85, 88, 100, 126, 129, 160ff.; members of juntas reales, 28; inspections by, 30, 121ff., 163- 164, 188; interference in mat- ters of government illustrated, 57-58; extent of authority claimed, 58-64; removal of, 122-123 ; special commissions (judgeships), 160-163, limita- tions of, 166-170; periodical inspection of provinces (visit- ing oitJor), 163-164,293; judge- commissioner of Tnedias ana- tas, 165-166; asesores (jueces conservadores) , 166; jueces de difuntos, 170-181; disputes with Captain-general, 177-179, with oflcial real, 179-181; charged with investigations of conduct of officials, 184, 187, 208; instances of, 184; reports on educational documents by "royal designation," 200, 201; minute supervision of gov- ernor over personal conduct of, 204, 208; marriage re- strictions, 205-207; judicial power over of governor, 207, 208; salable offices not to be conferred on relatives, 221, 287; liable to service on mili- tary tribunals, 231-232, 237- 239; in Chinese cases, 255; ad- vice and interference in mili- tary matters, 240-241, 243-244; commercial excesses, 285-286, 291; importance of in ad in- terim rule of audiencia, 316; deprived of control in military affairs, 328; prohibited from interference with internal gov- ernment of religious orders, 372; visitors of the provinces, 381-384; required to render special and regular reports to court in re ecclesiastical con- cerns, 385-386; forbidden to act as rectors of colleges or universities, 387; forbidden to interfere save at five-year in- tervals with property of Santa Misericordia, 399; intervention in the taking of espolios, 402; inspection of royal hospital at Manila, 408; laws governing conduct toward Inquisition 429-430. Olazo, Lorenzo de, soldier, 327. Ordenanzas reales para la Casa de Contratacidn, 26 note 40. Orders, religious, see Religious. Ordinance of Intendants, see In- tendants. Ordinance of. Ordinance of Good Government 217. Oredain/- Santiago, asesor, 342ff. Orient, Spain in, 66. Ortega, Fray Francisco de. Bishop of Nueva Segovia, 68. Otazo, Diego de, Jesuit, 278 note 28. Palou, Francisco de, 374. Panama, 18, 20; audiencia of, created, 16; rank and size, 21 note 32. Pancada, 80, 80 note 62. Pangasinan, 155 note 82, 206, 403. Pardo de Tavera, T. H., histo- rian, 33, 99 note 1. Pardo (Fernandez de), Felipe, archbishop, 268ff., 334, 369. 369 note 7, 419, 422, 427, 432 note 60, 442-443. [474] Index Pardons, 211, 232, 236. Pareceres de servicio, 121, 121 note 2. Paridn, 85, 85 note 6, 216, 248ff., 248 note 45, 252ff. ' Paternina, Joseph de, commis- sary of the Inquisition, 435ff. Pavon, Josg, oidor, 336, 336 note 65. Pena Bonifaz, Manuel de la, oidor and temporary governor, 297ff., 332, 434. Perez Dasmariiias, G6mez, gov- ernor, 35 note 5, 72, 75, 197, 241, 285, 316-317. Peru, comparison of audiencia with audiencia of Manila, 8 note 1; alcabala, 45 note 19; jurisdiction of audiencia, 85; government and viceroy, 161, 226, 303, 304-305; assumption of government by audiencia, 305, 306. See also Lima, audi- encia of. Pesguisa, 119, 123 note 10, 125, 307. Pesguisidores, oidores as, 23, 91, 91 note 34, 125, 215; residen- cias of, 50. Philip II, founds audiencia of Manila, 19, 48; reforms, 46 note 21 r withdraws audiencia, 71. Philip III, extends institution of audiencia, 19; reforms, 93. Philip IV, founds audiencias, 19; reforms. 