CHAPTER VII

THE AUDIENCIA AND THE GOVERNOR: THE MILITARY JURISDICTION

The isolation of the Philippines, their distance from the home country and New Spain, and their proximity to the colonies and trade routes of rival nations, made the problem of defense the foremost consideration. This was almost equally true of New Spain, Perú, and the West Indian colonies, all of which were exposed to the attack of outside enemies, though, of course, they were neither as isolated nor as far away as the Philippines.

The necessity of being ever on the alert, constantly prepared to resist invasion and to put down insurrection, gave a military character to the governments of these colonies. The viceroys and governors were in most cases trained soldiers. In addition to their other prerogatives, they exercised the office and title of captain-general and as such they commanded the military and naval forces of their colonies, inadequate as these forces sometimes were. During the first two hundred years governors and viceroys were largely selected on the basis of their past military exploits on the continent or in America. The administrations of the different Philippine governors of the sixteenth and seventeenth centuries were characterized rather by their devotion to military affairs than by economic improvements or administrative efficiency. The supervision of judicial and governmental affairs was thus left for long periods in the hands of other officials and authorities, to be reclaimed or fought over by the governors when their time was not taken up by military conquests.

It is practically agreed among all authorities who have written on the Philippines that the leading consideration and necessity of the government during two hundred years was military defense. These writers comprise officials who saw service there and commentators who visited the Islands and studied the government. In their recommendations and comments they unite in urging that the defense of the Islands should not be neglected; that the governor should be given adequate forces with sufficient jurisdiction over them and over the other elements of the colony to defend it successfully from invasion or insurrection.

It was the policy of the government throughout the history of the Islands to conserve and keep intact the governor's military jurisdiction. We have noted in an earlier chapter that one of the main reasons for the suppression of the audiencia in 1589 was that it interfered too extensively with the military jurisdiction of the governor. During the decade following the extinction of the tribunal, the military governors were given almost unlimited powers, until their abuses led to the re-establishment of the tribunal to guard against these excesses. We shall see in the following chapter that the limitations placed upon them by the audiencia were always a source of complaint by the various governors. Governor Acuña went so far as to recommend the suppression of the tribunal because the needs of the colony were military and had to be met by the firm action of a soldier, without the interference of a body of magistrates. [456] Similar recommendations were made by a majority of the succeeding governors, but more especially by Fajardo, Corcuera, Vargas, Arandía, and even by Anda who had risen from the post of oidor to that of governor and military commander. [457]

The conviction that the government should be pre-eminently military was not held by governors alone. Fernando de los Ríos Coronel, procurator of the Philippines at the Court of Madrid in 1597, urged that the government should be of a military character and that the practice of sending soldiers to govern the Islands should be continued. [458] This opinion was also advanced by Fray Alonso Sánchez, procurator of the Islands at Madrid in 1589, and the emissary whose arguments were chiefly instrumental in bringing about the suppression of the audiencia. [459] Francisco Leandro de Viana, the most efficient fiscal that the Islands ever had, and afterwards councillor of the Indies, recognized the military attributes of the governor's position. He urged a separation of the spheres of the governor and the audiencia, recommending that the former should attend solely to war and government, while the latter should confine itself to matters of justice. [460]

This opinion was shared by Juan José Delgado, the able Jesuit historian, who expressed the conviction that the "islands need disinterested military governors, not merchants; and men of resolution and character, not students, who are more fit to govern monasteries than communities of heroes." [461] Delgado recommended that governors of the Philippines should be picked men, selected for their military qualities. The distance and isolation of the colony and its proximity to the great empires of China and Japan made defense the first requisite. Delgado believed that a soldier would be less amenable to bribes and that commercial ventures would be less attractive to him. [462] He recommended that governors should be absolute in affairs of government and war and that all departments and officials of the government should be subject to him.

While most of the independent commentators writing on the subject seem to have conceived of the duties of the governor as savoring more of war than of peace, we may note that Manuel Bernáldez Pizarro, for many years a resident and official in the Philippines, writing in 1827, urged that the governors there should be efficient administrators rather than soldiers. It must be remembered, however, that the political conditions in the Philippines during his period were widely different from those of the seventeenth and eighteenth centuries when the Islands were constantly exposed to the attack of outside enemies and liable to insurrections within. The chief problems of the nineteenth century were administrative, rather than military. He pointed out that governors had already exhibited too much of the militant spirit in dealing with the problems of government, "not heeding the opinions and customs of the country, but depending on the force of arms," or their asesores. [463] This had the effect of causing dissensions between the governor and audiencia, and the resultant discord had furnished a very bad example for the natives and residents of the colony.

The characteristic tendency throughout the history, of the Islands to lay stress on the military side of the governor's position was commented on by Montero y Vidal, the modern historian of the Philippines, in the following terms:

The authority of the governor-general is complete, and so great a number of attributes conferred on one functionary, incompetent, as a general rule, for everything outside of military affairs, is certainly prejudicial to the right exercise of his duty; ... since 1822 the government has always devolved upon an official; a general, and in the case of his death, a segundo cabo, and, in case of the death of the latter, a commandant of the naval station. [464]

The preservation of the peace and the maintenance of the defense of the Islands was the chief responsibility and the most important duty of the governor and captain-general. Although the audiencia was ordered to do all that it could to assist, nevertheless the tribunal was strictly forbidden to restrict or hinder the governor in the execution of his military duties. [465] The governor's position as commander-in-chief of the king's forces, and his pre-eminence in military affairs, were generally recognized.

