1 E.g., “Long and narrow land,” “no race problem,” “an island,” “democratic traditions,” etc.

2 This apt phrase appears in Butland, G. J., Chile: An Outline of its Geography, Economics, and Politics (London: Royal Institute of International Affairs, 1951).Google Scholar

3 It can better be thought of as a great feudal estate owned by one person, the king.

4 Harriet, Fernando Campos, Historia Constitucional de Chile (Santiago: Editorial Jurídica de Chile, 1956), p. 71.Google Scholar The measurement of size often used was head of cattle rather than units of land.

5 This “deshonor de trabajo” is a tradition lasting up to the present time. Palma, Horacio Serrano in his book ¿Por qué somos pobres? (Santiago: Editorial Universitaria, 1958)Google Scholar says that the Chileans are the fusion of two warrior races, the Spanish and the Araucanians, who with constant warring never beat their words into plowshares. They became citizens, but not workers.

6 Cf. Arana, Barros, Historia jeneral de Chile (Santiago, 1884), I, 436.Google Scholar

7 Campos Harriet, p. 70. Part of the royal test for selection of the site was the complexion and health of the natives, and the sky's being clear and benign.

8 McBride, G. M., Chile: Land and Society (New York: American Geographical Society, 1936), p. 65.Google Scholar This is the classic study in the field.

9 Campos Harriet, p. 70.

10 Junta de Composición.

11 Jines de Lillo.

12 The great debate in the early days of empire was whether the Indians were animals or actually humans. The latter view, backed by the Church, won out and with this argument as to classification resolved decrees were issued to protect the Indians.

13 See Douglas-Irvine, Helen, “The Landholding System of Colonial Chile,” The Hispanic American Historical Review, Vol. VIII (November, 1928), pp. 486–488.Google Scholar

14 McBride, p. 47.

15 These are McBride's terms.

16 “Mayorazgo — in Spanish law, the right to the enjoyment of certain aggregate property, left with the condition thereon imposed that they are to pass in their integrity, perpetually, successively to the eldest son.” (Henry Campbell Black, Law Dictionary, fourth edition (St. Paul, Minnesota: West Publishing Co., 1951), p. 1131.)

17 Humphreys, R. A., Liberation in South America 1806-1827 (London: University of London, 1952), p. 66.Google Scholar

18 Shaw, P. V., The Early Constitutions of Chile 1810-1833 (New York: Chile Publishing Company, 1931).Google Scholar

19 Domingo Amunátegui Solar, Historia Social de Chile (Santiago: Editorial Nascimento, 1932), p. 312.Google ScholarPubMed “This move represented a reform of such transcendent significance as the abolition of encomiendas at the end of the 18th century. If the constituents of 1833 had foreseen the result, they would not have opened the road for such a measure.”

20 For this list see Campos Harriet, p. 76.

21 Hanke, Lewis, Modern Latin America: Continent in Ferment (New York: D Van Nostrand Co., 1959), Vol. II, p. 146.Google Scholar

22 Rodriguez, J. I. (ed.), American Constitutions (Washington: 1907), Vol. II.Google Scholar I have changed “comunidades” to communities rather than corporations, as this reference in the constitution was to confiscated religious communities whose rights were restored.

23 Peaslee, A. J. (ed.), Constitutions of Nations (Concord, N. H.: 1950), Vol. I, p. 414.Google Scholar The Spanish texts are the same except for two details in the first and second paragraphs of both documents; one can see here the difference in translation. “Writ of” is not found in the Spanish.

24 The minutes of all these meetings were published by the Ministry of the Interior under the title, Actas oficiales del proyecto de nueva constitución política (Santiago, 1925). Discussion of reference to this section of the Constitution is found at pp. 47, 82, 85-92, 94, 96, 98-100, 104-116, 118, 121-123, 125, 127, 128, 130, 131-136, 187, 188, 480-481, 517.

