It has been noted already, in the cedula of October 9, 1812, and in subsequent reforms, that all matters of a contentious nature should be settled in the audiencias and not carried to the tribunal in Spain. A further reform in the censorship of books was made on October 4, 1839, when the control of these matters was placed in the hands of two censors, appointed by the acuerdo and the archbishop, respectively. In case a decision were made to suppress a certain book, a legal proceeding had to be inst.i.tuted before the fiscal, who became the arbiter if a disagreement arose between the censors. Seizure was justified on the grounds that the publication contained something contrary to the legitimate interests of the throne or of the religion. Condemned books were not only seized, but sent from the colony. [366] The responsibilities of censorship were thus shared until October 7, 1856, when, on account of the many disagreements which had arisen as a result of this divided authority, the superior government decreed that a standing board of censors should be created, to consist of eight members, four to be appointed by the archbishop and four by the governor. This board was to be presided over by the fiscal of the audiencia. [367]

Among other important functions of a non-judicial character was the audiencia's duty of keeping the archives of the government. The tribunal had a number of records in which entries were made concerning its work. [368] A registry was kept of the votes of the oidores in suits involving a hundred thousand maravedis or more. Further, separate records were kept of all resolutions of the acuerdo relative to government and finance, respectively, Thursday afternoon of each week being devoted to the latter. Likewise, a book of cedulas and royal provisions was kept by the audiencia, and on the basis of these the tribunal formed all judgments and gave advice when requested. Separate files were kept for copies of all royal orders, cedulas and letters, one for secret, and the other for open correspondence. In another volume an account was kept of the amounts received from fines and from funds liquidated for the expenses of justice. As already stated, lists were also maintained of all persons residing in the colony, with an account of their quality and work, their att.i.tude toward the government, their occupation, and, if they were officials, the nature and character of their services. [369] The audiencia kept a book of residencias, which has been described in a former chapter. Also records of persons coming to and leaving the Islands, with appropriate entries concerning them, were preserved in this archive.

Besides the special duties of the oidores indicated in this chapter, there were others which will be described later in more detail. The residencia has been already treated. Other duties will be noted in connection with the relation of the audiencia and the governor. Some are more closely related to the religious and the ecclesiastical inst.i.tutions of the colony, and merit special treatment in that connection. The audiencia, moreover, had extensive functions in relation to the commercial and economic life of the colony. A fuller comprehension of these numerous activities may be gained in the following chapters where they are discussed in connection with two of the most powerful factors in the colony's life--the governor and the church.

CHAPTER VI

THE AUDIENCIA AND THE GOVERNOR: GENERAL RELATIONS

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

The official t.i.tle 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 partic.i.p.ation 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 a.s.sisted 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 Peru) 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 const.i.tuted 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 Zuniga, a generation later p.r.o.nounced its efforts in this direction generally ineffectual. [372]

Juan Jose 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 preeminences 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 emba.s.sies 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 va.s.salage 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 G.o.d, 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 a.s.sisted 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 Dasmarinas 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 pa.s.s 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 (contaduria 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 t.i.tle 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 pa.s.s 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 inc.u.mbent 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 pa.s.s 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 circ.u.mstances 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 fiscalia. There were no alcaldes del crimen in the Philippines, but the cedula 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-const.i.tuted 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 circ.u.mstances. 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 ent.i.tle 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 circ.u.mstances,"

permission having first been obtained from Spain, [411] the president alone pa.s.sing 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 dispa.s.sionately 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 ill.u.s.trated by a case which arose in 1804 when Fiscal Miguel Diaz 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 Pangasinan, 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, Diaz sent a pet.i.tion to the king, bearing the endors.e.m.e.nt of Governor Aguilar, demanding his restoration to office. Among the reasons cited for the proposed reinstatement of the fiscal, it was said that Diaz, 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 cla.s.ses of officials. As an outcome of these representations Diaz 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 a.s.sisted 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 partic.i.p.ate 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 a.s.sign 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]