After the creation of the office of regent in the audiencias of the colonies, in 1776, the governor’s position as president of the audiencia became purely nominal, the regent actually officiating as chief justice, though the president was still legally required to affix his signature to all judicial decisions of the tribunal. The frequent and extended absences of the governor from the capital and the multiplicity of his administrative duties prevented him from attending to these matters with requisite promptness, and injustice consequently resulted from the requirement. Many complaints were made from 1776 onward against this condition of affairs, with the result that a modification in the existing law was made on October 24, 1803, making valid the signature of the regent to all decisions of the audiencia, when the governor was absent from the colony on expeditions of conquest or tours of inspection.[56] At all other times the governor, as president, affixed his signature to all legal acts and autos, although he did not participate in their decisions. The law remained thus until 1861, when the governorship was separated from the presidency, the acuerdo was abolished, and the regent was made president of the audiencia with authority to sign all judicial decisions.[57]
We have already noted that the governor exercised special judicial powers, independent of the audiencia. Among these the military jurisdiction stands pre-eminent, and it will be discussed separately in the following chapter. The governor was also empowered to try Indians in first instance, with appeal to the audiencia.[58] The actual trial of these cases, however, was delegated to the alcaldes mayores and corregidores with appeal to the audiencia. It was impossible for the governor, occupied as he was with the multitudinous affairs of his office, to concern himself personally with the thousands of petty cases among the Indians, or between Indians and Spaniards. He had jurisdiction over suits involving the condemnation of property through which public roads were to pass.[59] The special jurisdiction of the governor, assisted by the audiencia, over cases affecting the royal ecclesiastical patronage will be discussed later.
The laws of the Indies would seem to indicate that both the governor and the audiencia exercised independently the power to exile undesirable residents from the colony. It was stipulated that if sentence of exile were passed by the governor and the offenders were sent to Spain, the necessary papers, issued by the governor, should accompany them.[60] If the decree of banishment were imposed by the audiencia in its judicial capacity, the governor was forbidden to commute the sentence or otherwise interfere in the matter.[61] The audiencia frequently sentenced criminals or other undesirables to spend terms of varying lengths in the provinces or in the Marianas. This, as we have seen, was commonly one of the trials connected with the residencia. We have a noteworthy illustration of the action of the audiencia in acuerdo with the governor in the banishment of Archbishop Felipe Pardo, who was exiled by the acuerdo of the audiencia and Governor Juan de Vargas Hurtado, in 1684. Vargas was succeeded the same year by Governor Curuzaelegui, who recalled the prelate from exile and forced the audiencia to endorse the act of recall.
Closely related to the governor’s jurisdiction over banishment was his jurisdiction over cases of persons entering the Islands or departing from them without royal permission.[62] He exercised final jurisdiction here over civil and ecclesiastical authorities, encomenderos, and private persons. The law forbade any person to enter or leave the Islands without the royal permission, and the governor was charged with the execution of this law. Encomenderos were not to leave the Islands on pain of confiscation of their encomiendas.[63] While the laws of May 25, 1596, and of June 4, 1620, gave authority to the governor over the religious, relative to their entrance into the Islands and departure therefrom,[64] the cédula of July 12, 1640, authorized the audiencia to enforce the law on this subject; especially was the tribunal to see that no ecclesiastics departed for Japan and China without the proper authority.[65] Although there can be no doubt of the finality of the governor’s jurisdiction in this matter, yet the audiencia exercised an advisory power, and an authority to check irregularities, particularly with a view to seeing that the governor did his duty and fulfilled his obligations in the matter. Numerous instances exist to show that whenever this subject was treated in a royal order or decree, copies of the law were sent to the audiencia for its information. On other occasions when there was reason to believe that there had been irregularities in the procedure of a governor, the audiencia complained to the Council of the Indies. This was done for example in 1779 when Governor Sarrio conceded permission for several priests to go to Mexico. This action the audiencia claimed to be irregular, since the Council of the Indies had not been notified or consulted. The king, on March 6, 1781, approved the action of the governor on the basis of the laws above referred to.[66]
Besides his judicial authority the governor shared legislative functions with the audiencia. We have noted in an earlier chapter that the acuerdo passed ordinances for the domestic welfare and local government of the colony. It prescribed rules and issued regulations for merchants, encomenderos, and religious, in accordance with the rulings for royal ecclesiastical patronage. The acuerdo developed from the advisory power of the audiencia. The king in his first decrees ordered the viceroys and presidents to consult with the oidores whenever the interests of the government demanded it,[67] and if necessary the opinions of the magistrates could be required in writing. When an agreement was reached upon a given subject, they voted in acuerdo and gradually that acuerdo came to have the force of law. On many occasions the acuerdo prevailed over the governor’s will. There was no constitutional basis for this, and the acuerdo, when it became a legislative function in passing ordinances and overruling the governor himself, assumed prerogatives which were never exercised by the audiencias of Spain.[68]
