During the period from 1544 to 1551, until the arrival in Perú of Viceroy Mendoza, the audiencia exercised control of governmental affairs. It made and unmade captains-general and viceroys, irrespective of royal appointments. It suspended the New Laws of 1542 and its commands were obeyed. From 1550 to 1551 it governed alone. In these incidents we note that the audiencia actually assumed the government ad interim prior to the time of the promulgation of the law of March 19, 1550, exercising administrative as well as judicial powers, thirty-five years before the Audiencia of Manila was created. “To it (the audiencia) were confided in the beginning and later in the absence of the viceroy,” writes Moses, “all matters with which governmental authority might properly deal.”[3] He further states that “the audiencia in its executive capacity, failed to justify the expectations of the king, and a new order of things was introduced by the appointment of a viceroy” (Mendoza, April 17, 1535) for New Spain.[4]

These powers were not only exercised by the Audiencia of Lima, but also by a second tribunal which was created in 1549 at Santa Fé de Bogotá. The latter body was endowed permanently with both judicial and administrative powers, appealing important cases to the superior government at Lima. This audiencia had the status of a presidency. Its president was often captain-general, visitador, and senior magistrate, and in exercising the functions of these various offices he was in all respects the most powerful official in New Granada, always being able to enforce his will over the other magistrates. At times this official acted with entire independence of the Viceroy of Perú.[5] The exercise of military functions by this president and audiencia is especially to be noticed in the part they played in putting down the Pijáo Indian revolt in 1565.[6] On the whole, however, judging by the strife prevailing in the colony, the various struggles between the oidores and the president, and between the audiencia or president and the archbishop, the government could never have been considered successful. The official corruption which became apparent as a result of the pesquisas and residencias held during the rule of the Audiencia of Santa Fé could scarcely have encouraged the home government to entrust that tribunal with the administration of affairs in the future.

The defects referred to above in connection with the government of the Audiencia of Santa Fé did not deter the Spanish crown from founding the Audiencia of Charcas in 1559. This tribunal, “like the audiencias established elsewhere, exercised not only judicial, but also administrative powers.”[7] It had jurisdiction over the neighboring city of Potosí. Again we may note the case of the Audiencia of Santiago de Chile, which was established on August 27, 1565. Its members arrived in 1567 and the audiencia was installed at Concepción “as the supreme court of the colony, and, at the same time, in accordance with the royal decree, it became the administrative head of the government. In this latter capacity it undertook to reorganize the military forces.” Later, in 1568, Melchoir Bravo de Saravia assumed the office and functions of the governorship of Chile (1568–1575) and the audiencia became a judicial tribunal, without other attributes.[8]

We may gather from these various citations taken from the early history of the audiencias of South America that these tribunals not only exercised the authority of governing ad interim, but that they had permanent governmental and administrative powers as well. It would seem, as Professor Moses has suggested, that the original purpose of the Spanish government had been to entrust the executive and administrative functions in the dependencies to the audiencia, and that the endowment of the viceroys and captains-general with extensive executive powers was an expedient to which Spain was obliged to turn after the breakdown of the audiencia as an administrative agency. The main fact to be emphasized in this connection is that during the period of the promulgation of the laws which we are now studying, the minor audiencias were exercising regular governmental powers.

The Audiencia of Mexico, which was created in 1527 to check the excesses of Hernán Cortés, had participated in governmental affairs even before the events described above. This tribunal, which was composed of four magistrates, with the notorious Guzmán as president, conducted the residencias of Cortés and his followers, and after obtaining control of the government, administered affairs to suit its own convenience.[9] It was at this time, and as a result of these abuses, Bancroft tells us, that the Spanish government decided to establish a viceroyalty in New Spain, with a semiregal court and regal pretensions. A new tribunal was left in charge of governmental affairs while this reform was being inaugurated. This second audiencia governed with great satisfaction, correcting the abuses of its predecessor and devoting itself to various improvements.[10]

