Читать книгу The Audiencia in the Spanish Colonies - Charles Henry Cunningham - Страница 6

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The Spanish system of colonial administration was an adaptation beyond the seas of fundamental administrative, judicial and ecclesiastical institutions and principles which had grown up and had proved serviceable throughout a long period of successful use in Spain. As the audiencias and their allied officials had shown themselves to be efficient as agencies of centralization in the isolated provinces of Spain, so they were utilized, by the organization which they effected, to bring the colonies nearer the mother country. When Spain was confronted with the necessity of governing her vast empire, it was natural that she should profit by her former administrative experience, and make use of those institutions of government which had proved successful at home.

The purpose of the present chapter is to emphasize the fact that, these institutions which had served in Spain, and were still in process of development there, were utilized in all of the colonies. The Philippine audiencia, which will be more particularly studied in subsequent chapters, was not a rare and isolated exception, but rather an integral part of a great administrative system.1 This will more clearly appear from a sketch of the early development of colonial administration.

In accordance with the terms of the concession made by the Catholic Monarchs at Santa Fé on April 30, 1492, Columbus was given the title of “Admiral, Viceroy, and Governor of the Undiscovered Lands and Seas of the Indies.”2 He was likewise entrusted with the duty of proposing three candidates for the government of each colony, and from these three names the king was to select one. It was further provided that the alcaldes and alguaciles for the administration of justice should be named by Columbus, and that he should hear appeals from these minor judges in second instance. This is a brief outline of the first government and judiciary provided for the New World. It is improbable that this arrangement was the product of any great amount of study or reflection. It was formulated before the New World had even been discovered, and this scheme, as well as the conditions of commerce and tribute which went with it, were largely proposed by Columbus, and acceded to by the Catholic Monarchs without anticipation of the tremendous consequences which were to come from that voyage of discovery and those which were to follow it.

When Columbus undertook his second and later voyages the Catholic rulers began to modify the conditions of the original compact by sending royal representatives with him to take account of his expeditions. The difficulties which Columbus had in the government of his West Indian colony are too well known to be more than referred to here. Through the influence of Fonseca, and the gradual realization of the tremendous size and importance of the new dominions, the rulers of Spain began to feel that a mistake had been made in granting to this Genoese sailor and to his heirs the complete proprietorship and government of this distant empire. The abrogation of the contract was a natural consequence. It was the repudiation of a colonial system which had been created in the dark, and formulated without a knowledge of the conditions and problems to be met. Such an arrangement was foredoomed to failure, and if the colonies were to be administered successfully, reform was necessary.

In 1507, the towns of Española petitioned the king for the same privileges and forms of government as were possessed by the towns of Spain. The request was granted, and municipal rights were bestowed upon fourteen towns. These concessions included the privilege of electing their own regidores and alcaldes ordinarios3 and the rights of local legislation and administration of justice. The principle was subsequently enunciated that,

inasmuch as the kingdoms of Castile and of the Indies are under one crown, the laws and the order of government of one should be as similar to and as much in agreement with the other as possible; our royal council, in the laws and establishments which are ordered, must strive to reduce the form and manner of their government to the style and order by which the kingdoms of Castile and León are governed and ruled, to the extent that the diversity and difference of the lands and nations permit.4

In 1511, a tribunal of independent royal judges was constituted in the colony of Española to try cases appealed from the town magistrates and the governor.5 This judicial body may be considered as the predecessor of the royal audiencia which was established fifteen years later. The organization and purpose of the tribunal were exactly similar to those of the courts existing in the frontier provinces of Spain before the establishment of audiencias. The chief reason for its creation was the need of checking the abuses of an absolute governor. This tribunal was composed of three magistrates, who were possessed of the licentiate’s degree, designated as alcaldes mayores, and appointed by the king. They were empowered to hear and determine appeals from the governor and from his tenientes and alcaldes.6 These magistrates, acting collectively, became at once official organs for the expression of the needs of the colony in non-judicial matters, frequently presenting memorials to the Council of the Indies independently of the governor.7 The crown had already assumed direction of the administrative and executive affairs of the colony of Puerto Rico, on August 15, 1509, by naming a special governor for that island. On July 25, 1511, Diego Colón, son of the discoverer, was named governor of Española, and of the other islands and of the mainland discovered by his father. This latter act of royal intervention did not confirm, but rather abrogated in practice, the claims of this same Colón to the inheritance of the provinces which had been given formerly to his father. This act maintained the pre-eminence and authority of the Spanish monarchs in these territories.8 The further growth and development of the West Indian colonies, and especially the increasing Spanish population, called for the establishment of a more efficient tribunal of administration and justice. This need was met in the creation of the first audiencia in America, that of Santo Domingo, which was established September 14, 1526.

The law, which has been cited already, providing that the administration of the Indies should be patterned in all ways after the governments of Castile and León, shows very clearly the natural influence of the early history and institutions of Spain. The audiencias established in the colonies were at first similar in jurisdiction and organization to those of Spain, which country had already succeeded in governing provinces that were, in effect, almost as isolated and as far from actual contact with the court as were the Indies. The audiencia of Spain had proved of immense value as an agency of direct control. It had been found satisfactory under conditions very similar to those in the Indies, which were not regarded as foreign possessions, but as integral parts of Castile, being the property of the monarchs of that kingdom, and under their personal direction.

