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The ingratitude of the son towards the father who emancipated him, causes his return a second time under his power; and this crime must be proved to have been committed by word or by deed which has produced dishonor or discredit to the father, L. 19. tit. 18. P. 4. [L. 19. tit. 18. P. 4.]
The fourth mode consists in adoption; which is a way by which the laws have established that men may become the sons of another although they may be not so naturally, L. 1. tit. 16. P. 4.
This adoption is in two ways, Ist, When children are adopted who are not under the power of any other person.15 2d, When children are adopted who are under the power of their lawful father, 16 L. 1. tit
. 16. P. 4. [L. 1. tit. 16. P. 4.] In order that either of these modes of adoption may be valid, the consent of the person to be adopted is requisite; in the first mode manifestly or expressly, and in the second tacitly, L. 1. tit. 16. P. 4. [L. 1. tit. 16. P. 4.] The first mode of adoption is done only under the authority of the king, and is called arrogatio, L. 8. tit. 16. P. 4. [L. 8. tit. 16. P. 4.], and the second with the consent of the judge, and is called adoptio, L. 8. tit. 16. P. 4. [L. 8. tit. 16. P. 4.] The forms of both are found in L. 7. tit. 7. P. 4. [L. 7. tit. 7. P. 4.]
Adoption is founded on this principle, that it ought to imitate nature.” Whence it follows, ist, That only the person can adopt who is not under the power of another, L. 2. tit. 16. P. 4. [L. [ 69 ] 2. tit. 16. P. 4.] 2d, That the person to be adopted must be above 18 years of age, L. 2. tit. 16. P.4. [L. 2. tit. 16. P. 4.] 3d, That there must not exist any natural impediment to his having children, L. 2. tit
. 16. P. 4. [L. 2. tit. 16. P. 4.) Wherefore, 4th, If this impediment has arisen from disease or misfortune he may adopt, L. 3. tit. 16. P. 4. (L. 3. tit. 16. P. 4.] 5th, That a woman cannot adopt, unless it be for her alleviation and consolation, having lost a son in the service of the king or of some council or corporation; but then she must have the royal sanction for it, L. 2. tit. 16. P. 4. [L. 2. tit. 16. P. 4.]
As with respect to adoption, the express or tacit consent, and the evident advantage of the person adopted are considered necessary, it has been established, 1st, That the fatherless minor of seven years cannot be adopted, nor can the youth above seven and under fourteen be adopted, unless by the intervention of the royal will, under the cognition of the advantage which will result to the person adopted, and the obligation of the adopter to restore the property of the young person to his legitimate successors or heirs, if he should die before fourteen years of age, L. 4. tit. 16. P. 4. [L. 4. tit. 16. P. 4.] 2d, That the guardian cannot adopt his ward by reason of the suspicion under which he might fall; and he can only do it when the ward has attained 25 years of age, and with the royal permission, L. 6. tit. 16. P. 4. (L. 6. tit. 16. P. 4.]
Voluntarily; for if the child hath been driven to such ingratitude by the conduct of the father, in the cases set forth in L. 18. tit. 18. P. 4. it does not produce the effect men. tioned in the law L. 19. tit. 18. P. 4. quoted in the text. Sce Gl. 1. Greg. Lop. on L. 19. tit. 18. P. 4.
16 Alieni juris.
15 Sui juris.
Adoption produces the effect of subjecting the adopted to the power of the adopter, 17 although with some difference in what relates to the succession as expressed by Ll. 7. 8. and 9. tit. 16. P. 4.18 [LI. 7. 8. and 9. tit. 16. P. 4.]
§ 2. The father's power is put an end to by four causes or modes, 1st, By natural death. 2d, By perpetual banishment, which is called civil death. 3d, By the exaltation of the child to dignity or office. 4th, By emancipation, Princip. del. tit. 18. P. 4.
The first mode is understood to take place, if the father who died was not, at the time of his death, under the power of his own father; because in this case the son whom he left would fall under the power of his grandfather according to L. 1. tit. 18. P. 4. [L. 1. tit. 18. P. 4.); although by the law of the Recopilacion another consequence would result as we shall see.
To the second mode belongs, Ist, Perpetual banishment of the father to an island or other certain place, which is the deportatio of the Romans. 2d, Perpetual condemnation to the public works, [ 70 ] mines, &c., L. 2. tit. 18. P. 4. [L. 2. tit. 18. P. 4.] 3d, Those outlawed or proscribed for ever, L. 4. tit. 18. P. 4. [L. 4. tit. 18. P. 4.] 4th, But not those transported for a determinate time, or for ever, without confiscation of their property, who are called “relegados," L. 3. tit. 18. P. 4. [L. 3. tit. 18. P. 4.] 5th, Nor those outlawed for a certain time, L. 4. tit. 18. P. 4.19 [L. 4. tit. 18. P. 4.]
