by the relations (parientes) of the wife to the husband; or vice versa, because it is always accounted the fortune or property (capital) of the person to whom it is made, Ayora, P. 1. Cap. 8. n. 18. and 19. 4th, Nor the usufruct which the father enjoys of the property of his child; and, wherefore, all these sums or descriptious of property (capitales) ought to be separted at the time of the dissolution of marriage, from the total mass, before making a division of property, Ayora, P. 1. Cap. 7. n. 1. ad. 15. and Cap. 8. n. 19. 20. and 21.

49

47

From the second principle it is deduced, 1st, That the fruits (frutos) produced from all these sums (capitales) gained and improved during marriage, come into partition, L. 5. tit. 9. lib. 5. Rec. [L. 5. tit. 4. lib. 10. Nov. Rec.] 2d, also the fruits or produce not gathered which shall appear on the vines, trees, &c., or those not yet apparent if the labor bestowed is on land sown,48 L. 18. tit. 14. lib. 3. Fuero Real. 3d, That these fruits or products are always common, although one of the consorts may have more property or means than the other, L. 4. tit. 9. lib. 5. Rec. [L. 3. tit. 4. lib. 10. Nov. Rec.] 4th, That the improvements (mejorus) made of plantation, building, &c., are divided, with the difference that if the planting should be done in the particular land of either of the consorts, it shall be divided, de[58] ducting first the value the land was of before it was planted, and giving or allowing that to the owner; but if a house hath been built, or an oven or a mill hath been erected on the land of one of them, the person on whose land the building or erection is made, shall have the benefit of it, and shall pay to the other the moiety of what the building cost,50 L. 9. tit. 4. lib. 3. Fuero Real. 5th, That the value of a company or co-partnership, or of an office purchased by husband and wife shall be divided according to its worth at the time of partition, Ayora, Part. 1. Cap. 9. n. 16. 6th, That the rents of the estate or inheritance leased out are also to be divided in proportion to the time the marriage continued, for that year, Ayora, Part. 1. Cap. 9. n. 5. 7th, But that the crops of grain, (mieses) or ripe fruits of the estate which either of the consorts brings into marriage, which were not sown during marriage, do not come into partition; wherefore they shall be deducted from the mass of property,51 Ayora, Part. 1. Cap. 9. n. 3. 8th, Nor shall the improvements made on entailed property (mayorazgo) be divided, L. 6. tit. 7. lib. 5. Rec. [L. 6. tit. 17. lib. 10. Nov. Rec ]

From the third principle it arises, 1st, That the marriage being

as a soldier for the campaign, was at the joint expense of both him and wife. Vide L. 2. tit. 4. lib. 10. Nov. Rec.

47 That is, the fruits, proceeds, or rents of every description of property belonging to both the wife and husband, are considered gananciales. See L. 5. tit. 4. lib. 10. Nov. Rec. 48 That is, emblements are considered gananciales.

49 i. e. are gananciales.

50 Palacios says, that Febrero is of opinion, that this rule holds also with respect to improvements in plantation; that is, that the owner of the field or land retains it, paying to the other party the niety of what the planting or improvement cost.

51 Not being considered gananciales. See 2d. Blac. Com. respecting the doctrine of emblements in England, p. 122, 123., 145. and 403., 15 Ed.

dissolved, the survivor may dispose of his proportion of the property increased (multiplicados) without being obliged to reserve the property or dominions (propiedad) to his children, L. 6. tit. 9. lib. 5. Rec. [L. 6. tit. 4. lib. 10. Nov. Rec.] 2d, That what the husband might leave to his wife by his will, shall not be understood as coming out of that part of the gananciales which belongs to her,53 L. 7. tit. 9. lib. 5. Rec. [L. 8. tit. 4. lib. 10. Nov. Rec.] 3d, That the husband cannot alienate his property maliciously (con malicia), and in fraudulent diminution (en fraude) of the ganancias,54 L. 5. tit. 9. lib. 5. Rec. [L. 5. tit. 4. lib. 10. Nov. Rec.] 4th, That neither of them shall forfeit his, or her property, nor half of the ganancias by the crime of the other, L. 10. tit. 9. lib. 5. Rec. 55 [1. 10. tit. 4. lib. 10. Nov. Rec.] 5th, That if the widow lives luxuriously and by crime (por delito), she shall lose her moiety of the gananciales,56 Ll. 5. and 11. tit. 9. lib 5. Rec. [Ll. 5. and 11. tit. 4. lib. 10. Nov. Rec.]

