« ForrigeFortsett »
cate in the courts of that country, in the course of which, although he devoted his attention more particularly to the laws of mining, he acquired the reputation of being, generally, one of the most accomplished jurists of his time, he was appointed deputy, at the court of Madrid, of the consulate of commerce of New Spain, and whilst residing at Madrid in that character, he produced his celebrated Commentary. After several years passed in this manner at Madrid, he was appointed regent or president of the audiency or supreme court of St. Domingo, which he accepted, as it is believed, with some reluctance, having entertained the hope that Mexico, which had been the scene of his labours, would also be that of his reward. It is supposed, however, that Galvez, the minister of Charles III. objected, from some concealed motive, to his being placed in Mexico; and this opinion is strengthened by the fact, that upon the death of Galvez, he was appointed to the high office of regent of Mexico, which he occupied with much credit and distinction, till his death, having lived to see his sons established in high situations in the church and the government, and long enough to acquire the general respect and esteem of all who came within the range of his authority. The following is an extaact from the royal decree: "By The King.—Forasmuch as Don Francisco Xavier de Gamboa, advocate of my royal audiency of Mexico, an J deputy at this court, of the consulate of commerce of the kingdom of New Spain, has presented to me a book, entitled "Commentaries on the Mining Ordinances," which he has written solely with the view of giving publicity, by means of his application and industry, to the acquisitions he has made on the important subject to which the work relates; and has requested that I would be pleased to grant to him, my royal licence to print the same, in consideration, not only that the new and copious information he has collected, and the exposition he has given of each separate ordinance, embrace matters which concern the private rights of my subjects, as being interesed in the direction, economy and government of the mines, in the determination of controversies concerning them, in the rules of registering, denouncement, taking possession, and all that constitutes mining jurisprudence,—but also that the aforesaid commentaries treat of questions of importance to my own public rights as sovereign, and investigate the means of giving greater extent and facility to the operations of mining, of improving my revenue, and of promoting commerce and the prosperity of the state in general. Having therefore considered the above in my council of the Indies, and heard what my fiscal has thought it fit to submit, and taking notice also, that the object of the work above mentioned is not to propose new rules, laws or ordinances, but to illustrate and comment upon such as are now in force in reference to the government and working of the mines, and that the labour that has been bestowed upon it, is both profitable and commendable, and by no means adverse to my royal prerogative, or to my royal laws and orders: I have resolved, under the opinion of my council aforesaid, dated the Cd of August last, to grant, and I do, by this my royal order, grant to the aforesaid Don Francisco Xavier de Gamboa, my royal permission to print and publish the aforesaid work."
As by the act of the Legislature of California, in relation to the future, the common law of England is adopted, as the law of the land, and of course, in relation to mines, as in reference to every other subject, except so far as it is controlled by statutory enactments, the common law will be the rule of decision; it has seemed proper to add a summary of the principles of the common law, on certain branches of this subject, and the compiler has availed himself, principally, of the work of Bainbridge on Mines and Minerals for this purpose.
The compiler would have gladly enriched his pages by the insertion of the reports, in relation to California, by the Hon. Thomas Butler King and William Carey Jones Esq., were it not that each of these valuable and able reports have been published in pamphlet form, and generally circulated.
A full table of contents is given, in this volume and a similar one will be prefixed to each of the subsequent volumes, and in addition a copious alphabetical index will be inserted, at the close of the last volume.
The task of a compiler and translator is not one of a high intellectual order, but in the present instance, as it has proved one of considerable labor and in the collection of the materials no small expense, the compiler hopes it may prove useful to the profession. It has certainly been so to himself, as it has led him to a more thorough examination of the subjects embraced in it, and aided him in the professional investigations which first suggested the undertaking.
DIRECTION, REGULATION, AND GOVERNMENT
MINERS OF NEW SPAIN,
AND OF ITS
Ho 2a 1 tribunal (general.
BY ORDER OF HIS MAJESTY
BY THE KING.
