Every assertion below is bound to registered sources and carries its own confidence. Weight them; do not treat the page as uniformly authoritative.
The chapter's closing run opens with the proposition that gives it its force: a judge who acts outside the law is, for this purpose, not a judge. At §38 of libro III, capítulo XXX of the Política Indiana "Y quando de esta suerte obran los Jueces, son tenidos regularmente por Particulares, assi para deshacer sus despojos, como para revocar las possessiones, que dieren, sin citar à los que antes estaban en ellas, y que se pueda deshacer, y deshaga, y reponga de hecho, quanto de hecho huvieren obrado, y quitado: porque ni aun al Principe, si no es de potestad absoluta, no le es licito privar à nadie de hecho de su possession, y aunque por ello no le podemos hacer Reo, le juzgarémos como à despojador, para lo tocante à los efectos del amparo, y restitucion del despojado." The immunity from being made a defendant is preserved and the act is stripped of its official character anyway. This entry is scoped to §§38-46, the close of the chapter.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§38-46 — the remedy against a judge who dispossesses an encomendero de hecho: the rule at §38 that judges who act in this manner are held regularly as private men, both for undoing their dispossessions and for revoking the possessions they gave without citing those who held before, and that what was done de facto may be undone and restored de facto, because not even the prince, unless of absolute power, may lawfully strip a man of his possession de hecho, and though he cannot be made a defendant for it he will be judged as a despoiler for the purposes of the protection and restitution of the dispossessed; the explanation at §39 that the exception the cédulas make for dispossessions by viceroys and governors does not approve them but reserves their cognizance to the Supreme Council out of regard for the authority of those offices, and that in either forum the party must appeal and ask that what was innovated pending the appeal be revoked and replaced as an atentado; the rule at §40 that the remedy of the atentado does not lie unless it comes together with the appeal, though equipollent acts showing that the party felt the grievance and had recourse to the superior will suffice; the instruction at §41 that the superior judge must proceed in it with all possible brevity, by mere office of the judge, summarily and de plano without keeping judicial order or terms, that he who does not so proceed sins and proceeds unjustly, that the property cannot be reached and the appellant is not bound to answer on it until the atentado is provided for and the dispossession restored, and Aymon Craveta's addition that the appellant may stay without answering on the property as long a time as the dispossession lasted; the question at §42 whether the dispossessed must proceed against the viceroy or governor who dispossessed him or against the third party or Fisco to whom the encomienda was given, resolved by canon law at the dispossessed party's election, with Menochio's note that the remedy called redintegrandæ would serve in any case; the rule at §43 that an executoria won in the Supreme Council against one holder runs against any third party to whom a viceroy afterwards granted the encomienda anew; the case at §44 of a second dispossession after restitution, where a fresh executoria must be sought from the Council, decided in a suit between Don Antonio de Quiroga and Don Pedro de Soto-Mayor; and the close at §§45-46 leaving the incidents of the execution of such executorias to the Audiencias of the Indies although the principal cognizance is inhibited to them · primary
The exception for viceroys and governors is read as a rule about which court hears the case, not about whether the act is lawful. At §39 "Y no repugna à esto la excepcion, que las dichas Cedulas hacen en los despojos hechos por Virreyes, y Governadores: porque ellas no los califican, ni dexarán de deshacerse por tales, si fueren injustos, y atentados; y solo lo que mandaron es, que no conozcan de ellos las Audiencias por la autoridad de los que ocupan aquellos cargos: pero en el Supremo Consejo, para donde se reservó su conocimiento, serán restituidos los despojados, quando pareciere, que lo deben ser conforme à Justicia: y assi lo dice la quinta Declaratoria de la Provision de Malinas." The practical difference is nonetheless large, since the Council sat in Spain: an encomendero dispossessed by a viceroy had a remedy across an ocean.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§38-46 — the remedy against a judge who dispossesses an encomendero de hecho: the rule at §38 that judges who act in this manner are held regularly as private men, both for undoing their dispossessions and for revoking the possessions they gave without citing those who held before, and that what was done de facto may be undone and restored de facto, because not even the prince, unless of absolute power, may lawfully strip a man of his possession de hecho, and though he cannot be made a defendant for it he will be judged as a despoiler for the purposes of the protection and restitution of the dispossessed; the explanation at §39 that the exception the cédulas make for dispossessions by viceroys and governors does not approve them but reserves their cognizance to the Supreme Council out of regard for the authority of those offices, and that in either forum the party must appeal and ask that what was innovated pending the appeal be revoked and replaced as an atentado; the rule at §40 that the remedy of the atentado does not lie unless it comes together with the appeal, though equipollent acts showing that the party felt the grievance and had recourse to the superior will suffice; the instruction at §41 that the superior judge must proceed in it with all possible brevity, by mere office of the judge, summarily and de plano without keeping judicial order or terms, that he who does not so proceed sins and proceeds unjustly, that the property cannot be reached and the appellant is not bound to answer on it until the atentado is provided for and the dispossession restored, and Aymon Craveta's addition that the appellant may stay without answering on the property as long a time as the dispossession lasted; the question at §42 whether the dispossessed must proceed against the viceroy or governor who dispossessed him or against the third party or Fisco to whom the encomienda was given, resolved by canon law at the dispossessed party's election, with Menochio's note that the remedy called redintegrandæ would serve in any case; the rule at §43 that an executoria won in the Supreme Council against one holder runs against any third party to whom a viceroy afterwards granted the encomienda anew; the case at §44 of a second dispossession after restitution, where a fresh executoria must be sought from the Council, decided in a suit between Don Antonio de Quiroga and Don Pedro de Soto-Mayor; and the close at §§45-46 leaving the incidents of the execution of such executorias to the Audiencias of the Indies although the principal cognizance is inhibited to them · primary
The remedy is not automatic and the chapter says exactly what the party must do to have it. At §39 "es necessario, que apele, el que se sintiere gravado del tal despojo, y pida se revoque, y reponga por atentado, todo lo que pendiente la apelacion se huviere innovado", and at §40 "Porque este remedio de lo atentado, no suele tener lugar; si no viene juntamente con la apelacion al Tribunal Superior, cuya autoridad, parece, se menosprecio por la innovacion: y assi no basta haver alegado principalmente de nulidad contra la sentencia; pero bastará, que en vez de la apelacion, se hagan otros actos equipolentes, que muestren haver sentido la Parte su agravio, y ocurrido al Superior, para que le reforme, y deshaga." A plea of nullity alone will not do; the appeal, or an equivalent act showing recourse to the superior, is what carries the remedy.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§38-46 — the remedy against a judge who dispossesses an encomendero de hecho: the rule at §38 that judges who act in this manner are held regularly as private men, both for undoing their dispossessions and for revoking the possessions they gave without citing those who held before, and that what was done de facto may be undone and restored de facto, because not even the prince, unless of absolute power, may lawfully strip a man of his possession de hecho, and though he cannot be made a defendant for it he will be judged as a despoiler for the purposes of the protection and restitution of the dispossessed; the explanation at §39 that the exception the cédulas make for dispossessions by viceroys and governors does not approve them but reserves their cognizance to the Supreme Council out of regard for the authority of those offices, and that in either forum the party must appeal and ask that what was innovated pending the appeal be revoked and replaced as an atentado; the rule at §40 that the remedy of the atentado does not lie unless it comes together with the appeal, though equipollent acts showing that the party felt the grievance and had recourse to the superior will suffice; the instruction at §41 that the superior judge must proceed in it with all possible brevity, by mere office of the judge, summarily and de plano without keeping judicial order or terms, that he who does not so proceed sins and proceeds unjustly, that the property cannot be reached and the appellant is not bound to answer on it until the atentado is provided for and the dispossession restored, and Aymon Craveta's addition that the appellant may stay without answering on the property as long a time as the dispossession lasted; the question at §42 whether the dispossessed must proceed against the