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thing; * * and the common law, which is founded upon reason, appropriates everything to the person whom it best suits, as common and trivial things to the common people, things of more worth to persons in a higher and superior class, and things most excellent to those persons who excel all others; and because gold and silver are the most excellent things which the soil contains, the law has appropriated them (as in reason it ought) to the person who is most excellent, and that is the King."

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3. “For the same reason, he says, it has given him "whales and sturgeons which are in the sea in England—that is, "in the arms of the sea or water within the land, so that the excellency of the King's person draws to it things of an excellent nature. The second reason was in respect of the necessity of the thing; for the King is the head of the public weal, and the subjects are his members, and 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 an 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, as God has created mines within this realm as a natural provision of treasure for the defence 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; but one has need of the things which another has, and they cannot sell or buy together without coin. It belongs to the King only to fix the value of coin, and to ascertain the price of the quantity, and to put the print upon it; for if he (a subject) makes coin, it was high treason by the common law."

Act of Congress for the occupation and sale of the mineral lands of the United States.

In the annual report of the Secretary of the Treasury for the year 1865, the substitution of an absolute title in fee for the indefinite possessory rights or claims under which the mines were held by private parties was earnestly recommended.

The following extracts from the Secretary's report embody the main considerations by which Congress was governed in the passage of the act approved August, 1866:

The attention of Congress is again called to the importance of early and definite action upon the subject of our mineral lands, in which subject are involved questions not only of revenue, but social questions of a most interesting character.

Copartnership relations between the government and miners will hardly be proposed, and a system of leasehold, (if it were within the constitutional authority of Congress to adopt it, and if it were consistent with the character and genius of our people,) after the lessons which have been taught of its practical results in the lead and copper districts, cannot of course be recommended.

After giving the subject as much examination as the constant pressure of official duties would permit, the Secretary has come to the conclusion that the best policy to be pursued with regard to these lands is the one which shall substitute an absolute title in fee for the indefinite possessory rights or claims now asserted by miners.

"The right to obtain a 'fee simple in the soil' would invite to the mineral districts men of character and enterprise; by creating homes, (which will not be found where title to property cannot be secured,) it would give permanency

to the settlements, and, by the stimulus which ownership always produces, it would result in a thorough and regular development of the mines.

A bill for the subdivision and sale of the gold and silver lands of the United States was under consideration by the last Congress, to which attention is respectfully called. If the enactment of this bill should not be deemed expedient, and no satisfactory substitute can be reported for the sale of these lands to the highest bidder, on account of the possessory claims of miners, it will then be important that the policy of extending the principle of pre-emption to the mineral districts be considered. It is not material, perhaps, how the end shall be attained, but there can be no question that it is of the highest importance, in a financial and social point of view, that ownership of these lands, in limited quantities to each purchaser, should be within the reach of the people of the United States who may desire to explore and develop them.

In this connection it may be advisable for Congress to consider whether the prosperity of the treasure-producing districts would not be increased, and the convenience of miners greatly promoted, by the establishment of an assay office in every mining district from which an annual production of gold and silver amounting to ten millions of dollars is actually obtained."

Mr. CONNES, chairman of the Committee on Mines and Mining of the Senate, made the following report, May 28, 1866:

The Committee on Mines and Mining, to whom was referred Senate bill_No. 257, “An act to regulate the occupation of mineral lands, and to extend the right of pre-emption thereto," have had the same under consideration, and beg leave to report a substitute, and to recommend its passage.

By this bill it is only proposed to dispose of the vein mines, and to provide for the segregation of the agricultural lands lying within the mineral regions. The proposition contained in it is to transfer the title of the United States to the possessors at a reasonable rate, and as a part of that rate to secure the payment of a percentage of the net proceeds of the vein mines into the treasury, until the present burdensome public debt shall be paid; this percentage to be in lieu of all tax imposed upon bullion at the mints and assay offices under existing laws.

It is not proposed to interfere with, or impose any tax upon, the miners engaged in working placer mines, as those mines are readily exhausted, and not generally remunerative to those engaged in working them.