The greater part of the twelve dignities, of which mention is made in the 18th Title, 4th Partida, from L. 7. to L. 15. [L. 7. ad 15. tit. 8. P. 4.], are not recognised at this day; but, arguing from them, we may say, that generally every dignity or office (dignidad) which may have jurisdiction annexed to it, and every ecclesiastical dignity,20 is sufficient to withdraw the child from the power of the father; because it is not regular that he who judges others, or is in the exercise of any office or employment, should be governed by another.
With regard to emancipation, it is laid down, Ist, That this may be done before an ordinary judge,21 L. 15. tit. 18. P. 4. (L. 15. tit. 18. P. 4.] And on his previously giving information of it to the comcil, Aut. 20. tit. 9. lib. 3. Rec. (L. 4. tit. 5. lib. 10. Nov. Rec.] 2d, That the father and the son declare before the judge their desire or will, the one of emancipating, and the other of being emancipated, L. 17. tit. 18. P. 4.22 (L. 17. tit. 18. P.4] 3d, That the child being under seven, the father must petition the king for his license to emancipate it; and, without this permission, the judge of the place where the father is shall not be able to proceed to the act or decree of emancipation, the which, in the above case, may be done in the absence of the child; but if the child should be above seven, in addition to the royal authority, it is required that the child consent, or express his desire before the judge to be emancipated, L. 16. tit. 18. P. 4. [L. 16. tit. 18. P. 4.] 4th, That children who are married are considered emancipated, L. 8. tit. 1. lib. 5. Rec. [L. 3. tit. 5. lib. 10. Nov. Rec.] In virtue of which their children shall not fall under the power of the grandfather on the death of their father; because, by the act of marriage, the latter was freed from his father's power. The judge may, by his office, oblige fathers to emancipate their children for four causes. 1st, For cruelly chastising the child. 2d, For prostituting his daughters. 3d, For possessing that which was bequeathed them, under condition of emancipating the child. 4th, For misspending the property of, or misconducting themselves towards the adopted child, L. 18. tit. 18. P. 4. [L. 18. tit. 18. P. 4.]
17 Palacios says, that in adopcion en especie, the adopted is not subject to the power of the adopter, unless the latter be his ascending relative. He refers to Ll. 9. and 10. tit. 16. P.4.
18 These laws also point out the different effects of arrogatio and adoptio; and see also L. 7. tit. 7. P. 4. Palacios refers, for an elucidation of this subject, 10 L. 5. tit. 6. lib. 3., L. 1. tit. 22. lib. 4. Fuero Real. L. 1. and 10. iit. 8. lib. 5. Rec. (L. 11. tit. 20. lib. 10. Nov. Rec.) to Greg. Lopez. Gl. 5. lib. 8. tit. 16. P. 4. and Azevedo, on L. 1. tit. 8. lib. 5. Rec.
19 Palacios says, those condemned to transportation, or banishment for life, to any place or public work, with confiscation of property, forfeit the paternal power; but not so in the absence of confiscation of property: that the same right and distinction are observed in respect to persons outlawed: that those are so termed, who have been cited and sum. moned for any crime which they have committed, and, not having chosen to obey, are banished (desterrados) for this reason, from the place where they reside, or are prevented to enter their country.
20 Palacios, in a note, here remarks, that children marricd (casados y velados) are reJeased from the paternal power, L. 8. tit. 1. lib. 5. (L. 3. tit. 5. lib. 10. Nov. Rec.]
21 And with the consent of the son. See Ll. 15. and 17. tit. 18 P. 4.
2 The L. 17. tit. 18. P. 4. quoted, adds, the emancipation niust be by carta, or written instrument.
OF THE DIVISION OF THINGS.
[ 72 ] Cap. 1. We have treated hitherto of the first object of law, which relates to persons; we proceed now to treat of the second, which relates to things. The term thing is applied to whatever is of such a condition, that it may be counted among our property.
The first general division of things is that which is made into things of divine right, and those of human right. The first are divided into things sacred and religious. The latter into things common, public, of a corporation or a university, and private.
Cap. 2. Every sacred thing is established for the service of God; and therefore the dominion of such is not in any person and cannot be counted as property, Ll. 12. and 2. tit. 28. P. 3. (Ll. 12. and 2. tit. 28. P. 3.), as are churches, altars, chalices, &c., L. 13. tit. 28. P. 3. [L. 13. tit. 28. P. 3.]
Cap. 3. We term religious, that place where any one is buried in order never to be removed thence, and if all his body or at least his head lies there,' L. 14. tit. 28. P. 3. [L. 14. tit. 28. P. 3.)
