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ed in the crown; this vesting, as the law observes," not being insisted on, with a view to their being worked on the sovereign's account, but for the sake of giving all his subjects an interest in the advantages derivable from them, subject to the payment of a third, a fourth or a fifth part of the produce And viewing the subject in this light, the existence of this right and the annexation of the mines to the crown, are easily reconciled with the principle, that the mines are free and common to all; and with the exercise of a right of property over them, on the part of the subject.

22. And the laws and orders cited above, under which immunities are proposed, to incite the people to search for and work the mines, by no means prove that they are not still a right of the crown, for they undoubtedly are so in Portugal, where offers of similar immunities are nevertheless held out.† And this fact can at most only amount to evidence of an earnest desire for the promotion of the public good, by procuring the mines to be worked; which was the very object for which they were vested in the crown. So that the making them common to all and the giving permission to search for them, wheresoever situate, are proofs of the gracious disposition of the sovereign, who, in his desire to promote this object, has annexed the mines to the crown, has revoked the grants heretofore made, by provinces and bishoprics, and has rendered private property liable to a service, by disabling the proprietor from objecting to the mines being searched for or worked (provided a fair compensation be made to him for any damage to his property), and by establishing the principle, that the mines are excepted out of the grant of land under which such proprietor may hold. And hence we may conclude, that the immunities thus offered in the Indies, the making the mines common, and the giving free permission to all persons to search for them, are evidences of the right of the crown, and not, as contended for by Lagunez, proofs of its non-existence.

23. It seems too, that he went out of his way, to involve himself in this question, for it has no bearing upon the principal point discussed by him, namely, whether the metals are products or not. For although they are not such, strictly speaking, since they do not reproduce; it is enough that they are emoluments cr civil products, to make all the effects of the civil law attach ; that is to say, to give an interest to the usufructuary, to the husband (when the wife has a mine for her portion), and to the tutor, who is entitled to the tenth part of the produce of the minor's property; all which may

*Law 4, title 13, book 6, Collection of Castile, cap. 2. "For the vesting the said mines in ourselves and in our royal inheritance, is not to the end nor for the purpose, that the said mines should be searched for and worked by ourselves alone, or in our name only; on the contrary, it is our intention and will that our natural-born subjects should participate and have part in the said mines, and should engage in discovering and working them, Wherefore, &c."

† Lagunez, de fruct. 1. part. cap. 10, n. 6, cum Acevedo et aliis.

↑ Antunez de Portugal, de donat. lib. 3, cap. 12, n. 14. in fin.

§ Lagunez, de fruct. part. 1, dict. cap. 10, per tot. cum multis juribus, et AA.

very well take effect, although at the same time it may follow, from the acknowledgment of right implied in the payment of the fifth, and the submission to the ordinances, that the mines are a right of the crown. For as the proportion which remains, after satisfying the demands of the ordinances, is strictly a product or emolument to the owner, the metals must in any case be regarded as products, either natural ones, if the fact be that they do reproduce, or civil ones, if they do not; and an interest in them must therefore pass to the usufructuary, the husband, the tutor and others.

24. It being then established that the mines of the Indies are a right of the crown, and that this right is quite consistent with the property granted to the subject, therein, it must follow, beyond dispute, as a consequence of their being made over to the latter, with power to dispose of them as of any thing of his own, that all the incidents of property must attach in favour of the proprietor, and that they may therefore be exchanged, sold, leased or alienated, by contract, donation or inheritance; may be given as a portion. in marriage, or may be charged with a rent; and that interest may be demanded for the purchase money, whilst remaining unpaid. For it is clear, that this class of property is to be regarded as bearing produce, and this is insisted on by the Cardinal de Luca, by Garcia, Petrus Barbosa, Molina, Castillo and Gutierrez, who speak with reference to those mines and veins of known and tried permanence, the ores of which, although not actually reproduced, are still to be regarded in the light of products. And in the place. cited, De Luca also deduces very sound rules, establishing the justice of reserving rent, on a lease of mines. But all the above qualities are to be understood as being governed by this essential condition, that those to whom the property devolves, by universal or particular succession, must conform to the ordinances, and fulfil the obligations thereby imposed, such being the law.

