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13. As to those of France (as is remarked by Helot, in the preface to his translation of Schluter*), the only circumstances worthy of remark are, the great care with which they provide for an investigation into the situation and arrangement of the mines, and their facilities as to water, so necessary for mining purposes; and above all, for an inquiry, whether the person who registers the mine, has sufficient capital for the undertaking, and has provided a proper director for the mine, without which he is not to be allowed to work it. As to all other matters, however, such as smelting, amalgamation, the registry and denouncement of mines, the keeping a proper number of hands at work in them, the measurement and alteration of their boundaries, and their economy and management, our ordinances are very copious; and if they are not acted up to, the fault is not in the law, but in not enforcing it.

CHAPTER II.

OF THE SUPREME RIGHT OF THE PREROGATIVE, IN THE MINES OF GOLD, SILVER, AND OTHER METALS.—OF THE RE-ANNEXATION TO THE CROWN OF ALL THE MINES, HERETOFORE THE SUBJECT OF GRANTS BY PROVINCES AND BISHOPRICS, IN ORDER TO GIVE AN INTEREST IN THEM TO THE SUBJECTS OF THE CROWN GENERALLY, WHEREVER SITUATE,-OF THE VERY AMPLE NATURE OF THE GRANT AS REGARDS THE INDIES.-OF THE PERSONS WHO ARE PROHIBITED FROM WORKING MINES.-OF FOREIGNERS, ECCLESIASTICS AND CURATES.

ORDINANCE II. LXVII.

II. AND in order to benefit and favour our subjects, and the natives of these kingdoms, and all other persons whatsoever, though strangers to these our kingdoms, who shall work or discover any silver mines whatsoever, discovered or to be discovered, it is our will and command that they shall have them, and that they shall be their own, in possession and property, and that they may deal with them as with any thing of their own, observing, both in regard to what they have to pay to us by way of duty, and in all other respects, the regulations and arrangements, ordered by this edict, in the manner hereinafter-mentioned.

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LXVII. Also, we ordain and command, that our administrator-general, and the administrators of departments, and such persons as may be appointed by them or their successors, to attend officially at the mines, and the justices, and notaries, and sworn clerks, who have been or may have been appointed by us, and who shall hereafter be appointed to use or exercise their offices thereat, shall not be at liberty to hold, and shall not hold, any mine,

* Schluter (Christophe Andre), De la fonte des mines, traduit par M. Helot. Paris, 1750.

or share of a mine, in any department in the kingdom, either by themselves or through any person acting for them, directly or indirectly, during all such time as they shall hold the said offices, under pain of being for ever deprived thereof, and of forfeiting the mine or mines they may hold, which shall go to any person who shall inform against them; and under the further penalty of forfeiting a moiety of their property to our exchequer and that any person who shall take a part in any of the matters so prohibited, shall incur the like forfeiture of property and mines.

CONTENTS OF THE COMMENTARY ON THESE ORDINANCES.

1. By the civil law, mines, when in public ground, belonged to the sovereign, and when in private ground, to the owner of the land.

2 and 3. From their great value, universal custom has made them a right of the prerogative.

4. Upon this point regard must be had, in each kingdom, to its own particular custom. 5, 6, and 7. By the law of the Ordenamiento, that of the Partida and those of Castile, mines are made a royal seigniory.

8. John II. allowed them to be worked, subject to an acknowledgment of two third shares of the produce.

9, 10, 11, and 12. Philip II. revoked various grants of the mines, which had been made, by provinces and bishoprics, and vested them in the crown; and his meaning was to grant an interest therein to his subjects, wherever situate, under the regulations of the old ordinances, and those of the new code.

13. The grant, as respects the Indies, is most ample, and extends generally to all the subjects of the crown.

14 and 15. Whence Lagunez and the Cardinal de Luca infer, that the mines of the Indies are not vested in the crown.

16 to 20. This opinion refuted.

21, 22, and 23. The reasoning of Lagunez answered.

24. The mines, in the hands of the subject, are liable to all the incidents of property, as objects of alienation or other dealings.

25 and 26. The grant of the sovereign to his subjects is a qualified grant, being accompanied with the obligation of obedience to the ordinances.

27 and 28. The extension of the grant to foreigners, is to be understood as applying to those only who are naturalized.

29 and 30. The clergy, and religious persons, and curates in particular, are prohibited from working mines, except such as descend to them.

