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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,t 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 babeat extra proprium territorium, et cum non subditis ; nihilominus, stapte 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.t 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. I
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.Ş 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 cauga sententia eorum manifesta est, is qui jurisdictioni præest, ad similia procedere atque ita jus dicere debet.” Franciscus Baconias, 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 ud 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 præ!oriæ sive censoriæ.”
Law 1, litle 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.
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.
OF THE SUPREME RIGHT OF THE PREROGATIVE, IN THE MINES OF GOLD, SIL
VER, 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.
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 exercisc their offices thereat, shall not be at liberty to hold, and shall not hold, any mine,
* Schluter (Christophe Andre), Do 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 prerog
ative. 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 tho 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 accompa
nied 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 SECTION 1.
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.
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 itig
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 quick
silver at Mexico. 43. The reason for not allowing the mines of ihis 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 expen
sive establishment at el Almaden; and would give opportunity for much fraud and
contraband dealing in bullion. B1 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 bis 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, 9. 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. y. 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 Montánus de regal. verb. Argentariæ. Afflictis in tract. Quæ sint regalia, tit. 3. à num. 1. et pro jure privati in metallis fundi proprii, d. 9, si vir, L. quosdam, Cod. de metall. lib. 11.