countants, and considering, first, the benefits that his subjects, generally, would derive from working the mines of Spain, which had from of old been deemed to be both rich and abundant; second, the small number of mines actually worked, notwithstanding the grant of John I.; and, third, that though not worked by the proprietors, the exclusive grants that had been made by provinces and bishoprics, prevented any other person from presuming to work them; and considering also, that the above-mentioned law of John I., had not been enforced, and that there were various doubts and difficulties, not provided for by that or any other law; vested the mines, wheresoever situate, and whether in public or private ground, in the crown; revoking the former grants thereof, the parties interested under which were to receive a compensation, upon exhibiting their claims within the term of one year.† 10. The object of so vesting them, was not that the right of searching for them should be limited to the crown alone, but that it should be freely extend ed to all the people, generally in such manner that they should be at liberty, without any licence from the crown or any other party, to try for mines in all places whatsoever, whether the ground belonged to the crown or any other lord, to abbeys or municipal corporations, whether it were public or waste ground, or whether it were the inheritance or soil of a private person, in which latter case, the owner had no power to put obstacles in the way of such search, provided he received a compensation for any damage done to his property, and were paid his third part of the produce, as directed by the law of John I. Besides these various other regulations were promulgated, which, with the above, are known by the name of the old ordinances, and to which we refer.t 11. All which, as has been observed,§ are repealed by the new law of Philip II. except as to the vesting in the crown the mines of gold, silver and quicksilver, of which grants had theretofore been made to private persons, by districts, bishoprics and provinces; as to which they remain in full force and authority. 12. And by his second ordinance, which is now under consideration he grants permission to all persons, whether natives or foreigners, to search for mines, and declares that they shall be theirs in right of possession and property, and that they may dispose of them as of any thing of their own; provided "Hæc et si quæ pari fuerant obnoxia juri, Prælati proceres missisque potentibus urbes, Ex Gunther, lib. 8. in Ligurino. † Idem factum fuisse in Hungaria ex const. regis Mathiæ testatur Arumæus, de jur. public. disc. 15, §. 61. “Ut si aliquæ minera auri et argenti, salis vel aliæ fodinæ in possessionibus nobilium reperirentur, non auferrentur per regiam majestatem absque debita recompensatione." Law 5, title 13, book 6, Collection of Castile. Above, ordinance 1, chap. 1, n. 2. that they observe the rules of that edict, concerning the payments to be rendered to the crown, and the other matters regulated by it. And a similar provision was made by the first of the old ordinances.* 13. By the laws of the Indies, the Emperor Charles and King Philip II. made a similar grant to all their subjects, whether Indians or Spaniards, and of whatever station, condition, rank or dignity (except the governors, ministers, mayors, alcaldes and notaries attending at the mines, and some others who are also especially prohibited), authorising them to work the mines freely and without impediment, and making them common to all persons, wheresoever situate, provided that the Indians be not injuriously treated, and that no other parties be prejudiced ;† and likewise granting various immunities to the discoverers, whether Spaniards or Indians, as may be seen by reference to the municipal laws of the Indies.‡ 14. From the very ample terms of this grant, as contained in the second ordinance, and in the laws and orders of the Indies, a doubt arises, whether the mines of those kingdoms are still to be regarded as the peculiar right of the crown, or whether they are to be considered as the absolute property of the subject; upon which point, Don Matheo de Lagunez,§ judge of the audiency of Quito, observes, that gold and silver, and the veins of all other metals whatsoever, in the Indies, are declared common, and that all persons are at liberty to try for them, wheresoever situate; and that they are invited to do so, by the order of their catholic majesties, Ferdinand and Isabella, and by many other orders mentioned by Don Juan de Solorzano; provided that they pay the fifth, and bring in the bullion to be stamped; whence he infers, that the mines are not vested in the crown, and that consequently, so far as the Indies are concerned, all the rules of the civil law will apply, in reference to the question he is there treating of (which is simply, whether the metals are to be considered as products or not), and he conceives that the effect is precisely the same, as if the mines had been made private prop * Law 5, title 13, book 6, chap. 1. of the Collection of Castile. Law 1, title 19, book 4, Collection of the Indies. See ordinance 67 and 68, title 13, book 6, Collection of Castile, concerning prohibited persons. Title 19, book 4, Collection of the Indies. Lagunez, de Fruct. 