ticularly provided, that without the licence and consent of the first grantees, no one could seek for or work them, and the noblemen and persons who hold the said property so purchased, either in order to avoid the expence and labor, or to relieve themselves from attention to the business, have bestowed, and now bestow very little care and diligence in the discovery, occupying and working said mines; and as very little advantage has followed to them or is now received from estates so purchased, and the benefit which we ourselves and our subjects and citizens might receive has been and continues to be generally impaired; and it being represented that others will not engage in the discovery, occupation and working of said mines, because although by the said law of King John, the portions which each party is to have are designated, yet, as it is so ancient and has been so little in use and practice, and as neither in that nor in other laws of the kingdom have the many doubts and difficulties which may occur been determined, and which have thus occasioned disputes and lawsuits, they are apprehensive and fearful of expending their money and labor in such discovery and working of the mines; and principally having doubts whether the said law and its provisions is to be understood to embrace the mines which were rich, and from which great and excessive interests might have been expected and obtained; and in order in relation to all the matters aforesaid, to make such provisions that the obstructions and difficulties aforesaid may come to an end, and effectually to secure the rewards and advantages so that many persons of wealth may invest their property in the discovery, occupation and working of the mines, by whose diligence and labor God will permit the developement of the riches and bounties which are hid and covered up in the earth, and our own royal patrimony will be increased, the condition of our subjects ameliorated and our realm enriched; and having commanded some of our principal accounting officers (contadores) to confer with some of the members of our council, and in a matter of so great importance, we having ourselves conferred with and been consulted by them; it was resolved that we should direct the issue of this our ordinance, and adopt the provisions hereinafter written; and we have approved of the same, and will that it shall have the vigor and force of law in the same manner as if it had been done and agreed to in the Cortes on the petition of the representatives (Procuradores*) of the cities and villages of these kingdoms.

First, we reclaim, resume, and incorporate in ourselves and in our crown and patrimony all mines of gold, silver and quicksilver in these our kingdoms in whatever parts or places they may be or be found, whether the estates of the crown or of the nobility or clergy, or belonging to the public or the town

* The general meaning of the term "procurador" is the agent or representative of another in the execution of a power entrusted to him. Anciently the "Procurador de Cortes" was a person deputed by the cities or villages having a vote in the Cortes to represent them and to agree in their name to the services asked by the king. (T)

ships or vacant lands, or in the estates and portions and lands of individuals, notwithstanding the grants which by ourselves or by the kings, our ancestors have been made, to any and all persons whatsoever of whatever state, rank and dignity they may be, and for whatever causes and reasons, as well grants for life or for years, and on condition as those perpetual, free, and without condition; all which said grants, in view of the facility and generality with which they have been made, and the prejudice which to ourselves and our crown and royal patrimony has ensued and still continues, and the damage and injury to the public good, and the well being of our subjects and citizens which have resulted and may continue to result, and for other just causes thereto moving us, we revoke, annul and vacate, and it is our will and pleasure that the said minerals now and henceforth without any other act of seizin or possession, belong to our said crown and patrimony in accordance with, and as by the laws of these our kingdoms and ancient usages and customs properly belong to us in the same manner as if said sales and convey ances or any of them had not been made and granted; and that the same shall alone continue as binding and in full force in relation to the mines of silver and gold in which the persons aforesaid, to whom said grants were made, or others in their name, and by their consent, have commenced working and are actually now at work at the date of these presents; and moreover, it is our pleasure to recompense and indemnify the noblemen and other persons to whom the said grants which we have thus revoked, have been made, according as upon the examination of their conveyances of title, the causes and reasons of their being granted, their conditions and limitations and the extent to which they have been performed and complied with, on their part may appear just and reasonable. And to this end we order that those who hold the said grant, and claim the said recompense, shall present their claims within one year, in order that in view of the matters aforesaid, they may receive the recompense which is their due.

