THE AUDIENCIA AND THE GOVERNOR: THE MILITARY JURISDICTION
The isolation of the Philippines, their distance from the home
country and New Spain, and their proximity to the colonies and trade
routes of rival nations, made the problem of defense the foremost
consideration. This was almost equally true of New Spain, Perú, and
the West Indian colonies, all of which were exposed to the attack
of outside enemies, though, of course, they were neither as isolated
nor as far away as the Philippines.
The necessity of being ever on the alert, constantly prepared to resist
invasion and to put down insurrection, gave a military character to
the governments of these colonies. The viceroys and governors were in
most cases trained soldiers. In addition to their other prerogatives,
they exercised the office and title of captain-general and as such
they commanded the military and naval forces of their colonies,
inadequate as these forces sometimes were. During the first two
hundred years governors and viceroys were largely selected on the basis
of their past military exploits on the continent or in America. The
administrations of the different Philippine governors of the sixteenth
and seventeenth centuries were characterized rather by their devotion
to military affairs than by economic improvements or administrative
efficiency. The supervision of judicial and governmental affairs
was thus left for long periods in the hands of other officials and
authorities, to be reclaimed or fought over by the governors when
their time was not taken up by military conquests.
It is practically agreed among all authorities who have written on
the Philippines that the leading consideration and necessity of the
government during two hundred years was military defense. These writers
comprise officials who saw service there and commentators who visited
the Islands and studied the government. In their recommendations and
comments they unite in urging that the defense of the Islands should
not be neglected; that the governor should be given adequate forces
with sufficient jurisdiction over them and over the other elements
of the colony to defend it successfully from invasion or insurrection.
It was the policy of the government throughout the history of
the Islands to conserve and keep intact the governor's military
jurisdiction. We have noted in an earlier chapter that one of the
main reasons for the suppression of the audiencia in 1589 was that
it interfered too extensively with the military jurisdiction of
the governor. During the decade following the extinction of the
tribunal, the military governors were given almost unlimited powers,
until their abuses led to the re-establishment of the tribunal to
guard against these excesses. We shall see in the following chapter
that the limitations placed upon them by the audiencia were always a
source of complaint by the various governors. Governor Acuña went so
far as to recommend the suppression of the tribunal because the needs
of the colony were military and had to be met by the firm action of
a soldier, without the interference of a body of magistrates. [456]
Similar recommendations were made by a majority of the succeeding
governors, but more especially by Fajardo, Corcuera, Vargas, Arandía,
and even by Anda who had risen from the post of oidor to that of
governor and military commander. [457]
The conviction that the government should be pre-eminently military was
not held by governors alone. Fernando de los Ríos Coronel, procurator
of the Philippines at the Court of Madrid in 1597, urged that the
government should be of a military character and that the practice
of sending soldiers to govern the Islands should be continued. [458]
This opinion was also advanced by Fray Alonso Sánchez, procurator
of the Islands at Madrid in 1589, and the emissary whose arguments
were chiefly instrumental in bringing about the suppression of the
audiencia. [459] Francisco Leandro de Viana, the most efficient
fiscal that the Islands ever had, and afterwards councillor of
the Indies, recognized the military attributes of the governor's
position. He urged a separation of the spheres of the governor and
the audiencia, recommending that the former should attend solely to
war and government, while the latter should confine itself to matters
of justice. [460]
This opinion was shared by Juan José Delgado, the able Jesuit
historian, who expressed the conviction that the "islands need
disinterested military governors, not merchants; and men of resolution
and character, not students, who are more fit to govern monasteries
than communities of heroes." [461] Delgado recommended that governors
of the Philippines should be picked men, selected for their military
qualities. The distance and isolation of the colony and its proximity
to the great empires of China and Japan made defense the first
requisite. Delgado believed that a soldier would be less amenable
to bribes and that commercial ventures would be less attractive to
him. [462] He recommended that governors should be absolute in affairs
of government and war and that all departments and officials of the
government should be subject to him.
While most of the independent commentators writing on the subject
seem to have conceived of the duties of the governor as savoring
more of war than of peace, we may note that Manuel Bernáldez
Pizarro, for many years a resident and official in the Philippines,
writing in 1827, urged that the governors there should be efficient
administrators rather than soldiers. It must be remembered, however,
that the political conditions in the Philippines during his period
were widely different from those of the seventeenth and eighteenth
centuries when the Islands were constantly exposed to the attack
of outside enemies and liable to insurrections within. The chief
problems of the nineteenth century were administrative, rather than
military. He pointed out that governors had already exhibited too much
of the militant spirit in dealing with the problems of government,
"not heeding the opinions and customs of the country, but depending
on the force of arms," or their asesores. [463] This had the effect
of causing dissensions between the governor and audiencia, and the
resultant discord had furnished a very bad example for the natives
and residents of the colony.
The characteristic tendency throughout the history, of the Islands
to lay stress on the military side of the governor's position
was commented on by Montero y Vidal, the modern historian of the
Philippines, in the following terms:
The authority of the governor-general is complete, and so great a
number of attributes conferred on one functionary, incompetent,
as a general rule, for everything outside of military affairs,
is certainly prejudicial to the right exercise of his duty;
... since 1822 the government has always devolved upon an official;
a general, and in the case of his death, a segundo cabo, and,
in case of the death of the latter, a commandant of the naval
station. [464]
The preservation of the peace and the maintenance of the defense
of the Islands was the chief responsibility and the most important
duty of the governor and captain-general. Although the audiencia was
ordered to do all that it could to assist, nevertheless the tribunal
was strictly forbidden to restrict or hinder the governor in the
execution of his military duties. [465] The governor's position as
commander-in-chief of the king's forces, and his pre-eminence in
military affairs, were generally recognized.
