Note V-10 — Chapter V · ADMINISTRATION OF THE INDIES. 1492-1526.

The word audiencia, from audire, to hear, has a variety of significations in Spanish; meaning, namely, the act of hearing, the tribunal, the courtroom and building, and finally, jurisdiction. Oidor, he who hears, comes from the same root, but is now applied only to the magistrate of an audiencia. The more important general laws governing audiencias in the New World were the following. In 1528 the emperor ordered, and the decree was reiterated in 1548, 1569, 1575, and 1589, that each audiencia should make a tariff of fees of notaries and other officers, which must not exceed five times those in Spain. In 1530 the mandates of this tribunal were made of equal force with those of the king himself. Should any one demand it, decisions in civil suits were to be rendered in one case before another was begun; suits of poor persons always to have preference in time of hearing. Even dissenting judges must sign the decision, making it unanimous. On the first business day of each year, all the members and officers being present, the laws governing audiencias should be read. In 1541 the emperor ordered that in 'first instance' alcaldes, regidores, alguaciles mayores, and escribanos should not be brought before the audiencia; in each pueblo one alcalde should have cognizance of what affected the other, and both of matters concerning its other officers. In 1540, and many times thereafter, the audiencia was charged to look to the welfare of the natives, to watch narrowly the conduct of governors and other officials, and to punish excesses. While in October, 1545, the emperor was at Malines, hence known as the law of Malinas, directions were given for procedure in cases of claims of Indians. Menor cuantía in suits was fixed at 300,000 maravedís; not exceeding this amount two oidores might decide; also in suits of mayor cuantía, except at Lima and Mexico where three votes were necessary as in Spanish law. It was ordered in 1548 that audiencias must not meddle with questions of rank and precedence. In 1551, Saturdays and two other days in the week were set aside, there being no suits of poor persons, for hearing disputes between Indians, and between Indians and Spaniards. More casos de corte, that is important suits taken from lower courts, were not to be admitted by an audiencia of the Indies than was customary in Spain. This was in 1552, and repeated in 1572. In 1553 it was ordered that any person having a grievance against a president or viceroy might appeal to the audiencia, the accused officer being forbidden to preside at such times. If the president was a bishop he was not permitted to adjudicate in matters ecclesiastic. Six years later all petitions presented were to be admitted. Philip II. in 1561 ordered that suits of the royal treasury should have precedence over all others. The year 1563 was prolific in regulations for the audiencia. Where the president of an audiencia was governor and captain-general, the tribunal should not meddle in matters of war, unless the president was absent, or unless specially directed by the crown. In the city where the audiencia is held there must be an Audiencia House, and the president must live there, and keep there the royal seal, the registry, the jail, and the mint; in this house must be a striking clock; and if there be no such building provided, the residence of the president shall in the mean time be so used. On every day not a feast-day the audiencia must sit at least three hours, beginning at 7 a. m. in summer, and 8 a. m. in winter, and at least three oidores must be present. Audiencias must not annul sentences of exile; or, unless bonds for payment are given, grant letters of delay to condemned treasury debtors. The majority decide. The governor, alcalde mayor, or other person refusing obedience to any mandate of the tribunal must be visited by a judge and punished. In exceptional cases only the audiencia might touch the royal treasury. Each audiencia must keep a book in which was to be recorded—where the amount in question was over 100,000 maravedís, or, in other important cases—the verdict of each oidor; and the president must swear to keep secret the contents of this book unless ordered by the king to divulge the same. A book should also be kept in which was to be entered anything affecting the treasury; and another the fines imposed. Audiencias could appoint only to certain offices. Philip II. further ordered during the subsequent years of his reign, that audiencias must keep secret the instructions from the crown; that they must not interfere with the lower courts, or with the courts of ecclesiastics, except in cases provided by law, but rather aid them; that they should register the names of persons coming from Spain, with their New World address; that with such matters as residencias, compelling