JUDICIAL FUNCTIONS OF THE AUDIENCIA; THE RESIDENCIA [204]
The purpose of the residencia was to uphold the morale of colonial
service by making officials answer for all their acts in a judicial
examination held at the close of their terms. It may be said that
the fear of the residencia was almost the sole incentive to righteous
official conduct or efficient public service, and it will be seen that
the audiencia exercised very pronounced authority in this. Indeed,
the audiencia had general supervision in a semi-judicial capacity over
the services of officials and public servants in the colonies. It was
the function of the audiencia to send reports to the court relative
to the conduct, work, or attitude of any employee or official of the
government, or of any resident of the colony. These reports were known
as informaciones (pareceres) de servicio. [205] The tribunal itself
was ready at all times to hear complaints against provincial governors
and judges, treasury officials, magistrates, governors, or, in fact,
any and all officials holding their positions by virtue of the king's
commission. [206] Charges might be made by a wronged party or by anyone
whose knowledge of an abuse was sufficient to justify charges. Heavy
penalties were imposed upon persons making false or unsubstantiated
charges. [207] Complaints against alcaldes mayores and corregidores
were most likely to be made during the regular investigation of the
visiting oidor, which, as we have noted, occurred every three years,
but sufficient complaint might be made to justify the dispatch of a
special investigator at any time. [208]
The findings of the above inspections might be reviewed by the
audiencia and lead to the suspension and dismissal of the official
under investigation. [209] The final action had to be confirmed by
the Council of the Indies in case the person concerned were a royal
appointee, but in these matters the action of the local officials was
usually approved. For the removal of oidores and oficiales reales a
slightly different method was pursued. A magistrate of the audiencia
was designated to investigate the case, the evidence was submitted to
the Council of the Indies and final action was taken by it and not by
the audiencia. [210] Any and all charges brought against an official
in these investigations, even though he were cleared at the time,
might be revived in the residencia.
Suspensions from office were made by the governor with the advice and
consent of the audiencia. The governor had the legal right to make
temporary removals, but on account of the seriousness of such an act,
and the considerations depending upon it, he usually preferred to
have the support of the magistrates in the matter. The governor, as
vicepatron, could suspend prelates and other church officials, but he
seldom, if ever, exercised his powers to the full extent. The audiencia
at Manila, on the other hand, actually drove the archbishop from the
city on various occasions. The suspension and the removal of members
of the ordinary clergy from their districts was a frequent occurrence,
but churchmen were not subject to residencia. The audiencia had no
authority to suspend or remove the governor, though the magistrates
could and frequently did bring charges against the governor which led
to his dismissal. Governors actually suspended and removed oidores at
times, though such acts were protested as violations of the law which
authorized only the Council of the Indies to remove these officials.
Briefly, the procedure in making these removals was as follows:
the governor and audiencia investigated the conduct of an official
whenever circumstances demanded it; the latter was either suspended
and recommended for removal, such recommendations being made by the
audiencia to the governor or to the Council of the Indies, according
to the rank of the official, or the tribunal could make the removal
itself. [211] If exception to the action of the audiencia were taken,
all the papers relative to the case were forwarded to the Council of
the Indies, and if good reasons were found to exist for the action
of the lower court the Council approved its action. [212] This,
was not the residencia as usually considered.
Of the various authorities at our disposal, Bancroft gives the most
acceptable characterization of the residencia. He defines it as an
examination held, or an account taken, of the official acts of an
executive or judicial official within the province of his jurisdiction
during the term of his incumbency. This, Bancroft says, was done
at the expiration of the term of office or at stated periods, or,
in case of malfeasance, at any time. [213] The principle underlying
the institution of the residencia was bequeathed to the Spaniards
by the Romans, being similar to and probably derived from their law
which gave the right of accusation to any Roman citizen against an
office-holder. The residencia was conducted by a judicial official,
and it combined the features of a general survey of the career of the
official under investigation, an auditing of his accounts and a formal
trial. Its purpose was to ascertain whether or not the official had
faithfully executed his duties and it served to clear him if he were
proved honest, giving him a clean certificate of recommendation. If
he were found guilty of official misconduct or dishonesty he was
apprehended, degraded, and punished, according to his deserts.
Professor Bourne has written in regard to the residencia:
The residencia ... was an institution peculiar in modern times of
the Spanish colonial system. It was designed to provide a method
by which officials could be held to strict accountability for
all acts during their term of office.... To allow a contest in
the courts involving the governor's powers during his term of
office would be subversive of his authority. He was then to be
kept in bounds by realizing that a day of judgment was impending,
when everyone, even the poorest Indian, might in perfect security
bring forward his accusation. In the Philippines the residencia for
a governor lasted six months and was conducted by his successor
and all the charges made were forwarded to Spain.... The Italian
traveller Gemelli Careri who visited Manila in 1696 characterizes
the governor's residencia as a "dreadful Trial", the strain of
which would sometimes "break their hearts."
Professor Bourne stated that it was the opinion of De Pons that
"the severities of the residencia could be mitigated, and no doubt
such was the case in the Philippines. By the end of the eighteenth
century the residencia seems to have lost its efficacy." [214]
It is important to note at the outset that the residencia was not
conducted periodically alone, but that it might be held at any time
in the career of an official. The term pesquisa was applied to the
form of residencia which was carried out by a special investigator
(pesquisidor), sent when serious charges were made against the conduct
of an official. [215] In the investigation which took place the
official might be fined, or if grave offenses were proved, he might be
removed from office. Appeals might be made from the pesquisidor to the
audiencia and to the Council of the Indies. In fact, the judgments of
the pesquisidor were always reviewed in the local tribunal unless the
investigating judge had been commissioned by the Council of the Indies.
