date

[clxii. 9] 1820. July 24 Emancipation
[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.
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    Lett. 3. Appeal unendurable

    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 his pleasure

    to ruin, is thus lodged in his hands. He institutes a goundless prosecution: a

    decision is given against him: he appeals from it.

    On the other hand, suppose this same right 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 at a distance from Spain, in imprisonment, even though innocent,

    till the definite 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 consequence, 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 the one part to evasion on the other part!

    Moreover, in each sort of cause, and on each side of it /each cause,/ think what

    will be the consequence if, after judgment pronounced, execution thereof is to be

    suspended by the appeal? and what, if it is to be performed, even though it be but

    provisionally performed,- notwithstanding the appeal?

    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; disposition to discontent, to disaffection, to

    disobedience, to revolt.

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

    Rid yourselves of Ultramaria

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    Lett 3 Appeal unendurable

    misdecision, as compared with right

    decision: a prodigious advantage to the bad side of the cause whichever it

    be;- to falsehood and deceit in their contest with truth and probity.

    If witnesses are not permitted to be sent, even though

    they be willing from the judicatory appealed from in Spanish America to the

    judicatory appealed to in Spain, it withholds from the ultimate judicatory those

    indispensable means, for securing the trustworthiness of evidence, which the

    antecedent and subordinate judicatory had, or should have had, at its command:

    namely, eventual interrogation and counter-interrogation, by word of mouth, in the face of a public audience:-

    a species of unpaid judicatory, which, were it only for its own amusement, will be

    employing, all the while, its inspecting vigilance, as a security against misconduct,

    through improbity or negligence, on the part of the Judge.

    If witnesses are permitted to be sent, but only on

    condition of willingness on their part, it confines the

    benefit of the evidence to that one, if there be but one, of the two sides, which is

    able to defray the expence: and, even if they are sent on both sides, it opens the

    door to corruption, to an indefinite amount, on both sides: to corruption, on

    pretence of indemnity against expence, and loss of time, and thereby of the means of

    maintenance: of maintenance - not merely such as shall be sufficient for subsistence,

    but such as shall be proportioned to the rank of the witness in the scale of

    opulence: prospect of increase included, where the opulence is in a course of

    increase.

    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 but send more witnesses than the other, - then, even without

    need of corruption, may the bad side make sure of a triumph over the good side.

    Such is the effect of Appeals, on the supposition that

    witnesses are received along with it, but only on condition of their being voluntary ones: which is as much as to say, 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
  • Title: [[clxii. 7] 1820 July 24 Emancipation]
    Description: [clxii. 7]

    1820 July 24

    Emancipation Spanish

    Summary

    III Appeals

    From the eventual removal of lawsuits from judiciaries in Spanish America to judiciaries in Spain - in one word, from Appeals to Spain, while no benefit would be afforded to the subject many in Spain, a most grievous and probably intolerable burthen, and cause of discontent, would be imposed upon all classes of persons without exception in Spanish America.

    That powers altogether arbitrary would under the new state of things allowed to Governers sent from Spain to Spanish America 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 of this right of appeal, to functionaries of government, sent by the ruling few in Spain to reside in Spanish America, could scarcely 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 America would be regarded as altogether void of promise, if from the judicatories in Spanish America no such appeal were allowed to any judicatory in Spain in favour of a Collutor or public prosecutor, appointed and removable by government in Spain.

    The maintenance of the dominion would be regarded as altogether precarious if in prosecutuions for revolt, disobedience or 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 government in Spain.