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circumstances will not admit of this arrangement being adopted ; in such cases, what shall appear in the opinion of the administrator of the district, and of other miners who shall understand this matter, to be most convenient, shall be done.
CONTENTS OF THE COMMENTARY ON THESE ORDINANCES.
1. Subject of these ordinances. 2. The rubbish heap of one must not incommode another. 3. It should be on the surface of the mine ; but is sometimes permitted to be made within. 4. The justice ought to inspect the tirnber-work and supports of the mines ; but they ne
glect to do so : in consequence of which, the lives of the workmen are endangered, and the interests of the public, and of the revenue, prejudiced; they, therefore, be
come responsible for these evils. 5 and 6. Of the form of the pillars of support, and their use. 7. Of the distance and thickness of the pillars. 8. The object of lining the pillars with timber, is to prevent their being destroyed by the
ore being stolen. They should be covered with the rubbish, or guards should be
placed there to watch them. 9 and 10. It is a great outrage to cut away the pillars, and the justice cannot give per
mission to do it; but should anxiously watch over the subject. 11. A licence cannot be given to remove the pillars, even upon condition of substituting
timber or stone in their place. 12, 13 and 14. What ought to be done if they be, in fact, removed. 15. It is within the ordinary jurisdiction of the courts, to punish for the removal of the
pillars. A royal order in support of this opinion. 16. Some mines, forming natural vaults, do not require pillars. 17. The depth of the pits, and their distance from each other, are left to the judgment of
the surveyors. 18. It is important that cisterns should be made to receive the water, and conduct it to the
pit. 19. They ought not to be cut away, even though the mine become barren ; nor should
the judges omit to punish such an act. . 20. Commendations bestowed upon those judges who exert particular activity in this res
pect, and likewise in punishing the fault of cutting away the pillars of the mine, or allowing it to fill with water.
COMMENTARY. 1. Of these three ordinances, the 41st agrees with the 44th, and the 46th with the 50th, of the old ordinances, but the 74th does not follow any other ordinance. They all look to the permanence and security of the mines. The object of the 46th, is to prevent rubbish from being thrown out upon the mine of another; of the 41st, to ensure the strengthening of the mines internally; and of the 74th, to regulate the arrangement of the pits and landing-places in the best possible manner, according to the judgment of the justice, and of experienced persons.
2. As to the first point, it must be remarked, that although the ordinances
have made the mines liable to various services, yet they do not intend that they should be burthened with the rubbish from other mines, lest they should fall in and be destroyed; their intention being, that each miner should make his rubbish heap in some convenient place, not upon the vein, nor upon the weak parts of the ground. But no question ever arises upon this point in New Spain, because, in that country, each person piles up his rubbish and builds his offices, upon his own ground, without inconvenience to others; and such rubbish is in fact useful, as it may be employed in erecting sheds and buildings to cover the pit, in furnishing earth for mortar, and in other ways.
3. As the mines are required to be kept free from rubbish, and their passages to be left clear, so that the works shall not be impeded, it follows necessarily, that it is incumbent on the miners to clear out and remove the rubbish and refuse. It may, however, be thrown aside within the mine, if there be any useless cavity in it; that is to say, the inutility of the cavity being first ascertained by the justices and surveyors, and it being shewn that the course of working will not be thereby interfered with, such cavity is allowed to be used as a depository for the rubbish ; by which means the expense of raising it to the surface is spared, whilst, at the same time, the giving way, or falling in of the mine, may be repaired or prevented.
