CHAPTER VI

THE AUDIENCIA AND THE GOVERNOR: GENERAL RELATIONS

The audiencia was brought into closer and more frequent relationship with the governor than with any other authority in the colony. The governor was president of the royal audiencia and hence was nominally its chief magistrate. This brought him into touch with its functions as a court. The governor was chief executive of the colony, and in that capacity was responsible for administrative, financial, and military affairs. It will be noted that the audiencia, in various ways, exercised powers of intervention in all of these matters.

The official title of the governor of the Philippines up to 1861 was governor, captain-general, and president of the royal audiencia. [370] a combination of three important functions. In his capacity as governor, he was chief executive of the civil government, with authority over all administrative departments, including finance, and over ecclesiastical affairs. As captain-general, the governor was commander-in-chief of the military forces, with the special duty of providing for the defense of the Islands. As president of the audiencia, the governor retained his authority as executive while entering the field of the judiciary. Though he could not act as judge, himself, nevertheless we have seen in former chapters that he exercised extensive authority over the tribunal, its procedure, and its magistrates.

It will accordingly be our aim in this chapter to discuss the general relations of the audiencia and the governor. These include administrative, financial, and ecclesiastical functions, and those involving the government of the provinces. To these will be added such further observations as remain to be made concerning the judicial relations of the governor and audiencia, leaving apart for discussion in another chapter as an integral subject, the military jurisdiction and the respective participation of the audiencia and the governor in the matter of defense.

Generally speaking, the governor of the Philippines occupied the same relative position, within and without the colony, as did the viceroy in New Spain, and during the greater part of the history of the Islands he was independent of the government of New Spain and was responsible to the Spanish court directly, in the same manner as the viceroy. [371] The independence of the Philippine government may be said to have been practically complete, with such exceptions as will be mentioned in a subsequent chapter, treating of the ad interim rule, after the re-establishment of the audiencia in 1598. The governor was the chief administrative official of the colony, and the provincial governments derived their authority from him; he was the royal vice-patron, and in this capacity he bore the same relation to the church in the colony as the king did to the church in Spain. Likewise as the king was the theoretical head of the state, and was limited and assisted in the exercise of his authority over the empire by the Council of the Indies, so the governor and captain general of the Philippines (and the viceroy in New Spain and Perú) was the head of the colony, and was limited by the audiencia. The audiencias of all the colonies were equally dependent on the Council of the Indies.

Professor Bourne very aptly characterizes the office of governor of the Philippines and its relations to the audiencia. He writes:

The Philippine Islands were constituted a kingdom and placed under the charge of a governor and captain general, whose powers were truly royal and limited only by the check imposed by the Supreme Court (the Audiencia) and by the ordeal of the residencia at the expiration of his term of office. Among his extensive prerogatives was his appointing power which embraced all branches of the civil service in the islands. He also was ex officio the President of the Audiencia. His salary was $8000 a year, but his income might be largely augmented by gifts or bribes. The limitations upon the power of the Governor imposed by the Audiencia, in the opinion of the French astronomer Le Gentil, were the only safeguard against an arbitrary despotism, yet Zúñiga, a generation later pronounced its efforts in this direction generally ineffectual. [372]

Juan José Delgado, who gives us perhaps the most comprehensive and realistic survey of the Philippines of any of the ecclesiastical historians of those Islands, describes the nature of the office of governor as follows:

The governors of these Islands have absolute authority to provide and to attend to all that pertains to the royal estate, government, war; they have consultations in different matters with the oidores of the royal audiencia; they try in the first instance the criminal causes of the soldiers, and they appoint alcaldes, corregidores, deputy and chief justices of all the Islands for the exercise of government, justice, war, ... and besides many other preëminences conceded by royal decrees to the presidency of the royal audiencia and chancery. [373]

The governors of these Islands [he wrote] are almost absolute, and are like private masters of them. They exercise supreme authority, by reason of their charge, for receiving and sending embassies to the neighboring kings and tyrants, ... they can make peace, make and declare war, and take vengeance on those who insult us, without awaiting any resolution from the Court for it. Therefore many kings have rendered vassalage and paid tribute to the governors, have recognized them as their superiors, have respected and feared their arms, have solicited their friendship, and have tried to procure friendly relations and commerce with them; and those who have broken their word with them have been punished. [374]

The governor of the Philippines, like the viceroy of New Spain, was the administrative head of the colony, and as such exercised supervision over all the departments of the government, likewise over ecclesiastical affairs. He was directed to devote himself to the service of God, and to labor for the welfare of the souls of the natives and inhabitants of the provinces, governing them in peace and quietude, endeavoring to bring about their spiritual and moral uplift and their numerical increase. The governors (or viceroys) were instructed by the laws of the Indies

to provide all things which are convenient for the administration and execution of justice, ... to maintain the government and defense of their districts, exercising very special care for the good treatment, conservation and augmentation of the Indians, and especially the collection, administration, account and care of the royal exchequer.

