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port, timber-work and pits, to fallings in of the ground, to the cutting away of the pillars of support, and every thing else affecting the working. If this wellestablished practice were adhered to, much expense and many errors might be prevented, arising out of the ignorance of those who are sometimes dispatched as visitors to the mines, of which they frequently conceive such a dread, that they will not even venture to look at them, but blindly resign their judgment to the opinions of the surveyors, whom it is usual to employ in those places ; upon which subject we have given our sentiments in the appropriate place.* We recollect one instance of a visitor, who (when about to descend into the mine), was made a jest of by the barmen and miners exaggerating the insecure state of the works, which impressed him with such violent apprehension, that he resumed his dress, which he had taken off, and left the inspection to be performed by some one else.
7. The discreet and experienced viceroys whom we have known, wishing to follow the best course of government, have refrained from appointing visitors (except in a very few cases), either for the mines or in other depart ments, from the great inconveniences found by experience to follow, although not previously calculated on. As far as the mines are concerned, these inconveniences are indeed very great, when thoroughly understood.
8. If, when the mining justices render an account of their offices, the plan were adopted, of charging them to visit the mines at proper times, such a practice would not only be agreeable to the precepts of the laws and ordinances, in promoting the various ends they contemplate, as being advanced by the working of the mines; but it would also be the means of preventing the falling in of tho ground and the consequent fatalities, the inundation of the works, and many other evils of serious moment, which arise from the licence of irregularities of the miners, and the connivance and thoughtless
"neglect of those who ought to keep strict watch over them. •
9. We have observed above, that the cases are rare in which the viceroy proceeds to appoint a visitor; but even when he does, the appointment must be in reference to questions of government only, or to the means of improving the standard of the ore, or the methods of reducing by smelting or amalgamation; as was done by the Count de Salvatierra, on the 22d of September, 1643, when he commissioned Don Luis Berrio de Montalvo, judge of the criminal court of the royal audiency of Mexico, under the title of administrator of the mines of the kingdom, to proceed to Tasco and other mining districts, to establish the method of amalgamation for reducing the silver in twenty-four hours, discovered by Pedro Garcia de Tapia and Pedro de Mendoza Melendez, and to take into consideration every thing relating thereto; of which we have treated elsewhere.f But the appointment must not have reference to civil or criminal matters, which are objects of justice
* Sup. chnp. 12 and 22. t Sup. chap. 22, n. 44, 45 and 46.
10. Such as denouncements, insufficient working, boundaries, questions of the right of possession or property, the proving of entries in the register, the removal of pillars of support or the embezzlement of bullion; all which belong to the chief alcaldes or mayors, and by way of appeal, to the royal audiencies. And it is not lawful for the governors or viceroys to challenge cognizance of these suits, nor to withdraw the proceedings in the first instance from before the justices; nor can they prohibit an appeal to the royal audiencies: all which, besides being clearly and explicitly laid down in the laws of the Collection of the Indies, is also repeatedly enforced by various orders. At the same time, the administrative department falls entirely within the province of these officers, as is declared by the same laws, in the following particulars: They are to cause the laws of Castile, concerning the mines, to be observed in the Indies ;* they are to provide the mining establishments with provisions and to be careful of their interests, as likewise are the governors ;f and thoy are to enforce the observance of the miners' privileges, to cause them to be provided with stores at reasonable prices, and to urge them to search for, discover, and work new mines ;$ because the abundance and richness of their ores is the chief strength of the kingdom. All these authorities concern the administrative department, and an equal right of exercising them is enjoyed by the governors in their several districts.
11. But as to questions of justice, it is otherwise: for instance, although it is the part of the viceroy, as a ministerial duty, to consider whether it will be proper to sequestrate mining machinery; yet when once seized, and judicial proceedings had before the royal officers, there is no appeal to the viceroy; but, being a question of justice, the appeal belongs to the audiencies :§ and although the proceedings do in fact depend on the exercise of the ministerial authority of the viceroy, he has no power to restrain them, nor can he delay or prejudge the appeal, by refusing to allow the proceedings to go on, or by stopping their progress in the first or subsequent instances.||
12. On several occasions, where it has appeared that an opposite course has been pursued in this delicate matter, orders have been issued with refer, ence to it. The first we shall notice was on the 22d of March, 1708, in tho viceroyalty of the Duke of Albuquerque, on occasion of complaint by tho mayor of Zacatccas, that he had been impeded in trying and inquiring into certain improper dealings in the purchase of silver, and in the cutting away the pillars of support of the mine Benitillas. In this case, tho council, after having advised the king of their resolution, declared, in a sitting of justice, that the jurisdiction, in all civil and criminal matters, belonging to the mayor, and in the second instance, to the audiency of Guadalaxara, to the express exclusion of the viceroy.
