THE AUDIENCIA AND THE GOVERNOR: GENERAL RELATIONS
The audiencia was brought into closer and more frequent relationship
with the governor than with any other authority in the colony. The
governor was president of the royal audiencia and hence was nominally
its chief magistrate. This brought him into touch with its functions
as a court. The governor was chief executive of the colony, and
in that capacity was responsible for administrative, financial, and
military affairs. It will be noted that the audiencia, in various ways,
exercised powers of intervention in all of these matters.
The official title of the governor of the Philippines up to 1861 was
governor, captain-general, and president of the royal audiencia. [370]
a combination of three important functions. In his capacity as
governor, he was chief executive of the civil government, with
authority over all administrative departments, including finance,
and over ecclesiastical affairs. As captain-general, the governor
was commander-in-chief of the military forces, with the special duty
of providing for the defense of the Islands. As president of the
audiencia, the governor retained his authority as executive while
entering the field of the judiciary. Though he could not act as
judge, himself, nevertheless we have seen in former chapters that
he exercised extensive authority over the tribunal, its procedure,
and its magistrates.
It will accordingly be our aim in this chapter to discuss the
general relations of the audiencia and the governor. These include
administrative, financial, and ecclesiastical functions, and those
involving the government of the provinces. To these will be added
such further observations as remain to be made concerning the judicial
relations of the governor and audiencia, leaving apart for discussion
in another chapter as an integral subject, the military jurisdiction
and the respective participation of the audiencia and the governor
in the matter of defense.
Generally speaking, the governor of the Philippines occupied the same
relative position, within and without the colony, as did the viceroy in
New Spain, and during the greater part of the history of the Islands he
was independent of the government of New Spain and was responsible to
the Spanish court directly, in the same manner as the viceroy. [371]
The independence of the Philippine government may be said to have
been practically complete, with such exceptions as will be mentioned
in a subsequent chapter, treating of the ad interim rule, after the
re-establishment of the audiencia in 1598. The governor was the chief
administrative official of the colony, and the provincial governments
derived their authority from him; he was the royal vice-patron,
and in this capacity he bore the same relation to the church in the
colony as the king did to the church in Spain. Likewise as the king
was the theoretical head of the state, and was limited and assisted
in the exercise of his authority over the empire by the Council of
the Indies, so the governor and captain general of the Philippines
(and the viceroy in New Spain and Perú) was the head of the colony,
and was limited by the audiencia. The audiencias of all the colonies
were equally dependent on the Council of the Indies.
Professor Bourne very aptly characterizes the office of governor of
the Philippines and its relations to the audiencia. He writes:
The Philippine Islands were constituted a kingdom and placed under
the charge of a governor and captain general, whose powers were
truly royal and limited only by the check imposed by the Supreme
Court (the Audiencia) and by the ordeal of the residencia at the
expiration of his term of office. Among his extensive prerogatives
was his appointing power which embraced all branches of the civil
service in the islands. He also was ex officio the President of
the Audiencia. His salary was $8000 a year, but his income might
be largely augmented by gifts or bribes. The limitations upon the
power of the Governor imposed by the Audiencia, in the opinion of
the French astronomer Le Gentil, were the only safeguard against
an arbitrary despotism, yet Zúñiga, a generation later pronounced
its efforts in this direction generally ineffectual. [372]
Juan José Delgado, who gives us perhaps the most comprehensive and
realistic survey of the Philippines of any of the ecclesiastical
historians of those Islands, describes the nature of the office of
governor as follows:
The governors of these Islands have absolute authority to
provide and to attend to all that pertains to the royal estate,
government, war; they have consultations in different matters with
the oidores of the royal audiencia; they try in the first instance
the criminal causes of the soldiers, and they appoint alcaldes,
corregidores, deputy and chief justices of all the Islands for
the exercise of government, justice, war, ... and besides many
other preëminences conceded by royal decrees to the presidency
of the royal audiencia and chancery. [373]
The governors of these Islands [he wrote] are almost absolute, and
are like private masters of them. They exercise supreme authority,
by reason of their charge, for receiving and sending embassies to
the neighboring kings and tyrants, ... they can make peace, make
and declare war, and take vengeance on those who insult us, without
awaiting any resolution from the Court for it. Therefore many kings
have rendered vassalage and paid tribute to the governors, have
recognized them as their superiors, have respected and feared their
arms, have solicited their friendship, and have tried to procure
friendly relations and commerce with them; and those who have broken
their word with them have been punished. [374]
The governor of the Philippines, like the viceroy of New Spain,
was the administrative head of the colony, and as such exercised
supervision over all the departments of the government, likewise
over ecclesiastical affairs. He was directed to devote himself to
the service of God, and to labor for the welfare of the souls of the
natives and inhabitants of the provinces, governing them in peace
and quietude, endeavoring to bring about their spiritual and moral
uplift and their numerical increase. The governors (or viceroys)
were instructed by the laws of the Indies
to provide all things which are convenient for the administration
and execution of justice, ... to maintain the government and
defense of their districts, exercising very special care for the
good treatment, conservation and augmentation of the Indians,
and especially the collection, administration, account and care
of the royal exchequer.
They were instructed, in short, to do all for the provinces under
their charge [375] that the king, himself, might do. The laws of the
Indies ordered the audiencia, the religious authorities and the civil
officials to acknowledge the governor [or viceroy] as their chief. The
laws emphasized as the special duties of the governor the supervision
and augmentation of the finances, the defense of the colony, and
general supervision over all officials, executive and judicial,
central and provincial.
Foremost among the responsibilities of the executive was that of
supervising the administration of the colonial exchequer. In this,
however, he was assisted by the audiencia. The customary oficiales
reales were among the first officials created for the Philippine
government, and they were responsible to the governor. At the time of
the creation of the audiencia, it was ordered that the governor and
two oidores should audit the accounts of the oficiales reales, but
this power was transferred to Governor Dasmariñas when the audiencia
was removed in 1589. In 1602 the right of inspection of accounts was
returned to the oidores, [376] but the governor, it was stated, as
executive head of the government, was responsible, and he exercised
direct intervention in these matters, limited only by the annual
inspection of the oidores. During the greater part of the history of
the Islands the governor exercised supervision over the collection and
the administration of the public revenue, in accordance with the law,
[377] and he was required to be present at the weekly meetings of the
junta de hacienda, of which two magistrates were members, there to
pass on all financial measures and to authorize expenditures. [378]
The governor had control over the sale of offices, jointly with the
oficiales reales, but from the correspondence on these subjects it
is clear that the audiencia was designed to check the governor's
authority in that particular. [379] The governor was forbidden to
authorize extraordinary expenditures from the treasury without express
royal permission, except in cases of riot, or invasion. [380] This
regulation was almost impossible of faithful execution, and as his
duties increased and became more complicated, the governor was unable
to give as complete attention to these matters as the laws of the
Indies prescribed. Although the governor had these financial powers,
he could not decide cases appealed from the oficiales reales. These
were regarded as contentious cases and as such were resolved by
the audiencia. [381] In Mexico and Lima, wherein there were higher
tribunals of accounts than in Manila (contaduría mayor), the audiencia
did not have this jurisdiction.
From 1784 to 1787 the governor was temporarily deprived of the
leadership in financial matters by virtue of the Ordinance of
Intendants, but the oidores retained membership in the colonial board
of audits, together with the intendant, who had taken the governor's
former place as the responsible head of the colony's finances. In 1787
the governor was restored to his former position with respect to the
exchequer, with the official title of superintendente subdelegado de
real hacienda. It is sufficient to say that the governor's relation
to this new department did not materially lessen the authority of
the audiencia with regard to the finances of the colony.
Although the appointing power was claimed by many governors as their
sole prerogative, the audiencia imposed a very decided check on
their exercise of this authority. The governor had the right to make
appointments in all departments of the government, except in certain
so-called offices of royal designation, to which the governor made
tentative appointments, subject to subsequent royal confirmation. [382]
Although the law of February 8, 1610, exempted appointments made by the
governor of the Philippines from the necessity of royal confirmation,
[383] in practice these nominations were sent to the court for approval
in the same manner as were those from Spain's other colonies.
The audiencia intervened in the matter of appointments in two ways. In
case it succeeded to the government on the death of the governor
the tribunal exercised all the prerogatives of appointment. [384]
When the governor was present he was obliged to refer the names
of all candidates to the acuerdo. [385] This was made necessary
because the governor, being new to the Islands and unfamiliar
with local conditions, was not so well fitted to pass upon the
merits of candidates for office as were the oidores who had become
permanently identified with the interests of the colony and whose
opinion was of weight in these matters. Thus it came about that
the audiencia exercised joint authority with the governor in making
appointments. [386] The question of the relative authority of the
audiencia and governor in making appointments was a source of conflict
throughout the history of the Islands.
When the governor submitted the name of a candidate to the acuerdo it
was the duty of the magistrates to furnish all the information possible
regarding the character, fitness, and ability of the person under
consideration for the position. If the audiencia and the governor
should disagree and the latter still persisted in an appointment,
it was the duty of the audiencia to submit, forwarding all evidence
relative to the candidate to the Council of the Indies, the latter body
ultimately taking such action as it deemed best. When the nominations
of the governor reached the Council of the Indies for confirmation,
that tribunal relied extensively upon information furnished by the
audiencia concerning the candidates under consideration.
As already stated, the king retained the right to appoint certain
so-called "officials of royal designation." These varied at different
times, but, in general, included corregidores, alcaldes mayores,
oficiales reales, oidores, regents, and, of course, viceroys,
governors, and captains-general. [387] All these officials,
except those last named, could be temporarily designated by the
executive. Although the law placed corregidores, alcaldes mayores,
and oficiales reales in this category, their designation by the court,
like the confirmation of encomiendas, was usually nominal. Many of
these offices were filled in Spain and Mexico, while some appointees
were named from the Philippines, and probably in the majority of the
latter cases the royal appointment merely amounted to a confirmation of
a temporary appointment made by the governor. The post of governor of
the Philippines was filled temporarily by the viceroy of New Spain
until about 1720. In the same manner the governor of Ternate was
named by the Philippine executive, with the advice and consent of
the audiencia. These ad interim appointments were valid until the
king made them regular by confirmation, or sent persons from Spain
to hold them permanently.
When a vacancy occurred among the offices of royal designation,
it was the governor's duty to forward a list of candidates, or
nominees, and from this list the king, or the Council of the Indies
in his name, made a permanent appointment. [388] In the meantime
a temporary appointment was often made by the governor, in acuerdo
with the audiencia, and the name of the appointee was placed first
on the list remitted to the court. This procedure was followed in
the appointment of encomenderos, corregidores, alcaldes mayores, and
treasury officials. It was seldom done in the cases of oidores and
fiscales, who, because of their special or professional character,
were usually sent directly from Spain or from New Spain. Unless there
were special reasons to the contrary, for instance, the filing of an
adverse report by the audiencia, or a protest on the part of residents,
the governor's temporary appointments were usually confirmed and
made permanent. Temporary appointees with salaries exceeding 1000
pesos a year only received half-salary until their appointments were
confirmed. [389] At least two years and frequently four transpired
before the regular appointment arrived, and as the terms were from
three to five years for the majority of these offices, the governor's
candidate was usually the incumbent a considerable portion of the time,
whether his nomination were confirmed or not. Neither relatives nor
dependents of governors or oidores could be legally appointed to any
office. [390] This mandate was often violated, as we shall see. It
was the duty of the regent and the fiscal to certify to the court
that appointees were not relatives of the governor or oidores. [391]
In an instruction directed exclusively to the Philippine audiencia,
the king ordered the tribunal to see that offices were bestowed only
upon persons "who by fitness or qualifications are best able to hold
them." [392] It appears that this law, or another promulgated about
the same time, gave to the fiscal and the oidores the right to pass on
the qualifications of encomenderos, alcaldes mayores, corregidores,
and other minor officials, on condition that preference should be
given to conquerors, settlers, and their descendants. Governor Alonso
Fajardo remonstrated that this new practice hampered the work of the
governor, and created difficulties between him and the oidores. [393]
A yet later law, dated October 1, 1624, gave the governor (and viceroy)
the right to make temporary appointments of all judicial officials,
without the interposition of the audiencia. [394] On February 22,
1680, the power of making permanent appointments of alcaldes mayores
and corregidores was vested in the governor and the audiencia. [395]
In view of this law, the Audiencia of Manila claimed and actually
exercised authority in the appointment of provincial officials from
that time onward.
Vacancies in the audiencia itself were filled temporarily by the
governor. In case the audiencia were governing ad interim it could
designate magistrates from the outside to try cases, but the power
of the audiencia, as provided by these laws, was secondary to that of
the governor if he were present. Under no circumstances were permanent
appointments to the audiencia to be made by any authority other than
the king and Council. In case there were a vacancy in the office
of fiscal the junior oidor was authorized to fill the place. [396]
Conversely, it also occurred that when an extra oidor was needed,
the fiscal might be temporarily designated to fill the place. [397]
It was also ordered that if the fiscal could not be spared from his
office on account of his numerous and important duties, a lawyer
might be named to act as fiscal ad interim. [398] In New Spain
an alcalde del crimen took the place of the junior oidor when the
latter occupied the fiscalía. There were no alcaldes del crimen in
the Philippines, but the cédula of February 8, 1610, above cited,
was always quoted as furnishing justification for the appointment
of oidores ad interim by the governor. [399] In a subsequent chapter
we shall refer to several occasions on which this was done; indeed,
entire audiencias were re-constituted by certain governors.
The audiencia was required to see that the appointees designated
by the governor duly complied with the requirements of residencia;
likewise that they were properly installed in office, and that they
did not serve in offices for which they had neither authority nor
qualifications. [400] Notwithstanding the variety and the conflicting
character of the laws bearing on matters of appointment, a careful
consideration of law and practice leads to the conclusion that the
governor, as chief executive, had the power of making appointments,
but in the execution of this duty he was ordered to consult the
audiencia, although, strictly speaking, he was not obliged to follow
its advice. If there were good reasons for not appointing an official
recommended by the governor, the oidores could send representations
to the Council of the Indies, setting forth their objections, and the
Council might confirm or nullify the appointment, as it chose. The
audiencia could make appointments if it were in temporary charge of
the government. The authority which the audiencia exercised in regard
to appointments varied according to circumstances. If the governor
were new at his post, weak or indulgent, the audiencia exercised more
extensive authority than was conceded by the laws. If the governor were
experienced, efficient, and a man of strong personality and dominating
character, the tribunal exercised less power in regard to appointments,
and, in fact, in all other matters pertaining to government.
Closely related to the appointing power was the duty which the governor
had of submitting annually to the court a list of all the officials
of the colony, with comments on the character of their services, and
with recommendations for promotion or dismissal from office. [401] The
oidores were included in these reports. [402] It was also the function
of the governor to report on the administration of justice. [403]
The governor was instructed to inform the court in case the oidores
engaged in forbidden commercial ventures, either directly, through
the agency of their wives, or through other intermediaries. [404] He
was authorized, moreover, to investigate and report on the public and
private conduct of the magistrates and of their wives as well [405]
and to exert himself to see that their actions were at all times in
consonance with the dignity of their rank and positions and of such a
character as would reflect credit on the royal name and entitle them to
the respect of the residents of the colony. The confidential reports
of the governor to the king might include all of these matters, and
many others too numerous to mention. On the other hand, the audiencia,
as a body, was authorized to direct the attention of the Council to
any irregularities of which the governor might be guilty, and thus
a system of checks and balances was maintained. [406] However, the
oidores were forbidden to make charges individually. This injunction
was so frequently disregarded that it was practically a dead-letter.
Typical of the governor's authority over all the officials of the
colony, and incidentally over the oidores, was his power to grant
or withhold permission to marry within the colony. The earlier laws
on this subject absolutely forbade viceroys, presidents, oidores,
alcaldes, or their children to marry within their districts. [407]
Deprivation of office and forfeiture of salary were the penalties
for infraction of these regulations. These laws were followed by
others which required the president (viceroy or governor) to report
immediately to the Council the case of any magistrate guilty of
violating the law forbidding the marriage of officials. [408] It
was not until 1754 that a law was promulgated providing for special
marriage dispensations to be granted by the Council of the Indies upon
the recommendation of the president of the audiencia. [409] In 1789
the president was authorized to concede permission to accountants
and treasury officials, but not to oidores. [410] The prohibition
was applied to magistrates until 1843, and the only condition under
which they were permitted to marry within the colony was by virtue
of the express permission of the supreme tribunal in Spain. In 1848,
the president of the audiencia was authorized to grant marriage
licenses to magistrates on condition that the contracting parties
were "of equal quality, customs, and of corresponding circumstances,"
permission having first been obtained from Spain, [411] the president
alone passing upon the requisite qualifications.
The chief reason for the restrictions and prohibitions placed
on the marriage of magistrates seems to have been the conviction
that officers of justice would compromise themselves by marriage,
acquiring vast numbers of relatives and dependents, thereby making
it impossible to render impartial decisions or administer justice as
evenly and dispassionately as they would were they not so familiarly
known in their districts. It was also necessary to prevent officials
from lowering their dignity by union with natives and half-castes. The
marriage of officials with natives of the Philippines was not regarded
with favor at any time by the Spanish government.
It seems that the above prohibition did not apply with the same force
to fiscales as to magistrates. This is illustrated by a case which
arose in 1804 when Fiscal Miguel Díaz de Rivera was deprived of his
office by royal decree for having married without the permission of
the Council of the Indies. [412] The fiscal had married the daughter
of the corregidor of Pangasinán, who was a colonel in the Spanish
army. The mother of the girl was a Eurasian from Madras, and had
been a subject of Great Britain. Under the date of May 27, 1805,
Díaz sent a petition to the king, bearing the endorsement of Governor
Aguilar, demanding his restoration to office. Among the reasons cited
for the proposed reinstatement of the fiscal, it was said that Díaz,
being a prosecutor and not a magistrate, was not subject to the same
regulations and conditions as the oidores, whose judicial duties
rendered impossible their marriage within the Islands. Aguilar stated
that the purpose of the law had been to debar ministers from making
such marriage connections as would diminish the respect which the
community should have for them as oidores of a royal audiencia, thus
undermining their standing as magistrates. In this instance there
could have been no case of degradation because of the high standing
of the mother and father. Moreover, a fiscal could not be regarded
as a magistrate, and the same laws did not apply to both classes of
officials. As an outcome of these representations Díaz was restored
to office by the royal decree of October 13, 1806. [413]
A duty similar to that just noted, inasmuch as it was indicative
of the authority of the governor over the oidores, was his power
to examine and try criminal charges against the magistrates. A law
which was in force from 1550 to 1620 ordered that the president
should be assisted in the trial of criminal charges against oidores
by alcaldes ordinarios. On September 5, 1620, this law was modified
by the enactment of another, which ordered that in cases involving
imprisonment, heavy fines, removal from office, or the death penalty,
the governor should make the investigation and refer the autos to
the Council of the Indies for final judgment.
This law still left the trial of oidores for misdemeanors in the
governor's jurisdiction, but in cases of sedition or notorious offenses
which required immediate action in order to furnish a public example
for its effect on the natives, the president was required to confer
with the audiencia, and to act in accordance with its judgment. By
this law the president was forbidden to make more than temporary
suspensions of oidores from their offices. In no case could they be
permanent unless first approved by the Council of the Indies. [414]
Notwithstanding this law, it may be noted that certain governors
went so far on some occasions as to remove, imprison, and exile
magistrates and to appoint a new audiencia. [415] The judicial power
of the governor over such cases was further altered by the Royal
Instruction of Regents of June 26, 1776, by which he was forbidden
to impose any penalty on the oidores without the concurrence of the
acuerdo and the regent. [416] The president and the acuerdo could
rebuke and discipline oidores, privately, when their conduct demanded
it. Even on such an occasion as this the magistrate was to be given
full opportunity to defend himself. If a private investigation of
the conduct of an oidor were necessary, the inquiry could be still
conducted by the senior magistrate. [417] Oidores, on the other hand,
had no jurisdiction over the trial of charges against the president,
unless it were in his residencia. In this event the investigation
might be conducted by a magistrate designated by the governor or by
the Council of the Indies. [418]
Aside from his executive and military duties, the governor was
president of the royal audiencia. This arrangement had the advantage
of giving him an opportunity to know and appreciate the legal needs
of the colony. It brought him in constant contact with judicial minds,
and his position in this regard was no doubt calculated to keep him in
the straight and narrow path of the law. Nevertheless, the governor,
who was usually a soldier, but seldom a lawyer, did not participate
as a magistrate in the trial of cases, and his activities in the
tribunal were directive, rather than judicial. His opinions in all
legal and administrative matters were prepared by his asesor. [419]
As president of the audiencia the governor exercised two important
powers. One authorized him to divide the audiencia into salas and to
designate oidores to try cases within the tribunal, to inspect the
provinces, to take residencias, or to attend to semi-administrative
matters, such as have been noted in the preceding chapter. [420]
The other was the power to decide whether a contention was of
judicial, governmental, military, or ecclesiastical character, and
to assign it to the proper department or tribunal. [421] This power
was significant because it made the governor the supreme arbiter
between all conflicting authorities in the colony. Frequently he
decided disputes between the audiencia and the ecclesiastical courts,
between the audiencia and the consulado, or between the oidores and
the oficiales reales in matters relative to the jurisdiction of these
tribunals over questions at issue.
While the magistrates were allowed to proceed practically without
interference in affairs of justice, the governor was instructed to keep
himself informed concerning the judicial work of the audiencia. [422]
While forbidden to alter the judgments of the tribunal or to tamper
with its sentences, [423] he could excuse or remit fines with the
consent of the oidores. The governor could commute sentences in
criminal cases. The final pardoning power rested with the king and it
was exercised upon the recommendation of the governor or the prelates
[424] and the Council of the Indies. There were exceptional occasions,
however, on which the governor assumed the responsibility of pardoning
criminals.
After the creation of the office of regent in the audiencias of
the colonies, in 1776, the governor's position as president of the
audiencia became purely nominal, the regent actually officiating as
chief justice, though the president was still legally required to
affix his signature to all judicial decisions of the tribunal. The
frequent and extended absences of the governor from the capital and the
multiplicity of his administrative duties prevented him from attending
to these matters with requisite promptness, and injustice consequently
resulted from the requirement. Many complaints were made from 1776
onward against this condition of affairs, with the result that a
modification in the existing law was made on October 24, 1803, making
valid the signature of the regent to all decisions of the audiencia,
when the governor was absent from the colony on expeditions of conquest
or tours of inspection. [425] At all other times the governor, as
president, affixed his signature to all legal acts and autos, although
he did not participate in their decisions. The law remained thus
until 1861, when the governorship was separated from the presidency,
the acuerdo was abolished, and the regent was made president of the
audiencia with authority to sign all judicial decisions. [426]
We have already noted that the governor exercised special judicial
powers, independent of the audiencia. Among these the military
jurisdiction stands pre-eminent, and it will be discussed separately in
the following chapter. The governor was also empowered to try Indians
in first instance, with appeal to the audiencia. [427] The actual
trial of these cases, however, was delegated to the alcaldes mayores
and corregidores with appeal to the audiencia. It was impossible
for the governor, occupied as he was with the multitudinous affairs
of his office, to concern himself personally with the thousands of
petty cases among the Indians, or between Indians and Spaniards. He
had jurisdiction over suits involving the condemnation of property
through which public roads were to pass. [428] The special jurisdiction
of the governor, assisted by the audiencia, over cases affecting the
royal ecclesiastical patronage will be discussed later.
The laws of the Indies would seem to indicate that both the
governor and the audiencia exercised independently the power to
exile undesirable residents from the colony. It was stipulated that
if sentence of exile were passed by the governor and the offenders
were sent to Spain, the necessary papers, issued by the governor,
should accompany them. [429] If the decree of banishment were imposed
by the audiencia in its judicial capacity, the governor was forbidden
to commute the sentence or otherwise interfere in the matter. [430] The
audiencia frequently sentenced criminals or other undesirables to spend
terms of varying lengths in the provinces or in the Marianas. This,
as we have seen, was commonly one of the trials connected with the
residencia. We have a noteworthy illustration of the action of the
audiencia in acuerdo with the governor in the banishment of Archbishop
Felipe Pardo, who was exiled by the acuerdo of the audiencia and
Governor Juan de Vargas Hurtado, in 1684. Vargas was succeeded the
same year by Governor Curuzaelegui, who recalled the prelate from
exile and forced the audiencia to endorse the act of recall.
Closely related to the governor's jurisdiction over banishment
was his jurisdiction over cases of persons entering the Islands or
departing from them without royal permission. [431] He exercised
final jurisdiction here over civil and ecclesiastical authorities,
encomenderos, and private persons. The law forbade any person to enter
or leave the Islands without the royal permission, and the governor
was charged with the execution of this law. Encomenderos were not to
leave the Islands on pain of confiscation of their encomiendas. [432]
While the laws of May 25, 1596, and of June 4, 1620, gave authority
to the governor over the religious, relative to their entrance into
the Islands and departure therefrom, [433] the cédula of July 12,
1640, authorized the audiencia to enforce the law on this subject;
especially was the tribunal to see that no ecclesiastics departed for
Japan and China without the proper authority. [434] Although there
can be no doubt of the finality of the governor's jurisdiction in
this matter, yet the audiencia exercised an advisory power, and an
authority to check irregularities, particularly with a view to seeing
that the governor did his duty and fulfilled his obligations in the
matter. Numerous instances exist to show that whenever this subject was
treated in a royal order or decree, copies of the law were sent to the
audiencia for its information. On other occasions when there was reason
to believe that there had been irregularities in the procedure of a
governor, the audiencia complained to the Council of the Indies. This
was done for example in 1779 when Governor Sarrio conceded permission
for several priests to go to Mexico. This action the audiencia claimed
to be irregular, since the Council of the Indies had not been notified
or consulted. The king, on March 6, 1781, approved the action of the
governor on the basis of the laws above referred to. [435]
Besides his judicial authority the governor shared legislative
functions with the audiencia. We have noted in an earlier chapter
that the acuerdo passed ordinances for the domestic welfare and local
government of the colony. It prescribed rules and issued regulations
for merchants, encomenderos, and religious, in accordance with the
rulings for royal ecclesiastical patronage. The acuerdo developed
from the advisory power of the audiencia. The king in his first
decrees ordered the viceroys and presidents to consult with the
oidores whenever the interests of the government demanded it, [436]
and if necessary the opinions of the magistrates could be required
in writing. When an agreement was reached upon a given subject, they
voted in acuerdo and gradually that acuerdo came to have the force
of law. On many occasions the acuerdo prevailed over the governor's
will. There was no constitutional basis for this, and the acuerdo,
when it became a legislative function in passing ordinances and
overruling the governor himself, assumed prerogatives which were
never exercised by the audiencias of Spain. [437]
The laws of the Indies established the governor as the sole executive,
and forbade the audiencia to interfere with the government. [438]
The governor, occupied by his extensive administrative and military
duties, came to devote less attention to the judicial side of his
office, which was left almost entirely to the audiencia. So it
developed that the acuerdos in reference to judicial matters--the
establishment of tariffs and rules for their observance and the
dispatch of pesquisidores and visitors to the provinces, came in the
latter eighteenth and early nineteenth centuries to be increasingly
the concern of the audiencia. The authority of the tribunal in these
matters was recognized by the Constitution of 1812 and the reforms
made in pursuance thereof. [439]
In the same manner the acuerdo came to be recognized in governmental
and administrative matters. The enactments of these legislative
sessions of the audiencia were known as autos acordados. They
ultimately came to embrace a wide field. The audiencia passed laws for
the regulation of the provinces; it made rulings which the alcaldes
mayores and corregidores were to follow in the collection of tribute;
it prescribed their relations with the parish priests; it issued
regulations for the conduct of the friars and the ordinary clergy
relative to the royal patronage. Laws were passed for the encouragement
of agriculture and industry and the regulation of commerce. Rice,
tobacco and silk culture, the production of cinnamon and cocoanuts,
the breeding of fowls, the regulation of cock-fighting, cloth-making
and ship-building all came in for their share of attention in the
acuerdo. [440]
The audiencia, in the exercise of the acuerdo power, passed ordinances
for the enforcement of the laws forbidding the unauthorized departure
of persons from the Islands; it helped to fix the rate of passage
on the galleons and on the coast-wise ships. It made regulations for
the Chinese in the Parián, it prescribed the conditions under which
licenses might be issued to Chinese merchants and it passed ordinances
for the better enforcement of the laws prohibiting the immigration
of the Chinese. The acuerdo concerned itself with the maintenance
of prisons and the care of prisoners, the residencias of provincial
officials, the auditing of accounts, the collection of the revenue,
and the supervision of the officials of the treasury. Ordinances
were passed enforcing the general law which ordered that the natives
should not live together in Christian communities without marriage,
that they should attend religious ceremonies, that they should
be instructed in religion, and that they should not be exploited,
either by the civil or ecclesiastical authorities. It is, of course,
understood that the audiencia in no way trespassed the authority
of the church in issuing these regulations; indeed it was quite the
contrary; these ordinances were passed on the basis of the authority
of the royal patronage, with the design of assisting the vice-patron
(the governor) in the execution of his duties, and the church was
aided rather than impeded thereby. It must be remembered, of course,
that the governor, as president of the audiencia, presided in these
acuerdos, and that in most cases, actually, as well as in theory,
these autos acordados were his will.
