Note 6 — Letters from Auditor Messa y Lugo to the King

”Item: I order that my president of the said Audiencia try the criminal causes of its auditors, together with the alcaldes-in-ordinary, notwithstanding the ordinance that rules the contrary.”6 He availed himself of this to summon the alcaldes-in-ordinary and to cause them to sign all that he decreed, for they were present at nothing else than the signing of what he was violating—both with witnesses and without them, when they were not persons who were mere creatures of his; for, when persons are elected into the cabildo, nothing but what the governor wishes is voted. Further than this, if they were persons of greater obligations, and more exemplary in life and conscience, I think that they would do the same, although it might even be in a [186] matter of greater weight; for, as I have told your Majesty, the more than violence and force that the governor holds over their minds and wills is incredible, although evident. Not all dare to resist at the peril of their security and life, and of being imprisoned, as I was, for the service of your Majesty. They, hastily judging, differentiate between the future hurt, which may not come to them, and the punishment which they regard as a present hurt, namely, to suffer for God and their king. Besides, as they also are in the deal, they have their advantages, by which they are all blinded. For to whoever can see, and to him who desires the light of heaven that he may succeed, not only is the ordinance not obscure, as they say, but quite clear, since it does not give authority or contain words for arrest or process; nor does it in any way alter the law. Therefore, those nearest [to your Majesty], as are the auditors, cannot be imprisoned or proceeded against except by your Majesty or the royal Council, or by your order. Nevertheless, the president, in virtue of his superintendency over the Audiencia, may ordain to the auditors what may be just and reasonable in matters that pertain to the government and its conservation; and even, in the heated arguments that are wont to arise between the auditors, has authority, in case the nature of the affair might require it, to retire each auditor to his own house, until they make up the quarrel; and, should he deem it advisable, he may inform your Majesty. For the ordinance does not say that the president and alcaldes shall proceed, arrest, sentence, and execute justice in criminal causes affecting the auditors. All that, in my opinion, was meant to amend the express [187] privilege of law as contained substantially in the corpus juris [civilis];7 and even then serious causes would have to be understood by criminal causes; ultra multa cum tiberº farsnaci e regni col. 9, ttº 4, pº. 3.8 But it says only that the governor shall try criminal causes, which means that, in crimes that are not such by reason of the office, but personal and serious crimes of the auditors, he shall investigate, together with the alcaldes, and advise your Majesty; and the word “try,” instead of meaning to arrest and execute justice and other equivalent things, only denotes simple jurisdiction which belongs to civil cases, and not authority, either pure or mixed.9 Otherwise [188] your Majesty could avoid the visits and residencia which you send to the Audiencia. Accordingly, to try criminal cases means that they be treated civilly without allowing them to be [cases for either] pure or mixed authority, by arresting or proceeding; but only to investigate and advise your Majesty, except in capital causes that have the capital penalty. In such cases it would be advisable for the Audiencia, and even for the president alone, to secure the criminals, if they should be auditors and nearest [to the king], but not by virtue of the ordinance, but by virtue of the ordinary authority of law, and the privileges of public protection—citing [the paragraph] ne delicta, etc., in case that it was unable, because of the crime and the person, to be secure in any other way than by imprisonment which befits the crime, and in accordance with the teaching of the law divi fratres f fin ff de poen.10 Therefore the Audiencia ought to arrest the governor for four murders that he has lately committed (and which will be told later), solely to assure and advise your Majesty, with judicial consideration, so that you might decree your pleasure in respect to his person. But [they ought] to punish his accomplices, who were numerous, and who are not near [to the king], but [189] most of them men who, without that crime, deserve to be severely punished for others; but they are all passed by, in virtue of peace and harmony, by Licentiate Hieronimo de Legaspi and Don Juan de Valderrama, the auditor and fiscal, who are on good terms with the governor. [Indeed, these men] now constitute the Audiencia, because Don Antonio Rodriguez has retired to his house, and is sick because of the insults cast upon him by the governor at a meeting (which I shall relate later); while I was arrested when it happened, and am now in refuge in the sanctuary. In order that all that may be done well, the governor arrests me and insults me—although, I am, by the mercy of God, guiltless of any crime, capital, moderate, or the least, and even without the slightest dispute in the Audiencia; but only because my character and the obligations of my conscience do not allow me to lack one jot in my service to my king—under pretext that by not consenting to the things that the governor imputed to me, I told him that what he was saying to me was not so. Had I shown any want of prudence in my defense—which I could have done, and which I think another would have done, who would not have endured it as did I—I would have been excused, and he would have been guilty in making himself the judge of his own cause—the more, as there was no fault or injury; or, even if there were any, it was not to the tribunal or to his dignity. I do not know, Sire, [of a case] even with full authority from your Majesty in regard to visit and residencia, when one has ever seen an auditor arrested and proclaimed, even though he had committed many serious crimes; and when, as has been told me, they shuddered with [190] horror at the men who did it. However, I would better leave this matter now, and put a stop to this particular, rather reproaching myself at having digressed to discuss these private details (although with so great limitation), since I am talking with so exalted a tribunal, and to so many grandees and to so gifted men. For that reason, I do not dare allege rights or continue, but only to petition your Majesty to be pleased to have your royal provision issued with the gravest penalties (nevertheless, I fear that those penalties will not be sufficient, from what I know and what the community knows of the governor), so that the governor may release me; and ordering him not to molest me with any processes or causes whatsoever, so that I may attend to the affairs of my office as auditor, freely, as well as to those which your Majesty has assigned to me. [I also ask] that the royal officials pay me all my salaries,11 for the time while the governor has prevented and kept me by force from exercising my office; that the governor restore to me my property that he has sequestered; that, if it be sold, I be paid for it; that the governor leave my house that he has occupied for two years, pay me the rent for it, and go to his own [191] house, since your Majesty has assigned it to me and the other to him; and that, if the governor should have drawn up any acts, they be sent to the Council immediately. For I have not been able to get them from him, nor is there any one who can get any testimonial from him of anything. On the contrary the governor has, since I have been in [the convent of] St. Dominic, seized certain petitions presented in the Audiencia before Licentiate Legaspi, who is there alone, a thing which before could not have been possible; and has refused to return them under any circumstances, in accordance with his usual custom in such things. I trust, God helping, that if the governor sends the testimonies by themselves alone; without considering his own inability to do it, his violence, and the judicial substance, your Majesty, if so pleased, will find in them a disposition to punish him severely, and to condemn him and the alcaldes; and to order me to be paid many damages and costs which have been imposed on me, rewarding me and granting me great favors and honor. For without any other investigation or information from me, or from others, I think that you will see very clearly the reasons and objects that, as I have said, have moved the [192] governor to commit so atrocious an act as he did in my imprisonment. However, it is also well known that the following reasons have influenced him.