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ships or vacant lands, or in the estates and portions and lands of individuals, notwithstanding the grants which by ourselves or by the kings, our ancestors have been made, to any and all persons whatsoever of whatever state, rank. and dignity they may be, and for whatever causes and reasons, as well grants for life or for years, and on condition as those perpetual, free, and without condition ; all which said grants, in view of the facility and generality with which they have been made, and the prejudice which to ourselves and our crown and royal patrimony has ensued and still continues, and the damage and injury to the public good, and the well being of our subjects and citizens which have resulted and may continue to result, and for other just causes thereto moving us, we revoke, annul and vacate, and it is our will and pleasure that the said minerals now and henceforth without any other act of seizin or possession, belong to our said crown and patrimony in accordance with, and as by the laws of these our kingdoms and ancient usages and customs properly belong to us in the same manner as if said sales and convey. ances or any of them had not been made and granted; and that the same shall alone continue as binding and in full force in relation to the mines of silver and gold in which the persons aforesaid, to wbom said grants were made, or others in their name, and by their consent, have commenced working and are actually now at work at the date of these presents; and moreover, it is our pleasure to recompense and indemnify the noblemen and other persons to whom the said grants which we have thus revoked, have been made, according as upon the examination of their conveyances of title, the causes and reasons of their being granted, their conditions and limitations and the extent to which they have been performed and complied with, on their part may appear just and reasonable. And to this end we order that those who hold the said grant, and claim the said recompense, shall present their claims within one year, in order that in view of the matters aforesaid, they may receive the recompense which is their due.
Second, inasmuch as the reducing and incorporating in ourselves and our royal patrimony, the said minerals as above stated is not with the view that we alone, or others in our paine alone may seek for, discover, and work the said minerals, but rather that it is our purpose and pleasure that our subjects and native citizens shall participate in and have a portion of said minerals, and may employ themselves in the discovery and working of them; therefore, by these presents we give permission and full authority to our said subjects and citizens, that they may freely without any other licence from ourselves or any other quarter, examine, seek for and excavate the said minerals of gold and silver, in all parts whatever of the estates of the crown, or of the nobility or clergy, and all other persons whatsoever, as well in public territory, common and unappropriated lands, as in the estates and lands of individuals, on paying the damage to the owners; and that no person or persons shall interpose any obstruction or embarrassment neither on account of the said
grants which have been made, and which as above stated we have revoked, nor for any other cause or reason whatsoever. And moreover, we grant the free privilege and full permission to all our said subjects and citizens, that in relation to the mines of gold and silver which they shall have discovered and have had registered in the manner hereinafter declared, to excavate and extract the said metals, and operate and work them, and employ all the machinery, labor and diligence which may be necessary, without being obstructed or embarrassed by ourselves or any one in our name, nor by the occupation of any other person, and that the within limits and boundaries of the mine wbich has been so discovered and registered, no other person be allowed to excavate and seek for, nor to work and labor upon the same. The said discoverer complying with the provisions hereinafter stated and ordained. It being understood that they may hold, explore and discover said mines in said regions and places except in the mines of Guadalcanal and one league around them, and in the mines which are discovered within the limits of Cazalla, Aracana, and Galarroca and a quarter of a league around each of them. All which shall have full and complete effect notwith. standing any leases which we may have ordered to be made of any of the minerals of our kingdom. (Chapter 1, 2 and 3 of the law 4. Tit. 1, Book 6, Recopilacion.) (a)
Don Philip II. at San Lorenzo, Aug. 22, 1584.
working of the mines of gold, silver, quicksilver and other metals.
OF THE NEW CODE OF MINING ORDINANCES, THE OLD ORDINANCES REMAINING IN FORCE, SO FAR AS THEY ARE NOT REPEALED BY THE FOR. MER, AND HOW FAR THEY ARE TO BE OBSERVED IN THE KINGDOM OF NEW SPAIN.-A NOTICE OF THE ORDINANCES FRAMEDJBY SOME OF THE VICEROYS, AND OF THE ORDINANCES IN FORCE IN PERU.
