gallies, L. 6. tit. 24. lib. 4. Rec.78 [L. 7. tit. 38. lib. 12. Nov. Rec.] 3d, That the punishment can be imposed only by the competent judge or the judge who has jurisdiction, L. 5. tit. 31. P. 7. [L. 5. tit. 31. P. 7.;] such amongst us for a capital punishment, being the king, his counsellors, audiencias, and inferior judges, provided that in the excepted crimes in which there is no appeal, the latter advise with their superiors upon the sentence, vide Matheu de re criminali contr. 3. 4th, That no person ought to be punished for the meditation or contemplation only of crime unless it be of treason [230] or of notorious heinousness (gravedad notoria),79 L. 2. tit. 31. P. 7. [L. 2. tit. 31. P. 7.] 5th, That the relations and heirs of the offender ought not to partake of the punishment except in crimes of high treason (de læsa majestad,) for which the infamy or disgrace passes to the children,80 L. 9. tit. 31. P. 7. [L. 9. tit. 31. P. 7.] 6th, That the punishment being once decreed, cannot be changed, L. 9. tit. 31. P. 7. [L. 9. tit. 31. P. 7.] 7th, That the punishment of death must be executed publicly, L. 11. tit. 31. P. 7. [L. 11. tit. 31. P. 7.] 8th, That every punishment must be promptly carried into effect, unless it be that of death which is awarded to a pregnant woman, for then her delivery must be waited for, L. 9.81 tit. 31. P. 7.

§ 2. There is another class of pecuniary punishments which are applied to the Fisc, and are called penas de cámara, which are not carried into effect, until the sentence passes into a thing adjudged (cosa juzgada), L. 1. tit. 26. lib. 8. Rec. [L. 1. tit. 41. lib. 12. Nov. Rec.] For the due accounting, &c. (para la buen cuenta y razon,) of these penalties, their recovery and application,82 a receiver general has been appointed who must conform to L. 8. tit. 6. lib. 2.; Ll. 20 and 21. tit. 1. L. 66. tit. 4. Ll. 11. and 35.83 tit. 5. L. 19. tit. 7. L. 21. tit.

78 This law does not apply. Palacios says, L. 6. tit. 24. lib. 4. is erroneously cited in the text for L. 6. tit. 24. lib. 8., which is L. 3. tit. 40. lib. 12. Nov. Rec., and does apply. He refers to his last note in the following title.

79 Such as treason, homicide, and rape; when, by L. 2. tit. 31. P. 7., cited, if the person meditating the offence proceed, or begin to take steps towards effecting it, he is punishable as though he had completed the crime. But see Greg. Lop. Gl. 4. on this law. Palacios refers to L. 2. tit. 23. lib. 8. Rec., which is L. 3. tit. 21. lib. 12. Nov. Rec. See 3d vol. Gutierrez, Prac. Crim. p. 65. 66. &c. c. 4. n. 15. et seq. Also, 1st vol. Villan. p. 344. n. 20., and 3d vol. Villan. p. 41. n. 12.

80 Palacios says, this is understood of males grown up to manhood (varones), and that Azevedo, on L. 2. tit. 18. lib. 2 Rec., even with respect to them, limits the infamy to cases only of treason against the person of the king (læsæ majestatis), or against the commonwealth; that it is certain that such laws, which, from a particular motive, are extended to punish the innocent, ought to be interpreted or construed with all possible favor for their benefit.

81 This law is erroneously cited for L. 11. ibid.

82 For the collection or recovery of these penalties, their management, and distribution, says Palacios, there is an instruction of the 27th December, 1748, consisting of twentythree chapters or articles. That by the royal order of the 12th April, 1779, the 20th chapter thereof is directed to be punctually observed; and by the 19th chapter of the instruction to corregidors, of 1788, they are ordered to comply with what is prescribed by the referred to instruction. Lastly, that another instruction of the 16th July, 1803, has been published for the government, administration, and behefit of the produce, or results of penalties, de Cámara, as an addition to that of 1748, cited.

L. 35. tit. 5. lib. 3. Rec, is not inserted in the Nov. Rec.

9. lib. 3. and L. 18. tit. 26. lib. 8. Rec., [L. 10. tit. 41. lib. 12. Ll. 21. and 22. tit. 2. lib. 5., L. 11. tit. 41. lib. 12., L. 16. tit. 11. lib. 7., L. 7. tit. 41. lib. 12., L. 5. tit. 33. lib. 12., L. 7. tit. 21. lib. 12. Nov. Rec.] and others of the same collection.