They were instructed, in short, to do all for the provinces under their charge [375] that the king, himself, might do. The laws of the Indies ordered the audiencia, the religious authorities and the civil officials to acknowledge the governor [or viceroy] as their chief. The laws emphasized as the special duties of the governor the supervision and augmentation of the finances, the defense of the colony, and general supervision over all officials, executive and judicial, central and provincial.

Foremost among the responsibilities of the executive was that of supervising the administration of the colonial exchequer. In this, however, he was assisted by the audiencia. The customary oficiales reales were among the first officials created for the Philippine government, and they were responsible to the governor. At the time of the creation of the audiencia, it was ordered that the governor and two oidores should audit the accounts of the oficiales reales, but this power was transferred to Governor Dasmariñas when the audiencia was removed in 1589. In 1602 the right of inspection of accounts was returned to the oidores, [376] but the governor, it was stated, as executive head of the government, was responsible, and he exercised direct intervention in these matters, limited only by the annual inspection of the oidores. During the greater part of the history of the Islands the governor exercised supervision over the collection and the administration of the public revenue, in accordance with the law, [377] and he was required to be present at the weekly meetings of the junta de hacienda, of which two magistrates were members, there to pass on all financial measures and to authorize expenditures. [378] The governor had control over the sale of offices, jointly with the oficiales reales, but from the correspondence on these subjects it is clear that the audiencia was designed to check the governor's authority in that particular. [379] The governor was forbidden to authorize extraordinary expenditures from the treasury without express royal permission, except in cases of riot, or invasion. [380] This regulation was almost impossible of faithful execution, and as his duties increased and became more complicated, the governor was unable to give as complete attention to these matters as the laws of the Indies prescribed. Although the governor had these financial powers, he could not decide cases appealed from the oficiales reales. These were regarded as contentious cases and as such were resolved by the audiencia. [381] In Mexico and Lima, wherein there were higher tribunals of accounts than in Manila (contaduría mayor), the audiencia did not have this jurisdiction.

From 1784 to 1787 the governor was temporarily deprived of the leadership in financial matters by virtue of the Ordinance of Intendants, but the oidores retained membership in the colonial board of audits, together with the intendant, who had taken the governor's former place as the responsible head of the colony's finances. In 1787 the governor was restored to his former position with respect to the exchequer, with the official title of superintendente subdelegado de real hacienda. It is sufficient to say that the governor's relation to this new department did not materially lessen the authority of the audiencia with regard to the finances of the colony.

Although the appointing power was claimed by many governors as their sole prerogative, the audiencia imposed a very decided check on their exercise of this authority. The governor had the right to make appointments in all departments of the government, except in certain so-called offices of royal designation, to which the governor made tentative appointments, subject to subsequent royal confirmation. [382] Although the law of February 8, 1610, exempted appointments made by the governor of the Philippines from the necessity of royal confirmation, [383] in practice these nominations were sent to the court for approval in the same manner as were those from Spain's other colonies.

The audiencia intervened in the matter of appointments in two ways. In case it succeeded to the government on the death of the governor the tribunal exercised all the prerogatives of appointment. [384] When the governor was present he was obliged to refer the names of all candidates to the acuerdo. [385] This was made necessary because the governor, being new to the Islands and unfamiliar with local conditions, was not so well fitted to pass upon the merits of candidates for office as were the oidores who had become permanently identified with the interests of the colony and whose opinion was of weight in these matters. Thus it came about that the audiencia exercised joint authority with the governor in making appointments. [386] The question of the relative authority of the audiencia and governor in making appointments was a source of conflict throughout the history of the Islands.

When the governor submitted the name of a candidate to the acuerdo it was the duty of the magistrates to furnish all the information possible regarding the character, fitness, and ability of the person under consideration for the position. If the audiencia and the governor should disagree and the latter still persisted in an appointment, it was the duty of the audiencia to submit, forwarding all evidence relative to the candidate to the Council of the Indies, the latter body ultimately taking such action as it deemed best. When the nominations of the governor reached the Council of the Indies for confirmation, that tribunal relied extensively upon information furnished by the audiencia concerning the candidates under consideration.

As already stated, the king retained the right to appoint certain so-called "officials of royal designation." These varied at different times, but, in general, included corregidores, alcaldes mayores, oficiales reales, oidores, regents, and, of course, viceroys, governors, and captains-general. [387] All these officials, except those last named, could be temporarily designated by the executive. Although the law placed corregidores, alcaldes mayores, and oficiales reales in this category, their designation by the court, like the confirmation of encomiendas, was usually nominal. Many of these offices were filled in Spain and Mexico, while some appointees were named from the Philippines, and probably in the majority of the latter cases the royal appointment merely amounted to a confirmation of a temporary appointment made by the governor. The post of governor of the Philippines was filled temporarily by the viceroy of New Spain until about 1720. In the same manner the governor of Ternate was named by the Philippine executive, with the advice and consent of the audiencia. These ad interim appointments were valid until the king made them regular by confirmation, or sent persons from Spain to hold them permanently.

