« PrejšnjaNaprej »
LAW OF MAY 23d, 1837.
Of the Superior Court-( Tribunal., ÅRT. 1. The Superior Tribunal of California shall consist of four Judges, (ministros,) and one Attorney General, (fiscal ;) of which Judges the three senior ones shall compose the first bench, (sala,) and the junior one the second.
ART. 2. The Tribunal shall have a President, who will remain in office two years, and may be re-elected ; he shall be appointed by the Tribunal itself, from its own magistrates. In defect of the President, the senior Judge shall preside.
Art. 3. The Judges and Attorney General shall each receive a salary of four thousand dollars per annum.
Art. 4. The superior Tribunals in a body shall be addressed with the title of “Your ExcelJency. » The same title shall be given to each of the benches thereof, and the President, Judges, and Attorney General shall officially be styled “Your Honor, ” (Senoria.)
Art. 5. Whenever the number of Judges necessary to complete the benches shall be defective, through absence, recusation, vacancy or any other cause, such deficiencies shall be supplied with primary Judges, (Jueces de primera instancia.)
Art. 6. Within the three first months after the installation of the superior Tribunal, it shall form a tariff of the fees and dues to be collected in the Department by the primary Judges, Alcaldes, Advocates, Clerks, and other judicial officers.
Art. 7. The second bench of the superior Tribunal (1) shall take cognizance of the first appeals (en segunda instancia) in the civil and criminal causes of the Territory mentioned in the first attribution of Art. 22d, 5th Constitutional Law; and the first bench shall take cognizance of the second appeals, (en tercera instancia.) (2.)
Art. 8. "In the same manner shall causes instituted against Magistrates and Subalterns as mentioned in the second attribution (3) be dispatched; and the second appeal mentioned in said attribution shall belong to the first bench. This bench shall also take cognizance of the right of appeal (recurso) mentioned in the 3d and 4th attributions. (4.). In order to carry out the objects comprehended in the 7th, 8th, and 9th attributions, (5) a full tribunal of all the Judges shall sit, in which the Attorney General shall also have a vote.
Art. 9. The superior Tribunal, including the President, all the Judges and the Attorney General, shall, in the capital of the Department, perform a general examination of prisons, including all places where prisoners may be detained subject to the ordinary jurisdiction, and make a report of said examination to government, that it may publish the same and take the necessary measures in virtue of its powers. At these examinations two members of the Ayuntamiento sball attend (without any vote) with the Magistrates of the Tribunals, next to the senior one ; and the Ayuntamiento shall be previously informed of the appointed hour, in order that it may appoint those who are to attend.
Art. 10. Public examinations shall likewise be made by two of the Judges, acting by turns, and commencing with the junior ones. The President shall not be included ; the Attorney Gene
(1) The powers of the superior Tribunals, as originally organized, are given in Law 5th, Art. 220, of the Constitution of Mexico, but the transfer of this Territory to the United States has annulled or limited some of the powers to conferred.
(2) The causes referred to in the latter part of this Article are those against the superior Magiotrates of the Territory.
(3) This has reference to causes against inferior Magistrates and the Subalterns and dependents of the Tribunal.
(4) These have reference to appeals from the Judges of first instance, and the adjustment of competences of jurisdiction arising between subaltern Judges.
(5) These bave reference to the nomination of Judges, subalterns and dependents of the Courte. ral and Secretaries shall attend, and likewise the Judges of first instance in criminal cases, with their respective clerks.
Art. 11. At both of these examinations all the prisoners shall present themselves. The Magistrales, besides the customary examination, shall personally inspect the habitations and scru(pulously inquire into the treatment given to the prisoners, the food and attention bestowed upon
them, and if they are load with more irons than the Judge has commanded, or are kept in solitary confinement (incomun ados) without orders. But if there should be prisoners of another ju risdiction in the public pri 18, they shall confine themselves to examining how they are treated, correct the abuses and defe of the jailors, and report to the respective Magistrates whatever further they may observe. ART. 12.
Whenever a soner shall ask to be heard, one of the Judges having cognizance of the cause shall go and hear hat he has to say, and report to the corresponding bench.
Art. 13. The reports or notices of the institution of suits or causes, which the inferior Judges bave to address to the superior Tribunal, shall be presented to the bench of second instance, for it to take the necessary nueasures for the epeedy conclusion of the same, according as the nalue and enormity of the crimes may require.
Art. 14. The superior Tribunal shall see that the primary Judges in criminal cases remit to it, quarterly, circumstantial lists of the causes finished during that period, and of those still pende ing, expressing the dates on which they commenced and their actual state of forwardness; which shall be submitted to the bench of second instance, in order that in view thereof, and after hearing the Attorney General, the necessary steps may be taken towards the speedy and exact administration of justice.
ART. 15. The Åttorney General shall be heard in all criminal and civil causes in which the public interests or the ordinary jurisdiction are concerned. When he acts as plaintiff, (actor,) or pleads his own rights (coadyuvare sus derechos,) he shall speak in Court before the attorney of the criminal, and may be constrained (apremiado) at the instance of the parties the same as any of them. His replies, whether ia civil or criminal cases, shall never be concealed so that the parties interested cannot see them, and he cannot be recused. (recusado.)
ART. 16. To constitute a sentence in a bench of three judges, two perfectly coinciding votes are requisite.
Of the Courts of First Instance-(Primeria Instancia.) ART. 1. The Governor and Legislature, on the recommendation of the superior Tribunal, shall designate the number of Judges of this Court in the chief town (cabecera) of each district, in conformity with the laws.
Art. 2. Where there is but one Judge of first instance to a district, he shall have both civil and criminal jurisdiction ; if more than one, these are separate.
Abt. 3. Each Court shall have a Clerk and Recorder, (Escribano y Escribiente,) and an Executive officer, (Comisario.).
ART. 4. The salaries of the Judges and subalterns of this court is fixed by the Governor and superior Tribunal, in concert with the Departmental Legislature, to be afterwards approved of by the General Government. (1.)
Art. 5. The Clerka or Notaries (Escribanos) of this Court are appointed by the superior Tribunal, on the recommendation of the Judges of the Court; the other subalterns are named by the Judges themselves, due notice of those appointments being given both to the Governor and superior, Tribunal.
ART. 6. These Judges, on entering upon their duties, must take the usual oath of office. In case of sickness, absence, death, &c., their places may be supplied ad interim by persons appointed by the superior Tribunal, with the approbation of the Governor.
Art. 7. No Judge of first instance can act in a civil or criminal case without the Clerk of the Court, (Escribano,) except in case there be no such Clerk, or where the case is too urgent to wait for his presence, in which case two witnesses must be called in, and the papers so witnessed must be afterwards turned over to the custody of the Clerk.
Axt, 8. The cognizance and jurisdiction of these Judges are limited to the judicial subjects of their territory,
Art. 9. All law suits and civil or criminal causes, of whatever description, shall be brought forward and carried on before the respective Magistrate of first instance, excepting in cases wherein clergymen and military persons are privileged by the constitutional or other laws in force.
(!). The salary of the Judge of Civil
, Courts was fixed at $1,500, with the slipulated fees of ffice. Governor Riley, in his Proclamation, has signified bis intention to pay this salary, to the Judge of first instance in each political district of California
Art. 10. No complaint, either civil or criminal, involving simply personal injuries, can be admitted without proving, with a competent certificate, that conciliatory measures have been attempted, (viz : by means of arbitrators or hombres buenos.)
Art. 11. From the preceding Art. are to be excepted, verbal processes; those of contest respecting chaplaincies, (capellanias colativas,) and other ecclesiastical causes of the same description, in which the parties interested cannot come to a previous arrangement; the causes which interest the public revenue, the municipal funds of towns, public establishments, minors, those deprived of the administration of their property, and vacant inheritances. In the same manner, no conciliation is to be attempted for the recovery of any kind of contributions or taxes, whether national or manicipal ones, nor for the recovery of debts which have the same origin. Neither is it necessary in the trial of summary and very summary interdictions of possession, the denouncement of a new work, or a retraction; nor in promoting the faculty of inventories and distribution of inheritances, nor in other urgent cases of the same nature; but should a formal complaint have to be afterwards made which would cause a litigious process, then conciliation ought first to be attempted, but it must not take place in cases of bankruptcy where creditors sue for their dues; but it shall take place when any citizen has to demand judicially the payment of a debt, although it may arise from a public writing.
Note. --The translator cannot vouch for the correctness of the translation of the foregoing Art., as he does not himself fully understand the original, on account of the many law terms used therein.-W. E. P. H.
ART. 12. In the trial of causes which exceed one hundred dollars but do not exceed two hundred dollars, the Judges will take cognizance by means of a written process according to law, but without appeal; nevertheless the parties may take advantage of the appeal of necessity before the superior Tribunal, should the laws have been violated which regulate the mode of proceeding. This appeal shall be referred to the same Judge, in the terms and for the purpose mentioned in Art. 20 of Sec. iv.
Art. 13. Any person who may be despoiled of or disturbed in his possessions, whether the'ag. gressor be an ecclesiastic, a layman, or a military character, will apply to the legal Judge for testitution and protection; and cognizance of these matters are to be taken by means of the corresponding very summary process, or even by means of the plenary one of possession if the parties should desire it
, with appeal to the respective superior l'ribunal; the judgment of property (juicio de propriedad) being reserved to the competent Judges.
Art. 14. The Judges of the first instance, in their respective districts, will take cognizance, by way of precaution, with the Alcaldes, in the formation of inventories, justifications, ad perpetuam, and other judicial matters of this kind, in which the parties have yet made no opposition:
ART. 15. They will likewise take cognizance of such civil and criminal causes' respecting conmon crimes as may arise against the Alcaldes of their district.
Art. 16. Every sentence of first instance in criminal causes must be immediately notified to the person who entered the suit and to the culprit, and if either of them shall appeal, said causes must, without delay, be remitted to the superior tribunal, the parties being previously summoned.
Art. 17. If both the accused and culprit agree to the sentence, and the suit should be respecting trivial crimes for which the law imposes no corporeal punishment, the judge will execute the sentence. But if the cause should be one respecting crimes which have such a punishment assigned to them. the process shall be remitted to the superior tribunal, the time for appealing having passed, although the parties themselves should not appeal, they being previously cited.
ART. 18. 'In all civil causes, in which according to law the appeal should take place in both effects, and he clearly admitted, the original acts of the process shall be remitted to the superior tribunal at the costs of the appellant, the parties being previously cited, that they may make use of their rights. But if said appeal be merely admitted in the devolutive effect and not in the suspensive one (efecto devolutivo y (no en el) suspensivo) [the former of which means, the cognizance which a superior judge takes of the determinations of an inferior one without suspending the execution of them; and the latter, the same thing together with the suspension of the execution-the Translutor, ) the remission must not take place until after the execution of the determination, wbatever practice there may be to the contrary.
ART. 19. The Judges of first instance, in the place of their residence, if there be no superior tribunal there, will in public make the prision examinations required by law; two members of the Ayuntamiento will also be present at the general ones, but without a vote; and every month a report of said examinations will be rendered to the superior tribunal. They will likewise go to the prison when any culprit asks for audience, and they will hear whatever he may have to say.
Art. 20. The inferior magistrate will also report to the superior tribunal, at furthest within the three days after commencing the causes, all such as they may be forming for crimes committed in the respective jurisdictions. They will likewise send to said tribunal quarterly, a general list of those that they may have concluded in that time, and of such as still remain unfinished in their respective courts, expressing the state in which they may be and the dates of their commencement.
Of Alcaldes and Justices of the Peace, Art. 1. It belongs exclusively to the Alcaldes of the Ayuntamientos and to the Justices of the Peace, in places whose population consists of one thousand or more inhabitants, to exercise in their jurisdiction, with respect to all classes of persons, the office of conciliators.
