Page images
PDF
EPUB

inheritance with the intention of not relinquishing it. Incorporeal things are possessed by the use thereof and the sufferance of their owners; of this class are rights, servitudes, &c.

18. The possession, as has been said, must be continued; that is to say, it must not be interrupted, either naturally, by him who had it losing it, or civilly, which is when any one commences a suit or makes a judicial demand against the possessor in respect of the said thing. By either of these two methods the prescription is cut off, and must begin anew. But neither by the death of the possessor nor by the alienation of the thing is the possession interrupted in the new owner if in him subsists good faith.

19. Every man of sound mind is capable of acquiring possession, not only by himself personally, but also by means of another empowered by him, if in him be united the two necessary requisites, which are the will or intention of acquiring it and the corporal act of occupation, or at least the presumed act, in the manner that was mentioned, when treating of symbolical delivery; that is by means of a sign that proves the possession. By occupation, possession cannot be gained for themselves by hirers, borrowers, depositaries and the like, who hold the thing in the name of another person, nor by those who enter by force upon the thing or steal it, because their holding is unlawful.

20. Possession is lost in two ways, 1st, Whenever the thing is reduced to such a state that it cannot be held either corporally or by will. 2d. In real property it is lost if the possessor be evicted by force, or if when he is not present another usurps it and prevents his entry, or if seeing that another is taking possession of his property, he consents to it by not impeding such usurpation. But although in these cases, the possession is lost, the dominion is not, and therefore, the party dispossessed may bring an action against him who has his property, for which purpose the summary courts of momentaneous possession are in use, which are so called on account of the brevity with which decisions are made in them; and they were introduced in order to avoid the disputes that arose respecting the right of possession. Those courts, called interdictos, will be explained in their proper place.

21. The time that is necessary to possess a thing to prescribe it, is three years if it were movable, and ten if it were immovable, or real, and the owner against whom the prescription runs is in the same province; but if he be out of it, twenty are necessary. There is also prescription by immemorial possession, which is proved by witnesses of good fame who depose to having seen the party in possession of the thing for the space of forty years, and that they heard it from their ancestors, without ever having seen or heard any thing to the contrary. By this possession the lordship of cities, towns and places, and jurisdiction, are acquired, but not the supreme jurisdiction which belongs to the king, nor tributes.

22. The time mentioned is sufficient for the prescription of the

thing, and thereby the dominion of it is acquired; but in order to gain the possession a year and a day is sufficient; so that if to this time be added title and good faith publicly and without opposition from the demandant, the possessor is not obliged to answer in respect to the possession.

23. Although in the language generally adopted it is said that actions or the right that any one has to sue us are prescribed, it is proper to remark that the effect of this prescription is entirely opposed to the idea that appears to be expressed, because far from acquiring any species of dominion by such a prescription, the action becomes extinguished and without any force; an exception resulting to him who prescribes.

24. All actions are not prescribed by a like space of time. Thus the right of executing by a personal obligation is prescribed by ten years, the personal action and the execution (sentencia ejecutoriada) granted thereon by twenty years. If a mortgage accompany the obligation, or the latter be mixed of personal and real thirty years are necessary in order to prescribe the debt. This is the express enactment (la disposicion, terminante) of Law. 5. tit. 8. book 11 of the Novisima Recopilacion, which law nor no other of that code speaks of prescription of the action merely real, and therefore we must refer to Law 21. tit. 29. of the third Partida, in which the term thirty years was fixed for the prescription of the real action.

25. The following actions are prescribed in three years, 1st, That which one who has served another has to recover his wages or salary. 2d, That which belongs to apothecaries, confectioners, jewellers and the like for the amount of their wares and work. 3d, That which advocates, attorneys and agents have for their salaries. The method of computing these three years is, in the case of servants, from the day on which they were dismissed, and in the other cases, from that on which the services or effects were received, observing that in order to prevent this prescription any demand of the debt is sufficient, although it be extrajudicial.

