jury to third persons is prevented. Injury done to the Indians is particularly noticed by the law, which directs that regard be had to their wretched condition, and that compensation be made to them for the land taken from them, and for all other damage done to them ;* and that no one presume to intrude wantonly into their ground.

8. And as every right, the exercise of which may indirectly operate to the prejudice of third persons, is to be used with as much moderation as may be, and so as to produce the least possible damage, it will be proper that the justice should confine the right, and prevent the damage, as much as possible. That is to say, that he should permit no persons to erect smelting houses, furnaces or other works, except the owners of mines, of whom the law makes express mention, $ and who require them, as accessary to the principal object of working the mines; and the purchasers of ores in the large way, who require them for the same reason. I recollect a case where, under pretence of setting up litharge works, certain inhabitants of the place, by name Castorena, were about to set up grinding and stamping mills, on part of the farm of Reoyos, in New Galicia, belonging to the Count de Santiago; but the royal audiency of that district, upon the representation of the Count, ordered them to quit the place, and to make good the damage done to the land by them and their cattle, as well because theirs was a case to which the ordinances did not apply, as because their works might have been carried on upon land of their own, without intruding into that of others.

9. This licence is also restricted by the second of the ordinance of Peru, s which provides, that if the discoverers of mines wish to search in vineyards or plantations of trees, either from malicious motives, or because they are, as they allege, certain that ore is to be found there, they shall give security, before making any trial, to repay to the owner of the soil whatever damage they may occasion. And this is agreeable to the civil law,ll which has for its object to prevent, by this precaution, the opportunity which would be presented for the exercise of malice, and to guard against the damage which might otherwise be suffered in buildings and cultivated ground, in which, according to the law, it was not permitted to dig, under pretence of there being

* Law 1, title 19, book 4, Collection of the Indies. † Odia restringi, favores convenit ampliari.

Cap. 26. ord. 52. « The owners of them.“ The owners of the mines. « The owners of the said mines. "

Esca:oca, in bis Gozoph. lib. 2, part 2, cap. 1, page 104.

L. 15, . 2, ff. de damno infecto, ibi: * Cum autem in alieno fiat, satisdationem prætor injurgit"

f - Damnum infeetan est damnum nondum factum, quod faturam veremur.” Leg. 2, ff. de damno infecto.

ore.' And as to the object of these laws is to secure indemnity to third per.

sons, namely, the owners of the soil, but at the same time not to restrain the - right of searching for mines, it would be extremely agreeable to justice, in all

cases where objections are made, upon a reasonable apprehension of damage, that the discoverer should give security to make it good, in analogy to the regulation of the law of the Indies, respecting those who are desirous of searching for treasure.f

10. In New Spain however, from the immense extent of those regions, and from the great abundance of mineral treasure which may be found in the common and waste places, there are no instances of mines being registered in the ground of other proprietors. By the 17th ordinance, mines are not allowed to be registered without producing ore, and indicating the place where it has been found.

11. The question may be raised, whether, upon the discovery of a mine in another proprietor's ground, the owner of the soil is entitled to claim precedence of and oust the discoverer ? To which we reply, on the authority of Baldus, Paulo de Castro, Rosenthal, Petrus Barbosa, Bartholo and Cepola, all of whom are cited by Antunez, $ that the discoverer is to be pre. ferred before the owner of the ground, provided he comply with the direc tions of the ordinances concerning registry. First, because he who first takes possession according to law, is in a better condition. § Second, because the mine or vein is not part of the estate, nor did it pass with the land, but is common, and falls to him who first takes possession of it. Third, because he who first sets about exploring and working the vein, is in a situation to claim the preference, both by rules of justice,ll and by the ordinances of the new code, which confer upon the first discoverer the right of making the first registry, and of taking a large space of ground, with other privileges which we shall notice hereafter. I In Peru, a mice is to be allotted to the owner of the soil, after setting out one for the discoverer, and one for the crown.* But in New Spain there is no law to this effect, although the owner of the soil, as well as any other person, may afterwards register a mine if he pleases. Fourth, because it is to the advantage of the public, that ores should be searched for, and that mines should be explored and worked by the people generally,t and the owner of the soil has therefore no right to prohibit them from doing so, nor can he have any right to deprive another of the fruits of his diligence. And this applies not only to mines of the precious metals, but also to any mineral deposits, as was determined by the senate of Granada, in a decision which is illustrated by Larrea, in his collection, where he shews, that upon the ground of utility to the public, any other person may work upon the continuation of the original vein. And Corradini, in his Tratado de el derecho de prelacion, puts the question in express terms, and comes to the conclusion, that the proprietor of the ground has no right of priority, if the veins belong to the sovereign, but that, if they belong by right to the private owner, he is to have the benefit of them, unless some other person have commenced digging, or have laid out money on them, in which case such latter person shall be preferred, upon the ground of his having taken earliest possession.

