Chapter XI: , of this volume (1)

[174] Recopilación, 2-15-129.

[175] This case and the others dealt with in this section involving encomiendas are to be found in the Inventario de los pleytos en la real audiencia de Manila que se hallen en el rl. y supremo consejo de las Indias y remiten al rl. archivo en Sevilla según rl. orden de Julio de 1787. The key to the above exists in the Inventario de autos de la Essma. la Cámara de Indias, IV, 453, A. I.

[176] Recopilación, 6-2-1. This prohibition was first imposed by Charles V on the above date and subsequently by Philip II and Philip III (see laws 1 to 14, same title).

[177] Ibid., 6-9-11, 13.

[178] The laws of the Indies (Recopilación, 6-19-6) authorized the governor of the Philippines to assign encomiendas ad interim for the period of six years (promulgated August 25, 1646). By the laws of May 1, 1774, and June 8, 1792, the period was made five years in all the colonies except Perú; in the latter it was six years (note to Recopilación, 8-22-1). We have record of the extension of an encomienda in the Philippines to the Hospital of San Juan de Diós for four years by Governor Marquina on July 10, 1789. The cofradía had held this encomienda for ten years, and on its petition the governor made this additional concession, subject to royal confirmation (A. I., 107-5-18). The above episode is at variance with the statement of Bancroft (History of Central America, I, 264) that the encomienda system came to an end in 1721. Helps states that the encomienda system "remained in full force until the reign of Charles The Third of Spain, at which period, it appears, it was annulled."--See Helps Spanish conquest, IV, 240.

[179] Expedientes are defined in Blair and Robertson, LII, 72, note 28, as "all the papers belonging to any matter, judicial, legislative, or executive, consisting of orders, opinions, reports, and all other measures." A testimonio is a duly attested and certified statement or number of statements submitted as proof or evidence concerning a given matter. Testimonios include transcripts of letters, cédulas, autos, and expedientes on a particular subject, usually bound together. They may extend over a period of a hundred years or more, showing step by step the factors leading up to the formulation of any auto, or cédula, or given as reasons for a particular action taken by an official or tribunal. Testimonios form a large part of the material in the Archive of the Indies. They are of the same value as originals, and they are certainly more available and legible because frequently more recently written.

[180] Inventario, op. cit.

[181] Note the appeal of a case involving less than 6000 pesos, which was contrary to the laws of the Indies. (Recopilación, 5-13-1).

[182] Martínez de Zúñiga, Estadismo, I, 245.

[183] Decree for establishment of the Consulado, in Manila, December 13, 1769, A. I., 108-3-17.

[184] The consulado was an organization of the merchants of certain authorized cities of the Spanish empire. A consulado had to be established by royal authorization. The tribunal of the consulado was composed of two consuls and a prior, who were chosen for terms of two years and one year respectively. They were chosen by twelve electors who in turn were designated by the members of the consulado. The tribunal de alzadas was composed of an oidor and two merchants. The latter constituted the final court of appeal in the colony in commercial cases and exception to their decisions could be taken only in the Council of the Indies.--Martínez de Zúñiga, Estadismo, 245-246.

[185] Council of the Indies to the Audiencia, January 21, 1808, A. I., 105-2-18.

[186] Recopilación, 9-46-40.

[187] Ibid., 9-46. This section of the laws of the Indies establishes the consulados of Lima and Mexico, and lays down regulations for them.

[188] This was before the time of the Consulado of Manila.

[189] Inventario, op. cit.

[190] The Junta de Guerra, was the committee of the Council of the Indies with jurisdiction over military and naval affairs. When questions of this nature came to the Council they were referred to the Junta, where decision was made and referred back to the Council. See notes 17 and 36, Chapter VII of this book.

[191] Inventario, op. cit.

[192] Ibid.

[193] Recopilación, 2-1-14; see also 9-27-35, 37, 2-2-39, also 9-27-3, 5, 13, 28, 29, 40, 47. These laws forbid the entrance of foreign ships and individuals to the ports of the Indies.

[194] Real Acuerdo de 17 de Julio, 1656, A. I., 67-6-22. (The final action of the Council is indicated without date on the margin of the auto of the Audiencia.)

[195] Recopilación, 9-46-28; 9-45-13.

[196] Ibid., 2-15-111.

[197] Ibid., 71.

[198] Foreman, Philippine Islands, 241. The laws regulating the trial of cases on appeal may be noted in Recopilación, 5-9, 10, 11, 12, 13.

[199] The following figures have been taken from various reports of the audiencia to the Council of the Indies, and they show the number of criminal cases tried in the tribunal in the years designated:

1710--51 cases ... report dated December 11, 1711; A. I., 105-2-9. 1774--34 cases ... report dated December 25, 1776; ibid. 1776--48 cases ... report dated March, 1778; ibid. 1779--53 cases ... report dated July 30, 1780; ibid. 1786--99 cases ... report dated May 1, 1778; A. I., 105-2-10. 1789--51 cases ... report dated June 4, 1790; A. I., 105-2-10. 1795--38 cases ... report dated April 4, 1798; A. I., 105-2-10. 1822--641 cases ... report dated July 3, 1823; A. I., 106-4-21.

According to Desdevises du Dezert ("Vice-rois et capitaines généraux des Indes espagnoles," in Revue historique CXXVI, 59, 60) the Audiencia of Lima decided 89 civil cases on appeal from February 11, 1788, to January 5, 1789. At the end of this period there were 122 cases waiting on the docket. In the chamber of first instance of the same audiencia 72 cases were tried and 124 remained to be tried at the end of approximately the same period. In the criminal sala during the year 1788, there were 7 death sentences rendered, 16 sentences for robbery, 14 cases tried involving personal injury, 15 for carrying arms in face of the prohibition of the law, and 6 cases of adultery. The magistrates excused themselves for this rather contemptible showing by alleging that the membership of the tribunal had not been complete, to which the king made answer that there would have been sufficient judges had not the latter continually absented themselves on the smallest pretexts. The charge of indolence was also frequently brought against the magistrates of the Audiencia of Manila.