84

§ 3. Punishment may cease by means of the pardon of the prince whose province it is to grant it, and not that of the magistrate, Ll. 1. 2 and 3. tit. 32. P. 7. [LI. 1. 2. and 3. tit. 32. P. 7.] The pardon or remission of the punishment does not take away the right which the persons may have to whom the property hath been given up,85 L. 3. tit. 25. lib. 8. Rec. [L. 3. tit. 42. lib. 12. Nov. Rec.] In order to the validity of the pardon, it must be signed and sealed by the king and two of the council,86 and only comprehends the crime which it expresses; so that a general pardon does not extend to any particular or special thing or case, Ll. 2. and 4. tit. 25. lib. 1. Rec. [Ll. 2 and 5. tit. 42. lib. 12. Nov. Rec.] The act (carta) of pardon is not valid if a sentence hath been passed for any crime, and it makes no mention of it, L. 2. tit. 25. lib. 8. Rec. [L. 2 tit. 42. lib. 12. Nov. Rec.] Pardons are regularly granted on Good Friday, and not more than twenty can be granted in each year, L. 2. tit. 15. lib. 8. Rec. [L. 2. tit. 42. lib. 12. Nov. Rec.]

The council, chanceries, and audiencias, says Palacios, grant also pardons in their visits to the prisons, in the name of the sovereign; but their powers with respect to these visits, and pardons are reduced to discharging (dar libertad), or enlarging on bail (ampliar la carceleria), persons imprisoned by the royal ordinary jurisdiction, except it be for s crimes which his majesty is wont to except in acts of general pardons: he refers to Guti errez Prac. Crim. tom. 1. c. 11. Sce ibid. n. 17 and 18. p. 338.

85 That is, the pardon does not affect the rights of third persons.

86 See Gutierrez, 1st. vol. c. 4. p. 329, et seq., respecting matters connected with this subject. See also Proviso in Cl. 17. Order in Council, Appendix F.

TITLE XX.

OF THE PROPORTION WHICH THE LAWS OF SPAIN ESTABLISH BETWEEN CRIMES AND PUNISHMENTS.

[231] IN proportion to the heinousness (gravedad), the malice, and the circumstances of the crimes, our laws have imposed corresponding punishments, a statement of which is communicated in this title, forming a catalogue thereof in alphabetical order; but it is proper to observe, that practice has altered the punishments in many of them.

Advocates who do not practise or pursue their profession according to law, or are guilty of falsehood and malice, pay all the damages and prejudices they may cause to the parties, besides double the amount. L. 6. tit. 16. lib. 2. Rec. [L. 9. tit. 22. lib. 5. Nov. Rec.]

Adultery, the woman who commits it ought to be whipped publicly (azotada), and shut up in a monastery with the loss of her dote and arras; and the adultery being followed with flight from her husband's house, she also loses her ganancial property, L. 5. tit. 20. lib.

1 The advocate, says Palacios, who shall agree with his client to receive part of the thing in dispute, or sued for, ought to be deprived of office, as infamous, L. 14. tit. 6. P. 3., that he who shall make any discovery to the adverse party, and in prejudice of his own, and he who shall knowingly allege or cite false laws, ought to be banished for life to some island, and forfeit all his property in favor of his relations; and if he should not have any within the third degree, in favor of the king, Ll. 1 and 6. tit. 7. P. 7. That by the law of the Recopilacion, and according to the one which the text cites, the advocate, who, by his malice, fault, negligence, or unskilfulness, shall occasion damage to his clients, is bound to make it good to them, and to pay double the amount besides; although this penalty of paying double the amount is not in practice. That the advocate who shall recapitulate what is already written in the process, ought to pay 600 maravedis, L. 4. tit. 16. lib. 2. Rec.: or L. 1. tit. 14. lib. 11., Nov. Rec. That in practice, they are also admonished and fined, &c., according to their excesses and defects.