ORDINANCEI. We revoke, annul and make void the edicts issued at Valladolid, and all
(a) (Note (a) to the original text.)— The sections from the 3d to the 7th of this law as-contained in the former compilation, treat of the portion which shall be received by persons discovering and working the mines in conformity with the second law ; concerning the forms and modes of prore ding in their discovery and registry, and of the powers and rights of the discoverers ; which sections are omitted as they will be found to have been repealed in the new ordinances contained in law 4th of this title published in 1584 ; and for the same reasons are omitted those comprehended in 78 sections in the royal edict of Madrid, of the 18th March, 1563, contained in law 6, Tit. 13, Book 6, of the Recopilacion.
laws of the Ordinamiento, Partidas, and all other laws, edicts, common law, and customs whatsoever, so far as they are in opposition to the provisions of this law: and it is our will and command, that they shall, in such respects, be void of all force or authority whatsoever, except only that the 3d law of this title, so far as it relates to the annexing to our royal patrimony the mines of gold, silver and quicksilver, in these our dominions, of which grants had been made to individuals, by departments, bishoprics and provinces, shall remain in force and authority ; in conformity to which law, and to these our laws and ordinances, exclusively of all others, it is our will and command that the said mines shall be worked, and all suits and disputes be determined, which may in any manner arise concerning the said mines, or any matter annexed to, touching or relating to the same.
CONTENTS OF THE COMMENTARY ON THIS ORDINANCE. 1. Why called ordinances of the new code. 2. The old ordinances are repealed, so far only as they are at variance with the new. 3. They remain in other respects in full force and authority, and are to be referred to as
rules in the decision of suits at law, and contain matters of much importance. 4. An objection to this doctrine refuted. 5 and 6. By the laws of the Indies, the ordinances of Castile are to be observed in New
Spain, when not contrary to the laws framed for each province in particular. 7. An account of the ordinances of Peru, issued by the viceroy Don Francisco de Toledo.
They are very important in certain cases, as affording rules for New Spain. 8. The ordinances of the new code, are the great authorities for all mining suits in the
kingdom of Mexico. 9. No new system has been found necessary during the term of 176 years. 10. An account of the ordinances framed by the viceroy Don Luis de Velasco and the
Marquess de Montesclaros, and which are not observed. Reflections on the idle de
sire of some persons for new ordinances. 11. The Viceroys are not at liberty to alter the ordinances, and no new ones can be set up,
unless confirmed by the Council, after having been submitted to the consideration of
experienced and intelligent persons. 12. and 13. There is no need to have recourse to Germany and France for oridnances, our
own being sufficiently copious.
COMMENTARY. 1. The eighty-four heads into which this law is divided, are denominated ordinances of the New Code, and were originally appended to the old Collection, into the body of which they are introduced, in the edition printed at Madrid, in 1642. The name of New is conferred upon them in contradistinction to the old ordinances contained in the 5th law, of the same title and book, and to other laws of older date, relating to the working and supplying of mines; which,
2. Are totally repealed by this 9th law," so far as they are in opposition to its regulations ;" so that the repeal applies to those points and in those cases only, wherein the former laws and ordinances are opposed to the 9th
law and no further ;* it being clearly the intention of the legislator to confine the repeal to the case of their being found to conflict: wherefore he wills and commands, that the former laws and ordinances shall, “in such respects," be void of all force or authority whatsoever.
3. Whence it follows, that the rules and ordinances of the 5th and other laws of this title, are still in force and authority, so far as they are not contrary to the regulations subsequently established by this law; and that they are to be referred to and observed as rules for the decision of suits, and for the working of the mines, as in fact the course and practice of the Courts of New Spain. And this is confirmed by the consideration, that it is a rule that the alteration or repeal of a law, is not to be presumed ; † combined with the indisputable fact, that there are many very essential and necessary matters in the old ordinances of law 5, which are omitted and passed over in silence in law 9, evidently to avoid repetition, and not with the intention of repealing or altering the other laws, in points as to which nothing contrary is ordered. And by a comparison of these several ordinances, which we shall take care to institute in every instance, it will appear in what cases the old ones, being at variance with the others, are repealed; and in what cases they are not repealed, no contrary regulation being established by law 9.