When a vacancy occurred among the offices of royal designation, it was the governor's duty to forward a list of candidates, or nominees, and from this list the king, or the Council of the Indies in his name, made a permanent appointment. [388] In the meantime a temporary appointment was often made by the governor, in acuerdo with the audiencia, and the name of the appointee was placed first on the list remitted to the court. This procedure was followed in the appointment of encomenderos, corregidores, alcaldes mayores, and treasury officials. It was seldom done in the cases of oidores and fiscales, who, because of their special or professional character, were usually sent directly from Spain or from New Spain. Unless there were special reasons to the contrary, for instance, the filing of an adverse report by the audiencia, or a protest on the part of residents, the governor's temporary appointments were usually confirmed and made permanent. Temporary appointees with salaries exceeding 1000 pesos a year only received half-salary until their appointments were confirmed. [389] At least two years and frequently four transpired before the regular appointment arrived, and as the terms were from three to five years for the majority of these offices, the governor's candidate was usually the incumbent a considerable portion of the time, whether his nomination were confirmed or not. Neither relatives nor dependents of governors or oidores could be legally appointed to any office. [390] This mandate was often violated, as we shall see. It was the duty of the regent and the fiscal to certify to the court that appointees were not relatives of the governor or oidores. [391]

In an instruction directed exclusively to the Philippine audiencia, the king ordered the tribunal to see that offices were bestowed only upon persons "who by fitness or qualifications are best able to hold them." [392] It appears that this law, or another promulgated about the same time, gave to the fiscal and the oidores the right to pass on the qualifications of encomenderos, alcaldes mayores, corregidores, and other minor officials, on condition that preference should be given to conquerors, settlers, and their descendants. Governor Alonso Fajardo remonstrated that this new practice hampered the work of the governor, and created difficulties between him and the oidores. [393] A yet later law, dated October 1, 1624, gave the governor (and viceroy) the right to make temporary appointments of all judicial officials, without the interposition of the audiencia. [394] On February 22, 1680, the power of making permanent appointments of alcaldes mayores and corregidores was vested in the governor and the audiencia. [395] In view of this law, the Audiencia of Manila claimed and actually exercised authority in the appointment of provincial officials from that time onward.

Vacancies in the audiencia itself were filled temporarily by the governor. In case the audiencia were governing ad interim it could designate magistrates from the outside to try cases, but the power of the audiencia, as provided by these laws, was secondary to that of the governor if he were present. Under no circumstances were permanent appointments to the audiencia to be made by any authority other than the king and Council. In case there were a vacancy in the office of fiscal the junior oidor was authorized to fill the place. [396] Conversely, it also occurred that when an extra oidor was needed, the fiscal might be temporarily designated to fill the place. [397] It was also ordered that if the fiscal could not be spared from his office on account of his numerous and important duties, a lawyer might be named to act as fiscal ad interim. [398] In New Spain an alcalde del crimen took the place of the junior oidor when the latter occupied the fiscalía. There were no alcaldes del crimen in the Philippines, but the cédula of February 8, 1610, above cited, was always quoted as furnishing justification for the appointment of oidores ad interim by the governor. [399] In a subsequent chapter we shall refer to several occasions on which this was done; indeed, entire audiencias were re-constituted by certain governors.

The audiencia was required to see that the appointees designated by the governor duly complied with the requirements of residencia; likewise that they were properly installed in office, and that they did not serve in offices for which they had neither authority nor qualifications. [400] Notwithstanding the variety and the conflicting character of the laws bearing on matters of appointment, a careful consideration of law and practice leads to the conclusion that the governor, as chief executive, had the power of making appointments, but in the execution of this duty he was ordered to consult the audiencia, although, strictly speaking, he was not obliged to follow its advice. If there were good reasons for not appointing an official recommended by the governor, the oidores could send representations to the Council of the Indies, setting forth their objections, and the Council might confirm or nullify the appointment, as it chose. The audiencia could make appointments if it were in temporary charge of the government. The authority which the audiencia exercised in regard to appointments varied according to circumstances. If the governor were new at his post, weak or indulgent, the audiencia exercised more extensive authority than was conceded by the laws. If the governor were experienced, efficient, and a man of strong personality and dominating character, the tribunal exercised less power in regard to appointments, and, in fact, in all other matters pertaining to government.

Closely related to the appointing power was the duty which the governor had of submitting annually to the court a list of all the officials of the colony, with comments on the character of their services, and with recommendations for promotion or dismissal from office. [401] The oidores were included in these reports. [402] It was also the function of the governor to report on the administration of justice. [403] The governor was instructed to inform the court in case the oidores engaged in forbidden commercial ventures, either directly, through the agency of their wives, or through other intermediaries. [404] He was authorized, moreover, to investigate and report on the public and private conduct of the magistrates and of their wives as well [405] and to exert himself to see that their actions were at all times in consonance with the dignity of their rank and positions and of such a character as would reflect credit on the royal name and entitle them to the respect of the residents of the colony. The confidential reports of the governor to the king might include all of these matters, and many others too numerous to mention. On the other hand, the audiencia, as a body, was authorized to direct the attention of the Council to any irregularities of which the governor might be guilty, and thus a system of checks and balances was maintained. [406] However, the oidores were forbidden to make charges individually. This injunction was so frequently disregarded that it was practically a dead-letter.

