Wednesday, 14 March 2012

Spanish Law


Sailing in the wake of the Conquistadors of Trinidad, their names hardly more than misty memories but still possessed of that peculiar Spanish grandeur, came the would-be settlers. During the 17th and 18th centuries, Trinidad was an island province of New Granada for all intent and purpose a part of Venezuela. But there was hardly any interest directed to this island. It contained no gold or precious stones, its pearl beds had been wiped out and its population of tribal people depleted by disease, deportation and disappear. There was, however, an official establishment, a Governor and a body known as the Illustrious Cabildo which promulgated Spanish law and saw to the needs of the islands several dozen homesteaders or "Colons", as they were called. Spanish law emerges out of the conquest of Iberian peninsular by the romans in the centuries before the birth of Christ. This was known as the Theodosian Code and continued in force even after the Roman Legions had marched away and the empire in the West had fallen to barbarian tribes. This Roman code of law became common law in Spain, when contradicted by subsequent enactment's. These enactment's or ... repealing or modifying the ancient law were influenced by the Gregorian and Hermogenian codes and were eventually collected under the director of the Gothic Kings into a code entitled Fuero Juzgo which still exists to this day in Spain. The law however is a living changing institution and over the centuries Spanish law evolved. Under the Spanish kings, commencing with Alfonso IX in the 10th century on through to Charles IV in the 18th century, the laws of Spain grew and evolved. With the discovery and conquest of the New World, there came into existence The Spanish Colonial Code called Laws of the Indies. These were compiled in 1680 and were the laws inforce in Trinidad. Other laws inforce here were The Laws of Bilboa Commercial Regulations, compiled in 1737. These differed materially from the English Commercial code for this good reason, Spain was an anti commercial kingdom. Historian Edward Joseph who wrote:
"A History of this Island" in 1838, informs us that these various codes were the laws of Trinidad up to the middle of the 18th century when the government of Caracas was empowered by the Court of Madrid to make certain laws for Trinidad. Even the governor of Trinidad, assisted by the Cabildo was permitted to make certain regulations which was allowed to have the force of law for two years and no longer unless confirmed by the General Government.
Joseph points out that
"It should not be forgotten that besides these laws there were a body of regulations for the government of slaves in the Spanish Colonies which for practical benevolence and wisdom surpassed any laws ever made for and enforced in the colonies relative to Negroes and other persons who had the misfortunes to be in slavery."
With the capture of Trinidad in 1797 by the English, the laws and regulations began a painful process of change. Shortly after the British conquest, Sir Ralph Abercrombry, who was effectively Governor of the island, made a determined move against the "Spanish Lawyers" who were well known as corrupt. General Abercrombry appointed Mr. John Mihell, Chief Justice, and instructed him to deal with all the cases brought before him according to his conscience. Col. Thomas Picton, upon the departure of the fleet that had captured the island, was appointed Governor and given instructions to make no radical changes to Spanish Law. Appeals were directed, in Spanish times, to the Supreme Court at Caracas. Now their were to be made to the King in Council. A curious anomaly in that cases tried in Trinidad under Spanish law had decisions appealed in England and English law. In 1800, Governor Picton superseded Judge Mihell and established a tribunal called in Spanish 'Court of Consulado..' Six years later Governor Hislop, Picton's successor, abolished this and re-appointed Judge Mihell who was once again instructed to act according to his conscience. John Mihell was this island's first Chief Justice. In 1808, a Judge by the name of Smith was appointed by the Colonial Office over all the Tribunals on this island. He was given the power to "hear appeals from his own court!" and as such had to deal with the absurdity of a judge deciding a cause in one court, changing his dress, hearing the case, and reversing his own sentence in another court while now condemning the party who lost the suit in the Court of Appeal to all costs. This state of affairs, when mentioned in the House of Commons, caused great shouts of laughter. We were, after all, an experiment colony.
In 1811 Governor Hislop revived the 'Court of Consulado.' In 1812 and 1813 there was no law in Trinidad. This was remedied in 1814 when Judge Bigge was sent out as Chief Justice with his jurisdiction confined to the Court of First instance, but all owed appeals from his decrees to the Governor, Sir Ralph Woodford, Judge of the Court of Appeal. It was during this period that the English language was first used in court.
In 1823, the Court of First Instance of Civil Jurisdiction and the Court for the first trial of Criminal Prosecutions was substantially recognized and improved. A court of appeal in criminal cases was instituted, of which the Governor, aided by ... In 1832 Chief Justice Scotland arrived in the colony and shortly afterward almost all courts of law underwent radical changes.
This account of the history of law in Trinidad was drawn from El Joseph's "History of the island of Trinidad 1838." Spanish law existed here until English laws were firmly instituted in 1847.