2 By L. 15. tit. 17. P. 7., says Palacios, the adulterer was punished with death, and the adulteress with whipping (azotes), and reclusion (in a monastery), and loss of dote and arras. That by L. 1. tit. 20. lib. 8. Rec., which is L. 1. tit. 28. lib. 12., Nov. Rec., both of them, and their respective property (if they have no children) ought to be placed in the power of the husband to do what he shall please with them; but that, at present, the punishment is reduced to banishment, or confinement in a house of correction (presidio), as regards the adulterer; and reclusion (confinement in a monastery,) as regards the adulteress. That as respects the relations, it was never permitted them to kill the adulterers as the text erroneously cites; that it is only the father who may kill with impunity his daughter guilty of adultery; but for this it is necessary that he find her committing the adultery in his house, or in that of his son-in-law, and that he kill, at the same time, the adulterer, L. 14. tit. 17. P. 7. That the text also erroneously cites L. 5. tit. 20. lib. 8. Rec., in support of what it advances. That what L. 7. tit. 2. lib. 3. Fuero Real, says, is, that the woman loses her arras if she goes away from the house with the design to commit adultery, although it may not be proved nor effectuated through any impediment. See also what L. 15. tit. 17. P. 7., says with respect to this last case; and see also Greg. Lop. Gl. 1. L. 14. tit. 17. P. 7., with respect to what is said above, as to a father being permitted to kill his daughter, when taken in adultery.

8. Rec.3 [L. 5. tit. 28. lib. 12. Nov. Rec.] The man ought to be banished, for the punishment of death imposed by L. 15. tit. 17. P. 7. has been mitigated. At present, the laws which permitted relations to kill the adulterer are obsolete.

Sorcerers, and persons practising witchcraft, suffer the punishment of transportation, Ll. 6. 7. and 8. tit. 3. lib. 8. Rec. [Ll. 2. and 3. tit. 4. lib. 12. Nov. Rec.] Tumultuous meetings (asonadas), assemblies of troops (apellidos), factions (bandos), parties (parcialidades), revolts (levantamientos), &c., are prohibited under penalty of transportation, and of death for the third offence, L. 6. tit. 15. lib. 8. Rec. [L. 8. tit. 12. lib. 12. Nov. Rec.]

Associations (ayuntamientos), and leagues (ligas), &c.; no corporation or council, nor other persons can form them, L. 1. tit. 14. lib. s. Rec. [L. 1. tit. 12. lib. 12. Nov. Rec.,] not even under the pretext of cabildos or societies (cofradias), except those already formed with royal permission, L. 3. tit. 13. lib. 8. Rec. [L. 12. tit. 12. lib. 12. Nov. Rec.;] also those of ecclesiastics are prohibited, L. 5. tit. 14. lib. 8. Rec. [L. 3. tit. 12. lib. 12. Nov. Rec.,] and those of students which are called factions (bandos), L. 1. tit. 7. lib. 1. Rec. [L. 4. tit. 12. lib. 12. Nov. Rec.]

Pimps (alcahuetes). The punishment of one hundred stripes (azotes), and ten years' condemnation to the gallies ought to be inflicted upon them for the first offence; for the second, stripes and

3 See L. 15. tit. 17. P. 7., which is meant to be cited.

4 Sorcerers, &c., Palacios says, the laws which the text cites do not impose the penalty of transportation or banishment as is there said, but that of death; but that of death being so rigorous a punishment, says Vizcayno in his Codigo Criminal, 1 pal. adivinos, num. 15., the custom of the tribunals hath moderated it into that of whipping (azotes), and being covered with feathers and crowned with a cap as a mark of infamy or dis grace (emplumados y encorazados). See 3d vol. Gutierrez Prac. Criminal, p. 22. n. 26; it is there said, with reference to the author quoted by Palacios, that the punishment of whipping is inflicted on men, and that of feathering and crowning on women guilty of the practice of sorcery, &c.

5 Palacios says, under this term is understood every commotion or insurrection. That the Pragmatica of 17th April, 1774, L. 5. tit. 11. lib. 12. Nov. Rec., which points out to the judges the mode of proceeding when they happen, orders the imposition, in such cases, of the punishments which the laws determine, without saying what laws these are; that there are various laws which treat of this matter, and by them regard is had to the person against whom the offence is directed, the mode and circumstance which intervene, with all that accompanies it; and that thus shall the offender be punished, sometimes by death, with confiscation of property; at others, with the gallies; at others, with banishment or transportation; and for the most, not to mention all, as Azevedo on L. 1. tit. 15. lib. 8 Rec. (not in Nov. Rec.), by an arbitrary punishment on the part of the sovereign, to whom an account shall be given according to the same law. That the said Pragmatica of 1774, directs these causes to be instituted or formed by the ordinary judges, according to the rules of law, advising upon their sentences with the courts Del Crimen or De Corte, of their respective districts; or with the council, if necessity requires it. He refers to L. 3. tit. 19. P. 2.; to Ll. 16. and 17. tit. 26. P. 2.; Ll. 1. and 2. tit. 2. P. 7.; Ll. 2. and 8. tit. 10. P. 7.; L. 1. tit. 7. lib. 1. Rec.; some laws of tit. 14. lib. 8. Rec.; and of tit. 15. lib. 8. ibid. He concludes by stating, that an Aut. Accord. of 5th May, 1766, L. 3. tit. 11. Lib. 12. Nov. Rec. says, among other things, that those who should commit this crime, on suffering the punishment of the law, shall be marked as enemies of their country, and their memory shall be infamous to all civil effects, and the guilty consequences shall follow without prescription or limitation of time.