Before proceeding with a description of the growth of the audiencia system, it is desirable, first, to note the establishment in Spain of two organs for the administration of colonial affairs. These may be examined here conveniently, because their creation antedated the institution of the audiencia in the colonies. The first, chronologically, as well as in importance, was the Casa de Contratación, which was created January 10, 1503.9 This essentially commercial body was intended at first to supervise the import and export trade of Spain with the colonies, and to arrange for the sale and distribution of imported articles, concessions of cargo to individuals, the lading and discharging of cargo, and the collection of duties. The functions of this body were soon amplified to the extent that it was given jurisdiction over emigration to the colonies. In 1509 it was granted further authority over certain criminal cases relating to trade, and in 1510, letrados were added to the tribunal of the Casa for the better determination of legal affairs.

As established in 1503, the Casa de Contratación consisted of a treasurer, auditor (comptroller), and factor.10 That the institution flourished and increased in importance may be deduced from the reform of Philip II, on September 25, 1583, whereby the above mentioned officials were retained and a royal audiencia was created within the Casa. This was composed of three jueces letrados and a fiscal, besides the numerous subordinate officials who usually accompanied the judicial tribunal.11 Though at first it exercised some of the functions which belonged later to the Council of the Indies, it came subsequently to be subordinate to that body.12 It was transferred to Cádiz in 1717, and was suppressed by the royal decree of June 18, 1790.13 its remaining attributions being assumed by the Consulado of Seville.14

The beginnings of the Council of the Indies may be noted in the creation of a special committee of the Council of Castile for the supervision of administrative affairs in the colonies. This was eight years after the establishment of the Casa de Contratación, when another need than the purely commercial, for which the Casa de Contratación had served, began to be felt.15 The inadequacy of the system devised by the Catholic Monarchs at Santa Fé had already become evident. The problems of administration in the colonies were making clear the need of a more effective system of regulation. Just as the number of suits to be tried before the old tribunal de la cort del rey had increased to such an extent that the king could no longer attend to them personally, so the problems of administration in the new colonies demanded more attention and regulation than could be provided by the administrative machinery at hand. The functions of this new tribunal, if it may be designated as such at this time, do not seem to have been clearly expressed at first, at least by any law or decree now at hand, but it appears that they were advisory rather than administrative. It soon became evident that a distinction had to be made between the prerogatives of this council and those of the Casa de Contratación. During the early history of these two tribunals there was considerable conflict of jurisdiction between them. It is probable that until the reform of August 4, 1524, was promulgated, active supervision of colonial affairs was maintained by the Council of Castile, both the Casa de Contratación and this new tribunal of the Indies acting under its direction. Charles V gave new life to the tribunal of the Indies on the above date by assigning to it definite legislative and administrative powers, putting at its head Loaysa, the general of the Dominican order and his own confessor. The Council was further modified by Charles V in 1542, and by Philip II in 1571, in the following terms:

It is our royal will that the said council shall have the supreme jurisdiction in all our occidental Indies ... and of the affairs which result from them, ... and for the good government and administration of justice, it may order and make with our advice, the laws, pragmatics, ordinances and provisions, general and particular, ... which ... may be required for the good of the provinces ... and in the matters pertaining to the Indies, that the said our council be obeyed and respected, and that its provisions in all, and by all be fulfilled and obeyed in all particulars.16

The Council of the Indies, as established in 1524, consisted of a president, a high chancellor, eight members who were lawyers, a fiscal, two secretaries and a lieutenant chancellor.17 All these were required to be of noble birth and qualified by experience and ability to carry to a successful issue the high responsibilities which they were called upon to discharge.18 Besides there was a corps of accountants, auditors, copyists, reporters and clerks. The number of these last-mentioned functionaries was enormous, especially in subsequent years, when correspondence with twelve or thirteen different colonies was maintained.

The Council of the Indies was the high court of appeal to which all cases from the colonial audiencias came for final adjudication. It was, however, not only a court of appeal in judicial matters, but also a directive ministry for the supervision of the administrative acts of the colonial audiencias and executives.

The unqualified success of the Audiencia of Santo Domingo, both as a tribunal of justice and as an administrative organ, led to the general establishment of the institution throughout the Spanish colonial empire. The audiencias which were created in Spain’s colonies from 1526 to 1893 follow in the order of their establishment.19

Santo Domingo, created September 14, 1526, consisting of a president, four oidores,20 and a fiscal.

Mexico,21 created November 29, 1527, consisting of two chambers or salas, a criminal and a civil, a president, eight oidores, four alcaldes del crimen, and two fiscales for civil and criminal cases respectively.

Panamá, created February 30, 1535, with a president, four oidores and a fiscal.

Lima, created November 20, 1542, with two chambers, a civil and a criminal, a president, eight oidores, four criminal alcaldes, and two fiscales, as in Mexico.

Santiago de Guatemala, created September 13, 1543, with a president, five oidores, and a fiscal.

Guadalajara, created February 15, 1548, with a president, four oidores, and a fiscal.

Santa Fé (New Granada), created July 17, 1549, with a president, four oidores, and a fiscal.

La Plata (Charcas), created September 4, 1559, with a president, five oidores, and a fiscal.

San Francisco de Quito, created November 29, 1563, with a president, four oidores, and a fiscal.

Manila, created May 5, 1583, with a president, four oidores, and a fiscal.

Santiago de Chile, created February 17, 1609, with a president, four oidores, and a fiscal.

Buenos Ayres, created November 2, 1661, with a president, three oidores, and a fiscal; recreated July 2, 1778, when Buenos Ayres was made a viceroyalty.

Caracas, created June 13, 1786, with a regent, three oidores, and a fiscal.

Cuzco, created February 26, 1787, with a regent, three oidores, and a fiscal.

Puerto Rico, created June 19, 1831, to consist of a president, regent, three oidores, and a fiscal.

Havana, created September 26, 1835, reorganized June 16, 1838, to consist of a regent, four oidores, and two fiscales.22

Puerto Príncipe, transferred in 1797 from Santo Domingo, reorganized September 26, 1835, to consist of a regent, four oidores, and a fiscal. This audiencia was suppressed and its territory added to that of Havana on October 21, 1853. It was recreated on February 22, 1878, and on May 23, 1879.