The distinction which has been made here between the formal residencia
which occurred at the close of the term of office and the pesquisa
which might take place whenever serious charges were made, was first
emphasized in laws promulgated by Charles V in 1538, and by Philip
II in 1591; these aimed to put a stop to the excesses of certain
governors, corregidores, and ministers of justice, who, relying on
the practice then prevailing of taking residencias only at the close
of the official term, had committed unlimited excesses. The new laws,
above referred to, stated that although it had never been the royal
wish that residencias of royal appointees should be taken without
notice having been sent first to the monarch, the above circumstances
had made it necessary for them to be taken when charges were made. This
cédula, therefore, authorized the taking of residencias whenever the
best interests of the service required it. [216]
This cédula was followed by another which forbade the sending of
special investigators or judges of residencia against governors of
provinces, unless persons of responsible character presented charges
against them, giving bonds to cover the costs. An investigator
was thereupon sent to conduct the trial of the official under
examination. [217] This matter is covered in slightly different
terms in the law of June 19, 1620. According to that enactment, a
receptor [218] might be sent to conduct the preliminary investigations
of corregidores and ordinary justices when these demanded instant
attention and could not await the formal residencia. If, as a result
of this inquiry, the guilt of the official seemed apparent, a more
complete investigation was made by a judge appointed by the president
and audiencia in acuerdo. [219]
The authority to determine whether cases merited investigation or
not and whether an inquiry should be made, belonged to the acuerdo,
while the designation of the judge rested with the governor. [220]
The judges sent on these missions were not at first authorized to
pass final sentence, their decisions being subject to review in the
audiencia before execution. However, by the law of May 5, 1576, this
added authority was bestowed upon the oidores who conducted special
investigations, or residencias. [221] Appeals might be made to the
audiencia and, if the sentence imposed the death penalty or permanent
removal from office, the appeal might be carried to the Council of the
Indies. [222] The final approval of the Council was required before
action could be taken with regard to any royal appointee, except in
those cases wherein the fine did not exceed one thousand pesos. [223]
The oidores, it seems, did not always act as impartial judges when
entrusted with these investigations; they were often influenced
by the extra reward obtained for these services, and frequently by
prejudice against the officials under investigation. Such were the
charges implied by Governor Fajardo in 1619 when he wrote:
It is always to be believed that the auditors (oidores) to whom the
inquiries are entrusted, ought to make them, not only as judges,
but as interested parties, so that sinister inquiries should not
be sent to your Majesty's royal Council to defraud your royal
treasury and the merits of those who have served well. I assure
your Majesty that I have heard that many inquiries have been made
with less justification than might be advisable. [224]
A typical illustration of the jurisdiction of the audiencia in an
investigation of this sort, and of the delay to which the minor
officials were subjected, is shown in the case of Antonio Pimentel,
governor of the Marianas, [225] whose residencia was taken in the
decade following 1711. In this case may be seen the distinction between
the formal residencia, conducted at the close of the regular term of
office, and an investigation of charges brought during the incumbency
of the official. This case illustrates both forms of investigation,
for it originated in a charge of treason brought against Pimentel,
who, it was said, had furnished food and water to the crews of two
English vessels, enemies of Spain, and subsequently these same ships
had captured the galleon, "Nuestra Señora de la Encarnación". The
conduct of the case was given to magistrate Torralba, who, on his
arrival at Guam, sent Pimentel in chains to Manila. Notwithstanding
his defense of ignorance of a state of war existing between Spain
and England, he was sentenced to the forfeiture of the bonds which
he had posted on assuming office, and in addition was deprived of
his position as governor at Guam. This sentence was rendered January
23, 1712, and was approved by the audiencia in review on July 24,
1714. [226] The tribunal sentenced Pimentel to prison and ordered
that his residencia should be taken; accordingly, an examination
was made of all his official acts as governor. Pimentel, therefore,
had not only to stand investigation for the particular act which had
brought about his removal, but he was also subjected to a residencia
covering his entire career as governor. It may be noted that the two
forms of investigation were separate and distinct on this occasion.
Owing to the death of Governor Lizárraga, to the imprisonment of Oidor
Villa, and to the state of anarchy surrounding the administration
of Torralba as governor, Pimentel was forced to languish in prison
several years while he waited residencia. The appointment of Luís de
Tagle as his successor and judge of residencia was dated June 25,
1717. This occasion was one on which the successor of a governor
took his predecessor's residencia, owing, the commission said, to
the distance and the irregularity of communication between Manila
and Guam. A letter of the audiencia, dated August 9, 1718, advised
the governor that there were 427 unfinished cases on the docket of
the tribunal, and chief among those that ought to be decided without
delay was the review of the residencia of Pimentel; it was added
that there seemed to be no prospect that a boat could get to Guam
before 1719. The record of the termination of this case probably
reposes somewhere in the archives, tied in an aged, yellow packet,
bound by Spanish red tape.
In summary, it may be said that there were two kinds of investigations
of official conduct, one taken at the completion of the regular term
of office and the other at any time when the needs of the service
required it. They both had the same ultimate purpose of holding
officials responsible for misconduct in office, of giving to all
persons an opportunity of having justice done to them and of deterring
office-holders from future misdeeds.
