Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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MINES

II.315.1

MINES. The importance of mining as a source of national wealth and an element of progress in civilization scarcely needs explanation. Each of the three great productive industries exploits a natural kingdom for the benefit of man. What agriculture does for the vegetable, and the chase (as a modification of which we may rank the raising of cattle, poultry and fish) for the animal, mining does for the mineral or inorganic world. Its products are, in general, less perishable than those of agriculture, and hence more convenient for storage, export, manufacture, etc. On the other hand, its sources of supply are not perpetual, and, once exhausted, can not be renewed. A wasteful agriculture, or a reckless destruction of forests or of animal species, such as food fishes, can not inflict upon a nation such irretrievable loss as the exhaustion of its mineral resources. Moreover, these resources are not equally distributed among nations. Those who possess and utilize them—especially in the cases of coal and iron—secure great industrial and commercial advantages. Hence, vigor in the development and economy in the use of mineral resources have always been urged as a national duty.

II.315.2

—For those who seek to refer the actual practice of nations to general principles, this argument may suffice to justify the special relations which so many governments have assumed toward the mining industry and the ownership of mineral deposits, as distinguished from agriculture, and the ownership of land. At an earlier period the sovereign's peculiar right to the metallic treasures of the earth was referred to a divine ordinance. A survey of the history of mining and mining jurisprudence shows, however, that its characteristic features in different nations have been the result of various local causes, rather than of general principles, dogmatically applied.

II.315.3

—Probably the first metals used were those which occur in a native state, such as gold, silver and copper. The two former, being lustrous and malleable, and resisting oxidation under ordinary circumstances, became in the earliest periods of which history speaks, and have remained to this day, objects of high esteem and a convenient medium of exchange and measure of value. Bronze, or ancient "brass," was very probably discovered accidentally through the fusion of impure ores of copper. Its use appears to have antedated in many nations—perhaps not everywhere—that of iron. Without this latter metal, apparently, the extensive ancient workings for gold and copper, discovered by several travelers in Siberia, were conducted by a nomadic race, before the irruption of the Tartars. These operations resembled those of the prehistoric miners of this continent, e.g., the copper miners of Lake Superior, the mica miners of North Carolina, the turquoise miners of New Mexico, etc. They are cited here as among the evidences that the industry of mining was in the beginning. like every other, carried on by individuals, and probably without permanent ownership of the land.

II.315.4

—The Phœnicians had abundance of metals, but not to any considerable extent in their own country. They both mined and traded in the Mediterranean countries for gold, lead, silver and iron, and even sailed as far as Great Britain, where they obtained tin. But the claim of the sovereign to all such treasures appears to have been asserted only as one of the rights of the conqueror. When a country was conquered, not only the mines, but all other forms of property, were at the victor's mercy. Extensive mining operations were carried on by the Egyptian kings, of whose cruel administration of these works Diodorus, quoting partly from Agathareides, gives a pathetic picture. It is probable that the greater portion of their miners were purchased slaves, though convicts and prisoners of war furnished a part. To prevent conspiracies and escapes, the different gangs were placed under overseers who were not their countrymen. They were forced to labor naked, under dreadful hardships and severities. The stronger ones hewed the rock in the mines, the half-grown youths carried it to the surface, persons over thirty years of age (so soon was their vigor destroyed) were set at the easier task of crushing it in mortars, and the women and old men ground it fine in hand mills.

II.315.5

—The mining of the ancient Greeks is divided into three periods: the first comprising the working of mines in the islands, begun by the Phœnicians; the second, the operations on the mainland. principally those of the Athenians; the third, the development of important mines in the provinces of the Macedonian Philip, which subsequently fell. with the rest of the Greek mines. into the hands of the Romans. During the first period. the proprietors of the island mines were chiefly the petty rulers of the islands. Gold, silver, copper and iron were the products. Perhaps the only mention of the payment of anything like a royalty is that which records the annual tribute of one-tenth the revenue of the gold and silver mines of Siphnos, sent to the shrine of the Delphic Apollo. In later times. this payment having been discontinued, the mines were drowned by the rising of the neighboring sea—a result attributed to the wrath of the neglected god. In the second period the administration of the Athenian mines appears to have begun with the working or leasing of them by the republic Before the Persian war the annual income from this source (about $30,000 at the beginning of that war) was distributed among the citizens. Afterward, on the advice of Themistocles, this distribution ceased, though the state still received payments from the mines. Probably the more ancient mines, as the property of the republic, were rented on special terms, but the general code encouraged the enterprise of private adventurers by permitting taxes on gross production, and inviting both citizens and friendly aliens to work under the light royalty of one twenty-fourth part of the net profits. The labor was performed by slaves, hired from their owners. The overseers, and probably. in many cases, the lessees themselves, were slaves also The slave miners of Athens amounted to many thousands. Once, at least, they revolted and, taking possession of Mount Sunium, made it the base of many destructive raids upon Attic territory. A certain governmental supervision was exercised over mining An official director of mines granted permits for "prospecting" (i.e., searching for ore), and there were laws determining the dimensions of mining "claims."

II.315.6

—In western Europe mining was carried on at an early day by the tribes subsequently tributary to Rome. The Etruscans obtained iron from Elba; the Salassians, in Lombardy, turned the course of the Po, and extracted gold from its bed. The tribes of Gaul were producers of gold, silver, copper and iron, and the Britons of gold, silver, iron, lead and tin. For the latter metal the Phœnicians traded with them secretly; and the Romans, by following the Phœnician ships, solved at last the mystery of the Cassiterides. But the most abundant ancient supply of nearly all the metals named was furnished by Spain. The Spanish, Sicilian and Sardinian mines, operated by the Carthaginians, furnished the wealth by the aid of which Carthage paid her numerous mercenaries and waged her costly wars with Rome.

II.315.7

—The first two Punic wars delivered into the power of Rome the mines of Sicily, Sardinia and Spain. Those of Asia Minor, Greece, Macedonia, Asia, Egypt, Gaul and Britain were afterward added, about in the order named, by successive conquests, and became thus the property, not of private citizens, but of the state. Yet the Roman law secured the "mineral right" to the landowner, when the land was held by complete title; and doubtless many mines in Italy and elsewhere, outside the conquered provinces, were so held by individuals. The situation was therefore somewhat like that of the United States, which owns the mineral rights of the public domain only, while the private owners of land in any state or territory own its mineral contents also, according to the Roman and the later English common law.

II.315.8

—The Romans at first farmed their revenues, and under this general policy awarded leases of their mines periodically. Ordinarily the lessees employed as workmen purchased slaves. The system was in the highest degree wasteful and ruinous, as well as cruel. The lessees, anxious only to gain as much profit as possible during their limited term of possession, robbed the mines without regard to economy or permanence and security. Vast numbers of slaves (Polybius speaks of 40,000 in a single district in Spain) were kept constantly at work, with a severity of discipline not surpassed by that of the early Egyptians. During the period between the close of the first Punic war and the establishment of the empire, the production of metals under this system was immense; but it ended with the practical exhaustion of many of the mines. The emperors effected considerable reforms. They worked the mines through responsible officials, instead of leasing them out to speculators; and since the government could not well purchase such vast numbers of slaves as had previously been owned by private mine lessees, a system securing a sort of feudal service from the inhabitants of the mining regions was gradually introduced, and the slaves who continued to be employed were rather convicts than purchased barbarians or captives. At the same time the emperors appear to have encouraged private enterprise in the discovery and exploitation of new mines. Trajan allowed the Dacian gold mines to be worked by an association (collegium aurariorum); and Valentinian I. gave free permission to prospect for metals, under obligation of paying to the crown a portion of the subsequent profit. But before these measures could completely restore the prosperity of the mining industry of the empire, the irruptions of the barbarians practically destroyed it. The Byzantines held out longest; but after the seventh century they surrendered their mines to the conquering Arabs. Those of Asia Minor, Thrace and Greece were the last which the empire retained. The Arabs in Spain, the Franks in Gaul, and the Goths under Theodoric in Italy, gleaned something for awhile in a rude way from the abandoned mines. But beyond some hints of this, history is silent on the subject, until some centuries later, when an entirely new principle—that of the German "mining freedom" (bergbaufreiheit)—bringing with it a new and active mining industry, makes its appearance in Europe.

II.315.9

—This is first seen as a local custom, prevailing with remarkable uniformity at all the ancient centres of German mining, and securing to every citizen in the community the right to mine wherever, as the first discoverer of metalliferous deposits, he could do so without encroaching upon mining rights previously acquired. The exact origin of this custom is not known; but it is highly probable that it sprang out of that early form of communism, the markgenossenschaft, in which the mark was held in common, and redistributed annually among the inhabitants for the purposes of agriculture. Such a redistribution of mining rights could not be fairly made, since the operations of mining (much slower and more laborious then than now) often required years of preliminary development, and the skill required was not possessed by all. Naturally, therefore, the habit would be formed of permitting those to own the mines who had the knowledge to find and work them, and of making their tenure dependent on their perseverance in this work. In this existence of an estate in minerals, entirely independent of the estate in the surface and soil, lies the distinctive character of the German mining law. It doubtless existed as far back as the tenth century in Saxony and Thuringia. The earliest written records of it are much later, as will be seen. but they are elaborate and complicated codes, and bear internal evidence of the antiquity already attached to the immemorial customs which they reduce to systematic form. The German miners, adventurously penetrating into the Roman and Sclavonic countries, carried their bergbaufreiheit with them; and the earliest of their codes which we possess were issued in Latin or German in those colonies. The first is the mining treaty of 1185 between Bishop Albrecht. of Trent, and the German immigrants. The Iglau code, published about 1250, was rapidly extended over Moravia, and was adopted within twenty-five years at Schemnitz, in Hungary. The code of Schladming, in Styria, dates from 1307; that of Massa, in Tuscany, is half a century earlier. All these are supposed to have had a common origin in the bergrecht of Freiberg, in Saxony, i.e., in the unwritten customs of Freiberg or of the Harz, whence the first miners went to Freiberg in the twelfth century. The Freiberg code itself can not be traced back of 1232, in written form. A brief summary of the Iglau code will suffice to indicate the nature of all. This curious document is in Latin, and bears the seals of Wenzel, king of Bohemia and Moravia, and his son, the margrave of Moravia. After a pious and wordy prelude, it ordains that certain officials shall fix the boundaries of mining claims, and defines the dimensions of these and the conditions on which the possessory title of the miner may be acquired and maintained. The full size of the surface granted to a single mine, when unoccupied space permits, is 479 feet along the course of the vein by 196 feet in width. A certain proportion of the claim is set apart for the king, another for the town, or the original owner of the land. Special rights of administration and judgment are accorded to the mining courts of Iglau, and various principles and methods are laid down for the decision of intricate cases of conflicting claims. The thrifty burghers of this "mining city" (bergstadt) won fame and profit by keeping the provisions of this code a secret, and acting, under their guidance, as arbitrators in questions of mining jurisprudence referred to them from other provinces. One of the most frequent causes of dispute was the privilege conferred upon the party driving a deep adit, which, by drawing the water from the mines of other parties, and by facilitating their ventilation, was held to entitle the owner to a share in their profits. To secure this reward, and other incidental "adit privileges," the adit must be a certain distance below any other similar work, and must be prosecuted under certain conditions.

II.315.10

—The above will sufficiently show the general nature of the medieval German mining law. It should be added that gold and silver only (including ores containing one of these metals) were at first the objects of it. Other minerals were the exclusive property of the landowner.

II.315.11

—Simultaneously with the public appearance of the codes, which, as has been said, embodied customs already old, arose the conflicting claims of the emperor and of the territorial sovereigns. The latter, as the actual owners of many of the mines, and the possessors of general tax-laying authority over the rest, had vantage-ground, which in the course of time they strove to extend. But the emperors had to create their claim out of little or nothing. Frederick I., on the strength of a parliamentary decree applying to Lombardy only, and speaking of the argentaria and salines as sources of royal income, attempted to include the German mines in the same category of regalia, and by the ingenious device of granting the mines of Trent to the bishop (who had them already), secured a quasi recognition of his prerogative, as a precedent. In fact, the emperors seem at no time to have intended to take possession of the mines, but only to establish the right to get revenue, independent of the local legislatures and sovereigns, from this convenient source. Meanwhile, the territorial rulers saw their advantage in promptly adopting and employing for their own interest the theory of "royalty"; and finally the owners of the soil made themselves heard, asserting their rights (upon which constant encroachment was attempted) to certain non-precious metals. The thirteenth century presents a confused conflict among emperor, prince. landlord and miner. The famous "golden bull" of Charles IV. (1356) simplified the conflict by surrendering the claims of the emperor to the electors, and by excluding also the landowner, and putting all metals, precious and base, together with salines, under one rule. namely, the right of the territorial sovereign. The practical result was the exercise of mining royalty by all the princes. whether electors or not; but the "golden bull" was only a "quit claim" deed of this right The sovereigns were left to assert it as best they might, against the ancient. wide-spread democratic principle of "mining freedom." The issue of this conflict was different in different states. In the main, however, the essential victory remained with the miners. The princes granted the right of free exploration, and the right of the discoverer, reserving to themselves only the usual tribute, and the police and magisterial jurisdiction. The basis of mining rights was however, nominally, the grant of the prince, not the ancient mining customs of the people; and hence, in not a few exceptional cases, the sovereign exercised the power which had thus established "mining freedom" to set it aside, granting whole mining districts without reference to the discovery right. One of the first steps taken by sovereigns to confirm by exercise their rights of royalty, was the endowment of certain cities and districts with peculiar privileges on account of their mines. Turin and Vallensasco, in Italy; Truro and Penzance, in Cornwall; and many localities in Hungary, Silesia, Switzerland. Sweden, etc., are instances outside of Germany. In the latter the mining cities were very numerous. The famous seven mining cities of the Harz, and the "ancient and honorable free mining city of Freiberg," in the realm of the Saxon counts of Meissen, as well as many other privileged cities of Saxony, important mining centres down to recent times, may be cited as examples.

II.315.12

—In the sixteenth and seventeenth centuries an elaborate system of jurisprudence grew up in Germany, varying somewhat in the different states, and affected with occasional exceptions, yet based in the main upon the principles above described. It included free, or nearly free, exploration (buildings not being imperiled, and damages to surface or to agriculture being chargeable to the explorer); the immediate "denunciation" (muthung) of a discovery made; the issue of a preliminary permit; the survey, location and regular lease of the mining ground, after the deposit had been sufficiently exposed; the obligation to prosecute the work continuously, unless natural causes, such as foul air or excess of water, prevented; the payment of royalty (usually one-tenth or one-twentieth of gross product) to the elector; the division of a mining enterprise into shares (kuxe, usually 128 in number); the furnishing of mine timbers by the crown forester, or by private owners under agreements and regulations supervised by the crown officers, etc. The driving of adits was the privilege of the prince, but it was very generally conceded to private parties, with the appertaining advantages and revenues. It was common to give the prince, "by ancient usage," one-eighth of the stock in every leased mine. He was, however, liable to assessment like any other stockholder, and forfeited his stock by non-payment. Mining leases covered a certain area of the surface and a space below the surface, either bounded by vertical planes or by surfaces parallel with the dip of the vein. The first was called a square location (gevierdtfeld) and the second an inclined location (gestrecktfeld). The possessor of an inclined location was generally allowed to work about twenty-one feet (three and one-half lachter or fathoms) into the hanging wall (roof) of his vein, and an equal distance into the foot wall (floor), and to extract all ore found within these limits, as well as in the vein proper, which he might follow indefinitely downward (in die ewige teufe). The simple square location was applied to beds, masses, and even to true veins, when they dipped not more than fifteen degrees below the horizontal.

