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mensions to all and each of the mines he may select. After indicating what these dimensions are to be, the ordinance adds, that no one shall require to have the boundaries set out, or set them out, until after ten days, during which time the discoverer shall have " defined the limits of the pertenencias he chooses to take as first discoverer” of the mine or vein. As therefore, he is at liberty to take several, the same rule of measurement must extend to all; for as there are several things to be defined, the manner in which they are to be defined under this direction, must be the same for one and all.* And it is evident from another provision, “ And each of the mines taken after those of the said discoverer, shall be 120 varas in length and 60 in width,” that those which the discoverer may have previously taken, are supposed to be of different and more ample dimensions.
5. The fact of its not being usual for the discoverer to take several mines of more than the ordinary dimensions, does not take from the authority of this law, which is general, and is not liable to be affected by the caprice of the subject; nor is it a sufficient ground to deprive persons of their legal rights, that other persons have omitted to exercise those rights, the omission depending on neglect, and not upon any defect of right; for had the ordinance been cited, with a demand to have it observed, no resistance could have been made to the claim. The non-usage of a beneficial law or privilege, does not annul it or weaken its force, unless, when an opportunity of exercising it has occurred, it have been formally renounced, or unless, when its fulfilment has been demanded, the contrary have been enforced. To maintain a right, it is sufficient that there be capability or power of exercising it; and such will be found to be the doctrine of Garcia, who lays it down nearly in these very words, upon the authority of Paulus, Angelus, Felinus, Platea, Jason and Innocencius. †
6. The reason of the practice having been, as it appears, not to apply for more than one discoverer's mine, is probaby to be found in the inability of the discoverer to undertake the expense of keeping a larger number at work ; but it by no means follows, that his title to the privilege conferred upon him by the ordinance is weakened, should he think proper to demand it. We are not aware whether this right has ever been denied, when brought in question, but we do happen to know that, in the viceroyalty of the Archbishop Don Juan Antonio de Vizarron, Don Joseph de Bustamante having denounced the Vizcayna vein, in Real del Monte, as having been insufficiently work
16, n. 47. Vela, dissert. 6, n. 1, et dissert. 29, n. 19. Garc. de nobilit. gloss. 3, s. 1, n. 25. Salg, de retent. p. 2, cap. 10, n. 32, L, non distinguemus, ff. de recept. arbit. L. præses, ff. de offic. præsid,
*"Determinatio respiciens plura determinabilia debet ea pariformiter determinare.” Salgad. de retent. p. 2, cap. 20, $. 1, n. 9, cum pluribus. L, si legatarius, $. 1, ff. de r. j. L. jam hoc jure, ff. de vulg. et pupil. substit.
† Garcia, de nobilit. gloss. 6, n. 37. P. Suarez, de leg. lib. 8, cap 84. n. 6 et 7. ·
ed, permission was granted to him, upon application for that purpose, and under the advice and opinion of Don Domingo Vacarcel, minister of the chancery of Mexico, a person of great judgment and learning, and of known experience in these matters, to assign the dimensions of 160 varas in length and 80 in width, to each of the new mines which he should discover in driving the adit of the Viscayna vein.
7. The order issued to Bustamante bears date the 1st of June, 1739, and is countersigned by Don Joseph de Gorraez; and it states the denouncement, and the second of the conditions proposed by Bustamante, which runs thus : “ Secondly, that your excellency would be pleased to declare, and to grant me the use, property and benefit of all the veins which may be found throughout the whole length of the said adit by me, my heirs, or those who shall, through me, become possessed of, or work the said adit, agreeably to the rules governing this matter, in the 31st and 82d ordinances of the new mining code. For which purpose, and in reference to the time when it may please God that I should meet with them, in any part of the said work, I do hereby register the same before your excellency, conformably to the aforesaid ordinances, and so that it shall not be necessary to make a new denouncement, upon each occasion of my finding new veins, but that this denouncement shall serve for all veins that may be found there, from time to time; it being understood that no person shall, for the future, be at liberty to work any vein in the space extending from the commencement, or mouth of the adit, in a straight line, to beneath the pits of the Vizcayna vein (upon which vein I do hereby particularly denounce all the pits which shall not have been kept properly at work, as directed by the ordinance); and not only throughout the whole length of the aforesaid adit, but also for the space of 160 varas in length and 80 in width, in each mine which I shall discover, on either side of the said adit, and in which I shall set up a fixed stake ; which di- · mensions I set forth merely as a form, and as the proper extent of each mine, but without waving my right to the whole length of the said adit, from the pits of the Vizcayna vein aforesaid, agreeably to the ordinances above-mentioned, providing, that the first discoverer (as I shall be in respect to the veins I may meet with) shall enjoy all the mines he may choose to take, and shall stake them out in such manner as he shall think best. As then, the adit aforesaid is to proceed in a straight line till it reaches a point beneath the pits of the Vizcayna vein, it will serve as a fixed stake for all the veins which may be found upon its course ; and, as the first discoverer is permitted to place his fixed stake wherever he pleases, and to measure from it a space of 160 varas, it is evident, that for every vein which may be found, 160 varas may be measured off on one side of the adit, and the same nnmber on the other, so that one mine shall be measured off upon each side,” &c.
