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the United States and the said claimants only, and shall not affect the interests of third persons.
SEC. 16. And be it further enacted, That it shall be the duty of the commissioners herein provided for to ascertain and report to the Secretary of the Interior the tenure by which the mission lands are held, and those held by civilized Indians, and those who are engaged in agriculture or labor of any kind, and also those which are occupied and cultivated by Pueblos or Rancheros Indians.
Sec. 17. And be it further enacted, That each commissioner appointed under this act shall be allowed and paid at the rate of six thousand dollars per annum ; that the secretary of the commissioners shall be allowed and paid at the rate of four thousand dollars per annum ; and the clerks herein provided for shall be allowed and paid at the rate of one thousand five hundred dollars per annum ; the aforesaid salaries to commence from the day of the notification by the commissioners of the first meeting of the board.
Sec. 18. And be it further enacted, That the secretary of the board shall receive no fee except for furnishing certified copies of any paper or record, and for issuing writs of subpoena. For furnishing certified copies of any paper or record, he shall receive twenty cents for every hundred words, and for issuing writs of subpoena, fifty cents for each witness; which fees shall be equally divided between the said secretary and the assistant clerk.
APPROVED, March 3, 1851.
THE COMMON LAW
ON ROYAL MINES. ACCORDING to the law of England, the only mines which are termed royal, and which are the exclusive property of the crown, are mines of silver and gold. (a) And this property is so peculiarly a branch of the royal prerogative, that it has been said, that though the King grant lands in which mines are, and all mines in them, yet royal mines will not pass by so general a description. (6)
This prerogative is stated to have originated in the King's right of coinage, in order to supply him with materials. (c) It may be observed, however, (a) 2 Inst. 577. (6) Plowd. 336.
(c) 1 Black. Comm. 294.
that the right of coinage in the earlier periods of European society was not always exclusively exercised by the crown, that the same reason might apply to other metals, as copper and tin, and that in those rude times, the prerog. ative was perhaps as likely to have its origin in the circumstance of those rare and beautiful metals having always been among the most cherished objects of ambition, and which were, therefore, appropriated to the use of the crown, like the diamonds of India, in order to sustain the splendour and dignity of its rank.(1)
Whatever reason may be assigned for this right of the crown, and of whatever value that right may be, it has been long decided, not only that all mines of gold and silver within the realm, though in the lands of subjects, belong exclusively to the crown by prerogative, but that this right is also accompanied with full liberty to dig and carry away the ores, and with all other such incidents thereto as are necessary to be used for getting them. (a)
This right of entry is disputed by Lord Hardwicke in a case where there was a grant from the crown, of lands with a reservation of all royal mines, but not of a right of entry. The Lord Chancellor said he was of opinion that there was by the terms of the grant no such power in the crown, and that by the royal prerogative of mines, the crown had even no such power; for it would be very prejudicial if the crown could enter into a subject's lands, or grant a license to work the mines; but that when they were once opened, it could restrain the owner of the soil from working them, and could either work them itself, or grant a license for others to work them. (6)
This doctrine was, however, declared by Sir W. Grant, V. R., (c) to be liable to considerable doubt, as being inconsistent with the resolutions of the judges in the case just cited from Plowden. It may, therefore, be assumed that the latter case which was solemnly decided by all the twelve judges, has never been overruled ; and Lord Hardwicke's case was decided also upon other groundsviz., upon there not being a sufficient probability of there being royal mines at all, to disturb the possession of a purchaser. (d)
(a) The Queen and Earl of Northumberland, Plowd., 310, 336. (6) Lyddal v. Weston, 2 Atk. 20.
(c) Seaman o. Vaudrey, 16 Ves. 393. (d) See chap. xii.