Notwithstanding the fact that the early laws conferred exclusive
military powers on the governor, a glance at three hundred years of
Spanish colonial history will show that the audiencias participated
in these matters in two different ways. In fact, an analysis of
the military jurisdiction shows the presence and the exercise,
in general, of two kinds of activity. These consisted, first, of
a special judicial system for the trial of persons under military
law and distinct from the civil jurisdiction, and second, of the
control and disposition of the military forces of the Islands, and
their utilization for defense. One, therefore, was judicial, the
other was administrative, but both of these forces of activity were
within the military sphere. The problem of this chapter, therefore,
consists in determining the conditions, circumstances, and extent of
the audiencia's participation in military affairs, and of its relation
to the authority and jurisdiction of the governor and captain-general.
As commander-in-chief, the governor was at the head of a special
judicial system for the trial of soldiers under the military
law. This judicial system was independent of the audiencia, and the
latter body, during the greater part of the history of the Islands,
was denied jurisdiction in these cases, even on appeal. [466] We
have already noted, however, the tendency of the law to excuse
these busy executives from direct participation in ordinary
judicial activities. Notwithstanding the governor's status in the
above-mentioned particular, he seldom intervened personally in
the trial of such cases. His position with regard to the military
jurisdiction was similar to his relation with the audiencia, of which
he was president, but over which he seldom presided.
The actual trial of the criminal cases of soldiers was conducted in
first instance by military tribunals and magistrates. Most prominent
among the latter were the castellán and the maestre de campo. The
captains, themselves, had certain judicial authority within their
companies. [467] Appeals were made from these military judges of
first instance to the captain-general. If there had been notorious
injustice or a grave infraction of the law in the trial of a case of
first instance, it was the governor's duty either to refer the case
to some other magistrate than to the one who originally tried it, or
to a special judicial tribunal. An oidor might be designated to serve
in this tribunal. When the magistrates served in this capacity they
were responsible entirely to the governor and were not identified
with the audiencia. Oidores frequently objected to this service,
but the governor was usually able to enforce these demands, which
were in accordance with the laws and approved by the home government.
The captain-general exercised the pardoning power. Under some
circumstances cases might be appealed to Spain, but in these suits,
most of which involved personal crimes and misdemeanors, the decision
of the captain-general or the local military tribunal was usually
final, if for no other reason than the fact that the soldiers in
Manila lacked the means to carry their cases further. Those cases
which were appealed usually involved principles of law desirable to
be tested by reference to a higher tribunal. The junta de guerra
de Indias received all appeals from the military officials of the
colonies and solved all questions of a judicial or administrative
character that were carried to it.
The junta de guerra consisted of four ministers of the Supreme Council
of War who were designated to sit with an equal number of ministers
of the Council of the Indies. [468] It was, in fact, the executive
committee and at the same time the special tribunal of military affairs
for the Council of the Indies. It passed upon such military questions
as were nominally referred to it by the president of the Council of
the Indies, although these cases automatically came to this junta
without the intervention of the president of the Council. It had
jurisdiction over appeals in cases affecting soldiers tried in first
or second instance in the colonies, over the administrative matters of
armament and defense: the equipment of fleets and military operations,
garrisons, military supplies, and munitions. It also tried appeals from
the tribunal of the Casa de Contratación, and, in fact, it exercised
general supervision over that institution in its various activities.
This was the machinery which existed for the adjudication of military
cases during the greater part of the history of the Islands, the
magistrates of the audiencia officiating as auditores de guerra when
designated by the governor. [469] The royal decree of January 30, 1855,
made a radical reform in this particular, adding two new magistrates,
an auditor de guerra and an auditor de marina and to some extent
relieving the ministers of the audiencia. These magistrates were
appointed by the Minister of War and had original and secondary
jurisdiction over cases involving soldiers and sailors of the
fleet. These new magistrates served as ministers of the audiencia
when their special duties permitted, and they were ordered to consult
with the governor from time to time in regard to matters pertaining to
their respective fields. Though the audiencia was forbidden to concern
itself with cases which belonged to the military jurisdiction, the
regent and two magistrates of the tribunal, acting with the auditor
de guerra or the auditor de marina, could resolve themselves into a
special court for the trial in second instance of cases pertaining
to the respective fields of the last two officials. [470]
Two or three cases may be described here which illustrate the method of
procedure in the trial of military cases by the tribunals. On January
22, 1787, a royal order was issued on the recommendation of the junta
de guerra de Indias, approving of a sentence of death pronounced upon
a soldier in the Philippines four years before. This soldier had been
sentenced in first instance by the castellán. The captain-general, on
appeal, affirmed the sentence, and the junta de guerra approved the
proceedings when the case was appealed a second time. [471] Another
case, and one which illustrates the slowness of the proceedings of
this junta, as well as the nature of its jurisdiction, was that of a
soldier who had set fire to a powder magazine, causing it to explode,
thereby killing several persons. The culprit was sentenced by the
consejo ordinario de guerra, a sort of local military and strategic
committee, composed of local military officers (in this case a kind
of court-martial), [472] but Governor Basco y Vargas, upon the advice
of his asesor, suspended sentence, directing the case to the junta de
guerra. Nothing was done, however, and on December 10, 1788, Governor
Marquina, successor to Basco y Vargas, wrote to the president of the
Council of the Indies, calling attention to the fact that this soldier
had been in prison for six years awaiting the action of the Council
of the Indies. [473] The matter was then referred to the junta and
the sentence was approved by that tribunal.