Typical of the governor's authority over all the officials of the colony, and incidentally over the oidores, was his power to grant or withhold permission to marry within the colony. The earlier laws on this subject absolutely forbade viceroys, presidents, oidores, alcaldes, or their children to marry within their districts. [407] Deprivation of office and forfeiture of salary were the penalties for infraction of these regulations. These laws were followed by others which required the president (viceroy or governor) to report immediately to the Council the case of any magistrate guilty of violating the law forbidding the marriage of officials. [408] It was not until 1754 that a law was promulgated providing for special marriage dispensations to be granted by the Council of the Indies upon the recommendation of the president of the audiencia. [409] In 1789 the president was authorized to concede permission to accountants and treasury officials, but not to oidores. [410] The prohibition was applied to magistrates until 1843, and the only condition under which they were permitted to marry within the colony was by virtue of the express permission of the supreme tribunal in Spain. In 1848, the president of the audiencia was authorized to grant marriage licenses to magistrates on condition that the contracting parties were "of equal quality, customs, and of corresponding circumstances," permission having first been obtained from Spain, [411] the president alone passing upon the requisite qualifications.

The chief reason for the restrictions and prohibitions placed on the marriage of magistrates seems to have been the conviction that officers of justice would compromise themselves by marriage, acquiring vast numbers of relatives and dependents, thereby making it impossible to render impartial decisions or administer justice as evenly and dispassionately as they would were they not so familiarly known in their districts. It was also necessary to prevent officials from lowering their dignity by union with natives and half-castes. The marriage of officials with natives of the Philippines was not regarded with favor at any time by the Spanish government.

It seems that the above prohibition did not apply with the same force to fiscales as to magistrates. This is illustrated by a case which arose in 1804 when Fiscal Miguel Díaz de Rivera was deprived of his office by royal decree for having married without the permission of the Council of the Indies. [412] The fiscal had married the daughter of the corregidor of Pangasinán, who was a colonel in the Spanish army. The mother of the girl was a Eurasian from Madras, and had been a subject of Great Britain. Under the date of May 27, 1805, Díaz sent a petition to the king, bearing the endorsement of Governor Aguilar, demanding his restoration to office. Among the reasons cited for the proposed reinstatement of the fiscal, it was said that Díaz, being a prosecutor and not a magistrate, was not subject to the same regulations and conditions as the oidores, whose judicial duties rendered impossible their marriage within the Islands. Aguilar stated that the purpose of the law had been to debar ministers from making such marriage connections as would diminish the respect which the community should have for them as oidores of a royal audiencia, thus undermining their standing as magistrates. In this instance there could have been no case of degradation because of the high standing of the mother and father. Moreover, a fiscal could not be regarded as a magistrate, and the same laws did not apply to both classes of officials. As an outcome of these representations Díaz was restored to office by the royal decree of October 13, 1806. [413]

A duty similar to that just noted, inasmuch as it was indicative of the authority of the governor over the oidores, was his power to examine and try criminal charges against the magistrates. A law which was in force from 1550 to 1620 ordered that the president should be assisted in the trial of criminal charges against oidores by alcaldes ordinarios. On September 5, 1620, this law was modified by the enactment of another, which ordered that in cases involving imprisonment, heavy fines, removal from office, or the death penalty, the governor should make the investigation and refer the autos to the Council of the Indies for final judgment.

This law still left the trial of oidores for misdemeanors in the governor's jurisdiction, but in cases of sedition or notorious offenses which required immediate action in order to furnish a public example for its effect on the natives, the president was required to confer with the audiencia, and to act in accordance with its judgment. By this law the president was forbidden to make more than temporary suspensions of oidores from their offices. In no case could they be permanent unless first approved by the Council of the Indies. [414] Notwithstanding this law, it may be noted that certain governors went so far on some occasions as to remove, imprison, and exile magistrates and to appoint a new audiencia. [415] The judicial power of the governor over such cases was further altered by the Royal Instruction of Regents of June 26, 1776, by which he was forbidden to impose any penalty on the oidores without the concurrence of the acuerdo and the regent. [416] The president and the acuerdo could rebuke and discipline oidores, privately, when their conduct demanded it. Even on such an occasion as this the magistrate was to be given full opportunity to defend himself. If a private investigation of the conduct of an oidor were necessary, the inquiry could be still conducted by the senior magistrate. [417] Oidores, on the other hand, had no jurisdiction over the trial of charges against the president, unless it were in his residencia. In this event the investigation might be conducted by a magistrate designated by the governor or by the Council of the Indies. [418]