26. The things that cannot be prescribed on account of a legal incapacity of being so, are, in the first place, those which are called de jure divino; that is, things sacred, religious, or holy and a free man. Public squares, streets, commons, pasture grounds and other places belonging to towns or villages that are intended for the common use of their inhabitants. Things obtained by robbery or theft; those of minors under twenty-five years of age; those of sons under the power of their father, and those brought by the wife in dowry to her husband, unless the wife, knowing that the husband was dissipating his estate, omitted to sue for restitution of her dowry.

27. Prescription does not run against sons, whilst they are under paternal dominion, except in the cases in which they can appear in court without the license of their father, and compel him to give it. Nor against a married woman to recover her dowry, except that knowing that her husband is dissipating it, she is dilatory in exercising

her right; but it does for her paraphernalia, because in order to sue for them she may cause the judge to compel her husband to give her license. Nor against minors under twenty-five years of age, while they are such, unless they are successors of some ancestor against whom it had commenced running, although they may be restored if they pray restitution within the four years after the day on which the minority ended. The same doctrine holds with respect to the king or councils and communities, if they claim within the four years following the completion of the term of prescription, and with regard to a person employed in the service of the king or council or in schools, a captive or the like, inasmuch as he is to be restored from the time of this prescription, if he prays restitution within the four years after his employment ceased, and his heir within the four years following the day on which he knew of his decease.

TITLE III.

FRESCRIPTION, FROM AZEVEDO.

Azevedo, Book 4. Tit. 15.-4. Ordinary Prescription of ten years amongst persons present, and twenty amongst absent suffices, against such as are inferior to the king, (P. 3. tit. 29. lib. 6. tit. 4. lib. 18.)

47. ROYAL privileges which belong to the king as an acknowledgment of supreme power and recognition of subjection in his subjects, cannot be alienated, and by 48 is limited, unless the kingdom would suffer little from such loss.

For these royal privileges which belong to the king in sign of his supreme power and recognition of subjection cannot be alienated (from chap. Intellecto de jure jurandi) of which last, quoting several to the same purpose, Menchaca speaks (de success. crea. § 26. n. 9,) and better in No. 82, unless, as he himself says in the same place No. 83, the kingdom would be slightly injured by it, because in that case it would be well alienated, not otherwise, as is commonly asserted, Covarrubias saying, (chap. quamvis pactum 2. P. § 2. n. 4.) where Mat. afflict. alleges, treating better upon these matters"nay, and if the king should alienate any thing of his own, these royal attributes are always deemed excepted, and do not come into the alienation, according to Covarrubias (as above) amplifying this subject in another way (in dect. n. 8.,) and, as we said above in this same law, also Pelaez (de mayoralibus 4. par. quest. 1. n. 55, with others following p. 406,) and again, there in 3 and 6. limit., since then they cannot be alienated, nor can they be prescribed, because

things which are inalienable, are also imprescriptible, according to text in l. fi. fundum, ff. de fund, dotal. But Nove declares in our words (de priv. dol. 6. aut. 7. par. privelegio 8 limitatione 1.) But what are said to be the royalties of the king, as sovereign, and what to the Pope is explained by Bal. quoted by Jas. (in dict. l. imperium c. de preceb. imp. offer,) the same Jas. (in dict. l. imperium, n. 10,) and Auton. Gom. better still in l. 40. de Toro n. 10. and Montal, in 1. 5. tit. 11. lib. 1. of the Fuero, and best of all Cassaneus (in catalogue of the glories of the world, 5. part. 24, consid. optima l. 5. tit. 15. part.) where Glossary 1, asks, whether mines are among the royal privileges-but as I shall say below, these are not of those imprescriptible privileges which are acquired by immemorial prescription, as the salt monopoly and other dues, which, although they be of the royalties, are still of the royal patrimony, therefore, can be prescribed, as will be said below, in speaking of the 3d and 5th (a law term,) of this kind of goods, and whether subjects of any prince can prescribe freedom and immunity from moneys to be paid, not indeed from those called tributes and census, because immunity from these is imprescriptible, but from taxes and new imposts which are not paid in acknowledgment of the supreme power, but for expenses of an impending war, or for relieving other necessities of the prince. So says Covarrubias, (dict. cap. possess. 2 part. § 2. n. 8. versic. second species,) and speaks of these same royal rights, as is also said by Olanus (in concordate lettera, P. n. 119,) but if these effects be of other parts of royalty, which are preserved and belong to the prince by reason of his rank, so that no one except the prince can execute them as the instituting notaries, laying on of taxes-making legitimate, illegitimate persons, and other like matters of which mention is made (in cap. sup. gub. de verb. signif.,) these prescribe through time immemorial.

