he is imprisoned,73 L. 13. tit. 29. P. 7. and L. 7. tit. 26. lib. 8. Rec. [L. 13. tit. 29. P. 7. and L. 17. tit. 38. lib. 12. Nov. Rec.]

Regraters who obstruct the supplying of the town with provisions (que estorban los abastos) must be punished with stripes and fines (multas), Ll. 1, 2, and 6. tit. 14. lib. 5. Rec. [Ll. 6, 7 and 8, tit. 17. lib. 3. Nov. Rec.]

74

Apostates (renegados), whom our laws call turn-coats (tornadizos,) are liable to the same punishment as heretics; vide tit. Heretics, p. 248.

Resistance to justice. The person who makes, it, is punishable with eight years' condemnation to the gallies,75 L. 7. tit. 22. lib. 8. Rec.; [L. 6. tit. 10. lib. 12. Nov. Rec.] and according to Ll. 1, 2, 3, and 4, tit. 22. lib. 8. Rec, [Ll. 1, 2, 3, and 4, tit. 10. lib. 12. Nov. Rec.,] those who oppose the alcaldes de corte are liable to the penalty of death, and confiscation of property; and if they should kill any of the ordinary justices of the towns, they ought to suffer death, and forfeit half of their property; and if they should only wound them, they shall forfeit half of their property, and be transported for ten years from the kingdom, L. 5. tit. 22. lib. 8. Rec.76 [L. 5. tit. 10. lib. 12. Nov. Rec.]

Raffles and games of chance, even under pretence of devotion, are prohibited, under the penalty of forfeiture of the things [239] raffled for; and, besides, the price put down or paid to raffle, with as much more on the part of those who put it down or pay it, L. 12 and Auto 1. tit. 7. lib. 8. Rec.77 [Ll. 1 and 2. tit. 24. lib. 12. Nov. Rec.]

Robbery. He who robs on the high roads (en caminos); besides the punishments ordained by the common law (segun derecho), is obliged to pay six thousand maravedis to the camara, L. 1. tit. 12.

73 And the gaoler, or person having him in custody by L. 17. tit. 38. lib. 12. Nov. Rec., must answer in his stead, and pay a fine to the crown (camara) of six hundred maravedis. Palacios observes on this part of the text, that by a royal order of 27th January, 1787, (nota 2. tit. 40. lib. 12. Nov. Rec.), a person guilty of the offence of breaking prison, is sent or condemnod to the gallies, if the crime for which he was imprisoned should not require a greater punishment, and it should be proved. That from this it is inferred, that from the mere circumstance of breaking prison, he ought not to be taken, or had as having confessed the crime, for although when by the laws cited he was so held (and he was not always so held, as Azevedo, on L. 27. tit. 6. lib. 8. Rec. explains,) this presumed confession did not exclude the proof which the breaker or person guilty of the escape might give of his innocence, for presumptive proof ought to yield to positive proof. That the laws cited in the text do not make mention of the punishment of two hundred stripes; nor of that of public disgrace. That law 13. tit. 39. Part 7., leaves the punishment to the discretion of the judge.

74 Regraters, observes Palacios, it is seen, are punished with fines (multas), but not with stripes. That by the royal order of the 29th April, 1804, the use of the iron ring (argolla) was directed to be re-established in Madrid for regraters of all classes.

And disgrace (vergüenza). The punishment may be greater, according to the

nature of the resistance, &c. See L. 6. tit. 10. lib. 12. Nov. Rec.

See the laws of the 10th title, 12th book, Nov. Rec., cited in the text: also the royal

decree of 24 April, 1783, (not in Nov. Rec.)

See also L. 3. tit. 24. lib. 12. Nov. Rec.; and title Gaming, p. 250. ante.

78 See title Theft, and note (49) p. 249. ante.

lib. 8. Rec. [L. 3. tit. 15. lib. 12. Nov. Rec.] Every robber in a desert or uninhabited place, of the value of one hundred and fifty maravedis, is punishable with transportation and stripes; with the addition, that the robber must pay to the party double the amount of the property robbed. If the robbery should amount to five hundred maravedis, the robber is punished with stripes and the cutting off his ears; if it exceeds five hundred maravedis, up to a thousand, with the cutting off his foot, and with never being allowed to ride on horse or mule back; and if it exceeds five thousand maravedis, he ought to suffer death for it, L. 3. tit. 13. lib. 8. Rec.79 At the present time, highway robbers incur the penalty of death.80 He who steals any slave, or the child of another, must suffer death, if he is a plebeian; and if an hidalgo, be condemned for life to hard labor,81 L. 22. tit. 14. P. 7. [L. 22. tit. 14. P. 7.] Stealers of cattle by use and habit, deserve the punishment of death; and when the robbery is confined to one or two heads, it is punished with imprisonment (presidio), condemnation to the mines, &c., according to the crime and its circumstances, L. 19. tit. 14. P. 7. [L. 19. tit. 14. P. 7.]

