TITLE XIX.

OF CRIMES AND PUNISHMENTS IN GENERAL.

CAP. 1. HAVING treated of the right to the thing, and of [ 218 ] the different obligations arising from a lawful act, we will now treat of that which produces an unlawful act, which is called crime.

§ 1. Crime (delito) is every bad act which is done or committed wilfully by one to the injury (daño) or discredit (deshonra) of another, Prol. Part. 7. [Prol. P. 7.] If this bad act is done with an injurious or malicious (doñada) intention, that is with dolo, it [219] is a real or proper crime (delito verdadero), which our laws comprehend under the general name of offence (malfetria); but if this act proceeds only from an omission, although culpable, it is called quasi crime. Hence it is, that only the person who is of sufficient age to act with this malice, can be a delinquent, and punished as such: this age our legislators have determined to be ten years and a half, and upwards (de diez años y media arriba),2 L. 9. tit. 1. P. 7. [L. 9. tit. 1. P. 7.]

The madman, or person of non-sane mind, is also not capable of committing a crime, L. 9. tit. 1. P. 7. [L. 9. tit. 1. P. 7.]

Cap. 2. The difference between public and private crimes does not arise among us merely from the diversity of persons against whom they are committed, but principally from the circumstance whether the judge may proceed against the delinquent de oficio proprio, or by accusation alone; and, in this sense, are reckoned among the first kind, robbery (robo) and theft (hurto). The division of crimes into

1 Delito, says Palacios, is transgression or contravention of law, which deserves punishment by human laws.

2 Palacios observes, and he is supported by L. 9. tit. 1. P. 7., that even from or after that age, they are not to be punished as persons of greater age. Seventeen years seems the age at which full punishment for an offence may be inflicted. See also L. 10. tit. 7., L. 17. tit. 14., and L. 8. tit. 31. P. 7., and Ll. 2. and 3. tit. 14. lib. 12. Nov. Rec. It is said that a person under 14, cannot be punished for perjury, although it would seem that such an one might, if doli capaz. See L. 7. tit. 11. P. 3., and Greg. Lop. Gl. 3. thereon. It may be here observed, that by the laws of England, an infant within the age of seven years cannot be punished for any capital offence, whatever circumstances of a mischievous discretion may appear; for, ex presumptione juris, such an infant cannot have discretion, and against this presumption no averment shall be admitted; yet it appears there is a precedent in the Register, fol. 309. b of a pardon granted to an infant within the age of seven years, who was indicted for homicide, the jury having found that he did the fact before he was seven years old. Russell on Crimes, 1st vol. p. 3. and note (m). See also 4th Blac. Com. p. 23.

Palacios says, public crime is that which is committed principally against the commonwealth, and of which, under this consideration, our laws permit any one of the public to be the accuser. Every crime, therefore, which is committed in offence of God, of the sovereign, state, or the country (patria), will be a public one. A private crime is that

ordinary and extraordinary does not take place (no es el caso) among us; because our laws have been so prolix in establishing certain punishments for every kind of crime, that it is only left to the discretion of the judge to moderate or increase them when their circumstances vary.

§ 1. Among public crimes, that of læsæ majestatis, or treason, as being the most atrocious, holds the first place. Numerous are the modes whereby crime is committed against the supreme majesty of the sovereign, and which, with reason, draw down upon the offenders the disgraceful name of traitors. The crime of treason is that which is committed against the person of the king, or against the commonwealth, L. 3. tit. 2. P. 7. [L. 3. tit. 2. P. 7.] As this crime proceeds from the little veneration or respect that is shown to the sovereign, he who in deed or act is wanting in this, becomes a delinquent. Therefore, not only is the person guilty of treason who offends against the king (majestad) by any of the fourteen acts expressed by L, 1. tit. 2. P. 7., [L. 1. tit. 2. P. 7.] but also he who shall speak ill of the king, his family and state, L. 6. tit. 2. P. 7. and L. 1. tit. 18. lib. 1. Rec. 5 [L. 6. tit. 2. P. 7. and L. 7. tit. 8. lib. 1. Nov. Rec.;] for which [220] case the decree of 18th September, 1766, ought to be kept in mind, which prohibits all murmuring and invective (declamacion) against the government. So heinous is this crime, that it is not included among the pardons (perdones) which the king grants, L. 1. tit. 25. lib. 8. Rec. [L. 1. tit. 42. lib. 12. Nov. Rec.]

In this class of crimes may be included that committed by defrauders of the royal rents, L. 1. tit. 8. lib. 9. Rec. [L. 7. tit. 15. lib. 12. Nov. Rec.,] and smugglers (contrabandistas) defrauding the rights of the royal revenue (real hacienda), and against whom various decrees have been promulgated. See that of 19th November, 17486

2. In the second place, forging is a crime against the public, of which utterers of false money (monederos falsos) who clip or counterfeit the current coin, are guilty, L. 9. tit. 7. P. 7. [L. 9. tit. 7. P. 7.] 2d, The counterfeiters of royal seals, L. 4. tit. 7. P. 7. [L. 4. tit. 7. P. 7.] 3d, The escribanos who are wanting in any thing which regards the public faith, to which they are bound by their office, Ll. 1. and

which is committed principally (perhaps directly would be a more appropriate term than principally, although principalmente is in both instances made use of) against any private individuals, and of which the party interested or injured, only is permitted to be the accuser. See also Wood's Cir. Law, book 3. ch. 7. p. 250., who makes this distinction between public and private offences. When the offence is of a public nature, it is properly called a crime; when it is private, it may be more properly called delictum or maleficium, a trespass or an offence. The learned Professor first mentioned further observes, that whatever is not conformable to the above definition and principles, in the classification and list which the text gives in this title of public and private crimes, ought to be dismissed from the understanding,

4 Palacios is, however, of a different opinion.

5 This law is not inserted in the Nov. Rec.

6 Palacios says, that since that year forty royal orders have been issued with respect to smuggling. He refers to the royal cedula of 8th June, 1805, and the instruction inserted in it, which is that which governed in 1806.

6. tit. 7. P. 7. [Ll. 1. and 6. tit. 7. P. 7.] 4th, The prevaricating advocate who cites false laws (leyes falsas) in the suits which he carries on, L. 1. tit. 7. P. 7. [L. 1. tit. 7. P. 7.] 5th, The keeper of the archives of the council, or public archives, who shows the archives contrary to his orders, L. 1. tit. 7. P. 7. [L. 1. tit. 7. P. 7.] 6th, The judge who decides contrary to law, L. 27 tit. 7. P. 7. 7th, The perjured person who swears falsely, L. 1. tit. 7. P. 7. 8th, He who suborns the judge or witness, L. 1. tit. 7. P. 7. 9th, He who pretends to be a knight (caballero) or priest, without being so, L. 2. tit. 7. P. 7. [L. 2. tit. 7. P. 7.] 10th, Those who make use of false measures or weights in trade, L. 7. tit. 7. P. 7. 11th, Public surveyors who knowingly or wilfully (á sabiendas) measure falsely, L. 8. tit. 7. P. 7. [L. 8. tit. 7. P. 7.]

To

§ 3. In the third place, those are public crimes which cause scandal (escandalo) against which the judge may proceed de oficio, according to L. 4. tit. 19. lib. 8. Rec. and L. 5. tit. 19. lib. 8 Rec. [L. 1. tit. 26. lib. 12. Nov. Rec.] In this class are comprehended, 1st, Those who live in concubinage (amancebados), Ll. 1, 2, 3 and 4.9 tit. 19. lib. 8. Rec. [Ll. 3, 4 and 5. tit. 26. lib. 12. Nov. Rec.] 2d, Heretics whom the Prol. of tit. 26. P. 7. [Prol. tit. 26. P. 7.] defines in this way: a description of mad people who labor to pervert (de escatimar) the words of our Lord Jesus Christ, and give them another meaning contrary to that which the holy fathers gave, and which the church of Rome believes and orders to be observed. this class belong the Jews and Moors, whom we are bound to discover or make known (descubrir), if we know they are among us without the royal permission, according to L. 9. tit. 25. P. 7.;10 [L. 9. tit. 25. P. 7.;] and, therefore, all the other laws of the 24. and 25. tit. P. 7., which treat of the mode in which they should live in Spain, are obsolete. 3d, Sodomites who commit an abominable sin, having connection with one another contrary to nature or [221] natural custom, Prol. tit. 21. P. 7. [Prol. tit. 21. P. 7.] 4th, Pimps, or panders, who entrap women, inducing them by cunning arts, or procuring them to prostitute their bodies, L. 1. tit. 22. P. 7., [L. 1. tit. 22. P. 7.] which specifies five kinds of pimping. 5th, Persons practising witchcraft (hechiceros), augurers (agoreros), soothsayers (adivinos), and other buffoons (truanes), who, with their impositions, lead the people into a thousand errors, pretending to possess the power of God in knowing things which are to happen, L. 1. tit. 23. P. 7. [L. 1. tit. 23. P. 7. tit. 28. P. 7.] 6th, Blasphemers against