1. p. cap. 10, n. 63, 64, and 65. "In Indiarum tamen regnis auri argentive fodinæ, et similium metallorum venæ, communes diu sune declaratæ, omnibusque permittitur ubicunque metalla quærere, et eruere: quinimo, et magnis præmiis, et privilegiis, ad id. omnes invitantur per regiam schedulam regum catholicorum Ferdinandi, et Elizabeth, et alias pluries relatas per eruditissimum D. D. Joannem de Solorzano de jur. Indiar. tom. 2, lib. 5, cap. unic. à n. 22. ita tamen ut quintam partem omnium metallorum quæ extraxerint, regio fisco reservare teneantur ex quibus ut ad supradictam nostram quæstionem redeamus circa metallorum, venarum et aliorum fructuum acquisitionem ; cum in Indiarum regnis mineralia dicta regio patrimonio non sint incorporata, sed potius libera, et omnibus cum dicto onere quinti obvia sint, absque dubio in Indiis locum habebunt omnia supradicta ad dict. L. divertio §. si vir, ff. de solut matrim. et ad d. leg. item si fundi, §. sed si metalla, ff. de usufr. et ad cognitionem principalis nostræ quæstionis quando metalla fructus dicantur, et ad maritum, vel ad alium fructuarium pertineant ?" erty, as they may be, by a particular grant; and this he seys is established by one of the laws of the Collection, and by the opinion of those who have treated of fiscal rights. 15. The Cardinal de Luca puts the same construction upon Solorzano's observations, for he says, that upon the conquest of the new world, some of the mines of gold and silver were vested in the crown, whilst others remained the private property of the subject, who, however, was bound to render to the sovereign, a fifth, a tenth or a twentieth part of the produce, according to the nature of the mines and of the ground. 16. But with all the respect which is due to the judgment of so learned a minister as Lagunez, corrobora.ed as it is by the opinion of the Cardinal de Luca, we cannot help regarding the mines of the Indies as a right of the crown, and construing them to be annexed to the royal patrimony, by the laws and orders above-cited: for Escalona, when considering these laws and orders, enumerates the mines as among the rights, and the most valuable ones,† of the crown, for which he cites the law of the Partida, and the copies of the letters of our sovereigns, to the viceroy, Don Francisco de Toledo. These letters always reserve this right, and were the viceroy's guide, in preparing the mining ordinances which he framed for Peru,‡ wherein he several times inserts a saving of this right of the crown. 17. Don Juan de Solorzano, supports the existence of this right of the crown in the Indies, as well as in Spain, referring to the order of their catholic majesties, giving permission to work mines, subject to the payment of a fifth, and also to other orders ratifying that order. And Alfaro, who refers to the same orders, confirms the opinion that the mines are vested in the crown, particularly in the Indies, where the gold and silver mines are found in rocky and cavernous places, not appropriated to any person, and conse. quently, belonging to the prince, as lord of the territory. Besides which, he considers all room for doubt removed, by their having been so vested by the law of Castile. Whence it is evident, that he considers that this law has De Luca, de regal. disc. 147, n. 22. "Quod moderno tempore quoque practicatum est in acquisitione novi orbis Indiarum, nam reliquis bonis in suo primo consueto statu relictis, aliquæ fodinæ argenti et auri regis effectæ sunt, atque regiæ coronæ incorporate; reliquæ autem relictæ in dominio privato sub obligatione præstandi regi quintam partem, quandoque decimam vel vigesimam partem, juxta fondinarum, et regionum qualitatem, ut per Solorzanum, dict. tom. 2, lib. 5. part 2. c. 1, et unic. n. 23, et seqq.” 1 Escalona, in his Gazophilacio, book 2, part 2, chap. 1, n. 2. "This duty (the fifth), is levied by virtue of the supreme right and seigniory universally vested in the princes, in right of their crown, over the minerals which Nature yields." So Gutierrez, Amaya, and others. Et ibid. verb. Quintos de cobre, fol. mihi 100. "All minerals and veins are rights and jewels of the crown." And see the margin of the ordinances of the viceroy, Don Francisco de Toledo, and several chapters of letters on the same subject. Escalona, ubi sup. page 101, book 2, part 2, chap. 1, Gazophil. § Solorzano, lib. 6, Polit. Ind. cap. 1. Alfaro, de off. fisc. gloss. 20, s. 6, n. 103. the same authority and force in the Indies, as in Spain, and that the munícipal laws of the former countries have not severed the mines from the royal patrimony. 18. A further argument is drawn from a reservation made by the ordinances of Peru,* which (following the old law of Castilef) require a mine to be set out for the crown, of 60 varas in length in veins of silver, and 50, in those of gold, and contiguous to the discoverer's mine, who is to swear that it is on the richest part of the vein, although it is advisable, as the ordinance provides, to sell or lease this mine, from the risk of the ores proving poor. And although it is not the practice, in New Spain, to set out such a mine for the crown, yet the payment of the fifth or tenth operates as an acknowledgment of the sovereign's right,§ and is a sufficient proof that all metallic ores are originally part of the royal patrimony. 