Aside from his executive and military duties, the governor was president of the royal audiencia. This arrangement had the advantage of giving him an opportunity to know and appreciate the legal needs of the colony. It brought him in constant contact with judicial minds, and his position in this regard was no doubt calculated to keep him in the straight and narrow path of the law. Nevertheless, the governor, who was usually a soldier, but seldom a lawyer, did not participate as a magistrate in the trial of cases, and his activities in the tribunal were directive, rather than judicial. His opinions in all legal and administrative matters were prepared by his asesor. [419]

As president of the audiencia the governor exercised two important powers. One authorized him to divide the audiencia into salas and to designate oidores to try cases within the tribunal, to inspect the provinces, to take residencias, or to attend to semi-administrative matters, such as have been noted in the preceding chapter. [420] The other was the power to decide whether a contention was of judicial, governmental, military, or ecclesiastical character, and to assign it to the proper department or tribunal. [421] This power was significant because it made the governor the supreme arbiter between all conflicting authorities in the colony. Frequently he decided disputes between the audiencia and the ecclesiastical courts, between the audiencia and the consulado, or between the oidores and the oficiales reales in matters relative to the jurisdiction of these tribunals over questions at issue.

While the magistrates were allowed to proceed practically without interference in affairs of justice, the governor was instructed to keep himself informed concerning the judicial work of the audiencia. [422] While forbidden to alter the judgments of the tribunal or to tamper with its sentences, [423] he could excuse or remit fines with the consent of the oidores. The governor could commute sentences in criminal cases. The final pardoning power rested with the king and it was exercised upon the recommendation of the governor or the prelates [424] and the Council of the Indies. There were exceptional occasions, however, on which the governor assumed the responsibility of pardoning criminals.

After the creation of the office of regent in the audiencias of the colonies, in 1776, the governor's position as president of the audiencia became purely nominal, the regent actually officiating as chief justice, though the president was still legally required to affix his signature to all judicial decisions of the tribunal. The frequent and extended absences of the governor from the capital and the multiplicity of his administrative duties prevented him from attending to these matters with requisite promptness, and injustice consequently resulted from the requirement. Many complaints were made from 1776 onward against this condition of affairs, with the result that a modification in the existing law was made on October 24, 1803, making valid the signature of the regent to all decisions of the audiencia, when the governor was absent from the colony on expeditions of conquest or tours of inspection. [425] At all other times the governor, as president, affixed his signature to all legal acts and autos, although he did not participate in their decisions. The law remained thus until 1861, when the governorship was separated from the presidency, the acuerdo was abolished, and the regent was made president of the audiencia with authority to sign all judicial decisions. [426]

We have already noted that the governor exercised special judicial powers, independent of the audiencia. Among these the military jurisdiction stands pre-eminent, and it will be discussed separately in the following chapter. The governor was also empowered to try Indians in first instance, with appeal to the audiencia. [427] The actual trial of these cases, however, was delegated to the alcaldes mayores and corregidores with appeal to the audiencia. It was impossible for the governor, occupied as he was with the multitudinous affairs of his office, to concern himself personally with the thousands of petty cases among the Indians, or between Indians and Spaniards. He had jurisdiction over suits involving the condemnation of property through which public roads were to pass. [428] The special jurisdiction of the governor, assisted by the audiencia, over cases affecting the royal ecclesiastical patronage will be discussed later.

The laws of the Indies would seem to indicate that both the governor and the audiencia exercised independently the power to exile undesirable residents from the colony. It was stipulated that if sentence of exile were passed by the governor and the offenders were sent to Spain, the necessary papers, issued by the governor, should accompany them. [429] If the decree of banishment were imposed by the audiencia in its judicial capacity, the governor was forbidden to commute the sentence or otherwise interfere in the matter. [430] The audiencia frequently sentenced criminals or other undesirables to spend terms of varying lengths in the provinces or in the Marianas. This, as we have seen, was commonly one of the trials connected with the residencia. We have a noteworthy illustration of the action of the audiencia in acuerdo with the governor in the banishment of Archbishop Felipe Pardo, who was exiled by the acuerdo of the audiencia and Governor Juan de Vargas Hurtado, in 1684. Vargas was succeeded the same year by Governor Curuzaelegui, who recalled the prelate from exile and forced the audiencia to endorse the act of recall.

