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July, 1760.39 By it there was created in every town an assembly or junta, (junta de proprios y arbitrios), composed of the superintendant and two regidors of the cabildo, (ayuntamiento); and it was ordered on the 24th of July, 1762, that all the ancient juntas de censalistus of the kingdom of Aragon should transmit to the former their resolutions, (concordias), and papers: at this junta, a deputy from the censalistas may assist, remaining responsible, as all the other individuals for the employment of the funds (cuudales) of the “proprios," Ced. 18th October, 1764.41
This junta, Ist, ought to transmit its annual accounts to the council of superintendence of the province; the formulary of which was transmitted to the towns or municipalities (u los pueblos) in the Ced. of 291h March, 1764,42 and was commanded to be observed by the order of the 16th March, 1765.43 2d, It ought to rent each separate propio to the highest bidder at public outcry, according to the direction of L. 4. tit. 5. lib. 7. Rec. (L. 4. tit. 16. lib. 7. Nov. Rec.], the justices, regidors, or other officers of the corporation not being allowed to rent them, L. 3. tit. 5. lib. 7. Rec. [L. 7. tit. 9. lib. 7. Nov. Rec.], nor powerful persons, L. 23. tit. 6. lib. 3. Rec. [L. 7. tit. 16. lib. 7. Nov. Rec.] 3d, The regidors, jurats, and escribanos, must not borrow from the stewards (muyordomos)of the proprios and of the public granaries, nor from the renters of them, under pain of loss of office, Aut. 5. tit. 4. lib. 3. Kec.44 Licenses to raise money or taxes (lomar censos) upon the propios cannot be applied for without expressing those to which they are subject. 5th, The cabildos (ayuntamientos) ought to administer the propios, arbitrios, and municipal taxes (sisas) without applying them to their own purposes, Decre. of 18th June and 14th July, 1751.45
$ 16. The object of this property is to satisfy from its produce the burthens imposed upon the corporation. Wherefore it should be known, Ist, That the towns which may not have sufficient propios shall point out to the corporation those which may appear the most [ 85 j suitable objects of revenue, Céd. 9 October 1765.4 2d, That from the produce of the propios the king exacts the two per cent. for the expense
“de cuenta y razon,” which must be paid by thirds (tercios) and in preference to every other expense. 3d, After which shall be paid the expenses for administration, public works, holy days, proclamations, funerals of royal persons, the destruction of the locust (matunza de la lungosta), the provision of the public granary, its own funds not being sufficient for the purpose, the salaries of physicians, surgeons, veterinarians, public assayers, masters, &c.; and the houses of the royal granaries shall be repaired, and the breeds of horses kept up; all which is better explained by the before mentioned instruction of 1760. 4th, By two Cédulus of 1766, it was ordered, that from the products of the propios the municipalities (pueblos) may go on collecting the taxes or duties which shall be due by them for one year, and in the other may pay the pensions in arrear (pensiones atrusudus) and so on successively. 5th, With respect to the assessments (repartimientos), of which tit 6. lib. 7. Rec. [tit. 22. lib. 6. Nov. Rec.) speaks, reference must be had to the Cédulas of 1751, which have fixed them with respect to matters in dispute appertaning to the propios: frequent doubts may occur whether they ought to be discussed in the audiencias or in the tribunals of the intendants, upon which it would be proper some declaration should be made.
39 L. 13. tit. 16. lib. 7. Nov. Rec. 40 Perhaps "annuitants" may be the suitable translation. 41 Not inserted in the Chronological Iridex to the Nov. Rec. 42 Ibid.
