SECTION I. 38. The working of quicksilver mines is permitted. 39. It does not appear that any such were worked in New Spain, in early times after its discovery. 40 and 41. Two royal orders, confirming certain directions for stopping up quicksilver mines in Quernavaca, and in the Sierra de Pinos. 42. Another precedent, to the same effect, from the office of the superintendent of quicksilver at Mexico. 43. The reason for not allowing the mines of this mineral to be worked in New Spain, is, that the quicksilver of el Almaden is disposed of on account of the revenue. 44 and 45. It was directed, by orders of the 4th of March, 1559, and the 22d of January, 1565, that the quicksilver should be sold at the greatest possible profit. 46. It was directed, by another order, of the 3d of June, 1567, that all quicksilver shipped on board the convoy, on account of individuals, should be seized. 46. The dealing in quicksilver otherwise than on account of the revenue is prohibited, and liable to a penalty. 48, 49 and 50. Because it would be prejudicial to the revenue, and injurious to the expensive establishment at el Almaden; and would give opportunity for much fraud and contraband dealing in bullion. 51 and 52. The merchants are prohibited from selling it, because if permitted, they would raise the price to an excessive rate, and this prohibition was obtained at the solicitation of the miners of New Spain and New Galicia. COMMENTARY. 1. By the civil law, all veins and mineral deposits of gold or silver ore, or of precious stones, belonged, if in public ground, to the sovereign, and were part of his patrimony; but if on private property, they belonged to the owner of the land, subject to the condition, that if worked by the owner, he was bound to render a tenth part of the produce to the prince, as a right attaching to his crown; and that, if worked by any other person, by consent of the owner, the former was liable to the payment of two tenths, one to the prince and one to the owner of the property." 2. Subsequently, it became an established custom in most kingdoms, and was declared by the particular laws and statutes of each, that all veins of the precious metals, and the produce of such veins, should vest in the crown, and be held to be part of the patrimony of the king or sovereign prince. That this is the case with respect to the empire of Germany, the Electorates, *Lagunez, de fructib. 1. p. c. 10, n. 51, usque ad 54. Gutierrez, Pract. p. 4. quæst. 36. n. 59. Petrus Barbosa, in 1. divortio, §. si vir, ff. de solat. matrimonio, n. 18. Antunez, de donat. regiis part. 3. cap. 12. per tot. Alfaro, de offic. fisc. gloss. 20. n. 101. aliique innumeri apud istos, et communiter DD. in d. §. si vir: qui omnes dictam distinctionem firmant: et pro jure fisci in fodinis repertis in loco publico, text. in C. unic. verb Argentariæ. Quæ sint regaliæ, Horatius Montanus de regal. verb. Argentaria. Afflictis in tract. Quæ sint regalia, tit. 3. à num. 1. et pro jure privati in metallis fundi proprii, d. §, si vir, L. quosdam, Cod. de metall. lib. 11. France, Portugal, Arragon and Catalonia, appears from the laws of each of those countries, and from the authority of various authors.* 3. And the reason is, that the metals are applicable to the use of the public, who ought not to be prejudiced by any impediments being thrown in the way of the discovering and working of their ores; besides which, their products rank, not amongst those of an ordinary description, but amongst the most precious the earth affords, and therefore, instead of being appropriated to individuals, are proper to be set apart for the sovereign himself, whose coffers being thus enriched, he will be enabled to lighten the burdens. of his people; all which is set forth at length by the authors above referred to.† 4. This question, as is observed by the great Cardinal de Luca,‡ has not received any general or uniform determination, but is decided by the laws and customs of each particular kingdom or principality. For upon the breaking up of the Roman Empire, the princes and states, which declared themselves independent, appropriated to themselves those tracts of ground, in which Nature has dispensed her more valuable products, with more than ordinary liberality; which reserved portions or rights, were called rights of the crown. Among the chief of the valuable products, are the metallic ores of the first class, as those of gold, silver and other metals proper for forming money, which it is essential for sovereigns to be provided with, in order to support their warlike armaments by sea and land, to provide for the public necessities, and to maintain the good government of their dominions. And such is the course mentioned in the first book of the Maccabees, to have been pursued by the Romans, with regard to the mines of Spain; such also is the plan adopted by our sovereigns, with regard to those of the Indies, some of which they have reserved to themselves, and the remainder they have left to their subjects, charged with the payment of the fifth, tenth or twentieth part of the produce. The above author, also, in the place cited, distinguishes the metals into those of the first, second and third class, by which means he determines several very important questions, without prejudice, however, to the laws, ordinances and statutes of each particular kingdom, which in each case claims the first notice. Antunez de donat. reg. lib. 3, cap. 12, n. 10. "Sed quamvis prædicti juris traditio et distinctio ab omnibus communiter sit recepta, tamen reges et principes in omnibus ferè orbis partibus eam non admiserunt, imo peculiaribus legibus statuerint venas metallorum ubicunque inventas in locis publicis sive privatis ad se partinere et de regalibus esse;" cum Rebuffo, Barbos Pereg Cabedo et aliis qui testantur de legibus Neapolis, Valentiæ, Cataloniæ, ut ipse de statuto Lusi taniæ. De Imperio, Arumæus, Discurs. Academicor. de jure publico, cap. 3, de regal. fisci, discurs. 