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5. It sometimes happens that certain ecclesiastical or lay judges take up matters belonging to the Holy Office, and make judicial inquiries therein. The question whether they should forbear from investigation of such cases, and submit them to others, has caused differences to arise between them and the commissaries, and has made them set forth most weighty arguments. Since the main care shall be to prevent such clash of authorities, in order to avoid this it is enough to bid them not to meddle in such matters. But if they persist in doing so it will be necessary to send them an injunction, couched in very respectful terms, drawn up in writing before a notary; to note their answers; and then to report everything to the Holy Office.
6. In cases of disobedience, disrespect, hindrance, and obstruction to the free and just exercise of the Holy Office, which also are wont to occur, the commissary shall be careful not to lose his temper, or to give way to words or deeds injurious and offensive to any person; on the contrary, that is the time for him to control himself and show great moderation. He shall make a diligent and full inquiry from other persons regarding the whole case, and shall notify us through his report; in this way any disobedience or disrespect on the part of a judge or a private person will be punished with greater rigor and justification. The delay which is apparent in this case might seem injurious, but it will not be so—as it is not in the transactions of the Inquisition; for, after men have slept soundly, they are awakened by a very exemplary punishment.
7. Denunciations regarding the matters contained in the edict shall be received in the commissary's own house, in a suitable, secret, and convenient place. They shall always be made by day, unless it should be necessary to receive them by night. The persons who come for this purpose must be treated with kindness, each according to his station in life. Every sort of infamy upon the party concerned must be avoided as much as possible.
8. In receiving denunciations there shall be no delay, but rather great care and diligence, as likewise in examining the evidence, following and keeping within the bounds of the injunctions laid down in the instructions which are especially sent for that purpose. The same and even greater care, and much attention, are required in forwarding depositions.
9. Since it often happens that some of the witnesses are out of the city, and therefore depositions must be taken in different places, let the case in question decide the course of procedure, whether or not the commissary shall order the witness to appear before him. Usually there is no need to cause the witnesses the trouble of coming a long distance, when the investigation can be entrusted to the parish priest [cura] or vicar of the place, the notary making certification at the head of the authorization therefor given to him by this clause. A case may arise where it is best to wait for the witness, and it may be desirable to hold him, in order to examine him personally; this is left to the commissary's choice, for, having the case before him, he can decide what is best to do. If any one be summoned on the affairs of the Holy Office and shall not render due obedience, a written order must be sent to him, imposing upon him the penalty of excommunication and a fine in money, should he disobey. A report of all proceedings in each individual case shall be made, so that the disobedient person may receive exemplary punishment, according to his station in life and the nature of his disobedience.
10. Some are accustomed to send their denunciations through memorials, with or without their signatures, or by letters-missive; but, since these persons write them under no pressure or oath, and without the presence of a judge or a notary, they expand their accusations to the detriment of their neighbor's reputation. Therefore the commissary ought to avoid as much as possible the acceptance of such letters and memorials, and shall order the witnesses to declare under oath what they know of the matter, in order to free their consciences, and shall examine them concerning the facts. If the acceptance of such a letter cannot be avoided, the person who writes it should be summoned and made to acknowledge it under oath before a notary, after which he should be examined about the letter. If the letter be written from a distant place, the rule in the preceding clause can be followed.
11. Likewise some persons, moved by passion more than by commendable zeal, are wont to denounce others on the ground that they are confessos, and therefore not entitled to wear silk, carry weapons, ride on horseback, or do other things forbidden to them by laws and royal ordinances of these realms, as well as by the instructions of the Holy Office, as likewise is set forth in the edict. In these cases one ought to be careful not to accept such depositions except from children and grand-children of relaxados, or from children of a relaxada, [40] or from persons who themselves have been reconciled to the Church [reconciliados]. The commissary may receive denunciations from these three classes of persons, and send them to the Holy Office, without making any arrest, issuing interdicts, or taking other steps. On the contrary he will maintain great secrecy, and charge the witnesses to do the same. As for other persons denounced as confessos, since they are not in the said class, nothing will be written. On the contrary, the same secrecy will be imposed upon the witnesses and they shall be very kindly admonished to be silent, and not to slander their neighbors, informing them that the Holy Office will take no offense at what they have testified.
12. The heading of the charge made against any person must begin with the words of the first witness, and not, as is customary with ordinary judges in these regions, the formula, that "it has come to his notice," etc.—inserting first what he has heard concerning the crime from any witness. When the commissary receives documents of many clauses from this Holy Office for the investigation of different matters and against many persons, he will place as introduction to the inquiry that he makes in each case that clause of the document which applies to the matter in question, legalized by the notary.
13. Any arrest made by the Holy Office is a matter of much reproach and dishonor for that person, and of no less damage and injury to his property; therefore an arrest should be made with prudence, care, and for just cause. Authority for this is not given to the commissary, who neither should nor can arrest a person except in special cases, and by a special order entrusted to him against the person who is to be arrested; and even then, the commissary must see that the purport of the said order be executed, without exceeding it.
14. The crime of bigamy is very frequent in this country, so that it behooves all commissaries to make diligent inquiry concerning it, and to punish the crime. If the ecclesiastical or secular court arrest any one for this crime and proceed against him, let them administer justice freely and without hindrance. If they refer the case to the commissary without charge, and without his making any effort for such remission, the latter shall say that it is very well, and that they may refer and send the case to this Holy Office at their own expense—or at that of the prisoner, if he be well-to-do. If they still urge him to receive the case there, that it may be sent by the order and at the expense of the Holy Office, the commissary shall answer that he has no orders from us for such action. If, dissatisfied with this answer, they ask permission to inflict punishment there, he will answer that they may investigate the matter, and may do justice according to law. After that he will allow no more arguments on the question.
15. This clause applies when the said courts have anticipated the case by the arrest of the accused person; for if the latter were free, and through information received from witnesses his two marriages were proved, and the existence of the first wife at the time of the second marriage, which constitutes the crime, the commissary shall arrest and remand to prison the person thus proved guilty—sending with the prisoner the information or original record, but retaining there an authenticated copy of it. Concerning other cases of bigamy, which do not show the same degree of guilt, it will suffice to send authenticated copies of such records or depositions as are received, and to keep the originals. Special information must be sent concerning the prudence of the accused, his station in life, and his wealth; so that after due examination the necessary measures may be taken. If he should come to this country [Mexico], the commissary must give us notice of his coming, so that the Holy Office may hear of it by the first despatches which shall reach Mexico. He shall also write to the commissary who resides at the port of Acapulco, that any attempted absence or flight may be prevented.
16. Concerning the other crimes enumerated in the general edict, after the denunciation has been received and the witnesses have been examined, according to the order laid down in the instructions, it will suffice to send such information without making any arrest or taking other steps. The commissary shall also send information concerning the person's birth-place, station in life, means, and the real estate that he owns in this country, or in Espana. He shall notify us, in case such person comes here, so that we may deal with him as the nature of his offense demands.
17. As for the judicial proceedings in matters which concern the Holy Office—whether they be settled, or informal, or pending official transactions—which other courts submit to the Holy Office, whether at the instance of the attorney-general or by agreement, all original documents must be delivered, without retaining a copy of any; oath to this effect will be made by the apostolic notary or by the royal scrivener who hands them over. Since suits which do not belong to the Holy Office are sometimes thus handed over, the commissary shall, on account of the danger that they may be lost at sea, not send documents until he shall first examine them. If they clearly prove to be cases not belonging to the Inquisition, he shall return them to the owners. In case of doubt, the commissary shall send an account of the offense, with the evidence, and the status of the process—saying whether it is decided or pending, and whether informal or received on trial; he will also report as to the rank of the accused person, and whether at the time any arrest has been made, or will be made in the future. Ordinarily, whether the case be one of bigamy or of some other crime, the commissary shall proceed as stated in the two preceding clauses. If he should not be sent as prisoner, it will not be right to do so until his offense be investigated here; accordingly the commissary may discharge him under bail or under juratory security. [41] If the accused is unable to provide security, the commissary shall command him not to leave the city, town, or province where the crime occurred and where he owns property, under severe penalties of excommunication, and pecuniary or bodily punishments, suitable to the person's station. If such person wishes to come to this country, he can do so by offering the same bail or security to the Holy Office; but he must first be warned not to make the journey if other matters render such a step unsuitable. He shall be assured that in his absence his trial and his honor will receive the same attention as if he were present.
