CHAPTER IV

JUDICIAL FUNCTIONS OF THE AUDIENCIA; THE RESIDENCIA [204]

The purpose of the residencia was to uphold the morale of colonial service by making officials answer for all their acts in a judicial examination held at the close of their terms. It may be said that the fear of the residencia was almost the sole incentive to righteous official conduct or efficient public service, and it will be seen that the audiencia exercised very pronounced authority in this. Indeed, the audiencia had general supervision in a semi-judicial capacity over the services of officials and public servants in the colonies. It was the function of the audiencia to send reports to the court relative to the conduct, work, or attitude of any employee or official of the government, or of any resident of the colony. These reports were known as informaciones (pareceres) de servicio. [205] The tribunal itself was ready at all times to hear complaints against provincial governors and judges, treasury officials, magistrates, governors, or, in fact, any and all officials holding their positions by virtue of the king's commission. [206] Charges might be made by a wronged party or by anyone whose knowledge of an abuse was sufficient to justify charges. Heavy penalties were imposed upon persons making false or unsubstantiated charges. [207] Complaints against alcaldes mayores and corregidores were most likely to be made during the regular investigation of the visiting oidor, which, as we have noted, occurred every three years, but sufficient complaint might be made to justify the dispatch of a special investigator at any time. [208]

The findings of the above inspections might be reviewed by the audiencia and lead to the suspension and dismissal of the official under investigation. [209] The final action had to be confirmed by the Council of the Indies in case the person concerned were a royal appointee, but in these matters the action of the local officials was usually approved. For the removal of oidores and oficiales reales a slightly different method was pursued. A magistrate of the audiencia was designated to investigate the case, the evidence was submitted to the Council of the Indies and final action was taken by it and not by the audiencia. [210] Any and all charges brought against an official in these investigations, even though he were cleared at the time, might be revived in the residencia.

Suspensions from office were made by the governor with the advice and consent of the audiencia. The governor had the legal right to make temporary removals, but on account of the seriousness of such an act, and the considerations depending upon it, he usually preferred to have the support of the magistrates in the matter. The governor, as vicepatron, could suspend prelates and other church officials, but he seldom, if ever, exercised his powers to the full extent. The audiencia at Manila, on the other hand, actually drove the archbishop from the city on various occasions. The suspension and the removal of members of the ordinary clergy from their districts was a frequent occurrence, but churchmen were not subject to residencia. The audiencia had no authority to suspend or remove the governor, though the magistrates could and frequently did bring charges against the governor which led to his dismissal. Governors actually suspended and removed oidores at times, though such acts were protested as violations of the law which authorized only the Council of the Indies to remove these officials.

Briefly, the procedure in making these removals was as follows: the governor and audiencia investigated the conduct of an official whenever circumstances demanded it; the latter was either suspended and recommended for removal, such recommendations being made by the audiencia to the governor or to the Council of the Indies, according to the rank of the official, or the tribunal could make the removal itself. [211] If exception to the action of the audiencia were taken, all the papers relative to the case were forwarded to the Council of the Indies, and if good reasons were found to exist for the action of the lower court the Council approved its action. [212] This, was not the residencia as usually considered.

Of the various authorities at our disposal, Bancroft gives the most acceptable characterization of the residencia. He defines it as an examination held, or an account taken, of the official acts of an executive or judicial official within the province of his jurisdiction during the term of his incumbency. This, Bancroft says, was done at the expiration of the term of office or at stated periods, or, in case of malfeasance, at any time. [213] The principle underlying the institution of the residencia was bequeathed to the Spaniards by the Romans, being similar to and probably derived from their law which gave the right of accusation to any Roman citizen against an office-holder. The residencia was conducted by a judicial official, and it combined the features of a general survey of the career of the official under investigation, an auditing of his accounts and a formal trial. Its purpose was to ascertain whether or not the official had faithfully executed his duties and it served to clear him if he were proved honest, giving him a clean certificate of recommendation. If he were found guilty of official misconduct or dishonesty he was apprehended, degraded, and punished, according to his deserts.

Professor Bourne has written in regard to the residencia:

The residencia ... was an institution peculiar in modern times of the Spanish colonial system. It was designed to provide a method by which officials could be held to strict accountability for all acts during their term of office.... To allow a contest in the courts involving the governor's powers during his term of office would be subversive of his authority. He was then to be kept in bounds by realizing that a day of judgment was impending, when everyone, even the poorest Indian, might in perfect security bring forward his accusation. In the Philippines the residencia for a governor lasted six months and was conducted by his successor and all the charges made were forwarded to Spain.... The Italian traveller Gemelli Careri who visited Manila in 1696 characterizes the governor's residencia as a "dreadful Trial", the strain of which would sometimes "break their hearts."

Professor Bourne stated that it was the opinion of De Pons that "the severities of the residencia could be mitigated, and no doubt such was the case in the Philippines. By the end of the eighteenth century the residencia seems to have lost its efficacy." [214]

It is important to note at the outset that the residencia was not conducted periodically alone, but that it might be held at any time in the career of an official. The term pesquisa was applied to the form of residencia which was carried out by a special investigator (pesquisidor), sent when serious charges were made against the conduct of an official. [215] In the investigation which took place the official might be fined, or if grave offenses were proved, he might be removed from office. Appeals might be made from the pesquisidor to the audiencia and to the Council of the Indies. In fact, the judgments of the pesquisidor were always reviewed in the local tribunal unless the investigating judge had been commissioned by the Council of the Indies.

