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 opens by saying what it is not about and then fixes the forum by the size of the grant. At §1 of libro III, capítulo XXXI of the Política Indiana "LO contenido en el Capitulo passado baste para lo tocante à questiones de despojos de las Encomiendas, en lo demás, que concierne à los pleytos, que se suelen mover sobre ellas en possession, y en propiedad, assi en las Audiencias de las Indias, quando no passan de mil ducados de renta, como en el Supremo Consejo de ellas, quando exceden de esta suma, se guarda en el processar, y determinar el modo ordinario de las demás causas, como tambien acontece en los Feudos, segun lo que despues de Mozio Pistor, y otros, escribe Rosenthal." Two things are stated at once: an encomienda suit was an ordinary civil suit and not a special administrative proceeding, and a thousand ducats of annual rent was the line above which the case left the Indies for Madrid. This entry is scoped to §§1-4, the opening run of the chapter.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§1-4 — how encomienda suits were actually processed: the statement at §1 that the previous chapter suffices for questions of dispossession and that in everything else concerning suits moved over encomiendas in possession and in property, whether in the Audiencias of the Indies when they do not pass a thousand ducats of rent or in the Supreme Council of the Indies when they exceed that sum, the ordinary mode of the other causes is kept in processing and determining them, as also happens in feudal causes; the exceptions at §2, that the term for the probanzas of those to be remitted to the Council is restricted to six months by the new cédulas, which in this part moderated somewhat the harshness of the old ones that allowed only three, and that anciently no citation of the parties was required in order to remit the process to the Council, nor publication of witnesses, nor auto de conclusión, 'lo qual se enmendó despues justa, y advertidamente'; the question at §3 whether publication and conclusion are of the substance of the trial, answered that the affirmative is the truer when the party complained and appealed of their not having been done, because the defect either makes the credit owed to the witnesses waver greatly or destroys it altogether; and at §4 the rule that all the possessory remedies that Rosenthal collects for feudal causes compete for encomiendas, that whoever would move suit should first see whether one of them is open to him because of the great advantages of litigating in possession, that where possessory and petitory are moved together the possessory is determined first, but that where the grounds of both are the same and can equally appear in either there is no need to divide them — with Sarmiento's warning, which the author calls very worthy of being held in memory, that litigants, judges, advocates and attorneys who, knowing a notorious defect in the property, insist on or pronounce in superficial and dilatory remedies instead of giving the party his right plenarily and in property, sin mortally and are bound to pay all the costs, damages and interests of the parties · primary
The first exception to the ordinary mode is a deadline, and the page records that it had been relaxed. At §2 "Excepto, que el termino de las probanzas, de los que se han de remitir al Consejo, está restringido à seis meses por las nuevas Cedulas, que en esta parte moderaron algo la dureza de las antiguas, que solo concedian tres." The number matters because of the distance it had to cover: a party whose case was going to Madrid had six months, formerly three, to make his proof in America. The cédulas old and new are known here only as this book reports them; neither was opened in its own printing.
confidence 0.85Política Indiana, libro III, capítulo XXXI, §§1-4 — how encomienda suits were actually processed: the statement at §1 that the previous chapter suffices for questions of dispossession and that in everything else concerning suits moved over encomiendas in possession and in property, whether in the Audiencias of the Indies when they do not pass a thousand ducats of rent or in the Supreme Council of the Indies when they exceed that sum, the ordinary mode of the other causes is kept in processing and determining them, as also happens in feudal causes; the exceptions at §2, that the term for the probanzas of those to be remitted to the Council is restricted to six months by the new cédulas, which in this part moderated somewhat the harshness of the old ones that allowed only three, and that anciently no citation of the parties was required in order to remit the process to the Council, nor publication of witnesses, nor auto de conclusión, 'lo qual se enmendó despues justa, y advertidamente'; the question at §3 whether publication and conclusion are of the substance of the trial, answered that the affirmative is the truer when the party complained and appealed of their not having been done, because the defect either makes the credit owed to the witnesses waver greatly or destroys it altogether; and at §4 the rule that all the possessory remedies that Rosenthal collects for feudal causes compete for encomiendas, that whoever would move suit should first see whether one of them is open to him because of the great advantages of litigating in possession, that where possessory and petitory are moved together the possessory is determined first, but that where the grounds of both are the same and can equally appear in either there is no need to divide them — with Sarmiento's warning, which the author calls very worthy of being held in memory, that litigants, judges, advocates and attorneys who, knowing a notorious defect in the property, insist on or pronounce in superficial and dilatory remedies instead of giving the party his right plenarily and in property, sin mortally and are bound to pay all the costs, damages and interests of the parties · primary
