1. INTRODUCTION
‘The New Metallic World’, asserted jurist Francisco Xavier Gamboa to the King of Spain in 1761, ‘is not a new world anymore, but an old one’.Footnote 1 The discovery of silver, gold and mercury deposits in Hispanic America very early in the sixteenth century prompted the development of export-oriented mineral economies in these territories of the Spanish empire.Footnote 2 However, such an explosion of mining could not afford to tamper with the fundamentals of Castilian law referring to ownership of mines and taxation. Mining laws regulating both ownership and taxation appeared centuries earlier in Castile. They were the outcome of a medieval debate concerning the relationship between the crown and its estate, the mines, and ‘private’ merchants.Footnote 3 In contrast to the Anglo-American legal tradition, in which ‘fortuitous happenings’ gave birth to mining grants,Footnote 4 mining grants in Castilian law were the product of precepts firmly established prior to the discovery of mines.
During the medieval period, legal regimes regulating mining existed in many territories outside the Iberian Peninsula. The work of John Hatcher on the English medieval tin industry, expanded by Ian Blanchard, illuminates legal aspects of tin and iron ore mining from the twelfth century until the sixteenth century.Footnote 5 The unrivalled masterpiece by Herbert and Louise Hoover on Georgius Agricola's De Re Metallica provides a wealth of information about mine ownership and mining grants in the lands of the Germanic empire.Footnote 6 The conduct of gold traders of the Islamic empire described by Maurice Lombard and Leonard Harvey sheds light upon medieval legal traditions governing mining outside Christendom.Footnote 7 However, in many ways, Castilian legal tradition differed from its counterparts. First, from very early on, Castilian legal tradition put mining into an antagonistic relationship with feudalism. Second, it paved the way for connecting sovereign mineral wealth to global trade circuits. Third, it catapulted the figure of the metal industrialist to the top of the mining economy. Finally, the Castilian legal tradition ruled over the greatest mineral economies of the modern world – the silver riches of Zacatecas, San Luis de Potosí and Guanajuato in Mexico, and that of the Imperial City of Potosí in Peru.
Studies of Castile's mining laws emphasise their role in the expansion of the Spanish empire during the sixteenth century.Footnote 8 Scholars also emphasise the role of mining laws in the evolution of mercantilism during the seventeenth century. Undeniably, mining laws played a pivotal role in this evolution, but Castile's mining laws reveal something deeper about the legal history of mining in the Western world: the recognition of the separation of mine ownership from mining rights. Castile's medieval concept of the grant, or lease, of mining rights meant that ‘private’ individuals could be entrusted by the government to exercise mining, without compromising the fundamental principle of sovereign ownership of the mines. Given the principle of sovereign ownership of the mines, mining rights exercised by private individuals became a key legal instrument for the colonisation of mining lands, the discovery of mines, and the opening of mining frontiers in peninsular and overseas territories.Footnote 9
Drawing mostly upon secondary sources, this paper describes the evolution of the Castilian principles of ‘sovereign patrimony’ over the mines and taxation from the medieval to the early modern period. It shows how these legal precepts provided a rationalisation that encouraged the application of ‘private’ capital to the mines very early in the medieval period. The paper describes how the exercise of sovereignty, while directing investments to the mines, freed mining from several feudal obstacles on its transit to modernity.
2. SPAIN IN THE MIDDLE AGES
A short description of the political history of Castile during the middle ages may help us to understand the development of Castilian mining laws. In the eighth century, followers of Islam invaded the Iberian Peninsula, occupying three-quarters of the territory.Footnote 10 In the same century, the Visigoth kingdoms in the northwest of the peninsula started a centuries-long process of expulsion of the invaders, and their religion, known as the Reconquista. The latter lasted from the formation of the Visigoth kingdom of Asturias in 722 until the fall of Granada in 1492. Until the fifteenth century the peninsula consisted of a number of separate kingdoms. The marriage of Queen Isabella I of Castile and King Ferdinand II of Aragón in 1469 began the unification of the most important kingdoms, from which modern Spain would eventually emerge.
During the centuries of the Reconquista, as the Christian frontier expanded through a process of colonisation, new Christian kingdoms were formed. This, however, tended to create legal conflicts and fragmentation, for three reasons. First of all, the process involved lands under different sovereigns internally divided into many administrative, fiscal and legal jurisdictions.
Second, land donations by the sovereign to the nobility and other feudal groups were used to dismantle the administrative and fiscal centres of the conquered Islamic districts, securing the territory for Christianity. They also served to reward the nobility for their participation in military campaigns. However, jurisdiction over the donated lands was not easily defined, because the sovereign could divide the land and the incomes deriving from it between different people.
Third, war between competing Christian kingdoms, dynastic conflicts, royal marriages and Muslim raids and attacks, made it difficult to define with precision the location of the borders of the Christian kingdoms, creating further conflict.Footnote 11
Entering the fourteenth century these issues provided the material foundations for legal debates concerning the extent and meaning of sovereign ownership, and personal versus public patrimony of the kingdom. Sovereignty was understood in the late middle ages as the mark of a supreme power and the sovereign crown objectified such supreme dominion, representing ‘the visible expression of an originating, mysterious, majestic and tremendous power’ which existed above and beyond the physical figure of the king.Footnote 12 One of the roles that a sovereign monarch was expected to fulfill was to allow merchants to flourish.Footnote 13
3. CASTILIAN PRINCIPLES OF SOVEREIGN PATRIMONY OF THE MINES AND MINERAL TAXATION
The legal precept of sovereign patrimony of the mines had its roots in Roman jurisprudence.Footnote 14 Imperial legislation established that mines and mining rights were part of the Emperor's estate, a precept which applied to all mines located on public lands.Footnote 15 However, the sovereign ownership of mines did not guarantee the flow of tributes to Rome. Mineral taxation, the second legal precept that prevailed in Castilian law, was also rooted in Roman law. Justinian Institutes recorded the policy of mineral taxation that applied in the colony of Hispania in the sixth century AD. A discoverer of a mine located on public land was obliged to pay one-third of the extracted metals to the imperial treasury. ‘Private’ citizens who enjoyed the mining rights to a mine situated on land they owned were obliged to pay one-tenth of the minerals extracted to local governors through the supervisory centres established in the towns.Footnote 16
Albeit with minor changes, the ‘one-tenth’ tax was continued into the fourteenth century. Jonathan Edmonson describes how under the Córdoba Caliph of Alhaken (961–976) the Islamic legal term for the ‘one-tenth’ tax, or tithe, was the azaqui.Footnote 17 The political, military and religious confrontation between Muslim kings and their Catholic Visigoth counterparts in the Reconquista did not prevent them from encouraging mining and mineral-related activities. Both sides needed metals for coinage, and to finance both war and the long-distance trade that connected the cities and ports of the Iberian Peninsula to the rest of the Mediterranean, Europe and beyond.Footnote 18 Commercial privileges granted to protected Christian settlements, or dhimmi, under Islamic rule in the cities of Toledo, Seville and Córdoba proved the endurance of an economic world that resisted political boundaries – one in which metals played a central role.
In 1348 the Ordenamiento Real de Alcalá de Henares (Collection of Laws of Alcalá de Henares) was enacted by Alfonso XI (1311–1350). The Ordenamiento had repercussions for miners and metal traders as it explicitly stated for the first time that the mines belonged to the crown and that only the king could grant authorisation for working the mines of the kingdom. The Ordenamiento also established that royal permission to work the mines could last indefinitely. Law No. 3 of the Ordenamiento (Tit. XXVII Law III) established that part of the patrimony of the king was the right to grant mining concessions, for the welfare of the kingdom's lands, which was ultimately the welfare of the king. Because the monarchy was to provide for the happiness and well-being of its citizens, concessions for extraction of metals lasted indefinitely.Footnote 19Partida III, an older source from 1263, stated the following:
The revenues of ports, and the port duties (portazgos), which the merchants pay for the things which they export and import, and the rents of salt-works (salinas) or of fisheries, and of iron works (ferrerias), and of other metals, and the taxes and tribute (pechos y tributos) which individuals pay, belong to the emperors and kings; and all these things were tacitly granted (otorgadas) to them in order that they might have wherewith to maintain themselves with dignity in their expenditures; and wherewith to protect their lands and their kingdoms, and to carry on war against the enemies of the faith; and in order that they might exempt their people from paying to them heavy taxes, and from other grievous burthens.Footnote 20
The Ordenamiento recognised mining concessions that were common before its enactment which did not contradict the new juridical principle established in the Ordenamiento that mines were the dominium directe or sovereign dominion of kings. Rather, recognition of earlier mining grants demonstrated the continuity of the idea of sovereign ownership of the mines. For example, in 1297, King Fernando IV had granted the income of the mine of Sanlúcar de Barrameda (Cadiz, Andalusia) to Alfonso Pérez de Guzmán, to honour a military victory in Tarifa and in 1168, Alfonso VIII had granted half of the mercury mine of Chillón and Almadén to the Order of Calatrava, and, for reasons that are not entirely clear, the other half to Count Nuño, a donation which would initiate a long political battle over mining rights.Footnote 21
The need to attract miners to the mines was strongly manifested in the Ordenanzas de Bribiesca of 1387. Enacted by Juan I of Castile (1358–1390), the Ordenanzas granted the people of the kingdom liberty to discover, work, dig and exploit mines of gold, silver, mercury and any other metal located in any part of the territory of the kingdom of Castile.Footnote 22 The laws emphasised that the purpose of the concession was to alleviate the poor development of the ‘rich and abundant mines’ of the kingdom – a problem that was created, according to Carmen Ruigómez Gómez, by the conflicts among powerful landowners that skillful miners avoided at all cost.Footnote 23 This law relating to metals was considered in the Recopilación de Castilla (Compilation of the Laws of Castile) of the sixteenth century as the first Spanish mining law. The law established royal ownership of the mines and granted authorisation to all citizens of the kingdom to exploit metallic resources. In Recopilación it was stated:
All said persons … shall be at liberty to search for and examine (catar), and dig in their said lands and inheritances, the said Mines of gold and silver, and quicksilver and tin, and stones and other metals, and that they may also search and excavate in all other places whatsoever, not causing injury to one another in their search and excavations, and doing so with the permission of the owner; and all that shall be found and taken out from the said Mines shall be divided as follows: First, that there shall be delivered and paid therefrom to the person who has taken out the mineral, all the expenses which may be incurred in excavating and extracting it; and of that which may remain after deducting said expenses, the third part shall belong to the person who has taken it out, and the other two-thirds to ourself.Footnote 24
Thus, under this new law after expenses were reimbursed to the miner, the latter received one-third of the minerals he had extracted and the sovereign took two-thirds. This higher rate of taxation, compared to the tenth that the crown had received previously, appeared at a unique time in the history of mining in Spain. In the first place, it came at the close of the great period of Christian colonisation of Muslim lands of the thirteenth century. Over previous centuries of expansions many Christian kings had had to borrow money to put armies together. By the thirteenth century, their debts forced them to negotiate credit and look for new sources of revenue, so concessions of land and estates, increasing trade privileges and freedom for cities, and monetary reforms became common in many kingdoms.Footnote 25 The concessions of land and estates to the nobility of Aragón by King Jaime I of Aragón which began in 1233 included concessions to powerful Jewish moneylenders, and aimed to pay off the debts incurred in military campaigns.Footnote 26 For example, the cities under the jurisdiction of the crown of Aragón started to sell pensions (known as censales in the case of annuities and violarios in the case of perpetual pensions) very early in the first decade of the thirteenth century in order to finance the Reconquista. The pensions were ‘guaranteed’ by the Jewish and Moorish communities, or aljamas. The accumulated wealth of important personages in the Islamic and Jewish communities was offered as a ‘security’ for attracting much-needed capital to the court of Aragón.Footnote 27 In this way the burden of the ‘two-thirds’ tax could be placed upon powerful merchant houses with trade operations in Valencia, an exit port for Iberian metals.
In the territories under the jurisdiction of the crown of Castile, the law awarding two-thirds of extracted minerals to the crown coincided with the ‘diminishing importance of opportunities for frontier expansion’.Footnote 28 The mining region shaped by Roman colonisation, redrawn by Islam and re-conquered by Catholic kings, needed new economic impetus. Even for powerful mine owners, such as ecclesiastical military orders managing mines in certain frontier posts, the general climate of economic loss called for reconsideration of mining law and practice. The Order of Calatrava, an ecclesiastical military order founded in 1158 by King Sancho III of Castile, after consolidating ownership of mining rights for the mines of Chillón and Almadén (Spain) started to lease mining production to Catalan and Genoese merchants throughout the fourteenth century.Footnote 29
The higher mineral taxation stipulated in the Ordenanzas also coincided with the ‘economic depression of the Renaissance’.Footnote 30 The fourteenth century began with demographic change, triggered by climatic deterioration, famines, and waves of bubonic plague that affected the populations of the Castilian territories, amongst others. Some Christian kingdoms attempted to improve the state of mining in their territories by importing scientific and technical experts from the Germanic lands. The fascinating work of Serrano Larráyoz on the diet of the peasantry in the fourteenth century reveals the ‘noble’, i.e. expensive, dietary habits of foreign German miners in the later years of the fourteenth century in the kingdom of Navarre. In 1392 the king of Navarre, Charles III, invited the ‘German masters’, known by their Latinised names as Johannes de Pruza (Johann of Prussia) and Ulrich el Viejo (Ulrich the Old), to Pamplona, today the capital city of Navarre, to improve prospecting and exploration activities in the mines of the territory. They were further commissioned to investigate the commercial prospects of the mines of Labayen, Lesaca, Vera de Bidasoa, Berroeta, Santesteban, Velate and Lanz, located close to Pamplona. They were, according to many accounts, very well remunerated.Footnote 31
Could the legal mandate for the two-thirds tax co-exist alongside the privilege of tax exemption? If the evidence from the history of the mines managed by the Order of Calatrava speaks of a general pattern, the answer to the question is ‘yes’. During the thirteenth and fourteenth century the Order was frequently awarded generous tax exemptions which allowed continuity in its mining activities. Tax exemptions provided an incentive for it to keep its mercury mine in operation, and showed the lobbying power of owners of this type of exemption. Yet ownership of a mining grant was no guarantee of fortune, nor did it come without controversy, as revealed in the records of cases that have survived concerning settlements of disputes over mining rights. The case of a Muslim widow living in Daroca, a territory ruled by Aragón, illustrates that an initial intervention by royal authorities in favour of the lessee could turn eventually against the latter.Footnote 32 Xemçi de Taher claimed to own a monopoly for the trade of iron in the vicinity of Daroca. This right had been confirmed by King Jaime II on 15 June 1311, in exchange for an annual taxation sum of one gold maravedí.Footnote 33 The maravedí was a gold-based currency borrowed from Islamic Andalusia, and became the money of account of Castile. Its value in Castile during the twelfth century ranged from 53 to 61.5 grains of fine gold, and the general gross weight of the coin was approximately 4 grams. Its debasement in the thirteenth century made it equivalent to 14 grains of fine gold, or 8 4/10 dineros (silver denarius which contained 20 grains of silver). In 1311, after discovering that there were metal traders conducting their businesses in violation of her monopoly, Xemçi took the case to the royal authorities. The king's representative, Esteban de Roda, decided the case in her favour confirming her iron trade monopoly against the competitor, Ibrahim Çelem. Unfortunately for Xemçi, Ibrahim, also known as Çelem del Ferrero, continued in the metal trade business and brought a second case over monopoly rights in 1314. A new inspector was sent from Valencia after the king received a generous offer by Ibrahim to double the taxation that Xemçi was paying to hold trade monopoly rights. The case ended when six witnesses testified to an old family business of Ibrahim which preceded the grant given to Xemçi in 1311. As María del Carmen García Herrero shows, his nickname, del Ferrero, indicates membership of a group of iron metal traders, but it is unclear how Ibrahim was able to negotiate with the king.Footnote 34
With the discovery of the New World, mining rights evolved so as to regard capital as the most important requirement for the granting of mining concessions. This evolution brought with it problems for the Castilian crown and eventually facilitated the legal triumph of the metal industrialists over the legacies of past feudalism. This train of events is discussed in the following section.
4. MINING RIGHTS AND THE DISCOVERY OF THE NEW WORLD
When the Castilian crown was confronted with the discovery of the New World in 1492, the legal principles of sovereign patrimony of the mines and taxation were firmly in place. New mining concessions and rights were quick to follow. The oldest Castilian mining concession for Hispanic America was contained in the capitulaciones. Capitulaciones were, in general, grants and concessions to individuals and expeditions participating in the discovery, conquest, pacification and population of territories over which the crown retained the power of taxation. This type of grant had appeared earlier in the fifteenth century when the Queen of Castile granted capitulaciones to expeditions to Africa, in an attempt to compete with the increasing maritime expansion of the Portuguese crown. However, this type of capitulación did not grant mining concessions, but seigniorial rights in African territories to be brought under Castile's Christian jurisdiction. It was in the capitulaciones granted to Genovese navigator Christopher Columbus between 1492 and 1506 where the Castilian principle of mining rights were introduced as part of the early laws of the Spanish American colonies.
The oldest capitulación granted to a ‘citizen’ of the kingdom of Castile appeared in 1499. It was granted to Vicente Yáñez Pinzón in an effort to pacify the island of La Hispaniola (modern-day Dominican Republic and Haiti).Footnote 35 Pinzón was a former captain of one of Columbus' caravels, La Niña, in 1492. Rafael Diego Fernández Sotelo mentions two previous capitulaciones for which, unfortunately, there is no historical record.Footnote 36 The work by María del Refugio González Domínguez offers rich detail about these grants as they were granted to conquistadors after the discovery of what today is Mexico. Another capitulación appeared in 1501, again to Yáñez Pinzón. He was granted the sesma (one-sixth) of any gold, silver, and copper mines to be discovered, and the crown would keep cinco sesmas (five-sixths).Footnote 37 For the mines of New Mexico, the first capitulación in 1518 was granted to Diego Velázquez in 1518 for the discovery and conquest of Yucatán and Cozumel. Emperor Charles V granted a similar capitulación in 1522 to Hernán Cortés, after the conquest of the Aztec capital. This type of capitulaciones granted to individual conquistadors coexisted with a capitulación granted to expeditions. Of all the riches found by an expedition, one-fifth ‘went to the royal treasury, another divided among the leaders of the expedition, and three-fifths were distributed proportionally among the rank and file’.Footnote 38
This type of mining concession suffered rapid modifications during the first decades of the sixteenth century, because of the need to have greater control over the riches of the New World on the part of the Castilian crown. After the publication of Martin Waldseemüller's world map entitled Universalis Cosmographia in 1507 there was a better understanding of the extent of the lands discovered by Columbus and known as Indias Occidentales.Footnote 39Capitulaciones continued to be granted to other conquistadors. In 1523 one was granted to Lucas Vázquez de Ayllón for the discovery of Florida, and, like Diego Velázquez in 1518, Francisco de Montejo was granted one for the discovery and conquest of Yucatán and Cozumel in 1526. In 1528 Cortés once again received a capitulación, this time for the discovery and conquest of certain islands in the Mar del Sur de la Nueva España (Pacific Ocean). Pedro de Alvarado was granted a similar capitulación in 1532. As late as 1579, Don Luis De Carvajal, the Older, a conquistador of Jewish origins, received a similar grant for the discovery and population of lands in the province of Pánuco extending north and west of the mouth of the Pánuco River (Tamaulipas, Mexico) to New Galicia (North West Mexico).Footnote 40 One of the latest capitulaciones was granted to Pedro Ponce De León in 1596, for the discovery, pacification and population of lands in New Mexico. Those receiving such grants had to pay a stipulated taxation tribute: one-tenth of all the metals extracted for two years after the discovery of a mine, one-ninth of the extracted metals for the third year, one-eighth for the fourth year, and so on in progressive stages until finally a one-fifth tax was reached.Footnote 41
Another type of mining right was contained in the asiento de minas. This was a contract by which the crown leased mining rights for a particular mine, in exchange for metals and taxation. This legal contract had been in place in Castile prior to the discovery of the New World. In 1484, an asiento was granted to Pedro de Medina, Álvaro de Villafuerte and Sancho Hernani for exploiting the mines of the northern Spanish provinces of Biscay, Alava and Guipúzcoa, with ample rights and exemption from taxes.Footnote 42 In 1426, an asiento for fifteen years was granted to Doña Elvira de Villodre, for all the mines located in the territory of Alcaraz (Murcia), for which she was to deliver to Castile's royal treasury one-tenth of all metals extracted from the mines. The fact that, as Tacón Mastilla shows, Gonzalo Díaz Bustamante was granted an asiento for the same mines around the same period indicates that mining rights could be divided among several lessees.Footnote 43 Division of rights was an old legal practice that allowed the crown to exploit metals more efficiently by attracting diverse merchant houses to the task, and thus potentially increasing the crown's businesses.
