Note 23 — Chapter VII · THE AUDIENCIA AND THE GOVERNOR: THE MILITARY JURISDICTION

While the audiencia as a tribunal was forbidden jurisdiction in the trial of cases involving war, we have already shown that the governor exercised the right of designating oidores to try cases of this nature on second appeal. The power of enforcing this right depended entirely on the governor. Frequently the efforts of the governor along these lines were attended with much difficulty as were those of Governor Marquina in 1789 when he sought to designate an oidor to assist in the trial of Antonio Callejo, naval artilleryman on a frigate of war. The case had first been tried before the proper military judge, but it was referred on appeal to a tribunal of which an alcalde ordinario of the city was a member. The governor designated Oidor Yuguanzo to act as a member of this tribunal for the trial of the case of Callejo on review. The magistrate begged to be excused on the ground that all his time was occupied with the trial of civil cases in the audiencia. The governor called on all the other oidores successively, and all declined to act. At last he peremptorily ordered Yuguanzo to serve, telling him that if he objected he might carry the matter to the king in the regular way, which, according to the laws of the Indies, was to comply with the governor’s demands, under protest, while appealing the question of disagreement to the Council of the Indies.23 This was accordingly done, the magistrate basing his claim to exemption on the law which prohibited the governor from sending oidores on commissions outside the audiencia.24 The governor at the same time filed a memorial which forestalled all the arguments of the oidor.25 He stated that the real cause of the disinclination of the magistrates of the audiencia to serve as auditores de guerra was their indolence, and not the pressure of their excessive duties. It was contrary to their ideas of dignity to be associated with the acting auditor de guerra, who was not a letrado, and it was therefore considered a sacrifice of their own personal dignity. The governor stated that no argument could justify such an attitude on the part of the oidores. The inconsistency of their position was further shown, he alleged, by the fact that they had served regularly on the tribunal of appeals of the consulado, in company with two merchants who were not even lawyers. Hence there could be no reason for their refusal to serve with an alcalde ordinario.