Art. 2. It likewise belongs to such Alcaldes and Justices of the Peace to take cognizance of, and decide in their respective towns, all verbal processes which may occur, except those in which ecclesiastics and military persons are sued.
ART. .3. It belongs likewise to them, to dictate in litigious cases the very urgent measures that will not admit being taken before the primary judges ; and to take, under similar circumstances, the first steps in criminal causes, and also such others as they may be commissioned to do by the respective tribunals and primary courts.
Art. 4. Of the attributions comprehended in the three foregoing articles, the Justices of Peace of such places as do not contain one thousand inhabitants shall only exercise that of taking (whether in civil or criminal cases) such steps as from their urgency do not give time to apply to the nearest respective authorities..
Art. 5. In order to verify the judgment of conciliation, whosoever may have to institute any civil suit, the value of which does not exceed one hundred dollars, or any criminal one respecting serious injuries, purely personal, shall make his complaint to the Alcalde or competent Justice of the Peace, demanding verbally to have the accused party summoned in order to commence the trial of conciliation, and said Alcalde or Justice of Peace will immediately have the summons made out, which inust mention the object of the complaint, and fix the day, hour, and place, in which the parties bave to appear, and both the accuser and the accused are to be told to bring each his arbitrator (hombre-bueno), who must be a citizen in the exercise of his rights, and completed his 25th year of age-(with us 21 years is the legal age.]
ART. 6. The accused party is bound to concur in obedience to the summons of the Alcalde or Justice of Peace, but should he not do so, a second summons must be sent to him to appear at some newly appointed time, under a penalty of from two to ten dollars fine ; and should he still not come forward, it shall be considered that the means of conciliation have been at'empted, and that the trial is at an end, (i. e. the trial of conciliation,) and the fine imposed upon the accused party shall be irremissibly exacted.
Art. 7. It shall likewise be considered that the means of conciliation have been tried, and that the trial is concluded, if the person summoned appear before the Alcade or Justice of Peace in obedience to the first or second summons, and say that he renounces the benefit of concil. iation.
Art. 8. In the two cases treated of in the two foregoing articles, the corresponding record must be made in the respective book, and be signed in the first case by the Alcalde or Justice of Peace, the Plaintiff and Clerk, (Escribano,) if there be one, and it not by two assisting witnesses ; and in the second case, by the Alcalde or Justice of Peace, the Plaintiff and Defendant; and whenever the latter does not make his appearance, but renounces the aforesaid benefit, he must necessarily do it in writing.
ART. 9. When the parties do come forward, either personally or by means of their lawful representatives, to proceed with the trial of Conciliation, the Alcalde or Justice of Peace and the Arbitrators will make themselves acquainted with what the parties have to expose respecting the matter in dispute, and when the said parties retire, the Alcalde or Justice of Peace will hear the opinion of the Arbitrators, and will immediately, or within eight days at farthest, give the sentence which he may consider most fitting to avoid a law suit, and to bring about the mutual conform ity of the parties.
ART. 10. Each Alcalde or Justice of Peace shall have a book entitled “BOOK OF CONCILIATIONS," in which he shall note down a concise account of what occurs in the trials of Conciliation, agreeably to what is ordered in the preceding article and in continuation of the Con. ciliatory Sentence dictated by the Alcalde or Justice of Peace, which must be notified to the parties interested in presence of the Arbitrators, in order that they may say whether they agree to it or not, which must also be noted down and be signed by the Alcalde or Justice, the Arbitrators, and parties interested.
ART. 11. When the parties agree to the Sentence, the certified copies of the proceedings which they may ask for shall be given to them in order that the corresponding authority may carry it into effect, and if either of the parties should not agree, the Alcalde or Justice of Peace will give him a certificate that the means of Conciliation have been attempted, but without success; the parties interested merely paying the costs of said certificates in the accustomed form.
Art. 12. In the same Book of Conciliations must be entered the record mentioned in Art. & and this Book must remain in the archives when the Alcalde or Justice of Peace conclude the time of their appointment.
