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10. Such as denouncements, insufficient working, boundaries, questions of the right of possession or property, the proving of entries in the register, tho removal of pillars of support or the embezzlement of bullion; all which belong to the chief alcaldes or mayors, and by way of appeal, to the royal audiencies. And it is not lawful for the governors or viceroys to challenge cognizance of these suits, nor to withdraw the proceedings in the first instance from before the justices; nor can they prohibit an appeal to the royal audiencies: all which, besides being clearly and explicitly laid down in the laws of the Collection of the Indies, is also repeatedly enforced by various orders. At the same time, the administrative department falls entirely mthin the province of these officers, as is declared by the same laws,in the following particulars: They are to cause the laws of Castile, concerning the mines, to be observed in the Indies ;* they are to provide the mining establishments with provisions and to be careful of their interests, as likewise are the governors ;f and they are to enforce the observance of tho miners' privileges, to cause them to be provided with stores at reasonable prices, and to urge them to search for, discover, and work new mines because the abundance and richness of their ores is the chief strength of the kingdom. All these authorities concern the administrative department, and an equal right of exercising them is enjoyed by the governors in their several districts.
11. But as to questions of justice, it is otherwise: for instance, although it is the part of the viceroy, as a ministerial duty, to consider whether it will be proper to sequestrate mining machinery; yet when once seized, and judicial proceedings had before the royal officers, there is no appeal to tho viceroy; but, being a question of justice, the appeal belongs to the audiencies :§ and although the proceedings do in fact depend on the exercise of the ministerial authority of tho viceroy, he has no power to restrain them, nor can he delay or prejudge the appeal, by refusing to allow the proceedings
'to go on, or by stopping their progress in the first or subsequent instances.||
12. On several occasions, where it has appeared that an opposite course has been pursued in this delicate matter, orders have been issued with refer. cnce to it. The first we shall notice was on tho 22d of March, 1708, in tho viceroyalty of the Duke of Albuquerque, on occasion of complaint by tho mayor of Zacatecas, that he had been impeded in trying and inquiring into certain improper dealings in the purchase of silver, and in the cutting away the pillars of support of the mine Benitillas. In this case, the council, after having advised the king of their resolution, declared, in a sitting of justice,
* Law 8, tit. 1, book 2, Collection of tho Indies.
t Laws 6 and 9, tit. 19, book 4. Laws 1 and 4, tit. 20, book 4, Collection of the Indios. t Law 1, tit. 11, book 8, Collection of the Indies. § Law 10, tit 19, book 4, Collection of the Indies.
|| Lawl 37 and 38, tit 3, book 3, Collection of the Indies. Laws 35 and 80, saino title and book. Laws 34 and 35, tit. 15, book 2, Collection of the Indies. Law 24, tit. 12, book 5. Soloizan. Folit lib. 5, cap. 3.
that the jurisdiction, in all civil and criminal matters, belonging to the mayor, and in the second instance, to the audiency of Guadalaxara, to the express exclusion of the viceroy.
13. Another such order was issued on the 17th of March, 1738, in tho vicoroyalty of the Archbishop, Don Juan Antonio do Vizarron. That officer having conceived that he had the cognizance, as superintendent of the revenue (under law 3, tit. 1., book 2), of a question of justice concerning a mine belonging to Don Manuel Ginoecio, the audiency reported the case to the council, which directed that the above order of the year 1708 should bo repeated, declaring that the proceedings in the first instance ought to be had before the justice of Sombrerete (where the mine was situate), and those on appeal, before the audiency of Guadalaxara, and that the viceroy must give way; which they recommended him to do, and for the future, not to extend his jurisdiction beyond the regular routine of business, but to permit the audiency to exert its proper functions. ,
14. Another such order bears date the 25th of October, 1740, and was forwarded on occasion of tho above-mentioned audiency having reported, that the viceroy last named, the Archbishop, had commissioned Don Francisco Antonio de Echavarri (now senior judge of the audiency of Mexico), to hoar a suit then pending between Don Eusebio Sanchez de Ocampo, and Don Leonardo de el Hierro: whereupon his majesty directed that the abovementioned order should be repeated, and that the viceroy should be advised, if he wished to maintain his station, not to intermeddle in questions of justice between parties, but to allow the justices to exercise their jurisdiction without interruption, and to leave the proceedings upon appeal to the audiencies, agreeably to the various laws and orders, entitling those courts to tho cognizance of such matters.