The distinction which has been made here between the formal residencia which occurred at the close of the term of office and the pesquisa which might take place whenever serious charges were made, was first emphasized in laws promulgated by Charles V in 1538, and by Philip II in 1591; these aimed to put a stop to the excesses of certain governors, corregidores, and ministers of justice, who, relying on the practice then prevailing of taking residencias only at the close of the official term, had committed unlimited excesses. The new laws, above referred to, stated that although it had never been the royal wish that residencias of royal appointees should be taken without notice having been sent first to the monarch, the above circumstances had made it necessary for them to be taken when charges were made. This cédula, therefore, authorized the taking of residencias whenever the best interests of the service required it. [216]

This cédula was followed by another which forbade the sending of special investigators or judges of residencia against governors of provinces, unless persons of responsible character presented charges against them, giving bonds to cover the costs. An investigator was thereupon sent to conduct the trial of the official under examination. [217] This matter is covered in slightly different terms in the law of June 19, 1620. According to that enactment, a receptor [218] might be sent to conduct the preliminary investigations of corregidores and ordinary justices when these demanded instant attention and could not await the formal residencia. If, as a result of this inquiry, the guilt of the official seemed apparent, a more complete investigation was made by a judge appointed by the president and audiencia in acuerdo. [219]

The authority to determine whether cases merited investigation or not and whether an inquiry should be made, belonged to the acuerdo, while the designation of the judge rested with the governor. [220] The judges sent on these missions were not at first authorized to pass final sentence, their decisions being subject to review in the audiencia before execution. However, by the law of May 5, 1576, this added authority was bestowed upon the oidores who conducted special investigations, or residencias. [221] Appeals might be made to the audiencia and, if the sentence imposed the death penalty or permanent removal from office, the appeal might be carried to the Council of the Indies. [222] The final approval of the Council was required before

## action could be taken with regard to any royal appointee, except in

those cases wherein the fine did not exceed one thousand pesos. [223]

The oidores, it seems, did not always act as impartial judges when entrusted with these investigations; they were often influenced by the extra reward obtained for these services, and frequently by prejudice against the officials under investigation. Such were the charges implied by Governor Fajardo in 1619 when he wrote:

It is always to be believed that the auditors (oidores) to whom the inquiries are entrusted, ought to make them, not only as judges, but as interested parties, so that sinister inquiries should not be sent to your Majesty's royal Council to defraud your royal treasury and the merits of those who have served well. I assure your Majesty that I have heard that many inquiries have been made with less justification than might be advisable. [224]

A typical illustration of the jurisdiction of the audiencia in an investigation of this sort, and of the delay to which the minor officials were subjected, is shown in the case of Antonio Pimentel, governor of the Marianas, [225] whose residencia was taken in the decade following 1711. In this case may be seen the distinction between the formal residencia, conducted at the close of the regular term of office, and an investigation of charges brought during the incumbency of the official. This case illustrates both forms of investigation, for it originated in a charge of treason brought against Pimentel, who, it was said, had furnished food and water to the crews of two English vessels, enemies of Spain, and subsequently these same ships had captured the galleon, "Nuestra Señora de la Encarnación". The conduct of the case was given to magistrate Torralba, who, on his arrival at Guam, sent Pimentel in chains to Manila. Notwithstanding his defense of ignorance of a state of war existing between Spain and England, he was sentenced to the forfeiture of the bonds which he had posted on assuming office, and in addition was deprived of his position as governor at Guam. This sentence was rendered January 23, 1712, and was approved by the audiencia in review on July 24, 1714. [226] The tribunal sentenced Pimentel to prison and ordered that his residencia should be taken; accordingly, an examination was made of all his official acts as governor. Pimentel, therefore, had not only to stand investigation for the particular act which had brought about his removal, but he was also subjected to a residencia covering his entire career as governor. It may be noted that the two forms of investigation were separate and distinct on this occasion.

Owing to the death of Governor Lizárraga, to the imprisonment of Oidor Villa, and to the state of anarchy surrounding the administration of Torralba as governor, Pimentel was forced to languish in prison several years while he waited residencia. The appointment of Luís de Tagle as his successor and judge of residencia was dated June 25, 1717. This occasion was one on which the successor of a governor took his predecessor's residencia, owing, the commission said, to the distance and the irregularity of communication between Manila and Guam. A letter of the audiencia, dated August 9, 1718, advised the governor that there were 427 unfinished cases on the docket of the tribunal, and chief among those that ought to be decided without delay was the review of the residencia of Pimentel; it was added that there seemed to be no prospect that a boat could get to Guam before 1719. The record of the termination of this case probably reposes somewhere in the archives, tied in an aged, yellow packet, bound by Spanish red tape.

In summary, it may be said that there were two kinds of investigations of official conduct, one taken at the completion of the regular term of office and the other at any time when the needs of the service required it. They both had the same ultimate purpose of holding officials responsible for misconduct in office, of giving to all persons an opportunity of having justice done to them and of deterring office-holders from future misdeeds.

Practically all of the colonial officials were subject to residencia. The most sensational and widely known residencias were, of course, those of viceroys and captains-general, but oidores, treasury officials, encomenderos, alcaldes mayores, corregidores, admirals, generals, captains, and constructors of galleons were likewise examined in this way. [227] The visitors and special investigators who were sent to examine the government of the provinces and the state of the Indians on the encomiendas were also subject to residencia. Residencias were exacted of all minor officials at the same time that their superiors were examined. [228] Clerks, notaries, secretaries, alcaldes ordinarios, regidores, and other officials of a minor category were investigated at the same time that the governor was examined, an alcalde or an oidor being delegated by the new president to review their official conduct. The examination of these minor officials seems to have become more and more perfunctory and there was a tendency during the latter part of the nineteenth century to continue them in office, even without investigation. When, for instance, Governors Basco y Vargas and Marquina gave up their offices this formality was omitted. [229] The practice of taking the residencias of minor officials was definitely abandoned on August 24, 1799, and a rigid inspection by the audiencia of their official acts was authorized. [230]

