ro Terreros, knight of the order of Calatrava, and the Marquess de ValleAmeno, to whom Terreros and his partner, Don Joseph Alexandro Bustamante, had given a mine in the mining district of El Monte, upon the understanding that they might resume it any time they might think proper: desiring him, at the same time, if he should cease to work it, from its not turning out well, to advise them, that they might take it into their hands. This transaction took place in 1747, and in the year 1753, Terreros claimed to resume possession of the mine, alleging that it had only been granted by way of a precarious gift or loan, and that the grant was therefore revocable at any moment.*

21. But it was insisted by the author, on the part of the marquess, that the gift was a complete, and not a precarious one. That a precarious gift is revocable at any moment, even though there be a covenant not to revoke it† but that it was inconsistent with the nature of the transaction in question, to suppose that it could have been the intention of the parties concerned, that the marquess should take the mine, lay out money in timbering and draining it, and in driving a level and air holes for ventilation, as he had done, and yet that he should be liable to have it taken away from him at any moment; particularly as the donors, in the letter in which they expressed their consent to his working it, had wished him the best success. In support of which view, the author referred to the doctrine of Paulo de Castro, who make a distinction between the case where acts in their nature merely temporary, are permitted to be done upon the ground in question; as throwing down sand, lime, or stones; in which case the contract may be presumed precarious :— and the case where acts are permitted of a nature which cannot be regarded as merely temporary, but as permanent;—as when permission is given to build or to fix up beams, in which case a gift is presumed: so that the nature of the grant is to be collected by referring to the subject matter, and the circumstances attending it, agreeably to the text of the civil law; which is treated as a proper direction by Angelus and Cepola. Upon the second branch

of this distinction, we rested our argument in favour of the marquess; as the working of a mine requires not only the erection of a shed, but the timbering of many yards of the pit and other works, which of themselves imply a permanency of interest, incompatible with the nature of a precarious gift, and reconcilable with that of an absolute gift only. And it was so decided by the royal audiency of Mexico, overruling the arguments relied on by Terreros, as entitling him to resume the mine, either on the ground of the gift being a

* L. 1, et 15, ff. de precar.

† Hermosilla, in L. 9, tit. 2, partit. 5. gloss. 1, n. 11, ibi : “Non valebit pactum, quod nisi tempore non restituatur."'

+ Paulus de Castro, in L. si precareo, § ult. n. 4. Angel, cons. 1, n. 7. Cæpola, de servit. urban, præd, cap. 73, n. 6. L. si uno in principio, ff. locati, apud Mantic. de tacit. convent. lib. 13, tit. 5, n. 9.

precarious one, or of the mine having been left unworked, of which last point we shall take further notice elsewhere.*

22. But as every different transaction involves different agreements and other circumstances requiring to be taken into view, so that it is impossible to regulate them all in the same manner, or by the same rules, it is evident, that if there be an express agreement to grant the mine by way of a precarious gift or loan, then, as the agreement of the contracting parties is that which gives laws to the contract, the use of the mine must be regarded as precarious, with regard to the time for which it is granted, although the ore raised must always be regarded as a gift; for it is evident to common sense, and has been shewn by the Cardinal de Luca, when treating of salt mines,† that the only use of which a vein is capable, is that which consists in digging and working it.

23. Having seen what are the rules requiring observance in New Spain, under the ordinances of Castile, we proceed to state briefly, that it is provided in Peru, by the peculiar ordinances of that country, that the mine shall be sunk to the depth of six varas, and dug to the width of three, within sixty days, under pain of forfeiture; so that it shall be liable to be adjudged to any other person, which person, however, will also be required to sink the pit four estados more, or make a new pit of that depth, under the like penalty of forfeiture; and that mines cannot be sold or alienated, until sunk to the depth of ten estados at least, under pain of the sale being annulled, and of the mine being adjudged to any one who may apply for it, even should the purchaser be at work upon it; and the judgment, both in this and the other cases, is to be made in a summary way, upon the truth being ascertained. As to which the doubts, rules and limitations we have before suggested, as being agreeable to law and to the nature of mines, will apply.

*Chap. 17, n. 7 and 8.