4. As to the second point, of the strengthenings, bridges and supports (testeros), it will be recollected, that the ordinance enforces particular anxiety on the part of the justice, in visiting the mines, and causing inspection to be made by experienced persons, to ascertain whether they are well secured, timbered and strengthened with pillars of support. Nothing however, is more neglected than the observance of this precept, although it is, above all others, that which it most behoves the district judge to enforce, on account of the great loss in which the falling in of the mine involves both the revenue and the public ; and still more, from the melancholy effects of such a catastrophe, in overwhelming and burying the miserable workmen in its ruins, which are consequences of the very greatest moment. And as the cutting away of the pillars (as the miners express it), is a step generally prompted by the lust of gain, the owners should be fined, or subjected to some more severe mark of displeasure, as being the cause of these misfortunes, and of their attendant evils.*
5. Under the name of pillars, is included every thing which prevents the roof of the work, or the wall of the vein, from giving away. If the course of the vein be inclined, or underlying, the support left between the two walls, so as to unite them, is called a pillar. If the course of the vein be perpendicularly downwards, the pillars are made in such a manner as to rest one upon another. And when the pillar is formed, the work is proceeded in ; the roof being secured, so that it shall not give way or fall in.
* L. 21, tit. 32, partida 3 ; “They should faithfully and with great earnestness command those who are placed over the works, to execute them, so that nothing wrong ensue through their fault or neglect; and if they shall pot enforce the same upon their bodies, and all that they may possess, recourse must be had to the king thereupon.” Concordat L. 25, eod. tit, et partit. ibi : “He must keep it up and work it, in such manner that it shall not fall in through his default or neglect.” “ Qui causam damni dat, damnum dedisse videtur.” L. 21, tit. 24, part. 7. Krebs, de ligno et lapide, sect. 9. ubi domini tenentur quando damnum funium ac perticarum vetustate contingit. Et carpentarii tenentur de damno at ruina per negligentiam.
6. This is not their only use in the perpendicular veins, for they likewise serve to fix and support the ladders, and to afford a resting-place for the workmen ; so that if a workman slip, he will not fall to the bottom of the work, but will be intercepted by the pillar. 'They are also of important use in promoting the circulation of the air, so as to ventilate the works.
7. The distance between the pillars, whether in inclined or perpendicular veins, must be regulated by the firmness or weakness of the mine, and the constitution of the ground, which must also determine whether their thickness shall be two, four or five yards square. For greater precaution is required in some descriptions of ground than in others, so that the security of the mine, and what is more, the safety of the workmen, are consulted by making a pillar at every ten varas, or eight varas, according to the judgment of the surveyors, and the greater or less firmness of the ground.
8. The pillars are formed by leaving a mass of the rock or vein itself, and frequently consist of the very richest ore in the vein. In some places they are timbered ; that is to say covered with wood, as has been mentioned before ; in others, they are left bare. The object of the ordinance in providing, that when the quality of the ore exceeds a marc and a half per quintal, the pillars shall be covered with good timber, is merely for their permanent preservation ; to prevent their being destroyed by the workmen, for the sake of the ore, which they contrive to steal with the greatest dexterity, without a pick, wedge or crow, and without making any noise which can lead to their detection. But if the covering them with timber be omitted, on account of the great expense attending it, a guard, at least, ought to be appointed to watch them, or they should be covered with the rubbish and loose stones, which may be substituted in the place of wood. In default of all these precautions, it becomes the duty of the justice to supply the omission, according to the judgment of surveyors, at the expense of the owners.
9. When the pillars are once formed, the owner cannot destroy them, even though they should consist of the richest ore, without being guilty of great breach of the ordinances; nor can the justice authorise their being cut away, either to the extent of destroying them completely, or merely of picking and weakening them ; for the great object of the law, is to provide for the safety and permanence of the mines, and to prevent any giving way, which might lead to their total falling in, and endanger the lives of the workmen. And in case of its being proved and established, that such a catastrophe has been the consequence of the removal of the pillars, it would be proper that the
fault should be punished, not only by the forfeiture of the mine, but also by other more severe penalties, according to circumstances."
10. No precautions should be dispensed with to ensure safety, where imminent danger to the life of man is involved ; and consequently, as neither the preprietor, nor even an engineer, can be morally certain that the ground will hold together without pillars, and as also the permanence of the mine is made by the ordinance an indispensable object; neither the justice, nor any superior judge, be he who he may, can dispense with the precautions for that purpose, without rendering himself reponsible for the serious consequences which may ensue: but on the contrary, these officers are bound to punish the fault of removing the pillars, notwithstanding any pretext or excuse on the part of the owners. The chief alcaldes are bound to inform themselves, whether any impropriety has been committed in this respect, that an inspec. tion may be made, and the matter set right, by providing proper supports ; for it should be a primary object with them to provide for the security of the public, and the preservation and improvement of the mines. It would be very proper that these duties should be particularly noticed, when these justices render an account of the discharge of their offices : as the present neg. lect of those duties is attended with scandalous and lamentable consequences, in the frequent deplorable instances of the falling in of mines, and the consequent loss of life experenced.