Santiago de Cuba, created September 26, 1835, to consist of a regent, four oidores, and a fiscal. This audiencia was later suppressed, and its territory was added to the Audiencia of Havana; it was again reformed and added to Puerto Príncipe on February 22, 1878.

Cebú (Philippines), created February 26, 1886, to consist of a president, four magistrates, a fiscal, and an assistant fiscal.

Vigán (Philippines) created on May 19, 1893, to consist of one chief justice, two associates, a prosecuting attorney, and an assistant prosecutor.

It will be noted that the audiencias of Mexico and Lima contained the greatest number of magistrates. They were divided into two salas, a civil and a criminal, with appropriate judges and fiscales for each.23 The judges of the criminal branch were designated as alcaldes and not as oidores. These audiencias were at first conterminous in territorial jurisdiction with the respective captaincies-general of those names, but they enjoyed no greater power or pre-eminence before the Council of the Indies than the audiencias of the lesser captaincies-general. In the words of the royal decree of establishment,

there are founded twelve royal audiencias and chanceries ... in order that our vassals may have persons to rule and govern them in peace and justice, and their districts have been divided into governments, corregimientos and alcaldes mayores who will be provided in accordance with our orders and laws and will be subordinate to our royal audiencias and to our Supreme Council of the Indies ... and may no change be made without our express order or that of the Council.24

Many changes were made in the territorial jurisdiction of the various audiencias. The audiencias of Lima and Mexico, in addition to their jurisdiction over their respective viceroyalties, exercised governmental authority over the adjacent districts when the viceroys were absent; the Audiencia of Lima over Charcas, Quito and Tierra Firme (Panamá), and that of Mexico over what was later Guadalajara, the Philippines, and Yucatán. All of these, except the latter, came to have audiencias, with the usual powers and authority.25

The first seven audiencias were founded by Charles V. Three were created by Philip II. The audiencias of Santiago de Chile and Buenos Ayres were established by Philip III and Philip IV, respectively. The greater number of these audiencias was created at the time of the most rapid extension of the tribunals in Spain; their establishment was part of the same general tendency; they were therefore closely related. When the audiencias of Santo Domingo and Mexico were formed, there had been already in existence in Spain the chanceries of Valladolid, and Granada. Thirteen audiencias were established in Spain after those of Santo Domingo and New Spain were created in the colonies. The two Spanish audiencias mentioned above were designated as models for the tribunals of the Indies, and the principle was laid down that if a necessary provision was omitted from the laws of establishment of the colonial audiencias, “all the presidents and audiencias of those our realms are ordered to preserve the order and practices which are followed in the chanceries of Granada and Valladolid.”26

Territorially, the audiencias of Santo Domingo, Mexico, and Lima were the nucleii from which and around which most of the other audiencias were established. Being the first in their respective sections, they included more territory than they could govern with facility; thus it later became necessary to divide up their districts. Santo Domingo held sway at first over Española, Cuba, and Puerto Rico, with authority also over Venezuela and subsequently over Louisiana and Florida.27 New Granada was conceded an audiencia in 1549, and to this province were added the possessions of Panamá when the audiencia of that name was suppressed. The Audiencia of Mexico, created eight years before New Spain was made a viceroyalty, had territorial jurisdiction at first over a vast empire, which was later divided into smaller governments with audiencias. Its limits, as defined in the laws of the Indies, extended on both oceans from the Cape of Florida to the Cape of Honduras, and included Yucatán, and Tabasco.28

The audiencias of Guadalajara, Santiago de Guatemala, and Manila all set definite limits to the jurisdiction of the Audiencia of Mexico. The Audiencia of Lima had authority at first over most of Spanish South America, but its scope was in the same manner diminished from time to time by the establishment of the audiencias of Santa Fé, La Plata (Charcas), Quito, Santiago de Chile, and Buenos Ayres. Before the Audiencia of Cuzco was instituted in 1787, jurisdiction over that ancient city and district was divided between the audiencias of Lima and La Plata; Árica, although it belonged to the district of Lima, was not governed under that jurisdiction, but was administered by a corregidor directly responsible to the audiencia at Charcas.29 Chile and Panamá were subordinate governmentally to the viceroy of Perú, but the audiencias were independent.30

Cuba was early divided into two districts under the rule of captains-general, those of Havana and Santiago de Cuba.31 By cédula of February 24, 1784, Havana was made independent of the Audiencia of Santo Domingo in administrative matters. Aside from the one at Puerto Príncipe, audiencias were not created in Cuba, however, until 1835 and 1838, respectively. Prior to this, Cuba was subject to the Audiencia of Puerto Príncipe, the successor of Santo Domingo, in judicial matters, as the governments in Cuba were military. However, military cases were carried before the captains-general of Havana and of Santiago de Cuba, respectively.32

Although all the audiencias had the same rank before the Council of the Indies, both as political and judicial tribunals, those of Lima and Mexico may be said to have been tribunals of the first class, for reasons which we have noted. Indeed, it must be remembered that it was the individual captaincy-general that had an audiencia, whether the captaincy-general happened to be a viceroyalty or not. Judged by the amount of power they exercised, there were three classes of audiencias: those of the viceroyalties, of the captaincies-general, and of the presidencies. On this basis of classification, it may be said that the first-mentioned were the superior institutions. In matters of military administration, the captains-general had the same power as the viceroys, while the audiencias exercised less intervention in the government than in the presidencies. In the latter, the audiencias (and presidents) exercised governmental functions as well as judicial, with appeal to the viceroy. Though they had no military power, and their scope was strictly limited in financial affairs, these audiencias actually governed their districts. This the audiencias of the viceroyalties never did, except when they governed ad interim.

