COLONIAL LEGACIES IN A FRAGILE REPUBLIC – Philippine Land Law and State Formation (Lynch, 2011)
CHAPTER 1
Declaration of Alexander VI
• Legal origins of embryonic (baby) PH republic can be traced back
500 yrs
• Early 15th Century: Portugal achieved political definition
• 1415: Portugal initiated European colonial expansionism by seizing
Cueta
• 1456: Pope Calixto III gave papal blessing to previous and
prospective Portuguese Acquisitions. Christian Monarchs who
challenged the papal delict was threatened with excommunication.
• 1487: The Cape of Good Hope had been rounded for the first time
o opened the way to India and the Spice Islands
• 1492: Christopher Columbus entered into a commercial contract
with the Catholic Kings (Ferdinand and Isabella)
o Columbus was eager to profit from any of his discoveries
o Contract said nothing about missionary motives nor did the
expedition carry a chaplain
o Contract also gave no heed to prior understandings with
Portugal and the Pope
• 1493: Columbus returned.
o Was informed by the Portuguese king that the discoveries
belonged to Portugal
o Columbus reported this to the Spanish monarchs. King
Ferdinand, fearing the Portuguese might decide to occupy
the islands forcibly, instructed his emissaries in Rome to
start working for papal favors to remove threat of
excommunication and recognize Spain's rights to the new
territories.
o Spanish crown enjoyed leverage at the Vatican.
o Current Pope, Alexander VI, was indebted to Spain for 16-
year old son’s appointment as archbishop of Valencia and
eager to obtain Ferdinand’s neutrality in a complicated
annulment involving both their relatives.
o The pope responded favorably to Spanish demand by
issuing papal bulls (Declaration of Alexander)
▪ successive increments of the favors granted to the
Spanish sovereigns, Alexander VI being at that time
but an instrument in their hands.
▪ addressed to "Ferdinand, King, and Isabella, Queen,
of Castile and Leon, Aragon, Sicily, and Granada."
o FIRST BULL: Inter Caetera, issued on May 3, 1493
▪ give, grant and assign forever (to Spain) . . . all and
singular the countries and islands thus far unknown
and hitherto discovered by Spanish envoys
▪ Ferdinand was not satisfied.
• Bull was a private communication
• Failed to delimit Portuegese authority to
define the territory which Spain could lay
claim to with Papal sanction
• Pope moved to cater to these royal
concerns
o SECOND BULL: Eximiae Devotionis (Issued July but
fictitiously backdated to May 3)
▪ Closed loopholes in the first bull
▪ granted the Spanish Crown the same "graces,
privileges, exemptions, liberties, faculties,
immunities, letters, and indults” that have been
granted to the kings of Portugal.
▪ Not gratuitous. Came with a papal command to
send "worthy, God-fearing, learned, skilled, and
experienced men in order to instruct the
inhabitants and dwellers therein in the Catholic
faith, and train them in good morals."
o THIRD PAPAL BULL: Piis Fidelium (June 25, 1493)
COLONIAL LEGACIES IN A FRAGILE REPUBLIC – Philippine Land Law and State Formation (Lynch, 2011)
▪ licensed missionaries and empowered Ferdinand to
select them
▪ King was not satisfied
o FOURTH PAPAL BULL: Inter Caetera (Retrospectively dated
to May 4, 1493)
▪ laid the foundation for the "Treaty of Tordesillas"
▪ attempted to delineate the respective spheres of
Iberian influence by drawing an imaginary line
MAGELLAN AND THE ISLAS DE SAN LAZARO
between the Arctic and Antarctic poles
▪ The Spanish zone of exploration was west of the
Atlantic line, the Portuguese zone was east.
o FIFTH PAPAL BULL: Dudum Siquidem (Sept. 26, 1493)
▪ Empowering the Spaniards to claim lands beyond
the treaty line provided they were discovered by
sailing west
• 1529: Treaty of Zaragoza
o Spain ceded to Portugal its supposed rights to the spice-rich
Moluccas for 350,000 ducats
o Spanish monarchy ratified the Tordesillas treaty in the belief
that it ensured control over a direct route to the fabled
Orient.
• Alexander died and a successor more congenial to Portuguese
interests became pope.