31. A contrary practice prevails in New Spain.

32. Decisions of the councils of Lima and Mexico on this point.

33. Conclusions of Friar Juan de Paz, in favour of the curates of New Spain, upon the construction of a decision of the council of Mexico.

34. Recorded fact of a church mine being leased and worked, in the mining district of Zimapan.

35. The Indians were particularly named in the grant, because even the Spaniards were originally prohibited from working mines.

36. The mines of the marquisate of el Valle are common to all.

37. Of other persons prohibited to work mines.

SECTION I.

38. The working of quicksilver mines is permitted.

39. It does not appear that any such were worked in New Spain, in early times after its discovery.

40 and 41. Two royal orders, confirming certain directions for stopping up quicksilver mines in Quernavaca, and in the Sierra de Pinos.

42. Another precedent, to the same effect, from the office of the superintendent of quicksilver at Mexico.

43. The reason for not allowing the mines of this mineral to be worked in New Spain, is, that the quicksilver of el Almaden is disposed of on account of the revenue.

44 and 45. It was directed, by orders of the 4th of March, 1559, and the 22d of January, 1565, that the quicksilver should be sold at the greatest possible profit.

46. It was directed, by another order, of the 3d of June, 1567, that all quicksilver shipped on board the convoy, on account of individuals, should be seized.

46. The dealing in quicksilver otherwise than on account of the revenue is prohibited, and liable to a penalty.

48, 49 and 50. Because it would be prejudicial to the revenue, and injurious to the expensive establishment at el Almaden; and would give opportunity for much fraud and contraband dealing in bullion.

51 and 52. The merchants are prohibited from selling it, because if permitted, they would raise the price to an excessive rate, and this prohibition was obtained at the solicitation of the miners of New Spain and New Galicia.

COMMENTARY.

1. By the civil law, all veins and mineral deposits of gold or silver ore, or of precious stones, belonged, if in public ground, to the sovereign, and were part of his patrimony; but if on private property, they belonged to the owner of the land, subject to the condition, that if worked by the owner, he was bound to render a tenth part of the produce to the prince, as a right attaching to his crown; and that, if worked by any other person, by consent of the owner, the former was liable to the payment of two tenths, one to the prince and one to the owner of the property."

2. Subsequently, it became an established custom in most kingdoms, and was declared by the particular laws and statutes of each, that all veins of the precious metals, and the produce of such veins, should vest in the crown, and be held to be part of the patrimony of the king or sovereign prince. That this is the case with respect to the empire of Germany, the Electorates,

Lagunez, de fructib. 1. p. c. 10, n. 51, usque ad 54. Gutierrez, Pract. p. 4. quæst. 36. n. 59. Petrus Barbosa, in 1. divortio, §. si vir, ff. de solut. matrimonio, n. 18. Antunez, de donat. regiis part. 3. cap. 12. per tot. Alfaro, de offic. fisc. gloss. 20. n. 101. aliique innumeri apud istos, et communiter DD. in d. §. si vir: qui omnes dictam distinctionem firmant: et pro jure fisci in fodinis repertis in loco publico, text. in C. unic. verb Argentariæ. Quæ sint regaliæ, Horatius Montanus de regal. verb. Argentariæ. Afflictis in tract. Quæ sint regalia, tit. 3. à num. 1. et pro jure privati in metallis fundi proprii, d. §, si vir, L. quosdam, Cod. de metall. lib. 11.

France, Portugal, Arragon and Catalonia, appears from the laws of each of those countries, and from the authority of various authors.*

3. And the reason is, that the metals are applicable to the use of the public, who ought not to be prejudiced by any impediments being thrown in the way of the discovering and working of their ores; besides which, theirproducts rank, not amongst those of an ordinary description, but amongst the most precious the earth affords, and therefore, instead of being appropriated to individuals, are proper to be set apart for the sovereign himself, whose coffers being thus enriched, he will be enabled to lighten the burdens of his people; all which is set forth at length by the authors above referred to.†

4. This question, as is observed by the great Cardinal de Luca,‡ has not received any general or uniform determination, but is decided by the laws and customs of each particular kingdom or principality. For upon the breaking up of the Roman Empire, the princes and states, which declared themselves independent, appropriated to themselves those tracts of ground, in which Nature has dispensed her more valuable products, with more than ordinary liberality; which reserved portions or rights, were called rights of the crown. Among the chief of the valuable products, are the metallic ores of the first class, as those of gold, silver and other metals proper for forming money, which it is essential for sovereigns to be provided with, in order to support their warlike armaments by sea and land, to provide for the public necessities, and to maintain the good government of their dominions. And such is the course mentioned in the first book of the Maccabees, to have been pursued by the Romans, with regard to the mines of Spain; such also is the plan adopted by our sovereigns, with regard to those of the Indies, some of which they have reserved to themselves, and the remainder they have left to their subjects, charged with the payment of the fifth, tenth or twentieth part of the produce. The above author, also, in the place cited, distinguishes the metals into those of the first, second and third class, by which means he determines several very important questions, without prejudice, however, to the laws, ordinances and statutes of each particular kingdom, which in each case claims the first notice.