Closely related to the governor's jurisdiction over banishment was his jurisdiction over cases of persons entering the Islands or departing from them without royal permission. [431] He exercised final jurisdiction here over civil and ecclesiastical authorities, encomenderos, and private persons. The law forbade any person to enter or leave the Islands without the royal permission, and the governor was charged with the execution of this law. Encomenderos were not to leave the Islands on pain of confiscation of their encomiendas. [432] While the laws of May 25, 1596, and of June 4, 1620, gave authority to the governor over the religious, relative to their entrance into the Islands and departure therefrom, [433] the cédula of July 12, 1640, authorized the audiencia to enforce the law on this subject; especially was the tribunal to see that no ecclesiastics departed for Japan and China without the proper authority. [434] Although there can be no doubt of the finality of the governor's jurisdiction in this matter, yet the audiencia exercised an advisory power, and an authority to check irregularities, particularly with a view to seeing that the governor did his duty and fulfilled his obligations in the matter. Numerous instances exist to show that whenever this subject was treated in a royal order or decree, copies of the law were sent to the audiencia for its information. On other occasions when there was reason to believe that there had been irregularities in the procedure of a governor, the audiencia complained to the Council of the Indies. This was done for example in 1779 when Governor Sarrio conceded permission for several priests to go to Mexico. This action the audiencia claimed to be irregular, since the Council of the Indies had not been notified or consulted. The king, on March 6, 1781, approved the action of the governor on the basis of the laws above referred to. [435]

Besides his judicial authority the governor shared legislative functions with the audiencia. We have noted in an earlier chapter that the acuerdo passed ordinances for the domestic welfare and local government of the colony. It prescribed rules and issued regulations for merchants, encomenderos, and religious, in accordance with the rulings for royal ecclesiastical patronage. The acuerdo developed from the advisory power of the audiencia. The king in his first decrees ordered the viceroys and presidents to consult with the oidores whenever the interests of the government demanded it, [436] and if necessary the opinions of the magistrates could be required in writing. When an agreement was reached upon a given subject, they voted in acuerdo and gradually that acuerdo came to have the force of law. On many occasions the acuerdo prevailed over the governor's will. There was no constitutional basis for this, and the acuerdo, when it became a legislative function in passing ordinances and overruling the governor himself, assumed prerogatives which were never exercised by the audiencias of Spain. [437]

The laws of the Indies established the governor as the sole executive, and forbade the audiencia to interfere with the government. [438] The governor, occupied by his extensive administrative and military duties, came to devote less attention to the judicial side of his office, which was left almost entirely to the audiencia. So it developed that the acuerdos in reference to judicial matters--the establishment of tariffs and rules for their observance and the dispatch of pesquisidores and visitors to the provinces, came in the latter eighteenth and early nineteenth centuries to be increasingly the concern of the audiencia. The authority of the tribunal in these matters was recognized by the Constitution of 1812 and the reforms made in pursuance thereof. [439]

In the same manner the acuerdo came to be recognized in governmental and administrative matters. The enactments of these legislative sessions of the audiencia were known as autos acordados. They ultimately came to embrace a wide field. The audiencia passed laws for the regulation of the provinces; it made rulings which the alcaldes mayores and corregidores were to follow in the collection of tribute; it prescribed their relations with the parish priests; it issued regulations for the conduct of the friars and the ordinary clergy relative to the royal patronage. Laws were passed for the encouragement of agriculture and industry and the regulation of commerce. Rice, tobacco and silk culture, the production of cinnamon and cocoanuts, the breeding of fowls, the regulation of cock-fighting, cloth-making and ship-building all came in for their share of attention in the acuerdo. [440]

The audiencia, in the exercise of the acuerdo power, passed ordinances for the enforcement of the laws forbidding the unauthorized departure of persons from the Islands; it helped to fix the rate of passage on the galleons and on the coast-wise ships. It made regulations for the Chinese in the Parián, it prescribed the conditions under which licenses might be issued to Chinese merchants and it passed ordinances for the better enforcement of the laws prohibiting the immigration of the Chinese. The acuerdo concerned itself with the maintenance of prisons and the care of prisoners, the residencias of provincial officials, the auditing of accounts, the collection of the revenue, and the supervision of the officials of the treasury. Ordinances were passed enforcing the general law which ordered that the natives should not live together in Christian communities without marriage, that they should attend religious ceremonies, that they should be instructed in religion, and that they should not be exploited, either by the civil or ecclesiastical authorities. It is, of course, understood that the audiencia in no way trespassed the authority of the church in issuing these regulations; indeed it was quite the contrary; these ordinances were passed on the basis of the authority of the royal patronage, with the design of assisting the vice-patron (the governor) in the execution of his duties, and the church was aided rather than impeded thereby. It must be remembered, of course, that the governor, as president of the audiencia, presided in these acuerdos, and that in most cases, actually, as well as in theory, these autos acordados were his will.

There were many occasions in the history of the Islands when the acuerdo was influential in the formulation of far-reaching reforms. The well-known "Ordinances of Good Government," issued by Governor Corcuera in 1642 for the observance of the provincial officials, and repromulgated with modifications by Cruzat y Góngora in 1696 and by Raón in 1768 were formulated by the acuerdo. [441] Similarly were those formulated that were proposed by Marquina in 1790. The local regulations for the consulado, established in 1769, were formulated by the audiencia largely on the recommendations of the able fiscal, Francisco Leandro de Viana. In the same manner the new plan of constitutional government given to the Philippines in 1812 was drafted by the audiencia at the request of the Council of the Indies. [442] Likewise the plans for the government of the intendancy were submitted to the acuerdo by Governor Basco y Vargas in 1785. Indeed, these, as well as the scheme of 1787-8, were actually written by two magistrates of the audiencia, the former plan by Oidor Ciriaco Gonzales Carvajal, subsequently intendant, and the latter by Oidor Castillo y Negrete. [443]