[200] See Colección legislativa de España, LXIV, 105-147 (Royal Decree of January 30, 1855). Cédula of December 6, 1858, in Rodríguez San Pedro, Diccionario de legislación ultramarina, VII, 69. Cédula of March 10, 1857, ibid., VIII, 39. Royal Decree of July 4, 1861, Colección legislativa de España. LXXXVI, 1-45. The basic principle of these reforms are to be found in the Constitution of 1812, Martínez Alcubilla, Diccionario, III, 408-458, and in Las Ordenanzas Nuevamente Formadas para el Régimen y Govierno interior de la Audiencia Nacional de Manila en cumplimiento de la Ley de 9 de Octre de 1812, sobre arreglo de tribunales. A. I., 106-4-19.

[201] Blair and Robertson, XX, 35-43, 147, 168, 196-198.

[202] Recopilación, 8-10-16.

[203] Cédulas of October 6, 1783, and of November 19, 1805, A. I., 105-2-18.

[204] See Cunningham, "Residencia in the Spanish colonies," in the Southwestern historical quarterly, XXI, 253-278.

[205] Ibid., 2-33, 1, 6; literally, a report on character of services.

[206] Ibid., 5-11.

[207] Ibid., notes 1 to 4.

[208] Ibid., 2-31-1.

[209] Ibid., 5-12-9.

[210] Ibid., 5-11-6; see also, 5-12-14.

[211] Ibid., 5-15-36 to 39; 7-1-10 to 13.

[212] Ibid., 5-12-7 to 9.

[213] Bancroft, History of Central America, I, 250-1. Special emphasis should be placed upon the last clause of the above definition. The periodical residencia was not the sole means for the removal of officials in the Spanish colonies. The conclusion seems to have been reached by many historians that officials were permitted to conduct themselves carelessly, running their offices to suit their own personal convenience from the date of their appointment, in the assurance that their tenure was sure until the termination of a specified term, and that the periodical residencia was the only occasion on which they might be held to answer for their sins. Only the most scant attention has been given by modern writers to the residencia. See Bourne, "Historical introduction," in Blair and Robertson, I, 50-52; Moses, Establishment of Spanish rule in America, 172; Vander Linden, L'expansion coloniale de l'Espagne, 349.

[214] Bourne, "Historical introduction," Blair and Robertson, I, 51-52; see De Pons, Voyage, II, 25; Churchill, Voyages, IV, 427-428; see also Barrows, "The governor general of the Philippines, under Spain and the United States," in The Pacific Ocean in history, 246.

[215] Recopilación, 7-1; 2-15-117.

[216] Ibid., 5-15-19.

[217] Ibid., 20.

[218] A receptor was a clerk of court, who on special authorization or commission of a tribunal was dispatched to institute judicial proceedings on behalf of the court.--Escriche, Diccionario, II, 794.

[219] Recopilación, 7-1-16.

[220] Ibid., 5-15-21.

[221] Ibid., 7-1-14.

[222] Ibid., 5-12-31.

[223] Ibid., 5-15-38.

[224] Fajardo to Felipe III, August 10, 1619; Blair and Robertson, XVIII, 276.

[225] The Marianas were the islands of the Ladrone Group situated 1200 miles east of the Philippines.

[226] Expedientes relativos á la residencia de Don Antonio Pimentel, Governador de las Marianas, A. I., 68-4-17 and 18.

[227] Recopilación, 5-15-3, 4, 8, 10-18.

[228] Ibid., 5-15-11, 24.

[229] Having been excused by the cédulas of July 7, 1789, and January 15, 1795, A. I., 105-2-5.

[230] Recopilación, 5-15, notes 4, 11. When the residencia of a viceroy or president was taken, the oidores were also held responsible for all opinions given conjointly with him in the acuerdo.

[231] Sinibaldo de Mas, the able Philippine critic of the nineteenth century, says in regard to the above characteristic of the Recopilación and its laws: "Since the Leyes de Indias are not a constitutional code, but a compilation made in the year 1754 [a footnote amends this statement with the information that the Recopilación was first made in 1681] of royal orders despatched at various epochs and by distinct monarchs, ... there results ... a confusion of jurisdictions."--Mas, Internal political condition of the Philippines, Blair and Robertson, LII, 70.

Dr. James Alexander Robertson, in his article on "Legaspi and Philippine colonization" (see American Historical Association, Annual report, 1907, I, 150 and note), characterizes the laws of the Indies as "that mass of contradictory legislation," largely "ecclesiastical in tone," ill-digested, and "utterly at variance with one another." Dr. Robertson also states that "it is from a too close following of these laws and a too great neglect of actual conditions that writers on the colonial policy of Spain have at times fallen into error." On the other hand, it may be said, that not enough use has been made by modern writers of the laws of the Indies, and there is need of such investigation as will test that oft-repeated statement that the laws of the Indies were not enforced. Up to the present, Latin American scholarship has been content with a rehashing of Helps and Prescott, for the early periods, omitting the seventeenth century and the greater part of the eighteenth altogether, and fixing on Juan y Ulloa, Robertson, and Humboldt as the great all-determining authorities for the latter periods of Spanish colonization. These, indeed, have been supplemented by a few ecclesiastical histories, each of which has been written to prove a particular thesis. The present writer dares to believe, after some attempt to harmonize the laws of the Indies with actual practice, that these laws were actually used as a basis of colonial government, and that, while not always effectively enforced, they were by no means a dead-letter until Spain actually lost her colonies and are not today, for it is easy to see in the laws of the Indies the fundamentals of the institutions of present-day Spanish America.

[232] Recopilación, 5-15-1.

[233] Cédula of August 24, 1799, in Rodríguez San Pedro, Legislación ultramarina, III, 280-281.

[234] Papeles relativos á la residencia del gobernador Salcedo. Inventario, op. cit.; also A. I., 67-6-10, 67-6-11, 67-3-4.

[235] Since all legal advice was furnished the governor by his asesor, Coloma would be examining his own acts.

[236] Recopilación, 2-18-27.

[237] Cédula of June 17, 1671, A. I., 82-6-10. In view of these proceedings, Salcedo's letter of June 25, 1665, in praise of the services of Coloma and Montemayor is interesting (A. I., 67-6-9).

[238] Recopilación, 5-12-8; 2-16-46, provided for appeal of cases carrying death penalty.

[239] Ibid., 5-12-31.

[240] Ibid., 5-15-38.

[241] Ibid., 39.

[242] Ibid., 2-2-58.

[243] Ibid., 64.

[244] Ibid., 5-15-3.

