The Audiencia in the Spanish Colonies Part 9

While forbidden to alter the judgments of the tribunal or to tamper with its sentences, [423] 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 [424] and the Council of the Indies. There were exceptional occasions, however, on which the governor a.s.sumed the responsibility of pardoning criminals.

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. [425] At all other times the governor, as president, affixed his signature to all legal acts and autos, although he did not partic.i.p.ate in their decisions. The law remained thus until 1861, when the governors.h.i.+p 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. [426]

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. [427] 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 mult.i.tudinous 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 pa.s.s. [428] The special jurisdiction of the governor, a.s.sisted 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 pa.s.sed by the governor and the offenders were sent to Spain, the necessary papers, issued by the governor, should accompany them. [429] 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. [430] 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 ill.u.s.tration 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. [431] 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. [432]

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, [433] the cedula 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 j.a.pan and China without the proper authority. [434] 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. [435]

Besides his judicial authority the governor shared legislative functions with the audiencia. We have noted in an earlier chapter that the acuerdo pa.s.sed 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, [436]

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 const.i.tutional basis for this, and the acuerdo, when it became a legislative function in pa.s.sing ordinances and overruling the governor himself, a.s.sumed prerogatives which were never exercised by the audiencias of Spain. [437]

The laws of the Indies established the governor as the sole executive, and forbade the audiencia to interfere with the government. [438]

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 Const.i.tution of 1812 and the reforms made in pursuance thereof. [439]

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 pa.s.sed 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 pa.s.sed 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 c.o.c.k-fighting, cloth-making and s.h.i.+p-building all came in for their share of attention in the acuerdo. [440]

The audiencia, in the exercise of the acuerdo power, pa.s.sed ordinances for the enforcement of the laws forbidding the unauthorized departure of persons from the Islands; it helped to fix the rate of pa.s.sage on the galleons and on the coast-wise s.h.i.+ps. It made regulations for the Chinese in the Parian, it prescribed the conditions under which licenses might be issued to Chinese merchants and it pa.s.sed 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 pa.s.sed 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 trespa.s.sed the authority of the church in issuing these regulations; indeed it was quite the contrary; these ordinances were pa.s.sed on the basis of the authority of the royal patronage, with the design of a.s.sisting 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 Gongora in 1696 and by Raon in 1768 were formulated by the acuerdo. [441]

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 const.i.tutional government given to the Philippines in 1812 was drafted by the audiencia at the request of the Council of the Indies. [442] 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. [443]

There were occasions when the audiencia enacted administrative measures in which the governor failed to partic.i.p.ate. These were especially noticeable during the administrations of Acuna, 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. [444] According to the laws of the Indies the authority of removal and appointment of such officials rested with the governor. [445] 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. [446]

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." [447]

The audiencia was deprived of its acuerdo power in governmental matters by the Const.i.tution 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." [448]

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 a.s.sumed by the Administrative Council (Consejo de Administracion) 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 partic.i.p.ate in legislative functions, though the audiencia as a body did not. [449]

Typical of the mult.i.tudinous duties of the governor, and ill.u.s.trative 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 Acuna, dated February 16, 1602, [450] 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 j.a.panese, 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 Acuna against a continuation of the dishonesty of past governors in the lading of s.h.i.+ps 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 a.s.signment of encomiendas in the colony must cease; to effect this the governor was temporarily deprived of jurisdiction over this matter. Who was to a.s.sign the encomiendas in the future was not divulged. [451]

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 ent.i.tled. 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 compet.i.tive 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. Acuna'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 a.s.sistance, 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 a.s.sist 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 Acuna gives us an idea of the relative functions of the audiencia and the governors.h.i.+p 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 inst.i.tutions 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 inst.i.tutions 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 preeminences 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 const.i.tuted, 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 pa.s.sed 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. [452]

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.

It is clear, therefore, that the decision of the governor was not final in administrative affairs. Persons dissatisfied with his executive actions or decisions in such matters were privileged to appeal to the audiencia. If the findings of the tribunal differed from those of the governor, and if the governor were still unyielding, his will was to be obeyed but the case was thereupon appealed to the Council of the Indies. [453] If the case were one of law and justice the governor, on the other hand, was instructed to abide by the decision of the audiencia, but he was privileged to carry the case to the Council of the Indies. Thus it was that each of these authorities had a sphere wherein its word was law, and its decisions final in the colony.

