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 gives the crown a general power of audit over every grant in a province, exercised by proclamation. At §25 of libro III, capítulo XXX of the Política Indiana the Fisco may "compeler à todos, y qualesquier posseedores de las Encomiendas por edicto, y pregon publico, ò en la forma, que mas conveniente le pareciere, que parezcan à exhibirle los Titulos de ellas, como se halla dispuesto en una Cedula del año de 1551, y en el Capit. XVIII. de la Instruccion del Virrey del Perú, de que hace mencion el Licenc. Antonio de Leon." Neither the cédula nor the instruction was opened here; both are known only as this book reports them through León. This entry is scoped to §§25-37.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§25-37 — who had to show a title and who had to be heard before an encomienda was taken away: the Fisco's power, from a cédula of 1551 and capítulo XVIII of the instruction of the viceroy of Peru, to compel every holder of an encomienda by edict and public proclamation to exhibit his title, against the ordinary rule that no man must show another the title of his possession, because he who defends himself by title of fief, benefice or emphyteusis is bound to produce it and the king enters founding his own intention in all his kingdoms; the rule that where title is required for possession the possession does not avail without it, decided in these terms by the Real Cédula of 1551 that no man may call himself to possession of Indians unless he shows his legitimate title, and inferred from the Real Cédula despatched at Madrid in 1543 against those who held Indians as slaves; the counterweight at §27, that an encomendero who shows a coloured title has justified his possession enough to keep the encomienda and exclude the Fisco from dispossessing him, because possession continued some years is so powerful that a man must be protected and maintained in it on an apparent title alone until he is beaten in the suit on property, and no man may be stripped of an old possession without being cited, heard and convicted first judicially, not even where a particular rescript of the prince orders the dispossession; the old Provisión of Monzón of 25 October, printed here as 1533, expressly commanding that citation; the contrary case at §29 of a new possession under an evidently unjust title, where many hold that kings and great princes may proceed at once to dispossession and that the possessory remedies and the interdict unde vi do not run against them; the cases at §§30-31 where no citation is needed, that is the taking of what a holder has beyond his title, matrícula or padrón, and the places where a custom of dispossessing without citation on sight of an unjust title had been introduced; the addition at §32 that when two private parties litigate over an encomienda it is not necessary that the Indians themselves who are to be encomendados be cited, any more than the neighbours and vassals of a town when two lords contend over its jurisdiction, or the parishioners when the union of a benefice is in question; the ruling at §§33-35 that a private party dispossessed by another need not exhibit any title to be restored, because in the recovery of possession it is enough to have possessed and to be dispossessed, so that proving this he must be restored before all things even if he is a notorious thief; and the extension at §§36-37 of the same to dispossessions by inferior judges, which the Audiencias are to revoke and restore at once as manifest atentados, the cédulas having left them of the three possessory interdicts the recuperandæ and the retinendæ alone · primary
The power is justified against the ordinary rule that no man must show another his title, and the exception is a general one about the crown. At §25 "aunque regularmente nadie está obligado à exhibir à otro el Titulo de su possession, como se dispone en Derecho, esso se limita en los que pretenden tenerle en cosas agenas, ò quando el Comun está contra ellos, y por consiguiente en qualquiera, que se quiere defender à Titulo de Feudo, Beneficio, ò Emphiteusis, porque está obligado à exhibirle, segun la comun opinion de los DD, supuesto, que es el fundamento de su intencion, y que no le mostrando, está contra él la presuncion, de que todas las cosas se presumen ser libres", Gregorio López and others being cited for the proposition that because the king founds his own intention in all his kingdoms, even in the land of lords and prelates, he may require and compel them to exhibit the titles by which they claim. The encomienda is thus classed with the fief, the benefice and the emphyteusis: a derivative holding whose holder carries the burden of producing his grant.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§25-37 — who had to show a title and who had to be heard before an encomienda was taken away: the Fisco's power, from a cédula of 1551 and capítulo XVIII of the instruction of the viceroy of Peru, to compel every holder of an encomienda by edict and public proclamation to exhibit his title, against the ordinary rule that no man must show another the title of his possession, because he who defends himself by title of fief, benefice or emphyteusis is bound to produce it and the king enters founding his own intention in all his kingdoms; the rule that where title is required for possession the possession does not avail without it, decided in these terms by the Real Cédula of 1551 that no man may call himself to possession of Indians unless he shows his legitimate title, and inferred from the Real Cédula despatched at Madrid in 1543 against those who held Indians as slaves; the counterweight at §27, that an encomendero who shows a coloured title has justified his possession enough to keep the encomienda and exclude the Fisco from dispossessing him, because possession continued some years is so powerful that a man must be protected and maintained in it on an apparent title alone until he is beaten in the suit on property, and no man may be stripped of an old possession without being cited, heard and convicted first judicially, not even where a particular rescript of the prince orders the dispossession; the old Provisión of Monzón of 25 October, printed here as 1533, expressly commanding that citation; the contrary case at §29 of a new possession under an evidently unjust title, where many hold that kings and great princes may proceed at once to dispossession and that the possessory remedies and the interdict unde vi do not run against them; the cases at §§30-31 where no citation is needed, that is the taking of what a holder has beyond his title, matrícula or padrón, and the places where a custom of dispossessing without citation on sight of an unjust title had been introduced; the addition at §32 that when two private parties litigate over an encomienda it is not necessary that the Indians themselves who are to be encomendados be cited, any more than the neighbours and vassals of a town when two lords contend over its jurisdiction, or the parishioners when the union of a benefice is in question; the ruling at §§33-35 that a private party dispossessed by another need not exhibit any title to be restored, because in the recovery of possession it is enough to have possessed and to be dispossessed, so that proving this he must be restored before all things even if he is a notorious thief; and the extension at §§36-37 of the same to dispossessions by inferior judges, which the Audiencias are to revoke and restore at once as manifest atentados, the cédulas having left them of the three possessory interdicts the recuperandæ and the retinendæ alone · primary
Possession without a title is then held to be worth nothing in this class of holding. At §26 "Y mediante esta exhibicion, y vistos los Titulos de las Encomiendas, constará, si es legitima, y digna de tolerarse la possession, que en ellas pretenden tener los Encomenderos. Porque en los casos, en que se requiere Titulo para la possession, si este falta, ella no aprovecha, como singularmente lo enseñó Baldo, y en nuestros terminos está decidido por la Cedula Real del año de 1551, que dexó ya referida, que expressamente manda, que nadie se pueda llamar à possession de Indios, ni valerse de ella; sino mostrare su legitimo Titulo." The same paragraph infers the justification of a Real Cédula despatched at Madrid in 1543 "contra los que tenian Indios por esclavos, compeliendoles à exhibir los Titulos, en que fundaban esta esclavitud" — that is, the same evidentiary device turned against claims of Indian slavery. Neither cédula was opened.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§25-37 — who had to show a title and who had to be heard before an encomienda was taken away: the Fisco's power, from a cédula of 1551 and capítulo XVIII of the instruction of the viceroy of Peru, to compel every holder of an encomienda by edict and public proclamation to exhibit his title, against the ordinary rule that no man must show another the title of his possession, because he who defends himself by title of fief, benefice or emphyteusis is bound to produce it and the king enters founding his own intention in all his kingdoms; the rule that where title is required for possession the possession does not avail without it, decided in these terms by the Real Cédula of 1551 that no man may call himself to possession of Indians unless he shows his legitimate title, and inferred from the Real Cédula despatched at Madrid in 1543 against those who held Indians as slaves; the counterweight at §27, that an encomendero who shows a coloured title has justified his possession enough to keep the encomienda and exclude the Fisco from dispossessing him, because possession continued some years is so powerful that a man must be protected and maintained in it on an apparent title alone until he is beaten in the suit on property, and no man may be stripped of an old possession without being cited, heard and convicted first judicially, not even where a particular rescript of the prince orders the dispossession; the old Provisión of Monzón of 25 October, printed here as 1533, expressly commanding that citation; the contrary case at §29 of a new possession under an evidently unjust title, where many hold that kings and great princes may proceed at once to dispossession and that the possessory remedies and the interdict unde vi do not run against them; the cases at §§30-31 where no citation is needed, that is the taking of what a holder has beyond his title, matrícula or padrón, and the places where a custom of dispossessing without citation on sight of an unjust title had been introduced; the addition at §32 that when two private parties litigate over an encomienda it is not necessary that the Indians themselves who are to be encomendados be cited, any more than the neighbours and vassals of a town when two lords contend over its jurisdiction, or the parishioners when the union of a benefice is in question; the ruling at §§33-35 that a private party dispossessed by another need not exhibit any title to be restored, because in the recovery of possession it is enough to have possessed and to be dispossessed, so that proving this he must be restored before all things even if he is a notorious thief; and the extension at §§36-37 of the same to dispossessions by inferior judges, which the Audiencias are to revoke and restore at once as manifest atentados, the cédulas having left them of the three possessory interdicts the recuperandæ and the retinendæ alone · primary