* Leg. 6, Cod. de metall. “Quosdam operta humo esse saxa dicentes, id agere cognovimus, ut defossis in altum cuniculis alienarum ædium fundamenta labefactent. Qua de re, si quando bujusmodi marmora sab ædificiis latere dicantur, perquirendi eadem copia denegetar."

† Law 1, tit. 12, book 8. “Binding themselves personally, and heir property likewise, with sufficient sureties, to satisfy and make good to the owner, the damage or injury which the searching for treasure may occasion to the houses, cultivated grounds and possessions, where they shall assume the treasure to be, according to the estimate of intelligent and experienced persons."

Antunez, de donat, lib. 3, cap. 13, n. 16.

Leg. 32, ff. de procurator. “Pluribus procuratoribus in solidum simul datis, occupantis melior conditio erit,” Larrea, Decis. Granat. disp. 43, n. 3, and 31, cum pluribus.

ll Antunez, de donationib. lib. 2, cap. 12, cum Barth. Cæpola, Barbosa et Rosenthal, n. 16. “Quia prius in cæpit quærere venas, et laborare facereque ea que pertinent ad inveniendam rem de cujus prælatione agitur."

I See chap. 8 and 9, and ord. 22 and 23. Law 9, tit. 13, book 6, Collection of Castile. Larrea, dec. 44, n. 3. "Et in minis argenti, auri, et in relinquis metallis pretiosis legibus nostris adeo jus adquiritur invenienti, ut illud extendat primus inventor in 120 ulnas longitudinis, et 60 latitudinis."



ORDINANCES XVII. XVIII. XIX. LXIX. XVII. Also we ordain and command, that whoever shall discover a mine of gold, silver or other metal whatsoever, shall be bound, within 20 days after discovering or finding the ore, to register such mine before the mining justice within whose jurisdiction it shall be situate, and in the presence of a notary, producing the ore which he shall have found. And that the register shall describe the person who has made the discovery and registry, and also the place where the mine is situate, and where the ore produced was found. And that the person making such registry shall, within sixty days

* Ordinance 2, of the viceroy Don Francisco de Toledo, in Escalona, lib. 2, cap. 1. page 105.

† Larrea, dec. 44, n. 21. “Quasi publicæ utilitati quæ in metallorum indagatione consistit, maxime expediat a pluribus metalla perquiri et effodi.” L. 1, Cod. de metallariis

Corradini, de jar. prælat. q. 67 per totam.

from the making thereof, be bound to send, and shall send an authenticated copy of such registry, to our administrator-general, if there be one in the district, and if not, then to the administrator of the department, within which the mine may be situate, in order that the interest which each person may have in such mines, may be noted and entered in the book of registry, and so that all the mines which shall be discovered, may be known, and an account thereof taken. And that in case such registry be not made in the manner and within the time aforesaid, any person may register such mine, and shall thereby have and acquire the right which such discoverer or other person, who might have required the registry, would have had, if he had caused the registry to be made as aforesaid.