Practically all of the colonial officials were subject to
residencia. The most sensational and widely known residencias were,
of course, those of viceroys and captains-general, but oidores,
treasury officials, encomenderos, alcaldes mayores, corregidores,
admirals, generals, captains, and constructors of galleons were
likewise examined in this way. [227] The visitors and special
investigators who were sent to examine the government of the provinces
and the state of the Indians on the encomiendas were also subject
to residencia. Residencias were exacted of all minor officials at
the same time that their superiors were examined. [228] Clerks,
notaries, secretaries, alcaldes ordinarios, regidores, and other
officials of a minor category were investigated at the same time that
the governor was examined, an alcalde or an oidor being delegated by
the new president to review their official conduct. The examination of
these minor officials seems to have become more and more perfunctory
and there was a tendency during the latter part of the nineteenth
century to continue them in office, even without investigation. When,
for instance, Governors Basco y Vargas and Marquina gave up their
offices this formality was omitted. [229] The practice of taking the
residencias of minor officials was definitely abandoned on August 24,
1799, and a rigid inspection by the audiencia of their official acts
was authorized. [230]
Much contradictory legislation appears in the laws of the Indies
relative to the method of taking residencias; this due to the
reforms made from time to time. These laws were formulated for a
growing empire. A chronological review of them will show that the
residencia was at first more or less of an experiment. Indeed, all
the colonial institutions were in the early periods passing through
an experimental stage and these seemingly contradictory laws were
promulgated or repealed, according to their success or failure when put
into effect. Whenever, therefore, two laws appear to be in conflict,
the one of later date will be found to supersede and repeal the earlier
one. [231] In illustration of this characteristic of the laws of the
Indies we may note the following example: The cédula of December 4,
1630, ordered that the residencia of the governor should be taken
by his successor. This law was seldom, if ever, observed. Owing to
the distance from Spain and New Spain, and the consequent length
of time consumed in voyages, to the unhealthful climate, and to the
dangerous military campaigns in which the governors were compelled
to engage, death frequently intervened before the successor of a
governor arrived. These conditions (which were characteristic of
all of Spain's colonies) did not prevent the residencia from being
taken, but caused the law to be modified by the cédula of December
28, 1667, according to which judges for the residencias of viceroys
and presidents-governor and captains-general were to be designated
by the court. The period of four months, which had been authorized
for the taking of residencias by the cédula of August 30, 1582, was
extended to six months. [232] A change was necessary, the new law
declared, in order to put a stop to the incessant strife, and the
malice which had been shown by viceroys, governors, and ministers in
the taking of residencias. The king determined that henceforth the
judge of residencias should be designated by the court. The magistrate
usually named was the decano. After 1776 the regent almost invariably
conducted these investigations. The important reform of August 24,
1799, ordered that judges of residencia for governors, viceroys,
presidents, governors-intendant, corregidor-intendants, and presidents
of the Council of the Indies should be appointed by the king. [233]
The first residencia to be conducted in the Philippines in accordance
with the new law of November 28, 1667, was that of Governor Salcedo,
in 1670. This governor had been removed by the commissary of the
Inquisition on October 10, 1668, and Francisco Coloma, the decano,
was ordered to take his residencia. [234] Coloma's intervention in the
matter was protested by the audiencia in a letter to the Council of the
Indies, dated April 7, 1670, on the grounds that the senior oidor was
also the asesor and possible successor of the governor, and for that
reason he was disqualified from taking the latter's residencia. [235]
The audiencia suspended the proposed action of Coloma, pending the
reply of the Council of the Indies. In addition to the protest of
the audiencia, the fiscal, on May 20, 1670, sent a report of the
case to the court, which act was in fulfillment of his regular
duties as fiscal, as prescribed by the laws of the Indies. [236]
The notes from Manila were effective in bringing about the desired
results. Upon receipt of the communications, the Council of the
Indies, on June 17, 1671, ordered the nullification of all former
cédulas, cancelled Coloma's appointment to take the residencia in
question, on the grounds that he had been the governor's asesor,
and appointed Fernando de Montemayor, the oidor next in rank, to
conduct the residencia of the governor. [237] Salcedo had already
been dead three years, and two more transpired before his residencia
was completed and the autos thereof reviewed by the Council.
The laws provided ample opportunity for appeal in cases of
residencia. The cédula of November 17, 1526, ordered that appeals
might be made to the Council of the Indies from judges of residencia
in cases involving liabilities in excess of 600 pesos. [238] Many
appeals were made to the Council in accord with this law, and the
time of the tribunal was consumed in the consideration of matters
comparatively of small importance. To obviate this defect the law was
changed on August 7, 1568, to provide that no case could be appealed
to the Council of the Indies unless the sentence imposed capital
punishment or deprivation of office. [239] The cédula of June 23,
1608, ordered that if the fine imposed upon the governor and ministers
of the Philippines did not exceed one thousand pesos the case should
be finished in the audiencia. [240] Cases involving a greater amount
were to be appealed to the Council. Sentence of judges of residencia
were not to be executed pending the trial of appeals to the audiencia
and the Council of the Indies. [241]
Philip IV initiated further reforms in regard to appeal in
1636. Ordenanza LVI, promulgated at that time, provided that "the said
Council [of the Indies] may only have jurisdiction over the visits and
residencias of the viceroys, presidents, oidores, and officials of our
audiencias and accountants and officials of the tribunals of accounts,
officials of the treasury and those of the governors provided by the
Council with our titles." [242] Ordenanza LXII, issued at the same
time, ordered that "in the visits and residencias which are seen
and determined in our Council of the Indies," cases did not have to
be referred to the king for consultation, excepting when, in "the
residencias of viceroys, presidents, and oidores, alcaldes del crimen,
and fiscales of our royal audiencias of the Indies and governors of
the principal provinces there, condemnations of corporal punishment,
privation or suspension from office result against them." [243]
In these cases the Council was ordered to submit its decisions and
all papers bearing thereon to the king before passing judgment,
so that the final judgment might be rendered by the sovereign in
person. The Council could take final action in the residencias of
military and naval officials without consulting the king. It was, of
course, impossible for the sovereign to give his personal attention
to any of these matters, but the last word was pronounced in these
suits by responsible ministers of the court who stood high in the
royal estimation.
Officials were usually obliged to submit to residencia before leaving
the colony, also before their promotion to higher posts. [244] Owing,
however, to the paucity of ships plying to New Spain and to the length
of time elapsing between sailing dates, officials could give bonds and
leave before the residencia was completed. [245] This was permitted
only to men of good character, whose services had been uniformly
satisfactory, and who were destined to some other post wherein their
services were indispensable. The investigation was then conducted in
the absence of the official concerned. [246] It was decreed by the
cédula of December 30, 1776, that an annual deduction of one-fifth of
the total salary of the governors and viceroys respectively should
be made, until sufficient money had been taken out to cover the
probable costs and liabilities of their residencias. [247] This was a
special assessment, distinct from the media anata, [248] and the money
deducted thereby was to be returned if nothing detrimental were proved
in the residencia. The last year's salaries of alcaldes mayores and
corregidores were withheld, pending investigations of their official
conduct and a rendering of accounts of collections made by them. [249]
If an official were cleared of all guilt, the money which had been
withheld was returned and the costs of residencia were defrayed by
the royal treasury. [250] In case the official were found guilty
of misconduct, he had to forfeit his deposits, back-salary, bonds,
and frequently to pay a large fine in addition. The amount of the
penalty, of course, depended on the extent of the guilt. It may be
said that in the Philippines the royal treasury suffered no serious
embarrassment through having to bear costs of residencia.
