Indian Law: Historical Development and Key Features in Spanish America
Indian Law: Historical Development and Key Features
Indian Law consists of a set of legal rules applicable to the territory of the West Indies, that is, America, the Philippines, and Oceania, which were part of the territories that came under Spanish rule. Upon the discovery of America on October 12, 1492, the intention was to apply Spanish law directly in the West Indies. However, this proved to be a failure because the political, economic, legal, social, and religious reality of the West Indies was quite different from that of the Iberian Peninsula. Thus, the Spanish Crown created Indian Law, with Castilian law applying as a supplementary measure.
Elements of Indian Law
1. Castilian Law: Applied additionally in the West Indies, primarily in matters of private law.
2. Indian Law Proper or Municipal Law: The set of legal rules specifically created to govern the West Indies.
3. Indigenous Law: Composed primarily of the customs of indigenous Indians, this law applied only among the Indians. The general rule adopted by the Spanish Crown regarding native custom was to accept it, subject to three limitations:
- a) Cases where native custom was contrary to Natural Law.
- b) Cases where native custom was contrary to the provisions of the Crown.
- c) Cases where native custom was contrary to the provisions of the Catholic religion.
Therefore, the Spanish Crown rejected indigenous customs that constituted crimes against human nature or sins against nature, including:
- a) Polytheism
- b) Polygamy
- c) Incestuous marriages (marriage between relatives)
- d) Cannibalism
- e) Human sacrifice
However, there were cases where the Crown accepted indigenous customs because it deemed them appropriate. Examples:
1. The Mita: A system of labor.
2. Community Banks: A social security system that formed a pool of assets to protect vulnerable groups of Indians, such as the elderly and orphans.
3. The Institution of Caciques or Chiefs: The Spanish recognized Indian leaders as nobles, granting them full capacity and privileges, such as exemption from taxes. Their children were entitled to use the “varallon,” a symbol of power, and were entitled to the treatment of “Don.”
4. Principles of Water Distribution
Characteristics of Indian Law or Municipal Law Proper
1. It is an Evangelizing Law: This implies that the fundamental vision was the preaching of the Christian faith. Two points highlight this:
- a) Pope Alexander VI, in the 1493 papal bull Inter caetera, conceded dominion and possession of all lands discovered and undiscovered in the West Indies to the Catholic Monarchs, under the condition that they evangelize the Indians.
- b) The Spanish considered the discovery and conquest of America a reward from God for their constant struggle for the Christian faith.
2. It is a Protectionist Law: It tended to protect the most helpless in Indian society, the aboriginals. To protect them, a vassal state was often established. The common Indian was considered relatively incapable, meaning they could not act alone in legal matters but had to be represented by a protector, a public official who represented them in and out of court. They were also assimilated to the “miserable” and “rustic” of Castile, meaning they were not deemed to be unaware of the law.
- Miserable: Poor
- Rustic: Those who lived in the countryside in Castile
These were people of low educational and social origin.
3. It is a Casuistic Law: This means that it applied to specific cases.
4. It is an Unsystematic Law: There was no method or order, both in the matters regulated and in the mode of regulation.
- Regulated Matter: Casuistic.
- Mode of Regulation: Unsystematic because there were different sources of law, such as law, custom, jurisprudence, and doctrine. Many laws were enacted.
This created a confusing body of law that was eventually grouped and collected. The first compilation of importance was the Statute of Indian Kingdoms of 1680, under Charles II.
5. It is a Law in Which There is a Predominance of Morality, Particularly Christian Morality: It aimed not only to resolve legal disputes but also to provide moral guidance. An example is the challenge of the jurists. In this regard, the Spanish School of Natural Law, composed of brilliant theologians and jurists like Domingo de Soto, Bartolomé de las Casas, and Juan Ginés de Sepúlveda, was important.
6. It is a Law in Which There is a Predominance of Public Law over Private Law: This implies that Indian Law proper was primarily concerned with regulating the branches of Indian administration, that is, Government, Justice, Treasury, and War, and with regulating Indian authorities and their responsibilities.
The Legal Status in the Indies
Indian society was characterized by inequality and class distinctions. This meant that there were different legal statuses, and changing from one status to another was very difficult. These statuses included:
1. Legal Status of the Mestizo
Mestizaje refers to the interbreeding between the Spanish and the indigenous. The causes that favored racial mixing in the Indies were:
- a) The scarcity of Spanish women during the early days of the conquest.
- b) Indian women, unlike Spanish women, did not have significant sexual taboos.
- c) The Spanish, in general, did not have strong racist feelings.
From this interbreeding, two classes of Mestizos emerged in the West Indies:
1. First-Class or First-Grade Mestizo: The product of a relationship between an indigenous person and a Spaniard involving family life, meaning through marriage or through concubinage, which was a recognized union between singles. Consequently, this first-class mestizo was raised as Spanish, felt Spanish, and was a good source of labor.
2. Second-Class or Second-Grade Mestizo: The result of a relationship between an indigenous person and a Spaniard that did not involve family life. This mestizo emerged through simple concubinage or through the crime of rape. This second-class mestizo was often rejected by the Spanish and sometimes by the indigenous community, leading to social resentment. They were often unstable, making them less desirable as laborers, and were prone to vagrancy, brawling, alcoholism, and promiscuity.
Prohibitions on the Second-Class Mestizo
- 1. They could not be clerks: They could not be public notaries because the Spanish Crown believed they lacked the moral requisites for the job.
- 2. They could not be priests: However, over time, this ban was lifted because their knowledge of the Indian language made them useful for evangelization.
- 3. They could not enlist as soldiers: They could not join the militias because their instability was seen as a risk.
- 4. They could not enter Indian villages: That is, reductions of Indians, except if their mother lived there for humanitarian reasons.
In general, mestizos joined Indian society in two main activities:
- Agricultural activity: This gave rise to the institution of the tenant.
- Mining: This activity generated problems with mine grants.
2. Legal Status of the Spanish
Certain rights applied specifically to the Spanish in the Indies. These rights generally applied to other Indian subjects as well. These rights included:
a) Right to Good Governance: This meant that Indian authorities should rule correctly. If they did not, Indian subjects could revolt. An example is the case in Concepción regarding Governor Antonio de Acuña y Cabrera, under the cry, “Long live the king, and down with bad government.” This right is a manifestation of the pactista theory of St. Isidore of Seville: the monarch is obligated to govern well, and subjects are obligated to be loyal.
b) Right to a Fair Rule: Indian law could not be arbitrary or capricious. When a subject deemed a law unjust, they had the right to plead for a stay of enforcement, based on two types of defects:
- Vices of Obreption: The law was issued with disinformation to the subject.
- Vices of Subreption: The law was issued with distorted information to the subject, indicating malice.
c) Right to Confidentiality of Correspondence: Indian authorities were interested in ensuring that letters reached their destination effectively, as these letters could contain requests and, more importantly, complaints.
d) Right to Freedom of Movement: Indian subjects could move freely within the Indies, subject to certain limitations:
- Not everyone could travel from Spain to the Indies. A married woman had to travel with her husband, and an unmarried woman with her parents.
- To move freely within the Indies, one had to be up-to-date on tribute (tax) payments.
e) Right to Personal Security and Safety: The remaining Indian jails were required to keep public records of detainees, and judges of the Royal Audiencias were required to visit prisons.
