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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. (b) 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.

(b) 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. (b) This case produced repeated trials at bar, and at nisi prius, and occasioned very considerble excitement 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)

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This provision was considered insufficient, and another statute 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 whereby great suits and troubles had 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.

(b) 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. (b) 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 has 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 possible 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.

(b) 1 Black. Comm. 295.

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Neither of the royal metals, however, are usually found in this country in union with any other metals but lead, though silver has been found in Huel Alfred, in Gwinear, Cornwall, in green corbonate of copper, and in Huel Ann, in Phillack, Cornwall, with arsenical pyrites. And it may be considered, that, on this account, no fear need be apprehended of the Crown being enabled to exercise its right.

There is a considerable quantity of silver extracted from lead ores: and the rate of pre-emption has been raised by a recent statute, (a) by which, after reciting that in consequence of the lapse of time and change of circumstances, the former rate had been inadequate to the increased expense of raising lead, it is enacted that the rate shall thenceforth be £25 per ton. Since the passing of this act, the price of unsmelted lead has never been beyond the sum of £15 per ton, and even during the late war when the value of lead, like that of other metals, was extraordinarily high, it never reached the sum of £23 per ton. About the year 1807, the price closely approached to that sum, but it is now considerably reduced. Lead adventurers have, therefore, at present, nothing to apprehend from the right of pre-emption. But the subject cannot be dismissed without the observation, that the rate of pre-emption over all the metals ought to have been permanently fixed by reference to the market price of the day.

CHAPTER II.

ON THE RIGHT TO WORK MINES.

A person may have an undisputed right of property in mines, and may yet have no power to avail himself of that right; and again, a person may have a distinct right of possession in mines, as part of his tenement, without being entitled to exert any act of ownership over them.

Such, is the condition of the lord and tenant, in the absence of special custom, with respect to mines in copyhold and customary lands. (b) And there are other persons who, from the limited nature of their interests, or the peculiar quality of their estates, are subject to similar incapacities, and are not permitted to despoil the inheritance by working mines.

It is unnecessary to say that when mines form part of the whole unsevered inheritance, an owner in fee simple possesses, in all freehold lands, an unrestricted right to work the mines in his estate.

It is equally clear, that all owners in fee whose title to mines depends upon custom, against the presumption of law, will be entitled to the right to

(a) 55 Geo. III. c. 134.

(b) See chap. ii.

work them, as the lord against the tenant, or the copyholder or commoner against the lord. For the right has been gained or preserved by the custom founded upon such acts of ownership. The right to work does not, in this instance, depend upon the right of property. The latter right is established by the former.

It has also been seen (a) that the lord is presumptively entitled to work mines in the commons and wastes of the manor, and that the Crown is supposed to have the right to enter the lands of a subject to search for and work mines of gold and silver. (b)

It remains, however, to be seen, in what cases the owner of mines is entitled to work them without the concurrence of the owner of the surface, when the property in mines forms a distinct inheritance and possession.

It has been expressly decided, in a case of some importance, first, that the right to enter and work mines is necessarily incident to a grant of mines, without any express authority for that purpose; and secondly, that this power cannot be restrained by a special power given in the affirmative, which may authorise more acts than would be implied by law, but which will in no wise exclude the full operation of law. (c)

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In that case, Sir Thomas Danby, a former owner of the demesne lands of a manor, had enfeoffed the Earl of Sussex of several closes, except and reserving unto himself and his heirs all the coals in the lands and premises, together with free liberty for Sir Thomas and his heirs at all times thereafter during the time that the said Sir Thomas and his heirs should continue the owners and proprietors of the demesne lands of Farnley, to dig pits, or otherwise to sough and get coals in the said lands and premises, and to sell and carry away the same with carts and carriages, or otherwise to dispose of the same coals at his and their wills and pleasures, making reasonable satisfaction for damages. Afterwards the manor and demesne lands of Farnley were sold by the Danby family to the defendant. An action of trespass was brought by the plaintiff who was then owner of the lands in question, against the defendant, for entering and working for coal. On demurrer, it was argued for the plaintiff, that the heirs of Sir Thomas Danby having ceased to be owners and proprietors of the demesne lands of Farnley, the defendant had no right to enter and dig pits. It was admitted, that if there had been a gen ral exception of the coal to the feoffor and his heirs, the law would imply a right to get it co extensive with the reservation; but it was contended, that the express liberty to take the coal limited the duration of the privilege by mutual consent and contract. Bayley, J., in delivering the judgment of the court, took an elaborate view of the subject, and said, that an exception was distinguished from a reservation by its being part of the thing granted, and in existence at the time of the grant, that it was always taken most strongly (a) Chap. ii. (b) Chap. iii.

(c) Earl of Cardigan v. Armitage, 2 Barn, & Cress. 197, 3 D. & R. 414.

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