[245] There were two kinds of bonds, those posted at the beginning of a term of office, and special bonds of residencia, given at the time of that investigation. The last-mentioned were not required if the office were not a responsible one or if the charges were not sufficiently serious.

[246] Recopilación, 5-15-3; this cédula was annulled by that of May 21, 1787; see note to law 3 of the same title.

[247] King to Basco y Vargas, December 30, 1776 (A. I., 107-5-20). These annual deductions of one-fifth were first authorized on August 26, 1757, on the recommendation of the Council of the Indies. They were discontinued by the consulta of March 2, 1773, it being ordered that governors should only post the customary bonds with the president of the Council of the Indies. We see here that the practice was restored on December 30, 1776. This requirement seems to have been confined to governors of the Philippines (A. I., 105-2-21).

[248] Recopilación, 8-19; see notes 11 and 13, Chapter V of this book.

[249] Recopilación, 8-26-17.

[250] Ibid., 5-15-42.

[251] Ibid., note 12.

[252] Royal decree of November 20, 1841, in Rodríguez San Pedro, Legislación ultramarina, I, 282; see also royal order of December 3, 1844 (for Cuba), ibid., 287.

[253] Officials, desirous of ingratiating themselves into the favor of the new executive, frequently journeyed by land and sea from Manila as far as the Straits of San Bernardino. The privilege thus gained of returning to Manila in company with the new governor, gave them the unrestricted or unqualified opportunity to poison his mind with tales of the misdeeds of the incumbent, and insinuations as to the wealth which the latter had heaped up for himself through the exercise of dishonest methods.

[254] The residencia of a governor presented a splendid opportunity to his enemies for revenge. A governor was always in a fair way to make enemies; consequently any such awaited the residencia of their former oppressor with great eagerness. In case a governor did make fair profit out of his office, and there were many opportunities for profit, commercial and otherwise, legitimate and illegitimate, his enemies gave him no rest at the time of his residencia. (According to Martínez de Zúñiga [Estadismo. I, 242] the emoluments of the governor, aside from his salary, aggregated 20,000 pesos a year.) It is probable that most of the governors were dishonest, as the opportunities for corruption were numerous, and the temptations offered by the position were too powerful to be resisted by any human being. Thousands of miles from Spain, in an age of slow communication, entrusted with the assignment of all sorts of lucrative offices, encomiendas, and commercial privileges, and having friends, relatives, and special interests to serve, a governor was surrounded by countless officials who were eagerly awaiting their share of booty, and who were ready at a moment's notice to turn traitor if they could gain by such an act. It may be said of the Spanish colonial governor as was said of Verres of old, that in stealing, one must steal threefold, once for himself, once for his judges, and once to pay the penalty.

[255] Chapter II of this book.

[256] Montero y Vidal, Historia general, II, 253-258. Anda, as it will be noted later, spent an earlier term of service in the Philippines. He first came to the Philippines during the administration of Governor Arandía, as oidor of the audiencia. He had therefore been obliged to submit to residencia on a previous occasion; in 1764 a review was made of his official conduct as oidor, and especially of his acts in defiance of Archbishop Rojo, in setting up claims to the governorship of the Islands and resisting the British. His conduct was approved, and he received high honor and promotion at the court, being advanced to membership in the Council of Castile. On November 19, 1769, he was granted an annual pension of 3000 pesos for life. On September 8, 1777, this pension was continued in favor of his eldest son (A. I., 106-4-4).

[257] Anda had more than the usual number of residencias to supervise at the beginning of his term. Owing to some misapprehension on the part of his predecessor, Governor Raón, no residencia was required of La Torre, the teniente del rey who took over the government in 1764. Owing to the anarchical condition in Manila consequent upon the invasion of the British, and the ecclesiastical rule preceding that event, neither Arandía, Espeleta, nor Rojo had given residencia. The audiencia and Raón in acuerdo on October 26, 1768, voted that governors' residencias should be dispensed with, and apparently believed that this action settled the matter. On November 9, 1770, the Council of the Indies disapproved of this stand, fined Raón (who had died the preceding July), and ordered Anda to take the residencias of Arandía (governor, 1754-1759), Espeleta (archbishop-governor, 1759-1761), Rojo (archbishop-governor, 1761-1764), Oidor Villacorta, and Governor Raón. These orders he complied with, conducting the investigations with his characteristic thoroughness, though Rojo and Raón were dead. Villacorta was imprisoned and heavily fined. The sentences against Arandía, Raón and Villacorta were moderated by the Council of the Indies on September 9, 1772.--A. I., 105-2-31.

[258] As we shall note in another chapter, José Basco y Vargas inaugurated the reforms of the intendancy in the Philippines, retaining the post of governor, while Ciriaco Gonzales Carvajal was first intendente de guerra y real hacienda.--A. I., 105-3-5 and 107-5-19; see Chapter V, note 20, of this work.

[259] This residencia was held under the same laws that had prevailed throughout the seventeenth and eighteenth centuries. A feature common to them all, particularly, was the fact that the regent, or some other colonial magistrate conducted the investigation and gave sentence, which might be appealed to the Council of the Indies. This gave an opportunity for great injustice to be done to the governor by his enemies, and it did not give him an impartial hearing. The laws of 1799 still permitted a local magistrate to collect the evidence, but the decision was rendered by the Council of the Indies.

[260] Audiencia to the King, June 28, 1791, A. I., 108-4-18.

[261] Instructions to Amparán, February 19, 1792, A. I., 105-2-10.

[262] Instructions were also given at the same time for investigations of the official conduct of numerous persons who had been identified with the government of Marquina. Among these were Helarión Pastor, fiscal de la real hacienda. Manuel de Sota, contador de cuentas. Francisco Múñoz, teniente del rey. Rufino Suárez Rivera, asesor, and Miguel Formento, clerk of the treasury. A separate commission was made for the residencia of each of these.

[263] The just and honorable conduct of Marquina's successor on this occasion may be contrasted with that of his various predecessors, whose unfairness, bigotry, and stupidity had caused governors Corcuera, Silva, and Torralba, victims of residencia, to be seized, imprisoned, and exiled without opportunities for defense, while their investigations were being conducted. This case serves well to illustrate the fact that by the close of the eighteenth century the residencia had grown more humane.