25 It is interesting to note that the first section of Article 10 of the Constitution reads, “In Chile there is no privileged class.” This was ridiculed by Sr. Guerra, who said it was clear as the noonday sun that there were two classes, that a landed oligarchy ran Chile. See the statements of Hidalgo in Actas oficiales del proyecto de nueva constitución política (hereinafter cited as Actas Oficiales), pp. 47, 106.

26 “Social function” (función social) can appear a meaningless combination of two broad words, but meaning has been poured into its general structure through constant use, writings, and reference. Public use carries with it a sense of necessity such as a road or water. “Social function” will take into account minority groups or the poverty-stricken. For example, dividing up one person's land into plots for 100 families is a social function; it tends toward the redistribution of wealth. Public use would not permit taking land for private use. The felt necessity that required this concept is explainable historically. President Carranza of Mexico used the same expression. For a good definition of social function see the Agrarian Reform Act of Venezuela, Chap. II, Sec. 1, 19, 5 March 1960, Gaceta Oficial, No. 611, Extraordinario, 19 March 1960, p. 1.

27 Actas Oficiales p. 87. Sr. Guerra stated that whether or not property has a social function is a play on words. All agreed it should be more subordinate than it was. The land should be subdivided.

28 Ibid., p. 101. Sr. Cárdenas.

29 Ibid., p. 127. Sr. Yáñez.

30 Ibid., p. 95. Sr. Guerra proposed the following, “The Congress will pass laws to facilitate the subdivision of real property, and uncultivated lands will bear the burden with special contributions.” This later became part of Section 10-14 of the Constitution, a much neglected part.

31 Actas Oficiales, supra, note 24.

32 During one of the later sessions, Sr. Silva Cortés, a conservative, in groping for a basic justification, said that property is the fruit of work; the origin of property is work. A better historian in the group, Sr. Hidalgo, reminded him how rights in land in Chile originated. Cf. Guerra, José Guillermo, La Constitución de 1925 (Santiago: Balcells & Co., 1929), p. 97 ff.Google Scholar, where he discusses natural law aspects in the concept of the Constitution's “insuring” to all rights that flow from the nature of man rather than from his juridical creations.

33 Actas Oficiales, pp. 108-120. Sr. Edwards Matte.

34 Guerra, p. 124.

35 See Código de procedimiento civil (Code of Civil Procedure), Título XVI, Libro V, Articles 1092-1102 (hereinafter cited as CPC).

36 Actas Oficiales, “Versión oficial de la conferencia dictada por S. E. el Presidente de la República, Don Arturo Alessandri,” 3 July 1925, p. 721. “However, this principle is very rigid for the contemporary epoch. Humanity has changed much in the matter of social relations between men and has come to establish that property has obligations to society which it must fulfill; that its origin and its end is society … Consequently we have yielded a tribute to modern evolution and have established the right of property, adjusting it to the reality of social evolution.”

37 Humberto Bianchi Valenzuela, “La Expropiación por causa de Utilidad Pública y su Procedimiento,” Revista de Derecho (Concepción), Año XXII, No. 89 (July-September, 1954), p. 264. See also Pedro Eduardo González García, Reformas religiosas, sociales, electorales, económicas y políticas de la Constitución del año 33 promulgadas el 18 de septiembre de 1925 (Santiago, 1927), tomo III, capítulo II, “Property before the Constitution of ‘33 and the Reforms of ‘25”.

38 See Código Civil (hereinafter cited as CC), Article 6.

39 See United States Corpus Juris Secundum (hereinafter cited as CJS) Vols. XXIX, XXX, “Eminent Domain”.

40 Arturo Alessandri Rodríguez, De los contratos, second edition, 1940, p. 261. A definition in a case on May 22, 1957 was, “The forced expropriation is an act of authority founded in the common good and pertains to the field of public law.” Revista de Derecho y Jurisprudencia, Tomo 54, p. 81 (hereinafter cited as RDJ).

