The Audiencia in the Spanish Colonies Part 11

There were two complaints most frequently made against governors. One of these was their commercial excesses and the other, their abuse of the power of appointment. The former consisted of the monopoly of galleon s.p.a.ce for themselves, or their friends, the acceptance of bribes from merchants for various favors, or the manipulation of the Chinese trade in some way for their own advantage. The tendency of governors to appoint their friends and relatives to office, notwithstanding the royal prohibition, and the apparent inability of the audiencia to prevent this was a source of complaint, especially during the early years of the colony. [520] Dishonest proceedings in the sale of offices, including the retention of the money received and the disposal of offices to friends for nominal sums, were among the irregularities of the early governors. These abuses the magistrates often knowingly permitted in return for some favor allowed them by the governor. That the laws which forbade these abuses of the power of appointment had been openly and flagrantly violated was a charge brought up repeatedly in the residencias of governors and magistrates. An examination of the correspondence of the seventeenth and eighteenth centuries would almost lead to the belief that the home government despaired of ever righting these wrongs, and left them unpunished, rather directing efforts towards reform in other channels in the hope of remedying greater defects.

Perhaps no governor more flagrantly disregarded the audiencia and the royal authority which it represented, or more frequently laid himself open to complaints on account of his violent conduct than Alonso Fajardo, who ruled from 1618 to 1624. Numerous charges were brought against him by the audiencia, some of which concerned itself, and some had to do with the general administration of the government. It was charged that Fajardo sought to usurp the judicial functions of the tribunal, and to a.s.sume control of the administration of justice. He had on one occasion broken up a session of the court during the trial of a certain person for murder, ordering a sergeant to take him out and hang him. Fajardo defended himself against this accusation by alleging that the criminal was a sailor from the royal fleet, whom he, as captain-general, had already condemned, and that the audiencia was acting illegally in entertaining the case. Fajardo was said to have released prisoners at his own pleasure, and to have abused the pardoning power. He had made threats of violence against the magistrates in the court-room.

The audiencia not only complained against this governor's interference with the exercise of its functions as a court, but it manifested a wider interest than the purely judicial by complaining against the excesses of the governor in his own administrative field. The charge was made that Fajardo had bought up due-bills and treasury certificates from the soldiers and other creditors of the government, at less than their face value, and had presented them to the oficiales reales, realizing the full amount on them, and retaining the proceeds. He was charged with exacting large sums from the Chinese in exchange for trading privileges, retaining the money himself instead of putting it into the treasury. He was said to have forced loans from the merchants in order to make up financial deficits, and to have taken money out of the treasury, secretly, at night. Another charge brought against him was that of allowing favorites to go out and meet the incoming s.h.i.+ps of the Chinese, thereby obtaining for himself and for them the choice parts of the cargoes in advance of the merchants of Manila. [521]

There is no evidence that the tribunal was able to put a stop to these abuses.

Oidor alvaro Messa y Lugo, in a letter written to the king on July 20, 1622, continued the campaign which had been started by the audiencia against this governor. He claimed that Fajardo had sought to prevent officials and private citizens from sending complaints to Spain against him by examining all the outgoing mail before it left the colony. The oidor showed that wastefulness, private trade, bribery, carelessness in the administration of the exchequer, neglect of s.h.i.+pbuilding, corruption, and personal violence were among the misdeeds of this governor. Messa reported that he had tried unsuccessfully to authorize the auditing of the accounts of the galleon for two successive years, in accordance with the royal instructions which ordered that it should be done at the termination of each voyage by the fiscal and two oidores. [522] Messa said that the governor feared to have the colony's finances examined for it was well known that they were in a deplorable state.

One instance of the governor's financial ingenuity which was given by Messa, ill.u.s.trates the limitations placed by the audiencia on the governor's appointing power. The audiencia relieved the secretary of government, Pedro Munoz, of his office upon the expiration of his term, selling the place to Diego de Rueda for 8000 pesos. Fajardo dispossessed Rueda and restored the office to its former inc.u.mbent for 1500 pesos. The audiencia's action in disposing of this office without the consent of the governor was justified by a law promulgated on November 13, 1581, ordering that offices should be bestowed only upon persons of such qualities and attributes as met with the approval of the royal justices. [523] The governor emerged triumphant in this contest, however, because it was generally recognized at that time that his word should be final in matters of appointment. Although we have seen in a former chapter that the governor consulted with the audiencia when an important appointment was to be made, the audiencia's intervention in matters of appointment depended largely on the strength of the tribunal and the relations existing between it and the governor. During this administration the audiencia was notoriously weak and harmony did not exist.

The memorial presented by Messa y Lugo was chiefly concerned with the story of his own arbitrary arrest and imprisonment at the instigation of Fajardo on trumped-up charges, as he alleged. The judicial inquiry lasted two months, and it furnishes an excellent example of the power of a governor over a weak audiencia. The occasion for the investigation had been a disagreement between the governor and the oidor over the latter's claim to act as administrator of the property of Oidor Alcaraz, who had died in office. The governor, by the appointment of a magistrate favorable to himself as juez de difuntos, had hoped to control the administration of the property, since Messa was under sentence of residencia, and the remaining magistrates of the audiencia were favorable to him. Moreover, Fajardo wished to forestall certain charges of misgovernment which he knew that Messa was prepared to make against him. Consequently the governor designated an alcalde of the city to conduct the residencia. Messa was given practically no opportunity to defend himself. His property was sequestrated, even to his wife's clothing. Seeing that he could not obtain justice, he escaped from prison and took refuge in a Dominican convent.

Messa, from the seclusion of the monastery, challenged the legality of the governor's procedure. According to his contention, the previous law authorizing the governor to name an alcalde ordinario to try an oidor, was now a dead-letter. Its chief defect had been that an alcalde, who was the creature of the governor, would always aim to render a decision pleasing to his master. He urged that the law then in force authorized the governor to proceed with the trial of an oidor, only upon consulting the audiencia, and moreover that resulting condemnations, if they were personal or corporal, should be confirmed by the Council of the Indies. [524] Messa therefore claimed that the governor had no authority to proceed with this case alone, since "those nearest (your Majesty), as are the auditors (oidores), cannot be imprisoned or proceeded against except by your Majesty or the royal Council, or by your order."

The oidor then proceeded to show the extent to which, in his opinion, the governor might intervene in the sessions and proceedings of the audiencia. He wrote:

The president, in virtue of his superintendency over the Audiencia, may ordain to the auditors what may be the just and reasonable in matters that pertain to the government and its conservation; and even, in the heated arguments that are wont to arise between the auditors, has authority, in case the nature of the affair might require it, to retire each auditor to his own house, until they make up the quarrel; and, should he deem it advisable, he may inform your Majesty. For the ordinance does not say that the president and alcaldes shall proceed, arrest, sentence and execute justice in criminal cases affecting the auditors. [525]

This is the interpretation which Messa placed upon the law giving authority over the trial of magistrates of the audiencia to the governor.

Messa then proceeded to discuss other matters relative to the respective spheres of the governor and audiencia. The governor had broken open the chest of the audiencia, extracting a large sum and spending it without accounting for the expenditure, and without any beneficial results. He was guilty of four murders, one of his victims being his wife. The audiencia should be empowered to try him for these crimes, but it lacked jurisdiction. During his term Fajardo had exercised such absolute power that justice had been paralyzed and litigants were holding back their suits from trial because justice could not be obtained in the audiencia. The governor had sent from the Islands more than a million pesos in goods and money, all of which he had obtained through fraudulent and illegitimate means.

The governor had quarreled finally with the oidores who had remained faithful to him; one of these had become incapacitated through sickness, while the other had taken refuge in a Jesuit convent. The audiencia was thus dissolved. The governor, feeling the need of a tribunal, withdrew the charges against Messa, and ordered the latter to come back and resume his office. The oidor complied, but his hostility toward the governor had in no way abated. Messa concluded his memorial with the request that a visitor should be sent to the colony to investigate the charges which had been made against the governor, and at the same time to restore the audiencia to its rightful position in the colony. He stated his conviction that the office of governor should be abolished, and that the audiencia should be empowered to act in his place. This belief he justified by the statement that the audiencia had already successfully acted in the capacity of governor and had administered affairs with great satisfaction.

