CHAPTER IV

ANCIENT SPANISH MINING LAWS AND CUSTOMS

To understand properly the system of mining law prevailing in Latin America at the present time, it is necessary to have some knowledge of the old Spanish laws relating to the industry, and it will be advantageous first to recapitulate briefly the racial history of the people of the Iberian peninsula, for the laws that ultimately originated there were the outgrowth of the vicissitudes through which its inhabitants passed in their long struggle toward a national life. This part of Europe has been notable for its mineral wealth since the dawn of civilization there, which perhaps may be said to have begun not later than 1000 B.C., the date of the founding of the city of Gaddir on its southwest coast, now called Cadiz, by the Phoenicians. These Semitic people, and their Carthaginian successors of the same race did not invade or conquer the country, but appear to have held exclusive control of its trade until 206 B.C. when they were replaced by the Romans. The latter gave way to the Visigoths in 414 A.D., and these in their turn were dispossessed by the Arabs (Moors) in 711. This second Semitic sway continued uninterruptedly until 1031, when the Mohammedan Ommiad dynasty ended. The country was then broken up into a number of small kingdoms, some Christian and some Mohammedan, and for nearly 200 years was ravaged by the continual wars between these rival states. About 1140 the kingdom of Portugal achieved national existence in nearly its present form, and in 1212 the Christian kings of Castile, Navarre, and Aragon secured such a preponderance of power and population that the Mohammedan dominance began to pass away. Finally, in 1497, the region now known as Spain became a united monarchy under Ferdinand and Isabella. To summarize, the peninsula, originally inhabited by

people of the Celtic race known to ethnologists under the general name of Celtiberians, was under Semitic influences during nearly 800 years (1000 to 206 B.C.), under Roman for 650 years (206 B.C. to 414 A.D.), under Germanic (Visigoths) for nearly 300 years (414 to 711), again under Semitic (Arabs and Moors) for 320 years (711 to 1031), and under partial Semitic and partial native rule for a further period of 466 years (1031 to 1497).

There is little doubt that in each case the control of the region was sought more for possession of its mineral wealth than for any other reason. The Phoenicians and Carthaginians do not appear to have penetrated to any extent into its interior, or to have exercised much if any political dominion there. But they established cities along its coasts, and traded extensively with the natives, giving in exchange for the gold, silver, and cinnabar, which the latter procured so easily, the various products of far eastern civilization which were highly prized in those days by the primitive people of western Europe. The Romans, however, took physical possession of the land and its inhabitants, imposed their civilization upon it, worked its mines vigorously with slave labor, and regarded the peninsula as one of the most desirable parts of their Empire.

The Visigoths, being of Germanic stock, and coming from a part of Europe which even at that early date had some little reputation for mineral wealth, must have been attracted towards the conquest of the country because of its superior resources in this respect, and may have brought with them some little knowledge and experience in the industry. But the Roman civilization they dispossessed was far in advance of their own, and while they held the peninsula they appear to have completely adopted Roman laws and practice in the conduct of such mining operations as they carried on, or permitted to the inhabitants.

Nor did the Moors, when they held the land, make any changes of importance in the laws pertaining to mining. No branch of the Semitic race has ever been notable in that line of industry. They appear, however, to have done much indirectly to foster mining, principally by permitting much freedom of operation to

those engaged in the occupation, and by a vigorous development of the great natural agricultural resources of the country, which had the effect of making labor cheap, abundant, and contented. During their dominance Iberia enjoyed a prosperity greater than any that preceded or has followed it, and to their encouragement of letters and the gentler arts may be ascribed the fact that we have, to-day, so complete a record of the system of mining jurisprudence prevailing during those early days. Nothing equal to or even approaching it has been preserved in any other part of the world.

During the 600 years when Spain was a Roman province, the common laws of that Empire took firm root among its people, and when the Visigoths took possession of the peninsula they considered the laws so satisfactory and adequate that they caused to be promulgated a compilation of all then in force in the country. This compilation is known as the Code of Alaric, and is regarded by Spanish jurists as the foundation of their system of jurisprudence. It was published towards the close of the 7th century, say about A.D. 675, shortly before the rule of the Visigoths began to give way to that of the Arabs.

The Arabs, or Moors, advanced into the Iberian peninsula from Africa, and during the 300 years when they were in complete control of the country mining flourished greatly along with agriculture and other industries, and the land became very rich and prosperous. It is generally believed by Spanish writers that towards the end of this period (975-1000 A.D.) what is known as "The Old Code of Castile" was compiled, consisting very largely of decrees promulgated from time to time during the preceding two centuries to provide for the necessities of the developing country, many of which had to do with the business of mining.

After this, and during the stormy period between 1031 and 1212, while Moorish power was declining and the peninsula was greatly disturbed by civil wars, mining operations were much impeded, and a great many of the famous properties of the day were flooded and wrecked. But by 1350 conditions began to mend, and new decrees affecting the industry became necessary.

Some of these are found in the famous "Siete Partidas" a compilation which was published in 1348.

It will answer our purpose now simply to mention the names of the principal Codes that, one by one, succeeded each other. The first is known as the "Ordenamiento de Alcala" which appeared also in 1348 and is considered by Spanish jurists as a sort of supplement to the "Partidas." This was followed by the "Ordenamiento Real," which appeared a few years before the discovery of America. Following this was the "Leyes de Toro" in 1505, and the Nueva Recopilacion, the first edition of which appeared in 1537. Subsequent editions of this work bear the dates 1581, 1592, 1598, 1640, 1723, 1745, 1772, 1775, and 1777, each supposed to be an improvement upon the one of prior date by the inclusion of the royal decrees issued meantime, and the deletion of those repealed. Finally, in 1805, came the famous work called the "Novissima Recopilacion de la Leyes de Espana," which is now the fundamental code of Spanish law except as to such decrees as have since then been repealed, amended, or otherwise altered by the Spanish Cortes, or national legislature.

Previous to the appearance of this notable compilation, such decrees of the various ruling dynasties in the Iberian peninsula as applied to the industry of mining were scattered through the various Codes without any other system than that of the natural sequence of dates. But in the "Novissima" all laws of this class are collected together, and, so far as I have been able to ascertain, they constitute the oldest body of such laws extant and in a form that at the present time would be regarded as a Code. It includes decrees dated all the way from 1263 to 1790, but only those up to the date of 1584 refer to the ancient laws which were in force in Spain when the new world was discovered, and which naturally were transported to Spain's colonies there. In 1761, a noted Spanish jurist named Don Francisco Xavier de Gamboa published a voluminous commentary on some of these old decrees, which throws many an interesting side light on the doctrine of mining rights and obligations of his day.

It is of course out of the question in this work to quote all these

old decrees, many of which refer to the mining of non-metalliferous minerals, with which we are not concerned; nor even to quote in full those bearing directly on metal mining, for the legal style of the times in which they were written was very verbose and redundant, including phrases and sentences touching on social, political, and governmental conditions long since passed away, and having no bearing on the present inquiry. Hence, what follows are pure digests or abstracts. Great care has been taken in preparing them, and the author believes that what has been retained represents accurately the true intent of these ancient laws. Those who wish to study them in their full form are referred to "Spanish and Mexican Law," by John A. Rockwell, published in 1851 by John S. Voorhies of New York; or to Mining Laws of Spain and Mexico," by H. W. Hallack, A. M., published by O'Meara & Painter of San Francisco, in 1859. The first mentioned contains the valuable and interesting commentary by Gamboa on the 4th law, which is really the only one that has to do with the business aspects of mining.

LAW 1

DECREE OF KING ALONZO XI. PROMULGATED IN THE YEAR 1383.

ABSTRACTED

All minerals of gold, silver, lead and every other metal whatsoever in our realms belongs to us; therefore no one shall presume to work them without our especial license and command; wherefore we command that the rents derived therefrom be paid to us, and that no one presume to intermeddle with them, except those to whom former kings, our predecessors, or we ourselves shall have granted the privilege, or who shall have acquired them by immemorial possession.

LAW 2

DECREE OF KING JUAN I. PROMULGATED IN THE YEAR 1387 AT BIRBISCA. ABSTRACTED

Inasmuch as we are informed that these our kingdoms abound and are rich in minerals; therefore, as an act of grace to the inhab