Art. 13. The fines mentioned in Art. 6 must be delivered to the respective Treasurers of the Ayuntamientos, in order that the amount of them may go towards paying the expenses of the books which are to be given to the Alcaldes and Justices of Peace.
Art. 14. These Alcaldes and Justices will decide by verbal process the civil complaints which do not exceed one hundred dollars, and the criminal ones respecting trilling injuries and other similar faults that do not merit any other punishment than a slight reprehension or correction.
Art. 15. The plaintiff or complainant who enters any suit of this kind, will apply to the competent Alcade or Justice, and make his complaint verbally, and this authority will cause the defendant to appear, ordering each party to bring his respective arbitrator with him, who must have the requisites mentioned in Art. 5.
Art. 16. In verbal processes, also, the Clerk (if there be one) will concur, or in his defect two assisting witnesses ; and after the Alcalde or Justice of Peace and the arbitrators have made themselves acquainted with the complaint of the one party and the defence of the other, these parties shall retire and the Alcalde or Justice of Peace will hear the opinion of the arbitrators, and immediately or within eight days at farthest pronounce his definitive sentence or decision, which shall be ordered to be carried into execution by the same Alcalde or Justice of Peace, or by any other authority to which a proper certificate of said sentence be presented.
Art. 17. A concise account of the proceedings of these processes shall be entered in a book called “Book of Verbal Processes,” and in continuation, the definitive decision or sentence dictated on the subject, and this instrument must be signed by the Alalde or Justice of Peace, the arbitrators, the parties interested and the Clerk or acting witnesses. This book shall also be placed in the archives when the Alcaldes or Justices of Peace conclude their term of office.
Art. 18. Against the definitive sentences given in verbal processes, no other appeal can be admitted than that of the responsibility of the Alcaldes and Justices of Peace to the superior tribunal ; and in said processes no fees are to be recovered, but merely the costs of the certificates that may be given.
Art. 19. The attributions mentioned in Arts. 4 and 5 must necessarily be exercised by the Alcaldes or Justices of Peace in presence of the Clerks, if there be such, and if not, before two assisting witnesses.
Ant. 20. When the subject brought before the Alcaldes or Justices of Peace relates to the retention of the goods of a debtor who wishes to make away with or conceal them, the prohibition of a new work, or other matters of like urgency, the Alcaldes or Justices of Peace will themselves take such necessary steps as may be required to avoid the evils consequent on delay, and they will order the parties interested then to try the means of conciliation.
Art. 1. In every criminal suit, the sentence of first appeal (segunda instancia) shall cause execution when it is perfectly agreeable to the first sentence, or if the parties agree to it
. Art. 2. In criminal causes there cannot be less than one appeal (dos instancias) even when the accuser and the culprit agree to the first sentence.
Art. 3. All witnesses to be examined in any civil or criminal cause must necessarily be examined by the proper tribunals or magistrates which have cognizance of said causes, and if they should reside at other places, they must be examined by the Magistrate or Alcalde where they live. (1)
Art. 4. Every person, of whatever class, privileges, or condition he may be, when he has to give his declaration as a witness in a criminal cause, is obliged to appear for this purpose before the Magistrate who has cognizance thereof, without the necessity of previous permission from his chiefs or superiors.
Art. 5. The confrontation of witnesses with the culprit shall only be practised when the Magistrate considers it absolutely necessary in order to find out the truth.
Art. 6. Both the confrontation mentioned in the preceding article and the ratifications, are to be made in the process immediately after having examined the witness ; the culprit being made to appear in order that he may know him, and the witness summoned in the act of ratification, which must take place immediately after the culprit retires.
Art. 7. If the first steps of the process (information sumaria) take place before the culprit be apprehended, as soon as he is apprehended and his preparatory declaration shall have been taken, the witnesses which have to be examined must be summoned for the purposes mentioned in the preceding article.
Art. 8. No summens shall be sent which has not some relation to the crime, or which is judged to be useless or of no weight in the business as regards the eliciting of truth.
(1). It may be a question whether this and some of the following articles are not modified by Arts. V. and VI. of the amendments to the Constitution of the United States.