Measures to Ensure Compliance with Spanish Laws
1. The System of Checks and Balances: Although the Spanish Crown was clear that the branches of public administration (Indian government, justice, war, and finance) were distinct, it did not apply the principle of separation of functions. Instead, all Indian authorities had a role in these different areas as a control measure.
2. The Trial of Residencias: Every Indian authority, from the lowest to the highest, knew upon taking office that they would be subject to this trial at the end of their term. Complaints from subjects were received, and it was determined if there had been an abuse of power.
3. Measures of Administrative Probity: The Spanish Crown believed that Indian authorities should always put the public or general interest above their own, maintain irreproachable conduct, and act honestly and fairly. To protect this principle, the Crown took measures such as:
- The declaration of interests.
- The prohibition on Indian authorities receiving gifts from subjects.
4. Civil and Criminal Actions: Indian subjects could file civil actions to obtain compensation for damages or report the commission of offenses in criminal courts.
3. Legal Status of Blacks
The introduction of black people into America was partly due to the intervention of Fray Bartolomé de las Casas, who sought to lighten the workload of the Indians.
Black labor was successful for the following reasons:
a) Adaptation to the tropical climate.
b) Due to their personal characteristics, blacks were generally joyful and good-humored, unlike the Indians, who tended to be more introverted.
c) As noted by Professor Antonio Dougnac in his work, blacks were often physically strong and well-suited for heavy labor.
Black Bozal: A black person brought directly from Africa, uncontaminated by European influence. They were preferred over “black Ladinos,” who had already passed through Europe and had contact with white people, potentially acquiring their “tricks.”
In the Legal Sphere
Blacks had a dual legal status. On the one hand, they were considered property and could be subject to legal transactions such as purchase, sale, donation, and betting. The owner could exercise the “revindicatoria” action, and the buyer the “redhibitoria” action.
On the other hand, blacks were considered human beings and had certain rights:
1. Right to form a “peculio,” meaning they could accumulate earnings from work or donations.
2. Right to family unity, meaning that young children could not be separated from their parents.
3. Right to good treatment; they could be punished, but moderately.
4. Right for unmarried men and women to live in separate quarters.
5. Over time, they acquired the right not to be branded with hot iron.
These humanitarian trends increased, and in Chile in 1811, the “freedom of wombs” was established. In 1823, total abolition of slavery occurred under the government of Ramón Freire.
Regarding this, several theses exist:
1. Thesis of Climate: It is argued that the Chilean climate was too extreme, leading to the displeasure of blacks. However, this argument is dismissed because the climate in North America is even more extreme, and the black population there was significant.
2. It is claimed that blacks made up the “Battalion of the Browns,” which was totally exterminated.
3. Thesis of Passage: This theory suggests that blacks were often alone in transit because only wealthy Chilean families owned a small number of them (around 7). Historical documents suggest that many were traded to Peru.
4. Legal Status of Indigenous People
Indigenous people had a number of privileges that shaped Indian Law:
1. As a general rule, they were considered free vassals.
2. The common Indian was declared relatively incapable, meaning they could not act alone in legal life but had to be represented by a natural protector.
3. They were assimilated to the “miserable” and “rustic” of Castile; therefore, they were not presumed to know the law.
4. In procedural matters, they could retract their confessions.
5. In procedural matters, they were often advised not to testify in court to avoid committing perjury (false testimony).
6. In procedural matters, they could present evidence past the deadline.
7. They had the right to continue their practices, subject to certain limitations.
8. Real estate belonging to indigenous people had to be sold at public auction with at least 30 days’ notice and by public cries (loud announcements).
9. The institution of “cacicazgo” (chieftainship) was maintained.
10. Initially, Indians were not subject to the court of the Inquisition because they were considered new converts, new Christians, and therefore could be mistaken in matters of faith.
The Indian Host
Concept: The Indian host refers to an expedition of discovery, conquest, or settlement in the West Indies.
This was a pre-capitalist institution, meaning that the expedition had to provide its own goods, such as weapons and horses. The Crown chose a reward system. Initially, the Crown financed these trips, as in the case of Christopher Columbus. However, this situation became untenable, as the treasury could not bear the cost. Therefore, the system of the Indian host was established.
How was the Indian host formed?
To form an Indian host, the person who wanted to be the leader or chief of the expedition would go to a public place, such as the public square, and loudly announce the formation of the expedition. Enlistment was voluntary, but once enrolled, members were subject to a strict military regimen.
Legal Framework Governing the Indian Host
It consisted of the following legal instruments:
1. Capitulaciones or Seats
2. Instructions
3. General Normative Instructions
1. Capitulaciones or Seats: These were sui generis contracts entered into between individuals and the Crown. The individual was obligated to undertake an expedition of discovery, conquest, or settlement, and the Crown was obligated to grant rewards.
Characteristics of the Capitulaciones:
1. They are a Contract: A legally binding bilateral agreement that creates rights and obligations. The parties were the individual and the Crown (represented by the king and the authorities to whom the king delegated this power).
2. It is a Bilateral Contract: It produces obligations for both the individual and the Crown.
- The individual is obligated to discover, conquer, or settle.
- The Crown is obligated to provide rewards, such as grants of land, water, mines, a parcel of Indians, or a position or trade.
3. It is Conditional: It depends on a future and uncertain event, which determines the birth or extinction of a right. It is a condition precedent, meaning that as long as the individual does not fulfill their obligation, they are not entitled to the reward; they only have mere expectations.
4. It is a Contract Sui Generis: It is of a very special nature because every capitulation involves a concession of public service, which is a problem of the Crown. Therefore, even if the individual fulfilled their obligation, the Crown might not grant the reward. Examples include the Capitulations of Santa Fe de Granada held by Christopher Columbus.
Elements:
1. The License: The authorization granted by the Spanish Crown to travel to the West Indies. This was the main element and could never be missing. Even the capitulation could be missing, but never the license. Example: Hernán Cortés did not have one.
The Crown did not grant licenses to travel to America to:
- Married women without their husbands.
- Unmarried women without their parents.
- Muslims, Jews, Gypsies, and, initially, blacks due to evangelization concerns.
2. Military Powers of the Leader: The leader was the military chief of the host and maintained discipline.
3. Judicial Powers of the Leader: The leader applied justice within the host.
4. Economic Powers of the Leader: The leader could distribute awards and the spoils of the expedition according to the agreement made within the host.
5. Norms for the Protection of Indigenous People
2. Instructions: These were guidelines, very regulatory and detailed, intended to improve the condition of the expedition. They were mandates. They were as binding as the capitulations because they established the terms and conditions of the expedition, which could vary due to the different realities in the Indies.
Elements:
1. General prohibitions, for example, the Spanish could not misbehave, drink alcohol, gamble, or blaspheme.
2. An obligation to conduct reviews of military personnel and arms.
3. Protectionist norms for the Indians.
4. An obligation to make assessments and create geographical maps.
3. General Normative Instructions
1. Royal Prohibition of Granada, 1526
2. New Laws of Spain, 1542 (Charles I of Spain)
3. Ordinances on New Discoveries and Populations, 1573, Philip II
4. Compilation of the Laws of the Kingdoms of the Indies, 1680, Charles II
In general, these four texts establish protective standards for the Indians.
