carrying on the war against infidels, (gracia del Escusado ó Casa [36] dezmera,) of apostolic grant, sce the decree of January, 1761, and Martinez in his Librería de Jueces, tom. 2. c. n. 84. to 92.

It is to be observed, that the regular clergy cannot be agents or attorneys, except in causes and affairs of their chapters and societies, presenting first the licence of their superior, Aut. 1. and 2. tit. 3. lib. 1. Rec.; [L. 1. tit. 27. lib. 1. Nov. Rec.;] and the royal cédula of 25th November, 1764.

The regular clergy are also forbidden to live out of their convents under any pretext, cédula of 4th August, 1767; and to ask alms with poor's boxes without permission of the town council, (del consejo,) decree of 16th September, 1766.

Lastly, They are not considered as inhabitants of the towns, according to the royal cédula of 21st December, 1766; all which remarks we have made here, considering that these points could not be treated of with more method in another place.

TITLE VI.

OF PROMISE OF MARRIAGE OR ESPOUSALS (DESPOSORIO) AND MARRIAGE (MATRIMONIO).

CAP. 1. MEN in the third place are considered with respect to their state as a family; and in this point of view, are either married or single. To this division belongs matrimony, which is accompanied commonly by marriage portions (dotes) and donations propter nuptias, which we term jointure (arras): wherefore, proceeding immediately to explain espousals or mutual promise of future marriage (el desposorio), as antecedent to marriage, we will treat of both in the present chapter, leaving for the following the explanation of the marriage portion of the wife (dote) and jointure (arras).

We consider matrimony as a contract which is celebrated between those who have contracted espousals (los desposados), and from which it derives its force and efficacy; but authorised by the church, which gives it a worthy place among its sacraments by reason of its dignity, mystical signification, and its ends, L. 5. tit. 1. P. 4., Ll. 3. and 4. tit. 2. P. 4. [L. 5. tit. 1. P. 4. Ll., 3. and 4. tit. 2. P. 4.]

§ 1. Under the consideration of contract, as we shall treat it here, leaving for the canonists all that it contains with respect to the sacrament and the church,' a solemnity testifying the will of the contracting parties ought to precede marriage, which we call mutual promise of future marriage or espousals (desposorio); and that is the verbal promise which men make when they wish to marry, L. 1. tit. 1. P. 4. [L. 1. tit. 1. P. 4.] We must except from this general definition the dumb, who by means of evident and clear signs, supply the place or pronunciation of words, L. 5. tit. 2. P. 4. [L. 5. tit. 2. P. 4.]

From this definition we deduce the following axioms:-1st, That promise of future marriage is a consent which those who are [43] betrothed give with the desire of being married. 2d, That it ought to precede matrimony. 3d, That it is a mere pact celebrated without the solemnity of law;3 but of such force, that by reason of it the persons who are betrothed are bound to contract matrimony afterwards.

1 "Following in Spain the rules of the church in what appertains to the efficacy or validity of matrimony, and treating of the impediments of marriage, we cannot lay aside what it possesses in relation to the church." Palacios (1).

2 Vide Wood, C. L. Book 1. ch. 2. p. 118. fo. ed. (Palacios here observes, that it is true espousals ought to precede matrimony when they are contracted; but that no one can infer from this that marriage cannot be celebrated without having previously contracted espousals.)

3 "Promise of future marriage (desposorio) is not a mere pact, it is a contract with its proper nomination, which ought not to be celebrated without the solemnities which the law prescribes." Palacios (2).

VOL. I.-8

Promise of future marriage being a consent given by those who are betrothed, it is evident, 1st, That only they can celebrate it who are of an age to consent; and therefore the male or female above seven years of age may celebrate it, or even under that age, if, after completing it, they ratify their consent, L. 6. tit. 1. P. 4. [L. 6. tit. 1. P. 4.] 2d, But not persons of non sane mind; unless after recovering their reason they renew their promise, L. 6. tit. 2. P. 4. [L. 6. tit. 2. P. 4.] 3d, That the father cannot betroth his daughters unless they be present and consent, L. 10. tit. 1. P. 4. [L. 10. tit. 1. P. 4.] But if the father should swear and promise to marry one of his daughters with another person, and they shall consent, the election of the particular daughter is left to the will of the father, if he have not specified the object of his promise; provided that in this case, if only one of the daughters remain alive, he would be obliged to give her in marriage, and if, after the promise, he should particularise one of his daughters, and the man does not wish to have her for a wife, the father is absolved from the obligation; but if the man, before the selection shall have been made, shall have enjoyed or had connection with any one of the daughters, he shall be obliged to take her for a wife and no other, L. 11. tit. 1. P. 4. [L. 11. tit. 1. P. 4.] 4th, That it may be also provided that the espousals may take effect at the discretion of the father, if any of the contracting parties say, "I will take you for my husband or wife, if it please my father," L. 3. tit. 1. P. 4. [L. 3. tit. 1. P. 4.]