[264] He was charged with having entered into a conspiracy with an Armenian merchant to secure trade which should have gone to Spanish merchants. In this particular venture he had made a profit of 16,000 pesos and in so doing he had not only violated the laws of the Indies which forbade officials to trade (Recopilación, 2-16-54, 62), but he had connived at the infraction of another law which forbade trade to foreigners (ibid., 9-27-1, 5, 7 and note 2).

[265] It is an interesting commentary on Spanish methods that, notwithstanding Marquina's misgovernment in the Philippines, he was promoted to the post of viceroy of New Spain, which position he held from 1800 to 1803.

Desdevises du Dezert, in his article on "Vice-rois et capitaines généraux des Indes espagnoles" (Revue historique, CXXV, 241), shows that Marquina continued his peculations while viceroy of New Spain, engaging in the smuggling trade with Jamaica, and enriching himself to the extent that in thirty-two months he was able to send twelve million pesos on his own account to Spain. Desdevises du Dezert inadvertently refers to Marquina as having come from the Marianas to Mexico. He came from the Philippines and not from the Marianas.

[266] Recopilación, 5-15, notes 4 and 5.

[267] Reales resoluciones del Consejo, 4 de Marzo, 1794, A. I., 106-4-18; Royal Order of January 18, 1848, Rodríguez San Pedro, Legislación ultramarina, I, 290.

[268] These discounts were "considered subversive of their authority [that of the governors]; ... the best guarantee of their acts is not a discount of some thousands of pesos, which is always penurious when compared with the honor and dignity of the persons called, on account of their elevated character and distinguished services, to hold these posts, and if, in former times, this practice had some foundation in the tardiness of communication between the Peninsula and these provinces, it does not exist today in view of the frequency of communication which enables said authorities to consult with the government of Her Majesty in all the steps which are considered necessary in the territory of their command."--Royal order of July 7, 1860, in Rodríguez San Pedro, Legislación ultramarina, I, 287.

[269] Recopilación, 5-15-20.

[270] Ibid., 4.

[271] Ibid., 5-2-1, 2, 7.

[272] Ibid., 5-15-19.

[273] Ibid., 7-1-16; 5-15-21.

[274] Ibid., 2-15-69; see 2-2-58, 64.

[275] King to the Fiscal, September 29, 1788, A. I., 105-2-10.

[276] King to the Audiencia, October 6, 1806, A. I., 105-2-18.

[277] Recopilación, 2-18-27.

[278] Ibid., 5-15, note 4.

[279] Ibid., 5-15-27 to 49.

[280] Ibid., 8-1-28; 5-15-35. Heavy penalties were prescribed for those who offered insecure financial guarantees (ibid., 5-15-33 to 36).

[281] Ibid., 34.

[282] Ibid., 39, 40.

[283] Expediente de Don Frco. Fernández Zéndera, alcalde mayor y capitán de guerra de la provincia de Ilocos. ... su residencia pendiente de informe de la audiencia, 1794, A. I., 106-5-4 and 5. The papers relating to this trial easily aggregate 4000 pages.

[284] It was said that he had shown favoritism in his dealings with some of the barangay (district) chiefs, allowing them unbridled license in the collection of tribute and in the enforcement of compulsory labor, most of which they utilized for their own, or for his, benefit. One chief was said to have gone so far as to forcibly take carabaos from the natives when the latter were working them in the fields. Zéndera had, of course, extended favors to these barangay chiefs in exchange for reciprocal advantages. (The alcaldes mayores ruled the native population through these chiefs at this time. Later they utilized the gobernadorcillos, who were native or mestizo governors of the small towns.--See Malcolm, The government of the Philippine Islands, 64-72.)

It was also charged that he had allowed cock-fights whenever requested, instead of restricting these to holidays and Sundays as the law prescribed. On these occasions he collected two reales from each entrant, and in addition he took the slain birds, alleging that they were for the consumption of the inmates of the provincial prison. Testimony was produced to show that the prisoners had never eaten fowl.

[285] In taking the residencias of corregidores and alcaldes mayores the audiencia frequently took great responsibility upon itself. On July 10, 1800, on taking the residencia of Luís Rodríguez Varela, alcalde mayor of Pangasinán, the audiencia suspended the decoration of the pequeña cruz, which had been conferred upon this official by the royal authority. The deprivation, in this case, was tentative, pending the investigation of the charges which had been made of shortages in the finances of his province.--Audiencia to the King, July 10, 1800, A. I., 106-4-18.

[286] The original sentence probably denied to Zéndera the privilege of holding the office of alcalde mayor only, since he occupied the post of regidor of the city of Manila, pending the appeal of his case to the Council of the Indies. It is evident, therefore, that the sentence which was pronounced upon Zéndera did not apply to all positions of honor and trust.

[287] Cédula of August 24, 1799, Recopilación, 5-15, notes 4 and 5; see also Rodríguez San Pedro, Legislación ultramarina, I, 282.

[288] Escriche, Diccionario. I, 578; see also royal order of November 20, 1841, and of January 18, 1848, in Rodríguez San Pedro, Legislación ultramarina, I, 282; 290. When the Intendancy was established in 1784-7, an effort was made by the newly created officials to escape the residencia. The entire term of the first intendant, Carvajal (or Carbajal), had been devoted to an assertion of his independence of the governor and audiencia. Carvajal interpreted the law requiring all officials of the government to give residencia every five years to the Department of Justice as not applying to him or his subordinates. He pointed to the stipulation in the ordinance which created his department, and established its independence of the executive and judiciary. The king disapproved of his attitude and ordered that henceforth the officials of real hacienda should give residencia in the same manner as other officials, in accordance with the laws of the Indies. (King to Carvajal. July 29, 1788, A. I., 107-5-19, citing Recopilación, 2-15-69; 5-15-15 and Ordenanza de Intendentes de Buenos Ayres, Art. 305.) This decree ordered that the residencias of the intendants and their assistants should be submitted to the audiencia. The cédula of August 24, 1799, so frequently cited in this chapter, gave final jurisdiction to the audiencia over the residencias of intendentes-corregidores, but it decreed that superintendents should give residencia directly to the Council of the Indies.

