Smaw,15 that the California Supreme Court finally abandoned this claim of sovereignty. The opinion in that case by Mr. Justice Field is so important in the history of American mining law that a long quotation from it is desirable, particularly as that quotation will constitute our only reference to the doctrine of the common law as to mines. In that case of Moore v. Smaw the California court said:

"It is undoubtedly true that the United States held certain rights of sovereignty over the territory which is now embraced within the limits of California only in trust for the future state, and that such rights at once vested in the new state upon her admission into the Union. But the ownership of the precious metals found in public or private lands was not one of those rights. Such ownership stands in no different relation to the sovereignty of a state than that of any other property which is the subject of barter and sale. Sovereignty is a term used to express the supreme political authority of an independent state or nation. Whatever rights are essential to the existence of this authority are rights of sovereignty. Thus the right to declare war, to make treaties of peace, to levy taxes, to take private property for public uses, termed the 'right of eminent domain,' are all rights of sovereignty, for they are rights essential to the existence of supreme political authority. In this country this authority is vested in the people, and is exercised through the joint action of their federal and state governments. To the federal government is delegated the exercise of certain rights or powers of sovereignty, and, with respect to sovereignty, 'rights' and 'powers' are synonymous terms; and the exercise of all other rights of sovereignty, except as expressly prohibited, is reserved to the people of the respective states, or vested by them in their local governments. When we say, therefore, that a state of the Union is sovereign, we only mean that she possesses supreme political authority, except as to, those matters over which such authority is delegated to the federal government or prohibited to the states; in other words, that she possesses all the rights and powers essential to the existence of an independent political organization, except as they are withdrawn by the provisions of the Constitution of the United States. To the existence of this political authority of the state-this qualified sovereignty, or to any part of it-the ownership of the minerals of gold and silver found within her limits is in no way essential. The minerals do not differ from the great mass of property, the ownership of which may be in the United States or in individuals, without affecting in any respect the political jurisdiction of the state. They

15 17 Cal. 199, 79 Am. Dec. 123. See the earlier cases of Merced Mining Co. v. Fremont, 7 Cal. 317, 68 Am. Dec. 262, and Boggs v. Merced Min. Co, 14 Cal.

may be acquired by the state, as any other property may be; but when thus acquired she will hold them in the same manner that individual proprietors hold their property, and by the same right-by the right of ownership, and not by any right of sovereignty.

"In Hicks v. Bell the court states correctly that according, to the common law of England mines of gold and silver were the exclusive property of the crown, and did not pass in a grant of the king under the general designation of lands or mines; but it assumes that this right of the crown-this regalian right-vested in the state. hardly necessary,' in the language of the opinion, 'at this period of our history, to make an argument to prove that the several states of the Union, in virtue of their respective sovereignties, are entitled to the jura regalia which pertained to the king at common law.' It is in this assumption that the error of the decision consists. Under the general designation of 'jura regalia' are comprehended, not only those rights which pertain to the political character and authority of the king, but also those rights which are incidental to his regal dignity, and may be severed at his pleasure from the crown and vested in his subjects. It is only to certain rights of the first class that the states, by virtue of their respective sovereignties, are entitled. It is to the second class that the right to the mines of gold and silver belongs.

"In the great case of The Queen v. The Earl of Northumberland, 1 Plowden, 310, which was argued before the Barons of the Exchequer and all the Justices of England, it was held by their unanimous judgment 'that by the law all mines of gold and silver within the realm, whether they be in the lands of the queen or of subjects, belong to the queen by prerogative, with liberty to dig and carry away the ores thereof, and with other such incidents thereto as are necessary to be used for the getting of the ore,' and also 'that a mine royal, either of base metal containing gold or silver, or of pure gold and silver only, may, by the grant of the king, be severed from the crown, and be granted to another, for it is not an incident inseparable to the crown, but may be severed from it by apt and precise words.' This case was decided in 1568 during the reign of Queen Elizabeth, and continues unto this day. an authoritative exposition of the doctrines of the common law. It is conclusive to the point that the right to the mines was not regarded by that law as an incident of sovereignty, but was regarded as a personal. prerogative of the king, which could be alienated at his pleasure.

"No reasons in support of the prerogative are stated in the resolution of the judges, and those advanced in argument by the queen's counsel would be without force at the present time. Onslow, the queen's solicitor, says Plowden 'alleged three reasons why the king shall have mines and ores of gold and silver within the realm, in what

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soever land they are found. The first was in respect to the excellency of the thing, for of all things which the soil within this realm produces or yields gold and silver is the most excellent, and of all persons in the realm the king is, in the eye of the law, most excellent; and the common law, which is founded upon reason, appropriates everything to the person whom it best suits, * * * and, because gold and silver are the most excellent things which the soil contains, the law has appointed them (as in reason it ought) to the person who is most excellent, and that is the king. * * * The second reason was in respect to the necessity of the thing; for the office of the king, to which the law has appointed him, is to preserve his subjects; and their preservation consists in two things, viz., in the army, to defend them against hostilities, and in good laws. And an army cannot be had and maintained without treasure, for which reason some authors, in their books, call treasure the sinews of war; and therefore, inasmuch as God has created mines within this realm as a natural provision of treasure for the defense of the realm, it is reasonable that he who has the government and care of the people, whom he cannot defend without treasure, should have the treasure wherewith to defend them. * * * The third reason was in respect of its convenience to the subjects in the way of mutual commerce and traffic; for the subjects of the realm must, of necessity, have intercourse or dealing with one another, for no individual is furnished with all necessary commodities, but one has need of the things which another has, and they cannot sell or buy together without coin.'

