[45] Laws of May 3, 1605 and September 5, 1620, Recopilación, 2–16–43 and 44.
[46] This was done, for example, by governors Fajardo and Bustamante, while this law was still in force (1618–1624 and 1717–1719, respectively). The observation of this law in Chile was commanded in a royal order expedited to the president of the audiencia there on September 22, 1725; see Recopilación, 2–16, note 13.
[47] Ibid., note 14.
[48] Ibid., 2–16–51.
[49] Discussed in Chapter IV of this treatise.
[50] Governors, captains-general, and viceroys were assisted by an asesor, or legal adviser, who gave his opinion in all matters of law that came up for solution. The necessity for this official developed through the fact that as most governors were soldiers, they were incapable of rendering judgment on legal and administrative questions. As counselor to the governor, this official bore the same relation to the executive as the fiscal did to the audiencia. The asesor was held responsible in the residencia for all decisions rendered by the governor in matters of justice, and in governmental affairs the governor and asesor were jointly responsible. Frequently the asesor was able to block completely the work of the audiencia and his opinion nullified the judgments of magistrates who were as learned in the law and as well qualified, if not better, than he. Martínez de Zúñiga (Estadismo, I, 224) discusses the influence of the asesor in the following terms: “Expedientes are sent to one of the two royal fiscales to ascertain their legality; afterwards they are sent to the asesor whom the governors must consult; the latter place (of asesor) is a very good one, ... besides 2000 pesos as salary it has its private revenues in addition to 500 pesos yearly from each of the royal monopolies (discussed in Chapter V of this volume). There are many persons in Manila who are exempted from ordinary justice through their military connections or on account of being employed in the royal monopolies, and as they depend on him, he exercises great power; ... there are few who desire him for an enemy, for when they least think of it they are in need of his favorable opinion in some expediente which they have brought before the government.” The laws of the Indies forbade that an oidor should act as the governor’s asesor if any other appointee with the requisite qualifications were available (Recopilación, 3–3–35, and note). See cédula (and accompanying expedientes) of September 26, 1756, A. I., 106–4–16.
[51] Recopilación, 2–15–61 to 63, 169; 2–16–12, 31, 32.
[52] Ibid., 2–15–38.
[53] Ibid., 3–3–36, 38.
[54] Ibid., 3–3–60. Relative to the relations of the viceroys and audiencias of the Spanish colonies, Robertson (The History of America, IV, 19–20) says: “The Spanish viceroys have often attempted to intrude themselves into the seat of justice, and with an ambition which their distance from the controul (sic) of a superior rendered bold, have aspired at a power which their master does not venture to assume ... the viceroys have been prohibited, in the most explicit terms, by repeated laws, from interfering in the judicial proceedings of the courts of Audience, or from delivering an opinion, or giving a voice with respect to any point litigated before them. In some particular cases, in which any question of civil right is involved, even the political regulations of the viceroy may be brought under review of the court of Audience, which in those instances, may be deemed an intermediate power between him and the people, as a constitutional barrier to circumscribe his jurisdiction. But as legal restraints on a person who represents the sovereign, and is clothed with his authority, are little suited to the genius of Spanish policy; the hesitation and reserve with which it confers this power on the courts of Audience are remarkable. They may advise, they may remonstrate; but in the event of a direct collision between their opinion and the will of the viceroy, what he determines must be brought into execution, and nothing remains for them, but to lay the matter before the king and the Council of the Indies.”