15. By another royal order, of the 16th of September, 1756, his majesty confirmed an arrangement which had been made by the viceroy, Count de Revilla-Gigedo, for establishing a mayor at Bolanos, but disapproved of his having separated that district from the audiency of Guadalaxara, and annexed it to the jurisdiction of the viceroyalty of Mexico; ordering that it should be restored to the jurisdiction of the first-mentioned audiency. And although the viceroy, Marquess de las Amarillas, represented that he had suspended fulfilling the order, at the same time forwarding documents on the subject, another royal order was issued in the year 1759, directing him to comply, without further delay, and ordering that the mayor and other justices of Bolanos, should be subject to the audiency, as .the latter had been before.
16. The above by no means derogates from the lofty and eminent power of the viceroy, which is so important and necessary for the administration of the political, economical and military government of these kingdoms; and so extensive, that he can with difficulty dispatch the immense mass of applications and other business he has to attend to, in reference to all these departments, besides the affairs of the revenue, the presentation to benefices, the superintendence of the military posts and missions, the providing supplies of provisions, the concluding contracts of hire, the reducing fresh tribes of Indians, and all the other matters which require the saction of his supreme authority. But as the supreme head of the kingdom, and representing the majesty of our sovereign, it is his duty to allow the other members of the body politic, and the tribunals appointed for the determination of questions oT justice, to perform their functions without restraint. And he must not, by transgressing the proper limits of his jurisdiction, and assuming authorities which belong to other ministers, disturb the harmony and subordination which ought to exist in the functions of the different officers of the state, at the same time, in so doing, violating the laws (which are supreme above all), and working great injustice to the parties concerned.
17. It is indeed a grievous thing that the parties should, as they often are, and as we ourselves have witnessed in many cases, in not a few of which we have been concerned as counsel, be compiled to proceed to Mexico, from Zacatecas, Bolafios, Sombrerete, Chiguagua, and other places, at the distance of two, three or four hundred leagues, to defend their rights. For to say nothing of the journeys to and fro, the expenses at Mexico, which are considerable, and those of the procurator, advocate, assessors and clerks, which must altogether be the ruin of the suitor, even if he should gain his cause; the fact is, that it is impossible the truth can be made out at so great a distance. If the right of appeal be denied, there is an end of justice; if it be granted, the whole matter is just where it was at first. But how can we speak in sufficiently strong terms, of the delays and objections, whether reasonable or groundless, interposed by the assessors? The greater part however, of these evils (we do not say the whole, for expense must necessarily be attendant upon litigation), would be avoided, were the proceedings, in the first instance, left to the territorial justices (who have much greater facilities for going through the necessary preliminaries, the trials, surveys and inspections), and the appeals, to the audiency of the district, where no assessor is required, and where it is very rare indeed that any objection can be made to any of the officers : besides which, these courts being familiar with mining matters, from the various cases which come before them, bring the suit to a speedy end, which is of great importance to the public, and dispose of the business of the miners with the expedition so much insisted on by the laws.*
18. The viceroy, Don Francisco de Toledo, sensible of these truths, framed for Peru three special ordinances, directing that the registries should be made before the mining alcalde ; that that officer should visit the mines in dispute,and go through the preliminary operations in person, proceeding,
* Lawi 2, 3 and 5, tit. 20, book 4, Collection or the Indies. and enforcing his sentence in a summary way; and that tbe appeals should be heard before the royal audiencies, which should likewise have cognizance of the cause, in the further stage of supplication. So that this great and celebrated viceroy did not think himself authorised to claim cognizance of these suits, but conceived it his duty to consider the public good, by leaving questions of justice to the courts.* It is to be observed, that when a question arises concerning a contract for the purchase or sale of a mine, the right of succession under a will or otherwise, or any other point of the like nature, it is competent not only to the mining judge and chief alcalde, but also to the ordinary justices of the territory, to entertain the suit; and that it is only upon questions arising under the ordinances, that the jurisdiction, in the first instance, belongs to the mining judge. If there be no such judge, the question must be tried by the other justices, as may be noticed in the ordinances of Peru above referred to.
