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ishment, according to the hcinousncss of the offence; from which commuted sentenco there shall bo an appeal to our chief accountant of finance as aforesaid, and to no other tribunal whatsoever, whether such commutation be made by the administrator of the department, or the administrator-general.
THE CIVIL AND CRIMINAL JURISDICTION IN SUITS CONCERNING MINES, BELONGS TO THE JUSTICES, SUBJECT TO AN APPEAL TO THE ROYAL AUDIENCIES; AND THE VICEROYS HAVE NOT AUTHORITY TO TAKE COGNIZANCE OF SUCH MATTERS; BUT THE ADMINISTRATIVE AUTHORITY IS, BY THE LAWS AND SEVERAL ROYAL ORDERS, VESTED IN THE VICEROYS.
Also, forasmuch as we are informed, that one of the causes preventing the regular working of the mines heretofore discovered, and the search for and discovery of new mines, is the occurrence of suits and disputes amongst those who are concerned in and work them, and the inconvenience and vexation caused amongst the officers and workmen engaged in the mines, by the justices and other persons, arising both from such justices not having had proper practice and experience in mining affairs, and from the suits being conducted in the ordinary deliberate manner; in consequence whereof, the property of the parties being expended and consumed, in the proceedings had before the justices and the other tribunals to which they have recourse by way of appeal, they are incapacitated from prosecuting the discovery and working of such mines; whence follows notable damage to ourselves, to these our kingdoms, and to our subjects therein: Wherefore, for a remedy thereof (as a matter of so much importance), and in order that all persons may be encouraged to discover and work the aforesaid mines, we have resolved to appoint, and we shall appoint, an administrator general, and such other administrators as may be necessary for the departments and districts which may be fixed upon, who shall be persons of practice and experience in such matters, and who shall have government and jurisdiction over all the aforesaid mines, and all matters relating thereto, and shall be superior to all persons concerned about such mines; and they shall take account and notice thereof, and shall take particular care that all the rules of these ordinances be observed and fulfilled, and they shall enforce the same, and cause them to be observed and fulfilled, agreeably to the order and instructions which we shall direct to be given to them accordingly. And they shall have jurisdiction to take cognizance and shall take cognizance, in the first instance of all suits, causes and matters, whether civil, criminal or relating to execution, which may be, arise or be agitated in each district, and they shall be at liberty and shall be bound, to take cognizanco of the same, agreeably to these ordinances, in the following manner, that is to say :—If the administor-general be in the district of the department in which such suits may arise, he shall take cognizance of the same; but if he be not in the district, the administrator of the department shall take cognizance of them; and if the administrator-general shall leave such department, he shall refer the causes of which he may so have taken cognizance, in tho state in which they may then be, to the administrator of the same department, who shall proceed with, and bring the same to a conclusion, agreeably to these ordinances: and if the admini-trator-general aforesaid shall return to such district, and shall find the causes which he shall have so referred, still undetermined, he shall be at liberty to resume the cognizance of the same whilst he may be there. And we command such administrator-general, and administrators of departments, to do and administer justice to the parties, in tho cases and matters of which they may take cognizance, in a brief and summary manner, agreeably to these ordinances, so that the working of the mines be not hindered or embarrassed by reason of such suits. And we command our justices, both the ordinary justices, and those of the holy brotherhood, and also those appointed by commission, and all other justices whatsoever in these our kingdoms, and the other kingdoms under our dominion, that they do not intermeddle with the cognizance of such causes touching or concerning the aforesaid mines, or the persons, beasts, oxen or waggons which may be employed or work therein: and that they shall not proceed upon nor entertain, either ex officio or upon the application of the parties, any claim, petition, complaint or other matter, in all that is aforesaid, nor in any part thereof: and that if there be any such matters pending before them, they shall refer them immediately to such administrators of departments, that they may take cognizance of the same, as being the proper judges thereof, and may do justice to the parties. And for the present, we prohibit and hold prohibited, the said ordinary justices and judges, and those appointed by commission, and all others whatsoever, from taking cognizance, in any manner, of such causes and matters as aforesaid, concerning, proceeding from or in any manner depending on the aforesaid mines, or the persons working in, or clerks or officers of the same, as is aforesaid, notwithstanding any law, edict or other matter whatsoever to the contrary, which, as far as relates thereto, we dispense with, abrogate, annul and make void and of no force or effect, leaving them, nevertheless, in force, as to all other matters. And with respect to the persons who are to be appointed as administrators or receivers, or to any other office relating to the said mines, it is our pleasure that they should be appointed by our council of finance, under our letters and orders, signed with our hand ; and the like with regard to the orders and instructions, which are to be given them for their conduct in their several offices.
