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,5 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 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 may 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]

7 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.

8 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.

Not noticed in Nov. Rec.

10 Forming L. 16. tit. 24. Lib. 7. Nov. Rec. 11 Nota 18. tit. 24. Lib. 7. Nov. Rec.

VOL. I.-12

13

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.

as, says Otero de pascuis, Cap. 17., and he takes his dictum [77] from L. 1. tit. 15. lib. 4. Rec. [L. 4. tit. 8. lib. 11. Nov. Rec.] 2d, That whether the waste lands (los baldios16) belong to the lord of the place, or manor, or to the corporation, (concejo,) shall depend upon immemorial possession, Otero, same word, c. 9. n. 18. 3d, That although the acts of particular persons may not prejudice the university or community, (universidad,) the right of pasture (pasto) may, notwithstanding, be acquired by the acts of the inhabitants, Olero, c. 20., who treats of the interruption of these acts in c. 21. 4th, That the pastures (pastos) and commons (terminos) of desert and uninhabited places be adjudged to the immediate or neighboring places, Otero, c. 23. a. n. 14. ad 18.

Besides this immemorial possession, the right of pasturage is common to every inhabitant of the place, that is, who may have houses or possessions in the town, L. 9. tit. 28. P. 3.; [L. 9. tit. 28. P. 3.;] Otero, c. 4. n. 33.; so that the establishment of pasture cannot be impeded, Ll. 1. and 2. tit. 7. lib. 7. Rec. [Ll. 2. and 4. tit. 21. lib. 7. Nov. Rec.] In the number of the inhabitants are included the villagers (los aldeanos) attached to the city or town, L. 3. tit. 6. lib. 7. Rec. [L. 2. tit. 18. lib. 6. Nov. Rec.] Hence it results, 1st, That persons not inhabitants cannot make use of the pastures," (pastos,) L. 9. tit. 28. P. 3. [L. 9. tit. 28. P. 3.] 2d, That the pasture-keeper, although he has no jurisdiction, may seize the cattle which shall not belong to the place, L. 7. tit. 4. lib. 4. Fuero Real. 3d, That the cattle so seized must not be ill-treated, withheld, or impounded, only unless it shall be to oblige the party to whom the cattle may belong, to pay the damage assessed by appraisers, and proved by witnesses, Otero, c. 15., and the penalty which the town or municipality (el pueblo) shali impose, which privilege or power is given to it by L. 15. tit. 7. lib. 7. Rec. [L. 2. tit. 4. lib. 7. Nov. Rec.] 4th, That the forests (montes) which shall be burnt, may not be depastured on until the council or corporation be informed, and give what order may seem fit to it on the occasion, L. 21. tit. 7. lib. 7. Rec. [L. 7. tit. 2. lib. 4. Nov. Rec.] 5th, That the action to recover the penalty (ú penar) is popular; and thus every inhabitant may institute a suit for it, L. 10. tit. 11. P. 3., [L. 10. tit. 11. P. 3.,] and the expenses of the suit shall be paid from the property or funds of the municipality, (pueblo,) L. 3. tit. 7. lib. 7. Rec. [L. 5. tit. 21. lib. 7. Nov. Rec.] See Otero, c. 29. 6th, The town, however, which may have plenty of pasturage, ought to concede, from its superabundance, to the neighboring town, which is deficient, Otero, c. 29. 7th, That cartmen may depasture their oxen and mules by the way on the public commons, (terminos,) and even cut wood,18 Ll. 3. and 4. tit. 19. lib. 6. Rec. [Ll. 3. and 4. tit. 28. lib. 7. Nov. Rec.]

16 Baldio is land that is neither arable nor pasture. 17 Are not entitled to a right of common.

18 For cartbote and firebote.

[ 78 ] The right of common granted to a municipality (pueblo) is perpetual, Otero, cap. 23. n. 3.; and is considered as really on which rent or revenue (censo) may be raised, Otero, cap. 27. n. 8. and 9.; and if the pasture (pasto) is granted to any particular person, it is only understood to be for the number or head of stock (para cabezas) that he possesses at the time of the grant, Otero, cap. 24. The town may also rent or farm out the grass, in which case it must pay a tax or duty (alcabala), as partaking somewhat of the contract of sale, Otero, cap. 36.; and such can only be rented by a person who shall keep cattle, and on the condition only of profiting by the quantity of grass necessary for his own use and of one-third part more L. 24. tit. 7. lib. 7. Rec.19 [L. 6. tit. 25. lib. 7. Nov. Rec.]

21

§ 5. The following regulations or orders have in view the increase and conservation of pasture grounds (pastos). 1st, That the corregidor must visit the districts (terminos) to mark the limits of the commons, with a citation to the party interested, Otero, cap. 28. n. 2 and 3.; the 3d and following laws of tit. 7. lib. 7. Rec. [Titles 21. 24, 25. 32. lib. 7. Nov. Rec.] enacting penalties against those who confuse or remove the boundaries. 2d, That if the commons or waste lands of a town are sold, the preference of purchase must be given to the corporation, L.. 55 tit. 5. P. 5.20 [L. 55. tit. 5. P. 5.] 3d, That the commons (terminos) of Avila, and of the cities, towns, and places of the kingdom of Grenada, may not be converted into arable lands,2 Ll. 13. and 14. tit. 7. lib. 7. Rec. [Ll. 2. and 3. tit. 25. lib. 7. Nov. Rec.]; which provision Lagunez de Fruct. Part. 1. cap. 7. n. 82. [L. 3. tit. 10. lib. 10. Nov. Rec.], believes to be general with respect to the whole kingdom. 4th, The cedula of 26th May, 1770, which was an advised (accordada) correction of that of 18th March, 1768,22 has in view also the conservation of the pastures (dehesas), by which the instruction issued in the preceding year with respect to the division of the lands for husbandry, and the commons (pastos) of Estremadura was made general for all Spain; and therefore attention must be paid to it, and not to the other two which are anterior. It must also be mentioned here, 5th, That for every thousand ewes and rams, there must be five breeding cows kept; and that every person who works two pairs of oxen, or one of mules, may bring to the common of the corporation, which is appropriated only for cattle of labor, one un

19 An English reader would doubtless feel more than astonishment at being told, that, by this law, a person not possessing any cattle or stock, who should farm or hire the herbage of a pasture (dehesa), shall forfeit half his property, and not having any property, shall receive corporal punishment of one hundred stripes (azotes).

20 The law 55. tit. 5. P. 5., quoted in the text, does not particularly apply. It relates to the preference of purchase given to copartners, or joint tenants, over third persons, in regard of the partnership or joint property.

21 The word in the text is adehesar; but a reference to the laws 2, and 3, quoted, has induced the translator to suppose it a typographical error, and to substitute the word dehesar, which is the opposite of adehesar,

23 See nota 11. tit. 25. lib. 7. Nov. Rec.