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and with the ordinances of Peru,* in this respect, that all these laws direct that newly-discovered mines of silver shall be registered. The like provision is made with regard to gold, by the 69th ordinance. The ordinances of Peru, however, allow 30 days for making the registry; but in New Spain, the law of Castile is followed, which fixes 20 days.
2. Registry is nothing more than a public description of the person who has found the mine, and the place where it is situate, and an exhibition of the ore, to be made before a justice and notary. The practice in the mining districts of New Spain is, to present a written document stating the particulars above mentioned, and the signs by which the mine may be known, setting forth the mines and stakes of other proprietors contiguous to it, and mentioning the name by which it is to be distinguished. All the trial pits, whether large or small, pits, trenches and other works within the boundaries, are to be likewise registered. The justice then declares the mine to be registered, and gives permission to work it; after which the miner must sink it to the depth of three estados ; † subsequently also, he prays to have possession given to him, and the boundaries assigned.
3. The registry is the basis of the title to the mine, and the attributive cause of the subject's right of property in it; the crown having subjected the proprietor to this obligation when he made the mines common. I And no mine can be lawfully worked, until registry is made, without which it is liable to be registered by any other person, the form of the ordinance not having been complied with.
4. The reasonableness of this regulation is evident. First, because the mines are not allowed to be worked without permission from the crown, or from the justice in the king's name ;9 which permission is granted at the time of making the registry. Second, because, as the revenue is interested in a share of the produce, it is incumbent on the discoverer to give information of his discovery, and by the civil law, concerning treasures, if he suppressed the discovery, he was liable to forfeit the whole of the treasure found, and double the value : // and therefore, the discoverer, if he would rreserve his right, should give notice of the discovery of the mine, and make himself known. Third, because, by another of the ordinances, no one can register another person's mine, or a mine which any other person has discovered and registered ; and therefore the person who has discovered the mine, ought to declare himself. Fourth, because, as is provided by another of the ordinances, no mine is allowed to be worked, unless both a vein and metallic ore be actually present,** on which account the ore must be produced, and an oath must be taken, as provided by the ordinance of Peru, cited above, that it was found at the place described, in order that it may appear that the pit, which is proposed to be opened and worked, is not so proposed under a false or malicious pretence. Fifth, because, as all the mines, whether those taken by the first discoverer, or ordinary mines, must have some determinate* limits and boundaries assigned to them, their sight to be made known and pointed out for that purpose. Sixth, because, as a preference is given in measuring out the boundaries of the mines, according to the longer or shorter time which has elapsed since making the registry, f it is requisite that it should be made in due form, and consequently, if no registry be made, the title is defective. Seventh, because it frequently happens, where a communication is made between the workings of two mines, that it is alleged that one or the other of them was commenced upon dead ground, not containing a vein or ore. And although, under certain circumstances, which will be noticed in their proper place, the registry is not conclusive evidence to the contrary, yet it may be of much assistance in establishing that the mine was properly commenced, if, as is generally the case, no clearer proofs of malice or fraud be adduced.
* Ordinance 4. Escalona, Gazophil. lib. ii, p. 2, cap. 1, pag. 105. † See chap. 16. ord. 35 and 36. 1 Law 1, tit. 19, book 4, Collection of the Indies. Gutierr. Pract. q. 37. n. 63. | L. 3. $. fin. ff. de jur. fisci. Law, I, tit. 13, book 6, Collection of Castile. I See chap, 6, ordinance 20.
** Chap. 14, ordinance 30.
5. Besides the above-mentioned, another important object is attained by means of the registry, namely, that of having an account of all the mines which exist, or which may be discovered, as the ordinances express it ; by which means, not only the rights of individuals in relation to the mines, are assured, and this important class of property preserved in a regular course of succession ; but the withholding of the tenths or fifths payable on the silver which may be raised from them is prevented, and the government is furnished with authentic information concerning the mines, and is enabled to make proper arrangements in relation to their economy and government. With this view therefore, it is ordered, not only that the mine owners shall transmit their registries to the administrator-general, but that the mining administrator of each district shall keep a book, in which he is to enter all registries which may be made of mines already discovered, or to be discovered, taken, sold or dealt with in any other manner within his district ; and that he shall send a report to the office of the principal accountant every six months.
