cares, committing to them the immediate government and protection. of my people.

ART. 2. The viceroy of New Spain must continue in the fulness of his superior authority and powers of all kinds which are granted to him by my royal title and instruction, and by the laws of Indies, in quality of governor and captain general in the district of that command; to which high employments is added that of president of the audience and chancery of the capital city of Mexico; but leaving the superintendence and regulation of my royal exchequer in all its branches and products to the care, direction, and management of the general intendancy of the army and exchequer, which is to be erected in said capital, and to which the others of the province will be subordinate, which I order, also, to be erected by this instruction.

ART. 3. The viceroy to give currency to the despatch aud authority of the intendant.

ART. 4. The superintendency which is thus to be exercised by the said intendant general of the army is understood to be delegated from the general one of my royal estate of the Indies, which is invested. in my secretary of state and universal affairs of said Indies; and for the just purpose of procuring to the said superintendent sub-delegate, some relief in his important duties, and to assist at the same time this establishment of intendencies by uniting the direction of all, for the purpose of making uniform its government, as far as is permitted by the difference of those towns and provinces, I ordain and order this superintendent sub-delegate, with the approbation of my viceroy to establish immediately in the capital of Mexico a superior junta of my royal exchequer, to which he must unite as president, the best being composed conformably to law 8. tit. 3. lib. 8. of the regent of that audience, the fiscal, &c.

ART. 15. The intendant general, and every one of those of province, must have a second, a lawyer, who may of himself exercise the jurisdiction in matters forensic, civil and criminal, in the capital and in his particular quarter, and who may be, at the same time, assessor in ordinary in all affairs of the intendancy, supplying the place of its chief in his absence, sickness, or visits to his provinces, or any other cause; it being understood that the assessor of the intendant general must be assessor, also, in every thing relating to the superintendence of my royal exchequer, which employs him, supplying the place there, also, in case of defalcation, sickness, or absence. And that the said vice intendant may possess all the requisites which his situation demands, they must be examined and approved by my consuls, chanceries, or audiences, and shall be named by me with the consultation of my chamber of Indies, &c.

Then follow various clauses relating to their duty in watching over the general police and good government, agriculture in all its branches, cotton, silk, cochineal, &c., public roads, temples, streets, &c.

ART. 75. Being already explained in general the obligations of the intendants corregidores of their provinces, and that of making their

subaltern officers fulfil theirs as respects the administration of justice, and political and economical government, upon which depends the augmentation and happiness of my subjects, they must preserve the following rules as regards the third class belonging to their cognisance, which is that of my royal exchequer.

ART. 76. The direction in chief of my royal rents which are established, or may be established, in the circuit of my said kingdom, and that of whatever dues may belong now and always to my royal fisc, in whatever manner, will be conducted in future under his exclusive inspection and cognisance, with all accompanying, dependent upon, or annexed to it, without distinction, whether the branches be administered for my own account, or be rented, or be in the name of others; and I ordain and declare, besides, that the forensic jurisdiction granted by law 2. tit. 3. lib. 8. to the royal officers for the collection of the effects and branches of my royal treasury, it is understood now united in, and transferred to, the intendants in their respective provinces, to the absolute exclusion of those ministers of the royal exchequer, who will remain with this title for the future, together and individually, with that of contadors and treasurers, although, always subject, as heretofore, to securities and a joint responsibility as far as this regards them, and subordinate to these, my new magistrates, looking to them as their chiefs and superiors. Nevertheless, these ministers will take in their charge the obligation which is now held by the royal officers to administer and collect what belongs to my royal fisc, in the branches which are now in their charge, exercising all the co-active economical powers which may effect the one and the other, with the difference that, in cases where it may be necessary to proceed judicially against the debtors to the fisc, they may proceed to prosecute and follow up the demand in my name, before their respective intendant or sub-delegate, so that, using the jurisdiction which is thus declared to them, they may despatch the orders in course, and conformable to justice.