Notwithstanding the fact that the early laws conferred exclusive military powers on the governor, a glance at three hundred years of Spanish colonial history will show that the audiencias participated in these matters in two different ways. In fact, an analysis of the military jurisdiction shows the presence and the exercise, in general, of two kinds of activity. These consisted, first, of a special judicial system for the trial of persons under military law and distinct from the civil jurisdiction, and second, of the control and disposition of the military forces of the Islands, and their utilization for defense. One, therefore, was judicial, the other was administrative, but both of these forces of activity were within the military sphere. The problem of this chapter, therefore, consists in determining the conditions, circumstances, and extent of the audiencia's participation in military affairs, and of its relation to the authority and jurisdiction of the governor and captain-general.

As commander-in-chief, the governor was at the head of a special judicial system for the trial of soldiers under the military law. This judicial system was independent of the audiencia, and the latter body, during the greater part of the history of the Islands, was denied jurisdiction in these cases, even on appeal. [466] We have already noted, however, the tendency of the law to excuse these busy executives from direct participation in ordinary judicial activities. Notwithstanding the governor's status in the above-mentioned particular, he seldom intervened personally in the trial of such cases. His position with regard to the military jurisdiction was similar to his relation with the audiencia, of which he was president, but over which he seldom presided.

The actual trial of the criminal cases of soldiers was conducted in first instance by military tribunals and magistrates. Most prominent among the latter were the castellán and the maestre de campo. The captains, themselves, had certain judicial authority within their companies. [467] Appeals were made from these military judges of first instance to the captain-general. If there had been notorious injustice or a grave infraction of the law in the trial of a case of first instance, it was the governor's duty either to refer the case to some other magistrate than to the one who originally tried it, or to a special judicial tribunal. An oidor might be designated to serve in this tribunal. When the magistrates served in this capacity they were responsible entirely to the governor and were not identified with the audiencia. Oidores frequently objected to this service, but the governor was usually able to enforce these demands, which were in accordance with the laws and approved by the home government.

The captain-general exercised the pardoning power. Under some circumstances cases might be appealed to Spain, but in these suits, most of which involved personal crimes and misdemeanors, the decision of the captain-general or the local military tribunal was usually final, if for no other reason than the fact that the soldiers in Manila lacked the means to carry their cases further. Those cases which were appealed usually involved principles of law desirable to be tested by reference to a higher tribunal. The junta de guerra de Indias received all appeals from the military officials of the colonies and solved all questions of a judicial or administrative character that were carried to it.

The junta de guerra consisted of four ministers of the Supreme Council of War who were designated to sit with an equal number of ministers of the Council of the Indies. [468] It was, in fact, the executive committee and at the same time the special tribunal of military affairs for the Council of the Indies. It passed upon such military questions as were nominally referred to it by the president of the Council of the Indies, although these cases automatically came to this junta without the intervention of the president of the Council. It had jurisdiction over appeals in cases affecting soldiers tried in first or second instance in the colonies, over the administrative matters of armament and defense: the equipment of fleets and military operations, garrisons, military supplies, and munitions. It also tried appeals from the tribunal of the Casa de Contratación, and, in fact, it exercised general supervision over that institution in its various activities.

This was the machinery which existed for the adjudication of military cases during the greater part of the history of the Islands, the magistrates of the audiencia officiating as auditores de guerra when designated by the governor. [469] The royal decree of January 30, 1855, made a radical reform in this particular, adding two new magistrates, an auditor de guerra and an auditor de marina and to some extent relieving the ministers of the audiencia. These magistrates were appointed by the Minister of War and had original and secondary jurisdiction over cases involving soldiers and sailors of the fleet. These new magistrates served as ministers of the audiencia when their special duties permitted, and they were ordered to consult with the governor from time to time in regard to matters pertaining to their respective fields. Though the audiencia was forbidden to concern itself with cases which belonged to the military jurisdiction, the regent and two magistrates of the tribunal, acting with the auditor de guerra or the auditor de marina, could resolve themselves into a special court for the trial in second instance of cases pertaining to the respective fields of the last two officials. [470]

Two or three cases may be described here which illustrate the method of procedure in the trial of military cases by the tribunals. On January 22, 1787, a royal order was issued on the recommendation of the junta de guerra de Indias, approving of a sentence of death pronounced upon a soldier in the Philippines four years before. This soldier had been sentenced in first instance by the castellán. The captain-general, on appeal, affirmed the sentence, and the junta de guerra approved the proceedings when the case was appealed a second time. [471] Another case, and one which illustrates the slowness of the proceedings of this junta, as well as the nature of its jurisdiction, was that of a soldier who had set fire to a powder magazine, causing it to explode, thereby killing several persons. The culprit was sentenced by the consejo ordinario de guerra, a sort of local military and strategic committee, composed of local military officers (in this case a kind of court-martial), [472] but Governor Basco y Vargas, upon the advice of his asesor, suspended sentence, directing the case to the junta de guerra. Nothing was done, however, and on December 10, 1788, Governor Marquina, successor to Basco y Vargas, wrote to the president of the Council of the Indies, calling attention to the fact that this soldier had been in prison for six years awaiting the action of the Council of the Indies. [473] The matter was then referred to the junta and the sentence was approved by that tribunal.