Asientos called for fixed investments and concentration of merchant capital in the mines. Seen through the eyes of a merchant, the asiento was a lease or contract of mining rights for a particular mine or mines, granted by the Spanish crown for a definite period of time. From the perspective of the crown, it was a short-term loan that provided cash or credit to the royal treasury. The asiento granted to merchant Alonso Gutiérrez in 1488 for the mercury mines of Almadén is a case in point. The lease stated the following:
Gutiérrez will have the exclusive right to production of any amount of azogue (mercury), vermillion, stone and jet-black stone, in Almadén as well as in any other of our territories and seigniorage. Azogue and the rest of the products from the mines can be transported via land and sea wherever he wishes to transport it … Gutiérrez will not pay the alcabala (a percentage tax on sales and exchanges of merchandise) nor the tenth over the ores, pans and wood that he takes for production in the mines, nor over any other material needed for production in the mines. He will have the right to cut wood from the lands of the Order of Calatrava for production in the mines. The azogue and vermillion transported to the kingdom of Aragón, Seville or any other part will be exempted from payment of portazgo, roda, almojarifazgo. Items taken to the mine will enjoy the same exemption … exemption of pechos and tributes are granted to Alonso Gutiérrez … (author's translation).Footnote 44
The portazgo was a tax levied upon goods and animals passing through town gates. The roda was a local tax levied to maintain the mounted night watchmen (ronda) around the outskirts of the towns. The almojarifazgo was a port fee. Pechos were royal taxes levied on herds using the pasturelands that belonged to the crown demesne. In the early years of colonisation, asientos proliferated as a legal instrument that facilitated the organisation of the conquered territories. Asientos came with other privileges for securing native labour for the mines. For example, from the 1530s until the 1550s, asientos de minas transformed the landscape of the silver- and gold-mining regions of Mexico, because the asientos were granted with Indian slaves (Indians legally enslaved as booty of warfare).Footnote 45 It should be mentioned that in New Mexico and New Spain the viceroys, the Lugar-Tenientes of the Catholic monarchs in the colonies of the New World and the supreme authority, representing the interests of the Spanish monarchs, were instructed to have consideration (known in the law as favores) for miners working in their territories because if mining production fell, it would bring down all the other ventures of the crown.Footnote 46
The crown made the one-fifth tax the standard policy for the Hispanic American territories. On 5 February 1504, the Royal Decree of Medina del Campo established the right to work mines yielding gold, silver, iron, lead, mercury and any other metal, on payment of one-fifth of the minerals extracted to the crown of Castile, without deduction of expenses.Footnote 47 However, no other legal precept was destined to suffer more changes and modifications over the course of the sixteenth century than that of the ‘one-fifth’ tax. It was confirmed in a Royal Decree of 1533 in Zaragoza (Castile) although its application was amended in 1548, after a critical production phase in the silver mines of Mexico.Footnote 48 For a period of 7 years, from 1548 to 1554, only one-tenth of the extraction value of silver from Mexican mines had to be paid as tax, rather than the one-fifth that was applied to all other metals and minerals.
The one-fifth tax suffered changes based on discretionary amendments by the Emperor Charles V, after he assumed control of the finances of Castile in 1516. In 1522, a 1½ percent tax for smelting, minting and seignorage (a duty belonging to the King levied on the coining of money) was introduced in Hispanic America, along with the ‘right of cobos’.Footnote 49 The ‘right of cobos’ (known as derecho de cobos) was a 1½ percent tax applied to all unrefined silver produced in Hispanic America. It appeared in 1519, as a grant made in favour of Los Cobos, the secretary of Emperor Charles V, who later, in 1522, secured the rights to have his own agents in Mexico. Los Cobos built a network of agents, something not difficult to do as the personal Secretary to Charles V, to collect his tax in the Spanish colonies of the Americas. Pedro Almíndez Chirino was appointed in Seville (Spain) in October 1522 as a factor or agent of Los Cobos in charge of collecting ‘the rights of the cobos’.Footnote 50 Almíndez Chirino collected the tax by collecting tribute in gold from the Indian natives of Guaxaca (modern-day Oaxaca, in southern Mexico), as the Spanish conquistadors were allowed to do. This grant followed an earlier grant over mining rights in Vera (Almería, Spain), which Los Cobos had received in 1512 from King Philip II of Spain, as well as other tax-collecting privileges from cattle and fishing communities in Granada and Málaga (Spain), and tax exemption on the imports of 50 slaves to the Indies in 1518.Footnote 51 A century later, this tax was reduced to 1 percent, to be collected by the Royal Treasury.Footnote 52 The ‘right of cobos’ tax was collected in Mexico until the seventeenth century and in Peru until the eighteenth century, although there were periods of time when the tax was not collected.Footnote 53 Also, the one-fifth tax changed because of changes in the techniques for mercury amalgamation. In 1584, a tax of one-fifth of any extracted silver, and one-quarter of extracted gold, became the law.Footnote 54 In 1611, King Philip III reduced the one-fifth tax to one-tenth.Footnote 55
These changes in mineral taxation had to contend with the problem of tax evasion. The crown imposed penalties and fines against the smuggling of metals. A royal ordinance dated 18 January 1538 prohibited the transport of silver and gold on which the one-fifth tax had not been paid between the islands and provinces of the Indies.Footnote 56 In 1543, another ordinance required the stamp of carats on gold and silver ingots for their export to Seville.Footnote 57 In 1550, a royal prohibition was instituted on the possession of gold dust, gold nuggets, or silver, received as tributes from the Indian natives which were without the royal mark to show that the one-fifth tax had been paid.Footnote 58 Further laws specified penalties for taking ore from the washing-places of private mines, the closing of mines during litigation, smelting ores without a license, the trading in unstamped silver and gold and holding illegal mine shares, among others.
