BOOK II.

OF THINGS.

TITLE I.

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,1 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, religion 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 any one may fish or navigate on the sea and on its shore, where also he

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.

may build a cottage or house for shelter,2 Ll. 3. and 4. tit. 28. P. 3. [LI. 3. and 4. tit. 28. P. 3.]

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. 2S. 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. S. 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, [Ll. 22, 23, and 24. tit. 32. P. 3. [Ll. 22, 23, 24. tit. 32. P. 3.] Cap. 6.3 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,

2 The 6th condition on which lands are declared to be granted by the crown in Trinidad 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.

3 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 its 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.

or rents, to the common benefit of the city or town, Ll. 9. and 10. tit. 28. P. 3. [Ll. 9. and 10. tit. 28. P. 3.]

Of the first description are fountains or springs, places where they hold markets, and fairs, and places where the corporation meet, sandy beaches or grounds (arenales), which are on the banks of rivers, and, finally, commons or pasture grounds (dehesas), L. 9. tit. 28. P. 3. [L. 9. tit. 28. P. 3.] Of the second kind are flocks, fields, vineyards, olive plantations and lands, which produce fruit and rent, L. 10. tit. 28. P. 3. [L. 10. tit. 28. P. 3.] The great variation which is observed in this principal part of our jurisprudence renders its comprehension very difficult; and therefore for greater clearness it is necessary to treat of each thing separately.

§ 1. With respect to what relates to the use of forests or woods (montes) and the commonable lands of a corporation or municipal body (terminos de concejo), it is to be observed, that the abuse arising from their occupancy by many private individuals without the royal license gave rise to the following orders or provisions, 1st, That every common (termino) or forest (monte) occupied should be restored to the corporation or municipal body to which it belonged; and when once restored, should not be transferred or sold, nor the pastures ploughed or converted (ni romper sus exidos) into arable lands, L. 1. tit. 7. lib. 7. Rec. [L. 2. tit. 21. lib. 7. Nov. Rec.] 2d, That from this restitution the clerk or officer (oficial) of the corporation shall not be excepted, under pain or loss of office, and of being rendered unfit to hold it, L. 2. tit. 7. lib. 7. Rec. [L. 4. tit. 21. lib. 7. Nov. Rec.] The process and mode which are to be observed by the judges in such restitution are prescribed by L. 3. tit. 7. lib. 7. Rec., [L. 5. tit. 21. lib. 7. Nov. Rec.,] conformable (arreglada) to L. 18. of Toro, and the modifications laid down in Ll. 4. and 5. tit. 7. lib. 7. Rec. [Ll. 6. and 7. tit. 21. lib. 7. Nov. Rec.] 3d, Those commons (terminos) occupied or sold without the royal license, ten years previous to the year 1551, in I which the law of King Charles I. was published, were required to be reconverted into pasture ground, giving information to the council of what part might have been worked or cultivated by the permission of the municipality (pueblo). L. 6. tit. 7. lib. 7. Rec. [L. 4. tit. 25. lib. 7. Nov. Rec.] 4th, That vineyards, orchards, or buildings made on common (termino) belonging to the king or a corporation, with the [75] license of the council possessed for twenty years, shall not be destroyed or pulled down, but the person who possesses it shall pay an annual tax or rent (censo) at the rate of five maravedis for every acre of vineyard; and so proportionally, L. 3. tit. 7. lib. 7. Rec. [L. 5. tit. 21. lib. 7. Nov. Rec.] 5th, That the buildings given up on account of improper occupation, shall not be destroyed, nor the forests

4 Perhaps the best English term for termino, is, common because of vicinage. 5 L. 18 of Toro does not apply.

6 This law does not seem to apply.

or woods (montes) already planted, be felled or laid waste, except they should be so extensively planted, that the people can cut estovers (lena), which shall be done, so as to leave the two principal boughs on the trees (dexando horca y pendon), that they may grow again, and never to cut the trees at the trunk or foot, allowing the smaller branches (montes) to remain for pasturage, L. 7. tit. 7. lib. 7. Rec., [L. 1. tit. 24. lib. 7. Nov. Rec.] all which hath been extended to the forests or woods belonging to private individuals, L. 28. tit. 7. lib. 7. Rec. [Nota 1. tit. 24. lib. 7. Nov. Rec.] 6th, That no grants (mercedes) may be made of commons (terminos) by the king, corporation, nor judges, L. 10. tit. 7. lib. 7. Rec. [L. 8. tit. 21. lib. 7. Nov. Rec.] 7th, Nor inay justices grant commonable lands without royal license, L. 11. tit. 7. lib. 7. Rec. [L. 9. tit. 21. lib. 7. Nov. Rec.]

Also, in consideration of the utility of these public forests or woods (montes), it hath been ordered, 1st, That the planting of trees should be attended to according to the quality of the soil, the old forests (montes) being preserved, and watches (guardas) placed thereover; for which purpose the justices shall visit every year the said forests, and take care that the penalties expressed in the ordinance be carried into effect, L. 15. tit. 7. lib. 7. [L. 2. tit. 24. lib. 7. Nov. Rec.] which must be confirmed by the council, L. 13. tit. 1. lib. 7. Rec. [L. 16. tit. 3 lib. 7. Nov. Rec.] 2d, That the corregidors, or magistrates, who should be remiss in the fulfilment of these laws, shall lose a third of their salary, L. 16. tit 17. lib. 7. Rec. all which hath been expressed more fully in the ordinances of the 7th and 12th December, 1748,10 which direct, that no trees shall be cut without permission of the justice; and that for every old tree cut, five young ones shall be planted: all felling or burning of public groves (alamedas), with walks, mountains, woods, &c., is forbidden; and it is ordered, that each inhabitant shall plant every year five trees in the situations which should appear best to the corregidor; and not having them, acorns (bellota) may be planted at his discretion. That the justices may take cognisance of this, and not the audienceas nor chanceries, with appeal to the board (junta) of works and woods. The ordinance was extended to the forests of private individuals by the cédula of 18th October, 1763.11

It is to be observed here, that for the preservation of trees [76]

The translator trusts he will not be considered as taking too great a liberty in the translation of the text, by the application of English law terms to express what he may conceive its meaning. The comprehension of this part of Spanish jurisprudence is asserted in the text to be very difficult, and it may be truly added, of little or no interest; and to an English reader, it is therefore hoped, that an allowance will be made for the adoption of terms which, perhaps, will be generally found to convey the correct meaning of the original.

* Or rather for the purpose of furnishing acorns, and for the support or protection of the cattle in winter. See. L. 1. tit. 24. lib. 7. Nov. Rec., quoted.

9 Not noticed in Nov. Rec.

10 Forming L. 16. tit. 24. Lib. 7. Nov. Rec.

Nota 18. tit. 24. Lib. 7. Nov. Rec.

VOL. I.-12

and forests, (montes,) and their appropriation to the building of vessels, the most excellent regulations or provisions have been enacted in our Spain, Autos 4, 5, and 6. tit. 7. lib. 7. Rec., and Auto 6. tit. 7. lib. 7. Rec.,12 [Ll. 12. and 13. tit. 24. lib. 7. Nov. Rec.,] and the very full Cédula of January, 1748,13 regard this object; the latter of which treats, as fully as can be wished, upon the proper care of the trees, the mode of bringing them to the ports, and other things with which the intendants of marine in particular ought to be acquainted. § 3. Not less useful are the pastures (dehesas) for the common support of flocks. Thus, therefore, L. 27. tit. 7. lib. 7. Rec., [L. 9. tit. 25. lib. 7. Nov. Rec.,] published in 1623, gives instructions respecting the preservation of the pastures of the kingdom, and orders, 1st, That the pastures be examined and measured by the justices, with two persons commissioned, one by the council or corporation, and the other by the council of the Mesta. 2d, That they fix or measure the quantity, point out the owners of the said pastures, and the quantity of stock the pastures can support or feed. 3d, That with the assistance of the fiscal, named by the Mesta of the officiating alcalde, (alcalde entregador,) and of the Escribano, the quantity of pasture that shall have been approved or broken up, (de lo que se hubiere rompido,) be ascertained by actual inspection. 4th, That the pastures of each town be inserted in their books, and reports of them transmitted to the respective chanceries; and the general report be kept in the council, or corporation, and a corresponding one in the council of the Mesta. 5th, That the pastures broken up, or approved without permission since the year 1590, and those broken up since the conclusion of the term allowed, be re-converted into pasture, the which provision in this respect is conformable with the spirit of Ll. 22. and 23. tit. 7. lib. 7. Rec., [Ll. 5. and 8. tit. 25. lib. 7. Nov. Rec.,] in which the same hath been established; and the last law explains, that by pasture broken up must not be understood that which has been broken up in one part only. But, in order to prevent these approvements, or these conversions of pastures into arable lands, (rompimientos,) it is ordered by the royal cedulas of 30th December, 1748, and 13th January, 1749, that positively no permission may be given to break up pastures, and that those broken up twenty years before be restored to their former state, (a pastos).

§ 4. With respect to the matter of pastures, (pastos,) regard is chiefly had to immemorial custom; wherefore, 1st, Although L. 7. tit. 29. P. 3. [L. 7. tit. 29. P. 3.] says, that things public, as pastures, (dehesas) grounds for threshing corn, (exidos,) &c., are not prescribed, this must not be understood with respect to immemorial prescription,15

12 Not noticed in Nov. Rec.

13 L. 22. tit. 24. lib. 7. Nov. Rec.

14 Approved, is an old English law expression, signifying to enclose or improve, on the part of the lord of the manor, waste or common.

15 Immemorial prescription or custom, would seem to comprise a period of forty years. See L. 1. tit. 17. lib. 10. Nov. Rec.