Chapter IV

, note 55, of this work.)

[314] Recopilación, 3-3-35.

[315] Basco y Vargas to the King, May 9, 1786, A. I., 107-5-19.

[316] Cédula of March 20, 1790, A. I., 107-5-19.

[317] Recopilación, 3-3-35.

[318] Marquina to the Audiencia, August 16, 1791, A. I., 107-5-19.

[319] Recopilación, 3-3-35, cited in notes 21 and 24 of this chapter.

[320] Ibid., 2-32-1.

[321] Ibid., 7 and note; 8.

[322] Ibid., 43.

[323] Ibid., 42, note 4; 47, note 7. These cases may be noted in A. I., 68-4-12.

[324] Ibid., 44. The cédula of July 16, 1776, ordered the confiscation of property left by foreigners, forbidding that it should be sent outside of the realm either by the juez de difuntos or by the testamentary executor. In accordance with this regulation the superintendent, in 1800, seized the property of a Spaniard who had married a lady of Madras. The Spaniard had left a will providing for the transfer of his property to his wife, naming an executor to administer the will. This was opposed by the juez de difuntos, but when the case was appealed the action of the superintendent was approved (Aguilar to Soler, July 8, 1800, A. I., 107-5-24).

[325] See Recopilación, 2-32-42.

[326] A case appealed to the Council of the Indies on June 4, 1806, involved the property of Antonio Rodríguez de la Peña, deceased. Rodríguez had bequeathed 35,875 reales to his father; the Augustinians claimed 11,875 reales, or one-third of the entire estate, for prayers said in behalf of the soul of the departed one. The contaduría general in Madrid refused to allow payment (Aparici to the Council of the Indies, June 4, 1806, A. I., 107-3-8).

[327] Recopilación, 2-32, note 7.

[328] Ibid., 10.

[329] Ibid., 32-33, 40, 60.

[330] Ibid., 16, 32, 33.

[331] Ibid., 16-18, 27-29, 31.

[332] Ibid., 46, and note.

[333] Ibid., 48-56, 59.

The report to the Council of the Indies of Pedro Aparici, general superintendent of real hacienda, on July 8, 1805, shows in detail the method of settlement in Spain. This report was submitted to cover the administration of the property of Alberto Reyes, who died in Manila in 1803. The statement was as follows:

Total property left 123,700 r. Executor's commission 741 r. 16 m. Administration 1,237 r. Expenses 123 r. 18 m. Total deductions 2,102 r. Balance to be distributed among heirs 121,598 r. Two-thirds left to brother as per will 81,066 r. One-third left to parents as per will 40,532 r.

Another illustration of the disposal of money left under slightly different circumstances may be noted in the Royal Order of February 14, 1800, to the juez de arribadas at Cádiz. The king ordered the transmission of 8024 pesos to the royal treasury because of the impossibility of finding the heirs of Antonio Manuel Pereda, who died at Manila in 1767. By the terms of his will, 2000 pesos had been left to the Third Order of St. Francis, 200 pesos to poor widows and orphans, and the balance was left to his mother. The lady had died, however, and as there were no heirs apparent, the money was ordered transferred to the royal treasury (A. I., 107-3-9).

These large sums, constantly on hand, intact and available, were always a source of grave temptation to governors and treasury officials. Loans were frequently taken from this fund for ordinary or unusual expenses of the government. At first the juez de difuntos objected forcibly to the governor's seeming disregard of the royal instructions regarding these funds. The laws of the Indies had commanded that they should be held inviolable (Recopilación, 57, 70). As noted above, the practice had arisen of making deductions from the subsidy equivalent to the amount of bienes de difuntos produced in the Philippines, and of retaining the money in Acapulco. This practice worked havoc with the fulfillment of the law which had ordered that these funds be preserved intact. The governor and the treasury officials had fallen into the practice of appropriating such available funds as existed in the caja de difuntos for purposes of local administration, with the assurance that the money would be properly accounted for in Mexico. Governor Anda seems to have been a leading offender in this matter. In 1767 he borrowed 19,729 pesos from the juez de difuntos and in 1768 another sum of 30,000 pesos was taken (Landazurri to the Council of the Indies, May 22, 1770, A. I., 107-3-9). By the cédula of October 9, 1777, the king approved the action of Governor Anda in borrowing from these funds on three other occasions to the extent of 25,000, 14,206, and 24,477 pesos, respectively, for the fortification of the city. It was ordered that this should not be done again, however, except under extraordinary circumstances (A. I., 107-3-9).