From the fourth principle it follows, 1st, That the gains and losses being common, the debts which are contracted during marriage are to be paid out of the common property; but not those contracted before marriage or after its dissolution, L. 14. tit. 20. lib. 3. Fuero Real. 2d, That the wife shall not pay half the debts if she should renounce the ganancias, L. 9 tit. 9. lib. 5. Rec. [L. 9. tit. 4. lib. 10. Nov. Rec.] 3d, That the loss or injury caused to the real estate (hacienda) by reason of the husband having rented it out at a low rate or price, or having paid annuities (censos) or debts contracted for an illicit [ 59 | cause ought not to prejudice the wife; and therefore in these cases the loss or injury must be deducted from the mass of property, and given to the wife before dividing it, Ayora, Part. 1. Cap. 8. n. 14. and 15. 4th, That if the children are many, and they are promised dute, it shall be paid from the ganancial property; and if there be none, from other property;58 and if the father alone should promise the dule, it shall be paid from the ganancial property; and in default of that, from his own particular property, L. 8. tit. 9. lib. 5. Rec. [L. 4. tit. 3. lib. 10. Nov. Rec.]

52 Nor the usufruct, L. 6. tit. 4. lib. 10. Nov. Rec.

53 She shall have the legacy, bequest, or devise, exclusive of and in addition to her gananciales, L. 8. tit. 4. lib. 10. Nov. Rec.

54 To damni'y the wife, L. 3. tit. 5. lib. 10. Nov. Rec. Palacios says, that the reason why the husband can dispose, during marriage, of ganancial or common property, with out the consent of the wife, is, to use the expression of Covarrubias, because the husband has the dominion and possession of it in actu et habitu, during the marriage; and the wife only in habitu, until the marriage is dissolved, when she acquires it equally with her husband.

56 Forfeiture of property, where in cases that by law it attaches, does not take effect, until sentence (judicial) be passed, declaratory thereof. Vide L. 10. tit. 4. lib. 10. Nov. Rec. For the first cause, the gananciales will devolve to the heirs of the husband, L. 5. tit. 4. lib. 10. Nov. Rec.

67 Palacios observes, that L. 5. tit. 9. lib. 5. Rec. [L. 5. tit. 4. lib. 10. Nov. Rec.] only annuls the alienations of the husband made advisedly to defraud or prejudice the wife. But in the absence of this purpose, although by the alienations of the husband the wife may find herself prejudiced, there is no law which exempts her from suffering such prejudice. 58 Each parent's separate property, in the absence of gananciales, being chargeable with a moiety of such dote, supposing the promise of dote should be made by both father and mother, L. 4. tit. 3. lib. 10. Nov. Rec.

TITLE VIII.

OF THE DIFFERENCE WITH RESPECT TO CHILDREN (DIFFERENCIA DE HIJOS), AND THE POWER OF THE FATHER (PATRIA POTESTAD).

[66] UNDER the third division of mankind with respect to their state or capacity as a family, is comprehended the difference with respect to children, and the power which the father has over them, which we call patria potestad.

Cap. 1. Children are either legitimate or natural. Legitimate children are those who are born of father and mother that are truly married according to the precept of our holy church, L 1. tit. 13. P. 4. [L. 1. tit. 13. P 4. Hence it follows, 1st, That the child of those who marry openly in the face of the church, although there may afterwards appear an impediment to cause their separation, shall be legitimate, provided both were or one of them was ignorant of the impediment, L. 1. tit. 13. P. 4. [L. 1. tit. 13. P. 4.] 2d, That likewise the child who should be conceived during the judicial agitation of the question respecting the impediment, will be legitimate, L. 1. tit. 13. P. 4. [L. 1. tit. 13. P. 4] 3d, That those are not legitimate who are born of persons who marry clandestinely, or of those who have married, being aware of an impediment to their marrying, although they should marry in the face of the church, L. 2. tit. 15. P. 4 [L. 2. tit. 15. P. 4.] 4th, That those are not legitimate who are born of parents not married according to the precept or ordinance of the church, L. 2. tit. 15. P. 4. [L. 2. tit. 15. P. 4.] 5th, That neither are the children of a concubine (barragana) legitimate, although the father should marry her,1 1. 2. tit. 15. P. 4. [L. 2. tit. 15. P. 4.] Legitimate children enjoy and inherit the honors of their fathers, grandfathers, &c., are able or competent to receive dignities, and succeed to their fathers and other relations, L. 2. tit. 13. P. 4. [L. 2. tit. 13. P. 4.]

§ 1. Natural children are those who are not born in wedlock according to L. 1. tit. 15. P. 4. [L. 1 tit. 15. P. 4.] These comprehend bastards (fornecinos), or the illegitimate children (nothos) who are born from adulterous intercourse; the children of prostitutes

1 This must be understood with respect to children begotten on a concubine by a man during the life of his lawful wife, who should, after the death of his said wife, marry the former. See L. 2. tit. 15. P. 4. ad fin.

2 Palacios says, that so far from L. 1. tit. 15. P. 4., including under the term "natural children" such as are the offspring of adultery, incest, and the rest, mentioned in this part of the text, it says, they are not [considered] natural children, because they are be gotten contrary to law, and contrary to natural reason. The learned professor adds that, properly speaking, those are natural children who were born or conceived when their parents could marry without a dispensation, provided the father acknowledge them for

(manceres); the spurious (espurios), that is, children born of a concubine; and those begotten on a relation, or on a religious woman (religiosa), who are called incestuous, L. 1. tit. 15. P. 4. [L. 1. tit. 15. P. 4.] And such do not enjoy the advantages of legitimate children, L. 3. tit. 15. P. 4. [L. 3. tit. 15. P. 4.]

§ 2. Natural children are legitimated by many ways: 1st, By the favor (merced) of the king or the pope', L. 4. tit. 15. P. 4. [L. 4. tit. 15. P. 4.] 2d, By testament or last will confirmed by the king, L. 6. tit. 15. P. 4. [L. 6. tit. 15. P. 4.] 3d, By public deed, or instrument of writing, L. 7. tit. 15. P. 4. [L. 7. tit. 15. P. 4.] 4th, By the marriage of a natural daughter with a person of distinction, (hombre ilustre,) L. 8. tit. 15. P. 4. [L. 8. tit. 15. P. 4.] 5th, By the [67] father offering his natural son for the service of the king, or to the municipal council, Ll. 5. and 8. tit. 15. P. 4. [Ll. 5. and 8. tit. 15. P. 4.]

5

The effect of these legitimations have in view, two ends: 1st, That the son legitimated may be rendered capable of the honor which we have before said belonged exclusively to lawful children, with respect to which we have now to observe, that as the grant of legitimation by the crown does not render the person legitimated capable of enjoying or holding ecclesiastical dignities and employments, (beneficios,) so neither does that of the pope render him competent to obtain secular honors: and that even with respect to ecclesiastical, the grantee cannot obtain any other kind (pieza) than that expressed in the dispensation, L. 4. tit. 15. P. 4. [L. 4. tit. 15. P. 4.] The other end or object of legitimation is to qualify the persons legitimated to succeed to the property of their fathers in default of legitimate children. See [Ll. 4, 5, 6, 7, and 8. tit. 15. P. 4.,6 [Ll. 4, 5, 6, 7, and 8. tit. 15. P. 4., in which will be found the forms of each of these modes of legitimation, (de estos actos.)

Cap. 2. Patria potestad is the power which fathers have over their children, L. 1. tit. 17. P. 4. [L. 1. tit. 17. P. 4.] This definition declares that this power belongs exclusively to the father, and is not possessed by the mother nor her relations, L. 2. tit. 17 P. 4. [L. 2. tit. 17. P. 4.] We must consider this power very far short of that right of life and death which the laws of Rome allowed over children, particularly if we reflect that our customs and laws had their rise from Christianity, which comprises all that is just and humane; wherefore this power must be considered as useful to the child, since

his, or had in his house the woman on whom he begot them, L. 9. tit. 8. lib. 5. Rec.; L. 1. tit. 5. lib. 10. Nov. Rec. That in respect to children born from an incestuous or an adulterous intercourse, and the others mentioned, they can only be called natural in the improper and general understanding of the word.