Much contradictory legislation appears in the laws of the Indies relative to the method of taking residencias; this due to the reforms made from time to time. These laws were formulated for a growing empire. A chronological review of them will show that the residencia was at first more or less of an experiment. Indeed, all the colonial institutions were in the early periods passing through an experimental stage and these seemingly contradictory laws were promulgated or repealed, according to their success or failure when put into effect. Whenever, therefore, two laws appear to be in conflict, the one of later date will be found to supersede and repeal the earlier one. [231] In illustration of this characteristic of the laws of the Indies we may note the following example: The cédula of December 4, 1630, ordered that the residencia of the governor should be taken by his successor. This law was seldom, if ever, observed. Owing to the distance from Spain and New Spain, and the consequent length of time consumed in voyages, to the unhealthful climate, and to the dangerous military campaigns in which the governors were compelled to engage, death frequently intervened before the successor of a governor arrived. These conditions (which were characteristic of all of Spain's colonies) did not prevent the residencia from being taken, but caused the law to be modified by the cédula of December 28, 1667, according to which judges for the residencias of viceroys and presidents-governor and captains-general were to be designated by the court. The period of four months, which had been authorized for the taking of residencias by the cédula of August 30, 1582, was extended to six months. [232] A change was necessary, the new law declared, in order to put a stop to the incessant strife, and the malice which had been shown by viceroys, governors, and ministers in the taking of residencias. The king determined that henceforth the judge of residencias should be designated by the court. The magistrate usually named was the decano. After 1776 the regent almost invariably conducted these investigations. The important reform of August 24, 1799, ordered that judges of residencia for governors, viceroys, presidents, governors-intendant, corregidor-intendants, and presidents of the Council of the Indies should be appointed by the king. [233]

The first residencia to be conducted in the Philippines in accordance with the new law of November 28, 1667, was that of Governor Salcedo, in 1670. This governor had been removed by the commissary of the Inquisition on October 10, 1668, and Francisco Coloma, the decano, was ordered to take his residencia. [234] Coloma's intervention in the matter was protested by the audiencia in a letter to the Council of the Indies, dated April 7, 1670, on the grounds that the senior oidor was also the asesor and possible successor of the governor, and for that reason he was disqualified from taking the latter's residencia. [235]

The audiencia suspended the proposed action of Coloma, pending the reply of the Council of the Indies. In addition to the protest of the audiencia, the fiscal, on May 20, 1670, sent a report of the case to the court, which act was in fulfillment of his regular duties as fiscal, as prescribed by the laws of the Indies. [236] The notes from Manila were effective in bringing about the desired results. Upon receipt of the communications, the Council of the Indies, on June 17, 1671, ordered the nullification of all former cédulas, cancelled Coloma's appointment to take the residencia in question, on the grounds that he had been the governor's asesor, and appointed Fernando de Montemayor, the oidor next in rank, to conduct the residencia of the governor. [237] Salcedo had already been dead three years, and two more transpired before his residencia was completed and the autos thereof reviewed by the Council.

The laws provided ample opportunity for appeal in cases of residencia. The cédula of November 17, 1526, ordered that appeals might be made to the Council of the Indies from judges of residencia in cases involving liabilities in excess of 600 pesos. [238] Many appeals were made to the Council in accord with this law, and the time of the tribunal was consumed in the consideration of matters comparatively of small importance. To obviate this defect the law was changed on August 7, 1568, to provide that no case could be appealed to the Council of the Indies unless the sentence imposed capital punishment or deprivation of office. [239] The cédula of June 23, 1608, ordered that if the fine imposed upon the governor and ministers of the Philippines did not exceed one thousand pesos the case should be finished in the audiencia. [240] Cases involving a greater amount were to be appealed to the Council. Sentence of judges of residencia were not to be executed pending the trial of appeals to the audiencia and the Council of the Indies. [241]

Philip IV initiated further reforms in regard to appeal in 1636. Ordenanza LVI, promulgated at that time, provided that "the said Council [of the Indies] may only have jurisdiction over the visits and residencias of the viceroys, presidents, oidores, and officials of our audiencias and accountants and officials of the tribunals of accounts, officials of the treasury and those of the governors provided by the Council with our titles." [242] Ordenanza LXII, issued at the same time, ordered that "in the visits and residencias which are seen and determined in our Council of the Indies," cases did not have to be referred to the king for consultation, excepting when, in "the residencias of viceroys, presidents, and oidores, alcaldes del crimen, and fiscales of our royal audiencias of the Indies and governors of the principal provinces there, condemnations of corporal punishment, privation or suspension from office result against them." [243] In these cases the Council was ordered to submit its decisions and all papers bearing thereon to the king before passing judgment, so that the final judgment might be rendered by the sovereign in person. The Council could take final action in the residencias of military and naval officials without consulting the king. It was, of course, impossible for the sovereign to give his personal attention to any of these matters, but the last word was pronounced in these suits by responsible ministers of the court who stood high in the royal estimation.

Officials were usually obliged to submit to residencia before leaving the colony, also before their promotion to higher posts. [244] Owing, however, to the paucity of ships plying to New Spain and to the length of time elapsing between sailing dates, officials could give bonds and leave before the residencia was completed. [245] This was permitted only to men of good character, whose services had been uniformly satisfactory, and who were destined to some other post wherein their services were indispensable. The investigation was then conducted in the absence of the official concerned. [246] It was decreed by the cédula of December 30, 1776, that an annual deduction of one-fifth of the total salary of the governors and viceroys respectively should be made, until sufficient money had been taken out to cover the probable costs and liabilities of their residencias. [247] This was a special assessment, distinct from the media anata, [248] and the money deducted thereby was to be returned if nothing detrimental were proved in the residencia. The last year's salaries of alcaldes mayores and corregidores were withheld, pending investigations of their official conduct and a rendering of accounts of collections made by them. [249] If an official were cleared of all guilt, the money which had been withheld was returned and the costs of residencia were defrayed by the royal treasury. [250] In case the official were found guilty of misconduct, he had to forfeit his deposits, back-salary, bonds, and frequently to pay a large fine in addition. The amount of the penalty, of course, depended on the extent of the guilt. It may be said that in the Philippines the royal treasury suffered no serious embarrassment through having to bear costs of residencia.