• Portuguese patience was rewarded on November 3,1514, when
Pope Leo X issued the bull Praecelsae Devotionis.
o granted the Portuguese king an exclusive right to claim all
lands that could be reached by sailing east
o the Portuguese believed that Spanish hopes of profiting
from the coveted spice trade and the imaginary treasure
house on the Asian mainland had been dashed.
• Portuguese then learned that Spanish hopes had actually been
rekindled a year earlier because of Vasco Nunez de Balboa
o Who while exploring the Panamanian isthmus, had
"discovered" the Pacific Ocean and claimed it on behalf of
the Spanish Crown.
o renewed interest in the search for a westward sea passage
• Eight years later, during an epic voyage to Asia, the straits at the
southern tip of the Americas were successfully traversed by, and
eventually named after, Ferdinand Magellan.
• 1518: Magellan secured patronage of the Spanish king, Charles I, for
his proposal of reaching the Moluccas from the west.
• 1519: he led a fleet of five ships and 241 men as it plunged into the
Atlantic and headed southwest
• When he reached the equator, he did not veer west in search of the
Moluccas but changed course when he reached the latitude of
Luzon and headed straight for the PH.
• This change was no accident.
o Reports concerning East Asian topography had been circling
Europe decades prior to Magellan’s trip.
o The conduits were often Spanish speaking, Muslim trading
merchants. They interacted with, among others, natives
from the still 'undiscovered' Philippine Islands. They also
conversed with Portuguese sailors and merchants who, in
turn, relayed the information back home
• March 17, 1521: The fleet reached shores now known as Samar
Island (Islas de San Lazaro to Magellan)
• March 31, 1521: First mass in the archipelago (in Limasawa)
o That afternoon, a large wooden cross was planted atop a
nearby hill.
o practice of putting up crosses as a sign of a claim of title was
in general use during the period of early exploration
COLONIAL LEGACIES IN A FRAGILE REPUBLIC – Philippine Land Law and State Formation (Lynch, 2011)
• Neither the Pope, the Spanish King, nor Magellan purported to
usurp unilaterally all of the customary property rights, or even the
sovereign rights, of the natives.
o The local chief in Cebu asked Magellan's emissaries, if the
natives were expected to pay tribute to the Spanish Crown.
The lawyer replied that there was no such demand;
Magellan merely wanted exclusive trade rights.
• April 27, 1521: Magellan lost his life.
SOVEREIGNTY AND THE ALEXANDRIAN DECLARATION
• 1539: Francisco de Vitoria, a Dominican theologian and renowned
humanist, delivered an important lecture on various legal issues
pertaining to Spanish conquests in the Americas.
o That rights enjoyed by virtue of natural law must be
recognized by a Christian sovereign aspiring to spread
the faith.
o His positions were inspired by Thomas Aquinas
▪ Aquinas believed that non- Christian leaders
were legitimate and, provided they did not
violate natural law, must be obeyed by their
subjects, including Christians
o Interpreted the bulls as spiritual in nature
▪ Since the pope is not temporal sovereign of the
world, no authority over non-Christians
▪ Therefore, no political dominion nor ownership
over inhabited territories
o His views were shared by many people, including King
Phillip.
• Secular supporters of the Crown did not want to concede that the
sole basis for colonial sovereignty rested on papal grants.
o Would base Spain’s claims to islands upon a concession
from source outside of Spain
o Would also confer to pope or his representatives powers
that might future erode the king’s
• 1556: King Philip II ascended the throne.
o Wanted to prevent any repeat of the brutal conquests of
Mexico and Peru that had done much to belie Spanish
attempts to legitimate the colonial enterprise in the name
of Christianity.
o At this time, friars were eager to secure more control over
the Philippine colonial enterprise than they had in the
Americas
• 1565: Miguel Lopez de Legaspi and his entourage arrived in the PH
(dispatched by King Phillip to pacify the Philippine Archipelago
peacefully).
o Spain had already garnered a considerable degree of
experience in the management and exploitation of its
overseas possessions
o had also enacted an elaborate legal framework for
administering the vast Spanish empire and for justifying
sovereign claims based on discovery
o The experience and framework provided the empirical and
theoretical bases by which Spain would attempt to
administer the Philippine colony from Madrid.
