Mines of Quicksilver in the Republic, and its readiness, and even anxious desire to assist and promote this object, by every available means, is further shown by the Order of July 8th, and Decree of July 14th, 1843, respecting the raising of a fund for that purpose in the Department of Jalisco, and by the Decree of September 25th, of the same year, intended more fully to carry out and accomplish the objects contemplated by said Decree of July 5th, 1843.

From this review of Spanish and Mexican legislation, it is evident :

First. That the Spanish Mining Ordinances of 1783, with no important modifications, except those introduced, as we have seen, by the Decrees of the General and Extraordinary Cortes, continued in force throughout Mexico, (including Upper California,) down to the time of its independence of Spain, and thereafter, likewise, subject only to the alterations made by its Constitution and other Laws and Decrees, down to the time of the origination of the claimant's title in 1845.

Second. That under said Ordinances of 1783, the Tribunals therein provided for, under the name of "Deputations of Mining," could only exist where there were "Reales" or "Asientos" of Mines and Miners who had been engaged for more than one year next preceding in working and supplying such Mines and reducing their ores, inasmuch as the "Deputies" to compose such Tribunals could only be appointed by the election of such Miners.

See Ordinances of 1783, Tit. 2, Arts. 2, 3, 4, 7, 8. Halleck's Mining Laws, p. 201--203.

Third. That, in the absence of such "Deputations of Mining," the respective Royal Judges (Justicias Reales) were Judges of Mines.

See Ordinances of 1783, Tit. 2: Art. 1.
Halleck's Mining Laws, p. 201.

Fourth. That under the "Constitution of the Spanish Monarchy" of 1812, and the Decrees of said General and Extraordinary Cortes, the jurisdiction of said Royal Judges, (Justicias Reales) was vested in the Judges of Partido and First Alcaldes of Towns.

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See Arts. 273, 274, 275 of said Constitution. Also, " Reglamento de las Audiencias y Juzgados de Primera Instancia," Cap. 2, Arts. 1, 3, 4, 7, 8, 28, 29, 30, 32, 33; Cap. 3, Arts. 6, 7, 10, 11; Cap. 4, Arts. 1, 3, 5; in Galvan's "Decrees of Cortes," p. 45-52.

Fifth. That no "Reales or "Asientos" of Mines, having existed in Upper California prior to the Mexican independence, as a consequence, no such Special Mining Tribunals could have existed there.

Sixth. That, by the Mexican Constitution of 1824, the Judicial Power vested by said Ordinances of 1783 in said Mining Tribunals, was transferred to the ordinary Courts of Justice created by said Constitution, so far as the Federal Territories were concerned, and continued to exist in such Tribunals in the Mexican States, only where their respective Constitution so provided; and that the economical and administrative powers of said Tribunals, were vested in the Executive Depart ments of said Federal and State Governments; the gen

eral non-existence of such Special Mining Tribunals throughout the Mexican Republic on the 27th day of November, 1841, being shown by the Decree of that date, referred to in the foregoing abstract, proposing their re-establishment.

Seventh. That upon the abolition of said "Tribunal General of Mining" by said Decree of May 20th, 1826, in consequence of the incompatibility of its judicial functions with the Federal Constitution of 1824, the Junta, called the "Establishment of Mining," was created, as the medium and instrument through which the Federal Executive should exercise the economical and administrative powers over the subject of Mining, which had been, until then, exercised by said Tribunal, and that, after the overthrow of said Constitution of 1824, and said Constitutional Laws of 1836, and the assumption of absolute powers by Santa Anna, and Nicolas Bravo, as his substitute, by said Decree of December 2d, 1842, said "Establishment of Mining was reorganized into said "Board of Encouragement and Administration of Mining," and "Courts of First Instance of Mining" were established, both being formed substantially upon the models of said "Tribunal General" and "Deputations of Mining.”

Eighth. That, for the same reason above referred to, to wit: That there were neither Mines discovered, nor Miners engaged in working them, (except in the pres ent case) in Upper California, prior to its acquisition by the United States, no "Courts of First Instance" of Mining were ever established there, under said Decree of December 2d, 1842; said Decree directing the estab

lishment of such Courts in the several Departments of the Republic, (with the "previous approval of the Supreme Government,") only when "required," and likewise directing, that the three Territorial "Deputies" to compose such Courts, should be "elected in the manner which is prescribed in the old Ordinance of Mining," that is, by the Miners of each "Real" or "Asiento" of Mines, none of which existed in Upper California.

See said Decree, Tit. 4, Arts. 24 and 25.
Halleck's Mining Laws, p. 44 1.

Ninth. That in the absence of any such Special Mining Courts in Upper California in 1845 and 1846, the First Alcaldes of the Districts within which Mines might be discovered, had jurisdiction to make registry, and deliver judicial possession of such Mines.

Tenth. That the discovery and working of quicksilver mines in the kingdom of New Spain, afterwards the Mexican Republic, was, from the time at least of the assembling of the extraoadinary Cortes in 1811, down to 1845 and 1846, regarded by the Government as an object of the utmost importance to the industry and prosperity of that country, and, as an object, the pursuit of which involving very heavy expenditures, was therefore to be fostered and encouraged, not only by pecuniary rewards, but by special favors, privileges, and exemptions.

Eleventh. That, among the attributes of grace and favor exercised, first by the Viceroy of New Spain upon recommendation of said "Royal Tribunal," and afterwards by the Supreme administrative power of the Mex

ican Republic upon like recommendation of said "Junta de Fomento," for the encouragement of important enterprises in Mining, was that of granting to those who undertook such enterprises, a much larger number of Mines or extent of Mining territory, than was granted in ordinary cases, and that this partiality was fully authorized, both by said Mining Ordinances of 1783, and by the Laws and Decrees of the Mexican Republic.

See Ordinances of 1783, Tit. 6, Arts. 6 and 17; Tit. 10, Art. 17: Tit 11, Art. 1.

Halleck's Mining Laws, pp. 225, 229, 251, 252,

In corroboration of this last proposition, it may not be wholly unnecessary to add a brief extract from the work of Teodosio Lares, a writer of standard authority, on the Administrative Law of Mexico. He says:

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According to them," [the Ordinances of 1783,] “it is beyond all doubt that the title by which Mines are acquired, is the concession; but this does not belong to the administrative power, but to the special tribunals which the same Ordinances establish and to which appertains the cognizance of registries and denouncements, contentious jurisdiction being granted to them over all suits in which are involved questions relative to the acquisition, preservation and forfeiture of Mines. Only in the case of the undertaking of the working (habilitacion) of many Mines (muchas minas) or other considerable enterprise of that kind, does the making of the concession belong to the Government (la Gobierno,) upon the report (informe) of the Tribunal General, to whom application must be made with the petition:"

See Lares "Derecho Administrativo," p. 91.

Returning, then, from this review of Spanish and Mexican legislation, to the first question proposed to be considered in this Brief, to wit: