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CHAPTER XVII.

OF THE NUMBER OF FOUR PERSONS REQUIRED TO BE KEPT AT WORK IN MINES OF GOLD AND SILVER, AND OF THE PENALTY OF FORFEITURE WHICH ATTACHES UPON THEIR BEING LEFT UNWORKED FOR FOUR SUCCESSIVE MONTHS, AFTER WHICH THERE CAN BE NO RESTITUTION OR OTHER REMEDY.-OF THE DESCRIPTION OF WORK ABOUT WHICH THEY MUST BE EMPLOYED, AND. WHICH IS DETERMINED TO BE ANY KIND OF WORK, WHETHER UPON THE SURFACE OR IN THE INTERIOR, TENDING TO THE HABILITATION OF THE MINE-THE ONLY GROUNDS OF EXEMPTION FROM THE PENALTY ARE, THE OCCURRENCE OF PESTILENCE, FAMINE OR WAR.-CONSIDERATIONS ON THE DEFICIENCY OF HANDS FOR THESE MOST IMPORTANT WORKS.

ORDINANCES XXXVII. LXXI.

XXXVII. ALSO, forasmuch as it commonly happens, that there are persons who hold many mines which they have taken, discovered, purchased or acquired in some other manner, and who do not work them or keep them in activity, either because it is not in their power, or because they are engaged in working others which they consider better, in consequence of which they neglect to sink or explore the former mines, or to raise the ores from them, although sometimes better than the ores raised from the mines prosecuted by them and whereas the mines they omit to work as aforesaid, become filled with water, to the injury of other adjoining and surrounding mines, which are kept at work, and which become deeper than the former. Wherefore, to obviate these and other inconveniences which follow or might follow from not working the mines,-We ordain and command, that all persons shall be obliged to keep their mines worked by at least four persons in each mine or pertenencia, whether they be sole proprietors of such mines or hold them in partnership; for however that may be, the setting on such four persons in the whole extent of cach mine, shall be sufficient to shew that such mines are kept at work; which four persons aforesaid are to employ themselves about the working of the mines in which they shall be set on, in raising water or ore, or in doing some other work for its improvement, either within or without the mine: under the penalty, if any mine whatsoever shall not be kept worked by such four persons as aforesaid, during the term of four months successively, that the person to whom it may belong shall, ipso facto, forfeit it, and that he shall, from that time forth, have no right to the mine, unless by making registry thereof anew, and going through the other proceedings, in conformity with these ordinances; such mine to be adjudged to any person who may denounce it as insufficiently worked, provided he go through the proceedings aforesaid. But if, from any reasonable impediment,

* Habilitation, as applied to mining, is the bringing a mine, or part of a mine, into a working state, or the maintaining it in that state.-Trans.

such as war, mortality or famine, occurring in the part or place within the jurisdiction of which the mine may be situated, or within twenty leagues around, it shall be impossible to keep it worked by such four persons: in these cases, the aforesaid term of four months shall not run. If, however, such impediments shall exist out of the jurisdiction within which such mine shall be situated, and beyond such twenty leagues around, this shall not be admitted as an excuse for not keeping the mine at work, according to and under the penalties contained in this our ordinance.

LXXI. Also, we ordain and command, that all who shall be possessed of mines or streamworks of gold, shall be obliged to keep them at work, as is commanded with regard to working the mines of silver, under the penalties hereinbefore declared.

CONTENTS OF THE COMMENTARY ON THESE ORDINANCES.

1. In case of neglecting to keep four persons at work in the mine, for the term of four months, the forfeiture thereof is incurred.

2. The ordinances of Peru were originally more strict, but were relaxed by the Marquess de Canete.

3. Difference between possessing a mine, and keeping it worked.

4. Any kind of labour, either internal or external, applied to the substance and soil of the mine, or having relation to the mine and its habilitation, is a sufficient working.

5. But not so the setting up machinery or reducing the ores.

6. By the law, the term of four months cannot be enlarged, even by the viceroy.

7. An important suit on the question, whether a mine had been kept at work, between Don Pedro Terreros and the Marquess de Valle-Ameno, before the royal audiency of Mexico.

8. An executory sentence was given in favour of the marquess, by the viceroy and audiency, and confirmed by the council, who declared a supplication to be inadmissible. 9. Of the strictness with which the keeping at work should be established.

10. Ground upon which the council refused to admit a supplication on the part of Terre

ros.

11. If the term of four months, during which the mine is omitted to be kept at work, be not continuous, the mine is not forfeited.

12. The plan of setting hands to work, merely to interrupt the period of four months, seems contrary to the ordinance.

13. But the ordinances must be observed, and the justices ought anxiously to endeavour to keep up the works.

14. A mine left insufficiently worked, and set to work again without a new registry being made, does not become the property of the person so working it anew, but is liable to be denounced.

15. Upon which it shall be adjudged to the denouncer, although the former owner be working it at the time.

16. War, pestilence and famine, prevent the term from running.

17. No circumstance which cannot be reduced to one of the above three, is admissible as

an excuse.

18. Minority in age, absence on public affairs, &c. afford no excuse, and why.

19. There is no restitution after the lapse of the period of four months, but re integrâ, the mine may be registered anew.

20. Re non integrâ, it cannot be registered, nor will restitution be allowed, in opposition to the rights of third parties.

21. The law of itself divests the rights of the party who has abandoned the works, and transfers it to the party making denouncement.

22. There is a right to recover over, against a tutor or curator leaving a mine unworked. An ordinance of Peru, providing for the interests of absent heirs.

23. If the mine have not yet been adjudged to the party who has denounced it, and he have not laid out money upon it, it may be restored.

24. Extreme poverty affords no ground of exemption from the penalty for leaving the mine unworked.

COMMENTARY.

1. These ordinances, which follow the 40th and 76th of the old ordinances,* provide, that whether the mine belong to one proprietor, or to several in partnership, it must be kept worked by at least four persons. The objects looked to by the sovereign in imposing this condition, are important, as may be collected from the ordinances themselves; the chief of them is the raising of the ore, which cannot be effected without workmen and as four persons are but a trifling number to employ in the whole extent of a mine, the works of which, upon ore or dead ground, generally require many more, there is no excuse for omitting to supply that number, except under the unusual and accidental circumstances provided for by the ordinances themselves. Under any other circumstances, it will be difficult to find a case where so limited a number of workmen as four, cannot be procured; and a miner leaving a mine insufficiently work for four months successively, certainly deserves to lose it, for his neglect. By the old ordinance, now altered, the term was only two months.

2. In Peru, the term fixed by the ordinances, after which a mine might be denounced for insufficient working, was very limited. In mines of 60 varas, eight Indians or four negroes were to be kept at work, besides the miner; and in those of 30 varas or under, four Indians or four negroes: and if this number was left incomplete during twenty days, or if no work was done for six successive days, during such twenty days, the mine was liable to be applied for and adjudged as unworked; but the viceroy, Marquess de Cañete extended the time to a year and a day. These ordinances also provided, that if any person had a space of 60 varas, at two or three detached points, or had several mines, he must set on that number of persons at each point; but this rule was afterwards annulled by the supplement of Lupidana, it being ordered, that a person having several mines, should keep up his right to the whole number, by carrying on one or two works; as is set forth by Escalona, citing Montesinos, in his Politica de Mineros.†

L. 5, tit. 13, book 6, Collection of Castile, cap. 40 and 76.

† Escalona, in his Gasoph. lib. 2, p. 2, cap. 1, tit. 7, concerning insufficient working; ord. 3

and 4.

3. Whence it follows, that the mere keeping possession of the mine, is not sufficient to authorise saying that it is kept at work, possession being distinct from keeping at work; the former depends on receiving and having the custody of the instrument conferring the title, on the delivery and receipt of the keys, on some corporeal act, such as the tearing off boughs, throwing aside stones, or walking upon any part of the estate, or on some other symbolical act, performed with the intention of taking or maintaining possession of the whole, as may be seen in various texts and doctors.* But the keeping a mine at work, is the employing the labour of four persons, either within or without the mine, in some object tending to the working and habilitation of the mine. So that a mine may be in the possession of a party, though at the same time left insufficiently worked; it may have a guard and be under custody, and yet not be kept in sufficient work; it being an indispensable requisite to the latter object, that four labourers or workmen should be employed; and the performance of acts of possession, without observing the indispensable requisite of keeping the mine at work, is not sufficient to obviate the penalty.