The power granted to viceroys for the enacting of mining ordinances, which became part of the derecho novohispano or the New Hispanic Law, did not alter the legal precepts of sovereign patrimony of the mines and the one-fifth tax. Antonio de Mendoza, the first viceroy of New Spain during 1535–1550, promulgated mining codes in 1536, 1539, 1543, 1548 and 1550. The first codes aimed to improve the recovery of silver from extracted ores. The 1550 ordinances aimed to improve the legal regime under which mines were registered. The ordinances established the territorial jurisdictions of neighbouring mines, specific time periods for the registration of mine claims, the processes for revoking mining licenses in the case of abandoned mines, and, above all, placed prohibition on the mayors so they could not exploit mines located in their jurisdictions. Mayors were the head of the government in the administrative jurisdictions known as alcaldía mayor, divisions of the viceroyalties. Mayors were in charge of organising and registering Indian native populations for the systems of tribute, as well as performing administrative and ecclesiastical functions.Footnote 59
Luis de Velazco, who became Viceroy of New Spain in 1550, expanded the ordinances established by De Mendoza to mercury mines in a new mining code of 1555. Francisco de Toledo, viceroy of Peru from 1569 to 1582, introduced new provisions for the Indian labour in the mines, particularly for the organisation of the mita, the tambo and coca cultivation. The mita and the tambos were part of a system of forced draft labour that the Spaniards borrowed directly from the Incas. As designed by Toledo, the mita ‘required all able-bodied Indian males subjected to the mita to work for a six-month period, one year in every seven, in the Potosí silver mines or the Huancavelica mercury mines’.Footnote 60 Those refusing to serve were imprisoned, fined or physically punished. The tambos were the lodging sites of the Inca mita system, part of the system of transportation and communication that the payment of tribute to the Inca emperor required. These lodging sites were located at regular distances and functioned as inns and food suppliers for the Native Americans who had to travel to the mita. The religious and political meaning of coca made it an important part of the Inca's agrarian system.Footnote 61 The Spaniards tried to monopolise some of the coca plantations, selling coca leaves in local markets and developing a local economy for what they called ‘Indian currency’.
De Toledo's mining ordinances were based on many previous mining laws – the Mining Code of 1563; the laws of 1536, 1539 and 1550 concerning Indian labour in the mines of New Spain and Chile; those of Vaca de Castro enacted for Peru in 1543; the laws enacted by Conde de Nieva in 1561 and 1562 for the mines of Potosí and Huamanga (northern Ayacucho, Peru), respectively; and the 1559 laws by Andrés Hurtado de Mendoza, the Marquis of Cañete, for the gold mines of Carabaya located in what today is the department of Puno in southern Peru. Toledo's ordinances were considered, in the sixteenth century, to be a new corpus of mineral jurisprudence. In 1574, a compendium of the ordinances was published in the Gazofilacio Real del Perú.Footnote 62
Back in Europe, the Spanish crown was increasingly in debt after 1535. Military campaigns in Italy, North Africa, Central Europe and the Netherlands proved to be expensive. They were financed by loans from German, Genoese and Castilian bankers, amongst others, bankers who were repaid with American silver. The many asientos signed by Emperor Charles V were to be paid in coins of silver or gold in the fairs of Castile, at the prevailing exchange rate of 375 maravedíes per ducat (the gold currency used for international transactions). This condition meant that coined silver was needed in order to keep the creditors satisfied. Another type of payment, the libranzas, was also tied to the American metals arriving at the Royal Treasury (Casa de Contratación) of Castile, located in Seville.Footnote 63 The libranza was a receipt on behalf of metal buyers signed by the accountant of the Royal Treasury. It stipulated the amount of metals as coined silver or gold sold to the buyer by the Treasury.Footnote 64 According to the ordinances of the Treasury (enacted in 1503, 1510, 1539, 1552), as soon as metals arrived from the ports of America in bars, they were registered at the Treasury, and sent to the Mint (Casa de la Moneda) for coinage. Then, silver coins were returned to the Treasury for the accountants to start business transactions with buyers. The Treasury rarely followed its own rules, however, selling the metal while the silver bars were still en route to the Mint, by granting libranzas, receipts to be redeemed with the coined metals (maravedíes). This system was illegal and open to fraud. Owners of libranzas rarely waited for silver to be coined, and immediately claimed their metals as soon as they made the payment to the accountant of the Treasury. On other occasions, libranzas were deposited in bank accounts to be redeemed at favourable market conditions. The advantage to the Treasury was to collect immediately high amounts of ready cash from the buyers. Naturally, Treasury accountants became very powerful bureaucrats in the world of metal finance.
This financial situation triggered an increasing demand for silver and greater control of mining on the part of the Spanish crown. Spanish mineral laws were concerned with attracting capital and technology to the mines of the colonies, particularly after the discovery of the great silver deposits of Potosí (Peru) in 1545.Footnote 65 New laws were written to encourage the concentration of capital in the mines. The mining laws of 1559 and 1563, as well as the ordinances of 1584, illustrate this point. The royal ordinance of 1559 incorporated the kingdom's gold, silver and mercury mines into the royal patrimony, but with a new legal precept: the royal prerogative to reclaim those mining grants which had been made to private persons where the mines were not in operation. The 1559 ordinance took the law of Juan I of Castile, mentioned earlier, and pushed it forward by placing conditions on mining grants regarding the possession of capital for investment in the mines. It stated the following:
That the said Mines shall and may henceforth (without any other act of seizing and possession) belong to our said crown and patrimony … It is our will to recompense and satisfy the noblemen and persons to whom the said grants, which we thus revoke, have been made … It is our intention and will that our subjects and citizens shall participate, and have a part in said Mines, and engage in the discovery and working of them … we give permission and authority to our said subjects and native citizens, that they may freely, without our license, or the license of anyone else, examine, search for, and dig the said Mines of gold and silver, in all parts whatever of royal lands, or lands of lordships, or of the church, or of any others, as well in public, municipal and common lands, as in the inheritances and estates of individuals, paying to the owners the damage … and construct in them all the machinery, works and operations (diligencias) which may be necessary, without these being by us or by any other person in our name, occupied, embarrassed, or impeded, and without any person being at liberty to enter, in order to dig, or search, or work, or reduce within the limits and bounds of the Mine, the said discoverer observing what, in this our provision, shall hereafter be stated and ordained; by which it is to be understood, that they shall be at liberty to make, examine and discover said Mines in said parts and places, except in the Mines of Guadalcanal, and one league around them, and in the Mines which are discovered within the limits of Cazalla, and Aracena, and Galaroca, and a quarter of a league around each of them.Footnote 66
The liberty to mine granted to ‘subjects and citizens’ meant that Spaniards and Indians in Hispanic America could mine ‘freely’ in the territories of the New World. The 1559 law also established a new provision in mineral taxation such that a miner who received ‘after deduction of expenses, of his third part, one hundred thousand ducats, while he may enjoy the said Mine, shall thereafter have only the fourth part’.Footnote 67 The law further established that the miner would receive only one-fifth part, if an additional one hundred thousand ducats were gained from his ‘fourth part’.
Was the reclamation of the mines included in the 1559 law a punitive feudal imposition by the crown? The law appeared at a time when the finances of the Spanish empire had reached a most delicate situation. European demographic expansion had started in the second half of the sixteenth century, fuelling an increased demand for silver.Footnote 68 However, this brought with it a tendency in the territories of the Spanish empire for the price of commodities to increase.Footnote 69 Such inflation had the immediate effect of lowering the purchasing power of silver. Bankers therefore raised interest rates to protect their assets, applying pressure on the king of Spain to revive and secure a boom in metal industries such as that enjoyed in the early decades of the sixteenth century.
The royal ordinance of 1563 enacted by King Philip II of Spain invited foreign entrepreneurs to bring capital to the mines, but this time with a new tax policy:
In order to confer a benefit and favor upon our subjects and natives, and upon all other persons whomsoever, even though they be aliens to these our kingdoms … So that impediments and difficulties may cease, and the rewards and advantages may be effectually secured, and many persons of wealth and capital may assist such discovery, working and reduction of Mines, by means of whose diligence and labor God may be pleased to make known the riches and wealth which are hid and buried in the earth … If the metals shall yield at the rate of a mark per quintal of lead-silver, or under, they shall pay to us the eighth part of the silver … without any deduction for expenses … In Mines which yield more than a mark per quintal of lead-silver, and up to three marks, there shall be paid to us the fourth part of the silver which is extracted, without deducting expenses … In Mines which yield more than three marks per quintal of lead-silver, and up to six marks, there shall be paid to us the third part of the silver which is extracted, without deducting expenses … In Mines which yield more than six marks per quintal of lead-silver … there shall be paid to us the half of the silver which is extracted …Footnote 70
The new taxes applicable to the extracted metals reveal the desperate fiscal situation of the Spanish crown. Another royal ordinance of 1584 tried to create an incentive for the deployment of technology in the mines. Article 52 of the ordinances of 1584 granted liberties to owners of mines who invested in furnaces. It reads as follows:
We ordain and command, that, in any parts or places whatsoever, wherein Mines have been or may hereafter be discovered, the owners thereof shall be at liberty to make, and may construct establishments (Asientos), houses, smelting works, different kinds of furnaces (Hornos, Buitrones, Fuslines), and all other things necessary for the working, reduction, smelting and refining of said Mines and ores, where, how, and in such form and manner as they may think proper … And if, for the better smelting and refining of the ores, the owners of the Mines or any of them should wish to make their establishments and smelting furnaces and refineries, in places where there are rivers or creeks, for the purpose of working the bellows with water, they shall be at liberty to do so, and to use freely, for that purpose, the said rivers and creeks.Footnote 71
These ordinances established a new system of accounting for metal refining and processing in the mines. The crown would appoint a specific number of refiners, a ‘trusty’ person (fiel) to weigh the lead-silver brought for refining and a notary (escribano) to each refining house in the mines, in addition to an administrator. Book entries recording ores recovered were mandatory. The notary had to certify the parcels of lead-silver to be delivered to the refiners, and the administrator had to keep a separate book for the same purpose. The books
… shall have each an alphabetical index, with a separate account for each of the persons who shall bring such lead-silver to be refined … the Trusty shall note the weights of said ingots and they shall be delivered to the said refiner; and in said book shall be entered the day, month and year, the weight and number of ingots, the persons who brought them to be refined, and their stamp, and the Mine or Mines from which they came, and the refiner to whom they are delivered …Footnote 72
The same law applied to persons bringing silver to the refining houses to be worked and reduced with quicksilver.
Granting liberty to entrepreneurs for the production of silver was an essential legal condition for the development of the credit and financial markets of the Spanish crown. The work of Álvarez Nogal shows that in the credit transactions that took place after 1627 with foreign bankers, the only form of payment accepted was precious metals.Footnote 73 The need for silver, the foreign ownership of asientos for the production of mercury, and the legal freedoms granted to mining entrepreneurs formed a self-perpetuating system.
Economic problems continued to deplete the finances of the Spanish crown towards the end of the sixteenth century. Approximately one-third of the output of the American silver mines after the 1570s was absorbed by the Asia-Pacific region through the trade of the Manila galleon.Footnote 74 By 1607, the crown had accumulated a debt of 23 million ducats, at a time when the international climate was changing to the detriment of the Spanish crown. The circulation of American silver in the European capital markets was decreasing rapidly. There were several factors accounting for this, but one of the most evident was the problem of piracy by the English and Dutch ‘adversaries’ of the Spanish empire.Footnote 75 American silver was also being increasingly committed to finance Spanish wars in Catalonia and Holland.
The mining laws of the seventeenth century brought with them an emphasis on the governance of Reales de Minas.Footnote 76 They dealt with the organisation of transportation networks for distributing provisions to the mines,Footnote 77 including goods from native Indian muleteers and from public stores; the licensing of the extraction of pearls, precious and semi-precious stones; labour relations among Spaniards, native Indians, racially mixed populations and people of African origins in the mines; the royal monopoly of salt-works; and the trade in mercury in the mines of New Spain.Footnote 78 Laws also regulated the physical dimensions of mining claims. However, none of the legal provisions could contain or prevent the collapse of mining investments and metal production which were vital for the financial life of the Spanish empire.
5. THE EXERCISE OF SOVEREIGNTY OVER THE MINES: ANTAGONISM TO FEUDALISM
The sovereign patrimony of the mines put mining in an antagonistic relationship with feudalism. First, mining rights privileged the economic needs of the sovereign over those of traditional feudal aristocracies and landlordships. This was not an expected outcome of a feudal society. Rather, it was the imposition of a sovereign will in the context of fragmented jurisdictions created by the drive to expand the Christian frontier. In Castile feudal aristocracies were not the ultimate source from which mining grants emanated, as they did in many Germanic lands in the twelfth and thirteenth centuries.Footnote 79 In Castile feudal rulers in mining territories were subordinated to a new group of economic agents in charge of building metallic wealth, embodied in the merchant. Revenues and incomes in the form of metals were not tied to feudal relations, but to the realm of merchant capital – a realm that proved to have been global in scope. Merchant capital in mining was not constrained by the system of enfeoffment and its concomitant obligations which governed other extractive economies in feudal society.Footnote 80
Second, the Castilian crown rapidly learned that ‘metallic wealth is not created by improvisations’, in the words of Rodríguez Carracido.Footnote 81 In the late medieval period, mining required capital. It also required experience in the processing and recovery of ores, metallurgical experimentation, the on-site management of operations, the administration of civil law in mining regions, the transport and trade of metal outputs, accounting, and even social capital for negotiations with royal and Mint bureaucracies, among others. If the thirteenth century had placed Iberian metals, metallurgy and minting operations in the wider global economy, in the following centuries capital had to be provided to the mines in order to bring in the technological and engineering capacity to build shafts and galleys, machines for water removal, and to putting horse power in place – all of which were costly operations.Footnote 82 Mining grants attracted this type of capital.Footnote 83 For the Castilian crown, facing territorial expansion and military occupation in frontier lands, the comparative advantages of such capital were not to be ignored. The sovereign crown sought to minimise the repetition of historical mistakes and the costs of mining operations elsewhere. This aspiration is nowhere expressed with more vigor than in the law. The invitation to the German assaying masters to the mines of Pamplona and the mining leases to merchants for the mines of Almadén show the willingness of the sovereign to absorb and exploit the skills and experience of miners from abroad.
Third, the sovereign, even though in charge of mining laws, taxation, concessions and privileges, could not contain the economic growth of mining. Metals from the Iberian Peninsula found their way, through the cities of Valencia, Cataluña, Mallorca, Cádiz, Seville and the Basque country, to Central Europe, the Mediterranean, the Far East and Asia.Footnote 84 The economic ‘surplus’ created by mining also slowly escaped the sphere of royal taxation. Increasingly after the fifteenth century the capacity of the crown to absorb such surplus was impaired by the economic power of the mining financiers. Leases of mining rights had granted monopolies of metal production and trade to merchants. Merchants pushed for a decisive break from feudalism in mining by transforming metals into interest-bearing capital. Covered by the law, merchants started to secure metal delivery contracts and charge interest for deliveries to the Royal Treasury. The case of the metal business run by the Fugger family illustrates the vigour and complexity of this strategy. After monopolising mercury deliveries to the crown from 1524 to 1645, these bankers generated surpluses by advancing metal deliveries years ahead of the stipulated contract, forcing the crown to accumulate interest charges and renew the lease.Footnote 85
Finally, the principle of sovereignty in laws relating to metals embraced an ideal view of the merchant for which the world of feudalism was too small. Canonical and theological debates about ‘natural law’ deserve a brief mention here, particularly during their most splendid moments in the thirteenth century. Natural law meant an understanding ‘that nature worked like a machine, with all its parts driven by the same end’.Footnote 86 A leading theologian of the period, Thomas Aquinas, saw in natural law the root of human reasoning and the acknowledgement of man's right to possess goods. This right was in perfect harmony with the view that ‘God had the dominium principale (preeminent dominion) over goods’.Footnote 87 In Aquinas's interpretation, dominium, or the right to property, was natural and inherent to all human beings. This view also prompted an ethical inquiry about the position of the merchant in society. Aquinas, Albert the Great and others insisted on the essential utility, as Werner Stark puts it, of merchants to society.
Did mining laws have a similar political relationship to feudalism in other parts of Europe? Germanic lands saw the emergence of mining codes such as the Charter of Trent (1185), the Charter of Goslar (1219–1350), the Mining Law of Iglau (1249–1300), the Kuttenberger regulations (1300), the Law of Freiberg (1296–1400), the mining codes of Maximilian I of Austria and the Saxon codes that prevailed until the late sixteenth century.Footnote 88 They remain as legal testimony to the concentration of merchant capital in mines that became the key feature of these lands. The first three decades of the fourteenth century had seen the depletion of mineral resources in most important mining centers, in particular in Bohemia, Hungary, Saxony, Harz, Alsace and Devon. Even in the fifteenth century, after two centuries of technological experimentation at many sites, mining was still coping with problems of infrastructure and capital investment. Problems of flooding, in particular, were acute and the infrastructure of subterranean galleries had increased the costs of mining and metal recovery. In many regions, as Vázquez de Prada states, mining was dominated by the power of the medieval guilds.Footnote 89 Moreover, Eastern and Central European mining capital found new attractive opportunities in Castilian territory – the internal and external expansion of the Castilian crown proved to be a powerful force to attract this capital. In Eastern Europe the situation of mining during the late medieval period was different. Mining became dependent upon a ‘renewed serfdom’. In Poland, Hungary and Bohemia, major grain-producing regions of Eastern Europe, the development of mining was accompanied in the fifteenth century by an ‘erosion of peasant liberties’.Footnote 90 Affected by the rise of agrarian prices, which had a wide impact in the economy of the Eastern Europe territories, landlords imposed heavier labour-service obligations on their peasants. An ample supply of peasant labour, further facilitated by impositions curtailing the mobility of tenants, and a dramatic increase in customary exactions of money and in kind, ‘degraded the status of the peasant to that of a serf, a process codified by the laws of 1514 and 1521’.Footnote 91
Our argument has been that the law rationalised the liberation of the mining economy from the feudal constraints created by the complex process of colonisation of the Reconquista. However, was mining destined to be subject to more powerful constraints in the late sixteenth century? Was continuity of the principle of sovereign patrimony of the mines an obstacle to the development of mining? This inquiry necessarily confronts us with the limitations of the relationship between mining law and capital at the beginning of the age of mercantilism. Mercantilism is often understood as a set of trade policies based upon economic nationalism that established monopolies for overseas commodity exchanges. Historians have regarded mercantilism as an ideological apparatus that allowed the monopolisation of the resources of the New World.Footnote 92 The legal regime for mining did not, however, distill the concept of mercantilism in its purest form. Mining grants, put together by merchants engaged in trade and banking transactions in continental Europe, had sufficient economic power to either help a kingdom or to mire it in constant economic need. As mentioned earlier, merchants used mining grants to secure privileges and monopolies for metal production and trade. Holders of mining leases used financial instruments, such as interest charges, to increase their anticipated profits, thereby increasing the crown's debts. This way of doing business created a tension between those with economic power over the mines and the sovereign holding political control over the mining economy. This tension became more acute in the sixteenth century. Viceroy Martín Enríquez de Almanza, Viceroy of New Spain (1568–1580), may have been warning the crown about this tension, when he complained in 1572 that only rich merchants could buy the azogue (mercury) arriving at the mines in his jurisdiction.Footnote 93
From the perspective of the crown, mining rights were inexorably linked to other incomes and expenditures besides those of the mining economy. Asientos were negotiated with leases for other income of the crown, in particular the Maestrazgos.Footnote 94 The pressure of sustaining the credit circuits that connected the Spanish empire's finances to Genoa, Augsburg, Antwerp and other banking centers with American silver had shown the difficulties of exercising absolute power over the mining economy.Footnote 95 Peninsular and overseas mines became part of an economic world greater than that managed by the Spanish crown.Footnote 96 Already in 1559, friar Tomás De Mercado complained that desperate efforts to stop
… those foreigners who, with two thousand lies, strip the land of gold and silver and enrich their own lands. Meanwhile, it is very difficult to find gold and silver in Spain, the source and spring of crowns and shillings, and (yet) without exaggeration, if you go to the streets of Genoa, Rome, Antwerp, Venice and Naples you will see the bankers and exchangers, with as many piles of crowns and shillings minted in Seville, as you will see watermelons in San Salvador or the Arenal.Footnote 97
From the perspective of the mining financiers, laws governing the metal industry guaranteed freedom as long as they did not put pressure on commodity prices, particularly in the early decades of the 1500s.Footnote 98 However, as the work of Earl Jefferson Hamilton and others has shown, the laws could not guarantee a lack of pressure. The inflationary pressures on American silver from the mid-sixteenth to early seventeenth century had decisive consequences in other Spanish and continental European markets, stimulating trade and manufacturing and lowering interest rates in the financial centres of Europe. For the Fugger family, mining rights meant a defense of monopolies as the basis for generation of wealth, and as a symbol of hard work.Footnote 99 Merchant capital had organised production at the lowest stratum of the mining economy using slaves, forzados (men condemned to the galleys), and other forms of forced labour, yet, at the top-most level, merchant capital was transforming mining into a world of trade and banking.
