Page images

dium Vitæ Hominis,c. 1. n. 4. 20, That this privilege of law takes effect only when the person to be born shall come forth from the womb of his mother alive and perfect, L. 2. tit. 8. L. 5. Rec. [L. 2. tit. 5. Lib. 10. Nov. Rec.] 3d, That the person not yet born is considered part of the mother, in as far as it produces benefit to it: wherefore 4th, Any capital punishment, torment, or other punishment to which a pregnant woman is condemned, is deferred until she bring forth, L. 3. tit. 23. P. 4. (L. 3. tit. 23. P.4.) 5th, That if any one is interested in the inheritance or succession of a person not born, he may place a watch or guard on the pregnant woman, and the birth or delivery ought to be made known to the party so interested, L. 17. tit. 6. P. 6. [L. 17. tit. 6. P. 6 ] 6th, That if the king die and the queen be left pregnant, homage or service is to be done in the name of the unborn successor, Gregorio Lopez on Law 5. tit. 15. P. 2. Gl. 1. [L. 5. tit. 15. P. 2. Gl. 1.] Finally, many are the effects or purposes for which persons are considered born, who are still in ventre of their mother, but being foreign to the subject of this chapter, reference may be had to Laru, c. 4. before quoted.

Persons actually born, are those who have come forth from the womb (ventre) of their mother alive. Hence, it is inferred, Ist, That those deserve not this name who are born or taken from the womb (ventre) of their mother without human shape or form, called monsters, L. 5. tit. 23. P. 4. [L. 5. tit. 23. P. 4.] 2d, These monsters are not ranked in the number of children, but are considered as dead, L. 5. tit. 23. P. 4. [L. 5. tit. 23. P. 4.] 3d, That those who are born with a human form, although they may have a defect in some limb or part of the body, are considered as persons, L. 5. tit. 23. P. 4. [L. 5. tit. 23. P. 4.] 4th, That of two born at the same time, the male is presumed born before the female; and is both are males, and it does not appear who is first born, the inheritance is equally divided between them, L. 12. tit. 33. P. 7. [L. 12. tit. 33. P. 7.) 5th, That in order for the child (feto) to be considered natural and capable of inheriting, and for other legal purposes, it is required that when it is born, it be altogether alive; that it be born in lawful time, which is declared by L. 4. tit. 23. P. 4. [L. 4. tit. 23. P. 4.] to be the seventh, ninth, or tenth month, and not the eighth or eleventh; that it live twenty-four hours, and that it be baptized, L. 2. tit. 8. L. 5. Rec. (L. 2. tit. 5. lib. 10. Nov. Rec.] The posthumous child is that born after the death of the father, L. 20. tit. 1. P. 6. [L. 20. tit. 1. P. 6.]

§ 2. Mankind, in the second place, are born either males or ( 3 ) females; and though in case of doubt their rights are equal, yet, as our laws conform themselves to that which generally happens, wisdom being possessed in a greater degree by men, and women being by nature more frail, it hence follows, that the condition of the former is better than that of the latter with respect to many things, L. 2 tit. 23. P. 4. Vela, disert. 4. n. 4. y. n. 88. [L. 2. tit. 23. P. 4.]

3 See the further restraints, &c., which may be imposed on a woman in this situation, under L. 17. tit. 6. P. 6.; und vide 1 Blac. Com. Laws of Eng. p. 456. 15th Ed.

4 Palacios justly observes, that L. 4. tit. 23. P. 4. implies legitimacy of birth also in the 8th month. Vide Greg. Lop. Gl. 2. ibid.

5 This term is also extended to the child born after the father has made his last will. Vide L. 20. tit. 1. P. 6.

From this axiom, we deduce, Ist, That men only, to the exclusion of women, can obtain public employments and offices, as is inferred from the reason given by L. 4. tit. 4. P. 3. [L. 4. tit. 4. P. 3.) for excluding the latter from the office of judge, unless they have the seignory over vassals, 2d, That ignorance of law does not, in many instances, prejudice woman, Ll. 31. tit. 14. P. 5. and 21. tit. 1. P. i. (LI. 31. tit. 14. P. 5. and 21. tit. 1. P. 1.] 34, That the hermaphrodite enjoys the rights belonging to that sex which shall most prevail.

