Joseph M. White.

A new collection of laws, charters and local ordinances of the governments of Great Britain, France and Spain : relating to the concessions of land in their respective colonies, together with the laws of Mexico and Texas on the same subject, to which is prefixed Judge Johnson's translation of Azo an online

. (page 12 of 88)
Online LibraryJoseph M. WhiteA new collection of laws, charters and local ordinances of the governments of Great Britain, France and Spain : relating to the concessions of land in their respective colonies, together with the laws of Mexico and Texas on the same subject, to which is prefixed Judge Johnson's translation of Azo an → online text (page 12 of 88)
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16. The council shall advise me through the treasury, in the
manner before provided, of what taxes are necessary to the towns,
according to their wants, and of the expediency ofextending the
term of such as are already granted, after the expiration of the
grant; they shall* for that purpose, carefully inquire into the condi-
tion 'of the town, and of its wants, in order that, if possible, the
inhabitants nnay be relieved of their burdens.

17. It shall make all such provisions as it may deem proper to
pevent the proceeds of taxes from beinj;, under any pretence,
appfied to other purposes than those for which they are intended ;
and in order that the excess be applied, as far as it may go, to pay
off the mortgages on the same, to the end that the towns may by all
possible means be relieved from the burden of duties imposed on
the principal articles of consumption.

18. In those towns where the domains do not suffice to fulfil their
engagements, the council shall endeavour to apply the excess
arising from taxes to the purchase of some estates sufficient to com-
plete the dotation required, so that it may not be compelled to resort
to other means prejudicial to the liberty and enjoyment of the com-
iDQos by the inhabitants ; and so long as the funds shall be inadequate
to the purchase of estates, the deficiency arising from the domains
shall be supplied by the taxes.

19. To the end that the council be placed in possession of the
requisite information respecting the domains of tne kingdom, and
that the accounts now transmitted, or hereafter to be transmitted,
be examined and settled without expense to the towns, I have
resolved to establish at this court an office of general accountant of
the municipal domains and taxes of the kingdom, consisting, for the
present, and until experience shall have enabled us to know what
persons are necessary for the discharge of its duties, of an account-
ant general and eight officers ; and in order to provide for the pay-
ment of their salaries, and those of an accountant and two officers
to be appointed in each office of accountant of army and province,
it is my will that an allowance of two per cent, be made out of the
proceeds of the domains and taxes, and that this allowance be
expressed in the accounts of the accountant general, in order that
if the said allowance should amount to more than said salaries, the
same may be reduced so as merely to cover indispensable ezpend-



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108 Oba Lmm ^f Spain and France.

itures ; and it is my pleasure, further, that from and after the Ist of
August next, the four per cent, levied b^ the royal treasury upon
the proceeds of thqt municipal taxes, be discontinued.
[ <W 1 * 90. The accountant shall be able, skilful, zealous, and
otherwise qualified for the discharge of his office ; and care shall be
had that the officers be intelligent and experienced in the raanaffement
and settlement of accounts, and that tneir qualifications be Known
at the accountant generaPs office, from which they shall be detailed
to assist the accountant in a manner calculated to expedite the
transaction of business.

21. The council shall, through the treasury, communicate to me
such propositions as it may deem expedient, concerning all matters
connectea with the execution of the foregoing provisions, and the
salaries to be allowed ; bearing in mind that they are to receive no
emoluments for this service, which is to be performed ex officio.

22. The office of accountant, above referred to, shall be estab*
lished in the palace called of the queen mother, in one of the offices
of said council, and all accounts touching the municipal domains,
pending and settled, shall immediately w referred to it, and the
accountant shall forthwith proceed to their final settlement ; their
results shall be communicated to the council, whose advice shall be
taken on the definitive settlement, and the available balances, if any,
shall be applied to the purposes for which they are intended.

23. To this office shall be referred all communications made by
the intendants, concerning the municipal domains and taxes of the
kingdom, their value and charges, in order that, the same being
communicated to the council, it may make the dotation prescribed
by the third chapter of these instructions.

24. In Uke manner, reference shall be made as above, of all the
accounts which shall be presented to the council for examination
by the accountant, but the same shall not be finally passed until
after having been communicated to the council, and its advice taken
thereon.

25. All the certificates given by the accountants of army and
province of the debits and credits of the accounts stated by them in
the difierent towns, shall likewise be filed in said office, in order
tiiat it may acquaint the council with the condition of all and each
of the municipal domains of the kingdom.

26. The accountant shall transmit, for despatch, to the first
chamber of the council, all that shall relate to the municipal domains
of the kingdom ; and shall, agreeably to the decisions given therein,
communicate the provisions adopted ^n that behalf, to the intend-
ants, for their due observance, and shall give such orders as may be
expedient for the same.

27. If, notwithstanding these instructions, it shall happea Aat
measures o( expediency require that any of the articles therein
eontiEiined be amended or extended, with a view to a more comply
Aitfiiment of my desire to see the municipal domains managed and
administered with ftumess and integrity, and the towua enjoyii^ tb*

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Cwii Laws i^ Spain and Prance. 100

relief coQtemptated by them, the council shall, through my troasuryt
adirise me thereof, and await my royal decision.

28. In order that I may be made acquainted with the retailts of
these provisions, it is my pleasure that the council inform me, throuffh
the same channel of the treasury, once in each year, of the condi-
tioo of the municipal domains and taxes of the kingdom, their value,
charges, and the extinguishments of incumbrances, the taxes which
have been discontinued in consequence of the expiration of the
grants, which there may have been no reason for renewing.

*29. Notwithstanding the foregoing provisions, having [ *91 ]
understood that some of the municipal taxes have been specifically
appropriated for the pay of the ordinary service, utensils and other
coDtributiois, and to refund to the royal treasury various sums paid
ip difierent parts, for quarters and other necessities of the towns, at
likewise for the payment of the contribution of one-tenth : it is my
pleasure that all kinds of taxes be administered by the intendants^
under the control of the superintendent general of the royal treasury ;
and that the council do not meddle therewith until it shall have been
informed by said superintendent that said sums have been refunded
to the royal treasury.

Lib. Vn., TiL 16, Law 14.— {Vd. 8, p. 395.)

RegalalioM allowing soch towns as possess neither municipal domains nor taxes to
make the requisite propositions.

Whereas one of the principal objects of the attention of the council
is the administration of the municipal domains and taxes of the
towns, and to see that these be provided with a sufficient amount
thereof to meet their charges agreeably to the provisions of the
loyal decree and instructions of the 30th July, 1760, (see the pre-
ceding law,) the intendants, in all those towns which, at the time of
making out the statement of their municipal domains, shall make it
appear that the proceeds thereof are inaaequate to meet their l^al
expenditures and charges, shall notify the justices of the city, town,
or village, where such may be the case, to propose such taxes as
may be deemed most expedient and less burdensome to the town, to
be applied to the ends above referred to, without specific destination,
but that of meeting its general engagements, taking into considera*
tkm the funds available for any object whatever ; this done, the
intendants shall make report thereof, and shall make out a separate
statement to accompany the above proposition, which shall express
mdividually, and in detail, the proceeds, charges and condition of
the commons ; and if such proposition be for the privilege of clearing
and cultivating the land, the wants of the town shall be expressed, and
it shall be shown that there are no other means of suppl}dng them.
The rate of taxes chargeable to each fane^a of land to be cleared,
and the annual proceeds of each, whether distributed anK)ng the
inhabitants, leased, or adjudged to the highest bidder, whether the
ftmhorizaUon so granted to dear the land shall be prejudicial to the



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110 Civil LatDS of Spain and Drance*

herdsmen of the town, and to the persons enjoying the right of com-
mons, for want of pasture, these persons being consulted thereon,
as also the attorney and recorder general, and all other persons
who shall be interested, and the travelling herdsman frequenting the
commons, pastures, and watering places ; and if said proposition be
for the privilege of enjoying the right of pasture, the mtendants
shall in like manner proceed to summon all persons interested, to
ascertain whether such right may be prejudicial to the flocks belong-
ing to the mestaf from the causes before referred to ; they shall state
the extent of ground to be enclosed, together with the limits thereof,
in order that the same may not be exceeded incase of differences con-
cerning them ; the amount of proceeds which, on a fair computation,
may be anticipated for each year; whether any town oTtns pasture
grounds within the tract proposed to be enclosed, and how nwiny
mere are. If such proposition be for permission to make plantations
of grape vine, the intendants shall state whether they abound in
the country, what is the extent of the tract of land, and whether it
j[ ♦92 ] is calculated for grain, pasture, * or timber : and lastly, if
It be for the cutting of timber, brushwood, or weeds, the condition
of the timber shall previously be ascertained by some practical and
intellig^t person, who shall state in his report whether there has
before been such a cutting of timber, brushwood or weeds, and how
many years since, by what authority or permission, what profits it has
yielcfed, and those which are anticipated on fair presumption from
the cutting now asked ; and, also, whether a retusal to grant the
permission asked can prove injurious to the increase of the timber
and to the preservation of the pasture ; they shall further state in
how many years the cutting of said timber, brushwood, or weeds,
may be i>sneficial, adding to all this information their own opinion
with clearness and distinctness, in order that the council may, upon
a view of the whole subject, determine what shall be most expedient

Lib. VII., 7U. 16, Law 17.— {Vol 3, p. 398.)

Particular jurisdiction of the council in matters of municipal domains and taxes,
whether of mere government or of litigation.

The intendant of Palencia having communicated to me the pro-
visions enacted by the criminal chamber of Valladolid, to arrest the
proceedings in the case of a prosecution commenced by the superior
alcalde of the city of Aguilar de Campoo, against the purveyor of
meat of said place, in certain maters connected with the municipal
domains, it is declared, that the cognizance of such proceedings
does not belong to the chancery of Valladolid, nor to its criminal
chamber, because all the chanceries and audiences are disqualified
from taking such cognizance, as well in matters of government as
of htigation, respectmg affairs of municipal domains and taxes,
whose inspection is reserved, in the first instance, to the intendants,
under the control of the council, even after the royal order of 13tb
November, 1766, (Law 26, Title 2,) which separates the offices of



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CivS Laws of Spain and France. Ill

corr^idors from those of intendanfs ; and that, in this case, the
intendant could not, therefore, take cognizance by way of appeal,
which was the means by which the said purveyor was brought before
Urn, because it has been adjudged, and constantly practised, that
Griginal jurisdiction having been granted in those matters to the
corregidors and superior and ordinary alcaldes, appeals can only be
brought before the council to the exclusion of ail other tribunals,

rabl^ to the royal decree of the 12th of May, 1762, (Law 15.)
decision shall be communicated to the chancery, with notice
Dot to presume, for the future, to take cognizance in such matters
either by way of original resort, or appeals; and to the intendant,
iK)t to admit therein any appeals from the ordinary justices, their
cognizance being particularly reserved to the council

Lib. VIL, Tit. 21.

BOCNDARIES OF THE TOWNS; VISITS; RESTITUTION OF PROPERTY
OCCUPIED BY STRANGERa

Law h—(VoL 3, p. 477.)

Dsfenoe of dwpoM c i w ng the towm of their lands and tenement! without a hearin|^
and judicial decision.

^

We ordain that the councils, cities, towns, and villages, who may
possess, either by purchase or prescription, any lands, forts, or tene-
ments, • shall not be dispossessed tnereof without being [ *93 1
previouslv notified and heard, and the right of the parties decided,
whether by right or privilege ; and if they shall have been so dis-
possessed, the same shall be restored to them without the delays of
trial and judgment

Latb 2.— (Ibid.)

Restitntion of the lands and hereditaments belonging to the councils ; and prohibition
of working or selling them, and of ploughing the reservations [exidos.]

We ordain that all the reservations, timber lands, lands, and
hereditaments belonging to the councils of our cities, towns, and
Tillages, within our kingdoms and seigneuries, which have been
ttken and occupied by any persons, on their own authority, or by
▼irtoe of any letters of ours, be forthwith restituted and restored to
the said councils to which they belong ; but we forbid such councils
to work the same, or to sell or alien them, unless it be for the com-
mon advantage of said cities, towns, or villages, to which they
bekmg ; and if anv person shall have ploughed or settled an^ part
of the said hereditaments, the improvements shall forthwith be
destroyed ; and we command the same with respect to the reserva-
tions owned and possessed by the said towns, and that they be not
ploiq;hed for the cultivation of grain : and if any person has our
iotliorizatioii for doing 8o»^they shall send the same to us, in order



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lis Ciml LcoDS of Spain and France.

thatf upon a view of it, we may adopt such measures as we may
think expedient

LA. VII., m 21, Law S.—{VoL 8, p. 478.)

ObligatioD of the towns and of the regridora to prosecate the saitt inttittited for the
recovery of their hereditameota and revenues.

Whereas some gentlemen, and persons in power, are in the pr^ic-
tice of seizing the revenues, lands, and jurisdictions of the cities and
towns, and do other damage to the prejudice of the public good ;
and whereas the regidors and other lawyers within the same, show
favour to those persons, in the corporations of said towns, by placing
obstacles to the course of justice against them ; we, therefore, com-
mand, that said regidors, and said lawyers who may be regidors,
show no favour to such gentlemen and persons in power, nor to any
other persons, either publicly or secretly, in the suits which may be
^ instituted against them, nor prevent their being prosecuted; and
* that all be animated by one desire of guarding, protecting, and
aiding the course of justice in favour of the domains, revenues,
lands, jurisdictions, and privileges, to which the tovnis are entitled
over the same, under penalty of thereby losing their offices, and of
bemg excluded from the corporation [ayuntamientos] ; and with a
view to the punishment of such as shall offend against this provision,
and to afford an example to others, we command the judiciary
officers of the places where such things may happen, to proceed to
carry such penalty into execution ; and the same penalty shall be
incurred by the corregidors, alcaldes, bailiffs, and justices, [merinos]
and by all other persons whatsoever, holding a seat in the counciC
who shall show any favour, to the prejudice of such city, town, or
village, to any person, prelate, order, or monast^y, in violation of
the foregoing.

[♦94]* Lib. VII., Tit. 21, Law 4.— {Vol. S,p. 478.)

Restitntion by the officers of the cotmcil of what shall have been taken of their laodi
and revenues.

All superior alcaldes, or re^dors, members, jurors, or clerks
of the council, or all other officers whatsoever, in any city or
town of our kingdoms and seigneuries, who may have taken or
occupied any revenues of the domains, or any 'rights or lands,
meadows, pastinres, timber lands, commons, waters, salt works,
and jurisdictions whatsoever, or any other things belonging to
the same, whether commons or waste lands, or any municipal
domains belonging to said cities, towns, and villages of our king-
doms and seigneuries, shall restore them free and unencumbered
to the corporation or council of said city, town, or village, throu^
the clerk of said council : and thenceforth they shall not again



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Civil Laws of Spain and FVance. 1 18

take the property so occupied and restored, nor take any other
of the things above described, under penalty, in case of their doing
so, besides the other penalties provided by the laws of these king-
doms, to the said alcaldes, regidors, or clerks of the council, or to any
other officers thereof, so guilty of taking or occupying any of the
things before-mentioned, and of not restoring the same, or of here-
after taking or occupying them, or any of them as aforesaid, of
thereby losing their said offices of alcaldes, regidors, members,
jarors, or clerks, or any other offices in said council, and of being
removed from, said offices, that we may dispose of the same
according to our pleasure, without any other sentence or declaration
whatsoever, and without any trial or suit, and of being incapacitated
from holding any other office in said council: all corregidors, com-
missioners, or local judges, may, ex officio, execute the aforesaid
penalty.

Lib. VIL, TiL 21, Law 5.—{FoL 8, p. 478.)

filaimer of making rettitation to the townB, of lands oooopied by itrangefa.

The attorneys [procuradores] in the cities and villages of our '
kiogdoms, shall prefer a complaint, by petition, to these cortes,
stating that such council, gentleman, or other persons, unduly and
nnjnsUy take and occupy me places, jurisdictions, lands, meadows,
pastures, watering pl&ces, &c., of the hereditaments belonging to
them, or of parts thereof; and, which is worse, that even the natives
and mhabitants of the cities and villages wherein they reside, seize
and occupy the tenements belonging to them ; and, that, although
the villages have complained to us and obtained sentence of resti-
totion, that such sentence has not been carried into execution, and
asking that to the end that said sentence may be executed, and the
original owners may again occupy the said hereditaments as here-
tofore, in such a manner that the towns shall be doubly indemnified
—first by the re-ocupation of their hereditaments, and then by the
recovery of costs incurred in obtaining them. And whereas we are
advised that many cities, towns, and villages, within our kingdoms,
and especially within the possessions of our royal crown, are in a
^t degree dispossessed and deprived of their said property and
jurisdictions, and of their lands, meadows, pastures, and watering
places, and, notwithstandinff they have obtained sentences of recov-
ery, yet they cannot have the same carried into effect ; Therefore,
we, wishing to provide a redress of those abuses, ordain and
♦ command, that, whenever any council shall complain [ •OS ]
that another council, or any gentleman, or any other person what^
soever, have taken and occupied their tenements, jurisdictions, lands,
meadows, pastures, watering places, or any other hereditaments
appertaining to said council, or any other things belonging thereto,
it shall be the duty of the corregidor, or of any other jud^ who
can take cognizance thereof, or of any commissioner of mquiry
appointed by ourselves^ to summon the other party against whom