The power which the governor had of imprisoning and chastising magistrates of the audiencia who dared to oppose him, enabled him to emerge victorious in his struggles with that body. He was even able to completely suppress the audiencia. Nevertheless he was obliged, through the need of the tribunal which he had vanquished, to restore it again, although it was opposed to him. In no less than three cases governors, in order to comply with the law requiring that there should be at least one oidor of royal appointment, were obliged to restore to the audiencia magistrates who had formerly been under arrest. Being in possession of all the powers of an executive, the governor was usually able to reduce the audiencia to subserviency, unless the dispositions of the opposing oidores were such that they would not submit. On the whole, the audiencia seemed unable to check the excesses of the governor, by virtue of its authority, and the oidores were obliged to confine themselves to protests and appeals to the king; these, only after years of delay, effected the removal or punishment of the governor and the appointment of another to continue his excesses.

The complaints which Messa made on this occasion resulted in bringing to the Islands a visitor who conducted a lengthy, though somewhat tardy, investigation. Fajardo was already beyond the punishment of earthy kings and tribunals. But his property was seized and his heirs were fined; aside, however, from the removal of various of Fajardo's subordinates, the government was but little better for the protestations and appeals made by the audiencia. The oidores, instead of obtaining the desired reform measures, were usually rewarded for opposing a tyrannical governor and appealing to the court for support, by a reprimand for quarreling and an admonition to be quiet and peaceful, to preserve harmony, to attend strictly to their own affairs, and to abstain from interference with the government. Indeed, judging from the many similar replies which the oidores received in answer to their charges against governors, it appears that the preservation of harmonious relations between the officials of the colony was much more important than good government. Usually, however, in these struggles between the audiencia and the governor the contentions of one side or the other were based on law and justice. The effectiveness of the Spanish colonial government would have been greatly increased had the Council of the Indies taken advantage of these opportunities to investigate the principles at stake and support the right side, rather than by issuing impotent injunctions and remonstrances.

The most significant controversy which ever occurred in the Philippines between the governor and the audiencia arose in connection with the banishment of Archbishop Pardo in 1683. It is not the purpose here to give a detailed account of the Pardo controversy, which will be discussed again in connection with the relations of the audiencia and the church. However, since this episode involves certain incidents ill.u.s.trating important phases of the relations.h.i.+p of the governor and the audiencia, it is desirable to refer to it here in considerable detail.

The real occasion for this conflict was the defiance of the laws of the royal ecclesiastical patronage by the archbishop, who insisted on making ecclesiastical appointments without consulting the governor. The governor appealed to the audiencia for support, and the tribunal exercised jurisdiction over the case on the basis of its right to try cases of fuerza and to prevent ecclesiastical judges from infringing on the civil jurisdiction. Juan Sanchez, the secretary of the audiencia, relates that, owing to the interference of the Dominicans and Jesuits, and their harsh public criticism from the pulpit of the audiencia and government, "the royal Audiencia felt obliged to advise its president, then Don Juan de Vargas, that he should apply a corrective to these acts." [526] This corrective was the banishment to Spain of certain individuals of the Dominican order to answer for their misdeeds and ultimately the exile of Archbishop Pardo from the city. It is enough to say that Governor Juan de Vargas Hurtado and the audiencia acted in harmony on this occasion, presenting a solid front to the ecclesiastical power. When the new governor, Curuzaelegui, arrived, however, he forced the audiencia to ask pardon and absolution from the archbishop, which the magistrates did on their knees. The new governor disgraced Vargas in the residencia, waiving for a time the residencias of the oidores. Pardo was recalled from exile, and the audiencia was forced to legalize his restoration to his see on October 25, 1684. Thus the new governor and the archbishop triumphed over the combined forces of the ex-governor and the audiencia.

It is clear that the power of the new governor was derived chiefly from his status as royal vicepatron, acting in conjunction with the archbishop. This power Vargas had formerly employed in co-operation with the audiencia, and thereby both had gained their victory over the prelate before the arrival of the new governor. Curuzaelegui used the same authority to recall Pardo; and in so doing he was probably the only governor in the history of the Islands who ever supported a prelate against the advice of the audiencia. The combination of a governor and an audiencia was much more frequent, as we shall see. The position of the governor was strengthened, also, by his commission to conduct the residencia of Vargas, and the respect which the audiencia had for him was increased by the fact that in judging the ex-governor's misdeeds he was also authorized to hold the oidores responsible for all their official opinions and acts in acuerdo with the disgraced governor. [527] Another source of the governor's strength was to be found in the royal instructions which he carried with him to stop the quarrels previously existing in the colony. The oidores very prudently submitted to the new governor, and therefore, for a time, they were patronized by the latter, who utilized their intimate knowledge of local affairs to aid him in obtaining control of the government and familiarizing himself with it. Meanwhile he literally held the residencia over their heads.

The att.i.tude of the new governor toward the audiencia during the first six months may be described as conciliatory. That he did not act with entire independence of it is attested by the fact that when Vargas appealed to the tribunal against the ecclesiastical penalties imposed by the archbishop, the governor signed the act ordering the absolution of his predecessor. When the archbishop persisted in his intention to humiliate Vargas on the ground that the Inquisition demanded such action, the new governor threatened again to expel the prelate if he did not desist. [528] His pacificatory efforts also resulted in a temporary cessation of the hostility between the archbishop and the audiencia; he held private conferences with the oidores, manifesting repeatedly his determination to proceed harmoniously with them. As a result of this treatment, the magistrates were emboldened to urge that the return of the prelate was contrary to law, and inconsistent with all precedent.

Finally, unable to resist the pressure exerted by the archbishop, and obtaining advance information of the royal condemnation of the audiencia for its acts in the banishment of Pardo, the governor arrested, imprisoned, and exiled the magistrates, temporarily reconst.i.tuting the tribunal with local and more subservient members. [529] Curuzaelegui's proceedings were thenceforth as high-handed as they had formerly been conciliatory, and from that time onward the residents of the colony were subjected to the rule of an absolute governor, aided by an unscrupulous and vindictive prelate and a subservient audiencia. Just before his imprisonment, Magistrate Bolivar, in a letter to the Minister of the Indies, described the chaos existent in Manila as follows:

Here there is no will, save that of a governor, since he is absolute, we all had to acquiesce, under compulsion and pressure, in the rest.i.tution of the archbishop; [530] ... to state the case in few words, the archbishop does whatever suits his whim, without there being anyone to restrain him. [531]

Fray Luis Pimentel, a Jesuit, in a letter which he wrote to a friend, stated that the arrest of the oidores by the governor had been inspired by personal spite and a desire for revenge. He had desired to punish magistrates Viga and Bolivar, particularly for their opposition to him in matters of administration and in his trading-schemes. The governor was also said to have been actuated by a suspicion that these oidores had formulated elaborate charges of misgovernment against him, and he desired to prevent these complaints from reaching the king. [532]

Pimentel proceeded to relate that the governor then found himself embarra.s.sed without the aid of an audiencia, and had accordingly formed another of his own selection. This body was careful to execute the governor's will in every particular; consequently there was no check on his misrule. This new audiencia approved all the acts of the archbishop and refused to entertain the appeals of the ex-governor,

royal decrees were despatched against the preachers (Jesuits) who zealously proclaimed from the pulpits the arbitrary and malicious character of the recent acts, and the Dominicans alone had the privilege to utter whatever absurdities they pleased in the pulpits.... No authentic statement of the evil deeds of these years can be sent to the court for the scriveners are intimidated and will not give official statements of what occurs, except what may be in favor of the governor and the archbishop. Item, (this) is written in much distrust and fear, on account of the numerous spies who go about prying into and noting everything that is done. [533]