Before proceeding with a study of the powers and duties of the colonial audiencias, it would be well to compare them, as to extent of jurisdiction and authority, with those which were in operation in Spain. Were they equal? Did the colonial institutions, on account of their isolation, exercise prerogatives which were unknown to the tribunals of the Peninsula, or vice versa? These questions were answered by Juan de Solórzano y Pereyra, a distinguished Spanish jurist, oidor of the Audiencia of Lima in 1610, and subsequently councillor of the Indies.33 Solórzano y Pereyra illustrates fourteen points of difference wherein the audiencias of the colonies exceeded those of the Peninsula in power and authority, in these matters exercising jurisdiction equal to the Council of Castile. This, he said, was “on account of the great distance intervening between them and the king or his royal Council of the Indies, and the dangers which delay may occasion.” Therefore, he said, the audiencias had been permitted many privileges and powers denied to the audiencias of Spain. The most important of these powers were as follows: jurisdiction over residencias of corregidores; the right to send out special investigators (pesquisidores); supervision over inferior judges—seeing that they properly tried cases under their authority, care for the education and good treatment of the Indians in spiritual and temporal matters, and the punishment of officials who were remiss in that particular; the collection of tithes; the assumption of the rights and obligations of the royal patronage, as well as jurisdiction over cases affecting the same, the building of churches, the installment of curates and holders of benefices, and the inspection and possible retention of bulls and briefs.

The colonial audiencias were instructed to guard the royal prerogative, and were authorized to try all persons accused of usurping the royal jurisdiction. They were to see that officials, lay and ecclesiastical, did not charge excessive fees for their services, limiting especially those exorbitant charges which priests were apt to demand at burials, funerals, marriages and baptisms. The colonial audiencias were given supervision over espolios,34 collecting, administering and disposing of the properties left by deceased prelates, and paying claims of heirs and creditors. Another duty was the restraining of ecclesiastical judges and dignitaries through the recurso de fuerza.35 This authority had been permitted to the chanceries of Valladolid and Granada, only.

Although viceroys and governors were granted special jurisdiction over administrative matters, they were authorized to call upon the acuerdos36 of the audiencias for counsel and advice whenever an exceptionally arduous case presented itself. The audiencias were permitted to entertain appeals against the rulings of viceroys and presidents, but these appeals could be carried again to the Council of the Indies. In the same manner that affairs of government belonged to the private jurisdiction of the executive, so did financial matters, according to Solórzano y Pereyra. In these, however, the viceroy or governor was assisted in the solution of perplexing problems by the acuerdo general de hacienda, a body composed of oidores, oficiales reales37 and contadores. On the death, disability, or absence of the viceroy or governor and captain-general it was ordered that the government should pass under the charge of the entire audiencia. Lastly, Solórzano y Pereyra pointed out that while the sole duty of the Spanish oidores was to try cases, the magistrates of the colonial audiencias were called upon for a number of miscellaneous functions, such as those of visitador, or inspector of the provinces, or of other departments of the government, as asesor of the Santa Cruzada,38 as inspector of ships, as auditor de guerra, as asesor of the governor, and as juez de las executorías, under commission of the Council of the Indies to collect and remit to the government receiver all money derived from fines and penalties imposed by official visitors (visitadores), judges of residencia, etcetera.39

With the exception of the entertainment of the recurso de fuerza, none of the above-mentioned functions could be exercised by the audiencias of Spain. Although the colonial audiencias were to a large extent patterned after those of Spain, they had greater power and exercised more extensive functions almost from the beginning. This was chiefly owing to the added responsibilities of government resulting from the isolation of the colonies and their distance from the home government. The audiencias in Spain remained almost purely judicial. There was no need or opportunity for them to encroach upon the executive, or to usurp its functions, because of the control exercised by its immediate representatives. In the colonies the audiencias were themselves established as the agents of the royal authority, with the special duty of limiting the abuses of the officials of the crown. In this capacity, aside from their customary duties, the tribunals exercised far-reaching authority of a non-judicial character.

It is desirable to point out in this connection that all the colonial audiencias utilized the same law in common. Cédulas, edicts, and decrees were issued to them from a common source, to be executed under similar circumstances, or on particular occasions when local conditions demanded such action. The great code of 1680, the Recopilación de leyes de los Reinos de las Indias, has already been described as containing laws, both general and particular, for the regulation of the colonial audiencias.40

In the foregoing paragraphs attention has been directed briefly to the relations of the audiencias and executives with each other, and with the central government. Some notice at least should be given to the means by which the will of the executive and judiciary was enforced and executed upon and in the local units, the provinces and towns. We have already seen that the offices of the corregidores, alcaldes mayores and the alcaldes ordinarios developed in Spain, the first with jurisdiction over the larger districts, the alcaldes mayores over the smaller areas and large towns, and the alcaldes ordinarios in the municipalities. In a general sense, this system was carried into the colonies; the corregidores and alcaldes mayores were in charge of the large provinces and districts, the alcaldes ordinarios were the judges of the Spanish towns.

Much the same intercourse and relations existed between these officials in the colonies as had been characteristic of the similar ones of Spain. But there were some differences: while in Spain the alcaldes were in most cases city judges, subject to the corregidores,41 in the colonies there was little or no difference between alcaldes mayores and corregidores. They were most frequently appointed by the executive, sometimes independently, sometimes by the assistance and advice of the audiencia, as judges and governors of the provinces, although the laws of the Indies provided for their appointment by the king. The practice developed of designating them locally, and of sending their names to Spain for confirmation. Each alcalde mayor or corregidor resided at the chief town of his province and combined in himself the functions of judge, inspector of encomiendas, administrator of hacienda and police, collector of tribute, vicepatron and captain-general.42 He was assisted by officials of a minor category, frequently natives, who exercised jurisdiction over their fellows. The law also provided for a teniente letrado to assist the alcalde or corregidor,43 but in the Philippines there was no such official, except at irregular intervals in the Visayas.

