Chapter V

of this volume). There are many persons in Manila who are exempted from ordinary justice through their military connections or on account of being employed in the royal monopolies, and as they depend on him, he exercises great power; ... there are few who desire him for an enemy, for when they least think of it they are in need of his favorable opinion in some expediente which they have brought before the government." The laws of the Indies forbade that an oidor should act as the governor's asesor if any other appointee with the requisite qualifications were available (Recopilación, 3-3-35, and note). See cédula (and accompanying expedientes) of September 26, 1756, A. I., 106-4-16.

[420] Recopilación, 2-15-61 to 63, 169; 2-16-12, 31, 32.

[421] Ibid., 2-15-38.

[422] Ibid., 3-3-36, 38.

[423] Ibid., 3-3-60. Relative to the relations of the viceroys and audiencias of the Spanish colonies, Robertson (The History of America, IV, 19-20) says: "The Spanish viceroys have often attempted to intrude themselves into the seat of justice, and with an ambition which their distance from the controul (sic) of a superior rendered bold, have aspired at a power which their master does not venture to assume ... the viceroys have been prohibited, in the most explicit terms, by repeated laws, from interfering in the judicial proceedings of the courts of Audience, or from delivering an opinion, or giving a voice with respect to any point litigated before them. In some particular cases, in which any question of civil right is involved, even the political regulations of the viceroy may be brought under review of the court of Audience, which in those instances, may be deemed an intermediate power between him and the people, as a constitutional barrier to circumscribe his jurisdiction. But as legal restraints on a person who represents the sovereign, and is clothed with his authority, are little suited to the genius of Spanish policy; the hesitation and reserve with which it confers this power on the courts of Audience are remarkable. They may advise, they may remonstrate; but in the event of a direct collision between their opinion and the will of the viceroy, what he determines must be brought into execution, and nothing remains for them, but to lay the matter before the king and the Council of the Indies."

[424] Recopilación. 3-3-27, promulgated July 19, 1614, conferred general pardoning power on the viceroy.

[425] Regent to the King, July 9, 1793, A. I., 106-4-18; Cédula of October 24, 1803, A. I., 105-2-10.

[426] Royal decree of July 4, 1861, Colección legislativa, LXXXVI, 1-45.

[427] Recopilación, 3-3-65. It is to be noted that the New Laws of 1542 conferred on the audiencias the duty of protecting the Indians. Professor Moses, in his Spanish dependencies in South America, I, (212-3), says: "The audiencias were commanded to inquire into the treatment which the Indians had received at the hands of governors and private persons; and, in case of excesses and ill-treatment, the guilty parties should be punished.... While it was acknowledged that some persons had a sufficient title to hold Indians, it was ordered that when the number held was excessive, the audiencia should gather the necessary information and reduce the allotments made to the said persons in a fair and moderate quantity 'and place the rest under the Crown'."

[428] Ibid., 53.

[429] Ibid., 3-3-61; 3-4-7. We have a notable illustration of this in the banishment of Archbishop Poblete by Governor Salcedo (1663-1668) as a result of the resistance of the former to Salcedo's intervention in ecclesiastical matters on the basis of the royal patronage. Salcedo did not solicit the aid or intervention of the audiencia in this matter.

[430] Ibid., 2-16-8.

[431] Ibid., 3-3-58; King to Audiencia, March 6, 1781, A. I., 105-2-9.

[432] Instruction to Tello, May 25, 1596, Blair and Robertson, IX, 229, 232-233, 238-239.

[433] Recopilación, 1-14-29 to 31.

[434] Ibid., 31.

[435] King to the Audiencia, March 6, 1781, A. I., 105-2-9.

[436] Recopilación, 3-3-45.

[437] This is treated in the first chapter of this book. See Solórzano, Política Indiana, II, 271-279.

[438] Recopilación, 2-15-11.