Pimentel stated that the archbishop, who was a Dominican, had used this rupture between the governor and the audiencia, and the favor of the governor, particularly, as an occasion and pretext for imposing on the Jesuits and Franciscans. He had deprived them of their lands and parishes, and had obtained many favors for the Dominicans and Augustinians at the expense of the rival orders. "It seems as if the governor had come to the islands," Pimentel wrote, "for nothing else than to encourage the Dominicans in their rebellious acts, to trample on the laws, to abolish recourse to the royal Audiencia, to sow dissension, to be a tyrant, to disturb the peace, and to enable the archbishop to secure whatever he wishes, even though he imposes so grievous a captivity on the commonwealth." [534]

The Pardo controversy and its consequences show the extremes to which a weakened audiencia was reduced on occasion by a new governor who came to the Islands, armed with recent royal decrees instructing him to bring about peace and order. Curuzaelegui, a.s.sisted by the royal visitor, who bore instructions even more recent than those of the governor, imprisoned and exiled the oidores, confiscated their property and brought about their ruination and death. He then appointed another audiencia of his own choice. All these acts were strictly legal, and in accordance with his instructions. The governor's conduct before the appointment of the visitor was more lenient and tolerant than afterwards. This shows that he realized the necessity of fulfilling the royal will, the policies of which were entrusted to Valdivia for execution, even at the expense of harmony with the local tribunal. Had he not been a.s.sured of the support of the church on the one hand, and of the royal approval on the other, as shown by the commission of Valdivia, it is improbable that he would have broken with the audiencia, or would have attempted to use his power so extensively. The presence of an audiencia was necessary to the government of Curuzaelegui. This is shown by his conciliatory att.i.tude toward the tribunal of Vargas, until he knew that it was under the condemnation of the king, also by his own act in forming a new one. This controversy clearly ill.u.s.trates the extent to which a governor might use his power, and it shows, on the other hand, the indispensable character of the audiencia, even at a time when it was least powerful. Curuzaelegui, in the name of the king, completely obliterated the legally const.i.tuted audiencia, appointing another to serve until it could be legalized by regular appointment.

Chronologically speaking, the next great struggle which throws light on the subject which we are considering, occurred during the administration of Governor Bustamante (1717-1719). The audiencia was reduced to a deplorable state of helplessness and inefficiency on this occasion, and the circ.u.mstances surrounding its relations.h.i.+p with the governor were in many ways similar to those which have been described. For a period of two and a half years antecedent to the coming of Bustamante, the government of the Philippines had been nominally in the hands of the audiencia, but in reality, under the control of the senior magistrate, Torralba. One of the first acts of Bustamante, after his arrival in the Islands, was to take the residencia of Torralba, and this investigation led him to make serious charges against the other magistrates. In the residencia which followed, the finances of the colony were found to be in bad condition, and all the officials of the civil government, as well as many of the churchmen, were discovered to be deeply interested in private trade, to the neglect of their duties and to the detriment of the government. Large amounts of money were found to have been smuggled without permission into the colony on the galleon from Mexico. The accounts of the treasury department were discovered to have been loosely kept, and many of the officials, including magistrates of the audiencia, were found to be serving without financial guarantees. [535]

Bustamante immediately took steps to re-organize the government and to place the finances of the colony on a sound footing. He put a stop to the smuggling, forced the merchants to pay the authorized duties, and imposed fines on those who had been guilty of negligence and misconduct. At the end of six months the efforts of Bustamante had netted a sum of 293,000 pesos to the royal treasury. His successful efforts towards clearing up the finances of the colony, making every person pay his just dues without regard to position, rank, or affiliation, and the seeming harshness of his methods incurred general hostility and contributed largely to his downfall. [536]

