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BOOK III.

OF ACTIONS.

TITLE I.

OF JURISDICTION, JUDGES AND TRIALS, OR JUDICIAL PROCEEDINGS IN SPAIN IN GENERAL.

CAP. 1. HAVING treated of the two first objects of justice, [241] it remains to discuss, in this third book, the last, which relates to actions, under which term is understood all that is embraced or comprised in a trial or judicial proceeding (juicio); therefore we shall treat in succession of each of its parts.

Jurisdiction' is the power which the king or lord of a domain possesses over his subjects or vassals as arising from the dominion which he exercises over them. This dominion (imperium) is pure (mero) and mixed. Pure dominion or jurisdiction is that which confers upon the prince the power of deciding criminal causes. Mixed is that which confers upon him the cognisance of civil causes, L. 18. tit. 4. P. 3. [L. 18. tit. 4. P. 3.] Thus then this supreme jurisdiction in matters civil and criminal resides only in the king, L. 1. tit. 1. lib. 4. Rec. [L. 1. tit. 1. lib. 4. Nov. Rec.]; and, therefore no lord or private individual can exercise in the dominions of the crown this jurisdiction without producing the title or privilege he possesses for so doing, L. 2. tit. 1. lib. 4. Rec. [L. 2. tit. 1. lib. 4. Nov. Rec.] Whence proceeds the pre-eminence or right of the crown to appoint secular judges to the cognisance of these two kinds of causes, as also escribanos and other ministers of justice, L. 2. tit. 4. P. 3. [L. 2. tit. 4. P. 3.]

Cap. 2. Jurisdiction in the first place is ordinary or delegated. Ordinary is, that which is vested with every extension in the [242] magistrate by reason or virtue of his office. Delegated is that which is given to any one for the cognisance of a certain and determinate cause, which is exercised by all judges who are commissioned or deputed (comisionados).

From the different nature of these two jurisdictions we deduce, that the ordinary is favorable and perpetual, and the delegated odious and limited. 1st, Wherefore if a commission is given to an ordinary judge to take cognisance of any cause, over which he possessed ordinary jurisdiction, he is understood to exercise the latter, I See Wood's Civ. Law, book 4. ch. 1. p. 292.

VOL. I.-35

unless something be added to, or taken from it, but even in this last case, if he hath not made use of the limitation or extension, he will be always considered to have exercised the ordinary. Hevia, Cur. Filip. part. 1. § 4. num. 4. and 5. 2d, That both jurisdictions concurring in one judge, he is understood to exercise the ordinary, Hevia, ibid. num. 5.

As in delegation oftentimes regard is had to the ability or fitness which the substitute shows for the office which he is to exercise, it hence follows, 1st, That the appointment can only pass to his successor when the substitute or delegate is not named; or being named if it can be proved that the person delegating was unacquainted with the delegate at the time he commissioned him, Hevia, ibid. num. 12. 2d, That the delegate cannot commit his jurisdiction to another judge although he be an ordinary one, L. 47. tit. 18. P. 3. [L. 47. tit. 18. P. 3.]

Cap. 3. In the second place, jurisdiction is divided into privative or exclusive (privativa), and preventive (acumulativa). The first is that which of itself alone deprives other judges of, or excludes them from, the cognisance of the cause; and this all judges enjoy or exercise to whom causes are committed with an inhibition to others of the district to take cognisance of them. The second is that by which a judge may have cognisance of causes which another judge undertakes, or in which he has concurrent jurisdiction, with prevention between them, L. 19. tit. 8. lib. 2. Rec. [L. 9. tit. 14. lib. 5. Nov. Rec.] The latter, those enjoy, 1st, Who acquire it by favor of the person while living. 2d, Those who acquire it by prescription. 3d, Those who possess jurisdiction delegated to them by a judge superior to the one of the district or place; by reason or virtue of which they may inhibit the ordinary and other judges from the cognisance of causes contained in their commission, although they [243] may be pending before such judges; and in the mean time, if this commissioned judge dies, or his office or power is defective or at an end, they cannot even take cognisance of such causes without a new power or delegation from the person who appointed (el delegante), L. 47. tit. 18. P. 3. Hevia, ibid. n. 14. and 15.3 [L. 47. tit. 18. P. 3.]