As in all other departments and activities of government, so in this, there were many opportunities for conflict between the audiencia and the governor as to authority over cases which by their nature bordered on the sphere of both the civil and military jurisdictions. The governor who had the power to assign cases to whatever tribunal he chose, often took advantage of his position to bring the trial of civil cases within his own military sphere. Among these were suits involving the militiamen. These were subject to the military jurisdiction when they were under arms, and at other times, being civilians, they were subject to the civil authorities. [474] An instance of a case of this kind occurred in 1800. A militiaman, Josef Ruy, had killed an Indian, and the audiencia, on the basis of its authority over Indians, had sentenced the culprit to death. The governor, after sentence was passed, reopened the case on the ground that as a member of the militia, Ruy was subject to the military and not to the civil jurisdiction, although the militia was not at that time in active service. The judgment of the audiencia was therefore suspended. The case, meanwhile, had been appealed to the Council of the Indies, and that tribunal had approved the sentence of the audiencia, apparently without taking note of the fact that the case involved the military jurisdiction. A short time afterward the Council received a second report from the audiencia, stating that jurisdiction over the case had been surrendered to the governor on account of its military character. This procedure was accordingly approved by the Council. Soon after, report came of the receipt by the audiencia of the former judgment of the Council, relative to the

## action first taken by the audiencia, with the information that since

the will of the Council was known, the governor had surrendered the prisoner again to the jurisdiction of the audiencia. Disgusted at the contradiction and cross-purposes at which the authorities in the Islands were working, the king decreed on March 27, 1802, that cases involving Indians should be tried in the audiencia, but that this poor wretch had been tried and retried, condemned and condemned over again so often that he had already expatiated his crime. He was accordingly authorized to go free. [475]

The king administered a severe reprimand to the governor and oidores on this occasion for their insistence on these small points of personal dignity in which the real purpose of the law was entirely overlooked in the pompous insistence of these officials on what they imagined to be their own particular rights. The case just alluded to began in 1792, and was carried through ten years of petty strife. The blame for this cannot be ascribed entirely to the magistrates of the audiencia, or to the governor, who had to act in accordance with the law as he interpreted it. The real fault lay in the failure of the Spanish governmental system to place implicit confidence in the judgment and ability of its servants. Considering the final ends of justice, it made little difference whether sentence was pronounced upon this individual by the governor as military commander, or as president of the audiencia. It is true that the authorities might have compromised on many occasions; indeed, from the viewpoint of history it may be said that they should have done so, instead of so often wasting their energies on these petty battles. These incessant disputes were encouraged and facilitated by the ease with which appeals could be made to Spain, thus hindering the immediate execution of decisions. The Council of the Indies interfered in details which should have been left entirely to the colonial authorities. This interference encouraged appeal, and matters of no relative importance to Spain's colonial empire frequently occupied a large share of the attention of the sovereign tribunal. Colonial officials were not entrusted with the authority and responsibility which they should have had, and the central government wasted its time attending to small affairs which should have been concluded by subordinates in the colonies.

The governor frequently claimed jurisdiction over cases involving retired soldiers on the grounds that they had once been under the fuero militar. He also claimed jurisdiction in suits affecting widows of soldiers, all of which, in accordance with the law of December 11, 1788, should have been tried by the audiencia. [476] Another abuse frequently perpetrated by the governor was the assumption of jurisdiction over suits for the payment by military officials of bonds which they had assumed for defaulted civil officials. [477] In doing this he was encroaching on the rights of the oficiales reales, and these were always supported by the audiencia in the contentions which arose over this question. Cases involving conflicts of jurisdiction between the civil and military authorities were appealed to the Council of the Indies, and there, after considerable delay, the proper sphere of authority was always determined.

While the audiencia as a tribunal was forbidden jurisdiction in the trial of cases involving war, we have already shown that the governor exercised the right of designating oidores to try cases of this nature on second appeal. The power of enforcing this right depended entirely on the governor. Frequently the efforts of the governor along these lines were attended with much difficulty as were those of Governor Marquina in 1789 when he sought to designate an oidor to assist in the trial of Antonio Callejo, naval artilleryman on a frigate of war. The case had first been tried before the proper military judge, but it was referred on appeal to a tribunal of which an alcalde ordinario of the city was a member. The governor designated Oidor Yuguanzo to act as a member of this tribunal for the trial of the case of Callejo on review. The magistrate begged to be excused on the ground that all his time was occupied with the trial of civil cases in the audiencia. The governor called on all the other oidores successively, and all declined to act. At last he peremptorily ordered Yuguanzo to serve, telling him that if he objected he might carry the matter to the king in the regular way, which, according to the laws of the Indies, was to comply with the governor's demands, under protest, while appealing the question of disagreement to the Council of the Indies. [478] This was accordingly done, the magistrate basing his claim to exemption on the law which prohibited the governor from sending oidores on commissions outside the audiencia. [479] The governor at the same time filed a memorial which forestalled all the arguments of the oidor. [480] He stated that the real cause of the disinclination of the magistrates of the audiencia to serve as auditores de guerra was their indolence, and not the pressure of their excessive duties. It was contrary to their ideas of dignity to be associated with the acting auditor de guerra, who was not a letrado, and it was therefore considered a sacrifice of their own personal dignity. The governor stated that no argument could justify such an attitude on the part of the oidores. The inconsistency of their position was further shown, he alleged, by the fact that they had served regularly on the tribunal of appeals of the consulado, in company with two merchants who were not even lawyers. Hence there could be no reason for their refusal to serve with an alcalde ordinario.