These chiefs of provinces were responsible to the audiencias in matters of justice and to the viceroys or captains-general in administrative affairs. In Indian relations and in questions involving encomiendas they were subject to the executive, who had jurisdiction in first instance, with appeal to the audiencia. The tribunal could grant encomiendas in default of the regularly appointed executive. In financial matters the corregidores and alcaldes mayores were responsible to the executive, but they acted as the agents of the treasury officials (oficiales reales) in the collection of the revenue. In their provinces they supervised the building of ships, the construction of roads and bridges, the repartimientos or polos44 of Indians, and the planting of tobacco when the tobacco monopoly existed in the Philippines. In these matters they were responsible to the governor, viceroy, or superintendent, and to the various juntas reales and committees, of which at least one oidor was always a member.

Tributes from the Indians, tithes from the encomenderos and other kinds of local taxes were collected by the alcaldes mayores and corregidores. Acting for the vicepatron, these officials represented the subdelegated authority of the king over the monasteries and churches of their provinces. They officiated at the formal bestowal of benefices, they were expected to maintain harmonious relations with the priests and friars in their provinces, and to check, by their personal presence and intervention, if necessary, any tendency on the part of the churchmen to abuse the Indians or to impose upon them.

In like manner they were supposed to prevent the ecclesiastical judges from exceeding their power, and particularly from transgressing the royal jurisdiction, which frequently occurred in the earlier years when that authority had not become clearly defined or firmly established. As the churchmen with whom these officials had to deal derived their authority from the higher prelates and the provincials of the orders and often acted by their direction, their opposition to the local officials of the civil government was frequently so effective that the latter were obliged to appeal to the audiencia. The latter tribunal had the power necessary to deal with these cases, and to restrain the offending churchmen, by bringing pressure to bear upon their prelates and superiors.

The provincial governors also had certain military duties. In the northern provinces of New Spain they had charge of defense, with responsibility to the viceroy.45 In the Philippines, however, and in certain parts of New Spain, where the captain-general took the place of the viceroy, alcaldes mayores and corregidores acted as lieutenants of the captains-general, exercising authority of a military character.46 They were required to defend their provinces and districts against invasions, insurrections, Indian outbreaks, and disturbances. They were authorized to impress men for military service. Local conditions in Mexico, Perú, Central America, and the Philippines caused some differentiation in these matters. This description will serve to convey an impression of the nature of the duties of these officials and the way in which they acted as the agents of the captain-general, viceroy, and audiencia.47

It has been already pointed out that the alcaldes mayores and corregidores had extensive judicial duties; a mere restatement of that important fact will suffice at this time. In subsequent chapters we shall study in detail numerous illustrations and instances of the judicial functions of the provincial judges. It has been noted also that the alcaldes ordinarios were the judges of the Spanish towns. So they were in the Philippines, but, as there were only four or five Spanish towns in the archipelago, the alcaldes ordinarios do not assume great prominence in this study. These alcaldes were usually chosen by the ayuntamientos (municipal councils), though they were appointed on some occasions by the governors. As the Spanish towns enjoyed special privileges conferred by the king, their judges were not a part of the regular judicial hierarchy, but were dependent on their ayuntamientos or the governor. However, an oidor was usually delegated to inspect the work of the alcalde ordinario.

With this introductory view of the general field of Spanish colonial administration, and this presentation of the characters and elements which are to assume important roles in this discussion because of their frequent relations with the audiencia, we may enter upon a more detailed study of a single institution. It has been emphasized especially that the audiencia in the Philippines was only an integral part of the governmental machinery used in the colonial empire of Spain. It is clear, therefore, that we are not studying an isolated tribunal, for every royal cédula promulgated to the Philippine audiencia was in some way related to those issued to ten or eleven other audiencias of equal status or similar character. Although the Philippines were apart physically, this institution, with its relation to the provincial and colonial governments on one hand, and the home government on the other, brought the colony as close as possible to Spain, and to the other colonies.

It is certain that the growth of audiencias was a part, not only of colonial, but of Spanish historical and institutional development. These institutions served the same purpose in the colonies that they accomplished in Spain; they were utilized for the administration of justice, and to check the excesses and abuses of officials. They were important because they facilitated a greater degree of centralization. They converged the provincial, colonial, intercolonial and home governments in the same manner as the audiencias in Spain brought about unity in provincial and national judicial administration.

1 Vander Linden, in his L’expansion coloniale de L’Espagne (p. 360), states that the Philippine audiencia exercised fewer governmental functions than did the audiencias of New Spain and Peru. It is true that the jurisdiction of the Audiencia of Manila was confined to a territory which was politically and economically of less importance to Spain and to the world in general than New Spain and Perú. It is the conviction of the writer that the distance and isolation of the Philippines, their proximity to Japan, China, and the hostile colonies of the Portuguese and the Dutch, the necessities of self-dependence and defense, the corruption of the governors and officials and the problem of dealing independently with the ecclesiastical organization within the colony, forced the Audiencia of Manila to take upon itself powers and responsibilities as extensive, at least, as were assumed by the Audiencia of Mexico.

2 “Título expedido por los Reyes Católicos, 30 de Abril, 1492,” in Navarrete, Colección de viages, II, 9–11; also see Vander Linden, op. cit., 277–283; 338.