8. That part of the order which refers to the second condition is as follows: I also declare the aforesaid Don Joseph Bustamante, to be the discoverer
erving in resp. for which pur denounced, I
of all the new veins which he may find throughout the course of the said adit, and that he may therefore, agreeably to the 31st and 82d ordinances of the new code aforesaid, take as many pertenencias as he may think proper, observing in respect thereof, all that is contained in the ordinances which relate to that subject ; for which purpose, deeming them, as I do from henceforth deem them, to be registered and denounced, I do adjudge them to him : and I grant him authority to take such fixed stakes as he shall think proper, from the commencement or mouth of the adit, in a right line, to beneath the pits of the Vizcayna vein (which is the vein he most particularly denounces), and to measure out the aforesaid space of 160 varas in length and 80 in width, for each mine ; understanding that this is to be the case with respect to new veins only, which shall not have been previously discovered ; but not with respect to the abandoned mines upon the Vizcayna vein, the dimensions of which latter shall be 120 varas in length and 60 in width only,” &c.
9. From this precedent (which unites all the qualifications required by the great Bacon, being a deliberate decision of the viceroy, given under the advice and opinion of a minister of as much experience and understanding as any who have flourished in New Spain), it is to be inferred, first, that the ordinance was understood in its proper and extended sense, not only by the person making the application, who was a very experienced miner, but also by the judges ; and secondly, that as Don Joseph Bustamante claimed and was allowed, the privilege of assigning the dimensions of 160 and 80 varas, to each of the mines he might take upon the new veins, so, were other dis. coverers to asserts their claims, the privilege would be extended to them also; and consequently, that all the mines selected by the discoverers within ten days from their first making registry of a new vein, ought to be of the full dimensions. That this is the meaning of the ordinances does, in fact, abundantly appear; for not only is it so expressed in the new ordinance, but the old ordinance also, under which the discoverer could take but two mines, leaving an interval of three mines between, † permitted the dimensions then allowed to discoverers' mines to be assigned to each, without making any distinction, in that respect, between the first and second. $
10. We must notice however, that this privilege is granted to the discover. er personally, in consideration of his diligence ; which appears from the words of the ordinance; “ Any person who shall have discovered, or shall discover, shall enjoy 160 varas, &c.;” shewing that the grant is made to him personally, and as a reward for the merit of the discovery. And as the ordinance assigns the term of ten days for selecting the mines, the right ceases at the expiration of that time, after which, or in default of any other of the requisites enumerated in the preceding ordinances, any mines which he may acquire, whether by purchase or otherwise, must be of the ordinary extent, and no more.
* Bacon. de Verulamio. de justitia universali, aphorismo 27. “In exemplis plurimum interest per quas manus transierint, et transacta sint, si enim apud scribas tantum, et ministros justitiæ ex cursu curiæ, absquo notitia manifesta superiorum obtinuerint, aut etiam apud errorom magistrum, populum, conculcanda sunt, et parvi facienda. Sin apud senatores aut judices, aut curias principales ita sub oculis posita fuerint, ut necesse fuerit illa approbatione judicum
saltem tacita munita fuisse, plus dignationis habent.” . Ord. 31, law 5, tit. 13, book 6, Collection of Castile.
$ Ord. 22, law 5.
