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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.f 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, 5 because all acts which do not require personal attendance, 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.
* 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,
I 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.
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 shewn, 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 registry 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 forcet 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 imped. iments 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 denounce. ment and registry ?f 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 insufficiently worked for more than four months, or for certain other reasons,* are ordered to be adjudged to the first person who shall apply for them. In making registry, the person, the place and the ore, cnly, are required to be manifested ; but upon the denouncement of a mine for not being sufficiently worked, a summary judgment upon the question is requisite, and it is sometimes necessary to proceed to edicts or proclamations. They appear therefore to be distinct in form.
* 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, 4. fin. ff. de jur. fisc. Ord. 88, and 39, chap. 18.
22. But they by no means differ in substance. First, because the object of both is to make a public mention of the mine, and to define its situation, for the purpose of obtaining a title to it. Second, because denouncement alone, gives no title to the property of the mine, but is merely in the nature of an accusation against the former owner, charging him with having allowed it to remain unworked, or with having come within some other ground of forfeiture ; after a summary cognizance of which, the mine should be entered in the register, together with the adjudication of the magistrate, and this more clearly appears from the 37th ordinance, which says, in reference to mines remaining unworked, “ In such case he shall have forfeited, and shall forfeit the same, and thenceforth he shall have no right to it, unless upon making a registry thereof anew ; and such mine shall be adjudged to any person who shall denounce it for being insufficiently worked, provided he go through the same proceedings,” that is to say, provided he register it. Hence it is evident, that with respect to an old mine, which has been discovered before, there must be a new registry after denouncement.
23. Third, the 27th ordinance, when describing the mode in which the pits of two varas deep and one wide are to be made, for the purpose of having a stake placed in the middle of them, so that it shall not be liable to be fraud. ulently displaced, imposes the forfeiture of the mine as a penalty for not do. ing so, and declares, “ that any other person whatsoever may apply for it and register it as his own.” Fourth, it is provided, by the 17th ordinance, now under consideration, that if the registry be not made in the manner and within the time prescribed, and the other formalities be not observed, any other person whatsoever “ may register such mine," which must be supposed to have been discovered before. Fifth, it is declared in the 35th ordinance, that all those who may “take, hold or acquire mines, whether already discovered or hereafter to be discovered, shall be bound, from the time of their registering such mines, if new ones, to deepen one of the trial pits they may have made in them, and if old ones, then one of the pits, &c.” so that the word registry is applied alike to both new and old mines. Sixth, the 42d ordinance prohibits the sale of miues, until they are sunk three estados, and directs that the justice shall be advised of the sale, in order that it may be entered in the book of registry, and the like whenever there is a change in the ownership of the mincs.
* See the ordinances. The 17th and 69th impose this penalty in case of the proper forms not being observed in the registry; the 21st, for not declaring the names of a partner or partners ; the 27th, for not setting up permanent and fixed stakes; the 32d, for taking a mine by the intervention of a third person, who has no authority for the purpose, not being a hired servant; the 35th, for not having sunk three estados after registry or denouncement; the 37th and 71st, for keeping the mine unworked for a longer period than four months; the 38th and 391h, for not sinking three estados after denouncement; the 43d, for purchasing a mine which is not sunk to the depth of three estados, in which case the mine and its value are declared forfuited: the 59th,. for not giving information whether the ore is proper to be reduced by amalgamation, or otherwise ; the 67th, on account of certain persons being prohibited froin holdivg mines ; and the 38th, for the same reason. And the chief alcaldes, royal officers, mining notaries, judges, gorernors, ministers and others, who are not permitted to purchase mines, are liable to forfeit them ander law 1, tit. 19, book 4, and laws 1, 2 and 3, tit. 20, book 4, of the Collection of the Indies. * Albertus Burerus, Thesaur. ling. Latin. tom. 3, lit. R. Regerere; in librum referre quæ audiendo accepimus. Regestom Latine dici potest quod vulgo registrum vocamus teste Budeo, de rhetor. Ciceronis. Quintil. lib. 3. cap. 8. Sunt enim velut res regestæ in hos commentarios. Solorzan. Polit. lib. 6, cap. 10, n. 6. L. illicitas, $. veritas, ff. de off. præsid. Vopiscus, Prudentius et alii apud Petrum Fabrum, in. L. si librarius, 92, ff. der. j. Cujacius, lib. 15, Observ. cap. 17, &c. Dufresne, Glossarium ad scriptores mediae, et infimæ latinitatis, tom. 5, lit. R. verbo Regestum ; liber in quem regeruntur commentarii quivis. Regesto scribarum, apud Vopiscum in Probo. Regesta, quasi iterum gesta; Registrum pro registum : liber qui rerum gestarum inemoriam continet, unde dicitur quasi rei gestæ statio. L. 8, tit. 19, part 3. The registraries are the other notaries aforesaid, who are employed in the king's palace, and whose office is to make entries in the books which are called registers.