The judges of residencia who served as such in addition to their
regular duties, received an additional compensation which varied
according to the place where the residencia was held, its distance
from the capital, and other circumstances. [251] This was modified by
a reform of the nineteenth century which awarded extra pay only in the
case the official were fined. This, of course, was intended to afford
the examining judge a stimulating interest in the case. Still later
the system of giving extra pay for residencias was abolished. [252]
A detailed survey of the governor's residencia in the
Philippines would illustrate the influence of the audiencia in such
investigations. Unfortunately the story would be long and little space
remains for such a purpose. During the first two centuries of Spanish
rule in the Islands the residencias of the governors were especially
stringent, many of these officials suffering deprivation of office,
imprisonment, and exile. The families and dependents of some were
reduced to the last extreme of poverty, while the victims themselves
spent years in some distant province, unable to defend themselves
from their enemies. Many victims of the residencia were purposely
put aside in order that no appeal could be heard from them. One would
occasionally find relief at last in a tardy pardon or in a modification
of sentence, obtained through friends at home, when these could be
reached, but more often death would intervene before the exercise of
executive clemency or revision of sentence could be obtained.
The factors of petty spite, malice, and personal ambition entered to
an extensive degree in the rendering of testimony at a residencia. A
governor, recently arrived in the colony, would be full of zeal
and ardor to inaugurate a successful administration, and make a
good record for himself. The first duty that presented itself on
his arrival was that of taking or supervising his predecessor's
residencia. Frequently, before arriving at Manila, the new governor
would be in full possession of a complete record of the misdeeds
of his predecessor, and the residencia of the latter was as good as
taken. [253] Oidores, merchants, alcaldes, treasury officials, and
churchmen, compelled to stand aside and see a governor take his choice
out of the best things, leaving for them only the husks, were not slow
in bringing charges at the official residencia. [254] A new governor,
desirous of demonstrating his intention of starting an honest and
vigorous administration, hearing nothing but evil of his predecessor,
would naturally lend himself as an instrument to the malcontents. A
fiscal, after spending six years in conflict with a governor, could be
depended on to bring strenuous prosecution against him. A magistrate
with enmity in his heart for the governor whose residencia he was to
take, was no fit person to conduct an impartial investigation.
While as a rule the residencias of governors were severe,
due largely to the presence of the audiencia, that of Dr. Sande,
the first governor to submit to this investigation, illustrates
the evils of the residencia as conducted before the establishment
of the audiencia. His successor, Governor Ronquillo de Peñalosa,
conducted Sande's residencia and sentenced him to pay a heavy fine,
but he appealed the case to the Audiencia of Mexico, by which tribunal,
in the meantime, he had been commissioned oidor. We have noted in an
earlier chapter Ronquillo's comments on the abject state into which
the administration of justice had fallen when a man could be promoted
to a magistracy in a tribunal which had jurisdiction over his own case
on appeal. [255] However, after the establishment of the audiencia,
and until the close of the nineteenth century, the residencia went
to the other extreme, and was, as a rule, exceedingly rigorous.
We may briefly note a few of the most severe residencias in which the
influence of the audiencia told against the victim. In 1625, Gerónimo
de Silva, temporary governor, was imprisoned by the audiencia because
he failed to pursue the Dutch after their defeat in 1617. The real
difficulty lay in the fact that Silva had incurred the enmity of the
senior oidor, who ultimately conducted the residencia, because Silva's
arrival in the Islands deprived that magistrate of the command of the
military and naval forces of the Islands. Again, Governor Corcuera,
after nine years of very successful rule, during which he distinguished
himself in several campaigns of conquest and incidentally aroused the
hostility and jealousy of the oidores, was arrested on charges made
by the audiencia on the arrival of Governor Diego Fajardo in 1644. An
oidor, who was the personal enemy of Corcuera, was designated to
conduct the residencia, the ex-governor was fined 25,000 pesos and
was imprisoned five years while the magistrates of the audiencia
delayed the transmission of the papers which permitted a rehearing
of the case. At last his defense was sent to the Council, the fine
was remitted, he was given salary for the period of his exile, and
the post of governor of the Canaries was conferred upon him. Although
the audiencia was responsible for the injustice in this case, Fajardo,
as president and governor, was held answerable in his own residencia
for his conduct toward his predecessor.
Governor Simón de Anda y Salazar, one of the most successful
governors the Islands had ever known, was made to suffer from the
personal malice of the oidores when he gave his last residencia in
1776. [256] Among the offenses which were proved against him was
that of exercising prejudice in conducting the residencia of Oidor
Villacorta, conducted under his supervision. The residencia had been
rigorous, due no doubt to personal enmity between the oidor and the
governor, extending over a period of many years. He was also fined
4000 pesos as a price for his excessive zeal in the prosecution of
the residencia of his predecessor, Governor Raón, who had friends in
the audiencia to defend his memory and champion his cause. [257] Anda
was also shown to have absolved certain officials of real hacienda
of financial responsibility, permitting them to leave the Islands
without the consent of the audiencia. These and other charges proved
against him were said to have caused his premature death in 1776.
Governor José Basco y Vargas, another very efficient governor,
[258] but one who had been opposed throughout his term of office by
the audiencia, was heavily fined in 1787 by the oidor designated to
conduct the investigation. The decision of the judge of residencia was
reversed by the Council of the Indies, however, and Vargas' exceptional
merits were recognized to the extent of his being appointed to the
governorship of Cartagena, with the rank of rear admiral. In taking
the residencia of Vargas, the audiencia had disagreed so completely
that the tribunal was obliged to resort to the extreme measure of
appointing a churchman as arbiter. Fray Gerónimo Caraballo, the curate
of Quiapo, was designated for that duty.
Aside from the above brief references to notable cases in which the
audiencia exercised jurisdiction over the residencias of governors,
allowing itself to be influenced by considerations other than those
of justice, it seems desirable to review in detail at least one case
of the residencia of a governor, to show more particularly just what
authority was exercised by the tribunal, and just how that authority
was exercised.