15, §. 59, et seq. ubi etiam testatur de regno Hungria. †Antunez ubi supr. n, 12, Solorz. de jure Indiar. lib. 1, c. 13, n. 12, et omnes sup. citati sub. n. 1. Emin. de Luca, de regal, disc. 147, n. 17, usque ad finem. 5. In Spain, under the law of the Partida," the property of the mines was so vested in the king, that they were held not to pass in a grant of the land, although not excepted out of the grant; and even though included in it, the grant was valid, as to them, only during the life of the king who made it, and required confirmation by his successors. 6. And by another rule of the same law, the metals, amongst other things, were reserved to the sovereign, for maintaining him in honour, for defending his territories, for supporting his wars against the enemies of the faith and for relieving the people from taxes. 7. Afterwards, by a law of Don Alphonso XI. in the Ordenamiento Real,‡ copied in the collection of Castile,§ all mines of gold, silver or any other metal whatsoever, and the produce of the same, were declared to be the property of the crown, and no one was to presume to work them, except under some especial licence or grant, previously obtained, or unless authorised by immemorial prescription. 8. This rule was moderated by John I., and the law, as established by him, permitted any person to dig or work mines, in his own land or inherit ance, or with the permission of the proprietor, in that of any other individual: and to retain to himself, after deducting the expenses, one third of the produce, rendering the other two-thirds to the king. Whence it is evident, that the owners of private property, might prevent all other persons from searching therein for mines; and that the permission only extended to the searching for them on their own estates, the mines of which had, originally, been excepted by the sovereign out of his grants and charters. 9. Philip II.¶ acting under the authority of the council and chief ac Law 5, title 15, Partida 2. "And mines, if there be any and although it be not mentioned, in the grant, that the king retains to himself the things above-mentioned, yet it is not, therefore, to be understood that he to whom the grant is made, acquires a right to them moreover, if the king should make over all these things to him by the grant, even then he cannot hold or use them, except during the life of the king who made the grant, and of any other who may please to confirm it." And see Gregor. Lop. at that place. † Law 11, title 28, Partida 3. "The returns from the port, salt works, fisheries and iron works, and from the other metals, belong to the emperors and kings; and all these things were granted to them, that they might have wherewith to support an honourable establishment, to de fend their lands and kingdoms, and to carry on war against the enemies of the faith; and that they might have no need to load their people with great or grievous burthens." Law 8, title 1, book 6, of the Ordenamiento. § Law 2, title 13, book 6, Collection of Castile. One of the most remarkable among the grants, is the Privilegio rodado, of Ferdinand the fourth, dated at Toro, the 13th of October, 1297, whereby, in consideration of the services of Don Alfonso Perez de Guzman, Governor of Tarifa; and particularly those displayed in the conquest of that town, and during its defence (on which occasion he threw the Moors a knife to kill his own son with, rather than surrender the town), the king made a grant to him of the town of San Lucar de Barromeda, with the thirds, and other things, including the mines. The grant is preserved in the house of the dukes of Medina Sidonia, his successors. || Law 1, title 13, book 6, Collection of Castile. Law 4, same title and book. countants, and considering, first, the benefits that his subjects, generally, would derive from working the mines of Spain, which had from of old been deemed to be both rich and abundant; second, the small number of mines actually worked, notwithstanding the grant of John I.; and, third, that though not worked by the proprietors, the exclusive grants that had been made by provinces and bishoprics, prevented any other person from presuming to work them; and considering also, that the above-mentioned law of John I., had not been enforced, and that there were various doubts and difficulties, not provided for by that or any other law; vested the mines, wheresoever situate, and whether in public or private ground,* in the crown; revoking the former grants thereof, the parties interested under which were to receive a compensation, upon exhibiting their claims within the term of one year.