Cap. 4. In the third place jurisdiction is divided into necessary and voluntary. Necessary is that which is actually exercised over persons who are subject to it. Voluntary is that which is possessed over him who, of his own accord or free will, is disposed to submit to it, L. 32. tit. 2. P. 3. [L. 32. tit. 2. P. 3.]

From this last arises the jurisdiction called prorogada which is the

2 This right of prevention of Jurisdiccion acumulativa, may be better defined. It consisted in this, that where two judges had concurrent jurisdiction over causes of the same nature, he before whom a cause was first instituted, and by whom the party was lawfully cited, acquired exclusive jurisdiction over that cause to conclusion. Vide Instruc. Jurid. de Colom., 2d vol. lib. 1. cap. 1. p. 40. n. 10.; and L. 12. tit. 7. P. 3. 3 And L. 5. tit. 34. lib. 12. Nov. Rec., al fin.

extension of jurisdiction to the case or person to which or whom it is not by its nature extended. Carleval, tit. 1. disp. 2. sect. 1. q. 8. L. 20. tit. 21. lib. 4. Rec. [L. 7. tit. 29. lib. 11. Nov. Rec.]

Hence it is, that in order to be bound by an incompetent jurisdiction (prorogarse la jurisdiccion), two things are necessary. first, consent of the parties; the second, that the judge to whom submission is made, has antecedently lawful jurisdiction, Carleval, ibid. num. 979. and 1071.

The first requisite arises from tacit, or express consent, whence springs jurisdiction prorogada, tacit or express. Tacit jurisdiction prorogada takes place when those who contract or commit a crime subject themselves to a foreign or other (ageno) judge, who has cognisance of any of these proceedings in another jurisdiction, L. 32. tit. 2. P. 3. [L. 32. tit. 2. P. 3.;] or when one appears before a judge to whose jurisdiction he is not amenable, without pleading to it, L. 32. tit. 2. P. 3. [L. 32. tit. 2. P. 3.] Carleval, ibid. sect. 2. num. 892. to 1000.; but contumacy, as it is compulsory, or not voluntary, does not induce or infer submission (prorogacion), Carleval, ibid. num. 1000. et seq. Jurisdiction prorogada express is, when one submits to the jurisdiction of another judge, renouncing his own privilege or right; Carleval, 1. ibid. sect. 1. num. 976. and sect. 2. num. 1003. to 1019. where may be seen the cases in which this express consent is not valid; neither does this jurisdiction take place when the defendant files a cross bill by way of compensation, or set-off against the plaintiff before the same judge before whom he is sued or cited. The reason of this submission (prorogacion) is founded on this principle; that it [244] is proper that after the plaintiff hath desired to establish or obtain his right before a judge, the defendant should be allowed to do the like before the same judge, L. 20. tit. 4. P. 3. [L. 20. tit 4. P. 3.]

From the second requisite follows; 1st, That every superior judge may submit to the jurisdiction of an inferior ordinary judge, L. 7. tit. 9. P. 1. [L. 7. tit. 9. P. 1.] 2d, That so also may the judge of equal jurisdiction submit to that of his equal, Hevia, ibid. num. 23. 3d, That the jurisdiction of every ordinary judge appointed for one or three years, although the term be expired, is submitted to until his successor enters on the possession of the office, L. 5. tit. 5. lib. 2. Rec. [L. 2. tit. 11. lib. 5. Nov. Rec.] 4th, That all jurisdiction, although necessary or compulsory (forzosa), may be exercised in another territory with permission of the judge of that district, Hevia, ibid. num. 25.5 5th, That the prince, lord, or judge, being absent from their territory or jurisdiction, may appoint a person to preside or decide in their name; but having two or more separate seignories or jurisdictions, and being in one of them, they may take cognisance of causes

4 The definition of Salt llus. del Derecho R. de Esp. 2d vol. book 3. tit. 2. p. 149. n. 23, seems more clear, which is the submitting oneself to an incompetent jurisdiction; and he adds, that it is very rare, and of little use. Vide also ibid., p. 146. ante, no. 18.