We may select for this purpose the residencia of Governor Felix
Beringuer de Marquina, which was the last to be conducted under the
old laws, and the last, accordingly, of the severe residencias. [259]
As governor and superintendent of real hacienda Marquina assumed
such power as no other governor had ever exercised. He was opposed at
every turn by the audiencia and probably no other governor ever had
so many of his measures vetoed or opposed by the home government as
he. The fiscal and oidores brought many charges against him; these
finally culminated, before the expiration of his term, in the royal
order of February 19, 1792, for the taking of his residencia. The
regent, Agustín de Amparán, was put in possession of the special
charges which had been made against Marquina. According to these the
governor had been careless in defending the Islands against the Moros,
who had insulted and robbed with impunity the various settlements,
with no effort having been made to check their advance. The governor
had transgressed in numerous instances the sphere of the audiencia
and had substituted his own authority. He was said to have been
guilty of immoral relations with certain Spanish women of the colony,
having deliberately and maliciously separated an intendant from his
wife on one occasion by ordering the former to a post of duty where
no woman could go; he had amassed a great fortune through trade and
by diverting the proceeds of the royal revenue to his own private
advantage; he had permitted merchants to conduct business without
proper licenses; he had allowed foreign merchants to remain in Manila
under conditions forbidden by law. [260] These and many others were
the charges brought against Governor Marquina. They may be considered
as typical of the accusations which were usually brought against
governors in their residencias.
Amparán was commanded by the royal order above-mentioned to remove
Marquina to some spot outside Manila where he could not interfere
with the residencia, but whence he could be summoned at any time,
to give testimony in his own behalf. [261] The regent was instructed
to ascertain from the treasury officials whether Marquina should not
be required to post more than the usual amount of bonds in view of
the grave charges against him. It seems that the law already cited
requiring an annual deduction of one-fifth of the governor's salary to
cover residencia had been abrogated by a royal order dated February
13, 1782; hence there was some apprehension lest Marquina had not
deposited sufficient money. [262]
In compliance with these orders Marquina was relieved of his office in
September, 1792, and was sent to Laguna de Bay, about thirty miles from
Manila. After five months' delay, the investigation was inaugurated
and it was concluded by July 22, 1793, but Aguilar, the new governor,
intervened and suspended the sentence on the ground that Marquina
had not been given sufficient opportunity to defend himself. Up to
this time Marquina had not testified directly. Aguilar ordered that
the ex-governor should be brought to Manila and that a lawyer should
be appointed for his defense. This was done and the charges which
had been made against him were duly answered. This evidence could
not be incorporated in the official papers of residencia, for they
had been finished and closed by the regent, but it was forwarded to
Spain under separate cover. [263]
The official papers of Marquina's residencia, as formulated by the
regent of the audiencia, arrived before the Council of the Indies
in due time, together with Marquina's defense which had been sent
separately. The glaring injustice of the investigation as conducted
by Amparán and of the official evidence transmitted, was patent to
the fiscal of the Council. He refused to receive any testimony not
incorporated in the official papers of the case. Marquina was allowed
a retrial by the Council. This resulted in a further delay of three
years; during this period Marquina remained in the provinces with the
exception of the time spent in Manila giving testimony in his second
residencia, which was taken under the direct supervision of Governor
Aguilar. Immediately after his second trial Marquina was transferred
to Mexico, but he was obliged to deposit an additional 50,000 pesos
before his departure from Manila.
In the ultimate judgment Marquina was pronounced guilty of many
offenses in addition to those mentioned in the charges previously
outlined. He had shown favoritism in the dispensation of official
favors; he had authorized the expenditure of public money for private
ends; he had neglected defense and agriculture; he had been negligent
in the supervision of the various departments of real hacienda and
particularly of tobacco; he had infringed on the jurisdiction of the
royal audiencia. He had indulged in private trade and had granted
special favors to foreign merchants. [264]
The regent fined him 40,000 pesos outright and, moreover, he was
condemned to pay into the royal treasury an additional fine of 16,000
pesos to cover certain illegitimate profits made through granting
unlawful trading concessions to an Armenian merchant. This sentence
was not executed immediately, as it had to be confirmed by the Council
of the Indies. On review of the findings and recommendations of the
regent, the Council declared that since the proceedings at the trial
of Marquina had been irregular and the governor had already suffered
the consequences of his own misdeeds, the fine imposed by the judge
of the residencia in Manila might be reduced to 2000 pesos with costs
of trial. Marquina on October 12, 1797, asked to be excused from
the payment of the 2000 pesos, but the Council denied his petition,
declaring that he had been treated with great consideration and mercy
and that nothing more could be done in his behalf, especially since
he had not been adjudged innocent of the charges which had been made
against him. [265]
Marquina's trial illustrates all the characteristics, the delays,
terrors, and ramifications of a typical residencia of the seventeenth
and eighteenth centuries. Continued complaints against him caused
Marquina's residencia to be taken before the expiration of his
official term. The regent of the audiencia was commissioned by the
court to conduct the investigation because Marquina's successor
had not arrived. That magistrate was prejudiced against Marquina on
account of having witnessed the governor's continual malfeasance in
office. He was unable to conduct an impartial investigation, and
the audiencia, likewise prejudiced, would not intervene in behalf
of the ex-governor. The wrongs done to Marquina in his trial were so
patent that the Council of the Indies ordered a new hearing. A severe
sentence was finally passed by the judge in Manila, but it was modified
by the Council of the Indies through considerations of justice. The
residencia occupied ten years, and during the greater part of that
time the ex-governor remained in exile--a victim of his own misdeeds,
the faulty residencia system, and the hostility of the audiencia. The
customary severity of the residencia was only mitigated in this case
by the presence of an impartial governor, who, unlike most governors
whose desire was to harass their victims, sought to secure a fair
trial for his predecessor. To accomplish this he was obliged to work
against, rather than in co-operation with the audiencia.
The above method of conducting residencias of governors, presidents,
viceroys, and superintendents was modified, as already mentioned,
by the reform of August 24, 1799. The new law provided that the
court, instead of the new governor, should appoint the examining
judge. The latter was no longer empowered to pronounce sentence of
any sort. He was only to conduct the investigation in the future,
remitting the autos of the case to the Council of the Indies
for final determination and sentence. [266] Again, on March 16,
1797, the royal order of December 30, 1777, was re-enacted and the
practice was revived of deducting annually one-fifth of the salaries
of officials whose incomes were 8000 pesos a year or more. [267]
This law was again promulgated on January 18, 1848. Its purpose was
to secure the retention of a sufficient sum of money to guarantee
all losses incident to the residencia. It apparently continued in
force until July 7, 1860, when governors and captains-general were
declared exempt from these discounts. [268]
We shall now examine more particularly the jurisdiction of the
audiencia over the residencias of minor officials of the colony. It
has already been pointed out that the residencias of provincial
judges and governors, alcaldes ordinarios and reales oficiales were
taken by judges appointed by the president of the audiencia, with
appeal to the tribunal. These cases, under certain circumstances,
might be taken on second appeal to the Council of the Indies. The
practice in these investigations may be best understood by noting the
development of the law regarding them, for, as we have already noted,
the residencia was the product of years of administrative experience,
during which various methods were tried, and rejected or adopted as
they were found respectively inadvisable or efficacious.
The earliest cédula on the subject, that of November 17, 1526, ordered
that the audiencia should try all appeals from judges of residencia,
wherein the amount involved did not exceed 600 pesos. A law of Philip
II, dated 1563, forbade viceroys, presidents, and audiencias from
sending judges of residencia or other investigators against judges of
provinces, unless complaint had been lodged against those officials by
a person willing to post bonds and pay the costs in case the charges
proved to be false. [269]
The cédula of September 3, 1565, laid down the principle that the
residencias of officers appointed by viceroys and presidents should be
taken by commission of those who appointed them. [270] As regularly
appointed corregidores and alcaldes mayores held royal commissions,
[271] they did not, according to this law, give residencia to judges
appointed by the governor. The Council of the Indies, therefore,
should name judges to investigate the official conduct of its own
appointees. As a matter of fact, however, the Council delegated this
authority to the governor and audiencia. This latter practice was
authorized by a clause in the cédula of September 3, 1565, which
provided that residencias of the officials referred to should be
taken under supervision of the audiencias in the districts wherein
the officials resided. This meant that while the audiencia was not
to interfere in the taking of the residencia itself, the tribunal
was to see that the laws regarding residencias were faithfully
executed. The law of March 11, 1591, ordered that if the conduct of
corregidores, alcaldes mayores, and other magistrates demanded that
their residencias should be taken before the completion of their term
of office, the viceroys, presidents, or governors should appoint judges
for the purpose. [272] Nothing was said in this cédula relative to
the authority of the audiencia in this matter, but the law of January
19, 1608, gave to the audiencia the right to try residencia cases on
appeal from the sentences of these special judges.
The laws of June 3 and June 19, 1620, provided that the governor
and audiencia should decide in acuerdo whether the residencia of a
gobernador, corregidor, or an alcalde mayor should be taken. Neither
the governor nor the audiencia was to have complete authority in
the matter, but each should participate, the audiencia assisting in
the decision as to whether the case merited investigation and the
governor making out the commission and appointing the judge if an
investigation were necessary. The audiencia, alone, was authorized
to appoint judges of residencia for judicial officers only. [273]
The interference of the audiencia in the residencias of governors,
corregidores, alcaldes mayores, and other justices and ministers
provided by royal appointment was definitely forbidden by the cédula
of April 20, 1639, as this jurisdiction was declared to belong to
the Council of the Indies. [274] Although we have evidence that
the Council did exercise such jurisdiction, it was always on review
of cases appealed from the audiencias. While the above prohibition
forbade the audiencia from taking the residencias of these officials
it did not restrain the tribunal from participating in the decision
as to whether a residencia should be taken, or in the review of the
autos of residencia.
An illustration of the intervention of the Council of the Indies
in residencias of alcaldes mayores is shown in the case of Josef
Tormento, alcalde of Caragara. On June 6, 1786, he was sentenced in
residencia to a pecuniary penalty, perpetual deprivation of office,
and two years' exile from Manila. This sentence was confirmed in
review by the audiencia on October 8 of the same year. The Council
modified this sentence, however, approving the fine, but cancelling
the other provisions. [275] In 1803 the incumbent of the same post,
Antonio Mateo, was incarcerated by order of the audiencia, pending
investigation of the charge made against him that he had used
the funds of his office for private trade. It was shown, however,
that this official knew the location of a quicksilver deposit of
great value, whereupon the governor had him removed from prison,
ordering the suspension of the charges against him, notwithstanding
the protests of the oidores. The fiscal concurred in the action of
the governor. The audiencia appealed the case to the Council of the
Indies, alleging conspiracy between the governor and the fiscal. The
Council, however, on examination of the case, approved their action,
ordered the charges to be dismissed, and gave directions that the
alcalde mayor should be restored to his former position or given
another of equal category as soon as possible. [276]
Although the cédula of August 24, 1799, gave the audiencia the right
to conduct the residencias of corregidores and alcaldes mayores, this
case involved certain interesting features which should be pointed out
in this connection. In the first place, it shows the manner in which
the Council of the Indies exercised ultimate authority in matters of
residencia. Again, it reveals the influence which the fiscal and even
the governor might have in determining whether suit should be brought,
[277] and finally it indicates that expediency might constitute an
important factor in the ultimate results of a case of this kind.
The practice of granting jurisdiction over the residencia of an
official to the authority that appointed him seems to have been
followed repeatedly. This principle was enunciated in the cédula of
August 20, 1758, but on August 8, 1764, a royal decree authorized
viceroys and presidents to name judges of residencia for all officials
holding royal appointments, with the condition that the autos should
be forwarded to the Council of the Indies. This law was repealed on
April 23, 1769. [278]
The cédula of August 24, 1799, which has been mentioned several times
in this chapter, was a reform of the greatest importance in the history
of the residencia. Prior to its promulgation, all officials had to
give residencia, but this law abolished that universal requirement. It
provided that residencias of corregidores, alcaldes mayores, and
subdelegate-intendants should be taken only when charges had been
made against them. This might occur at any time during their term of
office, or at the close of their service. These investigations had to
be concluded within four months, but if charges were not made against
an official his past record was not investigated.