Sacrilege is punishable by excommunication, and other penalties according to L. 4. and other laws, tit. 18. P. 1.82 [L. 4. &c. tit. i8. P. 1.] Breaking open graves (sepultura quebrantador). Persons guilty of this offence are punished arbitrarily, or they are condemned to imprisonment (ú presidio) according to the circumstances of the breaking open; and if effected by arms, and the ill treating the dead bodies, it is punishable with death, L. 12. tit. 9. P. 7.83 [L. 12. tit. 9. P. 7.]

Simony 84 He who is guilty of the offence, forfeits the gift (gracia) which he may have obtained, and besides double the amount of what

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

80 Palacios says. that the laws of the Partida make a difference between robbery (robo), and theft (hurto); giving the name of robo to what the Romans called rapina, L. I. tit. 13. P. 7., which implies theft in which force intervenes Princip.; tit. 12. P. 7., but that as these words are commonly taken as synonymous, the word hurto may be referred to. See p. 249, ante, and note 49 ibid. That, notwithstanding it is there said, that the pecuniary punishment of theft (hurto), not manifest, is the payment of the double of the amount or value stolen; and that of manifest theft, fourfold the amount: and the penalty of threefold the amount having been affixed by L. 3. tit. 13. P. 7., and L. 2. tit. 12. lib. 8. Rec., (L. 4. tit. 34. lib. 12. Nov. Rec.), to the offence of robbery or rapine, it is convenient, in order to avoid confusion, to add here the motive for this difference. The learned Professor goes on to observe, that the laws of Spain in this particular, (he might have added in most others), were taken from those of the Romans; and the Roman prætors established the penalty of threefold the amount with respect to robbery; not because that in robbery the same actions are not given as in theft-for, as the Emperor Justinian says, § init. Inst. de vi bon. rap., he who commits robbery is an infamous thief, and is subject to the same actions as he who commits theft; but in order to prove their zeal, and in detestation of this crine. 81 See title Plagiarios, and note 72, p. 252. ante.

82 Sacrilege, says Palacios, is an offence mixti fori, the penalties of excommunication, and the other ecclesiastical penalties being of ecclesiastical cognisance.

83 See this law: the relations of the deceased person may proceed civilly if they prefer it, and recover from the offender 100 maravedis of gold.

84 This, says Palacios, belongs to the canonists, and its cognisance to the ecclesiastical jurisdiction.

he may have given or promised, and must be transported from the kingdom for ten years, L. 19. tit. 26. lib. 8. Rec. [L. 3. tit. 22. lib. 3. Nov. Rec.] Suborners, are punishable with transportation, Ll. 5. and 6. tit. 9. lib. 3. Rec.85 [Ll. 7. and 8. tit. 1. lib. 11. Nov. Rec.] Highwaymen (salteadores). See title Robbery.

Treason or traitor (traidor). The punishment of death [240] and confiscation of property is inflicted upon persons gutlty of this crime, L. 2. tit. 18. lib. 8. Rec. [L. 2. tit. 7. lib. 12. Nov. Rec.] He loses his privileges of nobility or rank (hidalguia), and his houses are rased to the ground to serve as a mark of perpetual infamy, L. 1. tit. 12. lib. 8. Rec. [L. 3. tit. 15. lib. 12. Nov. Rec.;] and he who knowingly admits into his houses or gives an asylum87 (acoge) to traitors forfeits half his property, L. 4. tit. 18. lib. 8. Rec.88 [L. 3. tit. 7. lib. 12. Nov. Rec.]

Vagabonds. Under this name are comprehended all sturdy or healthy beggars, L. 11. tit. 11. lib. 8. Rec. [L. 5. tit. 31. lib. 12. Nov. Rec.] They are punished for the first time with four years condemnation to the gallies, for the second with one hundred stripes and eight years' condemnation to the gallies; and for the third with one hundred stripes and perpetual condemnation to the gallies, L. 6. tit. 11. lib. 8. Rec.89 [L. 4. tit. 31. lib. 12. Nov. Rec.]

Outlaws or banditti (bandidos). If being cited or called by edicts and proclamations (pregones) they do not appear they are considered as contumacious, and any person may kill them, and being once taken they must be drawn, hanged, and quartered, and their property confiscated, Auto 3. tit. 11. lib. 8. Rec.90 [L. 1. tit. 17. lib. 12. Nov. Rec.]

Usurer. The contracts made by such person are null, he forfeits or loses that which he lends on usury, and he pays as much more (otro tanto). Being a second time guilty of the offence, he forfeits the half of his property; and the third time he forfeits the whole,"1 Ll. 4. and 5. tit. 6. lib. 8. Rec. [Ll. 2. and 4. tit. 22. lib. 12. Nov. Rec.]

The laws cited by the text, says Palacios, only treat of judges, who receive gifts from the suitors, punishing them for this crime with privation of, or degradation from office: and he refers to cap. 9. Instruc. de Corregidores on this subject.

