Chapter 19

69. _Item_: There shall be in the possession of our president a record in which every clerk shall enter in his presence, every week, the sentences passed in presence of the said clerk, on pain of being obliged to pay them from his own property. When the president and auditors shall have need of anything, they shall give a warrant for it on our treasurer on account of those moneys collected under judicial sentences passed for similar objects.

_Probate matters_

70. Further: We command that our Audiencia shall audit the accounts of the administrators of the estates of deceased persons, and shall see if they have observed the ordinances and decrees given with regard thereto. These accounts shall be audited in the month of January, on pain of loss of salary for two months, to be taken from that due the first third of the year, unless they show that they have audited the said accounts in the said month. We command further that, for the good administration of the estates of deceased persons, our said Audiencia shall appoint each year an auditor who shall be judge of such administration, and may try the matter as if the whole Audiencia were to try it.

_Indians, and matters relating to them_

71. _Item_: Our said president and auditors shall always take great care to be informed of the crimes and abuses which shall be committed, or have been committed, against the Indians who shall be under our royal crown, or against those granted in encomiendas to other persons by the governors or private persons. The said president and auditors shall make inquiry as to the manner in which the ordinances and instructions given in regard to this matter have been and are observed, punishing the guilty with all rigor, and providing means to bring it about that the said Indians shall be better treated and shall be instructed in our holy Catholic faith, regarding them as our free vassals. This must be their chief care; it is that for which we have chiefly to hold them accountable, and that in which they are chiefly called on to serve us.

72. We command that our said president and auditors shall take great care to give no opportunity that, in the cases in which Indians shall be plaintiffs or defendants, orders shall be granted on _ex parte_ motions [_procesos ordinarios_] or that the suits shall be long continued without prompt decision. Our said auditors shall preserve the usages and customs of the Indians when they are not plainly unjust, and shall take care that the same are preserved by the inferior judges.

73. Let our said Audiencia and the bishop see to it that in every village there shall be a person appointed to give instruction in doctrine to the Indians and blacks who serve without going into the field, every day one hour; and to those who go into the field, on Sundays and feast-days. And let the Audiencia and the bishop compel their lord to bid them go and learn the doctrine.

74. _Item_: Let no judge of first instance in the district o our said Audiencia meddle with depriving the caciques [50] of their caciquedoms for accusations brought before the said judge, on pain of removal from office and a fine of fifty thousand milreis to our treasury. Let the decision of the case in dispute be reserved for our Audiencia, for the auditor who shall next inspect the said villages.

75. _Item_: When a suit is brought against Indians, the plaintiff may make his complaint before our Audiencia, in whose district they are; and an order shall there be given the parties that within three months, which may be extended to not more than six, each one shall present his testimony. After the testimony of every twelve witnesses is taken, the report shall be sent, folded and sealed, without other publication or formal conclusion of the preliminary proceedings, to our council, that it may decree justice. And our auditors, before they send the record, shall cause the parties to be cited to come and appear before the said council in pursuance of the said action, within the term assigned them, with warning that if they do not appear, the case will be decided in their absence.

76. _Item_: We command that when anyone by his own authority shall deprive another of the possession of the Indians whom he shall have, our Audiencia, prohibiting the said violence and doing justice, shall restore matters to the state in which they were before the act was done.

77. _Item_: Let the president and auditors not permit any cacique or chief to come to this country from those regions without our license.

78. Further: Our auditors, on two days in the week and Saturdays, if they have no suits of poor persons before them, shall hear cases of Indians against Indians. We command that the auditor who shall go on a journey of inspection through the country shall have power to try cases with regard to the liberty of the Indians, making report before the Audiencia. Likewise the auditor who shall inspect the prison of the Indians shall examine the witnesses by personal examination, and not by report.

79. _Item_: Our president and auditors shall appoint a judge to allot the waters to the natives for the period during which need thereof may continue, whenever it may be necessary to do so, and no one shall be permitted to molest them therein. The said judge shall come to the Audiencia to give an account of what he shall have done, and he must not come at the cost of the Indians. Our said auditors shall take great care not to send a notary to take testimony [_receptor_] for light causes, to the Indians' villages or elsewhere, except in a matter of importance, and one in which there is great advantage in sending them.

_Fiscal_

80. _Item_: We command that our fiscal attorney of the said Audiencia shall have no authority to appear as an advocate in any case; and that he shall give his whole attention to what concerns us, our exchequer [_camara_] and treasury [_fisco_]; and he shall swear accordingly before our president and auditors. He shall serve in person, except when he shall absent himself for some just cause for a short time, with the permission of our president, and with his authorization for cases prosecuted at a distance from the seat of our said Audiencia. Our said fiscal shall take great care to see whether the decrees given and the ordinances made are carried out, especially those dealing with the instruction, conversion, kind treatment, and protection of the Indians.

81. _Item_: We command that our said fiscal shall sit on the right-hand bench, taking precedence of all the advocates; and at the inspection of the royal prison he shall sit in the court-room behind the auditors; and the same at the inspection of the city prison, the judges of first instance taking precedence of him; and in all other cases he shall take the best place after the auditors and after the alguazil-mayor of the Audiencia.

82. _Item_: We command that our said fiscal shall take care to assist and favor poor Indians in the suits they are carrying on, and to see to it on their behalf that they are not oppressed, maltreated, or wronged--acting in conformity with our laws and ordinances.

83. _Item_: We ordain and command that our said fiscal shall assume the charge and conduct of the cases concerning the execution of our justice, when appeal shall be taken from the corregidors or other judges.

84. Further: We command that our said fiscal shall bring no charges without waiting for a complainant, except when the fact is notorious, or when judicial inquiry has been made.

85. _Item_: It shall be his duty to concern himself, and he shall concern himself, with notorious immorality, and with the defense of the royal authority; and to this end he shall perform all necessary legal acts.

_Alguazil-mayor and his deputies_

86. _Item_: We command that our alguazil-mayor of our Audiencia shall be maintained in all the honors and dignities which are observed in the case of the alguazils-mayor of our audiencias of Valladolid and Granada, and that he shall take the place and seat taken by our said alguazils-mayor.

87. _Item_: We command that our said alguazil-mayor shall not farm out his office; and that he and his deputies shall observe the laws that deal therewith, and the oath that they take when admitted to office.

88. _Item_: We command that our said alguazil-mayor shall have authority to remove from office his deputies and jailers whenever he sees fit, and that he shall have authority to appoint and shall appoint others again, first presenting them before the Audiencia.

89. _Item_: We ordain and command that when our Audiencia shall depute any judge or commissioner of inspection [_visitador_] who shall need to take an alguazil, he shall take the deputy designated by our alguazil-mayor therefor, and shall employ him and no other--unless in some special case the contrary shall be approved by our Audiencia, for just cause.

90. _Item_: We command that our alguazil-mayor or his deputies, whensoever they shall be directed to arrest any person, shall do so and act accordingly without delay, concealment, or negligence--under a penalty of forty pesos for every occasion on which they do the contrary, in addition to the damage and concern of the parties, and of that which has been adjudged and decreed.

91. _Item_: We command that if a malefactor be found committing a crime they may and shall arrest him without a warrant. If it shall be in the day-time, they shall take him immediately before the Audiencia stating the cause of his arrest; if at night, they shall put him in jail, and without delay on the following morning shall produce him before the Audiencia, as aforesaid. They shall not venture to take any property from the person whom they arrest, on pain of being required to repay double what they have taken, for our treasury.

92. _Item_: We command that our said alguazil-mayor shall not tolerate forbidden games of chance or notorious immoralities; and if in the performance of his duty he shall meet with resistance, let him immediately come and declare the same to the said Audiencia, and on Saturday of each week let him come and give an account and review of what he has thus done, under penalty of being required to pay four pesos for the poor of the prison in each case.

93 _Item_: The said alguazil-mayor shall present before the Audiencia the two alguazils whom he shall appoint for himself, that they may be approved by us; and they shall not perform their functions until, after being thus presented before the said Audiencia, they shall swear in due form that they will well and faithfully perform their duties, observing the laws, decrees, and ordinances dealing with the same; and that they will not promise or give, and have not promised or given, for the sake of those offices, or for the profits thereof, or for anything else, the services of themselves or their men; and that from the income and profits of the said offices they have not given or promised anything. The same oath shall be required of the alguazil-mayor who shall present them, and likewise from the substitute alguazils--under the penalty prescribed for forswearing, and of dismissal from office.

94. _Item_: We command that they shall not take gifts or gratifications from the prisoners or from others for them, or for this cause lighten imprisonments or release prisoners. And they shall not make arrests without warrant, except in _flagrante delicto_, on pain of dismissal from office, of, being incapacitated for future employment, and of being required to repay fourfold what they have thus taken, to our exchequer.

95. _Item_: Our said alguazil-mayor shall appoint no jailer without first presenting him before our Audiencia, that it may be seen whether he is fit and able, and that he may be approved by our president and auditors--on pain of losing the right to appoint for a year. And the appointment shall be made by my said president and auditors.

96. _Item_: We command that he shall have no authority to take fees for executions without the previous payment of the party in interest, under the penalty prescribed for forswearing, and the other penalties contained in the laws and ordinances dealing herewith.

97. _Item_: Our said alguazil-mayor and his deputies shall be present at the sittings of the Audiencia, under a penalty of two pesos for every day of absence, for the poor of the prison.