The length of time consumed in all residencias except those of
viceroys was limited to four months. The period allotted for these
investigations was divided into two parts. [279] During the first half,
edicts or notices of residencia were posted throughout the district
of the official concerned. These were printed in Spanish and in the
common dialect, so that natives and others concerned might read and
know that the official was giving up his post and that charges might
be brought against him, setting forth any misconduct, undue harshness,
tyranny or dishonesty of which he had been guilty during his term
of office. These notices invited them to register any complaints
which they might wish to make and gave them sixty days in which to
do it. At the close of this period the judge of residencia opened an
investigation in the town wherein the official under examination had
resided, usually the capital of the province. The actual trial of
residencia might consume sixty days, or it might be perfunctory in
its character and occupy a much shorter period, the entire question
of time depending on the amount of evidence presented against the
retiring official. On the other hand, as we have seen, the residencia
of a governor might occupy ten years.
If the judge were taking a residencia in the provinces he was
frequently delayed in arriving at his post of duty, owing to the
pressure of other business, or to the uncertainty of transportation
facilities. In that event, he could not open the judicial investigation
until the allotted period had almost transpired.
In the trial, two distinct lines of investigation were usually pursued:
charges which had been made against the official were investigated
and the records of his office were examined. The discovery was
frequently made through this procedure that the official had embezzled
money belonging to the government, usually investing it in private
ventures. The inquiry might show that he had been careless in the
execution of the duties of his office, remiss in his attention to
encomiendas, particularly neglecting the Indians thereon, or too
ignorant and incompetent to try properly, record, and transmit the
autos of the cases which had come to him in first instance. These
defects might not become apparent until they were revealed in this
examination.
The judge of residencia would seem to have been well occupied during
the time that he was conducting the investigation. He received and
reviewed all charges made. In addition to auditing the records of
the office, he had to pursue inquiries as to the truth of these
charges. He examined witnesses both for and against the defendant,
and was supposed to give the official under investigation every
opportunity to defend himself. He was relieved, however, of the
trouble and responsibility of checking up the financial accounts of the
official under residencia. This important matter was turned over to the
treasury officials, who ascertained shortages, and held the bondsmen
of the official under investigation responsible. [280] The judges
of residencia, and the oidores making investigations and reviewing
cases of residencia were ordered to confine their examinations to
"criminal and legal matters and charges which result against those
under residencia." [281]
After all the evidence had been taken and the case had been duly tried,
the judge of residencia was authorized to render sentence. Sentences
were executed by the examining judge if the penalty did not
exceed twenty-five thousand maravedís. The latter cases were not
appealable. If the fine were less than two hundred ducats and the
defendant desired to appeal, he was obliged to pay the fine or deposit
the amount thereof. His case would then be reviewed by the audiencia
and in order to effect this, notice of appeal had to be submitted in
sufficient time to permit the record of the entire case to be reduced
to writing. If, on review, the audiencia found that the defendant
was not guilty of the charges which had been brought against him,
the money taken as a fine or deposit was restored. If the amount
of the fine exceeded two hundred ducats, or if the defendant had
been convicted of serious crimes, the judge was authorized to take
the proper and necessary steps for the detention of the prisoner
and the seizure of his property pending a new trial in the higher
tribunal. [282] Cases involving more than one thousand pesos could
be carried to the Council of the Indies.
A thoroughly typical case, illustrating all of the ramifications of
a provincial official's residencia, was that of Francisco Fernández
Zéndera, alcalde mayor and military captain of the province of
Ilocos. [283] It was investigated first by a judge appointed by the
acuerdo, it was reviewed by the audiencia and it was finally carried
to the Council of the Indies. It was characteristic in another sense,
namely, in that twelve years passed before the matter was settled.
After Zéndera had occupied his post three years, complaints against
him were brought to the attention of the fiscal. In his capacity as
prosecuting official and as protector of the Indians, he made a motion
before the audiencia in acuerdo, that a judge of residencia should be
sent to conduct an investigation of Zéndera's official conduct. The
following charges against Zéndera had been sent to the governor, and
on the basis of these, the fiscal, governor, and audiencia decided
to conduct the investigation: First, Zéndera had compelled natives to
work for him on his own estates, building houses, granaries, fences,
tilling the soil and planting crops, from two hundred to three hundred
men having worked for him continually, without pay or food; second,
the arbitrary methods of this alcalde mayor left the natives without
money with which to buy their food or to pay their tribute; third,
not only were the men forced to labor, but the women were obliged to
sew, spin and embroider without pay, and the product of their labor
was confiscated by the alcalde mayor.
The audiencia and the governor, in acuerdo, having taken note of
these charges, commissioned Angel Moguel, chief secretary of the
government, to conduct the residencia of the alcalde. Moguel was put in
possession of the necessary documents and departed at once for Vigán,
the head city of the province. On November 7, 1782, he posted notices
to the effect that Zéndera's residencia was to be taken, calling on
the residents to make formal charges against him. Moguel suspended
Zéndera from office and accepted 20,000 pesos from two of his friends
as bonds to cover the residencia, this sum offsetting the valuation of
the properties for which Zéndera was responsible. These were additional
to other bonds which Zéndera had posted on his accession to office.
For some unassigned reason, only twenty-five days were allowed for the
filing of complaints, but during this time eighty-eight charges were
made, most of which were variations of those mentioned above. Zéndera
was said to have been uncompromising in his administration of justice;
he had imposed excessive fines; he had imprisoned the natives without
giving them opportunities for defense; he had refused to allow them
to appeal their cases. [284] Not being a lawyer, he lacked sufficient
qualifications for the proper conduct of trials; moreover he had
refused to employ a teniente or asesor. He had failed to supervise
and enforce the instruction of Spanish, and he had done nothing to
assist in the education of the natives. Zéndera was charged with
having suppressed all commerce except his own, going so far as to
arrest merchants of other provinces who came to Ilocos to trade. This
he had done to secure his own monopoly in commercial matters. He had,
moreover, suppressed the trade of the Ilocanos with the Igorrotes. He
had failed to segregate the men from the women in the provincial
prison. It was said that he had neglected to publish the governor's
edicts (bandos) from Manila. He had shown partiality to Spanish priests
in preference to the native clergy. He was charged with having taken
rice as tribute at a low price, turning it over to the treasury
officials at a higher rate, thereby making great profits for himself.