The judges of residencia who served as such in addition to their regular duties, received an additional compensation which varied according to the place where the residencia was held, its distance from the capital, and other circumstances. [251] This was modified by a reform of the nineteenth century which awarded extra pay only in the case the official were fined. This, of course, was intended to afford the examining judge a stimulating interest in the case. Still later the system of giving extra pay for residencias was abolished. [252]

A detailed survey of the governor's residencia in the Philippines would illustrate the influence of the audiencia in such investigations. Unfortunately the story would be long and little space remains for such a purpose. During the first two centuries of Spanish rule in the Islands the residencias of the governors were especially stringent, many of these officials suffering deprivation of office, imprisonment, and exile. The families and dependents of some were reduced to the last extreme of poverty, while the victims themselves spent years in some distant province, unable to defend themselves from their enemies. Many victims of the residencia were purposely put aside in order that no appeal could be heard from them. One would occasionally find relief at last in a tardy pardon or in a modification of sentence, obtained through friends at home, when these could be reached, but more often death would intervene before the exercise of executive clemency or revision of sentence could be obtained.

The factors of petty spite, malice, and personal ambition entered to an extensive degree in the rendering of testimony at a residencia. A governor, recently arrived in the colony, would be full of zeal and ardor to inaugurate a successful administration, and make a good record for himself. The first duty that presented itself on his arrival was that of taking or supervising his predecessor's residencia. Frequently, before arriving at Manila, the new governor would be in full possession of a complete record of the misdeeds of his predecessor, and the residencia of the latter was as good as taken. [253] Oidores, merchants, alcaldes, treasury officials, and churchmen, compelled to stand aside and see a governor take his choice out of the best things, leaving for them only the husks, were not slow in bringing charges at the official residencia. [254] A new governor, desirous of demonstrating his intention of starting an honest and vigorous administration, hearing nothing but evil of his predecessor, would naturally lend himself as an instrument to the malcontents. A fiscal, after spending six years in conflict with a governor, could be depended on to bring strenuous prosecution against him. A magistrate with enmity in his heart for the governor whose residencia he was to take, was no fit person to conduct an impartial investigation.

While as a rule the residencias of governors were severe, due largely to the presence of the audiencia, that of Dr. Sande, the first governor to submit to this investigation, illustrates the evils of the residencia as conducted before the establishment of the audiencia. His successor, Governor Ronquillo de Peñalosa, conducted Sande's residencia and sentenced him to pay a heavy fine, but he appealed the case to the Audiencia of Mexico, by which tribunal, in the meantime, he had been commissioned oidor. We have noted in an earlier chapter Ronquillo's comments on the abject state into which the administration of justice had fallen when a man could be promoted to a magistracy in a tribunal which had jurisdiction over his own case on appeal. [255] However, after the establishment of the audiencia, and until the close of the nineteenth century, the residencia went to the other extreme, and was, as a rule, exceedingly rigorous.

We may briefly note a few of the most severe residencias in which the influence of the audiencia told against the victim. In 1625, Gerónimo de Silva, temporary governor, was imprisoned by the audiencia because he failed to pursue the Dutch after their defeat in 1617. The real difficulty lay in the fact that Silva had incurred the enmity of the senior oidor, who ultimately conducted the residencia, because Silva's arrival in the Islands deprived that magistrate of the command of the military and naval forces of the Islands. Again, Governor Corcuera, after nine years of very successful rule, during which he distinguished himself in several campaigns of conquest and incidentally aroused the hostility and jealousy of the oidores, was arrested on charges made by the audiencia on the arrival of Governor Diego Fajardo in 1644. An oidor, who was the personal enemy of Corcuera, was designated to conduct the residencia, the ex-governor was fined 25,000 pesos and was imprisoned five years while the magistrates of the audiencia delayed the transmission of the papers which permitted a rehearing of the case. At last his defense was sent to the Council, the fine was remitted, he was given salary for the period of his exile, and the post of governor of the Canaries was conferred upon him. Although the audiencia was responsible for the injustice in this case, Fajardo, as president and governor, was held answerable in his own residencia for his conduct toward his predecessor.

Governor Simón de Anda y Salazar, one of the most successful governors the Islands had ever known, was made to suffer from the personal malice of the oidores when he gave his last residencia in 1776. [256] Among the offenses which were proved against him was that of exercising prejudice in conducting the residencia of Oidor Villacorta, conducted under his supervision. The residencia had been rigorous, due no doubt to personal enmity between the oidor and the governor, extending over a period of many years. He was also fined 4000 pesos as a price for his excessive zeal in the prosecution of the residencia of his predecessor, Governor Raón, who had friends in the audiencia to defend his memory and champion his cause. [257] Anda was also shown to have absolved certain officials of real hacienda of financial responsibility, permitting them to leave the Islands without the consent of the audiencia. These and other charges proved against him were said to have caused his premature death in 1776.

Governor José Basco y Vargas, another very efficient governor, [258] but one who had been opposed throughout his term of office by the audiencia, was heavily fined in 1787 by the oidor designated to conduct the investigation. The decision of the judge of residencia was reversed by the Council of the Indies, however, and Vargas' exceptional merits were recognized to the extent of his being appointed to the governorship of Cartagena, with the rank of rear admiral. In taking the residencia of Vargas, the audiencia had disagreed so completely that the tribunal was obliged to resort to the extreme measure of appointing a churchman as arbiter. Fray Gerónimo Caraballo, the curate of Quiapo, was designated for that duty.

Aside from the above brief references to notable cases in which the audiencia exercised jurisdiction over the residencias of governors, allowing itself to be influenced by considerations other than those of justice, it seems desirable to review in detail at least one case of the residencia of a governor, to show more particularly just what authority was exercised by the tribunal, and just how that authority was exercised.