Second, inasmuch as the reducing and incorporating in ourselves and our royal patrimony, the said minerals as above stated is not with the view that we alone, or others in our name alone may seek for, discover, and work the said minerals, but rather that it is our purpose and pleasure that our subjects and native citizens shall participate in and have a portion of said minerals, and may employ themselves in the discovery and working of them; therefore, by these presents we give permission and full authority to our said subjects and citizens, that they may freely without any other licence from ourselves or any other quarter, examine, seek for and excavate the said minerals of gold and silver, in all parts whatever of the estates of the crown, or of the nobility or clergy, and all other persons whatsoever, as well in public territory, common and unappropriated lands, as in the estates and lands of individuals, on paying the damage to the owners; and that no person or persons shall interpose any obstruction or embarrassment neither on account of the said

grants which have been made, and which as above stated we have revoked, nor for any other cause or reason whatsoever. And moreover, we grant the free privilege and full permission to all our said subjects and citizens, that in relation to the mines of gold and silver which they shall have discovered and have had registered in the manner hereinafter declared, to excavate and extract the said metals, and operate and work them, and employ all the machinery, labor and diligence which may be necessary, without being obstructed or embarrassed by ourselves or any one in our name, nor by the occupation of any other person, and that the within limits and boundaries of the mine which has been so discovered and registered, no other person be allowed to excavate and seek for, nor to work and labor upon the same. The said discoverer complying with the provisions hereinafter stated and ordained. It being understood that they may hold, explore and discover said mines in said regions 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, Aracana, and Galarroca and a quarter of a league around each of them. All which shall have full and complete effect notwithstanding any leases which we may have ordered to be made of any of the minerals of our kingdom. (Chapter 1, 2 and 3 of the law 4. Tit. 1, Book 6, Recopilacion.) (a)

LAW IV.

WITH GAMBOA'S COMMENTARIES.

Don Philip II. at San Lorenzo, Aug. 22, 1584.

New ordinances which are to be observed in the discovery, occupation and working of the mines of gold, silver, quicksilver and other metals.

CHAPTER I.

OF THE NEW CODE OF MINING ORDINANCES, THE OLD ORDINANCES REMAINING IN FORCE, SO FAR AS THEY ARE NOT REPEALED BY THE FORMER, AND HOW FAR THEY ARE TO BE OBSERVED IN THE KINGDOM OF NEW SPAIN.-A NOTICE OF THE ORDINANCES FRAMED BY SOME OF THE VICEROYS, AND OF THE ORDINANCES IN FORCE IN PERU.

ORDINANCE I.

WE revoke, annul and make void the edicts issued at Valladolid, and all (a) (Note (a) to the original text.)-The sections from the 3d to the 7th of this law as contained in the former compilation, treat of the portion which shall be received by persons discovering and working the mines in conformity with the second law; concerning the forms and modes of proceeding in their discovery and registry, and of the powers and rights of the discoverers; which sections are omitted as they will be found to have been repealed in the new ordinances contained in law 4th of this title published in 1584; and for the same reasons are omitted those comprehended in 78 sections in the royal edict of Madrid, of the 18th March, 1568, contained in law 5, Tit. 13, Book 6, of the Recopilacion,

laws of the Ordinamiento, Partidas, and all other laws, edicts, common law, and customs whatsoever, so far as they are in opposition to the provisions of this law and it is our will and command, that they shall, in such respects, be void of all force or authority whatsoever, except only that the 3d law of this title, so far as it relates to the annexing to our royal patrimony the mines of gold, silver and quicksilver, in these our dominions, of which grants had been made to individuals, by departments, bishoprics and provinces, shall remain in force and authority; in conformity to which law, and to these our laws and ordinances, exclusively of all others, it is our will and command that the said mines shall be worked, and all suits and disputes be determined, which may in any manner arise concerning the said mines, or any matter annexed to, touching or relating to the same.

CONTENTS OF THE COMMENTARY ON THIS ORDINANCE.

1. Why called ordinances of the new code.

2. The old ordinances are repealed, so far only as they are at variance with the new.

3. They remain in other respects in full force and authority, and are to be referred to as rules in the decision of suits at law, and contain matters of much importance.

4. An objection to this doctrine refuted.

5 and 6. By the laws of the Indies, the ordinances of Castile are to be observed in New Spain, when not contrary to the laws framed for each province in particular.