18. When any arrest must be made according to these instructions, it must, for any case of bigamy, be made according to clause fifteen. The commissary shall issue orders entrusting the matter, as is customary, to some one of the familiars whom he has to keep in the city. Until he has familiars, for lack of them he shall entrust it to the person on whom he has most reliance, and in whose integrity he most confides. When it is necessary, but only then, he may ask for the aid of the royal officials of justice. Whenever this shall be necessary, the royal officials may seize only the person pointed out to them by the Holy Office; and they must assist him, giving their favor and aid only for such person. In order to obtain this help, the commissary needs only to ask for it in polite terms; and it may be demanded without the necessity of giving information, either written or oral, regarding the offense—and, indeed, he shall be very careful not to do so. On the contrary, if anyone should be so inconsiderate as to ask for such information, let the commissary send us a detailed account of what takes place in the matter.
19. Royal magistrates are under obligation to render this assistance, since the request therefor does not require from them any fees, alguacil, or scrivener. The magistrates are also under obligation to receive and keep any prisoner in their jails, to take good care of him, and to account for him, but without exacting therefor any prison-fees. Accordingly the commissary will, when occasion arises, notify the magistrates and request their assistance; and if necessary he will command it, under pain of excommunication and a money fine. Thus he will not be obliged to find another and special prison, and incur the expense of guards. If the rank of the person, and the condition of the prison, and the nature of the crime require a more special and secret prison, on account of the danger that the prisoner may be able to communicate his affairs to other persons, such arrangements are left to the judgment of the commissary, who is charged to see that in these arrests little outcry be made, and that all scandal be avoided.
20. When the criminal is arrested, the commissary shall send him by the first available ship, registering him as being in the shipmaster's charge—commanding the latter (under penalty, if necessary), to take good care of the prisoner until he shall be handed over, at the port of Acapulco, to the commissary who dwells there, who is duly authorized to act. If the prisoner be well-to-do, the commissary shall send at least one hundred pesos' worth of his property, in order to pay for the food that he needs during his imprisonment, and to meet the expenses that he may incur during the journey; otherwise, the commissary shall send whatever sum be may obtain from the property. Since these men who are twice married are not a very dangerous class of people, the commissary may in a case of flight exercise leniency, by allowing them to come and present themselves under a sufficient security, corresponding to their station and means.
21. A sequestration of property is very injurious to a person, especially in the Indias, where all the value of property depends upon its management. The commissary ought not therefore, in any case, to do this; on the contrary, the arrested person shall permit suitable provision for his property, according to his own preference, entrusting it by means of an inventory to some person in whom he has confidence. The latter shall bind himself, in due form, to be the depositary of such goods as the prisoner may leave in his charge on account of his arrest; and in such manner that it may not seem to be a deposit or a sequestration by the Holy Office, but simply a contract between two parties. This accomplished, the commissary shall obtain very minute information about the station of the prisoner, his mode of life, and the means and property that he may possess. If he has any reason to suspect that either the prisoner or the person to whom he has entrusted his property on account of the arrest, is endeavoring to hide, or squander, or alienate the property, he shall be careful not to allow such alienation or any other mismanagement of the property; until the Holy Office, having examined his offense, shall make suitable provision for a legal sequestration: for in punishing a crime, the property of the guilty person is always regarded as an accessory element, to be used in behalf of the person to whom it shall belong after the culprit is released from prison.
22. Money for the prisoner's food, for the expenses of his journey, according to his station, and for his bedding and clothes, must be taken entirely from his estates; and if he has none, let such of his goods be sold as will inflict least damage upon him, to the amount necessary, at a public auction before a notary or a royal scrivener. No officer or agent of the Holy Office shall take anything from the said sale, either personally or through agents—a command which is general in all cases when goods are sold by the Holy Office, whether they are sequestrated or not. To better ascertain which of the goods would cause him least damage, it will be advisable to consult the opinion and desire of the interested party.
23. All that has been said thus far concerning the acceptance of denunciations, and the reference of cases, prisoners, and proceedings to the Holy Office, does not apply to the Indians—against whom the commissary shall not proceed for the present, but shall leave them to the jurisdiction of the ordinary. [42] Cases involving them are not to be referred to us. All other cases, in which mestizos, mulattoes, and Spaniards, of all classes, are involved, shall be tried exclusively by the Holy Office rather than by the ordinary courts, as specified in the fourth clause of these instructions.
24. The Holy Office is wont to issue edicts—as, for instance, the general edict concerning matters of the faith, and other specific ones—for the prohibition and seizure of certain books. The public reading of these edicts is of the utmost importance, having the force of a notarial summons. It always takes place in the cathedral church, where the people are commanded several days beforehand to meet, under pain of excommunication. The sermon is assigned to the most learned preacher of reputation and authority, who preaches it elsewhere, on that same day; notice is therefore given to the monasteries and to all concerned. The Holy Office shall appoint both the preacher and the day, although it is best to make arrangements therefor with the prelate, and obtain his concurrence; for in so doing nothing is detracted from what is due to the Holy Office. Although the penalty of excommunication is imposed, it is not held to bind any except those who for petty considerations neglect to heed it. In denouncing their guilt the commissary shall absolve them, imposing upon them only some secret spiritual penances and not any pecuniary or ignominious punishment. Others who through carelessness, negligence, or ignorance, fail to appear, the commissary shall discharge with a gentle reprimand, setting at ease their consciences in regard to the excommunication.
25. The Inquisitor therein anticipating the action of any other judge is accustomed to visit all ships which arrive at the ports, no matter whence they come; therefore the commissary shall do so, if he is in a place where it can be done, and shall ask the principal officers of the ship the questions sent with these instructions. If he is unable to do so in person, he will entrust the matter to the parish priest or the vicar who resides in the port, sending him a copy of the questions to be asked. He will notify us as to the ports chiefly frequented by ships, where it will be best to keep persons with a special commission from us; and will name some of the persons to whom this commission may be given. When the commissary has succeeded in visiting the ship at its station in the harbor, the captain, master, or clerk, or some of the passengers will find it necessary to go ashore, to the city; then, while the supplies most needed are being procured, he will examine them. In all this it is very important to avoid carelessness. This is understood only of ships which belong to Spaniards and come from Nueva Spana, Piru, or Panama, or from Portuguese India, or from other regions.
26. One of the most important reasons for inspecting the ships is the books, especially the boxes which come as cargo. The royal officials and magistrates of his Majesty who reside in the ports shall send the said boxes to the commissary of the Inquisition, without opening them or taking any books out of them. The commissary shall open them and examine the books, comparing them with the general catalogue; and after seizing such as he finds are prohibited, he will give the rest to the owners To this end the commissary shall make known to the royal officials of the city, and to those who reside in the ports, the ordinance which accompanies this paper; and this applies even when the said boxes of books have been previously examined by another inquisitor.
27. Whenever a ship departs from the islands, the commissary must send replies to the letters which are written to him, and information of what is occurring there.
28. Finally, we recommend the examination of these instructions—which, although so full in their provision for all contingencies, properly apply to ordinary occurrences, with a few clauses for which provision had already been made. The most difficult task, therefore, will be to examine them carefully at first, and to bear in mind that any doubtful cases are to be decided by the commissary as shall be necessary, since he is so far away [from Mexico]. With this, and the confidence that we place in him personally and in his prudence and great zeal, we trust that the commissary will meet all success.
Given at Mexico, March first, one thousand five hundred and eighty-three. The licentiate Bonilla The licentiate Santos Garcia
By order of the Inquisitors: Pedro de Los Rios
FOUNDATION OF THE AUDIENCIA OF MANILA
Don Phelipe, by the grace of God, king of Castile, of Leon, of Aragon, of the two Sicilias, of Ihm, of Portugal, of Navarra, of Granada, of Toledo, of Valencia, of Galicia, of Mallorcas, of Sevilla, of Cerdena, of Cordoba, of Corcega, of Murcia, of Jaen, of the Algarves, of Algecira, of Gibraltar, of the islands of Canaria, of the eastern and western Yndias islands, and the Tierra Firme of the great ocean; archduke of Austria; duke of Bergona, of Brabante, and Milan; count of Absburg, of Flandes, of Tirol, and of Barcelona; lord of Vizcaya and of Molina; etc. Whereas, in the interests of good government and the administration of our justice, we have accorded the establishment in the city of Manila of the island of Lucon of one of our royal audiencias and chancillerias, [43] in which there shall be a president, three auditors, a fiscal, and the necessary officials; and whereas we have granted that this Audiencia shall have the same authority and preeminence as each one of our royal audiencias which sit in the town of Valladolid and the city of Granada of these our realms, and the other audiencias in our Yndias: now therefore we order to be made and sent to the said island our royal seal, with which are to be sealed our decisions which are made and issued by the said president and auditors in the said Audiencia. Moreover, as to the course of procedure which they are to follow in the performance of their duties, we have ordered certain rules to be drawn up, as follows:
House of Audiencia
1. First, we ordain and command that in the said city of Manila there shall be a house of Audiencia, where may sit and reside our said president and auditors, and where our royal seal and register may be kept, and in which shall be the prison and its warden, and the smelter for precious metals. If there should, however, be no accommodation for living in the said house, the auditors shall lodge in other houses, which they shall occupy with the consent of their owners, paying them rent; and the Audiencia shall be held in the house where the president dwells, and therein shall be the prison and its warden.