OF ADITS AND CON7RAM1NAS, AND THEIR INPORTANCE.—OF THE OBLIGATION TO MAKE THEM, AND THE INCONVENIENCES WHICH FOLLOW FROM NEGLECTING TO DO SO —OF REGISTETING AND MARKING THEM OUT, THEIR DIMENSIONS AND FORM, AND THE NUMBER OF HANDS TO BE EMPLOYED IN WORKING THEM.—OF THE APPORTIONMENT OF THE EXPENSE AND OF THE RIGHT TO THE ORES FOUND IN THE COURSE OF PROSECUTING SUCH WORKS, WHETHER IN UNOCCUPIED ORJAPPROPRIATED GROUND, AND WHETHER FOUND IN NEW VEINS OR IN A VEIN BELONGING TO SOME OTHER PARTY.
ORDINANCES LXXIX. LXXX. LXXXI. LXXX1I.
LXXIX. Also, forasmuch as we are advised, that many mines are so situated as to admit of contraminas being made, and that mines newly discovered may possibly be similarly circumstanced, so that the water might flow out by the contramina, or be got out at less expense, which is of great importance, both in regard to the permanence of the mines, and their present working :—Wherefore, we ordain and command, that wherever there shall be opportunities for making such contraminas, the mine owners shall make them, and each shall contribute to the same, according to the nature and disposition of his mine, so admitting of being drained by a contramina. And that when the mine owners shall not agree amongst themselves to make the same, the administrator-general, having inspected and informed himself of the disposition of the ground, and the advantages which would attend the measure, shall arrange with them to do it. And that in such case (such mine owners being agreed,) he shall make such appointment of the expenses
* Escalona, Gazoph. lib. 2, p. 2, cap. 1, tit 9, pag. 121, n. 1, 2 and 3.
as may be necessary, amongst the proprietors of the mines thereby benefited, assigning to each the contribution he is to make, according to the benefit he may thereby derive, and compelling him to pay and make good such appointment for the purpose aforesaid. And the ore which may be raised in the course of driving such contramina, shall go towards the expenses incurred about the same, and any deficiency which may be found, shall be apportioned according to the arrangement which the owners, or in default thereof, the administrator shall have made.
LXXX. Also, we ordain and command, that if, in driving such contramina or contraminas, in pursuance of any such arrangement as aforesaid, any new mines should be discovered, not previously discovered from the surface, such mines so discovered in the course of driving such contramina, shall, notwithstanding that they may fall within the boundaries of other mines discovered from the surface, belong to the mine owners who shall have contributed to such contramina, and each of them shall receive a share of the produce, proportionate to the share of the expenses which shall have been apportioned to him as is aforesaid.
LXXXI. Also, we ordain and command, that if there shall be any mines at a distance from the place where such contramina shall have been made, for which reason the owners thereof shall decline to contribute to the expenses of the same, then, when and so often as it shall be ascertained that the water in such distant mines is drained off or diminished, by means of such contramina, or that the owners derivo any other benefit therefrom, in getting out ore, rubbish or any other matter whatsoever; they shall pay to the owners of such contramina, so much as shall be rated and estimated by the administrator-general, or the administrator of the department, or of the tearest department as the amount of the benefit derived by their mines from such contramina, having regard to the expense to'which they would have been put, had not such contramina been made, and which is thereby saved to them.
LXXXII. Also, we ordain and command, that if, in any of the mining districts where it may be convenient to drive such contramina or contraminas, the mine owners thereof shall not be disposed to lay out money in driving the same, and ony other individual should be willing to undertake the work, the expediency of driving such contramima having been confirmed by the administrator-general, and the commencement thereof having been registered he shall be at liberty to drive and may drive the same to such an extent as he shall think proper, and without regarding any particular limitation of stakes or boundaries. And all the ore and produce which may proceed from the discoveries made in the course of such contramina, shall belong to the person who shall have made the same, observing however, that he.shall not take more of the ore of any other person's mine than shall be contained within the cavity of such contramina, and that the party making such contramina shall not be at liberty to extend it in depth, height or width, beyond the di