There were occasions when the audiencia enacted administrative measures in which the governor failed to participate. These were especially noticeable during the administrations of Acuña, Fajardo, and Corcuera--governors who spent much of their time away from Manila. A more recent instance of this occurred in 1790 when the natives of the province of Ilocos revolted against a tyrannical and dissolute alcalde mayor. The acuerdo, notwithstanding the objection of Governor Marquina, removed the offending official and appointed another, and this action was subsequently approved by the king. [444] According to the laws of the Indies the authority of removal and appointment of such officials rested with the governor. [445] The tendency of the acuerdo to act in civil affairs without the advice or presence of the governor was checked by the royal order of November 12, 1840, wherein the audiencia was ordered not to attempt to carry its acuerdos into execution without the authority of the superior government. [446] The evil effects of the audiencia's intervention in provincial government were pointed out in 1842 by Sinibaldo de Mas, when he wrote: "the government of the provinces is in charge of an alcalde-mayor, who is at once judge of first instance, chief of political matters, subdelegate of the treasury, and war-captain or military commandant, for whose different attributes he is subject to authorities distinct from one another." [447]

The audiencia was deprived of its acuerdo power in governmental matters by the Constitution of 1812, but it was still retained in judicial affairs. In 1815 and again in 1823 on the restoration of the monarchy, the full acuerdo power as practiced before 1812 was resumed by the audiencia. Official recognition of the acuerdo was made publicly by Governor Torres, who succeeded Enrile on March 18, 1834. In his inaugural address this governor avowed his purpose to be the extension and improvement of commerce, the army and agriculture, "but, in order to develop these to their highest extent, and to realize the utmost success in my administration," he said, "I count on the co-operation of all the authorities, and particularly of the real acuerdo, of which I have the honor to be president." [448] The audiencia was finally excluded from the acuerdo in administrative matters by the reform of July 4, 1861; since then the tribunal has been purely judicial, the legislative functions of government having been assumed by the Administrative Council (Consejo de Administración) of which the president and fiscal, and usually two oidores at least were members. Thus, even after the reform of 1861, the oidores continued to participate in legislative functions, though the audiencia as a body did not. [449]

Typical of the multitudinous duties of the governor, and illustrative at the same time of his relations with the audiencia, were the various subjects treated in the Instruction of the king to Governor Pedro de Acuña, dated February 16, 1602, [450] which is chosen for citation here because of its comprehensive character, and also because of its availability. Beginning with the reminder that the governor should confer with the Viceroy of New Spain whenever necessary, this comprehensive paper treated first of the defense of the Islands against the Japanese, and of the maintenance of a garrison in Mindanao. The matter of tribute was taken up, and the desirability was shown of having the natives pay tribute in kind rather than in money. It was said that the latter method encouraged the natives to indolence, for as soon as they had earned enough money to pay their tribute they ceased work altogether. The governor was advised to consult with the audiencia in regard to this matter. The king ordered the governor to cut down expenses and to economize by the elimination of as many offices as possible. He recommended, in particular, the abolition of the offices of corregidor and alcalde mayor.

The king warned Acuña against a continuation of the dishonesty of past governors in the lading of ships for New Spain. He declared that thereafter the allotment of freight should not be left to the friends of the governor, but the matter should be personally supervised by the governor and an oidor. The frauds which had been common also in the assignment of encomiendas in the colony must cease; to effect this the governor was temporarily deprived of jurisdiction over this matter. Who was to assign the encomiendas in the future was not divulged. [451]

The governor was instructed to see that the salable offices were not conferred on the relatives of the oidores, nor given to his own relatives, but that they should be disposed of to persons offering the most money for them. It had been charged that governors and audiencias had connived together in the past to deprive persons of offices to which they were legitimately entitled. This had been done by allowing favorites to hold more than one office, and by favoritism in the sale of these positions. These abuses must be stopped, the king said; it was ordered that in the future no person should be allowed to hold more than one office, that as many of these as possible should be sold, with unrestricted competitive bidding.

The governor and the fiscal were ordered to exercise care and diligence in the inspection of the returning galleon, to see especially that it brought no unregistered money from persons in Mexico. Acuña's predecessor, Tello, had recommended that west-bound galleons should stop at the Ladrones to leave priests and soldiers, and to minister to the needs of Spaniards already there. This was authorized and the governor was instructed to see that it was done. The governor was also ordered on this occasion to make an investigation of the audiencia. Complaints had been coming to the court for a long time against the laxity of the tribunal in the administration of justice, and of the commercial activities of the oidores. The governor was to aid the fiscal in the prosecution of any oidores who were remiss, to the extent of sending them under arrest to New Spain if the charges against them justified such action.

