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 means. 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,† "of 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.‡

11. In reference to this subject, the laws of the Indies and the ordinances of Perus 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. T And the like reason applies in the case of bankruptcy, and in other cases

*Infr. chap. 16, ordinance 42.

Chap. 13, ord. 29.

† Ubi sup. n. 7, proxime antecedenti.

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.

T 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. 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 quæ momento temporis perficiuntur momentum sufficit, ut operentur; et ideo ad prælationem sufficit prioritas in puncto temporis," &c. Olea, de cess. jur. tit 8, 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.

the justices, and (by way of appeal) of the royal ordiencies, as we shall shew more particularly in the proper place."

16. The second question which arises upon these ordinances is, whether the discoverer can make the registry after the expiration of the 20 days assigned for that purpose? In regard to which, it is necessary to bear in mind the following distinction. If, after the expiration of that period, no person should register the mine, the discoverer may register it; for it is a common rule, that whilst circumstances remain unaltered, delay may be corrected, and even penalties avoided, as is shewn by Tapato and Pichardo, upon the authority of Osacius, Bellamera, Eneo Roberto, Acursius, Bartholo and others. And the 17th ordinance merely ordains, "that if the discoverer do not observe the proper form and time, any other person shall be at liberty to register the mine, and shall thereby have and acquire the rights which the discoverer would have had, if he had made the registry in due form;" but it does not deprive the discoverer of the right of registering, if no other person have registered the mine.

17. If, after the expiration of the term of 20 days, some other person should come forward and register the mine, the discoverer loses his right, this being the penalty he is liable to pay for his culpable default, in neglecting the register his mine, and thus frustrating the ends of the ordinances. For a mine which is worked without being registered, is not properly to be called a mine, and does not merit the name, even though it should yield good ore. The ordinances give the name of mines to such only as are registered, because the registry is the basis of the title to every mine, and because the omitting to make registry, evidences a vicious intention to dispose of the ore or silver clandestinely, in fraud of the right of the crown, and to put impediments in the way of other individuals, who might wish to take mines upon the same vein or at the same spot.

18. Nor ought any pretence of being impeded by illness, distance or the like, to be admitted by way of excuse; for such impediments as these may always be overcome by diligence. And as servants are employed to raise the silver, so a servant may be sent with the ore, being furnished with an authority; or if no notary is to be found, then, without such authority, and with a written note merely, or even without that, if the owner should happen not to be able to write. For, as neither the ordinances nor the laws of the Indies require, as a necessary circumstance, that the owner should appear in person for this purpose, it follows that a servant may make registry in the name of his master, because all acts which do not require personal attend

*Chap. 25, infra, per tot.

†Tepat. Variar. juris sententiarum, lib. 1. Ubi de moræ remissione, et purgatione, page 208, et seq. Pichardo, in Manuduct. ad Praxim, disp. de mora, a. n. 93, et n. 148.

Chap. 15, ord. 32. "Unless under a power, or by a servant receiving wages from the person for whom he shall take the mine." Law 5, tit. 19, book 4, of the Collection of the Indies.

ance, may be performed by a deputy, under the authority of a power or letter or by some person appearing and giving security in the name of the owner of the mine, more particularly in a matter which is for his benefit.

19. This is in part confirmed by the 4th and 5th ordinance of Peru,* according to which, if the 30 days elapse without any registry being made, and no good cause of delay be shown, the rights of the discoverer are lost. And to prevent disabilities arising from infancy, old age, infirmities or the like, being alleged as legitimate causes of delay, it is provided, that the reg istry may be made by virtue of an authority or letter directed to the nearest judge, who is to take a note of it, as a minute of the registry, until it can be formally ratified, which it must be within 40 days after.

20. There are however, two cases of exception :-First, supposing some person should apply to make registry, in opposition to the right of the discovery, when it happens that the latter is prevented by hostile forcef from coming to the spot, the situation of the mine being at the same time very remote. And second, when the parties are Indians, in which case allowan ces are made for the natural ignorance of these people. The second ground of exception is noticed by the ordinances of Peru, which direct that the Indians shall not be limited to the term of 30 days, allowed to the discoverer in that kingdom for registering his mine, but that if they do not make registry within three months, then, even although the mine should be in actual work, it shall be open to any other person to acquire to himself, by registry, the rights of a discoverer. The ground of the first exception is this, that impediments of the description to which it applies, cannot be overcome, except at the risk of life; but in case of non-observance of any positive rule, a fair and equitable inquiry should be made, whether the omission was a culpable one, or whether impediments existed which could not be got over; and it should also be noticed, that there is a degree of malice and covetousness in applying to register a mine to which another party, who had been embarrassed by insuperable obstacles, has a claim. If however no impediment of this nature exist, or be made out, the general rule of the ordinance will operate with full force.

21. The third question is, what constitutes the difference between denouncement and registry?§ The reply to this question is, that there is substantially no difference between them, although there is a difference in form. There is in form, because registry generally applies to newly-discovered mines; and denouncement, to mines which have been discovered before, but which, having been forfeited under the ordinances, as a penalty for being kept

Escalona, Gazoph. lib. 2, p. 2, cap. 1, page 105.

† Cap. 3, ext. de præscript. et ibi DD.

Ord. 16, apud Escalon. ubi sup. p. 108, tit. 1.

§ What the miners call denouncement, is the same as that which the law and ordinances denominate denunciation. L. 3, §. fin. ff. de jur. fisc. Ord. 38, and 39, chap. 18.