By a Letter of the twenty-fourth of December, 1771, my Viceroy of New Spain represented to me, among other things, that in order to ameliorate the condition of the Miners of that kingdom, to correct effectually and suitably the mischievous abuses which have been introduced among the Mine-Proprietors,* and persons working in the Mines, and to obviate the mutual complaints resulting therefrom, he considered it a matter of extreme importance that a new Code of General Ordinances should be framed for the said establishment (of Miners), in such manner as to render the government thereof more uniform and complete: proposing, at the same time the means which he judged most likely to secure a right method in the execution of io importont a work. From his information, and from what my Supreme Council of the Indies laid before me upon this subject in a Consult of the 13th of June, 1773,1 thought fit to enjoin and command my said Viceroy by Royal Let ter, (Cedilla) of the 20th of July next following, among other things, that there should be formed the new Ordinances as above proposed, with explanations and additions of all that might seem necessary with a view to the actual Btate of affairs; and after consultation with the Mine-Owners, and a certain number of Surveyors (Peritos*') keeping in view all the documents referred to in his said Letter, and also the collection of Laws and Statutes of my said dominions, and especially thosa which are referred to by my said Royal Letter. Afterwards, conformably to a Report which was laid before me on the 7th of August of the said year, 1773, by a Junta of Four Ministers, formed under my Orders, and with my entire approbation, it was commanded to my said Viceroy, by a Royal Order of the 12th of November then instant, that in the Ordinances which, in consequence of the said Royal Letter, were about to be formed for.the Government of the Miners, they should be regulated and established in an United Body, upon the model of the Consulates,t in such manner as to secure to its members the necessary encouragement, permanency, and support: afterwards, by a Letter of the 26th of September, 1774, my said Viceroy represented to me that the Miners of those my dominions had petitioned, in a printed representation, dated the 25th of February of the same year (and accompanying his Letter,) not only to be established in a body, similar to the Consulates, as already ordained, but that a Bank of Supplies (Banco de aviot) should be instituted for the encouragement of the Mines; that a College of Metallurgy should be erected for improving the construction of machinery; and for other scientific purposes; and that a new Code of Ordinances should be framed for the Mines, proposing to derive the funds necessary for the support of these establishments from the amount of the double seniorage duties payable on tho metals, from which they hoped to be relieved, by reason of what they had stated in their said representation; and upon all these points my said Viceroy suggested what he considered most expedient. Wherefore, and after considering the Report laid before me thereupon by my Supreme Council of the Indies, on the 23d of April, 177G, I was pleased to determine, amongst other things, and to command by my Royal Letter of the 1st of July of the some year, that the important Society of the Miners of New Spain should bo erected into a Corporate Establishment, similar to the Consulates of Commerce in my dominions,, giving them, for that purpose, my Royal Consent and necessary Permission; and granting them the power of levying upon their Bilver one half, or two third parts, of the double duties, payable before that time to my Royal revenue in the way of seniorage; but from which I relieved them by the said Royal Letter: in consequence of all which, by a Public Act or Sitting (Acta) of the representative Deputies of the said said Society, held on the 4th of May, 1777, they proceeded to incorporate themselves, accordingly, to determine the offices of which their Tribunal should consist, and to appoint the proper persons to fill those offices. Their proceedings were laid before the Viceroy, who approved of them in my Royal Name, by his Decree of the 21st of June of the same year; permitting to the said Tribunal until my Sovereign Pleasure should be known concerning it, the exercise of all the powers of administration, direction, and management, as enjoyed according to law by the Consulates of the Monarchy in all respects in which the exercise of all the powers of administration, direction, and management, as enjoyed according to law by the Consulates of the Monarchy in all respects in which the exercise of such powers should be conformable to my Will, restraining them only from the exercise of judicial authority, which is permitted to the tribunals of the said Consulates of Commerce, and that restriction only to operate till the said new Ordinances should be framed and approved of by me. And the Viceroy having informed me of all this by letter of the 27th of the said year 1777, I thereupon thought tit to confirm the same by my Royal Order of the 29 th of December then following, addressed to the said Viceroy, commanding him thereby, and again by another Royal Order of the 20th of January, 1778, that if the New Tribunal of Miners had not as yet formed their Ordinances, and laid them before him, he should cause the same to be done with the utmost despatch: this having been completed on the 21st of May of the said year, they were transmitted to me by the Viceroy, with a letter of the 26th of August, 1799, in order that, after considering them, and the representations made concerning them by the Fiscal of the Royal Audiency* (Real Audiencia), and by the Assessor-General of the Vice-Royalty, I might express my Royal Approbation thereof. Lastly, having consulted with Ministers of approved zeal and probity, and considered the best means of reconciling most justly the true interests of the State with the particular welfare of the said important body of Miners, I have, for the direction, regulation, and government of that body, and of their Tribunal, commanded the publication of the following ordinances.
* The Spanish word here is Mineros; it has been found necessary to translate this word occasionally by " Mine-owners, or Mine proprietors," and occasionally by " Miners," i. e. all persons working in or haTing any connection with mints.
• Peritos, literally "skilful persons ;" but in order to make it consiit with the duties which are afterwards appointed to such persons, I have translated it surveyors.
t Consulates of Commerce. These are courts consisting of a judge and assistants, for the hearing and d.termuung, in a summary manner, causes arising out of commercial transactions.
OF THI TRIBUNAL GENERAL OP THE MINERS OF NEW SPAIN.
The New Tribunal of Miners shall be styled " The Royal Tribunal General of the Important Body of the Miners of New Spain," and shall be esteemed
• Royal Audiency. These were courts of justice, eleven in number, established by the Spaniards, and extending respectively over the eleven districts, into which their American dominions were divided.—Ste Robertson'' America, Vol. IV. p. 16. andstq.