The second exception is a change in procedure that the author calls an amendment, and it is a due-process gain stated as such. At §2 "Como en que antiguamente no se pedia citacion de partes para hacer la remission de el processo al Consejo, ni publicacion de testigos, ni Auto de conclusion, lo qual se enmendó despues justa, y advertidamente." Before the change a colonial process could be closed and shipped to Madrid without summoning the parties, without publishing the witnesses' depositions and without the formal decree closing the case; afterwards all three were required. The page does not date either state of the practice or name the instrument that changed it.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§1-4 — how encomienda suits were actually processed: the statement at §1 that the previous chapter suffices for questions of dispossession and that in everything else concerning suits moved over encomiendas in possession and in property, whether in the Audiencias of the Indies when they do not pass a thousand ducats of rent or in the Supreme Council of the Indies when they exceed that sum, the ordinary mode of the other causes is kept in processing and determining them, as also happens in feudal causes; the exceptions at §2, that the term for the probanzas of those to be remitted to the Council is restricted to six months by the new cédulas, which in this part moderated somewhat the harshness of the old ones that allowed only three, and that anciently no citation of the parties was required in order to remit the process to the Council, nor publication of witnesses, nor auto de conclusión, 'lo qual se enmendó despues justa, y advertidamente'; the question at §3 whether publication and conclusion are of the substance of the trial, answered that the affirmative is the truer when the party complained and appealed of their not having been done, because the defect either makes the credit owed to the witnesses waver greatly or destroys it altogether; and at §4 the rule that all the possessory remedies that Rosenthal collects for feudal causes compete for encomiendas, that whoever would move suit should first see whether one of them is open to him because of the great advantages of litigating in possession, that where possessory and petitory are moved together the possessory is determined first, but that where the grounds of both are the same and can equally appear in either there is no need to divide them — with Sarmiento's warning, which the author calls very worthy of being held in memory, that litigants, judges, advocates and attorneys who, knowing a notorious defect in the property, insist on or pronounce in superficial and dilatory remedies instead of giving the party his right plenarily and in property, sin mortally and are bound to pay all the costs, damages and interests of the parties · primary
Whether those formalities were substance or form is then argued, and the answer is tied to whether the party complained at the time. At §3 "Porque aunque entre los DD. de nuestro Reyno ay opiniones contrarias, en si la publicacion, y conclusion son de substancia del juicio; lo cierto es, que la afirmativa es mas verdadera, quando la parte se agravió, y apeló de no haverse hecho, y que su defecto, ò hace vacilar mucho la fee, y credito, que se debe dar à los testigos, ò la enerva del todo: como lo resuelven Farinacio, Menochio, y otros Modernos." The ground given is evidentiary rather than formal: unpublished testimony cannot be tested, and untested testimony is worth little or nothing.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§1-4 — how encomienda suits were actually processed: the statement at §1 that the previous chapter suffices for questions of dispossession and that in everything else concerning suits moved over encomiendas in possession and in property, whether in the Audiencias of the Indies when they do not pass a thousand ducats of rent or in the Supreme Council of the Indies when they exceed that sum, the ordinary mode of the other causes is kept in processing and determining them, as also happens in feudal causes; the exceptions at §2, that the term for the probanzas of those to be remitted to the Council is restricted to six months by the new cédulas, which in this part moderated somewhat the harshness of the old ones that allowed only three, and that anciently no citation of the parties was required in order to remit the process to the Council, nor publication of witnesses, nor auto de conclusión, 'lo qual se enmendó despues justa, y advertidamente'; the question at §3 whether publication and conclusion are of the substance of the trial, answered that the affirmative is the truer when the party complained and appealed of their not having been done, because the defect either makes the credit owed to the witnesses waver greatly or destroys it altogether; and at §4 the rule that all the possessory remedies that Rosenthal collects for feudal causes compete for encomiendas, that whoever would move suit should first see whether one of them is open to him because of the great advantages of litigating in possession, that where possessory and petitory are moved together the possessory is determined first, but that where the grounds of both are the same and can equally appear in either there is no need to divide them — with Sarmiento's warning, which the author calls very worthy of being held in memory, that litigants, judges, advocates and attorneys who, knowing a notorious defect in the property, insist on or pronounce in superficial and dilatory remedies instead of giving the party his right plenarily and in property, sin mortally and are bound to pay all the costs, damages and interests of the parties · primary