The counterweight arrives immediately, and it is the protective half of the chapter. At §27 "aquel Encomendero se dirá, que ha justificado su possession, para efecto de retener la Encomienda, y de excluir al Fisco del despojo, que contra él intentare, que mostrare Titulo colorado. Porque la possession, y mas quando es continuada por algunos años, es tan poderosa, que debe ser uno amparado, y mantenido en ella por solo Titulo aparente, aunque no sea concluyente, hasta que ventilado esso con mas espacio, sea vencido en el juicio de la propiedad", the reason given being "que qualquier titulo, aunque sea menos legitimo, basta para posseer, como tambien qualquier contrato, aunque sea nulo, para transferir la possession, y que en llegando à tener duda el caso, ha lugar la manutencion." A defective title therefore beats no title, and doubt resolves in favour of the man in possession.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§25-37 — who had to show a title and who had to be heard before an encomienda was taken away: the Fisco's power, from a cédula of 1551 and capítulo XVIII of the instruction of the viceroy of Peru, to compel every holder of an encomienda by edict and public proclamation to exhibit his title, against the ordinary rule that no man must show another the title of his possession, because he who defends himself by title of fief, benefice or emphyteusis is bound to produce it and the king enters founding his own intention in all his kingdoms; the rule that where title is required for possession the possession does not avail without it, decided in these terms by the Real Cédula of 1551 that no man may call himself to possession of Indians unless he shows his legitimate title, and inferred from the Real Cédula despatched at Madrid in 1543 against those who held Indians as slaves; the counterweight at §27, that an encomendero who shows a coloured title has justified his possession enough to keep the encomienda and exclude the Fisco from dispossessing him, because possession continued some years is so powerful that a man must be protected and maintained in it on an apparent title alone until he is beaten in the suit on property, and no man may be stripped of an old possession without being cited, heard and convicted first judicially, not even where a particular rescript of the prince orders the dispossession; the old Provisión of Monzón of 25 October, printed here as 1533, expressly commanding that citation; the contrary case at §29 of a new possession under an evidently unjust title, where many hold that kings and great princes may proceed at once to dispossession and that the possessory remedies and the interdict unde vi do not run against them; the cases at §§30-31 where no citation is needed, that is the taking of what a holder has beyond his title, matrícula or padrón, and the places where a custom of dispossessing without citation on sight of an unjust title had been introduced; the addition at §32 that when two private parties litigate over an encomienda it is not necessary that the Indians themselves who are to be encomendados be cited, any more than the neighbours and vassals of a town when two lords contend over its jurisdiction, or the parishioners when the union of a benefice is in question; the ruling at §§33-35 that a private party dispossessed by another need not exhibit any title to be restored, because in the recovery of possession it is enough to have possessed and to be dispossessed, so that proving this he must be restored before all things even if he is a notorious thief; and the extension at §§36-37 of the same to dispossessions by inferior judges, which the Audiencias are to revoke and restore at once as manifest atentados, the cédulas having left them of the three possessory interdicts the recuperandæ and the retinendæ alone · primary
That protection is then stated as a rule binding the prince himself. At §27 "à nadie sin citarle, oirle, y convencerle primero judicialmente, se le puede quitar la antigua possession, en que se hallare, aunque sea con Titulo menos bastante, que los Doctos llaman discolorado, y que no se puede escusar esto, aunque para ello intervenga Rescripto particular del Principe, en que se ordene, y mande executar el despojo: porque por lo menos será menester convencerle primero en juicio sumario." At §28 the same is said to be supported by "la Provision antigua, dada en Monzon en 25. de Octubre del año de 1533, en que expressamente se manda hacer esta citacion, y declaracion, y no parece estar derogada por la ley posterior de Malinas, y sus Declaratorias, como se entienda concurriendo las circunstancias de Titulo tal qual, y possession antigua." That date contradicts §1 of the same chapter, which gives the same Provisión as of 1553; both readings were taken from the page here and the contradiction is left standing.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§25-37 — who had to show a title and who had to be heard before an encomienda was taken away: the Fisco's power, from a cédula of 1551 and capítulo XVIII of the instruction of the viceroy of Peru, to compel every holder of an encomienda by edict and public proclamation to exhibit his title, against the ordinary rule that no man must show another the title of his possession, because he who defends himself by title of fief, benefice or emphyteusis is bound to produce it and the king enters founding his own intention in all his kingdoms; the rule that where title is required for possession the possession does not avail without it, decided in these terms by the Real Cédula of 1551 that no man may call himself to possession of Indians unless he shows his legitimate title, and inferred from the Real Cédula despatched at Madrid in 1543 against those who held Indians as slaves; the counterweight at §27, that an encomendero who shows a coloured title has justified his possession enough to keep the encomienda and exclude the Fisco from dispossessing him, because possession continued some years is so powerful that a man must be protected and maintained in it on an apparent title alone until he is beaten in the suit on property, and no man may be stripped of an old possession without being cited, heard and convicted first judicially, not even where a particular rescript of the prince orders the dispossession; the old Provisión of Monzón of 25 October, printed here as 1533, expressly commanding that citation; the contrary case at §29 of a new possession under an evidently unjust title, where many hold that kings and great princes may proceed at once to dispossession and that the possessory remedies and the interdict unde vi do not run against them; the cases at §§30-31 where no citation is needed, that is the taking of what a holder has beyond his title, matrícula or padrón, and the places where a custom of dispossessing without citation on sight of an unjust title had been introduced; the addition at §32 that when two private parties litigate over an encomienda it is not necessary that the Indians themselves who are to be encomendados be cited, any more than the neighbours and vassals of a town when two lords contend over its jurisdiction, or the parishioners when the union of a benefice is in question; the ruling at §§33-35 that a private party dispossessed by another need not exhibit any title to be restored, because in the recovery of possession it is enough to have possessed and to be dispossessed, so that proving this he must be restored before all things even if he is a notorious thief; and the extension at §§36-37 of the same to dispossessions by inferior judges, which the Audiencias are to revoke and restore at once as manifest atentados, the cédulas having left them of the three possessory interdicts the recuperandæ and the retinendæ alone · primary
The protection is then bounded by three exceptions, and they are given as much space as the rule. At §29, if the possession were new and the title evidently unjust, "muchos ay, que sienten, que pueden los Reyes, y Grandes Principes proceder luego à despojo, y que contra ellos no competen los remedios possessorios, ni el interdicto unde vi, porque no están obligados à guardar los apices, y terminos judiciarios, y en duda tienen por si la presumpcion, de que procedan bien, y caminan la verdad sabida, à diferencia de los despojados por otros inferiores particulares", Rosenthal being cited as resolving at length for the emperor "que puede despojar, y despoja al notorio despojador, y que entonces no necessita de citacion." At §30, when the question is of "las quentas de los Indios de ellas, y de quitar à los Encomenderos, lo que se hallare, que tienen demás de lo contenido en sus Titulos, Matriculas, ò Padrones: porque para esto no es necessaria citacion alguna." At §31 the same where a local custom of dispossessing without citation on sight of an unjust or defective title had been introduced, "porque esta costumbre será bastante para escusarla."
confidence 0.9Política Indiana, libro III, capítulo XXX, §§25-37 — who had to show a title and who had to be heard before an encomienda was taken away: the Fisco's power, from a cédula of 1551 and capítulo XVIII of the instruction of the viceroy of Peru, to compel every holder of an encomienda by edict and public proclamation to exhibit his title, against the ordinary rule that no man must show another the title of his possession, because he who defends himself by title of fief, benefice or emphyteusis is bound to produce it and the king enters founding his own intention in all his kingdoms; the rule that where title is required for possession the possession does not avail without it, decided in these terms by the Real Cédula of 1551 that no man may call himself to possession of Indians unless he shows his legitimate title, and inferred from the Real Cédula despatched at Madrid in 1543 against those who held Indians as slaves; the counterweight at §27, that an encomendero who shows a coloured title has justified his possession enough to keep the encomienda and exclude the Fisco from dispossessing him, because possession continued some years is so powerful that a man must be protected and maintained in it on an apparent title alone until he is beaten in the suit on property, and no man may be stripped of an old possession without being cited, heard and convicted first judicially, not even where a particular rescript of the prince orders the dispossession; the old Provisión of Monzón of 25 October, printed here as 1533, expressly commanding that citation; the contrary case at §29 of a new possession under an evidently unjust title, where many hold that kings and great princes may proceed at once to dispossession and that the possessory remedies and the interdict unde vi do not run against them; the cases at §§30-31 where no citation is needed, that is the taking of what a holder has beyond his title, matrícula or padrón, and the places where a custom of dispossessing without citation on sight of an unjust title had been introduced; the addition at §32 that when two private parties litigate over an encomienda it is not necessary that the Indians themselves who are to be encomendados be cited, any more than the neighbours and vassals of a town when two lords contend over its jurisdiction, or the parishioners when the union of a benefice is in question; the ruling at §§33-35 that a private party dispossessed by another need not exhibit any title to be restored, because in the recovery of possession it is enough to have possessed and to be dispossessed, so that proving this he must be restored before all things even if he is a notorious thief; and the extension at §§36-37 of the same to dispossessions by inferior judges, which the Audiencias are to revoke and restore at once as manifest atentados, the cédulas having left them of the three possessory interdicts the recuperandæ and the retinendæ alone · primary
The chapter then answers, in the negative and in a single sentence, the question of whether the people whose tribute and labour were the subject of the suit had any standing in it. At §32 "A los quales Yo añado, que quando entre dos Particulares se litiga sobre una Encomienda, ù otro derecho semejante, tampoco es necessario, que sean citados los mismos Indios, que han de ser encomendados, como ni los Vecinos, y Vassallos de un Pueblo, quando entre dos Señores se contiende sobre su jurisdiccion, ni los Parroquianos, quando se trata de la union de algun Beneficio, segun otras doctrinas de el mismo Baldo, Inocencio, Jason, y los que los siguen." The analogy is exact and it is the point: the Indians of an encomienda stand to the litigation as the inhabitants of a European seigneury stand to a dispute between two lords over its jurisdiction, or as parishioners stand to the union of their benefice. This is the addition the author makes in his own voice, marked "Yo añado", and it is placed among the cases where no citation at all is required.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§25-37 — who had to show a title and who had to be heard before an encomienda was taken away: the Fisco's power, from a cédula of 1551 and capítulo XVIII of the instruction of the viceroy of Peru, to compel every holder of an encomienda by edict and public proclamation to exhibit his title, against the ordinary rule that no man must show another the title of his possession, because he who defends himself by title of fief, benefice or emphyteusis is bound to produce it and the king enters founding his own intention in all his kingdoms; the rule that where title is required for possession the possession does not avail without it, decided in these terms by the Real Cédula of 1551 that no man may call himself to possession of Indians unless he shows his legitimate title, and inferred from the Real Cédula despatched at Madrid in 1543 against those who held Indians as slaves; the counterweight at §27, that an encomendero who shows a coloured title has justified his possession enough to keep the encomienda and exclude the Fisco from dispossessing him, because possession continued some years is so powerful that a man must be protected and maintained in it on an apparent title alone until he is beaten in the suit on property, and no man may be stripped of an old possession without being cited, heard and convicted first judicially, not even where a particular rescript of the prince orders the dispossession; the old Provisión of Monzón of 25 October, printed here as 1533, expressly commanding that citation; the contrary case at §29 of a new possession under an evidently unjust title, where many hold that kings and great princes may proceed at once to dispossession and that the possessory remedies and the interdict unde vi do not run against them; the cases at §§30-31 where no citation is needed, that is the taking of what a holder has beyond his title, matrícula or padrón, and the places where a custom of dispossessing without citation on sight of an unjust title had been introduced; the addition at §32 that when two private parties litigate over an encomienda it is not necessary that the Indians themselves who are to be encomendados be cited, any more than the neighbours and vassals of a town when two lords contend over its jurisdiction, or the parishioners when the union of a benefice is in question; the ruling at §§33-35 that a private party dispossessed by another need not exhibit any title to be restored, because in the recovery of possession it is enough to have possessed and to be dispossessed, so that proving this he must be restored before all things even if he is a notorious thief; and the extension at §§36-37 of the same to dispossessions by inferior judges, which the Audiencias are to revoke and restore at once as manifest atentados, the cédulas having left them of the three possessory interdicts the recuperandæ and the retinendæ alone · primary
The next question tests the symmetry of the chapter's own rule about titles, and the answer is that it is not symmetrical. At §33 "Pero aora entra aqui otra question, y es, si la exhibicion del Titulo, y justificacion de la possession de la Encomienda, que concedemos al Fisco, quando quiere pleytear sobre ella, la debemos conceder à algun Particular, que se agravia de haver sido despojado por otro, y pide restitucion de este despojo en las Audiencias de las Indias en conformidad, de lo que les está cometido por las Cedulas referidas?" At §34 "Y soy de parecer, que no lo podemos estender à Particulares, ò como vulgarmente solemos decir, en los despojos de las Encomiendas, que se hacen de parte à parte. Porque al Fisco se le hace esta exhibicion, porque tiene fundada su intencion, no solo en quanto à la propiedad; sino tambien en quanto à la possession", whereas two private claimants both derive whatever right they have from the king and so "para lo possessorio, no necessitan entre si de Titulo alguno, aun para colorar su possession, y mucho menos de exhibirle."
confidence 0.9Política Indiana, libro III, capítulo XXX, §§25-37 — who had to show a title and who had to be heard before an encomienda was taken away: the Fisco's power, from a cédula of 1551 and capítulo XVIII of the instruction of the viceroy of Peru, to compel every holder of an encomienda by edict and public proclamation to exhibit his title, against the ordinary rule that no man must show another the title of his possession, because he who defends himself by title of fief, benefice or emphyteusis is bound to produce it and the king enters founding his own intention in all his kingdoms; the rule that where title is required for possession the possession does not avail without it, decided in these terms by the Real Cédula of 1551 that no man may call himself to possession of Indians unless he shows his legitimate title, and inferred from the Real Cédula despatched at Madrid in 1543 against those who held Indians as slaves; the counterweight at §27, that an encomendero who shows a coloured title has justified his possession enough to keep the encomienda and exclude the Fisco from dispossessing him, because possession continued some years is so powerful that a man must be protected and maintained in it on an apparent title alone until he is beaten in the suit on property, and no man may be stripped of an old possession without being cited, heard and convicted first judicially, not even where a particular rescript of the prince orders the dispossession; the old Provisión of Monzón of 25 October, printed here as 1533, expressly commanding that citation; the contrary case at §29 of a new possession under an evidently unjust title, where many hold that kings and great princes may proceed at once to dispossession and that the possessory remedies and the interdict unde vi do not run against them; the cases at §§30-31 where no citation is needed, that is the taking of what a holder has beyond his title, matrícula or padrón, and the places where a custom of dispossessing without citation on sight of an unjust title had been introduced; the addition at §32 that when two private parties litigate over an encomienda it is not necessary that the Indians themselves who are to be encomendados be cited, any more than the neighbours and vassals of a town when two lords contend over its jurisdiction, or the parishioners when the union of a benefice is in question; the ruling at §§33-35 that a private party dispossessed by another need not exhibit any title to be restored, because in the recovery of possession it is enough to have possessed and to be dispossessed, so that proving this he must be restored before all things even if he is a notorious thief; and the extension at §§36-37 of the same to dispossessions by inferior judges, which the Audiencias are to revoke and restore at once as manifest atentados, the cédulas having left them of the three possessory interdicts the recuperandæ and the retinendæ alone · primary
The possessory remedy is then stated in its widest and most striking form. At §35 "Y venimos à estar en las reglas comunes, y terminos vulgares del Derecho, que enseñan, que en las cosas profanas, al que pide, ò intenta el remedio, ò interdicto de recuperar su possession, no le incumbe probar, ni exhibir Titulo; sino solo haver posseido, y estar despojado, y que de esto conste por los Autos: porque en probando esto, aunque sea un notorio ladron, ha de ser restituydo ante todas cosas, sin que esto se impida, por mas que de contrario se le oponga, y se pretenda probar incontinenti, que le obsta notorio defecto de Titulo, y de Derecho en la propiedad, y que no es, ni puede ser parte para pedir, lo que pide: porque todo esto no es de este juicio, y se reserva para otro en favor del despojo, y odio del que le hizo." Menochio is then cited for the feudal corollary "que el que violentamente ocupa el posseido por otro en qualquier manera, pierde por solo esso el derecho, que pudiera tener al tal Feudo."
confidence 0.9Política Indiana, libro III, capítulo XXX, §§25-37 — who had to show a title and who had to be heard before an encomienda was taken away: the Fisco's power, from a cédula of 1551 and capítulo XVIII of the instruction of the viceroy of Peru, to compel every holder of an encomienda by edict and public proclamation to exhibit his title, against the ordinary rule that no man must show another the title of his possession, because he who defends himself by title of fief, benefice or emphyteusis is bound to produce it and the king enters founding his own intention in all his kingdoms; the rule that where title is required for possession the possession does not avail without it, decided in these terms by the Real Cédula of 1551 that no man may call himself to possession of Indians unless he shows his legitimate title, and inferred from the Real Cédula despatched at Madrid in 1543 against those who held Indians as slaves; the counterweight at §27, that an encomendero who shows a coloured title has justified his possession enough to keep the encomienda and exclude the Fisco from dispossessing him, because possession continued some years is so powerful that a man must be protected and maintained in it on an apparent title alone until he is beaten in the suit on property, and no man may be stripped of an old possession without being cited, heard and convicted first judicially, not even where a particular rescript of the prince orders the dispossession; the old Provisión of Monzón of 25 October, printed here as 1533, expressly commanding that citation; the contrary case at §29 of a new possession under an evidently unjust title, where many hold that kings and great princes may proceed at once to dispossession and that the possessory remedies and the interdict unde vi do not run against them; the cases at §§30-31 where no citation is needed, that is the taking of what a holder has beyond his title, matrícula or padrón, and the places where a custom of dispossessing without citation on sight of an unjust title had been introduced; the addition at §32 that when two private parties litigate over an encomienda it is not necessary that the Indians themselves who are to be encomendados be cited, any more than the neighbours and vassals of a town when two lords contend over its jurisdiction, or the parishioners when the union of a benefice is in question; the ruling at §§33-35 that a private party dispossessed by another need not exhibit any title to be restored, because in the recovery of possession it is enough to have possessed and to be dispossessed, so that proving this he must be restored before all things even if he is a notorious thief; and the extension at §§36-37 of the same to dispossessions by inferior judges, which the Audiencias are to revoke and restore at once as manifest atentados, the cédulas having left them of the three possessory interdicts the recuperandæ and the retinendæ alone · primary
The same remedy is then extended from private force to official force, which is what makes it matter in a colonial setting. At §36 "Todo lo qual en las nuestras Encomiendas procederá igualmente en despojos hechos por Jueces inferiores, segun las ultimas disposiciones de las Cedulas, que he referido. Porque essos tambien, luego, y ante todas cosas se han de revocar, y restituir por las Reales Audiencias, declarandolos por manifiestos atentados, como en las mismas Cedulas se dice, las quales en suma, de los tres interdictos possessorios, que el Derecho llama, Adipiscendæ, Retinendæ, & Recuperandæ, solo parece, que quisieron dexar, y dexaron à las dichas Audiencias el Recuperandæ, quando los despojos se hacen de parte à parte, y el Retinendæ solo en quanto, à que cuiden, que verdaderos, y legitimos posseedores sean amparados en su possession." An asterisked line of the 1736 edition gives this as ley 126, título 15, libro 2 of the Recopilación; that citation is the editor's and no printing of the Recopilación was opened.