4. And although, according to the wording of the ordinance, which says, “except only that the 3rd and 4th law of this title, which relates to the an. nexing to our royal patrimony the mines of gold, silver and quicksilver, in these our kingdoms, &c. shall remain in force and authority ; in conformity to. which law, and to these our laws and ordinances, exclusively of all others, it is our will and command that the said mines shall be worked, and all suits and disputes be determined,” it might seem (from the expressions s except only” and “ exclusively of others”), that the other laws and ordinances are repealed, yet the fact is, that the repeal is to be taken with the qualification“ so far as they are in opposition, and extends no further; and, therefore, the old as well as the new ordinances, still equally form parts of the body of the collection, so that the old ordinances are to be referred to and followed, in any case omitted or passed over in the new code, for in such cases there can be no variance or opposition between the former and the latter. And the object of giving new authority to the fourth law, was to prevent so important a matter as the annexation of the mines of all metals to the
* Leg. 28. ff. de legibus,“ sed et posteriores leges ad priores pertinent, nisi contraria sint,” puod multis argumentis probatur.
† D. de Luca, de jurisd. disc. 107, n. 10. “Legum correctio non est præsumenda, sed vitanda." Et in decis. Sicil. sub. tit. de feudis, n. 214. “Statutum semper debet interpretari, ut minus corrigat jus commune.” Paris, cons. 110, n. 6, and cons. 84, n. 3, vol. 3. Et legum correctio vitanda est, imo nec præsumitur ; neque in dubio facienda est; nec ex paritate rationis." Tuschi, liter. c. concl. 1036. Velasco, in loc. comm. liter. c. concl. 229. 8 lib. 1, n. 37. Castillo, Controv. lib. 5, p. 2, cap. 125, 07.
crown, from being interpreted to be at variance with, and therefore repealed by, the second ordinance of this 9th law, whereby a grant of the mines is again made to the subjects of the crown, generally. It was therefore necessary to declare that the 4th law still remains in force and authority ; but it must not be inferred as a consequence, that such of the old ordinances as relate to points and matters passed over in law 9, are repealed.
5. It appears then, that the working, denouncement and registry of mines, all disputes and questions at law which may arise concerning them, and all other matters incident or annexed thereto, are to be governed and determined by these ordinances of the new code, and by the old ordinances where not at variance with them. And that the former are the fundamental laws by which this important business is to be regulated, not merely in regard to the kingdom of Castile, for the mines of which they are framed, by Philip II. who promulgated them on the 22d of August, 1584, but also for the Indies, and for the kingdom of New Spain, in particular. By one of the laws of this latter country it is provided," “ That the viceroys shall confer with persons of intelligence and experience, upon the laws of Castile which relate to mining; and that if they shall be found suitable, they shall cause them to be observed, practised and enforced in the Indies ; provided they be not at variance with the laws framed for each province in particular; and that they shall render a due report of those which are not put in practice for directing the observance of those which they may consider necessary to be enforced.”
6. And by the other lawt concerning the discovery and working of mines, the viceroys, presidents, and judges of audiencies, are commanded to maintain and enforce the precise and punctual observance of the ordinances of the new code, and not to enlarge the period of four months, after which a mine is liable to be denounced, if not sufficiently worked.
7. In obedience to the laws above-mentioned, the viceroy, Don Francisco de Toledo, drew up, for the kingdom of Peru, certain mining ordinances, a compendium of which is given by Don Gasper de Escalona, in his Gazophilacio Real de el Peru, f and which he illustrates with his usual erudition. And these ordinances (the observance of which is directed by a special law of the Indies, referring to the laws drawn up by this illustrious viceroy on every subject), together with the laws of Castile, where not at variance with the former, are to be looked to as the rules for deciding suits at law concerning mines, and for their economy, government and working, in that kingdom. And they are at the same time very useful to the judges, ministers and min. ers of New Spain, for their guidance in regard to certain questions and matters not touched upon in the ordinances of the new code, nor in the laws of
* Law 3, title 1, book 2, of the Collection of the Indies. † Law 6, title 19, book 4, of the Collection of the Indies.
Lib. 2, part 2, cap. 1, page 104.