It was prescribed, however, that when there were differences of opinion between the governor and the audiencia an effort should be made both by the governor and the audiencia to avoid notorious disagreements which would furnish a bad example to the natives, or otherwise degrade the dignity of the royal tribunal or governor. Viceroys, presidents, and audiencias were forbidden to take action in cases wherein there was doubt as to their jurisdiction, or wherein there was a question as to the advisability of taking final action. [454]

It would appear, therefore, from this survey of the laws, that the audiencia was provided with ample means for restraining the action of the governor. This it could do either by admonition, by appealing from his decisions in administrative matters, or by blocking him in the acuerdo. It was evidently the design of those who planned the legislation of the Indies to guard at all times against the excesses of an all-powerful executive. Such was certainly the purpose of the establishment of the audiencia, both in the Americas and in the Philippines. Taking into consideration the three hundred years of Philippine history, however, it cannot be said that in the actual operation of the government these precautions were entirely effective.

According to the laws of the Indies the governor, as executive, had his own sphere in which the oidores were forbidden to interfere. [455]

In the light of our investigation, however, it would appear that this exclusive field was exceedingly limited, and that even it was continually subject to the encroachments of the audiencia. In the exercise of his military authority the governor was independent of the tribunal, although we shall see that on some occasions the audiencia exercised military jurisdiction in an executive capacity, and that there were times when the governor was glad to call upon the audiencia for a.s.sistance in this matter. As president of the audiencia the governor exercised considerable authority during the first half of the history of the colony, but from 1776 to 1861 his position as president was merely nominal, and at the latter date it was abolished. He was the chief administrative official of the colony, and his authority in this particular was more far-reaching than in any other. In this, however, he was limited by the acuerdo of the audiencia, which developed, as we have seen, from an advisory to a legislative function, and ultimately had the effect of limiting the governor in his. .h.i.therto exclusive field.

CHAPTER VII

THE AUDIENCIA AND THE GOVERNOR: THE MILITARY JURISDICTION

The isolation of the Philippines, their distance from the home country and New Spain, and their proximity to the colonies and trade routes of rival nations, made the problem of defense the foremost consideration. This was almost equally true of New Spain, Peru, and the West Indian colonies, all of which were exposed to the attack of outside enemies, though, of course, they were neither as isolated nor as far away as the Philippines.

The necessity of being ever on the alert, constantly prepared to resist invasion and to put down insurrection, gave a military character to the governments of these colonies. The viceroys and governors were in most cases trained soldiers. In addition to their other prerogatives, they exercised the office and t.i.tle of captain-general and as such they commanded the military and naval forces of their colonies, inadequate as these forces sometimes were. During the first two hundred years governors and viceroys were largely selected on the basis of their past military exploits on the continent or in America. The administrations of the different Philippine governors of the sixteenth and seventeenth centuries were characterized rather by their devotion to military affairs than by economic improvements or administrative efficiency. The supervision of judicial and governmental affairs was thus left for long periods in the hands of other officials and authorities, to be reclaimed or fought over by the governors when their time was not taken up by military conquests.

It is practically agreed among all authorities who have written on the Philippines that the leading consideration and necessity of the government during two hundred years was military defense. These writers comprise officials who saw service there and commentators who visited the Islands and studied the government. In their recommendations and comments they unite in urging that the defense of the Islands should not be neglected; that the governor should be given adequate forces with sufficient jurisdiction over them and over the other elements of the colony to defend it successfully from invasion or insurrection.

It was the policy of the government throughout the history of the Islands to conserve and keep intact the governor's military jurisdiction. We have noted in an earlier chapter that one of the main reasons for the suppression of the audiencia in 1589 was that it interfered too extensively with the military jurisdiction of the governor. During the decade following the extinction of the tribunal, the military governors were given almost unlimited powers, until their abuses led to the re-establishment of the tribunal to guard against these excesses. We shall see in the following chapter that the limitations placed upon them by the audiencia were always a source of complaint by the various governors. Governor Acuna went so far as to recommend the suppression of the tribunal because the needs of the colony were military and had to be met by the firm action of a soldier, without the interference of a body of magistrates. [456]

Similar recommendations were made by a majority of the succeeding governors, but more especially by Fajardo, Corcuera, Vargas, Arandia, and even by Anda who had risen from the post of oidor to that of governor and military commander. [457]

The conviction that the government should be pre-eminently military was not held by governors alone. Fernando de los Rios Coronel, procurator of the Philippines at the Court of Madrid in 1597, urged that the government should be of a military character and that the practice of sending soldiers to govern the Islands should be continued. [458]

This opinion was also advanced by Fray Alonso Sanchez, procurator of the Islands at Madrid in 1589, and the emissary whose arguments were chiefly instrumental in bringing about the suppression of the audiencia. [459] Francisco Leandro de Viana, the most efficient fiscal that the Islands ever had, and afterwards councillor of the Indies, recognized the military attributes of the governor's position. He urged a separation of the spheres of the governor and the audiencia, recommending that the former should attend solely to war and government, while the latter should confine itself to matters of justice. [460]

This opinion was shared by Juan Jose Delgado, the able Jesuit historian, who expressed the conviction that the "islands need disinterested military governors, not merchants; and men of resolution and character, not students, who are more fit to govern monasteries than communities of heroes." [461] Delgado recommended that governors of the Philippines should be picked men, selected for their military qualities. The distance and isolation of the colony and its proximity to the great empires of China and j.a.pan made defense the first requisite. Delgado believed that a soldier would be less amenable to bribes and that commercial ventures would be less attractive to him. [462] He recommended that governors should be absolute in affairs of government and war and that all departments and officials of the government should be subject to him.