[289] Martínez Alcubilla (Diccionario, XI, 477) and Escriche (Diccionario, II, 819) state that the cédula of August 24, 1799, abolished the residencia. The latter states that the residencia was eliminated because of the corruption of judges, and as the judges of residencia had proved to be a grave infliction on the towns, mistreating witnesses and defendants on many occasions, it was thought advisable to discontinue the practice of holding these investigations. Escriche also quotes extracts from the laws of August 24, 1799, September 26, 1835, and November 20, 1841, wherein were provided regulations for the future continuance of the residencia. Cases involving viceroys, captains-general, and presidents of audiencias were to be tried in the Supreme Tribunal of Justice in first instance. Alcaldes mayores, corregidores, military and political governors who were not presidents were to be tried in the audiencias which exercised jurisdiction over their districts.

[290] See Cédula of July 7, 1860, in Rodríguez San Pedro, Legislación ultramarina, III, 287; royal order of July 25, 1865, ibid., X, 99; royal order of October 25, 1870, Colección legislativa, CV, 442-465.

The eminent authority, Manuel Bernáldez Pizarro, writing from Manila on April 26, 1827, deplored the laxity which was characteristic of the method of conducting trials of residencia, and recommended that they be made more effective and just. He criticized especially the prevailing system of holding the alcaldes mayores to a strict accountability; who, he wrote, "as they have permission to trade, are more tempted to evade or infringe the laws; and many persons are appointed to that office 'who lack all the qualifications necessary for any public office whatever,' ... not only have they used their authority to possess themselves of the property of the Indians ... and defrauded the Indians with unjust exactions; but they have humiliated the religious, stolen moneys from the king ... [and] have thrown the provinces into a condition of effervescence and of conspiracy against the government." (Blair and Robertson, LI, 212, 212-213.) Pizarro recommended a more stringent residencia as a means of remedying these defects.

[291] Recopilación, 5-15-17 and 18; 9-45-42.

[292] Governor to Council of the Indies, January 4, 1710, A. I., 68-4-15.

[293] Concepción, XI, 132-234 (Anson's depredations).

[294] Recopilación, 2-16-40; see also 7-1-15.

[295] Law of November 10, 1818, A. I., 106-4-19; see Real instrucción dada á los regentes de las audiencias, 20 de Junio de 1776, in Rodríguez San Pedro, Legislación ultramarina, VII, 22-28; Zamora y Coronado, Apéndice. 19-33.

[296] A tax on silver, gold and other metals (as well as on pearls) mined in the Indies. This tax was first authorized on February 5, 1504 (Recopilación, 8-10-1). Philip II conceded a commutation of this tax to ten per cent in favor of adelantados, their successors and other early settlers (ibid., 4-3-19). A draft of a letter exists in A. I., 106-6-6, written about 1585 by Governor Sande of the Philippines, asking for an extension of this dispensation.--See Blair and Robertson, IV, 87, par. 114 and note. On August 8, 1609, the king inquired of the Manila audiencia whether the tax was a fifth or a tenth.--A. I., 102-2-1.

[297] Ibid., 2-16-19 to 22.

[298] Ibid., 23.

[299] Ibid., 24. This junta is to be distinguished from the real contaduría, which was composed of the oficiales reales. See Martínez de Zúñiga, Estadismo, 246.

[300] This was the junta superior de la real hacienda, created for Manila by the law of July 24, 1784. It was one of the reforms of the intendancy. It cannot be said, however, that these reforms became effective until 1787, though the cédulas of July 17 and 24, 1784, which ordered them, were received in Manila on December 5, 1785. These cédulas ordered the formation of a government locally, which would conform to the general principles of the intendancy and which were laid down in the cédulas referred to. These plans had to be referred to Spain on appeal. Subsequently the Ordinance of Intendants of Buenos Ayres was applied to the Philippines.--A. I., 107-5-14. Until January 11, 1791, all appeals from the junta superior were heard in the Audiencia of Manila. The cédula of that date, received in Manila on June 30, 1793, ordered that such appeals should be carried to the Council of the Indies.--A. I., 107-5-22. The junta superior de real hacienda did much toward relieving the audiencia of its advisory functions as in matters of finance and commerce. Many evidences of this may be noted in the reports and correspondence of the superintendente de real hacienda de Manila.--A. I., 107-5-14; 107-5-15 to 31; 107-6-1 to 31; 107-7-1 to 21. Priestley (José de Gálvez, 338-9) shows that even after the establishment of the intendancy in New Spain, the audiencia retained the administration of crown lands, notwithstanding the provisions of the new laws which ordered that they should be controlled by the junta superior. See also ibid., 302-3.

[301] Recopilación, 2-16-34.

[302] Ibid., 2-15-169.

[303] Ibid., 2-31-1 to 3.

[304] Ibid., 8-19 (general subject of medias anatas). Holders of ecclesiastical benefices were subsequently obliged to pay the media anata, although they were especially exempted by the cédula of June 2, 1632. The media anata (civil and ecclesiastical) was paid until December 28, 1846, when this tax, together with the lanza (a tax formerly paid by the nobility, but subsequently required of all classes in lieu of military service) was abolished (Martínez Alcubilla, Diccionario, I, 407).

[305] Ibid., 8-19-1 and 2.

[306] The cédula of July 3, 1664, reorganized the system of medias anatas, authorizing their division into two separate allotments, one payable at the court on the appointment of the official concerned, and the second within or at the end of eighteen months after his appointment, at the capital of the district wherein he served. Guarantees had to be given that the second payment would be made when due, and interest was charged at the rate of eight per cent a year on the amount remaining to be paid (ibid., 4).

[307] Cédula of December 14, 1776, A. I., 105-2-16.

[308] The extensive use of the betel-nut by the natives of the Philippines encouraged the Spanish government to monopolize its production and sale, and a considerable revenue was derived from it. In 1786 the profit from the sale of betel was 16,770 pesos (Report of Intendant, January 8, 1788, A. I., 107-5-15), and the next year the sum collected was 15,207 pesos (Report of Intendant, June 21, 1789, 107-5-18). Other monopolies during the same period yielded as follows: Tobacco, 258,743 pesos; wine, 73,636 pesos; cockpits, 8,375 pesos; tributes, 174,494 pesos (Report of Intendant, June 21, 1789).

[309] Juez conservador (civil), a judge named por privilegio del rey, with private jurisdiction over the civil affairs of some community or guild, for the protection of its interests and estates or the collection of its rents (Escriche, Diccionario, II, 260).

