tamed (cerril) breeding cow, L. 25. tit. 7. lib. 7. Rec. [L. 7. tit. 25. lib. 7. Nov. Rec.] 23 § 6. To complete the understanding, as to what relates to commons (pastos) and the use of public pasture grounds, (dehesas publicus,) we will explain, although briefly, the constitution of the [79] noble council or corporation of the Mesta, which has under its jurisdiction and laws the graziers of the kingdom of Castille, in order that their cattle may be preserved, and that the state may derive the advantages which are experienced from its proper dispositions. § 7. In the Fuero Juzgo are found various regulations for the increase and benefit of the cattle, upon which must have been formed this celebrated council, its laws, and privileges. Both were found dispersed, until they were ordered to be collected, (recopilar,) in the last century. The most modern edition of this body of laws is that published in 1731, by Don Andres Diez Navarro, fiscal of the council, entitled "A Memorandum (Quaderno) of the Laws and Privileges of the Honorable Council of the Mesta." It is divided into three parts. In the first, are set forth sixty-four privileges in favor of the council. In the second, are contained the existing laws and ordinances. In the third, is an index of the opinions or judgments, (proposiciones,) showing their agreement with the royal laws. §8. The assembly or council of the Mesta is very ancient in Spain; for Alonso the Wise makes mention of it in the first grant, (privilegio,) which is that of the 2d September, 1311. It appears, that it had alcaldes, (entrigadores,) and a fixed place for holding general meetings, and also migratory or travelling (transhumantes) flocks, according to Privil. 3. § 9. At present it is governed by the following laws: 1st, In each year it must hold two councils, one in Estremadura, on the 4th of March, and the other in the Sierras, on the 4th of September, according to the resolution (acuerdo) of 8th March, 1631, which rescinds L. 1. tit. 1. of the Quad., by which they were ordered to meet on the 8th February and 20th August. 2d, In these councils or meetings only the members (hermanos) of the four principal divisions, (quadrillas,) which form this body, have votes; those are Soria, Cuença, Segovia, and Leon, L. 6. tit. 1. del Quad. To this council belongs exclusive jurisdiction in all matters relating to the Mesta, which its judges and alcaldes exercise, without the ordinary judges, chanceries, or audiencias being able to interfere with or prevent its exercise, not even in a question as to its competency, which is referred to the council for ts determination, Priv. 39. tit. 52. § 4. 4th, The affairs of the Mesta, with the exception of the election to offices, are 23 For an account of the Mesta and its privileges, the resder is referred to the translation of Laborde's View of Spain, 4th vol. p. 19. and 51, &c. 24 Judges who decide all questions relative to all the violations of the privileges annexed to the Mesta. The number is twelve, who are justices in eyre, forming an itinerant court."—Laborde's View of Spain, Translation, 4th vol. p. 140. note †. determined by sixteen attorneys or agents, (apoderados,) of whom each division (quadrilla) names four, or more, if it should appear fit to the council, L. 24. tit. 1. del Quad. 5th, Each divison (quadrilla) also elects four members, one as an accountant, another as a super-accountant, (sobre contador,) another as an alcalde, or judge of appeal; and as procurador fiscal, or attorney-general, each appoints three, who are qualified to possess two hundred head of sheep, Ll. 4, 5, and 6. tit. 2. del Quad. These ordinary alcaldes have jurisdiction, in civil cases, between the members during the period of the council, L. 1. tit. 12. del Quad. 6th, There are also alcaldes of divisions, (qaadrillas,) who are named by a plurality of votes by the subaltern divisions, (quadrillas,) or junctions of graziers of certain towns. Their office continues four years. Some are for the level, and others for the mountainous lands. Their number is limited to one for every ten leagues, (leguas;) and they take cognisance of the causes which arise between the members of the Mesta and their servants relating to the meeting, (a cabaña real,) and the flocks. And if the members are present, (estantes,) they only have cognisance of the three cases, relating to the holding meetings, (hacer mestas,) the appointing lands for sick flocks, and deciding questions of abandonment of possession among the members of the Mesta, (despojos de posesiones). The alcaldes of the mountains (de sierra) have not so limited a jurisdiction.-See tit. 5. del Quad. and L. 3. tit. 14. lib. 3. Rec. [L. 4. tit. 27. lib. 7. Nov. Rec.] From the sentence or judgment of these alcaldes of division, an appeal lies to the alcaldes of appeals, (de alzadas,) of whom there are eight, two for each principal division, (quadrilla,) before whom all allegations and proofs must be made and had, in order that the alcaldes of appeal, (de apelaciones,) who determine processes of this nature, may not be detained, Ll. 1. and 3. tit. 10., and L. 1. tit. 11. del Quad. 7th, There are also alcaldes, (entregadores,)25 whose institution is for the protection of the flocks and shepherds of the Mesta, (cabaña,) to redress injuries, and to preserve the sheep walks and passages, tit. 52. § 9. del Quad., and L. 4. tit. 14. lib. 3. Rec.; [L. 5. tit. 27. lib. 7. Nov. Rec.;] the first section of which law limits their number to four, who, according to the royal cedula of 10th July, 1721,26 ought to be appointed upon the proposal or advice of the chamber, (camara.) They have no jurisdiction over members, (hermanos,) nor ought they to entertain demands or suits, but in the cases excepted by L. 21. tit. 1. and L. 26. tit. 6. del Quad.; but they have cognisance of all the new imposts respecting the flocks of the Mesta, L. 4. § 20. tit. 14. lib. 3. Rec. [L. 5. tit. 27. lib. 7. Nov. Rec.] respecting the approvement or conver[81] sion of the pastures (dehesas) into arable lands, same law, § 27, and against those who shall be in possession of strayed (mostrencos) 25 See note 24 ante. 26 Not inserted in the Chronological Index to the Nov. Rec.; but see note 7. tit. 27. lib. 7. Nov. Rec. flocks, § 30. same law. 8th, Finally, the fiscal of the council is the person who is charged (se informa) with the fulfilment of these duties, L. 1. tit. 4. del Quad., and all of them must perform residencia" before the president, L. 1. § 4. tit. 14. lib. 3. Rec., [L. 2. §. 4. tit. 27. lib. 7. Nov. Rec.,] who by cédulu of the 11th January, 1500,28 it is commanded by the Catholic kings, shall be a minister of the council of Castile, § 5. del Cap, 1. del Quad. With regard to the other offices, see tit. 1. del Quad. § 10. In order to form some idea of the right which the members of the Mesta possess, with respect to the pastures (dehesas) where their flocks are to graze, it is necessary to observe, 1st, That for the conservation of these pastures, it is ordered that they be not purchased for the purpose of being cultivated, L. 4. tit. 8. del Quad. 2d, That the members of the Mesta acquired possession of them or the commons (ó en los pastos comunes), by grazing their cattle in them for a winter or summer, or putting a value on them which they do not forfeit but by the loss or failure of their flocks, or for other causes which are mentioned in the 6th. tit. del Quad. Ll. 1. 2. and 23. tit. 6. del Quad. But he who shall hire pastures (dehesas) only at the rate of so much a-head for stock (por cabezas), does not acquire possession, L. 13. tit. 6. del Quad. nor the shepherd against his master, L. 14. tit. 6. del Quad. 3d, That no one can bid for any one of these pastures (dehesas), which may be possessed by a member of the Mesta (hermano), L. 15. tit. 6. del Quad. 4th, The owners of pastures (dehesas) cannot stock with their own cattle more pasture than the necessary quantity, and a third besides; and if they should change the feeding-ground the surplus shall remain for the cattle keeper who has acquired possession (posesionero), Céd. de 7. de Abril de 1674.28 5th, If the owner and the cattle keeper are not agreed upon the price, each shall name an appraiser; and if they disagree, the justice in whose jurisdiction the pasture is, names a third; and if the owner have the jurisdiction the nomination devolves upon the judge of the nearest royal place, but never on the justice of the place of which the owner is a native, L. 3. § 3. tit. 14. lib. 3. Rec. [L. 4. tit. 27. lib. 7. Nov. Rec.] For fuller information reference may be had to the adiciones to tit. 6. of the Quad. and to what is said respecting pas tures. § 11. With respect to what relates to the flocks of the Mesta it is laid down, 1st, That those of the kingdom of Castille are of the cabaña real, which is under the protection of his majesty, Priv. 2. so that no corporation or community (comunidad) can form [82] another association (cabaña), nor any sheep owner separate himself from the royal one, L. 11. tit. 27. lib. 9. Rec. [L. 1. tit. 27. lib. 7. Nov. Rec.] 2d, They do not pay ferryage nor pontage, Priv. 42. 3d, The The account which judges or official persons were called upon to render, in Spain, on the expiration of their office or appointment, of their conduct during its exercise or administration. 28 Not inserted in the Chronological Index of the Nov. Rec. lost flocks which are called strayed (mostrencos) are the council's of the Mesta by privilege, and the declaration of the commissaries of the crusade, Priv. 28. § 2. and 7. and L. 4. § 30. tit. 14. lib. 3. Rec. [L. 5. tit. 27. lib. 7. Nov. Rec.] 4th, This cabaña real includes the kinds of woolly (lanar) flocks, goats, cows, mares, colts, and hogs, Priv. 20. 