TITLE II.

OF THE DIFFERENCE OF JURISDICTION; AND OF COMPETENCY.

THERE often arises a doubt who is the legitimate and competent judge of the cause. The determination of this point depends on the knowledge of the nature and diversity of jurisdictions (fueros).

Cap. 1. Jurisdiction (fuero) is the place of trial where the right and justice of the parties who litigate are discussed, Hevia, Cur. Filip. p. 1. § 5. num. 1. Jurisdiction being secular and ecclesias- [ 252 ] tical, each has its peculiar jurisdiction (fuero)' for the causes which belong to it; whence arises the distinction of ecclesiastical and secular jurisdiction, to which ought to be added the third species of mixed jurisdiction, regarding causes which belong to both jurisdictions; of which kind are the causes respecting the payment or non-payment of ecclesiastical tithes; respecting pious bequests, and the execution of testaments, if the year of the executorship hath passed by without their being fulfilled, Hevia, ibid. § 5. num. 13.

The rule is, that to the ecclesiastical jurisdiction belong spiritual causes, and those annexed to them; such are the causes relating to the right of patronage, tithes, first-fruits, marriages, burials, benefices, &c. L. 5. tit. 1. lib. 4. Rec.2 [L. 5. tit. 1. lib. 2. Nov. Rec]; it being observed that patrimonial suits, and other ecclesiastical ones relating to benefices, must be entertained in the audiences, L. 21. tit. 4. lib. 1. Rec.3; the reader is referred to Bobadilla in his Politica, lib. 2. c. 17 and 18, where he treats fully of the causes belonging to every kind of jurisdictions (fueros).

There are seven causes from which the diversity of jurisdictions (fueros) proceeds, and which render the judge competent for the cognisance of them.

1st, Domicile, so that any person may be sued before the judge of the place where he is found settled, L. 32. tit. 2. P. 3. [L. 32. tit. 2. P. 3.]

2d, Birth-place (patria), provided the defendant be not absent

It is difficult to find different words to express the meaning of jurisdiction and fuero. Jurisdiction, with us, means both legal authority, or power of judging, and the district or place to which that authority extends: in Spanish, the word jurisdiccion is used to denote the first, and fuero the latter. and fuero also means the tribunal of the judge.

2 Palacios says, this law is erroneously cited for L. 56, tit. 6. p. 1.

3 Not inserted in the Nov. Rec. Palacios says it is erroneously cited for Aut. 2. tit. 6. lib. 1. Rec. (L. 4. tit. 21. lib. 1. Nov. Rec.)

4 Palacios says, L. 32. tit. 2. P. 3. points out fourteen causes; but that they are com. monly reduced to four, which are domicile, contract, crime, and situation or place of thing.

from it, L. 32. tit. 2. P. 3. [L. 32. tit. 2. P. 3.] Carleval, tit. 1. disp. 2. quæst. 2. num. 63.

3d, The place where the property is situate, although the defendant be not a native of it, nor domiciled there, L. 32. tit. 2. P. 3. [L. 32. tit. 2. P. 3.]; but this is understood when the plaintiff institutes a real, and not a personal action, Carleval, ibid. quæst. 3. num. 151.

4th, The place where the contract is entered into which gives rise to the suit,' L. 32. tit. 2. P. 3. [L. 32. tit. 2. P. 3.]

5th, The heir may be cited, in quality of heir and successor, before the competent judge of his deceased ancestor, L. 32. tit. 2. P. 3. [L. 32. tit. 2. P. 3.], provided he be not a clergyman (clerigo) who is privileged as to his jurisdiction, Carleval, ibid. quæst. num. 307.

6th, The commission of crime requires the prosecution and punishment of the delinquent in the place where he perpetrated it, L. 32. tit. 2. P. 3. [L. 32. tit. 2. P. 3.]

[253] 7th, Finally, the privilege of exemption from jurisdiction prevents the defendant from being sued but before the judge of his jurisdiction. These privileges are, 1st, That of the clergy, to be sued in all cases before the ecclesiastical judge, L. 50. tit. 6. P. 1. [L. 50. tit. 6. P. 1.] and L. 5. tit. 3. lib. 1. Rec. [L. 3. tit. 1. lib. 2. Nov. Rec.] This privilege extends also to those of the first clerical degree (tonsurados) provided they wear the tonsure and clerical habit, have a benefice, and reside on it, or are occupied in another place with the license of the bishop, L. 1. tit. 4. lib. 1. Rec. [L. 6. tit. 10. lib. 1. Nov. Rec.] 2d, Religious persons, of whose causes the judges conservators (conservadores) have cognisance, in virtue of bulls and apostolic indultos, possess privilege of jurisdiction, Carleval, ibid. sect. 2. Knights of military orders must be sued before their judges in criminal causes; and in civil ones belonging to the commanderies (encomiendas) of the order; but in other civil causes, and even in criminal ones, in many cases in which knights commit offences as such, they are subject to the ordinary jurisdiction, Auto 9. tit. 1. lib. 4. Rec. [L. 12. tit. 8. lib. 2. Nov. Rec.] Carleval, ibid. sect. 3.; and the king being the supreme master of these orders, he may delegate the cognisance of the causes of knights to the judges he may think fit, Auto 2. tit. 1. lib. 4. Rec. [L. 10. tit. 8. lib. 2. Nov. Rec.] 4th, Matriculated students, whose judge is the rector of the university, enjoy the privilege of jurisdiction, L. 28. tit. 7. lib. 1. Rec. [L. 7. tit. 10. lib. 12. Nov. Rec.], except in cases of resistance to the officers of justice, or of using prohibited arms. 5th, Military persons possess a particular jurisdiction, whose judges are the auditors of war, Orden. Milit.; but the militia are subject, in the first instance, to the ordinary judge even in criminal causes, Auto 27, 28. and 30. tit. 4. lib. 6. Rec. [L. 12. tit. 9., L. 10. tit. 2. lib. 7., and Nota 10. tit. 6. lib. 6. Nov. Rec.] 6th,

