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L. 11. tit. 2. lib. 6. Rec. [L. 11. tit. 2. lib. 6. Nov. Rec.] They do not pay duties or taxes for the goods or property which they may have bought from persons liable to pay them, L. 14. tit. 14. lib. 6. Rec. [L. 3. tit. 18. lib. 6. Nov. Rec.] These privileges cannot be renounced, L. 14. tit. 2. lib. 6. Rec, [L. 15. tit. 2. lib. 6. Nov. Rec.] although formerly they might, according to the rule laid down by Villadiego on L. 8. Prol. del Fuero Juzgo. n. 61. and then in use.
With respect to the proofs of nobility and hidalguía we defer speaking until the 3d book, where we are of opinion it will be more suitable to treat of them.
$ 6. Under the name or term plebeians (plebeyos) we understand all those who exercise any trade (arte) or who cultivate the soil ;59 which two kinds the Partidas explain by the expressions of work (obra) and labor (labor). Works or trades (obras) are those which men carry on in houses or covered places. Labors (lubores) are all those things which men do by reason of the mode of labor (de fechura), or of the time in which they receive the work, having to traverse the mountains or the fields, and being obliged to suffer cold and heat according as the weather is. The latter are called laborers (lubradores), and the former mechanics or handicraftsmen (menesirules), because they seek their means of support (su menester) in the trade or art, L. 5. tit. 20. P. 2. [L. 5. tit. 20. P.2.]
Conforming to the laws which are at this day in force, we will only observe that this definition of labor makes us well understand how anxious Don Alonso the Wise was to represent to us the labor, suffering, and toil with which laborers procured us all that was necessary to maintain and preserve our lives; constituting them, for this reason, a more noble class than mere mechanics. Hence, without doubt, proceed the privileges and exemptions of laborers, among which the following are the principal, Ist, That they may not be comprehended in those drawn to serve in the army, (en quintas, which was granted them on the petition of seven of the Cortes of Burgos, in 1429 and 1430. 2d, That execution cannot go against them in harvest time, except for debts due to the crown, or proceeding from crime. Ll. 25. and 26. tit. 21. lib. 4. Rec. [L. 15. tit. 31. lib. 11., and L. 6. tit. 11. lib. 10. Nov. Rec.] The ordinance of 28th August, 1603, makes mention of this privilege, which it extends to the farmers of wine and vinegar, upon which articles was imposed the grant [ 34 ] of the eighteen millions which had been given to the king in the previous Cortes. 3d, That their implements of agriculture, beasts of labor, and the bread they bake, are exempt from being taken for civil debt, or in an executive suit, except for a debt due to the crown, or for the payment of the ten per cent. to the king (diezmus) and ecclesiastical or seignorial rents,61 L. 25. 26. and 28. tit. 21. lib. 4. Rec. (L. 15. tit. 31. lib. 11., L. 6. tit. 11. lib. 10., L. 16. tit. 31. lib. 11., L. 7. tit. 11 lib. 10, and L. 8. tit. 19. lib. 7. Nov. Rec. ]
59 This word may be more properly translated "commons." Palacios says, that by the term “ plebeyos,” is merely understood those who are not " nobles," and that the mere exercise of any art, trade, or calling, does not constitute a plebeian, nor deprive one of the privileges, &c. of nobility, which he may possess. He refers to a royal cédula of 1783, which he states repcals L1.6 and 9. tit. 1. lib. 4. del Orden real, and Li. 2 and 3. tit. 1. Lib. 6. Rec. (Nota 5. tit. 23. lib. 8. Nov. Rec.)
** This must mean with respect to their persons merely, and then only for debt arising from, or imposed in consequence of the commission of crime; for there is no exception from arrest in favor of the crown in the harvest time, which is from July to the end of December. See the second section of the act, or L. 15. tit. 31. lib. 11. Nov. Rec.; and L. 16. tit. 31. lib. 11. Nov. Rec. extends this privilege from arrest to the whole period of the year, except in the case of crime, or where the debt was contracted before the party became a laborer or husbandman. The first section of this Law 15. tit. 31. lib. 11. Nov. Rec. exempts from execution or levy at any period of the year, except for debts to the crown, for rent to the landlord or owner of the land, or for money lent by him to assist the laborer in his cultivation, the oxen, mules, or other beasts of the plough, and the agri. cultural implements of the laborer or husbandman, as also his fields sown with grain, or ploughed in order to be sown (sembrados y barbechos); and even the three above excepted cases, one pair of oxen, mules, or other beasts of the plough, must be left to him.- Vide Appendix J. 6i Vide Appendix J. 62 Omitted in Nov. Rec.