MANILA SYNOD OF 1582
• 1565-1581: First phase of Spanish Occupation
o Notable for harsh treatment by soldiers and colonial
officials on indigenous peoples which friars complained
about
o Encomenderos: perpetrators of most serious abuses
o Augustinian priests: led vocal opposition to abuses
o Secular regime: defended the encomenderos for they were
the SR’s principal means by which a few hundred Spaniards
pacified a large portion of northern and central PH in 25 yrs
COLONIAL LEGACIES IN A FRAGILE REPUBLIC – Philippine Land Law and State Formation (Lynch, 2011)
o Indigenes:
▪ Many paid what was demanded of them
▪ Others carried tradition of Lapu-Lapu
• Rose to defend themselves
• Spaniards would provoke incidents giving
themselves excuse for making a just war
• Superior firepower of Spaniards = victory
• 1581-1586: Second Phase
o Arrival of first bishop of Manila: Domingo de Salazar
▪ Objected to the scale of tribute collected on
Christian and non-Christian, pacified and unpacified
natives
▪ Viewed encomiendas as just and necessary
institutions
o 1582: ecclestical synod was convened in Manila under
Bishop Salazar
▪ To address problem of tribute collection
▪ Formulate novel theory upon which Spain would
stake its legal claim over PH
▪ Declared that the Castilian monarchs "do not
occupy the Philippines by right of inheritance or
through a just war
▪ Castilian sovereignty in the Indies flowed from the
commitment to preach the Gospel to the infidels
and to provide military protection of converts
against their pagan neighbors
▪ Natives could not be deprived of their properties or
their rights founded on natural law and the law of
nations unless they positively interfered with the
preaching of the Gospel
▪ Concluded that sole right of the Castilian Sovereign:
Preaching the gospel, not dispossessing man of
what was his
▪ However, council agreed that the crown held a
quasi-imperial authority over the indigenes because
of the supposed “higher spiritual goal” that
motivated the colonial endeavor
• Baptism: natives became subject of Pope’s
spiritual sovereignty but remained subjects
of local leaders
• Pope delegated his powers to the Crown by
the bull and the patronato real
• Bc of this delegation, crown was legally able
to promulgate laws for protection and
exercise of spiritual rights of native
Christians
▪ Synod may have no effect on history but defined
the juridical basis of Castilian Sovereignty in the
islands
• 1587-1600: Third Phase of Spanish Occupation
o Aragon characterized period as “struggle for the free
acceptance of Spanish dominion”
o Official unanimity about obtaining consent before
imposing sovereignty was not attained bc Synod’s
conclusions were received favorably by King Philip
o 1597: Controversy over legal basis of Castilian
Sovereignty was raging onve more
▪ Dispute amongst encomenderos and the PH
church over tribute collection
▪ Real issue: political power and which
institution, religious or secular, would dominate
the colonial enterprise
SOVEREIGNTY AND CONSENT
• Philip decided in favor of the clergy
COLONIAL LEGACIES IN A FRAGILE REPUBLIC – Philippine Land Law and State Formation (Lynch, 2011)
o February 8, 1597: he decreed that consent of natives to
Castilian sovereignty should be secured
o Instructions were in a Royal Cedula
o Meetings were held in areas already conquered so in the
first plebiscites, these native collaborators “voluntarily”
SPANISH SOVEREIGNTY AND INTERNATIONAL LAW
chose the king as their sovereign and natural lord.
▪ Voluntary submission was based on promise that
the king and his subjects render each other certain
services
▪ Positive benefits promised by the king:
• Religious instructions
• Administration of justice
• Protection against enemies
▪ Natives in Laguna, according to Gov. Tello, were not
so easily yielded. Asked for a year for their answer.
