14

From the 4th principle we deduce 1st, That secret marriages are forbidden for the just reasons set forth in Ll. 1. and 5. tit. 3. P. 4. [Ll. 1. and 5. tit. 3. P. 4.] as are also those which are celebrated without witnesses, without the permission of the father, mother, or relations to whose charge the woman betrothed is committed; 12 or without giving notice of it in the parish church of which the contracting parties are parishioners,13 L. 1. tit. 3. P. 4. [L. 1. tit. 3. P. 4.] [ 46 ] 2d, That besides the ecclesiastical penalties those who marry clandestinely will be also liable to civil ones; and thus not only their children will be illegitimate, L. 3. tit. 3. P. 4. [L. 3. tit. 3. P. 4.] but thus incur the penalty of confiscation of property, banishment, and just cause of being disinherited, L. 1. tit. 1. lib 5. Rec., [L. 5. tit. 2. lib. 10. Nov. Rec.] which explains what is expressed in Ll. 1. 2. 5. and 6. tit. 1. lib. 3. del Fuero real; which treat of disinheritance in these cases. 3d, That if he who lives with his lord marries his daughter15 without his command, he incurs the punishment of banishment, and she that of disinherison,16 L. 2. tit. 1. lib. 5. Rec. [L. 1. tit. 2. lib. 10. Nov. Rec.] Fidelity (lealtad) is broken, when 1st, Adultery is committed, the punishment whereof is canonical," and is treated of with its form of trial (su juicio) in Ll. S. and 19. tit. 2. and L. 2. tit. 9. P. 4. [Ll. 8. and 19. tit. 2., and L. 2. tit. 9. P. 4.] 2d, Much more is it broken when either of the married parties shall marry again during the life of the other, which crime is visited by the civil laws with the penalties which we will explain in the last title of our 2d book, and which are expressed in Ll. 5. 6. and 7. tit. 1. lib. 5. Rec.18 [Ll. 6. 7. 8. tit. 28. lib.. 12. Nov. Rec.]

According to the 6th principle the canonical impediments to marriage are comprised under the following;19 1st, Carnal or spiritual

12 The want of such permission, observes Palacios, would not render the marriage null or clandestine. Clandestine marriage, according to the Council of Trent, is only considered that which is celebrated without the presence of the priest (parroco) and two witnesses, sess. 24. De Reform Matrim. cap. 1.

In respect to the necessity of paternal consent in regard to minors, or persons under particular ages in cases of matrimony, the learned professor refers to L. 18. tit. 2. lib. 10. Nov. Rec.

13 Publication of banns.

14 And this punishment extends to the witnesses of such clandestine marriage, Vide L. 5. tit. 2. lib. 10. Nov. Rec.

15 Or his female relation (pariente) living in the lord's house. Vide L. 1. tit. 2. lib. 10. Nov. Rec.

16 And her property goes to her nearest relations. Vide L. 1. tit. 2. lib. 10. Nov. Rec. 17 And also civil, adds Palacios.

18 By the first law referred to the bigamist is to be branded in the forehead with a hot iron, with the letter Q. By the 2d, He is to be condemned to the punishment of treachery (alive), and to be visited with a loss of half his or her property; and by the 3d, To be condemned to the gallies for five years.

19 But, observes Palacios, the canonical impediments are not limited to these alone. For a due understanding of all the impediments, whether natural, canonical, or civil, he adds, that it is absolutely necessary to consult some of the authors on the subject cited. He particularly refers, for what respects civil impediments, to Selvag. Inst. can. disci. pline legibus et consuetudinibus Hispan. accomodat. Tom. 2. lib. 2. tit. 9.; and to the royal orders posterior thereto.