5th, These same privileges belonging to the cabaña real were extended to the city and corporation of Albarracin, by Cedula of 16th December, 1693.29 § 12. The flocks generally are distinguished into those which are migratory (transhumantes), those which traverse the limits of their pasture (travesios), and stationary (estantes). The migratory flocks are those which traverse the royal pass (puerto) to go to feed where they paid the toll de montazgo,30 the docket of which is set forth in tit. 17. del Quad., but hath been done away with by Cedula of 17th July, 1758;31 as an equivalent for it, a duty was established on the exportation (de extraccion) of wool from the kingdom. These flocks may travel freely through all the commons (terminos) to graze and drink water, provided they do no injury to the corn (panes), the vineyards and gardens, nor to the meadows which are mowed annually (prados de guadaña) in the pastures inclosed and marked out for oxen (dehesas de buyes coteadas y autenticas), Priv. 21.; and if they should do damage, it shall be paid for according to the estimation of two honest men, but without their being ill-treated, Priv. 21. and 57. § 2. It is to be observed that no penalty can be exacted for grazing flocks in the waste lands (baldios), and pastures for oxen, L. 14. tit. 23. del Quad. 32 The flocks travesios leave their pastures, and on the contrary those called estantes remain in them. The mode by which the flocks must travel through the sheep walks, passes, and over the bridges, and from one pasture (dehesa) to another, is explained by tit. 20. and 42. and L. 14. § 6. and 22. tit. 14. lib. 3. Rec. These descriptions of flocks, 1st, Must be wandering, and marked as prescribed by L. 1. tit. 39. del Quad. 2d, They are prohibited from being carried out of the kingdom, Ll. 21.33 23. and 24. tit. 18. lib. 6. Rec. [Ll. 1. and 2. tit. 15. lib. 9. Nov. Rec.] 3d, They cannot be sold without having been held in possession four months before, Priv. 10. § 2. 4th, They may enter the kingdoms of Aragon, Valencia, and Navarre to graze, without paying fees, Priv. 29.; and into Portugal, on giving security to bring back the same flocks, Priv. 29. § 5. L. 22. tit. 18. lib. 5. Rec.34 [83] 5th, The number of sheep to feed on the commons cannot be limited by the laws (estatutos) of the municipalities (pueblos) to the prejudice of the members of the Mesta, L. 10. tit. 24. del Quad., nor can the sheep of the flock (cabaña) be obstructed in respect of their 29 Not inserted in the Chronological Index to the Nov. Rec. 30 Toll or duty paid in favor of the crown of Spain, for the passing of flocks from one province to the other. 31 Not inserted in the Chronological Index to the Nov. Rec. 34 Ibid. commons by new plantations of woods (de montes), Priv. de 29th April, 1526. 6th, For the sick flocks, a separate piece of ground shall be set aside, tit. 21. del Quad. 7th, And from each flock sixty head may be sold without paying the toll (portazgo). For a complete knowledge of this subject, it is necessary to inspect the Quaderno, and tit. 14. lib. 3. Rec. [Tit. 27. and 25. lib. 7. Nov. Rec.] § 13. Among the things destined for the benefit of a corporation, we ought to place its funds or property, and the taxes raised on the inhabitants (los propios y arbitrios de los pueblos), arising from various productions;35 and we, therefore, according to our laws, will consider them in what regards their constitution, administration, and end. § 14. To their constitution belongs, 1st, That the suits with respect to the proprios and rents of the corporation shall be determined summarily; and tw sentences confirmatory of each other shall be carried into execution, without an inhibition being allowed to ascertain if there be ground for an appeal, L. 5. tit. 5. lib 7. Rec. [L. 3. tit. 16. lib. 7. Nov. Rec.] 2d, That the cities, towns, and places, shall not be dispossessed of their commons (terminos), without being heard, L. 6. tit. 5. lib. 7. Rec. [L. 1. tit. 21. lib. 7. Nov. Rec.] Sd, That the regidors shall not obstruct the corporation in the prosecution of suits with respect to proprios, L. 7. tit. 5. lib. 7. Rec. [L. 3. tit. 21. lib. 7. Nov. Rec.] 4th, That judges shall not be appointed to sell the public commons and waste lands, Ll. 8. and 10. tit. 5. lib. 7. Rec. [L. 1. tit. 23. lib. 7. Nov. Rec.] 5th, That the waste lands, trees, and their fruits, shall not be sold by the king, unless it be for the benefit of his subjects (vasallos), L. 11. tit. 5. lib. 7. Rec. [L. 2. tit. 23. lib. 7. Nov. Rec.] 6th, That the price for the grazing on the pastures which were broken up before the year 1748, shall partake of the quality of proprios, Ced. of 13th January, 1749.36 7th, That the cognisance of proprios belongs to the council of Castille, Decret. 12th May, 1762. 8th, That duties or taxes (arbitrios) cannot be imposed, either in Aragon or Castille, without the royal authority, Ced. 21st June, 1760.37 9th, That duties de milicias, and the tribute money in acknowledgment of seignory (moneda forera), ceased in 1724, Aut. 25. tit. 9. lib. 3. Rec.38 § 15. The great prejudices which have resulted to the towns, or corporations, from the improper administration of their "proprios," have induced the necessity of enacting very proper regulations [ 84 ] for its government: those which the vigilance of our Catholic King Charles the III. published in the years of his happy reign, which may God multiply for the good of the monarchy, occupying at present the principal place. Among these is now in force the instruction of 30th 35 Palacios says, that the proprios consist of rents or property (fundos) belonging to the towns; and the arbitrios, of certain imposts on provisions (abastos) or marketable goods. 36 Not inserted in the Chronological Index to the Nov. Rec. 37 Ibid. 38 Not in Nov. Rec. |