Your committee, in arriving at the conclusions they have, and recommending the passage of an act to provide for investing the miners of the country with the fee-simple to their vein mines, have not been unmindful of what the country owes to the enterprising men who have gone into the forests and recesses of the western States and Territories, and who have developed to the commerce of the world the heretofore hidden treasures therein; they who, by patient and often ill-requited toil, without aid from the government in any manner whatever, have shown the ample foundation of the national credit in the mineral resources of the public domain. That policy by which the greatest amount of the precious metals shall be produced, and the greatest individual and aggregate wealth amassed by our own people, must be the wisest and best.

There has been constant fear felt by those who are engaged in promoting these results that some disturbance and interference with vested rights of property would occur. Measures for the sale of the mines and for the taxation of those engaged in working them have, from time to time, been proposed, creating the deepest apprehensions and most seriously affecting mining property. It is a first duty that all such doubts and fears shall be set at rest by the pro

mulgation of a policy which shall give full and complete protection to all existing possessory rights upon liberal conditions, and with full and complete legal guarantees, and to provide the most generous conditions looking toward further explorations and developments..

There are widely differing opinions as to the course proper to be pursued between the population of the mining regions and the people of the east, whose representatives in Congress too often, without exact knowledge on the subject, propose heavy burdens upon the mining industry. The mass of people living in the mines feel that the mines should be left free and open to and within the reach of the hardy explorer and adventurer without tax or impost whatever; nay, feeling the many disappointments and failures to which they are subject in their efforts to acquire wealth from this source, they believe that the government of the United States, which they love, should rather offer rewards from the public treasury for the discovery of mines, than that such discovery should be but the signal for measures of taxation.

They also fear all systems of sale, lest any which should be adopted might result in a monopoly of the mines and their concentration into few hands. They are jealous of all systems for the disposition of the mineral lands which shall allow the lands to be bought by the fortunate possessors of large capital, in extensive bodies, to the exclusion of the men whose only capital consists in their labor. They, nevertheless, will readily acquiesce in any plan which shall confirm existing rights at reasonable rates, and which shall be safe against the evils to which your committee have referred.

The amount proposed is five dollars per acre for the vein mines and all the land adjoining necessary for working them, and the payment of three per cent. of the net product of all such mines into the treasury of the United States, which shall be in lieu of the present impost.

It will be remembered that the present tax was adopted in preference to the five per cent. tax on the gross proceeds of the mines proposed by the House of Representatives in 1864. Any tax on the gross product of mines must be purely a tax upon effort, and must result, as the recent tax on crude petroleum did, in the ruin of those engaged in the business, and a serious limit on production.

Another feature of the bill recommended is, that it adopts the rules and regulations of miners in the mining districts where the same are not in conflict with the laws of the United States. This renders secure all existing rights of property, and will prove at once a just and popular feature of the new policy. Those "rules and regulations" are well understood, and form the basis of the present admirable system in the mining regions: arising out of necessity, they became the means adopted by the people themselves for establishing just protection to all.'

In the absence of legislation and statute law, the local courts, beginning with California, recognize those "rules and regulations," the central idea of which was priority of possession, and have given to the country rules of decision so equitable as to be commanding in its natural justice, and to have secured universal approbation. The California reports will compare favorably, in this respect, with the history of jurisprudence in any part of the world. Thus the miners' “rules and regulations" are not only well understood, but have been construed and adjudicated for now nearly a quarter of a century.

It will be readily seen how essential it is that this great system, established by the people in their primary capacities, and evidencing by the highest possible testimony the peculiar genius of the American people for founding empire and order, shall be preserved and affirmed. Popular sovereignty is here displayed in one of its grandest aspects, and simply invites us not to destroy, but to put upon it the stamp of national power and unquestioned authority.

This should be done generously, for the nation's sake. Those brave men

who have established a high civilization on the far-off Pacific, whose hearts, in the nation's trials, beat so true, and who are now fast closing in upon the civilization of your own west, should he made to feel, not that you are masters, but brethren and friends.