As in all other departments and activities of government, so
in this, there were many opportunities for conflict between the
audiencia and the governor as to authority over cases which by
their nature bordered on the sphere of both the civil and military
jurisdictions. The governor who had the power to assign cases to
whatever tribunal he chose, often took advantage of his position to
bring the trial of civil cases within his own military sphere. Among
these were suits involving the militiamen. These were subject to the
military jurisdiction when they were under arms, and at other times,
being civilians, they were subject to the civil authorities. [474]
An instance of a case of this kind occurred in 1800. A militiaman,
Josef Ruy, had killed an Indian, and the audiencia, on the basis of
its authority over Indians, had sentenced the culprit to death. The
governor, after sentence was passed, reopened the case on the ground
that as a member of the militia, Ruy was subject to the military
and not to the civil jurisdiction, although the militia was not
at that time in active service. The judgment of the audiencia was
therefore suspended. The case, meanwhile, had been appealed to the
Council of the Indies, and that tribunal had approved the sentence of
the audiencia, apparently without taking note of the fact that the
case involved the military jurisdiction. A short time afterward the
Council received a second report from the audiencia, stating that
jurisdiction over the case had been surrendered to the governor on
account of its military character. This procedure was accordingly
approved by the Council. Soon after, report came of the receipt by
the audiencia of the former judgment of the Council, relative to the
action first taken by the audiencia, with the information that since
the will of the Council was known, the governor had surrendered the
prisoner again to the jurisdiction of the audiencia. Disgusted at
the contradiction and cross-purposes at which the authorities in
the Islands were working, the king decreed on March 27, 1802, that
cases involving Indians should be tried in the audiencia, but that
this poor wretch had been tried and retried, condemned and condemned
over again so often that he had already expatiated his crime. He was
accordingly authorized to go free. [475]
The king administered a severe reprimand to the governor and oidores on
this occasion for their insistence on these small points of personal
dignity in which the real purpose of the law was entirely overlooked
in the pompous insistence of these officials on what they imagined
to be their own particular rights. The case just alluded to began
in 1792, and was carried through ten years of petty strife. The
blame for this cannot be ascribed entirely to the magistrates of
the audiencia, or to the governor, who had to act in accordance with
the law as he interpreted it. The real fault lay in the failure of
the Spanish governmental system to place implicit confidence in the
judgment and ability of its servants. Considering the final ends of
justice, it made little difference whether sentence was pronounced
upon this individual by the governor as military commander, or as
president of the audiencia. It is true that the authorities might
have compromised on many occasions; indeed, from the viewpoint of
history it may be said that they should have done so, instead of so
often wasting their energies on these petty battles. These incessant
disputes were encouraged and facilitated by the ease with which appeals
could be made to Spain, thus hindering the immediate execution of
decisions. The Council of the Indies interfered in details which should
have been left entirely to the colonial authorities. This interference
encouraged appeal, and matters of no relative importance to Spain's
colonial empire frequently occupied a large share of the attention
of the sovereign tribunal. Colonial officials were not entrusted with
the authority and responsibility which they should have had, and the
central government wasted its time attending to small affairs which
should have been concluded by subordinates in the colonies.
The governor frequently claimed jurisdiction over cases involving
retired soldiers on the grounds that they had once been under the
fuero militar. He also claimed jurisdiction in suits affecting widows
of soldiers, all of which, in accordance with the law of December
11, 1788, should have been tried by the audiencia. [476] Another
abuse frequently perpetrated by the governor was the assumption of
jurisdiction over suits for the payment by military officials of bonds
which they had assumed for defaulted civil officials. [477] In doing
this he was encroaching on the rights of the oficiales reales, and
these were always supported by the audiencia in the contentions which
arose over this question. Cases involving conflicts of jurisdiction
between the civil and military authorities were appealed to the Council
of the Indies, and there, after considerable delay, the proper sphere
of authority was always determined.
While the audiencia as a tribunal was forbidden jurisdiction in the
trial of cases involving war, we have already shown that the governor
exercised the right of designating oidores to try cases of this nature
on second appeal. The power of enforcing this right depended entirely
on the governor. Frequently the efforts of the governor along these
lines were attended with much difficulty as were those of Governor
Marquina in 1789 when he sought to designate an oidor to assist in the
trial of Antonio Callejo, naval artilleryman on a frigate of war. The
case had first been tried before the proper military judge, but it
was referred on appeal to a tribunal of which an alcalde ordinario of
the city was a member. The governor designated Oidor Yuguanzo to act
as a member of this tribunal for the trial of the case of Callejo on
review. The magistrate begged to be excused on the ground that all his
time was occupied with the trial of civil cases in the audiencia. The
governor called on all the other oidores successively, and all
declined to act. At last he peremptorily ordered Yuguanzo to serve,
telling him that if he objected he might carry the matter to the king
in the regular way, which, according to the laws of the Indies, was to
comply with the governor's demands, under protest, while appealing the
question of disagreement to the Council of the Indies. [478] This was
accordingly done, the magistrate basing his claim to exemption on the
law which prohibited the governor from sending oidores on commissions
outside the audiencia. [479] The governor at the same time filed a
memorial which forestalled all the arguments of the oidor. [480] He
stated that the real cause of the disinclination of the magistrates of
the audiencia to serve as auditores de guerra was their indolence, and
not the pressure of their excessive duties. It was contrary to their
ideas of dignity to be associated with the acting auditor de guerra,
who was not a letrado, and it was therefore considered a sacrifice of
their own personal dignity. The governor stated that no argument could
justify such an attitude on the part of the oidores. The inconsistency
of their position was further shown, he alleged, by the fact that they
had served regularly on the tribunal of appeals of the consulado, in
company with two merchants who were not even lawyers. Hence there could
be no reason for their refusal to serve with an alcalde ordinario.