§ 3. In the third place, men are of full age, i. e. above the age of twenty-five years, or minors. The latter are so considered with respect to the period preceding and succeeding puberty, which, with regard to males, begins at the age of fourteen, and with respect to females, at the age of twelve, Ll. 12. and 21. tit. 16. P. 6. [Ll. 12. and 21. tit. 16. P. 6.] Before the age of puberty, they are called pupils, L. 4. tit. 11. P. 5. (L. 4. tit. 11. P. 5.); and in this age, a distinction must be made with respect to infancy, which continues until seven, L. 1. tit. 7. P. 2.; L. 4. tit. 16. P. 4. (L. 1. tit. 7. P. 2. and L. 4. tit. 16. P. 4.] From this age to ten and a half, both males and females are said to be near infancy, and then they are not subject to punishment, L. 8. tit. 31. P. 7. and L. 8. tit. 9. P. 7. (L. 8. tit. 31. P. 7. and L. 8. tit. 9. P. 7.] From this period (ten and a half) to that of puberty,' they are said to be near or approaching to puberty, and are considered capable of dole (dolo) and malice, and consequently are subject or liable to punishment, 10 L. 6. tit. 5.; L. 2. tit. 7., and L. 4. tit. 19. P. 6.; [L. 6. tit. 5. P. 6.; L. 2. tit. 7. and L. 4. tit. 19. P. 6.;] and L. 17. tit. 14. P. 7., [L. 17. tit. 14. P. 7.) and other laws.

The obligation of providing aliment for the issue attaches, for the first three years of childhood, to the mother. From this period to twenty-five years of age, this duty devolves upon the father, who is also obliged to afford them suitable education,12 Ll. 2. and 3. tit. 19. P. 4., [LI. 2. and 3. tit. 19.] except they prove ungrateful to their [ 4 ) father, or have sufficient means of their own, L. 6. tit. 19. P. 4. (L. 6. tit. 19. P. 4.] But if the mother be poor, the father is obliged to provide necessaries to rear the children.13

6 The law quoted in the text, L. 2. tit. 23. P. 4. does not specify or particularise them.

* The queen, &c. may; but then such women must exercise the office by a council of wise men, as stated in the law quoted in the text.

* L. 3. tit. 14. P. 5. Women come under the benefit of the exception of this law, which deprives others of the right to recover back a legacy paid under an invalid will, on the alleged plea of ignorance of the legal imperfection, or defect of the will. But L. 21. tit. 1. P. 1. limits the benefit of the plea of ignorance of law to simple countrywomen. AndGreg. Lop. Gl. 10. on this law, says, that regularly this plea does not excuse women. And see in support of this dictum of the learned commentator, L. 1. tit. 2. lib. 3. Nov. Rec. (L. 1. tit. 1. lib. 2. Rec.]

9 Near puberty, is 6 months therefrom. Vide Greg. Lop. Gl. 5. L. 9. tit. 1. p. 7.

10 But to a lesser punishment than persons exceeding 17 years; for until this age, the punishment is mitigated in proportion to the age and malice of the offender. Palacios, N. 1. referring to L. 8. tit. 31. P. 7.; and L. 9. tit. 11. Lib. 8.; and auto 19, tit. 11. Lib. 8. Rec. (LI. 2. and 3 tit. 14. Lib. 12. Nov. Rec.)

The concluding part of L. 8. tit. 31. P. 7. gives rather a wide discretion to the judgethe power, on mature consideration of the circumstances of the case, of augmenting, diminishing, or remitting the punishment.

!! This word aliment includes all sorts of necessaries and education suitable to property and rank. Vide Teatro de la Leg. tit. Alimentos.

In case of lawful divorce, the party on whose account it took place, must provide aliment out of his or her particular means for the children; and the care or charge of them devolves to the parent whose conduct did not give rise to the divorce, 14 L. 3. tit. 19. P. 4. [L. 3. tit. 19. P. 4.]

Poverty furnishes an exemption or excuse to the parents from providing aliment for their children, in which case the obligation attaches to the grandparents, provided they have the means, 15 L. 4. tit. 19. P. 4. [L. 4. tit. 19. P. 4.]

This obligation extends or applies to the case of natural children, with some limitation as to those begotten in adultery and incest; the charge of bringing up whom attaches alone to the relations by the mother's side,16 as being evidently hers, and not the father's, L. 5. tit. 19. P. 4. [L. 5. tit. 19. P. 4.]

Lastly, the minority of both males and females continues from puberty to the age of twenty-five, Ll. 4. and 5. tit. 11. P. 5.; L. 2. tit. 19. P. 6. [Ll. 4. and 5. tit. 11. P. 5. and L. 2. tit. 19. P. 6.]

It must be observed, that persons under eighteen cannot exercise any offices in towns," nor till then are they liable to serve in the militia18 according to the Ordenanzas de Quintus de 16 de Noviembre de 1761.

12 Palacios says, that the father is not bound to furnish aliment to his child until the age of 25, and that the laws cited in the text do not determine this, nor any other age; but that, on the contrary, L. 6. tit. 19. P. 4., as also the text, states that the father is released from this obligation when the son has wherewithal to maintain himself; or is able to earn, decently, his livelihood; or affords grounds of its discharge on the part of his father, as in the case of ingratitude.

13 And equally so is the mother, in case the father be poor. Palacios, referring to L. 4. tit. 19. P. 4.

14 But if the mother, having the guardianship of the children on such account, should marry again, she is no longer entitled to have the care of them; nor is the father bound to make her any allowance on this account, but should then take the children under his charge, and provide for their support, &c., if he has the means. And with reference to the rule in the text, it must be observed, that if that parent whose conduct gave cause to the divorce be poor, and the other be rich, the latter must provide for the support of the children. Palacios, who cites L. 4. tit. 19. P. 4.