3 See Altamira, Historia de la civilización española, II, 477–480; Bancroft, History of Central America, I, 247–288; Helps, Spanish conquest, (1856), I, 187–227:

In the Spanish colonies an alcalde was usually an ordinary judge, not always trained in the law to the extent of being a letrado or togado. An alcalde ordinario or an alcalde de ayuntamiento tried cases in first instance. An alcalde mayor or an alcalde de partido might try cases on appeal from these. Generally speaking, alcaldes ordinarios were town judges, in contrast to alcaldes mayores who had provincial jurisdiction as well. Alcaldes ordinarios and regidores were members of the town ayuntamientos or cabildos (municipal councils). Regidores did not exercise judicial functions.

4 Recopilación de leyes de los reinos de las Indias (hereinafter to be referred to as the Recopilación), lib. 2, tit. 2, ley 13. For an account of the Recopilación, see footnote 40, below.

5 Bancroft, History of Central America, I, 269; see note 27 of this chapter.

6 In some of the early Spanish colonies the alcalde was elected by his fellow-townsmen. He exercised the functions of judge and chief executive, subject to the governor, or adelantado, and in the absence of the latter assumed the government of the colony. Alcaldes in new settlements or on expeditions were different in character and exercised functions distinct from those of the alcaldes of the later periods. This earlier type probably existed in Española under Columbus (see Bancroft, History of Central America, I, 175, 330, note 7). That their duties varied in different colonies may be deduced from the statement of Bancroft that “the alcaldes mayores of New Spain under Cortés were merely entrusted with judicial powers ... later those of San Luís Potosí and other places acted also as lieutenants for captains-general, and exercised, in other respects, the duties and ceremonies of governors” (Bancroft, History of Mexico, III, 520). The term, therefore, does not always convey a clear impression of the exact nature of the duties attached to the office.

7 Bancroft, History of Central America, I, 269.

8 Altamira, Historia, II, 479.

9 Bourne, Spain in America. 222; Vander Linden, L’expansion coloniale de l’Espagne, 339; see note in Bancroft, History of Central America, I. 280–283.

10 Bourne, Spain in America, 222; Moses, The Spanish dependencies in South America. I, 250–1; see Col. Doc. Ined., XXXI, 139–155.

11 Recopilación, 9–1–2, 5.

12 Ibid., 2–2–82, auto 36; Desdevises du Dezert, Espagne de l’ancien régime. Les institutions. 100–101; see Veitia Linaje, Norte de la contratación de las Indias Occidentales, passim.

13 Zamora y Coronado, Biblioteca de legislación ultramarina, 1, 450–451; II, 374 et seq.; also Recopilación, 9–1–1, note 1; Vander Linden, op. cit., 344.

14 Desdevises du Dezert, op. cit., 100.

15 Escriche, Diccionario, I, 578; see Desdevises du Dezert, Les institutions, 95–102; Robertson, History of America, IV (Book VIII), 21.

16 Recopilación, 2–2–2.

17 By the royal decree of March 24, 1834, the Consejo de Castilla and the Consejo de Indias were amalgamated. In place of these was created the Tribunal Supremo de España é Indias, with judicial functions and a Consejo Real de España é Indias for governmental and administrative affairs. On September 28, 1836, the Consejo Real de España é Indias was suppressed. On July 6, 1845, the Consejo de Estado assumed charge of affairs pertaining to the Indies, with a separate Ministerio de Ultramar. This reform was re-enacted on September 24, 1853 (Martínez Alcubilla, Diccionario, III, 313–315; Escriche, Diccionario, I, 578–579).

18 It became the practice in later years to reward successful colonial administrators, including viceroys, governors, and magistrates, with membership in this council. Among those so elevated were Juan Solórzano y Pereyra, magistrate of the Audiencia of Perú, José de Gálvez, visitor of New Spain, Governor Simón de Anda y Salazar, and the able fiscal, Francisco Leandro de Viana, of the Philippines. These men rendered very distinguished service in the colonies.

19 Recopilación, 2–15–2 to 14; see Danvila y Collado, Reinado de Carlos III, III, 151–157. No attempt is made here to indicate all subsequent changes.

20 Oidor, a ministro togado who heard and sentenced civil suits in an audiencia (Escriche, Diccionario, II, 661). In this treatise the Spanish term oidor will be retained throughout to designate a magistrate of that particular class. Oidor is sometimes incorrectly translated into “auditor”, which in English means a reviewer of accounts (Spanish, contador). The Spanish term auditor has a special meaning, referring to a particular kind of magistrate, as auditor de guerra, auditor de marina or auditor de rota (Escriche, Diccionario, I, 369–371). Blair and Robertson, in their Philippine Islands (Cleveland, 1908), have used the terms oidor and “auditor” interchangeably, or rather, in almost all cases they have translated oidor as “auditor”, but this usage will not be followed here for the reasons given.

The oidor is also to be distinguished from the alcalde del crimen. The latter existed only in the larger audiencias of Mexico and Perú, or in Manila, Havana or Puerto Rico in the later nineteenth century. Alcaldes del crimen in the sixteenth, seventeenth and eighteenth centuries were subordinate in rank to oidores, but by virtue of the reforms of 1812, 1836 and 1837, the latter were required to be togados, and the ministers of all the audiencias were placed in the same class. (Escriche, Diccionario, I, 154; I, 363–369; II, 661; Bancroft, History of Central America, I, 297; see also Pérez y López, Teatro de la legislación, XXI, 351–369; IV, 525–528; Martínez Alcubilla, Diccionario, I, 525–526.)

21 The original cédulas refer to this audiencia as La Audiencia Real de la Nueva España—see Puga, Provisiones, cédulas, f. 7.