viceroy or governor who dispossessed him or against the third party or Fisco to whom the encomienda was given, resolved by canon law at the dispossessed party's election, with Menochio's note that the remedy called redintegrandæ would serve in any case; the rule at §43 that an executoria won in the Supreme Council against one holder runs against any third party to whom a viceroy afterwards granted the encomienda anew; the case at §44 of a second dispossession after restitution, where a fresh executoria must be sought from the Council, decided in a suit between Don Antonio de Quiroga and Don Pedro de Soto-Mayor; and the close at §§45-46 leaving the incidents of the execution of such executorias to the Audiencias of the Indies although the principal cognizance is inhibited to them · primary
The procedure the superior owes is then described, and it is the fastest in the book. At §41 the superior judge "ha de proceder en él con toda la brevedad possible: porque es mas privilegiado, que todos los possessorios, y en que se debe proceder por mero oficio del Juez, y sumariamente, y de plano, aun sin guardar orden, ni terminos judiciales, como lo dicen muchos textos, y DD, añadiendo, que quien assi no lo hace peca, y procede injustamente, y que no se puede llegar à tratar de la propiedad, ni está obligado el apelante à responder à ella, hasta que se provea sobre el atentado, y se le restituya el despojo, que se le hizo." Aymon Craveta is added for a further point: "que puede estarse sin responder en el juicio de la propiedad, otro tanto tiempo, como duró el despojo, que le hicieron, y en que le tuvieron." The restitution comes first and the merits wait; the delay the dispossession caused is charged back to the party that caused it.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§38-46 — the remedy against a judge who dispossesses an encomendero de hecho: the rule at §38 that judges who act in this manner are held regularly as private men, both for undoing their dispossessions and for revoking the possessions they gave without citing those who held before, and that what was done de facto may be undone and restored de facto, because not even the prince, unless of absolute power, may lawfully strip a man of his possession de hecho, and though he cannot be made a defendant for it he will be judged as a despoiler for the purposes of the protection and restitution of the dispossessed; the explanation at §39 that the exception the cédulas make for dispossessions by viceroys and governors does not approve them but reserves their cognizance to the Supreme Council out of regard for the authority of those offices, and that in either forum the party must appeal and ask that what was innovated pending the appeal be revoked and replaced as an atentado; the rule at §40 that the remedy of the atentado does not lie unless it comes together with the appeal, though equipollent acts showing that the party felt the grievance and had recourse to the superior will suffice; the instruction at §41 that the superior judge must proceed in it with all possible brevity, by mere office of the judge, summarily and de plano without keeping judicial order or terms, that he who does not so proceed sins and proceeds unjustly, that the property cannot be reached and the appellant is not bound to answer on it until the atentado is provided for and the dispossession restored, and Aymon Craveta's addition that the appellant may stay without answering on the property as long a time as the dispossession lasted; the question at §42 whether the dispossessed must proceed against the viceroy or governor who dispossessed him or against the third party or Fisco to whom the encomienda was given, resolved by canon law at the dispossessed party's election, with Menochio's note that the remedy called redintegrandæ would serve in any case; the rule at §43 that an executoria won in the Supreme Council against one holder runs against any third party to whom a viceroy afterwards granted the encomienda anew; the case at §44 of a second dispossession after restitution, where a fresh executoria must be sought from the Council, decided in a suit between Don Antonio de Quiroga and Don Pedro de Soto-Mayor; and the close at §§45-46 leaving the incidents of the execution of such executorias to the Audiencias of the Indies although the principal cognizance is inhibited to them · primary