confidence 0.8Política Indiana, libro III, capítulo XXX, §§25-37 — who had to show a title and who had to be heard before an encomienda was taken away: the Fisco's power, from a cédula of 1551 and capítulo XVIII of the instruction of the viceroy of Peru, to compel every holder of an encomienda by edict and public proclamation to exhibit his title, against the ordinary rule that no man must show another the title of his possession, because he who defends himself by title of fief, benefice or emphyteusis is bound to produce it and the king enters founding his own intention in all his kingdoms; the rule that where title is required for possession the possession does not avail without it, decided in these terms by the Real Cédula of 1551 that no man may call himself to possession of Indians unless he shows his legitimate title, and inferred from the Real Cédula despatched at Madrid in 1543 against those who held Indians as slaves; the counterweight at §27, that an encomendero who shows a coloured title has justified his possession enough to keep the encomienda and exclude the Fisco from dispossessing him, because possession continued some years is so powerful that a man must be protected and maintained in it on an apparent title alone until he is beaten in the suit on property, and no man may be stripped of an old possession without being cited, heard and convicted first judicially, not even where a particular rescript of the prince orders the dispossession; the old Provisión of Monzón of 25 October, printed here as 1533, expressly commanding that citation; the contrary case at §29 of a new possession under an evidently unjust title, where many hold that kings and great princes may proceed at once to dispossession and that the possessory remedies and the interdict unde vi do not run against them; the cases at §§30-31 where no citation is needed, that is the taking of what a holder has beyond his title, matrícula or padrón, and the places where a custom of dispossessing without citation on sight of an unjust title had been introduced; the addition at §32 that when two private parties litigate over an encomienda it is not necessary that the Indians themselves who are to be encomendados be cited, any more than the neighbours and vassals of a town when two lords contend over its jurisdiction, or the parishioners when the union of a benefice is in question; the ruling at §§33-35 that a private party dispossessed by another need not exhibit any title to be restored, because in the recovery of possession it is enough to have possessed and to be dispossessed, so that proving this he must be restored before all things even if he is a notorious thief; and the extension at §§36-37 of the same to dispossessions by inferior judges, which the Audiencias are to revoke and restore at once as manifest atentados, the cédulas having left them of the three possessory interdicts the recuperandæ and the retinendæ alone · primary
The chapter closes this run by recording that the extension to official dispossessions was a later development, and by giving the reason for the change in terms that are not flattering to colonial administration. At §37 "Y aunque antiguamente no se admitia esto en los despojos de las Encomiendas hechos por los Jueces Ordinarios, por ventura por parecer, que estaba por ellos la presuncion, de que procedian justificadamente, despues lo extendieron tambien à ellos las Cedulas mas modernas, como se ha visto, excepto quando fuessen Virreyes, ò Governadores, que tienen facultad de encomendar, pareciendo, que los demás en Provincias tan remotas, y donde la Justicia anda tan relaxada, excederian tan facilmente como los Particulares." The presumption of regularity that ordinary judges once enjoyed was withdrawn from them, on the reasoning that in provinces so remote, and where justice was so slack, they would exceed as easily as private men.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§25-37 — who had to show a title and who had to be heard before an encomienda was taken away: the Fisco's power, from a cédula of 1551 and capítulo XVIII of the instruction of the viceroy of Peru, to compel every holder of an encomienda by edict and public proclamation to exhibit his title, against the ordinary rule that no man must show another the title of his possession, because he who defends himself by title of fief, benefice or emphyteusis is bound to produce it and the king enters founding his own intention in all his kingdoms; the rule that where title is required for possession the possession does not avail without it, decided in these terms by the Real Cédula of 1551 that no man may call himself to possession of Indians unless he shows his legitimate title, and inferred from the Real Cédula despatched at Madrid in 1543 against those who held Indians as slaves; the counterweight at §27, that an encomendero who shows a coloured title has justified his possession enough to keep the encomienda and exclude the Fisco from dispossessing him, because possession continued some years is so powerful that a man must be protected and maintained in it on an apparent title alone until he is beaten in the suit on property, and no man may be stripped of an old possession without being cited, heard and convicted first judicially, not even where a particular rescript of the prince orders the dispossession; the old Provisión of Monzón of 25 October, printed here as 1533, expressly commanding that citation; the contrary case at §29 of a new possession under an evidently unjust title, where many hold that kings and great princes may proceed at once to dispossession and that the possessory remedies and the interdict unde vi do not run against them; the cases at §§30-31 where no citation is needed, that is the taking of what a holder has