Problem of the Just Titles
Concept: This is a doctrinal, legal, and practical discussion concerning two aspects:
1. The rights that the Castilian Crown had over the territory of the West Indies.
2. The rights that the Castilian Crown had over the inhabitants of this territory, the indigenous or aboriginal or natural people.
This problem arose because Christopher Columbus discovered a new world: the West Indies, incidentally, because he was attempting to reach the East Indies (Japan, India, China) for the spice trade. Columbus was mistaken because he believed the Earth’s diameter was considerably smaller. He did not follow the Greek calculations but agreed with the Arabic translation.
This was a significant theological and juridical argument, and the school called the Spanish School of Natural Law played a crucial role.
Several titles were invoked to justify the rights of the Castilian Crown.
First Title
1. Title Based on Pontifical Donation: This implies that Pope Alexander VI, in 1493, issued the papal bull Inter caetera, the first bull of concession. Under this bull, he conceded to the Catholic Monarchs dominion and possession of all lands discovered and undiscovered in the West Indies, under the condition that the Catholic Monarchs evangelize the natives.
Under this bull, dominion and possession were conceded. However, the concept of dominion here is not the same as in civil law. It is eminent domain, not civilian ownership. According to the studies of the Indian jurist Juan de Solórzano Pereira, this dominion involves an emanation of sovereignty from the Catholic Monarchs in the Iberian Peninsula, allowing them to deploy their political and administrative apparatus and ultimately rule in the West Indies.
This is also called eminent domain or “dominio realengo.”
Possession, in this context, is a legal fiction.
It should be noted that in 1493, Pope Alexander VI issued three other papal bulls:
a) The second Inter caetera
b) Eximiae devotionis
c) Dudum siquidem
The last two are complementary. The other principal bull is the second Inter caetera, also known as the bull of division. Under this bull, Pope Alexander VI established an imaginary vertical line from pole to pole 100 leagues west of the Azores and Cape Verde Islands. This determined that all lands west of the line belonged to the Crown of Castile, and those east of the line belonged to Portugal.
Under the Treaty of Tordesillas in 1494 between the Portuguese Crown and the Castilian Crown, this line was moved 270 leagues further west, resulting in a total of 370 leagues. This allowed Portugal to access Brazil.
This statute is justified in a theocentric era, where God is the center of the universe. However, during the Renaissance, an anthropocentric view emerged, where man is the center of the universe. Therefore, it was necessary to create other titles.
2. Titles Based on Common Law:
1. Title Based on the Thought of Aristotle: Aristotle posited that there are two kinds of human beings, superior and inferior. Applying this, jurists of the Spanish school argued that the Spanish were superior and the natives were inferior. Therefore, the Spanish could govern the natives. The Spanish humanist Juan Ginés de Sepúlveda, in his work “Democrates Alter,” argued that the natives were “homunculi,” meaning they had a limited understanding.
2. Title of Crimes Against Human Nature: This title argued that natives who committed sins against human nature were liable to lose their property and be governed.
3. Third Title: It was argued that Charles V of Germany was also the Holy Roman Emperor, making him the master of the natives. They were at risk of losing their property and being governed.
4. Fourth Title: It was argued that natives who resisted the preaching of the Christian faith were liable to lose their property and be governed.
5. Title of Res Nullius: It was argued that the lands of the West Indies belonged to no one, not even the Indians, because they committed sins against nature. As res nullius, they could be governed and administered by the Castilian Crown.
6. Title of Prize: It was believed that the Spanish discovery and conquest of America was a prize that God bestowed upon them for their continued struggle for the Christian faith.
These titles were legally weak. This situation, coupled with Spanish actions against the indigenous people, led Charles V to consider returning the territories of Peru to the Indians.
Faced with this situation, the prominent jurist Francisco de Vitoria intervened. Vitoria, a law professor at the University of Salamanca, delivered solemn lectures called “relecciones.” In his “Relección de Indias,” he refuted the previous titles and proposed new ones.
3. Titles Based on the Thought of Francisco de Vitoria:
1. Title of Society and Natural Community Among Men: Vitoria argued that some goods are scarce and others are scattered. Therefore, under natural law, men can move freely across all lands and navigate freely across all seas to exchange and procure goods. This right is even greater if children are born in the territory.
This is Vitoria’s most important title and earned him the reputation of being the father of Public International Law. Ultimately, he argued that the Indians could not resist this exchange of goods, and if they did, they risked losing their property and being governed.
2. Title of Preaching the Faith: He argued that the Indians could not resist the preaching of the faith, and if they did, they were likely to lose their property and be governed.
3. Third Title: If indigenous people fought amongst themselves, and one group rejected the Christian faith, the group that accepted it was liable to lose their property and be governed.
4. Fourth Title: If the Indians were truly “homunculi,” then they should be governed out of charity.
This problem was ultimately resolved during the reign of Philip II, who made the following distinction:
a) Discovered and Occupied Territories by the Spanish: This generally meant a protectorate, where indigenous authorities were maintained but under Spanish rule.
b) Occupied Territories or Territories Undiscovered by the Natives: Here, it was understood that in response to the papal donation, the Castilian Crown had eminent domain.
Generally, the problem was resolved based on voluntary submission, which is related to the concept of just war, meaning that violence could only be used against the Indians if they resisted.
Reward System of the Crown
This refers to the various prizes awarded by the Spanish Crown to those who fulfilled their obligations under the capitulations.
1. Land Grants: These were concessions of land that could be urban or rural.
Urban Land Grants: These were concessions of land granted within the perimeter of a city, also called “solares.” This relates to the grid-like city layout, known as “Roman chessboard,” with a central plaza, followed by the “solares” of the authorities, then those of affluent society, and finally those of people with fewer resources.
Rural Land Grants: These were given outside the city perimeter and were classified as:
a) Small Farms or “Chacras”: Small plots of land near the city used for growing crops.
b) “Estancias” or “Haciendas”: Larger extensions of land further from the city, intended for major crops. If used for grazing livestock, they were known as “estancias.”
When a land grant was given, the recipient did not acquire full ownership immediately. There was a condition precedent, meaning that full ownership was acquired only if certain requirements were met. These requirements were:
- To build on the land.
- To live on the land and work the land.
It should be noted that land grants were based on the Crown’s eminent domain, allowing it to transform real estate in the Indies.
2. Water Grants: These grants were also issued by the Crown based on its eminent domain, which allowed it to transform real estate in the Indies by:
a) Creating national property for public use.
b) Incorporating property into the Indian patrimony.
c) Providing grants.
Water grants involved the actual allocation of water for use.
Classifications
Surface and Groundwater Grants
a) Surface: Those found on the surface.
b) Subterranean: Those found in wells and springs.
Urban and Rural Water Grants
a) Urban: Those intended to supply the city.
b) Rural: Those intended to irrigate fields.
Grants for Mills and Watermills
a) Mills: Those used for producing flour.
b) Watermills: Those used for processing ore.
3. Mine Grants: These involved the concession of mining property to explore and exploit mineral resources.
For these grants, the recipient did not acquire ownership at the time of the grant but upon fulfillment of the mining property requirements, which involved having enough workers to operate the mine. If the number of workers fell below the required level, the mining property was considered distressed and ownership was lost.