This consent being precedent to matrimony, it follows, 1st, That mutual promises of marriage may be either de præsenti or de futuro, Ll. 2. and 3. tit. 1. P. 4. [Ll. 2. and 3. tit. 1. P. 4.], the difference of which is explained by L. 9. tit. 1. P. 4. [L. 9. tit. 1. P. 4.] 2d, That they may be celebrated in four ways, by condition, cause, manner, or demonstration, Ll. 1. and 2. tit. 4. P. 4. [Ll. 1. and 2. tit. 4. P. 4.] Condition is, an agreement or covenant, which is made dependent on another covenant; for example, when a person says, "I promise to marry you if you should be at Rome." Cause is, when a person says, "I promise to marry you, because you have done such a thing." Manner is, when a person says, "I give you a hundred maravedis to

4 Properly, espousals, or mutual promises of marriage (desposorio) are, by words, de futuro; espousals by words, de præsenti, are considered in the light of marriage (casamiento), Vide L. 2., as also L. 3. tit. J. P. 4.; and if when a man contract espousals with one woman by words de futuro, and afterwards contract them by words de præsenti with another woman, the last shall be valid, or take effect in preference to the first, unless the man should have had connection with the woman with whom he contracted by words de futuro, before he contracted espousals with the second woman by words de præsenti. And if a man contract espousals by words de futuro with two women, he may elect to marry either of them he pleases, unless he hath had connection with one of them; for in such case, he shall be obliged to marry her with whom he has had connection. Vide L. 9. tit. 1. P. 4. Palacios observes on this part of the text, "It is certain, that as well in the civil as in the canon and statute law, this difference and improper division of espou sals, de præsenti and de futuro, are to be met with, by espousals de præsenti marriage itself being understood; but that, therefore, it must not be said, that because the consent or agreement of espousals precedes matrimony, it follows, that espousals are de præsenti or de futuro; because, if it precedes, they cannot be de præsenti.

build me a house." Demonstration is, when one says, "I [ 44 ] promise to give you such a thing, which I bought of such an one,' naming both particularly, L. 2. tit. 4. P. 4. [L. 2. tit. 4. P. 4.] The conditions ought to be just or decent (honestos), and conformable to the nature of espousals or mutual promise of future marriage (desposorio), Ll. 3, 4, and 5. tit. 4. P. 4. [Ll. 3, 4, and 5. tit. 4. P. 4.] 4th, Indecorous and impossible conditions do not vitiate or annul the promise or contract of marriage, but are considered as not to exist, L. 6. tit. 4. P. 4. [L. 6. tit. 4. P. 4.]

Promise of marriage being a mere pact (pacto), it may be celebrated with or without oath, L. 10. tit. 1. P. 4. [L. 10. tit. 1. P. 4.], and between absent persons by attorney or by power (carta), L. 1. tit. 1. P. 4. [L. 1. tit. 1. P. 4.] The effect of this promise is, the mutual obligation which arises between the parties to contract matrimony; and hence it is, 1st, That those betrothed are prohibited to marry with another, unless the second promise be made under an oath, and the first without it,5 L. 8. tit. 1. P. 4. [L. 8. tit. 1. P. 4.] 2d, That the canonical and civil impediments which hinder and dissolve marriage, also hinder and dissolve espousals, Ll. 8. and 12. tit. 1. P. 4. [Ll. 8. and 12. tit. 1. P. 4.] compared with Ll. 11, 12, 13, 14, 15, 16, and 17. tit. 2. P. 4. [Ll. 11, 12, 13, 14, 15, 16, and 17. tit. 2. P. 4.] 3d, That their causes are of ecclesiastical cognisance, L. 7. tit. 1. P. 4. [L. 7. tit. 1. P. 4.] 4th, That espousals celebrated in any of the lawful ways which we have mentioned, do not bind, unless the condition, cause, demonstration, or manner, with which the promise was made be fulfilled, L. 3. tit. 4. P. 4. [L. 3. tit. 4. P. 4.]

§ 2. Marriage is the conjunction of man and woman, made with the intention to live always together, and not to separate; observing chastity one to the other, and not cohabiting with any other woman or man, living both together, L. 1. tit. 2. P. 4. [L. 1. tit. 2. P. 4.]