XVIII. Also, forasmuch as many new and old mines which have been discovered and registered previous to the time of issuing these our ordinances are occupied, but are kept at a stand and unworked, and there is no complete information as to these mines, the registries of which have been made in an irregular manner :-We ordain and command, that all persons who, previous to the issuing of these our ordinances, shall have explored and reg. istered old or newly-discovered nines, shall be bound to renew and make such registry again, within the term of two months, according to, and in the manner prescribed by the last ordinance, with respect to such as may hereafter be discovered. And that they shall be bound, within the further period of 60 days, to send, and they shall send such registries to our administrator. general aforesaid, if there be one within the district, and if not, then to the administrator-general of the department within which the mine shall be situate; and that if they shall fail to do this, and to procure an authenticated copy of such registry, they shall be deemed to have forfeited, and shall forfeit the right they may have acquired or may claim, to such mine, and that any person who shall take the proper steps, agreeably to this our edict, shall have the mine.

XIX. Also, we ordain and command, that the mining administrators of each district shall keep a book, in which shall be entered all the registries made in such district, concerning all the mines already discovered, or which may be discovered, taken, sold, or dealt with in any other manner, and such administrators shall send to the office of our principal accountant, each for his own district, a report of the state of the mines of these our kingdoms, and of what shall have been done concerning them, signed with his own name ; and that after having sent the first report, they shall send, every six months, a like report of all that may have taken place, or been done in respect of the same.

LXIX. Also, we ordain and command, that all persons who shall seek for, find and take, mines or streamworks of gold, as well the first discoverers as others, shall, in regard to the taking possession of, registering and staking out the boundaries of such mines, observe the provisions of such of these or

dinances as relate to the taking possession of, registering and staking out the boundaries of silver mines, and under the same penalties as are therein imposed ; and that they shall be bound, in conformity with the last-mentioned ordinances, and under the like penalties, to transmit the registries to our administrator-general, or to the administrater of the department, and that the last-mentioned officers shall keep books of registry, for the mines of gold, in like manner as is provided in regard to those of silver.

CONTENTS OF THE COMMENTARY ON THESE ORDINANCES. 1. Of the necessity of registering the mines, and the time prescribed for that purpose. 2. What registry is. 3. It is the basis of the title to the property of the mine. 4. Arguments showing the advantage and necessity of such a proceeding. 5. One object amongst others, is to furnish the respective governments with information

concerning the mines. 6. Of the book of registry, its object and advantages. It is to be kept by the administra

tor of the department. 7 and 8. There being no such officers in the Indies, these books are to be kept by the go

vernors and chief alcaldes, to prevent mistakes or false entries. A notice of a very

strict order to this effect, issued by the Marquess de Casa Fuerte, in the year 1727. 9 and 10. There must be a new registry for every change of owner, and the like upon an

alteration of the boundaries. 11. In Peru there is a mining notary in each province. 12. The hour of making the registry must be entered, and why? 13. Several questions on the subject of registry proposed and answered. 14. The registry is not to be made before the officers of the crown. 15. Practice of the government in the case of new discoveries. Of the authority of the

viceroys, and of the right of the presidents and governors to arrange matters concern

ing the government of the mines. 16 and 17. Delay in making registry is corrected, provided no other person shall have

made registry in the mean time. 13. Of the facility with which the registry may be made, and which renders its omission

inexcusable. 19. In Peru, the discoverer of a mine, not making registry within the time prescribed by

the ordinance, loses the privilege of a discoverer. 20. Two exceptions to this rule, one when it is found impossible to do so, and the other

in cases where the Indians are concerned, their ignorance being a sufficient excuse. 21 to 25. Registry and denouncement are substantially the same, although differing in

form; which is proved by several arguments, and by inference from several of the ordinances.


1. The three first of these ordinances agree with the 16th, 17th and 18th of the old ordinances,* with the 4th chapter of the edict of the year 1559,+

* Law 5, tit. 13, book 6, Collection of Castile, cap. 16, 17 and 18. + Law 4, cap. 4, eod.

« ForrigeFortsett »