11. Nor can the removal of the pillars be permitted, under pretence of substituting pillars of stone and mortar, or any other material in their place ; for besides that this would be contrary to the meaning of the ordinances, the security of the ground is not sufficiently provided for by it, nor is it possible, by means of pillars of this kind, to maintain that perfect equilibrium which is preserved by pillars formed naturally out of the substance of the ground; or to support the whole weight of a mountain, which will frequently give way upon removing a single stone from its natural bed, or upon weakening the support in the slightest degree: to say nothing of the great expense of putting up such supports, whether of timber or stone. But the princi. pal objection is, that the water and moisture which filtrate through the mines, prevent such works being constructed with stability.
12. Whence it follows, that if the owner of a mine should, in his eagerness for gain, proceed to cut away the supports, he is, in the first place, to be punished by a severe fine; and in the next place, inquiry is to be made, whether the mine will admit of being made secure by substituting artificial pillars of support, in the place of such as have been cut away or weakened ; or whether, on the other hand, it will not admit of being so repaired, but threatens to give way altogether. If the latter be the case, the owner must be ordered, not only to remove all the workmen, but also to close up com
* Vide supra, n. 4.
pletely, and at his own expense, all the levels which communicate with the unsafe cavity, to the satisfaction of the surveyors employed : for when a giv ing way occurs, the violence of the wind is so great, in its escape, as to carry every thing before it.
13. If, however, it be practicable to make the place secure by supplying pillars, it must be done, and as firmly as possible ; but at the same time, the owner is not to escape the penalty to which he has rendered himself liable by his criminal impropriety of conduct. In performing the work, prudence and discretion are to be observed, regard being had to the advantage of the public, without, at the same time, bearing hard upon the proprietor, or involving him in unreasonable expence. The works of support are therefore to be made upon a scale, not of magnificence, but of solidity, suited to the object in view.
14. It should also be ascertained, whether the ruin or falling in has been occasioned by the want of the pillar which has been so removed; for if it appear, upon inspecting the nature of the ground, and of the vein, its walls, backs and roofs, and from there being other pillars of support to bear up the weight, that there would have been no impropriety in leaving a greater space than usual between the pillars ; then, no great blame will attach for having weakened or cut away a single pillar, rendered superfluous by the number of others around. The safety of the mine, however, which is the primary object of the ordinances, must never be lost sight of. .
15. We have noticed elsewhere, the cutting away of the pillars of the mine Benitillas in the district of Zacatecas. And from this instance, in which the mayor, Don Phelipe Otadui y Avendano, taking upon himself to punish the offence, was supported by the decision of his majesty, in favour of his jurisdiction, and of that of the audiency of Guadalaxara, in opposition to the viceroy (who wished to take the cognizance of the matter into his own hands), it is evident that it would be highly commendable in the mining justices to direct great care and vigilance to this point ; and we are more particularly induced to enforce this, from our having been assured, by a person who saw and examined the mines, that in later times, such a falling in did actually occur in the above mine of Benitillas, to the great injury of the mines of Oyarzum and Urista.
16. In some places, natural vaults of extraordinary beauty and extent are found, exceeding even 100 varas in height and length. From their vaulted form, they are in themselves firm and strong by nature; and although fearful places to enter, yet their firmness is well known, and the miners work in them with security. They are found to contain ore, loose sand or earth, which the miners gradually remove, leaving the vault, store or depository, empty and hollow. And after removing the whole of the contents, they frequently, upon breaking in further, discover other vaults, to which they are guided by indications derived from the colour of the ground, or from the