[439] Constitution of 1812, Martínez Alcubilla, III, 408 et seq.; Acuerdo for the promulgation of the Constitution of 1812, Montero y Vidal, III, 404; Acuerdo of January 15, 1814, Ordenanzas, etc., A. I., 106-4-19; Cédula of September 26, 1835, Zamora y Coronado, Apéndice, 41-138; Royal Decree of January 30, 1855, Colección legislativa, LX, 105-147; see also Royal Instruction to Regents, June 20, 1776, and Cédula of April 8, 1778, in Rodríguez San Pedro, Legislación ultramarina, VII, 22-28.

[440] Ordinances enacted by the Audiencia of Manila, June 13 to December 19, 1598, Blair and Robertson, X, 293-316; Ordinances etc., January 7, to June 15, 1599, ibid., XI, 1-81. Reference may also be made to the five volume Colección de autos acordados de la real audiencia ... de Manila, 1861-1866; see also Estadísticas de las causas y expedientes de gobierno despachadas por la audiencia de Filipinas durante el año de 1876. For New Spain we have the Recopilación sumaria de algunos autos acordados de la real audiencia de Nueva España, Mexico, 1787. Of similar import and character was the well-known collection of Puga, cited in the bibliography of this volume. See also Solórzano, Política Indiana (2 vols.).

[441] Blair and Robertson, L, 191-264; see, also, Montero y Vidal, Historia general, I, 380-385, also correspondence relative to the modifications of these ordinances by Raón in A. I., 105-4-5. Marquina's efforts along this line may be noted in A. I., 105-4-6.

[442] Acuerdo of January 15, 1814, A. I., 106-4-19; see also Montero y Vidal, Historia general, III, 404; 430.

[443] Carvajal to the King, December 5, 1785, A. I., 107-5-14; Carvajal to the Audiencia of Manila, December 29, 1787, A. I., 107-5-15; Testimonio del expediente sobre poner la real jurisdicción y el gobierno y policía de estas islas en el ser y estado que tenían antes, December 20, 1788, A. I., 107-5-18, 105-3-5.

[444] King to the Audiencia, August 13, 1793, A. I., 105-2-10.

[445] Recopilación, 3-2-70 (after 1680), 67.

[446] Rodríguez San Pedro, Legislación ultramarina, VII, 67.

[447] Mas, "Internal political condition of the Philippines," in Blair and Robertson, LII, 70-73. Mas was a Spanish diplomatic official stationed in China, who visited the Islands in 1842 on a semi-official mission. This writer was not favorably impressed with the effectiveness of the acuerdo. He wrote: "Whatever difficulty occurs in the fulfilment of an order, it must be solved by means of a conference and advice [consulta], from which a reply is not obtained until from twelve to fourteen months." Instead of governmental matters being referred to the acuerdo, Mas stated that they were referred to Spain, hence there was great delay. He stated that the governor scarcely decided any question by himself, and those which were solved in the colony were referred to the asesor, and "from this practice," he continued, "arises the system of expedientes, which reigns, and which is so fatal to the prosperity and good government of the country, since very often the arrangement that appears good to some, is contrary to the opinions or interests of others.... Thus much valuable time is lost and the expedientes result in only a waste of paper, besides great injury to the islands. The governor often has to conform to the opinions expressed in the expediente, although he knows they will be the cause of injustice. On the other hand, the governor is often directly at fault, because he enforces his own opinion on his assessor (sp.), who has often obtained his position through favoritism and is not a lawyer, and decides questions according to the will of the governor.... The chiefs of the various departments carry on correspondence with the directors-general of their respective departments in Madrid, without the knowledge of the governor, a fact that increases the confusion and disorder." (See also Revilla Gigedo's description of the evils of the expediente in New Spain [1790]. Smith, The viceroy of New Spain, 190-191.)