The governor based his right to call upon the regular magistrates for
this service on that section of the laws of the Indies applying
to Española, Nuevo Reino, and Tierra Firme, which declared
that jurisdiction over cases affecting soldiers belonged to the
captain-general with inhibition of the audiencia, and that soldiers,
during the time they were under arms, should not be tried on criminal
charges. [481] The governor, according to this law, might call
upon a magistrate to serve as special auditor de guerra for the
determination of cases in second instance. Finally, by April 20,
1784, the king had extended this rule to all other colonies. [482]
Although we have no record of the reply of the tribunal in Spain,
the strength of the governor's position could not well be questioned,
especially since he was resting his case on a law made in 1784,
which was completely up-to-date, while the magistrate's contention
was based on one promulgated in 1609. [483]
Aside from the duty of the oidores to try military cases when
commissioned by the governor to do so, it will be seen that the
tribunal itself exercised much more extensive authority in the
actual administration of military affairs. Two factors may be said
to have contributed to this. One was the fact that the audiencia
was frequently consulted by the king or governor in regard to
the defense of the colony. The other may be seen in the actual
assumption of the government at various times by the audiencia, and
the successful defense of the Islands by the military forces under
the leadership of the oidores. Notwithstanding the fact that the
governor's recognized sphere of action was military, and in spite of
the repeated prohibitions against the interference of the tribunal
in these matters, the audiencia received considerable official
encouragement and authorization to interest itself in military affairs.
As the problems of general administration were too serious for
the solution of one man without advisors, so the governor also
found it frequently undesirable to assume sole responsibility for
military affairs. The audiencia shared the acuerdo power in these
matters to a lesser degree than it did in government. The hostility
of the Japanese in the early years, the fear of the Chinese, the
danger of native outbreaks, the raids of the Moro pirates, and the
incursions of the Portuguese, Dutch, and English aroused the fears
of the commonwealth to such an extent that defense was felt to be a
matter of common concern. The governor, upon whom legally rested the
obligations and responsibilities of defense, was glad to share these
duties with any authority that could be of assistance. The history
of the Philippines is replete with instances in which the audiencia
either gave counsel in matters pertaining to defense, or took an
active part in resistance. There were even occasions on which it
advocated offensive warfare. [484]
We have seen in an earlier chapter that the audiencia manifested a keen
interest in military affairs immediately upon its establishment. In the
chapter on the establishment of the tribunal we noted the memorials
of individual oidores and of the audiencia as a tribunal, advising
the governor and the king as to the necessity of conquering the Moros,
and on the best way of putting down insurrections in the Islands. The
question of defense against the Portuguese and the Dutch was also
discussed in the letters of the oidores. In some cases their advice
was considered, on other occasions the governor complained against
them for exceeding their jurisdiction. One of the most noteworthy
instances of the recognized intervention of the oidores in military
matters was on April 19, 1586, when a council, called together by
Governor Sande and consisting of the governor, the bishop, and the
oidores, considered the immediate occupation of China. This was urged
by Governor Sande, but he was overruled by the moderate counsels of
the bishop and magistrates. [485]
No better illustration of the willingness of the governor to share
his military responsibilities can be given than the reliance
of Governor Dasmariñas on the religious authorities for advice
in military affairs, after the suppression of the audiencia in
1589. [486] He consulted with them on ways and means of defending the
colony against the Japanese, whose threatening attitude during his
administration rendered precarious the continuance of Spanish power
in the Islands. On one occasion he consulted the religious orders
as to the advisability of expelling all Japanese and Chinese traders
from Manila. The accumulation of provisions against a possible siege,
the seizure of the persons and property of all Japanese residents,
the establishment of a place of refuge for women, children, and
sick persons in case of invasion, and the appropriation of the
property of the natives as a pledge of their good behavior in the
event of hostilities, were measures proposed by the governor to the
religious for their consideration. Dasmariñas, on another occasion,
asked the advice of the Augustinians, Dominicans, and Jesuits as
to the best manner of dealing with an insurrection in Zambales,
and the religious authorities, after quoting scholars, saints, and
theologians, made lengthy recommendations. [487] These facts make
clear the unwillingness of this governor to take the initiative in
affairs pertaining to his own special province. He was content to ask
and receive the advice of priests, monks, and magistrates, on military
affairs. He was willing to seek the counsel of any and all available
persons or authorities who could or would advise him. It is, of course,
clear that the audiencia, when in existence, would be preferred as
a source of advice and counsel to a community of religious.