[310] Recopilación, 3-3-35.

[311] Report on the establishment of the Intendancy in Manila, December 5, 1785, A. I., 107-5-19.

[312] Testimonio and transcript of the royal cédula of November 23, 1787; King to Marquina, June 15, 1791, A. I., 105-2-10.

[313] The first intendant, Ciriaco Gonzales Carvajal, was given the title of intendente de guerra y real hacienda, by virtue of the cédulas of July 17 and 24, 1784. By the reform of November 23, 1787, the duties of his office were united to those of the governor, whose title, under the new arrangement, was gobernador y capitán general y superintendente de la real hacienda (A. I., 105-3-5 and 107-5-19; see Chapter IV, note 55, of this work.)

[314] Recopilación, 3-3-35.

[315] Basco y Vargas to the King, May 9, 1786, A. I., 107-5-19.

[316] Cédula of March 20, 1790, A. I., 107-5-19.

[317] Recopilación, 3-3-35.

[318] Marquina to the Audiencia, August 16, 1791, A. I., 107-5-19.

[319] Recopilación, 3-3-35, cited in notes 21 and 24 of this chapter.

[320] Ibid., 2-32-1.

[321] Ibid., 7 and note; 8.

[322] Ibid., 43.

[323] Ibid., 42, note 4; 47, note 7. These cases may be noted in A. I., 68-4-12.

[324] Ibid., 44. The cédula of July 16, 1776, ordered the confiscation of property left by foreigners, forbidding that it should be sent outside of the realm either by the juez de difuntos or by the testamentary executor. In accordance with this regulation the superintendent, in 1800, seized the property of a Spaniard who had married a lady of Madras. The Spaniard had left a will providing for the transfer of his property to his wife, naming an executor to administer the will. This was opposed by the juez de difuntos, but when the case was appealed the action of the superintendent was approved (Aguilar to Soler, July 8, 1800, A. I., 107-5-24).

[325] See Recopilación, 2-32-42.

[326] A case appealed to the Council of the Indies on June 4, 1806, involved the property of Antonio Rodríguez de la Peña, deceased. Rodríguez had bequeathed 35,875 reales to his father; the Augustinians claimed 11,875 reales, or one-third of the entire estate, for prayers said in behalf of the soul of the departed one. The contaduría general in Madrid refused to allow payment (Aparici to the Council of the Indies, June 4, 1806, A. I., 107-3-8).

[327] Recopilación, 2-32, note 7.

[328] Ibid., 10.

[329] Ibid., 32-33, 40, 60.

[330] Ibid., 16, 32, 33.

[331] Ibid., 16-18, 27-29, 31.

[332] Ibid., 46, and note.

[333] Ibid., 48-56, 59.

The report to the Council of the Indies of Pedro Aparici, general superintendent of real hacienda, on July 8, 1805, shows in detail the method of settlement in Spain. This report was submitted to cover the administration of the property of Alberto Reyes, who died in Manila in 1803. The statement was as follows:

Total property left 123,700 r.
Executor's commission 741 r. 16 m.
Administration 1,237 r.
Expenses 123 r. 18 m.
Total deductions 2,102 r.
Balance to be distributed among heirs 121,598 r.
Two-thirds left to brother as per will 81,066 r.
One-third left to parents as per will 40,532 r.

Another illustration of the disposal of money left under slightly different circumstances may be noted in the Royal Order of February 14, 1800, to the juez de arribadas at Cádiz. The king ordered the transmission of 8024 pesos to the royal treasury because of the impossibility of finding the heirs of Antonio Manuel Pereda, who died at Manila in 1767. By the terms of his will, 2000 pesos had been left to the Third Order of St. Francis, 200 pesos to poor widows and orphans, and the balance was left to his mother. The lady had died, however, and as there were no heirs apparent, the money was ordered transferred to the royal treasury (A. I., 107-3-9).

These large sums, constantly on hand, intact and available, were always a source of grave temptation to governors and treasury officials. Loans were frequently taken from this fund for ordinary or unusual expenses of the government. At first the juez de difuntos objected forcibly to the governor's seeming disregard of the royal instructions regarding these funds. The laws of the Indies had commanded that they should be held inviolable (Recopilación, 57, 70). As noted above, the practice had arisen of making deductions from the subsidy equivalent to the amount of bienes de difuntos produced in the Philippines, and of retaining the money in Acapulco. This practice worked havoc with the fulfillment of the law which had ordered that these funds be preserved intact. The governor and the treasury officials had fallen into the practice of appropriating such available funds as existed in the caja de difuntos for purposes of local administration, with the assurance that the money would be properly accounted for in Mexico. Governor Anda seems to have been a leading offender in this matter. In 1767 he borrowed 19,729 pesos from the juez de difuntos and in 1768 another sum of 30,000 pesos was taken (Landazurri to the Council of the Indies, May 22, 1770, A. I., 107-3-9). By the cédula of October 9, 1777, the king approved the action of Governor Anda in borrowing from these funds on three other occasions to the extent of 25,000, 14,206, and 24,477 pesos, respectively, for the fortification of the city. It was ordered that this should not be done again, however, except under extraordinary circumstances (A. I., 107-3-9).

After being permitted for a long period of time, the practice which the Manila authorities had followed of making these deductions was finally disapproved by the home government. In 1806, because of the non-arrival of the galleon with the subsidy, the governor (and superintendent) authorized an advance of 54,049 pesos from the bienes de difuntos, which sum constituted the entire amount on hand. On April 25, 1815, the fiscal of the contaduría general de las Indias handed down an adverse opinion on this action (A. I., 107-3-9). Although the practice of allowing small loans from the funds of deceased persons had been practiced in the Philippines in case of exceptional circumstances, it was his opinion that the whole proceeding had been contrary to the laws of the Indies (Recopilación, 2-32-57). He advised that in the future there should be no interference with this money until the deduction had been authorized by the juez de difuntos in Mexico, and the judge should act only after he had received the report of the corresponding official in the Philippines.

If the above advice were followed, at least a year would pass before the report of the Manila judge could reach Mexico, and be returned. It was not to be supposed that the officials in the Philippines would wait for any such formality when in need of money for the current expenses of government. This is another example of the cumbrousness and lack of expedition of Spanish colonial administration, as affected by time and distance. It will be noted, also, that this practice had been going on since the time of Anda (1768), and the Council of the Indies did not pronounce against it decisively until 1815. The particular litigation which brought about its condemnation arose in 1806 and continued throughout a period of nine years.