TITLE IV.

(Translated from Alvarez's Institutes, vol. 1. p. 26. lib 1. tit. 2.)

Among us there is but one species of written law (derecho), which is the law (la ley). That is a general precept of the supreme power made known to the subjects that they may regulate their actions thereby. (Law 4. tit. 1. Partida 1.). There is not then in Spain as among the Romans a diversity as to the origin of the laws, as they all proceed from the will of the prince, but only with regard to the purpose and mode of issuing them, from whence it has arisen that there are given to them distinct names. Sometimes the law that is promulgated to us is called pragmatic sanction, at others royal cedula,

royal resolution, royal decree, circular letter; at others, lastly, royal order, and even likewise act consented to (auto acordado). To all these names, by which laws proceed from the prince is given their peculiar description, but not exact in all cases, some being confounded with others. Pragmatic sanction is a royal determination that is promulgated in order that it may have the force of a general law, and in it is reformed some excess, abuse or damage introduced or experienced in the commonwealth, and it is inserted in the body of the law; for example, that of the 12th of March 1771, in which in order to prevent the desertion of presidarios (criminals condemned to hard labor in a garrison) to the Moors, the garrisons are specified that are intended for their confinement, and it is directed that the time of sentence do not exceed ten years. (Law 7. tit. 40. book 12. of the Nov. Recop.)-Royal cedula is a despatch of the king, issued by one of the councils in which some determination (providencia), is taken de motu propio, or something is decreed on the petition of the party. Its heading is THE KING, without the mention of any more titles: it is signed with his majesty's signet (estampilla): the Secretary of the Council to whom it appertains puts the countersignature; it is rubricated by some ministers, and regularly it is delivered to the party. Such is that of the 7th May, 1740, in which it is directed that the Audience in despatches or letters requisitorial to bishops do not make use of the word estraño, on account of its not being sufficiently respectful to their high dignity. An example is not given of the cedulas, in which favors are granted, as they are very well known. Royal resolution is the determination that the king takes in some case that is proposed to him, as is that of the 10th of April 1756, by which the courts (salas) are declared in which suits for forcible injuries and others are to be heard. This name of royal resolution is generic, and suits every determination that the king takes. Royal decree is an order of the king that is drawn up in the secretary's offices of despatch, and his Majesty rubricates it in order to communicate his resolutions to the tribunals within the capital, to the chiefs of the royal houses, or to some ministers; as for example, that of the 7th of October 1796, declaring war against the kingdom of England, which was directed to the governor of the council. Cedula, circular letter or order, is some disposition that is issued in order that it may circulate throughout one province, or in many. Royal order is every disposition that any one of the ministers of the king communicates by his command.

Acts consented to (autos acordados) are the laws that with the consent of the king are established by the Supreme Council, as well of Castile as of the Indies: so that the force that the autos acordados have are derived from the approbation of the king. These are the species of written law that we know by the general name of ley, which, as we have already said, are not distinguished from each other in respect to origin, but only in the circumstances that we have particularised.

« PreviousContinue »