4. The ordinance, however, may be satisfied, without absolutely employing barmen in digging ore; as by raising water, or performing any other useful work, either within or without the mine; within, by carrying on dead works, when the veins become barren, by forming pillars of support, making air holes, or channels for internal draining, or by timbering the pillars and works; that is to say, by lining them with timber, for their support: without the mine, as by driving an adit, sinking or timbering a pit, driving a level or contramina, or draining by means of machinery or whims. In fine, a mine in which four persons are employed, in any act tending to the hahilitation of the mine, and to its being more effectually worked, is considered as worked, according to law.

5. Whence it follows, that as the work done must tend to the improvement of the mine, either within or without, the reducing the ore in the amalgamation or smelting works, which tends not to the improvement of the mine, but of the ore, cannot be regarded as a sufficient working; neither can the arranging the machines or tools, or other necessary implements; for although the end of such operations is the working of the mine, yet they do not tend directly to its habilitation, the extraction of its ores, or the promotion of ventilation in the works; and when the ordinance requires four persons to be kept at work in raising ore, water or earth, or improving the mine in some other way, it of course takes for granted, that the means necessary for this purpose, the implements, machinery and tools employed in the art, are provided.

L. 3, ff. de adq. possess. §. 4, Inst. de rer. divis. L. 1, Cod. de donat. Picler. de caus. poss. et prop. n. 6 et 17. Gomez, in L. 45. Taur. n. 32, 34 et 45. Covarrub. in reg. possessor. 2, p. an. 1.

6. The royal audiencies have always regarded the punctual observance of this ordinance as indispensable, to ensure to the public the benefits derivable from working the mines. As a proof of this, we may observe, that it is commanded by the law of the Indies, that although proprietors who have abandoned their mines should apply to the viceroys or presidents, to maintain their right of possession, by granting orders that the mine shall not be liable, during a certain time, to be denounced for insufficient working, yet the ordinances of the new code shall be punctually and precisely observed, and the appointed term of four months shall not be enlarged; such being the most expedient course to pursue.

7. We have watched several suits, agitated before the royal audiency of Mexico, on the subject of the denouncement of mines for insufficient working, in the districts of Guanaxuato and el Monte, in all of which the greatest strictness was observed on the part of the person denounced, in establishing the fact of their having been kept at work; and on the part of the person making denouncement, in proving that they had been insufficiently worked, during the term in dispute. In a suit prosecuted by Don Pedro Romero Terreros against the Marquess de Valle-Ameno, on the question of the abandonment of the mine of San Vicente, in the mining district of el Monte, which we have already noticed,† notwithstanding that the marquess had obtained a favourable decree from the viceroy, acting under the advice of an assessor, the audiency allowed the matter to be tried before them in the second instance, upon an allegation by Terreros, that the mine had been left unworked, and the author was under the necessity of going into interrogatories to prove that the marquess had timbered the pit, had sunk it many varas, had driven a level and air shafts to habilitate the mine, the works having become choked with vapour, and had also done many other acts, not merely indicating an actual possession, but strictly in the nature of working; at the same time arguing, that there was no necessity to establish these facts, the gift of the mine made by Don Joseph Bustamante to the marquess, in January 1747, having been absolute, and having been ratified by the antecessor in title of Terreros, in November 1748, and July 1749, between which times, the abandonment set up by Terreros was alleged to have taken place; and submitting further, that if Terreros could, by carrying on one single adit, maintain his right to 36 mines on the Vizcayna vein, San Vicente being one of them, then the marquess, as a partner contributing to the work of the adit, in respect of the last-mentioned mine and others belonging to him, must also be

*Law 6, tit. 19, book 4, Collection of the Indies.

† See chap. 16, n. 20 and 21.

This privelege was stipulated for by Don Joseph Alexandro de Bustamante, and was conceded to him by an order of the superior government of Mexico, of the first of June, 1739; and after his death, to his successor, Don Pedro Romero Terreros, by another order of the same superior government.

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