43 Ibid. 44 Not noticed in Nov. Rec. 45 Not inserted in the Chronological Index to the Nov. Rec. 46 Ibid.
$ 17. The public granaries (positos), which by their nature ought to be considered as public things, must be governed and administered according to the instruction of the 30th May, 1753,47 which explains and amends, L. 9. tit. 5. lib. 7. Rec., [L. 1. tit. 20. lib. 7. Nov. Rec.] which proves to us that granaries were already established in 1584. Thus we know, Ist, That the granaries are, some for the supply of the town, aud others for assisting the laborers. 2d, That they are governed by the magistrates of each town, a judge, escribano, syndic, and depositario. 3d, That applications for redress (recursos) and appeals from them belong to the superintendant general. 4th, That they are obliged to be present at the delivery and sharing out of the grain; at the passing the accounts; at the general measuring of the stock (fondos), which is done at the end of June in every year; at the winnowing of the corn (apaleos), in order that the additional quantity to be paid in by the farmers (creces) may not be concealed; and at the inspection of memorials, at which two experienced laborers ought to be present to examine whether what each person sets forth as to the quantity of corn that will be necessary for his cultivation (labores) is correct; which division is usually made in October, [ 86 ] an edict or notice being published fifteen days previously to present these memorials to the junta. 5th, This corn onght to be in a secure place locked up under three keys of different locks, of which one must be in the possession of the justice, one of the mediating (interventor) regilor, and another in that of the depositario. 6th, The master keys (sus caudules) must be in the archives or chest of the cabildos, and, if there be none, in the public granary, or in the possession of the depositurin, he giving security. 7th, Four books must be kept, one to insert the entries of grain, and the existing quantity of corn; another for inserting the issues of corn, and the other two to enter the money which is delivered or paid in and issued out. 8th, The orders in virtue of which the grain is delivered or taken out must be signed by the mediating judge (interventol), and escribano, the laborers giving security for what they take out. 9th, At the end of
47 Vide note 24. tit. 20. lib. 7. Nov. Rec.
June the depositario presents his accounts, which must be passed to the syndic, in order that he may investigate them (ponga reparos); and if he should not find them correct he is to state that they ought not to be approved, and the judge shall determine (substanciara)
10th, When the granary is repaid what it advanced to the laborers or to the public, information of it is given to the judge of the district (partido), who ought to transmit it to the superintendant general with the accounts of each granary. 11th, The depositario is entitled for his trouble at the rate of a maravedi for each funega which is received or issued, the syndic the same for what is received, and also the escribano; and the judge a half maravedi for what is received or issued ont.
Cap. 7. Private things are those which belong in particular to every individual of which he may acquire or lose the dominion, L. 2. tit. 28. P. 3. [L. 2. tit. 28. P. 3.)
Cap. 8. The second division of things is into corporeal and incorporeal. The first are those things which may be seen and touched, and are divided into movable and immovable. Things called movable (muebles) are all those which men can move from one place to another, and all those which can move naturally by themselves, L. 4. tit. 29. P. 3. [L. 4. tit. 29. P. 3.] Things immovable (silias) are those which can neither be moved by men, nor by themselves naturally. Things incorporeal are those which can be neither seen nor touched; of this kind are all species of rights (de derecho) of which [ 87 ] our jurisprudence treats, and which have their proper places in the following titles.
Cap. 9. A right is either in the thing, or to the thing; a right in the thing is that which belongs to one over any thing without respect to another person; a right to a thing is that which belongs to any as against another person to oblige him to give or to do something: of the first kind are right of dominion, of inheritance, services (servidumbres), and pledge, and mortgage. Possession, as it is a momentaneous right, and is lost by the loss of the thing, is not a right in the thing. Of the second kind are all species of obligations which arise from contracts.
OF DOMINION, THE MODES OF ACQUIRING IT, AND ITS KINDS.
CAP. I. The first species of right in the thing is that of domi- [ 89 ] nion, which is a power that arises from the right every one has in the thing, by reason of which he may dispose of and derive from it every possible advantage, may exclude others from its use, and claim it (vindicarla) from any possessor, unless a contract, or the law, hinder it. It is from this inferred, that there are two kinds of dominion, one absolute or perfect, which consists both of the power of disposing of, and receiving the profit (utilidad); the other qualified, or less perfect, by which these two rights are divided between the direct or immediate proprietor, who may dispose of the thing; and the useful usufructuary (util) proprietor, who has the power of claiming (vindicarla), and of enjoying the use or profits of it. of this last class are the feud or fee ( feudo), and the enfiteusis (lease), which we proceed to explain before entering on the exposition of the modes of acquiring dominion.