We may select for this purpose the residencia of Governor Felix Beringuer de Marquina, which was the last to be conducted under the old laws, and the last, accordingly, of the severe residencias. [259] As governor and superintendent of real hacienda Marquina assumed such power as no other governor had ever exercised. He was opposed at every turn by the audiencia and probably no other governor ever had so many of his measures vetoed or opposed by the home government as he. The fiscal and oidores brought many charges against him; these finally culminated, before the expiration of his term, in the royal order of February 19, 1792, for the taking of his residencia. The regent, Agustín de Amparán, was put in possession of the special charges which had been made against Marquina. According to these the governor had been careless in defending the Islands against the Moros, who had insulted and robbed with impunity the various settlements, with no effort having been made to check their advance. The governor had transgressed in numerous instances the sphere of the audiencia and had substituted his own authority. He was said to have been guilty of immoral relations with certain Spanish women of the colony, having deliberately and maliciously separated an intendant from his wife on one occasion by ordering the former to a post of duty where no woman could go; he had amassed a great fortune through trade and by diverting the proceeds of the royal revenue to his own private advantage; he had permitted merchants to conduct business without proper licenses; he had allowed foreign merchants to remain in Manila under conditions forbidden by law. [260] These and many others were the charges brought against Governor Marquina. They may be considered as typical of the accusations which were usually brought against governors in their residencias.

Amparán was commanded by the royal order above-mentioned to remove Marquina to some spot outside Manila where he could not interfere with the residencia, but whence he could be summoned at any time, to give testimony in his own behalf. [261] The regent was instructed to ascertain from the treasury officials whether Marquina should not be required to post more than the usual amount of bonds in view of the grave charges against him. It seems that the law already cited requiring an annual deduction of one-fifth of the governor's salary to cover residencia had been abrogated by a royal order dated February 13, 1782; hence there was some apprehension lest Marquina had not deposited sufficient money. [262]

In compliance with these orders Marquina was relieved of his office in September, 1792, and was sent to Laguna de Bay, about thirty miles from Manila. After five months' delay, the investigation was inaugurated and it was concluded by July 22, 1793, but Aguilar, the new governor, intervened and suspended the sentence on the ground that Marquina had not been given sufficient opportunity to defend himself. Up to this time Marquina had not testified directly. Aguilar ordered that the ex-governor should be brought to Manila and that a lawyer should be appointed for his defense. This was done and the charges which had been made against him were duly answered. This evidence could not be incorporated in the official papers of residencia, for they had been finished and closed by the regent, but it was forwarded to Spain under separate cover. [263]

The official papers of Marquina's residencia, as formulated by the regent of the audiencia, arrived before the Council of the Indies in due time, together with Marquina's defense which had been sent separately. The glaring injustice of the investigation as conducted by Amparán and of the official evidence transmitted, was patent to the fiscal of the Council. He refused to receive any testimony not incorporated in the official papers of the case. Marquina was allowed a retrial by the Council. This resulted in a further delay of three years; during this period Marquina remained in the provinces with the exception of the time spent in Manila giving testimony in his second residencia, which was taken under the direct supervision of Governor Aguilar. Immediately after his second trial Marquina was transferred to Mexico, but he was obliged to deposit an additional 50,000 pesos before his departure from Manila.

In the ultimate judgment Marquina was pronounced guilty of many offenses in addition to those mentioned in the charges previously outlined. He had shown favoritism in the dispensation of official favors; he had authorized the expenditure of public money for private ends; he had neglected defense and agriculture; he had been negligent in the supervision of the various departments of real hacienda and

## particularly of tobacco; he had infringed on the jurisdiction of the

royal audiencia. He had indulged in private trade and had granted special favors to foreign merchants. [264]

The regent fined him 40,000 pesos outright and, moreover, he was condemned to pay into the royal treasury an additional fine of 16,000 pesos to cover certain illegitimate profits made through granting unlawful trading concessions to an Armenian merchant. This sentence was not executed immediately, as it had to be confirmed by the Council of the Indies. On review of the findings and recommendations of the regent, the Council declared that since the proceedings at the trial of Marquina had been irregular and the governor had already suffered the consequences of his own misdeeds, the fine imposed by the judge of the residencia in Manila might be reduced to 2000 pesos with costs of trial. Marquina on October 12, 1797, asked to be excused from the payment of the 2000 pesos, but the Council denied his petition, declaring that he had been treated with great consideration and mercy and that nothing more could be done in his behalf, especially since he had not been adjudged innocent of the charges which had been made against him. [265]

Marquina's trial illustrates all the characteristics, the delays, terrors, and ramifications of a typical residencia of the seventeenth and eighteenth centuries. Continued complaints against him caused Marquina's residencia to be taken before the expiration of his official term. The regent of the audiencia was commissioned by the court to conduct the investigation because Marquina's successor had not arrived. That magistrate was prejudiced against Marquina on account of having witnessed the governor's continual malfeasance in office. He was unable to conduct an impartial investigation, and the audiencia, likewise prejudiced, would not intervene in behalf of the ex-governor. The wrongs done to Marquina in his trial were so patent that the Council of the Indies ordered a new hearing. A severe sentence was finally passed by the judge in Manila, but it was modified by the Council of the Indies through considerations of justice. The residencia occupied ten years, and during the greater part of that time the ex-governor remained in exile--a victim of his own misdeeds, the faulty residencia system, and the hostility of the audiencia. The customary severity of the residencia was only mitigated in this case by the presence of an impartial governor, who, unlike most governors whose desire was to harass their victims, sought to secure a fair trial for his predecessor. To accomplish this he was obliged to work against, rather than in co-operation with the audiencia.

