of not having sufficient proof, if there be sufficient proof to authorise its infliction on the accused, and he is a person to whom torture may be applied, this last means of proof (or rather mode of procuring proof) is resorted to, in order that he may not remain unpunished.

Torture is a species of proof, which those who were lovers of justice36 found out in order to investigate and know by it the truth of those evil acts which are done secretly and cannot be known or proved in any other manner, L. 1. tit. 30. P. 7.37 [L. 1. tit. 30. P. 7.]

Formerly in our Spain both the accused and the accuser [ 318 ] were tortured in order that the cause might be proceeded in with greater certainty, L. 2. tit. 1. lib. 6. Fuero Juzgo. The mode by which the accused purged themselves of a crime was remarkable, exposing themselves to chance, by which they overcame the torture of boiling water, red-hot iron, and others, on which the definitive sentence of the judge depended, L. 3. ibid.

With respect to torture, we establish three principles, 1st, That it is not applied to all kinds of persons.

2d, That it is made use of only to complete the discovery of truth. 3d, That it must be preceded by the most urgent or violent presumptions (indicios), in grave crimes.

From the first principle it follows, 1st, That persons under fourteen years of age, a knight (caballero), one of the degree of doctor, a counsellor, a mayor of a corporation (regidor de concejo), nor their children, nor those of good character, cannot be tortured, nor the woman who is pregnant, until she brings forth, L. 2. tit. 30. P. 7. [L. 2. tit. 30. P. 7.]

2d, Neither can all those in the right ascending or descending line to the fourth degree be tortured to give evidence against each other, nor collaterals to the same degree against their relations, L. 9. tit. 30. P. 7. [L. 9. tit. 30. P. 7.]

3d, Nor the wife against her husband, nor the father or mother-inlaw against their sons or daughters-in-law, nor step-fathers against the children of a former marriage, and vice versa, L. 9. tit. 30. P. 7. [L. 9. tit. 30. P. 7.]

From the second principle it arises, 1st, That in torture the judge,

36 What a libel on the term Justice!

37 The insertion of this chapter in the translation may seem unnecessary in regard to any desired information connected with Trinidad; but as it forms part of the work, it has been thought fit to give it due place here. The infliction of torture, in the case of Louisa Calderon, reported in Howell's State Trials, vol. xxx. p. 225. produced it is believed, instructions from the British government to the governors of that island, to prevent recourse to any punishment not permitted by the laws of England; and British professional judges have, for some years past, presided in the courts of the island.

Humanity has deeply to mourn the discovery and adoption of this probatory species of detestable ingenuity.

By late Orders in Council, of 16th September, 1822, given in Append. F and Q, beneficial alterations have been made in the judicial establishments of the colony, and in the course of juridical procedure.

38 This would seem to have established impunity for crime, for doubtless there could have been none or very few accusers found. Palacios says, the accused only was tortured, as stated by the law quoted.

VOL. I.-45

escribano, and executioner must be present, the judge putting ques tions generally, as directed by L. 3. tit. 30. P. 7. [L. 3. tit. 30. P. 7.]

2d, That there being two or more persons to be tortured, they begin with the weakest, or if not with the one against whom there is the most vehement presumption, L. 5. tit. 30. P. 7. [L. 5. tit. 30. P. 7.]

3d, That the judge protests that if the person does not speak the truth, and dies from the torture, the charge is not with him; but if he inflicts the torture unjustly, he ought to suffer the same punishment as he orders to be inflicted, comparison being had (graduandose) to the persons of the judge and him tortured, L. 4. tit. 30. P. 7. [L. 4. tit. 30. P. 7.]

4th, That a confession received under torture, is not valid, unless it be afterwards ratified in another place, L. 4. tit. 30. P. 7. [L. 4. tit. 30. P. 7.1

5th, That if on this last confession he shall deny, he may not be again tortured, except it be the crime of high treason, theft, or robbery; but in these cases, the accused being tortured three times, if [319] afterwards he shall deny the charge, the torture shall not be repeated, L. 4. tit. 30. P. 7. [L. 4. tit. 30. P. 7.]

6th, That the (ordinary) tortures must be made use of, and not new extraordinary kinds, L. 1. tit. 30. P. 7. [L. 1. tit. 30. P. 7.]

7th, That the witness who is perceived varying in his answers, may be tortured in the same manner as the accused, L. 8. tit. 30. P. 7. [L. 8. tit. 30. P. 7.]

8th, That there being full proof of the crime, the accused cannot be tortured under pain of the judge paying the damages and interests (intereses), Cur. Filip. P. 3 § 16. n. 2.

From the third principle, it is inferred, 1st, That the accused cannot be tortured without previous sufficient presumptions, L. 2. tit. 30. P. 7. [L. 2. tit. 30. P. 7.,] which depend on the prudence and discretion of the judge.

2d, That if the accused shall deny the charge under torture, he may be tortured again, there supervening most urgent or vehement presumptions, Cur. Filip. P. 3. § 16. n. 16.

3d, That the torture is only applied from presumptions of crime which deserves corporal punishment, and not pecuniary, L. 26. tit. 1. P. 7.39

40

Cap. 7. When once the innocence or guilt of the delinquent is established, they proceed to sentence, from which not only the accused may appeal, but any one in his name,11, so that within the term of appeal he be authorised to do so, or his act be ratified; for which circumstance it is not necessary that the appellant be related to the delinquent, L. 6. tit. 23. P. 3. [L. 6. tit. 23. P. 3.] In the mean

39 This law does not apply. See Cur. Filip., p. 3. § 16. n. 3.

40 See Order in Council, 16th Sept. 1822. Appendix F.

41 Any one, says Palacios, referring to L. 6. tit. 23. P. 3., may appeal; but this is understood in respect to a capital casc.

time he must not be released from prison, but he must be handed over secured to the judge of appeal, L. 16. tit. 18. lib. 4. Rec. [L. 19. tit. 20. lib. 11. Nov. Rec.]

