The audiencia was required to see that the appointees designated by the governor duly complied with the requirements of residencia; likewise that they were properly installed in office, and that they did not serve in offices for which they had neither authority nor qualifications.[31] Notwithstanding the variety and the conflicting character of the laws bearing on matters of appointment, a careful consideration of law and practice leads to the conclusion that the governor, as chief executive, had the power of making appointments, but in the execution of this duty he was ordered to consult the audiencia, although, strictly speaking, he was not obliged to follow its advice. If there were good reasons for not appointing an official recommended by the governor, the oidores could send representations to the Council of the Indies, setting forth their objections, and the Council might confirm or nullify the appointment, as it chose. The audiencia could make appointments if it were in temporary charge of the government. The authority which the audiencia exercised in regard to appointments varied according to circumstances. If the governor were new at his post, weak or indulgent, the audiencia exercised more extensive authority than was conceded by the laws. If the governor were experienced, efficient, and a man of strong personality and dominating character, the tribunal exercised less power in regard to appointments, and, in fact, in all other matters pertaining to government.
Closely related to the appointing power was the duty which the governor had of submitting annually to the court a list of all the officials of the colony, with comments on the character of their services, and with recommendations for promotion or dismissal from office.[32] The oidores were included in these reports.[33] It was also the function of the governor to report on the administration of justice.[34] The governor was instructed to inform the court in case the oidores engaged in forbidden commercial ventures, either directly, through the agency of their wives, or through other intermediaries.[35] He was authorized, moreover, to investigate and report on the public and private conduct of the magistrates and of their wives as well[36] and to exert himself to see that their actions were at all times in consonance with the dignity of their rank and positions and of such a character as would reflect credit on the royal name and entitle them to the respect of the residents of the colony. The confidential reports of the governor to the king might include all of these matters, and many others too numerous to mention. On the other hand, the audiencia, as a body, was authorized to direct the attention of the Council to any irregularities of which the governor might be guilty, and thus a system of checks and balances was maintained.[37] However, the oidores were forbidden to make charges individually. This injunction was so frequently disregarded that it was practically a dead-letter.
Typical of the governor’s authority over all the officials of the colony, and incidentally over the oidores, was his power to grant or withhold permission to marry within the colony. The earlier laws on this subject absolutely forbade viceroys, presidents, oidores, alcaldes, or their children to marry within their districts.[38] Deprivation of office and forfeiture of salary were the penalties for infraction of these regulations. These laws were followed by others which required the president (viceroy or governor) to report immediately to the Council the case of any magistrate guilty of violating the law forbidding the marriage of officials.[39] It was not until 1754 that a law was promulgated providing for special marriage dispensations to be granted by the Council of the Indies upon the recommendation of the president of the audiencia.[40] In 1789 the president was authorized to concede permission to accountants and treasury officials, but not to oidores.[41] The prohibition was applied to magistrates until 1843, and the only condition under which they were permitted to marry within the colony was by virtue of the express permission of the supreme tribunal in Spain. In 1848, the president of the audiencia was authorized to grant marriage licenses to magistrates on condition that the contracting parties were “of equal quality, customs, and of corresponding circumstances,” permission having first been obtained from Spain,[42] the president alone passing upon the requisite qualifications.
The chief reason for the restrictions and prohibitions placed on the marriage of magistrates seems to have been the conviction that officers of justice would compromise themselves by marriage, acquiring vast numbers of relatives and dependents, thereby making it impossible to render impartial decisions or administer justice as evenly and dispassionately as they would were they not so familiarly known in their districts. It was also necessary to prevent officials from lowering their dignity by union with natives and half-castes. The marriage of officials with natives of the Philippines was not regarded with favor at any time by the Spanish government.