5 Palacios observes, that it is stated by Covarrubias, cap. 1. Pract. Quæst., that in or der to competency of jurisdiction, in respect to the place of contract, it is necessary that the defendant be found in it at the time the action is entered against him.

6 See Proclamation 9th February, 1815, Appendix U.

Officers of the inquisition enjoy their own jurisdiction in criminal causes only, except when they proceed from capital (mayores) offences, expressed by L. 18. c. 4, 5, and 6. tit. 1. lib. 4. Rec. [L. 1. tit. 7. lib. 2. Nov. Rec.] This privilege ceases in causes relating to the felling of forests (talas de montes), ordinances of police, and resistance to justice, Cedula of August 18th, 1673.7 7th, Widows, wards, poor and miserable persons, have the privilege of pleading to the jurisdiction of the inferior judge, and of having recourse to the superior tribunals, which is termed caso de corte, L. 5. tit. 3. P. 3. [L. 5. tit. 3. P. 3.]; who miserable persons are, is explained [254] by Carleval, ibid. sect. 7. from num. 529. ad finem. 8th, The cognisance of causes of the royal rents is reserved to the superintendants and subdelegates of the royal revenue (real hacienda), Auto 2. tit. 7. lib. 9. Rec. [L. 6. tit. 10. lib. 6. Nov. Rec.], who have also cognisance of the causes of their dependents, when such causes relate to the fulfilment of its duty, as appears by various decrees of his majesty. Reference may be had to L. 1. cap. 3, 4, and 5. and L. 2. cap. 25. and 26. tit. 2. lib. 9. Rec. [L. 2. tit. 10. lib. 6., L. 1. tit. 14. lib. 10., L. 3. tit. 10. lib. 6. Nov. Rec.] 9th, The prior and consuls of the city of Burgos have exclusively cognisance of suits and disputes which may occur between merchant and merchant, with respect to their dealings and affairs; from whose sentence there is only an appeal to the corregidor, or lord mayor of the city, L. 1. cap. 1, 2. 4. and 12. tit. 13. lib. 3. Rec. [Ll. 1, 2, and 3. tit. 2. lib. 9. Nov. Rec.] This privilege hath been extended to the consulados or tribunals of commerce of Madrid, Bilbao, and Seville, L. 1. cap. 13. and L. 2. tit. 13. lib. 3. Rec.

It is to be observed that all these jurisdictions cease in causes of tumult and popular commotion, so that the guilty are subject to the ordinary jurisdiction, Order (decreto) of 2d October, 1766. [L. 4. tit. 11. lib. 12. Nov. Rec.]

Cap. 2. When the ecclesiastical judge intermeddles in the cognisance of causes merely profane, the party aggrieved may appeal and protest to the royal assistance against the injury. Then the complainant presents a petition, having recourse by way of protection to the royal tribunal of the district where the ecclesiastical judge resides, a decree or writ issued by the ordinary judge, charging the ecclesiastical to rescind for the term of eighty days, any censure he may have imposed, and ordering him to remit to the ordinary tribunal the original proceedings. Having seen these proceedings, if the ordinary judge declares that the ecclesiastical judge has done wrong, or exceeded his jurisdiction in taking cognisance of this cause, every act is annulled or revoked; but if it is declared that he has not exceeded his jurisdiction, the proceedings are returned to him in order that he may do justice, Aut. 4. cap. 2. tit. 1. lib. 4. Bobadilla, Lib. 2. cap. 17. num. 182. L. 39. tit. 5. lib. 1. Rec.

7 Not in Chronological Index of the Nov. Rec.

Not inserted in Nov. Rec. Palacios says, it is wrongly cited for L. 36. tit. 5. lib. 2. Rec. (L. 2. tit. 2. lib. 2. Nov. Rec.)