2. It is our will and desire that the said Audiencia shall have as its district the said island of Lucon and the other Filipinas islands of the archipelago of China, and the mainland of the same, whether discovered or yet to be discovered.
Jurisdiction of the President and Auditors in Civil and Criminal Cases
3. We ordain and command that our aforesaid auditors shall have jurisdiction of all the civil and criminal cases which come to our said Audiencia on appeal from the governors, alcaldes-mayor, and other magistrates of the provinces and islands and district subject to our aforesaid Audiencia, and shall try them by examination and review, but shall not have jurisdiction of any case in the first instance—except it be in cases which belong to a superior court [44] or criminal cases which arise in the city, town, or towns where they may sit, or within five leagues thereof; and in the civil cases arising in the town or village where they may sit, the alcaldes-in-ordinary shall have jurisdiction.
4. Item: We ordain that our said judges try such civil and criminal cases in the same manner in which they would be tried by the judges and alcaldes of our audiencias of Valladolid and Granada, and that they may and shall render decisions according to the precedents of the alcaldes of our audiencias of Valladolid and Granada.
5. Item: We command that the governors, alcaldes-mayor, and other magistrates of the said district shall authorize appeals to be made from them to our aforesaid Audiencia in the cases in which rightly and in conformity with these rules it may have jurisdiction, except those which must go to the councils for settlement in conformity with the decree made by us, and excepting further the cases involving less than a certain sum in which by special decrees appeals from the alcaldes-in-ordinary must go before the governors—which cases we wish to remain as they are during our pleasure.
6. Item: In the civil cases in which judgments are pronounced after examination and review by our said president and auditors, they are to be executed without any further appeal or petition, or other recourse, except when the case involves so large an amount that there may be ground for a further appeal to our royal person, in conformity with the provision and decree of our laws and ordinances. In such cases we desire that the privilege of appeal be given, under the condition that the party who makes a second appeal must and do present himself before us within a year after the original judgment has been communicated to his attorney. Yet we desire and command that the judgment of revision be executed notwithstanding such second appeal, the party in whose favor the judgment was rendered giving first sufficient and satisfactory bond that, if it shall be reversed, he will restore everything which has been adjudged and given to him thereby, in conformity with the judgment which has been pronounced by the persons appointed by us. We also ordain that the cases which shall come up on such second appeal must be presented as original cases before our council of the Yndias, being left just as they were; but an official report of the entire case is to be left in the possession of a clerk of the Audiencia before which it has been tried, and the parties must petition for such appeals before the Audiencia itself. Yet if the judgment of revision which is pronounced in our said audiencias be with regard to possession, we declare and order that no opportunity is to be given for such second appeal unless the judgment of revision is carried out, although it be contrary to that of the original trial.
7. Item: In the hearing and judging of said cases, either civil or criminal, the decision shall be whatever meets the approval of the majority; and should they be equally divided, two or three of the judges shall choose, impartially and in whatever manner may seem best to them, an advocate for the determination of the case upon which they have disagreed. The decision of the majority must be executed, even if this majority consist of but two. If there be but two judges in the Audiencia, they are empowered to try and determine all the said cases alone; if they can agree, their decision is valid, and in case of disagreement, they shall choose judges in the manner above described. If at any time there should be but one judge in the Audiencia, he is empowered alone to conduct the proceedings in all the said cases up to the point of rendering final decision. He may make investigations and issue orders for arrest, and when the affair is submitted for final decision, he may choose an assistant judge satisfactory to him. He is empowered to pursue this same course in cases of damage which cannot be repaired by definite sentence; and in a civil case of two hundred pesos or less, he is empowered to conduct alone an original trial or an appeal, as he may also do in criminal suits for slander.
8. Item: We ordain and command with regard to civil cases appealed from the alcaldes-in-ordinary of the city where the Audiencia may be, or from the other magistrates within five leagues thereof, that they may be appealed before the Audiencia; and if the judgment given by the Audiencia in said cases be of two hundred pesos of the mines [pesos de minas] or less, it shall be executed as if it were granted after review, and there shall be no appeal therefrom, whether the said judgment be in confirmation or in revocation.
9. [Technical directions for procedure in a case on appeal when the appellant desires, after appeal, to add to the evidence taken at the trial of first instance. Affidavits are presented on both sides before the judge of first instance, an interlocutory decision is pronounced, time is allowed for filing objections, and the record of the second series of proceedings is added to that of the first.] [45]
10. Item: Whoever shall bring before our Audiencia a case on appeal may appear before the clerk whom he chooses. The clerk before whom he appears shall be required to notify our president and auditors of such appearance, that they may assign the case so as to produce equality among the clerks; and the same shall be maintained among the suits begun in the first instance in our said Audiencia.
11. Item: We command that the judgments pronounced by our said president and auditors for the region beyond the five-league limit, and writs of execution and other writs, shall be given in our name and with our title, royal seal, and record. Writs with seal and record shall receive the fees which by our royal tariffs of fees for our Audiencia have been commanded for them. The judgments pronounced for the region within the five-league limit shall follow the form of orders without seal or record, issued by our auditors, etc. And these writs shall be obeyed and executed in the same manner as writs and judgments sealed with our name and royal seal.
12. Item: Our president shall keep a record of votes, which he shall swear to keep secret, and in which he shall enter, in brief form, the opinions of himself and the auditors in all cases involving a hundred thousand maravedis and upwards.
13. Item: We will that our auditors repeal no sentence of banishment, nor allow writs of delay for debts; yet we permit them to issue writs of delay for six months to particular persons, and not in general—provided first that such person for legitimate causes which have intervened is unable to pay; and that he offers approved security, not clerical or noble, [46] that at the end of six months he will pay the debt. This term may be allowed for the same debt only once.
14. Item: We ordain that the appeals taken from decisions for plaintiff or defendant in pecuniary suits, and in suits involving only private interests, when said decisions are pronounced by those who report to the governors and corregidors of the district of our said Audiencia, shall go before it; but as for all other matters heard by such judges, and as for the results of secret investigation, they shall go before our council of the Yndias.
15. Item: Our Audiencia shall appoint no judge in cases of residencia [juez de residencia], or governors for the provinces subject to their jurisdiction, or judges for special criminal investigations [pesquisidores]. If any individual bring complaint or charges against the governor, and the Audiencia shall see that the matter is of such nature that it is of importance to know the truth concerning it, in such case they shall send one person to obtain the necessary information. The complainant or accuser must give bonds that he will pay the costs and the penalty which will be assessed against him in case the accusation proves false. In other cases special judges of investigation shall not make inquisitions, except with regard to riots and seditious associations, or other matters of so pressing importance that the delay requisite for consulting us would produce notable inconvenience.
16. In cases which occur outside of the five-league limit, our president and auditors may appoint judges by commission [jueces de comision], to hear the cases and to administer justice with regard to them. Care must be taken that they make their inquiries in cases which warrant inquiry, and in no others. Such judges by commission for crimes and misdemeanors shall be given authority only to carry on a legal inquiry [informacion], and to arrest the delinquents and convey them to the prison of the Audiencia. They may also collect their fees from those who owe them. The clerks before whom the cases are carried on shall hand the records in their entirety to the clerks of the Audiencia, where the matter shall be completed in such manner that the parties shall be obliged to pay only single fees. And if the clerks who attend such commissions have no commissioners [receptores], they shall be appointed by our Audiencia, and not by the clerks thereof.
17. Item: We command that the receiving of the testimony which must be taken in the transactions which proceed from our Audiencia shall be entrusted to the clerks of those cities where it shall need to be done. If there are no such clerks, our said Audiencia in the interim during which there are no official commissioners of examination [receptores] [47] shall appoint therefor a suitable person.