The governor based his right to call upon the regular magistrates for this service on that section of the laws of the Indies applying to Española, Nuevo Reino, and Tierra Firme, which declared that jurisdiction over cases affecting soldiers belonged to the captain-general with inhibition of the audiencia, and that soldiers, during the time they were under arms, should not be tried on criminal charges. [481] The governor, according to this law, might call upon a magistrate to serve as special auditor de guerra for the determination of cases in second instance. Finally, by April 20, 1784, the king had extended this rule to all other colonies. [482] Although we have no record of the reply of the tribunal in Spain, the strength of the governor's position could not well be questioned, especially since he was resting his case on a law made in 1784, which was completely up-to-date, while the magistrate's contention was based on one promulgated in 1609. [483]

Aside from the duty of the oidores to try military cases when commissioned by the governor to do so, it will be seen that the tribunal itself exercised much more extensive authority in the actual administration of military affairs. Two factors may be said to have contributed to this. One was the fact that the audiencia was frequently consulted by the king or governor in regard to the defense of the colony. The other may be seen in the actual assumption of the government at various times by the audiencia, and the successful defense of the Islands by the military forces under the leadership of the oidores. Notwithstanding the fact that the governor's recognized sphere of action was military, and in spite of the repeated prohibitions against the interference of the tribunal in these matters, the audiencia received considerable official encouragement and authorization to interest itself in military affairs.

As the problems of general administration were too serious for the solution of one man without advisors, so the governor also found it frequently undesirable to assume sole responsibility for military affairs. The audiencia shared the acuerdo power in these matters to a lesser degree than it did in government. The hostility of the Japanese in the early years, the fear of the Chinese, the danger of native outbreaks, the raids of the Moro pirates, and the incursions of the Portuguese, Dutch, and English aroused the fears of the commonwealth to such an extent that defense was felt to be a matter of common concern. The governor, upon whom legally rested the obligations and responsibilities of defense, was glad to share these duties with any authority that could be of assistance. The history of the Philippines is replete with instances in which the audiencia either gave counsel in matters pertaining to defense, or took an

## active part in resistance. There were even occasions on which it

advocated offensive warfare. [484]

We have seen in an earlier chapter that the audiencia manifested a keen interest in military affairs immediately upon its establishment. In the chapter on the establishment of the tribunal we noted the memorials of individual oidores and of the audiencia as a tribunal, advising the governor and the king as to the necessity of conquering the Moros, and on the best way of putting down insurrections in the Islands. The question of defense against the Portuguese and the Dutch was also discussed in the letters of the oidores. In some cases their advice was considered, on other occasions the governor complained against them for exceeding their jurisdiction. One of the most noteworthy instances of the recognized intervention of the oidores in military matters was on April 19, 1586, when a council, called together by Governor Sande and consisting of the governor, the bishop, and the oidores, considered the immediate occupation of China. This was urged by Governor Sande, but he was overruled by the moderate counsels of the bishop and magistrates. [485]

No better illustration of the willingness of the governor to share his military responsibilities can be given than the reliance of Governor Dasmariñas on the religious authorities for advice in military affairs, after the suppression of the audiencia in 1589. [486] He consulted with them on ways and means of defending the colony against the Japanese, whose threatening attitude during his administration rendered precarious the continuance of Spanish power in the Islands. On one occasion he consulted the religious orders as to the advisability of expelling all Japanese and Chinese traders from Manila. The accumulation of provisions against a possible siege, the seizure of the persons and property of all Japanese residents, the establishment of a place of refuge for women, children, and sick persons in case of invasion, and the appropriation of the property of the natives as a pledge of their good behavior in the event of hostilities, were measures proposed by the governor to the religious for their consideration. Dasmariñas, on another occasion, asked the advice of the Augustinians, Dominicans, and Jesuits as to the best manner of dealing with an insurrection in Zambales, and the religious authorities, after quoting scholars, saints, and theologians, made lengthy recommendations. [487] These facts make clear the unwillingness of this governor to take the initiative in affairs pertaining to his own special province. He was content to ask and receive the advice of priests, monks, and magistrates, on military affairs. He was willing to seek the counsel of any and all available persons or authorities who could or would advise him. It is, of course, clear that the audiencia, when in existence, would be preferred as a source of advice and counsel to a community of religious.