Not only did the governor set a precedent of seeking the advice of
the audiencia during this early period, but the king often sought the
opinion of the magistrates in regard to military affairs. Various
matters were referred by the sovereign to the oidores at different
times: questions involving the building of walls and fortifications
of Manila, and the number and size of cannon needed for the proper
equipment of the latter; the audiencia was asked whether it would
be better to bring gunpowder from New Spain or to manufacture it in
the Islands; the magistrates were required on several occasions to
furnish information as to the number of men needed for the defense
of the Islands, and whether the natives would make good soldiers. The
audiencia furnished information to the king concerning the availability
of the various Philippine woods for shipbuilding, and it furnished
estimates as to the probable cost of ships both for commerce and
war. [488] All these matters were supposed to come within the special
military jurisdiction of the governor, yet, not only that official,
but the king himself, required the advice of the magistrates on
these questions.
The conquest of Mindanao and the war in the Moluccas were also subjects
of correspondence between the court and the local audiencia. [489]
The king, on various occasions, requested information of the oidores
concerning the natives and their attitude towards law and order,
whether the various tribes were quiet, by nature peaceful or warlike,
and what measures, in the opinions of the magistrates, would be best in
dealing with them. The audiencia was consulted on other occasions as to
the best manner of fortifying the Visayan Islands against the attacks
of the Moros, and northern Luzón against the Chinese and Japanese,
the possible cost and most suitable locations of fortifications,
and their availability and probable value in repelling invasions.
The reliance of the governor and the court upon the magistrates of the
audiencia for advice in the matter of defense was not characteristic
only of the early years of Philippine history. In 1744 Governor Torre
submitted his scheme for the fortification of the city of Manila to
the audiencia before he sent it to the king for final approval. [490]
Torre was aided by a regular council of war (consejo de guerra) of
which the oidores were members and he submitted questions relative
to the defense of the Islands to this council. In 1746, this local
council of war reported on the advisability and feasibility of
manufacturing guns and powder in the colony. [491] Governor Obando,
writing in 1748 to the king, and commenting on the relationship of
the previous governor with the audiencia in the matter of defense,
divided between his predecessor and the audiencia the responsibility
for the payment of ten thousand pesos to bribe the Dutch to keep away
from the city, and not to reduce it. [492] In a subsequent chapter we
shall discuss the important part played by the audiencia in the defense
and surrender of the Islands to the British in 1762. These incidents,
taken at random from various governors' administrations, show that the
audiencia was required to do all that it could to assist the governor
and captain-general in the defense of the colony. It was also called
upon to advise the court on military affairs; thus it was frequently
able to assist in formulating and guiding the policies of the home
government with regard to defense and military administration. In
this way an indirect, but distinct check was placed upon the governor
in his own field, and an incapable or radical executive was thus
prevented from endangering the peace and security of the colony.
But the influence of the audiencia operated much more effectively
in defense of the colony than through the advice which it rendered
either to the king or to the governor. From 1601 to 1625, during which
period the residents of the colony were continually alarmed by the
unceasing encroachments of the Dutch, the audiencia was frequently
obliged to assume responsibility for the defense of the colony. In
1600 and 1601, when Francisco Tello de Guzmán was governor, Antonio de
Morga, the senior oidor, led an expedition against the Dutch pirate
Van Noordt and defeated him in Manila Bay. In 1607, the audiencia,
then in charge of the government, maintained the defense of Manila
and Cavite against the Dutch. [493] While Governor Pedro de Acuña
was absent in the Moluccas in 1605-1606 on a campaign of conquest,
the audiencia entertained and responded to a petition from the king
of Tidore for assistance in resisting the oppression of the king
of Ternate. The war in the Moluccas was continued by the interim
government of the audiencia (1606-1608).
The audiencia repeatedly assumed charge of the government during
the frequent absences of Governor Juan de Silva (1609-1616) on
expeditions of conquest; and it governed two years after his death
(1616-1618). Under the leadership of Oidor Andrés de Alcaraz the
military and naval forces of the Islands repeatedly repelled the
invasions of the Dutch. [494] Of special merit was the work of this
oidor in the preparation and equipment of a fleet of seven galleons
which he led in the battle of Playa Honda, on April 14, 1617. In
order to raise money with which to meet the expenses of this campaign,
the audiencia was compelled to resort to the extraordinary recourse
of seizing the money of Manila merchants on its arrival from Acapulco
on the galleon. It also forced loans from residents and officials who
were in the colony. The audiencia authorized the sale and the payment
in advance for space on the galleon of the coming year. Alcaraz,
in a report to the king, stated that the oidores had labored with
diligence for the defense of the colony, personally concerning
themselves with the casting of artillery, the drilling of soldiers,
the obtaining of supplies, and in otherwise preparing the city for
more adequate defense. [495]
Under the leadership of the able soldiers and captains-general, Juan
Niño de Tavora (1626-1632), Sebastián Hurtado de Corcuera (1634-1635),
and Diego Fajardo (1644-1653), the audiencia interfered but little
with the notable military operations of that period. Exception to this
statement must be made in the cases of the capture and relinquishment
of the island of Formosa in 1629 and 1642, respectively. The audiencia
was unreservedly opposed to the proposed conquest of the island
by Governor Tavora, who, nevertheless, undertook the expedition
and carried it to a successful conclusion. When Governor Corcuera
decided that the position of the Spaniards in Formosa was untenable
and resolved to withdraw the garrison, the audiencia was equally
forceful in its remonstrances. It sent charges to the court against
the governor, alleging that this loss, and that of the Moluccas the
year before would assuredly lead to the greater disaster of the loss
of the Philippines. [496]
The important part played by the audiencia in the defense of
Manila against the British in 1762 will be discussed in another
chapter. While Governor Rojo and the majority of the oidores were
in the city, surrounded by the enemy, Oidor Anda y Salazar, who had
been sent to the provinces as visitor, organized and maintained a
defense against the enemy. When he was commanded by the governor to
surrender, he refused, successfully maintaining the claim that as
the sole, legally-appointed oidor who had not surrendered, he was
both audiencia and governor, and as such his actions were legal. His
claims were recognized and approved by the king. This is perhaps the
most peculiar and extraordinary example of the audiencia's assumption
of military power.
The frequent assumption of the government by the audiencia, with
responsibility for matters of defense and military administration
may be cited as an additional reason for its reluctance to
entirely abandon its interest in these affairs on the arrival of a
governor. Notwithstanding this, and the additional fact that the king
and governor frequently consulted the audiencia on military affairs,
the tribunal did not always seek to retain preëminence in military
affairs. This fact is shown by a letter which the audiencia wrote in
1598, acknowledging that "the only cases in which the governor is
entitled to entire jurisdiction are those over soldiers--and these
cases he may try independently, since he is captain-general." [497]
There were numerous other occasions on which the audiencia unreservedly
recognized the jurisdiction of the governor, often protesting against
his excesses in military matters, but going no further than to register
its protestations. For instance, it charged Governor Fajardo with
carelessness in the outfitting of ships to resist the Dutch. One
ship, it was said, was so poorly equipped that it sank before it
left port. Fajardo was moreover accused of removing the commander of
one of these ships, substituting his fifteen-year-old brother, Luís
Fajardo, at a salary of 40,000 pesos. The audiencia contented itself
with remonstrances against these wrongs, but it made no attempt to
interfere. [498] Fajardo had his way in these matters, but he would
have been compelled to answer for them personally in his residencia
had he not died before that investigation took place.
The governor's accountability for the government of the Chinese was
closely related to his jurisdiction over military affairs. The Chinese
were regarded with great suspicion by the residents of Manila, who
lived in constant fear of an outbreak in the Parián, or of a descent
upon the coast of Luzón by Chinese from without. The problem of the
Chinese was therefore essentially one of defense, and as such it
was entrusted to the governor and captain-general. Nevertheless, the
audiencia claimed the right to intervene in many matters pertaining
to the government of these people, and there was much dissension
between the oidores and the governor over this question. The governor
on some occasions rigidly resisted the claims of the audiencia to
exercise jurisdiction over the Chinese, and on others he invited
the participation of the tribunal. This state of affairs was brought
about by the seeming conflict of the laws bearing upon this question.
The earliest legislation to be found in the laws of the Indies dealing
with the government of the Chinese was enacted on April 15, 1603. [499]
This law forbade the alcaldes ordinarios to exercise jurisdiction
over suits of the Chinese in the Parián, but it ordered that all cases
involving them should be tried by a special alcalde of the Parián with
right of appeal to the audiencia. A special judge was thus created
by this law, with jurisdiction over the Chinese. [500] The purpose of
this enactment was to establish a system of judicial procedure for the
Chinese, whereby the latter might be kept apart from the Spaniards and
natives in judicial as well as in governmental administration. This
necessity was partly based on economic considerations, and partly
on racial and religious reasons; it was designed essentially for the
protection of the Spaniards. [501]
On the basis of the above law of April 15, 1603, the audiencia
immediately proceeded to concern itself with the government of the
Chinese. It claimed jurisdiction particularly over the right to issue
licenses allowing Chinese to reside and trade in the Philippines. This
authority was also claimed by the governor and captain-general,
who was responsible for the defense of the Islands. The audiencia
also proceeded to issue regulations for the Chinese trade, laying
itself open to the charge of selfish interest in these commercial
activities. Complaints against the audiencia's intervention reaching
the court, new regulations were issued on November 4 and December 1,
1606, which forbade the audiencia to concern itself with anything
relative to the government and administration of the Parián, or with
the Chinese who might come to the Islands for the purpose of trade,
except at the solicitation of the governor. [502] In the letter
accompanying these orders, the king informed Governor Acuña that
although the Chinese in the Parián were under his charge, he was to
take no important steps for their government without first consulting
the audiencia. The inference of this law is clear, therefore, that the
audiencia might have other activities than the purely judicial. This
implication gave rise later to a considerable difference of opinion,
but in consequence of this law the governor was established as the
fountain of authority in Chinese affairs, with the oidores in a
secondary position.
On June 12, 1614, Philip III re-enacted the above law with some
modifications. The fiscal was made legal protector of the Chinese. He
was ordered to advise the alcalde of the Parián in legal matters
pertaining to them, and the alcalde was to take no important steps
without the advice and assistance of the fiscal. [503] The governor
was ordered not to allow any ordinary or special judge, alcalde del
crimen, or oidor, to exercise jurisdiction in first instance over civil
suits or criminal cases of the Chinese, or to make inspections in the
Parián. The last clause of this law, however, qualified and rendered
dubious the effect and meaning of the entire enactment, by adding,
"unless in a case so extraordinary, necessary and imperative that it
may appear convenient to limit this rule."
