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161 chapter ix y The Obligation to Pay the King, Our Lord, One-Fifth of the Gold Extracted from the Mines in Brazil This issue can be examined in two ways. That is, by that which pertains to the external laws issued in the laws and ordinances of the Kingdom of Portugal, or by that dealing with what is an internal right and what conscience dictates.9 Regarding the first way, these laws are outlined in the Ordenações10 of Portugal, book 2, title 26, paragraph 16, which is “Among the Royal privileges, included are furs and gold, silver, and any other metals.” In title 28 of the same book 2, it is specifically stated that when claims and grants are awarded, these do not apply to furs and mines. “In as much as” (as stated in the law) “in many of the grants made by us, and by our ancestors the kings, some very generous and widespread clauses are made. We declare that these grants and the clauses they contain were never intended to be granted to furriers and miners of any kind, except those where they are named and awarded in the grant. Regarding the awarding of these things, no claim or assertion to ownership can be made, since these royal rights have existed since the beginning of recorded time.” The king can therefore pay for and extract metals from the mines. The fruits of these are reserved for him. However, in recognition of the expenses that this requires and wishing to encourage his subjects to seek these mines and to allow them to share in the profits from these, the king agreed, as stated in title 34 of book 2 of the Ordenações, that “all the metals that are extracted, after being melted and purified, are subject to the tax of the royal fifth [quinto], regardless of all the costs.” In order to ensure that the said fifth was paid, the king ordered these metals melted into bars and stamped, and they could not be sold until the royal fifth was deducted. They could not be sold even outside the 162 Gold Mining Kingdom of Portugal, under the penalty of the loss of goods and ten years of exile to Brazil. This is stated in title 34, paragraph 5: “He who sells these metals before they have been stamped, or in their natural state before reaching the mint, will lose his goods and be exiled to Brazil for ten years.” Up to this point, this has all been from the Ordenação [legal text]. The authorities, which are specialists on this subject, both Portuguese as well as those from other nations, agree that mines are a royal right, because of the royal expenses on behalf of the national good. Because of this, they cannot be separated from the king. Among other Portuguese scholars, Pedro Barbosa, ad. L. Divortio, paragraph “Si vir ff. soluto matrimonio,” a n. 17 usque ad 21. Cabedo, second part, decision 55, “de venis metallor.” Pegas, ad Ord. Regni Port, book 2, title 28, note 24, as well as authors from other kingdoms who cite Lucas da Pena in particular, L. Quicumque desertum, column 2, post principium, Cod. De omni agro deserto, and Rebuffo, second volume, ad leges Galliae, title ut beneficia ante vacationem, article 1, glossa ult. Post medium, page 346. In addition to these, refer to Solorzano, de Indiar. Gubern, second volume, book 1, chapter 13, note 55, and book 5, chapter 1, note 19, as well as many others, who state that this is the custom of all peoples. “As to this case” (as stated in note 55),” the law of the Romans and later of all people consider metals that are excavated among the regalia and ordain that they properly pertain to the places of the supreme princes.”11 In this subject matter, it is a good idea also to pay attention to theologians . The first of these would be Father Molina in De Justit. & Jure, disp. 54, a man as knowledgeable about law as theology, especially Portuguese law. He says, “Normally, according to civil law, whether it be the common law12 or that of particular kingdoms, wherever veins of metals are discovered, they are rightly attributed to the prince or the republic to sustain public expenses and the burdens of the republic,” wherefore paragraph 16, title 26 of book 2, Ord. Lusitaniae Regni states: “Moreover concerning the royal right of furriers and gold and silver mines and any other...

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