: 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 The old ordinances are repealed, so far only as they are at variance with the new. 3.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 desire 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 contradis tinction 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 annexing 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 "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, n 7. 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 lawf 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 Gazophi lacio Real de el Peru, 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 miners 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 37, title 1, book 2, of the Collection of the Indies. the Collection of the Indies. For it is most reasonable, that in cases not noticed in the proper law of any country, the law or custom of the nearest province should be referred to; particularly where so close an affinity exists as between those of Peru and New Spain.* 8. Still, however, the ordinances of the new code, and the laws of title 19, book 6, of the Collection of the Indies, are the fundamental authorities for all suits at law and other matters concerning mines, in the kingdom of Mexico, and the judges, advocates, mining deputies and miners of that kingdom, must conform to the spirit of these laws in every case that may occur. And accordingly, it is usual with them, in their several proceedings, to say, that they act in conformity with the ordinances of the new code, or that the practice of such and such persons, is contrary to these ordinances, in such or such respects. 9. And although, in the space of 176 years, since 1584, the date of their promulgation, the disputes concerning mines, which the thirst for gain has excited, have been most frequent, and although the mining districts of this king. dom are very numerous, it does not seem that any want of a new system has ever been felt, or that any of the viceroys or ministers of audiencies, zealous as they are, have ever recommended any new plan or set of rules. 10. It is true that there were some ordinances drawn up by the viceroy, Don Luis de Velasco, and subsequently, some others framed by the Marquess de Montesclaros, the latter dated the 13th of March, 1606, and countersigned by Pedro de la Torre, and which were submitted to the king, and proclaimed at the mines; but all the thirty-six chapters they contain, with the exception of the 28th and 29th, which concern the bankruptcy of miners, relate to the distribution of quicksilver, salt and maize, among the miners, on account of the crown, with respect to all which the course now pursued is different, salt and maize being no longer distributed at all; and the distribution of quicksilver being conducted upon a new system: the ordinances in question, therefore, furnish no rules for the working of mines. And the same remark applies to the five ordinances of government, an account of which is given by Don Juan de Montemayor, and which merely give rules for certain particular cases, but do not regulate the mode or system of sup plying or ascertaining the boundaries of mines, nor any other matter relating to their working. And although there are some persons who would wish to have a set of rules more explicitly adapted to the circumstances of particular cases, in reference to the varieties of situation, ground or other details; *L. de quibus 82. ff. de leg. and Jason, n. 6, in Card. de Luca, de servit. disc. 2, n. 19. "Licet autem istud sit statutum diversæ ditionis, nullamque vim legis habeat extra proprium territorium, et cum non subditis; nihilominus, stante præsertim regionum vicinitate, recte attendendum videtur pro argumento seu præsumptione cum in his casibus, qui non habentur in jure expressé determinati, sive pro interpretatione juris dubii recte deserviant leges, vel consuetudines aliarum præsertim adjacentium civitatum vel provinciarum." + Montemayor, Ordenanzas de Govierno, from the 77th, fol. 44. yet these are, in fact, matters which the law cannot descend into ;* whilst the exercise of a sound discretion will suggest rules for the determination of omitted cases. And that our ordinances, if regard be had to their sense and spirit, are sufficiently copious, is proved by the experience of so long a period, in a country where there are so many mineral districts as in New Spain. And were distinct ordinances framed for each separate mining district or province, endless confusion would be the consequence; whilst, as the case now stands, all the most general and important points are defined by the laws of the new code. 11. And the viceroys can on no pretence alter the laws; their power, however high, not being absolute, nor extending to legislation, but merely authorizing them to advise with and report to the sovereign; but the existing laws and ordinances must be observed with exactness, until the confirmation of other new ordinances by the council. And if necessity or convenience require that others should be framed, the office of preparing them is not to be entrusted to any individual, but to several persons, selected from among the many disinterested and intelligent men who may be found in each province; and who will be enabled, by their practical knowledge, to throw the strongest possible light on the subject; and such is the direction of the law of the Indies cited above.‡ 12. There is no need to have recourse to other nations for mining ordinances; our own are amply sufficient. In framing them, recourse was had to the laws of Germany, as stated and explained by Agricola, although the mines of that country, differ from ours in the dimensions assigned to them, and in the mode of managing them when held by partners. It cannot be denied that the laws of the State of Hesse are very copious, little less so indeed than those of the Palatinate, as illustrated and stated by Krebs ;|| but almost every contingency is comprehended in, and provided for, by our own. * L. 10. ff. de leg. "Neque leges neque senatusconsulta ita scribi possunt ut omnes casus qui quandoque inciderint comprehendantur, sed sufficit ea quæ quandoque accidunt contineri.'' L. 12. ff. ead. "Non possunt omnes articuli sigillatim aut legibus aut senatusconsultis comprehendi, sed cum in aliqua causa sententia eorum manifesta est, is qui jurisdictioni præest,ad similia procedere atque ita jus dicere debet." Franciscus Baconius, de justit. univers. aphorism 10. "Angustia prudentiæ humanæ casus omnes quos tempus reperit non potest capere. Non raro itaque se ostendunt casus omissi et novi. In hujusmodi casibus triplex adhibetur remedium sive supplementum. Vel per processum ad similia. Vel per usum exemplorum licet in legem non coalureint, vel per jurisdictiones quæ statuunt ex arbitrio boni viri et secundum discretionem sanam, sive illæ curiæ fuerint prætoriæ sive censoriæ." † Law 1, title 19, book 4, Coll. of the Indies. "And with respect to the discovery of mines, and the taking possession of and forming establishments in them, the laws and ordinances framed for each province are to be observed, being confirmed by us.'' Law 3, title 1, book 2, Coll. of the Indies. Agricola, de re metall. lib. 3. Philip Helfric Krebs, de ligno et lapide, tom. 2, class, 3, de metall, et mineralib. |