Regarding abandonment, this was often related to second-class mestizos, who contributed to this problem.
4. Indian Encomiendas: The concept of encomienda is not unitary; there were different classes:
1. Antillean or Caribbean Encomienda
2. Mexican Encomienda
3. Classical or Reformed Encomienda
4. Variations of the Classical Encomienda
1. Antillean or Caribbean Encomienda: This was the first type of encomienda in the Indies and occurred in the Antilles. The Crown used the expression “commissioned” and entrusted the work to Diego Columbus. The Indians were distributed, and this distribution was intended for the Indians to work for the Spanish and the Crown. However, it was a failure, as it generated abuse against the indigenous people. This abuse was reported by Fray Antón de Montesinos in 1511 on the island of Hispaniola (Santo Domingo) during Advent in a famous sermon, stating that it was a mortal sin, meaning that the soul would not be saved upon death.
Following this, the Crown formed the Junta of Burgos in 1512, and two major legal instruments emerged:
a) Laws of Burgos: These were protectionist rules for the indigenous people. For example, they stated that Indians should not be called “dogs” or any other nickname other than their own name, and that they should be provided with branches and birds.
b) Requirement of Palacios Rubios: This was a legal document drawn up by Juan López de Palacios Rubios, stating that the master of the natives was the King. Therefore, they were subject to the Kings of Spain, had to accept the Catholic faith, and were at risk of losing their property and being governed if they did not.
Later, in 1513, the Junta of Valladolid was formed, and the Laws of Valladolid emerged, also protectionist. For example, pregnant indigenous women should not work in the mines without their consent, and Indians under 14 could only perform work according to their physical abilities, such as grazing.
2. Mexican Encomienda: Despite the protectionist rules, the Antillean encomienda did not solve the problem of Spanish abuse. This encomienda is related to the discovery and conquest by Hernán Cortés, who faced a major problem: he did not have a license. Cortés made allotments of Indians, which the Crown initially did not approve of due to the lack of a license, but eventually accepted.
Cortés had studied law and was knowledgeable about Indian law. He analyzed the Caribbean encomienda and identified its defects:
a) Abuse by the Spanish.
b) Lack of spiritual assistance for the indigenous people.
c) The Spanish did not reside on the land.
To solve these defects, Cortés created a set of obligations:
First Group of Obligations:
encomendero for oObligaciones of the Indian:
§ Assistance spiritual way (preaching of the faith), this Esla most important of all.
§ material assistance (food, clothing, housing)
§ Living on Earth, this implies a real worry for the Indian and establishes measures to require residency, these measures are:
· Marry or bring his wife to Spain within a year and a half given the task, but loses it.
§ Living in the land portion of those living on Indian, therefore, the Indians were vivr in Indian villages.
oObligaciones of the crown for the encomendero:
§ The fundamental obligation is to respect the encomienda, which was for life.
oObligaciones of the crown for the Indian:
§ It mainly consists of protectionist standards for the indigenous.
oObligaciones delindigena for the encomendero:
oConsiste primarily work, this work was to develop in the Indian villages and is also a demonstration that the crown called work sharing. In the coronal interests that the Indian subjects to work, does not like so lazy to create an institution called partitioning, which searches through intermediaries that connect to oferce work with those who do not.
3 – Commit or restored classic: the classical instructed not solve all the problems of the encomienda Antilles and the Mexican, as the abuse continued for delindigena Spanish, esat situation before the judge hearing the real lasegunda Mexican Fuenleal Sebastian, presented a project to re-regulate the encomienda and this project is largely generated approves and instructs that llamaasi classic because it is one that usually occurred in the West Indies, but the large study of this mission is due to Indian jurist Juan de Solorsano and Pereira.
Concept Commit
According to the assigned lawyer is a right conferred by royal grant and a meritorious pigs for life and inherited by the immediate successor and that is the ability to perceive the tax generated by delindigena work, having to worry about the encomendero spiritual assistance and lindigena material, having to worry about defending other military lafrontera where the land is assigned and all this under tribute.
Elements of the concept
CONSEDE 1.Es right by royal grant, this means that a gracious concession is real, voluntary bone in terms of its duration is for a lifetime and besides the encomendero throughout the life of the immediate successor.
Therefore the Benefactor of the encomienda Indians acquired by royal grant, ASU also see the successor inmeidato acquired by the royal grant and not by way of acquiring the succession upon death.
Died successor inmeidato producing what is called the right of reversion is that the Indian returns to the head of the king and this can re-assign it, however it was common for the family to give extensions, ie to keep the indigenous for that family.
Benefactor of Indian 2.Entendemos by one who has performed an act heorico for the Spanish crown, such a discovery. These merits were transmisibes.
3.La encomendero main obligation is to the Indian spiritual assistance is the preaching of the faith obligation is cirstiana and other material assistance
4.The encomendero agrees to the military defense of the earth, so must weapons.
5.Facultad to levy charges for the encomendero encomendero this implies that the tax does not own nor land, nor the Indian, so the owner is the crown.
6.The tribute, ie requires an oath before the encomendero posesopn take the parcel.
4 – Varieties of Commendation Classic: in the commends classic Ameican vary according to the territory or the Indians and several fundamentally estabecer the effect of the tax system or the personal service, so then the encomienda also produced in Chile, given laprimerasituacion in times of Pedro de Valdivia to reach copiapo Alvalle to make allotments of Indians, for two allotments and issues regulations governing the assigned only indirectly
1-day working of the Indian under the sun
2-The natives could not load over 120 kg
3-The requirement of encomendero FUNDAMENTAL resistor is spiritual.
With the government of Don Garcia Hurtado de Mendoza occurs first direct regulation of the encomienda in 1559, meaning through the so-called rate Santillan compiled by his lieutenant governor named Hernando de Santillan, who had been judge hearing university’s file. Santillana on instructions from the governor of the kingdom looks to Indian chili and concludes that it is quite weak intelectualmete therefore can only contribute their labor, so the rate tantoregula agree to personal service. Porteriormente and regardless of encomienda in Chile is governed by tax or personal service, for example, under the governments of Alonso de Ribera, Francisco de Villagra and Martin Ruiz de Gamboa.
The theme of personal service did not please the crown, because it was very close to slavery, this implies that the pressure on the crown prince of Squillace, ie the king of Peru, Francisco de Borja to revoke the personal service in the united states, and the king gives the rate of Squillace, in this rate, according to Professor duniac can appreciate the conduct of the prince Esquilache ambiguous because the declaration of principles states abolished the personal service, but in elCuerpo regulates the rate personal service.
Finalmete dealing with the reign of Chile’s government Ambrose O’Higgins in making a trip north, ascertain that there is still personal and elservicio definitely dergoga in the eighteenth century
Sources of Indian law
We understand the sources of Indian Law THROUGH ways which create legal rules that constitute the Indian Law.
In general, these sources are the same who are now in our law: law, costubre, doctrine and jurisprudence.
