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as an infinity of instances may arise, of communications happening to be made between different mines, in which cases it becomes necessary to survey and measure them internally, in order that each party may retire within his own pertenencias, it seems, that the only point suited for a centre of measurement, is the principal pit, which ought therefore to be fixed and invariable.

23. The second condition, that the boundaries to be set out by the discoverer or other person, "be," (as our ordinance expresses it)" without prejudice to any other person or persons who shall have dug and registered their mines before him on either side," is consonant to justice: the prior occupancy of these parties fairly entitling them to a preference. These words however, shew (as observed by Don Joseph Saenz) that the newly-discovered vein may be so near some other vein, previously discovered, that their mines may interfere; and hence arises the question whether every person who discovers a new vein, not at the distance of one, two or three leagues from other veins, but in the same mineral tract, shall enjoy the rights of a discover er, or whether, to entitle him to those rights, the discovery must be made beyond that distance, and in a distinct spot or mineral tract.

24. The ordinance now under consideration, and the old ordinance,† which it follows as to this point; place it beyond a doubt, that a person who discovers a new vein, although in the immediate vicinity of another vein, shall enjoy all the privileges of the ordinances. The latter of these laws certainly still holds, as to this point, unaltered, there never having been, to our knowledge, any determination of the tribunals of New Spain, or any ordinance of any of the viceroys to the contrary; nor are we aware that the case has happened, of the rights given by this ordinance having been claimed before the justices, and denied, and of the denial being confirmed by the royal audiency sitting in judgment: or in fact, that there has ever been any litigation upon the point. And therefore, however deeply the miners may have been impressed with the erroneous opinion, that two or more persons cannot enjoy the rights of discoverers in respect of veins lying near together; the adoption of this erroneous opinion can work no prejudice to those who, insisting on their rights, demand to have the more extended space allotted to them, and claim the preference to which discoverers are entitled.

25. And notwithstanding Don Joseph Saenz considers that the rule should be qualified, in case any especial determination to the contrary should be found to have been made, yet he states, at the same time, that he is not aware of any such, although, with his experience and application, he cer tainly could not have failed to discover it, had any existed. For ourselves, we have never, during twenty years' experience in the management of very important mining affairs, heard of or seen any law, order, decree or ordi

Don Joseph Saenz, Trat. de medidas de minas, cap. 8, n. 6.

Law 5, tit. 13, book 6, ord. 22.

Saenz, loc. ubi proxim.

nance in opposition to that to which we allude, nor have we ever been advised of or met with any precedent to the contrary; whence it follows that it must still be in force. And it would certainly be a great incitement to the discovery of new veins, to put this rule in practice, whenever the case might occur, to which there could be no objection, as the giving a greater number of varas is a trifling object, when compared with the benefits resulting from the discovery.

26. We have seen but one of the ordinances of Peru referring to this point, and that we have set forth when illustrating some of the preceding ordinances. It provides, " that whoever shall discover a vein more than one league from any place where there is a mining settlement," shall, as to such vein, "enjoy the rights of a discoverer;" whence it would follow, that within a less distance than one league, he shall not enjoy such rights. But as this is a municipal ordinance, framed for Peru alone, it does not affect those of Castile, which are to be observed in New Spain; besides, this ordinance of Peru proceeds to declare, that every person who shall discover new veins, shall have a mine of 60 varas upon each of them, until he has six mines, although not a discoverer of a new mineral tract; which liberty of holding six mines is a privilege, as compared with the rights of an ordinary miner; for by a preceding ordinance no person can hold more than three silver mines, although on different veins, and whether purchased or obtained by registry; and if any person should take a greater number, any other person is at liberty to apply for the excess.