The above method of conducting residencias of governors, presidents, viceroys, and superintendents was modified, as already mentioned, by the reform of August 24, 1799. The new law provided that the court, instead of the new governor, should appoint the examining judge. The latter was no longer empowered to pronounce sentence of any sort. He was only to conduct the investigation in the future, remitting the autos of the case to the Council of the Indies for final determination and sentence. [266] Again, on March 16, 1797, the royal order of December 30, 1777, was re-enacted and the practice was revived of deducting annually one-fifth of the salaries of officials whose incomes were 8000 pesos a year or more. [267] This law was again promulgated on January 18, 1848. Its purpose was to secure the retention of a sufficient sum of money to guarantee all losses incident to the residencia. It apparently continued in force until July 7, 1860, when governors and captains-general were declared exempt from these discounts. [268]

We shall now examine more particularly the jurisdiction of the audiencia over the residencias of minor officials of the colony. It has already been pointed out that the residencias of provincial judges and governors, alcaldes ordinarios and reales oficiales were taken by judges appointed by the president of the audiencia, with appeal to the tribunal. These cases, under certain circumstances, might be taken on second appeal to the Council of the Indies. The practice in these investigations may be best understood by noting the development of the law regarding them, for, as we have already noted, the residencia was the product of years of administrative experience, during which various methods were tried, and rejected or adopted as they were found respectively inadvisable or efficacious.

The earliest cédula on the subject, that of November 17, 1526, ordered that the audiencia should try all appeals from judges of residencia, wherein the amount involved did not exceed 600 pesos. A law of Philip II, dated 1563, forbade viceroys, presidents, and audiencias from sending judges of residencia or other investigators against judges of provinces, unless complaint had been lodged against those officials by a person willing to post bonds and pay the costs in case the charges proved to be false. [269]

The cédula of September 3, 1565, laid down the principle that the residencias of officers appointed by viceroys and presidents should be taken by commission of those who appointed them. [270] As regularly appointed corregidores and alcaldes mayores held royal commissions, [271] they did not, according to this law, give residencia to judges appointed by the governor. The Council of the Indies, therefore, should name judges to investigate the official conduct of its own appointees. As a matter of fact, however, the Council delegated this authority to the governor and audiencia. This latter practice was authorized by a clause in the cédula of September 3, 1565, which provided that residencias of the officials referred to should be taken under supervision of the audiencias in the districts wherein the officials resided. This meant that while the audiencia was not to interfere in the taking of the residencia itself, the tribunal was to see that the laws regarding residencias were faithfully executed. The law of March 11, 1591, ordered that if the conduct of corregidores, alcaldes mayores, and other magistrates demanded that their residencias should be taken before the completion of their term of office, the viceroys, presidents, or governors should appoint judges for the purpose. [272] Nothing was said in this cédula relative to the authority of the audiencia in this matter, but the law of January 19, 1608, gave to the audiencia the right to try residencia cases on appeal from the sentences of these special judges.

The laws of June 3 and June 19, 1620, provided that the governor and audiencia should decide in acuerdo whether the residencia of a gobernador, corregidor, or an alcalde mayor should be taken. Neither the governor nor the audiencia was to have complete authority in the matter, but each should participate, the audiencia assisting in the decision as to whether the case merited investigation and the governor making out the commission and appointing the judge if an investigation were necessary. The audiencia, alone, was authorized to appoint judges of residencia for judicial officers only. [273] The interference of the audiencia in the residencias of governors, corregidores, alcaldes mayores, and other justices and ministers provided by royal appointment was definitely forbidden by the cédula of April 20, 1639, as this jurisdiction was declared to belong to the Council of the Indies. [274] Although we have evidence that the Council did exercise such jurisdiction, it was always on review of cases appealed from the audiencias. While the above prohibition forbade the audiencia from taking the residencias of these officials it did not restrain the tribunal from participating in the decision as to whether a residencia should be taken, or in the review of the autos of residencia.

An illustration of the intervention of the Council of the Indies in residencias of alcaldes mayores is shown in the case of Josef Tormento, alcalde of Caragara. On June 6, 1786, he was sentenced in residencia to a pecuniary penalty, perpetual deprivation of office, and two years' exile from Manila. This sentence was confirmed in review by the audiencia on October 8 of the same year. The Council modified this sentence, however, approving the fine, but cancelling the other provisions. [275] In 1803 the incumbent of the same post, Antonio Mateo, was incarcerated by order of the audiencia, pending investigation of the charge made against him that he had used the funds of his office for private trade. It was shown, however, that this official knew the location of a quicksilver deposit of great value, whereupon the governor had him removed from prison, ordering the suspension of the charges against him, notwithstanding the protests of the oidores. The fiscal concurred in the action of the governor. The audiencia appealed the case to the Council of the Indies, alleging conspiracy between the governor and the fiscal. The Council, however, on examination of the case, approved their action, ordered the charges to be dismissed, and gave directions that the alcalde mayor should be restored to his former position or given another of equal category as soon as possible. [276]

Although the cédula of August 24, 1799, gave the audiencia the right to conduct the residencias of corregidores and alcaldes mayores, this case involved certain interesting features which should be pointed out in this connection. In the first place, it shows the manner in which the Council of the Indies exercised ultimate authority in matters of residencia. Again, it reveals the influence which the fiscal and even the governor might have in determining whether suit should be brought, [277] and finally it indicates that expediency might constitute an important factor in the ultimate results of a case of this kind.

The practice of granting jurisdiction over the residencia of an official to the authority that appointed him seems to have been followed repeatedly. This principle was enunciated in the cédula of August 20, 1758, but on August 8, 1764, a royal decree authorized viceroys and presidents to name judges of residencia for all officials holding royal appointments, with the condition that the autos should be forwarded to the Council of the Indies. This law was repealed on April 23, 1769. [278]

The cédula of August 24, 1799, which has been mentioned several times in this chapter, was a reform of the greatest importance in the history of the residencia. Prior to its promulgation, all officials had to give residencia, but this law abolished that universal requirement. It provided that residencias of corregidores, alcaldes mayores, and subdelegate-intendants should be taken only when charges had been made against them. This might occur at any time during their term of office, or at the close of their service. These investigations had to be concluded within four months, but if charges were not made against an official his past record was not investigated.