CONTENTS OF THE COMMENTARY ON THIS ORDINANCE.
1. This ordinance cannot be put in practice in the Indies.
2. Nor would it there have tho desired effect of preventing delay.
3. Of the qualifications which the chief mining alcaldes are required by law to have.
4. There are numeious persons skilled in working mines, who might be made judges.
5. The proceedings, in the first instance, are subject to the cognizance of the justices,
and the pioceadings on appeal, to that of the royal audiencies; and the viceroys or governors are not at liberty to challenge the cognizance of these causes.
6 and 7. The justices ought to visit the mines. Of the inconvenience of sending visitors.
8. If, when the justices are called on to render their account, they were charged to visit the mines, many evils would by that means be prevented.
0, 10 and 11. In the case (which rarely occurs), of a visitor being sent by the viceroy, he should be instructed with reference to matters of government only, and not to questions of justice, whether civil and criminal matters, which belong to the justices and the audiencies.
12,13, 14 and 15. A reference to several orders, establishing this point.
16. It is extremely important that the viceroy should have supreme power as to other points; but questions of justice should be left to the tribunals.
17. Of the inconvenience occasioned by an application being made to the viceroy.
18. Of the ordinances of the viceroy of Peru, Don Francisco de Toledo, giving to the ordinary justices a more extensive jurisdiction than they are allowed, even in New Spain.
1. This ordinance is not observed in the Indies, nor could it be enforced there, without great damage to the public, and particularly to the miners, who would have to maintain, at their own expense, a mining administratorgeneral, and particular administrators, in each department and in each mining district. The investing these officers with exclusive jurisdiction, would have no influence in expediting the proceedings in mining suits, as we may learn from other analogous instances; and were the right of appeal to the audiencies to be taken away, the remedy for judicial injustice would be cut off, and the parties would be robbed of a right of defence, to which they are naturally entitled.
. 2. The inconvenience arising from the delays of the ordinary judges, lamented in the ordinance, would not be prevented by the appointment of particular administrators. The blame of the delay is, in general, attributable to themselves or their agents. The remoteness of the places is another unavoidable source of delay. Tho law has made abundant provision for ensuring dispatch in suits, and those who lament the delays which occur, must pray for a better spirit in the litigating parties themselves. No lawsuit ever arises concerning a poor mine, but an anxiety to get possession of the rich mines, involves the parties in surveys, objections and new surveys, without end, notwithstanding that the royal audiencies do all in their power to dispose of the mining business with expedition, agreeably to the law.'
3. The other inconvenience lamented by the ordinance, that the ordinary justices have not the practice and experience required in matters relating to mining, might bo obviated by appointing justices of intelligence, agreeably to the intention expressed, of appointing experienced administrators. The law of the Indies,f with a view to obviate this inconvenience, directs the viceroys and presidents to select and appoint sufficient and proper persons as chief mining alcades, who are to be capable and experienced in working mines. But if persons are appointed who are ignorant of the subject, the fault is not in the regulations of the law, but in the lamentable neglect with which they are regarded. What advantage can be exnected from a soldier, a placeman, or a politician, who have probably never seen a mine? How are they to give judgment on questions concerning the interior works, timberings, pillars of support and fallings in? How to distinguish between different veins and their various courses? How to make nice and exact surveys? How to give judgment as to a shaft, or an additional pit? or to discharge numberless other duties?