*

*

"It would be a waste of time to show that none of the reasons thus advanced in support of the right of the crown to the mines can avail to sustain any claim of the state to them. The state takes no property by reason of 'the excellency of the thing,' and taxation furnishes all the requisite means for the expenses of government. The convenience of citizens in commercial transactions is undoubtedly promoted by a supply of coin, and the right of coinage appertains to sovereignty. But the exercise of this right does not require the ownership of the precious metals by the state, or by the federal government, where this right is lodged under our system, as the experience of every day demonstrates. The right of the crown, whatever may be the reasons assigned for its maintenance, had in truth its origin in an arbitrary exercise of power by the king, which was at the time justified on the ground that the mines were required as a source of revenue.

* * *

"It follows, from the views, we have thus expressed, that the first position advanced by the defendants cannot be sustained; that the gold and silver which passed by the cession from Mexico were not held by the United States in trust for the future state; that the ownership of them

is not an incident of any right of sovereignty; that the minerals were held by the United States in the same manner as they hold any other public property which they acquired from Mexico; and that their ownership over them was not lost, or in any respect impaired, by the admission of California as a state.” 18

The final conclusion of the California court in this matter has ever since been acquiesced in, where the question has been between the United States as a landed proprietor and the state in which the United States land is situated.1 It must not be supposed, from the foregoing, however, that New York, for instance, is in error in insisting that it owns the gold and silver within its borders. While Moore v. Smaw is law as to United States domain within a state, the New York doctrine would seem to be perfectly sound for New York and other states where the United States never has owned any public lands. The case of Shoemaker v. United States 18 bears this out. In that case,

which adopted the opinion of the lower court on the point, it was decided that by the grant of Charles I to Lord Baltimore all veins, mines, and quarries of gold, silver, gems, and precious stones in Maryland passed to the grantee in fee, he yielding to the king the fifth part of all gold and silver ore which should happen from time to time to be found there; that after the Revolution the confiscation act of 1780 passed by Maryland ended the proprietary's title and vested it in the state of Maryland, which had by the Revolution become entitled also to the king's one-fifth; and that the act of cession of 1791, conveying the District of Columbia to the United States, passed the title to gold and silver mines in the District of Columbia to the United States. This decision certainly favors the New York theory for the thirteen original states,19 but the doctrine of Moore v. Smaw is the one that prevails where what we call the American mining law exists.

Though Moore v. Smaw was decided in 1861, it was not until the act of July 26, 1866, that Congress attempted to regulate mining, and actually legislated on the subject. The power of Congress was, of course, ample.20 The statute of July 26, 1866,21 was the first general

16 MOORE v. SMAW, 17 Cal. 199, 218-222, 79 Am Dec. 123. For the situation in England to-day, see St. 1 W. & M. c. 30, and St. 5 W. & M. c. 6, and the case of Attorney General v. Morgan, [1891] 1 Ch. 432.

17 Doran v. Central Pac. R. Co., 24 Cal. 245.

18 147 U. S. 282, 13 Sup. Ct. 361, 37 L. Ed. 170.

19 See, also, Fremont v. U. S., 58 U. S. 542, 15 L. Ed. 241.

20 "With respect to the public domain, the Constitution vests in Congress the power of disposition and of making all needful rules and regulations. That power is subject to no limitations. Congress has the absolute right to prescribe the times, the conditions, and the mode of transferring this property,

21 14 Stat. 251, c. 262.

statute providing for the conveyance of mines or minerals by the United States, though curiously enough its title, "An act granting the right of way to ditch and canal owners over the public lands and for other purposes," gives no indication of that fact.22 The act of February 27, 1865, had previously recognized miners' rights by providing "that no pending action between individuals in any of the courts for the recovery of a mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land on which such mines lie is in the United States, but each case shall be judged by the law of possession."28 The act of 1866 was, however, the first general federal mining statute.

The Act of 1866.

The essential features of the act of 1866 were: (1) The declaration "that the mineral lands of the public domain, both surveyed und unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States." 24 (2) A provision giving extralateral rights. (3) A provision for the patenting of lode claims, with a provision for adverse suits. (4) A provision recognizing and protecting water rights vested by priority of possession.

In this act, incomplete and faulty in many respects though it was, Congress recognized its moral obligations. As the United States Supreme Court said before its passage: "We know, also, that the territorial Legislature [of Nevada] has recognized by statute the validity and binding force of the rules, regulations, and customs of the mining districts. And we cannot shut our eyes to the public history, which informs us that under this legislation, not only without interference by

or any part of it, and to designate the persons to whom the transfer shall be made. No state legislation can interfere with this right or embarrass its exercise; and, to prevent the possibility of any attempted interference with it, a provision has been usually inserted in the compacts by which new states have been admitted into the Union that such interference with the primary disposal of the soil of the United States shall never be made." Gibson v. Chouteau, 13 Wall. (U. S.) 92, 99, 20 L. Ed. 534; Shannon v. U. S. (C. C. A.) 160 Fed. 870.

22 In Yale on Mining Claims and Water Rights, 12, the explanation of the act's title is made. The mining bill was tacked onto a bill in regard to ditches in order to expedite the mining bill's passage.

23 13 Stat. 441, c. 64, § 9, now Rev. St. U. S. § 910 (U. S. Comp. St. 1901, p. 679), given in appendix.

24 14 Stat. 251, c. 262.