husband makes to the wife, by reason or on account of marriage, L. 1. tit. 11. P. 4. [L. 1. tit. 11. P. 4.] and also in consideration of the

nuptias and arras, implied one and the same thing; and that the amount of dote brought by the wife into marriage, was, of necessity, met by a corresponding assignment to her of property on the part of her husband, in recompense of, and as a security for, the dote of the wife; he having the usufruct of both, but without power of alienation of either, during marriage, for the support of the marriage, or the maintenance of both consorts, and the children of the marriage; such donation to revert to the husband, or to go to his heirs according to the rules of succession, in the same way as the dote was to revert to the wife, or to go to her heirs, according to the like rules of succession, after the dissolution of marriage. This supposition is, however, reinoved on reference to the laws of the Fuero Real, and of the Recopilacion, or the Novisima Recopilacion of the Laws of Castille, and to able commentators on the laws of Spain. It is inatter, it must be confessed, of laborious concern to the student, or practical professor of these laws, whose anxiety for the best illustration of his subject, is apt to induce a reference to these very learned and inge. nious commentators, to find the great number, or vast variety of their elaborate works, often equalled by the diversity of conflicting opinions they offer with respect to the same points; which, if they do not perplex and mislead, just leave the inquirer, after a labo rious research, where he was before he looked into them. The learned Antonio Gomez, in his annotations on Ll. 50, 51, 52 and 53, Tauri, speaking of these matrimonial donations, arras, &c. says, n. 1. “in jure nostro diversis modis fit mentio de his quæ dantur ab uno conjugum alteri, inter quæ est maxima diversitas et difficultas," &c.: he divides these gifts into six sorts: "1. Donatio quæ vocatur sponsalitia largitas. 2. Donatio quæ Vocatur propter nuptias vel ante nuptias. 3. Donatio quæ vocatur arrha. 4. Donatio quæ vocatur dos. 5. Donatio pura et simplex quæ vocatur donatio inter virum et uxorem. 6. Donatio reciproca ab ipsa lege, medietatis lucroruin acquisitorum constante matrimonio." With respect to the second sort, donatio propter, or ante nuptias, he says, n. 9.: "Et certe materia hujus donationis est satis dubia et incognita, et vix potest ejus virtus et effectus intelligi: et in ea aliquantulum insudavi, &c." It is to be regretted, that the modern laws of the Rec. or Nov. Rec. have not more clearly solved or removed the difficulty. The 3d Title of the 10th Book of the Nov. Rec. embraces Arras dotes y dona. tiones propter nuptias:" but does not seen to contain any laws strictly applicable to donation propter nuptias, let alone to point out any difference between it and arra. Law 4th of the title cited, does certainly make a regulation as to the property of husband and wife, out of which shall be paid the dote, and donatio propter nuptias, assigned by them to daughters and sons of the marriage; but there is no statutory provision, that I have been able to discover, which marks, or points out, the separation or difference between the two descriptions of gifts, called donationes propter nuptias, and arras: they were confounded or described as one and the same thing, as has been before mentioned, by the laws of the 11th Title of the 4th Partida. The laws of the Fuero Juzgo would seem to confound them also; the 4th law, art. Donac. of which says; the property which the husband promised to the wife in arras, shall go, after her death, to the sons or children (of the marriage); and if there should be none, to the heirs of the husband. I. 1. tit. 2. Book 3, of the Fuero Real, liinits the amount to be given by the husband to the wife, in arras, to the tenth part of his property; and seems, for the first time, to deprive the husband of his dominion in and to arras, by extending to the wife both an alienable (if the word may be allowed) aud a testamentary disposition, over it, to his prejudice; although it directs such property or arras, to revert to the husband, or to go to his h irs, in case the wife should die intestate, without children of the marriage: but this may be called an alteration in the law, without any distinction, as between arra, and donatio propter nuptias The 5th law of the same Title and Book of the Fuero Real, gives the woman, espoused with respect to arras, “ó donacion," (to use its own words,) an advantage over the man affianced, in case of death, before consummation of the marriage: and lastly, L. 2. tit. 3. lib. 10. Nov. Rec., completely divests the husband of all right of property, or dominion, in or to the arras, which he himself hath promised or given to the wife; he still being allowed to enjoy the usufruct of it, in common with that of dote: but even here the reader sees no declaration, nor specification, as to any separation or difference of meaning having taken place between donations, propter nuptias, and those formerly expressed by the synonymous term arras. The difference between them is noticed by the able commentator Gregorio Lopez, on the Laws of the Partidas, Gl. 4. L. 1.; Gl. 6. L. 7.; Gl. 2. L. 23. tit. 11. Part. 4.; and VOL. 1.-10

dote which he receives, L. 2. tit. 11. P. 4. [L. 2. tit. 11. P. 4.] Hence it follows, 1st, That as the dote may be given before or after36 marriage so may also urrus, L. 1. tit. 11. P. 4. [L. 1. tit. 11. P. 4.] 2d, That the express covenant in the deed of dote or marriage articles is understood, also with respect to arras, L. 23. tit. 11. P. 4. [L. 23. tit. 11. P. 4] 3d, That in order to prevent an excess in the assignment of arras, the husband is prohibited from giving more than a tenth of his property, L. 1. tit. 2 lib. 3. Fuero Real; so that if more be given, it will not be valid, and the relations may demand or sue for the surplus, L. 1. tit. 2. lib. 3. Fuero Real. 4th, That this law cannot be renounced, L. 2. tit. 2. lib. 5. Rec. [L. 1. tit. 3. lib. 10. Nov. Rec.] 5th, That if arras be promised from the present and future property of the husband, the gift of urras, or the settlement will be valid although it may not comprise the tenth of the present property, if at the time of the separation or dissolution of marriage, ganancial property, or property that was inherited is found which may suffice to authorise the said tenth, L. 2. tit. 2 lib. 3. Fuero Real; Ayora, Part 1. Cap. 7. n. 18. 6th, That if the husband promises arrus out of property he has in possession, which should afterwards turn out not to be all his, but which was possessed by him with good faith, he shall only be obliged to pay the tenth of the property which may be really his, yora, Part 1. Cap. 7. n. 23. 7th, That if the husband

Gl. 2. L. 87. tit. 18. P 3.: who, however, says, that arras have succeeded in the place of donations propter nuptias, and that the latter was now called in Spain arras. It has been before stated, in this note, that donatio propter nuptias, and arra, are synonymously used in the Laws of the 11th Title of the 4th Partida. Law 87. tit. 18. Part 3, gives the form of an instrument of settlement of aria e donacion, from husband to wife. The settlement is upon the wife, and the children of the marriage; but no provision is made in regard of the property, in the event of there being no such children at the death of the wife. The 86th law of the same title and partida, gives the form of an instrument of dote, which is conformable with the rules respecting dote, laid down in the laws of the 11th title of the 4th Partida. But the form of the instrument respecting arra, in L. 87. before mentioned, seems silently to depart from the rules of reciprocity or equality be tween dote and arra, or donatio propter nuptias, as before recognised in the laws of the 11th title of the 4th Partida. The difference between donatio propter nuptias and arra, is also noticed by Antonio Gomez, in his Commentary on LI 50, 51, 52, and 53. Tauri, before mentioned, n. 9, 10, 11, 12, 13, 14., and see also n. 15, 16. ibid.; and also by the learned Azevedo on Ll. 2, 3, and 4., tit. 2 lib. 5., Recopilacion; and likewise by the not less learned Covarrubias, in his most able work, Tom. 1. Pars 2. De Matrimonio, cap. § 7. p. 188, n. 14, and 15.; and it is stated by the three last authors, that the gist called donatio propter nuptias, is in disuse, or obsolete in Spain. This note has been extended much beyond its desired length, and the Translator must beg to refer the reader, who is disposed further to investigate the subject, to the learned authors whom he has consulted

and cited.

3.

36 I should apprehend, from the now existing difference between arra and donatio propter nuptias, that the promise or settlement of arra, to be valid, must be made before marriage, although it may take effect on property (not exceeding the tenth of its value, at the time demanded by the wife) to be acquired after marriage. Vide Gr. Lopez. Gl. 4. L. 1. tit. 11. p. 4. and L. 2. tit. 2. lib. 3. Fuero Real. Ayora, P. 1. chap. 7. n. 18. quoted in the text. Since this note was written an order in council, 16th September 1822, bearing on the subject has been passed: vide Appendix, K.

36 Relative to the survivor taking the property after the death of the other, which the law only permits in the absence of necessary heirs of the party deceased. The term, nccessary heirs, will be in due course explained. Vide p. 109 of the text, tit. 3. § 3. post.

is imposed upon (padece engaño) with respect to the dote, he may repair the fraud and indemnify himself for it out of the arrus,37 Ayora, Part 1. Cap. 7. n. 34. Sth, That the wife dying without children, may dispose of the arras as she pleases,38, L. 1. tit. [ 55 ] 2. lib. 3. Fuero Real. 9th, That the wife has a right to exact the urras only promised, L. 1. tit. 2. lib. 3. Fuero Reol. 10th, That if the wife dies leaving children by the husband, she may dispose of one-fourth of the arras, and the remaining three-fourths shall go to the children,39 L. 1. tit. 2. lib. 3. Fuero Real. 11th, But that if she dies without children, and making any express disposition of her arras, such property shall pass to her heirs, L. 3. tit. 2. lib. 5 Rec. [L 2. tit. 3. lib. 10. Nov. Rec.] 12th, That if the husband dies leaving children, the wife shall have the usufruct of the arrus, and the children the dominion or property (propriedad) if she marries a second time, Ayora, Part 1. Cap. 7. n. 21. 13th, That the arras is considered the particular or exclusive property of the wife; and therefore if the marriage is dissolved, and the arras hath been expended during it, the amount or value shall be deducted or taken out of the general fund (cuerpo de los bienes); but, if it hath been. promised at the period of separation by the consorts, it shall then be taken out of the particular property of the husband; because it would be an injury to the wife to take it out of the ganancial property, of which she is entitled to a share, unless she should renounce gananciales, Ayora, Part 1. Cap. 7. n. 16. 14th, That the husband cannot alienate the arras, although the wife consent to it, by reason of the right of restitution, L. 4. tit. 2. lib. 3. Fuero Real. 15th, That if the husband had connection with the wife, after the marriage was dissolved, the arras shall be hers, but if not, it shall return to the husband or to his heirs, L. 5. tit. 2. lib. 3. Fuero Real. 16th; That the wife forfeits arras by adultery, or if she quits or elopes from her husband's house (se va de casa) of her own accord, L. 6. tit. 2. lib. 3. Fuero Real.

That is, I presume, may reduce the property which he had assigned for arras to the wife, in so much or to the amount of the imposition practised on him in regard of the value of the dote.

38 Provided she have no ascending heirs (ascendientes); for if she should, all the property, of whatever nature it may be, of the wife, belongs to her ascending heirs, without her being able to dispose of more than one-third part, L. 1. tit. 8. lib. 5. Rec. [L. 1. tit. 20. lib. 10. Nov. Rec.] Palacios (1).

39 She may, observes Palacios, according to the law of the Fuero Real cited, dispose of one-fourth part for the benefit of her soul (por su alma); but it should be remembered, that by L. 12. tit. 6. lib. 5. Rec., L. 8. tit. 20. lib. 10. Nov. Rec., all the property of the parents belongs of right (legitima) to their children, with the exception of one-fifth el quinto), of which the parents may freely dispose.

40 The wife, says Palacios, forfeits the arras, if she commits adultery, provided it be proved, and the husband desires it. And if she should go from her house to commit it, she forfeits the arras, although it is not proved that she effected her purpose, by reason of some obstacle; that this is what is stated by L. 6. tit. 2. lib. 3., Fuero Real. The learned professor adds, that it will be understood, the wife went from her house for the purpose of committing adultery, when, against her husband's will, she visits suspected houses.

Cap. 4. A marriage gift (donadio) is the gift which the suitor makes to the spouse, or she to him freely, without condition, before the marriage be completed by words of the present, L. 3. tit. 11. P. 4. [L. 3. tit. 11. P. 4.]

Thus as means have been adopted by our laws to restrain the excess of dotes and arras, in the same manner the excess of these gratuitous gifts has been moderated; wherefore, it is established 1st, That the suitor or husband cannot give to his spouse by way of gift in clothes, jewels, &c., more than shall amount to the eighth part of her dote, L. 1. tit. 2. lib. 3. Rec. [L. 6. tit. 3. lib. 10. Nov. Rec.] 2d, That if the jewels exceed this eighth part, the wife shall not have as her own more of them than may amount to that value, L. 1. tit. 2. lib. 5. Rec.; [L. 6. tit. 3. lib. 10. Nov. Rec.] which is ordered to be [56] observed by the before mentioned royal ordinance (pragmatica real) of 1723.

This gift, in respect of its effect, has certain limitations. 1st, If it should happen that by the fault of one of the betrothed parties the marriage do not take place, the party in fault must return to the other the gift received, L. 3. tit. 11. P. 4. [L. 3. tit. 11. P. 4.] 2d, But if this should happen by the death of one of the couple, a distinction. must be made in observing, that if the man dies before kissing the woman, the gift ought to return to the heirs of the deceased suitor; but if he should have kissed her, she will gain the half; and if this gift should have been made to the man by the woman, and she should die before marriage, whether they have kissed or not, the jewels and other things devolve to the heirs of the woman, L. 3. tit. 11. P. 4. [L. 3. tit. 11. P. 4.] See also L. 4. tit. 2. lib. Rec. [L. 3. tit. 3. lib. 10. Nov. Rec.] 3d, If there be only a gift, and no arras, it shall be the woman's, and be restored to her or her heirs upon the separation of marriage, under the same laws we have mentioned with respect to arras; and if there be both, she or her heirs may elect to take either of them they should prefer, and this election is to be made within the term of twenty days," L. 4. tit. 2. lib. 5. Rec. [L. 3. tit. 3. lib. 10. Nov. Rec.]

Cap. 5. The right to ganancias is founded on the partnership or

41 Or Sponsalitia largitas.

42 And if the woman or her heirs should refuse or fail to elect within this term, then the heirs of the man may elect which of the two he or they shall take: this is provided by L. 3. tit. 3. lib. 10. Nov. Rec. referred to in the text.

43 The establishment of the right of ganancias would seem to be one of the few institutions for the suggestion of which Spain is not indebted to Roman jurisprudence, although this declaration is not supported by the unanimous assent of writers; for by some it is stated that, amongst the ancient Romans, so far back as the time of Romulus and Numa Pompilius, all property acquired during marriage was common or ganancial: but be this as it may, no mention as far as the research of the translator enables him to speak (and it is believed his assertion will be found correct) is made of gananciales, as between husband and wife, in the laws of the Partidas. It would appear that custom gave rise to the establishment, in Spain, of this right, and that the first recognition with which it was honored by the lex scripta, was the notice taken of it by L. 17. tit. 2. lib. 4. Del Fuero Juzgo; and the rule was adopted and extended by the Fuero Viejo, Fuero Real, Ordena

society which is supposed to exist between the husband and wife, because she bringing her fortune (capitales) in dote, gift, and paraphernalia, and he his in the estates and property which he possesses, it is directed that the gains (ganancias) which result from the joint employment of this mass of property or capital, be equally divided between both partners. Hence we might have found a reason for treating of ganancias between husband and wife, when we should treat of the contract of partnership; because, in this sense, Ayora and others explain it; but it has appeared more proper to us to treat of this matter in this place, both because it must derive much light from what we have just said respecting dote, arras, &c.; and also because it will contribute to form a perfect idea of marriage, which, as we have allowed, we only consider here in its light of a

contract.

§1. Ganancial property (bienes de ganancias) is all that which is increased or multiplied during marriage, L. 10. tit. 9. lib. 5. Rec. [L. 10. tit. 4. lib. 10. Nov. Rec.] By multiplied, is understood all that is increased by onerous cause or title, and not that which is acquired by a lucrative one, as inheritance, donation," &c. L. 12. tit. 3. [ 57 ] lib. 3. Fuero Real. And property is supposed to be common, except that which each shall prove to be their own separate property,45 L. 1. tit. 9. lib. 5. Rec. [L. 4. tit. 4. lib. 10. Nov. Rec.]

§2. From all which it is inferred, 1st, That what the husband or wife bring into marriage as their own peculiar property, or acquire during it by lucrative cause or title, does not come into partition. 2d, But that the property acquired during marriage by purchase, sale, or other onerous cause or title, does. 3d, That immediately upon a division being made of this ganancial property, each acquires an absolute dominion as to their respective moieties or proportions. 4th, That as the gains (ganancias) are common, so also are the injuries or damage which shall happen to them, unless they arise by the fault of only one of the partners.

From the first principle it is inferred, 1st, That dote, arras, marriage gift (donadio de esposo) and paraphernalia are not ganancial property, or property subject to partition or division. 2d, Nor the inheritance from the father, nor the gift of a stranger to one of the consorts, L. 2. tit. 3. lib. 3. Fuero Real. Ll. 2. and 3. tit. 9. lib. 5. Rec.4 [Ll. 1. and 2. tit. 4. lib. 10. Nov. Rec.] 3d, Nor the gift made

miento Real, and the Recopilacion, and will be found explained in the text. See the Teatro de la Legislacion Universal de España é Indias, 5th vol. tit. Bienes Gunan

ciales.

44 Palacios observes, that all the property which husband and wife acquire during marriage, and while they live together, by a common title, whether onerous or lucrative, will be common; and that which each acquires, particularly by a lucrative title, as by gift, or by testament, or ab intestato, will be the property, exclusively, of the consort who so ac quires it. He refers to L. 1. tit. 3. lib. 3., Fuero Real; Ll. 1-2. and 3. tit. 9. lib. 5. Rec. [LL. 4. 1. and 2. tit. 4. lib. 10. Nov. Rec.]

45 All property of husband and wife is presumed common or ganancial, until it be proved to be the separate property of either. See L. 4. tit. 4. lib. 10. Nov. Rec.

45 And prize-money obtained in war by the husband is not ganancial, unless his outfit,

7