There were many occasions in the history of the Islands when
the acuerdo was influential in the formulation of far-reaching
reforms. The well-known "Ordinances of Good Government," issued
by Governor Corcuera in 1642 for the observance of the provincial
officials, and repromulgated with modifications by Cruzat y Góngora
in 1696 and by Raón in 1768 were formulated by the acuerdo. [441]
Similarly were those formulated that were proposed by Marquina in
1790. The local regulations for the consulado, established in 1769,
were formulated by the audiencia largely on the recommendations
of the able fiscal, Francisco Leandro de Viana. In the same manner
the new plan of constitutional government given to the Philippines
in 1812 was drafted by the audiencia at the request of the Council
of the Indies. [442] Likewise the plans for the government of the
intendancy were submitted to the acuerdo by Governor Basco y Vargas
in 1785. Indeed, these, as well as the scheme of 1787-8, were actually
written by two magistrates of the audiencia, the former plan by Oidor
Ciriaco Gonzales Carvajal, subsequently intendant, and the latter by
Oidor Castillo y Negrete. [443]
There were occasions when the audiencia enacted administrative
measures in which the governor failed to participate. These were
especially noticeable during the administrations of Acuña, Fajardo, and
Corcuera--governors who spent much of their time away from Manila. A
more recent instance of this occurred in 1790 when the natives of
the province of Ilocos revolted against a tyrannical and dissolute
alcalde mayor. The acuerdo, notwithstanding the objection of Governor
Marquina, removed the offending official and appointed another, and
this action was subsequently approved by the king. [444] According
to the laws of the Indies the authority of removal and appointment
of such officials rested with the governor. [445] The tendency of the
acuerdo to act in civil affairs without the advice or presence of the
governor was checked by the royal order of November 12, 1840, wherein
the audiencia was ordered not to attempt to carry its acuerdos into
execution without the authority of the superior government. [446]
The evil effects of the audiencia's intervention in provincial
government were pointed out in 1842 by Sinibaldo de Mas, when he wrote:
"the government of the provinces is in charge of an alcalde-mayor,
who is at once judge of first instance, chief of political matters,
subdelegate of the treasury, and war-captain or military commandant,
for whose different attributes he is subject to authorities distinct
from one another." [447]
The audiencia was deprived of its acuerdo power in governmental
matters by the Constitution of 1812, but it was still retained in
judicial affairs. In 1815 and again in 1823 on the restoration of
the monarchy, the full acuerdo power as practiced before 1812 was
resumed by the audiencia. Official recognition of the acuerdo was
made publicly by Governor Torres, who succeeded Enrile on March 18,
1834. In his inaugural address this governor avowed his purpose to be
the extension and improvement of commerce, the army and agriculture,
"but, in order to develop these to their highest extent, and to
realize the utmost success in my administration," he said, "I count
on the co-operation of all the authorities, and particularly of
the real acuerdo, of which I have the honor to be president." [448]
The audiencia was finally excluded from the acuerdo in administrative
matters by the reform of July 4, 1861; since then the tribunal has been
purely judicial, the legislative functions of government having been
assumed by the Administrative Council (Consejo de Administración) of
which the president and fiscal, and usually two oidores at least were
members. Thus, even after the reform of 1861, the oidores continued
to participate in legislative functions, though the audiencia as a
body did not. [449]
Typical of the multitudinous duties of the governor, and illustrative
at the same time of his relations with the audiencia, were the various
subjects treated in the Instruction of the king to Governor Pedro de
Acuña, dated February 16, 1602, [450] which is chosen for citation
here because of its comprehensive character, and also because of
its availability. Beginning with the reminder that the governor
should confer with the Viceroy of New Spain whenever necessary, this
comprehensive paper treated first of the defense of the Islands against
the Japanese, and of the maintenance of a garrison in Mindanao. The
matter of tribute was taken up, and the desirability was shown of
having the natives pay tribute in kind rather than in money. It was
said that the latter method encouraged the natives to indolence,
for as soon as they had earned enough money to pay their tribute they
ceased work altogether. The governor was advised to consult with the
audiencia in regard to this matter. The king ordered the governor
to cut down expenses and to economize by the elimination of as many
offices as possible. He recommended, in particular, the abolition of
the offices of corregidor and alcalde mayor.
The king warned Acuña against a continuation of the dishonesty of
past governors in the lading of ships for New Spain. He declared that
thereafter the allotment of freight should not be left to the friends
of the governor, but the matter should be personally supervised by the
governor and an oidor. The frauds which had been common also in the
assignment of encomiendas in the colony must cease; to effect this the
governor was temporarily deprived of jurisdiction over this matter. Who
was to assign the encomiendas in the future was not divulged. [451]
The governor was instructed to see that the salable offices were
not conferred on the relatives of the oidores, nor given to his own
relatives, but that they should be disposed of to persons offering
the most money for them. It had been charged that governors and
audiencias had connived together in the past to deprive persons of
offices to which they were legitimately entitled. This had been done
by allowing favorites to hold more than one office, and by favoritism
in the sale of these positions. These abuses must be stopped, the king
said; it was ordered that in the future no person should be allowed
to hold more than one office, that as many of these as possible should
be sold, with unrestricted competitive bidding.
The governor and the fiscal were ordered to exercise care and diligence
in the inspection of the returning galleon, to see especially that
it brought no unregistered money from persons in Mexico. Acuña's
predecessor, Tello, had recommended that west-bound galleons should
stop at the Ladrones to leave priests and soldiers, and to minister
to the needs of Spaniards already there. This was authorized and
the governor was instructed to see that it was done. The governor
was also ordered on this occasion to make an investigation of the
audiencia. Complaints had been coming to the court for a long time
against the laxity of the tribunal in the administration of justice,
and of the commercial activities of the oidores. The governor was to
aid the fiscal in the prosecution of any oidores who were remiss, to
the extent of sending them under arrest to New Spain if the charges
against them justified such action.