The chapter then advises the litigant where to start, and the advice is frankly tactical. At §4 "Y competen por nuestras Encomiendas todos los remedios possessorios, que para los Feudos junta, y examina Rosenthal: y assi, el que quisiere mover pleyto sobre ellas, debe mirar ante todas cosas, si le puede competer alguno de ellos por las grandes comodidades, que trae consigo el pleytear posseyendo, segun nos lo enseña el Derecho." The whole battery of possessory remedies of the common and feudal law was available in encomienda causes, and the author tells the reader to look for one before suing on the property, because litigating from possession is a large advantage.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§1-4 — how encomienda suits were actually processed: the statement at §1 that the previous chapter suffices for questions of dispossession and that in everything else concerning suits moved over encomiendas in possession and in property, whether in the Audiencias of the Indies when they do not pass a thousand ducats of rent or in the Supreme Council of the Indies when they exceed that sum, the ordinary mode of the other causes is kept in processing and determining them, as also happens in feudal causes; the exceptions at §2, that the term for the probanzas of those to be remitted to the Council is restricted to six months by the new cédulas, which in this part moderated somewhat the harshness of the old ones that allowed only three, and that anciently no citation of the parties was required in order to remit the process to the Council, nor publication of witnesses, nor auto de conclusión, 'lo qual se enmendó despues justa, y advertidamente'; the question at §3 whether publication and conclusion are of the substance of the trial, answered that the affirmative is the truer when the party complained and appealed of their not having been done, because the defect either makes the credit owed to the witnesses waver greatly or destroys it altogether; and at §4 the rule that all the possessory remedies that Rosenthal collects for feudal causes compete for encomiendas, that whoever would move suit should first see whether one of them is open to him because of the great advantages of litigating in possession, that where possessory and petitory are moved together the possessory is determined first, but that where the grounds of both are the same and can equally appear in either there is no need to divide them — with Sarmiento's warning, which the author calls very worthy of being held in memory, that litigants, judges, advocates and attorneys who, knowing a notorious defect in the property, insist on or pronounce in superficial and dilatory remedies instead of giving the party his right plenarily and in property, sin mortally and are bound to pay all the costs, damages and interests of the parties · primary
The order between the two suits is stated with its exception. Still at §4, where the possessory and petitory causes are moved together "se ha de determinar primero el possessorio. Aunque tambien es verdad, que si son unos mismos los fundamentos del un juicio, y del otro, y de ambos puede constar igualmente en qualquiera de ellos, no ay necessidad de dividirlos, ni formar los pleytos separados: como grave, y doctamente lo advierten Sarmiento, y otros." The exception is the hinge of the paragraph: where the same facts decide both questions, splitting the case into two is not required — and, as the next claim shows, insisting on the split is treated as a wrong.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§1-4 — how encomienda suits were actually processed: the statement at §1 that the previous chapter suffices for questions of dispossession and that in everything else concerning suits moved over encomiendas in possession and in property, whether in the Audiencias of the Indies when they do not pass a thousand ducats of rent or in the Supreme Council of the Indies when they exceed that sum, the ordinary mode of the other causes is kept in processing and determining them, as also happens in feudal causes; the exceptions at §2, that the term for the probanzas of those to be remitted to the Council is restricted to six months by the new cédulas, which in this part moderated somewhat the harshness of the old ones that allowed only three, and that anciently no citation of the parties was required in order to remit the process to the Council, nor publication of witnesses, nor auto de conclusión, 'lo qual se enmendó despues justa, y advertidamente'; the question at §3 whether publication and conclusion are of the substance of the trial, answered that the affirmative is the truer when the party complained and appealed of their not having been done, because the defect either makes the credit owed to the witnesses waver greatly or destroys it altogether; and at §4 the rule that all the possessory remedies that Rosenthal collects for feudal causes compete for encomiendas, that whoever would move suit should first see whether one of them is open to him because of the great advantages of litigating in possession, that where possessory and petitory are moved together the possessory is determined first, but that where the grounds of both are the same and can equally appear in either there is no need to divide them — with Sarmiento's warning, which the author calls very worthy of being held in memory, that litigants, judges, advocates and attorneys who, knowing a notorious defect in the property, insist on or pronounce in superficial and dilatory remedies instead of giving the party his right plenarily and in property, sin mortally and are bound to pay all the costs, damages and interests of the parties · primary
The run closes on a rule of professional conduct that the author says is worth holding in memory, and it is the strongest sentence in these four paragraphs. At §4, Sarmiento and others affirm "una cosa, que es muy digna de tenerse en memoria: conviene à saber, que peca mortalmente, y están obligados à pagar todas las costas, daños, è interesses de las partes, assi los Litigantes, como los Jueces, Abogados, y Procuradores, que conociendo en los meritos de la causa notorio defecto en la propiedad, insisten, ò pronuncian en remedios superficiales, y dilatorios, dexando de dar luego plenariamente, y en propiedad su derecho à la parte, à quien conocen, que le compete." The sanction is both spiritual and pecuniary, and it is laid on the bench and the bar in the same breath as on the parties. The printed SUMARIO gives it a head of its own under head 4: "Pecan mortalmente los que conociendo justicia en la propiedad, dilatan con otros juicios."