VOL. I.-33

[232] perpetual condemnation to the gallies, although they may be under twenty years of age, Ll. 5. and 10. tit. 11. lib. S. Rec. [L. 2. tit. 27. lib. 12. Nov. Rec,] and for the third the penalty of death, L. 4. tit. 11 lib. 8. Rec. [L. 1. tit. 27. lib. 12. Nov. Rec.] These punishments include husbands who consent to the prostitution of their wives, L. 9. tit. 20. lib. 8. Rec. [L. 3. tit. 27. lib. 12. Nov. Rec.] Concubinage (amancebamiento). The married man who lives in concubinage with a single woman, is obliged to endow her (dotarla) in the fifth of his property to the amount of 1000 maravedis, L. 5. tit. 19. lib. 8. Rec. [L. 1. tit. 26. lib. 12. Nov. Rec.;] and if she is married, he forfeits the half of his property, L. 6. tit. 19. lib 8. Rec. Ll. 1, 2, 3 and 4. tit. 19. lib. 8. Rec. and L. 4. tit. 19. lib. 8. Rec. [L. 2. tit. 26. lib. 12. Nov. Rec. Ll. 3, 4 and 5. tit. 26. lib. 12. Nov. Rec.,] speak of the concubines of the clergy.

Arms prohibited. No person can carry pistols, blunderbusses (trabucos), which are not a yard long, daggers (dagas), poniards (puñales), &c., under penalty of six years' condemnation to the mines if he is a plebeian, and if he be a nobleman, six years' imprisonment (de presidio) Pragmatica de 29 Abril, 1761. [L. 19. tit. 19. lib. 12. Nov. Rec.] Nobles may make use of horse pistols (pistolas de arson). To coachmen and footmen, the use of the sword is forbidden under penalty of ten thousand maravedis, and one year's transportation, L. 26. tit. 23. lib. 8. Rec. See Ll. 16, 17, 18 and 19. tit. 23. lib. S. Rec. [Ll. 5 and 6. tit. 19. lib. 12. Nov. Rec.]

Faro banks are prohibited, Auto 4. tit. 7. lib. 8.10 [Nota 7. tit. 23. lib. 12. Nov. Rec.]

Bigamists are punishable with two hundred stripes, and ten years' condemnation to the gallies, L. 8. tit. 20. lib. 8. Rec." [L. 9. tit. 28. lib. 12. Nov. Rec.]

6 Palacios says, that practice has reduced the punishments mentioned in the laws cited by the text to exposing such offenders, if men, to public disgrace, with a crown or cap of disgrace (coroza); and if the husband, with horns; and if women, to being feathered (emplumadas); and afterwards, the former are punished with more or fewer years of imprisonment (de presidio); and the last with confinement in the cloister of San Fernando. By the law of the Partidas, he who for money was the pimp, or procured the prostitution of his wife, or of other married woman, virgin or nun, or widow of good character, was liable to suffer death, L. 2. tit. 27. P. 7.; this last law cited by the Learned Professor does not apply.

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

8 Palacios refers upon this subject to royal orders of 29th September, 1791, September, 1760, and 3d March, 1774; also to his last note in this title.

9 This law is not inserted in the Nov. Rec. In the edition of Palacios, L. 20. tit. 23. lib. 8. Rec., is cited.

10 See also L. 15. tit. 23. lib. 12. Nov. Rec.

11 Into public disgrace (verguenza publica), one and ten years condemnation to gallies. See also Ll. 6, 7, 8, and 10. tit. 28. lib. 12.; and see also L. 16. tit. 17. P. 7., which is altered by L. 8. tit. 28. lib. 12. Nov. Rec., with respect to the mode of punishment, and his punishment is extended by L. 9. ibid., cited in the text. Palacios says, in the case of the woman being cognisant of the first marriage of the man, her punishment is ban. ishment or confinement in a monastery.