4. There is no want of persons of worth, who are at the same time experienced in the working of mines. The viceroys and presidents, before whose eyes they are, know them. To appoint such persons to be mayors or chief alcades in the mining districts, would be reasonable in itself, beneficial to the mines, and a merited reward to the parties; their operations would be conducted with skill; the access to the mines would be easy, and justice would be distributed with dispatch, impartiality, knowledge and experience; we should no longer see the blind leading the blind; which, between judges and surveyors, is now very much the case, and the consequence would be, a saving of immense sums in costs, proceedings and journeys, all drawn from the pocket of the unfortunate miner, who bears the expense, and of the supplier, who furnishes the money.
5. The only plan then, for promoting dispatch in mining suits, and preventing the ruin of the miners, is to adhere to the law of the Indies, by leav. ing the proceedings, in the first instance, to the justices, and the appeals, to the royal audiencies; at the same time filling the offices of chief alcaldes and mayors, with persons experienced in the working of mines as provided by the law. And until the sovereign shall issue other laws, these must be inviolably observed, and the viceroys, governors and presidents are not to be at liberty to render them nugatory, by challenging the cognizance of such suits, or by nominating visitors or judges of commission, as to civil or criminal matters, where questions of justice between the parties are in litigation.
6. The justices are obliged, by their office, to visit the mines, and to investigate the state of the underground works, in regard to the pillars of sup
* Law 5, tit. 20, book 4, Collection of the Indies. t Law 1, tit. 21, book 4.
port, timber-work and pits, to fallings in of the ground, to the cutting away of the pillars of support, and every thing else affecting the working. If this wellestablished practice were adhered to, much expense and many errors might be prevented, arising out of the ignorance of those who are sometimes dispatched as visitors to the mines, of which they frequently conceive such a dread, that they will not even venture to look at them, but blindly resign their judgment to the opinions of the surveyors, whom it is usual to employ in those places ; upon which subject we have given our sentiments in the appropriate place.* We recollect one instance of a visitor, who (when about to descend into the mine), was made a jest of by the barmen and miners exaggerating the insecure state of the works, which impressed him with such violent apprehension, that he resumed his dress, which he had taken off, and left the inspection to be performed by some one else.
7. The discreet and experienced viceroys whom we have known, wishing to follow the best course of government, have refrained from appointing visitors (except in a very few cases), either for the mines or in other depart, ments, from tho great inconveniences found by experience to follow, although not previously calculated on. As far as the mines are concerned, these inconveniences are indeed very great, when thoroughly understood.
8. If, when the mining justices render an account of their offices, the plan were adopted, of charging them to visit the mines at proper times, such a practice would not only be agreeable to the precepts of the laws and ordinances, in promoting the various ends they contemplate, as being advanced by the working of the mines; but it would also be the means of preventing the falling in of the ground and the consequent fatalities, the inundation of the works, and many other evils of serious moment, which arise from the licence of irregularities of the miners, and the connivance and thoughtless neglect of those who ought to keep strict watch over them.
9. We have observed above, that the cases are rare in which the viceroy proceeds to appoint a visitor; but even when he does, the appointment must be in reference to questions of government only, or to the means of improv. ing the standard of the ore, or the methods of reducing by smelting or amalgamation; as was done by the Count de Salvatierra, on the 22d of September, 1643, when he commissioned Don Luis Berrio de Montalvo, judge of the criminal court of the royal audiency of Mexico, under the title of administrator of the mines of the kingdom, to proceed to Tasco and other mining districts, to establish the method of amalgamation for reducing the silver in twenty-four hours, discovered by Pedro Garcia de Tapia and Pedro de Mendoza Melendez, and to take into consideration every thing relating thereto; of which we have treated elsewhere.f Put the appointment must not have reference to civil or criminal matters, which are objects of justice
* Sup. chap. 12 and 22.
t Sap. chap. 22, n. 44, 45 and 46.