25. The grant of the sovereign, therefore, conveys to his subjects, a direct and beneficial right of property; and is to be regarded as a qualified gift, which will appear, upon considering the rules by which that species of gift is defined in law; that is to say, that it be a free and complete act, which being perfected, a charge attaches on the donee from that time forth (and the

Luca, de regalib. disc. 117, n. 18. "Et licet in stricta juris censura id quod ex hujusmodi fodinis singulis annis percipitur, potius pars sortis quam fructus dicatur: quoniam fructus vere, et proprie dicitur ille qui renascitur, ac singulis annis, vel temporibus, salva rei substantiâ, seu causâ productivâ, percipitur; nihilominus, ubi non agitur de parvis et superficialibus mineriis modico tempore duraturis, sed de hujusmodi magnis, atque juxta tot sæculorum experimentum indeficientibus; tunc earum fructus consistere dicitur in ipsius substantiæ annuali, seu temporanea consumptione, et extractione: Unde propterea in eis cadit usufructus, ordinantur fideicommissa; dantur in dotem pro matrimonio carnali, seu pro dote ecclesiæ, vel beneficii, imponuntur super eis census, atque intrant pro pretio termini textus in Leg. curabit, Cod. de act. empt. cum similibus." Ut per Garciam de expensis, cap. 22, n. 47. Barbosa, in Leg. divortio, §. si vir, n. 9 and 10, ff. de solut, matrim. Barbatia, de divisione fructuum, part 1, cap. 17, n. 39. Molina, de primogeniis, lib. 1, c. 23, n. 8, in fin. Castill. de usufructu, cap. 37, n. 16. Gutierrez de gabell. de. q. 36. n. 11, te seq.

being worded as a condition makes no difference), and that upon the failure of the modification, limited by the donor in his own favour, or in that of a third person, or of the kingdom or republic, the gift determines; as will be seen by reference to various texts, and doctors.*

26. And these rules are precisely applicable to this second ordinance: for his majesty thereby gives " and makes a grant to his subjects of the property and possession of the mines discovered, or to be discovered, with power to dispose of them, as of any thing of their own:" which amounts to a complete act of gift, no price being paid for the grant, nor for the registry or denouncement of the mine: "but," proceeds the ordinance, "observing, both in regard to what they have to pay us by way of duty, and in all other respects, the regulations and arrangements established by this edict, in the manner hereinafter-mentioned:" which is the charge or qualifica tion, and which refers to the payment of the fifth, from that time forth, and to the observance of the ordinances which regulate the mode of working the mines, the number of hands to be kept at work in them, their boundaries and the other matters required to be observed, upon the omission or non-performance of which, the gift determines, and the mine becomes liable to be de nounced by any one.†

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27. The 2d and 16th ordinances, and the 1st of the old ordinances, make it lawful, not only for the subjects of the crown, but also for foreigners, to search for mines. The law of the Indies, under the title "Discovery of Mines," does not make any such particular mention of foreigners; for their residence in those parts being prohibited by the municipal laws and statutes of the country, unless specially permitted under letters of naturalization, they consequently, cannot apply themselves to the working of the minerals of that country; on the contrary, our sovereigns have ordained by express laws, that those persons who are prohibited from going to, or residing in the Indies, shall not be at liberty to raise gold, silver or any other metal;§ and the ordinance of the viceroy, Don Francisco de Toledo, in Peru, which makes it lawful for all foreigners to discover and take possession of mines, to stake them out, and to apply for the unappropriated space of ground, in the same manner as natural-born subjects, must necessarily be understood to apply to those only who have been naturalized by royal grant, and not to those otherwise circumstanced.

28. As to those foreigners who may have actually applied themselves to

* Law 1, Cod, de his. que sub modo L. cum vos, Cod. de donat. Antunez, de donat. lib. 1, præl. 2, §. 1, a. n. 1, 10, et per totum, cum Gomez, Menochio, Mantica, Gregor. Arias a Mesa, et aliis.

† Law 5, title 13, book 6, cap. 1, Collection of Castile.

The whole of title 27, book 9, of the Collection of the Indies.

Law 1, title 10, book 8. Law 6, title 27, book 9, of the Indies.

|| Ordinance 7, of the viceroy, Don Francisco de Toledo, in the Gazophil. of Escalona, book 2, p 2, chap. 1, page 106.

the working of mines, although it would be unjust, not being suspected persons, to deprive them of property upon which they have laid out their money, with beneficial effects to the public, yet it would be proper to compel them to sell their mines at a reasonable price, and then to send them out of the country. And this is the object of the law in directing that justice be done,* with reference to which, all such circumstances ought to be taken into the account, as the audiency may fairly, in justice, have regard to. But it is otherwise where such persons, so possessed of a mine, which is real property, shall have been established for twenty years, or shall be married, or have a family of children, or where other circumstances, under which they are tolerated by the laws of the Indies, shall enter into the case. As to all which matters, Veitia, Solorzano, Hevia Bolanos and Escalona,† and the laws above-cited, may be referred to. Regard must, however, always be had to the just, approved and notorious reasons, for prohibiting foreigners from all access to the Indies, for the purpose of trading, or of purchasing gold and silver.‡

29. Since the ordinance renders it lawful for all the subjects of the crown, of what station or condition soever, to work the mines, it might be inferred that this liberty is extended to the clergy; and, in fact, several very excellent works have been produced on these subjects, by the industry of ecclesiastics, such as the learned works of Barba and Ordonez,§ on the subject of ores and smelting. And there is nothing indecorous in their acquiring knowledge or skill in these matters; but the certain orders of Philip II. and Philip IV., an abridgment of which may be found in the collection of Don Juan Francisco Montemayor, it is directed, that neither the monks nor the clergy shall be allowed to employ themselves in working mines, as being indecorous and scandalous, and of bad example. And this rule is particularly proper, if the parties are charged with the religious superintendency of Indian districts.