By their loyalty they gave you peace where your power was scarcely felt; by their industry they gave the solid base of silver and gold to the national issues and the national credit, and it is left to history to balance and to tell how, without that peace their patriotism so well preserved, and that silver and gold which their industry gave the nation, the national cause could have been equally benefited. From their earnings, too, came those contributions which will forever form so beautiful a chaplet around their own brows. They set the highest example of a Christian people, patriotic and peaceful, sturdy and loyal to freedom, industrious and charitable. It is for such a people that we legislate. The necessity for the segregation of the agricultural part of the public domain from that which is purely mineral is of the first character. It will be remembered that mining alone cannot supply a single human want, and no community would eventually be so poor as a mining community purely. But the miner is nearly always the pioneer of society where mines exist-shortly, however, to be followed by the agriculturist and the artisan. Mutual production and exchange result, and society is established. Nothing renders society so stable. as giving to the people the title to the land upon which they live. They learn to love it, and are the first to find out its greatest value, and consequently to employ it for the highest uses. Homes of a permanent character are thus established, and the school-house and church follow to light the path and to cheer the way through life. To these ends the earliest ownership should be given to him who, by patient and virtuous toil, proposes to become a cornerstone to community. Every wise consideration demands that the segregation of the agricultural lands from those purely mining should be made, and this bill makes such provision.

Your committee are aware that they tread new ground, but they bring many years of experience to the task, and the light has been used to reach the end which will promote the greatest happiness of the citizen and the glory of the republic.*

The following is a copy of the act of Congress approved August, 1866, to legalize the occupation of the mineral lands, and for other purposes:

SECTION 1. That the mineral lands of the public domain, both surveyed and 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 local custom 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.

SEC. 2. And be it further enacted, That whenever any person or association of persons claim a vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, or copper, having previously occupied and improved the same according to the local custom or rules of miners in the district where the same is situated, and having expended in actual labor and improvements thereon an amount not less than one thousand dollars, and in regard to whose possession there is no controversy or opposing claim, it shall and may be lawful for said claimant or association of claimants to file in the local land office a diagram of the same, so extended laterally or otherwise as to conform to the local laws, customs, and rules of miners, and to enter such tract and receive a patent therefor, granting such mine, together with the right to follow such vein or

* See Congressional Globe for debates on this bill.

*

lode, with its dips, angles, and variations, to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition. SEC. 3. And be it further enacted, That upon the filing of the diagram as provided in the second section of this act, and posting the same in a conspicuous place on the claim; together with a notice of intention to apply for a patent, the register of the land office shall publish a notice of the same in a newspaper published nearest to the location of said claim, and shall also post such notice in his office for the period of ninety days; and after the expiration of said period, if no adverse claim shall have been filed, it shall be the duty of the surveyor general, upon application of the party, to survey the premises and make a plat thereof, indorsed with his approval, designating the number and description of the location, the value of the labor and improvements, and the character of the vein exposed; and upon the payment to the proper officer of five dollars per acre, together with the cost of such survey, plat, and notice, and giving satisfactory evidence that said diagram and notice have been posted on the claim during said period of ninety days, the register of the land office shall transmit to the General Land Office said plat, survey, and description; and a patent shall issue for the same thereupon. But said plat, survey, or description shall in no case cover more than one vein or lode, and no patent shall issue for more than one vein or lode, which shall be expressed in the patent issued.

SES. 4. And be it further enacted, That when such location and entry of a mine shall be upon unsurveyed lands, it shall and may be lawful, after the extension thereto of the public surveys, to adjust the surveys to the limits of the premises according to the location and possession and plat aforesaid, and the surveyor general may, in extending the surveys, vary the same from a rectangular form to suit the circumstances of the country and the local rules, laws, and customs of miners: Provided, That no location hereafter made shall exceed two hundred feet in length along the vein for each locator, with an additional claim for discovery to the discoverer of the lode, with the right to follow such vein to any depth, with all its dips, variations, and angles, together with a reasonable quantity of surface for the convenient working of the same as fixed by local rules: And provided further, That no person may make more than one location on the same lode, and not more than three thousand feet shall be taken in any one claim by any association of persons.

SEC. 5. And be it further enacted, That as a further condition of sale, in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines involving easements, drainage, and other necessary means to their complete developmen; and those conditions shall be fully expressed in the patent.

SEC. 6. And be it further enacted, That whenever any adverse claimants to any mine located and claimed as aforesaid shall appear before the approval of the survey, as provided in the third section of this act, all proceedings shall be stayed until a final settlement and adjudication in the courts of competent jurisdiction of the rights of possession to such claim, when a patent may issue as in other cases.

SEC. 7. And be it further enacted, That the President of the United States be, and is hereby, authorized to establish additional land districts, and to appoint the necessary officers under existing laws, wherever he may deem the same necessary for the public convenience in executing the provisions of this act. SEC. 8. And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.

SEC. 9. And be it further enacted, That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged