Page images
PDF
EPUB

pointed in his will, shall be guardian to the king minor. If he should not have appointed one, the queen-mother shall be guardian while she remains a widow. In default of the queen-mother, the guardian shall be nominated by the Cortes. In the first and third case, the guardian must be a native of the kingdom.” And the minority of the king is limited by it to eightecn; and it provides, that during his minority or other incapacity, the kingdom shall be governed by a regency; and that if his immediate successor have attained 18 years, is the incapacity of the king should exceed two years, the Cortes may nominate him regent. Vide on this subject chap. 3. commencing Art. 185 of the Con. stitution.—N. B. Since the above note was written, a sad change has taken place in the affairs of Spain. The Cortes no longer exists.

TITLE V.

OF PERSONS IN THEIR CIVIL STATE OR CAPACITY.

Cap. 1. Having explained the natural state of persons, its divisions and properties, or qualities, we will proceed to do the same with respect to their civil state or capaciiy, which is the second branch of the first division we made at the commencement of this [21] work.

With regard to their civil state or capacity, men are considered, ist, as natural-born subjects of these kingdoms, and as aliens or foreigners. 2d, As nobles, persons entitled to the rights of nobility, (hidulgos), kuights, (caballeros), and plebeians. 3d, As laymen and ecclesiastics. The distinction into freemen and slaves, which is found in our law in P. 4. tit. 21 and 22, is not now observed or acknowledged, unless it be with respect to the negroes employed in the Indies in working the mines, or held in slavery by private individuals; but even as regards this circumstance, it is foreign to this treatise.'

"To the resident of a West Indian colony, where the system of slavery'exists, and the laws referred to in the text form part of its legal establishment, it must be matter of regret that the learned authors have acted on this opinion, and abstained from giving the substance of those laws, and of others to be found on this important subject, in the Spanish codes. It is an object of concern to the Translator, that want of time will not allow him, at present, to supply this omission to its fully desired extent. He has, how. erer, considered it necessary to furnish the reader, in the Appendix, with those regula. tions and enactments which the British government, since the conquest of Trinidad, have thought fit to engraft in the old legislative provisions of Spain.

Among the latter may be noticed the Royal Cedula of the King of Spain, of the 31st May 1789, containing instructions or regulations to be observed by the owners and pos. kestors of slaves, in respect to their education, food, clothing, employment, diversion, habitation, care, medical treatment, and marriage; as also those to be attended to by the slaves in regard to their duties towards their owners; and others in respect to the cor. rectional punishment of the slaves for domestic offences, extending to that by magisterial authority for criminal excesses; also in regard to the annual written return, with specifi. cation of sexes, births, deaths, &c. of the slaves, on oath, by the owners or possessors, before the judge or magistrate of the town or district, with the view to registry, by the escribano or clerk of the ayuntamiento, or town council or corporation, in a record book to be kept for the purpose; and in reference to the violation of these regulations by the owners, and to the trial and punishment of them and of other persons for excess, ill. treatment, or cruelty towards the slaves. Although this cedula was officially acted upon in Trinidad, in respect to the feeding, clothing. treatment, protection under the especial appointment of the Syndic Procurator General, held, until recently, by His Majesty's Attorney General of Trinidad; and the correctional punishment of the slaves, and in respect to their annual return or registry on oath, as above-mentioned, it does not appear to have been legally in force in the island, unless in so far as it was afterwards confirmed by an order in council of his late Majesty of the 26th March 1812, and referred to by a proclamation of the present Governor of Trinidad, Sir Ralph Woodford, bart. containing orders and regulations respecting the public gaol of the island.

This supposition is supported by a note in a Spanish law work of great utility and Tepute, entitled “ Teatro de la Legislacion Unirersal de España é Indias," which contains lhe cedula in question. In this note it is stated, that by a royal order, posterior to the Cap. 2. The state of a natural born subject (la naturaleza) signifies or imports the duty imposed upon men with respect to one another by some right or lawful reason of loving and cherishing each other, L. 1. tit. 24. P.4. [L. 1. tit. 24. P. 4.] According to this definition, which comprehends, generally, the obligation which naturalborn subjects are under towards those to whom they are bound by some lawful cause or motive, the ten modes of acquiring the rights of a natural-born subject, expressed in L. 2. tit. 24. P. 4., [L. 2. tit. 24. P. 4.] take place; but all of them not being within the scope of our present consideration, on account of some of them appertaining to the laws of nations, and by reason of others being subject to the jurisdiction of the magistrate, we will preserve an entire silence as to the first; and with respect to the last, will treat of them in their respective places, contenting ourselves, at present, with describing as a natural-born subject of these kingdoms "the person who is a native of them, or born of parents both of whom were, or at least the father was, born therein, or had obtained a domicile in them, and had besides lived at least ten years therein, according to the suppletory law, L. 19. tit. 3. lib. 1. Rec. (L. 7. tit. 14. lib. 1. Nov. Rec.]