[334] Ibid., 60. See the articles on the Philippine situado by E. G. Bourne and James A. Leroy in the American historical review, X, 459-461, 929-932; XI, 722-723.

[335] Cédulas of November 26, 1776, September 9, 1778, October 13, 1780, June 12, 1783, February 17, 1786, A. I., 107-3-9.

[336] Aparici to the Council of the Indies, July 19, 1797, A. I., 107-3-9.

An examination of a few typical accounts of this department will show that the sums involved were always considerable. On June 6, 1767, the juez de difuntos in Manila had 45,563 pesos on hand; on June 17, 1781, 31,009 pesos; on June 29, 1783, 27,636 pesos; on July 28, 1801, 40,827 pesos (see reports of various jueces de difuntos. A. I., 107-3-9). The total receipts of the office of juez de difuntos in Manila for the year terminating January 25, 1819, were 10,750 pesos. Payments against the fund that year were 27,747 pesos, which were made possible by a balance on hand at the beginning of the year of 52,900 pesos (Report of Vicente de Posadas, Juez de Difuntos de Manila, January 25, 1819, A. I., 107-3-9). On March 31, 1828, the funds of this department amounted to 32,657 pesos (A. I., 107-3-9).

[337] The last state galleon left Manila for Mexico in 1811, and the last ship sailed from Acapulco to Manila in 1815 (Foreman, Philippine Islands, 243; and Montero y Vidal, Historia general, II, 413, note). The galleon service was suppressed by decree of the Cortes, September 14, 1813.--Ibid., 412.

[338] Recopilación, 2-32-7.

[339] Villacorta to the Council of the Indies, July 6, 1757, A. I., 106-4-15. The evidence of this case also exists in A. I., 107-3-9, and is cited in connection with a later dispute of the same character.

[340] Marquina to the Council of the Indies, June 18, 1790, A. I., 107-5-18.

[341] Recopilación, 2-32, note 2.

[342] Ibid., 5-12-14. Basco y Vargas to the King, June 6, 1778, A. I., 105-2-9.

[343] Cédulas of April 23, 1770, October 13, 1780, and May 4, 1794, A. I., 105-2-10.

[344] Recopilación, 2-32-28.

[345] Ibid., law 25.

[346] Cédula of May 4, 1794, A. I., 105-2-10.

[347] A. I., 106-4-17; 108-3-17; 105-2-10 to 32. See Bibliography under "Manuscripts used."

[348] The author has at his disposal abundant data for each subject covering each decade and century, showing that the powers mentioned were characteristic throughout. It is to be hoped that the reader will appreciate the impossibility of giving more than a few citations for each case, not because they are not available, but because there is not room for them. It was the writer's original plan to write two additional chapters, one on the commercial duties of the audiencia, and another on the financial powers. Because of a lack of space these chapters have been omitted.

[349] A. I., 106-4-18.

[350] As noted in the preceding chapter.

[351] King to the Audiencia, August 8, 1609, A. I., 105-2-1.

[352] Marquina to the King, January 18, 1790, A. I., 105-2-10.

[353] King to the Regent of Manila, January 24, 1794, ibid.

[354] See, Plan económico del gobernador de Filipinas José Basco y Vargas, 1 de Septre, 1779, y carta que lo acompaña, No. 157, de 11 de Dicre de 1779 (printed); A. I., 106-1-14; see Barrows, History of the Philippines, 242.

[355] Memorial of July 20, 1757, A. I., 106-4-15.

[356] See Moses, South America on the eve of emancipation, 27-31, for an account of the festivities and formalities at the installation of the viceroy at Lima. It will be noted that the audiencia played an important part in the ceremonies. Professor Moses here utilizes a description contained in Juan y Ulloa, Voyage, II, 46-50.

[357] Recopilación, 1-24-1 to 15.

[358] Ibid., 1 and 2.

[359] Ibid., 3; 15. The cédula of October 10, 1752, gave to the audiencia the right to authorize the publication of legal treatises, ordinances and enactments. The regent was given control over this matter by the Instrucción of June 20, 1776 (A. I., 106-212). See Montero y Vidal, Historia general, III, 304 and 485, with reference to the publication of the autos acordados of 1866.

[360] Ibid., 7 and 12.

[361] Ibid., 8.

[362] Ibid., 1 and 2.

[363] See Lea, The Inquisition in the Spanish dependencies, 70, 204, 265; 444-446.

[364] Acuerdo of January 26, 1816, A. I., 106-4-19.

[365] The constitutional reforms of 1812 included the separation of the governorship from the presidency of the audiencia. In 1814 the governor was again made president, and the offices were not entirely separated until 1861. The governor's intervention in matters of justice was merely nominal, however, after the creation of the office of regent, in 1776.--Cédula of March 11, 1776, A. I., 106-2-12; Royal Instruction to Regents, June 20, 1776, in Rodríguez San Pedro, VII, 22-23; Ordenanzas para el gobierno de la Audiencia de Manila, 9 de Octubre, 1812; A. I., 106-4-19; Acuerdo de 15 de Enero, 1814, ibid.

[366] Montero y Vidal, III, 30.

[367] Ibid., 251.

[368] Recopilación, 2-15-156 to 166.

[369] On the basis of this the governor compiled and sent to Spain a yearly report on the work of the magistrates, prosecutors, and subalterns of the audiencia, setting forth the salaries paid and character of services rendered, making recommendations for promotion or complaints against these officials. Vacancies in the tribunal were reported at the same time and in the same manner.

[370] Recopilación, 2-15-11. Note the brief discussion of this relationship in Smith, The viceroy of New Spain, 152-156. Dr. Smith shows that the chief purpose of the Spanish government in establishing the viceroy and audiencia together was to guarantee a check and balance of one upon the other. Quoting Revilla Gigedo (Instruction, Article 20), he says: "The presidency of the audiencia places the viceroy at the head of that body but not to give orders to it, as even his acts in matters of justice are subject to it; and although he is present at its sessions, which is very difficult, considering the grave and continuous occupations which so vast a command imposes upon him, he does not have a vote in matters which are regularly dealt with there--that is, matters of justice." Dr. Smith shows (162) that the effect of the later laws of the eighteenth century was to deprive "the viceroys absolutely of any part in the procedure of the administration of justice, either alone or in company with the other judges, voting with them in the audiencia" (from Revilla Gigedo, Instruction, Article 64). The limitation of the governor of the Philippines in legal matters is discussed further on in this chapter.