18. Item: Our auditors in the exercise of civil and criminal jurisdiction shall receive no fees, or fines, or amercements, or anything under color of charges for sitting as assessors to the judges. The fines which they lay in cases where the law assigns any fine to the judge shall be for our exchequer and treasury, and for no other person. If the auditors take any of the aforesaid payments, they shall restore them fourfold.
19. Item: We command that when any governors, alcaldes-mayor, or other magistrates of the district of our said Audiencia, shall fail to execute the writs and decrees which in our name the Audiencia shall send them, without showing that they have just cause to desist from the execution thereof, then in such case the Audiencia may send officials whose fees shall be at the cost of those guilty of disobedience, which officials shall cause the process of the Audiencia to be executed, notwithstanding the provision that the Audiencia shall not send out special judges of investigation [pesquisidores].
20. Item: Our Audiencia shall maintain those who have letters-patent of nobility or privileges of gentility in the said letters-patent and privileges. In other cases where claims of gentle birth are put forward, they shall not try them, but remit them to the audiencias of these kingdoms which have jurisdiction in such matters.
21. Item: We command that our president and auditors shall have no authority to grant permission to go to the provinces of Peru.
22. Item: We ordain and command that all criminal cases which shall come for judgment, from all parts of their jurisdiction, before our said Audiencia, of whatsoever nature or importance they may be, shall be tried, decided, and determined as on examination and review before our said Audiencia. The sentence accordingly given shall be executed and carried into effect duly, without process of appeal, petition, or any other legal remedy or recourse.
23. Item: We ordain that no one shall appear at the prison of our Audiencia as an attorney, even though he have special power of attorney therefor, unless he have information that his client is confined in the prison, and shall swear that the judge who shall be trying the case is distrusted by him with just cause. In such case our auditors shall direct the judge to send them a signed transcript of the record, in order that, after the transcript has been submitted, if it shall appear that they should try the case, they may direct the transfer of the record to the Audiencia. In such case they shall grant the party a writ forbidding the judge to proceed further with the case; and the prisoner shall appear at his own expense, providing good security. Before the auditors have examined the record, they shall grant no writ of injunction, temporary or perpetual. If, however, the prisoner shall have appeared in person, and shall find that he has a right to a trial in the Audiencia, and to a writ of injunction against the judge who claims the right to try the case of to summon the parties to appear to the charges, let them give the writ. Meanwhile the prisoner shall be confined in the prison, and shall not be admitted to bail until by means of the record the nature of the charge is made evident in conformity with the laws of these realms which govern in such cases.
24. Item: We ordain and command that our president and auditors and the ordinary magistrates of our said Yndias, where there shall be a mint, shall have jurisdiction over all crimes of falsification of money committed by the moneyers although they be committed within the mint. Accordingly, they may call the case before them, unless the alcaldes of the said mint have anticipated them and begun to try it. Likewise, our said president and auditors, with respect to the mints in their jurisdiction, may appoint a person to report to the alcaldes and officials of the said mints.
25. Item: We command that on Saturday of every week two auditors in rotation, as the president shall assign them, shall inspect the prisons of the Audiencia and of the town where the Audiencia may be. There shall be present at the inspection the alcaldes, alguazils, and clerks of the prisons, and our fiscal attorney. At the inspection of the prison of the town or city the alcaldes-in-ordinary thereof shall be seated near the auditors.
26. Item: We command that the president and auditors of our Audiencia shall be present on every day that is not a holiday, in the court-rooms, to hear the statement of cases [relaciones]—three hours on the days when cases are not heard [no de audiencia] and four hours on days when hearings are given [de audiencia], according to the rules of our audiencias of Valladolid and Granada. He who is absent without sending a sufficient excuse shall be fined half his pay for that day, by the person whom the president shall appoint, whose report in the matter shall receive faith and credit, so that no auditor shall hold or try the said cases in his own house without being joined with all the others, as has been said with regard to the said Audiencia, to hear and determine pleas and matters brought before it.
27. Item: No auditor shall sit when a suit is begun that will affect him, his sons, fathers, sons-in-law, or brothers, or when he shall be challenged. As regards the penalty for challenging our president and auditors, the ordinances of Madrid shall be followed, the fine contained therein being doubled.
28. Item: Our president and auditors shall have no authority to bring before our Audiencia in the first instance any suit of their own, of their wives, or of their children. The said suits shall be tried by the alcaldes-in-ordinary, and shall come on appeal before our council of the Yndias if the case involves a thousand pesos or upwards. If the other party to the suit desires to appeal to our Audiencia and not to the council, he may do so; but the auditor, his wife, and his children shall have no such right of choice.
29. Further: The said auditors shall not appear for others in the said Audiencia or in any other, nor shall they undertake to arbitrate cases that may come before them, except that cases already begun may be submitted to all the auditors of the Audiencia for arbitration, and except where our permission may be given—under penalty of being suspended from the Audiencia for thirty days and losing salary for two months.
30. Our said president and auditors shall have no share with an advocate or commissioner [receptor] in his fees or salary. Nor shall they have the right to receive anything but food from any corporation or individual, or other person, who shall have been interested in a suit within a year previous, or who shall expect to be so interested, and the same as to their wives and children—under the penalty for forswearing, besides loss of office, being rendered incapable of holding any other office, and being required to pay double for what they have taken. They shall take great care not to converse much or be very familiar with advocates or attorneys who are pleading cases.
31. Item: We command that our president and auditors shall not be engaged in military expeditions, or expeditions of discovery, without my express command. They shall have no income-bearing estates [granjerias] either in cattle or in arable land, or in mines. They shall carry on no mercantile business by themselves, or in partnership, or through intermediaries; nor shall they avail themselves of the services of Indians in procuring water or wood or grass, or for other purposes on pain of being deprived of their offices.
32. Item: There shall be appointed to no position as corregidor or other officer of justice the son, brother, father-in-law, son-in-law, or brother-in-law of any president, auditor, or fiscal of our audiencias; and if any one shall be so appointed he shall not perform the duties of the office, under a penalty of a thousand pesos of gold for our treasury.
33. Item: We command that when any person desires to bring any suit or action against any of our auditors he may do so before our said Audiencia, or before the alcaldes-in-ordinary, and he may appeal from the said alcaldes to the said Audiencia.
34. Item: We ordain that when any auditor is offered as a witness the Audiencia shall appoint a magistrate, in order that the rights of the parties may not be lost for want of evidence; and they shall give direction that he is to give his testimony, unless it shall appear that he is offered as a witness maliciously to prevent him from acting as judge in the case.
35. Item: We command that an auditor who goes on a tour of inspection shall receive no more fees than are ordained and commanded to be given him, and shall accept nothing from Indians or Spaniards except food, on penalty of repaying it fourfold.
36. Item: We command that our president of the said Audiencia shall try criminal charges against the auditors thereof jointly with the alcaldes-in-ordinary, notwithstanding the ordinance to the contrary.
37. Further, in case of inability of the president of the said Audiencia of such nature that he cannot carry on the functions of government, the Audiencia itself shall assume the government and do all that he had authority to do—the senior auditor filling the office of president, and taking charge of the other matters committed to the president until we make provision in some other manner.
38. Item: We command that our said president shall not have authority to give permission to the auditors of the said Audiencia to come to these realms without our express command.
Affairs of government
39. Item: We command that in our said Audiencia there shall be a record for affairs of government, in which our auditors shall register the votes that they give on affairs of government.
40. Item: We command that our president of our Audiencia shall send once a year to our Council of the Yndias an extended and detailed report, attested by his signature, of the salaries, payments, fees, and allowances paid in this territory from our royal treasury to all persons whatsoever, and shall state how much was paid to each, and for what reason. And he shall give a list of the corregidorships, stating in it to whom the appointment is given by our warrant [cedula], and to whom by order of our president and Audiencia, and for what reason; and he shall report on the qualifications and merits of each person, the amount of fees that each one receives, the amount of salaries in each corregidor's district, and the persons appointed in each district, and their qualifications. He shall also state the nature of their service, and how long it is since they were appointed to the said offices. The same reports shall be made by our fiscal and our officials of the royal treasury.
