CONTENTS OF THE COMMENTARY ON THESE ORDINANCES. 1. It is freely permitted to search for mines in all parts, even in the ground of another proprietor. 2. This is a deviation from the civil law. 3. Nothing is now payable, as formerly, to the owner of the ground. 4. Answer to an objection grounded on one of the old ordinances and on one of those of Peru. 5. The mines are not to be considered as included by the sovereign in the grant of the land. 6. It is to be understood that this right of searching freely for mines, is not to be exercised to the damage of other persons; and that any such damage is to be estimated by surveyors, to be nominated by the justice; together with an umpire, in case of their not agreeing. Allusion to the bad qualities of these surveyors. 7. An enumeration of the various kinds of injury which the owners of the ground, and the Indians, may sustain. 8. It is to be borne in mind that every right is to be exercised within moderate limits, and so as not to prejudice other parties. And consequently, the power of setting up buildings, smelting works and furnaces, granted to the miners, is not to be regarded as extended to others. 9. Any person desirous of searching for a mine or treasure in cultivated ground, must give security for the damage. 10. There are very few mines in New Spain, worked in the ground of any other than the miner. 11. The owner of the ground is, for various reasons, not to be preferred before the party who has registered the mine. COMMENTARY. 1. It appears from these ordinances, that both subjects of the crown and foreigners (taking this word with the limitation above stated)," have an absolute right to search for mines, in all places whatsoever, whether the ground be public or private property, and in the latter case without hindrance from the proprietor, provided they compensate him for any damage done, according to the estimate of experienced persons. Similar provisions are contained in the 15th of the old ordinances. The corresponding ordinance of Peru, adds a penalty of 1000 dollars, to be imposed, without appeal, upon the mere proof of the act of resistance. And the general law of the Indies permits subjects to try for mines wherever they may think proper, and to work them freely and without any sort of impediment,§ it being for the public benefit that it should be so. And this, according to Antunez, Alfaro and Gregorio Lopez, who refer to Cepola, Paulo de Castro, Pedro Barbosa, *Sup. cap. 2, n. 25, 26. 1 Law 5, tit. 13, cap. 15, book 6, Collection of Castile. Ordinance 1, of those issued by the viceroy, Don Francisco de Toledo, published by Escalona in his Gazoph. lib. 2, p. 2, c. 1, page 104. § Law 1, tit. 19, book 4, of the Collection of the Indies. Il Antunez, de donat. lib. 3, cap. 12, n. 15, Alfaro, de offic. fisc. gloss. 20, §. 6, n. 114. Gregor Lopez, in gloss. 2, L. 27, tit. 11, partid. 4. Horatius Montanus and others, is the reason for giving permission to try for a vein of ore on the ground of another, against the will of the owner. The same rule holds as to treasure, found either in Spain or the Indies, as to which the same forms of law must be observed, such treasure belonging by right to the crown." 2. By these regulations, the civil law and the old law of Spain have been altered.-First, mines in public ground could not formerly be worked without a licence, as belonging by right to the sovereign, whilst those in private ground were regarded as the property of the owner of the soil, being the proper produce thereof. This is stated by Solorzano, Antunez, Gutierrez and Lagunez, who make copious references to the text of the common law, and cite the authority of many Doctors.† But according to our new ordinances, no licence to try for mines, either from the sovereign or the propri etor of the ground, is required. 3. Secondly, by the civil law, if any person discovered a vein by permission of the owner of the ground, he was liable to pay one tenth to the latter, and one tenth to the exchequer. And according to the 15th of the old ordinances, the owner of the land, besides being compensated for the damage, was entitled to be paid one per cent. before deducting the payment to the revenue ;§ and this payment of one per cent. likewise obtained under the ordinance of Peru. But by the 16th ordinance of the new code, no part of the gold or silver raised, is to be paid to the owner of the inheritance or estate, and the payment to the revenue of the fifth or tenth, or whatever may be imposed, is the only payment required. 4. And although some persons would perhaps hold, that the omission in this 16th ordinance ought to be supplied from the 15th of the old ordinances, and from those of Peru, so as to establish the payment of this one per cent. * Law 1, tit. 13, book 6, of the Collection of Castile. Law 1, tit. 12, book 8, of the Collection of the Indies, "As a revenue which of right belongs to us." This law gives the form of the security to be entered into for the damage; and of the agreement as to the portion to be taken, first deducting the duties and fifths. And by the second law of the same title, the treasure found in sepulchres is to go, after deducting the fifth, one half to the king and one half to the discoverer. Amaya, in Cod. tit. 15, a. n. 49, usque ad 52, cum Valenzuela, Gutierrez, Castillo, Mastrillo, Covedo et aliis. † L. 3, de jur. fisci. L. divortio §. si vir. ff. de reb. oer. Vide innumeros apud Solorz. de jur. Indiar. tom. 2, lib. 5, cap. unic. n. 27. Antunez, de donat. lib. 3, cap. 12, n. 1, usque ad 10. Gutierr. Practicar. lib. 4, quæst. 