† 10. The object of so vesting them, was not that the right of searching for them should be limited to the crown alone, but that it should be freely extend ed to all the people, generally in such manner that they should be at liberty, without any licence from the crown or any other party, to try for mines in all places whatsoever, whether the ground belonged to the crown or any other lord, to abbeys or municipal corporations, whether it were public or waste ground, or whether it were the inheritance or soil of a private person, in which latter case, the owner had no power to put obstacles in the way of such search, provided he received a compensation for any damage done to his property, and were paid his third part of the produce, as directed by the law of John I. Besides these various other regulations were promulgated, which, with the above, are known by the name of the old ordinances, and to which we refer.‡ 11. All which, as has been observed,§ are repealed by the new law of Philip II. except as to the vesting in the crown the mines of gold, silver and quicksilver, of which grants had theretofore been made to private persons, by districts, bishoprics and provinces; as to which they remain in full force and authority. 12. And by his second ordinance, which is now under consideration he grants permission to all persons, whether natives or foreigners, to search for mines, and declares that they shall be theirs in right of possession and property, and that they may dispose of them as of any thing of their own; provided "Hæc et si quæ pari fuerant obnoxia juri, Ex Gunther, lib. 8. in Ligurino. + Idem factum fuisse in Hungaria ex const. regis Mathiæ testatur Arumæus, de jur. public. disc. 15, §. 61. "Ut si aliquæ minera auri et argenti, salis vel aliæ fodinæ in possessionibus nobilium reperirentur, non auferrentur per regiam majestatem absque debita recompensatione." Law 5, title 13, book 6, Collection of Castile. Above, ordinance 1, chap. 1, n. 2. that they observe the rules of that edict, concerning the payments to be rendered to the crown, and the other matters regulated by it. And a similar provision was made by the first of the old ordinances." 13. By the laws of the Indies, the Emperor Charles and King Philip II. made a similar grant to all their subjects, whether Indians or Spaniards, and of whatever station, condition, rank or dignity (except the governors, ministers, mayors, alcaldes and notaries attending at the mines, and some others who are also especially prohibited), authorising them to work the mines freely and without impediment, and making them common to all persons, wheresoever situate, provided that the Indians be not injuriously treated, and that no other parties be prejudiced ;† and likewise granting various immunities to the discoverers, whether Spaniards or Indians, as may be seen by reference to the municipal laws of the Indies.‡ 14. From the very ample terms of this grant, as contained in the second ordinance, and in the laws and orders of the Indies, a doubt arises, whether the mines of those kingdoms are still to be regarded as the peculiar right of the crown, or whether they are to be considered as the absolute property of the subject upon which point, Don Matheo de Lagunez,§ judge of the audiency of Quito, observes, that gold and silver, and the veins of all other metals whatsoever, in the Indies, are declared common, and that all persons are at liberty to try for them, wheresoever situate; and that they are invited to do so, by the order of their catholic majesties, Ferdinand and Isabella, and by many other orders mentioned by Don Juan de Solorzano; provided that they pay the fifth, and bring in the bullion to be stamped; whence he infers, that the mines are not vested in the crown, and that consequently, so far as the Indies are concerned, all the rules of the civil law will apply, in reference to the question he is there treating of (which is simply, whether the metals are to be considered as products or not), and he conceives that the effect is precisely the same, as if the mines had been made private prop * Law 5, title 13, book 6, chap. 1. of the Collection of Castile. † Law 1, title 19, book 4, Collection of the Indies. See ordinance 67 and 68, title 13, book 6, Collection of Castile, concerning prohibited persons. Title 19, book 4, Collection of the Indies. Lagunez, de Fruct. 1. p. cap. 10, n. 63, 64, and 65. "In Indiarum tamen regnis auri argentive fodinæ, et similium metallorum venæ, communes diu sunc declaratæ, omnibusque permittitur ubicunque metalla quærere, et eruere : quinimo, et magnis præmiis, et privilegiis, ad id. omnes invitantur per regiam schedulam regum catholicorum Ferdinandi, et Elizabeth, et alias plaries relatas per eruditissimum D. D. Joannem de Solorzano de jur. Indiar. tom. 2, lib. 5, cap. unic. à n. 22. ita tamen ut quintam partem omnium metallorum quæ extraxerint, regio fisco reservare teneantur ex quibus ut ad supradictam nostram quæstionem redeamus circa metallorum, venarum et aliorum fructuum acquisitionem ; cum in Indiarum regnis mineralia dicta regio patrimonio non sint incorporata, sed potius libera, et omnibus cum dicto onere quinti obvia sint, absque dubio in Indiis locum habebunt omnia supradicta ad dict. L. divertio §. si vir, ff. de solut. matrim. et ad d. leg. item si fundi, §. sed si metalla, ff. de usufr. et ad cognitionem principalis nostræ quæstionis quando metalla fructus dicantur, et ad maritum, vel ad alium fructuarium perti neant ?" |