Not only did the governor set a precedent of seeking the advice of the audiencia during this early period, but the king often sought the opinion of the magistrates in regard to military affairs. Various matters were referred by the sovereign to the oidores at different times: questions involving the building of walls and fortifications of Manila, and the number and size of cannon needed for the proper equipment of the latter; the audiencia was asked whether it would be better to bring gunpowder from New Spain or to manufacture it in the Islands; the magistrates were required on several occasions to furnish information as to the number of men needed for the defense of the Islands, and whether the natives would make good soldiers. The audiencia furnished information to the king concerning the availability of the various Philippine woods for shipbuilding, and it furnished estimates as to the probable cost of ships both for commerce and war. [488] All these matters were supposed to come within the special military jurisdiction of the governor, yet, not only that official, but the king himself, required the advice of the magistrates on these questions.

The conquest of Mindanao and the war in the Moluccas were also subjects of correspondence between the court and the local audiencia. [489] The king, on various occasions, requested information of the oidores concerning the natives and their attitude towards law and order, whether the various tribes were quiet, by nature peaceful or warlike, and what measures, in the opinions of the magistrates, would be best in dealing with them. The audiencia was consulted on other occasions as to the best manner of fortifying the Visayan Islands against the attacks of the Moros, and northern Luzón against the Chinese and Japanese, the possible cost and most suitable locations of fortifications, and their availability and probable value in repelling invasions.

The reliance of the governor and the court upon the magistrates of the audiencia for advice in the matter of defense was not characteristic only of the early years of Philippine history. In 1744 Governor Torre submitted his scheme for the fortification of the city of Manila to the audiencia before he sent it to the king for final approval. [490] Torre was aided by a regular council of war (consejo de guerra) of which the oidores were members and he submitted questions relative to the defense of the Islands to this council. In 1746, this local council of war reported on the advisability and feasibility of manufacturing guns and powder in the colony. [491] Governor Obando, writing in 1748 to the king, and commenting on the relationship of the previous governor with the audiencia in the matter of defense, divided between his predecessor and the audiencia the responsibility for the payment of ten thousand pesos to bribe the Dutch to keep away from the city, and not to reduce it. [492] In a subsequent chapter we shall discuss the important part played by the audiencia in the defense and surrender of the Islands to the British in 1762. These incidents, taken at random from various governors' administrations, show that the audiencia was required to do all that it could to assist the governor and captain-general in the defense of the colony. It was also called upon to advise the court on military affairs; thus it was frequently able to assist in formulating and guiding the policies of the home government with regard to defense and military administration. In this way an indirect, but distinct check was placed upon the governor in his own field, and an incapable or radical executive was thus prevented from endangering the peace and security of the colony.

But the influence of the audiencia operated much more effectively in defense of the colony than through the advice which it rendered either to the king or to the governor. From 1601 to 1625, during which period the residents of the colony were continually alarmed by the unceasing encroachments of the Dutch, the audiencia was frequently obliged to assume responsibility for the defense of the colony. In 1600 and 1601, when Francisco Tello de Guzmán was governor, Antonio de Morga, the senior oidor, led an expedition against the Dutch pirate Van Noordt and defeated him in Manila Bay. In 1607, the audiencia, then in charge of the government, maintained the defense of Manila and Cavite against the Dutch. [493] While Governor Pedro de Acuña was absent in the Moluccas in 1605-1606 on a campaign of conquest, the audiencia entertained and responded to a petition from the king of Tidore for assistance in resisting the oppression of the king of Ternate. The war in the Moluccas was continued by the interim government of the audiencia (1606-1608).

The audiencia repeatedly assumed charge of the government during the frequent absences of Governor Juan de Silva (1609-1616) on expeditions of conquest; and it governed two years after his death (1616-1618). Under the leadership of Oidor Andrés de Alcaraz the military and naval forces of the Islands repeatedly repelled the invasions of the Dutch. [494] Of special merit was the work of this oidor in the preparation and equipment of a fleet of seven galleons which he led in the battle of Playa Honda, on April 14, 1617. In order to raise money with which to meet the expenses of this campaign, the audiencia was compelled to resort to the extraordinary recourse of seizing the money of Manila merchants on its arrival from Acapulco on the galleon. It also forced loans from residents and officials who were in the colony. The audiencia authorized the sale and the payment in advance for space on the galleon of the coming year. Alcaraz, in a report to the king, stated that the oidores had labored with diligence for the defense of the colony, personally concerning themselves with the casting of artillery, the drilling of soldiers, the obtaining of supplies, and in otherwise preparing the city for more adequate defense. [495]

Under the leadership of the able soldiers and captains-general, Juan Niño de Tavora (1626-1632), Sebastián Hurtado de Corcuera (1634-1635), and Diego Fajardo (1644-1653), the audiencia interfered but little with the notable military operations of that period. Exception to this statement must be made in the cases of the capture and relinquishment of the island of Formosa in 1629 and 1642, respectively. The audiencia was unreservedly opposed to the proposed conquest of the island by Governor Tavora, who, nevertheless, undertook the expedition and carried it to a successful conclusion. When Governor Corcuera decided that the position of the Spaniards in Formosa was untenable and resolved to withdraw the garrison, the audiencia was equally forceful in its remonstrances. It sent charges to the court against the governor, alleging that this loss, and that of the Moluccas the year before would assuredly lead to the greater disaster of the loss of the Philippines. [496]

The important part played by the audiencia in the defense of Manila against the British in 1762 will be discussed in another chapter. While Governor Rojo and the majority of the oidores were in the city, surrounded by the enemy, Oidor Anda y Salazar, who had been sent to the provinces as visitor, organized and maintained a defense against the enemy. When he was commanded by the governor to surrender, he refused, successfully maintaining the claim that as the sole, legally-appointed oidor who had not surrendered, he was both audiencia and governor, and as such his actions were legal. His claims were recognized and approved by the king. This is perhaps the most peculiar and extraordinary example of the audiencia's assumption of military power.

The frequent assumption of the government by the audiencia, with responsibility for matters of defense and military administration may be cited as an additional reason for its reluctance to entirely abandon its interest in these affairs on the arrival of a governor. Notwithstanding this, and the additional fact that the king and governor frequently consulted the audiencia on military affairs, the tribunal did not always seek to retain preëminence in military affairs. This fact is shown by a letter which the audiencia wrote in 1598, acknowledging that "the only cases in which the governor is entitled to entire jurisdiction are those over soldiers--and these cases he may try independently, since he is captain-general." [497] There were numerous other occasions on which the audiencia unreservedly recognized the jurisdiction of the governor, often protesting against his excesses in military matters, but going no further than to register its protestations. For instance, it charged Governor Fajardo with carelessness in the outfitting of ships to resist the Dutch. One ship, it was said, was so poorly equipped that it sank before it left port. Fajardo was moreover accused of removing the commander of one of these ships, substituting his fifteen-year-old brother, Luís Fajardo, at a salary of 40,000 pesos. The audiencia contented itself with remonstrances against these wrongs, but it made no attempt to interfere. [498] Fajardo had his way in these matters, but he would have been compelled to answer for them personally in his residencia had he not died before that investigation took place.

The governor's accountability for the government of the Chinese was closely related to his jurisdiction over military affairs. The Chinese were regarded with great suspicion by the residents of Manila, who lived in constant fear of an outbreak in the Parián, or of a descent upon the coast of Luzón by Chinese from without. The problem of the Chinese was therefore essentially one of defense, and as such it was entrusted to the governor and captain-general. Nevertheless, the audiencia claimed the right to intervene in many matters pertaining to the government of these people, and there was much dissension between the oidores and the governor over this question. The governor on some occasions rigidly resisted the claims of the audiencia to exercise jurisdiction over the Chinese, and on others he invited the participation of the tribunal. This state of affairs was brought about by the seeming conflict of the laws bearing upon this question.

The earliest legislation to be found in the laws of the Indies dealing with the government of the Chinese was enacted on April 15, 1603. [499] This law forbade the alcaldes ordinarios to exercise jurisdiction over suits of the Chinese in the Parián, but it ordered that all cases involving them should be tried by a special alcalde of the Parián with right of appeal to the audiencia. A special judge was thus created by this law, with jurisdiction over the Chinese. [500] The purpose of this enactment was to establish a system of judicial procedure for the Chinese, whereby the latter might be kept apart from the Spaniards and natives in judicial as well as in governmental administration. This necessity was partly based on economic considerations, and partly on racial and religious reasons; it was designed essentially for the protection of the Spaniards. [501]

On the basis of the above law of April 15, 1603, the audiencia immediately proceeded to concern itself with the government of the Chinese. It claimed jurisdiction particularly over the right to issue licenses allowing Chinese to reside and trade in the Philippines. This authority was also claimed by the governor and captain-general, who was responsible for the defense of the Islands. The audiencia also proceeded to issue regulations for the Chinese trade, laying itself open to the charge of selfish interest in these commercial

## activities. Complaints against the audiencia's intervention reaching

the court, new regulations were issued on November 4 and December 1, 1606, which forbade the audiencia to concern itself with anything relative to the government and administration of the Parián, or with the Chinese who might come to the Islands for the purpose of trade, except at the solicitation of the governor. [502] In the letter accompanying these orders, the king informed Governor Acuña that although the Chinese in the Parián were under his charge, he was to take no important steps for their government without first consulting the audiencia. The inference of this law is clear, therefore, that the audiencia might have other activities than the purely judicial. This implication gave rise later to a considerable difference of opinion, but in consequence of this law the governor was established as the fountain of authority in Chinese affairs, with the oidores in a secondary position.

On June 12, 1614, Philip III re-enacted the above law with some modifications. The fiscal was made legal protector of the Chinese. He was ordered to advise the alcalde of the Parián in legal matters pertaining to them, and the alcalde was to take no important steps without the advice and assistance of the fiscal. [503] The governor was ordered not to allow any ordinary or special judge, alcalde del crimen, or oidor, to exercise jurisdiction in first instance over civil suits or criminal cases of the Chinese, or to make inspections in the Parián. The last clause of this law, however, qualified and rendered dubious the effect and meaning of the entire enactment, by adding, "unless in a case so extraordinary, necessary and imperative that it may appear convenient to limit this rule."