This Law 3. tit. 15. lib. 12. Nov. Rec.; which is L. I. tit. 12. lib. 8. Rec., cited in the text, does not apply.

87 For three days, says L. 3. tit. 7. lib. 12. Nov. Rec., cited in the text.

88 Palacios refers to the whole of tit. 13. P. 2., particularly to L. 6. thereof.

Palacios says, that all the royal orders respecting the assemblage (recogimiento) of vagrants, remained without force by cap. 41. of the Royal Cedula, or enactment respecting the press, of 7th May, 1775. (See L. 7. tit. 31. lib. 12. Nov. Rec.,) which is that which governs with regard to vagrants, &c.

90 Vide the quotation.

Palacios says, that the contracts made by a usurer are null, and do not carry prompt execution; but that this, it is stated by Febrero Reformado, p. 1. cap. 16. §. 1. n. 30., is only observed with respect to the interest; for that with respect to the principal execution goes against the debtor, notwithstanding what the two laws cited in the text lay down. With

NOTE.

By the ordinance (pragmatica) of 12th March 177192 it is established, That persons guilty (delinquentes) of qualified crimes such as those who in transgressing the laws commit crimes (delinquen) with a depraved and wicked mind, are punishable with imprisonment in Africa (de presidio de Africa); and that those guilty of crimes not qualified (that is committed without such wicked mind or intention) are sent to the dock yards of Cadiz, Ferrol, and Carthagena, under the dispositions therein directed 3 whereby also the extension which was improperly given to [L. 8. tit. 11. lib. 8. Rec. [L. 2. tit. 40. lib. 12. Nov. Rec.;] and of those laws corresponding with it is done away.

93

great deference to the learned professor, and the compiler whom he has quoted, it would be going too far to set up the authority of even Febrero, against positive statutory enact

ments.

92 L. 7. tit. 40. lib. 12. Nov. Rec.

93 Palacios observes, that the contrary of what is stated in the text, is laid down in the Pragmatica of 12th March. 1771, (L. 7. tit. 40. lib. 12. Nov. Rec), that is, that the last mentioned punishment, which cannot exceed ten years, is awarded to the first class of crimes, and the first to the last: he transcribes a great part of this law (which see), and asserts, that notwithstanding its definite terms, and its severity, practice, as is stated in the text at the beginning of this title, hath altered and mitigated the punishments of many crimes. That at present, and by a royal order of 30th December, 1803, no one ought to be sentenced or condemned to the gallies, they not being found in a state to be useful, and therefore that some other equivalent punishment should be imposed, when, according to the laws, any offender should deserve it. He also refers to the instruction (16th July), of 1803 (L. 21. tit. 41. lib. 12. Nov. Rec,) which ordered (el. 5.), as an addition to that issued on 27th December, 1748. (L. 17. tit. 41. lib. 12. Nov. Rec.)," that opulent persons should be punished by pecuniary fines in lieu of corporal punishments, of imprisonment (de carcel,) and others of a like nature for light offences; and that the superior tribunals should also be able to commute the punishments of imprisonment (de presidio), where the class or description of offence should permit it, &c. That by cedula of 28th March, 1786 (L. 15. tit. 40. lib. 12. Nov Rec.), which refers to former ones (Pragmat. 12th,March, 1771. cap. 5. or L. 7. tit. 40. lib. 12. Nov. Rec.), it is ordered that no offender shall be sentenced for life to imprisonment (de presidio), nor to confinement for an indefinite period in a house of correction, in order to prevent the desperation of offenders and other disadvantages; or evils. That some royal orders fix ten years for the greater punishment, and others, especially that of 17th February, 1786 (not in Nov. Rec.), direct that those which appoint ten years, are understood to apply to only one sentence or conviction, and without prejudice to a fresh charge for new crimes. That ten years with the order of confinement (clausula de retencion), is the utmost period to which condemnations of imprisonment (de presidio) can be extended. Royal cedula, 7th October, 1796 (L. 16. tit. 12. lib. 5. Nov. Rec.), That as regards the punishment of mutilation of limb, it hath ceased to be of use in Spain. That with respect to the ancient pecuniary punishments, it may be said that they have been made arbitrary in consideration of the great depreciation of money since the laws which imposed them were established, which would render them almost useless, if the letter of the law should be observed. And that the instruction for corregidores of 1788 (see L. 25. tit. 28. lib. 12. Nov. Rec.), will be of use, in order to proceed with certainty in regard to some criminal points.

For more full information on the subject of this title of the text, the reader is referred to the 7th Partida, Book 12, of the Novisima Recopilacion de las Leyes de España, to Antonio Gomez, and to Mathæus de delictis, and to the practical criminal works of Vilanova and Gutierrez.

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, 1 See Wood's Civ. Law, book 4. ch. 1. p. 292.

VOL. I.-35