It seems that the above prohibition did not apply with the same force to fiscales as to magistrates. This is illustrated by a case which arose in 1804 when Fiscal Miguel Díaz de Rivera was deprived of his office by royal decree for having married without the permission of the Council of the Indies.[43] The fiscal had married the daughter of the corregidor of Pangasinán, who was a colonel in the Spanish army. The mother of the girl was a Eurasian from Madras, and had been a subject of Great Britain. Under the date of May 27, 1805, Díaz sent a petition to the king, bearing the endorsement of Governor Aguilar, demanding his restoration to office. Among the reasons cited for the proposed reinstatement of the fiscal, it was said that Díaz, being a prosecutor and not a magistrate, was not subject to the same regulations and conditions as the oidores, whose judicial duties rendered impossible their marriage within the Islands. Aguilar stated that the purpose of the law had been to debar ministers from making such marriage connections as would diminish the respect which the community should have for them as oidores of a royal audiencia, thus undermining their standing as magistrates. In this instance there could have been no case of degradation because of the high standing of the mother and father. Moreover, a fiscal could not be regarded as a magistrate, and the same laws did not apply to both classes of officials. As an outcome of these representations Díaz was restored to office by the royal decree of October 13, 1806.[44]
A duty similar to that just noted, inasmuch as it was indicative of the authority of the governor over the oidores, was his power to examine and try criminal charges against the magistrates. A law which was in force from 1550 to 1620 ordered that the president should be assisted in the trial of criminal charges against oidores by alcaldes ordinarios. On September 5, 1620, this law was modified by the enactment of another, which ordered that in cases involving imprisonment, heavy fines, removal from office, or the death penalty, the governor should make the investigation and refer the autos to the Council of the Indies for final judgment.
This law still left the trial of oidores for misdemeanors in the governor’s jurisdiction, but in cases of sedition or notorious offenses which required immediate action in order to furnish a public example for its effect on the natives, the president was required to confer with the audiencia, and to act in accordance with its judgment. By this law the president was forbidden to make more than temporary suspensions of oidores from their offices. In no case could they be permanent unless first approved by the Council of the Indies.[45] Notwithstanding this law, it may be noted that certain governors went so far on some occasions as to remove, imprison, and exile magistrates and to appoint a new audiencia.[46] The judicial power of the governor over such cases was further altered by the Royal Instruction of Regents of June 26, 1776, by which he was forbidden to impose any penalty on the oidores without the concurrence of the acuerdo and the regent.[47] The president and the acuerdo could rebuke and discipline oidores, privately, when their conduct demanded it. Even on such an occasion as this the magistrate was to be given full opportunity to defend himself. If a private investigation of the conduct of an oidor were necessary, the inquiry could be still conducted by the senior magistrate.[48] Oidores, on the other hand, had no jurisdiction over the trial of charges against the president, unless it were in his residencia. In this event the investigation might be conducted by a magistrate designated by the governor or by the Council of the Indies.[49]
Aside from his executive and military duties, the governor was president of the royal audiencia. This arrangement had the advantage of giving him an opportunity to know and appreciate the legal needs of the colony. It brought him in constant contact with judicial minds, and his position in this regard was no doubt calculated to keep him in the straight and narrow path of the law. Nevertheless, the governor, who was usually a soldier, but seldom a lawyer, did not participate as a magistrate in the trial of cases, and his activities in the tribunal were directive, rather than judicial. His opinions in all legal and administrative matters were prepared by his asesor.[50]
As president of the audiencia the governor exercised two important powers. One authorized him to divide the audiencia into salas and to designate oidores to try cases within the tribunal, to inspect the provinces, to take residencias, or to attend to semi-administrative matters, such as have been noted in the preceding chapter.[51] The other was the power to decide whether a contention was of judicial, governmental, military, or ecclesiastical character, and to assign it to the proper department or tribunal.[52] This power was significant because it made the governor the supreme arbiter between all conflicting authorities in the colony. Frequently he decided disputes between the audiencia and the ecclesiastical courts, between the audiencia and the consulado, or between the oidores and the oficiales reales in matters relative to the jurisdiction of these tribunals over questions at issue.
While the magistrates were allowed to proceed practically without interference in affairs of justice, the governor was instructed to keep himself informed concerning the judicial work of the audiencia.[53] While forbidden to alter the judgments of the tribunal or to tamper with its sentences,[54] he could excuse or remit fines with the consent of the oidores. The governor could commute sentences in criminal cases. The final pardoning power rested with the king and it was exercised upon the recommendation of the governor or the prelates[55] and the Council of the Indies. There were exceptional occasions, however, on which the governor assumed the responsibility of pardoning criminals.