The next question is against whom the remedy runs, and the answer widens it. At §42 the doubt is "si el despojado por el Virrey, ò Governador, ha de pedir, y seguir contra ellos la restitucion del despojo, ò contra el tercero, ò el Fisco, à quien se dió, ò aplicó la Encomienda, de que à él le despojaron?" Civil law seems to give the recuperandæ interdict only against the despoiler, but by canon law "queda à eleccion de el despojado, si quiere convenir al que le despojó por el interés, ò al posseedor, que constandole de esto, le está deteniendo la cosa, de que le despojaron, cuya disposicion oy se debe guardar en ambos Fueros", and Menochio adds that even if that remedy failed there was a richer one, the redintegrandæ, "por el qual se dispone, que de qualquier modo, y por qualquier persona, que uno se halle despojado, debe ser amparado en su possession, y vuelto à reponer en su pristino estado." The dispossessed man may therefore sue the new holder rather than the viceroy who made him one.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§38-46 — the remedy against a judge who dispossesses an encomendero de hecho: the rule at §38 that judges who act in this manner are held regularly as private men, both for undoing their dispossessions and for revoking the possessions they gave without citing those who held before, and that what was done de facto may be undone and restored de facto, because not even the prince, unless of absolute power, may lawfully strip a man of his possession de hecho, and though he cannot be made a defendant for it he will be judged as a despoiler for the purposes of the protection and restitution of the dispossessed; the explanation at §39 that the exception the cédulas make for dispossessions by viceroys and governors does not approve them but reserves their cognizance to the Supreme Council out of regard for the authority of those offices, and that in either forum the party must appeal and ask that what was innovated pending the appeal be revoked and replaced as an atentado; the rule at §40 that the remedy of the atentado does not lie unless it comes together with the appeal, though equipollent acts showing that the party felt the grievance and had recourse to the superior will suffice; the instruction at §41 that the superior judge must proceed in it with all possible brevity, by mere office of the judge, summarily and de plano without keeping judicial order or terms, that he who does not so proceed sins and proceeds unjustly, that the property cannot be reached and the appellant is not bound to answer on it until the atentado is provided for and the dispossession restored, and Aymon Craveta's addition that the appellant may stay without answering on the property as long a time as the dispossession lasted; the question at §42 whether the dispossessed must proceed against the viceroy or governor who dispossessed him or against the third party or Fisco to whom the encomienda was given, resolved by canon law at the dispossessed party's election, with Menochio's note that the remedy called redintegrandæ would serve in any case; the rule at §43 that an executoria won in the Supreme Council against one holder runs against any third party to whom a viceroy afterwards granted the encomienda anew; the case at §44 of a second dispossession after restitution, where a fresh executoria must be sought from the Council, decided in a suit between Don Antonio de Quiroga and Don Pedro de Soto-Mayor; and the close at §§45-46 leaving the incidents of the execution of such executorias to the Audiencias of the Indies although the principal cognizance is inhibited to them · primary
The chapter then follows a judgment from Madrid back across the Atlantic and asks what it is worth on arrival. At §43 "Y lo dicho obrará tambien, que si el despojado litigó en el Supremo Consejo contra este tercero, à quien se le adjudicó la Encomienda por el Virrey, ò Governador, y ganó Executoria para que se le vuelva, y quando llega à las Indias para usar de ella, yá es muerto, ò no possee la Encomienda aquel, contra quien ganó la Executoria; sino otro tercero, à quien el Virrey, ò Governador la encomendó de nuevo: todavia podrá pedir su restitucion contra este en virtud de ella", for two reasons — that an executoria commanding that justice and restitution be done to a man is understood and extended against any third party, and that the new grantee knew or ought to have known of the vice of the litigation over that encomienda, "y esse es llano, que passa contra qualquier posseedor." The problem is a real one of distance: by the time the paper reached Peru the defendant might be dead.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§38-46 — the remedy against a judge who dispossesses an encomendero de hecho: the rule at §38 that judges who act in this manner are held regularly as private men, both for undoing their dispossessions and for revoking the possessions they gave without citing those who held before, and that what was done de facto may be undone and restored de facto, because not even the prince, unless of absolute power, may lawfully strip a man of his possession de hecho, and though he cannot be made a defendant for it he will be judged as a despoiler for the purposes of the protection and restitution of the dispossessed; the explanation at §39 that the exception the cédulas make for dispossessions by viceroys and governors does not approve them but reserves their cognizance to the Supreme Council out of regard for the authority of those