Upon this definition are founded the following principles, 1st, That no one who is impotent can contract marriage, procreation being the end of matrimony. 2d, That this perpetual union cannot be dissolved, if marriage be lawfully contracted. 3d, That to render the marriage valid, will and consent must concur in the pronunciation of the promise. 4th, That it be not done clandestinely. 5th, That in order that there may be no separation of marriage, fidelity be [ 45 ]

5 The law referred to, appears to me to declare the reverse, and to say, that an oath taken in the face of the previous promise, as in violation of law (sin derecho), is not bind. ing. Vide L. 8. tit. 1. P. 4. The foregoing opinion has been since confirmed by the ob servations of Palacios on this part of the text. He adds, that "espousals are also an impediment to matrimony, but that they are an impediment of an impedient nature (impediente), commonly so termed; which means, that if, in defiance of this impediment, marriage should be contracted, it would be contracted unlawfully, but it would not be annulled."

See by this law a person who, after celebration of marriage without consummation or carnal connection, if desirous, is allowed to enter into religious or holy orders; and the woman is permitted to marry another man. Secus, if the marriage hath been consummated concubitu.

observed between man and wife. 6th, That the marriage cannot take place if there exist any canonical or civil impediment.

From the first principle these consequences are deduced, 1st, That the male under fourteen, and the female under twelve, cannot contract marriage, although, if before this age they should possess capacity, they may marry, L. 6. tit. 1. P. 4. [L. 6. tit. 1. P. 4.] 2d, Nor the person castrated, unless there arise capacity in him afterwards to procreate, L. 4. tit. 8. P. 4. [L. 4. tit. 8. P. 4.] 3d, Nor the impotent from injury or bodily defect, frigidity, weakness, narrowness, and other impediments treated of in tit. S. P. 4. [Tit. s. P. 4.]

From the second principle it arises, 1st, That no infirmity or disease which happens after the consunimation of matrimony can dissolve it, L. 7. tit. 2. P. 4. [L. 7. tit. 2. P. 4.], although the parties may live separate if the disease be contagious, or the church shall adjudge separation, L. 7. tit. 2. P. 4. [L. 7. tit. 2. P. 4.] 2d, That the wife shall enjoy the same condition, state, and dignity, as the husband, although, before marriage, they may have been unequal in situation, L. 7. tit. 2. P, 4. 3d, That the marriage consummated, but not that which is only duly solemnized (rato), is indissoluble as to the tie or chain (al vinculo), but not with regard to cohabitation, L. 4. tit. 1. P. 4. [L. 4. tit. 1. P. 4.]

From the third principle it is inferred, 1st, That the consent will not be sufficient without the will to marry,10 L. 5. tit. 2. P. 4. [L. 5. tit. 2. P. 4.] 2d, That the order of the king for a widow or virgin to marry against her will is not valid, L. 10. tit. 1. lib. 5. Rec. [L. 2. tit. 2. lib. 10. Nov. Rec.] 3d, That the lord cannot compel his vassal or tenant to marry, L. 11. tit. 1. lib. 5. Rec. [L. 3. tit. 2. lib. 10. Nov. Rec.] 4th, That this will may be expressed by words, or by signs by those who may be dumb, L. 5. tit. 2. P. 4. [L. 5. tit. 2. P. 4.] 5th, That this consent may be effectuated by a relation or stranger marrying in the name of the party, having a special power for that purpose, L. 5. tit. 2. P. 4. [L. 5. tit. 2. P. 4.] 6th, That this consent is considered wanting if there be an error as to the person, but not with respect to the quality or rank," L. 10. tit. 2. P. 4. [L. 10. tit. 2. P. 4.]

"But for this," says Palacios, "the previous decision (juicio) of the church is requisite, which belongs to the bishop." He cites Benedict XIV. Bul. magnæ nobis LI. tom. 2. bullar.

8 "This exception," observes Palacios, "cannot take place; because, for this capacity to supervene on castration, is repugnant; and that, therefore, L. 4. tit. 8. P. 4., cited in the text, does not make any exception."

9 Palacios states, that separation in respect to cohabitation, from whatever cause it may proceed, must always be effected by the sentence of the church, and not by the mere authority of the parties: he cites Caval. Ins. jur. can. part. 2. cap. 30. § 14. Berard. cit. tom. 3. dissert. 7. cap. 1.

10 Perhaps, remarks Palacios, something else was intended to be said, because there cannot be consent without the will.

And semetimes, also, if there should be an error with respect to the quality or rank, as if believing to contract with the daughter of the prince, it should be afterwards discovered that she were not so, or believing the person to be free, who should afterwards be found to be a slave. Such mistakes show that the consent was wanting. Palacios (2).