37 note 9, 123, 171. Philippines, geographical posi- sition, 32; government of: un- der audiencia of Mexico, 18, 39; administration of prior to audiencia, 32-44, after break- down of audiencia, 71-72, 73- 78; problems, of encomienda, 34-38, of the governorship, 38- 43; relation to New Spain, 39ff., 57ff.; military administration, 40, 76, 296-297; influences for creation of audiencia, 43-46, reasons for, 47, opposition to, 47-48; administration: by au- diencia, 81, 204, 304-361; by church, 279, 340ff., 356, 356 note 105, 359-360, 362-364. See also Manila, audiencia of; Chinese; Espanola; Governor; Oidores, Residencia, etc., etc. Pimentel, Antonio, governor of Marianas, 127fe., 271-272, 271 note 13. Pinelo, Le6n, contribution to Recopilacion, 25 note 40, 26- 27. Pizarro, Francisco, relations with audiencia of Lima, 305, 305 note 2. Pizarro, GonzS,lo, relations with audiencia of Lima, 306. Playa Honda, Battle of, 245, 322. Pliegos de Providencia, 340ff. Poblete (Milan de Poblete) Jos6, archbishop, 212 note 60, 369, 380. Polo, 28, 28 note 44, 353. Portuguese, incursions of, 62- 63; resentment at establish- ment of audiencia, 69-70, 70 note 44; relations with, 240. PotosI, 307. Prelate, see Church. Prescott, William, 130 note 28. Presidency, audiencia of, 21-22; rank of, 21 note 32. President, see Governor and Cap- tain-general. Presidents, of audiencias, pow- ers and duties, 22. Presidios, 194 note 2. Procurador general, duties of, 44, 44 note 18. Procurator, 68, 228, 414. Property, administration of, 170ff. Provincial administration, 26-31. Provisor, 378 note 35, 380 note 40, 412 note 6, 426. [475] Index Puerto Principe, audiencia of, 17; size and rank, 21 note 32. Puerto Rico, government of, 11, under audiencia of Santo Do- mingo, 19, 161; audiencia cre- ated, 17; size and rank of audiencia, 21 note 32. Quiapo, 386. Quinto, 118, 162, 162 note 3, 182. Quito,- audiencia of, created, 17 ; size and rank, 21 note 32; mentioned, 20, 305, 341. Ra6n, Jos6, governor, 139, 139 note 54, 217. Real hacienda, audiencia and, 52, 67, 75, 76, 87, 97, 118, 143, 151, 156 note 85, 162-163, 162 notes 6, 7, 166 note 15, 169, 174-175, 175 note 40, 174-182, 197-198, 222, 262, 265-266, 272- 273, 274-275, 281, 283, 318-319, 320, 325, 353-355, note 98, 394- 395, 400. Receptor, 126, 126 note 15. Recollects, 380, 418ff. Recopilacion de leyes de las Reinos de las Indias, 25, 25 note 40, 83, 130, 130 note 28, 250, 276, 301, 305, 314-315, 373, 387, 415, 417, 429. Recurso de fuerza, 105, 411, 411 note 3, 420ff., 421 note 27. Reforms, 37, 46 note 21, 81-82, 132-134, 144, 154-157, 184, 217, 274-275, 329-330, 331, 392-393. See also Intendancy. Regents, salaries of, 21 note 32; powers and duties, 85, 131, 141, 186, 211; recommended for audiencia of Manila, 223 note 83; royal instriction of, 208, 357, 357 note 107. Religious, 103ff., 185, 372, 378 note 35, 380ff., 386-387, 387 note 61, 405ff., 410-444, 417 note 18; regulations of acuerdo concerning, 215; suits be- tween, 418ff., 442. Removals, of civil ofScials, 123 218, of ecclesiastics, 377-378. Repartimientos, of Indians, 28, 28 note 44, 93,. 93 note 40. Residencia, 23, 25, 50, 74, 97-98, 118, 119, 121-151, 123 note 10, 159, 203, 209, 209 note 50, 247, 261, 264, 270 note 10, 269,»273, 274 note 16, 280, 283-284; ofB- cials subject to, 129, 134, 135ff., 142 note 59, 146, 152- 156, 208; origin, 124; reforms in, 131, 133, 145, 149-150, 155- 158; bonds of, 134, 135, 142, 143, 145, 153, 274; fines, 143, remission of, 91; method of conducting, 145-150, length of, 150-151; sentence of, 151-152; book of, 192; of provincial of- ficials, 216. See also Manila, audiencia of. Revenues, ecclesiastical, 366, 389ff., 396ff. Revista, 49. RIos Coronel, Fernando de los, 228. Rivera, Gabriel de, procurador de las islas del poniente, 44ff. Rivera de Maldonado, Antonio de, oidor, 71. Robertson, James Alexander, his- torian, 130 note 28, 310 note 15. Rojas, Pedro de, teniente y asesor, 71; transferred to Mex- ico, 74; peculations, 285-286. Rojas