offices, and that in either forum the party must appeal and ask that what was innovated pending the appeal be revoked and replaced as an atentado; the rule at §40 that the remedy of the atentado does not lie unless it comes together with the appeal, though equipollent acts showing that the party felt the grievance and had recourse to the superior will suffice; the instruction at §41 that the superior judge must proceed in it with all possible brevity, by mere office of the judge, summarily and de plano without keeping judicial order or terms, that he who does not so proceed sins and proceeds unjustly, that the property cannot be reached and the appellant is not bound to answer on it until the atentado is provided for and the dispossession restored, and Aymon Craveta's addition that the appellant may stay without answering on the property as long a time as the dispossession lasted; the question at §42 whether the dispossessed must proceed against the viceroy or governor who dispossessed him or against the third party or Fisco to whom the encomienda was given, resolved by canon law at the dispossessed party's election, with Menochio's note that the remedy called redintegrandæ would serve in any case; the rule at §43 that an executoria won in the Supreme Council against one holder runs against any third party to whom a viceroy afterwards granted the encomienda anew; the case at §44 of a second dispossession after restitution, where a fresh executoria must be sought from the Council, decided in a suit between Don Antonio de Quiroga and Don Pedro de Soto-Mayor; and the close at §§45-46 leaving the incidents of the execution of such executorias to the Audiencias of the Indies although the principal cognizance is inhibited to them · primary
The limit on that doctrine is stated next, and it is what makes the whole remedy loseable. At §44 "Pero si dieramos otro, en que el que obtuvo la Executoria, fue yá restituído en virtud de ella à la Encomienda, de que estaba despojado, y à este mismo se la volviesse à quitar despues el Virrey, ò Governador, dandola à otro, por decir havia cometido nuevos delitos, ò causas por donde la tenia perdida yá, (si en este pretexto no se procedió con malicia) no se podrán valer de aquella Executoria contra este nuevo tercero, y tendrán necessidad de acudir al Consejo, para ganar otra, si juzgáre, que tambien se le hizo agravio en este segundo despojo." A governor could therefore defeat a judgment already executed by dispossessing the restored holder again on a new ground, and the whole transatlantic suit had to be run a second time; only proof that the pretext was malicious would avoid it.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§38-46 — the remedy against a judge who dispossesses an encomendero de hecho: the rule at §38 that judges who act in this manner are held regularly as private men, both for undoing their dispossessions and for revoking the possessions they gave without citing those who held before, and that what was done de facto may be undone and restored de facto, because not even the prince, unless of absolute power, may lawfully strip a man of his possession de hecho, and though he cannot be made a defendant for it he will be judged as a despoiler for the purposes of the protection and restitution of the dispossessed; the explanation at §39 that the exception the cédulas make for dispossessions by viceroys and governors does not approve them but reserves their cognizance to the Supreme Council out of regard for the authority of those offices, and that in either forum the party must appeal and ask that what was innovated pending the appeal be revoked and replaced as an atentado; the rule at §40 that the remedy of the atentado does not lie unless it comes together with the appeal, though equipollent acts showing that the party felt the grievance and had recourse to the superior will suffice; the instruction at §41 that the superior judge must proceed in it with all possible brevity, by mere office of the judge, summarily and de plano without keeping judicial order or terms, that he who does not so proceed sins and proceeds unjustly, that the property cannot be reached and the appellant is not bound to answer on it until the atentado is provided for and the dispossession restored, and Aymon Craveta's addition that the appellant may stay without answering on the property as long a time as the dispossession lasted; the question at §42 whether the dispossessed must proceed against the viceroy or governor who dispossessed him or against the third party or Fisco to whom the encomienda was given, resolved by canon law at the dispossessed party's election, with Menochio's note that the remedy called redintegrandæ would serve in any case; the rule at §43 that an executoria won in the Supreme Council against one holder runs against any third party to whom a viceroy afterwards granted the encomienda anew; the case at §44 of a second dispossession after restitution, where a fresh executoria must be sought from the Council, decided in a suit between Don Antonio de Quiroga and Don Pedro de Soto-Mayor; and the close at §§45-46 leaving the incidents of the execution of such executorias to the Audiencias of the Indies although the principal cognizance is inhibited to them · primary
