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nance in opposition to that to which we allude, nor have we ever been advised of or met with any precedent to the contrary; whence it follows that it must still be in force. And it would certainly be a great incitement to the discovery of new veins, to put this rule in practice, whenever the case might occur, to which there could be no objection, as the giving a greater number of varas is a trifling object, when compared with the benefits resulting from the discovery.

26. We have seen but one of the ordinances of Peru referring to this point, and that we have set forth when illustrating some of the preceding ordinances. It provides," that whoever shall discover a vein more than one league from any place where there is a mining settlement," shall, as to such vein, "enjoy the rights of a discoverer;" whence it would follow, that within a less distance than one league, he shall not enjoy such rights. But as this is a municipal ordinance, framed for Peru alone, it does not affect those of Castile, which are to be observed in New Spain; besides, this ordinance of Peru proceeds to declare, that every person who shall discover new veins, shall have a mine of 60 varas upon each of them, until he has six mines, although not a discoverer of a new mineral tract; which liberty of holding six mines is a privilege, as compared with the rights of an ordinary miner; for by a preceding ordinance no person can hold more than three silver mines, although on different veins, and whether purchased or obtained by registry; and if any person should take a greater number, any other person is at liberty to apply for the excess. ‡

27. We stated, at the outset, that this ordinance has altered the 22d of the old ordinances, by allowing the miners a greater number of varas; but it is to be observed, that the latter directs that a mine shall be set out for the crown, next to the discoverer's mine, and of the same dimensions ;§ and as our ordinance does not notice this, and ordains nothing to the contrary, it seems that the old ordinance is not altered in this respect. This rule of allotting a mine to the crown, prevails in Peru ;|| and Agricola states, that in Germany, it was the practice to set out six double mines, after the discoverer had taken his; one for the king or prince, another for the queen, another for the master of the horse, another for the gentleman or cupbearer, another for the chamberlain, and another for the warden of the mines. T

28. Don Joseph Saenz says, that our ordinance has altered the old or. dinance as to this point; and that had it not intended to do so, it would not have passed over a matter of so much importance, and so directly affecting * Escalona, ubi sup. tit. 1, concerning discoverers; ordin. 14. Vid. sup. cap. 8, n. 7, in marg.

Ord, 13, loc. ubi sup. apud Escalonam.

§ Ord. 22, law 5, tit. 13, book 6, Collection of Castile.

Ordin. 18, tit. 1, concerning discoverers; Escalona, Gazoph. lib. 2, part. 2, cap. 1, pag. 108. Agricol. de re metall. lib. 4, pag. 57. "Deinde magister metallicorum debatvenæ inventori demensum. Postea unum demensum regi, vel principi, alterum ejus uxori, tertium magistro quitum, quartum pincernæ, quintum cubiculario, sextum sibi ipsi."

the interests of the crown, as we have noticed in another place." Without admitting however, that any such alteration is distinctly to be collected, we agree that the custom of New Spain has proceeded upon this hypothesis, for it is not the practice, in that country, to set out a mine for the crown. And such mines, even if set out, could not conveniently be worked on account of the crown, nor could they be leased or sold to advantage: for if the first course were pursued, the revenue would be exposed to risk; and if the second were attempted, it would be in vain, for all the other mines being made common, and liable to be registered at pleasure, no one would be found willing to purchase or take on lease, this particular mine; and in the mean time, the space occupied by this mine would remain unproductive, instead of benefiting the revenue by returning the fifths and other duties, as it might, if worked by an individual. Neither is it the practice in Peru, according to Escalona, who refers to several royal orders, to work these mines on account of the crown; but they are directed to be sold or leased, which it must however be difficult to accomplish; and consequently, whilst the difficulty of finding a person willing to purchase or take the mine on lease, continues, it must remain unproductive.