24. Independent of these considerations, our position may be sufficiently made out, by reference to the etymology of the word registry, which in the Latin tongue, is commonly called registrum, but more properly registum ; which is as much as to say res gesta, and signifies any judicial order or proceeding, affording certain evidence and testimony of some judicial act; as may be seen in the Thesaurus of the Latin tongue, and in Quintilian, and as is also shewn by Solorzano, when treating of the registry of merchandise, upon the authority of Vopiscus, Prudentius, Petrus Faber, Cujacius and others; and the like explanation is also given by Dufresne." And there can be no doubt but that the justice and notary give as certain evidence and testimony of the proceedings concerning new mines, as of those concerning denounced mines, for they are all entered in the same register.
25. The above is sufficient to prove, that there is no substantial differenco between denouncement and registry ; and that if a mine be denounced upon any of the grounds enumerated in the ordinances, it must be registered in the same manner as a mine newly discovered upon the surface of the earth; and that the proceedings had, whether in regard to the new or old mines, must alike be made to appear upon the record, which is called a register, for the security of the discoverer and denouncer respectively. And if the judge or miner be well advised of these sound principles, deduced from the ordinances themselves, several irrelevant grounds of dispute may be avoided, as we shall notice by and by, when treating of priority of registry, one mine being entitled to be measured out before another, or otherwise, according to the greater or less time elapsed since making the registry."
✓ A MINE, NOT THE PROPERTY OF THE PARTY, CANNOT BE REGISTERED
ORDINANCE XX. Also, we ordain and command, that no person shall presume to register, or to enter in the register, a mine which is not his own property, under the penalty of 1000 ducats, to be imposed upon the person so offending; one half to be applied to the purposes of our exchequer, and the other half to be divided between the informer, and the judge who shall pass sentence ; and over and above this, such person as aforesaid, shall forfeit the right he may have acquired to such mine.
CONTENTS OF THE COMMENTARY ON THIS ORDINANCE. 1. A difficulty occurs in the construction of this ordinance. 2 and 3. The meaning is, that a creditor, holding a mine by way of pledge, cannot regis
ter it as his own ; that no person can register a mine during the term of four months, in which it is allowed by law to remain insufficiently worked, and that a tutor or cu
rator cannot register in his own name, a mine not belonging to him in his own right. 4. The question put, whether the real owner can enter the registry in a feigned name. 5. First argument in favour of the affirmative, that the substitution of a feigned name is
sanctioned by law. 6. Second, that the same thing is done in many other transactions. 7. Third, that the reason of the ordinance does not hold in this case. 8. And that a penal regulation is not to be extended by construction, from one particular
case to another distinct from it. 9 to 13. The question resolved in the negative, on the ground that such substitution of a
feigned name, is contrary to several of the ordinances, to public order and to the reg
ular form of mine proceedings. 14 and 15. Reply to the arguments on the other side.
1. This ordinance is in accordance with the 19th of the old ordinances, except that the latter imposes a penalty of 200 ducats, upon any person who shall register a mine not his own, which penalty the new ordinances increaso to 1000 ducats ; besides declaring that he shall forfeit the right he may have acquired to such mine. The construction of this ordinance appears to be attended with considerable difficulty, particularly if we refer to the marginal
* Infra, cap. 11.
Cap. 19, law 6, tit. 13, book 6, Collection of Castile.