tions 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 cases, in not a few of which we have been concerned as counsel, be complled to proceed to Mexico, from Zacatecas, Bolaños, 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 the 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, *Laws 2, 3 and 5, tit. 20, book 4, Collection of the Indies. 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 leaving 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. CHAPTER XXVI. OF ADITS AND CONIRAMINAS, AND THEIR INPORTANCE.-OF THE OBLI- ORDINANCES LXXIX. LXXX. LXXXI. LXXXII. 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 contramina, 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 * Escalona, Gazoph. lib. 2, p. 2, cap. 1, tit. 9, pag. 121, n. 1, 2 and 3. as may be necessary, amongst the proprietors of the mines thereby benefited, assigning to each the contribution he is to make, according to the benefit he may thereby derive, and compelling him to pay and make good such appointment for the purpose aforesaid. And the ore which may be raised in the course of driving such contramina, shall go towards the expenses incurred about the same, and any deficiency which may be found, shall be ap portioned according to the arrangement which the owners, or in default thereof, the administrator shall have made. LXXX. Also, we ordain and command, that if, in driving such contramina or contraminas, in pursuance of any such arrangement as aforesaid, any new mines should be discovered, not previously discovered from the surface, such mines so discovered in the course of driving such contramina, shall, notwithstanding that they may fall within the boundaries of other mines discovered from the surface, belong to the mine owners who shall have contributed to such contramina, and each of them shall receive a share of the produce, proportionate to the share of the expenses which shall have been apportioned to him as is aforesaid. LXXXI. Also, we ordain and command, that if there shall be any mines. at a distance from the place where such contramina shall have been made, for which reason the owners thereof shall decline to contribute to the expenses of the same, then, when and so often as it shall be ascertained that the water in such distant mines is drained off or diminished, by means of such contramina, or that the owners derive any other benefit therefrom, in getting out ore, rubbish or any other matter whatsoever; they shall pay to the owners of such contramina, so much as shall be rated and estimated by the administrator-general, or the administrator of the department, or of the Learest department as the amount of the benefit derived by their mines from such contramina, having regard to the expense to which they would have been put, had not such contramina been made, and which is thereby saved to them. LXXXII. Also, we ordain and command, that if, in any of the mining districts where it may be convenient to drive such contramina or contraminas, the mine owners thereof shall not be disposed to lay out money in driving the same, and any other individual should be willing to undertake the work, the expediency of driving such contramima having been confirmed by the administrator-general, and the commencement thereof having been registered he shall be at liberty to drive and may drive the same to such an extent as he shall think proper, and without regarding any particular limitation of stakes or boundaries. And all the ore and produce which may proceed from the discoveries made in the course of such contramina, shall belong to the person who shall have made the same, observing however, that he shall not take more of the ore of any other person's mine than shall be contained within the cavity of such contramina, and that the party making such contramina shall not be at liberty to extend it in depth, height or width, beyond the di mensions which shall have been assigned at the commencement of such contramina, and which it is to be eight quarters of a vara for the height, and five for the width. And he shall enjoy this preference with regard to the ore, so long only as there shall be no other deeper mine, producing more benefit to the mines aforesaid, for this right is peculiar to the deepest contramin a' only. CONTENTS OF THE COMMENTARY ON THESE ORDINANCES. 1. What an adit, or contramina is. 2. Of the advantages derived from adits. 3. It is, in certain cases, a duty to drive these works. 4. The disposition of the ground should be carefully examined by surveyors. 5. Of the fatal consequences of allowing these works to be conducted by incompet ent persons. 6. Of the famous adit of the Vizcayna vein, in the mining district of el Monte. 7. Of the fearful depth of the mines in Pachuca, described with astonishment by Gemelli Carreri. The water has now overwhelmed these mines, burying immense treasures. 8. Of the poverty of the miners, which disables them from driving adits. 