* Law 8, tit. 1, book 2, Collection of the Indies.
t Lswb 6 and 9, tit. 19, book 4. Laws 1 and 4, tit. 20, book 4, Collection of the Indies.
t Law 1, tit. II, book 8, Collection of the Indies.
§ Law 10, tit 19, book 4, Collection of the Indies.
|| Laws 87 and 38, tit 3, book 8, Collection of the Indies. Laws 35 and 60, same title and book. Laws 34 and 35, tit 15, book 2, Collection of the Indies. Law 24, lit. 12, book 5. Solonan. Polit. lib. 5, cap. 3.
13. Another such order was issued on the 17th of March, 1738, in the vicoroyalty of the Archbishop, Don Juan Antonio de Vizarron. That officer having conceived that he had the cognizance, as superintendent of the revenue (under law 3, tit. 1., book 2), of a question of justice concerning a mine belonging to Don Manuel Ginoecio, the audiency reported the case to the council, which directed that the above order of the year 1708 should be repeated, declaring that the proceedings in the first instance ought to be had before the justice of Sombrerete (where the mine was situate), and those on appeal, before the audiency of Guadalaxara, and that the viceroy must give way; which they recommended him to do, and for the future, not to extend his jurisdiction beyond the regular routine of business, but to permit the audiency to exert its proper functions.
14. Another such order bears date the 25th of October, 1740, and was forwarded on occasion of the above-mentioned audiency having reported, that the viceroy last named, the Archbishop, had commissioned Don Francisco Antonio de Echavarri (now senior judge of the audiency of Mexico), to hear a suit then pending between Don Eusebio Sanchez de Ocampo, and Don Leonardo de el Hierro: whereupon his majesty directed that the abovementioned order should be repeated, and that the viceroy should be advised, if he wished to maintain his station, not to intermeddle in questions of justice between parties, but to allow the justices to exercise their jurisdiction without interruption, and to leave the proceedings upon appeal to the audiencies, agreeably to the various laws and orders, entitling those courts to the cognizance of such matters.
15. By another royal order, of the 16th of September, 1756, his majesty confirmed an arrangement which had been made by the viceroy, Count de Revilla-Gigedo, for establishing a mayor at Bolanos, but disapproved of his having separated that district from the audiency of Guadalaxara, and annexed it to the jurisdiction of the viceroyalty of Mexico; ordering that it should be restored to the jurisdiction of the first-mentioned audiency. And although the viceroy, Marquess de las Amarillas, represented that he had suspended fulfilling the order, at the same time forwarding documents on the subject, another royal order was issued in the year 1759, directing him to comply, without further delay, and ordering that the mayor and other justices of Bolaiios, should be subject to the audiency, as the latter had been before.
16. The above by no means derogates from the lofty and eminent power of the viceroy, which is so important and necessary for the administration of the political, economical and military government of these kingdoms; and so oxtensive, that he can with difficulty dispatch the immense mass of applications and other business he has to attend to, in reference to all these departments, besides the affairs of the revenue, the presentation to benefices, the superintendence of the military posts and missions, the providing supplies of provisions, the concluding contracts of hire, the reducing fresh tribes of Indians, and all the other matters which require the saction of his supreme authority. But as the supreme head of the kingdom, and representing the majesty of our sovereign, it is his duty to allow the other members of the body politic, and the tribunals appointed for the determination of questions of justice, to perform their functions without restraint. And he must not, by transgressing the proper limits of his jurisdiction, and assuming authorities which belong to other ministers, disturb the harmony and subordination which ought to exist in the functions of the different officers of the state, at the same time, in so doing, violating the laws (which are supreme above all), and working great injustice to the parties concerned.
17. It is indeed a grievous thing that the parties should, as they often are, and as we ourselves have witnessed in many casjs, in not a few of which we have been concerned as counsel, be compiled to proceed to Mexico, from Zacatecas, Bolailos, Sombrerete, Chiguagua, and other places, at the distance of two, three or four hundred leagues, to defend their rights. For to say nothing of the journeys to and fro, the expenses at Mexico, which are considerable, and those of the procurator, advocate, assessors and clerks, which must altogether be the ruin of the suitor, even if he should gain his cause; the fact is, that it is impossible the truth can be made out at so great a distance. If the right of appeal be denied,there is an end of justice; if it be granted, the whole matter is just where it was at first. But how can we speak in sufficiently strong terms, of the delays and objections, whether reasonable or groundless, interposed by the assessors? The greater part however, of these evils (we do not say the whole, for expense must necessarily be attendant upon litigation), would be avoided, were the proceedings, in the first instance, left to the territorial justices (who have much greater facilities for going through the necessary preliminaries, the trials, surveys and inspections), and the appeals, to the audiency of the district, where no assessor is required, and where it is very rare indeed that any objection can be made to any of the officers : besides which, these courts being familiar with mining matters, from the various cases which come before them, bring the suit to a speedy end, which is of great importance to the public, and dispose of the business of the miners with the expedition so much insisted on by the laws.*
18. The viceroy, Don Francisco de Toledo, sensible of these truths, framed for Peru three special ordinances, directing that tho registries should be made before the mining alcalde ; that that officer should visit the mines in dispute,and go through the preliminary operations in person, proceeding, and enforcing his sentence in a summary way; and that the appeals should be heard before the royal audiencies, which should likewise have cognizance of the cause, in the further stage of supplication. So that this great and celebrated viceroy did not think himself authorised to claim cognizance of these suits, but conceived it his duty to consider the public good, by leaviug questions of justice to the courts.* It is to be observed, that when a question arises concerning a contract for the purchase or sale of a mine, the right of succession under a will or otherwise, or any other point of the like nature, it is competent not only to the mining judge and chief alcalde, but also to the ordinary justices of the territory, to entertain the suit; and that it is only upon questions arising under the ordinances, that the jurisdiction, in the first instance, belongs to the mining judge. If there be no such judge, the question must be tried by the other justices, as may be noticed in the ordinances of Peru above referred to.
* Laws 2, 3 and 5, tit. 20, book 4, Collection of the Indie*. * Escalona, Gazoph. lib. 2, p. 2, cap. 1, tit. 9, pag. 121, n. 1, 2 and 3.
C II A P T E11 XXVI.
Or ADITS AND CON7HAM1NAS, AND THEIR INPORTANCE.—OF THE OBLIGATION TO MAKE THEM, AND THE INCONVENIENCES WHICH FOLLOW FROM NEGLECTING TO DO SO.—OF REGISTETING AND MARKING THEM OUT, THEIR DIMENSIONS AND FORM, AND THE NUMBER OF HANDS TO BE EMPLOYED IN WORKING THEM.—OF THE APPORTIONMENT OF THE EXPENSE AND OP THE RIGHT TO THE ORES POUND IN THE COURSE OF PROSECUTING SUCH WORKS, WHETHER IN UNOCCUPIED ORJAPPROPR1 ATED GROUND, AND WHETHER FOUND IN NEW VEINS OR IN A VEIN BELONGING TO SOME OTHER PARTY.
ORDINANCES LXXIX. LXXX. LXXXI. LXXX1I.
LXXIX. Also, forasmuch as we are advised, that many mines are so situated as to admit of contraminas being made, and that mines newly discovered may possibly be similarly circumstanced, so that the water might flow out by the contramlna, or be got out at less expense, which is of great importance, both in regard to the permanence of the mines, and their present working :—Wherefore, we ordain and command, that wherever there shall be opportunities for making such contraminas, the mine owners shall make them, and each shall contribute to the same, according to the nature and disposition of his mine, so admitting of being drained by a contramina. And that when the mine owners shall not agree amongst themselves to make the same, the administrator-general, having inspected and informed himself of the disposition of the ground, and the advantages which would attend the measure, shall arrange with them to do it. And that in such case (such mine owners being agreed,) he shall make such appointment of the expenses