It will not be extraneous to point out here that this was a common
weakness of many laws, by which they were frequently rendered
entirely inapplicable. In this case, for example, the evident object
was to prevent the oidores from interfering in Chinese affairs,
thus guaranteeing the government and administration by officials
who were endowed with knowledge and understanding of their racial
characteristics and peculiarities, while centering the ultimate
responsibility for them in the governor. It was realized, however,
that exceptional cases might arise in which some other procedure
might be advisable, and accordingly a loophole was left whereby the
entire law could be nullified. The audiencia was thus given a basis
for intervention in the government of the Chinese whenever it suited
the convenience of the magistrates. This defect is emphasized here
because this particular exception justified the intervention of the
audiencia on many occasions, and was a cause of continual contention
between the governor and the audiencia in Chinese affairs.
Although it is difficult to settle conclusively the question of
the extent of jurisdiction which the governor and the audiencia,
respectively, exercised over the Chinese in the Parián, a few cases
may be presented in this connection to show that both the governor and
the audiencia were justified by royal authority in advancing claims to
control. On December 4, 1630, the king wrote a scathing arraignment of
the audiencia for having entertained an appeal from the Chinese over
the head of the governor, practically disregarding the latter, and for
making recommendations relative to the Chinese and to military affairs,
which questions were entirely outside its province. [504] One of the
items of the report of the recent visitor-general to the Philippines,
Licentiate Francisco de Rojas y Ornate in 1629, had been a charge that
the audiencia had condemned and fined a Chinese merchant for smuggling
munitions of war into the colony, after the latter had proved that he
had been acting under the instructions of Governor Silva. [505] The
visitor-general took the position that this case was entirely within
the military sphere; therefore the governor's decision was final,
and the audiencia was proceeding without jurisdiction in attempting
to deal with it. The king called upon the tribunal to justify its
action in the matter. [506] It is to be noted that in this case the
point at issue was not that the audiencia was interfering with a
Chinaman who should have been punished by another authority, but that
in assuming jurisdiction the audiencia had infringed on the special
prerogatives of the governor with regard to war and government. The
frequency and seriousness of the Chinese insurrections in the early
seventeenth century, and the fear of a hostile invasion from China,
placed all questions of dealing with the Chinese upon a military basis,
hence the authority of the governor.
Much correspondence of various kinds might be cited to show that
the governor was encouraged to consult the audiencia on Chinese
affairs. Not only was the governor expected to do this, but the
king himself directed many letters to the "governor and audiencia"
and to the "governor and oidores," in which he asked for advice and
information bearing upon Chinese affairs. As we have already seen,
cédulas treating of these matters were frequently expedited to the
"governor and audiencia." The audiencia was requested by the royal
authority on August 8, 1609, to submit information as to the truth of
various statements by persons in the Islands that the Chinese were
carrying away vast quantities of silver. The audiencia was ordered
to enact measures which would stop this abuse, which, if persisted
in, would inevitably result in an impoverishment of the Philippine
community and government. The oidores were asked to suggest a course
of action which would result in the retention of the Chinese trade
and at the same time prevent the Chinese from doing irreparable damage
to the royal exchequer in the ways alluded to. [507]
In further illustration of the same subject, we may note the
instructions of the king to Governor Silva, dated March 27, 1616. On
this occasion the king prescribed a course of action for the governor
to follow in case of the invasion of the Islands by the Chinese and
Japanese. He was especially directed to prevent a union of the Chinese
in the Parián with the forces of the expected invaders. Silva was
ordered to take no steps without first consulting the oidores. [508]
On July 25, 1619, having received news of the insubordination of the
Chinese in Manila and of the danger of a revolt among them, the king
wrote to the "president and oidores" expressing the belief that too
many Chinese had been admitted to the Islands and that thereafter only
enough should be permitted to man the ships and carry on trade. [509]
The authorities to whom this letter was directed were charged not
to allow the royal will relative to this matter to be disregarded,
which, of course, implied the exercise of an executive power on the
part of the magistrates, in addition to consultative authority.
Again, on December 31, 1630, the king wrote to the governor and
audiencia, stating that there had been received at the court from the
Chinese of the Parián, a series of memorials, letters and petitions,
complaining against the rigor of Spanish administration and requesting
that they might be governed by mandarins, governors and alcaldes
mayores of the "Chinese nation." The king signified his unwillingness
to comply with their request at this time, and accordingly ordered
the governor and audiencia to permit no changes to be made. [510]
On July 27, 1713, the tribunal, acting in a legislative capacity,
decreed that within thirty days "all Moros, Armenians, Malabars,
Chinese and other enemies of the Holy Faith" should be lodged in the
Parián when visiting Manila, or when living there temporarily for
purposes of visit or trade. Penalties were also prescribed for the
infraction of the above law. [511] This affords one illustration out
of many which could be cited of the legislation of the audiencia in
Chinese affairs. [512]
On May 14, 1790, the king wrote to the "governor and president
of the royal audiencia" and also to the tribunal, ordering the
re-establishment of the Parián. This Chinese quarter had been abolished
since 1756. It was agreed that the Chinese in this district should be
ruled by an alcalde, who should also hear cases in first instance,
with appeal to the audiencia. It was furthermore decreed that the
Chinese population in the Islands should be fixed at 4000 and that each
individual should be taxed at the rate of six pesos per capita. [513]
This tax was to be collected by the cabecilla of the Chinese, a sort
of local leader, subject to the alcalde of the Parián. This cédula,
the king stated, was originally suggested by the acuerdo of the
audiencia, and had been submitted for royal approval, which had been
duly conceded. This correspondence, which shows the real operation
of the government much more accurately than the citation of laws
alone could do, makes it quite clear that throughout the history of
the Islands, notwithstanding the existence of many cédulas to the
contrary, the audiencia exercised advisory power in regard to the
government of the Chinese. This authority was repeatedly recognized
by the governor and by the king himself.
