Chapter 17

18. When any arrest must be made according to these instructions, it must, for any case of bigamy, be made according to clause fifteen. The commissary shall issue orders entrusting the matter, as is customary, to some one of the familiars whom he has to keep in the city. Until he has familiars, for lack of them he shall entrust it to the person on whom he has most reliance, and in whose integrity he most confides. When it is necessary, but only then, he may ask for the aid of the royal officials of justice. Whenever this shall be necessary, the royal officials may seize only the person pointed out to them by the Holy Office; and they must assist him, giving their favor and aid only for such person. In order to obtain this help, the commissary needs only to ask for it in polite terms; and it may be demanded without the necessity of giving information, either written or oral, regarding the offense--and, indeed, he shall be very careful not to do so. On the contrary, if anyone should be so inconsiderate as to ask for such information, let the commissary send us a detailed account of what takes place in the matter.

19. Royal magistrates are under obligation to render this assistance, since the request therefor does not require from them any fees, alguacil, or scrivener. The magistrates are also under obligation to receive and keep any prisoner in their jails, to take good care of him, and to account for him, but without exacting therefor any prison-fees. Accordingly the commissary will, when occasion arises, notify the magistrates and request their assistance; and if necessary he will command it, under pain of excommunication and a money fine. Thus he will not be obliged to find another and special prison, and incur the expense of guards. If the rank of the person, and the condition of the prison, and the nature of the crime require a more special and secret prison, on account of the danger that the prisoner may be able to communicate his affairs to other persons, such arrangements are left to the judgment of the commissary, who is charged to see that in these arrests little outcry be made, and that all scandal be avoided.

20. When the criminal is arrested, the commissary shall send him by the first available ship, registering him as being in the shipmaster's charge--commanding the latter (under penalty, if necessary), to take good care of the prisoner until he shall be handed over, at the port of Acapulco, to the commissary who dwells there, who is duly authorized to act. If the prisoner be well-to-do, the commissary shall send at least one hundred pesos' worth of his property, in order to pay for the food that he needs during his imprisonment, and to meet the expenses that he may incur during the journey; otherwise, the commissary shall send whatever sum be may obtain from the property. Since these men who are twice married are not a very dangerous class of people, the commissary may in a case of flight exercise leniency, by allowing them to come and present themselves under a sufficient security, corresponding to their station and means.

21. A sequestration of property is very injurious to a person, especially in the Indias, where all the value of property depends upon its management. The commissary ought not therefore, in any case, to do this; on the contrary, the arrested person shall permit suitable provision for his property, according to his own preference, entrusting it by means of an inventory to some person in whom he has confidence. The latter shall bind himself, in due form, to be the depositary of such goods as the prisoner may leave in his charge on account of his arrest; and in such manner that it may not seem to be a deposit or a sequestration by the Holy Office, but simply a contract between two parties. This accomplished, the commissary shall obtain very minute information about the station of the prisoner, his mode of life, and the means and property that he may possess. If he has any reason to suspect that either the prisoner or the person to whom he has entrusted his property on account of the arrest, is endeavoring to hide, or squander, or alienate the property, he shall be careful not to allow such alienation or any other mismanagement of the property; until the Holy Office, having examined his offense, shall make suitable provision for a legal sequestration: for in punishing a crime, the property of the guilty person is always regarded as an accessory element, to be used in behalf of the person to whom it shall belong after the culprit is released from prison.

22. Money for the prisoner's food, for the expenses of his journey, according to his station, and for his bedding and clothes, must be taken entirely from his estates; and if he has none, let such of his goods be sold as will inflict least damage upon him, to the amount necessary, at a public auction before a notary or a royal scrivener. No officer or agent of the Holy Office shall take anything from the said sale, either personally or through agents--a command which is general in all cases when goods are sold by the Holy Office, whether they are sequestrated or not. To better ascertain which of the goods would cause him least damage, it will be advisable to consult the opinion and desire of the interested party.

23. All that has been said thus far concerning the acceptance of denunciations, and the reference of cases, prisoners, and proceedings to the Holy Office, does not apply to the Indians--against whom the commissary shall not proceed for the present, but shall leave them to the jurisdiction of the ordinary. [42] Cases involving them are not to be referred to us. All other cases, in which mestizos, mulattoes, and Spaniards, of all classes, are involved, shall be tried exclusively by the Holy Office rather than by the ordinary courts, as specified in the fourth clause of these instructions.

24. The Holy Office is wont to issue edicts--as, for instance, the general edict concerning matters of the faith, and other specific ones--for the prohibition and seizure of certain books. The public reading of these edicts is of the utmost importance, having the force of a notarial summons. It always takes place in the cathedral church, where the people are commanded several days beforehand to meet, under pain of excommunication. The sermon is assigned to the most learned preacher of reputation and authority, who preaches it elsewhere, on that same day; notice is therefore given to the monasteries and to all concerned. The Holy Office shall appoint both the preacher and the day, although it is best to make arrangements therefor with the prelate, and obtain his concurrence; for in so doing nothing is detracted from what is due to the Holy Office. Although the penalty of excommunication is imposed, it is not held to bind any except those who for petty considerations neglect to heed it. In denouncing their guilt the commissary shall absolve them, imposing upon them only some secret spiritual penances and not any pecuniary or ignominious punishment. Others who through carelessness, negligence, or ignorance, fail to appear, the commissary shall discharge with a gentle reprimand, setting at ease their consciences in regard to the excommunication.

25. The Inquisitor therein anticipating the action of any other judge is accustomed to visit all ships which arrive at the ports, no matter whence they come; therefore the commissary shall do so, if he is in a place where it can be done, and shall ask the principal officers of the ship the questions sent with these instructions. If he is unable to do so in person, he will entrust the matter to the parish priest or the vicar who resides in the port, sending him a copy of the questions to be asked. He will notify us as to the ports chiefly frequented by ships, where it will be best to keep persons with a special commission from us; and will name some of the persons to whom this commission may be given. When the commissary has succeeded in visiting the ship at its station in the harbor, the captain, master, or clerk, or some of the passengers will find it necessary to go ashore, to the city; then, while the supplies most needed are being procured, he will examine them. In all this it is very important to avoid carelessness. This is understood only of ships which belong to Spaniards and come from Nueva Spaña, Piru, or Panama, or from Portuguese India, or from other regions.

26. One of the most important reasons for inspecting the ships is the books, especially the boxes which come as cargo. The royal officials and magistrates of his Majesty who reside in the ports shall send the said boxes to the commissary of the Inquisition, without opening them or taking any books out of them. The commissary shall open them and examine the books, comparing them with the general catalogue; and after seizing such as he finds are prohibited, he will give the rest to the owners To this end the commissary shall make known to the royal officials of the city, and to those who reside in the ports, the ordinance which accompanies this paper; and this applies even when the said boxes of books have been previously examined by another inquisitor.

27. Whenever a ship departs from the islands, the commissary must send replies to the letters which are written to him, and information of what is occurring there.

28. Finally, we recommend the examination of these instructions--which, although so full in their provision for all contingencies, properly apply to ordinary occurrences, with a few clauses for which provision had already been made. The most difficult task, therefore, will be to examine them carefully at first, and to bear in mind that any doubtful cases are to be decided by the commissary as shall be necessary, since he is so far away [from Mexico]. With this, and the confidence that we place in him personally and in his prudence and great zeal, we trust that the commissary will meet all success.

Given at Mexico, March first, one thousand five hundred and eighty-three. The licentiate _Bonilla_ The licentiate _Santos Garcia_

By order of the Inquisitors: _Pedro de Los Rios_

FOUNDATION OF THE AUDIENCIA OF MANILA

Don Phelipe, by the grace of God, king of Castile, of Leon, of Aragon, of the two Sicilias, of Ihm, of Portugal, of Navarra, of Granada, of Toledo, of Valencia, of Galicia, of Mallorcas, of Sevilla, of Cerdeña, of Cordoba, of Corcega, of Murcia, of Jaen, of the Algarves, of Algeçira, of Gibraltar, of the islands of Canaria, of the eastern and western Yndias islands, and the Tierra Firme of the great ocean; archduke of Austria; duke of Bergoña, of Brabante, and Milan; count of Absburg, of Flandes, of Tirol, and of Barcelona; lord of Vizcaya and of Molina; etc. Whereas, in the interests of good government and the administration of our justice, we have accorded the establishment in the city of Manila of the island of Luçon of one of our royal audiencias and chancillerias, [43] in which there shall be a president, three auditors, a fiscal, and the necessary officials; and whereas we have granted that this Audiencia shall have the same authority and preeminence as each one of our royal audiencias which sit in the town of Valladolid and the city of Granada of these our realms, and the other audiencias in our Yndias: now therefore we order to be made and sent to the said island our royal seal, with which are to be sealed our decisions which are made and issued by the said president and auditors in the said Audiencia. Moreover, as to the course of procedure which they are to follow in the performance of their duties, we have ordered certain rules to be drawn up, as follows:

_House of Audiencia_

1. First, we ordain and command that in the said city of Manila there shall be a house of Audiencia, where may sit and reside our said president and auditors, and where our royal seal and register may be kept, and in which shall be the prison and its warden, and the smelter for precious metals. If there should, however, be no accommodation for living in the said house, the auditors shall lodge in other houses, which they shall occupy with the consent of their owners, paying them rent; and the Audiencia shall be held in the house where the president dwells, and therein shall be the prison and its warden.

2. It is our will and desire that the said Audiencia shall have as its district the said island of Luçon and the other Filipinas islands of the archipelago of China, and the mainland of the same, whether discovered or yet to be discovered.

_Jurisdiction of the President and Auditors in Civil and Criminal Cases_

3. We ordain and command that our aforesaid auditors shall have jurisdiction of all the civil and criminal cases which come to our said Audiencia on appeal from the governors, alcaldes-mayor, and other magistrates of the provinces and islands and district subject to our aforesaid Audiencia, and shall try them by examination and review, but shall not have jurisdiction of any case in the first instance--except it be in cases which belong to a superior court [44] or criminal cases which arise in the city, town, or towns where they may sit, or within five leagues thereof; and in the civil cases arising in the town or village where they may sit, the alcaldes-in-ordinary shall have jurisdiction.

4. _Item_: We ordain that our said judges try such civil and criminal cases in the same manner in which they would be tried by the judges and alcaldes of our audiencias of Valladolid and Granada, and that they may and shall render decisions according to the precedents of the alcaldes of our audiencias of Valladolid and Granada.

5. _Item_: We command that the governors, alcaldes-mayor, and other magistrates of the said district shall authorize appeals to be made from them to our aforesaid Audiencia in the cases in which rightly and in conformity with these rules it may have jurisdiction, except those which must go to the councils for settlement in conformity with the decree made by us, and excepting further the cases involving less than a certain sum in which by special decrees appeals from the alcaldes-in-ordinary must go before the governors--which cases we wish to remain as they are during our pleasure.

6. _Item_: In the civil cases in which judgments are pronounced after examination and review by our said president and auditors, they are to be executed without any further appeal or petition, or other recourse, except when the case involves so large an amount that there may be ground for a further appeal to our royal person, in conformity with the provision and decree of our laws and ordinances. In such cases we desire that the privilege of appeal be given, under the condition that the party who makes a second appeal must and do present himself before us within a year after the original judgment has been communicated to his attorney. Yet we desire and command that the judgment of revision be executed notwithstanding such second appeal, the party in whose favor the judgment was rendered giving first sufficient and satisfactory bond that, if it shall be reversed, he will restore everything which has been adjudged and given to him thereby, in conformity with the judgment which has been pronounced by the persons appointed by us. We also ordain that the cases which shall come up on such second appeal must be presented as original cases before our council of the Yndias, being left just as they were; but an official report of the entire case is to be left in the possession of a clerk of the Audiencia before which it has been tried, and the parties must petition for such appeals before the Audiencia itself. Yet if the judgment of revision which is pronounced in our said audiencias be with regard to possession, we declare and order that no opportunity is to be given for such second appeal unless the judgment of revision is carried out, although it be contrary to that of the original trial.

7. _Item_: In the hearing and judging of said cases, either civil or criminal, the decision shall be whatever meets the approval of the majority; and should they be equally divided, two or three of the judges shall choose, impartially and in whatever manner may seem best to them, an advocate for the determination of the case upon which they have disagreed. The decision of the majority must be executed, even if this majority consist of but two. If there be but two judges in the Audiencia, they are empowered to try and determine all the said cases alone; if they can agree, their decision is valid, and in case of disagreement, they shall choose judges in the manner above described. If at any time there should be but one judge in the Audiencia, he is empowered alone to conduct the proceedings in all the said cases up to the point of rendering final decision. He may make investigations and issue orders for arrest, and when the affair is submitted for final decision, he may choose an assistant judge satisfactory to him. He is empowered to pursue this same course in cases of damage which cannot be repaired by definite sentence; and in a civil case of two hundred pesos or less, he is empowered to conduct alone an original trial or an appeal, as he may also do in criminal suits for slander.

8. _Item_: We ordain and command with regard to civil cases appealed from the alcaldes-in-ordinary of the city where the Audiencia may be, or from the other magistrates within five leagues thereof, that they may be appealed before the Audiencia; and if the judgment given by the Audiencia in said cases be of two hundred pesos of the mines [_pesos de minas_] or less, it shall be executed as if it were granted after review, and there shall be no appeal therefrom, whether the said judgment be in confirmation or in revocation.

9. [Technical directions for procedure in a case on appeal when the appellant desires, after appeal, to add to the evidence taken at the trial of first instance. Affidavits are presented on both sides before the judge of first instance, an interlocutory decision is pronounced, time is allowed for filing objections, and the record of the second series of proceedings is added to that of the first.] [45]

10. _Item_: Whoever shall bring before our Audiencia a case on appeal may appear before the clerk whom he chooses. The clerk before whom he appears shall be required to notify our president and auditors of such appearance, that they may assign the case so as to produce equality among the clerks; and the same shall be maintained among the suits begun in the first instance in our said Audiencia.

11. _Item_: We command that the judgments pronounced by our said president and auditors for the region beyond the five-league limit, and writs of execution and other writs, shall be given in our name and with our title, royal seal, and record. Writs with seal and record shall receive the fees which by our royal tariffs of fees for our Audiencia have been commanded for them. The judgments pronounced for the region within the five-league limit shall follow the form of orders without seal or record, issued by our auditors, etc. And these writs shall be obeyed and executed in the same manner as writs and judgments sealed with our name and royal seal.

12. _Item_: Our president shall keep a record of votes, which he shall swear to keep secret, and in which he shall enter, in brief form, the opinions of himself and the auditors in all cases involving a hundred thousand maravedis and upwards.

13. _Item_: We will that our auditors repeal no sentence of banishment, nor allow writs of delay for debts; yet we permit them to issue writs of delay for six months to particular persons, and not in general--provided first that such person for legitimate causes which have intervened is unable to pay; and that he offers approved security, not clerical or noble, [46] that at the end of six months he will pay the debt. This term may be allowed for the same debt only once.

14. _Item_: We ordain that the appeals taken from decisions for plaintiff or defendant in pecuniary suits, and in suits involving only private interests, when said decisions are pronounced by those who report to the governors and corregidors of the district of our said Audiencia, shall go before it; but as for all other matters heard by such judges, and as for the results of secret investigation, they shall go before our council of the Yndias.

15. _Item_: Our Audiencia shall appoint no judge in cases of residencia [_juez de residencia_], or governors for the provinces subject to their jurisdiction, or judges for special criminal investigations [_pesquisidores_]. If any individual bring complaint or charges against the governor, and the Audiencia shall see that the matter is of such nature that it is of importance to know the truth concerning it, in such case they shall send one person to obtain the necessary information. The complainant or accuser must give bonds that he will pay the costs and the penalty which will be assessed against him in case the accusation proves false. In other cases special judges of investigation shall not make inquisitions, except with regard to riots and seditious associations, or other matters of so pressing importance that the delay requisite for consulting us would produce notable inconvenience.

16. In cases which occur outside of the five-league limit, our president and auditors may appoint judges by commission [_jueçes de comision_], to hear the cases and to administer justice with regard to them. Care must be taken that they make their inquiries in cases which warrant inquiry, and in no others. Such judges by commission for crimes and misdemeanors shall be given authority only to carry on a legal inquiry [_informacion_], and to arrest the delinquents and convey them to the prison of the Audiencia. They may also collect their fees from those who owe them. The clerks before whom the cases are carried on shall hand the records in their entirety to the clerks of the Audiencia, where the matter shall be completed in such manner that the parties shall be obliged to pay only single fees. And if the clerks who attend such commissions have no commissioners [_receptores_], they shall be appointed by our Audiencia, and not by the clerks thereof.

17. _Item_: We command that the receiving of the testimony which must be taken in the transactions which proceed from our Audiencia shall be entrusted to the clerks of those cities where it shall need to be done. If there are no such clerks, our said Audiencia in the interim during which there are no official commissioners of examination [_receptores_] [47] shall appoint therefor a suitable person.

18. _Item_: Our auditors in the exercise of civil and criminal jurisdiction shall receive no fees, or fines, or amercements, or anything under color of charges for sitting as assessors to the judges. The fines which they lay in cases where the law assigns any fine to the judge shall be for our exchequer and treasury, and for no other person. If the auditors take any of the aforesaid payments, they shall restore them fourfold.

19. _Item_: We command that when any governors, alcaldes-mayor, or other magistrates of the district of our said Audiencia, shall fail to execute the writs and decrees which in our name the Audiencia shall send them, without showing that they have just cause to desist from the execution thereof, then in such case the Audiencia may send officials whose fees shall be at the cost of those guilty of disobedience, which officials shall cause the process of the Audiencia to be executed, notwithstanding the provision that the Audiencia shall not send out special judges of investigation [_pesquisidores_].