This Instruction, it will be noted, required the governor to
intervene actively in practically all the governmental affairs that
came up in the colony. He was to exercise authority with regard to
defense, finance, and revenue. He was to exercise supervision over
provincial affairs so as to insure the good treatment of the natives
and the beneficent administration of the encomiendas. He was to give
his attention to the galleon trade and to the disposal of offices
within the colony. If doubt or difficulty arose in any of these
matters of administration, he was to demand from the audiencia, its
assistance, counsel, and support. The governor was also authorized
to see that justice was administered effectively, though he was not
to intervene directly in that matter, except to see that abuses were
eradicated. This Instruction shows that the governor was regarded as
the chief executive of the government. He was the responsible head in
the judicial, administrative, and military spheres. The audiencia,
on the other hand, had consultative functions, aimed to assist the
governor when he required it, but to restrict him when he sought to
exceed his powers. Instructions similar to this were given to many
succeeding governors. A citation of these would prove nothing new,
however.
In the same manner that the Instruction to Acuña gives us an idea of
the relative functions of the audiencia and the governorship in 1602,
so the criticisms of the able Spanish diplomat, Sinibaldo de Mas,
written in 1842, aid us in estimating their respective spheres in the
nineteenth century. This opinion is valuable because it summarizes
the result of two hundred and fifty years of the interaction of these
political institutions in the Islands. Mas showed the reason for the
establishment of the intendancy, and the conferring of added powers
upon the audiencia and criticized the relations existing between the
governor and these institutions in the following terms:
To set some balance to his power (that of the governor), because of
the distance from the throne, certain privileges and preëminences
have been granted to other persons, especially to the Audiencia,
even to the point of making of the latter a court of appeal
against the measures of the chief of the islands. Besides,
the revenues have been removed from his jurisdiction, and the
office of the intendant has been constituted, who obeys no
others than the orders communicated to him by the ministry of
the treasury from Madrid. It is very obvious that this single
point is quite sufficient to paralyze completely the action of
the governor-general. Besides, since there are many matters which
require to be passed on by distinct ministries, it happens that
two contrary orders touch the same matter, or that one order is
lacking, which is enough to render its execution impossible ... a
chief may detain a communication, even after he has received it,
if it does not suit him. This system of setting obstacles in the
way of the governor of a distant colony is wise and absolutely
necessary, ... there results rather than a balance among the
various departments of authority a confusion of jurisdictions,
the fatal fount of eternal discord. [452]
Mas made extensive quotations which were calculated to show "the
great confusion and contrariety of the orders to governor and
audiencia." This characteristic of the laws of the Indies has
repeatedly been referred to in this treatise, and we shall note
its results in a subsequent chapter dealing with the conflicts of
jurisdiction between the audiencia and the governor.
It is clear, therefore, that the decision of the governor was not final
in administrative affairs. Persons dissatisfied with his executive
actions or decisions in such matters were privileged to appeal to the
audiencia. If the findings of the tribunal differed from those of the
governor, and if the governor were still unyielding, his will was to
be obeyed but the case was thereupon appealed to the Council of the
Indies. [453] If the case were one of law and justice the governor,
on the other hand, was instructed to abide by the decision of the
audiencia, but he was privileged to carry the case to the Council of
the Indies. Thus it was that each of these authorities had a sphere
wherein its word was law, and its decisions final in the colony.
It was prescribed, however, that when there were differences of opinion
between the governor and the audiencia an effort should be made both
by the governor and the audiencia to avoid notorious disagreements
which would furnish a bad example to the natives, or otherwise degrade
the dignity of the royal tribunal or governor. Viceroys, presidents,
and audiencias were forbidden to take action in cases wherein there
was doubt as to their jurisdiction, or wherein there was a question
as to the advisability of taking final action. [454]
It would appear, therefore, from this survey of the laws, that the
audiencia was provided with ample means for restraining the action
of the governor. This it could do either by admonition, by appealing
from his decisions in administrative matters, or by blocking him in
the acuerdo. It was evidently the design of those who planned the
legislation of the Indies to guard at all times against the excesses
of an all-powerful executive. Such was certainly the purpose of
the establishment of the audiencia, both in the Americas and in the
Philippines. Taking into consideration the three hundred years of
Philippine history, however, it cannot be said that in the actual
operation of the government these precautions were entirely effective.
According to the laws of the Indies the governor, as executive, had
his own sphere in which the oidores were forbidden to interfere. [455]
In the light of our investigation, however, it would appear that
this exclusive field was exceedingly limited, and that even it was
continually subject to the encroachments of the audiencia. In the
exercise of his military authority the governor was independent
of the tribunal, although we shall see that on some occasions the
audiencia exercised military jurisdiction in an executive capacity,
and that there were times when the governor was glad to call upon
the audiencia for assistance in this matter. As president of the
audiencia the governor exercised considerable authority during the
first half of the history of the colony, but from 1776 to 1861 his
position as president was merely nominal, and at the latter date it
was abolished. He was the chief administrative official of the colony,
and his authority in this particular was more far-reaching than in
any other. In this, however, he was limited by the acuerdo of the
audiencia, which developed, as we have seen, from an advisory to a
legislative function, and ultimately had the effect of limiting the
governor in his hitherto exclusive field.