While most of the independent commentators writing on the subject seem to have conceived of the duties of the governor as savoring more of war than of peace, we may note that Manuel Bernaldez Pizarro, for many years a resident and official in the Philippines, writing in 1827, urged that the governors there should be efficient administrators rather than soldiers. It must be remembered, however, that the political conditions in the Philippines during his period were widely different from those of the seventeenth and eighteenth centuries when the Islands were constantly exposed to the attack of outside enemies and liable to insurrections within. The chief problems of the nineteenth century were administrative, rather than military. He pointed out that governors had already exhibited too much of the militant spirit in dealing with the problems of government, "not heeding the opinions and customs of the country, but depending on the force of arms," or their asesores. [463] This had the effect of causing dissensions between the governor and audiencia, and the resultant discord had furnished a very bad example for the natives and residents of the colony.

The characteristic tendency throughout the history, of the Islands to lay stress on the military side of the governor's position was commented on by Montero y Vidal, the modern historian of the Philippines, in the following terms:

The authority of the governor-general is complete, and so great a number of attributes conferred on one functionary, incompetent, as a general rule, for everything outside of military affairs, is certainly prejudicial to the right exercise of his duty; ... since 1822 the government has always devolved upon an official; a general, and in the case of his death, a segundo cabo, and, in case of the death of the latter, a commandant of the naval station. [464]

The preservation of the peace and the maintenance of the defense of the Islands was the chief responsibility and the most important duty of the governor and captain-general. Although the audiencia was ordered to do all that it could to a.s.sist, nevertheless the tribunal was strictly forbidden to restrict or hinder the governor in the execution of his military duties. [465] The governor's position as commander-in-chief of the king's forces, and his pre-eminence in military affairs, were generally recognized.

Notwithstanding the fact that the early laws conferred exclusive military powers on the governor, a glance at three hundred years of Spanish colonial history will show that the audiencias partic.i.p.ated in these matters in two different ways. In fact, an a.n.a.lysis of the military jurisdiction shows the presence and the exercise, in general, of two kinds of activity. These consisted, first, of a special judicial system for the trial of persons under military law and distinct from the civil jurisdiction, and second, of the control and disposition of the military forces of the Islands, and their utilization for defense. One, therefore, was judicial, the other was administrative, but both of these forces of activity were within the military sphere. The problem of this chapter, therefore, consists in determining the conditions, circ.u.mstances, and extent of the audiencia's partic.i.p.ation in military affairs, and of its relation to the authority and jurisdiction of the governor and captain-general.

As commander-in-chief, the governor was at the head of a special judicial system for the trial of soldiers under the military law. This judicial system was independent of the audiencia, and the latter body, during the greater part of the history of the Islands, was denied jurisdiction in these cases, even on appeal. [466] We have already noted, however, the tendency of the law to excuse these busy executives from direct partic.i.p.ation in ordinary judicial activities. Notwithstanding the governor's status in the above-mentioned particular, he seldom intervened personally in the trial of such cases. His position with regard to the military jurisdiction was similar to his relation with the audiencia, of which he was president, but over which he seldom presided.

The actual trial of the criminal cases of soldiers was conducted in first instance by military tribunals and magistrates. Most prominent among the latter were the castellan and the maestre de campo. The captains, themselves, had certain judicial authority within their companies. [467] Appeals were made from these military judges of first instance to the captain-general. If there had been notorious injustice or a grave infraction of the law in the trial of a case of first instance, it was the governor's duty either to refer the case to some other magistrate than to the one who originally tried it, or to a special judicial tribunal. An oidor might be designated to serve in this tribunal. When the magistrates served in this capacity they were responsible entirely to the governor and were not identified with the audiencia. Oidores frequently objected to this service, but the governor was usually able to enforce these demands, which were in accordance with the laws and approved by the home government.

The captain-general exercised the pardoning power. Under some circ.u.mstances cases might be appealed to Spain, but in these suits, most of which involved personal crimes and misdemeanors, the decision of the captain-general or the local military tribunal was usually final, if for no other reason than the fact that the soldiers in Manila lacked the means to carry their cases further. Those cases which were appealed usually involved principles of law desirable to be tested by reference to a higher tribunal. The junta de guerra de Indias received all appeals from the military officials of the colonies and solved all questions of a judicial or administrative character that were carried to it.