This recourse of appeal (recurso de fuerza), which they call a writ of prohibition' (auto de legos), is founded on the defence and protection which the prince affords, in order that ecclesiastics may [255] not injure nor oppress his vassals. In this case, there intervenes an extrajudicial cognisance, by means of a view and information of the proceedings, without treating of, or discussing the principal matter of the cause, Salgado de Regia protect. p. 1. cap. 1. prelud. 5.

With respect to this kind of recourse, the following rules must be borne in mind: 1st, That it does not take place in matter relating to the inquisition, Auto 3. tit. 1. lib. 4. Rec. [L. 3. tit. 7. lib. 2. Nov. Rec.] 2d, That appeals (recursos de fuerza) from the vicar of Alcala are determined in the council, Auto 15. cap. 25. tit. 4. lib. 2. Rec. [Notas, 2. 6, 7. 9, and 10 tit. 5. lib. 4. Nota 4. tit. 2. lib. 2. Nota 12. tit. 10. lib. 12. Nov. Rec.] 3d, That appeals from ecclesiastical judges with respect to the property (espolios) which bishops leave are preferred to the council, Auto 23. tit. 4. lib. 2. Rec.; [Nota 5. tit. 2. lib. 2. Nov. Rec.] as also those with respect to excise duties (millones), Auto 35. tit. 4. lib. 2. Rec. [L. 15. tit. 2., lib. 2. Nov. Rec.] 4th, That in appeals of consequence (de gravedad,) the court of government (sala de gobierno) may call to it those of 1500 (mil y quinientas), Auto 71. cap. 13. tit. 4. lib. 2. Rec. [L. 4. tit. 3., L. 2. tit. 16., Ll. 4 and 5. tit. 4. L. 7. tit. 14. L. 19. tit. 7. lib. 4. L. 8. tit. 22. lib. 11. L. 9. tit. 9. and L. 12. tit. 27. lib. 4. Nov. Rec.] 5th, That the appeals of the Indians go before the council of the Indies, L. 4. tit. 2. lib. 2. Rec. de Ind., which repeals Auto 2. tit. 4. lib. 2. Rec. [L. 4. tit. 2. lib. 2. Rec. Ind. Nota 3. tit. 2. lib. 2. Nov. Rec.] 6th, That friars and monks may have recourse to the council from any part of Spain against the injuries and oppressions of their superiors, L. 40. tit. 5. lib. 2. Rec. [L. 9. tit. 2. lib. 2. Nov. Rec.] 7th, That the audiences do not take cognisance by way of appeal (por via de fuerza of things relating to the decree of the council of Trent, because these applications go to the council, L. 81. tit. 5. lib. Rec. 10 Sth, That these suits for redress of judicial injury (pleytos de fuerza) may be sentenced or decided on review (en revista), L. 38. tit. 5. lib. 1. Rec."

Cap. 3. There is another recourse against injury (recurso de fuerza) when the ecclesiastical judge denies or refuses the appeal interposed by any of the parties, of which we shall treat with more propriety in the 9th title. Besides the case referred to, if the question of competency is raised between two tribunals, it belongs to the fiscal to form it; and then each tribunal respectively appoints two ministers or agents (ministros), and both consult his majesty on the appointment of the fifth, who decide the competency; this is to which

9 Vide, 3 Black. Com., p. 112 and 113., edit. 1809.

10 Not in Nov. Rec.: quære, L. 8. tit. 5. lib. 1. Rec. which is L. 9. tit. 6. lib. 1. Nov. Rec.

Not in Nov. Rec.: wrongly cited for L. 38. tit. 5. lib. 2. Rec. (L. 32. tit. 1. lib. 5. Nov. Rec.) Palacios.

belongs the cognisance of the cause, Auto 10 and 12.12 tit. 1. lib. 4. Rec. [Nota 5. tit. 1. lib. 4. Nov. Rec.]

Upon this particular, it ought to be observed: 1st, That no question of competency can be formed with the tribunal of the crusade, in respect to the recovery of the subsidy, Auto 4. cap. 12.13 tit. 1. lib. 4. Rec. 2d, That in a cause relative to confiscated property, [ 256 ] no question of competency is formed, Auto 45. cap. 1. tit. 1. lib. 4. Rec.15 3d, Nor with respect to causes of the officers of the inquisition; if the council shall consider that they are of that class, the cognisance of which appertains to the tribunals of ordinary justice, they may consult his majesty, ibid. Auto 45. cap. 2. tit. 1. lib. 4. Rec.16 4th, That the tribunal of the inquisition admits the competency when the royal authority (la justicia real) is exercised against the officers of the inquisition for crimes committed in the performance of their offices and duties, ibid. Auto 45. cap. 3.; as also, if it shall be doubted whether the cause in its origin is or is not privileged, idem. Auto 45. cap. 4.18 5th, That when the inquisition answers that it does not admit the question of competency (competencia), it must express the reason, idem. cap. 6.19

12 Not in Nov. Rec.

13 This chapter of the auto quoted, does not appear in the Nov. Rec.

14 Auto 5, says Palacios, here, and in the three subsequent similar references in the