(1) Much more singular reasons however, for the right of property are given in Plowden's reports; we are there told that this right was considered by the Solicitor General of that day to exist in respect of the excellency of the thing, that the common law appropriated every thing to the persons whom it best suits, as common and trival things to the common people, and because gold and silver were most excellent things, the law had appointed them, to the person who is most excellent, and that was the king. And, finally we are entertained by Plowden himself with an alchemical theory on the origin and transmutation of all metals, which was no doubt designed to throw light upon the subject, but which, it must be admitted, leaves the law of the case in the same condition, however much that of the metals may have been changed. Plowd, 338. 9.
It seems formerly to have been a matter of considerable dispute, as to what constituted a royal mine. By some it was considered to be a principle of common law, that, if any gold or silver was found in metals of a baser nature, that was sufficient to bring the mine within the definition of a royal mine ; while by others, a mine was not to be deemed royal, unless the quantity of gold or silver exceed in value that of the other metal with which it was mixed. The latter opinion was adopted by three of the judges, viz., Harper, Southcot, and Weston, in the case of the Queen and the Earl of Northumberland, (a) although they agree in thinking that as the defendant, in this case, had confessed the production of some royal ore, he was concluded by his not having proceeded to show the relative difference of value, and that the mine must therefore be presumed to be royal. But all the other nine judges were of opinion that the existence of any portion of silver or gold was sufficient to constitute a royal mine. Plowden himself contends, that if the royal metals should bear the expense of extraction the whole should belong to the Crown, and if otherwise, to the owners of the base metals. This decision occurred in the time of Queen Elizabeth, when the prerogative of the Crown was perhaps at its greatest height, and the opinion of the nine judges does not appear to have gained the acquiescence of more recent lawyers. In 1640, the opinion of fifteen leading counsel, amongst whom are the names of Glanvil, Herbert, Grimston, and Maynard, was taken upon the subject. These gentlemen were all of opinion, that, although the gold or silver contained in the base metal of a mine in the lands of a subject, be of less value than the base metal, yet if the gold or silver countervail the charge of refining it, or be of more worth than the base metal spent in refining it, this is a mine royal, and as well the base metal as the gold and silver in it belong to the prerogative of the Crown. (6) It may be inferred, from this opinion, that if the gold or silver did not repay the charges of separation, those metals were not considered as belonging to the Crown. But it would appear, that if the royal metals had been found in a pure state and unmixed with ores of any baser metal, or if the mixture had been merely mechanical and not chemical, and the precious metals could have been extracted without necessarily submitting the whole mass to the ordinary smelting process used in the reduction of the inferior metals, the mine would have been considered a royal mine without reference to the cost of either production or separation. Silver mines are frequently mentioned as existing in England, but it is very questionable whether gold or silver have ever been found in a pure state in England, though small pieces have sometimes been discovered in Scotland (c) and in Ireland. And the silver said to have been produced in England was most probably extracted from lead, as at present. (d)
(a) Plowd. 336.
(6) Heton's Account of Mines, p. 21. (c) Camd. Britt, 915, 923. Boyle on Ores, 182. Martin's Scotland, 339. (d) Pryce's Mineralogia Cornubiensis, 59. Heton's Account of Mines, 2, 5.
In the time of Queen Elizabeth, a society was eatablished on the part of the Crown for the management of royal mines, most probable in consequence of the decision reported by Plowden. Several rules were framed for its guidance, particularly in 1670. The opinion of the fifteen counsel before mentioned, seems to have been generally adopted. (a) But considerable difference of opinion still prevailed in many instances with respect to the actual fact of the royal metals bearing the charges of refinement. The royal refiners and assayers became either less skilful or dishonest. At length, the great case of Sir Carbery Price occurred. (6) This case produced repeated trials at bar, and at nisi prius, and occasioned very considerble ex. citement in almost all parts of the kingdom. Sir C. Price succeeded at last in effectually precluding the claims of the Crown, but the spirit of mining adventure threatened to become extinct from the vexatious and uncertain state of the law. The right of entry in search of royal mines was oppressive in the extreme, for no damages were paid, and any mine which might have been discovered at great expense, and after infinite labour, seemed liable to be claimed as a royal mine. Valuable mines were concealed, and there was universal distrust. Such a state of things called loudly for a legislative remedy. (c)
This remedy was at last afforded. An act was passed, declaring that no mine of tin, copper, iron or lead, should thereafter be taken to be a royal mine, although gold or silver might be extracted out of the same. (d)
This provision was considered insufficient, and another statuto was soon afterwards passed, (e) entitled “ An Act to prevent Disputes and Controversies concerning Royal Mines,” in which is recited the first act, and that many doubts and questions had arisen upon the said statute wherebyi great suits and troubles bad arisen to many owners and proprietors of such mines.
