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and by other means, from penetrating into the interior of the kingdom, or establishing themselves at Mexico, the inhabitants of which kingdom, in fact, make more profit by selling the silver to the crown at a just price, according to its quality, at the same time paying the duty, than by selling it to the silversmiths or Flotistas, who always pay them less than the value ; and this may be said with still more truth, now that all the business of the mint, as well as of the Apartado,* is conducted with so much openness and fidelity,t a small rate of interest being all that is demanded for the advance of money to the owners, should it happen that they are urgently in want of it, during the tedious operation of parting the bars in which silver and gold are combined.
29. We should also notice laws 47, 48 and 49, by which all wrought gold and silver, pieces of plate, chains, &c., not having paid the duty, are declared forfeited (two parts to the exchequer, and one part to the judge and informer), as well as the goods of any silversmith who shall have any such in his possession, for the purpose of being worked. The crown however, as observed by Escalona, I generally waives the benefit of these laws, and allows the forfeited property to be brought in to pay the duty. But an order granting a special exemption of this kind, expires at once, s and cannot be renewed from time to time, or enforced by the viceroy.
30. In the year 1682, the Duke de la Palata, in obedience to an order issued the 13th of October, 1680, prohibited the exportation of wrought silver from the kingdom of Peru, on account of the irregularities experienced at the markets of Portobello. For it being unlawful to export unwrought silver, it was the practice to make it into heavy masses, which, after receive ing half a dozen blows of a hammer, passed as wrought silver, and dealings were carried on in this way at that port to the amount of at least two millions : whereupon the duke issued an edict prohibiting the exportation of wrought silver, but permitting ornaments intended for the use of the churches or for presents, or plate required for use on the voyage, to be exported to Spain, by licence from the government. And upon the silversmiths shutting up their shops, declaring that they could not work silver which had paid the duty, because they had always been accustomed to purchase it free of duty, the duke ordered that the law on this subject should be enforced, and issued an edict, directing that the assayers's mark should be added to that of the silversmith ;|| but leaving it still lawful to work old silver, and such as should
* Establishment for parting gold and silver.- Trans.
† Dispatch is directed by the 10th ordinance. “With as much dispatch as the state of the funds of the establishment will permit, it being of the utmost importance both to the mines and to the trade in general, that the value of the metals should be returned to the owners without delay; to which therefore, my superintendent is to pay proper attention."
Escalona, in his Gazophil. lib. 2, p. 2, cap. 1, n. 10. "These orders being dispensatory and a matter of favour, are exhausted by once operating, and cannot be renewed or made perpetual.”
0 L. mortuo bove, g. hoc sermone, ff. de v. 8. || Instructions of the Duke de la Palata to his successor, Count de la Monclova, num. 616.
be obtained by burning silver cloth, lace or other tissues, which might be presumed to have paid the duty.
31. After this, the council, by a report, dated the 1st of October, 1731, and submitted to the crown through the secretary's office for Peru, stated that the viceroy of that kingdom, having been advised by the board of finance, of the inconveniences attending the strict observance of the above laws, had suspended the operation of the edict of the Duke de la Palata (of which he had sent a copy), and had, in the meantime, given leave to export wrought silver from the market of Portobello as formerly ; which report being referred to the board of trade and coinage, who advised upon it on the 8th of Nov. 1736, his majesty by a royal decree, of the 26th of Nov. 1738 (qualified by a clause making it temporary), ordered that the regulations of the Duke de la Palata should be observed, until his majesty, upon a consideration of the duke's edict, and of the reports of the viceroy of Peru and the board of finance, should determine upon the manner and form in which laws 47, 48 and 49, above-mentioned, should be interpreted and enforced, and until the proper order for that purpose should be issued. And although it is not known what course was subsequently taken, it is most natural to suppose that the excellent plan of the above-mentioned viceroy, whose mode of government was marked by so much discretion, should have been followed up, as the only plan that could be devised, for preventing contraband exportation.
32. It appears then, that old silver, and such as was obtained by burning silver tissues, was left free from duty; but that all other silver was made subject to duty, agreeably to the laws; whereupon the silversmiths shops were again opened, after being closed six months; and this prohibition remained in force after the time of the Duke de la Palata,* who observes, however, in the instructions to his successor, mentioned above, that be had good reason to believe that the silver wrought by those artificers did not pay the duty, although the impossibility of applying a remedy, made it necessary to connive at the evil.