22 Zamora y Coronado, Biblioteca, I, 452; I, 483–486; Martínez Alcubilla, Diccionario, VIII, under “Justicia”. See also Danvila y Collado, Reinado de Carlos III, VI, 157–158.

23 By the royal decree of May 23, 1879, the audiencias at Havana and Manila were each given a civil and criminal sala and a fiscal was provided for each sala as in the audiencias of Mexico and Lima. When it was necessary, oidores could be transferred from one sala to the other.—Colección legislativa de España, CXXII, 1093–1100.

24 Recopilación, 2–15–1.

25 See Professor Shepherd’s brief description of the governmental machinery of Spain’s colonies, in his Guide to the materials for the history of the United States in Spanish archives, 10–12; note also the articles recently published by Desdevises du Dezert in the Revue historique (CXXV, 225–264; CXXVI, 14–60, 225–270) under the title of “Vice-rois et capitaines généraux des Indes espagnoles a la fin du XVIII siècle.”

26 Recopilación, 2–15–17.

27 Ibid., 2–15–2. Although the Recopilación and Danvila y Collado (cited in note 19) give the date of the establishment of the Audiencia of Santo Domingo as 1526, the royal decree issued at Pamplona, October 22, 1523, is addressed to nros oydores de la audiencia real de la Ysla Española (A. I., 139–1–6, tom. 9, fol. 225). There are various references antedating 1526 in this and the following legajo.

28 Ibid., 2–15–3. For the exact limits of this audiencia see Puga, Provisiones, cédulas, ff. 12–13; 47–48, and Hackett, “Delimitation of political jurisdictions in Spanish North America to 1535,” in Hispanic American Historical Review, I, 60, note 102.

29 Ibid., 2–15–13, 14, 15.

30 Ibid., 5–1–2, 3; 2–15–4, 12.

31 Ibid., 5–1–16.

32 Zamora y Coronado, Biblioteca, I, 486–487. The following will give some idea of the size and rank of the respective audiencias of the Spanish colonies in the later eighteenth century. This table was compiled from the Reglamento de 4 de Mayo, 1788 (Pérez y López, Teatro, IV, 522–524).

Audiencia.	No. of Salas.	No. of fiscales.	Magistrates.	Salary of regent,	Total budget,
				pesos.	pesos.
Lima	2	2	15	10,000	95,000
Mexico	2	2	15	9,000	85,500
Charcas	1	2	5	9,725	43,745
Chile	1	2	5	9,720	43,740
Buenos Ayres	1	2	5	6,000	36,726
Manila	1	2	5	7,000	31,500
Guadalajara	1	2	5	6,600	29,700
Guatemala	1	2	5	6,600	29,700
Santo Domingo	1	2	5	6,600	29,700
Santa Fé	1	2	5	6,600	29,700
Quito	1	2	5	6,600	29,700
Cuzco	1	1	3	9,000	27,000
Caracas	1	1	3	5,000	18,200

33 Solórzano y Pereyra, Política Indiana (Madrid, 1647). This was the first great general work on the political institutions of the Indies, and probably the most valuable and comprehensive of its kind ever published, barring possibly the Recopilación. It comprises history, description, law, discussions of suits and cases, litigation and legal citations. Its ample title-page states that it is “divided into six books, in which, with great distinction and study, are treated and resolved all matters relating to the discovery, description, acquisition and retention of the Indies, and their peculiar government, as well as concerning the persons of the Indians and their services, tributes, tithes and encomiendas, as concerning spiritual and ecclesiastical affairs and doctrine, inquisitors, commissaries of crusade and of the religious. And in regard to temporal affairs, concerning the secular magistrates, viceroys, presidents, audiencias, the Supreme Council and its junta de guerra, including a setting forth of the many royal cédulas which have been despatched for the latter.” Solórzano y Pereyra contributed largely to the codification of the laws of the Indies.

34 See Chapter X of this book.

35 Recurso de fuerza, see footnote 3, Chapter XI of this work.

36 The origin and nature of the acuerdo is explained in Chapter VI, note 78, of this book; see also Chapter III, note 37.

37 The oficiales reales consisted of the tesorero (treasurer), contador (accountant) and factor (disbursing officer and supply agent). See Recopilación, 8–4–34, 35; 8–2–5, 6.

The laws of March 2, 1618, and of November 17, 1626, ordered that in colonies having audiencias the acuerdos de real hacienda should be attended by the president (governor or viceroy), fiscal, senior oidor, and oficial real, respectively. In case there were no audiencia, the session should then consist of all the oficiales reales and the governor, and then the votes of the treasury officials should be final (Recopilación, 8–3–8, 11, 12). Under certain circumstances the factor was assisted by a veedor and a proveedor. The duties of the latter officials were largely administrative (ibid., 8–4–38 to 39).

Bancroft (History of Mexico, III, 520) states that “the provinces of royal officials [oficiales reales] were merely revenue districts whose heads received their appointment from the king, and administered their office under a certain supervision from the viceroy and governors attending their councils; yet they were responsible only to the tribunal of finance in the viceregal capital, and this again reported direct to Spain.” See also Priestley, José de Gálvez, 76–82.

38 Bull of the Santa Cruzada, the apostolic bull by which the popes conceded certain indulgences to those who went to the conquest of Jerusalem, and later to the Spaniards who contributed alms to aid in the war against the Africans. It was called cruzada because the soldiers wore crosses as emblems (Escriche, Diccionario, I, 462). Funds for this purpose were raised in the Philippines, paid into the insular treasury and deducted from the subsidy at Acapulco (Recopilación, 1–20–24). As noted above, an oidor acted as asesor of these funds (ibid., 2–16–23).