Our laws have not been less attentive to forming regulations respecting trades, which, formerly, were divided according to their nature or kind into associations, corporations, or companies: their by-laws, (esialutos,) which varied in each of them, constituted the form of their government, the admission of journeyman to be masters, and other things which belonged to their interior and exterior employments; but the royal approbation was always necessary to their validity. There are, however, some general laws on the subject: Ist, That no person shall hold or exercise two employments or callings at the same time, L. 12. tit. 13. lib. 5. Rec.;62 not even those which had a certain connection or dependence upon one another, by reason of the goods or articles they made use of; an example of which is given in L. 1. tit. 11. lib. 7. Rec. (Note 7. tit. 23. lib. 8. Nov. Rec.] 2d, Every journeyman or mechanic must work within the place where hired or employed from sun-rise to sun-set; and if without or heyond it, until such hour as will allow for his return by its setting, under penalty of loss of one-fourth of his day's wages, L. 2. tit. 11. lib. 7. Rec. [L. 1. tit. 26. lib. 8. Nov. Rec.) 3d, That the town councils (los concejos or cabildos) shall fix their wages according to the price of provisions in the district, (comarca,) L. 3. tit. 11. lib. 7. Rec., (L. 4. tit. 26. lib. 8. Nov. Rec.] 41h, That every journeyman or day laborer shall be paid on the night of the day of his work, if he wishes it; and that no such person can be elected to a public office in the town (por oficio del comunj under penalty of twice the amount; (penu del doblo;) and that no master workman may employ more than twelve each day, L. 4. tit. 11., and L. 10.63 tit. 3. lib. 7. Rec. [L. 2. tit. 26. lib. 8., and L. 4. tit. 9. lib. 7. Nov. Rec.] Upon the various handicraft works, see tit. 13. 14. 15. 16. 17. 18. 19. 20. and 23. lib. 7. Rec. 64
Cap. 4. The third division of men, according to the civil state of persons, into lay and ecclessiastic, will be found supported by L. 2. tit. 23. P. 4. [L. 2. tit. 23. P. 4.] Ecclesiastics are those who compose the hierarchial state of the church. They are called clergy, (clerigos,) which means men chosen for the service of God, L. 1. tit. 6. P. 1. [L. 1. tit. 6. P. 1.]
63 L. 10. tit. 3. lib. 7., nor its corresponding Law in the Nov. Rec., does not scem to apply.
64 Few of these are inserted in the Nov. Rec.
§ 1. The ecclesiastics are regular or secular. The regular are those who leave or abandon all earthly things, and adopt some rule of religion to serve God, promising to observe it, L. 1. tit. 7. P. [ 35 ] 1. L. 1. tit. 7. P. 1.] To the first kind belong monks, friars, and regular canons, whom our laws call canons of the cloister, (de claustro,) L. 1. tit. 7. P. 1. [L. 1. tit. 7. P. 1.] which in the present day scarcely subsists.
The ecclesiastical privileges are confined to the peculiar jurisdiction, (ú su fuero,) immunities, and exemptions, which they enjoy immediately by royal grant, L. 50. tit. 6. P. 1. [L. 50. tit. 6. P. 1.] Of their jurisdiction, or judicial power, we shall say something in its place in the third book. We shall say nothing of their immunities, conceiving that they belong to the canon, or ecclesiastical law of Spain. With respect to their exemptions, we must observe that the exemption from payment of excise duties (alcabalas) is granted them by L. 6. tit. 18. lib. 9. Rec.; [L. S. tit. 9. lib. 1. Nov. Rec.;] and this is understood with respect to the sale of their property, and the fruits or products of their estates; but not the produce which they may derive from lands rented, nor their traffic, or gains of any kind, according to the decree of the Presidents, which is L. 1. tit. 18. lib. 9. Rec.65 which is ordered to be observed by cédula of 20th July, 1763, which directs depositions on oath to be taken of the rents of ecclesiastics; and if they should be false, that the judges proceed to verify and value the property by experienced or competent persons on oath. This exception from the payment of excise, or duty on sales of articles, (alcabala,) is not extended to the clergy of the minor orders, L. 2. tit. 4. lib. 1. Rec. (L. 7. tit. 10. lib. 1. Nov. Rec.]