36, n. 59. Lagunez, de fructib. 1, p. cap. 10, n. 52, et seqq. Amaya, in Cod. L. unic. de thesaur. n. 30, qui omnes cumulant jura et AA. L. cuneti, Cod. de metallar lib. 11. "Cuncti qui per privatorum loca saxorum venam. laboriosis effosionibus persequuntur, decimas fisco, decimas etiam domino repræsentent." Cap. 15, of law 5, tit. 13, book 6, of the Collection of Castile. "Provided that, besides making a compensation for the damage, the owner of the pasture ground or inheritance where the mines shall be found, shall be paid one per cent. upon all the silver raised from such mines, clear of all expenses, and before the deduction and payment of our duties, it being our will and command that such one per cent. shall be paid out of the whole.” Ordinance 2, in Escalona's Gazophil. lib. 2, part 2, cap. 2, p. 104. in New Spain; it is impossible that this can be a correct opinion, for the intentional omission of this charge, whilst all the rest of the old ordinance is repeated verbatim in the new, is the same thing as if an express clause to the contrary had been inserted; such an obvious omission on the part of the sovereign, to state what he might so easily have expressed, proving that it was not his will that the regulation he had previously made in the old ordinance should be enforced; besides which, it is evident that the principal object of this and the other heads of the new ordinance, is to benefit and relieve the subject, by abating the charges previously payable to the crown. And the ordinance of Peru is confined in its operation to that kingdom alone, and does not extend to New Spain, where the ordinances of the code are to be observed, until others shall be confirmed by the council. And the general laws of the Indies merely contain a proviso against injuring third persons, or the Indians; the meaning of which is, as we have shewn in Chapter II., that compensation is to be made for the damage, but not that any further charge should be imposed, beyond the fifth or tenth payable to the crown. Another argument, bearing with considerable force on the question, is derived from the words of the law, which, when provided for the payment of the fifth, declares that no other deduction shall be made, and that it is the will of their catholic majesties to grant away the other four parts, so that every person may have power to dispose of them, as of anything of their own, free, quit and clear, as a return for their costs and expenses. And again, as they are to be common in all places, and to every description of persons, free and discharged from every kind of impediment,§ it follows, that they can be subject to no other charge except the fifth. 5. As a consequence of this liberty to seek for mines, extended absolutely to all persons, it follows, that they must be regarded as not having passed with the grants of land from the sovereign, unless particularly mentioned in the grant, or unless a case of immemorial prescription be made out.|| But, except in these two cases, no person of whatever condition, rank or dignity, can prevent their being searched for in his farms, pastures, inheritance or other place. For they have been made everywhere common by royal authority, in favour of those subjects who shall first discover or take possession of them. 6. But this permission, it is to be understood, is to be so exercised as not to prejudice third persons; and the amount of any damage that may be done, is to be estimated by surveyors (who are to be nominated by the justice and not by the parties), together with one or more umpires, in case of Laws 1 and 6, book 4, tit. 19, Law 3, tit. 3, book 2, Collection of the Indies. † Law 1, tit. 19, book 4, Collection of the Indies. Law 1, tit. 10, book 8, Collection of the Indies. Law 1, tit. 19, book 4, Collection of the Indies. || Law 2, title 13, book 6, Collection of Castile; et ibi Acevedo. Lagunez, de fruct. 1. p. cap. 10, n. fin. cum Horatio Montano, de regalib. verb. Argentaria, n. 5. their not agreeing; and in default of payment of what the surveyors shall estimate upon oath, as the amount of the damage, execution shall be levied. Such are the provisions of our 16th ordinance, and they are more plainly laid down in the 65th, which prescribes the mode in which umpires are to be nominated, until they agree in opinion, directing that when the majority agree, their award is to be observed and enforced; which is also agreeable to the rules of the civil law, as we may learn from the Cardinal de Luca, and from Bichio, Burato and Gregorio. And as we before remarked, the ordinance provides (probably with a view to dispatch), that the justice shall nominate the surveyors; for if they were to be nominated by the parties themselves, they would be prejudiced and inclined to the