This description of the Philippine government in 1842 would seem to indicate that aside from the limitations imposed upon his rule by the audiencia, the governor was obliged to contend with a number of other officials, departments, and regulations, which effectively prevented him from exercising absolute power, even at the sacrifice of efficiency. We note in this description, moreover, that tendency of Spanish colonial government which has been emphasized so often in this treatise--namely, the failure of the home government to leave to the colonial officials sufficient scope of action or authority to deal adequately with the ordinary problems of government. Up to the end of the eighteenth century the audiencia was the only civil authority or tribunal present to exercise any check on the executive in administrative affairs. However, in the last century the importance of the audiencia in this regard was diminished by the creation of other departments, ministries, and offices, by the elimination of time and space, due to the progress of invention, which brought the colonies nearer to Spain, and finally by the fact that the tribunal itself was more and more confined to judicial affairs.

[448] Governor Torres to the Queen, March 18, 1835, A. I., 106-4-21.

[449] Colección legislativa de España, LXXXVI, 1-45. Elliott, in his Philippines to the end of the military regime, p. 242, states incorrectly that this reform took place in 1865. Mr. Elliott did not make use of the sources. It is to be noted, too, that Dr. Barrows in his article on "The governor general of the Philippines," in The Pacific Ocean in history makes contradictory statements relative to this matter. On page 242 he asserts that the governor was president of the audiencia till 1844, and on page 248 the statement occurs that "a further specialization of 1861 deprived the governor-general of his judicial powers."

[450] Instruction of the King to Governor Acuña, February 16, 1602, Blair and Robertson, XI, 263-88.

[451] Fray Sánchez, in his memorial of July 26, 1586, stated that the audiencia had stopped the practice of conceding encomiendas (A. I., 67-6-27), which the governors had followed prior to its establishment. Nevertheless the governor's authority to bestow encomiendas was recognized by the royal instructions to Governor Dasmariñas, issued May 25, 1593 (Blair and Robertson, IX, 232). The statement of Sánchez may be interpreted to mean that the audiencia had stopped the abuses which had been perpetrated by various governors in bestowing encomiendas on their friends. Encomiendas were conceded by different governors in the Philippines throughout the eighteenth century. This matter has been discussed in an earlier note.

[452] Mas, "Internal political conditions of the Philippines, 1842," Blair and Robertson, LII, 69-70 and note. The keen observations of this official on social and governmental conditions in the Philippines are peculiarly pertinent, and they are as true in many regards today as they were seventy-five years ago. He recommended a regency to govern the Philippines, consisting of the governor as president, a military commander and an intendant of finance. The audiencia, according to his plan of reform, was to be limited to judicial affairs, with appellate jurisdiction over civil, criminal, and commercial cases. Instead of the audiencia as a court of appeals against the governor, the regency was to entertain appeals from the audiencia. Many of his ideas were incorporated into the new laws of the last half of the nineteenth century (ibid., 78-85).

[453] Recopilación, 5-12-22; 2-15-35; 36, 41.

[454] Ibid., 3-3-51.

[455] Ibid., 2-15-35, 36, 41; 3-3-2, 34, 42; 3-14-1; 5-12-22.

[456] Acuña to Felipe III, July 15, 1604, Blair and Robertson, XIII, 235. Acuña stated that the soldiers and military officials were "discontented and grieved at the ill-treatment which the said auditors accord them; and at seeing that they are hindered by them, an auditor commanding at his will the arrest of a captain, official, or soldier, without cause or reason, and interfering in all the details of service--even going so far as to inspect their quarters, and send them to the public prison, for very trivial affairs, against all military precedents." The governor said that when affairs went on in a peaceful and orderly way, it was because the oidores were not interfering with them. He stated that it was the opinion of all right-thinking men that soldiers were of more use in the colony than judges (ibid., 237).

[457] The terms of these governors were as follows: Fajardo, 1618-1624; Corcuera, 1635-1644; Vargas, 1678-1684; Arandía, 1754-1759; Anda, 1762-1764, 1770-1776.

[458] Rios Coronel to the King, June 27, 1597, A. I., 67-6-19; see also Bourne, "Historical introduction," in Blair and Robertson, I, 53, note.

[459] These arguments are noted in detail in