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§1-4 — how encomienda suits were actually processed: the statement at §1 that the previous chapter suffices for questions of dispossession and that in everything else concerning suits moved over encomiendas in possession and in property, whether in the Audiencias of the Indies when they do not pass a thousand ducats of rent or in the Supreme Council of the Indies when they exceed that sum, the ordinary mode of the other causes is kept in processing and determining them, as also happens in feudal causes; the exceptions at §2, that the term for the probanzas of those to be remitted to the Council is restricted to six months by the new cédulas, which in this part moderated somewhat the harshness of the old ones that allowed only three, and that anciently no citation of the parties was required in order to remit the process to the Council, nor publication of witnesses, nor auto de conclusión, 'lo qual se enmendó despues justa, y advertidamente'; the question at §3 whether publication and conclusion are of the substance of the trial, answered that the affirmative is the truer when the party complained and appealed of their not having been done, because the defect either makes the credit owed to the witnesses waver greatly or destroys it altogether; and at §4 the rule that all the possessory remedies that Rosenthal collects for feudal causes compete for encomiendas, that whoever would move suit should first see whether one of them is open to him because of the great advantages of litigating in possession, that where possessory and petitory are moved together the possessory is determined first, but that where the grounds of both are the same and can equally appear in either there is no need to divide them — with Sarmiento's warning, which the author calls very worthy of being held in memory, that litigants, judges, advocates and attorneys who, knowing a notorious defect in the property, insist on or pronounce in superficial and dilatory remedies instead of giving the party his right plenarily and in property, sin mortally and are bound to pay all the costs, damages and interests of the parties · primary
What this entry establishes and what it does not. It establishes what the standard seventeenth-century treatise on the government of the Spanish Indies told its readers about the procedure of encomienda suits: that they followed the ordinary mode; that a thousand ducats of rent divided the jurisdiction of the Audiencias of the Indies from that of the Council; that the term for proofs in cases going to Madrid had been extended from three months to six by later cédulas; that citation of the parties, publication of witnesses and the auto de conclusión had once not been required before a process was remitted and were required afterwards, a change the author calls just and well advised; that publication and conclusion were held to be of substance where the party had objected and appealed; that all the possessory remedies of the common and feudal law lay for encomiendas and the possessory was ordinarily tried first; and that litigants, judges, advocates and attorneys who pursued dilatory remedies knowing the merits were said to sin mortally and to owe all costs, damages and interests. It establishes nothing about how any of this worked in practice: no case, no date, no court and no instrument is named anywhere in these four paragraphs, no cédula was opened in its own printing, and the treatise is by a judge of the Audiencia of Lima and later a councillor of the Indies writing about the courts he served in. It should also be said plainly what the object of these suits was: an encomienda was a grant of the tribute and labour of Indian towns, so the "possession" being protected here is possession of the right to that tribute, and the Indians of those towns are not parties to any of these proceedings — a point the same book states expressly at §32 of the preceding chapter and which this corpus treats in a separate entry.
confidence 0.9Política Indiana, libro III, capítulo XXXI, §§1-4 — how encomienda suits were actually processed: the statement at §1 that the previous chapter suffices for questions of dispossession and that in everything else concerning suits moved over encomiendas in possession and in property, whether in the Audiencias of the Indies when they do not pass a thousand ducats of rent or in the Supreme Council of the Indies when they exceed that sum, the ordinary mode of the other causes is kept in processing and determining them, as also happens in feudal causes; the exceptions at §2, that the term for the probanzas of those to be remitted to the Council is restricted to six months by the new cédulas, which in this part moderated somewhat the harshness of the old ones that allowed only three, and that anciently no citation of the parties was required in order to remit the process to the Council, nor publication of witnesses, nor auto de conclusión, 'lo qual se enmendó despues justa, y advertidamente'; the question at §3 whether publication and conclusion are of the substance of the trial, answered that the affirmative is the truer when the party complained and appealed of their not having been done, because the defect either makes the credit owed to the witnesses waver greatly or destroys it altogether; and at §4 the rule that all the possessory remedies that Rosenthal collects for feudal causes compete for encomiendas, that whoever would move suit should first see whether one of them is open to him because of the great advantages of litigating in possession, that where possessory and petitory are moved together the possessory is determined first, but that where the grounds of both are the same and can equally appear in either there is no need to divide them — with Sarmiento's warning, which the author calls very worthy of being held in memory, that litigants, judges, advocates and attorneys who, knowing a notorious defect in the property, insist on or pronounce in superficial and dilatory remedies instead of giving the party his right plenarily and in property, sin mortally and are bound to pay all the costs, damages and interests of the parties · primary