15 Children and grandchildren are equally obliged to maintain their parents and grandparents, if they should be reduced to poverty, inasmuch as this is a natural and recipro. cal obligation between ascendants and descendants. Palacios, referring to the beginning of tit. 19. p. 4.

16 By relations, (observes Palacios,) must be understood here the ascendants by the right or direct line. L. 5. tit. 19. P. 4.

17 It must not be hence in ferred, that at 18 years of age persons are eligible to all public offices or employments. A person must be above 20, who is appointed to the situation of an ordinary judge ( zuez ordinario), L. 3. tit. 9. lib. 3 Rec. (L. 3. tit. 1. lib. 11. Nov. Rec.); and advocates (letrados) cannot exercise any judicial office or employment, nor that of coroner (pesquisidor), nor of relator, until the age of 26, L. 2. tit. 9. Lib. 3. Rec. (L. 6. tit. 1. lib. 11. Nov. Rec.] No one can be an escribano, until he hath completed 25 years, L. 30. tit. 25. lib. 4. Rec. (L. 2. tit. 15. lib. 7. Nov. Rec.], nor can one be an attorney at law, or judicial attorney (procurador a pleytos), until 25, L. 5. tit. 4. P. 3. Palacios (1).

$ 4. In the fourth place persons above twenty-five years of age are either young or old. Youth begins at twenty-five, and continues to fifty in men, and forty in women, according to a decision of Narbona Annales Juris an. 50. quæst. 1. At the ages of fifty and forty, according to the respective sexes, old age begins, an age to which respect is due, and many privileges belong, which are fully treated of in Lara, c. 30., and which shall be noticed in their proper places, it being enough to observe in this place, that the age of forty exempts from military service according to the Ordenanza de 1761, before cited.

15 The ordinance of 27th October, 1800, for recruiting the army, declares them fit from the completion of 17, to the completion of 36 years. But in respect to the ballotting for every filth man (quintas), the ordinance or rule which is made or published on the occasion, must be the guide in such case. The general ordinances of the army make persons liable to serve from 16 to 40 years of age, in time of peace; and, in time of war, from 18 to 40. Palacios (2).

19 Cap. 31. according to Palacios.



[ 6 ] The third division which we have made of persons, according to their natural state, into minors and majors, leads us here to treat of guardianship and curatorship, as peculiar or belonging to these ages.

Cap. 1. Guardianship is the protection which is given and afforded to the free male orphan under fourteen years of age, and female under twelve, who cannot protect themselves, L. 1. tit. 16. P. 6. [L. 1. tit. 16. P. 6.] Whence it follows that guardianship or tutelage is the same as protection, and tutor the same as guardian of an orphan. By orphan is understood, one who has no father, with the difference that, formerly, this appellation was given only to those who were without father or mother until they reached the age of fourteen, as laid down in L. 1. tit. 3. lib. 4. Fuero Juzgo.

§ 1. It is certain that the supreme guardianship, or care of orphans, is centered in our kings, and their magistrates, who have wished to take them under their favor, care, and protection, as appears clearly from L. 14. tit. 18. P. 3., [L. 14. tit. 18. P. 3.,) and from L. 20. tit. 23. P. 3. L. 20. tit. 23. P. 3.) Hence arises, no doubt, their so great [ 6 ) vigilance and intervention in the nomination, approval, and removal of guardians; the power being vested in the magistrate, who supplies the place of the sovereign, of removing from the guardianship the negligent, suspected, and bad guardian, merely by virtue of his office, and private inquiry, although no accusation shall have been made against the guardian by the party interested, L. 3. tit. 18. P. 6. [L. 3. tit. 18. P. 6.] Hence it also follows, that their causes are privileged, and are cases of court (casos de corte), L. 8. tit. 3. L. 4. Kec. [L. 9. tit. 4. Lib. 11. Nov. Rec.]

From which we must not suppose that guardians possess that power and absolute dominion which the laws of Rome gave them;

1 The Roman laws did not grant this absolute dominion to guardians; but, on the contrary, the want of it was what more distinguished the power of guardian from that of the lord or master and of the father. The end of guardianship, and the office of the gu's. dian, was among the Romans, as amongst us, to defend or protect the ward. For his benefit was the guardianship only established, and to his advantage was it only to be directed. Vinnius Com. § 1. Inst de Tut. The very words of the definition of the Roman guardianship, which are conformable in every respect to ours, L. 1. tit. 16. P. 6. declare sufficiently what was the office, and what the power of the Roman guardians; to defend or protect the ward, says $ 1. cited. The power of the father (patria potestad) was esta. blished for the benefit of the father; and that of the lord (dominica) for the henefit of the lord; and for this the one was as great as the other. In fine, it may be said that our laws, in the matter of guardianship, as in many others, did no more ihan copy the laws of the Romans. Palacios (1).

« PreviousContinue »