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These laws are included in lib. 4, title 19, on the discovery and working of mines, tit. 20, concerning miners, workers in quicksilver, and their privileges, and tit. 21, in relation to the Alcaldes Mayores and notaries of mines. The translations are made from the third' edition, published at Madrid in the year 1774.
In the year 1783, however, a new and very important code of laws was framed for the purpose of simplifying and rendering more uniform the legislation of the mines under the title of “ Reales Ordinanzes para la direccion régimen y 'gobierno del importante cuerpo de la Mineria de Nueva-Espana y de su Real Tribunal General.”
This code was framed in the reign of Charles III., and during the ministry of Joseph de Galvez.
This work was translated by Charles Thompson, Esq., of Lincoln's Inn, Barrister at Law, and published at London in 1825. The compiler has availed himself of this translation of this most valuable work, with the few corrections which were deemed proper, after a careful comparison of it with the original.
In a recent work of great value and authority, in six volumes, publish: ed at Madrid in 1844, entitled “ Biblioteca de Legislacion Ultramarina en forma de Diccionario Alfabético,” by don José Maria Zamora y Coronado, the learned author, under the head of Mines, copies this work almost entire, and introduces it with the following statement :-“ This work was so perfect, and prepared with so much wisdom, that its regulations continue without substantial alteration. Since there is nothing impairing its authority, at least in the judicial portion of it, although there has been published the royal instructions concerning mines, issued for the Peninsula, on the 18th December, 1825 ; it is thought that a service will be rendered to the public by the insertion of the essential chapters, and subsequently of the instructions of 1825.”
The decrees of the Cortes of Spain, and of the Ferdinand VII., during the short time in which he may be considered as having the authority of a sovereign, have also been carefully examined, from the year 1810 to 1822, and a translation has been made of the few laws that were applicable alike to Mexico and California, and so far as they relate to the subject of the present volume, they have been inserted in it.
In the year 1829, there was published in Mexico a collection of the decrees and orders of the Cortes of Spain, which were considered to be in force in tha Republic. The following is an extract from the preface of that book. It should also be added, that by official acts the Mexican government have re
cognised as valid the decrees of the Cortes, not inconsistent with the constitution and laws of the Mexican Republic.
“ The independence of Mexico having been happily realized by the occupation of its Capital on the 27th of September, 1821 and the destruction of the vice-royal government, although the obligation of dependence on Spain is forever broken, these laws which regulate the obligations and rights of those who compose the new community, cannot and ought not to lose their force. Since it is only in the course of time and by competent authority, that their place can be supplied, the sudden abolition of all former laws would have been equivalent to the introduction of absolute anarchy at a season when the preservation of order was most necessary. Therefore it is that with the exception of such laws as conflicted directly with the memorable plan of Iguala and the new order of things to which it gave rise, all other laws which had emanated from the kings of Spain and the sovereign authority which, until that day had been recognized, are acknowledged and respected : suits at law have been decided under them, justice was administered in conformity to them, and the social life of the Mexican people had become adapted to them. Hence it resulted that the Spanish codes so far as others entirely national, have not been substituted, are constantly consulted by the judges, professors of law and even ordinary citizens, as furnishing the standard of action, the guaranty of their reciprocal rights and the rules of their proceeding.
One of the most celebrated of these codes is the collection of the orders and decrees issued by the Spanish Cortes, in the years 1812, 13, 14, 20 and 21, in which last year our independence was established. This collection, extending to ten volumes, has become amongst us rare as it is costly : and when obtained, the inconvenience exists of finding scattered in the first seven volumes (being those which contain the decrees passed when Mexico was dependent on the legislators of Madrid) those laws which are regarded as in force in the republic from having been so held, or because they related to this country, or from not having been repealed.”
The compiler has also, carefully, examined, page by page, the laws and decrees of Mexico, as contained in the printed volumes, from the year 1821 to 1839, and in the same manner, the files of the official newspapers of the City of Mexico, in the Department of State, to the year 1847, inclusive with the view of obtaining a complete collection of the Mexican law ap. plicable to California. A translation of those which relate to the subject of this volume, will be found in their appropriate place.
It will thus be seen that if the design of this work is carried out by the publication of the subsequent volumes, there will be presented, unabridged and entire, in relation to those branches of the law affecting the title to land, the entire chapters and titles in the Recopilacion of the Indies and the Novisima Recopilacion ; also all the laws and decrees of the Cortes of Spain, and of Mexico that were in force in California, at the time of the cession to the United States ;-presenting thus the entire Spanish and Mexican legislation without any interruption. To this will be added a summary of the decisions of the federal courts, in relation to Spanish titles, under the treaties of Louisana and Florida, and arising out of the annexation of Texas ; and all public documents proceeding from Congress or the departments of the government.
In the present volume, confined principally to the laws in relation to mines of precious metals, in addition to the materials furnished from the sources above mentioned, and the translation of the entire work on the Mining Ordinances of New Spain, there will be added the valuable commentary of Gamboa, so far as it is a commentary on the law, and omitting only the lengthened examination into the machinery to be used and other matters, interesting to the engineer and the workers of the mines, but having no relation to the law on the subject.