But no appeal is admitted from noted (fumosos) crimes which are fully proved, nor from an unnatural crime (pecado nefando,42) L. 16. tit. 13. P. 3. and L. 1. tit. 21. lib. 8. Rec. [L. 16. tit. 23. P. 3. L. 1. tit. 30. lib. 12. Nov. Recop.]

If the sentence is that of death, it is executed (being preceded by the administration of the sacrament to the delinquent, L. 9. tit. 1. lib. 1. Rec. [L. 11. tit. 1. lib. 1. Nov. Rec.,]) publicly for a warning to all others, L. 11. tit. 31. P. 7. [L. 11. tit. 31. P. 7.]

44

If the delinquent, through contumacy or absence, cannot be had or taken, and the crime were of the class which requires the sequestration of property, the sequestration ought to be made without proclamation (pregon), and the delinquent cited for three periods of nine days, whether he be or not in the jurisdiction;43 and if at the first period (plazo) he should not appear, he shall pay the contempt (despres); appearing at the second period, he shall pay the contempt and costs, and may be heard: but if at the second he does not appear, and he be accused of a second contumacy (rebeldia), in the crime of death or murder, he shall be condemned in the fine for killing (homecillo); if at the third period he should come, he shall pay [320] the contempt, the fine of killing, and the costs, and may be heard: but if this last term be passed, and he does not appear, the accusation shall be laid against him in form, as though he were present, he being ordered to answer within three days: and not coming, and being accused of this contumacy, the pleadings (pleyto) are had as concluded. The cause is received for proof in the regular terms of a civil suit, until conclusion for definitive sentence, he being declared guilty of the crime, and being condemned to the punishment which he may merit, there being proof sufficient to put him to the torture. The accused having appeared to offer himself at the prison, or being arrested before the definitive sentence, if he pays the penalties of contumacy, he ought to be heard anew, all the process remaining in force; and even if he present himself within the year after the definitive sentence, he may be heard with regard to the pecuniary penalties, which cannot be executed or levied within it. If within this year the accused should die, his heirs shall be heard with respect to the pecuniary penalties in the cases in which the crime is not extinguished or expiated by death, wherefore L. 7. tit. S. P. 3. is

46

42 For information in respect to appeals, &c., in criminal cases, Palacios refers to Gutierrez, Prac. Crim. tom. 1. cap. 10. § § 1, 2, and 3.

43 On this subject, Palacios refers to Ll 7. tit. 6. lib. 2.; and 3. tit. 10. lib. 4. Rec. (Ll. 2 and 1. tit. 37. lib. 12, Nov. Rec.)

44 Which, says Palacios, referring to Azevedo on L. 3. tit. 10. lib. 4. Rcc., means as much as sixty maravedises.

45 600 maravedises, says Palacios.

46 And in respect also to the corporal punishment, adds Palacios.

altered. The sequestration being made against the property of the absent delinquent, if within thirty days he does not appear, the judge shall be obliged to sell it at public auction, if perishable (deteriorable), and place the amount in sequestration, L. 3. tit. 10. lib. 4. Rec. [L. 1. tit. 37. lib. 12. Nov. Rec.]

In order to declare the accused contumacious, after the sentence and conclusion, it is necessary that there be lawful proof; that three months be expired, and that the plaintiff accuse him of contumacy, L. 1. tit. 10. lib. 4. Rec. [L. 4. tit. 37. lib. 12. Nov. Rec.]

BOOK IV.

TITLE I.

OF THE MODE OF ACQUIRING DOMINION, FROM ALVAREZ'S

INSTITUTES.

Translation from the Instituciones de Derecho Real de España, por el Doctor Don Jose Maria Alvarez, Catedratico de Instituciones de Justiniano en la Real y Pontificia Universidad de Goatemala. Madrid, 1829. vol. 1. p. 142.

OF THE MODE OF ACQUIRING DOMINION.

AS DOMINION is the first species of right in the thing, before considering it, and the mode of acquiring it, it is necessary to explain: 1, what is right in the thing, and to the thing, and how many species there are of each: 2, what is dominion, and how it is divided: 3, what is meant by mode of acquiring dominion: 4, what are the modes of acquiring it, and how they are divided.

§ 1. What is Right in and to the Thing.

The former is a power (facultad) that belongs to a man in a certain and determinate thing without reference to any person. Arg. of Law 13. tit. 11. Part. 3. The latter, on the contrary, is the power that a person has against another to oblige him to give, or make for him any thing. Arg. of L. 33. tit. 5. Part. 5.

The difference between the two rights are clear: 1. When I have a right in the thing, it is the thing that is bound to me; and when I have a right to the thing, the person.

2. By the right in the thing I ask for that which is already mine, and by the right to the thing I ask that there be given or made for me the thing that another person is obliged to give to or make for me. 3. From the right in the thing arise real actions against any possessor; and from the right to the thing only personal actions against the determinate person with whom I contracted. By putting the cases of a thing in which one has dominion, being lost or stolen, and another thing bought and not delivered, the distinction between the two rights will be plainly perceived.

Of right to the thing there is but one species, and that is obligation; but of right in the thing there are various. Four are generally enumerated: dominion, inheritance, servitude, and pledge.