It will not be extraneous to point out here that this was a common weakness of many laws, by which they were frequently rendered entirely inapplicable. In this case, for example, the evident object was to prevent the oidores from interfering in Chinese affairs, thus guaranteeing the government and administration by officials who were endowed with knowledge and understanding of their racial characteristics and peculiarities, while centering the ultimate responsibility for them in the governor. It was realized, however, that exceptional cases might arise in which some other procedure might be advisable, and accordingly a loophole was left whereby the entire law could be nullified. The audiencia was thus given a basis for intervention in the government of the Chinese whenever it suited the convenience of the magistrates. This defect is emphasized here because this particular exception justified the intervention of the audiencia on many occasions, and was a cause of continual contention between the governor and the audiencia in Chinese affairs.

Although it is difficult to settle conclusively the question of the extent of jurisdiction which the governor and the audiencia, respectively, exercised over the Chinese in the Parián, a few cases may be presented in this connection to show that both the governor and the audiencia were justified by royal authority in advancing claims to control. On December 4, 1630, the king wrote a scathing arraignment of the audiencia for having entertained an appeal from the Chinese over the head of the governor, practically disregarding the latter, and for making recommendations relative to the Chinese and to military affairs, which questions were entirely outside its province. [504] One of the items of the report of the recent visitor-general to the Philippines, Licentiate Francisco de Rojas y Ornate in 1629, had been a charge that the audiencia had condemned and fined a Chinese merchant for smuggling munitions of war into the colony, after the latter had proved that he had been acting under the instructions of Governor Silva. [505] The visitor-general took the position that this case was entirely within the military sphere; therefore the governor's decision was final, and the audiencia was proceeding without jurisdiction in attempting to deal with it. The king called upon the tribunal to justify its

## action in the matter. [506] It is to be noted that in this case the

point at issue was not that the audiencia was interfering with a Chinaman who should have been punished by another authority, but that in assuming jurisdiction the audiencia had infringed on the special prerogatives of the governor with regard to war and government. The frequency and seriousness of the Chinese insurrections in the early seventeenth century, and the fear of a hostile invasion from China, placed all questions of dealing with the Chinese upon a military basis, hence the authority of the governor.

Much correspondence of various kinds might be cited to show that the governor was encouraged to consult the audiencia on Chinese affairs. Not only was the governor expected to do this, but the king himself directed many letters to the "governor and audiencia" and to the "governor and oidores," in which he asked for advice and information bearing upon Chinese affairs. As we have already seen, cédulas treating of these matters were frequently expedited to the "governor and audiencia." The audiencia was requested by the royal authority on August 8, 1609, to submit information as to the truth of various statements by persons in the Islands that the Chinese were carrying away vast quantities of silver. The audiencia was ordered to enact measures which would stop this abuse, which, if persisted in, would inevitably result in an impoverishment of the Philippine community and government. The oidores were asked to suggest a course of action which would result in the retention of the Chinese trade and at the same time prevent the Chinese from doing irreparable damage to the royal exchequer in the ways alluded to. [507]

In further illustration of the same subject, we may note the instructions of the king to Governor Silva, dated March 27, 1616. On this occasion the king prescribed a course of action for the governor to follow in case of the invasion of the Islands by the Chinese and Japanese. He was especially directed to prevent a union of the Chinese in the Parián with the forces of the expected invaders. Silva was ordered to take no steps without first consulting the oidores. [508] On July 25, 1619, having received news of the insubordination of the Chinese in Manila and of the danger of a revolt among them, the king wrote to the "president and oidores" expressing the belief that too many Chinese had been admitted to the Islands and that thereafter only enough should be permitted to man the ships and carry on trade. [509] The authorities to whom this letter was directed were charged not to allow the royal will relative to this matter to be disregarded, which, of course, implied the exercise of an executive power on the part of the magistrates, in addition to consultative authority.

Again, on December 31, 1630, the king wrote to the governor and audiencia, stating that there had been received at the court from the Chinese of the Parián, a series of memorials, letters and petitions, complaining against the rigor of Spanish administration and requesting that they might be governed by mandarins, governors and alcaldes mayores of the "Chinese nation." The king signified his unwillingness to comply with their request at this time, and accordingly ordered the governor and audiencia to permit no changes to be made. [510] On July 27, 1713, the tribunal, acting in a legislative capacity, decreed that within thirty days "all Moros, Armenians, Malabars, Chinese and other enemies of the Holy Faith" should be lodged in the Parián when visiting Manila, or when living there temporarily for purposes of visit or trade. Penalties were also prescribed for the infraction of the above law. [511] This affords one illustration out of many which could be cited of the legislation of the audiencia in Chinese affairs. [512]

On May 14, 1790, the king wrote to the "governor and president of the royal audiencia" and also to the tribunal, ordering the re-establishment of the Parián. This Chinese quarter had been abolished since 1756. It was agreed that the Chinese in this district should be ruled by an alcalde, who should also hear cases in first instance, with appeal to the audiencia. It was furthermore decreed that the Chinese population in the Islands should be fixed at 4000 and that each individual should be taxed at the rate of six pesos per capita. [513] This tax was to be collected by the cabecilla of the Chinese, a sort of local leader, subject to the alcalde of the Parián. This cédula, the king stated, was originally suggested by the acuerdo of the audiencia, and had been submitted for royal approval, which had been duly conceded. This correspondence, which shows the real operation of the government much more accurately than the citation of laws alone could do, makes it quite clear that throughout the history of the Islands, notwithstanding the existence of many cédulas to the contrary, the audiencia exercised advisory power in regard to the government of the Chinese. This authority was repeatedly recognized by the governor and by the king himself.

