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The object of the present work is, to furnish a compilation of the Spanish and Mexican laws in relation to the mines of the precious metals, and the laws governing the titles to land in the states and territories of the United States which were, originally, a portion of the Spanish or Mexican territories. It is intended to aid in the investigation and decision of questions affecting the titles to land, and in relation to mines, arising under Spanish grants within the territory ceded to the United States under the Louisiana and Florida treaties, and especially, titles delivered under Spanish or Mexican law in Texas, California and New Mexico.
The design is to give a translation of all laws and decrees of Spain particularly applicable to those territories, when provinces—the laws entire as contained in the several titles of the “ Recopilacion de Leyes de los Reynos de las Indias" and in the “ Novisima Recopilacion de las Leyes de España" also of the Decrees of the Cortes of Spain and of Ferdinand VII. prior to 1822, and the laws and decrees of Mexico, from that time to the time of the cession of California and New Mexico to the United States, so far as those several laws and decrees are applicable to the territories, and relate to the subjects, above mentioned.
The present volume contains a collection of the laws and decrees in relation to mines of gold, silver and quicksilver, and, in addition to the Spanish and Mexican law, in force, the compiler has added a digest of some branches of the common law on the subject of mines and minerals, which, it is supposed, will be of general use : and as the common law of England has been adopted as the law in California, will be of peculiar value, in that state, in relation to questions which may, hereafter arise. In addition to this there is included, in this volume, a considerable quantity of additional matter, most of which is particularly applicable to California,-viz. The messages of the President of the United States,-reports of the Secretary of the Interior, acts of Congress and other public documents of the United States, in relation to California :—the treaties between Spain and Mexico, and the United States and Mexico : the statutes of California in relation to mines :- Also the laws and decrees of Mexico in relation to colonization, and in relation to the holding of land and mines, by foreigners.
The compiler has not the vanity to suppose that he could furnish any original treatise, on these branches of Spanish or Mexican law which-would be at all valuable. His professional engagements rendered necessary an examination of these laws, in reference to the titles to land and mines, in territories acquired from Spain and Mexico; and, although, the study for a year or, two would of course, not enable him to compose an original work, which could only be furnished from the accumulated stores of many years of study and practice in the laws of the country, he has thought that a work of much humbler pretension, but far more value, than any commentary on the law, would be a faithful translation and compilation of the Spanish and Mexican law, in force in California and New Mexico, and other territory, originally, Spanish or Mexican, at the time of their cession. Some of these laws have never been translated into English, and, of those which have been translated, the volumes containing the translations are very rare, and can with difficulty be obtained, at very high prices. The compiler has availed himself of these translations taking however the liberty, after a careful comparison with the original by himself and by others more competent, to make some, although very few, corrections.
In this labor, and in the translations made by himself, he has had most valuable aid from gentlemen connected with the legations of some of the Spanish American States, and others, well acquainted with the Spanish law and language.
A brief history of the Spanish codes, and their relative authority, seems appropriate, and almost necessary, in a work of this character; and this is rendered the more important, as some of those of very ancient date, are still referred to and cited, not only in the courts of Mexico, and other Spanish American States, but in those states which were formed out of territory acquired under the Louisiana and Florida treaties.
Spain, occupied by Phænicians, Carthagenians, Romans, Goths, and Arabs, adopted, as is claimed by some writers on this subject, the customs, usages and laws of the people who governed it from time to time. Before being invaded by any nation, she undoubtedly had, as they insist, her own regulations and ordinances, customs and laws, appropriate and accommodated to her national character. But history, if any notice at all is taken of the legislation anterior to the Gothic invasion, is so meagre, confused, and unsatisfactory, as to give no valuable information on the subject.
The first code published by the Goths, was of the Roman law, in the time of Alaric. The decree issued in Latin, by king Alaric, commanding the ob
servance of this new code, and the character of the code itself, not only show that the laws of the Goths in Spain were founded on the Roman law, but that that law was, alone, in force in that kingdom at the time, and that it was not until a subsequent period that the Roman law was at all modified by local usages and customs.
The “Fuero Juzgo,” also called “Fuero de los Jueces,” book of the Judges, originally published in Latin under the titie of “ Forum Judicum," and, subsequently under the title of “ Liber Judicum,” is considered by the sages of the Spanish law as the origin of their jurisprudence. It was published at the close of the seventh century.
The distinguished writer Marina, in his historical and critical essay upon the legislation of the kingdoms of Castile and Leon, gives the following definition of the word “Fuero.”
“ Antiquity furnishes us with many instruments bearing the title of “ fueros," which are nothing more than writings of donation, issued by some lord or proprietor, in favor of individuals, churches or monasteries, granting lands, estates, &c. Leaving innumerable instruments of this nature-common in Spain and in all Europe, during the eighth and ninth centuries, and as useful in illustrating the history and geography of the middle ages as they are barren respecting an ancient jurisprudence, to which they have scarcely any relation—we will speak solely of those which properly deserve the name of “ fueros ;” those documents issued by the kings, or by the lords in virtue of the privileges pertaining to their sovereignty, in which were contained constitutions, ordinances and laws, civil and criminal, designed to establish on a firm footing, the common rights of towns and cities, to raise them into municipalities, and to secure for them a moderate and just administration, conformed to the public constitution of the kingdom, and the circumstances of the people : documents exceedingly valuable on account of the merit of some of the laws, as for their antiquity :-many of them being anterior, by more than a century, to those municipal corporations, and chartered com. panies, so celebrated in Italy and France, and considered as the first rudiments of politics and legislation in relation to cities. Before the 12th and 13th centuries, the epoch of these charters in those foreign kingdoms, we had in the kingdoms of Leon and Castile, those more wise and equitable, and which combined the advantages of true civil liberty, with due subordination to the sovereign and his laws."
The author of this code is in doubt, it being attributed by different writers to
three of the kings of that period, and by some regarded as the joint work of all.
This code has doubtless many and potable defects, if viewed with the light of the present age, but in spite of its faults, no one can deny that, considering the period in which it was promulgated, it was a most remarkable production.
It consists of an introduction, containing 18 laws, and 12 books, divided into 54 titles, and containing 559 laws.
Escriche cites the celebrated Marina as saying, in relation to it, that "it is admirable for method and clearness ; its style grave and correct, its Latin sufficiently pure; most of the laws are marked by prudence and wisdom; in fine, as a body of law infinitely superior to all those which to that time had been published in the new political associations of Europe ; a body of law which forms a complete vindication of the Gothic kings of Spain, and of the philosophical spirit of the Spanish clergy, who had so important a part in its formation ; a body of law which will always be a monument of glory to our country, and an undeniable proof that our fathers were farthest advanced in the career of civilization.”
Foreign authors of the highest distinction have regarded this code in a similar light. Among these is Gibbon, in his famous historical work, and Guizot, in his general history of the civilization of Europe, from the fall of the Roman Empire to the French Revolution ; and other German, French, and Italian writers, of equal note.
In relation to the authority of this venerable code, it is important to observe that it has never, as a whole been repealed. As recently as the 15th July, 1788 a question arose before the Court of Chancery of Grenada, in relation to the succession to property of a deceased person. According to Law 12. tit. 2., lib. 4. of the Fuero Juzgo the relatives of the deceased person are entitled to the property; and according to the Partidas a convert was entitled to the estate. The matter was referred by the Court to the king, Charles III. who, after consultation with his council decided that the said law of the Fuero Juzgo did not appear to have been repealed by any other, and ought to constitute the rule of decision in this and other similar matters without such adherence as had been shown to the Partida, founded only on the provisions of the civil law of the Romans and on the common canon law. (Escriche Dic. de Leg. Fuero Juzgo.)
Another important code, is the “ Fuero Viejo de Castilla.”-This code received that title in the year 1356, but it is generally stated by Spanish writers that it had its origin between the years 995 and 1000, and that Don Sancho the Sovereign of Castile was its author—that it was also called “ Fu
ero Viejo de Burgos," " Fuero de los Fijosdalgos," &c. The learned father Burriel gave this as the results of his investigations, and was followed by subsequent writers, especially by Doctors Asso and Manuel in more than one of their works; but it is now considered by the best authority that the celebrated Marina in his Historico-Critical Essay has demonstrated that Sancho was the author of no code of general and fundamental laws for Castile.
It is not important as to the precise origin of this code. It is agreed that from time to time it received various additions under various names, and when in 1356 it received the title of “ Fuero Viejo de Castilla,” it had been enriched by contributions from the “ Fuero de Búrgos," that of Najera, Logroño and others less celebrated.
Doctors Asso and Manuel in their preliminary discourse to the edition of this code, published at Madrid, 1761, (pp. 43. 44.,) say: “ The laws of the Fuero Castellano bave been observed constantly from the time of Don Sancho the author of them, to the present time; not only because it was commanded by many decrees and royal edicts, but because no one could mention a period when they were not in force.”
Although this is not denied, it appears that aside from those which have become incorporated in other laws and are embraced in the Novisima Recopilacion and those which are obsolete, the number of laws having any application to the existing state of things, is very small.
The “ Fuero Real” was not published until the years 1254 or 1255.The author of this celebrated code was Alphonso the Wise. To remedy the evils arising from various uncertain and conflicting laws, decrees and grants proceeding from various sources of real or pretended authority, and in order as he says in the preface, to abolish a multitude of unjust laws, this code was adopted. It has been said also, that this Fuero was considered only as a preliminary step towards the great legislative reform which this wise Monarch meditated by the publication of the famous Partidas, thus preparing the way by a gradual removal of the existing fueros, local grants and conflicting decrees for a more complete change.
This code is remarkable for its clearness, method, and conciseness. It comprehended the most important of the municipal fueros and conformed to the Customs of Castile and the Fuero Juzgo, a large portion of which is copied word for word.
In relation to the authority of this code, Don Alphonso XI. in the “ Ordenamiento” made by the Cortes of Alcalá of 1348, ordered by Law 1 Tit. 28, that the laws of the Fuero Real and the municipal fueros of each pueblo