6. CONCLUSIONS
Castilian mining laws show the enduring continuity of the principles of sovereign ownership of the mines and taxation. Justinian Institutes established mining rights to ‘private citizens’ and the payment of the one-tenth tax. They recorded the principle of sovereign patrimony of the mines that ruled the mining economy of Hispania during the Roman period. During the middle ages, sovereignty in the law survived almost without change until 1348, when the Ordenamiento Real introduced the idea of royal confirmation of mining rights. The law that ‘only the king could grant a mining right’, a legacy of the Siete Partidas, sought to unify the component territories and eradicate ‘feudal pluralism’ from a peninsula whose landscape was being shaped by the Reconquista. The idea of a mining right fulfilled the need of the sovereign crown to make the mines productive, by attracting miners to mining regions. As described earlier, the Ordenanzas of Bribiesca of 1387 were very clear on this point: they granted liberty to the people to work and exploit the mines in order to improve the dilapidated state of mining. After the fifteenth century, mining rights found their strongest expression in the asiento. The most important transformation of mining rights occurred in the sixteenth century, through laws that explicitly extended privileges to capital. The ordinances of 1563 and 1584 firmly put in place a call for merchants and bankers to use their capital, as well as mining and accounting techniques, to transform the mines into sources of mineral wealth.
The centuries-long evolution of mineral taxation started with the medieval survival from Roman law of the one-tenth tax, or ‘tithe’, followed by the two-thirds tax established at the Courts of Bribiesca, the one-tenth tax of the capitulaciones, and the one-fifth tax imposed in the New World at the beginning of the sixteenth century. Even when the crown legislated for exemptions from the one-fifth tax, such as for the mines of Mexico in 1522 and 1548, mineral taxation was an indispensable exercise of the sovereign patrimony of the mines that allowed the crown to absorb surplus metals. Several ordinances by the viceroys in Mexico and Peru added new laws that aimed at a more efficient tax collection and organisation of labour in the mines.
The history of the legal regime favouring mining rights is tied to the history of markets for metals. With the increasing globalisation of the metal trade in Europe in the thirteenth century, and the formation of capital markets, demands for metal from the sovereign power competed against the demands of merchants and bankers. Mining laws aspired to solve this problem by allowing the concentration of capital in the mines to increase production. However, this aspiration did not shield the sovereign from difficult times. The Spanish crown, particularly under King Philip II, accumulated an enormous debt with bankers managing the mines of Almadén, which involved a declaration of bankruptcy on the part of the Spanish crown in 1556. Problems for merchants and mining capital were not eradicated either.
Continuity of the Castilian legal regime of sovereign ownership raises important questions about the role of mining in the history of capitalism. The history of mining is the history of an economy endeavoring to separate the social relations of production from the question of land. Unlike agriculture and fishing, mining created very early in the middle ages a form of surplus that did not depend upon sovereign intervention in the rational management of the land, but upon how effective the sovereign power could be in clearing the way for capital to come to the land. This process entailed a fundamental intervention through the law, particularly at moments of expansion of capital markets. Capital markets very early in the fifteenth century relied upon a steady flow of bullion from the mines to minting and coinage houses and thence to merchant houses. Agricultural markets, centres of textile production, markets for cloth, the building of ships to transport commodities and expand trade: all these markets depended on the mines of the Iberian Peninsula, Central Europe, and later the Americas for a supply of silver, copper, gold and mercury – which were, after the sixteenth century, a form of capital.
By very early in the sixteenth century mining had taken on an industrial character that favoured increasing volumes of metal output, a technical and scientific approach to mining, and economic privileges for owners of mining rights and long-distance metal trade.
Several questions raised here await a richer and more agile interpretation of metallic jurisprudence by historians of law, taxation and mining. First, how did the earlier feudal mining rights take advantage of feudalism to impose a metallic jurisprudence privileging royal sovereign patrimony of the mines? How did they take advantage of the personal relationship between kings and cities, or kings and vassals in different parts of the medieval world? Did concessions to individuals slowly but firmly create an ideology about a supreme potestas? Second, how powerful was what Werner Sombart called ‘the greed of gold’, the ‘love of money’ in explaining the emergence of mining laws?Footnote 100 Finally, if mines required from very early on the intervention of merchant capital for production to take place, did mining allow for capitalist relations of accumulation to take place earlier than in any other form of extractive production? If so, when did they take place? What were the historical obstacles to such accumulation? A systematic exploration of these questions would allow us to better understand the history of the globalisation of mining and metal markets and the juridical and ideological structures that accompanied such a process.
Such questions require an engagement with the Marxist historiography on the origins of capitalism. We need to study again the inquiry about the transition from feudalism to capitalism to understand the role of mining in the transition. An important point of debate is the relationship between metal extraction, trade and markets, and the emergence of interest-bearing capital and profit. This point requires a deeper historical analysis of the emergence of mining economies in Europe, particularly in Central and Eastern Europe, and their linkages to powerful banking families in the fifteenth and sixteenth century. How did bankers promote certain mining laws and reforms for facilitating export and import of metals? What were the structures that allowed banking capital to impose certain legal conditions for production in the mines? We know, for example, that in Spain merchants and powerful mining guilds were able to impose legal conditions with respect to the transport of metals to minting houses and to the Royal Treasury. For example, the bankers managing the asientos of Almadén were not required during the first ten years of the lease to keep a book account of the amount of extracted ores; they were only required to register processed ores, and the amount of reclaimed metal. What seems an innocent legal technicality proved to be a useful weapon in the hands of bankers managing the asiento. Mining laws, with their insistence upon processed ores, the end product of mining, allowed for a crucial legal transformation in the understanding of extracted ores: the latter were to be viewed as interest-bearing capital.
Another point for further research is the inquiry about the territorial predicaments of ‘national economies’ and the economic world of mining. If the ultimate objective of mining, as delineated by the scholastic philosophies referred to, was to build metallic wealth, for which foreign capital and technology were needed, then we are confronted with a problem posed by the limitations of the law. Metal markets escaped the jurisdiction of the Spanish empire, partly because of the demand for metals from elsewhere, but also because mining laws prepared a political climate in which ‘private’ entrepreneurship could develop. When the sovereign power separated the right to work the mines from its royal patrimony, it slowly assumed the absolute legal dominion that allowed for the centralisation of ownership of mining concessions, and offered them to capital. The principle of sovereign patrimony may have unavoidably pushed the mines of the Spanish crown into a world outside the jurisdiction of the Spanish empire.
If, as Dennis Flynn and Arturo Giráldez argue, ‘the singular product most responsible for the birth of world trade was silver’, then the structures of production and accumulation of wealth in this metalFootnote 101 must be identified in order to study the long-term history of the juridical and ideological journey of mining from the feudal to the modern world. For the exploration of this journey, mining must be looked at as a centuries-long structure.