It was then enacted, that all owners or proprietors of any mines in England or Wales, wherein any ore was then, or thereafter should be discovered or wrought, and in which there was copper, tin, iron, or lead, should hold and enjoy the same mines and ore, and dig and work the same, notwithstanding that such mines or ore should be pretended or claimed to be royal mines, any law, usage, or custom, to the contrary notwithstanding.
The third section, however, gives the Crown, or any persons claiming royal mines under it, the right to purchase the ore of any such mines (other than tin ore in the counties of Devon and Cornwall) upon payment, within thirty days after the ore is raised and laid upon the banks of the said mines, and before its removal thence, but after being washed and made merchantable, of the following sums and at the following rates :-For ore in which is copper, £16 per ton; for ore in which is tin, forty shillings per ton ; for
(a) See Sir John Pettus’ Fodinæ Regales. (6) See Sir Humphrey Mackworth's Mine Adventure Expedient, p. 13. (c) Heton, 27. (d) 1 Will. and Mary, c. 30. (e) 5 Will, and Mary, c. 6.
ore in which is iron, forty shillings per ton; for ore in which is lead, £9 per ton; and in default of payment it is declared to be lawful for the owners or proprietors to sell the said ore for their own use.
It is provided by the fourth section that nothing in the act should alter or make void the charters granted to the tinners of Devon and Cornwall, or any of their liberties, privileges or franchises, or the laws, customs, or constitutions of the stannaries of Devon and Cornwall. (a)
It should be observed, in the first place, that the right of the Crown, to all mines of gold and silver, in which the ores of those metals are found, in connection with any other substances than copper, tin, iron, or lead, remains unaffected by these statutes, and that the presence of any of the four metals just mentioned would seem to be sufficient to protect the ore against the claims of the Crown.
The right of pre-emption, reserved to the Crown, and the persons claiming under it, is limited to copper, iron, and lead, and to tin found in any other places than in the counties of Devon and Cornwall.
It might be contended that this right should extend equally to those metals specified in the act which contain no silver or gold at all, as to those which do actually contain them. But this construction must be considered to be excluded by the preamble and purpose of the act. Ores unmixed with any portion of gold or silver were undoubtedly the property of the subject before, and as the statute was not intended to apply to those, the right of pre-emption cannot be held to extend to any ores but those which the Crown might have pretended to claim.
This act seems to have given the most universal satisfaction to all mining adventurers, and the society for the royal mines appears to have been effectually broken up by its salutary operation.
It is stated by Sir W. Blackstone, that the Crown pays no more for the royal metal than the value of the base metal in which it is supposed to be.(6) This might certainly be quite true at the time when the statute was passed. But the value of all the metals mentioned in the act bas since often and materially varied. At present, the price of almost all iron ores is under the sum fixed for the pre-emption-£2 per ton. But it is quite pose sible for very rich and peculiar ores, like the red hæmatite, to reach a price considerably above the rate of pre emption. The price of copper ore is also usually under the sum fixed by the act-£16 per ton ; but the value of some copper ores now found in this country is much above that sum. In general, the sum fixed for tin ore would be greatly inadequate. It follows, therefore, that if it could be proved that any of the ores just mentioned contained any portion of gold or silver, the Crown would have the right of pre-emption at a price which might still seriously affect the interests of the producer. (a) See chap. x.
(6) 1 Black. Comm. 295.