33. As to New Spain, it was commanded, by orders of the 9th of Nov. 1526, and the 7th of April, 1551, under pain of death, and of the forfeiture of goods, that no person should exercise the business of a silversmith, on account of the frauds practised by them, in mixing the metals, and in eluding the payment of the duty; a remedy, which cannot be denied to have been an effectual, although a severe one. It appears however, from the collection of orders compiled by Don Vasco de Puga, judge of the audiency of Mexico, † that it was provided, by an order of the 23d of May, 1559, framed with a view to the general good, and to prevent the exportation of
* Instructions of the Duke de la Palata, num. 649. † Don Vasco de Puga, Cedular. pag. 16. and 208.
jewelry from Spain, that these artificers should be tolerated, provided they observed the ordinances made for their government. But notwithstanding the above-mentioned laws and ordinances,* nearly the same difficulties are experienced as in Peru, from its not being possible to exercise equal vigi. lance, in all the numerous towns of that country. Old silver, that is to say, such as has already paid the duty, is entered in a book, called the Libro de remaches, that it may not be liable to be charged a second time.t But with respect to services, or separate pieces of plate, it has been found necessary to relax considerably. The zeal of the viceroys has gone no farther than the promulgation of an edict, issued by Count Fuenclara in the year 1745, allowing wrought silver to be brought in to pay the duty, free of penalty ; from which measure the revenue has derived considerable benefit, as it also has from the order issued to the royal, public and provincial notaries, to bring in to be stamped, all such wrought silver seized upon executions or sequestrations, or enumerated in inventories, as should not have paid the duty; an order which it will be very important to renew from time to time.
34. But according to Escalona, who cites Lasarte and others, the silver used in the pontifical ornaments of the archbishops and bishops, and such as is employed for the service of the church, is exempted from the payment of the duty, (in analogy to its exemption from the duty on sales); this not being in opposition to law 5, tit. 10, book 8, of the Collection of the Indies, which orders the fifth to be levied on the gold and silver, raised by working on holidays or at any other time, though appropriated to the use of a church, monastery or ecclesiastic; for charitable gifts of this kind must be so limited as not to prejudice the revenues of the crown ; and if these institutions interfere in the working of the mines, they must submit to the royal charges, such as the fifth, or tenth ; and such is the tenor of the law and the authorities, in reference to cases of this description.
35. Upon this point, we may notice an order, dated the 8th of Nov. 1681, directed to the audiency of Mexico, wherein his majesty approves the ori. ginal and reviewed decrees of the 26th of April, 1679, and 22d of Jan. 1680 ; under which, 328 marcs, 4 ounces, and 4 tomins of unwrought silver, found among the property of Fray Thomas Monterroso, bishop of Oaxaca, deceased, were confiscated. And with respect to 416 marcs, 5 ounces of wrought silver, which had not paid duty, found amongst the same property, his majesty advised the audiency, that the question was under his consideration in council, and that his determination should be announced to them ; and he ordered them to deposit the plate in the royal treasury, in the mean. time. This order is stated by the fiscal, Don Martin de Solis, who mentions the great quantity of silver which was wrought without paying the fifth.
* Laws 47, 48 and 49, tit. 10, book 8, Collection of the Indies.
Law 13, tit. 7, book 8. Collection of the Indies. Escalona, in his Gazophil, lib, 2, p. 2, cap. 1, n. 18.
Escalona, Gazophil. real de el Peru, lib. 2, p. 2, cap. 1, n. 17. Lasarte, de decima renditionis, cap. 19, n. 60, cum. Barthol. et aliis.
Cap. abbates, de decim. cap tributum, 23. q. 8. Auth. item prædium, Cod. de sacros. eccles L de his, Cod de episcop. et cleric. Joan. Andr. in cap. 1. de censib. Imola, Baldo et alii. apud Fragoso, de regimin. republicæ, tom. I, p.1, lib, 2, disp. 4, 83. a. n. 223, et sey. P. Molina, de just. et jur. tom 2, disp. 383, vers. ex his, L. 55, tit. 6, p. 1. et ibi Greg.