7 L. 1. tit. 7. P. 7. is meant.

8 This law is not inserted in the Nov. Rec. The quotations in the text appear to be erroneous. Ll. 4. and 5. tit. 13. lib. 8. Rec. are the laws cited in the edition of the text by Palacios.

9 Not inserted in the Nov. Rec.

10 This law applies to ambassadors from the Moors coming or being sent to reside in Spain, and does not touch upon the matter here set forth in the text. The 25th title of the 7th Partida contains enactments relative to Moors; and those of the 24th title of the same Partida refer to Jews,

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God, the most holy Mary, and her saints, tit. 28. P. 7. By blasphemy is understood all that is said in contempt, and with the intention of being revenged by word," Prol. tit. 28. P. 7. [Prol. tit. 28. P. 7.] 7th, Bigamists, or those who are married at one time to two women, L. S. tit. 20. lib. S. Rec.2 [L. 9. tit. 28. lib. 12. Nov. Rec.] 8th, Sacrilegious persons, who are of two sorts, 1st, Those who raise their angry hands against the clergy, or religious persons. 2d, Those who steal or rob any sacred thing in a church, or out of it, Ll. 1. and 2. tit. 18. P. 1. [Ll. 1. and 2. tit. 18. P. 1.1 9th, Persons guilty of simony, who purchase or sell a spiritual thing, L. 1. tit. 17. P. 1. [L. 1. tit. 17. P. 5.] 10th, Persons guilty of incest, tit. 28.3 P. 7. 11th, Ravishers of a religious woman, a widow, virgin or married young woman; against whom an accusation may be preferred by any of the people, if the relations of such women should not do it, L. 2.14 tit. 20. P. 7. [L. 2. tit. 20. P. 7.]

§ 4. In the fourth place, those commit a public crime who make use of force and violence to take any thing, real or personal, the kinds of which are expressed in tit. 10. P. 7. [tit. 10. P. 7.] By the laws of this title, it appears those are guilty of using force (forzadores), 1st, Who with arms, and in a mutinous manner (amotinadamente), possess themselves of any thing, L. 2. tit. 10. P. 7. [L. 2. tit. 10. P. 7.] 2d, Those who rob at the time of any fire, or prevent its being extinguished, L. 3. tit. 10. P. 7. [L. 3. tit. 10. P. 7.] 3d, Judges who do not admit an appeal from their sentence, L. 4. tit. 10. P. 7. [L. 4. tit. 10. P. 7.] 4th, Royal tax gatherers or collectors of rents or revenue (recaudadores), who collect more than the king orders, L. 5. tit. 10. P. 7. [L. 5. tit. 10. P. 7.] 5th, Powerful or wealthy persons (poderosos), who, through the dread of their power impede the due or right administration of justice, L. 6. tit. 10. P. 7. [L. 6. tit. 10. P. 7.] 6th, Persons guilty of arson (incendiarios), L. 9. tit. 10. P. 7. [L. 9. tit. 10. P. 7.] 7th, Those who enter on the possession of the inheritance of another, without the order of the judge, L. 10. tit. 10. P. 7. [L. 10. tit. 10. P. 7.] 8th, Those who refuse to give up the thing which they hold under rent, deposit, &c., L. 12. tit. 10. P. 7. [L. 12. tit. 10. P. 7.] 9th, He who pledged (empeño) his property, if he takes it away from his creditor by force before he has paid the debt,15 L. 13. tit. 10. [222] P. 7. [L. 10. tit. 13. P. 7.] 10th, Those who without the authority of the judge, arrest their debtors or take any thing from them, Ll. 14. and 15. tit. 10. P. 7. [Ll. 14. and 15. tit. 10. P. 7.]

16

Another and more appropriate definition of blasphemy is given by Palacios, who says it is a bad word, or injurious expression against God or his saints.

