1273
AM.ETIICAN IItsTORICAL ASSOCIATION. of the chief magistracy of this jurisdiction, to frame some plain a.nd provisional rules to preserve order and establish some kind of system; I did so with the consent, approbation and assistance of the Com- missioner, and they have also received the sanction of the Superior authority; I therefore consider them as provisional laws, and cannot cease to do so without declaring that the Supreme Powers who sanc- tioned them, have exceeded •their authority and · overstepped the circle of their prescribed duty. This principle once Established, the only question that remains to be settled in the case of the Alcalde of the Colorado and De •Leon is the· following: Diel the Alcalde follow said rules, or did he not 1 In my opinion·, formed upon the inquest I have made, he has followed them; he was compelled by said rules to act as he did, and had he not done so he would have deserved punishment. In this matter, in consequence of your Lord- ship's order, the Alcalde finds himself between two fires, without a possibility of escaping both. Your Lordship's order condemns him to a fine and cost which will ruin him, and, had he failed to follow the provisional rules, the plaintiff would have had sufficient incentive for complaint and suit against him for a dereliction of his duty in the administration of justice according to the existing laws. Said provisional rules are very plain and clear. It was De Leon's duty to, and he ought now, according to said rules, give security for his appearance before the Alcalde there·and then to answer Grey's com- plaint, and if it appears that he is indebted, then he should pay, - and in case of unwillingness on his part to abide by the decision of the Alcalde, he [could] bring the case before me, as local judge of the whole jurisdiction, and, as such, having power to inquire into the conduct of the Alcalcles within its limits; then, in case of dis- satisfaction with my decision on the subject, he could carry the suit before the corresponding superior courts of justice; In this manner he will not deviate from the path laid down by law, and by the very essence of the system of government which controls us, and, which, Establishes a distinction between the judiciary and ·Executive pow- ers. The Alcalde's writ was a judicial process, and agreeable to the rules in force here. -Your Lordship's order was Executive,·and annulled an act of a judiciary officer, imposing a ruinous fine on him; and this on the mere representation•of one of •the parties without giving the other a hearing, without any inquiry into the facts in question, by the local authority; and, consequently, without the pos- sibility of ascertaining whether the act of _the Alcalde was legal, or not. An other difficulty presents itself in thus reviewing the subject. ,vhat means had Grey at his command to· obtain his money from De Leon. if it is, indeed, due him~ De Leon is the sole judge and
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