5 Who adds the requisite of the consent of the parties interested. Vide also L. 7. tit. 4. P. 3.

from the other, provided that the party be not obliged to go from his domicile, L. 13. tit. 7. P. 3.6

Hence it also follows, that all jurisdiction, from its nature, may be submitted to, unless that its constitution or a statute forbid it on another account, Carleval, ibid. sect. 4. By the law of the realm. the following persons are prohibited from submitting themselves to an incompetent jurisdiction: 1st, Laymen to an ecclesiastical judge, Ll. 11. and 13. tit. 1. lib. 4. Rec. [L. 6. tit. 1. lib. 10. L. 8. tit. 1. lib. 4. Nov. Rec.] 2d, Persons under twenty-five years of age, without the authority of their curator, Carleval, ibid. n. 1130. 3d, Agriculturists (labradores), even in case of submitting themselves to the nearest royal corregidor, or to the head of the district, L. 25. cap. 4. tit. 21. lib. 4. Rec. [L. 15. tit. 31. lib. 11., L. 6. tit. 11. lib. 10. Nov. Rec.] 4th, Poor persons, Carleval, ibid. n. 1142. 5th, An attor ney without special authority, Carleval, ibid. n. 1143. Jurisdiction by its constitution cannot be submitted to: 1st, In suits pending in the audiences, which cannot be invoked to the council, Ll. 10. and 23. tit. 5. lib. 2. Rec. [L. 8. tit. 1. L. 23. tit. 1. lib. 5. Nov. Rec.] 2d, In cases of the value of thirty thousand maravedis, the cognisance of which belongs to the councils or corporations of cities or towns; Pragmatica of 28th June, 1619. 3dly, In causes of appeal: because no appeal can be preferred but to the immediate superior judge, Carleval, ibid. sect. 5. num. 1224.

[245] The effects of prorogacion are, 1st, That this jurisdiction passes to the successor in office, unless the submission hath been personal, Carleval, ibid. sect. 6. n. 1234. and 1235. 2d, That being made to the judge delegate, it is at an end with the delegation, Carleval, ibid. n. 1236. 3d, That the sentence given by the judge to whose jurisdiction submission hath been made, may be carried into execution by him; unless the assistance of another jurisdiction be necessary, as happens in respect of the ecclesiastical judge, who cannot execute his sentences without the assistance of the secular power, Ll. 14 and 15. tit. 1. lib. 4. Rec. [Ll. 4. and 12. tit. 1. lib. 2. Nov. Rec.] 4th. That when once the submission is admitted by the judge he cannot be compelled to the cognisance of the cause, Carleval, ibid. n. 1240. 5th, That the judge may delegate this jurisdiction which has been submitted to, Carleval, ibid. n. 1241.

Cap. 5. From the royal and ecclesiastical jurisdiction emanate other subordinate or inferior ones, known under the name of fueros privilegiados, such are the military jurisdiction, those of the universities, and of the inquisition, &c., but such as can in no way prejudice or affect the civil or royal, from whence they have derived their existence. For the conservation of this jurisdiction, reference is had to the following provisions, 1st, That no ecclesiastical jurisdiction can impede the royal under pain of losing its privileges (su naturaleza),

