date

1820 June 21 Emancipation Spanish
1820 June 21

Emancipation Spanish

'.6. Creoles repugnant

Appeal

Note that among the most important causes, whether penal or non- penal /or penal/ are coincident[?], are those that are not susceptible of valuation in money.

In non-penal cases take for instance those which regard condition in life: the question - who is or is not husband or wife to such or such a person, son, daughter, nephew, neice &c. /ward, guardian/ for the purpose of inheritance or any other purpose.

In penal cases, every person who is condemned to capital punishment, or to any punishment approaching in severity to capital, will appeal of course Is the appeal to be allowed? Then that punishment the infliction of which is regarded as necessary to the prevention of crime rendered more or less uncertain, and at the best removed to an indefinite distance. Is the appeal in these cases to be disallowed? Then with consistency subject the parties to all this delay vexation and expense in cases of inferior importance, when you think it too great for cases of superior importance?
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  • 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
  • Title: [1820 June 21 Emancipation Spanish]
    Description: 1820 June 21

    Emancipation Spanish

    '.6. Creoles repugnant

    Appeal

    If allowed in some causes but not in all, then where /at what point/ is it that the line is to be drawn? Draw it where you will, on one side or the other of the line injustice is the consequence.

    Take what sort of cause - take what individual cause you will

    Appeal in the case /that cause/ in question - appeal from the highest court /judicature/ in Spanish America to a Court /judicatory/ in Spain is either conducive to justice or not. If conducive to justice it ought to be allowed in every cause: if not conducive to justice it ought not be allowed in any cause

    If the line /point at which is to be drawn/ between appeal and no appeal between cases appellable and cases non-appellable is to be determined by the value of the subject matter in dispute, in the first place there are but few cases in which the value of the matter in dispute is capable of being precisely ascertained, in the next place this is as much as to any that the source of judicature which is necessary to justice shall be applied in cases of very high value, but that in all cases of inferior value it shall not be employed /applied/. And though some of /in/ the highest parts of the scale of opulence may have disputes relative to matters of the very smallest value, yet the higher on the scale of opulence you carry your unappealable cases, the greater the probability is that in the cause in question appeal will have for its sure effect, as above denial of justice: justice denied to a man for a want of affluence on his part.

    What /Which/ too shall be the subject matter the value of which is to determine whether appeal shall or shall not be allowed? the original subject matter as it stood before the commencement of the litigation? or this same original subject matter as increased by costs of suit. If as increased by costs of suit then by him in whose hands the appeal is an instrument of injustice, the [...?] will be seen to be produced.
  • Title: [21 Sept 1803 Evidence Instructions]
    Description: 21 Sept 1803

    Evidence

    Instructions

    Considerations

    1. Interests in general

    Situations

    If, in the instance of each senior relation, the legal power /authority/ annexed to the condition of Guardian should have cause to be superadded to the natural bond of attachment and partiality constituted by natural relationship, an attachment a partiality which otherwise would otherwise have been the weaker may in virtue of this reinforcement become the stronger. Invested thus with the authority of a father, the /an/ uncle may be a personage of more importance in the eyes of a niece, than was her Grandmother on the same or the other side /either side/: the /an/ aunt to her niece, or even her nephew, than either the grandfather on either side, and so on without end.

    Even in the case of that source o conjecture /inference/ the conclusions derivable from it amy be disturbed by the circumstance of unity of abode. If the abode /house/ of the guardian relation be the abode of the ward, then the /this/ cause of disturbance has no place. But if the ward has for his or her ordinary abode the house of some other near relation, while the personal intercourse with the guardian relation is infrequent or altogether wanting, the truth of any inference pronouncing superior strength of partiality from the mere circumstance of guardianship must be manifestly precarious.