41 CC, sec. 1437 (Contracts); sec. 1793 (Sales). Bianchi in his article supra n. 37, attributes the view that it is a contract of sale to A. Alessandri R., citing De la compraventa y déla promesa de venta. Cf., De los bienes in which he says it is not a sale as it is forced. A. Alessandri R., De los bienes, second edition (Santiago, 1940), p. 54.

42 A. Alessandri R., De los bienes, p. 53.

43 Bianchi Valenzuela, he. cit., p. 261. Cf., 41 RDJ 71 (section 2a) (Corte de Apelaciones de Santiago).

44 For a Chilean discussion of this civil law concept, see Alessandri, A. R., Curso de Derecho Civil, Ed. of H., Antonio Vodavic (Santiago: Editorial Nascimento, 1945).Google Scholar This concept does not appear in the Chilean Civil Code, but it is often used in the cases. The Code talks of Dominio which is the right to use, enjoy, and convey real property. See CC, Art. 582. Some commentators limit patrimonio to pecuniary value. When talking of expropriation, however, one is dealing with pecuniary value, so for our purposes either view is applicable.

45 Bianchi Valenzuela, loc. cit., p. 261.

46 Ibid., p. 267.

47 45 RDJ 304 whereby Art. 82, inciso 3rd, of Decree law 345, of the 20th of May, 1931, which authorized par bonds by an expropriating municipality, was held unconstitutional. See also 47 RDJ 331; 47 RDJ 485.

48 CJS, Vol. XXIX, “Eminent Domain”, Sec. 187, p. 1073-4.

49 E.g., International Bank for Reconstruction and Development and the Food and Agricultural Organization of the United Nations, The Agricultural Economy of Chile (December, 1952) (hereinafter cited as IBRD & FAO); Ministerio de Agricultura, La Agricultura Chilena (Santiago, 1957); Economic Research Institute of the University of Chile, Survey and Perspectives of Chile's Economic Development 1940- 1965 (Santiago, 1957) (mimeographed), etc.

50 See Gilbert J. Butland, “The Human Geography of South Chile,” The Institute of British Geographers, Pub. No. 24 (1957). This thorough study of the area describes subdivision as “the most controversial, economic, social and political problem of South Chile.” Both viewpoints of this issue are reviewed. Due to the nature of the land and the fact that these vast units are well run make this a separate problem not within the province of this paper.

51 Serrano Palma, p. 76.

52 According to the newspapers there was last year a 20% deficit, of $100,000,000. El Mercurio, December 17, 1961.

53 IBRD & FAO, p. 93.

54 Ibid., p. 94

55 IBRD & FAO, p. 96. These figures are from the 1935-1936 period on a province to province basis, but the conclusion of the group at the time (1952) was that this pattern persisted. William Benton says “21% of all irrigated land in the most valuable areas is lying fallow.” Britannica Book of the Year, (1961), “The Voice of Latin America,” p. 16. This figure is probably more meaningful on its face as the IBRD & FAO quoted figures include extenuating circumstances relating to actual water supply.

56 IBRD & FAO, p. 177.

57 Ibid., p. 113.

58 Ibid., p. 114. This condition appears to have persisted since 1952.

59 There are various statistics on this. Butland says that 89 per cent of the land is in haciendas. A more recent figure which gives a meaningful picture is cited by Alberto Baltra in an article in El futuro económico de Chile y de América Latina (Santiago: Colección Saber, Editorial Universitaria, 1957), p. 43. 2,806 owners hold 19 million hectares which is 1.5% owning 75.1%, 130,000 owners own 608,000 hectares, that is, 72.3% hold 2.5% of the land. He says that the “agricultural structure of Chile is characterized by hypertrophy of the extremes.” See also IBRD & FAO, p. 100, “Farm Size and Land Use.” This breaks down farm sizes and percentages of irrigation and percentages of land owned. The farm sizes of 100-1000 hectares seem to be the most underutilized.