6 The law quoted does not apply. See L. 17. tit. 4. Part. 3. 7 That is, to the judge personally.

and its temporalities (temporalidades), Ll. 3 and 4. tit. 1. lib. 4. Rec. [L. 3. and 4. tit. 1. lib. 4. Nov. Rec.], jointly with L. 12. tit. 8. lib. 1. Rec.; which comprises the penalty of judges (conservadores) who intermeddle in profane or lay causes. 2d, That only in causes relating to benefices, tithes, and in crimnal and matrimonial causes can ecclesiastical judges cite laymen in the tribunal or jurisdiction (cabeza) of the bishops, L. 5. tit. 1. lib. 4. Rec. [L. 5. tit. 1. lib. 2. Nov. Rec.] 3d, That ecclesiastics, who possess temporal jurisdiction, must exercise it through laymen, L. 8. tit. 3. lib. 1. Rec. [L. 10. tit. 1. lib. 2. Nov. Rec.] 4th, That the corregidors and justices must make their report every year, if the ecclesiastical judges usurp the royal jurisdiction, L. 17. tit. 5. lib. 3. Rec. [L. 1. tit. 15. lib. 2. Nov. Rec.] 5th, That special commissions may not be given in prejudice of the ordinary jurisdiction, except when it shall seem fit to the council, L. 10. tit. 9. lib. 3. Rec. [L. 1. tit. 10. lib. 4. Nov. Rec.]

Cap. 6. These jurisdictions are given and appropriated by the king to magistrates who judge in his name. Therefore they are called judges, which implies good men who are appointed to order and to administer justice, L. 1. tit. 4. P. 3. [L. 1. tit. 4. P. 5.] Hence [246] it is, that every judge ought to be qualified, of good manners and habits, and endowed with the qualities expressed by L. 3. tit. 4. P. 3. [L. 3. tit. 4. P. 3.] This qualification or fitness consists in age, science, and capacity. In respect of age, no one under twenty-six years can hold a judicial appointment,10 L. 2. tit. 9. lib. 3. Rec. [L. 6. tit. 1. lib. 10. Nov. Rec.] As regards science, every judge must have studied ten full years, L. 2. tit. 9. lib. 3. Rec. [L. 6. tit. 1. lib. 11. Nov. Rec. 1, and must decide by the laws of the kingdom, L. 4. tit. 1. lib. 2. Rec. [L. 5. tit. 2. lib. 3. Nov. Rec.] Finally, in regard of capacity, neither the insane (loco), the dumb, the deaf, the blind, the habitually infirm, the religious, the female, nor the clergyman can be a judge, Ll. 7.12 and 8. tit. 9. lib. 3. and L. 10. tit. 3. lib. 1. Rec. [Ll. 4. and 5. tit. 1. lib. 11. and L. 5. tit. 9. lib. 1. Nov. Rec.]

As judge ought to be a good man (hombre bueno), it is inferred that no man of ill conduct can be judge nor alcalde, L. 7. tit. 9. lib. 3. Rec. [L. 4. tit. 1. lib. 11. Nov. Rec.] 2d, Nor he who receives presents for administering justice, L. 5. tit. 9. lib. 3. Rec. [L. 7. tit. 1. lib. 11. Nov. Rec.] 3d, That no one can be such in causes in which his

Not inserted in the Nov. Rec.

The law quoted seems to forbid it altogether. Vide L. 1. tit. 10. lib. 4. Nov. Rec. 10 And the penalty, in such person accepting it, is, by the law quoted, incapacity to hold the like or other offices in future. Palacios says, that the age stated in the text is, with reference only to a professional judge (letrado); and that L. 2. tit. 9. lib. 3 Rec. (L. 6. tit. 1. lib. 11. Nov. Rec.), does not alter L. 3. tit. 9. lib. 3 Rec. (L. 3. tit. 1. lib. 11. Nov. Rec.), which, in respect to the office of an ordinary or unprofessional judge (Juez ordinario), allows a person of twenty years of age to hold it.

This law relates to the incompetency of a slave to be judge. 12 The civil or canon law is understood, adds Palacios.

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