The law [L. 1. tit. 15. P. 4.] adds, who lives out of the house of the father.

4 The first with respect to temporal, and the second with respect to spiritual concerns. See L. 4. tit. 15. P. 4.

5 Or superior municipal magistrate. See L. 8. tit. 15. P. 4.

And L. 7. tit. 20. lib. 10. Nov. Rec.

"Born in lawful wedlock. See Ll. 1. and 2. tit. 17. P. 4. VOL. I.-11

it consists properly of a protecting or economical (economico) dominion which the father exercises over his legitimate child. From this principle it proceeds, 1st, That fathers are bound to rear, give aliment to, and educate their children who are under their power, Ll. 3. and 5. tit. 19. P. 4.8 [Ll. 3. and 5. tit. 19. P. 4.] 2d, That they are allowed to chastise them with moderation, L. 18. tit. 18. P. 4.9 [L. 18. tit. 18. P. 4.] 3d, That they are bound to direct and advise them properly, L. 18. tit. 19. P. 4.10 [L. 18. tit. 19. P. 4.] 4th, To administer, to take care of, and defend, as well judicially as otherwise, the adventitious property (bienes adventicios) of their children, enjoying the usufruct of it," and the dominion of their profectitious property, (bienes profecticios,) L. 5. tit. 17. P. 4., [L. 5. tit. 17. P. 4.,] although the peculium or stock, (pegujar,) that is, the property which the sons acquire in the army or in the service of the king at court, belongs in entire dominion to them, Ll. 6. and 7. tit. 17. P. 4. [Ll. 6. and 7. tit. 17. P. 4.] 5th, They are bound to appear for them in suits at [68] law, whether as defendants or plaintiffs,13 L. 11. tit. 17. P. 4. [L. 11. tit. 17. P. 4.,] except in the two cases pointed out by L. 12. tit. 17. P. 4. [L. 12. tit. 17. P. 4.] 6th, Children may be compelled by the judge to return to their father's protection or guardianship, and power if they are vagrants, L. 10. tit. 17. P. 4. [L. 10. tit. 17. P. 4.]

12

§ 1. There are four modes by which this power is acquired or established: 1st, By lawful marriage. 2d, By sentence or decree of the judge declaring the child to be legitimate, respecting which there was a doubt. 3d, By the crime which the child should commit against the father who freed or emancipated it. 4th, By adoption, L. 4. tit. 17. P. 4. [L. 4. tit. 17. P. 4.]

From the first mode it follows, 1st, That those who are under the patria protestad shall be legitimate children, L. 2. tit. 17. P. 4. [L. 2. tit. 17. P. 4.] 2d, Those legitimated, by reason of being regarded as legitimate, L. 4. tit. 15. P. 4. [L. 4. tit. 15. P. 4.] 3d, But not natural children and others who are found comprehended under this title, L. 2. tit. 15. P. 4. [L. 2. tit. 15. P. 4.] The second mode of acquiring this power is evident.

8 See also L. 2. tit. 19. P. 4.

9 See also L. 9. tit. 8. P. 7. 10 This quotation is erroneous. There is no such law in the title of the Partida referred to. Palacios cites the beginning, and Ll. 1. and 2., of tit. 19. P. 4. as confirming this doctrine.

This the fathers lose on the marriage of their children; by marriage the latter are emancipated. See L 3. tit. 5. lib. 10. Nov. Rec.

12 And the property or fee simple of every other sort, except that which is profectitious, is in the sons; but of the peculium mentioned in the text, the father is not entitled to the usufruct, as he is to that of the other adventitious property of his son, and this is expressed by the term, con toda propriedad, made use of in the text. See Gl. 8. Greg. Lop. on L. 6. tit. 17. P. 4.

13 Palacios remarks, that what L. 11. tit. 17. P. 4. says, is, that the child under the paternal power, cannot sue or be sued without the authority or consent of the father, unless in the two excepted cases alluded to in the text.