30. Similar regulations are strictly enforced by the law of the Indies, T and Solorzano cites various prohibitory orders, grounded on the avarice, cruelty and vexations which prevail in the management of the mines, under such circumstances; the only case excepted being that of a clergyman

*Law 26, title 27, book 9, Collection of the Indies.

† Law 10, 13, 15, 19, 22, 27, same title and book; see Veitia, Norte de la contratacion, lib. 1, cap. 31. Solorz. Polit. lib. 3, cap. 29, n. 46. Bolanos Cur. Philipp. part 2, lib. 1, cap. 27. Escalona in his Gazophil. lib. 1, cap. 29, page 156.

Law 8, title 27, book 9, of the Indies.

§ Don Alvaro Alonso Barba, (in his Arte de los Metals) curate of Potosi in Peru. Don Juan Ordonez Montalvo, presbyter, and director of the mines of the Marquis de Valle-Ameno, in the mining district of el Monte, in New Spain, in his Cartilla, o arte nuevo de beneficiar los metales de Oro y Plata por Azogue, printed at Mexico, in the year 1758, at the press of the Bibliotheca Mexicana. See chap. 22, § 13, n. 55.

Montemayor, Sumarios de Cedulas Reales, lib. 5, tit. 4, sumario 14.

¶ Law 4, title 12, book 1, Collec'ion of the Indies.

becoming entitled to a mine by inheritance, in which case he is allowed to work it until he has an opportunity of selling, leasing, or disposing of it to advantage.*

31. The contrary, however, is common practice in the Indies, where the clergy not only work mines on their own account, and at their own risk, and pay the duties like all other persons, without ever having their mines denounced; but they also occupy themselves in the administration and management of the mines of others, in the very face of their superiors; relying on the prevalence of the custom, and on the fact, that the business being conducted by servants, has nothing indecorous in it, and is by no means against conscience.†

32. The council of Lima,‡ prohibits curates and incumbents from working mines (amongst other lucrative occupations), under pain of excommunication, ipso facto incurrenda; forbidding other ecclesiastics from engaging in actual trade only; but the council of Mexico,§ setting forth that many curates and incumbents undertook the ministry in the Indies, more from a lust of gain, and in the expectation of having the services of the Indians in agriculture or mining, than from a desire to guide and enlighten their minds, orders, that no secular or regular curate, shall cultivate land within his jurisdiction, nor within the space of ten leagues around; not excepting even the land of his own patrimony or of the church, if he has an opportunity of letting it : but that if no person can be found willing to take such land on lease, then he may employ the Indians who are so disposed, in cultivating it; but that no compulsion shall be used towards them, and that they shall be paid for their labour, and be kindly treated; and that if any such person as aforesaid shall act otherwise, the bishop shall deprive him, if he be a secular clergyman, of his benefice, and if a regular, of his cure, and shall suspend his right of electing, or being elected to any office.

33. From the decision of this council, friar Juan de Paz infers in his Consultas y Resoluciones, that the ecclesiastics || and curates of the kingdom of

*Solorz. Polit. lib. 2, cap. 18, n. 53.

† Cap. Ejiciens, distinct. 88. Paz, Consultas y Resoluciones varias Theologicas, class. 1, cons. 59. per totam.

Actione 3, cap. 5, Neque Indos ad mineralia sibi curanda mittere.

§ Lib. 3, tit. 20. "Ne clerici, vel monachi negotiis sæcularibus se immisccant, §. 5. Quia vero multi curati et beneficiati Indorum, hanc curam suscipiunt, magis lucri cupiditate (ut videlicet Indi sua colant prædia, aut minas effodiant), quam ut ipsi rudium Indorum animas instruant; hæc synodus præcipit, ut nullus curatus Indorum, sive sæcularis, sive regularis, possint intra suam jurisdictionem, nec intra decem leucas in ejus ambitu, prædia (etiam si patrimonialla, aut ecclesiæ fuerint) colere, si sint qui ea conducere velint. Quod si conductores minime reperiantur, ea ipsis colere liceat, etiam per Indos, quos tamen ad id volentes tantum adhibeant, debitamque eis operum et laboris mercedem persolvant, benigneque, et comiter se gerant, si secus fecerint, episcopus curatos sæculares beneficio privet; regulares autem, a regimine ecclesi amoveat, et voce activa et passiva perpetuo suspendat."

|| Paz, ubi proxime.

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