derly examination of the subject that we detail at this time at considerable length the salient features wherein a resemblance or identity of provision exists between our own law and the Spanish. Those laws, moreover, were so complete within themselves that it is impossible for a complete examination of mining law to be made without entrenching upon their provisions. Senor Gamboa, a Spanish author, writing on this subject as early as 1760, says: "There is no need to have recourse to other nations for mining ordinances: our own are amply sufficient. In framing them, recourse was had to the laws of Germany as stated and explained by Agricola, although the mines of that country differ from ours in the dimensions assigned to them, and in the mode of managing them when held by partners. It can. not be denied that the laws of the state of Hesse are very copious, little less so indeed than those of the Palatinate, as illustrated and stated by Krebs; but almost every contingency is comprehended in, and provided for by, our own.1

§ 52. Same subject - General Halleck's views.- Speaking of the elaborateness of detail with which the Spanish and Mexican laws covered the subject of mining and mining operations, General Halleck, in his introduction to De Fooz on Mines, puts it thus: "But the miners of California have generally adopted, as being best suited to their peculiar wants, the main principles of the mining laws of Spain and Mexico by which the right of property in mines is made to depend upon discovery and development; that is, discovery is made the source of title, and development or working the condition of the continuance of that title. These two principles constitute the basis of all our local laws and regulations respecting mining rights."2

§ 53. Example of similarity—Discovery, working, registering, etc.- Without reproducing at large the provisions States, 67 U. S. 1, per Clifford, J., Op. VII-4.

1 Gamboa, Com., Rockw. Trans., ch. 1, sec. 12; Rockw., Spanish and Mexican Law, p. 121; United States v. Castillero, and Castillero v. United

2 Halleck, Int. De Fooz, Mines, §§ 5-7; Yale on Mining Claims and Water Rights, p. 71.

of the Mexican ordinances, that is to say, the Spanish law upon the subject, it is sufficient for the purpose of this section and this work, that the mining laws of Spain and Mexico, which were copied in their essential features into our own, made ample provision for rewarding the discoverer by allowing him two extra pertenencias upon a newly-discovered vein. These pertenencias varied slightly, but were generally two hundred varas along the course of the vein, and a varying distance on the dip, according to the inclination from the perpendicular; the greater the inclination, the greater the width of the pertenencia or portion of surface area. A vara is about eleven-twelfths of a yard. Provisions were made for registering, which literally meant recording the mine with the proper officer of the mining district, which was a mining judge if there should be one; the posting of notice at the church of the district, and proclaiming the same each week for a fixed period of time, generally from one to three months; the surveying of the pertenencias, marking of boundaries and the requirement of a specified amount of work, generally a stated number of days within a fixed period of time. Besides these provisions there was a further one called "denouncement." A mine might be denounced for abandonment if the former claimant should neglect to do the required amount of work; likewise, contiguous unclaimed land might be denounced and thus brought within the possession of the claimant, but only a fixed amount of additional ground could be acquired.*

§ 54. A summary of the foregoing by Mr. Yale.- To summarize the matter in hand and its application to the subject before us, we cannot improve upon the statement of Mr. Gregory Yale:

"The real mining code, as far as it can be traced by legal earmarks, has sprung from the customs and usages of the XV, XVII, XVIII; Rockw. Span. and Mex. Laws, pp. 236, 242, 284, 293, 306, 320.

1 Gamboa, Com., ch. VIII; Rockw. Spanish and Mex. Law, pp. 211-13. 2 Gamboa, Com., ch. IX; Rockw. Mines, pp. 221, 223 and 224.

Gamboa, Com., chs. X, XI, XII,

4 See last preceding note.

miners themselves, with rare applications of common-law principles by the courts to vary them. Most of the rules and customs constituting the code are easily recognized by those familiar with the Mexican ordinances, the continental mining codes, especially the Spanish, and with the regulations of the stannary convocations among the tin bounders of Devon and Cornwall in England, and the High Peak regulations for the lead mines in the county of Derby. These regulations are founded in nature, and are based upon equitable principles, comprehensive and simple, have a common origin, are matured by practice, and provide for both surface and subterranean work, in alluvion or rock in situ.' In the earlier days of placer digging in California, the large influx of miners from the western coast of Mexico and from South America necessarily dictated the system of work to Americans, who were almost entirely inexperienced in this branch of industry, with a few exceptions from the gold mines of North Carolina and Georgia, and from the lead mines of Illinois and Wisconsin. The old Californians had little or no experience in mining. The Cornish miners soon spread themselves through the state, and added largely, by their experience, practical sense and industrious habits, in bringing the code into something like system. The SpanishAmerican system which had grown up under the practical working of the mining ordinances of New Spain was the foundation of the rules and customs adopted.