married men to live with their wives, and the estates of deceased persons, presidents and viceroys should not intermeddle, but leave them to the other members; that they should use no funds resulting from their judgments, but draw on the treasury for expenses; that when an audiencia was to be closed, a governor should be appointed with power to continue and determine pending suits, but he should institute no new suits, and appeals lie to the nearest audiencia; that they should not make public the frailties of ecclesiastics, but examine charges against them in secret; that royal despatches for the audiencia must not be opened by the president alone, but at an acuerdo, and in presence of the oidores and fiscal, and if thought necessary the escribano de cámara must be present; and that they must not remit to the Council of the Indies trivial matters for decision. In subsequent reigns during the seventeenth century it was at various times decreed that a president might impeach an oidor before the Council of the Indies, though he could not send him to Spain, but no oidor might impeach his president except by royal command; that audiencias should exercise their functions in love and temperance, especially during a vacancy in the office of president or viceroy; that in their visits to the jail the oidores should not entertain petitions of those condemned to death by the ordinary justices in consultation with the criminal section of the audiencia, nor should they on such visits take cognizance of anything not specially confided to them; that they should not legitimize natural children, but refer such cases to the Council of the Indies; that each year the president should designate an oidor to oversee the officers and attachés and punish their faults; that no favoritism should be shown appointees of viceroys or presidents; one oidor might transact business, if the audiencia were reduced to that extremity; in arriving at a decision the junior member should vote first, then the next youngest, and so on up to the senior member. This from the Recopilacion de las Indias, i. 323-70. In the Politica Indiana of Solorzano, ii. 271-82, may be found how the audiencias of America differed from those of Spain. Larger powers were given the former by reason of their distance from the throne. They were given jurisdiction in the residencias of the inferior judiciary; they could commission pesquisidores, or special judges, and order execution to issue where an inferior judge had neglected to do so. They had cognizance in matters of tithes, of royal patronage, patrimony, treasury matters, and jurisdiction; they could even fix the fee-bill of the ecclesiastical tribunals, settle the estates of bishops, retain apostolic bulls which they deemed prejudicial to the royal patronage, and they could watch and regulate the conduct of all ecclesiastical officials. In making appointments the viceroy was obliged to take the opinion of the audiencia. Persons aggrieved might appeal from the viceroy to the audiencia. On the death, absence, or inability of the viceroy the senior oidor stood in his place. None of these powers were given audiencias in Spain. This and kindred subjects are treated at great length by Solórzano y Pereira, who was a noted Spanish jurist, born at Madrid in 1575. He studied at Salamanca, and in 1609 was appointed by Felipe III. oidor of the audiencia of Lima. Later he became fiscal and councillor in the Consejo de Hacienda, the Consejo de Indias, and the Consejo de Castilla. He published several works on jurisprudence, the most conspicuous being Disquisitiones de Indiarum jure, 2 vols, folio, Madrid, 1629-39. It was reprinted in 1777, an edition meanwhile appearing in Lyons in 1672. A Spanish translation by Valenzuela was published at Madrid in 1648, and reprinted in 1776. I have used both the Latin edition and the Spanish, but the latter is preferable.

The work is a commentary on the laws of the Indies, wonderfully concise for a Spanish lawyer of that period, and was of great utility at a time when those laws were in chaotic condition.

To conclude my remarks on audiencias in America I will only say that ultimately their number was eleven; and one at Manila, which, like that of Santo Domingo, had a president, oidores, and a fiscal, and exercised executive as well as judicial functions. The eleven, including that of Santo Domingo, were those of Mexico and Lima, each being presided over by a viceroy, and having 8 oidores, 4 alcaldes del crímen, and 2 fiscales; and those of Guatemala, Guadalajara, Panamá, Chile, La Plata, Quito, Santa Fé, and Buenos Ayres. These several audiencias were formed at different times soon after the establishing of government in the respective places. See further, Montemayor, Svmarios, 110-11; Revue Américaine, i. 3-32; Zamora y Coronado, Biblioteca de Legislacion Ultramarina, passim.