9. For want of works of this nature, the mines become irremediably sunk in water, as is the case in many of the mining districts of New Spain. Of the anxious provisions of the ordinance. 10. It is probable that the water will be the ruin of the mines of New Spain, and the evil is to be apprehended with regard to both the continents of America. 11. It seems desirable that the crown should take a share in the expenses and profits of the adits, in the districts of most celebrity. 12. Of the injurious neglect of the justices, in not compelling the miners to open adits, where circumstances admit of it. 13. Of registering and marking out the adits. They may be opened in ground belonging to another proprietor. 14. A limited dimension is assigned for adits. The rule was dispensed with, as was just in the case of the adit of the Vizcayna vein. 15. Of the exclusive right of the sovereign and the viceroys, to dispense with the regulations on this point, and several considerations on the subject. 16. The adit must proceed in a direct line to the point in view. 17. The proper number of hands for an adit is four workmen. 18 and 19. In the course of the agreement for driving the adit of the Vizcayna mine, the viceroy determined, that it was unnecessary to set on hands in each separate mining pertenencia. Of the discussions which passed, and the modifications subject to which the permission was given. 20. Of levying the contribution to the expenses of the adit, amongst the mine owners concerned, and how it is to be estimated. The parties are compellable to pay the contribution. 21. Of the manner in which an agreement to forfeit all right to the mine, in default of contributing to the adit, is to be construed. 22. The ores found in the course of driving the adit, are to be divided proportionally among the contributors. 23. The 80th ordinance grants to the parties driving the adit the property of the new veins they may discover, although they be in the ground of another proprietor This ordinance reconciled with the 82d, and an explanation given of the course to be pursued in the case of a communication occurring. Evidently meaning contramina.-Trans. 24. The party driving the adit enjoys the rights of a discoverer, in respect to any new vein he may discover in driving it. 25. The parties driving the adit are to receive payment from those who derive benefit from the work. 26. Although the party driving the adit, be not a mine owner, the contribution must be paid to him. 27. This contribution is to be paid so long only as any actual benefit is derived; but if another adit be made at a greater depth, the contribution becomes due to the proprietor of the latter.. COMMENTARY. 1. These four ordinances (which have none corresponding to them amongst the old ordinances), are of the first importance for keeping up the mining districts. They relate to adits, or contraminas, so called, because they are levels or galleries over against a mine. The pit or shaft of a mine is opened from the surface above, but an adit is opened from the foot or side of the hill, and driven to communicate with the pit. The pit therefore, descends from the surface towards the centre, and the adit ascends to meet the pit or pits of the mine. The arrangement of these works, thus explained, is sufficiently clear and intelligible, but may, if required, be seen in various plates given by Agricola.* 2. These contraminas, or adits, which are vulgarly called canones (levels or drifts), are subterraneous conduits or channels, and have for their principal object (amongst others, to collect together the water from several mines, affording one general means of drainage for all of them, and thus rendering it practicable to work parts of the vein, previously under water. This is the grand object of a contramina or work of general drainage. Pits are expensive works, and often become insufficient or unserviceable, either from variations in the course of the vein, or from the great pressure of the water in the deeper levels. But an adit, or contramina, whilst it is a durable and permanet work, provides an outlet to the waters, in their natural course,affords a ready ingress and egress to the workmen, for the purposes of getting out ore and rubbish at a reduced expense, gives opportunities for exploring the principal vein of the mine, and the other veins connected or forming junctions with, or dividing and intersecting it, and by determining the course of the vein, and enabling the proper directions to be given to the different works, promotes the grand object of discovering and turning to advantage the metallic substances hidden in the bowels of the earth. 3. Upon all these grounds then, contraminas being works of the highest importance, both for giving permanence to the mines themselves, and for facilitating their present working, it is provided by the 79th ordinance (notwithstanding the rule that no one ought to be compelled to work his own. property), that such works shall be driven, whenever there are conveniences. Agricola, de re metall. lib. 5, p. 71. usq. ad 74. |