▪ Participants in Plebiscite did not speak for everyone
• Resistance to colonial imposition was still
widespread in many parts of the islands
• 1670: fewer than half million indios were paying tribute while twice
as many lived outside colonial realm
• A century and a half later, an anonymous Spaniard: only coastal
populations of Luzon and Visayas have been Christianized
• 1848: Steam powered gunboats plus vastly superior weapons were
used to secure the consent of natives to colonial imposition
• 1860: Maguindanao sultanate was subjugated
• 1881: Igorot resistance proved frustrating to the Spaniards that the
GovGen issued a decree appealing that all Filipino Igorots were to
accept their rule under pain of being painfully subdued
o many Igorots refused and once again another expedition
was sent against them
o Expedition ended when orders from Madrid were received
ordering GovGen to desist
o Legal implication from successful resistance: Spain
technically never acquired full sovereignty over the entire
archipelago. Regions inhabited by unconsenting peoples
retained their sovereign rights.
• 1898: Spain ceded PH rights to the US
o Prevailing int’l theory at the time was an area inhabited by
people not permanently united for political action was
deemed empty territory (territorium nullius)
▪ Claim grounded by TN was legally binding over
other foreign powers
o no theory of consent was ever raised during the transfer. US
relied on int’l character of the cession and claimed
sovereignty over the entire PH, including southern
territories under the jurisdiction of Muslim sultans and
principalities.
o Widespread resistance demonstrated lack of native consent
o Once Spain ceded the PH, it was simply assumed that the
Spanish cession was valid and that it applied to the entire
colony, whether conquered or not
• 1902: Pope Leo XIII promulgated the Apostolic Constitution Quae
Mari Sinico.
o Consti terminated remaining privileges still enjoyed by the
Spanish friars remaining in the colony
o Enjoined the clergy to focus on religious pursuits
o Rescinded declaration of Alexander and extinguished the
last legal remnant of Spanish sovereignty in PH
COLONIAL LEGACIES IN A FRAGILE REPUBLIC – Philippine Land Law and State Formation (Lynch, 2011)

CHAPTER 2 o the Crown shared the traditional economic ambitions that

were inherent in every colonial endeavor
MADRID AND MANILA: SECULAR SPANISH PARTICIPANTS
o pursuant to its legal obligations under the Declaration of
OVERVIEW Alexander, the Crown had
o a duty to Christianize the inhabitants of the archipelago
• PH never occupied central place in the colonial agenda of Spain • The late 18th century was characterized by the expansion of mono-
o Relatively small number of colonial officials in the islands cropping and an intensified competition for arable resources.
were to ward off other potential European predators and
• 19th century: the Crown endured unrelenting political pressures
make money
which distracted it from PH issues. This was felt in Manila and
o During entire Spanish regime, there were not a lot of full-
changed the political atmosphere of the islands.
blooded Spaniards in the PH.
o It prompted some among the informed and formally
o This shortage of Spanish manpower left the colonial
educated native elites to "awake from their state of
authorities with no alternative but to rely on indigenous
contemplative acquiescence in which up to that time they
institutions and leaders
had accepted the established system
▪ Shortage, however, did not prevent colonial gov’t
from collection taxes COUNCIL OF THE INDIES/OVERSEAS MINISTRY
▪ Regime was also subsidized by allowance from the
• Consejo de Indias was established
viceroyalty of New Spain
o Exercised undifferentiated executive, legislative, and judicial
o After the british occupation of Manila, there was a growing
powers
appreciation for the economic potential of the colony’s land
o 14 high level officials + large number of functionaries
resources.
o legislated an internally contradictory, but nevertheless
▪ Shorter travel time and lower transportation costs
uniform, legal framework throughout the vast Spanish
between Europe and the Pacific after the opening of
empire.
the Suez Canal in 1869 also spurred on the
▪ Each colonial regime was governed by the same
reappraisal and increased the colony's profitability
laws and regulations
CASTILIAN/SPANISH MONARCHY ▪ Madrid tended to treat the Philippine colony as if it
were a Mexican province
• Established for 4 objectives:
▪ reflected economic and commercial perspectives
o Break Portuguese spice trade monopoly and believed that a
which were based in Madrid
military base in the PH would help in that regard
o BUT:
o aspired to establish and maintain direct contacts with China
▪ Laws enacted in Madrid in response to
and Japan for trade and missionary endeavors
developments in Mexico often had little relevance
in the Philippine colony
COLONIAL LEGACIES IN A FRAGILE REPUBLIC – Philippine Land Law and State Formation (Lynch, 2011)
▪ giving to colonial laws the effect of detachment
from the actual conditions they were meant to
remedy
• Council was abolished 1812. 1863, Ministerio de Ultramar assumed
primary jurisdiction.