For trtar these sources is necessary to look then to the specifics of them and others to a vital qualifying criterion, namely whether the source address comes from the metropolis, ie Spain or lafuente stems from West Indian (American)
1 – The Law
ETender by law any general written authority that emanates from a discussion of this authority must be distinguished:
a) Law Castilian
b) Law metropolitan
c) Indian Act itself.
a) Law castellana: is that which governs in Iberia, refers to the ancient Spanish law applies and additionally in Indian private law matters.
b) Law metropoitana: is that legislation passed in Spain to rule in the Indian directly, this could come from the king or supreme council DELREAL and pigs.
c) Indian Law as such: it is one that emerges from the indas, for example stems from a viceroy, a governor.
This metropolitan law and Indian law as such based on the form had different names such
· Royal decrees
Letters · real
· Bados.
2 – Custom
It consists of the constant and uniform repetition of acts that the prevailing opinion in a particular community as binding abides despite esatr not imposed by law, therefore the elements are two:
· Element material: the repetition is constant and uniform acts
· Intangible element: that is that such acts are repeated in a consistent and uniform because it reflects a legal imperative (that is the most important element).
In the Indian law distinguish the following types of behavior:
1. Custom Castellana: this custom as pointed out by Professor duniac has not been studied
2. Cosntumbre metropolitan this practice was applied in the West Indies but had its origin in the Iberian peninsula.
3. Custom indiana as such: that his look is classified in:
3.1) Custom as Law: is one that applies when the law refers to it
3.2) Custom silence of law: is that which applies in the absence of law, fills the silence of the law.
3.3) Custom against the law: it is one that is so powerful that it can repeal the law. This custom was to meet very demanding requirements to be implemented and applied mainly in areas of public law.
4. Indian customs:is that it only applies between Indians and the general rule is that the coronal accept, subject to any limitations.
4. The Doctrine (also known as doctrinal legal literature or jurisprudence)
We must distinguish whether the ruling Indian, ie topics that judgment ruling emanating from the metropolis Indians or the Indians have certain shortcomings indias.los great features.
a) They are based on short
b) generaleljuezindiano tends to fail according to its previous decisions, so a precedent is being generated.
c) Following Professor Martel Alamiro of Avila and the Indian judge in matters of criminal law tends to develop a paternalistic work, that is recommended in the ruling.
5. Judicial Decisions
Just this juridical jurispruencia qualifies as already indicated on the form of handing down judgments.
Finally the legal literature work develops a musicologist, this means that groups rules, Caunt indigenous law as such was ad hoc and unsystematic and principalrecopilacion was larecopilacion laws of the kingdoms of India in 1680 which deals with public law matters, criminal, private, among others.
The branches of public administration indiana
This involves studying the attributes of power, these branches were: government, justice, war and finance, and we know that the crown does not apply to Indian principle of separation of functions, but the system of checks and balances.
1 – Government: the government must distinguish temporal and spiritual government. case q hai temporary government in turn distinguish high and low police police, senior police officer has to do with the general administration of Indian women and this administration generally refers aq Spanish crown has to worry about maintaining social peace morality of the Spanish and the indigenous protection, turn down police involves the administration of the city, ie city, x is aware of all aspects concerning the subject.
spiritual government involves a set of rights that has the Spanish crown for the Catholic Church, this is what is called the q royal patronage and the most important demonstrations of royal patronage are the right of presentation and the pass or execuator regi. the right of presentation implies q Spanish crown could designate the church dignitaries in office, the regional pass or no provision implies q execuator papal Indian could apply without prior confirmation of the real and supreme council of India.
2 – Justice: the Spanish crown took the concept of justice of Aristotle and Aristotle means q justice is the virtue of giving to each his own and his is the right, x Spanish Crown therefore also assumes the classification of justice Aristotle and then distinguishes:
a) Commutative Justice: is that q occurs in the contractual relationship and find the equivalence of benefits.
eg in the contract of sale
b) Justice distribituva: is one that involves giving to each according to merit ses. Example: an award to a bemenerito.
c) Legal Justice: is one that involves the implementation of charges or obligations. Example: the payment of taxes.
3 —Menera War military: to respect the crown is concerned then the military defense of Indian land and in turn appoint worries the authorities carry out these functions.
4 – The subjects of the Treasury: we are referring to real estate, namely the economic, in this sense the Crown is concerned with the correct collection of impuesyos and proper investment of public funds.
Authorities to interfere in Indian law matters.
These authorities can be classified:
1st qualifying criteria: Those who are based in the metropolis and that are located in western India.
· They are in the metropolis:
1. The king is the highest authority of Indian, so has the wealth of the attributes of power: gibierno, justice and finance, but for the exercise of these powers delegated to the various authorities that represent it.
In turn, the crown using the same doctrine on the origin of royal power also called pactista developed by St. Isidore of Seville sixth century AD to generate bligations between king and subject, this dctrina implies that the origin of the monarch’s power comes from God because God gives it to people and people to the monarch, by both rights and obligations are created, ie there is a covenant under which the monarch was forced to govern properly and the subjects to be loyal to the monarch.
2. Royal and Supreme Council of the Indies: It is a collegial authority, multi-member, that is composed of several members. Its key feature was to be an advisory body of the monarch, however has the 4 branches of the Indian public administration, on the other ladotiene the following fundamental characteristics:
a) It is real because the monarch jutno acts, ie, counselor, and consultant.
b) It is universally known because of all West Indian subjects.
c) It is supreme because it is the foremost authority in India after the king, besides just this on this advice the Council of Castile, for reasons of seniority.
This body was composed of different authorities, which variarion in time and number, podem scita the following: the presisidente, judges, lawyers secretaries. The authority was the most important delpresidente and core work was to distribute the hearings in chambers, preceded the litigation and interviews with authorities.
For his performance this body acts divided into chambers and the room is distinguished government, this government affairs known temporal and spiritual government.
· Hall of Justice: primarily discusses matters related to the use of second supplication, this appeal was interposed against certain real sentecias emanating from the hearings, also known in losrecursos strength and void.
· War Room: discusses military matters, as appointed.
· Board of Finance: the economic, veiling the correct inversiom of public funds.
3 – House of Trade: clegiado body, is the first body being India, created to regulate trade, which was already abundant in the year 1504 will be installed at the port of Seville, (it was a river port). This agency are characterize their functions mainly by trade, yet has all branches of the Indian public administarcion.
Within these powers as it stands related to the system of fleets and galleons involving provide protection to merchant ships between India and Spain to avoid the attack of the pirates of the Caribbean, so the protection was THROUGH military ships and It had to pay a tax called Breakdown.
· Other functions of the body relate to judicial functions of talmoso that resolves legal disputes, both civil and criminal cases between merchants.
· Other functions are related to the chapter, namely porida celebrate the monarch reprensentando capitulations.
· Other powers relating to custody, this meant that they were to deposit and this body all the gold, silver and precious metals in India.
· Found in West Indies:
1. Viceroy is the highest authority in India, and as argued by the Indian jurist Juan de Solorsano and Pereira viceroy monarch is the alternate, ie I elotro of the monarch, the king’s direct representative in India. This authority has the 4 branches of the Indian CIVIL SERVICE, characterized by fuciones adminisracion government and in this context, the viceroy was subject to comply with such shared by the governors on the basis of probity administer it. For example, declaration of interests; impossibility of receiving gifts lossubditos, lack of access to parties invited by the subjects.