y Ornate (Oiiate), Fran- cisco de, visitor-general, 251, 313, 326-327. Rojo del Rio y Vieyra, Manuel Antonio, archbishop and gov- ernor, 139 note 54, 246, 341; ad interim rule, 343-355; es- polio, 404 note 104, 428. Ronquillo de Penalosa, Diego, governor, 42. [476] Index Ronqulllo de Pefialosa, Gonzalo, governor, 39ff., 41 7iote 14, 107, 137, 260, 425. Royal patronage, shared by au- diencia and governor, 23, 82, 268ff., 302, 362-409; origin, 363 note 2; resistance to, 369, 369 note 7, 370fE. Rtiego y Encargo, 365 note 3, 378 note 35, 382. Salaries, see Compensation. Salas, number in respective au- diencias, 21 note 32. Salazar, Domingo de, bishop and first arclibishop, 38ff., 64ff., 73, 73 note 51, 107, 260, 362, 368- 369, 418 notes 15 and 16, 431. Salcedo, Diego de, governor, resi- dencia of, 131ff. ; lack of sup- port by audlencia, 297ff., 362ff.; enmity of the Inquisi- tion, 380, 432-434, 438 note 69. San Francisco de Quito, see Quito. San Jose, royal college of, 388- 389, 390. San Juan de Dios, 396 note 86, 397. San Juan de LetrSn, college of, 390. Sanchez, Pray Alonzo, 68, 362. Sande, Francisco de, governor, 36, 37, 38fE., 137, 162 note 3, 196 note 5. Santa Cruzada, asesor de, 24, bull of, 24. Santa Fe (de Bogota), audiencia of, 17; size and rank, 21 note 32; presidency, 306-307; de- fects of, 307; law of succession, 311. Santa Mlsericordia, 396, 397-401. Santiago de Chile, audiencia of, created, 17, 20; size and rank, 21 note 32; mentioned, 347. Santiago de Cuba, audiencia, cre- ated, 17. Santiago de Guatemala, audien- cia created, 17, 20; size and rank, 21 note 32. Santo Domingo, audiencia, 12, 16, 19, 20, 31; precedessor of, 11; size and rank, 21 note 32. Santo Tomas, University of, 387, 388, 389, 390. Saravia, see Bravo de Saravia. Sarrio, Pedro, teniente del rey and acting governor, 178, 214, 281 390 ' Segundo Cabo, 230, 281, 357-358. Serrano (Garcia y Serrano) Mi- guel de, archbishop, 376. Seville, Consulado of, 13, 319 note 33. Silva, Fernando de, governor, 324, 325-326. Silva, Geronimo de, governor, 138, 142 note 60, 321, 324, 326, 328. Silva, Juan de, governor, 251, 295, 304, 321. Slavery, 184. Sociedad de los amigos del pals, 186, 281 note 33. Soldiers, trial of, 231, 247. See also Audiencia of Manila, mili- tary functions. Solorzano y Pereyra, Juan de, author of PoUtica Indiana, 15 note 18, 22, 22 note 23, 24, 26 note 40. South America, audiencias and governments of, 304ff. Spain, colonial administration: definition of, 1, adaptation of home institutions to, 8; sketch of development of, 1-29; under Columbus, 8-10; audiencias in, 25, 214; high purpose, of, 99- 100; ineffectiveness of illus- trated, 100-101; pomp and ceremony of, 187; cause of failure, 236-237; defects in, 299-300; plan of succession adopted for, 358; government by audiencia typical of, 360- 361. [477] Index Spanish, Instruction in, 154. Spielberg, George, Dutch free- booter, 321. Subsidy, deductions at Acapuico, 25 note 37, 175 note 40, 176 and note 41, 319 note 33, 175 note 27. Succession, of audiencia to gov- ernment, 266, 273, 304-361; in Peru, 310; in Mexico, 310; laws regarding, 310-314. See also Manila, audiencia of. Suits, 112ff., 400; criminal, 116ff., 116 note 88; in docket, 128; in- volving Chinese, 119ff.; prop- erty, lllff.; records of, 111; valuation of. 111, 112, 115, 132- 133, 146. See also Manila, au- diencia of. Sulus, Mohammedan, expeditions against, 57. Superintendente general de la real hacienda, 177. Superintendente suhdelegado de la real hacienda, 167, 198, 254- 255, 394, 400. Supreme Council of War, 232. See Guerra de Indias, Junta de. Supreme Tribunal of Justice, 157, 157 note 86, 159, 162 note 7, 