The audiencia was deprived of its acuerdo power in governmental matters by the Constitution of 1812, but it was still retained in judicial affairs. In 1815 and again in 1823 on the restoration of the monarchy, the full acuerdo power as practiced before 1812 was resumed by the audiencia. Official recognition of the acuerdo was made publicly by Governor Torres, who succeeded Enrile on March 18, 1834. In his inaugural address this governor avowed his purpose to be the extension and improvement of commerce, the army and agriculture, “but, in order to develop these to their highest extent, and to realize the utmost success in my administration,” he said, “I count on the co-operation of all the authorities, and particularly of the real acuerdo, of which I have the honor to be president.”[79] The audiencia was finally excluded from the acuerdo in administrative matters by the reform of July 4, 1861; since then the tribunal has been purely judicial, the legislative functions of government having been assumed by the Administrative Council (Consejo de Administración) of which the president and fiscal, and usually two oidores at least were members. Thus, even after the reform of 1861, the oidores continued to participate in legislative functions, though the audiencia as a body did not.[80]
Typical of the multitudinous duties of the governor, and illustrative at the same time of his relations with the audiencia, were the various subjects treated in the Instruction of the king to Governor Pedro de Acuña, dated February 16, 1602,[81] which is chosen for citation here because of its comprehensive character, and also because of its availability. Beginning with the reminder that the governor should confer with the Viceroy of New Spain whenever necessary, this comprehensive paper treated first of the defense of the Islands against the Japanese, and of the maintenance of a garrison in Mindanao. The matter of tribute was taken up, and the desirability was shown of having the natives pay tribute in kind rather than in money. It was said that the latter method encouraged the natives to indolence, for as soon as they had earned enough money to pay their tribute they ceased work altogether. The governor was advised to consult with the audiencia in regard to this matter. The king ordered the governor to cut down expenses and to economize by the elimination of as many offices as possible. He recommended, in particular, the abolition of the offices of corregidor and alcalde mayor.
The king warned Acuña against a continuation of the dishonesty of past governors in the lading of ships for New Spain. He declared that thereafter the allotment of freight should not be left to the friends of the governor, but the matter should be personally supervised by the governor and an oidor. The frauds which had been common also in the assignment of encomiendas in the colony must cease; to effect this the governor was temporarily deprived of jurisdiction over this matter. Who was to assign the encomiendas in the future was not divulged.[82]
The governor was instructed to see that the salable offices were not conferred on the relatives of the oidores, nor given to his own relatives, but that they should be disposed of to persons offering the most money for them. It had been charged that governors and audiencias had connived together in the past to deprive persons of offices to which they were legitimately entitled. This had been done by allowing favorites to hold more than one office, and by favoritism in the sale of these positions. These abuses must be stopped, the king said; it was ordered that in the future no person should be allowed to hold more than one office, that as many of these as possible should be sold, with unrestricted competitive bidding.
The governor and the fiscal were ordered to exercise care and diligence in the inspection of the returning galleon, to see especially that it brought no unregistered money from persons in Mexico. Acuña’s predecessor, Tello, had recommended that west-bound galleons should stop at the Ladrones to leave priests and soldiers, and to minister to the needs of Spaniards already there. This was authorized and the governor was instructed to see that it was done. The governor was also ordered on this occasion to make an investigation of the audiencia. Complaints had been coming to the court for a long time against the laxity of the tribunal in the administration of justice, and of the commercial activities of the oidores. The governor was to aid the fiscal in the prosecution of any oidores who were remiss, to the extent of sending them under arrest to New Spain if the charges against them justified such action.
This Instruction, it will be noted, required the governor to intervene actively in practically all the governmental affairs that came up in the colony. He was to exercise authority with regard to defense, finance, and revenue. He was to exercise supervision over provincial affairs so as to insure the good treatment of the natives and the beneficent administration of the encomiendas. He was to give his attention to the galleon trade and to the disposal of offices within the colony. If doubt or difficulty arose in any of these matters of administration, he was to demand from the audiencia, its assistance, counsel, and support. The governor was also authorized to see that justice was administered effectively, though he was not to intervene directly in that matter, except to see that abuses were eradicated. This Instruction shows that the governor was regarded as the chief executive of the government. He was the responsible head in the judicial, administrative, and military spheres. The audiencia, on the other hand, had consultative functions, aimed to assist the governor when he required it, but to restrict him when he sought to exceed his powers. Instructions similar to this were given to many succeeding governors. A citation of these would prove nothing new, however.
In the same manner that the Instruction to Acuña gives us an idea of the relative functions of the audiencia and the governorship in 1602, so the criticisms of the able Spanish diplomat, Sinibaldo de Mas, written in 1842, aid us in estimating their respective spheres in the nineteenth century. This opinion is valuable because it summarizes the result of two hundred and fifty years of the interaction of these political institutions in the Islands. Mas showed the reason for the establishment of the intendancy, and the conferring of added powers upon the audiencia and criticized the relations existing between the governor and these institutions in the following terms:
To set some balance to his power (that of the governor), because of the distance from the throne, certain privileges and preëminences have been granted to other persons, especially to the Audiencia, even to the point of making of the latter a court of appeal against the measures of the chief of the islands. Besides, the revenues have been removed from his jurisdiction, and the office of the intendant has been constituted, who obeys no others than the orders communicated to him by the ministry of the treasury from Madrid. It is very obvious that this single point is quite sufficient to paralyze completely the action of the governor-general. Besides, since there are many matters which require to be passed on by distinct ministries, it happens that two contrary orders touch the same matter, or that one order is lacking, which is enough to render its execution impossible ... a chief may detain a communication, even after he has received it, if it does not suit him. This system of setting obstacles in the way of the governor of a distant colony is wise and absolutely necessary, ... there results rather than a balance among the various departments of authority a confusion of jurisdictions, the fatal fount of eternal discord.[83]
Mas made extensive quotations which were calculated to show “the great confusion and contrariety of the orders to governor and audiencia.” This characteristic of the laws of the Indies has repeatedly been referred to in this treatise, and we shall note its results in a subsequent chapter dealing with the conflicts of jurisdiction between the audiencia and the governor.