29. The orders cited by Escalona, form the basis of a law of the Collection of the Indies, directing the viceroys and presidents to inform themselves of the quality of the mines of gold, silver or quicksilver, belonging to the crown, and to cause them to be worked, leased or sold, which law extends to both the continents of America generally. Agreeably to this law, it cannot be doubted but that the king, as lord of the mines, and in exercise of the high and supreme right he enjoys over them, might take all or any proportion of the mines at pleasure; for, as we have stated in Chapter II., he has only admitted his subjects to a partial interest in them. But as the fifth, tenth or twentieth part of the produce has been fixed as a satisfaction for his interest in the mines of New Spain, and as it has never been considered expedient to work any of the mines on account of the crown (the only instance we know, being that of the copper mines of Santa Clara, in the jurisdiction of Pascuaro, in Mechoachan, which are leased out),§ it follows, from the evidence afforded by these customs and practices in New Spain, that the intention of the sovereign is that the mines of gold, silver and other minerals, should be worked by his subjects, and not on account of the revenue, not wishing to expose his finances to the hazards and risks of mining. And no mines of gold or silver have ever been taken in that kingdom, for the purpose of being leased or sold, on account of the crown, not only on account of their great abundance, but also because the viceroys sensible of the nature of

* Vide sup. cap. 2, n. 18.

† Escalona, locis ubi proxime.

Law 2, tit. 11, bonk 8, of the Collection of the Indies.

§ Vide sup. chap. 3, n. 39.

this kind of property, which will sometimes rapidly advance to a state of pros perity, and at others as rapidly fall off and become barren (all which renders it difficult to sell or lease it), have not thought proper to do so.

CHAPTER X.

OF THE NECESSITY OF SETTING OUT BOUNDARY STAKES, AND OF THE TERM ALLOWED BY LAW FOR THAT PURPOSE, AS WELL WHEN THE OWNER OF THE MINE, WHO IS REQUIRED TO SET THEM OUT, IS ABSENT, AS WHEN HE IS PRESENT.

ORDINANCE XXIV.

Also, we ordain and command, whether with regard to mines heretofore discovered, or to such as may hereafter be discovered, that if any person shall require to have boundary stakes set out by the first discoverer or by any other persons who may have set out boundary stakes, after having registered their mines; such first discoverer, or such other persons as aforesaid, shall be obliged to set out such boundary stakes, within ten days from the day when they shall be required to do so, if they be at the mines. And if they shall not set them out, then, after the time aforesaid, the mining justice, who shall, under these our ordinances, have cognizance of such matters, shall set out such boundary stakes, taking with him persons who understand staking out mines, and who shall be sworn; and if the person of whom the request is made, be not at the mines, but be in the vicinity, within ten leagues of such mines, he shall be obliged to set out the boundary stakes within fifteen days; and if he do not set them out by the expiration of such fifteen days, the said justice shall set them out as aforesaid. And if the party be not in the vicinity of the said mines, nor within ten leagues thereof, notice shall be given to his steward, or to the person who shall have charge of the working of the mine, or be left at his house, if he have any, and public proclamation shall be made upon the first holiday which shall occur. And the term of fifteen days shall commence to run from the day of the notice being given to such steward or other person, or being left at his house; and such proclamation shall be posted upon the door of the church of the said mines; and if there be no church at the mines, then upon that of the nearest town. And when the said term of fifteen days is expired, the said justice shall set out such boundary stakes as aforesaid, observing in setting out the same, that there must always be a fixed stake, which must be adhered to, and must not be abandoned in staking out or altering the boundaries.

CONTENTS OF THE COMMENTARY ON THIS ORDINANCE.

1. What is meant by setting out boundary stakes, and applying to have them set out. 2. Of the term fixed by law for setting them out.

3. The time is peremptory, and the judge has no discretion.

4. A provision of the ordinance, in case of the owner being absent.

5. The propriety of allowing the steward, in such case, to set them out, is shewn.

6 and 7. Whether the term shall run against the proprietor when he is unavoidably de

layed. Grounds for replying in the negative.

8. The contrary opinion proposed and established.

9. Refutation of the arguments on the other side.

10, 11 and 12. What is to be done, in case the owner of the mine should be absent at more than ten leagues distance.

COMMENTARY.