After the inauguration of the superintendency of real hacienda at Manila in 1787, the incumbent of that office was made largely responsible for the Chinese. This was probably so arranged because the care and administration of the Chinese at that time involved questions of finance rather than of war and defense. It will be remembered, too, that, during much of the time, the office of superintendent was combined with that of governor. A number of disputes arose between the governor and the intendant after the latter office was created in 1785, [514] but after the union of the governorship with the superintendency, no further occasion of dispute arose. During the greater part of the nineteenth century, the peculiar nature of the office of intendant gave to the latter official the duty of collecting the licenses of the Chinese, subject to the superintendent.

There yet remains something to be said regarding the administration of justice among the Chinese, and we must note certain typical disputes and disagreements which arose in that connection. That the audiencia had authority to try cases in second instance involving the Chinese has already been stated. Likewise the oidores were liable to special delegation to try cases of an extraordinary character which arose among the Chinese, as, for example in 1786, when Oidor Bolívar y Meña was designated to try in first instance charges which had been made against Chinese bakers in the Parián, who were said to have put a quantity of powdered glass in bread which they had made for the Spaniards. This case was regarded as one of more than ordinary significance, as involving treason and insurrection, and it was accordingly tried by an oidor who had been especially delegated for the purpose by the governor. [515]

The question of Chinese jurisdiction is further illustrated by a dispute which arose in the colony between the audiencia and the governor, and which was carried to the king by the latter functionary on June 30, 1793. Oidor Moreno had ordered the arrest of the Chinese cabecilla of the Parián on a criminal charge. [516] The detention of the Chinaman was conceded to be justifiable, but Governor Marquina alleged that Moreno had entirely disregarded the cédula of October 11, 1784, which had ordered that in case of the arrest of any royal official, notification should be served to the governor in sufficient time for him to take the proper precautions for the safeguarding of any of His Majesty's property which might be in the care or under the protection of the official in question. He said that this particular arrest was typical of the petty interference of the oidores and illustrative of the slight pretexts upon which they frequently upset the whole system of government and caused untold annoyances. On account of the many difficulties in the collection of the tribute which had presented themselves as a consequence of the arrest of this particular Chinese official, and because the latter was especially efficient, the governor had asked the audiencia to permit the cabecilla to be excused on condition that he should bind himself to return to the custody of the audiencia after he had collected the taxes. This the tribunal had refused. The government, as a consequence, had been put to much inconvenience in finding a substitute, and the sum collected had been considerably less than was usually obtained, owing to the lack of experience of the new collector. After the cabecilla had been in prison over four months, he was brought to trial, and nothing being proved against him, he was freed. The audiencia, however, had won its point, and had manifested its right to the last word in judicial affairs relating to the Chinese.

The difference between the appellate jurisdiction of the audiencia in contentious cases involving Chinese and in administrative matters which it did not have is illustrated by a case which came up in 1794 and lasted through twelve years of litigation. In the year aforementioned, the ayuntamiento of Manila brought suit before an alcalde ordinario of the city against a Chinese, Augustín Chagisco, on a charge of the failure of the latter properly to fulfill a contract which he had made to supply the city with meat. The alcalde ordinario, before whom suit had been brought in first instance, cancelled the contract, and the Chinese appealed to the audiencia. The tribunal, after due consideration of the case, restored Chagisco to his status as provider of meats (abastecedor de carne) for the city. Instead of appealing the case as one of law, the ayuntamiento wrote to the king on January 19, 1796, alleging that the audiencia had interfered in behalf of a Chinese whose services the ayuntamiento had discontinued as provider of meats, over which matter the audiencia had no jurisdiction. The king immediately gave expression of his approval of the stand of the ayuntamiento, being of the impression that the question at stake was one of appointment only. [517] At the same time the king demanded a full explanation from the oidores as to why they had interfered in this matter which was so far removed from their jurisdiction. The audiencia, in reply, sent all the records and testimonios of the suit to the Council, and that tribunal called upon the ayuntamiento in due time to explain why it had misrepresented the case. After a long period of acrimonious correspondence between the Manila authorities, the case was concluded on February 19, 1806, by a reversal of the earlier decision, and His Majesty sent a letter of congratulation and approval to the audiencia in appreciation of its stand in the matter. [518] The king informed the tribunal that it had been entirely regular in its proceedings, having reversed the decision of the alcalde ordinario in a legal suit which had been appealed by the Chinese to the audiencia in protest against the adverse decision of the lower court.

Without carrying this discussion further, it is clear that the audiencia had general appellate jurisdiction in cases involving the Chinese. These cases, when they originated in the Parián, were tried in first instance by special judges for the Chinese, but suits brought against a Chinese who lived outside, or suits of a semi-public nature, as the one just noted, might be tried in first instance by the ordinary judges. It has also been noted that oidores were sometimes delegated to try cases in first instance involving treason or insurrection of Chinese. In regard to matters of government, it may be said that the governor was held responsible, but even in these the oidores

## participated in an advisory capacity.

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