41. Item: We desire that one of our auditors, each in his turn, shall make a visit of inspection once a year to the villages of the district of the said Audiencia, and to the inns and, apothecaries' shops, seeing to it that the inns shall have fixed lists of rates. The medicines and other things in the apothecaries' shops which he discovers to be spoiled he shall pour out and not permit to be sold. On the same visit to the provinces of his district he shall inform himself as to the nature of the soil, the amount of the population, and the best means of supporting the churches and monasteries required. He shall observe what public buildings arc needed for the good of the towns and the better traveling of the roads. He shall find out whether the natives perform the sacrifices and commit the idolatries to which they are accustomed, how the corregidors perform their duties, and whether the slaves that go to the mines are instructed in doctrine as they ought to be. He shall ascertain whether the Indians support themselves, or whether they are made slaves, contrary to that which is ordained. And he shall inform himself in a compendious manner with regard to everything else requiring his attention. The said auditor shall have warrant to attend to matters in which delay would be dangerous, or which are of such a nature that they do not require greater deliberation. He shall remit to the Audiencia the other cases to which he is not obliged to attend. For the acts aforesaid shall be given to the auditor the warrant of the decree dealing with inspections.
42. Item: We command that our said president shall grant no fee, office, corregidorship, or other source of profit by which means of support may be gained, to any man who has Indians in encomiendas.
43. Item: Our said president and auditors shall suffer no merchants to set upon their wares prices higher than those by us ordained and commanded.
44. Further: Whensoever the citizens and inhabitants of the district of our Audiencia shall be summoned by the said Audiencia they shall obey the summons in peace and war, as by our president and auditors shall be commanded; and they shall do and fulfil all that on our behalf they say and command, and they shall give them all aid and comfort which they desire—under penalty of infamy, and the other penalties incurred by vassals disobedient to their king and lord.
45. Item: Any person who desires to petition us for any favor for services not performed in our Yndias shall first make his declaration before the Audiencia in whose district he may be, and the Audiencia shall make an official report of the services performed, and of his character. This report, folded and sealed, with their opinion at the foot thereof, shall be sent in duplicate to our council, without being shown to the person interested. And if the person interested desires to make a report for himself, they shall receive and transmit it.
46. Item: We command that in each and every case when any towns or individuals of their district appear before our Audiencia to petition for license to make repartimientos, the Audiencia shall grant the license which seems to them due, but only so far as concerns suits pending before the said Audiencia, and for public works for which no other maintenance is provided, and for no other purpose. The said license in the aforesaid cases shall be granted, if such towns have no endowments [propios].
47. Item: When any one shall petition for an assignment of any town lots or agricultural lands in the city or town where our Audiencia shall reside, then after conference in the cabildo, notice of the judgment of the cabildo shall be given to our president, by means of two regidors deputed therefor. And when they have made their examination, that upon which the president together with the two deputies shall determine, shall be carried out, being attested by all in the presence of the clerk of the cabildo, that he may record it in the council-book. Petitions for assignments of lands and waters for machinery shall be presented before the president, who shall transmit them to the said cabildo that they may confer thereon. They shall return them by a regidor, who shall report their conclusions, so that after examination the president may determine that which is fitting.
48. Item: Our said president and auditors shall cause to be made a record-book in which shall be entered the names of citizens of this territory, the service performed by each one, and the reward received by him, either in money, by way of fees, or in other ways, or by appointment, and to what offices. The said record shall be kept with great care, together with the record of votes, so that when any person makes a statement of services before them they may report their opinions in his case.
49. Item: We command that our Audiencia, at the end of the two months during which the two regidors appointed as inspectors of weights and measures have served, shall receive from them an account of their service.
50. Item: We command that our Audiencia shall have authority to order the execution of the ordinances made for the provinces under their jurisdiction, after being filed by them, and during the time while they are being sent to us for confirmation.
51. Item: That an auditor every year by turns, beginning with the most recently appointed, shall audit the accounts rendered by the cabildo of the city where our Audiencia shall reside.
52. Further: When the president and auditors shall be about to allot the lands, waters, watering-places for cattle, and pastures of any town, city, or village, among the persons who are to be settled therein, they shall do so with the counsel of the cabildos thereof, taking into consideration that in such allotments the regidors shall be preferred, provided they have no other allotments of arable lands or dwelling-lots. Let such allotments be made without prejudice to the Indians, retaining for them their arable lands, gardens, and pastures, so that all shall be cared for.
53. Item: We command that our president and auditors shall appoint no administrative or notarial official, or fill any other permanent office, even if it be vacant by resignation; nor shall they make such appointments in the interim before we appoint.
Ecclesiastical cases
54. Item: We ordain and command that our auditors of our Audiencia, in cases of unlawful procedure on the part of ecclesiastical judges [48] shall follow the procedure by and according to which in these our realms the audiencias of Valladolid and Granada proceed, without extending it further than is practised in our said audiencias.
55. Item: We command that our said Audiencia, governors, and other magistrates of their district shall ascertain and know if in those regions there are any persons who have letters of authorization or apostolic bulls to take possession of the property left by the archbishops who may die in those regions, or of the vacant bishoprics. When it is known who has them, let him cause them to be brought accordingly. First of all, let them appeal from such persons before his Holiness, nor give nor allow opportunity for them to be used in any manner, nor for possession to be taken of the said property or vacant bishoprics. They shall not do, or permit to be done, any other acts in prejudice of the rights and usages with regard to bishoprics to which we are entitled with respect to this matter, or in prejudice of the immemorial custom that possession shall not be taken. And such authorizations and bulls thus obtained you will send in their entirety, in the first ships, to be presented before the members of our Council of the Yndias, together with the appeals which shall have been taken with regard to the matter.
56. Item: When there shall be doubt with regard to the signification of anything in the contents of an ecclesiastical appointment, or as to the requisite collation at the hands of the bishops of benefices for the clergy whom we present, let the president of the Audiencia decide it.
57. And when in our said Audiencia the aid of the secular arm is asked for by the prelates and ecclesiastical judges, let them plead by way of petition and not of demand.
58. Item: Our Audiencia and the other magistrates of our said district shall see to it that in the towns which are not populated by Spaniards no bulls shall be published. They shall not permit Indians to be compelled to hear the preaching of them, or to receive them. Those which are published from the pulpit shall be published in the Spanish language. We also give the same command to the commissaries of the holy crusade. [49]
Royal treasury and its officials
59. Item: We also ordain that the suits of our royal treasury be examined and decided before any others that shall be before the Audiencia; and that our fiscal shall take care to prosecute them, and to report to us what is done therein.
60. Item: Our president with two auditors at the beginning of each year shall audit the reports of the officials in charge of our royal treasury for the previous year; and the said officials shall finish them within the months of January and February. When they are completed they shall send a transcript thereof to our Council of the Yndias. We also command that at the end of the said two months, if the said accounts are not completed, the officials of our royal treasury shall receive no salary until they finish them; and each of the auditors who shall thus be ready to receive the said accounts shall have as a fee twenty-five thousand maravedis.
61. Item: The judicial settlement [remate] made with regard to auctions by our royal treasury must not be made without the consent of the majority of those appointed therefor, even when the auditor who shall be present desires it. Further, at such sales and settlements shall be present our fiscal with said officials, who shall sell nothing in his absence.
62. Item: We command that at the time when the auditing of the accounts of our royal exchequer by our president and auditors shall begin, in conformity with the decree given thereon, they shall go first of all to our royal treasury and weigh and count the gold and silver and the other things therein. They shall make a record thereof, and immediately begin the accounts; and when they are completed the balance shall be collected within the time required by the said decree, and shall be placed in the chest of the three keys, orders being given that the balance of the preceding year shall not be made up by the collections received during the auditing of the accounts.
63. Item: When the officials of our royal exchequer shall have need of absenting themselves from the city where they reside, they shall not have authority to do so without license from our president, who shall give it for a short time, to a destination within those regions, and no more. There shall be designated, in the place of the official on leave, a person suitable therefor in the judgment of the said president. And if the said official absents himself in any other manner he shall lose his position.
64. Further: At the time of the making up of the accounts of the tithes, for distribution according to the ecclesiastical appointments, there shall be present thereat an auditor.
65. Item: We command that no salary be paid from our royal exchequer, or from fines, to the judges in cases of residencia, or to criminal judges [pesquisidores] commissioned by our Audiencia.
66. Item: We desire that there shall be a record of all the suits and transactions of our royal exchequer; and that every Thursday in each week (and if that shall be a holiday, on the day before), after dinner, the senior auditor with our fiscal and the officials of our exchequer, and one of the clerks thereof, shall discuss article by article the said suits and transactions by means of the said record, considering the state in which they are and how the decisions reached at previous meetings have been carried out.