2. Governor: The governor’s office was not a charge uniboco, this means that there were classes of governors, but all governors had the 4 branches of Indian public administration, namely: government, justice, war and finance. We distinguish then:
a) Governor capitulation
b) Ruled by real desigacion
c) Governed by choice
d) Ruled by purchasing office.
However this was even though the statute of Indian kingdoms of 1680 banned the purchase of office. Basically the governors were characterized by their powers of government and others to be military leaders.
3. Royal Courts: This is a collegial body composed of different people, which was the most important authority, because dividing the audience in chambers, present the stories and interviews with authorities, also highlights the secretaries, reporters, the judges, and lawyers.
With regard to their powers sized relaes hearings took the 4 branches of Indian public administration, but were notable for their judicial powers, which essentially were appellate courts, so basically knew of recuersos of appeal in both civil and in criminal matters, to resolve these resources gives the audience real phallus called views. Against the failure of view could bring the action first suplicaion in respect of this ruling could bring the action suplicaion second, but who knew the real and supreme council deindias.
4. The Kabylia (among others) as such authority is not an Indian but rather reprensenta to the Spanish Republicans. The council is not born in India but born in Europe in the Middle Ages.
The body had several functions and these functions refer to what low deniminamos police and we should note the following:
1) Urbanizacion ie hunted reed
2) The feeding, ie the supply of the city
3) The waters ferescas, ie they came to town water
4) Foundation hospitals
5) Foundation schools
6) Foundation convents
7) Foundation charity.
In other fueusal that councils awarded land grants which is funny because as such was not an Indian authority.
As for its composition is composed of the mayor, who presides at regular and aldermen, these are classified as:
· Cadañeros aldermen are those elected each year
· Perpetual aldermen are those undefined and entering in connection with the purchase of office.
The 2nd qualifying criterion: if the authority is taking one-person or multi-member.
a) Government Unipersonales: King, Viceroy and Governor
b) Government pluripersonal: that is collegial, the real and supreme council of Indian and chapters.
Second Unit:
Constitutional History of Chile
Also this area is called native law or national law.
The study of constitutional history is relevant for two reasons:
1.Porque is a training class in law career
2.Fomenta elanalisis lawyer and critic of the future as well as improving the future cultular acerbic lawyer.
Concept
We understand constitutional history of that branch of national law which seeks public laestructura institutional study of the country and develop their ideas using external and internal history.
· Hisotoria External: is the study of various political factors, economic, social and cultural rights underlying the birth of the law.
· Inside Story: The study of the act, ie edel Sufficient Legal and law.
The right time is dynamic, not static, and then responds to the factors outlined above.
For industrial juridoca institution is dealing with the history we have to study internal basicamnete the following legal texts.
1-Constitutional Regulation 1811
2-Constitutional Regulation 1812
3-Constitutional Regulation 1814
4 – Political Constitution 1818
5-Constitution Politica 1822
6-Constitution Politica 1823
7-Constitution Politica 1828
8-Constitution Politica 1833
9-Constitution Politica 1925
The first thing you must determine what is the difference between a regulation and a cosntitucion constitutional politics. Note that a text to form and C ° politics must meet what is called a common minimum constitutional or basic content is the following.
1) the institutional basis: deprincipios or set of values, on which rests the State, for example: the principle of legality, principle of helpfulness of the state.
2) Establishment of constitutional guarantees: this refers to law and constitutional duties. Example: right to life, right to equality, right to property.
3) Establishment of public functions: ie legislative, judicial and executive, with the proper principle of separation of functions.
Therefore a C ° politics is a fundamental law of a republic.
From the historical point of view we must go back to 1908, in which Napoleon Bonaparte invaded the Iberian Peninsula and established the power to his brother Joseph Bonaparte and capture cautiberio leaving the Spanish King Ferdinand VII, so that this government does not afransesado liked the Spanish and are formed together in Spain.Example: cadiz board, these boards are starting to make determinations regarding the West Indies, a situation which does not like many of the components of the Indian kingdoms, so these natives are also starting to form together. Ejmplo: Argentina, Venezuela, and Chile. Arguing that the kingdoms of the Indies must submit to the Spanish monarchy and not the Spanish together, so they did not know the orders of the Spanish juntas, while Ferdinand was not put in place back in power. So then in the kingdom of Chile as the first National Governing Board on 18 September 1810. It is this board raises two important works:
1) are dispatched troops to peru
2) is decreed freedom of trade
3) It’s called elections for the first national congress. This national conference is installed on 4 July 1811 and arising from the major works:
a) The law of wombs or free birth: is that a son of a slave born in Chile would be free, as well as any slave who tread the country.
b) gives the 1st regulation C ° de Chile: regulations called for under the interim executive authority, 1811
Constitutional Regulation of 1811
Features:
1-It is temporary, as governed by both Ferdinand was not established in power and until it was given a C ° Final in Chile.
2-It is short, any time which consists of 19 items
3-The national authority elcongreso maxima is therefore this congress will meet in Nacinal if powers are to be typical of the post executive powers. Example: send troops, and handle international relations.
4 – Executive Branch is structured on a collegial body, ie multi-member, in which there is a board of 3 members.
5-judicial case nothing is said, nothing is regulated.
No 6-establishment of constitutional guarantees.
7-Nor enestablecimiento clearly appreciate the so-called institutional bases.
Thus constitutional historians criticize this regulation by the imperfect, yet it must be understood to understand the lived historical moment and the rush to take a first institutional rodenas.
Constitutional Regulation of 1812
It is also a constitutional regulation and basically has two fundamental characteristics similar to the constitutional regulation of 1811 is a regulation that is given brief which contains 27 articles and was also interim would last as long as the Spanish King Ferdinand VII was not established in power.
This regulation is the time of Don José Miguel Carrera. Don Miguel had gone to Spain to study and product of his time in Europe notes that in the kingdoms of India was a kind of cultural backwardness, thus returning to Chile and not satisfied with the work of the First Government Junta nor with the work of the 1st National Congress, was intended as a major advance in independence, da a 1st coup in 1811, on 4 September and then on November 15 gives a 2nd coup, shutting down National Congress in order to give greater impetus to the independence drives then the First National Flag, 1st National newspaper called La Aurora de Chile and also founded the National Institute.
The regulation of 12 party with a short preamble setting out the basics of the regulation stating that a governing board of 3 members and would last 3 years, would govern on behalf of the monarch and who would be responsible for their decisions.
However, in article 5 provides that no decree ruling, or order from foreign authority or court can have any effect in Chile and those who try to give value would be punished as guilty of state.
So here, following the Chilean constitutional historian might expect from establishing the germ of a notion of autonomy. Art. 1st of this text indicates that the Catholic and Apostolic religion is and always will be, Chile, about Roman expression is suppressed, and we understand it based on two arguments:
a) For some the idea was to highlight the spiritual independence
b) In contrast to other one was due to a misprint.
The regulation refers to a collegial executive power, ie there is a superior board governance. On the other hand there is a Senate by seven individuals and the opinion of the Senate is essential in resolving serious issues, for example, declare war, and impose taxes.
This rule is in the background that is in our Constitution of 1810 which indicates that they are only matters of law.
This advisory board by two secretaries who equaled the ministers of interior and foreign minister. Meanwhile judicial function is based on ordinary courts and judges and art. 18 ° provides that no one is punished without previous convictions and sentences under the law, here are the origins of habeas corpus habeas corpus.