His investigation of the finances was said to have revealed a shortage of over 700,000 pesos, for which he held Torralba and the other magistrates responsible, putting, most of the blame, however, on Torralba. All but one of the magistrates were arrested and incarcerated in Fort Santiago. Before this was done, however, Bustamante asked the advice of the archbishop, the religious corporations, and the universities, as to what steps he should take in the matter. He recognized that he would be seriously embarra.s.sed without an audiencia, but the investigations which he had made showed that all of the oidores were guilty of misappropriation of the government funds. Would he be justified in forming an audiencia of his own selection, composed of duly qualified lawyers, with one minister of royal designation remaining? It was his opinion that the presence of one regularly appointed magistrate would lend legality to the entire tribunal, so he asked advice as to which of the three oidores would be most suitable to retain. He cited as a precedent in favor of his reconst.i.tution of the audiencia the action of Governor Curuzaelegui in 1687 and 1688 when he exiled and imprisoned the oidores and reformed the audiencia with his own appointees. Bustamante proposed to do exactly what Curuzaelegui had done, that is, to act as president himself, appointing the fiscal as oidor, and designating a duly qualified lawyer and an a.s.sistant fiscal to fill the other vacant places. Bustamante expressed an apparently sincere desire to do justice to all. He desired, particularly, that the administration of justice in the courts should be allowed to proceed without interruption and without that loss to the commonwealth which would come from the absence of a tribunal. [537]

The replies given by the orders on this occasion involve important laws and principles which underlie the nature of the audiencia and its relation to the governors.h.i.+p. The archbishop, in a subsequent report to the king on the government of Bustamante, stated that all the religious authorities in the colony advised the governor against the destruction of the audiencia, and questioned the authority of the prelate to const.i.tute another. [538] It seems, however, from an investigation of the letters, that the Jesuits counseled the governor in favor of the proposed action. The reasoning of the Jesuit theologians was as follows: there should be retained in the Philippines, according to the Recopilacion de Indias, [539] four oidores and a fiscal for the proper administration of justice, and if the fiscal were the only remaining member of the old audiencia he would become an oidor in case of a vacancy, by virtue of the recognized law. [540] Owing to the mult.i.tudinous duties of the oidores and to the great importance of the audiencia, great harm would arise if there were not enough magistrates. Since the governor's jurisdiction extended to all departments of government, it was the opinion of the Jesuits that it was inc.u.mbent on him to take such steps as might seem necessary for the preservation of the government. This was specially imperative since it was his duty to see that there was no delay or neglect in the administration of justice. Inasmuch as the audiencia was indispensable to him as vicepatron in its jurisdiction over ecclesiastical affairs, and because of its consultative powers in all affairs of government and finance, the governor should have the right to create an audiencia, if one did not exist, or if the members who were regularly const.i.tuted by royal appointment were incapacitated from service. [541]

The opinion of the Dominicans of the University of Santo Tomas differed widely from that advanced by the Jesuits. Their advice coincided with that of the archbishop, being to the effect that it would not be convenient to qualify one of the ministers alone, but that all of them should be restored to the audiencia. This meant that Bustamante should recede from his position, remove all the oidores from prison, and accept them as an audiencia. If the three oidores deserved punishment it would be unfair to the remaining two magistrates to exempt one, and such action would lay the governor open to charges of inconsistency and favoritism. The Dominicans contended that only the king in council could suspend or remove oidores, and that such power was not given to any other authority, not even to a viceroy. [542] Though

in Sicily and Naples this right is granted, in the Indies the contrary is true, because only the king that appointed them may suspend them, and it is commanded that the viceroys must not interfere with or impede their jurisdiction. [543]

The Dominicans were of the opinion that the governor had authority to discipline the oidores, but in so doing he could not go so far as to remove them from the tribunal unless commanded to do so by the Council of the Indies. Whatever disciplinary action the governor might decide on, it should not be taken on his own authority, but in the execution of the orders of the Council of the Indies.

This opinion, the Dominicans alleged, was in accordance with the laws of the Indies. [544] They cited, in support of their argument, an instance in which the king reproved Galvez, the Viceroy of New Spain, because, without the authority of the Council, Galvez had suspended a magistrate of the Audiencia of Mexico, whom he should have honored and to "whom he should have accorded the treatment of a colleague." [545]

The Dominicans expressed the opinion that the prosperity of the Islands and the welfare of the government depended on the audiencia, and though it might be desirable to remove the oidores for personal guilt, it could not be done in this case without wrecking the entire government. The king, himself, had shown respect for the inviolability of the audiencia when, in 1710, he had judged all the ministers to be equally guilty of not having fulfilled the laws and ordinances on the occasion of the coming to the Islands of the Patriarch of Antioch, [546] satisfying himself with the removal of the decano only and allowing the other magistrates to remain.

Disregarding the advice of this learned body, turning a deaf ear to the protestations of the archbishop, and heeding only the counsel of the Jesuits, which was more favorable to his wishes, Bustamante proceeded to execute his own will in a manner which proved distasteful even to the order whose advice he was following. [547] He arrested and imprisoned the guilty magistrates and created a new tribunal out of his own clientele, leaving only Villa, a former magistrate, in office. The latter protested against the action of the governor, and retired to the convent of Guadalupe, near Pasig. Informed that there was a conspiracy against his life and needing the counsel of some person, or persons, on whom he could rely, Bustamante was well-nigh desperate. His government, as it then stood, lacked the complexity of legality which the presence of one oidor of royal nomination would have given it. In order to remedy this defect he released Torralba, the guiltiest of the former magistrates, and the man under arrest for the defalcation of 700,000 pesos of the king's revenue. Torralba's crimes had been notorious, and the act of Bustamante in a.s.sociating himself with a person of the unsavory reputation and the unpopularity of Torralba not only divorced him from whatever popular sympathy he might have had among the residents of the colony, but it aroused the hostility and antagonism of the Jesuits who had been heretofore the governor's friends. Aside from the unfortunate character of the act, it was also illegal, being contrary to the law which directed that in case an oidor were suspended from his place he should not be restored without the consent of the king and the Council of the Indies. [548]

The newly const.i.tuted audiencia busied itself at once with the task of government. Archbishop de la Cuesta, among others, questioned the legality of the tribunal's opposition to the excommunication of its members. He was arrested by the governor, and then arose the contest which culminated in the murder of Bustamante, in the suppression of his audiencia and in the first officially recognized government by a prelate in the Philippines. The archbishop reappointed all the former magistrates to office, with the exception of Torralba, and the misdeeds of the government of Bustamante were saddled upon the ex-magistrate.

Two noteworthy considerations stand out prominently in connection with this struggle; first, the influence of the governor over the audiencia, and his power to deprive regularly appointed magistrates of their positions and to const.i.tute a new audiencia if he chose, notwithstanding the prohibition of the laws, and, second, the complete control by a governor over an audiencia which he had created. It is not necessary to state that the Madrid government discredited all the later acts of Bustamante's administration, including the recall of Torralba, who was a self-confessed criminal under arrest, when restored by the governor. There is nothing to show, however, that the king disapproved of the acts of Bustamante in creating a new audiencia, unless it were the royal approval of Cuesta's act of reconst.i.tuting the old tribunal. Torralba, in his residencia, was made to suffer for all the misdeeds of his government (in reality that of the audiencia, Torralba being decano, 1715-1717), as well as for those of Bustamante (1717-1719).

The audiencia, after it had been reconst.i.tuted by the archbishop-governor, neglected to investigate the causes of the governor's death, alleging as a reason that

this proceeding will greatly disturb the community; that to proceed against these persons will be to cast odium on and grieve nearly all the citizens, since the commotion was so general; that all those who went out on that occasion did so "in defense of the ecclesiastical immunity, the preservation of this city, the self-defense of its inhabitants, and the reputation of the [Spanish] nation;" and that to carry out this plan would be likely to cause some disturbance of the public peace. [549]

In a word, the influence of the archbishop was sufficient to keep the audiencia from undertaking a formal investigation of the causes of the governor's death. It was quite generally recognized that the murder had been committed in the interests of the prelate, probably by an a.s.sa.s.sin who had been in his pay, or in that of his friends, the Jesuits. This is another ill.u.s.tration of the subserviency of the audiencia to the governing power, on this occasion a churchman, who had actively partic.i.p.ated in the removal of his predecessor.