o Could remove and appoint all important officials of the
colony
o Assisted by Council of the Philippines
▪ Composed of people who have served in the PH for
at least 2 yrs in a senior admin capacity
▪ Council, however, sat permanently in Madrid
• Codification of Colonial Laws:
o FIRST Major, empire-wide codification of the laws of the
Indies (El Recopilacion de Leyes de los Reynos de los Indios)
with additional laws in Siete Partida
▪ essentially a digest compiled as a means to regulate
the various colonial regimes in Spain's vast empire
▪ not a complete code
▪ provisions not always enforceable in a colony if no
express provision for application was made in
Madrid
▪ Order of preference of laws in PH:
• Royal decrees and orders enacted in Madrid
and specifically ordered to be complied
with in the Philippine Islands; Autos
• Acordados (discussed infra);
• Laws of the Indies;
• Local custom (fuero juzgo);
• royal custom (fuero real);
• Siete Partidas
GOVERNORS/CAPTAINS-GENERAL
▪ Because of the distance from Madrid and the length of time needed
to communicate, let alone supervise, provided colonial officials with
a greater degree of discretion and autonomy than expressly
provided for by the Iberian legal system. No office was better able
to exploit this relative autonomy than that of the colonial governor.
▪ PH office of Governor/Captains-General was created by a royal
cedula in 1567. Official title of office holder was Governor General.
o The selection of the governor was made personally by the
king from a list of names submitted by the Council of the
Indies
o personal representative of the Crown and, so far as the
colony's resources permitted, he discharged many official
duties with elaborate ceremony
o Direct superior: Viceroy of New Spain (Mexico)
▪ Despite viceroy’s supervisory and financial leverage,
PH colony was largely independent of him.
o obliged to seek the advice of the Mexican viceroy on
important issues, such as defense, military campaigns and
the establishment of new missions
o in charge of colony’s civilian administration + appointment
of local officials not assigned by Madrid
o responsible for collecting revenues, establishing
government monopolies, and nominating encomenderos
o governor's concurrent military offices also vested in him the
legal right to invoke armed might against those who
challenged or resisted the colonial regime.
o governor was empowered to suspend the effectivity of laws
emanating from Madrid
▪ can be overruled but not easy to get the king or the
council to do so as the process of appeal was
characterized by lengthy appeals
COLONIAL LEGACIES IN A FRAGILE REPUBLIC – Philippine Land Law and State Formation (Lynch, 2011)
o most prized power: right to allot boletas, or tickets, which
entitled the holder to cargo space on the Acapulco-bound
galleon
▪ sole communication link with Mexico and spain
REAL AUDENCIA OF MANILA/OIDERE
▪ also carried spices and Chinese silks which were
exchanged in manila for Mexican silver
▪ trade was exclusive means of enriching oneself and
a shrewd governor could reap handsome profits
o Two IMPORTANT powers
▪ Control over actual functions of the colony’s highest
judicial body
▪ Authority of governor to determine judicial,
governmental, military, or ecclesiastical character of
a particular dispute and then assign it to the proper
tribunal or department.
• Made governor supreme arbiter although
appeals can be made in Madrid
o Primary restraint to power: the residencia, or a judicial
examination at the end of one’s official term in cases of
alleged malfeasance.
▪ But the governor participates in the residencia, as
its president, and designates the judges tasked to
conduct it.
▪ Since it "was dearly understood, if rarely
articulated, that the governor was to profit
personally, provided he did not plunder too
grossly," the residencias often accomplished little.
▪ If a governor was threatened by a negative report,
he would bribe his way out of the colony
o Calibre of generals improved at latter half of the 18 th
century but reverted back to incompetence in the opening
of the 19th. This was because of the fast turnover of
governors after Legaspi’s assumption into office.
▪ This showed the relative instability of the
gubernatorial tenure after 1806 and the rapidly
weaking position of Spain in the PH
▪ Audiencias were established to
▪ Relieve colonial governors of judicial duties and
check their alleged excesses
▪ Provided a reliable back channel which royal
authority could be asserted in the colonies
o First one was established in Santo Domingo in 1526.
o Audiencia of Manila (1583) was the 10th to be founded.
o Governor sat as president + 4 members of the tribunal who
investigated and decided the outcomes of disputes
o Assisted by the fiscal (today’s OSG)
▪ Prosecuted on behalf of the crown
▪ Defends crown’s interests in all cases
▪ Obliged to serve as protector of the Indians
o Had responsibility to make sure the indigenes were well
treated.