1. Having ascertained the number of varas the discoverer is allowed in his mines, and the common or ordinary miners in theirs, this ordinance which follows, proceeds to state the term within which boundary stakes must be set out, if required by a neighbour. It must be observed, in the first place, that an application to set out boundary stakes is said to be made, when a miner of longer standing is required to mark out the number of varas he chooses to extend his mine, in this or that direction, on the side on which the mine of the person who makes the requisition is situate; and when his mine is so measured out, the rest remains for those who have not yet measured out their boundaries. The reason why it is necessary to apply to have the boundary stakes set out, is, that the miner of longest standing has a right to measure out his boundaries first; and that after measuring them out, he is at liberty to alter them on that side on which he has not set out boundary stakes, as will be seen by subsequent ordinances. The party who sets out boundary stakes, is he who first makes measurement; and the party who applies to have them set out, is he who demands to have the boundaries of the oldest mine measured, that he may afterwards measure out those of his

own.

2. This being the case, if the person or persons who are required to set out boundary stakes, are present at the [mines, they must, according to the 24th ordinance, and the 22d, of which we have already treated,† set them out" within ten days;" if they be absent from the place, but be in the vicinity, and within ten leagues, then within fifteen days; and if they be not in the vicinity, nor within the distance of ten leagues, but at a greater distance, a proclamation is to be made on the first holiday, and is to be posted up at the church of the place, and if there be none, then at the nearest church; notice is to be given to the steward, or person who may have charge of the mine, or a summons or notice is to be posted up at his house, from which

* Chaps. 11, 12, 13.

† Chap. 8, ordinance 22.

time fifteen days more are reckoned, within which he must set out the boundary stakes. And if it be not done by the expiration of that period, in each case respectively, the justice must do it, with the assistance of surveyors, who shall make the measurement upon oath. And the 23d of the old ordinauces, granting a shorter time, is so far repealed.

3. These periods, being definitively fixed by law, cannot be enlarged, and are not subject to the discretion of the judge; just as the term of four months, after which the ordinance makes a mine liable to be denounced when insufficiently worked, cannot, according to the laws of the Indies, be enlarged by the viceroys or other judges;* in analogy to the well-established rule applied in regard to appeals, and other judicial proceedings, which cannot be resorted to after the lapse of the period allowed for the purpose.† Besides, it is reasonable, that if the neighbouring mine owners wish to have the boundaries of their mines measured out and ascertained, some fixed time should be assigned for measuring out or altering the boundaries of the older mine, and that the owners of the more recent mines should not be liable to be kept in suspense, and uncertain in what direction to measure their boundaries, until their neighbour should think proper to measure out or alter his limits, by deciding to take this or that particular direction.

4. And since it ought not to be in the power of one proprietor to prevent the owners of other mines adjoining, from ascertaining and measuring out their boundaries, or to frustrate and delay them in that object, the ordinance has made abundant provision, that in case of his absence, whether it be voluntary or of necessity, and whether upon just cause or otherwise, he shall, if within ten leagues, be summoned; and if he be at a greater distance, that the business shall be transacted with the steward or person in charge of the mine, or that a paper shall be left at the house of the owner, if he have one, a proclamation being made, which is equivalent to a public citation or summons.‡

5. The ordinances permit the steward to discover mines for his employer, and to set out boundary stakes, or apply to have boundary stakes set out in the mines he may discover during his absence :§ but it is still more reasonable that a person in this station, who is supposed to be skilful and experienced in these matters, and appointed to his office for this amongst other purposes, should, in obedience to the directions of the judge, which he is bound to obey, set out such boundary stakes, in such directions, and to such extent, as he may deem most expedient. The practical importance of this ordinance has been very evident in various cases which we have witnessed; as for

*Law 6, tit. 19, book 4, Collection of the Indies.

Law 1, tit. 18, book 4, Law 1, tit. 19, book 4, Collection of Castile.

Law 10, tit. 7, book 3, Law 3, tit. 10, book 4, Collection of Castile. Infr. chap. 13, ord. 39, "It shall be good, and shall be deemed a sufficient citation."

§ Vide ordin. 34, infra, chap. 15.

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