After being permitted for a long period of time, the practice which the Manila authorities had followed of making these deductions was finally disapproved by the home government. In 1806, because of the non-arrival of the galleon with the subsidy, the governor (and superintendent) authorized an advance of 54,049 pesos from the bienes de difuntos, which sum constituted the entire amount on hand. On April 25, 1815, the fiscal of the contaduría general de las Indias handed down an adverse opinion on this action (A. I., 107-3-9). Although the practice of allowing small loans from the funds of deceased persons had been practiced in the Philippines in case of exceptional circumstances, it was his opinion that the whole proceeding had been contrary to the laws of the Indies (Recopilación, 2-32-57). He advised that in the future there should be no interference with this money until the deduction had been authorized by the juez de difuntos in Mexico, and the judge should act only after he had received the report of the corresponding official in the Philippines.

If the above advice were followed, at least a year would pass before the report of the Manila judge could reach Mexico, and be returned. It was not to be supposed that the officials in the Philippines would wait for any such formality when in need of money for the current expenses of government. This is another example of the cumbrousness and lack of expedition of Spanish colonial administration, as affected by time and distance. It will be noted, also, that this practice had been going on since the time of Anda (1768), and the Council of the Indies did not pronounce against it decisively until 1815. The

## particular litigation which brought about its condemnation arose in

1806 and continued throughout a period of nine years.

[334] Ibid., 60. See the articles on the Philippine situado by E. G. Bourne and James A. Leroy in the American historical review, X, 459-461, 929-932; XI, 722-723.

[335] Cédulas of November 26, 1776, September 9, 1778, October 13, 1780, June 12, 1783, February 17, 1786, A. I., 107-3-9.

[336] Aparici to the Council of the Indies, July 19, 1797, A. I., 107-3-9.

An examination of a few typical accounts of this department will show that the sums involved were always considerable. On June 6, 1767, the juez de difuntos in Manila had 45,563 pesos on hand; on June 17, 1781, 31,009 pesos; on June 29, 1783, 27,636 pesos; on July 28, 1801, 40,827 pesos (see reports of various jueces de difuntos. A. I., 107-3-9). The total receipts of the office of juez de difuntos in Manila for the year terminating January 25, 1819, were 10,750 pesos. Payments against the fund that year were 27,747 pesos, which were made possible by a balance on hand at the beginning of the year of 52,900 pesos (Report of Vicente de Posadas, Juez de Difuntos de Manila, January 25, 1819, A. I., 107-3-9). On March 31, 1828, the funds of this department amounted to 32,657 pesos (A. I., 107-3-9).

[337] The last state galleon left Manila for Mexico in 1811, and the last ship sailed from Acapulco to Manila in 1815 (Foreman, Philippine Islands, 243; and Montero y Vidal, Historia general, II, 413, note). The galleon service was suppressed by decree of the Cortes, September 14, 1813.--Ibid., 412.

[338] Recopilación, 2-32-7.

[339] Villacorta to the Council of the Indies, July 6, 1757, A. I., 106-4-15. The evidence of this case also exists in A. I., 107-3-9, and is cited in connection with a later dispute of the same character.

[340] Marquina to the Council of the Indies, June 18, 1790, A. I., 107-5-18.

[341] Recopilación, 2-32, note 2.

[342] Ibid., 5-12-14. Basco y Vargas to the King, June 6, 1778, A. I., 105-2-9.

[343] Cédulas of April 23, 1770, October 13, 1780, and May 4, 1794, A. I., 105-2-10.

[344] Recopilación, 2-32-28.

[345] Ibid., law 25.

[346] Cédula of May 4, 1794, A. I., 105-2-10.

[347] A. I., 106-4-17; 108-3-17; 105-2-10 to 32. See Bibliography under "Manuscripts used."

[348] The author has at his disposal abundant data for each subject covering each decade and century, showing that the powers mentioned were characteristic throughout. It is to be hoped that the reader will appreciate the impossibility of giving more than a few citations for each case, not because they are not available, but because there is not room for them. It was the writer's original plan to write two additional chapters, one on the commercial duties of the audiencia, and another on the financial powers. Because of a lack of space these chapters have been omitted.

[349] A. I., 106-4-18.

[350] As noted in the preceding chapter.

[351] King to the Audiencia, August 8, 1609, A. I., 105-2-1.

[352] Marquina to the King, January 18, 1790, A. I., 105-2-10.

[353] King to the Regent of Manila, January 24, 1794, ibid.

[354] See, Plan económico del gobernador de Filipinas José Basco y Vargas, 1 de Septre, 1779, y carta que lo acompaña, No. 157, de 11 de Dicre de 1779 (printed); A. I., 106-1-14; see Barrows, History of the Philippines, 242.