That limit is the one place in the chapter where a real suit is named, and almost nothing is said about it. At §44 the rule is stated to hold "como sucedió, y se pronunció en un pleyto, que sobre este punto huvo entre Don Antonio de Quiroga con Don Pedro de Soto-Mayor. Porque aunque la Encomienda viene à ser la misma, no lo es la causa del pedir, ni el derecho de ella, ni la condicion de las personas; y todas estas cosas es necessario, que concurran, para que las Executorias dadas contra unos, aprovechen contra otros." The page gives the two names and nothing else: no court, no date, no province, no encomienda, no outcome beyond the proposition it is cited for. Nothing outside this book was opened on either man and no identification with any similarly named person is offered here.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§38-46 — the remedy against a judge who dispossesses an encomendero de hecho: the rule at §38 that judges who act in this manner are held regularly as private men, both for undoing their dispossessions and for revoking the possessions they gave without citing those who held before, and that what was done de facto may be undone and restored de facto, because not even the prince, unless of absolute power, may lawfully strip a man of his possession de hecho, and though he cannot be made a defendant for it he will be judged as a despoiler for the purposes of the protection and restitution of the dispossessed; the explanation at §39 that the exception the cédulas make for dispossessions by viceroys and governors does not approve them but reserves their cognizance to the Supreme Council out of regard for the authority of those offices, and that in either forum the party must appeal and ask that what was innovated pending the appeal be revoked and replaced as an atentado; the rule at §40 that the remedy of the atentado does not lie unless it comes together with the appeal, though equipollent acts showing that the party felt the grievance and had recourse to the superior will suffice; the instruction at §41 that the superior judge must proceed in it with all possible brevity, by mere office of the judge, summarily and de plano without keeping judicial order or terms, that he who does not so proceed sins and proceeds unjustly, that the property cannot be reached and the appellant is not bound to answer on it until the atentado is provided for and the dispossession restored, and Aymon Craveta's addition that the appellant may stay without answering on the property as long a time as the dispossession lasted; the question at §42 whether the dispossessed must proceed against the viceroy or governor who dispossessed him or against the third party or Fisco to whom the encomienda was given, resolved by canon law at the dispossessed party's election, with Menochio's note that the remedy called redintegrandæ would serve in any case; the rule at §43 that an executoria won in the Supreme Council against one holder runs against any third party to whom a viceroy afterwards granted the encomienda anew; the case at §44 of a second dispossession after restitution, where a fresh executoria must be sought from the Council, decided in a suit between Don Antonio de Quiroga and Don Pedro de Soto-Mayor; and the close at §§45-46 leaving the incidents of the execution of such executorias to the Audiencias of the Indies although the principal cognizance is inhibited to them · primary
The chapter ends by giving the colonial courts back the one thing the ley de Malinas had not taken from them: the enforcement of the judgments they were forbidden to make. At §45 "Y de estas questiones, y dudas, que se ofrecieren sobre el cumplimiento, y execucion de tales Executorias, bien podrán conocer las Audiencias de las Indias, à quien las suele remitir el Consejo, aunque están inhibidas del conocimiento principal de estas causas: porque aqui no proceden por la jurisdiccion de la ley; sino por la comission de la Executoria, y si en execucion de ella inciden estos puntos, la incidencia se la dá en ellos, lo qual no es nuevo en Derecho", the point being illustrated by the criminal judges who have no civil jurisdiction yet may inquire into and judge civil matters that arise incidentally in a criminal cause.