[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.