Note 28 — Chapter IV · JUDICIAL FUNCTIONS OF THE AUDIENCIA; THE RESIDENCIA1

Sinibaldo de Mas, the able Philippine critic of the nineteenth century, says in regard to the above characteristic of the Recopilación and its laws: “Since the Leyes de Indias are not a constitutional code, but a compilation made in the year 1754 [a footnote amends this statement with the information that the Recopilación was first made in 1681] of royal orders despatched at various epochs and by distinct monarchs, ... there results ... a confusion of jurisdictions.”—Mas, Internal political condition of the Philippines, Blair and Robertson, LII, 70.

Dr. James Alexander Robertson, in his article on “Legaspi and Philippine colonization” (see American Historical Association, Annual report, 1907, I, 150 and note), characterizes the laws of the Indies as “that mass of contradictory legislation,” largely “ecclesiastical in tone,” ill-digested, and “utterly at variance with one another.” Dr. Robertson also states that “it is from a too close following of these laws and a too great neglect of actual conditions that writers on the colonial policy of Spain have at times fallen into error.” On the other hand, it may be said, that not enough use has been made by modern writers of the laws of the Indies, and there is need of such investigation as will test that oft-repeated statement that the laws of the Indies were not enforced. Up to the present, Latin American scholarship has been content with a rehashing of Helps and Prescott, for the early periods, omitting the seventeenth century and the greater part of the eighteenth altogether, and fixing on Juan y Ulloa, Robertson, and Humboldt as the great all-determining authorities for the latter periods of Spanish colonization. These, indeed, have been supplemented by a few ecclesiastical histories, each of which has been written to prove a particular thesis. The present writer dares to believe, after some attempt to harmonize the laws of the Indies with actual practice, that these laws were actually used as a basis of colonial government, and that, while not always effectively enforced, they were by no means a dead-letter until Spain actually lost her colonies and are not today, for it is easy to see in the laws of the Indies the fundamentals of the institutions of present-day Spanish America.