The length of time consumed in all residencias except those of viceroys was limited to four months. The period allotted for these investigations was divided into two parts. [279] During the first half, edicts or notices of residencia were posted throughout the district of the official concerned. These were printed in Spanish and in the common dialect, so that natives and others concerned might read and know that the official was giving up his post and that charges might be brought against him, setting forth any misconduct, undue harshness, tyranny or dishonesty of which he had been guilty during his term of office. These notices invited them to register any complaints which they might wish to make and gave them sixty days in which to do it. At the close of this period the judge of residencia opened an investigation in the town wherein the official under examination had resided, usually the capital of the province. The actual trial of residencia might consume sixty days, or it might be perfunctory in its character and occupy a much shorter period, the entire question of time depending on the amount of evidence presented against the retiring official. On the other hand, as we have seen, the residencia of a governor might occupy ten years.

If the judge were taking a residencia in the provinces he was frequently delayed in arriving at his post of duty, owing to the pressure of other business, or to the uncertainty of transportation facilities. In that event, he could not open the judicial investigation until the allotted period had almost transpired.

In the trial, two distinct lines of investigation were usually pursued: charges which had been made against the official were investigated and the records of his office were examined. The discovery was frequently made through this procedure that the official had embezzled money belonging to the government, usually investing it in private ventures. The inquiry might show that he had been careless in the execution of the duties of his office, remiss in his attention to encomiendas, particularly neglecting the Indians thereon, or too ignorant and incompetent to try properly, record, and transmit the autos of the cases which had come to him in first instance. These defects might not become apparent until they were revealed in this examination.

The judge of residencia would seem to have been well occupied during the time that he was conducting the investigation. He received and reviewed all charges made. In addition to auditing the records of the office, he had to pursue inquiries as to the truth of these charges. He examined witnesses both for and against the defendant, and was supposed to give the official under investigation every opportunity to defend himself. He was relieved, however, of the trouble and responsibility of checking up the financial accounts of the official under residencia. This important matter was turned over to the treasury officials, who ascertained shortages, and held the bondsmen of the official under investigation responsible. [280] The judges of residencia, and the oidores making investigations and reviewing cases of residencia were ordered to confine their examinations to "criminal and legal matters and charges which result against those under residencia." [281]

After all the evidence had been taken and the case had been duly tried, the judge of residencia was authorized to render sentence. Sentences were executed by the examining judge if the penalty did not exceed twenty-five thousand maravedís. The latter cases were not appealable. If the fine were less than two hundred ducats and the defendant desired to appeal, he was obliged to pay the fine or deposit the amount thereof. His case would then be reviewed by the audiencia and in order to effect this, notice of appeal had to be submitted in sufficient time to permit the record of the entire case to be reduced to writing. If, on review, the audiencia found that the defendant was not guilty of the charges which had been brought against him, the money taken as a fine or deposit was restored. If the amount of the fine exceeded two hundred ducats, or if the defendant had been convicted of serious crimes, the judge was authorized to take the proper and necessary steps for the detention of the prisoner and the seizure of his property pending a new trial in the higher tribunal. [282] Cases involving more than one thousand pesos could be carried to the Council of the Indies.

A thoroughly typical case, illustrating all of the ramifications of a provincial official's residencia, was that of Francisco Fernández Zéndera, alcalde mayor and military captain of the province of Ilocos. [283] It was investigated first by a judge appointed by the acuerdo, it was reviewed by the audiencia and it was finally carried to the Council of the Indies. It was characteristic in another sense, namely, in that twelve years passed before the matter was settled.

After Zéndera had occupied his post three years, complaints against him were brought to the attention of the fiscal. In his capacity as prosecuting official and as protector of the Indians, he made a motion before the audiencia in acuerdo, that a judge of residencia should be sent to conduct an investigation of Zéndera's official conduct. The following charges against Zéndera had been sent to the governor, and on the basis of these, the fiscal, governor, and audiencia decided to conduct the investigation: First, Zéndera had compelled natives to work for him on his own estates, building houses, granaries, fences, tilling the soil and planting crops, from two hundred to three hundred men having worked for him continually, without pay or food; second, the arbitrary methods of this alcalde mayor left the natives without money with which to buy their food or to pay their tribute; third, not only were the men forced to labor, but the women were obliged to sew, spin and embroider without pay, and the product of their labor was confiscated by the alcalde mayor.

The audiencia and the governor, in acuerdo, having taken note of these charges, commissioned Angel Moguel, chief secretary of the government, to conduct the residencia of the alcalde. Moguel was put in possession of the necessary documents and departed at once for Vigán, the head city of the province. On November 7, 1782, he posted notices to the effect that Zéndera's residencia was to be taken, calling on the residents to make formal charges against him. Moguel suspended Zéndera from office and accepted 20,000 pesos from two of his friends as bonds to cover the residencia, this sum offsetting the valuation of the properties for which Zéndera was responsible. These were additional to other bonds which Zéndera had posted on his accession to office.

For some unassigned reason, only twenty-five days were allowed for the filing of complaints, but during this time eighty-eight charges were made, most of which were variations of those mentioned above. Zéndera was said to have been uncompromising in his administration of justice; he had imposed excessive fines; he had imprisoned the natives without giving them opportunities for defense; he had refused to allow them to appeal their cases. [284] Not being a lawyer, he lacked sufficient qualifications for the proper conduct of trials; moreover he had refused to employ a teniente or asesor. He had failed to supervise and enforce the instruction of Spanish, and he had done nothing to assist in the education of the natives. Zéndera was charged with having suppressed all commerce except his own, going so far as to arrest merchants of other provinces who came to Ilocos to trade. This he had done to secure his own monopoly in commercial matters. He had, moreover, suppressed the trade of the Ilocanos with the Igorrotes. He had failed to segregate the men from the women in the provincial prison. It was said that he had neglected to publish the governor's edicts (bandos) from Manila. He had shown partiality to Spanish priests in preference to the native clergy. He was charged with having taken rice as tribute at a low price, turning it over to the treasury officials at a higher rate, thereby making great profits for himself.