19. Our opinion is further confirmed, by the circumstance, that no newlydiscovered mine can be worked until registered, and that no old mine, once abandoned, can be worked again, until denounced and registered before the justice; and that the boundaries of the mines cannot be assigned or the working conducted in an arbitrary manner, but according to the rules of the ordinances and laws, only; so that an acknowledgment of the right is in fact made to the king, or to the justice in his name. And by the laws of the Indies, a licence must be obtained, previous to searching for mines or pearl banks; and an oath must be taken that all discoveries shall be duly reported, for the better levying of the revenue. And an additional corroboration of this opinion is derived from the circumstance, of permission being given to try for mines in the ground of any other proprietor, and of the latter being disabled from making any objection, provided a compensation be made to him for any damage to his property. For this, as we have already seen.¶ would not be tolerated by the civil law, were it not authorized by the crown, in the exercise of its supreme right of property over the mines, and were it not a consequence of their having been reserved for the general benefit of the subject, so that all persons should be at liberty to search for and profit by them. But after all, the strongest ground of argument is afforded by the laws of Castile and of the Indies themselves; which give the subject an interest merely,** and not a separate, and absolute property in them, and which *Escalona, Gazoph. book 1, chap. 15, and book 2, part 2, chap. 1, at the word Minas de S M. page 99, in the 18th ordinance of the viceroy, Don Francisco de Toledo, title 1, concerning discoveries, page 108. † Law 5, title 13, chap. 22, book 6, Coll. of Castile. Law 2, title 11, book 8, Coll. of the Indies. Escalona ubi sup. Don Joseph Saenz, Tratad. de medidas de minas, cap. 3. Law 2, title 19, book 4, Collection of the Indies. Ubi sup. n. 1. **Law 4, title 13, book 6, Collection of Castile, chap. 2. "That our natural-born subjects authorise him to deal with them in such maner only, as shall be consistent with the regulations of the ordinances. And thus, although the grant gives a right of property, yet it only amounts to the cession of a partial interest, and not to an obsolute transfer; the supreme right of property remaining vested in the crown. 20. The correct opinion then seems to be, that the property of the mines remains vested in the crown, and that as the sovereign cannot work them on his own account, he has given his subjects a partial interest in them, under various restrictions, and subject to vario is liabilities. And as a proof of this, it may be observed that, at first, the law made the quicksilver mines, amongst others, common;* that, subsequently, it was left to the discretion of the viceroys, to allow the discoverers of these mines such advantages as they might think proper;† but that finally, they were reserved for the use of the crown only,‡ and are not allowed to be worked in New Spain; all which is evidence of the supreme right of the crown. 21. Nor is Lagunez's opinion supported by his reasoning. For as to his first argument, founded on the declaration that the mines of the Indies are to be considered common, subject to the payment of the fifth; the fact is, that the acknowledgment of right implied in the payment of the fifth, and the performance of the other obligations to which the miners are subject, furnish an inference to the very contrary, namely, that the mines are vested in the crown. As to his second argument, although it is very true that private persons have a right of possession and property in the mines, yet the acknowledgment implied in the payment of a certain proportion to the treasury, is of itself sufficient to compel us to treat them as within the rights of the crown; and such, according to Arumæus and many other authors, is the light in which they are regarded in the empire of Germany, and in Hungary. As to his third argument, we have only to observe, that by the laws of Castile, T the mines are granted to the subjects, in possession and property, with power to dispose of them, as of any thing of their own, and to search for them. wheresoever situate, which goes much further than the mere saying, that they shall be common to all, which is the expression of the law of the Indies ;* but yet all the mines of Spain, whether in public or private ground, are vest shall participate and have part." Law 1, title 10, book 8, Collection of the Indies. "For it is our will to make a grant of the other four parts, that every one may have power to dispose of the same." *Law 1, title 19, book 4, Collection of the Indies. † Law 4, title 19, book 4, Collection of the Indies. Gold, silver and other metals." Montemayor, lib. 5, tit. 5, summary 8, concerning quicksilver, and the levying the duties thereon. § Vide sup. n. 20, marg. Arumæus, de jur. publ disc. 15, § 60. Laws 4 and 5, title 13, book 6, Collection of Castile. ** Law 1, title 19, book 4, Collection of the Indies. |