† Luca, de regalib. d isc. 117, n. 6, ibi: Juxta majorem vel minorem materiæ hæsitationem, in qua verè et propriè consistit valor seu substantia appaltus." Et num. 17, ibi; “ Hinc proinde habemus, quod quando fodinæ dominus illam locat, aliud concedere non dicitur nisi facultatem utendi pro eo tempore, quo elapso cessat, ut bene Gutierr. de gabell, quæst. 36, n. 10; et conferunt quæ apud Socin. cons. 156, lib. 2, quod non importat aliud nisi jus, seu facultatem privativè venden di eam mercem statuto tempore, cmendo aleam lucri, vel respectivè damni, resultantis a majori vel minori hæsitatione in tempore statuto." Et num. 18. "Tune earum fructus consistere dicitur in ipsius substantiæ annuali, seu temporanea consumptione, et hæsitatione."

Ord. 1 and 2, tit. 7, concerning insufficient working; Escalona, Gazoph. lib. 2, p. 2, cap. 1, pag. 115.

39

CHAPTER XVII.

OF THE NUMBER OF FOUR PERSONS REQUIRED TO BE KEPT AT WORK IN MINES OF GOLD AND SILVER, AND OF THE PENALTY OF FORFEITURE WHICH ATTACHES UPON THEIR BEING LEFT UNWORKED FOR FOUR SUCCESSIVE MONTHS, AFTER WHICH THERE CAN BE NO RESTITUTION OR OTHER REMEDY.-OF THE DESCRIPTION OF WORK ABOUT WHICH THEY MUST BE EMPLOYED, AND WHICH IS DETERMINED TO BE ANY KIND OF WORK, WHETHER UPON THE SURFACE OR IN THE INTERIOR, TENDING TO THE HABILITATION OF THE MINE-THE ONLY GROUNDS OF EXEMPTION FROM THE PENALTY ARE, THE OCCURRENCE OF PESTILENCE, FAMINE OR WAR.—CONSIDERATIONS ON THE DEFICIENCY OF HANDS FOR THESE MOST IMPORTANT WORKS.

:

ORDINANCES XXXVII. LXXI.

XXXVII. ALSO, forasmuch as it commonly happens, that there are persons who hold many mines which they have taken, discovered, purchased or acquired in some other manner, and who do not work them or keep them in activity, either because it is not in their power, or because they are engaged n working others which they consider better, in consequence of which they eglect to sink or explore the former mines, or to raise the ores from them, although sometimes better than the ores raised from the mines prosecuted by them and whereas the mines they omit to work as aforesaid, become filled with water, to the injury of other adjoining and surrounding mines, which are kept at work, and which become deeper than the former. Wherefore, to obviate these and other inconveniences which follow or might follow from not working the mines,-We ordain and command, that all persons shall be obliged to keep their mines worked by at least four persons in each mine or pertenencia, whether they be sole proprietors of such mines or hold them in partnership; for however that may be, the setting on such four persons in the whole extent of each mine, shall be sufficient to shew that such mines are kept at work; which four persons aforesaid are to employ themselves about the working of the mines in which they shall be set on, in raising water or ore, or in doing some other work for its improvement, either within or without the mine: under the penalty, if any mine whatsoever shall not be kept worked by such four persons as aforesaid, during the term of four months successively, that the person to whom it may belong shall, ipso facto, forfeit it, and that he shall, from that time forth, have no right to the mine, unless by making registry thereof anew, and going through the other proceedings, in conformity with these ordinances; such mine to be adjudged to any person who may denounce it as insufficiently worked, provided he go through the proceedings aforesaid. But if, from any reasonable impediment,

* Habilitation, as applied to mining, is the bringing a mine, or part of a mine, into a working state, or the maintaining it in that state.-Trans.

such as war, mortality or famine, occurring in the part or place within the jurisdiction of which the mine may be situated, or within twenty leagues around, it shall be impossible to keep it worked by such four persons: in these cases, the aforesaid term of four months shall not run. If, however, such impediments shall exist out of the jurisdiction within which such mine shall be situated, and beyond such twenty leagues around, this shall not be admitted as an excuse for not keeping the mine at work, according to and under the penalties contained in this our ordinance.

LXXI. Also, we ordain and command, that all who shall be possessed of mines or streamworks of gold, shall be obliged to keep them at work, as is commanded with regard to working the mines of silver, under the penalties hereinbefore declared.

CONTENTS OF THE COMMENTARY ON THESE ORDINANCES.

1. In case of neglecting to keep four persons at work in the mine, for the term of four months, the forfeiture thereof is incurred.

2. The ordinances of Peru were originally more strict, but were relaxed by the Marquess de Cañete.

3. Difference between possessing a mine, and keeping it worked.

4. Any kind of labour, either internal or external, applied to the substance and soil of the mine, or having relation to the mine and its habilitation, is a sufficient working.

5. But not so the setting up machinery or reducing the ores.

6. By the law, the term of four months cannot be enlarged, even by the viceroy.

7. An important suit on the question, whether a mine had been kept at work, between Don Pedro Terreros and the Marquess de Valle-Ameno, before the royal audiency of Mexico.

8. An executory sentence was given in favour of the marquess, by the viceroy and audiency, and confirmed by the council, who declared a supplication to be inadmissible. 9. Of the strictness with which the keeping at work should be established.

10. Ground upon which the council refused to admit a supplication on the part of Terre

ros.

11. If the term of four months, during which the mine is omitted to be kept at work, be not continuous, the mine is not forfeited.

12. The plan of setting hands to work, merely to interrupt the period of four months, seems contrary to the ordinance.

13. But the ordinances must be observed, and the justices ought anxiously to endeavour to keep up the works.

14. A mine left insufficiently worked, and set to work again without a new registry being made, does not become the property of the person so working it anew, but is liable to be denounced.

15. Upon which it shall be adjudged to the denouncer, although the former owner be working it at the time.

16. War, pestilence and famine, prevent the term from running.

17. No circumstance which cannot be reduced to one of the above three, is admissible as

an excuse.

18. Minority in age, absence on public affairs, &c. afford no excuse, and why.

19. There is no restitution after the lapse of the period of four months, but re integrâ, the mine may be registered anew.

20. Re non integrâ, it cannot be registered, nor will restitution be allowed, in opposition to the rights of third parties.

21. The law of itself divests the rights of the party who has abandoned the works, and transfers it to the party making denouncement.

22. There is a right to recover over, against a tutor or curator leaving a mine unworked. An ordinance of Peru, providing for the interests of absent heirs.

23. If the mine have not yet been adjudged to the party who has denounced it, and he have not laid out money upon it, it may be restored.

24. Extreme poverty affords no ground of exemption from the penalty for leaving the mine unworked.

COMMENTARY.

1. These ordinances, which follow the 40th and 76th of the old ordinances, provide, that whether the mine belong to one proprietor, or to several in partnership, it must be kept worked by at least four persons. The objects looked to by the sovereign in imposing this condition, are important, as may be collected from the ordinances themselves; the chief of them is the raising of the ore, which cannot be effected without workmen and as four persons are but a trifling number to employ in the whole extent of a mine, the works of which, upon ore or dead ground, generally require many more, there is no excuse for omitting to supply that number, except under the unusual and accidental circumstances provided for by the ordinances themselves. Under any other circumstances, it will be difficult to find a case where so limited a number of workmen as four, cannot be procured; and a miner leaving a mine insufficiently work for four months successively, certainly deserves to lose it, for his neglect. By the old ordinance, now altered, the term was only two months.

2. In Peru, the term fixed by the ordinances, after which a mine might be denounced for insufficient working, was very limited. In mines of 60 varas, eight Indians or four negroes were to be kept at work, besides the miner; and in those of 30 varas or under, four Indians or four negroes: and if this number was left incomplete during twenty days, or if no work was done for six successive days, during such twenty days, the mine was liable to be applied for and adjudged as unworked; but the viceroy, Marquess de Cañete extended the time to a year and a day. These ordinances also provided, that if any person had a space of 60 varas, at two or three detached points, or had several mines, he must set on that number of persons at each point; but this rule was afterwards annulled by the supplement of Lupidana, it being ordered, that a person having several mines, should keep up his right to the whole number, by carrying on one or two works; as is set forth by Escalona, citing Montesinos, in his Politica de Mineros.†

* L. 5, tit. 13, book 6, Collection of Castile, cap. 40 and 76.

† Escalona, in his Gasoph. lib. 2, p. 2, cap. 1, tit. 7, concerning insufficient working; ord. 3

and 4.