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§38-46 — the remedy against a judge who dispossesses an encomendero de hecho: the rule at §38 that judges who act in this manner are held regularly as private men, both for undoing their dispossessions and for revoking the possessions they gave without citing those who held before, and that what was done de facto may be undone and restored de facto, because not even the prince, unless of absolute power, may lawfully strip a man of his possession de hecho, and though he cannot be made a defendant for it he will be judged as a despoiler for the purposes of the protection and restitution of the dispossessed; the explanation at §39 that the exception the cédulas make for dispossessions by viceroys and governors does not approve them but reserves their cognizance to the Supreme Council out of regard for the authority of those offices, and that in either forum the party must appeal and ask that what was innovated pending the appeal be revoked and replaced as an atentado; the rule at §40 that the remedy of the atentado does not lie unless it comes together with the appeal, though equipollent acts showing that the party felt the grievance and had recourse to the superior will suffice; the instruction at §41 that the superior judge must proceed in it with all possible brevity, by mere office of the judge, summarily and de plano without keeping judicial order or terms, that he who does not so proceed sins and proceeds unjustly, that the property cannot be reached and the appellant is not bound to answer on it until the atentado is provided for and the dispossession restored, and Aymon Craveta's addition that the appellant may stay without answering on the property as long a time as the dispossession lasted; the question at §42 whether the dispossessed must proceed against the viceroy or governor who dispossessed him or against the third party or Fisco to whom the encomienda was given, resolved by canon law at the dispossessed party's election, with Menochio's note that the remedy called redintegrandæ would serve in any case; the rule at §43 that an executoria won in the Supreme Council against one holder runs against any third party to whom a viceroy afterwards granted the encomienda anew; the case at §44 of a second dispossession after restitution, where a fresh executoria must be sought from the Council, decided in a suit between Don Antonio de Quiroga and Don Pedro de Soto-Mayor; and the close at §§45-46 leaving the incidents of the execution of such executorias to the Audiencias of the Indies although the principal cognizance is inhibited to them · primary
The last paragraph closes the circle back to the atentado with which the run began. At §46 "Y es buen simil, y muy parecido à nuestro caso el de los atentados, de que el Juez de apelacion puede conocer, y determinar por via de incidencia, y accessoriamente, quando, ò nacen de la causa de la misma apelacion, que ante él se introduxo en lo principal, ò conciernen à ella, como por doctrina de Cardenal lo decidió la Rota, y lo enseña Maranta." Capítulo XXXI, on the same suits and principally on the restitution of the fruits and rents of encomiendas, begins immediately after it. Note that the chapter's printed SUMARIO on page 405 ends at head 45 while the body runs to a numbered §46; the last head covers both paragraphs.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§38-46 — the remedy against a judge who dispossesses an encomendero de hecho: the rule at §38 that judges who act in this manner are held regularly as private men, both for undoing their dispossessions and for revoking the possessions they gave without citing those who held before, and that what was done de facto may be undone and restored de facto, because not even the prince, unless of absolute power, may lawfully strip a man of his possession de hecho, and though he cannot be made a defendant for it he will be judged as a despoiler for the purposes of the protection and restitution of the dispossessed; the explanation at §39 that the exception the cédulas make for dispossessions by viceroys and governors does not approve them but reserves their cognizance to the Supreme Council out of regard for the authority of those offices, and that in either forum the party must appeal and ask that what was innovated pending the appeal be revoked and replaced as an atentado; the rule at §40 that the remedy of the atentado does not lie unless it comes together with the appeal, though equipollent acts showing that the party felt the grievance and had recourse to the superior will suffice; the instruction at §41 that the superior judge must proceed in it with all possible brevity, by mere office of the judge, summarily and de plano without keeping judicial order or terms, that he who does not so proceed sins and proceeds unjustly, that the property cannot be reached and the appellant is not bound to answer on it until the atentado is provided for and the dispossession restored, and Aymon Craveta's addition that the appellant may stay without answering on the property as long a time as the dispossession lasted; the question at §42 whether the dispossessed must proceed against the viceroy or governor who dispossessed him or against the third party or Fisco to whom the encomienda was given, resolved by canon law at the dispossessed party's election, with Menochio's note that the remedy called redintegrandæ would serve in any case; the rule at §43 that an executoria won in the Supreme Council against one holder runs against any third party to whom a viceroy afterwards granted the encomienda anew; the case at §44 of a second dispossession after restitution, where a fresh executoria must be sought from the Council, decided in a suit between Don Antonio de Quiroga and Don Pedro de Soto-Mayor; and the close at §§45-46 leaving the incidents of the execution of such executorias to the Audiencias of the Indies although the principal cognizance is inhibited to them · primary