Cap. 2. Feud' is a grant which the lord makes to any man on condition that be becomes his vassal, and does him homage to be faithful to him, L. 1. tit. 26. P. 4. [L. 1. tit. 26. P. 4.] The origin of feuds must be ascribed to the ancient Franks or Germans; for it appears that their kings were accustomed to grant lands to their generals and nobles (señores), on the condition of their doing homage and performing military service; from them the Lombards adopted them, who introduced them into Italy in the sixth century, Jorge Adum Strurin, Syntagma Juris Feudalis, Cap. 1. § 3. Fends were not known in Spain until the ninth century; and the first notice that is taken of them is by the Emperor Charles the Bald having granted in [ 90 ] fee Barcelona to Wifredo II. the Handsome (helloso), Diago, Hist. de los Condes de Barcelona, lib. 2. cap. 7. From Catalonia it is to be supposed that feuds would be introduced into Castille; and, in truth, the Behetrías, such as they are described by Pedro Lopez de Ayala in his Crón del Rey Don Pedro, Año. 2. cap. 14., and the dominio soluriego partook much of the nature of feuds; to which were annexed homage and military service, until the duty paid in lieu of military service (lamza) and the annals of the half year (media annata), were jutroduced as equivalent to them. This is confirmed by L. 68. tit. 18. P. 3. [L. 68. tit. 18. P. 3.) which referring to the solemnities of investiture, says, that the grandees (ricoshomes) granted feuds: and that there existed feuds, strictly so called, in Castille, is proved by tit. 26. P. 4. [tit. 26. P. 4.]; the laws of which upon the constitution, dissolution, and recognition, or acknowledgment of the feud, and the obligations of the feudatory, agree with the feudal laws of the Lombards contained in the Consueludines Feudorum. We only observe one remarkable difference in point of succession or descent; for L. 6. tit. 26. P. 4. [L. 6. tit. 26. P. 4.] says, that the succession does not descend beyond graudsous, but returns to the lord; and it is clear, that, by the feudal common law, the succession was extended in infinilum; but this gives us to understand, that such a law, enactment, or provision, was made in favor of lords, to afford them, by this mean, the greater liberty of disposal. See tit. 25 P. 4. [tit. 25. P. 4], upon the reciprocal obligations of vassals and lords, and the cases in which the former might abandon the feudal dominion (señorío) of the latter.
' A feud, says Palacios, is a particular species of contract like, in part, to the Emphy. leusis, in which the sovereign or lord grants to one the dominium utile to a thing or property, real or honorable, on the promise, by the latter, of fealtv, and some personal service by him and his successors: that its origin must be attributed to those who sallied from the north to conquer the empire.
2 Behetrias, or benesactrias, from benefactoria: towns, the inhabitants of which were invested with the right of choosing their own lord or señor. Behetrin was one of the an. cient kinds of seignory in Spain: for its further definition and its origin, as well as of the other kind of seignory called dominio solariego, mentioned in the text, the reader, who may be desirous of more information on the subject, is referred, in addition to the author there cited, to Law 3. tit. 25. P. 4. L. 2. and tit. 1. lib. 6. Nov. Rec. Cornejo Diccionario del derecho real de España, vol. 1. word Behetria: and 10 Teatro de la Legislacion Universal de España é Indias, 5th vol. same word.
Cap. 3. L. 5. tit. 30. P. 3.4 makes a clear distinction between the feud, usufruct, and emphyteusis. The last is a contract or agreement which is made respecting real property granted for the whole life of the tenant, or his heirs, on condition of the payment of an annual rent, or as shall be agreed on, L. 28 tit. S. P. 5. [L. 28. tit. 8. P. 5.). Whence it follows, 1st, That it is a contract partly between sale and lease, L. 3. tit. 14. P. 1. [L. 3. tit. 14. P. 1.]. 2., That the terms set forth in the deed, must be fulfilled, L. 28. tit. 8. P. 5. (L. 28. tit. 8. P. 5.] 3d, That if the thing or property be lost or desiroyed by fire, carthquake or inundation, the tenant (enfiteula) shall not be obliged, from that time forward, to pay the rent (pension); but if the whole be not destroyed, so that there should remain at leasi an [ 91 ) eighth part, he shall be obliged to pay, L. 28. tit. 8. P. 5. [L. 8. tit. 23. P. 5.] 4th, If the tenait hath allowed three years to go by without paying the rent to a lay lord, the property becomes forfeited (cue en comiso), without its being necessary to have recourse to the authority of the judge; provided, however, that if within ten days after the expiration of the above time, he should wish to pay the rent, the lord must allow him to retain the thing or
3 Palacios says, lanzas consist of a certain service in money, which the grandees and nobles pay to the king every year, and media annata, the sun which is paid for the title and honor (per el titulo y honorifico).
* L. 5. tit. 30. P. 5., is cited in the text; but there is no such title in the 5th Part., and the 3d Part. is supposed to be meant.
5 See Wool's Inst. C. L., p. 238, book 3. c. 5., for the definition, &c. of this contract, also Hal. Annal. C. L. p. 3. ch. 18.; I Browne C. L. p. 192. n. 7. Book 2. ch. 3.