98. _Item_: Our said alguazil-mayor or his deputies shall be obliged to make their rounds by night, on pain of being condemned to pay the damages resulting from their fault or negligence, and four pesos for the court-room of our Audiencia, for every night when they fail to do their duty.

99. _Item_: We command our said alguazil-mayor to be present at the inspections of the prisons of our said Audiencia, under a penalty of two pesos of gold for every time of failure, for the poor thereof.

100. _Item_: We command them to do and execute that which is commanded in the ordinances made or to be made for the good administration and government of the city or town where our Audiencia sits.

101. _Item_: They shall not take weapons from those who carry them at nightfall or after candle-light, or from those who rise early to go to their labors and tillage.

102. _Item_: They shall take no fees for the executions which it shall be their duty to levy, or which they shall levy, on the property or goods adjudged, or which shall be adjudged, to our treasury.

103. _Item_: We command them not to take the money of those who are found gambling, except when they exact from them the legal fine, which they have authority to put in safe-keeping when they find them engaged in the said gambling.

104. Further: Let him take care to go by nigh and day through the public places to prevent disturbances and quarrels, on pain of suspension from his offices.

105. _Item_: Let him take no fees for executions more than once for one debt, even when the party at whose instance the execution is made allows delay or continuance to the person against whose goods the said execution is made--on pain of being compelled to pay the excess of the fees fourfold, to our exchequer.

_Clerks of the Audiencia_

107. We ordain and command that the clerks [_escribanos_] of our Audiencia shall have no authority to appoint deputy clerks, administrative or judicial, in the cities, towns, and villages of the district of the said Audiencia, nor shall they employ therein such deputies.

108. _Item_: The clerks of the said Audiencia shall be appointed by us and by no other person; and in all matters relating to the examination of witnesses they shall follow the rules of the audiencias of these our realms.

109. [Amount of fees for clerks, seal, and register must be endorsed on all documents. Penalty: two pesos to the court-room.]

110. [Official reporter's [_relator_] fees must be endorsed and shown to party. Penalty: loss thereof.]

111. [Clerks to take testimony in person. Regulations as to substitutes acting when clerks are prevented, and as to collection of fees.]

112. [Clerks' and notaries' records to be annually inspected by an auditor.]

113. The said clerks shall enter in one order of court all the official positions which are provided for a village [_i. e._, of Indians], and on account thereof they shall receive no excessive fees. Their fees shall be paid by the superintendents [_calpiscas_] of the villages.

114. _Item:_ No Indians shall be granted in encomiendas by repartimiento to the clerks of our said Audiencia. If they are so granted, the said clerks shall have no authority to keep them.

115-120. [Section 115 provides that appeals from the decision of the inspector of weights and measures of the city where the Audiencia sits are to be given preference. Sections 116-120 contain provisions for promptitude and accuracy in the business of recording--among others, that the pages of the record of a case shall run with serial numbers, and that notice of the number of pages and parts of pages be given to the parties. The penalty for violation of each of these sections is two pesos for the court-room of the Audiencia.]

121. [The registers must be marked with a cross at the end of each year, under a penalty of thirty pesos to the exchequer.]

122. [If there is a supply of clerks, complaints must not be made before a clerk who is brother or cousin to the plaintiff.]

123. The said clerks shall not ask or accept fees for the ecclesiastical cases conducted before the said Audiencia at the suit of the corregidors or judges of residencia, with regard to matters relating to the defence of the royal authority; or for the proceedings transacted before the said officers and the decisions rendered with regard thereto--under penalty of a fourfold fine to our exchequer; and we command that our fiscal attorney shall attend such hearings with all diligence.

124. Further: They shall not write with abbreviations, putting "A." for "Alonso" or "c" for "ciento," under a penalty of thirty pesos for our exchequer.

125-138. [These sections direct accuracy and promptitude in various kinds of cases, with penalties for negligence. They also give directions for avoiding extortionate or illegal fees. Fiscal cases are exempt, as are cases involving any royal rights. The penalties are two pesos for the court-room, for minor negligences; heavier fines for more important ones; damages to the party injured; compensation to the exchequer; a fourfold fine to the exchequer for wrongful fees; suspension or removal from office. The most important section is the following:]

131. The clerks and relators of the said Audiencia, in cases civil and criminal, shall receive the fees belonging to them, in conformity with the fee-list; and that this may be attended to and fulfilled accordingly, we command that henceforth the aforesaid and each of them shall enter on the record and documents in the case the fees that they are to receive from the parties, or from their attorneys or agents, both for the examination of the record of proceedings and the rest, stating specifically the amount that they are to receive and the items of charge. This they shall attest with their signatures, jointly with the party in interest, or his attorney or agent, who is to pay the said fees, in such manner that both shall attest that which they are thus to receive for the said record of proceedings and pleadings. If he who pays the said fees shall not be able to sign his name, let another sign for him. When the case or affair is finished, the said clerk or relator, and the party, or his attorney or agent, shall swear that they have not accepted or given more fees for that case or affair than that which is there entered and signed; and that, if they shall accept or give more, they will enter and sign it as has been said. The penalty of the first offense is a requirement to repay fourfold to our exchequer that which is taken otherwise than as herein ordained; for the second, the same penalty and dismissal from office; and if the party or the attorney shall give information that he has given moneys to the said clerk, and they shall not be endorsed as aforesaid, let him be believed on his oath as to the amount that he shall have given.