"Thus having given a very meager history of the law, and want of law. in Trinidad, I will give an account of the different Courts of the island as they now exist.
The Court of lntendant.—This Court, over which the Governor presides, takes cognizance of all matters relative to the sale of crown lands, quit rent, taxes, Queen's revenue, &c. It bears the the same resemblance to the Court of Exchequer as a lizard bears to a crocodile. this court is not often occupied hence
HIS EXCELLENCY SELDOM ADMINISTERS IN THIS TRIBUNAL.
Court of Vice Admiralty. The Chief Justice presides over this Court. It is governed by the same laws as the High Court of Admiralty.
Court of First Instance of Civil Jurisdiction—The Chief Justice presides over this Court, assisted by two Puisne Judges. The decision goes by majority. It takes cognizance of all cases of action for the recovery of debts, damages, &c. over twenty pounds sterling, and also of all testamentary proceedings. It is a m~ed Court of Law and Equity, uniting the power of the English Court of Common Pleas and Chancery. Appeals are allowed in all encase in which the decision involves property of above five hundred pounds sterling. Appeals are seldom made from it, on account of their delay and great expense. I am informed that an appeal to the Sovereign seldom costs less to the plaintiff and defendant than £1000 sterling.
The Complaint Court.—The Chief Justice, or one of the Puisne Judges, in his absence, presides over this Court. It takes cognizance in all civil cases where the amount sued for does not exceed twenty pounds sterling.
There are in each Barrio, or District of the Town, Alcaldes, chosen annually from the inhabitants. These gentlemen hold Courts on matters of debt not exceeding twenty dollars.
In the country, the Commandants or Magistrates can decide matters of debt to the amount of sixty dollars.
Criminal Courts.-When any one is charged with a breach of the criminal law, the ordinary Magistrate investigates it, and if of a serious nature, be can send it on to the Attorney General and Public Prosecutor. This gentleman unites in his own person the office of committing Magistrate and Grand Jury (inasmuch as he finds the bill of indictment) and prosecuting Counsel.
The Court for the Trial for Criminal Prosecutions has a Chief Justice and two Puisne Judges; besides there are three Assessors, chosen by lot; from the inhabitants of the island. The Public Prosecutor and prisoner are allowed a certain number of challenges. The three Judges and three Assessors are Judges of the fact as well as the law, unless a point of pure law arises during the trial, in which case an arrest of judgment, in case of conviction, may be moved and disposed of by the Judges. The decision of the majority of the Court makes the verdict. It will be seen that the Chief Justice, Puisne Judges, and Assessors, unite the functions of Judge and Jurors.
In all capital cases. the prisoner, if he cannot afford to fee Counsel, is allowed one by the Court, who appoint the different Advocates practicing at the Bar in rotation.
The Governor has the power of remitting the whole or a part of the fines and imprisonment imposed by this Court, and in capital cases he can respite the prisoner until her Majesty's pleasure be known. The Court has four sessions per annum—in March, June, September and December.
For minor offenses, in the country, the Magistrates have the power of committing offenders to prison, with or without hard labour, for any term not exceeding three months, and of imposing a fine to the amount of sixty dollars.


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