60 From correspondence with farm manager in Chile.

61 A. Baltra, El futuro económico, p. 44.

62 Contrast this with the fact that agriculture and forestry in 1958 provided 13.6% of national income. The 1950 figure was 16.3%. Bohan, Merwin L. and Pomeranz, Morton, Investment in Chile (Washington, D. C: U. S. Bureau of Foreign Commerce, 1960), p. 53.Google Scholar

63 Ibid., p. 39 for sources. Chile has the third highest growth rate in Latin America, yet ranks thirteenth in density.

64 Investments in Chile, p. 44.

65 Butland, Chile, p. 37.

66 An Economic Commission for Latin America (ECLA) study shows that out of 4000 economically-active people in rural areas, 3000 are inquilinos and 110 are skilled workers. U. N. EcoSoc Council, ECLA, Analysis of Some Factors Which Act as an Obstacle to the Increase of Agricultural Production (E/CN. 12/306) (1953).

67 IBRD & FAO, p. 143.

68 See the chapter on the Rule of Law in Hayek, F. A., Road to Serfdom (Chicago: University of Chicago Press, 1944).Google Scholar

69 Silva, El futuro económico, p. 114. He also points out that government services grew more than production. Government services increased 54.1% and production 45.9%. Page 116. Investment in Chile.

70 In using the expression “agrarian reform” for this purpose, it will be broadly defined as a concerted action to change land ownership, which would in the case of Chile require expropriation.

71 New York Times, March 14, 1962, p. 1.

72 McBride, p. 277.

73 José María Ots Capdequí, Instituciones sociales de la América Española en el período colonial (Buenos Aires: Ed. Universidad de La Plata, 1934).Google Scholar These decrees were never effective.

74 This section reads: “The State shall look after the proper division of property and the constitution of family homesteads.” (author's translation). Reference to this section in Actas Oficiales is found at pp. 86, 87, 88, 95, 97, 98, 100, 101, 102, 104, 105, 106, 107, 111, 122, 123, 138, 377, 338, 390, 477, 481, and 482.

75 Law 4496, December 10, 1928.

76 McBride states that the grant of this power was the major factor in the downfall of the Ibáñez regime. Op. cit., p. 271.

77 The first colony was given over to German immigrants who were to serve as models of the self-reliant farmer. Also, the Caja established a few governmentmanaged collectives. Colonization of new land is the most inoffensive way to establish more family units, but colonization outside the Central Valley will never be enough to cure the ills of the hacienda system.

78 Investment in Chile, p. 222.

79 Presidential Message to Congress, El Mercurio, January 17, 1962.

80 Thomas F. Carroll, “The Land Reform Issue in Latin America,” Latin American Issues — Essays and Comments, ed. Albert O. Hirschman, New York, 1961, p. 189. (Hereinafter cited as Latin American Issues.)

81 McBride describes this organization, which was founded in 1838, at page 228.

82 El Mercurio, January 14, 1962.

83 Editorial, El Mercurio, December 26, 1961, p. 4.

84 In Chile, one out of eight persons holds a government job. For information on the middle class see Victor Alba, “The Latin American Style and the New Social Forces,” Latin American Issues, p. 43; W. Guzzardi, “The Crucial Middle Class,” Fortune, Vol. LXV, No. 2, (February, 1962), p. 98.

85 Oscar Alvarez Andrews, “La reforma agraria de la América Latina en la práctica,” El Mercurio, December 20, 1961. This article seeks to demonstrate with figures that the pattern of disparity in the revolutionary countries is still as great as those that have used the legal way. The author concludes that the revolutionary path gains some time, but this is more than offset by the loss of “liberty, lives, and human dignity.”

86 E.g., Puerto Rico. Compare Guatemala, whose land-reform gains were nullified when the Arbens government was overthrown in 1954.