▪ But hampered by the competing jurisdictional
claims from an array of courts (army, navy,
ecclesiastical, treasury, commercial, probate courts)
▪ Problem as alleviated by reorganization which
paved the way for the audiencia’s judicial
supremacy
o also charged with monitoring provincial bureaucrats so that
they would not be remiss in their duties
▪ Criticism of the oideres and the fiscals were widespread for each
official that arrives in manila brought family, friends, and followers
who acquire positions and favors that would have gone members of
the local Spanish population.
COLONIAL LEGACIES IN A FRAGILE REPUBLIC – Philippine Land Law and State Formation (Lynch, 2011)
o Members of the Audiencia also made themselves as
comfortable as possible while ignoring the plight of
numerous poor Spaniards and marginalized natives
▪ Rivalries between the governors and oideres erupted almost
immediately. Primary reason: greed and venality.
▪ The audiencia of Manila was largely unable to curb the excesses of
the governors and other colonial officials because they often
contributed to or surpassed these excesses.
▪ In response to the recurrent problems, the Audiencia underwent
major reorganization.
o Royal cedula established uniform rules of judicial procedure
and reorganized the courts
o 1861: Audiencia was divested of its executive and
administrative duties.
▪ Became organic law of judicial power in the colonies
beyond the sea
▪ Remained in force till the beginning of the US
Colonial Period
PHILIPPINE-SPANISH COLONIAL BUREAUCRACY
▪ All colonial offices and privileges were owned by the crown.
▪ Grants of royal favor:
o Official appointments
o Right to any emoluments
▪ Only the monarch had power to appoint viceroys, governors, and
members of the Audiencia
▪ Theoretically, all government positions except governor were
granted to deserving applicants but were “sold to the highest
bidder”
o “bidders” saw these positions as “investments” therefore
led to abuses and lessened sense of responsibility
▪ At the end of the 18TH century, Madrid knew that the colonial
administration was corrupted and not working well.
o Series of reforms were instituted which included the
creation of bureaucratic institutions
▪ Establishment of the Intendency of the Army and
Superintendency of Finance
➢ New system removed financial
management responsibility from the
governor and his subordinates and placed
them under an independent government
organization
➢ This separation of powers was difficult to
maintain, however, and the intendencia
was abolished and reestablished several
times.
➢ By the end of the Spanish regime the office
of the hacienda was quasi-independent and
approximated the position of an executive
department
▪ 1861: the overlapping executive and judicial powers and
responsibilities of the governor and the Audiencia were separated.
o Civil registry offices were set up in each municipality
o the Roman Catholic Church in the Philippines was officially
integrated into the colonial regime as a component part of
the Department of Grace and Justice
▪ 1867: First compilation of taxation laws was made.
▪ 1887: The Civil Code of Spain was extended to the colony.
▪ 1888: A Code of Civil Procedure followed.
▪ 1889: A Code of Commerce and a Notarial Law were promulgated,
▪ Many other laws were promulgated in the next succeeding years.
▪ Laws enacted in Madrid during the final years of Spanish Philippine
sovereignty were ostensibly "designed to modernize general and
local administration.”
COLONIAL LEGACIES IN A FRAGILE REPUBLIC – Philippine Land Law and State Formation (Lynch, 2011)

▪ Onofre D. Corpuz, in his book, Bureaucracy in the Philippines,

identified this weakness as a product of the "internal moral
corruption of its members”
o The cumulative sins of the colonial bureaucrats was the
critical and decisive factor behind the overall failure of the
colonial regime to live up to the noble principles enunciated
by the home gov’t.
o The colony was the “dumping ground for persons who were
unfit for the service in Spain”
▪ Efforts to upgrade colonial civil services ultimately failed.
▪ Rapid turnover of colonial personnel, including the governor,
contributed to the overall malaise, as did the recurrent political
instability in Madrid.