The laws of the Indies established the governor as the sole executive, and forbade the audiencia to interfere with the government.[69] The governor, occupied by his extensive administrative and military duties, came to devote less attention to the judicial side of his office, which was left almost entirely to the audiencia. So it developed that the acuerdos in reference to judicial matters—the establishment of tariffs and rules for their observance and the dispatch of pesquisidores and visitors to the provinces, came in the latter eighteenth and early nineteenth centuries to be increasingly the concern of the audiencia. The authority of the tribunal in these matters was recognized by the Constitution of 1812 and the reforms made in pursuance thereof.[70]
In the same manner the acuerdo came to be recognized in governmental and administrative matters. The enactments of these legislative sessions of the audiencia were known as autos acordados. They ultimately came to embrace a wide field. The audiencia passed laws for the regulation of the provinces; it made rulings which the alcaldes mayores and corregidores were to follow in the collection of tribute; it prescribed their relations with the parish priests; it issued regulations for the conduct of the friars and the ordinary clergy relative to the royal patronage. Laws were passed for the encouragement of agriculture and industry and the regulation of commerce. Rice, tobacco and silk culture, the production of cinnamon and cocoanuts, the breeding of fowls, the regulation of cock-fighting, cloth-making and ship-building all came in for their share of attention in the acuerdo.[71]
The audiencia, in the exercise of the acuerdo power, passed ordinances for the enforcement of the laws forbidding the unauthorized departure of persons from the Islands; it helped to fix the rate of passage on the galleons and on the coast-wise ships. It made regulations for the Chinese in the Parián, it prescribed the conditions under which licenses might be issued to Chinese merchants and it passed ordinances for the better enforcement of the laws prohibiting the immigration of the Chinese. The acuerdo concerned itself with the maintenance of prisons and the care of prisoners, the residencias of provincial officials, the auditing of accounts, the collection of the revenue, and the supervision of the officials of the treasury. Ordinances were passed enforcing the general law which ordered that the natives should not live together in Christian communities without marriage, that they should attend religious ceremonies, that they should be instructed in religion, and that they should not be exploited, either by the civil or ecclesiastical authorities. It is, of course, understood that the audiencia in no way trespassed the authority of the church in issuing these regulations; indeed it was quite the contrary; these ordinances were passed on the basis of the authority of the royal patronage, with the design of assisting the vice-patron (the governor) in the execution of his duties, and the church was aided rather than impeded thereby. It must be remembered, of course, that the governor, as president of the audiencia, presided in these acuerdos, and that in most cases, actually, as well as in theory, these autos acordados were his will.
There were many occasions in the history of the Islands when the acuerdo was influential in the formulation of far-reaching reforms. The well-known “Ordinances of Good Government,” issued by Governor Corcuera in 1642 for the observance of the provincial officials, and repromulgated with modifications by Cruzat y Góngora in 1696 and by Raón in 1768 were formulated by the acuerdo.[72] Similarly were those formulated that were proposed by Marquina in 1790. The local regulations for the consulado, established in 1769, were formulated by the audiencia largely on the recommendations of the able fiscal, Francisco Leandro de Viana. In the same manner the new plan of constitutional government given to the Philippines in 1812 was drafted by the audiencia at the request of the Council of the Indies.[73] Likewise the plans for the government of the intendancy were submitted to the acuerdo by Governor Basco y Vargas in 1785. Indeed, these, as well as the scheme of 1787–8, were actually written by two magistrates of the audiencia, the former plan by Oidor Ciriaco Gonzales Carvajal, subsequently intendant, and the latter by Oidor Castillo y Negrete.[74]
There were occasions when the audiencia enacted administrative measures in which the governor failed to participate. These were especially noticeable during the administrations of Acuña, Fajardo, and Corcuera—governors who spent much of their time away from Manila. A more recent instance of this occurred in 1790 when the natives of the province of Ilocos revolted against a tyrannical and dissolute alcalde mayor. The acuerdo, notwithstanding the objection of Governor Marquina, removed the offending official and appointed another, and this action was subsequently approved by the king.[75] According to the laws of the Indies the authority of removal and appointment of such officials rested with the governor.[76] The tendency of the acuerdo to act in civil affairs without the advice or presence of the governor was checked by the royal order of November 12, 1840, wherein the audiencia was ordered not to attempt to carry its acuerdos into execution without the authority of the superior government.[77] The evil effects of the audiencia’s intervention in provincial government were pointed out in 1842 by Sinibaldo de Mas, when he wrote: “the government of the provinces is in charge of an alcalde-mayor, who is at once judge of first instance, chief of political matters, subdelegate of the treasury, and war-captain or military commandant, for whose different attributes he is subject to authorities distinct from one another.”[78]