An interesting though ineffective protest was made by the audiencia against the appointment of Jose Basco y Vargas as Governor of the Philippines in 1778. A communication was sent to the court describing the abject state into which the king had degraded the audiencia by subordinating it to a man whose t.i.tle and rank as Captain of Frigate gave him only the right to be addressed as You, while each of the magistrates enjoyed the t.i.tle of Lords.h.i.+p. The Council rejected the complaint as an absurdity, after which certain oidores conspired to bring charges against Basco y Vargas, to arrest him and to make Sarrio governor. The latter had been ad interim governor after the death of Anda, and he was at that time the beneficiary of the t.i.tle and position of segundo cabo, or second in command of the king's forces in the Islands. Sarrio refused to join the magistrates in their revolt against the governor. Basco y Vargas was informed of their treason, and it is significant that he complied with the royal laws, not by attempting to punish the offenders himself, but by sending the recalcitrant magistrates to Spain where they were dealt with by the Council of the Indies. [550]

This was only a prelude to the discord which existed throughout the administration of this able governor. The king was obliged to issue special cedulas on various occasions, ordering a cessation of the perpetual discord. [551] Basco y Vargas formed a society for the advancement of the economic interests of the Islands, [552] and in that, as well as in his successful organization of the profitable tobacco monopoly, he was opposed by the audiencia. The tribunal claimed that the governor was limiting its sphere of authority in inaugurating these reforms. [553] Basco y Vargas recommended and brought about the separation of the superintendency of real hacienda from the rest of the government. This the audiencia also opposed, but in the contest over jurisdiction which ensued between the governor and the intendant, the governor and the audiencia acted in complete harmony, because this new official threatened their mutual interests and prerogatives. [554]

Outlawry and highway robbery became so common throughout the Islands during the term of Basco y Vargas that the governor appointed prosecutors, sheriffs, and judges-extraordinary to a.s.sist in the preservation of order, which the alcaldes mayores were not able to accomplish by themselves. The audiencia, feeling that this was a grave intrusion upon its prerogatives, appealed to the king and succeeded in bringing the sovereign displeasure upon the head of the governor. The royal cedula stated that there was no need of these additional officials. The judicial machinery which had been provided for the Philippines from the beginning was sufficient. The governor was warned, furthermore, to abstain from meddling with the jurisdiction of the audiencia. [555] This case confirms the statement already made in this treatise that during this period and, in fact, after the establishment of the regency in 1776, the governor exercised a diminished authority in judicial affairs. When Basco y Vargas took his office as governor of the Philippine Islands, he was obliged to subscribe to two oaths, one as governor, and the other as president of the audiencia, but he was warned by a special decree of the king to keep from confusing these two functions as former governors had done. [556]

Many disagreements took place between the audiencia and Governor Marquina, who succeeded Basco y Vargas. Marquina quarreled with the audiencia over almost every act of government in which he had relations with the tribunal. Marquina was said to have repeatedly disregarded the acuerdo and to have done as he pleased in matters wherein the audiencia had been or should have been consulted. There was a bitter contest in 1789, shortly after the arrival of this governor, because he had excused various officials of real hacienda from appearing when summoned to the audiencia to serve as witnesses. Marquina did this, he claimed, because they were needed in the provinces as financial agents, and because their absence from their posts of duty would entail a grave loss to the government. The audiencia solved the matter by forwarding all the correspondence relative to these cases to the Council of the Indies. It may be said that Marquina, in exempting these witnesses, was acting in his capacity as president of the audiencia, but in his solicitude that no loss should occur to the royal exchequer he was acting as superintendent of real hacienda, which was within his authority. [557]

In 1790 Marquina recommended the abolition of the audiencia on the grounds that its continued presence const.i.tuted an obstruction to the harmonious working of the machinery of government. He said that the tribunal was a powerful weapon in the hands of men who used it for their own personal advancement. In the place of an audiencia he suggested the subst.i.tution of three asesores, one for civil and criminal cases, one for real hacienda, and another for commerce and the consulado. These asesores would have jurisdiction over the cases which corresponded to these three departments. This scheme, he believed, would effectively provide for all the judicial cases arising in the Islands. [558] To this scheme, however, the Council paid no heed.