Antunez de donat. reg. lib. 3, cap. 12, n. 10. "Sed quamvis prædicti juris traditio et distinctio ab omnibus communiter sit recepta, tamen reges et principes in omnibus ferè orbis partibus eam non admiserunt, imo peculiaribus legibus statuerint venas metallorum ubicunque inventas in locis publicis sive privatis ad se partinere et de regalibus esse;" cum Rebuffo, Barbos Pereg Cabedo et aliis qui testantur de legibus Neapolis, Valentiæ, Cataloniæ, ut ipse de statuto Lusi taniæ. De Imperio, Arumæus, Discurs. Academicor. de jure publico, cap. 3, de regal. fisci, discurs. 15, §. 59, et seq. ubi etiam testatur de regno Hungria.

↑ Antunez ubi supr. n, 12, Solorz, de jure Indiar. lib. 1, c. 13, n. 12, et omnes sup. citati sub.

n. 1.

Emin. de Luca, de regal. disc. 147, n. 17, usque ad finem.

5. In Spain, under the law of the Partida,* the property of the mines was so vested in the king, that they were held not to pass in a grant of the land, although not excepted out of the grant; and even though included in it, the grant was valid, as to them, only during the life of the king who made it, and required confirmation by his successors.

6. And by another rule of the same law, the metals, amongst other things, were reserved to the sovereign, for maintaining him in honour, for defending his territories, for supporting his wars against the enemies of the faith and for relieving the people from taxes.

7. Afterwards, by a law of Don Alphonso XI. in the Ordenamiento Real,‡ copied in the collection of Castile,§ all mines of gold, silver or any other metal whatsoever, and the produce of the same, were declared to be the property of the crown, and no one was to presume to work them, except under some especial licence or grant, previously obtained, or unless authorised by immemorial prescription.

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8. This rule was moderated by John I., and the law, as established by him, permitted any person to dig or work mines, in his own land or inheritance, or with the permission of the proprietor, in that of any other individual and to retain to himself, after deducting the expenses, one third of the produce, rendering the other two-thirds to the king. Whence it is evident, that the owners of private property, might prevent all other persons from searching therein for mines; and that the permission only extended to the searching for them on their own estates, the mines of which had, originally, been excepted by the sovereign out of his grants and charters.

9. Philip II.¶ acting under the authority of the council and chief ac

Law 5, title 15, Partida 2. "And mines, if there be any and although it be not mentioned, in the grant, that the king retains to himself the things above-mentioned, yet it is not, therefore, to be understood that he to whom the grant is made, acquires a right to them moreover, if the king should make over all these things to him by the grant, even then he cannot hold or use them, except during the life of the king who made the grant, and of any other who may please to confirm it." And see Gregor. Lop. at that place.

† Law 11, title 28, Partida 3. "The returns from the port, salt works, fisheries and iron works, and from the other metals, belong to the emperors and kings; and all these things were granted to them, that they might have wherewith to support an honourable establishmeut, to de fend their lands and kingdoms, and to carry on war against the enemies of the faith; and that they might have no need to load their people with great or grievous burthens."

Law 8, title 1, book 6, of the Ordenamiento.

§ Law 2, title 13, book 6, Collection of Castile. One of the most remarkable among the grants, is the Privilegio rodado, of Ferdinand the fourth, dated at Toro, the 13th of October, 1297, whereby, in consideration of the services of Don Alfonso Perez de Guzman, Governor of Tarifa; and particularly those displayed in the conquest of that town, and during its defence (on which occasion he threw the Moors a knife to kill his own son with, rather than surrender the town), the king made a grant to him of the town of San Lucar de Barromeda, with the thirds, and other things, including the mines. The grant is preserved in the house of the dukes of Medina Sidonia, his successors.

Law 1, title 13, book 6, Collection of Castile.

¶ Law 4, same title and book.

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