139. [Clerks and commissioners are to undertake no official investigations without signed warrant from the court. Penalty: two years' suspension and a hundred pesos for the first offense, and dismissal for the second.]

140. [More than one demand [_peticion_] in appeals is not to be accepted from either party. Penalty: two pesos.]

141. [Abbreviations or numbers in dates are not permitted, for fear of fraud. Penalty: damages of the parties and twenty pesos for the exchequer and court-rooms.]

142. [Memoranda of testimony in criminal cases must be given to the fiscal for correction. Penalty: four pesos.]

143. [Clerks in all depositions are to put questions as to age and the like, to avoid fraud. Penalty: two pesos to the court room.]

144. They shall accept no food, fowls, or other things in satisfaction of their fees, on pain of being required to repay fourfold what they thus accept, to our exchequer.

145. [No fees are to be accepted from a defendant who swears on preliminary examination that he owes nothing, in case the plaintiff does not prove his case on judicial examination. In such case, the plaintiff is to pay the fees.]

146. [Copies of decisions are to be promptly given to the party requesting it. Penalty: two pesos to the court-room.]

147. [Notice of fines and penalties must be sent to the fiscal weekly. Penalty: two pesos to the court-room.]

148. [Evidence of poor suitors is to be taken with care and promptitude.]

149. [Notifications of hearings in cases concerning small amounts are to be sent to the parties. Penalty: two pesos to the court-room.]

150. [Personal presence is required at examinations in criminal cases and the execution of sentences. Penalty: suspension from office.]

151. [Lists of fees allowed by law must be posted in their offices, as well as in the public hall of the Audiencia. Penalty: five pesos to the poor of the prison.]

152. [No fees may be taken for keeping or looking for records. Penalty: fourfold to the royal exchequer.]

153. [Copies of penalties and memoranda of fiscal cases must be sent to the fiscal every week. Penalty: six pesos to the royal exchequer.]

154. [Examinations are to be dated by the time of examination, and not by that of taking the oath. Penalty: four pesos to the exchequer.]

155. In inquisitions and examinations which they shall make they shall put thirty lines on a page, and in every line ten parts [_i.e._], words divided by spaces]; and they shall write a good hand and shall place at the foot of each inquisition or examination the fees to be received therefor, under a penalty of eight pesos to our exchequer for a violation.

156. [Fees for single documents are not to be augmented because other documents are incorporated within them. Penalty: fourfold repayment to the exchequer.]

157. [Cases affecting the treasury, in which no party appears therefor, are to be brought to the attention of the fiscal.]

158. [Fees are not to be charged to poor suitors; if the poor suitor's opponent is condemned in costs, the fees are to be paid by the poor suitor and added to the costs.]

159. [Fees for permitting an examination of records are not to be charged, unless the examination is made by the party or his representative. Fourfold penalty to the exchequer.]

160. [Copies of essential documents are to be included in the record of a case without extra fees. Penalty: twenty pesos to the court-room of our Audiencia.]

161. [Unsigned interrogatories are not to be accepted. Questions must be put only by the counselor of the Audiencia.]

162. [Cases requiring to be divided by assignment among various clerks shall not be accepted without immediate reference to the official whose duty it is to assign cases. Penalty: loss of cases for two months, and loss of the case in question.]

163. [Records and documents must not be committed to the care of any but attorneys or counselors, and to them only on their giving a receipt. Fines are imposed for delay in returning them.]

164. [No record is to be kept of a case of twenty pesos or less, and no fee of more than half a peso from each party is to be taken in such case. Fourfold penalty to the exchequer.]

165. [No fees are to be taken for a view of the records, in cases appealed from ecclesiastical courts, on the ground of violence to law [_fuerza_], if the case is referred back to those courts. Penalty: fourfold fine to the exchequer.]

166. [Fees are to be charged only for the record of such judicial acts as are actually before them, although the whole record is transmitted therewith. Previous penalty.]

167. [Charges of violation of their oath are to be preferred by the fiscal in the event of failure to attend on him with the weekly fines, or of making excessive charges.]