According to the instructions and royal decrees of 1745, 1751, and 1760, which declare the art. 8. of the concordate of 1737, all property belonging to ecclesiastical foundations antecedent to that period is exempt from tributes; but that acquired subsequently to the said year 1737 shall be subject to contribution; and thus the clergy shall be obliged to contribute and to assist the laity in what is paid or furnished for the quartering of soldiers, (via de utensilios, quartelas) brandy, (aguardiente, (mejorus de fundos,) (censos,) &c. They shall equally be obliged to contribute to public works for the public or common benefit, L. 12. tit. 3. lib. 1. Rec.; [L. 7. tit 9. lib. 1. Nov. Rec.;] and to pay the duties of export on what they shall send out of the kingdom, Aut. 4. tit. 18. lib. 9. Rec. [L. 14. tit. 9. lib. 1. Nov. Rec.] With regard to the benevolence or subsidy to assist in
6 Not in Noo. Rec. ** I cannot find appropriate terms in English for these words.
carrying on the war against infidels, (gracia del Escusado ó Casa [ 36 ] dezmera,) of apostolic grant, see the decree of January, 1761, and Murtinez in his Librería de Jueces, tom. 2. c. n. 84. to 92.
It is to be observed, that the regular clergy cannot be agents or attorneys, except in causes and affairs of their chapters and societies, presenting first the licence of their superior, Aut 1. and 2. tit. 3. lib. 1. Rec.; (L. 1. tit. 27. lib. 1. Nov. Rec.;] and the royal cédula of 25th November, 1764.
The regular clergy are also forbidden to live out of their convents under any pretext, cédula of 4th ugust, 1767; and to ask alms with poor's boxes without permission of the town council, (del consejo,) decree of 16th September, 1766.
Lastly, They are not considered as inhabitants of the towns, according to the royal cédula of 21st December, 1766; all which remarks we have made here, considering that these points could not be treated of with more method in another place.
OF PROMISE OF MARRIAGE OR ESPOUSALS (DESPOSORIO) AND MARRIAGE
Cap. 1. Men in the third place are considered with respect to their state as a family, and in this point of view, are either married or single. To this division belongs matrimony, which is accompanied commonly by marriage portions (dotes) and donations propter nuptias, which we term jointure (arras): wherefore, proceeding immediately to explain espousals or mutual promise of future marriage (el desposorio), as antecedent to marriage, we will treat of both in the present chapter, leaving for the following the explanation of the marriage portion of the wife (dote) and jointure (arras).
We consider matrimony as a contract which is celebrated between those who have contracted espousals (los desposados), and from which it derives its force and efficacy; but authorised by the church, which gives it a worthy place among its sacraments by
reason of its dignity, mystical signification, and its ends, L. 5. tit. 1. P. 4., Ll. 3. and 4. tit. 2. P. 4. [L. 5. tit. 1. P. 4. Ll., 3. and 4. tit. 2. P. 4.]
§ 1. Under the consideration of contract, as we shall treat it here, leaving for the canonists all that it contains with respect to the sacrament and the church,' a solemnity testifying the will of the contracting parties ought to precede marriage, which we call mutual promise of future marriage or espousalsa (desposorio); and that is the verbal promise which men make when they wish to marry, L. 1. tit. 1. P. 4. [L. 1. tit. 1. P. 4.) We must except from this general definition the dumb, who by means of evident and clear signs, supply the place or pronunciation of words, L. 5. tit. 2. P. 4. [L. 5. tit. 2. P. 4.]
From this definition we deduce the following axioms:-1st, That promise of future marriage is a consent which those who are [ 43 ] betrothed give with the desire of being married. 2d, That it ought to precede matrimony. 3d, That it is a mere pact celebrated without the solemnity of law;} but of such force, that by reason of it the persons who are betrothed are bound to contract matrimony afterwards.
! “ Following in Spain the rules of the church in what appertains to the efficacy or validity of matrimony, and treating of the impediments of marriage, we cannot lay aside what it possesses in relation to the church." "Palacios (1).
? Vide Wood, C. L. Book 1. ch. 2. p. 118. fo. ed. (Palacios here observes, that it is true espousals ought to precede matrimony when they are contracted; but that no one can infer from this that marriage cannot be celebrated without having previously contracted espousals.)
8 "Promise of future marriage (desposorio) is not a mere pact, it is a contract with its proper nomination, which ought not to be celebrated without the solemnities which the law prescribes." Palacios (2).