39 Solórzano y Pereyra, Política Indiana, II, 271–279.

40 The first attempt at the codification of the laws for the governing of the colonies was made in New Spain in 1545, when the ordinances for the government of that viceroyalty and audiencia were printed. This collection was given the royal approval in 1548. A similar compilation was made in Perú in 1552 by Viceroy Mendoza. The first intimation of a universal code is to be found in the recommendations of the fiscal of the Council of the Indies, Francisco Hernández de Liebana, in 1552. On September 4, 1560, Luís Velasco, viceroy of New Spain, was ordered to print a compilation of laws for the Audiencia of Mexico. This commission was given to Oidor Puga of that tribunal and executed in 1563. In 1569 Viceroy Francisco Toledo was ordered to make a similar compilation for Perú, but the work was not completed at that time. The first volume actually printed by authority of the Council was accomplished in 1593. This was the beginning of the code of the Indies, but the volume which was published pertained only to the regimen of the Council of the Indies itself, and made no regulations for the colonies. A more extensive collection of provisions, letters, orders and cédulas was published on the authority of the Council by Diego de Encinas, a clerk of that tribunal, in 1596. In 1603, the Ordenanzas reales para la Casa de Contratación de Sevilla y para otras cosas de las Indias were printed in the same city. Another ordinance was published for the regulation of the contaduría mayor.

Various compilations were made by the oidores from time to time, either for their own use, or in compliance with the royal commands. Among the latter, perhaps the most famous and certainly the most useful was that of Juan de Solórzano y Pereyra, oidor of the Audiencia of Perú and later a member of the Council of the Indies. This collection was made at Lima in compliance with the commission of Philip IV, issued in 1610. The work, consisting of six volumes, received the stamp of royal approval on July 3, 1627. In 1623 León Pinelo published a Discurso sobre la importancia, forma, y disposición de la recopilación de leyes de Indias. On April 19 of that year Pinelo was ordered to make an examination of all the existing laws and cédulas relative to the government of the colonies, printed or in manuscript, with a view to codification. A magistrate named Aguilar y Acuña was ordered to collaborate with him. The result of these proceedings was a Sumario de la Recopilación General, which continued under process of compilation for a half century. It was finally perfected and published in 1677. In 1668 Pinelo’s work was issued as the Autos acordados y decretos de gobierno del Real y Supremo Consejo de las Indias.

Although the collection was practically ready by 1677, it was not officially accepted until May 18, 1680. On that day it was promulgated by Charles II, king of Spain. On November 1, 1681, the work was ordered published by the India House, and the Recopilación de los Reynos de Indias was issued at Madrid in four volumes. Subsequent editions were printed in 1754, 1774, 1791 and 1841. The last-mentioned contains in its index reforms down to 1820. A Recopilación Sumaria was published in Mexico in two volumes in 1787. The compilations of Zamora y Coronado, Rodríguez San Pedro and Pérez y López, cited repeatedly in this work, contain later laws, and serve in the place of the Recopilación for the more recent periods.

Authorities: Solórzano y Pereyra, Política Indiana, I, Introduction; G. B. Griffin, “A brief bibliographical sketch of the Recopilación de Indias” in Historical Society of Southern California, Publications, 1887; Fabié, Ensayo histórico de la legislación española; Puga, Provisiones, cédulas, (1563); Garcia Icazbalceta, Bibliografía Mexicana del siglo XVI, (1886), 25–26; Bancroft, History of Mexico, III, 550–551; History of Central America, I, 225–288; Antequera, Historia de la legislación española, 480–483.

41 Altamira, Historia, IV, 165–166.

42 Recopilación, 5–2–2, 3, 7, 15, 19, 28. In this case a local military functionary.

43 Ibid., 37, 39, 41; Moses, Establishment of Spanish Rule in America, 83–84; Vander Linden, L’expansion coloniale de l’Espagne, 345–361.

44 Repartimientos or polos; referring to the forced labor of natives on public works, such as ship and road-building. The provincial officials exercised supervision over this obligatory service, and were held responsible for the proper execution of the laws appertaining thereto (Blair and Robertson, The Philippine Islands [hereinafter cited as Blair and Robertson], XIX, 71–76).

45 Cartas y expedientes de gobernadores de Durango, (1591–1700), Archivo de Indias, Sevilla, [hereinafter cited as A. I.,] 66–6–17, 18 (these numbers refer to archive place); Cartas y Expedientes del Virrey de Mégico que tratan de asuntos de Guadalajara (1698–1760), A. I., 67–2–10 to 13. These two series contain hundreds of letters on this subject, as do other series, relating to Nuevo León, Nueva Galicia, Nueva Vizcaya, and New Mexico.

46 This was true of San Luís Potosí and Guadalajara in New Spain. See Bancroft, History of Mexico, III, 520; History of Central America, I, 297; Moses, Establishment of Spanish rule in America, 83.

47 Bancroft (History of Central America, I, 297) defines the corregidor as a magistrate with civil and criminal jurisdiction in the first instance, and gubernatorial inspection in the political and economic government of all the towns of the district assigned to him. There were corregidores letrados (learned in the law), corregidores políticos (political and administrative), de capa y espada (military) and políticos y militares (administrative and military). When the corregidor was not a lawyer by profession, unless he had an asesor of his own, the alcalde mayor, if possessed of legal knowledge, became his advisor, which greatly increased the importance of the last-mentioned official. The alcalde mayor was appointed by the king. It was required that he should be a lawyer by profession, twenty-six years of age, and of good character. Practically, in cases of this kind, when the governor was not a letrado, civil, criminal, and some phases of military authority devolved on the alcalde mayor; the first two ex-officio, and the latter as the legal advisor of the military chief. In new colonies this officer was invested with powers almost equal to those of the governor.—See Recopilación, 5–2.