67. Item: We command that our president and auditors shall have no authority to direct the payment of any money from our royal exchequer, or to expend anything from it, without more express license and command—except when cases occur in which the delay required to submit them to us for consultation would cause irreparable injury. In such case, when it shall seem advisable to our president and auditors and the officials of our royal exchequer they shall expend therefrom that which they all jointly shall regard as requisite, and shall make expenditures in no other manner. The warrant which they shall give for this shall be signed by them all, on penalty that what is expended contrary to the tenor hereof shall be paid from their own property. They shall immediately report the amount thereof, the purpose and manner of the expenditure, and the necessity for which it shall have been made.
Fines paid into the royal treasury
68. Item: We command that our treasurer shall receive all fines, in whatever manner they shall be applied by our auditors, whether to our treasury, or to court rooms, or to other expenses. Our alguazil-mayor shall take charge of the enforcement of them. The amounts so received by the said treasurer shall be immediately brought before the officials of our royal exchequer, who shall deposit them in the chest of the three keys, and enter in a record everything thus collected from the said sentences. They shall keep separate the fines for the treasury and those for court rooms; and our said president and auditors shall supervise the care thereof taken by the treasurer, who shall at the end of each year, on account of the said sentences [condenaciones] and the receipt thereof, send to our Council of the Yndias a condensed report thereof, attested by his signature and that of the officials, and a certificate from the clerks of the said Audiencia as to the sentences given.
69. Item: There shall be in the possession of our president a record in which every clerk shall enter in his presence, every week, the sentences passed in presence of the said clerk, on pain of being obliged to pay them from his own property. When the president and auditors shall have need of anything, they shall give a warrant for it on our treasurer on account of those moneys collected under judicial sentences passed for similar objects.
Probate matters
70. Further: We command that our Audiencia shall audit the accounts of the administrators of the estates of deceased persons, and shall see if they have observed the ordinances and decrees given with regard thereto. These accounts shall be audited in the month of January, on pain of loss of salary for two months, to be taken from that due the first third of the year, unless they show that they have audited the said accounts in the said month. We command further that, for the good administration of the estates of deceased persons, our said Audiencia shall appoint each year an auditor who shall be judge of such administration, and may try the matter as if the whole Audiencia were to try it.
Indians, and matters relating to them
71. Item: Our said president and auditors shall always take great care to be informed of the crimes and abuses which shall be committed, or have been committed, against the Indians who shall be under our royal crown, or against those granted in encomiendas to other persons by the governors or private persons. The said president and auditors shall make inquiry as to the manner in which the ordinances and instructions given in regard to this matter have been and are observed, punishing the guilty with all rigor, and providing means to bring it about that the said Indians shall be better treated and shall be instructed in our holy Catholic faith, regarding them as our free vassals. This must be their chief care; it is that for which we have chiefly to hold them accountable, and that in which they are chiefly called on to serve us.
72. We command that our said president and auditors shall take great care to give no opportunity that, in the cases in which Indians shall be plaintiffs or defendants, orders shall be granted on ex parte motions [procesos ordinarios] or that the suits shall be long continued without prompt decision. Our said auditors shall preserve the usages and customs of the Indians when they are not plainly unjust, and shall take care that the same are preserved by the inferior judges.
73. Let our said Audiencia and the bishop see to it that in every village there shall be a person appointed to give instruction in doctrine to the Indians and blacks who serve without going into the field, every day one hour; and to those who go into the field, on Sundays and feast-days. And let the Audiencia and the bishop compel their lord to bid them go and learn the doctrine.
74. Item: Let no judge of first instance in the district o our said Audiencia meddle with depriving the caciques [50] of their caciquedoms for accusations brought before the said judge, on pain of removal from office and a fine of fifty thousand milreis to our treasury. Let the decision of the case in dispute be reserved for our Audiencia, for the auditor who shall next inspect the said villages.
75. Item: When a suit is brought against Indians, the plaintiff may make his complaint before our Audiencia, in whose district they are; and an order shall there be given the parties that within three months, which may be extended to not more than six, each one shall present his testimony. After the testimony of every twelve witnesses is taken, the report shall be sent, folded and sealed, without other publication or formal conclusion of the preliminary proceedings, to our council, that it may decree justice. And our auditors, before they send the record, shall cause the parties to be cited to come and appear before the said council in pursuance of the said action, within the term assigned them, with warning that if they do not appear, the case will be decided in their absence.
76. Item: We command that when anyone by his own authority shall deprive another of the possession of the Indians whom he shall have, our Audiencia, prohibiting the said violence and doing justice, shall restore matters to the state in which they were before the act was done.
77. Item: Let the president and auditors not permit any cacique or chief to come to this country from those regions without our license.
78. Further: Our auditors, on two days in the week and Saturdays, if they have no suits of poor persons before them, shall hear cases of Indians against Indians. We command that the auditor who shall go on a journey of inspection through the country shall have power to try cases with regard to the liberty of the Indians, making report before the Audiencia. Likewise the auditor who shall inspect the prison of the Indians shall examine the witnesses by personal examination, and not by report.
79. Item: Our president and auditors shall appoint a judge to allot the waters to the natives for the period during which need thereof may continue, whenever it may be necessary to do so, and no one shall be permitted to molest them therein. The said judge shall come to the Audiencia to give an account of what he shall have done, and he must not come at the cost of the Indians. Our said auditors shall take great care not to send a notary to take testimony [receptor] for light causes, to the Indians' villages or elsewhere, except in a matter of importance, and one in which there is great advantage in sending them.
Fiscal
80. Item: We command that our fiscal attorney of the said Audiencia shall have no authority to appear as an advocate in any case; and that he shall give his whole attention to what concerns us, our exchequer [camara] and treasury [fisco]; and he shall swear accordingly before our president and auditors. He shall serve in person, except when he shall absent himself for some just cause for a short time, with the permission of our president, and with his authorization for cases prosecuted at a distance from the seat of our said Audiencia. Our said fiscal shall take great care to see whether the decrees given and the ordinances made are carried out, especially those dealing with the instruction, conversion, kind treatment, and protection of the Indians.
81. Item: We command that our said fiscal shall sit on the right-hand bench, taking precedence of all the advocates; and at the inspection of the royal prison he shall sit in the court-room behind the auditors; and the same at the inspection of the city prison, the judges of first instance taking precedence of him; and in all other cases he shall take the best place after the auditors and after the alguazil-mayor of the Audiencia.
82. Item: We command that our said fiscal shall take care to assist and favor poor Indians in the suits they are carrying on, and to see to it on their behalf that they are not oppressed, maltreated, or wronged—acting in conformity with our laws and ordinances.
83. Item: We ordain and command that our said fiscal shall assume the charge and conduct of the cases concerning the execution of our justice, when appeal shall be taken from the corregidors or other judges.
84. Further: We command that our said fiscal shall bring no charges without waiting for a complainant, except when the fact is notorious, or when judicial inquiry has been made.
85. Item: It shall be his duty to concern himself, and he shall concern himself, with notorious immorality, and with the defense of the royal authority; and to this end he shall perform all necessary legal acts.
Alguazil-mayor and his deputies
86. Item: We command that our alguazil-mayor of our Audiencia shall be maintained in all the honors and dignities which are observed in the case of the alguazils-mayor of our audiencias of Valladolid and Granada, and that he shall take the place and seat taken by our said alguazils-mayor.
87. Item: We command that our said alguazil-mayor shall not farm out his office; and that he and his deputies shall observe the laws that deal therewith, and the oath that they take when admitted to office.
88. Item: We command that our said alguazil-mayor shall have authority to remove from office his deputies and jailers whenever he sees fit, and that he shall have authority to appoint and shall appoint others again, first presenting them before the Audiencia.
89. Item: We ordain and command that when our Audiencia shall depute any judge or commissioner of inspection [visitador] who shall need to take an alguazil, he shall take the deputy designated by our alguazil-mayor therefor, and shall employ him and no other—unless in some special case the contrary shall be approved by our Audiencia, for just cause.
90. Item: We command that our alguazil-mayor or his deputies, whensoever they shall be directed to arrest any person, shall do so and act accordingly without delay, concealment, or negligence—under a penalty of forty pesos for every occasion on which they do the contrary, in addition to the damage and concern of the parties, and of that which has been adjudged and decreed.
91. Item: We command that if a malefactor be found committing a crime they may and shall arrest him without a warrant. If it shall be in the day-time, they shall take him immediately before the Audiencia stating the cause of his arrest; if at night, they shall put him in jail, and without delay on the following morning shall produce him before the Audiencia, as aforesaid. They shall not venture to take any property from the person whom they arrest, on pain of being required to repay double what they have taken, for our treasury.