12 See also Ll. 6. 7. and 8. tit. 28. lib. 12. Nov. Rec.

13 A typographical error: read tit. 18. P. 7.

14 See also L. 1. ibid.

15 This applies strictly to pledge or pawn, where possession of the property pledged has been delivered by the debtor to the creditor. See L. 13. tit. 10. P. 7. cited; and Greg. Lop. Gl. 1. thereon.

is In satisfaction or security of their debt.

11th, Those who break prison, and their aiders," L. 13. tit. 29. P. 7. [L. 13. tit. 29. P. 7.] 12th, The violators or seducers (desfloradores) of virgins, and the ravishers of women, upon which the laws of the 19th Title, Part. 7. [Tit. 19. P. 7.] treat.

§ 5. Among crimes committed by force, we must also reckon homicide, challenges (desafios), adulteries, and injuries from which bloodshedding follows, 18 L. 4. tit. 10. lib. 8. Rec. [L. 3. tit. 25. lib. 12. Nov. Rec.]

Homicide is, the killing of man (matamiento de home), L. 1. tit. 8. P. 7. [L. 1. tit. 8. P. 7.] It is casual or excusable (causal), wilful or felonious (determinado), and justifiable (justo). The casual is that which happens without any previous (prevenida) intention, and ought not to be punished, Ll. 4. and 5. tit. 8. P. 7. [Ll. 4. and 5. tit. 8. P. 7.] The wilful is that which is committed intentionally: of this kind of homicide not only is the person guilty who intentionally goes to kill or kills another, but also the person who furnishes or concerts (pone) the means by which he dies. Thus, therefore, are to be punished as guilty of homicide, 1st, Physicians, surgeons, &c., who, ignorant of their arts or professions, cause death by attempting to practise them,19 L. 6. tit. 8. P. 7. [L. 6. tit. 8. P. 7.] 2d, Mothers who take any thing to destroy their young (el feto),20 L. 8. tit. 8. P. 7. [L. 8. tit. 8. P. 7.] 3d, The apothecary or spice dealer, who sells noxious herbs, knowing they serve to cause death to any one, L. 7. tit. 8. P. 7. [L. 7. tit. 8. P. 7.] 4th, Those who chastise cruelly their child, scholar, or servants, L. 9. tit. 8. P. 7. [L. 9. tit. 8. P. 7.] 5th, He who lends arms or assistance to kill another,22 L. 10. tit. S. P. 7. [L. 10. tit. 8. P. 7.] 6th, The judge who maliciously gives sentence of death against any one,23 L. 11. tit. 8. P. 7. [L. 11. tit. 8. P. 7.] 7th,

17 L. 13. tit. 29. P. 7., cited in the text does not particularly add their aiders. 18 These crimes considered in themselves, and without other circumstances, ought not to be reckoned, says Palacios, among crimes of or accompanied by force; nor do the laws reckon them such: and he refers to tit. 10. P. 7., where crimes of force are treated of.

19 Palacios says, it is one thing to kill through ignorance, and another through malice. That, in the first case, such persons are punishable with five years' transportation to some island, according to L. 6. tit. 8. P. 7. cited in the text, though, as he observes, Greg. Lopez. Gl. 3. L. 9. tit. 15. P. 7. hath said, that this punishment of banishment to an island was not in use even in his time; but, in the second case, they are punishable with death.

20 If the woman, in such case, hath quickened, she is punishable with death: if she hath not quickened, she is punishable with five years' transportation to an island. See L. 8. tit. 8. P. 7. cited. Palacios here observes, that it is necessary in the case mentioned in the text, death should have been the effect thereof.

21 Or slave, the law cited adds. If death be the result, and it was unintentional, the punishment is five years' transportation to an island; and if the chastisement was with the intention to kill, the punishment is death. This is noticed by Palacios, and is stated in L. 9. tit. 8. P. 7. cited in the text.

22 As also one who should wilfully lend or give arms to a madman, drunkard, person in a violent rage, &c. to kill himself, if death should in either case ensue.

23 Whether it be of natural or civil death (banishment), or of loss of limb, according to L. 11. tit. 8. P. 7. cited. It may be useful to notice a most material difference in the wording of this law in the edition of the Partidas, with the Gl. of Greg. Lop. published at Valencia by Benito Montfort, in 1767, and the edition of the Partidas published in Madrid, 1807, by the Royal Academy of History. In the first the law runs thus:"Pena de omicida meresce el judgador, que á sabiendas da falsa sentencia," &c. In the second, the words á sabiendas are entirely omitted.