§ 40. Introductory and historical-The stannaries and the derivation of the term.- The term "stannary" is undoubtedly derived from the country where tin was mined prior to the Roman invasion. The Latin word is “stannum," which means tin. But this is doubtless a late and scholarly rendering of the word. By the medieval Latin, stannaries meant a tin mine.' And when it is considered that Latin roots and Latin words generally have a significance more or less strongly resembling the customs and places of their derivation, the conclusion is not extravagant that the word "stannary" was understood to mean a place where tin was mined. Thus, we find that the stannators, as they were called, which meant nothing more than the tin miners of the stannary district, met at a very early day on Hingston Down, a tract of highland on the Cornish side of the river Tamar, where they convened what was known as the stannary parliament, being composed of twenty-four stannators, representing the combined tinners of Devon and Cornwall.

The last parliament of the stannaries met at Truro, Cornwall, in 1752.3 These stannators of course made laws for the government of the stannary, and doubtless these laws formed the foundation work, if not the full text, of the customs later recognized by King John and Edward I. and also by Edward III. Here, too, was the genesis of the thought that obtained and was recognized in California by the creation called the "miners' meetings of the district," which convened to enact the district rules."

41. Of the organization of the stannary courts.Naturally enough, the making of laws without a tribunal for their enforcement would, in the experience of mankind, be a useless function. Therefore, the miners of Cornwall and Devon found it necessary to establish, at a very early

1 Century Dict., tit. Stannary. 2 Ency. Brit., vol. 6, p. 377.

Id.; Coll. Mines, p. 136.

43 Bl. Com., p. 80; 4 Inst. 232; Coll. Mines, p. 137; Chart. 3 John;

Chart. 33 Edward; Chart. 50 Ed ward; 16 Charles I., ch. 15.

5 Yale, Mining Claims and Water Rights, pp. 58, 70, 73.

1

date, a court of their own creation, which is recognized at the present time, and is called the "stannary court." It had common-law and chancery jurisdiction over all rights and matters pertaining to the tinners of Cornwall and Devon, excepting those involving land, life and member. It is presided over at the present time by a judge called the "vice-warden;" it was formerly presided over by the stewards of the stannary. An appeal lies to the lord warden of the stannaries, who is the Duke of Cornwall, ex officio, if he is of full age, otherwise the crown or a person appointed by the crown; and from him an appeal lies to the supreme court of adjudication. It may be observed in passing, that the lord warden of the stannaries may, under existing statutes, call to his assistance, in the decision of any appeal, three judges of the superior or supreme court, or the judicial committee of the privy council. The common-law jurisdiction was granted by the charters of John and Edward I., above mentioned."

42. Jurisdiction and functions of the stannary court between tinners, and between tinners and others.- An extensive inquiry into the jurisdiction of the stannary courts would be beyond the scope of this commentary, and more useful to the historian and antiquarian than to the law

13 Bl. Com., p. 80; Dod. Hist. Cornwall, 94; Coll. Mines, p. 136; Ency. Brit., vol. 6, p. 377; Arundell, Mines, ch. 10. For modern statutes of England on this subject, see 6 & 7 Wm. IV., ch. 106; 2 & 3 Vict., ch. 58: 7 & 8 Vict., ch. 105; 11 & 12 Vict., ch. 85; 18 Vict., 32. See note 6, infra.

2 Coll., Mines, p. 13P

6 Id., p. 137. Colorado has a statute legalizing the judgments of all "miners' courts," "Kansas courts" or "miners' clubs." Mills' Ann. Stats., §§ 2586-2589. The necessity for such statutes as this, doubtless was occasioned by the miners of Colorado in the early days, many of whom came direct to this country from Cornwall, following their customs here and adopting the same modes of adjusting their difficulties which existed in their native country.

yer. Its similarity in one respect to the federal jurisdiction may be observed in passing, namely, regarding its jurisdiction over the persons of residents of different states. Thus, a privileged tinner might insist on being sued in his own court; tinners could sue each other only in the stannary courts. Again, a foreigner, that is a non-resident of the jurisdiction, might sue a tinner at large either in the stannary court or in a common-law court,' the reason for which is said to be because their business being highly profitable to the public, it is best that they be not taken there from to attend foreign courts. Likewise it had jurisdiction to grant leases of tin and copper mines. This court had, in addition to the special and customary jurisdiction, also common-law and chancery jurisdiction, which has been said to be of very great antiquity, recognized rather than created by John and Edward I.

ARTICLE C.

Miscellaneous Laws, Customs and Matters.

§ 45. The French and Belgian law.

46. Qualifications required to obtain mining lands and rights

§ 45. The French and Belgian law. By the Code Napoleon of 1810, elaborate provision was made for the working and operation of mines. As we have already seen, there was a dispute between Napoleon and the legislative power as to where the title to mines, considering them as separate from the soil, ultimately reposed; Napoleon claiming them as part of the soil, while the council insisted upon the regalian or at least the sovereign right. A compromise was effected whereby a new creation was said to be made and a new property brought into existence by the discovery of a mine. The most important matter, however, contained

1 Attorney-General v. Lambe, 11 supra; Rowe v. Brenton, 3 M. & R. Beav. 213. 497; Rogers v. Brenton, 10 Q. B. 26.

22 Bl. Com. 80.

3 Attorney-General v. Lambe,

4 See ante, § 4 and notes.

5 Ibid. See also De Fooz, Mines, pp. 37, 38, 40.

in these ordinances and also in the ordinances of 1837, which found place in our law, was the recognition bestowed upon the discoverer, whereby he was given and recognized to possess extralateral rights, and those of marking the boundaries of the claim or concessions; likewise the concession from the state of the mining right, independent from the soil itself, which found recognition in our law by the granting of the patent.1

§ 46. Qualifications required to obtain mining lands and rights. By the law of the stannaries the unyielding rule was enforced that only miners, that is stannators within the district, were accorded the particular rights and entitled to the particular privileges of appealing to their own courts. By the rule enforced within the hundred of St. Briavels, within the forest of Dean, in the county of Gloucester, only free miners had the right to have gales measured out to them. Thus it is we arrive by easy stages

to the provision in our own law that only citizens of the United States, or those who have declared their intention to become such, may acquire mineral land and mining claims on the public domain of the United States by location. This latter qualification, however, as we shall see further on in this work, did not have its sole foundation in the English and continental customs, but found its chief reason for existence in the necessity of the times and of excluding Mongolian foreigners from acquiring mining claims by location." In England, however, the king can grant lands only in pursuance of law and to competent persons.7

De Fooz, Mines, p. 99 et seq. See also De Fooz, Mines, ch. 3, p. 30; Id., ch. 10. p. 87.

23 Bl. Com. p. 80; Coll. Mines, ch. 4. See also ante, § 41-43.

*See ante, §§ 36, 43. Free miner's capacity is said to have been destroyed by 1 & 2 Vict., ch. 43; At

torney-General v. Mathias, 4 Kay & J., 519.

4 R. S. U. S., § 2319.

5 Post, Part I, ch. 5; Part II, ch. 2. 6 See Yale, Mining Claims & Water Rights, pp. 75-77; Id., pp. 34-42. 7Attorney-General v. Mathias,

supra.

CHAPTER III.

OF THE MEXICAN AND SPANISH ORDINANCES.

§ 50. Preliminary observations - Completeness of Spanish ordinances. 51. Gamboa's views-Completeness of Spanish ordinance.

52. Same subject- General Halleck's views.

53. Examples of similarity - Discovery, working, registering, etc. 54. A summary of the foregoing by Mr. Yale.

§ 50. Preliminary observations - Completeness of Spanish ordinances.- Most writers reasonably familiar with the subject, ascribe to Spain a position very early in date in the history of mining law. It is quite certain that the Roman laws governing the acquisition and operation of mines were copied extensively from the laws of Spain in existence long before the conquest of Spain by the Roman Empire. Indeed, while the reproduction of the Spanish law to any considerable extent is foreign to the purpose of this work, even a cursory examination thereof cannot be made without the impression becoming fixed as to the completeness of detail with which those laws dealt with the subject of the operation of mines. And, inasmuch as the district rules in California and the statutes of the United States had for their origin, to a very great extent, the mining ordinances of Mexico and Spain, it is necessary to examine such portions of those ordinances as were reproduced in our own laws, either completely or by a similarity of detail. Prior to the acquisition of the territory embraced within the terms of the treaty with Mexico in 1848, these laws furnished the guide in mining operations within the territory so acquired, and naturally enough, so far as they were applicable, they became the rule of action after that treaty.

51. Gamboa's views Completeness of Spanish ordinances. While it will be necessary throughout this work to refer to the similarity of those ordinances to those laws, as occasion shall require, it is nevertheless essential to an or