92. Item: We command that our said alguazil-mayor shall not tolerate forbidden games of chance or notorious immoralities; and if in the performance of his duty he shall meet with resistance, let him immediately come and declare the same to the said Audiencia, and on Saturday of each week let him come and give an account and review of what he has thus done, under penalty of being required to pay four pesos for the poor of the prison in each case.
93 Item: The said alguazil-mayor shall present before the Audiencia the two alguazils whom he shall appoint for himself, that they may be approved by us; and they shall not perform their functions until, after being thus presented before the said Audiencia, they shall swear in due form that they will well and faithfully perform their duties, observing the laws, decrees, and ordinances dealing with the same; and that they will not promise or give, and have not promised or given, for the sake of those offices, or for the profits thereof, or for anything else, the services of themselves or their men; and that from the income and profits of the said offices they have not given or promised anything. The same oath shall be required of the alguazil-mayor who shall present them, and likewise from the substitute alguazils—under the penalty prescribed for forswearing, and of dismissal from office.
94. Item: We command that they shall not take gifts or gratifications from the prisoners or from others for them, or for this cause lighten imprisonments or release prisoners. And they shall not make arrests without warrant, except in flagrante delicto, on pain of dismissal from office, of, being incapacitated for future employment, and of being required to repay fourfold what they have thus taken, to our exchequer.
95. Item: Our said alguazil-mayor shall appoint no jailer without first presenting him before our Audiencia, that it may be seen whether he is fit and able, and that he may be approved by our president and auditors—on pain of losing the right to appoint for a year. And the appointment shall be made by my said president and auditors.
96. Item: We command that he shall have no authority to take fees for executions without the previous payment of the party in interest, under the penalty prescribed for forswearing, and the other penalties contained in the laws and ordinances dealing herewith.
97. Item: Our said alguazil-mayor and his deputies shall be present at the sittings of the Audiencia, under a penalty of two pesos for every day of absence, for the poor of the prison.
98. Item: Our said alguazil-mayor or his deputies shall be obliged to make their rounds by night, on pain of being condemned to pay the damages resulting from their fault or negligence, and four pesos for the court-room of our Audiencia, for every night when they fail to do their duty.
99. Item: We command our said alguazil-mayor to be present at the inspections of the prisons of our said Audiencia, under a penalty of two pesos of gold for every time of failure, for the poor thereof.
100. Item: We command them to do and execute that which is commanded in the ordinances made or to be made for the good administration and government of the city or town where our Audiencia sits.
101. Item: They shall not take weapons from those who carry them at nightfall or after candle-light, or from those who rise early to go to their labors and tillage.
102. Item: They shall take no fees for the executions which it shall be their duty to levy, or which they shall levy, on the property or goods adjudged, or which shall be adjudged, to our treasury.
103. Item: We command them not to take the money of those who are found gambling, except when they exact from them the legal fine, which they have authority to put in safe-keeping when they find them engaged in the said gambling.
104. Further: Let him take care to go by nigh and day through the public places to prevent disturbances and quarrels, on pain of suspension from his offices.
105. Item: Let him take no fees for executions more than once for one debt, even when the party at whose instance the execution is made allows delay or continuance to the person against whose goods the said execution is made—on pain of being compelled to pay the excess of the fees fourfold, to our exchequer.
Clerks of the Audiencia
107. We ordain and command that the clerks [escribanos] of our Audiencia shall have no authority to appoint deputy clerks, administrative or judicial, in the cities, towns, and villages of the district of the said Audiencia, nor shall they employ therein such deputies.
108. Item: The clerks of the said Audiencia shall be appointed by us and by no other person; and in all matters relating to the examination of witnesses they shall follow the rules of the audiencias of these our realms.
109. [Amount of fees for clerks, seal, and register must be endorsed on all documents. Penalty: two pesos to the court-room.]
110. [Official reporter's [relator] fees must be endorsed and shown to party. Penalty: loss thereof.]
111. [Clerks to take testimony in person. Regulations as to substitutes acting when clerks are prevented, and as to collection of fees.]
112. [Clerks' and notaries' records to be annually inspected by an auditor.]
113. The said clerks shall enter in one order of court all the official positions which are provided for a village [i. e., of Indians], and on account thereof they shall receive no excessive fees. Their fees shall be paid by the superintendents [calpiscas] of the villages.
114. Item: No Indians shall be granted in encomiendas by repartimiento to the clerks of our said Audiencia. If they are so granted, the said clerks shall have no authority to keep them.
115-120. [Section 115 provides that appeals from the decision of the inspector of weights and measures of the city where the Audiencia sits are to be given preference. Sections 116-120 contain provisions for promptitude and accuracy in the business of recording—among others, that the pages of the record of a case shall run with serial numbers, and that notice of the number of pages and parts of pages be given to the parties. The penalty for violation of each of these sections is two pesos for the court-room of the Audiencia.]
121. [The registers must be marked with a cross at the end of each year, under a penalty of thirty pesos to the exchequer.]
122. [If there is a supply of clerks, complaints must not be made before a clerk who is brother or cousin to the plaintiff.]
123. The said clerks shall not ask or accept fees for the ecclesiastical cases conducted before the said Audiencia at the suit of the corregidors or judges of residencia, with regard to matters relating to the defence of the royal authority; or for the proceedings transacted before the said officers and the decisions rendered with regard thereto—under penalty of a fourfold fine to our exchequer; and we command that our fiscal attorney shall attend such hearings with all diligence.
124. Further: They shall not write with abbreviations, putting "A." for "Alonso" or "c" for "ciento," under a penalty of thirty pesos for our exchequer.
125-138. [These sections direct accuracy and promptitude in various kinds of cases, with penalties for negligence. They also give directions for avoiding extortionate or illegal fees. Fiscal cases are exempt, as are cases involving any royal rights. The penalties are two pesos for the court-room, for minor negligences; heavier fines for more important ones; damages to the party injured; compensation to the exchequer; a fourfold fine to the exchequer for wrongful fees; suspension or removal from office. The most important section is the following:]
131. The clerks and relators of the said Audiencia, in cases civil and criminal, shall receive the fees belonging to them, in conformity with the fee-list; and that this may be attended to and fulfilled accordingly, we command that henceforth the aforesaid and each of them shall enter on the record and documents in the case the fees that they are to receive from the parties, or from their attorneys or agents, both for the examination of the record of proceedings and the rest, stating specifically the amount that they are to receive and the items of charge. This they shall attest with their signatures, jointly with the party in interest, or his attorney or agent, who is to pay the said fees, in such manner that both shall attest that which they are thus to receive for the said record of proceedings and pleadings. If he who pays the said fees shall not be able to sign his name, let another sign for him. When the case or affair is finished, the said clerk or relator, and the party, or his attorney or agent, shall swear that they have not accepted or given more fees for that case or affair than that which is there entered and signed; and that, if they shall accept or give more, they will enter and sign it as has been said. The penalty of the first offense is a requirement to repay fourfold to our exchequer that which is taken otherwise than as herein ordained; for the second, the same penalty and dismissal from office; and if the party or the attorney shall give information that he has given moneys to the said clerk, and they shall not be endorsed as aforesaid, let him be believed on his oath as to the amount that he shall have given.
139. [Clerks and commissioners are to undertake no official investigations without signed warrant from the court. Penalty: two years' suspension and a hundred pesos for the first offense, and dismissal for the second.]
140. [More than one demand [peticion] in appeals is not to be accepted from either party. Penalty: two pesos.]
141. [Abbreviations or numbers in dates are not permitted, for fear of fraud. Penalty: damages of the parties and twenty pesos for the exchequer and court-rooms.]
142. [Memoranda of testimony in criminal cases must be given to the fiscal for correction. Penalty: four pesos.]
143. [Clerks in all depositions are to put questions as to age and the like, to avoid fraud. Penalty: two pesos to the court room.]
144. They shall accept no food, fowls, or other things in satisfaction of their fees, on pain of being required to repay fourfold what they thus accept, to our exchequer.
145. [No fees are to be accepted from a defendant who swears on preliminary examination that he owes nothing, in case the plaintiff does not prove his case on judicial examination. In such case, the plaintiff is to pay the fees.]
146. [Copies of decisions are to be promptly given to the party requesting it. Penalty: two pesos to the court-room.]
147. [Notice of fines and penalties must be sent to the fiscal weekly. Penalty: two pesos to the court-room.]
148. [Evidence of poor suitors is to be taken with care and promptitude.]