[355] Memorial of July 20, 1757, A. I., 106-4-15.

[356] See Moses, South America on the eve of emancipation, 27-31, for an account of the festivities and formalities at the installation of the viceroy at Lima. It will be noted that the audiencia played an important part in the ceremonies. Professor Moses here utilizes a description contained in Juan y Ulloa, Voyage, II, 46-50.

[357] Recopilación, 1-24-1 to 15.

[358] Ibid., 1 and 2.

[359] Ibid., 3; 15. The cédula of October 10, 1752, gave to the audiencia the right to authorize the publication of legal treatises, ordinances and enactments. The regent was given control over this matter by the Instrucción of June 20, 1776 (A. I., 106-212). See Montero y Vidal, Historia general, III, 304 and 485, with reference to the publication of the autos acordados of 1866.

[360] Ibid., 7 and 12.

[361] Ibid., 8.

[362] Ibid., 1 and 2.

[363] See Lea, The Inquisition in the Spanish dependencies, 70, 204, 265; 444-446.

[364] Acuerdo of January 26, 1816, A. I., 106-4-19.

[365] The constitutional reforms of 1812 included the separation of the governorship from the presidency of the audiencia. In 1814 the governor was again made president, and the offices were not entirely separated until 1861. The governor's intervention in matters of justice was merely nominal, however, after the creation of the office of regent, in 1776.--Cédula of March 11, 1776, A. I., 106-2-12; Royal Instruction to Regents, June 20, 1776, in Rodríguez San Pedro, VII, 22-23; Ordenanzas para el gobierno de la Audiencia de Manila, 9 de Octubre, 1812; A. I., 106-4-19; Acuerdo de 15 de Enero, 1814, ibid.

[366] Montero y Vidal, III, 30.

[367] Ibid., 251.

[368] Recopilación, 2-15-156 to 166.

[369] On the basis of this the governor compiled and sent to Spain a yearly report on the work of the magistrates, prosecutors, and subalterns of the audiencia, setting forth the salaries paid and character of services rendered, making recommendations for promotion or complaints against these officials. Vacancies in the tribunal were reported at the same time and in the same manner.

[370] Recopilación, 2-15-11. Note the brief discussion of this relationship in Smith, The viceroy of New Spain, 152-156. Dr. Smith shows that the chief purpose of the Spanish government in establishing the viceroy and audiencia together was to guarantee a check and balance of one upon the other. Quoting Revilla Gigedo (Instruction, Article 20), he says: "The presidency of the audiencia places the viceroy at the head of that body but not to give orders to it, as even his acts in matters of justice are subject to it; and although he is present at its sessions, which is very difficult, considering the grave and continuous occupations which so vast a command imposes upon him, he does not have a vote in matters which are regularly dealt with there--that is, matters of justice." Dr. Smith shows (162) that the effect of the later laws of the eighteenth century was to deprive "the viceroys absolutely of any part in the procedure of the administration of justice, either alone or in company with the other judges, voting with them in the audiencia" (from Revilla Gigedo, Instruction, Article 64). The limitation of the governor of the Philippines in legal matters is discussed further on in this chapter.

[371] See Moses, Establishment of Spanish rule in America, 70-71.

Philip III ordered the viceroy of New Spain to "give aid to the governor and captain-general of the Philippines in whatever may occur, and above all ... to send him on demand whatever may seem necessary of arms, men, munitions, and money for the conservation of those Islands, salaries, and presidios, and other matters under his care (Recopilación, 3-4-13)." The viceroys also exercised a certain degree of authority over the despatch of the galleons from Acapulco (ibid., 9-45-25 to 31, 47, 74 to 76). Aside from the points indicated, the Philippines were normally as independent of New Spain as the latter was independent of the Philippines.

[372] Bourne, "Historical introduction," Blair and Robertson, I, 49-50.

[373] Delgado, Historia de Filipinas, 212-215.

[374] Delgado illustrates this statement as follows: "The legitimate King of Borney, who had been dispossessed of his kingdom ... begged for help from Don Francisco Sande, Governor of these Islands. Governor Sande went with his fleet, fought with and drove away the tyrant, and put the legitimate king in possession; the latter rendered obedience to the governor, appointed in the place of the King of España, and subjected himself to this crown as vassal and tributary." Further on he writes, "His Majesty also ordered Sande, by a decree of April 9, 1586, to sustain friendship with China, and forbade him to make war; for, as some authors say, Sande had the intention of conquering that Empire, ... although it may be said that the idea was simply speculative; the Council forbade it, and ordered him thenceforth to observe what was prescribed" (ibid., see Blair and Robertson, XVII, 317-320, whose translation differs slightly from the above).