36. The amount of the duties of the one and a half per cent. and tenth, and the coinage dues, levied on silver in the kingdom of New Spain, although liable to be affected by the fluctuations in the produce of the mines, exceeds upon an average, 700,000 dollars annually ; and that of the duties on gold, 60,000 dollars. It is mentioned, however, by Don Joseph de VillaSenor, in his Theatro Americano,* that the duties on the two metals together, amounted in the year 1743, to 821,974 dollars, 7 tomins and 3 grains. And they would reach a much higher amount, were proper obseryance paid to the laws of the Indies, † which prohibit all dealing or trading in silver in pinas, $ ingots or any other form, or in gold, in dust or ingots, not having paid the fifth ; for in the remote provinces, from the want of coin notoriously experienced there (of which we shall treat in the proper place, under ordinances 58, 72 and 73, in chapter 22), all dealings without exception are conducted in current or leaf silver.
37. The fifth is also levied on all ores of lead, copper, tin, iron, &c.; in place of which however, a tenth only is to be charged, during the first ten years. And these metals are to be brought in to be stamped, under the same penalties and regulations as are in force regarding gold and silver. But, as is observed by Escalona, the levy of these duties in the Indies, has been neglected, from the great expense attending it, and the smallness of the amount|| when collected : which is, in fact, the case in New Spain : and although those who work and reduce the ores of these metals, do so by permission of the government only, which they are bound to obtain ; yet they do not attend to any of the regulations concerning boundaries, or the other formalities observed with respect to the silver mines; which however, according to Escalona and Don Joseph Saenz, ought to be enforced. And the moderate course thus adopted, of not exacting the duties upon these metals in the Indies, with so much strictness as those upon gold and silver, is in accordance with the spirit of the ordinances under consideration,** which
* Villa-Senor, Theatro Americano, cap. 5, page, 40 and 41.
Silver, in the state in which it remains upon the completion of the process of reduction by amalgamation, after the quicksilver is driven off by heat.-Trans.
§ Law 51, title 10, book 8, Collection of the Indies.
|| Escalona, in his Gazophil. lib. 2, p. 2, cap. 1, pag, 100, 4.5, de cobre, &c. where he collects together many royal orders, directed to the viceroys of Peru, and establishing the right of the crown.
1 Escalona, loc. proxim. citat, Don Joseph Saenz, cap. 3, Tratad. de medir minas, Ms. ** Ordinances 10 and 11.
fix the duty on poor lead and copper, at one-twentieth part; and the latter metal also, being required for the other mines, should therefore be less heavily rated.
38. Gunpowder, into the composition of which saltpetre and sulphur enter, is the subject of monopoly, and returns to the crown more than 70,000 dollars per annum. The contractor purchases the sulphur and saltpetre at prices stipulated. The saltpetre is prepared at all the saltpetre works around Mexico, in the jurisdictions of Chalco, Tezcuco and Ayotlan.
39. There is a monopoly of copper in Mechoacan, which returns to the revenue, 1000 dollars per annum; the mines which are the subject of it, are situated in the township of Santa Clara del Cobre, in the jurisdiction of Pascuaro.* And the monopoly of alum is farmed out, at the capital of Mexico, for more than 6500 dollars per annum.†
40. These contracts contain special conditions for preventing the articles to which they relate from being otherwise procured. As to sulphur, the contractors are regarded as owners of the mines, and, as appears from the 18th condition of the last contract made with Don Rodrigo de Neira, & in 1747, the transaction between the contractors and those who work the materials, partakes of the nature of a letting and hiring. Without their permission, no other articles of the same kind can be prepared, nor can the mines from which they are procured be worked; such being the usual stipulations of the contract. And the rents which they respectively pay to the crown, under these contracts, include all the duties which the revenue can claim upon the articles to which they relate, it being stipulated by the contractors, that these rents are to be regarded as compensating for the duties of the fifth or tenth.
IT IS PERMITTED TO TRY FOR AND WORK MINES, WITHOUT RESTRAINT. IN PUBLIC AND ALSO IN PRIVATE GROUND, SUBJECT AS TO THE LATTER, TO THE RIGHT OF THE PROPRIETOR TO BE COMPENSATED FOR THE DAMAGE DONE TO HIS PROPERTY, ACCORDING TO AN ESTI. MATE TO BE MADE BY SURVEYORS.—THE OCCUPYING AND REGISTERING OF THE MINE GIVE ANY PERSON A RIGHT AGAINST THE OWNER OF THE SOIL.
ORDINANCES XVI. LXV. XVI. Also, we ordain and command, that it shall be lawful for all persons
* Villa-Senor, Theatr. Americ. lib. 1cap. 5, pag. 41, and lib. 3, cap. 1, pag. 22. 1 Idem, lib. 1, cap. 5, pag. 41.
Conditions, printed at Mexico, 1747.