After the inauguration of the superintendency of real hacienda
at Manila in 1787, the incumbent of that office was made largely
responsible for the Chinese. This was probably so arranged because the
care and administration of the Chinese at that time involved questions
of finance rather than of war and defense. It will be remembered,
too, that, during much of the time, the office of superintendent was
combined with that of governor. A number of disputes arose between the
governor and the intendant after the latter office was created in 1785,
[514] but after the union of the governorship with the superintendency,
no further occasion of dispute arose. During the greater part of the
nineteenth century, the peculiar nature of the office of intendant
gave to the latter official the duty of collecting the licenses of
the Chinese, subject to the superintendent.
There yet remains something to be said regarding the administration of
justice among the Chinese, and we must note certain typical disputes
and disagreements which arose in that connection. That the audiencia
had authority to try cases in second instance involving the Chinese
has already been stated. Likewise the oidores were liable to special
delegation to try cases of an extraordinary character which arose
among the Chinese, as, for example in 1786, when Oidor Bolívar y
Meña was designated to try in first instance charges which had been
made against Chinese bakers in the Parián, who were said to have
put a quantity of powdered glass in bread which they had made for
the Spaniards. This case was regarded as one of more than ordinary
significance, as involving treason and insurrection, and it was
accordingly tried by an oidor who had been especially delegated for
the purpose by the governor. [515]
The question of Chinese jurisdiction is further illustrated by
a dispute which arose in the colony between the audiencia and the
governor, and which was carried to the king by the latter functionary
on June 30, 1793. Oidor Moreno had ordered the arrest of the Chinese
cabecilla of the Parián on a criminal charge. [516] The detention of
the Chinaman was conceded to be justifiable, but Governor Marquina
alleged that Moreno had entirely disregarded the cédula of October
11, 1784, which had ordered that in case of the arrest of any royal
official, notification should be served to the governor in sufficient
time for him to take the proper precautions for the safeguarding of
any of His Majesty's property which might be in the care or under the
protection of the official in question. He said that this particular
arrest was typical of the petty interference of the oidores and
illustrative of the slight pretexts upon which they frequently upset
the whole system of government and caused untold annoyances. On account
of the many difficulties in the collection of the tribute which had
presented themselves as a consequence of the arrest of this particular
Chinese official, and because the latter was especially efficient,
the governor had asked the audiencia to permit the cabecilla to be
excused on condition that he should bind himself to return to the
custody of the audiencia after he had collected the taxes. This the
tribunal had refused. The government, as a consequence, had been put to
much inconvenience in finding a substitute, and the sum collected had
been considerably less than was usually obtained, owing to the lack
of experience of the new collector. After the cabecilla had been in
prison over four months, he was brought to trial, and nothing being
proved against him, he was freed. The audiencia, however, had won
its point, and had manifested its right to the last word in judicial
affairs relating to the Chinese.
The difference between the appellate jurisdiction of the audiencia in
contentious cases involving Chinese and in administrative matters which
it did not have is illustrated by a case which came up in 1794 and
lasted through twelve years of litigation. In the year aforementioned,
the ayuntamiento of Manila brought suit before an alcalde ordinario
of the city against a Chinese, Augustín Chagisco, on a charge of
the failure of the latter properly to fulfill a contract which he
had made to supply the city with meat. The alcalde ordinario, before
whom suit had been brought in first instance, cancelled the contract,
and the Chinese appealed to the audiencia. The tribunal, after due
consideration of the case, restored Chagisco to his status as provider
of meats (abastecedor de carne) for the city. Instead of appealing
the case as one of law, the ayuntamiento wrote to the king on January
19, 1796, alleging that the audiencia had interfered in behalf of a
Chinese whose services the ayuntamiento had discontinued as provider
of meats, over which matter the audiencia had no jurisdiction. The
king immediately gave expression of his approval of the stand of the
ayuntamiento, being of the impression that the question at stake was
one of appointment only. [517] At the same time the king demanded
a full explanation from the oidores as to why they had interfered
in this matter which was so far removed from their jurisdiction. The
audiencia, in reply, sent all the records and testimonios of the suit
to the Council, and that tribunal called upon the ayuntamiento in
due time to explain why it had misrepresented the case. After a long
period of acrimonious correspondence between the Manila authorities,
the case was concluded on February 19, 1806, by a reversal of the
earlier decision, and His Majesty sent a letter of congratulation
and approval to the audiencia in appreciation of its stand in the
matter. [518] The king informed the tribunal that it had been entirely
regular in its proceedings, having reversed the decision of the alcalde
ordinario in a legal suit which had been appealed by the Chinese to the
audiencia in protest against the adverse decision of the lower court.
Without carrying this discussion further, it is clear that the
audiencia had general appellate jurisdiction in cases involving the
Chinese. These cases, when they originated in the Parián, were tried
in first instance by special judges for the Chinese, but suits brought
against a Chinese who lived outside, or suits of a semi-public nature,
as the one just noted, might be tried in first instance by the ordinary
judges. It has also been noted that oidores were sometimes delegated
to try cases in first instance involving treason or insurrection of
Chinese. In regard to matters of government, it may be said that
the governor was held responsible, but even in these the oidores
participated in an advisory capacity.