"Senator Stewart has ascribed undeserved merit to the early miners in pronouncing them the authors of the local rules and customs. In his letter to Senator Ramsey of Minnesota (Appendix No. 1 to 3, Wallace's U. S. Supreme Court Reports), he says that the miners were forced, from the necessity of the case, to make laws for themselves; that each mining district formed its own rules and adopted its own customs, the similarity of which throughout the entire mining region, extending over an area of fifty thousand square miles, was so great as to attain all the beneficial results of well-digested general laws.

"They were democratic in their character, guarding against every form of monopoly requiring continued work and occupation in good faith to constitute a valid possession. This letter is an interesting paper, coming from a representative miner, and is correct in stating the nature of the rules and customs and the uniformity of their adoption. But they were not the spontaneous creation of the miners of 1849-50. Historical accuracy ascribes a different origin to them. They reflect the matured wisdom of the practical miner of past ages, and have their foundation, as has been stated, in certain natural laws, easily applied to different situations, and were propagated in the California mines by those who had a practical and traditional knowledge of them in their varied form in the countries of their origin, and were adopted, and no doubt gradually improved and judidiciously modified, by the Americans. This self-evident fact can be admitted without detracting from our national pride. The Romans preserved the mining laws and customs which had prevailed in the gold and silver mines in Spain long before its conquest by Rome; and the legions of Julius Cæsar were taught the mode of mining for tin by the ancient Britons, whose very name is derived from that vulgar metal, and whose laws and customs are still in force in the same localities, originating in a remote antiquity, surviving all changes of conquest, language and race. In acquiring the mines, our magnanimity will enable us to accept the mining customs, in part, from the same people, and not exhibit the selfishness of Great Britain, whose exclusive codes are so perfect and absolute, according to her most distinguished author on mining laws, that the local law of a provincial realm, prevailing before Cornwall and Devon were parts of England, must be rejected as an imperium in imperio. The law of England allows no supremacy of this kind. It tolerates a lex loci as a reasonable usage, and it only admits the written Pandects of Justinian and the decretals of Gregory in the same humble garb of custom.'" 1

1 Yale, Mining Claims and Water Rights, pp. 58, 59, citing Bainb Mines, 557.

PART II.

FORMATIVE PERIOD, INCLUDING THE HISTORY OF THE FEDERAL STATUTE, LIKEWISE THE EARLY STATE STATUTES AND DISTRICT RULES.

CHAPTER I.

OF THE EARLY DECISIONS IN THE UNITED STATES, INCLUDING THE POLICY EXPRESSED IN EARLY STATUTES.

§ 56. Of the general policy of the government in reserving minerals and mineral lands from sale.

57. Earlier statutes - Lead mines reserved from sale.

58. Other reservations in pre-emption and other agricultural acts. 59. Policy of reservation declared and upheld by the courts.

60. President Polk urges a correction of the evil.

61. Further condemnation of the leasing scheme — Further recommendations as to California.

$56. Of the general policy of the government in reserving minerals and mineral lands from sale.- The general policy of the United States as expressed in the statutes, executive acts and proclamations prior to 1845 was to reserve the mineral lands from sale absolutely. These lands, so far as then known, consisted of lead, iron, copper and zinc lands in that part of the United States territory which was then called the Northwest or Indian Territory, and comprised that portion of the country now embraced within the states of Michigan, Wisconsin, Illinois, Iowa, Missouri and Minnesota. This policy was entrenched upon occasionally by acts authorizing the president of the United States to lease certain lead lands. This policy and these acts, as might naturally be expected, were provocative of mischief and endless