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publication of the subsequent volumes, there will be presented, unabridged and entire, in relation to those branches of the law affecting the title to land, the entire chapters and titles in the Recopilacion of the Indies and the Novisima Recopilacion; also all the laws and decrees of the Cortes of Spain, and of Mexico that were in force in California, at the time of the cession to the United States ;—presenting thus the entire Spanish and Mexican legislation without any interruption. To this will bo added a summary of the decisions of the federal courts, in relation to Spanish titles, under the treaties of Louisana and Florida, and arising out of the annexation of Texas ; and all public documents proceeding from Congress or the departments of the government.
In the present volume, confined principally to the laws in relation to mines of precious metals, in addition to the materials furnished from the sources above mentioned, and the translation of the entire work on the Mining Ordinances of New Spain, there will be added the valuable commentary of Gamboa, so far as it is a commentary on the law, and omitting only the lengthened examination into the machinery to be used and other matters, interesting to the engineer and the workers of the mines, but having no relation to the law on the subject.
With regard to the character of this work, as it will deservedly occupy a large part of the volume, we give very nearly entire the preface of Mr. Heathfield, to his translation of it; also an extract form the decree of the king authorising its publication.
This is a treatise on the laws by which Spain and her several colonies were governed, in their mining affairs, at the period of its publication, and up to the year 1783. These laws were principally contained in certain regulations applying immediately and exclusively to the subject of mining, and consisting:
First,—Of a code of mining laws promulgated in the year 1584, commonly called the New Code, in contradistinction to other ordinances of anterior date, usually referred to as the Old ordinances. When the ordinances of the New Code were promulgated, the mines of America had not acquired much celebrity, and it was for the government of those of Spain alone, that these ordinances were framed. But it was afterwards directed, by a law of the Indies, that the ordinances of the New Code should be observed in those countries, when not at variance with the municipal lawj of each province. These ordinances form the text of the work of Gamboa.
Second,—Of Old ordinances, promulgated at different times previous to the year 1584, and remaining partially in force after that period; being repealed by the New Code, so far only as at variance with the regulations thereby introduced.
Third,—Of royal orders, of different denominations, either general or issued for particular kingdoms or provinces only.
Fourth,—Of colonial or provincial regulations, of force in the particular kingdoms or provinces only by the respective governments of which they had been issued.
Besides these, the general law of Spain the laws of the collection of the Indies, applying generally to all those countries, and the local laws of each kingdom or province of the Indies, occasionally required to be referred to, to supply deficiencies in, or assist the construction of, the laws more immediately regulating mining.
Such was the state of the law of mining in Spain and her colonies, in the year 1761, when Senor Gamboa published his Commentary. The plan of this work may be thus explained. The ordinances of the New Code, which form the text, are classed according to their subject, in distinct chapters; those contained in each chapter being separately considered. In the commentary, the author commonly gives a succinct historical account of the law, upon the points which form the subject of the chapter, from the earliest times to the year 1584; and after shewing how it stood previous to that date, proceeds to investigate how far the old regulations had been annulled by the new code, and how far they still remained in force, not being at variance with the provisions of that code. He next shows what alterations, if any, had been made by royal orders or provisional regulations since the year 1584 touching upon those of Peru, and other kingdoms or provinces, but referring more minutely and particularly, to those of the kingdoms and provinces now constituting the republic of Mexico. Having thus brought into view the regulations more particularly relating to the points under consideration, the author proceeds to illustrate them by comparison with the general rules of the civil law, the law of Spain, and the laws of the Collection of the Indies, and by referring to important cases decided in the courts, within his own experience, clearing up many doubtful points, pointing out deficiencies or redundancies, suggesting- important improvements, and, in fine, completely exhausting the subject in a legal point of view. He also gives, besides his exposition of the law, an account of the various methods of assaying and reducing the ores of gold and silver, and of the rules and practice of mine surveying; a variety
of particulars relating to the consumption of quicksilver in New Spain; a detailed plan of a mine-supplying company, and many valuable reflections on the working and supplying of mines by companies; a minute account of the regulations of the royal mint of Mexico; a glossary of mining terms, and a list of the principal mining districts of New Spain, with their distances from the capital, and other particulars: interspersing, throughout the work, a variety of incidental information, and many judicious remarks, drawn from his own experience.
The object and plan of the work, which are detailed more at length by the author, in his preface, being thus explained, it is necessary to show what authority it possesses, at the present time, as a legal treatise.
From the year 1761 to 1783, no material alteration took place in the mining laws of Spain and her colonies. In the latter year however, a code of laws was issued, under the title of Mining Ordinances of New Spain. It was framed, as the title imports, for New Spain alone, but was subsequently adopted -in all or most of the other Spanish colonies. In the regulations which concern the working of the mines, this code very closely follows the former ordinances; and where alterations are made, they are, not unfrequently, adopted from the suggestions offered in the work of Gamboa. As to other points, the most important changes introduced by the ordinances of 1783, were, the erection of the Tribunal general de Mineria, and the Diputaeiones de Mineria, or general and local tribunals, to which the exclusive jurisdiction in mining affairs was confided;—the establishment of a bank of supplies ;—and the organization of a school of mines. But this code left the former ordinances and other mining laws in force, so far as they should not be at variance with the regulations it established, and hence the work of Sefior Gamboa, which was, previous to the year 1783, the paramount authority in all doubtful cases in mining affairs, continued; after that date, to be regarded with the highest respect, and was and is still, constantly refer red to in the courts of Mexico, and as is presumed, of the other new republic of America also, as a great authority on such subjects.
Upon the establishment of the independence of the Spanish colonies, they all or most of them adopted, in reference to mining, the laws existing previous to their separation from the mother country, with such modifications only, as were rendered necessary by the alteration from a monarchical to a republican and federal form of government. In Mexico, the principal of these alterations, consisted as follows :—
First, in the abolition of the general tribunal of mining, the functions of which were devolved to the mining deputations or local mining tribunals of each state; and,—
Second, in a decree of the sovereign congress of Mexico, promulgated in the year 1823, empowering foreigners to hold shares in the mines furnished by them with supplies of money or stores; a translation of which will be found in the subsequent pages.
The following changes have also been introduced, in several of the states of the federation :—
By a decree of the congress of the state of Durango, dated the 23d of November, 1824, it was resolved, that a Tribunal de Mineria, or mining court, for appeals in the second instance, should be established, to consist of a lawyer and two miners. And by another decree of the same congress, dated the 18th January, 1825, it was ordered, that the tribunal of mining appeals should exercise the same functions, in that state, as had been previously granted to the tribunal established at Guadalaxara.
By an order of the congress of the state of Chihuahua, dated the l6th of March, 1826, the contentious jurisdiction of the mining deputations was trans, ferred to the ordinary courts. And by a decree of the same congress, of the 7th of October, 1826, the mining deputations were made subject to the supreme government of the state, in all matters as to which they had previously depended on the general tribunal of Mexico, not being inconsistent with the present republican system.
Finally, by a decree of the congress of the state of Guanaxuato, of the 24th of April, 1827, the contentious jurisdiction of the mining deputations was transferred to the ordinary tribunals of justice, their ministerial and economical authorities as well as the ministerial and economical authorities of the extinct general tribunal, remaining vested in them. These are the only reg' ulations by which any changes of importance are understood to have been introduced into the mining laws of the republic of Mexico, since the establishment of its independence.
No work of authority has been published on the subject of the mining laws of Spain or her colonies, since that of SeHor Gamboa. There exists in manuscript, a series of notes on the code of 1783, committed to writing by VeLasquez, a lawyer of great eminence, under whose opinion and advice that code was principally framed; but the work, although considered highly val uable, has never been published.
Don Francisco Xavier de Gamboa, was born of a distinguished family in Guadalaxara in New Spain. After a highly honorable career as an advo. cate in the courts of that country, in the course of which, although he devoted his attention more particularly to the laws of mining, he acquired the reputation of being, generally, one of the most accomplished jurists of his time, he was appointed deputy, at the court of Madrid, of the consulate of commerce of New Spain, and whilst residing at Madrid iu that character, he produced his celebrated Commentary. After several years passed in this manner at Madrid, he was appointed regent or president of the audiency or supreme court of St. Domingo, which he accepted, as it is believed, with some reluctance, having entertained the hope that Mexico, which had been the scene of his labours, would also be that of his reward. It is supposed, however, that Galvez, the minister of Charles III. objected, from some concealed motive, to his being placed in Mexico; and this opinion is strengthened by the fact, that upon the death of Galvez, he was appointed to the high office of regent of Mexico, which he occupied with much credit and distinction, till his death, having lived to see his sons established in high situations in the church and the government, and long enough to acquire the general respect and esteem of all who came within the range of his authority.
The following is an extiact from the royal decree:
"By The King.—Forasmuch as Don Francisco Xavier do Gamboa, advocate of my royal audiency of Mexico, and deputy at this court, of the consulate of commerce of the kingdom of lSTcw Spain, has presented to me a book, entitled "Commentaries on the Mining Ordinances," which he has written solely with the view of giving publicity, by means of his application and industry, to the acquisitions he has made on the important subject to which the work relates; and has requested that I would bo pleased to grant to him, my royal licence to print the same, in consideration, not only that the new and copious information he has collected, and the exposition he has given of each separate ordinance, embrace matters which concern the private rights of my subjects, as being interesed in the direction, economy and government of the mines, in the determination of controversies concerning them, in the rules of registering, denouncement, taking possession, and all that constitutes mining jurisprudence,—but also that the aforesaid commentaries treat of questions of importance to my own public rights as sovereign, and investigate the means of giving greater extent and facility to the operations of mining, of improving my revenue, and of promoting commerce and the prosperity of the state in general. Having therefore considered the above in my council of the Indies, and heard what my fiscal has thought it fit to submit, and taking notice also, that the object of the work above mentioned is not to propose