In terms of individual rights are recognized individual freedom and freedom of the press. Finally highlights the art. 25 °, which states that every 6 months to print a ratio of input and expenditure after the Senate announced. This background is important for future budget law.
As for the criticism, according to author Joseph Victorino Lastarria is supported by some who would be the 1st constitution because legislative authority and freedom, but criticized the recognition of sovereignty of Ferdinand VII, however, is the 1st time you notice emancipatory doctrine to explicitly prohibit the foreign orders obeyed.
Professor Gabriel Amunategui indicates that a text is very advanced for its time and political doctrines enshrined in the bud, for example, national sovereignty, separation of duties, individual rights, establishing the basics of the legislative power and the budget law.
Constitutional Regulation of 1814
This regulation aims essential to establish a single-member Executive and overriding it by the war, this means that if the government was composed of a single person to adopt the measure was faster and more efficiently.
Therefore in this regulation first appears the title of Supreme Director and Director Sup 1st was Francisco de la Lastra.
It is a regulation consists of 13 short articles and many of them are not substantive rules, but refer to matters of protocol, ie, honors to the Supreme Director.
Its Article 1 defines the purpose in the sense that the concrete historical circumstances involving executive power in one individual and the title of Supreme Director, it would last 18 months in office and at the end of his duties was subject to trial residence.
As for his powers, the powers of the Supreme Director were very broad, but with certain exceptions, the signature of peace treaties, declarations of war and other materials to be agreed upon with the Senate, the Senate was composed of seven members elected by the Supreme Director and would last 2 years. 3 secretaries are created
a) Secretary of Government
b) Secretary of Finance
c) Secretary of War
As these rules to vote marks a setback for the Senate election is no longer popular, because it loses its representative character and it also addresses matters that are expressly excluded to the Supreme Director, in turn provides that the Senate would conduct the work without pay and only receive the gratitude of the Fatherland.
As for criticism following Gabriel Amunategui here underlines the one-man structure of the executive, to be hereafter the ruling regime in Chile.
In turn there are certain institutions such as the impeachment trial as the Senate as advisory and honor to the Supreme Director is a remnant of the Colonial period.
Draft Constitution of 1813 of Don Juan Egaña.
It was only a draft was not a final constitution. This project is due to Don Juan Egaña, it belonged to a group of upper-class intellectual de la Serena, however was born in Lima and expressed early interest in public affairs. Therefore you will be presented to the Count of Conquest Sambrano Mateo Toro and a government plan with 3 main ideas:
1.A confederation of Hispanic people
2.La creation of a college science and industry
3.La free trade.
Don Juan Egaña going to be elected MP, then Senator and also became the father of another great jurist Don Mariano Egaña.
The draft constitution stipulates that the state religion would be the Catholic Apostolic and Roman points out that Chilean deemed to everyone who swears the Constitution and the text also points to a notion of justice. Provides for freedom of press and the right of ownership. As the executive is a president assisted by two consuls and there are two secretaries or ministers of state before the president that lasted 4 years. There is censorship tribunal composed of 5 members and was designed to monitor compliance with the Constitution and morality (in terms of Catholicism)
Furthermore, this court was empowered to veto government decisions and lasted 10 years, in turn creates civic boards were designed to act as a congress.
On the Judiciary, this is the only truly organized according to a Supreme Court of 5 judges and lasting 5 years. In turn creates technical advice as war, education, economics, and divides the country into 3 provinces: Santiago, Concepción and Coquimbo.
Egana’s main concern was to keep the town a great morality, therefore according to Don Domingo says Amunategui, Egana thought that a people could educate adolescents as a school or a religious convent, critical situation.
This text was not passed but had great influence later and 10 years later a similar bill emerges as the Constitution. The 1823 Constitution is the Constitution of Egana moralist.
Constitution of 1818
This text is one of the Constitutions of Ohiggins and we note that taking into account the time a text is more advanced because it regulates rights and duties of man speaks of freedom, equality and property rights and social principles enshrined well advanced, for example, states that the government has an obligation to alleviate the misery of the unfortunate and give the paths of happiness and prosperity.
Politically enshrines the principle of national sovereignty and representative government. Set executive power exercised by the Supreme Direct existing and which had broad powers, including: appointing the first 5 members of the Supreme Court Judiciary, states that the judgments of the courts would only have value with the signature of the Director supreme, but not could intervene in the proceedings. Also enshrines the patronage.
He points out an interim legislative branch was a 5-member Senate elected by the Supreme Director, from among citizens over 30 years and had great patriotism, wisdom and love of justice. These senators were inviolable and the Senate controlled the faithful observance of the Constitution must report infringements to the supreme head, so called Conservative Senate
The Supreme Director of the Senate required the agreement to resolve important business, for example, declare war, make treaties, to tax, the Senate also had the initiative to convene the Congress and to limit the application of the Constitution in consultation with the supreme director.
On the Judicial system we have a Supreme Judicial Court and Appeals Court and subordinate courts, also dividing the country into 3 provinces: Santiago, Concepción and Coquimbo.
General appreciation of the Constitution of 1818
This policy letter according to its rules confirms the existing system, also according to the normative O `Higgins stayed with powers beyond just taking weight as against the Senate, however the Senate was directly elected by the Supreme Court, therefore virtually everything public power including the church and courts focus on the supreme director, notwithstanding the above estimates that this policy letter is a step forward in what is related to the Chilean public law as a step in the right public and which delimits the authorities.
The public authority is based on the constitutional regulation of 1812 and the Constitutional ideas of Don Juan Egaña guarantees regarding individual and betrayal to absorb the public authorities in the executive branch as well as moral maxims.
Constitutional regulations and watched the draft Constitution and this Constitution is feasible to appreciate that there is no treatment finished form of so-called Institutional Foundations of the effect we get to understand by the Institutional Basis of Certain principles or core values which rests on the state or a nation. So that organic development is a correct these bases would support the following:
1.To establish that persons are born free and equal in dignity the rights, even this principle could be developed with an explicit reference to equality before law and equal protection rights, the latter is linked to the development of due process that involves giving guarantees of a fair and rational procedure called fundamentally guaranteed right to legal defense.
2.Implica understand the principle of helpfulness of the state, meaning that the state serves the individual, so it must help to create all conditions, both material and spiritual for the smooth development of the subject and ultimately implies that the State should contribute to the Common Good
3.Implica understand that family is the fundamental unit of society, that is, which is the basic unit of society, therefore the State’s duty to safeguard and protect.
4.Implica understand the placement of so-called principle of legality, called by some rule of law, this chair but prefers to speak of legality since it involves a comprehensive subject of the organs of state law, however if it is spoken of legality implies or suggests that the subject should be only for the law. This juridical means that you understand:
a) State agencies must submit their action to the Constitution and rules issued pursuant thereto
b) The provisions of the Constitution require the holders or both of these bodies as integral to any person, institution or group, ie state bodies act upon investiture validly regulate its members, within their competence and in the manner prescribed by law.
c) No entity or group of persons may assume even a pretext of extraordinary circumstances other authority or rights than those expressly conferred upon it by law.
d) Any action in contravention of this rule will generate liability and penalties prescribed by law and is void. This void is void, however, a public law that does not support the classification of private right of absolute and relative nullity nullity, and also under the doctrine of some teachers apply as of right, that is automatically so that would not require a judicial declaration , but only by a determination made under this same point this would be a void that can not be under any causal clean up.
5.Implica understand the principle of national sovereignty, this implies that sovereignty resides essentially in the nation and is exercised by the people through periodic elections and the plebiscite, it also means understanding that the exercise of that sovereignty has certain limits and these limits are set by the recognition of the essential rights emanating from human nature.
6.Implica understand the principle of administrative probity, this principle is that public servants should always putting the general interest above individual interests and maintain an impeccable moral conduct in the performance of its duties as an honest and loyal delivery the performance of office. This is a vague legal concept rather was linked to an issue of public ethics and a strict tort issue, ie, are related through a set of principles and values that are part of the subject.
7.Implica host a recognition of some of the legal forms of state, ie to understand for example that it is a unitary state, this is the score that made the 1980 Constitution also noting the possibility of decentralization and devolution .
8.Implica understand that terrorism in any form is inherently contrary to human rights.
If we analyze our current legislation is the Constitution of 1980, ie the law 18.575 of general bases of the state administration, 19,880 law governing the procedure for preparation of acts of bodies of state management of administrative status for public officials is the law that we just 18,834 in legal regulation of these materials which are supplemented by other aspects which are as follows.
1 – Principle of Advertising: this principle implies that acts of state bodies should be public unless a quorum law establishing the reserve or secret in the following cases:
a) Case where the delivery of information is prejudicial to the achievement of the objectives of service
b) Case where the delivery of information is prejudicial to the rights of 3eros
c) Case where the delivery of information is detrimental to the public interest
d) Instances where the delivery of information harmful to national security
In this regard even today is in effect the Act No. 20,235 on access to public information
2 – Principle of Coordination: That means understanding the various organs of the platform must act harmoniously to achieve their aims.
3 – Principle of Control: That means understanding that there is an audit of the state administration by the national control system. This national monitoring system is comprised of legal tools that aim to control the administration of the state and the audit is performed by a parliamentary scrutiny by a judicial or administrative control. This control can be internal or external (this is in regulations 18.23 and draft Egaña says nothing of this.)
4 – Principle of Responsibility: From state means responding to actions of state bodies, the element which produces an injury is affecting a responsibility, therefore the issue of liability is classified as state responsibility legislator, State responsibility State judge and administrator responsibility. This is without prejudice to the responsibility which may affect the officer who had caused the damage.
5 – Top of the Effectiveness and Efficiency: It means that the organs of state administration should perform its function as quickly (speed of administration) as possible and always adhering to the common good.
Constitution of 1822
This polity is also bernardo ohiggings times and is inspired by the Spanish constitution of 1812 this policy letter on sovereignty laws on citizenship, nationality and on some basic principles of public law. In addition to this text the age of majority is reached at age 25 also establishes certain individual faculties property rights individuality of correspondence.
In addition to the government structure under a representative government that is divided in 3 independent powers the legislative executive and judiciary.
As the legislature we meet for a congress that is formed by a Chamber of Deputies and Senate, they enjoyed parliamentary immunity and this allowed him to avoid paying their debts during his tenure and this lasted 2 years.
This letter also establishes a court of representatives made up of 100 individuals chosen by the Chamber of Deputies and former directors. This institution is also going to pick on the political constitution of 1833 under the commission made the cut represent conservative and fundamental attribution had to look after the implementation of the constitution in the recess of Capitol Hill could also pass laws as temporary emergency laws.
As the executive was headed by a supreme director, this was chosen by Congress in full surrender and on 2 / 3 of its members lasted 6 years and with the ability to be reelected x 4 years more. The problem then was that this text assumes elected Don Bernardo OHiggins, that fact will generate a political fatigue and will transform this text into a text hateful, also the executive provide him with regulatory authority, the effect must be understood statutory authority that is part of the other so-called administrative powers and other powers can be understood as power is power that this attribute or hierarch gifted or superior who is endowed to adopt a certain extent, which is a legal power to act.
Then this regulatory power implies the possibility that the respective authority to make rules, that is regular.
Another aspect was given the supreme director of external sovereignty.
The Legislature could grant the supreme director certain extraordinary powers in case of imminent danger.
Also ruled supreme director advised by 3 ministers office and without the signature of one of them their orders were not obeyed.
These ministers were exposed to political trials before Congress.
With regard to the judiciary that resides in the courts hierarchically structured and exclusively responsible for the power to enforce the laws.
The most striking power of the supreme director was named regent ie the power to bring to his successor for the case d death until the new election
As for criticisms can be noted that this text presents a clear progress in the Chilean public law even says Don Gabriel amunategi in its manual of constitutional law which would be the first basic law that comes with this definitive text also states republican institutions, in addition this text was the basis for drafting the 1833 constitution whose elements are also located in the political constitution of 1925.
We add as a criticism that is not appreciated nor a clear development of the institutional bases in organic form as stated above ie there is no clear establishment of the principle of legality of the state administration and integrity of the judiciary in the case also there a clear treatment related subject matter jurisdiction on the principle of independent responsibility and accountability of independence as judges now structure the constitution of 1980.
Constitution of 1833 also called moral constitution of Don Juan Egaña
This text establishes basic principles such as: national sovereignty, representative government, such as for example nationality and sovereignty. Provides that the state religion would be the Catholic Apostolic and Roman religion and excluding the exercise of any other nationality on is quite demanding in terms of citizenship and notes that this belongs to Chileans who have completed 21 years and are to merchants or other owners acquire the civic merit for some utilities. Therefore the text makes citizenship depend on economic or capital requirements thus establishing a census suffrage depend citizenship also makes certain moral requirements. As the executive director this lies in a supreme being has broad authority ie it should in some cases the sole initiative of law and the power to legislate in this case d emergency supreme director was elected by popular vote and run for 4 years by mandate and may be re-elected by 2 / 3 of the vote.
This was to be supreme chief citizen by birth and if abroad be 12 years of meritorious citizenship upon declaration of a heroic degree.
This supreme acting director advised 3 secretaries of state and a state councilor, made up of 7 individuals appointed by the supreme director. As the legislative branch that lived in a permanent body with the title of conservative senate and legislature composed of senators elected for 6 years and reelected yours most fundamental attribution was passing the laws. One of the most important functions of the Senate was to ensure that national morality, therefore this should lead to a public record of civic merit to propose as worthy citizens.
As for the judiciary was organized hierarchically so indulged in a supreme court justice and a federal appeals court judges lawyers exist then.
It also establishes compulsory conciliation in all civil and criminal cases that support the transaction without prejudice to the public cause.
Also highlights the title XXII of the letter called national morality and hence the name moralist thus the idea was to form a moral code to form habits and duties to citizens so that the law was transformed into practice, and practice in under
As we pointed out that criticism is virtually unenforceable and highlights in this fundamentals text 2
1-here comes the Supreme Court of Justice and the pyramidal structure of the judiciary that has lasted until our days. Judge appeals and letters.
2-Emphasizes the institution of national morality, therefore, the idea was to create a list of citizens who have civic merit to qualify for office.
This idea comes from the draft constitution of 1813 d