kindred (parentesco),20 Ll. 12. and 17 tit. 2. P. 4. and titles 6. and 7. P. 4.21 [Ll. 12. and 17. tit. 2. P. 4., and tit. 6. 7. P. 4.] 2d, The crime of incest, L. 13. tit. 2. P. 4.. [L. 13. tit. 2. P. 4.] The death of either of the consorts occasioned or perpetrated by the other,22 L. 14. tit. 2. P. 4. [L. 14. tit. 2. P. 4.] 4th, Difference of law or religion,23 L. 15. tit. 2. P. 4. [L. 15. tit. 2. P. 4.] 5th, The sacred order, L. 16. tit. 2. P. 4. [L. 16. tit. 2. P. 4.] 6th, The solemn vow of religion or chastity, L. 11. tit. 2. P. 4.24 [L. 11. tit. 2. P. 4.]

The civil impediments are those which proceed from want of understanding;25 and for this reason madmen, fools, or idiots, &c., cannot contract marriage, L. 6. tit. 2. P. 4. [L. 6. tit. 2. P. 4.]

The civil laws also prohibit marriage in the direct line, and also in the collateral to the fourth degree.26 But as relationship or kindred embraces two considerations, one with reference to the laws of the laity or common law, and the other with reference to the ecclesiastical law, L. 3. tit. 6. P. 4.; [L. 3. tit. 6. P. 4.;] and as in respect of marriage the rules of the canon law are followed, leaving those of the civil or common law to govern the cases of succession ab intestato, it has appeared to us more regular to defer the explanation of the [ 47 ] degrees of consanguinity and affinity until we come to speak of these successions.

Matrimonial causes are exclusively of ecclesiastical cognisance,28 and therefore it is not within the province of our institute to touch upon them. See Titles 9. and 10. P. 4. [Tit. 9. and 10. P. 4.]

20 To the fourth degree, and this impediment holds with respect to adopted relations. By spiritual kindred is meant god-fathers and god-daughters, &c.

21 Another impediment to matrimony is also noticed by Ll. 12. and 17. tit. 2. P. 4. from motives of public honesty or decency.

22 Impedes a second marriage on the part of the survivor, it is presumed.

23 That as regards a person not Christian, L. 15. tit. 2 P. 4. forbids the marriage of a Christian with a Jew, Moor, or person who is not a Christian; but it allows a Christian to contract espousals with such person, on the condition or covenant, that such infidel will become a convert to Christianity before actual marriage.

24 L. 11. tit. 2. P. 4. mentions another impedimeut which, perhaps, ought not to be classed under canonical disabilities: the impediment I allude to, is the marriage of a free person with a slave, unless the party free be cognizant of the condition of the other, and consent to the marriage, or have carnal connection with ditto. Vide the law referred to. 25 Palacios says these impediments are natural.

26 In the direct line they prohibit it, in infinitum, Palacios, (1).

27 That is in respect of the modes of computation adopted by the civil and canon laws, which differ in respect to transversal or collaterals, but agree in respect of direct ascendants or descendants. Vide L. 3. tit. 6. P. 4.

28 This proposition appears rather too generally expressed; for it would seem from the Præm to the 10th Title of the 4th Partida, that there is an exception, where, after making the general statement in the text, which is also supported by the 9th Title of the 4th Partida referred to, it is said, "unless (fueras ende) the impediment concern a matter which belongs to lay jurisdiction or decision, such, for instance, as one with regard to adultery." Vide Prom tit. P. 4. On this part of the text, it is observed by Palacios, that the causes or trials of those who contract a second marriage during the life of the first wife, are, by a royal cedula of 5th February, 1770, (L. 10. tit. 28. lib. 12. Nov. Rec.,) declared exclusively of royal, or lay, and military jurisdiction, according to the persons who offend; but that by the royal decrce of 10th December, 1781, [which does not, however, appear in the Nov. Rec.,] the ecclesiastical jurisdiction may also take cognisance of the mode, and for the reason expressed by the same decree.

Marriage being so advantageous to the welfare of the state, our laws favor it in various ways, and thus 1st, The L. 5. tit. 1. lib. 3. Rec. [L. 26. tit. 2. lib. 5. Nov. Rec.] annuls entirely L. 13. tit. 1. lib. 3. del fuero real, and L. 3. tit. 12. P. 4., [L. 3. tit. 12. P. 4.,] which prohibited widows from marrying within a year after the death of their husbands, and the civil penalties which they incurred thereby; and L. 4. tit. 1. lib. 5. Rec., [L. 7. tit. 4. lib. 10. Nov. Rec.,] reserves to the children of the first marriage the dominion of the property which the wife shall have belonging to the first husband, which reservation is also understood to apply to the husband. 2d, All married persons are exempted from corporation or city burthens and offices30 (cargas concegiles) the first four years of their marriage; and, the first two, from royal taxes (pechos reales) and tributemoney, (moneda forera,) which exemption they will enjoy for life if they come to have six sons, L. 14. tit. 1. lib. 3. Rec. [L. 7. tit. 2. lib. 10. Nov. Rec.] 3d, If they marry before eighteen they may administer their own property when they arrive at that age, L. 14. tit. 1. lib. 3. Rec. [L. 7. tit. 2. lib. 10. Nov. Rec.] 4th, Sons married or betrothed (velados) have the usufruct of adventitious property, (adventicios,) Ll. 8. and 9. tit. 1. lib. 5. Rec. [L. 3. tit. 5. lib. 10. Nov. Rec.]

29L. 5. tit. 1. lib. 3. Rec., which is L. 26. tit. 2. lib. 5. Nov. Rec., does not apply; the reference, it is presumed, should be L. 3. tit. 1. lib. 5. Rec.; or L. 4. tit. 2. lib. 10. Nov. Rec., which see.

30 See Law 7. tit. 2. lib. 10. Nov. Rec.

31 Also corporate or city imposts, same Law.

A tribute or tax paid in Spain to the king every seven years, in token or acknowledg ment of sovereignty or vassalage. Vide Cornejo Diccionario Real de España, tom. 1. pal. "moneda forera.”

33 4 And," according to the law cited (L. 9. tit. 1. lib. 5. Rec.; L. 3. tit. 5. lib. 10. Nov. Rec.) Palacios (2).

Property acquired by industry or right of inheritance, independent of paternal fortone. By marriage, a son is emancipated from paternal power. Vide L. 3. tit. 5. lib. 10. Nov. Rec., referred to in the text.

TITLE VII.

OF MARRIAGE PORTIONS (DOTES) JOINTURES (ARRAS), GIFTS OF HUSBANDS (DONADIOS DE ESPOSOS), AND GAINS DURING MARRIAGE, (GANANCIAS ENTRE MARIDO Y MUGER.)

CAP. 1. As we have explained in the preceding chapter what mutual promise of marriage is, as being necessary to the understanding what marriage is, in the same way it is necessary here to explain what is marriage portion (dote), jointure (arras), what donation of husband (donadio de esposo), and finally, what are gains (ganancias) between man and wife, because they are things which have their proper place, where they serve to complete the due understanding of matrimony.

Dotes and arras are given before and after1 the celebration of matrimony, their ends or objects being, that those who marry may [48] have wherewithal to live and to support matrimony properly and faithfully, Princip. tit. 11. P. 4.

§ 1. Dote is the property which the wife gives to the husband on account of marriage, L. 1. tit. 11. P. 4. [L. 1. tit. 11. P. 4.] It is divided first into profecticia and adventicia. The latter (adventicia) is that which the wife herself gives, of what belongs to her, to her husband, or that which her mother gives for her, or any other of her relations, provided they be not those of the right descending or ascending line, but others, as uncle, cousin, or other relation, or a stranger. Profecticia is the dote which the father or grandfather, or other of the ascendants3 in the direct line give of their own property to the husband, L. 2. tit. 11. P. 4. [L. 2. tit. 11. P. 4.]