7. An account of the ordinances of Peru, issued by the viceroy Don Francisco de Toledo. They are very important in certain cases, as affording rules for New Spain.

8. The ordinances of the new code, are the great authorities for all mining suits in the kingdom of Mexico.

9. No new system has been found necessary during the term of 176 years.

10. An account of the ordinances framed by the viceroy Don Luis de Velasco and the Marquess de Montesclaros, and which are not observed. Reflections on the idle desire of some persons for new ordinances.

11. The Viceroys are not at liberty to alter the ordinances, and no new ones can be set up, unless confirmed by the Council, after having been submitted to the consideration of experienced and intelligent persons.

12. and 13. There is no need to have recourse to Germany and France for oridnances, our own being sufficiently copious.

COMMENTARY.

1. The eighty-four heads into which this law is divided, are denominated ordinances of the New Code, and were originally appended to the old Collection, into the body of which they are introduced, in the edition printed at Madrid, in 1642. The name of New is conferred upon them in contradistinction to the old ordinances contained in the 5th law, of the same title and book, and to other laws of older date, relating to the working and supplying of mines; which,

2. Are totally repealed by this 9th law, "so far as they are in opposition to its regulations;" so that the repeal applies to those points and in those cases only, wherein the former laws and ordinances are opposed to the 9th

law and no further; it being clearly the intention of the legislator to confine the repeal to the case of their being found to conflict: wherefore he wills and commands, that the former laws and ordinances shall, "in such respects," be void of all force or authority whatsoever.

3. Whence it follows, that the rules and ordinances of the 5th and other laws of this title, are still in force and authority, so far as they are not contrary to the regulations subsequently established by this law; and that they are to be referred to and observed as rules for the decision of suits, and for the working of the mines, as in fact the course and practice of the Courts of New Spain. And this is confirmed by the consideration, that it is a rule that the alteration or repeal of a law, is not to be presumed; † combined with the indisputable fact, that there are many very essential and necessary matters in the old ordinances of law 5, which are omitted and passed over in silence in law 9, evidently to avoid repetition, and not with the intention of repealing or altering the other laws, in points as to which nothing contrary is ordered. And by a comparison of these several ordinances, which we shall take care to institute in every instance, it will appear in what cases the old ones, being at variance with the others, are repealed; and in what cases they are not repealed, no contrary regulation being established by law 9.

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4. And although, according to the wording of the ordinance, which says, "except only that the 3rd and 4th law of this title, which relates to the an nexing to our royal patrimony the mines of gold, silver and quicksilver, in these our kingdoms, &c. shall remain in force and authority; in conformity to which law, and to these our laws and ordinances, exclusively of all others, it is our will and command that the said mines shall be worked, and all suits and disputes be determined," it might seem (from the expressions except only" and "exclusively of others"), that the other laws and ordinances are repealed, yet the fact is, that the repeal is to be taken with the qualification" so far as they are in opposition," and extends no further; and, therefore, the old as well as the new ordinances, still equally form parts of the body of the collection, so that the old ordinances are to be referred to and followed, in any case omitted or passed over in the new code, for in such cases there can be no variance or opposition between the former and the latter. And the object of giving new authority to the fourth law, was to prevent so important a matter as the annexation of the mines of all metals to the

Leg. 28. ff. de legibus, " sed et posteriores leges ad priores pertinent, nisi contraria sint," puod multis argumentis probatur.

†D. de Luca, de jurisd. disc. 107, n. 10. "Legum correctio non est præsumenda, sed vitanda.” Et in decis. Sicil. sub. tit. de feudis, n. 214. "Statutum semper debet interpretari, ut minus corrigat jus commune." Paris, cons. 110, n. 6, and cons. 84, n. 3, vol. 3. Et legum correctio vitanda est, imo nec præsumitur; neque in dubio facienda est; nec ex paritate rationis." Tuschi, liter. c. concl. 1036. Velasco, in loc. comm. liter. c. concl. 229. 8 lib. 1, n. 37. Castillo, Controv. lib. 5, p. 2, cap. 125, n 7.