11. All that we have stated applies to New Spain (where the ordinances of the new code are the laws by which the working of the mines is regulated); but by no means to Peru, by one of the particular ordinances of which kingdom it is directed ; “ That the discoverer of a vein may take a mine of 80 varas in length and 40 in width, at any part he may choose ; and also another mine of 60 varas in length and 30 in width, provided there be one mine between them.t" Notwithstanding this, the discoverers are allowed several privileges in that kingdom, such as that of taking these two distinct mines, or altering their boundaries in the direction towards which the vein inclines, even after a year has expired, † with others, as may be seen by reference to the same ordinances.
12. Having ascertained the number of varas which the discoverer or other miners are respectively entitled to take, we will next observe, that the 23d ordinance declares, that “ The discoverer shall enjoy a space of 160 varas in length upon the vein, and 80 in width ; and if he shall wish to measure out the said space of 160 varas and 80 varas, crosswise upon the vein, he shall be at liberty to do so, in such manner as he may find most convenient. And the others may take the 120 varas in length and 60 in width crosswise upon the vein, or as it shall seem best;" which are the same terms as are employed by the 22d of the old ordinances, $ in reference to the form in which the number of varas it assigns for the length and breadth of a mine are to be laid down.
13. Whence we perceive the error of those who conceive, that from the first words, “ a space of 160 varas in length upon the vein,” the length of the mine must be measured along the course of the vein; for under all the ordinances above referred to, the space of 160 and 80, or of 120 and 60 varas is allowed to be taken across the vein, or as the miner shall find most convenient, or deem best. And the 26th expresses it still more plainly, 6 Each one taking the number of varas he ought to take, wherever he may thihk proper or deem best ;” which is equivalent to saying that the length or breadth may be taken in any direction, right or oblique, at pleasure.
14. Don Joseph Saenz, in his “ Tratado de medidas de minas,” establishes the same doctrine, shewing that this is one of the circumstances in which the measurement of mines and of land, differ ; the latter being usually measured upon the four principal points of the compass, whilst mincs may be mcasured upon any of the 32 points, at the pleasure of the miner, who is authorised by the ordinances to measure out the number of varas, allowed to the mining pertenencia, either upon the course of the vein, across the vein, or otherwise, as he shall think best ;* and he adds, that the course of the vein itself is generally subject to variation. In another placet, he gives a mechanical illustration of the subject, by supposing a tambour frame to be taken, without any cross piece (atravesano), and made in the form of a parallelogram, twice as long as broad; which is the form both of the discoverer’s and of an ordinary mine, the length of these being 160 and 120 varas, and the width one half, respectively. He then fixes a nail in a table, to represent the fixed stake, and by changing or varying the position of the frame in every possible way, first to one side and then to the other, first towards one corner and then towards another, and alternately nearer or farther from the nail, but always keeping the nail within the frame, he shews the different ways in which the boundaries of the mine may be measured ; which may, in fact, be in any direction whatsoever, always preserving the fixed stake. It cannot therefore be doubted, that the miner may take the 160 or 120 varas, and the 80 or 60 varas, in any direction he pleases, either upon the course of the vein, or across it, as he shall find best.
* L. mortuo bove, ý. hoc. sermone, ff. de V. S. + Ord. 9, tit. 1, concerning discoverers; Escalona, Gazoph. lib. 2, p. 2, cap. 1, pag. 106. $ Ord. 8, Escalona, ubi proxime. & Law 5. tit. 13, book 6, ord, 22.
15. The object of the ordinance in granting this privilege, is to benefit the owner of the mine. For as the treasure lies sometimes along the course of the vein, which will itself vary in direction, and sometimes upon the inclination or underlay of the vein, which is either inferred from various signs known to professors in the art, or ascertained from pits or other works, sunk upon the vein ; it has been made a rule, in order to facilitate the acquisition of the ore, which is the only object of engaging in such laborious undertakings, that the space may be taken either across or upon the course of the vein, as the miner may judge most expedient.
16. Upon investigating the nature of veins, a great diversity is found in them ; so much so, that the position or course of one affords no rule for determining that of others. And although this subject is abstruse and difficult, its secrets being concealed in the bowels of the earth, whence it is more proper for the natural philosophers, who have discussed and explored the mysteries of the subterranean world, yet it is very appropriate to our subject to consider the varieties, the different courses and directions of veins, as ascertained by professors and men experienced in the subject; as this very diversity demonstrates the reasonableness of allowing the measurements of the mines to be taken in whatever direction may be conceived most favourable for the purpose. This subject has been exhausted by Perez de Vargas,
* Saenz, Tratado de medidas de minas, cap. 2, n. 22,