Although the audiencia of 1528–1535 exercised the administrative functions above mentioned, Bancroft brings forth no evidence in support of the theory that it was ever the royal intention to entrust the institution of the audiencia permanently with administrative authority. He states that as early as 1530, three years after the establishment of the first tribunal in Mexico, the sovereigns had already decided to establish a viceroyalty. Although the audiencia was entrusted with the government for a few years, the above facts would seem to indicate that this was only a temporary arrangement. The audiencia’s chief attributes were judicial, and we have repeatedly noted that the principal object of its establishment, aside from the administration of justice, was to check the abuses of the captain-general.

Cortés retained his rank as captain-general after the audiencia was established. The conqueror was in reality reduced to a secondary position, and he was compelled repeatedly to acknowledge the supremacy of the audiencia. His commission was recognized by the tribunal on its arrival, but soon after its establishment the oidores exhibited a royal order requiring that “Cortés, in all his operations, should consult the president and oidores and act only on their approval.”[11] Even in his field, as commander of the military forces, Cortés was subordinated to the tribunal, and the audiencia and the conqueror quarrelled bitterly over practically all matters which presented themselves for solution. The audiencia had been created to meet extraordinary and unusual conditions. It was the business of the tribunal to correct the abuses which had previously been inflicted on the colony by Cortés, and it did so. On the arrival of Mendoza in 1535, however, the audiencia surrendered the control of administrative affairs, and it did not assume them again, except in the regular way in conjunction with the viceroy, until it next served to administer the ad interim government.[12]

The first legal provision for the succession of the audiencia in Mexico, according to Bancroft, was contained in the royal instructions to Visitor Valderrama, who arrived in Mexico in 1563. These instructions, says Bancroft, provided that in the event of the death or inability of the viceroy to discharge his duties, the audiencia should rule temporarily.[13] This was indeed timely, in view of the death of Viceroy Velasco on July 31, 1564. The audiencia, which was legally authorized to take charge of the government, was under investigation when the death of the viceroy occurred, and the tribunal was dominated during the first half of its rule by the visitor, who, Bancroft tells us, was virtually viceroy.[14] Valderrama dismissed two of the oidores, and sent them to Spain. The audiencia was even less able to administer justice during the early part of its ad interim government than it had been when the viceroy was alive. After the departure of the visitor, however, the audiencia inaugurated a season of proscription and reprisal which bade fair to include every opponent of the oidores in the colony. Matters had reached a very unsatisfactory state, indeed, when the new viceroy, the Marqués de Falcés, arrived at Mexico on October 14, 1566.[15]

In view of the fact that the next important law dealing with the question of the succession was not promulgated until 1600, a continuance of this survey of affairs in New Spain will not be necessary. The audiencia there did not again assume the government until 1612, and then only for a very short period. We have already noticed the conditions under which the Audiencia of Mexico was created, and the various occasions on which it assumed charge of the government. Though entrusted with the government upon its establishment, the example set by three years of its unsatisfactory rule convinced the Spanish monarch of the unwisdom of entrusting such governmental authority to the audiencia permanently. Therefore, a viceroy was sent out in 1535, and it was not until 1563 that the first law was promulgated which provided for the temporary government by the audiencia when there was a vacancy in the office of viceroy. This was thirteen years after such a law had been promulgated for Perú, and fourteen years after an audiencia had been created, with all the functions of government, at Santa Fé de Bogotá.

The cédula of February 12, 1569, following in sequence that of March 5, 1550, provided that the faculty of filling vacancies among the oficiales reales, in case of death or removal from office, should rest with the viceroy, president, or the audiencia, if the latter body were governing.[16] This, of course, was a recognition of the principle of the assumption of the government by the audiencia. This law was not confined in its application to any particular territory, but was general in its scope and applicable wherever an audiencia existed. It was later confirmed by the cédula of August 24, 1619.[17]