6. Properly speaking, the register is the book in which deeds and grants are entered, for the perpetual remembrance thereof; so that if they be lost, torn or defaced, or if any question be raised as to their identity or authority, recourse may be had to the book of registry, as appears from the law of the Partida, & agreeable to which all gifts and grants are registered in the public
* Chap. 10, ordinance 23.
† Chap. 11, ordinance 25. . Law 8, tit. 19, part 3. “And we declare that the register is, in other words, a book to preserve the remembrance of the deeds and grants which may be made. And it is of much use for if the grant or deed be lost or torn, or if the writing be effaced, by age or by any other means
archives ; and in cities and corporations, registry is made of the rents reserved upon houses and inheritances, and of all hypothecations of such property, in order to guard against the inconvenience which follows from the evidences of such transactions being wholly in the power of individuals, who may falsify, alter or lose them, to the prejudice of the public and of private interests.
7. But inasmuch as there are not any general or particular administrators in the Indies, although there are governors, mayors and chief alcaldes in the mining districts, and likewise mining and registering notaries, the provisions of these ordinances ought in this, as in all other respects, to be maintained and observed in that kingdom, agreeably to the rules of its municipal laws, as stated by us above.* For it is a great object to guard against the serious consequences which might otherwise ensue, from the importance of the interests which are involved in mining ; the litigation being principally concerning mines yielding rich produce. And these considerations induced the viceroy, Marquess Casa Fuerte, to issue an order, dated at Mexico, the 28th of June, 1727, countersigned by Don Antonio de Aviles, commanding the royal officers and justices to send, as speedily as possible, an account of the mines within their several districts, whether at work or abandoned, and what meang. there might be of supplying them; and in case they should have no book of registry for the mines which might have been registered in all the departments of each district, then to form one with all possible dispatch, that an account might thus be obtained of all the mines in the kingdom, from which a general book might be made up, shewing all the mines which have been discovered, those which were then at work, and those which had been abandoned ; and that the causes of their abandonment being ascertained, the proper arrangements might be made ; such general book to be under the eye of the viceroy. But we are not aware that this order, so agreeable to the spirit of the ordinances now under consideration, and so important to the interests of the revenue, in a public, and of the subject, in a private point of view, was ever carried into effect. It would certainly be very desirable to compel the royal officers and chief mining alcaldes to observe it.
8. The original grants then, ought not to be given into the custody of the owners, until the registry be made in the proper book, under the direction of the mining notary of the department; for otherwise, these important instruments will be exposed to the contingencies alluded to above, and very serious difficulties may arise in subsequent dealings, in ascertaining whether the reg.
or if any question should be raised concerning it, from its being erased or upon any other ground, the loss may be repaired, or the old deed renewed, by reference to the register. And moreover, any question raised concerning deeds, of which suspicions are entertained, may be put at rest, &c.” Law 3, tit. 3, book 5, and law 12, and the whole of tit. 15, book 2, of the Collection of Castile.
* Law 3, tit. 1, book 2, Collection of the Indies, and the whole of tit. 21, book 4, of the same.
istry or denouncement was made with due solemnity, the time and manner of making it, the greater or less antiquity of the mine, or the clearness with which the title of the owner is deduced; all which are avoided, if the registry or denouncement, the sales, contracts and other documents of title, under which the new possessor proceeds to work the mine, and to enrol himself in the list of miners, are made to appear in the book or archive.
9. This is repeated in plainer terms in another ordinance,* which prohibits the sale of a mine, unless it be sunk to the depth of three estados ; directing also, that the purchaser shall give notice of the sale, in order that it may be entered in the register book, under pain of forfeiting the mine and its value ; “ And the like if there be a change in the ownership of the mine, under any other title.” By title, is to be understood a contract of any description, whether onerous or lucrative, or succession by testament or otherwise, in all which cases it is necessary that the registry should be made, “ both for the sake,” as is stated in the ordinance above-cited, † “ cf making it appear upon whom the share is to be levied,” that is to say, from whom the royal duties are to be demanded; and also to guard against all the inconveniences which flow from the want of the proper formalities in the first registry, or in the subsequent deeds of transfer.