ART. 77. In order to effect this, and that the orders and decrees of the intendants in respect to this branch, and that of war, may be carried into execution in all the districts of their provinces by persons duly authorised, they will nominate as well in the head cities of the governments, political and military which are suffered to remain, (except those of Yucatan and Vera Cruz,) as in the other cities and towns which are well populated, and especially where there may be a treasury of my royal exchequer, although this may be of an inferior class. Sub-delegates for the forensic part only of these two departments, in the understanding that, in the head cities and districts of the said governments, the said appointment must fall upon the governors themselves, as is ordered in the 8th article; and, also, that in the other places indicated, and their respective territories, in no event must the alcaldes be elected, and less the contadores or treasurers, or others, administrators of any branch of my fisc; but be confided to persons private and of the best repute and necessary standing, by

previous report of persons who can give it with due acquaintance, declaring, as I now declare, that the military, as far as their appointment of sub-delegate to their respective intendant, must be subordinate to him, and that the faculties of the said sub-delegates, and those of the others ordered by the 12th article to be established, as far as regards the aforesaid two branches, are only to extend to causes which they may set on foot themselves, or may be passed to them in summary by any lower officers of my custom-house, until they are brought to a point for sentence; for in this state they must be remitted to the intendant of the province for pronouncing, with the advice of his assessor, what may appear just.

ART. 78. As regards the exercise of the forensic jurisdiction in the processes and affairs of my exchequer, the intendants must take cognisance exclusively, and to the absolute separation of all other magistrates, tribunals, and audiences of that kingdom, with the sole exception of the superior junta of exchequer; and this will also actuate in all causes in which my treasury may have any interest or any injury, or which may belong to any branch, or any dues which may be in administration or rented, as well in respect to recoveries, as in all incidental matters, so that no intendant, not even the one of Mexico, as regards his district, will admit from any one recourse or appeal, unless it be to the said superior junta in cases, and with respect to things, which admit of it, in the same manner that from the decrees of this last none can be made but to my royal person, and by the private channel of the Indies; and it must be observed that the superintendant sub-delegate must not be present when there is a motion to appeal from a sentence which he has given as intendant of province in his direct charge, neither can the assessor of the superintendancy, if it has been pronounced by his advice, &c.

ART. 81. The intendants shall also be exclusive judges of the dependencies and causes which may occur in the district of their provinces, about sales, compositions, and divisions of lands, whether realengos, or of my dominion: the possessors, and those who pretend to new concessions of them, having to represent their rights, and reduce to form their demands before the intendants themselves, in order that these, when they are duly informed of these affairs by means of a promoter of my royal fisc, whom they shall appoint, they may determine upon them according to right, with the advice of the usual assessor, and admit appeals to the superior junta of exchequer, or render an account to this, if the interested do not wish to appeal with the original process, when they judge this in a state for despatching the title; in order that, when it is seen by the junta, it may be returned either that it may be despatched, if no objection is made, or that, before despatching it, the alterations may be made. which that junta may point out and advise; by which means, and without new impediments, the corresponding confirmations may be made, which will be drawn out by the superior junta itself, it proceeding in the matter, as also the intendants, his sub-delegates, and

the others, agreeably to what is ordained in the royal instruction of 15th October, 1754, in as far as it is not opposed to what is now decreed by this, without losing sight of the salutary dispositions of the laws which are therein cited, and that of 9. tit. 12. lib. 4.

ART. 83. They will likewise take cognisance in all cases of prizes, shipwrecks, vessels in distress, and vacant property, be this in whatever manner it may, as well for the examination thereof, as to put it in a way of recovery, and of applying them to my royal exchequer, the necessary steps being first adopted according to right, and giving me an account of all by the private channel of the Indies, in order that, by that way, an understanding may be had with the respective tribunals, and the decrees which may be advisable, may be communicated to the intendants themselves.