149. [Notifications of hearings in cases concerning small amounts are to be sent to the parties. Penalty: two pesos to the court-room.]
150. [Personal presence is required at examinations in criminal cases and the execution of sentences. Penalty: suspension from office.]
151. [Lists of fees allowed by law must be posted in their offices, as well as in the public hall of the Audiencia. Penalty: five pesos to the poor of the prison.]
152. [No fees may be taken for keeping or looking for records. Penalty: fourfold to the royal exchequer.]
153. [Copies of penalties and memoranda of fiscal cases must be sent to the fiscal every week. Penalty: six pesos to the royal exchequer.]
154. [Examinations are to be dated by the time of examination, and not by that of taking the oath. Penalty: four pesos to the exchequer.]
155. In inquisitions and examinations which they shall make they shall put thirty lines on a page, and in every line ten parts [i.e.], words divided by spaces]; and they shall write a good hand and shall place at the foot of each inquisition or examination the fees to be received therefor, under a penalty of eight pesos to our exchequer for a violation.
156. [Fees for single documents are not to be augmented because other documents are incorporated within them. Penalty: fourfold repayment to the exchequer.]
157. [Cases affecting the treasury, in which no party appears therefor, are to be brought to the attention of the fiscal.]
158. [Fees are not to be charged to poor suitors; if the poor suitor's opponent is condemned in costs, the fees are to be paid by the poor suitor and added to the costs.]
159. [Fees for permitting an examination of records are not to be charged, unless the examination is made by the party or his representative. Fourfold penalty to the exchequer.]
160. [Copies of essential documents are to be included in the record of a case without extra fees. Penalty: twenty pesos to the court-room of our Audiencia.]
161. [Unsigned interrogatories are not to be accepted. Questions must be put only by the counselor of the Audiencia.]
162. [Cases requiring to be divided by assignment among various clerks shall not be accepted without immediate reference to the official whose duty it is to assign cases. Penalty: loss of cases for two months, and loss of the case in question.]
163. [Records and documents must not be committed to the care of any but attorneys or counselors, and to them only on their giving a receipt. Fines are imposed for delay in returning them.]
164. [No record is to be kept of a case of twenty pesos or less, and no fee of more than half a peso from each party is to be taken in such case. Fourfold penalty to the exchequer.]
165. [No fees are to be taken for a view of the records, in cases appealed from ecclesiastical courts, on the ground of violence to law [fuerza], if the case is referred back to those courts. Penalty: fourfold fine to the exchequer.]
166. [Fees are to be charged only for the record of such judicial acts as are actually before them, although the whole record is transmitted therewith. Previous penalty.]
167. [Charges of violation of their oath are to be preferred by the fiscal in the event of failure to attend on him with the weekly fines, or of making excessive charges.]
168. [Clerks must be present half an hour before the court convenes; and petitions must be handed in before the president and auditors take their seats in court. Penalty: two pesos of gold paid to the court-room.]
169. [They must affirm with their signatures the sentences given after review by the president and auditors, and written in a book kept in the president's room, before the third day next following. This is done so that the sentences may be known, and to avoid fraud, as the sentences are pronounced after review. Penalty: double the amount in question to the exchequer.]
170. [They must write the decisions of the court by their own hands, especially in affairs of importance, as secrets would not be safe with minor officials. Penalty: six pesos to the court-room.]
171. [The clerks of the said Audiencia or of the criminal court shall levy no fees on the cases pleaded before the said president, auditors and alcaldes, to which the fiscal attorneys are a party, even if the decision is for the said fiscals, with judgment of costs against the other party; and they shall not put them on the record, nor collect them from the condemned persons. P.: forty pesos for the chamber of this Audiencia, and payment of twice the amount collected to the exchequer.]
Official reporters
172-202. [These sections give directions with regard to the duties and emoluments of the reporters [relatores], as minute and precise as those for the clerks, with similar penalties. The following sections may be specially noticed:]
176. [Relators are not to ask for cases, but to await the assignment of the bailiffs [porteros].]
179. [Relators are not to buy or sell cases from one another, on pain of dismissal from office.]
189. [The words of witnesses in criminal cases are not to be reported at the public statement of the case, for they are to be seen by the auditors alone, without being entrusted to anyone else. Penalty: thirty pesos to the exchequer.]
192. [Relators and other officers are to live near the Audiencia.]
195. [No gifts may be accepted. Penalty: double the amount to the exchequer, condemnation as forsworn, and loss of office.]
Assigners of cases
203. [Fees of the official who distributes the cases [repartidor] among the clerks are to be two tomines for each case, [51] except from poor suitors and others exempt.]
Taxing of fees and costs
204. [Records of cases transferred to the council of the Yndias are to have their fees taxed by a special officer.]
205. [In case of complaint against the taxation, the auditor for the week shall decide.]
Advocates
206-214. [These sections give minute directions as to procedure, fixing the time and manner in which documents are to be presented, filed, and demanded, regulating the manner of taxing advocates' fees, and enumerating certain duties of advocates in the conduct of their cases.]
215. Counsel shall swear that they will not give their assistance in unjust causes, or counsel the parties to injustice; and that as soon as they discover that their client is not suing for justice they will abandon the case. If it shall happen that through the negligence or ignorance of the counsel, deducible from the record, the party whom he assists shall lose his right, we command that the said counsel be held to pay his client the damages resulting, together with the costs; and the judge before whom the case shall be pending shall oblige him to pay without delay.
216. [Counsel shall not dare to abandon a case once undertaken, except because of injustice. Penalty: loss of fees and damages to the client.]
217. [Counsel is not to repeat allegations in documents; documents are to be signed by known counsel; two pleas only are to be accepted.]
218. No counsel shall dare to make a bargain with his client for a part of the property to which he lays claim; [52] and, if he shall do so, he shall have no authority to act in the said office for him or for any other.
219. [Advocates are to be examined and approved by the president and auditors, and entered on the list of advocates; no one without a degree may appear in a court, except the party in his own behalf. Penalties graduated.]
220. [Advocates must use care and diligence in behalf of their clients, and conduct their cases honorably. Penalty: suspension, in the judgment of the court.]
221. Item: We ordain and command that the advocate or advocates shall, in cases of first instance and on appeal, pay the parties double the damage resulting from their malice, fault, negligence, or want of skill; and that justice be done promptly in this matter.
222. [Advocates must agree as to their fees before examining the documents of the parties.]
223. [Advocates who have pleaded on one side of a case may not plead later on the other side of the same case.]
224. Item: We command that the said advocates shall be obliged, at the beginning of the suit, to obtain from the party a complete report in writing of everything pertaining to his right—so that, when it shall be necessary to call for an account, if they have not, through the client's fault, done for him what they should, they may be able to prove the same, in order to take advantage thereof. This report they shall take, signed by the party in interest, or, if he cannot read, the person to whom the party shall entrust the duty.
225. [Advocates must not betray secrets, or advise both parties, and must swear to obey the laws—on pain of fines, and of being removed from the office of advocate.]
226. [Advocates are to take precedence in order of the seniority of their admission. Penalty: suspension for one year.]
227. [Irrelevant questions are forbidden. Penalty: ten pesos to court-room.]
228. They shall sign the powers of attorney of their clients; and shall not frame their interrogatories in the second instance of a case exactly as on the first hearing, or exactly opposite, under a penalty of six pesos to the court-room; and therewith shall cease the examination of the said powers and interrogatories required from our auditors, in conformity with the new laws and ordinances made by us.
229. [Bachelors may not plead or sit with the doctors and licentiates. Penalty: forty pesos to the court-room.]
230. [Clerks of advocates are not to charge clients fees. Penalty: double the fee, to the exchequer.]
Attorneys
231. [Attorneys must be examined and licensed by the court.]
232. [Attorneys and counselors must not agree to prosecute cases at their own expense. Penalty, fifty thousand maravedis.]
233. [The number of attorneys is to be fixed and usual.]
234. [Attorneys must enter no pleadings except for default, conclusion of preliminary process, and the like; and must sign their papers.]
235. [Attorneys must not retain money sent to pay fees and court costs, and must transmit documents to counsel within three days.]
236-241. [These articles deal with the conduct of attorneys in court, and the procedure necessary to institute actions.]
242. [Attorneys must be present to inspect the taxation of costs.]
243. [Petition for a decree is to be assigned to the next meeting of the Audiencia.]
244. Attorneys who ask for documents beyond what the interests of the parties require shall pay six pesos to the court-room, and be imprisoned at the judgment of the president and auditors. This provision shall be valid against all officials. |
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