Sidebilder
PDF
ePub

ters, and in all 124 laws. It may be called a supplement to tbe Partidas, and supplies some omissions and defects in the Partidas.—Almost all the laws of the Ordenamiento have been embodied in the Recopilacion, either entire or with some slight alteration. In 1774, an edition of this work was published at Madrid by Asso and Manuel, illustrated by notes.

The " Ordenamiento Real" was published during the reign of Ferdinand and Isabella, and is an alphabetical compilation of the various laws, whether scattered or contained in the Fuero Real—the laws of Estilo and Ordenamiento de Alcala divided into eight books, compiled by Alonzo Montalvo, who has added a commentary and index.

This is confessedly a work of great merit and philosophical value; but some of the most learned of the Spanish jurists are directly at issue on the question of the public authority of the work. Doctors Asso and Manuel, and learned father Burriel, insist tenaciously that the Ordenamiento Real was never sanctioned by the king and never had any authority beyond that of the private work by a learned author, and critics and authors equally learned and distinguished, maintain that it was written by the express orders of Ferdinand and Isabella, and consequently has all the authority of the other codes.

The better opinion seems to be, that as the work does not bear on its face any mark or evidence of the royal sanction, it is to be considered as of private authority, and that the laws included in it have no addkionsl force by being embraced in the collection.

The Leyes de Toro consist of 83 laws which were prepared and arranged under the auspices of Ferdinand and Isabella, in the Cortes of Toledo in the year 1502, but were not proclaimed until during the reign of Joana, at a session of the Cortes in the city of Toro, in the year 1505. These laws do not form a complete code, arranged and methodised, like the codes to which we have referred. Their object was to supply the omissions and correct the errors of the previous codes. They are, without dispute, one of the best and most important collections of Spanish Jurisprudence.

These laws, so far as they are in force, are embodied in the Nbvisima Recopilacion, where they are arranged under the appropriate titles.

To these various codes and collections of laws in the year 1537 followed the Nueva Recopilacion, or new compilation. This consisted of two volumes, including nine books, and containing the existing laws. In the subsequent editions, issued in the years 1581, 1592, 1598, 1640, 1723 and 1745, were added the numerous laws which were enacted in the periods between the several editions; and in that of 1745 there is added a third volume, in which, under the title of Autos Acordados del Oonsejo, are included more than fiye hundred pragmaticas, ce'dulas, decrees, orders, declarations and resolutions of the Crown, issued prior to that year, which are distributed in the same order into titles and books, as in the two volumes of the collection of the laws.

Three editions were issued in the years 1772, 1775, and 1777, with the addition of the laws passed prior to the latter period. Although this Recopilacion contained the laws which were promulgated subsequent to the issuing of the Partidas and the Fuero Real, and much that were in previous codes; for example, some from the Fuero Juzgo, and of the laws of Estilo, and almost the whole in the ordenamiento de Aloald, and the famous 83 laws of Toro; those not inserted were not necessarily thereby repealed, as we have seen above.

Finally there was published another edition of the same liecopilaeion, but with an entirely new order and arrangement, in the year 1805, selecting the laws in force contained in the former edition, and adding moro than two thousand distinct provisions, not contained in the edition of 1745. This was entitled Novisima Recopilacion de las leges de Espana, and under this v title was'approved and ordered to be obeyed by Charles IV., by a royal cidida, of the 15th July, 1805.

This work constitutes now the great body of the Spanish law, and is of the highest authority in all departments of the government, and in the adjudication of the Courts, except in those cases where any part has been repealed by subsequent laws, or where there exists a special code of laws, appropriate to a particular subject, or to a particular provision that has not been repealed by it.

But although this is so admirably arranged, and so full a body of law, it does not repeal all previous laws, and although the highest, and in all cases where its provisions are clear, and unrepealed by subsequent laws, an absolute authority, yet in those cases where the Recopilacion and subsequent laws furnish no rule of decision, reference may be had as authority to the Fuero Meed, or Fuero de las Leyes, and, so far as they are not absolute, to the Fuero Municipales, and when these furnish no rule, to the Partidas.

The 18th title of the ninth book of the Novisima Recopilacion, includes the laws "in relation to mines of gold, silver, and other metals." These are six in number, and although some parts of them do not relate directly to the subject of the present volume, it has been deemed important to give all these entire, as they are not very voluminous, and it being more satisfactory to the reader than any abridgement could possibly be. For the translation of the 4th law, he has mainly adopted that furnished by Mr. Heathfield, in his excellent translation of Gamboa's mining ordinances, that law being almost precisely the sams as the 9th law, Tit. 13, Book 6, of the Naeva Recopilacion, which forms the text of Gamboa's work.

The compiler has thus given a brief, but he hopes a correct account of the different codes and collections of Spanish law, which are of general application, and the degree of authority belonging to them respectively in the Spanish tribunals. It now remains that he should give some account of the systems of laws peculiarly applicable to the Spanish American provinces, and especially to Mexico, and of the Spanish and Mexican law, in force in California and New Mexico, at -he time of the cession to the United States.

The " Recopilacion de leyes de los reynos de las Indias," was first published in the year 1661. Spain, possessing immense dominions in North and South America, felt the necessity of regulating the government of those provinces, and of securing by general and permanent laws, the obedience and welfare of the nations who inhabited them. The scattered laws therefore which bad been promulgated for that purpose at different periods, were collected and digested by order of Philip IV. in the same form as the Recopilacion of Castile. (a)

Murillo, an able Spanish law writer, in his treatise entitled Cursm Juris Canonici Hispani et Indici, speaks of the manner in which the Spanish laws ought to be received in both Indies. On that subject he says, that in the Spanish dominion in the Indies, courts of justice should first have recourse to the royal and special edicts which may have been directed to the chancery of the city or place where the cause is pending; and if there are none, they should then decide according to the common law, which is to be found in the laws of the Recopilacion of the Indies; and when these last are- silent, recourse must be had to the Recopilacion of Castile, (Nueva Recopilacion) and the Partidas. This author also observes, that the rescripts or royal ordinances are of no authority in the Indies, unless they have been directed to the supreme council of those countries.(i)

The same course has been pursued in the translation of all the laws relating to the subject in the several titles in the Recopilacion of the laws of the Indies, as in the case of the Novisima Recopilacion, and for the same reason.

(a) 1st Moreau & Carleton, Partidas p. xv. (6) Idem, p.

These laws are included in lib. 4, title 19, on the discovery and working of mines, tit. 20, concerning miners, workers in quicksilver, and their privileges, and tit. 21, in relation to the Alcaldes Mayor?* and notaries of mines. The translations arc made from the third edition, published at Madrid in the year 1774.

In the year 1783, however,,a new and very important code of laws was framed for the purpose of simplifying and rendering more uniform the legislation of the mines under the title of" lieales Ordinanzes para la direction regimen y gobierno del importante cuerpo de la Mineria de Nueva-Espana y de m Heal Tribunal General."

This code was framed in the reign of Charles III., and during the ministry of Joseph de Galvez.

This work was translated by Charles Thompson, Esq., of Lincoln's Inn, Barrister at Law, and published at London in 1825. The compiler has availed himself of this translation of this most valuable work, with the few corrections which were deemed proper, after a careful comparison of it with'.the original.

In a recent work of great value and authority, in six volumes, published at Madrid in 1844, entitled " Biblioteca de Legislation Ultramarina en forma de Diccionario Alfab^tico," by don Jose Maria Zamora y Coronado, the learned author, under the head of Mines, copies this work almost entire, and introduces it with the following statement:—" This work was so perfect, and prepared with so much wisdom, that its regulations continue without substantial alteration. Since there is nothing impairing its authority, at least in the judicial portion of it, although there has been published the royal instructions concerning mines, issued for the Peninsula, on the 18th December, 1825 ; it is thought that a service will be rendered to the public by the insertion of the essential chapters, and subsequently of the instructions of 1825."

The decrees of the Cortes of Spain, and of the Ferdinand VII., during the short time in which he may be considered as having the authority of a sovereign, have also been carefully examined, from the year 1810 to 1822, and a translation has been made of the few laws that were applicable alike to Mexico and California, and so far as they relate to the subject of the present volume, they have been inserted in it.

In the year 1829, there was published in Mexico a collection of the decrees and orders of the Cortes of Spain, which were considered to be in force in tha Republic. The following ia an extract from the preface of that book. It should also be added, that by official acts the Mexican government have recognised as valid the decrees of the Cortes, not inconsistent with the constitution and laws of the Mexican Republic.

"The independence of Mexico having been happily realized by the occupation of its Capital on the 27th of September, 1821 and the destruction of the vice-royal government, although the obligation of dependence on Spain is forever broken, these laws which regulate the obligations and rights of those who compose the new community, cannot and ought not to lose their force. Since it is only in the course of time and by competent authority, that their place can be supplied, the sudden abolition of all former laws would have been equivalent to the introduction of absolute anarchy at a season when the preservation of order was most necessary. Therefore it is that with the exception of such laws as conflicted directly with the memorable plan of Iguala and the new order of things to which it gave rise, all other laws which had emanated from the kings of Spain and the sovereign authority which, until that day had been recognized, are acknowledged and respected: suits at law have been decided under them, justice was administered in conformity to them, and the social life of the Mexican people had become adapted to them. Hence it resulted that the Spanish codes so far as others entirely national, have not been substituted, are constantly consulted by the judges, professors of law and even ordinary citizens, as furnishing the standard of action, the guaranty of their reciprocal tights and the rules of their proceeding.

One of the most celebrated of these codes is the collection of the orders and decrees issued by the Spanish Cortes, in the years 1812,13,14, 20 and 21, in which last year our independence. was established. This collection, extending to ten volumes, has become amongst us rare as it is costly: and when obtained, the inconvenience exists of finding scattered in the first seven volumes (being those which contain the decrees passed when Mexico was dependent on the legislators of Madrid) those laws which are regarded as in force in the republic from having been so held, or because they related to this country, or from not having been repealed."

The compiler has also, carefully, examined, page by page, the laws and decrees of Mexico, as contained in the printed volumes, from the year 1821 to 1839, and in the same manner, the files of the official newspapers of the City of Mexico, in the Department of State, to the year 1847, inclusive with the view of obtaining a complete collection of the Mexican law applicable to California. A translation of those which relate to the subject of this volume, will be found in their appropriate place. It will thus be seen that if the design of this work is carried out by the

« ForrigeFortsett »