Zéndera was found guilty of almost every charge made against him. The
sentence of residencia was pronounced by the judge commissioned for
the purpose on August 13, 1782. The defendant was fined 8000 pesos and
sentenced to deprivation of office for a period of eight years. [285]
The audiencia, in turn, reviewed the case, and that tribunal, on May
20, 1783, finding the autos of the case incomplete, ordered Moguel
back to Vigán for a second time to complete the investigation. The
judgment of residencia after this second investigation was made was
the same as before, and the case was carried to the Council of the
Indies on November 7, 1785. It seems that in this case the audiencia
was somewhat slow in granting the appeal, for on February 19, 1788,
a cédula was expedited which ordered the audiencia to forward all the
autos in its possession bearing on the case. The final judgment of the
Council of the Indies was rendered March 23, 1794. The fine of 8000
pesos was reduced to 3000 pesos, and the portion of the sentence which
had ordered a deprivation of office was remitted altogether. [286]
The cédula of August 24, 1799, already referred to, greatly altered
the applicability of the residencias to provincial as well as
insular officials. Its greatest importance was due to the fact that
it authorized investigations of corregidores, alcaldes mayores,
and sub-delegate intendants only when charges were made against
them; otherwise it was assumed that their official conduct had been
satisfactory, and accordingly no residencias were held. Before the
officials could be transferred to other posts they were obliged to
show certificates of clearance from former positions. The audiencia
was given final jurisdiction over the residencias of these officials,
with inhibition of appeal. At the same time the tribunal was denied
jurisdiction in any instance over the residencias of viceroys,
captains-general, presidents, governors, treasury officials, oidores,
and intendants. [287] After the suppression of the Council of the
Indies on March 24, 1834, the latter cases were finished in the
Supreme Tribunal of Justice, and that tribunal continued to exercise
this jurisdiction till the close of the nineteenth century. [288]
The cédula above referred to abolished the residencias of tenientes
letrados, alcaldes ordinarios, regidores, clerks, procurators,
syndics, alguaciles, and other minor officials. In place of the formal
investigation and judgment after the term of office was completed,
the audiencia was given more complete control over their official acts,
with the duty of seeing that justice was administered, jails inspected
and kept clean, prisoners given a speedy trial and not molested with
undue exactions, and the police supervised. The tribunal was also
empowered to see that the ayuntamientos conducted their elections
impartially and that the municipal officials executed their duties
faithfully. In this way the formal investigation at the close of
the term of these minor officials was replaced by a more efficient
supervision of their acts by the audiencia. The constitutional
reforms of the early nineteenth century gave to the audiencia original
jurisdiction over the trial of judges of first instance, with appeal
to the Supreme Tribunal of Justice. This authority was suppressed
in 1815, and continued so until 1835, when it was restored to the
audiencias of the colonies.
Although the reform of August 24, 1799, recognized the residencias of
alcaldes mayores, tenientes, and corregidores, merely transferring
jurisdiction over these to the audiencias, it would seem that this
investigation retained less of its former severity from this time
onwards. In fact, some authorities infer that the residencia was
abolished after 1799. [289] This was not the case, however, as the
residencia was recognized by laws promulgated as lately as 1870. [290]
The audiencia also had jurisdiction over the residencias of galleon
officials. These had to submit to residencia at the termination of each
voyage. An oidor was designated by the governor for the inspection of
the ship, for the examination of its papers, for the consideration
of complaints against the officers of ill-treatment of passengers
and crews during the voyage. [291] An investigation was conducted on
the occasion of the loss of a ship. Then a thorough inquiry was made
in an endeavor to discover negligence on the part of the admiral,
general, or other officials. The exercise of a similar authority
over cases involving the loss of galleons has been discussed in the
preceding chapter.
In pursuance of this authority, Magistrate Torralba was commissioned
in 1710 to take the residencia of the officers of the galleon "Nuestra
Señora del Rosario y San Vicente Ferrer", which was wrecked in the
Straits of San Bernardino on the voyage from Acapulco in 1709. [292]
As great diligence had been shown by them in landing the treasure and
sending it overland, the matter was dropped. A similar investigation
was conducted in 1743 in the case of the galleon "Cobadonga", which
was captured by the British. The charge was made that neither the
"Cobadonga" nor her convoy, "El Pilar", had offered any resistance,
and that the latter had deserted the galleon and had taken refuge
in flight. [293] The officers were arrested and thrown into prison
on charges brought by the fiscal, but they were cleared in the
investigation which proved that the ships were not in a condition
to fight.
The various laws and cases which have been cited in this chapter show
that the trial of residencia of captains-general, treasury officials,
oidores, intendants, alcaldes mayores, and alcaldes ordinarios was
a judicial function over which the audiencia had a large share of
authority. It is safe to say that no residencia was ever taken in
the Philippines, after the audiencia had been established there,
in which that tribunal did not exercise some degree of authority. As
the laws and regulations of the residencia varied at different times,
the extent of the jurisdiction of the audiencia in this matter was
not always the same. The audiencia either assisted in the examination
of the charges or in the designation of the judge. The magistrate
selected was usually an oidor. Oidores were liable to designation to
conduct inquiries, and the audiencia, as a tribunal, tried these cases
in review. The tribunal exercised supervision over the work of the
investigating judge. The case was either finished in the audiencia,
or reviewed there and appealed to the Council of the Indies through
the action of the audiencia. The Council of the Indies was the supreme
arbiter in all cases, prior to 1799. Subsequently the Council, or the
Supreme Tribunal of Justice after 1834, retained final jurisdiction
over the residencias of the higher officials only. In the residencias
of provincial or local officials the jurisdiction of the audiencia
was final.