27. We stated, at the outset, that this ordinance has altered the 22d of the old ordinances, by allowing the miners a greater number of varas; but it is to be observed, that the latter directs that a mine shall be set out for the crown, next to the discoverer's mine, and of the same dimensions ;§ and as our ordinance does not notice this, and ordains nothing to the contrary, it seems that the old ordinance is not altered in this respect. This rule of allotting a mine to the crown, prevails in Peru ; and Agricola states, that in Germany, it was the practice to set out six double mines, after the discoverer had taken his; one for the king or prince, another for the queen, another for the master of the horse, another for the gentleman or cupbearer, another for the chamberlain, and another for the warden of the mines. T

28. Don Joseph Saenz says, that our ordinance has altered the old or dinance as to this point; and that had it not intended to do so, it would not have passed over a matter of so much importance, and so directly affecting * Escalona, ubi sup. tit. 1, concerning discoverers; ordin. 14.

+ Vid. sup. cap. 8, n. 7, in marg.

Ord, 13, loc. ubi sup. apud Escalonam,

§ Ord. 22, law 5, tit. 13, book 6, Collection of Castile.

Ordin. 18, tit. 1, concerning discoverers; Escalona, Gazoph. lib. 2, part. 2, cap. 1, pag. 108. Agricol. de re metall. lib. 4, pag. 57. "Deinde magister metallicorum debatvenæ inventori demensum. Postea unum demensum regi, vel principi, alterum ejus uxori, tertium magistro quitum, quartum pincernæ, quintum cubiculario, sextum sibi ipsi."

Without

the interests of the crown, as we have noticed in another place. admitting however, that any such alteration is distinctly to be collected, we agree that the custom of New Spain has proceeded upon this hypothesis, for it is not the practice, in that country, to set out a mine for the crown. And such mines, even if set out, could not conveniently be worked on account of the crown, nor could they be leased or sold to advantage: for if the first course were pursued, the revenue would be exposed to risk; and if the second were attempted, it would be in vain, for all the other mines being made common, and liable to be registered at pleasure, no one would be found willing to purchase or take on lease, this particular mine; and in the mean time, the space occupied by this mine would remain unproductive, instead of benefiting the revenue by returning the fifths and other duties, as it might, if worked by an individual. Neither is it the practice in Peru, according to Escalona,† who refers to several royal orders, to work these mines on account of the crown; but they are directed to be sold or leased, which it must how ever be difficult to accomplish; and consequently, whilst the difficulty of finding a person willing to purchase or take the mine on lease, continues, it must remain unproductive.

29. The orders cited by Escalona, form the basis of a law of the Collection of the Indies, directing the viceroys and presidents to inform themselves of the quality of the mines of gold, silver or quicksilver, belonging to the crown, and to cause them to be worked, leased or sold, which law extends to both the continents of America generally. Agreeably to this law, it cannot be doubted but that the king, as lord of the mines, and in exercise of the high and supreme right he enjoys over them, might take all or any proportion of the mines at pleasure; for, as we have stated in Chapter II., he has only admitted his subjects to a partial interest in them. But as the fifth, tenth or twentieth part of the produce has been fixed as a satisfaction for his interest in the mines of New Spain, and as it has never been considered expedient to work any of the mines on account of the crown (the only instance we know, being that of the copper mines of Santa Clara, in the jurisdiction of Pascuaro, in Mechoachan, which are leased out),§ it follows, from the evidence afforded by these customs and practices in New Spain, that the intention of the sovereign is that the mines of gold, silver and other minerals, should be worked by his subjects, and not on account of the revenue, not wishing to expose his finances to the hazards and risks of mining. And no mines of gold or silver have ever been taken in that kingdom, for the purpose of being leased or sold, on account of the crown, not only on account of their great abundance, but also because the viceroys sensible of the nature of

* Vide sup. cap. 2, n. 18.

Escalona, locis ubi proxime.

Law 2, tit. 11, bonk 8, of the Collection of the Indies.

§ Vide sup. chap. 3, n. 39.

this kind of property, which will sometimes rapidly advance to a state of prosperity, and at others as rapidly fall off and become barren (all which renders it difficult to sell or lease it), have not thought proper to do so.

CHAPTER X.

OF THE NECESSITY OF SETTING OUT BOUNDARY STAKES, AND OF THE TERM ALLOWED BY LAW FOR THAT PURPOSE, AS WELL WHEN THE OWNER OF THE MINE, WHO IS REQUIRED TO SET THEM OUT, IS ABSENT, AS WHEN HE IS PRESENT.