Zéndera was found guilty of almost every charge made against him. The sentence of residencia was pronounced by the judge commissioned for the purpose on August 13, 1782. The defendant was fined 8000 pesos and sentenced to deprivation of office for a period of eight years. [285] The audiencia, in turn, reviewed the case, and that tribunal, on May 20, 1783, finding the autos of the case incomplete, ordered Moguel back to Vigán for a second time to complete the investigation. The judgment of residencia after this second investigation was made was the same as before, and the case was carried to the Council of the Indies on November 7, 1785. It seems that in this case the audiencia was somewhat slow in granting the appeal, for on February 19, 1788, a cédula was expedited which ordered the audiencia to forward all the autos in its possession bearing on the case. The final judgment of the Council of the Indies was rendered March 23, 1794. The fine of 8000 pesos was reduced to 3000 pesos, and the portion of the sentence which had ordered a deprivation of office was remitted altogether. [286]

The cédula of August 24, 1799, already referred to, greatly altered the applicability of the residencias to provincial as well as insular officials. Its greatest importance was due to the fact that it authorized investigations of corregidores, alcaldes mayores, and sub-delegate intendants only when charges were made against them; otherwise it was assumed that their official conduct had been satisfactory, and accordingly no residencias were held. Before the officials could be transferred to other posts they were obliged to show certificates of clearance from former positions. The audiencia was given final jurisdiction over the residencias of these officials, with inhibition of appeal. At the same time the tribunal was denied jurisdiction in any instance over the residencias of viceroys, captains-general, presidents, governors, treasury officials, oidores, and intendants. [287] After the suppression of the Council of the Indies on March 24, 1834, the latter cases were finished in the Supreme Tribunal of Justice, and that tribunal continued to exercise this jurisdiction till the close of the nineteenth century. [288]

The cédula above referred to abolished the residencias of tenientes letrados, alcaldes ordinarios, regidores, clerks, procurators, syndics, alguaciles, and other minor officials. In place of the formal investigation and judgment after the term of office was completed, the audiencia was given more complete control over their official acts, with the duty of seeing that justice was administered, jails inspected and kept clean, prisoners given a speedy trial and not molested with undue exactions, and the police supervised. The tribunal was also empowered to see that the ayuntamientos conducted their elections impartially and that the municipal officials executed their duties faithfully. In this way the formal investigation at the close of the term of these minor officials was replaced by a more efficient supervision of their acts by the audiencia. The constitutional reforms of the early nineteenth century gave to the audiencia original jurisdiction over the trial of judges of first instance, with appeal to the Supreme Tribunal of Justice. This authority was suppressed in 1815, and continued so until 1835, when it was restored to the audiencias of the colonies.

Although the reform of August 24, 1799, recognized the residencias of alcaldes mayores, tenientes, and corregidores, merely transferring jurisdiction over these to the audiencias, it would seem that this investigation retained less of its former severity from this time onwards. In fact, some authorities infer that the residencia was abolished after 1799. [289] This was not the case, however, as the residencia was recognized by laws promulgated as lately as 1870. [290]

The audiencia also had jurisdiction over the residencias of galleon officials. These had to submit to residencia at the termination of each voyage. An oidor was designated by the governor for the inspection of the ship, for the examination of its papers, for the consideration of complaints against the officers of ill-treatment of passengers and crews during the voyage. [291] An investigation was conducted on the occasion of the loss of a ship. Then a thorough inquiry was made in an endeavor to discover negligence on the part of the admiral, general, or other officials. The exercise of a similar authority over cases involving the loss of galleons has been discussed in the preceding chapter.

In pursuance of this authority, Magistrate Torralba was commissioned in 1710 to take the residencia of the officers of the galleon "Nuestra Señora del Rosario y San Vicente Ferrer", which was wrecked in the Straits of San Bernardino on the voyage from Acapulco in 1709. [292] As great diligence had been shown by them in landing the treasure and sending it overland, the matter was dropped. A similar investigation was conducted in 1743 in the case of the galleon "Cobadonga", which was captured by the British. The charge was made that neither the "Cobadonga" nor her convoy, "El Pilar", had offered any resistance, and that the latter had deserted the galleon and had taken refuge in flight. [293] The officers were arrested and thrown into prison on charges brought by the fiscal, but they were cleared in the investigation which proved that the ships were not in a condition to fight.

The various laws and cases which have been cited in this chapter show that the trial of residencia of captains-general, treasury officials, oidores, intendants, alcaldes mayores, and alcaldes ordinarios was a judicial function over which the audiencia had a large share of authority. It is safe to say that no residencia was ever taken in the Philippines, after the audiencia had been established there, in which that tribunal did not exercise some degree of authority. As the laws and regulations of the residencia varied at different times, the extent of the jurisdiction of the audiencia in this matter was not always the same. The audiencia either assisted in the examination of the charges or in the designation of the judge. The magistrate selected was usually an oidor. Oidores were liable to designation to conduct inquiries, and the audiencia, as a tribunal, tried these cases in review. The tribunal exercised supervision over the work of the investigating judge. The case was either finished in the audiencia, or reviewed there and appealed to the Council of the Indies through the action of the audiencia. The Council of the Indies was the supreme arbiter in all cases, prior to 1799. Subsequently the Council, or the Supreme Tribunal of Justice after 1834, retained final jurisdiction over the residencias of the higher officials only. In the residencias of provincial or local officials the jurisdiction of the audiencia was final.

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