With regard to the character of this work, as it will deservedly occupy a large part of the volume, we give very nearly entire the preface of Mr. Heathfield, to his translation of it ; also an extract form the decree of the king authorising its publication.
This is a treatise on the laws by which Spain and her several colonies were governed, in their mining affairs, at the period of its publication, and up to the year 1783. These laws were principally contained in certain regulations applying immediately and exclusively to the snbject of mining, and consisting :
First,-Of a code of mining laws promulgated in the year 1584, commonly called the New Code, in contradistinction to other ordinances of anterior date, usually referred to as the Old ordinances. When the ordinances of the New Code were promulgated, the mines of America had not acquired much celebrity, and it was for the government of those of Spain alone, that these ordinances were framed. But it was afterwards directed, by a law of the Indies, that the ordinances of the New Code should be observed in those countries, when not at variance with the municipal law3 of each province. These ordinances form the text of the work of Gamboa.
Second,—Of Old ordinances, promulgated at different times previous to
the year 1584, and remaining partially in force after that period; being repealed by the New Code, so far only as at variance with the regulations thereby introduced.
Third,—Of royal orders, of different denominations, either general or issued for particular kingdoms or provinces only.
Fourth,—Of colonial or provincial regulations, of force in the particular kingdoms or provinces only by the respective governments of which they had been issued.
Besides these, the general law of Spain the laws of the collection of the Indies, applying generally to all those countries, and the local laws of each kingdom or province of the Indies, occasionally required to be referred to, to supply deficiencies in, or assist the construction of, the laws more immediately regulating mining.
Such was the state of the law of mining in Spain and her colonies, in the year 1761, when Señor GAMBOA published his Commentary. The plan of this work may be thus explained. The ordinances of the New Code, which form the text, are classed according to their subject, in distinct chapters ; those contained in each chapter being separately considered. In the commentary, the author commonly gives a succinct historical account of the law, upon the points which form the subject of the chapter, from the earliest times to the year 1584; and after shewing how it stood previous to that date, proceeds to investigate how far the old regulations had been annulled by the new code, and how far they still remained in force, not being at variance with the provisions of that code. He next shows what alterations, if any, had been made by royal orders or provisional regulations since the year 1584 touching upon those of Peru, and other kingdoms or provinces, but referring more minutely and particularly, to those of the kingdoms and provinces now constituting the republic of Mexico. Having thus, brought into view the regulations more particularly relating to the points under consideration, the author proceeds to illustrate them by comparison with the general rules of the civ. il law, the law of Spain, and the laws of the Collection of the Indies, and by referring to important cases decided in the courts, within his own experience, clearing up many doubtful points, pointing out deficiencies or redundancies, suggesting important improvements, and, in fine, completely exhausting the subject in a legal point of view. He also gives, besides his exposition of the law, an account of the various methods of assaying and reducing the ores of gold and silver, and of the rules and practice of mine surveying; a variety
of particulars relating to the consumption of quicksilver in New Spain; a detailed plan of a mine-supplying company, and many valuable reflections on the working and supplying of mines by companies; a minute account of the regulations of the royal mint of Mexico ; a glossary of mining terms, and a list of the principal mining districts of New Spain, with their distances from the capital, and other particulars : interspersing, throughout the work, a variety of incidental information, and many judicious remarks, drawn from his own experience.
The object and plan of the work, which are detailed more at length by the author, in his preface, being thus explained, it is necessary to show what authority it possesses, at the present time, as a legal treatise.
From the year 1761 to 1783, no material alteration took place in the mining laws of Spain and her colonies. In the latter year however, a code of laws was issued, under the title of Mining Ordinances of New Spain. It was framed, as the title imports, for New Spain alone, but was subsequently adopted in all or most of the other Spanish colonies. In the regulations which concern the working of the mines, this code very closely follows the former ordinances; and where 'alterations are made, they are, not unfre. quently, adopted from the suggestions offered in the work of Gamboa. As to other points, the most important changes introduced by the ordinances of 1783, were, the erection of the Tribunal general de Mineria, and the Diputaciones de Mineria, or general and local tribunals, to which the exclusive jurisdiction in mining affairs was confided ;—the establishment of a bank of supplies ;—and the organization of a school of mines. But this code left the former ordinances and other mining laws in force, so far as they should not be at variance with the regulations it established, and hence the work of Señor GAMBOA, which was, previous to the year 1783, the paramount authority in all doubtful cases in mining affairs, continued, after that date, to be regarded with the highest respect, and was and is still, constantly refer red to in the courts of Mexico, and as is presumed, of the other new republic of America also, as a great authority on such subjects.
Upon the establishment of the independence of the Spanish colonies, they all or most of them adopted, in reference to mining, the laws existing previous to their separation from the mother country, with such modifications only, as were rendered necessary by the alteration from a monarchical to a repub. lican and federal form of government. In Mexico, the principal of these alterations, consisted as follows:
First, in the abolition of the general tribunal of mining, the functions of