interest of those who had appointed them, and would be liable to be influenced by partiality or regard; which is so much the case, that the greatest inconvenience the judges experience in this and other matters, wherein it is necessary to have recourse to the aid of surveyors, arises from their obstinate disagreements, wherein they display, not their intelligence and skill, but their corruption, prejudice and partiality. And these evils are lamented by the most judicious writers, who give rules for preventing the delays and vexatious objections interposed by the parties; one of which is, that a list should be previ ously given in, that there may be an opportunity of challenging any persons who are suspected, after which, no objection should be made to any person who may be appointed, but their judgment, or that of the umpire, in case of disagreement, should be final. And therefore, the ordinance directs, that they be persons in whom the judge can place confidence, and men of due probity, judgment and rectitude, so that they may form their estimate upon a fair consideration of all the damage attending the setting up of the mining establishment, and the other arrangments necessary for carrying on the works. 7. The damage may arise, not merely from the digging and excavating, the soil, but from the setting up and building houses and smelting furnaces‡ in pasture grounds required for cattle, or from any other inconvenient circumstance affecting the owner of the soil, and arising from the mines; as for instance, if, after the soil has been reduced into cultivation, the culture should be interfered with by the denouncement of the mine. And were the law otherwise, it would be unjust, as we are told by Acevedo and Antunezwho follow Afflictis, Rolando del Valle and others.§ But by this means in Luc. disc. 33, de judic. n. 21. Bich. decis. 261 et 564. Burat dec. 56. Gregor. dec. 271, 177, p. 10, recent. † Luca in various places in his Theatro, and especially in disc, 33, de judiciis, n. 19, usque ad 37; ibi. n. 33. "Circa propriam artem, vel peritiam, frequenter neque suum officium bene exercent; ut præsertim contigit in peritis estimatoribus." Et n. 24, "Quilibet est defensor vel patrocinator illius partis quæ ipsum elegit," Chap. 21, ordinance 52. § Acevedo, upon law 4, tit. 13, book 6. n. 1. Antunez, de donat. regiis, lib. 3, cap. 12, n. 17. jury to third persons is prevented. Injury done to the Indians is particu larly noticed by the law, which directs that regard be had to their wretched condition, and that compensation be made to them for the land taken from them, and for all other damage done to them ;" and that no one presume to intrude wantonly into their ground. 8. And as every right, the exercise of which may indirectly operate to the prejudice of third persons, is to be used with as much moderation as may be, and so as to produce the least possible damage,† it will be proper that the justice should confine the right, and prevent the damage, as much as possible. That is to say, that he should permit no persons to erect smelting houses, furnaces or other works, except the owners of mines, of whom the law makes express mention, and who require them, as accessary to the principal object of working the mines; and the purchasers of ores in the large way, who require them for the same reason. I recollect a case where, under pretence of setting up litharge works, certain inhabitants of the place, by name Castorena, were about to set up grinding and stamping mills, on part of the farm of Reoyos, in New Galicia, belonging to the Count de Santiago; but the royal audiency of that district, upon the representation of the Count, ordered them to quit the place, and to make good the damage done to the land by them and their cattle, as well because theirs was a case to which the ordinances did not apply, as because their works might have been carried on upon land of their own, without intruding into that of others. 9. This licence is also restricted by the second of the ordinance of Peru,§ which provides, that if the discoverers of mines wish to search in vineyards or plantations of trees, either from malicious motives, or because they are, as they allege, certain that ore is to be found there, they shall give security, before making any trial, to repay to the owner of the soil whatever damage they may occasion. And this is agreeable to the civil law, which has for its object to prevent, by this precaution, the opportunity which would be presented for the exercise of malice, and to guard against the damage which might otherwise be suffered in buildings and cultivated ground, in which, according to the law, it was not permitted to dig, under pretence of there being *Law 1, title 19, book 4, Collection of the Indies. † Odia restringi, favores convenit ampliari. Cap. 26, ord. 52. "The owners of them." "The owners of the mines." ers of the said mines." Escalona, in his Gozoph. lib. 2, part 2, cap. 1, page 104. "The own || L. 15, §. 2, ff. de damno infecto, ibi: "Cum autem in alieno fiat, satisdationem prætor injungit." ¶"Damnum infectum est damnum nondum factum, quod futurum veremur." Leg. 8, ff. de damno infecto. |