This Instruction, it will be noted, required the governor to intervene actively in practically all the governmental affairs that came up in the colony. He was to exercise authority with regard to defense, finance, and revenue. He was to exercise supervision over provincial affairs so as to insure the good treatment of the natives and the beneficent administration of the encomiendas. He was to give his attention to the galleon trade and to the disposal of offices within the colony. If doubt or difficulty arose in any of these matters of administration, he was to demand from the audiencia, its assistance, counsel, and support. The governor was also authorized to see that justice was administered effectively, though he was not to intervene directly in that matter, except to see that abuses were eradicated. This Instruction shows that the governor was regarded as the chief executive of the government. He was the responsible head in the judicial, administrative, and military spheres. The audiencia, on the other hand, had consultative functions, aimed to assist the governor when he required it, but to restrict him when he sought to exceed his powers. Instructions similar to this were given to many succeeding governors. A citation of these would prove nothing new, however.

In the same manner that the Instruction to Acuña gives us an idea of the relative functions of the audiencia and the governorship in 1602, so the criticisms of the able Spanish diplomat, Sinibaldo de Mas, written in 1842, aid us in estimating their respective spheres in the nineteenth century. This opinion is valuable because it summarizes the result of two hundred and fifty years of the interaction of these political institutions in the Islands. Mas showed the reason for the establishment of the intendancy, and the conferring of added powers upon the audiencia and criticized the relations existing between the governor and these institutions in the following terms:

To set some balance to his power (that of the governor), because of the distance from the throne, certain privileges and preëminences have been granted to other persons, especially to the Audiencia, even to the point of making of the latter a court of appeal against the measures of the chief of the islands. Besides, the revenues have been removed from his jurisdiction, and the office of the intendant has been constituted, who obeys no others than the orders communicated to him by the ministry of the treasury from Madrid. It is very obvious that this single point is quite sufficient to paralyze completely the action of the governor-general. Besides, since there are many matters which require to be passed on by distinct ministries, it happens that two contrary orders touch the same matter, or that one order is lacking, which is enough to render its execution impossible ... a chief may detain a communication, even after he has received it, if it does not suit him. This system of setting obstacles in the way of the governor of a distant colony is wise and absolutely necessary, ... there results rather than a balance among the various departments of authority a confusion of jurisdictions, the fatal fount of eternal discord. [452]

Mas made extensive quotations which were calculated to show "the great confusion and contrariety of the orders to governor and audiencia." This characteristic of the laws of the Indies has repeatedly been referred to in this treatise, and we shall note its results in a subsequent chapter dealing with the conflicts of jurisdiction between the audiencia and the governor.

It is clear, therefore, that the decision of the governor was not final in administrative affairs. Persons dissatisfied with his executive

## actions or decisions in such matters were privileged to appeal to the

audiencia. If the findings of the tribunal differed from those of the governor, and if the governor were still unyielding, his will was to be obeyed but the case was thereupon appealed to the Council of the Indies. [453] If the case were one of law and justice the governor, on the other hand, was instructed to abide by the decision of the audiencia, but he was privileged to carry the case to the Council of the Indies. Thus it was that each of these authorities had a sphere wherein its word was law, and its decisions final in the colony.

It was prescribed, however, that when there were differences of opinion between the governor and the audiencia an effort should be made both by the governor and the audiencia to avoid notorious disagreements which would furnish a bad example to the natives, or otherwise degrade the dignity of the royal tribunal or governor. Viceroys, presidents, and audiencias were forbidden to take action in cases wherein there was doubt as to their jurisdiction, or wherein there was a question as to the advisability of taking final action. [454]

It would appear, therefore, from this survey of the laws, that the audiencia was provided with ample means for restraining the action of the governor. This it could do either by admonition, by appealing from his decisions in administrative matters, or by blocking him in the acuerdo. It was evidently the design of those who planned the legislation of the Indies to guard at all times against the excesses of an all-powerful executive. Such was certainly the purpose of the establishment of the audiencia, both in the Americas and in the Philippines. Taking into consideration the three hundred years of Philippine history, however, it cannot be said that in the actual operation of the government these precautions were entirely effective.

According to the laws of the Indies the governor, as executive, had his own sphere in which the oidores were forbidden to interfere. [455] In the light of our investigation, however, it would appear that this exclusive field was exceedingly limited, and that even it was continually subject to the encroachments of the audiencia. In the exercise of his military authority the governor was independent of the tribunal, although we shall see that on some occasions the audiencia exercised military jurisdiction in an executive capacity, and that there were times when the governor was glad to call upon the audiencia for assistance in this matter. As president of the audiencia the governor exercised considerable authority during the first half of the history of the colony, but from 1776 to 1861 his position as president was merely nominal, and at the latter date it was abolished. He was the chief administrative official of the colony, and his authority in this particular was more far-reaching than in any other. In this, however, he was limited by the acuerdo of the audiencia, which developed, as we have seen, from an advisory to a legislative function, and ultimately had the effect of limiting the governor in his hitherto exclusive field.

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