[375] Recopilación, 3-3-2; 63, 64; 3-14-1, 33.

[376] Instructions to Acuña, February 16, 1602, Blair and Robertson, XI, 273-4.

[377] Recopilación, 3-3-55; 3-2-33.

[378] Ibid., 3-3-56; 2-15-159.

[379] King to the Audiencia, December 4, 1777, A. I., 105-2-9. It was seen in the preceding chapter, that the audiencia reported to the Council of the Indies on the finances of the colony.

[380] Recopilación, 3-3-57.

[381] Ibid., 2-15-76 and 77.

[382] Ibid., 3-2-1 to 6; 2-15-172. Governors and viceroys were authorized by the cédula of April 20, 1776, to make permanent appointments to offices whose salaries did not exceed 400 pesos (ibid., 3-2, note 2).

[383] Ibid., 3-2-67.

[384] Ibid., 3-2-1, 10 to 12, 47, 48; 8-4-24.

[385] Ibid., 3-2-8.

[386] Villacorta to the King, July 6, 1767, A. I., 106-4-15.

[387] Recopilación, 3-2-3, 4 and note, 21, 22, 47, 70; 5-2-5, 7, 8-4-1.

[388] Ibid., 3-2-1, 2, 3, 8-4-1.

[389] Ibid., 51. After February 20, 1785, this regulation applied only to offices yielding more than 2000 pesos a year.--Ibid., note 17.

[390] Ibid., 27.

[391] Ibid., 33, 38.

[392] King to the Audiencia, August 9, 1609, A. I., 105-2-1.

[393] Fajardo to the King, December 10, 1621, Blair and Robertson, XX, 138-140.

[394] Recopilación, 2-15-34; 5-12-24; 2-16-29.

[395] Ibid., 2-2-70.

[396] Ibid., 3-2-45; 2-16-29.

[397] Although a sufficient number of oidores were usually present in Manila to suffice for the judicial needs of the audiencia, on many occasions there were only two or three available. When but few cases were before the tribunal, the junior oidor could easily be spared to act as fiscal. However, when a magistrate was needed, owing to the multiplicity of cases to be tried, or the absence of two or more magistrates on special commissions, the need was very urgent, and the fiscal was then liable to be called upon to serve.

[398] Recopilación, 2-16-30.

[399] Ibid., 3-2-67.

[400] Ibid., 2-15-173 and 174.

[401] Ibid., 3-3-70.

[402] Ibid., 3-14-6, 7; Felipe III to Fajardo, December 13, 1620, Blair and Robertson, XIX, 174-175.

[403] Recopilación, 3-14-5, 6, 8.

[404] Ibid., 2-16-59, 62 to 64; 3-3-39. A confirmation of the latter was so often reported that it seems to have been expected, and nothing was done about it. It would seem that practically every official in the colony conducted a mercantile business as a side-issue.

[405] Felipe IV to Fajardo, October 9, 1623, Blair and Robertson, XX, 259; Recopilación, 2-16-66, 67.

[406] Recopilación, 2-15-36, 39, 40.

[407] Ibid., 2-16-82 to 84.

[408] Ibid., 87.

[409] Ibid., 82, note 20 (Cédula of January 23, 1754).

[410] Cédula of July 13, 1789, A. I., 107-5-20. On June 21, 1784, the Council of the Indies recommended that permission to marry within his district be accorded to Oidor Ciriaco Gonzales Carvajal (A. I., 105-3-2); the same concession was recommended in the case of Oidor Felipe Cisneros, June 30, 1788 (A. I., 105-3-4), and again to Francisco Xavier de Mendieta, January 22, 1791 (A. I., 105-3-5).

[411] Royal order of April 3, 1848; Rodríguez San Pedro, Legislación ultramarina, VII, 79.

[412] Royal order of December 2, 1804, A. I., 106-4-18.

[413] Royal decree of October 13, 1806, A. I., 106-4-18.

[414] Laws of May 3, 1605 and September 5, 1620, Recopilación, 2-16-43 and 44.

[415] This was done, for example, by governors Fajardo and Bustamante, while this law was still in force (1618-1624 and 1717-1719, respectively). The observation of this law in Chile was commanded in a royal order expedited to the president of the audiencia there on September 22, 1725; see Recopilación, 2-16, note 13.

[416] Ibid., note 14.

[417] Ibid., 2-16-51.

[418] Discussed in