ORDINANCE XXIV.

Also, we ordain and command, whether with regard to mines heretofore discovered, or to such as may hereafter be discovered, that if any person shall require to have boundary stakes set out by the first discoverer or by any other persons who may have set out boundary stakes, after having registered their mines; such first discoverer, or such other persons as aforesaid, shall be obliged to set out such boundary stakes, within ten days from the day when they shall be required to do so, if they be at the mines. And if they shall not set them out, then, after the time aforesaid, the mining justice, who shall, under these our ordinances, have cognizance of such matters, shall set out such boundary stakes, taking with him persons who understand staking out mines, and who shall be sworn; and if the person of whom the request is made, be not at the mines, but be in the vicinity, within ten leagues of such mines, he shall be obliged to set out the boundary stakes within fifteen days; and if he do not set them out by the expiration of such fifteen days, the said justice shall set them out as aforesaid. And if the party be not in the vicinity of the said mines, nor within ten leagues thereof, notice shall be given to his steward, or to the person who shall have charge of the working of the mine, or be left at his house, if he have any, and public proclamation shall be made upon the first holiday which shall occur. And the term of fifteen days shall commence to run from the day of the notice being given to such steward or other person, or being left at his house; and such proclamation shall be posted upon the door of the church of the said mines; and if there be no church at the mines, then upon that of the nearest town. And when the said term of fifteen days is expired, the said 'justice shall set out such boundary stakes as aforesaid, observing in setting out the same, that there must always be a fixed stake, which must be adhered to, and must not be abandoned in staking out or altering the boundaries.

CONTENTS OF THE COMMENTARY ON THIS ORDINANCE.

1. What is meant by setting out boundary stakes, and applying to have them set out. 2. Of the term fixed by law for setting them out.

3. The time is peremptory, and the judge has no discretion.

4. A provision of the ordinance, in case of the owner being absent.

5. The propriety of allowing the steward, in such case, to set them out, is shewn.

6 and 7. Whether the term shall run against the proprietor when he is unavoidably delayed. Grounds for replying in the negative.

8. The contrary opinion proposed and established.

9. Refutation of the arguments on the other side.

10, 11 and 12. What is to be done, in case the owner of the mine should be absent at more than ten leagues distance.

COMMENTARY.

1. Having ascertained the number of varas the discoverer is allowed in his mines, and the common or ordinary miners in theirs, this ordinance which follows, proceeds to state the term within which boundary stakes must be set out, if required by a neighbour. It must be observed, in the first place, that an application to set out boundary stakes is said to be made, when a miner of longer standing is required to mark out the number of varas he chooses to extend his mine, in this or that direction, on the side on which the mine of the person who makes the requisition is situate; and when his mine is so measured out, the rest remains for those who have not yet measured out their boundaries. The reason why it is necessary to apply to have the boundary stakes set out, is, that the miner of longest standing has a right to measure out his boundaries first; and that after measuring them out, he is at liberty to alter them on that side on which he has not set out boundary stakes, as will be seen by subsequent ordinances. The party whe sets out boundary stakes, is he who first makes measurement; and the party who applies to have them set out, is he who demands to have the boundaries of the oldest mine measured, that he may afterwards measure out those of his

own.

2. This being the case, if the person or persons who are required to set out boundary stakes, are present at the mines, they must, according to the 24th ordinance, and the 22d, of which we have already treated,† set them ont" within ten days;" if they be absent from the place, but be in the vicinity, and within ten leagues, then within fifteen days; and if they be not in the vicinity, nor within the distance of ten leagues, but at a greater distance, a proclamation is to be made on the first holiday, and is to be posted up at the church of the place, and if there be none, then at the nearest church; notice is to be given to the steward, or person who may have charge of the mine, or a summons or notice is to be posted up at his house, from which

* Chaps. 11, 12. 13.

† Chap. 8, ordinance 22.

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