beyond his title, matrícula or padrón, and the places where a custom of dispossessing without citation on sight of an unjust title had been introduced; the addition at §32 that when two private parties litigate over an encomienda it is not necessary that the Indians themselves who are to be encomendados be cited, any more than the neighbours and vassals of a town when two lords contend over its jurisdiction, or the parishioners when the union of a benefice is in question; the ruling at §§33-35 that a private party dispossessed by another need not exhibit any title to be restored, because in the recovery of possession it is enough to have possessed and to be dispossessed, so that proving this he must be restored before all things even if he is a notorious thief; and the extension at §§36-37 of the same to dispossessions by inferior judges, which the Audiencias are to revoke and restore at once as manifest atentados, the cédulas having left them of the three possessory interdicts the recuperandæ and the retinendæ alone · primary
What this entry establishes and what it does not. It establishes that the standard treatise on the government of the Indies put the burden of producing a grant on the encomendero and not on the crown, classing the encomienda with the fief and the benefice; that a cédula of 1551 is reported as making bare possession of Indians worthless without a legitimate title, and that the same device had been turned in 1543 against those who held Indians as slaves; that a merely coloured title nonetheless sufficed to keep the grant until the property suit was lost, and that no old possession could be taken without citation, hearing and judicial conviction, not even on a particular rescript of the prince; that three exceptions were admitted, of which the widest is a new possession under an evidently unjust title, where kings were said to be able to dispossess at once; that between two private claimants the man who had possessed and been dispossessed had to be restored before anything else was tried, "aunque sea un notorio ladron"; and that the same restitution was extended to dispossessions by inferior judges, but not to those by viceroys and governors. It establishes that the Indians of the encomienda were held not to be necessary parties to any of it, in the author's own added words and by analogy to vassals and parishioners. It establishes nothing about practice: no suit, party, date or Audiencia is named in these thirteen paragraphs, none of the cédulas was seen in its own printing, and nothing here shows what happened to any actual encomienda or to the people in it. In particular, the ruling at §32 is a statement of doctrine and not evidence of what colonial courts in fact did when Indian communities litigated — which they did, in this same period, in forums this corpus treats elsewhere.
confidence 0.9Política Indiana, libro III, capítulo XXX, §§25-37 — who had to show a title and who had to be heard before an encomienda was taken away: the Fisco's power, from a cédula of 1551 and capítulo XVIII of the instruction of the viceroy of Peru, to compel every holder of an encomienda by edict and public proclamation to exhibit his title, against the ordinary rule that no man must show another the title of his possession, because he who defends himself by title of fief, benefice or emphyteusis is bound to produce it and the king enters founding his own intention in all his kingdoms; the rule that where title is required for possession the possession does not avail without it, decided in these terms by the Real Cédula of 1551 that no man may call himself to possession of Indians unless he shows his legitimate title, and inferred from the Real Cédula despatched at Madrid in 1543 against those who held Indians as slaves; the counterweight at §27, that an encomendero who shows a coloured title has justified his possession enough to keep the encomienda and exclude the Fisco from dispossessing him, because possession continued some years is so powerful that a man must be protected and maintained in it on an apparent title alone until he is beaten in the suit on property, and no man may be stripped of an old possession without being cited, heard and convicted first judicially, not even where a particular rescript of the prince orders the dispossession; the old Provisión of Monzón of 25 October, printed here as 1533, expressly commanding that citation; the contrary case at §29 of a new possession under an evidently unjust title, where many hold that kings and great princes may proceed at once to dispossession and that the possessory remedies and the interdict unde vi do not run against them; the cases at §§30-31 where no citation is needed, that is the taking of what a holder has beyond his title, matrícula or padrón, and the places where a custom of dispossessing without citation on sight of an unjust title had been introduced; the addition at §32 that when two private parties litigate over an encomienda it is not necessary that the Indians themselves who are to be encomendados be cited, any more than the neighbours and vassals of a town when two lords contend over its jurisdiction, or the parishioners when the union of a benefice is in question; the ruling at §§33-35 that a private party dispossessed by another need not exhibit any title to be restored, because in the recovery of possession it is enough to have possessed and to be dispossessed, so that proving this he must be restored before all things even if he is a notorious thief; and the extension at §§36-37 of the same to dispossessions by inferior judges, which the Audiencias are to revoke and restore at once as manifest atentados, the cédulas having left them of the three possessory interdicts the recuperandæ and the retinendæ alone · primary