87 This expression has lately appeared in the New York Times (February 28, 1962).

88 “Structure and Taxation of Agriculture in Chile,” Conference on Agricultural Taxation and Economic Development, ed. H. P. Wald, (Cambridge, Mass., 1954), pp. 337, 343.

89 Investment in Chile, p. 267.

90 This is an amount that the government fixes periodically as the basic wage. It has the advantage of being adjusted to inflation.

91 Law 13,305 of April 4, 1959 (Diario Oficial of April 6, 1959, article 95, 2).

92 Law 5427 of February 26, 1934 (Diario Oficial of February 28, 1934) as amended by law 6334 of April 28, 1939 (Diario Oficial of April 29, 1939), Article 35.

93 Mathews, Thomas, “The Agrarian Reform in Cuba and Puerto Rico,” Revista de Ciencias Sociales, (Puerto Rico), Vol. IV, No. 1 (March, 1960), p. 107.Google Scholar

94 Decree Law No. 76, Reorganizing the Land Settlement Fund, 5 February 1960, Title III, Section 41. The president was granted the power to execute decree laws in certain restricted areas by Law 13,305 of 1958.

95 Agricultural Taxation and Economic Development, p. 337, 343.

96 United Nations, Department of Economic Affairs, Progress in Land Reform, New York, 1954. At p. 43 an answer to the U.N. questionnaire reads, “Although petitions have been received from small farmers and peasants urging the expropriation of badly cultivated farms, and have been reported on favorably by the competent technical agencies, such petitions have not been acted on owing to lack of government funds”.

97 Huberman, Leo and Sweezy, P. M., Cuba: Anatomy of a Revolution, second edition, New York, 1961.Google Scholar

98 Section 49.

99 Section 47.

100 Decree with force of law, No. 49 (1959).

101 Investment in Chile, p. 58

102 Ibid. Another example of AID activity points up some of the difficulties involved. AID agreed to construct many little farm villages between Maule and Llanquihue, each having a school and a shopping center. The main delay has been the failure of Chilean monopoly manufacturers to supply such things as nails, concrete, plumbing items, etc.

103 United Nations, Department of Economic Affairs, Progress in Land Reform, New York, 1954, p. 85.

104 Ibid.

105 Liberals, Conservatives, and Radicals.

106 El Mercurio, January 17, 1962 (author's translation).

107 Cf. Mexican (1920) bonds at 20 years and 5% interest; Bolivia, 25 years at 2%; Cuba, 20 years at 4.5%; Venezuela, 20 years at 3%.

108 Ley 15,020 (November, 1962).

109 Arts. 3-14.

110 Arts. 15-16.

111 Art. 29.

112 Art. 11a.

113 Recent proposals have called for 10 per cent and 15 years. El Mercurio, January 9, 1963.

114 Art. lib.

115 Art. 17.

116 Art. 18.

117 Various projections have appeared. These were made public by the Ministry of Agriculture at the beginning of the New Year. El Diario Ilustrado, January 1, 1963.

118 According to CEPAL studies, (Suplemento Estadístico, Boletín Económico de América Latina, Vol. VI, Santiago de Chile, I de 1961), the rural population of Chile is 33% of a total population estimated in 1960 at 7,600,000, or 2,627,000 persons, half of whom are men, 1,313,500, and 55% of whom are between the ages of 16 and 65, or a total of 748,695 potential property holders. According to the III Censo Agrícola Ganadero (1955), there are a total of 151,082 explotaciones agrícolas. Taking this as roughly the number of property holders and subtracting from 748,695, this would leave about 600,000 without land.

119 One recent study of saving and consumption of large landholders concluded that these landholders had an average income roughly 75 times that of the average rural family and saved about 25% of this income. In the U. S. by comparison, the wealthy farmers in 1936 had incomes almost 15 times the average rural family income and saved about 74% of their income. See Marvin Sternberg, “Investment and Consumption Patterns of the Large Landholders,” unpublished M.A. thesis (Berkeley: University of California, 1961).