ART. 306, Gives to this instruction and ordinance the force of law; all other dispositions, establishments, customs, or practices, to the contrary are revoked; any interpretation, or amplification is prohibited, and it is ordered to be observed by all the tribunals and chiefs, secular and ecclesiastical, and by all and every one whom it concerns, avoiding all discussion or hindrance.

December 4, 1786.

TITLE VII.

CUSTOM OR UNWRITTEN LAW, FROM EL ABOGADO AMERICANO.

"Custom is unwritten law that has been introduced by use. In order to be such, and not vicious, (corruptola,) it is required that the usage be that of the people, or of the greater part of them, for the space of 10 years, and that it be in harmony with the general utility. Two uniform judgments or sentences are one of the proofs of custom. A legitimate custom has the force of law; derogates the former law that is contrary to it, and interprets the doubtful law; from whence it is said that there is a custom beyond the law, coutrary to the law, and according to the law."

Manual del Abogado, 1 vol. p. 3.

Partida, I. tit. 2, treats of usage and custom, and accords with the above.

Manual del Abogado, America, lib. 3, tit. 5, vol. 2, p. 16.

SEC. 1. Definition of judge.

SEC. 2. Who cannot be judge.

SEC. 3. What age is requisite in order to be judge.

SEC. 4. Concerning the assessor.

SEC. 5. The judge is ordinary or delegated. Ordinary is he who exercises jurisdiction in his own name by the proper right of his

office. Delegated is he who exercises jurisdiction by order of the supreme authority, or of the ordinary judge who commissions him for some particular case.

SEC. 6. Jurisdiction is the power of taking cognisance of, and deciding civil and criminal causes. With it goes united empire, (el imperio,) which is armed power; that is to say, the power of causing the decisions to be executed, and it is divided into absolute and mixed: absolute empire is the power of administering justice in causes in which the punishment may be inflicted of death, loss of member, or perpetual banishment: mixed is the power of taking cognisance of, and determining civil causes, and criminal causes, in which the sentence is less severe than those above mentioned.

SEC. 7. Jurisdiction is divided into ordinary, delegated, and prorogated. The ordinary, which is also called proper, is that which belongs to the magistrate by the proper right of his office. The delegated, which is also called mandada, (literally, commanded or sent,) is that which one exercises in the name of the ordinary judge, in the form and with the limitations that he grants for a certain and particular case. Lastly, the prorogated is that which, by the express or tacit consent of the parties, is extended to persons or causes, to which it was incompetent.

SEC. 8. It is an axiom that the delegate cannot sub-delegate; but the judge who is delegated by the supreme authority may do it as if he were the ordinary judge; and the judge delegated by the ordinary may also sub-delegate the causes, provided they have been litigated before the latter.

SEC. 9. There are some things which cannot be delegated except under certain limitations. In the first place, the absolute empire (el mero imperio) cannot be delegated, except on account of the just and necessary absence of the delegating judge, and then only until sentence, which must be given by him. In the second place, neither can be delegated the appointment of guardians or curators, nor causes in which the matter in controversy exceeds the value of three hundred maravedis of gold, except in the case mentioned, of absence, and that of a great pressure of business in the public service. Law 6, tit. 10, book 11, of the Novisima Recopilacion, permits the ordinary judge to appoint a substitute, if he be sick or absent, for any lawful cause; and if there be regidors in the town, what is observed is, that in such cases, the first regidor exercises the jurisdiction, and, in default of him, the second, &c.

SEC. 10. Delegated jurisdiction is ended: 1. By the revocation of the delegating judge. 2. By the death or loss of office of the delegating judge before the citation. 3. By the promotion of the delegated judge, if he equal or exceed in rank the judge by whom he was delegated. 4. By the lapse of a year without making use of the delegation. 5. By the death of the person delegated, unless it was not granted to him as an individual, but as holding some dignity or office; for, in this case, the successor will continue in the deleVol. I.-48