ship escape the danger which immediately threatens her, but is afterwards wrecked or captured, and the remaining goods, or part of them, are saved or recaptured, these are bound to contribute average towards the loss in the first instance incurred, in proportion to their net value in the hands of the merchant after all expenses of salvage, &c. have been paid. The things upon which average is payable are, the ship, boats, furniture, &c., but not provisions or ammunition; also all merchandise, to whomsoever belonging, which is on board for the purposes of traffic, but not the covering, apparel, jewels, &c. of parties on board for their own private use. The freight due at the end of the voyage is also subject to average. The goods are to be valued at the price for which they would have sold at their place of destination. If the ship, by reason of what happened when the average was incurred, return to her port of lading, and the average is there settled, the goods are to be valued at the invoice price. The losses incurred by the ship and furniture, &c. are calculated at two-thirds of the price of the new articles rendered necessary to be purchased. The usages of other countries as to all matters connected with average differ in some respects both from those of each other and those of this country. Where the average has been adjusted according to the established law and usage of the country in which the adjustment was made, it is binding upon all the parties to it, unless there be some special contract between them which provides otherwise. [ADJUSTMENT.] 6 AVOCAT, a French word, derived from the Latin advocatus, and corresponding to the English counsellor at law.' [ADVOCATE.] From the middle of the fourteenth century the avocats were distinguished into 'avocats. plaidans,' who answer to our barristers, and avocats consultans,' called also juris-consultes,' a kind of chamber-counsel, who do not plead in court, but give their opinion on intricate points of law. Previous to the Revolution the advocates of Dijon, Grenoble, the Lyonnais, Ferez, and Beaujolais were entitled to rank as nobles; in some places the order was freed from the de mands of the farmers of the king's taxes. Before 1600 the advocates of Grenoble enjoyed a transmissible nobility; but this privilege was subsequently contested; and in 1756 or 1757 the privileges of the forty gentlemen of whom the order consisted were limited to the droit de chasse comme les nobles même sans avoir fiefs. (Foreign Quarterly Review,' No. 66, p. 352.) Under the old monarchy the avocats were classed, with regard to professional rank, into various categories, such as 'avocats au conseil,' who conducted and pleaded causes brought before the king's council. they were seventy in number, wer appointed by the chancellor, and were considered as attached to the king's court; and 'avocats généraux,' who pleaded before the parliaments, and other superior courts, in all causes in which the king, the church, communities, and minors were interested. At first the avocats géné. raux' were styled avocats du roi,' and the other barristers who pleaded in private causes were called 'avocats généraux,' but towards the end of the seventeenth or the beginning of the eighteenth century these appellations were changed, the 'avocats du roi' were styled 'avocats généraux,' and three of them were appointed to each superior court, while the counsel who filled the same office before the inferior courts assumed the name of 'avocats du roi.' Avocat fiscal' was a lawofficer in a ducal or other seignorial court of justice, answering to the avocat du roi in a royal court. The order of advocates was suppressed by a decree of the 11th September, 1790. The persons who performed the functions of counsel were then termed hommes de loi, and any one might act as counsel. Out of six hundred of the ancient advocates, scarcely fifty, it is said, attended the tribunals during the violent period of the Revolution. 1795 something was done by the French Directory to re-organize the bar, and in December, 1810, another step was taken in the same direction. The Emperor Napoleon had a great aversion to the bar, and when the Legion of Honour was established not a single advocate received the decoration; but they were more favourably treated under the Restoration. In 1827, on the trial of a Neapolitan In priest for a brutal assault on an infant of | king. The individuals who formed the tender years, the president ordered the bar to leave the court. council were called priores or seniores. In the eleventh and twelfth centuries, the territories which the cruel and devastating wars between the Christians and the Moors had deprived of inhabitants, were again peopled, and the kings of Leon and Castile granted particular fueros, or char At present there are in France 'avocats au conseil du roi,' as formerly; 'avocats généraux,' of whom there are five at the Court of Cassation, or Supreme Court, four at the Cour Royale of Paris, besides substitutes, and two or three at each Courters, by which many great privileges were Royale in the departments. The practising barristers are classed into 'avocats à la Cour de Cassation,' who are fifty in number, and who conduct exclusively all causes before that court; and avocats à la Cour Royale,' who plead before the various royal courts. All avocats must be bachelors at law, and must have taken the oath before the Cour Royale. There is a roll of the advocates practising in each court. Candidates are admitted by the Council of Discipline after a probationary term. The members of the Council are elected by the advocates inscribed on the roll. The avoués' (attorneys) also plead when the number of advocates is not sufficient for the despatch of business. (Code des Avocats; Code des Officiers Ministériels; Histoire de l'Ordre des Avocats, par Bouchier d'Argis.) AVOIRDUPOIS. [WEIGHTS AND MEASURES.] AYUNTAMIENTO, JUSTICIA, CONCEJO, CABILDO, REGIMIENTO, are the names given in Spain to the councils of the towns and villages. These councils are in general composed of the corregidor, alcalde, regidores, jurados, and personeros, or hombres-buenos. All these officers, with the exception of the corregidor, who was always appointed by the government, were originally elected every year by the inhabitants of the concejo or commune. To be the head of a family, a native of Spain, and settled in the commune, were the only qualifications required either from an elector or a candidate. The origin of this institution may be traced to the remotest period of Spanish history. (Masdeu, Historia Critica, vols. iv. to ix., more particularly vol. viii. book 3, pp. 33-49.) It existed in the Peninsula under the Romans; and under the Goths it was called the Council of the Præpositus or Villicus-a political and military governor appointed by the bestowed on such as chose to settle in these new colonies. The colonists acknowledged the king as their only lord, and bound themselves by a solemn oath to observe all the laws contained in the fuero, and to pay a certain tribute to the king, called Moneda-Forera, or chartermoney. The king likewise was bouna by an oath to maintain faithfully all the privileges granted in the fuero, not to defraud the concejo or any of its inhabitants of their property, and to keep them under his protection. Every man in the concejo was a soldier, and was bound to arm himself and to follow the pennon of his alcalde, when legally summoned to the defence of the concejo or of his country. In some of these concejos the king appointed an officer who had the political and military command in the commune, collected the revenues, and watched over the observance of the fuero; but this officer had neither voice nor vote in the ayuntamiento, and was in every other respect subject to the authority of the concejo. These officers were called domini, dominantes, and also seniores. The administration of justice, the levying of taxes, raising of troops, and all the interior policy of the concejo, devolved upon the ayuntamiento. The members of this body were chosen every year by ballot, by the inhabitants of the commune, Whoever solicited a vote, either for himself or for his friends, or endeavoured to bribe the electors by money, or even by the favour of the king, was thereby deprived of the privilege of ever becoming a member of any ayuntamiento. To supply the expenses of the concejo, to provide for the erection of public buildings, the endowment of schools, the construction of roads, and other works of public utility or ornament, every concejo possessed certain property, which was inalienable. This fund was increased by the mulcts imposed on certain criminals by the ayuntamiento. Any individual of that body, who was found guilty of malversation of this property, was obliged to restore double the sum he had misapplied, All the citizens enjoyed equal rights in these concejos: Christians, Moors, and Jews, all had the same privileges. No nobleman was allowed to settle in them, unless he first renounced all the privileges of his class, and became a commoner; nor was he allowed even to build a castle or a palace by which he might be distinguished from the rest of the citizens. If any one attempted to do so, the alcaldes were bound by fuero, and under the most severe penalties, to expel him from the concejo. Every individual who resorted to these colonies found in them the most perfect security against oppression; and in some of them, as was the case in Cuenca, he could not be prosecuted for any crime which he might have committed, or even for debts contracted, previous to his settling in the concejo: many accordingly withdrew from the tyrannical rule of the feudal lords, and flocked from every quarter to this seat of liberty. Such were the immunities enjoyed by these colonies and their consequent state of prosperity, that many barons voluntarily renounced the privileges of their rank to settle in them. Many behetrias, or free cities, which were at liberty to place themselves under the protection of any lord they chose, preferred the patronage of the king, in order to enjoy the same privileges as the concejos. Similar fueros were also granted to such cities as rendered eminent services in the wars against the Moors, In all ordinary cases the ayuntamiento decided alone, but every subject which could interest the whole community was, and is even at this day, particularly in villages, decided in concejo abierto, or open council, in which all the citizens in the commune have a voice. When the king ordered anything contra fuero, the alcalde, placing the king's order upon his head as a sign of respect, pronounced his veto by the well-known formula of "obedezcase y no se cumpla," that is, let it be obeyed and not fulfilled. These ayuntamientos had also the privi lege of sending their procuradores, or deputies, to the Cortes, or great assemblies of the nation; and these procuradores formed there the Brazo de las Universidades, or the House of Commons. This Brazo was always the most powerful auxiliary of the crown, and the most effective check against the pretensions of the barons in the times of feudalism. During the disturbed minorities of Ferdinando IV. and Alonso IX. of Castile, the municipal constitution of Spain suffered greatly. The kings and the feudal lords, always ready to take every advantage to forward their own interest, and to encroach upon the liberties of the nation, availed themselves of the pretext of disturbances in the elections of the ayunta mientos, and the king usurped the right of appointing their members in some concejos. The Cortes constantly remonstrated against this abuse, and several laws were enacted to prevent its continuance. Another innovation introduced by the kings was that of appointing corregidores, or jueces asalariados, salaried judges, to administer justice in the concejos, in the name of the king, by which measure he deprived the ayuntamiento of the judicial power. Under John II. of Castile, in the fifteenth century, on account of some dispute in the city of Toledo, it was established that the ayuntamiento of that city should consist of sixteen regidores-eight for the nobility, and eight for the commons, all appointed by the king, and holding their offices for life. "This abuse," says Mariana, "led to another-that of selling these offices, to the great detriment of the common weal, and thus institutions which are good in their origin and tendency, are often turned into evil." The nation continuing its remonstrances against this abuse, a law was enacted about 1540 (Recopila cion, book vii. title 3rd, law 25th), by which it was ordered that no town having a population under 500 vecinos (about 2000 souls) should have an ayuntamiento appointed by the government. the profligate government of Philip IV. the municipal offices were shamefully sold to the highest bidder in every large city; but in the small towns and villages, where these offices offered little or no Under have so unjustly accused of dangerous innovations the principles of the constitution of Cadiz, in which however nothing else was contained than doctrines sanctioned by all the local fueros; and no rights were there proclaimed but those which the nation at all times had exercised, and was then actually exercising. (Mariana, Examen de la Antigua Legislacion de España; Recopilacion de las Leyes de estos Reinos, book vii.; Mariana, Historia de España, book xx. chap. 13.) inducement, they continued to be elective. I Some towns bought the privilege of electing their municipal officers, and were called on that account concejos redimidos, or redeemed councils. Under the presidency of Count Aranda it was established that two officers named personeros diputados del comun, or hombres-buenos, should be elected in every town to protect the interests of the people in the ayuntamiento. The Cortes of 1812 abolished all the abuses, and all the towns were restored to their primitive right of electing their municipal officers. Ferdinand VII., on his return from France, in 1814, rescinded everything which the Cortes had done, and restored the ayuntamientos perpetuos. Notwithstanding the continual efforts of the government to destroy this salutary institution, so contrary to that centralizing system first established by Napoleon, and unfortunately blindly followed by more than one enlightened nation, it still exists, and has been at all times a check against despotism-feeble indeed, but yet sufficient to have still preserved in the Spanish nation a democratical spirit, which, on all occasions of great national interest, has manifested itself in its fulness. Ignorance of the municipal constitutions of Spain is one of the causes why politicians, both native and foreign, are so frequently deceived in their judgments and calculations relative to Spain, particularly in times of great political excitement. We have seen in our days, not to quote other more remote examples, that when the Spanish government in 1808 deserted the nation, delivering it into the hands of the French; when the nobility, the high clergy, and all the high civil and military functionaries acknowledged the disgraceful transactions of Bayonne, the alcalde of Mostóles (Schepeler, Histoire de la Révolution d'Espagne, vol. i. chap. 3, p. 55), an insignificant village in the neighbourhood of Madrid, raised the national standard against the Emperor of the French, and the whole nation flocking round it, exercised in its fulness that portion of the sovereign power which it had always preserved. This ignorance is perhaps one of the reasons why some individuals B. BACHELOR, an unmarried man. The legislation of the Romans placed unmarried persons (caelibes) under certain disabilities, the chief of which were contained in the Lex Julia et Papia Poppaa. The original Lex was simply called Julia, and was passed B.C. 18. (Dion Cassius, liv. 16.) The Lex Papia et Poppæa, which was intended as an amendment and supplement to the Lex Julia, was passed A.D. 9; and both these leges seem to have been considered as one, and they are often referred to under the title of the Lex Julia et Papia Poppæa. One object of the Lex was to encourage marriage. An unmarried person (caelebs), who was in other respects qualified to take a legacy, was incapacitated by this Lex, unless he or she married within one hundred days. (Ulpian, Fray. xvii. tit. 1.) The law was the same if the whole property (hereditas) was left to a caelebs. (Gaius, ii. 111, 144, 286.) It was the opinion of the lawyers, that though a caelebs could not take directly under a testament, a caelebs could take by way of fidei commissum, or trust; but the Senatusconsultum Pegasianum, which was passed in the time of Vespasian, rendered a caelebs equally incapable of taking anything by way of fidei commissum.(Gaius, ii.286.) A testamentary gift, which failed to take effect because the heres or legatee was a caelebs, was called Caducum (and the word was applied to other cases also), something which failed or dropped. In the first instance, such a gift came to those among the heredes who had children; and if the heredes had no children, it came to those of the legatees | who had children. If there were no such claimants, the Caducum came to the public treasury (aerarium). But by a constitution of the Emperor Antoninus Caracalla, the Caducum came to the Fiscus or Imperial treasury, instead of the public treasury; the rights of children and parents, however, were reserved. (Ulpian, Frag. xvii. tit.) An unmarried man who had attained the age of sixty, and an unmarried woman who had attained the age of fifty, were not subjected to the penalties of the Lex Julia et Papia Poppea as to celibacy, but a Senatusconsultum Pernicianum (Persicianum), passed in the time of Tiberius, extended the penalties to unmarried persons of both sexes who were above sixty and fifty years old respectively, and it made them for ever subject to the incapacities. However, a Senatus-consultum Claudianum, passed in the time of Claudius, mitigated the severity of the Pernicianum, in case a man married above the age of sixty, provided he married a woman under fifty, for the Roman law considered a woman under fifty as still capable of procreation. (Ulpian, Frag. xvi. tit.; Suetonius, Claudius, c. 23.) The Lex Julia et Papia Poppea also imposed incapacities on orbi, that is, married persons who had no children from the age of twenty-five to sixty for a man, and twenty to fifty for a woman. Childless persons who came within the terms of the Lex lost one half of any hereditas or legacy; and what they could not take became Caducum. The Lex also gave direct advantages to persons who had children, which subject belongs to the head of MARRIAGE, as well as the history of its enactment. The original object of this Roman law was perhaps only to encourage marriage, but it was afterwards used as a means of raising revenue. In the preceding exposition of the Lex Julia et Papia Poppaa, it has been assumed that the provisions above enumerated applied both to males and females. The word caelebs, indeed, seems to be applied only to males, and the Latin term for an unmarried woman is Vidua, which means any woman who has not a husband. But the expression of Ulpian (xvi. tit. 3), “Qui intra sexagesimum vel quae intra quinquagesimum annum neutri legi (the Julia, or Papia Poppæa) paruerit," &c., shows that the provisions applied both to males and females. The word caelebs would not be used in the enactments of the Lex, but the phrase would be "Qui Quaeve," &c. That the Lex applied to women also, appears from other evidence. (Cod. viii. tit. 57.) Under the Republic there were also penalties on celibacy, and legal inducements to marriage, which are mentioned in the speech which Dion Cassius (lvi. 57) puts into the mouth of Augustus. The censors also are said to have had the power of imposing a penalty called Aes Uxorium, wife-money, on men who were unmarried. (Festus, v. “Uxorium.") It was always a part of the Roman policy to encourage the procreation of children; the object of the English law imposing extraordinary payments on bachelors, and relieving to a certain extent married persons with children, was apparently to raise money, though a certain vague notion that marriage should be encouraged seems also to have occurred to the lawmaker. A constitution of Constantine (Cod. viii. tit. 58) relieved both unmarried men and women from the penalties imposed on caelibes and orbi, and placed them on the same footing as married persons. This change was made to favour the Christians, many of whom abstained from marriage from religious motives. Not only bachelors, but widowers have been unequally taxed in this country; and there is more than one instance within the last sixty years, in which persons have been favoured by special exemptions, or have been charged less on account of the number of their children. In 1695 an act was passed (6 & 7 Will. III. c. 6) entitled "An Act for granting to his Majesty certain rates and duties upon marriages, births, and burials, and upon bachelors and widowers, for the term of five years, for carrying on the war against France with vigour." Bachelors above the age of twenty-five, and widowers without children, paid one shilling yearly, and further according to their rank. |