10. And not only ought the purchase deeds of mines to be entered in the register, but the alterations which the miners make in their boundaries, which we shall see, in the proper place, is provided by another ordinance. I
11. In reference to this subject, the laws of the Indies and the ordinances of Perug have provided, that there shall be a mining notary in each province, before whom all the registries shall be passed, and who shall reside at the principal mining district, and that the registries of the discoveries made in other places shall be made before his deputies, and shall be ratified before the principal within 60 days, under pain of avoiding the registry. And he shall keep all the registries in one place, and in a clear manner.
12. And, as is stated by Escalona, in the margin of the ordinance abovementioned, on the authority of a passage in Agricola, the notary ought not only to enter the particulars above-mentioned, but also the hour of making the registry. || And the reason is evident, for should any question of preference arise, in regard to the measuring or altering the boundaries, regard must be had to the priority of the registry, agreeably to the ordinance. I And the like reason applies in the case of bankruptcy, and in other cases
* Infr. chap. 16, ordinance 42.
† Ubi sup. n. 7, proxime antecelenti. 1 Chap. 13, ord. 29.
The whole of tit, 5, book 8, concerning the mining and registering notaries, and the whole of tit. 21, book 4, concerning the principal mining alcaldes, and notaries. Order 5, tit, 9, Escalona, Gazoph. lib. 2, p. 2, cap. 1, pag. 112.
|| Agricola, de re metallic. pag. 66, “Scriba fodinarum in codicem infert.” And p. 97. "Primo signat nomen ejus qui petit jus fodinæ, deinde quo die quâve horâ,” &c.
[Cap. 8, ord. 22.
where the right to preference may be contested, to confer which a priority of a single instant of time is sufficient.*
13. Having shewn what are the solemnities with which the registry ought to be made, several questions occur on certain points in these ordinances.
14. First, whether, in reference to our laws of the Indies, the registry should not also be made before the royal officers of the district ? The answer to which is, that it ought not to be, nor is it so in practice ; for, although the laws direct that the discoverers shall make oath that they will bring in to be stamped all the gold, silver or pearls, respectively, which they may find in mines, rivers or oyster banks, this has reference to the levying of the revenue, which is a distinct object from the denouncement or registry of the mines, the latter being the office of the justices of the departments alone, many of whom have the title of chief mining alcaldes. And the oath above referred to is administered, in the case of a new discovery, in order to ensure the due levying of the duties, but not upon the registry of a mine, the title to which comes under the cognizance of the justice, as has been already shewn.
15. It often happens, that the discovery of some new mining district occurs, the richness of which calls attention to it. When this is the case, the governors, each in his own province, ought to make the best arrangement they can for settling such district and supplying it with provision, and for levying his majesty's share of the produce; these being, amongst others, the purpose for which the government of the provinces has been confined to them, and concerning which the royal laws address them, both personally and in their official character. I It is very true that, from the particular circumstances of some of the mining districts, such as their position, remoteness or richness, it is often necessary to form an establishment of royal officers, with assaying and smelting houses, and a treasury ; but these arrangements are the province of the viceroy (subject to the approval of his majesty, if he should think proper to confirm them, upon consideration of the reports submitted to him); for the forming of these establishments, and the salaries and expenses to be allowed, depend, provisionally, upon the viceroys alone. So all other matters of government depend on the presidents and governors, in their respective districts, agreeable to the laws above-cited, and to royal orders issued since their promulgation. But judicial matters, such as registry, denouncement, the giving possession and so forth, are the province of
* Tot. tit. ff. et Cod. qui potior in pignor. cap. qui prior, de r. j. in 6. Salgado, in Labyr, 2 p. cap. 13, n. 6, cum pluribus ibi: “In his enim quae momento temporis perficiuntur momentum sufficit, ut operentur ; et ideo ad prælationem sufficit prioritas in puncto temporis,” &c. Olea, de cess. jur. tit , quæst. 3, n. 3. Crespi, observe. 46. † Laws 1 and 2, tit. 19, book 4, Collection of the Indies. Laws 1, 2, 9 and 10, tit. 19, Law 4, tit 20, book 4, Collection of the Indies.