What this entry establishes and what it does not. It establishes that the standard treatise on the government of the Spanish Indies held that a judge who dispossessed an encomendero without citing him was to be treated, for the purposes of protection and restitution, as a private despoiler, and that what was done de facto could be undone de facto; that the exception the cédulas made for viceroys and governors went to the forum and not to the lawfulness of the act, the Council keeping the cognizance; that the party had to appeal, or do something equivalent, and plead atentado to get the remedy; that the superior owed a summary hearing without judicial forms, that the merits could not be reached until restitution was made, and that the appellant might withhold his answer on the property for as long as the dispossession had lasted; that the dispossessed man could elect to proceed against the new holder rather than the official who dispossessed him; and that a judgment of the Council ran against whoever held the encomienda when it arrived, but could be defeated by a fresh dispossession on a new ground unless malice was shown. It establishes nothing about how often any of this was used or whether it worked. One suit is named in the whole chapter and only the parties' names are given; no date, court, province or outcome appears on the page; no cédula, provisión or executoria was seen in its own printing; and the Indians of the encomiendas whose possession is being restored and re-restored are not parties to any of these proceedings, a point the same chapter states expressly at §32 and which this corpus treats in a separate entry.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§38-46 — the remedy against a judge who dispossesses an encomendero de hecho: the rule at §38 that judges who act in this manner are held regularly as private men, both for undoing their dispossessions and for revoking the possessions they gave without citing those who held before, and that what was done de facto may be undone and restored de facto, because not even the prince, unless of absolute power, may lawfully strip a man of his possession de hecho, and though he cannot be made a defendant for it he will be judged as a despoiler for the purposes of the protection and restitution of the dispossessed; the explanation at §39 that the exception the cédulas make for dispossessions by viceroys and governors does not approve them but reserves their cognizance to the Supreme Council out of regard for the authority of those offices, and that in either forum the party must appeal and ask that what was innovated pending the appeal be revoked and replaced as an atentado; the rule at §40 that the remedy of the atentado does not lie unless it comes together with the appeal, though equipollent acts showing that the party felt the grievance and had recourse to the superior will suffice; the instruction at §41 that the superior judge must proceed in it with all possible brevity, by mere office of the judge, summarily and de plano without keeping judicial order or terms, that he who does not so proceed sins and proceeds unjustly, that the property cannot be reached and the appellant is not bound to answer on it until the atentado is provided for and the dispossession restored, and Aymon Craveta's addition that the appellant may stay without answering on the property as long a time as the dispossession lasted; the question at §42 whether the dispossessed must proceed against the viceroy or governor who dispossessed him or against the third party or Fisco to whom the encomienda was given, resolved by canon law at the dispossessed party's election, with Menochio's note that the remedy called redintegrandæ would serve in any case; the rule at §43 that an executoria won in the Supreme Council against one holder runs against any third party to whom a viceroy afterwards granted the encomienda anew; the case at §44 of a second dispossession after restitution, where a fresh executoria must be sought from the Council, decided in a suit between Don Antonio de Quiroga and Don Pedro de Soto-Mayor; and the close at §§45-46 leaving the incidents of the execution of such executorias to the Audiencias of the Indies although the principal cognizance is inhibited to them · primary