JB_172_267.xml

Title: [1820. July 24. Rid yourselves of Ultramaria]

Description: 1820. July 24.

Rid yourselves of Ultramaria

Lett. 3. Appeals unendurable

probably intolerable, burthen, and cause of discontent, would be imposed upon all

classes of persons, without exception, in Spanish Ultramaria

That powers altogether arbitrary would, under the new state of things, be knowingly

and purposely allowed to Governors sent from Spain to any part of Spanish Ultramaria

and made removable at pleasure by order from Spain, is surely not to be supposed.

This supposition, then, being put aside,- cases there are, in which, for the purpose

of maintaining the dominion in question, the giving to functionaries of Government

sent by the ruling few in Spain to reside in Spanish America, the right of appeal

from the local judicatories could scarely fail of being really regarded as necessary

to the maintenance of the dominion in question. The cases, to which this observation

is more particularly applicable, are financial cases in

general, and certain penal cases.

To the finances in Spain, taxes imposed in Spanish Ultramaria would be regarded as

altogether void of promise, if, from the judicatories in Spanish Ultramaria, no such

appeal were allowed to any judicatory in Spain, in favour of a Collector or public

prosecutor, appointed and removable by Government in Spain.

The maintenance of the dominion would naturally be regarded as altogether precarious

if, on proscution for revolt, disobedience, declared disaffection, or declared

discontent, no appeal were allowed to be made in these cases from the Spanish

American judicatories, by a person prosecuting before them in behalf of the

Government in Spain.

Yet if any such appeals be allowed, note well the consequence. The practice of

receiving appeals, from any such distance, be the cause what it may, is an

inexhaustible source of injustice and oppression: oppression inevitable, boundless,

irremediable: oppression such as is incapable of being produced by any other means.

By the expence, unavoidably imposed on both parties, it

has the effect of a compleat denial of justice to all who are unable to provide for

that same expence: that is, to all the inhabitants of the territory, with the

exception of a comparatively small number.

By the vexation and delay, in

addition to the expence, it imposes a grievous burthen on the few who are not

absolutely incapable of sustaining it.

By its effect on the body of evidence belonging to each judicial suit, it gives a

prodigious chance in favour of misdecision

Letter 3. (Title of the Letter To the existence of the dominion, Appeals to Sapin

are indispensably necessary: to her Ultramarians they are a grievance unendurable.

Appeals, indispensable, yet unendurable.

JB_162_197.xml

Title: [1820 June 21 Emancipation Spanish]

Description: 1820 June 21

Emancipation Spanish

'.6. Creoles repugnant

Appeal

If disallowed altogether, then in ordinary cases, injustice in the several shapes just mentioned - injustice so far as liable to be produced by the right of appeal is prevented

But in this case, on this supposition, your rulers deprive themselves of one of the choice[?] /great/ fruits of dominion: and not only of a fruit of dominion, and at the same time of any means of what may be regarded as a necessary means of securing it

On this supposition, think in the first place what supposing it ever so valuable to you in respect of revenue, on the supposition of appeal, it would /might/ be worth to you on the supposition of no appeal. In a case /Take the case of a cause/ for the recovery of a mans contribution to a tax imposed in the provinces in question by your rulers in Spain for the benefit as they will say, of both countries. This they may say: but this the people of the province, if they do for the first moments will not long continue to believe. The Judge or Judges if they are taken from the people of any part / that or any other/ of what is now Spanish America will have the same feelings with the people of Spanish America: sooner or later they will so manage that the contribution shall not be made[?], and that the taxing law with every thing that belongs to it shall be inefficient and unproductive. So much for revenue cases

Take now the case of a political /a state/ offence striking, more immediaitely against government: meaning [...?] the dominion of Spain over Spanish America. A functionary, civil or military refuses or omitts to obey orders received from Spain. He is prosecuted for this in a judicatory in Spanish America. Forbid appeal the judicatory in question puts an end to the dominion in question whenever it pleases

JB_162_009.xml

Title: [[clxii. 9] 1820. July 24 Emancipation]

Description: [clxii. 9]

1820. July 24

Emancipation Spanish

Summary

III Appeals

1 In this way, in so far as success depends upon witnesses if the bad side of the cause is the only side that can afford to send material or the most material witnesses, or if it can send witnesses witnessess it may even without corruption make sure of a triumph over the good side./mor witnesses than the other then, those, even without need of corruption may the bad side make sure of its triumph over the good side./

3. Such is the effect of appeal on the supposition that witnesses are received along with it, but only on condition of their being voluntary ones: that is in some way or other interested ones. Will the case be bettered if they may be forced? If there exists any where a power of forcing individuals in the character of witnesses to repair from Spanish America to Spain, those by whom the power is possessed, possess in this way a power of inflicting banishment on any or all such individuals as stand comprised within the range of this same power of transmitting evidence.

In a case such as the above suppose the right of appeal given to a public prosecutor serving in Spanish America by appointment from Spain. The power of banishing Spanish Americans to Spain and thus ruining whoever it may be to his pleasure to ruin, is thus lodged in his hands. He institutes a groundless prosecution, a decision is given against him, he appeals from it. On the other hand suppose it (the right of appeal) given to and exercised by the Defendant: In a financial case, as above, what is to be his condition pending the Appeal? If Enlarged simply, then, if guilty he goes off with his effects. If enlarged no otherwise than on finding sponsors for his appearance before the judicatory appealed from, this Spanish American is, if unable to find such security kept in imprisonment even though innocent, till the definitive decision in Spain is pronounced. And in this case how is his cause to go on in Spain, he being thus incapacitated from attending to it?

So likewise in case of prosecution for a state offence, as above.

In each case, and on each side of the case, think of the consequences if the appeal is allowed to be made before the final judgment - made (that is to say) from an interlocutory (as it is called) or say an intermediate judgment: think of the consequence if in such a case appeal is allowed: think of the consequence if it is not allowed. What a door opened to injustice in both cases, to oppression on one side /part/ to evasion on the other part. Moreover in each sort of cause, and in each side of the [...?] what will be the consequence if, after judgment pronounced the execution thereof is to be suspended by the appeal? and what if it is to be provisionally performed notwithstanding the Appeal?

7. Note that the extent supposed as above to be given to the right and practice of receiving Appeals by and to a judicatory in Spain from a judicatory in Spanish America is the least that can be given to it: proportioned to any additional extent given to it must be the additional oppression injustice, sense of injury and tyranny, deposition to discontent, disaffection, disobedience, revolt.