[371] See Moses, Establishment of Spanish rule in America, 70-71.

Philip III ordered the viceroy of New Spain to "give aid to the governor and captain-general of the Philippines in whatever may occur, and above all ... to send him on demand whatever may seem necessary of arms, men, munitions, and money for the conservation of those Islands, salaries, and presidios, and other matters under his care (Recopilación, 3-4-13)." The viceroys also exercised a certain degree of authority over the despatch of the galleons from Acapulco (ibid., 9-45-25 to 31, 47, 74 to 76). Aside from the points indicated, the Philippines were normally as independent of New Spain as the latter was independent of the Philippines.

[372] Bourne, "Historical introduction," Blair and Robertson, I, 49-50.

[373] Delgado, Historia de Filipinas, 212-215.

[374] Delgado illustrates this statement as follows: "The legitimate King of Borney, who had been dispossessed of his kingdom ... begged for help from Don Francisco Sande, Governor of these Islands. Governor Sande went with his fleet, fought with and drove away the tyrant, and put the legitimate king in possession; the latter rendered obedience to the governor, appointed in the place of the King of España, and subjected himself to this crown as vassal and tributary." Further on he writes, "His Majesty also ordered Sande, by a decree of April 9, 1586, to sustain friendship with China, and forbade him to make war; for, as some authors say, Sande had the intention of conquering that Empire, ... although it may be said that the idea was simply speculative; the Council forbade it, and ordered him thenceforth to observe what was prescribed" (ibid., see Blair and Robertson, XVII, 317-320, whose translation differs slightly from the above).

[375] Recopilación, 3-3-2; 63, 64; 3-14-1, 33.

[376] Instructions to Acuña, February 16, 1602, Blair and Robertson, XI, 273-4.

[377] Recopilación, 3-3-55; 3-2-33.

[378] Ibid., 3-3-56; 2-15-159.

[379] King to the Audiencia, December 4, 1777, A. I., 105-2-9. It was seen in the preceding chapter, that the audiencia reported to the Council of the Indies on the finances of the colony.

[380] Recopilación, 3-3-57.

[381] Ibid., 2-15-76 and 77.

[382] Ibid., 3-2-1 to 6; 2-15-172. Governors and viceroys were authorized by the cédula of April 20, 1776, to make permanent appointments to offices whose salaries did not exceed 400 pesos (ibid., 3-2, note 2).

[383] Ibid., 3-2-67.

[384] Ibid., 3-2-1, 10 to 12, 47, 48; 8-4-24.

[385] Ibid., 3-2-8.

[386] Villacorta to the King, July 6, 1767, A. I., 106-4-15.

[387] Recopilación, 3-2-3, 4 and note, 21, 22, 47, 70; 5-2-5, 7, 8-4-1.

[388] Ibid., 3-2-1, 2, 3, 8-4-1.

[389] Ibid., 51. After February 20, 1785, this regulation applied only to offices yielding more than 2000 pesos a year.--Ibid., note 17.

[390] Ibid., 27.

[391] Ibid., 33, 38.

[392] King to the Audiencia, August 9, 1609, A. I., 105-2-1.

[393] Fajardo to the King, December 10, 1621, Blair and Robertson, XX, 138-140.

[394] Recopilación, 2-15-34; 5-12-24; 2-16-29.

[395] Ibid., 2-2-70.

[396] Ibid., 3-2-45; 2-16-29.

[397] Although a sufficient number of oidores were usually present in Manila to suffice for the judicial needs of the audiencia, on many occasions there were only two or three available. When but few cases were before the tribunal, the junior oidor could easily be spared to act as fiscal. However, when a magistrate was needed, owing to the multiplicity of cases to be tried, or the absence of two or more magistrates on special commissions, the need was very urgent, and the fiscal was then liable to be called upon to serve.

[398] Recopilación, 2-16-30.

[399] Ibid., 3-2-67.

[400] Ibid., 2-15-173 and 174.

[401] Ibid., 3-3-70.

[402] Ibid., 3-14-6, 7; Felipe III to Fajardo, December 13, 1620, Blair and Robertson, XIX, 174-175.

[403] Recopilación, 3-14-5, 6, 8.

[404] Ibid., 2-16-59, 62 to 64; 3-3-39. A confirmation of the latter was so often reported that it seems to have been expected, and nothing was done about it. It would seem that practically every official in the colony conducted a mercantile business as a side-issue.

[405] Felipe IV to Fajardo, October 9, 1623, Blair and Robertson, XX, 259; Recopilación, 2-16-66, 67.

[406] Recopilación, 2-15-36, 39, 40.

[407] Ibid., 2-16-82 to 84.

[408] Ibid., 87.

[409] Ibid., 82, note 20 (Cédula of January 23, 1754).

[410] Cédula of July 13, 1789, A. I., 107-5-20. On June 21, 1784, the Council of the Indies recommended that permission to marry within his district be accorded to Oidor Ciriaco Gonzales Carvajal (A. I., 105-3-2); the same concession was recommended in the case of Oidor Felipe Cisneros, June 30, 1788 (A. I., 105-3-4), and again to Francisco Xavier de Mendieta, January 22, 1791 (A. I., 105-3-5).

[411] Royal order of April 3, 1848; Rodríguez San Pedro, Legislación ultramarina, VII, 79.

[412] Royal order of December 2, 1804, A. I., 106-4-18.

[413] Royal decree of October 13, 1806, A. I., 106-4-18.

[414] Laws of May 3, 1605 and September 5, 1620, Recopilación, 2-16-43 and 44.

[415] This was done, for example, by governors Fajardo and Bustamante, while this law was still in force (1618-1624 and 1717-1719, respectively). The observation of this law in Chile was commanded in a royal order expedited to the president of the audiencia there on September 22, 1725; see Recopilación, 2-16, note 13.

[416] Ibid., note 14.

[417] Ibid., 2-16-51.

[418] Discussed in Chapter IV of this treatise.