181, 190. Tabasco, relation to New Spain, 20. Tavora, see Nino de Tavora. Taxation, on imported money, 61; on metals (mined), 182; Chinese, 182, 254. See also Adelandados, Alcabala, Almo- jarifazgo, Diezmos, Medias an- atas, Polo, Quinto, Real haci- enda. Tayabas, inspection in, 179. Tello de Guzm£ln, Francisco, gov- ernor, 75, 78, 108, 245, 317-318. Temporalities, 389, 391, 395 note 83. Teniente del governador, 11, 71, 74, 154, 285, 344ff.; del rey, 142 note 59, .355, 356-357. Ternate, 200, 245. Testimonios, 111 note 68. Tidore, request for assistance from king of, 245. Tierra Firme, 305. Tithes, ecclesiastical, see Biez- mos. Tondo, a ward of Manila, 100, 100 note 53, 179. Tormento, Josef, alcalde mayor, residencia of, 149. Torralba, Jose.oidor and acting governor, 127, 142 note 60, 158, 273, 274 note 16, 278-279, 335- 336, 335 note 64. Torre, Gaspar de la, governor, 243, 340. Torre, Francisco Xavier de la, teniente del rey and acting gov- ernor, 139 note 54, 219, 243- 244, 355-356, 355 note 102, 347 note 89, 348 note 91. Touron (Tourn6n-Millard Tour- on), Carl6s Tom3.s, papal dele- gate 278 note 27, 336 note 65, 374-375, 375 note 27. Towns, administration of justice in, 30, 33-34. Trade, 287, 287 note 44, 302, 318- 319, 327, 401; Chinese, 73, 185, 248, 252-253, 262, 289 note 47, 327, 330; illicit, 144; report on, 186; ruination by taxation, 44- 45; of ecclesiastics, 399; of officials, 148, 154, 157 note 87, 204-205, note 35, 222, 259, 273- 274, 285, 291, 291 note 49, 299, 319 notes 33 and 34, 372. See also Chinese, commerce with; Galleons. Tribunals, ecclesiastical, 412ff., 412 note 6, 420, 436ff., 440 note 72. Tribute, 34 note 4, 37 note 9, 59 note 61, 215, 220; from Chi- nese, 185. Trinidad, Archbishop, 341, 341 note 73. [478] Index Ulloa, Antonio, authority on Spanish colonization, 130 note 28. Unamand, Pedro, voyage to China, 62. Universities in the Philippines, see San JosS, San Juan de Letran, Santo Tomfts. University of Santo TomS.s, founding of, 387, 388, 389, 390. Urdaneta, Andres de, 310 note 15. Ustariz, Bishop of Nueva Sego- via, 351-352. 354. Vacancies, 312, 315, 351, 375ff. See also Succession, Manila, audiencia of, ad interim rule. Valderrama, Domingo de, visitor- general to New Spain, 310. Valdivia (Campos Valdivla) Francisco, visitor-general, 273, 423, 443. Valladolid, chancery of, 19, 23, 170. Van Noordt, Oliver, Dutch free- booter, 74 note 54, 245. Vargas, see Basco y Vargas, Jos§. Vargas Hurtado, Juan de, gover- nor, 140, 213, 228 note 2, 268- 269, 333, 368, 423, 432 note 60. Teedor, 24 note 37. Venezuela under audiencia of Santo Domingo, 19. Vera, Santiago de, governor, 55ff., 62, 66, 67, 71, 241 note 30, 260. Viana, Francisco Leandro de, fis- cal, 15 note 18, 182, 217, 300, 345 note 85, 354, 407. Vicarios, 412 note 6. Vicepatron, assisted by oidores, 28. 216, 269, 364f£., 369 note 7, 370ff., 426. See also Governor, Royal vicepatron. Viceroyalty, audiencia of, 21-22. Viceroy, 85, 133, 157 note 86, 170, 210 note 54. See also Governor and Captain-General, for duties and relations with audiencia; New Spain. Vigan, audiencia of, created, 17; town of, 155. Villacorta, . Francisco Enrlquez de, oidor, 139, 139 note 54, 354ff. Villa, Gregorio Manuel, oidor, 128ff. Visayas, 28. Visitador, see Visitor. Visitation, ecclesiastical, 375, 399. Visitor. 24. 91 note 34. 267-268, 306, 344, 384. Visitor-General, 266, 272ff., 299- 300, 310, 313, 326. Vista, 49. Vivero de Laredo, Rodrigo, tem- porary governor, 320-321. Wittert, Franeois, Dutch admiral, attacks Philippines, 321. Yucatan, relation to New Spain, 18, 20. Zambales, 242, 418. Zgndera (Fernandez ZSndera), Francisco, residencia of, 152- 155. [479]