cedula, the fulfilment or enforcement of the latter was directed to be suspended until the further-to-be-expressed pleasure or direction of the king of Spain. No such subsequent expression of the royal will appears to have emanated from his Spanish majesty. In further corroboration of the opinion hereinbefore hazarded, it may be added, that this royal cedula is not incorporated in the edition of the laws of Spain, entitled Norisi ma Recopilacion de las Leyes de España, and that by a notice to the title of laws in this compilation, it is declared, that the laws and ordinances in the previous edition, entitled “ Nueva Recopilacion de las Leyes de España," not inserted in the Novisima, are pur. posely omitted by reason of being obsolete, repealed, or useless. The first British enactment on the subject, in

point of time, is an ordinance of the late General Sir Thomas Picton, then governor of Trinidad, dated June 30, 1800, about two years and a half after its conquest by the British arms. This ordinance evinces, in its provisions, much practical humnunity and solid advantage in regard to the slaves.

Subsequen:ly to this ordinance, appeared the order in council of the 26th of March, 1812, establishing a public registry for the registration and enrolment of the names and descriptions of all persous then being, and thereafter to be held in a state of slavery within the island of Trinidad, and of the deaths and births of all such slaves. The period of registry directed to be annual by this order in council, was made triennial by a subse. quen: one of the 18th September, 1816. Further effect was given to the order in council of the 26th of March, 1812, by an act of the British Parliament, 59 G. 3. c. 120.

More recent regulations and changes with respect to slaves have been made by the order in council of the 16th September, 1822, providing for the administration of criminal justice, by which the discretionary admission by the court of their testimony in criminal cases was first legalised; by an order in council of the 10th March, 1824, and by a proclamation of the colonial government founded on the latter. Some modifications, or explanations, in regard to the order in council of the 10th March, 1824, have been made or given, in a circular issued on the subject by Sir R. Woodford, governor, in conformity with instructions from Earl Bathurst, His Majesty's Secretary of State for the Colonies. This circular, which has been taken from the Times newspaper of the 18th November, 1824, will be found in' the Appendix, with the several British orders in council, and enactments hereinbefore adverted to, vide Appendis, B.C.D.E.F.G. H. I.

To those who take an interest in questions connected with this subject, it may prove a source of satisfaction to be informed, that by the laws in force and practice in Trinidad, and which existed previously to the promulgation of any of the British enactments, before noticed, omnes liberi prasumuntur nisi constet de servitute, that although the owners of slaves, and the managers, or mayordomos, appointed by the owners, to whom the power was by those laws restricted, could inflict on the slaves correctional punish. ment to the limited extent permitted, for domestic offences, if they exceeded in this, by causing grievous contusion, effusion of blood, or mutilation of member, in addition to the pecuniary penalties provided, they, as also all other persons who ill-treated or injured a slave, were subject to a criminal prosecution before the ordinary tribunals of the colony, at the instance of the Syndic Procurator General, the official protector of slaves, and liable to the punishment, corresponding to the injury or offence, as though the slave were a free person: besides which, that in the case of the owner being the offender, the slave was directed to be confiscated and sold to another owner, if able to work, and his value or proceeds applied to a public purpose: and if the slave was incapable, or unfit to be sold, the owner, without having the slave returned to him, or to his manager, guilty of the excess or injury, was bound to furnish or advance for the daily sustenance and cloth. ing of the slave, during lise, a sufficient surn to be fixed by the judge.

§ 1. Hence it follows, Ist, That there are two modes of acquiring the rights of a natural-born subject, either by having been born in these kingdoms, or by being the child of a father, a native thereof; or of parents who have resided therein ten years, with the intention of domiciliating there, L. 19. tit. 3. lib. 1. Rec. [L. 7. tit. 14. lib. 1. Nov. Rec.] 2d, That if the father shall have been absent, or abroad in the service, or by order of the king, and during such absence shall have had a child born out of the kingdoms, it shall, notwithstanding, be a natural-born subject, as being considered as though born in Spain, L. 19. tit. 3. lib. 1. Rec. [L. 7. tit. 14. lib. 1. Nov. Rec.] 3d, That this is understood as with respect to natural and lawful children; for with respect to spurious children, (espurios,); it is [ 22 ] necessary that both their father and mother shall have been born, or have domiciled in the kingdom for ten years, in order to their acquiring the rights of natural-born subjects, L. 19. tit. 3. lib. 1. Rec. [L. 7. tit. 14. lib. 1. Nov. Rec.]

By reason of this state, (naturalidad, there arise between the king and his natural-born subjects certain obligations which belong to public law. See P. 2. from tit. 2. to tit. 21.

§ 2. The rights of a natural-born subject having been acquired, ist, The person so acquiring them is capable of holding public employments and posts. 2d, He is obliged to do or grant to the king all that is enjoined by P. 2. from tit. 12. to tit. 31. 3d, He cannot be sued out of the kingdom, Aut. 3. tit. 8. lib. 1. Rec. [Nota 3. tit. 29. lib. 4. Nov. Rec.] He is prohibited, under pain of loss of property and perpetual banishment, from going out of the kingdom for the purpose of study,'excepting in the universities of Bologna, Coimbra, Rome, and Naples, L. 25. tit. 7. lib. 1. Rec. (L. 1. tit. 4. lib. 8. Nov. Rec.] But the reasons for this enactment having ceased, we apprehend it is not now observed. 5th, Natual-born subjects cannot wear other clothes than those manufactured in the kingdom, Aut. 7. tit. 2. lib. 5. Rec.5 A most excellent law, but totally unobserved.

2 Vide L. 1. tit. 11. lib. 6. Nov Rec.

3 Begotten on a woman who has promiscuous intercourse with many men. Vide L. 1. tit. 15. P. 4.

· These duties are too numerous for the subject of a note; and I must refer the reader, who is desirous of more particular information, to the reference in the text. 6 Omitted in Novisima Rec.

VOL. I.-6

$ 3. The rights of a natural-born subject may be lost or renounced, 1st. by five modes or ways. Ist, By treason against the king; and this includes the forfeiture of property and honors, or titles. (mercedes,) L. 5. tit. 24. P. 4. [L. 5. tit. 24. P. 4.] 2d, If the king machinates the death of a natural-born subject without justice or law. 3d, If he denies him justice. 4th, If he dishonors his wife, L. 5. tit. 24. P. 4. [L. 5. tit. 24. P. 4.] These three last may have given rise to the 5th, which consists in the denaturalisation, (desnaturaliza. cion,) or voluntary renunciation of his rights and allegiance by the natural-born subject. By which all reciprocal obligations between the sovereign or lord and the subject cease; because denaturalisation signifies or implies, as it were, the relinquishment of or separation from that natural tie or obligation which links the subject with, or binds him to his sovereign or lord, or the land in which he lived, L. 5. tit. 24. P. 4. (L. 5. tit. 24. P. 4.]

§ 4. Powerful or weighty reasons were not wanting for the exclusion, by our legistators, of aliens or foreigners from public and ecclesiastical employments, and the obliging them to the performance of, or compliance with, certain things which were necessary to their good government. Therefore it hath been determined, 1st, That they cannot obtain the appointment of alcade or magistrate, the government of cities or towns, nor be sworn regidors. Ll. 2. and 27. tit. 3. lib. 7. Rec. [L. 2. tit. 5. lib. 7. Nov. Rec.] 2d, That they cannot obtain ecclesiastical benefices nor pensions relating or annexed to them, Ll. 14. 15. 17. 18. and 25. tit. 3. lib. 1. Rec. [Ll. 1. and 2. tit. 14. note 2. tit. 14. and L. 1. tit. 13. lib. 1. Nov. Rec.] 3d, That no gifts nor transfers of towns, castles, or jurisdictions, or manors, may be made in their favors, Ll. 1 and 2. tit. 15. lib. 5. Rec. [LI. 6. and 7. tit. 5. lib. 3. Nov. Rec.] 4th, That they shall not be put in pos[ 23 ] session of any commandery, (encomienda,) Auto. 6. tit. 3. lib. 1. Rect. 5th, And in order that these laws should be inviolable, it is prohibited to grant the rights of naturalisation to foreigners, and the nation (el reyno) is commanded not to consent thereto, L. 36. tit. 3. lib. 1. Rec. [L. 4. tit. 14. lib. 1. Nov. Rec.] 6th, That they cannot be exchange nor mercantile brokers, L. 7. tit. 16. lib. 5. Rec. 7th, That ignorance of the royal cedulas, proclamations, and edicts, &c. with respect to the exportation and importation of articles forbidden or prohibited, custom-house fees or duties, &c. will not excuse or avail them, Bobadilla Polit. L. 4. C. 5. N. 71. See L. 15. tit. 1. P. 1. [L. 15. tit. 1. P. 1.] 8th, That they shall only use the clothes which they bring, contrary to the ordinance respecting clothes, for the space of six months after they enter Spain, L. 1. Cap. 17. tit. 12.

6 The law referred to, L. 5. tit. 24. P. 4. in the text, specifies only four, as does the text itself.

7. This is not consonant with the notions entertained respecting the duties of allegiance in Great Britain. Vide 1. Blac, Com. p. 369. 15. ed.

8 I suppose this law is obsolete, as it is not to be found in the Nov. Rec.; and by Nota 1. tit. 32. lib. 11. Nova Rec. this law is stated to be obsolete.

« PreviousContinue »