Although our laws may have borrowed these divisions from paganism, nevertheless, since the solemn consecration of churches and cemeteries has been established, we are of opinion that immediately upon being consecrated, rcligion occupies them and cannot be sepa[ 73 ) rated from them at any time. The consequences therefore which result from this principle ought to be explained by the canon law.
Cap. 4. Things common, are those which belong to the birds, to the beasts, and to all other living creatures as being able to make use of them as well as men, L. 2. tit. 28. P. 3. [L. 2. tit. 28. P. 3.) such are the air, the waters from Heaven, the sea and its shore, L. 3. tit. 28. P. 3. [L. 3. tit. 28. P. 3.] By shore of the sea we understand whatever part of it is covered with water, whether in winter or summer, L. 4. tit. 28. P. 3. [L. 4. tit. 28. P. 3.] Hence it arises that ariy one may fish or navigate on the sea and on its shore, where also he may build a cottage or house for shelter, Ll. 3. and 4. tit. 28. P. 3. [Ll. 3. and 4. tit. 28. P. 3.]
1 Palacios says, that in Spain no place is considered religious, unless made so by the authority of the church, Can. in Eccles. c. 13. 9. 2. cap. 4. De Religdom. Selvag. Inst. can. tit. 14. lib. 2.
Cap. 5. Things public are those which belong only to mankind, L. 2. tit. 28. P. 3. [L. 2. tit. 28. P. 3.] Hence it is, 1st, That rivers, ports, or harbors, and high roads (caminos), are things public, L. 6. tit. 28. P. 3. (L. 6. tit. 28. P. 3.] 2d,
The walls and gates of towns or cities according to L. 20 tit. 32. P. 3, and L. 3. tit. 5. lib. 6. and L. 3. tit. 6. lib. 7. Rec. [L. 20. tit. 32. P. 3. L. 5. tit. 1. lib. 7. and L. 2. tit. 18. lib. 6. Nov. Rec.], are public in their benefits to all; wherefore the obligation to repair them is common to all, although L. 15. tit. 28. P. 3. [L. 15. tit. 28. P. 3.) classes them among things holy, adopting in this the doctrine of the Romans. 3d, That not only may the natives or inhabitants of a place make use of things that are public, but also strangers, L. 6. tit. 28. P. 3. [L. 6. tit. 28. P. 3.) That although the banks of rivers may belong to persons on whose estates they are situate, nevertheless they cannot prevent any one from making fast his boats or vessels (sus embarcaciones) to the trees or posts in them, and doing all that may be convenient for the free use of the things which belong to the art, calling, or industry, by which he makes his livelihood, L. 6. tit. 28. P. 3. [L. 6. tit. 28. P. 3.). 5th, That notwithstanding he whose grounds are planted on the bank of the river, may be the proprietor of the trees, he cannot cut that to which any boat or vessel hath been moored or to which a person may be desirous to moor one, L. 7. tit. 28. P. 3. [L. 7. tit. 28. P. 3.) 6th, That no new mill nor any other thing can be built on the part of the river by which its navigation may be impeded, and any old building may be destroyed or pulled down which'obstructs the common use of these things, L. 8 tit. 28. P. 3., (L. 8. tit. 28. P. 3.] 7th, That neither can any building or thing be erected by which the common use of high roads, squares, or market places (plazas) any [ 74 ] threshing grounds for corn, &c. (exidos), churches, &c. may be obstructed, (LI. 22, 23, and 24. tit. 32. P. 3. [Ll. 22, 23, 24. tit. 32. P. 3.]
Cap. 6. Things belonging to a corporation or university, are those which belong exclusively to the inhabitants (al comun) of any city, town, or castle, or any other place where men reside, L. 2. tit. 28. P. 3. [L. 2. tit. 28. P. 3.]: of these some may be used by any inhabitant of that city, town, or place, and others are for the particular use of the corporation (concejo), which ought to apply the fruits, produce,
? The 6th condition on which lands are declared to be granted by the crown in Trini. dad is, that three chains on the sea coast, comprehending fifty paces from the height of the spring tides, be held reserved for the use of his Majesty and the public service. See proclamation 5th December, 1815. Appendix L.
: A Memoir on the advancement of Agriculture, and on Agrarian Laws in Spain, addressed to the Supreme Council of Castille, by the Patriotic Society of Madrid, and drawn up by one of iis members, Don Gaspar Melchor de Jovellanos, points out as obstacles to the progress of agriculture in Spain, the regulations and enactments treated of in the sequel of this title: this memoir is inserted in Laborde's View of Spain, 4th vol. Translation, p. 111.