Vol. II. 15



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1 14 Civil Lawi of Spain and France. '

f ucfa complaint is made, and to appoint, as we do hereby appoint,
a term of thirty days, wMch shall not be extended, within which he
must and shall show what title or right he has to said tenements,
jurisdictions, lands, meadows, pastures, watering places, or any
other thing so occupied by him ; and said judp or commissioner
shall investigate the same, nmp/tctter, and without judicial forms,
and ascertam the truth, either by deeds, witnesses, or any other
means in his power, the property taken from said council or apper*
taining to its jurisdiction, or to the common stock of property thereto
belonging, by such persons as may be charged with taking the
same. And said inquiry being made, and proofs obtained within
the said term of thirty days, as also such as may have been adduced
by the other party within said term, no other writings or answers
being admitted, nor objections to witnesses, nor permitting any
writmgs to be presented on either side, if it shall be found that the
seizing or occupation of said tenements or lands, or of any of the
things above described, is true, or that said council was dispos-
sessed of the same, they shall immediately, without any other form
of judgment, conclusion of suit, or any other delay whatsoever,
restore, or cause to be restored, said property to the council, with
the free and undisturbed possession of all that shall have been takeo
from it as aforesaid; and they shall cause the attorney of said
council to be put in said possession, and shall protect and maintain
him therein. They shall prevent said council from being disturbed
either by the other council, or by any other person formerly in the
wrongful possession of said tenements, nor permit that any impedi-
ment or resistance whatever be offered to it ; and, if any such shoukl
be attempted, we command that it be put down and punished, which
punishment we, by these presents, do ordain : and inat, by the very
act, the said occupant who shall make any resistance against said
sentence or command, shall lose, and thereby shall have lust, all
right which he may have, or pretend to have to the ownership or

I)roperty of the thing for which he contends, or to which he may
ay any pretensions ; he shall, moreover, lose any office which be
may hold, whether of us or of any city, town, or village; and, if be
holds no such office, he shall forfeit one-third of his goods for tbe
benefit of our chamber : and if he have no right whatever to the
thinff for which he contends, he shall forfeit the value thereof and as
much more besides, one-half for the council against which he con-
tends, and the other half for our chamber and treasury, besides
incurring the other penahies above described. All which we coni-
mand to be observed and fulfilled, although the party which inay
have held such occupation should appeal to the judge of inquiry,
and again from his sentence, or although he may use any other
expedient to arrest such sentence; and notwithstanding, further,
any thing which he may allege about the cause being depending
before us in our council or before our audience, or any other judges,
or any other things or reasons which he may all^e to prevent the
execution of said senteBce, saving, however, his right of property, if



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Civil Laws of Spain and France. lift

be should have anj, which he * may come or send to be [ «M ]
proved before us in oar council, and any thins which they may
deem sufficient to establish the same, but, in the mean time, the
leoteDce shall be executed fully and effectually. And with regard
to the sentences heretofore given concerning the things mentioned
ibove, or any of them, by any corregidors, judges or commissioners,
. as well under the reigns of the kings Don Juan and Don Enrique
as of any other, and of ourselves, we command, that, where said
sentences are already executed and carried into effect, the other
parties interested be heard as to the right of property ; and that, in
the mean time, the councils in whose favour such sentences were



Online LibraryJoseph M. WhiteA new collection of laws, charters and local ordinances of the governments of Great Britain, France and Spain : relating to the concessions of land in their respective colonies, together with the laws of Mexico and Texas on the same subject, to which is prefixed Judge Johnson's translation of Azo an → online text (page 12 of 88)