2

Hence it is in the first place, that if the father owes any thing to his daughter, and gives it as dote to the husband, although he pay it from his own property, it will be "dole adventicia," because he does not give it as a father, but as a stranger would, L. 2. tit. 11. P. 4. [L. 2. tit. 11. P. 4.] In the second place, for the same reason, that will be dote adventicia which is assigned by a stranger and given to the father, in order that he may deliver it to the daughter, L. 2. tit. 11. P. 4. [L. 2. tit. 11. P. 4.]

§ 2. Dote is divided in the second tary. The first is that which the daughter who is under his power.

place into necessary and volunfather is obliged to give to his Voluntary is that which the wife

1 But vide order in council, 16th September 1822, on this subject, Appendix K. 2 Collaterals.

3 In the right paternal line.

4 That is, I apprehend, if she hath no property of her own for the purpose, and he hath the means of giving her a portion. See L. 8. tit. 11. P. 4. referred to in the text.

gives of her own accord, or any other person in her name, L. 8. tit. 11. P. 4. [L. 8. tit. 11. P. 4.]

§ 3. Dote may be established in many ways. 1st, By solemn promise, which is called in Latin Stipulatio; as, for instance, if a man should say to a woman with whom he would marry, "Do you promise to give me in dote such a vineyard belonging to you, or such an estate, or so many maravedis which such a man has to give you?" and she should answer "I promise." 2d, By mere or simple promise, or pollicitatio.5 3d, By promising to give it to the husband, or to any other in his name, for in this case it is the same as if the husband were to receive it, and he is bound to make it good if he accepted and approved the promise, Ll. 10. and 13. tit. 11. P. 4. [Ll. 10. and 13. tit. 11. P. 4.] 4th, Dote may be constituted purely, or absolutely and conditionally; and it is to be observed, that the condition, "if the marriage be fulfilled," although it may not be expressed, must be always understood. 5th, Dote may be given immediately, after being promised, or at a stipulated time [ 49 ] (á plazo). The former is called giving dote in hand or down (dar la dote a mano), and of this species is that which at the time or act of promising is delivered to the husband, or to some other in his name appointed or approved by him. Of this description also is the dote which the husband gives to the wife of a debt she owed him, saying to her, "Do you acknowledge or agree that you give me in dote so many maravedis, or such a thing that I was to have paid to you?" and she answers, "I acknowledge or agree and consider it as firm, and that I am paid as though I had received the money." The same holds if the husband were a debtor to another, and his creditor should assign as dote to the wife the debts due to him by the husband, L. 13. tit. 11. P. 4. [L. 13. tit. 11. P. 4.] To give dote at a stipulated or future time (ú plazo) is to assign a day and time certain by which it is to be given. A day certain is, when the dote is promised on a day appointed; and time certain is, when it is promised to be given, for instance, within the year; and when promised in a time certain, as within the year, this must begin to run, or be counted from the day of the wedding, L. 12. tit. 11. P. 4. [L. 12. tit. 11. P. 4.]

§ 4. The things which are assigned or given in dote are real' or personal (ruices ó muebles), L. 14. tit. 11. P. 4. [L. 14. tit. 11. P. 4.] Dote may also consist of a debt in favor of the wife, and in order that this species of dote may be valid, it is necessary that the debtor acknowledge the debt, and promise to pay it to the husband, L. 15. tit. 11. P. 4. [L. 15. tit. 11. P. 4.] These things are either valued, or

5 A gratuitous promise, or nudum pactum, and here means a promise, accompanied with delivery of the dote, or gift. See L. 10. tit. 11. P. 4. referred to in the text. 6 And not from the period of the promise. Vide law referred to in the text.

It may be here added, that in the case of a female minor, she is not allowed to assign or deliver to husband, dote, in regard of real property, without judicial knowledge and consent, in addition to the authority or consent of her guardian; but she is permitted to do so, in respect of personal property, having only the consent of her guardian.

VOL. I.-9