II.315.13

—The principle of mining freedom took little root in Great Britain; and perhaps the sole trace of it now remaining is the custom of "tin-bounding" in Cornwall and Devon. The number of Cornish mining terms which betray a German origin, shows that the enterprising German miners of the middle ages probably found their way to that region, and left their mark upon both institutions and language. There is reason to believe, however, that the British crown at one time laid claim to all mines. Certainly it has from time immemorial claimed by prerogative all gold and silver, and not until the reign of William and Mary was the enjoyment of tin, copper, lead or iron mines, even though their ores contain intermixtures of the precious metal, secured to the subject. The ground of the claim to gold and silver was thus quaintly stated from the bench in the celebrated "case of mines," in the reign of Elizabeth: "The common law, which is founded upon reason, appropriates everything to the persons whom it best suits, as common and trivial things to the common people; things of more worth to persons of a higher and superior class; and things most excellent to persons who excel all others: 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 most excellent, and that is the king" The right to mines of pure gold or silver, or of either of these, mixed with other metals than tin, copper, lead or iron, appears to be still a royal prerogative, but it is not exercised; and perhaps there are no known cases in which it could be exercised. Practically in Great Britain (and absolutely under the English common law as held in this country) the mineral right of whatever kind originates in the ownership of the soil, although it may be alienated and separately conveyed by the act of the owner, who must, however, to make such conveyance effective as a basis for mining, expressly grant also the right to enter upon his land, dig and carry away the minerals, etc. The exception above mentioned, namely, the custom of tin-bounding in Cornwall and Devon, is spoken of as already "ancient" in a charter granted to the thinners of those districts in the third year of King John. It was thus defined in a modern case at law (Rogers vs. Brenton, 10 Q. B., 26): "That any person may enter on the waste land of another in Cornwall, and mark out by four corner boundaries a certain area; a written description of the land so marked, with metes and bounds, and the name of the person for whose use the proceeding is taken, is recorded in an immemorial local court, called the stannary court, and proclaimed at three successive courts held at stated intervals; if no objection is successfully made by any other person, the court awards a writ to the bailiff of the court to deliver possession of the said bounds or tin-work to the bounder, who thereupon has the exclusive right to search for, dig and take to his own use all tin and tin ore within the described limits, paying to the landowner a certain customary proportion of the ore raised, under the name of 'toll-tin.' The right descends to executors, and may be preserved for an indefinite time, either by actually working and paying toll, or by annually renewing the four boundary marks on a certain day." The custom in Devonshire, it is said, is a freehold interest descending to the heir, and unaccompanied by the obligation to pay any toll to the landowner. It would probably be held void in law, since even the Cornish custom was pronounced by Lord Denman, in the case above cited, to be sustainable only by actually working and paying toll. Bounding, he says, is a direct interference with the common law right of property; and a custom, to have such force as that, must be not only immemorial but reasonable—as the custom of holding tin-bounds without working would not be. The practice has now fallen into disuse; but the stannaries court (created by the consolidation of the several stannary courts) survives, with both common law and equity jurisdiction, concurrent with that of the ordinary courts, in matters arising out of mining. The only mining legislation of Great Britain at the present day is that which supports a school of mines, provides for the collection of mining statistics. maintains inspectors, and imposes certain regulations for the order and safety of the miners. Two statutes (35 and 36 Victoria, chaps. 76 and 77, 1872) contain these regulation.

II.315.14

—The mining laws of Australia and Canada follow the principle of English law, modified by old grants of the crown, and by the fact that in these colonies large areas of unoccupied public land exist, on which the local governments may authorize mining upon such terms as they may choose. Their leases or sales of mining rights on such lands are simply acts of the landowner under the common law.

II.315.15

—The new codes of mining law in the German states (beginning with that of Prussia, adopted in 1866, which the others more or less closely imitate,) express two tendencies: the one, toward a wider recognition of the rights of the landowner, the other, toward a withdrawal of the government from undue interference with mining, and a reduction of its burdens of taxation and tribute. The inclined location is no longer granted; and the miner is confined to the space inclosed by vertical planes drawn through his surface boundaries. The permission of the landowner is necessary to preliminary explorations; though he may be compelled by the decision of the authorities to give such permission, yet only upon receiving a bond of indemnity. A mining grant is not forfeited by ceasing to work it, unless the authorities, for sufficient reason, insist upon the resumption of work, in which case the grantee has a right of protest and appeal, and six months' grace. The numerous fees, royalties and tithes of former times are done away, and in their place a moderate tax is imposed; in Austria, Saxony and Bavaria, a tax on net profits; in Prussia, a tax on the value of the products of 1 per cent. for the general treasury of the state, and 1 per cent. to cover the expenses of supervision. Iron mines are generally, if not universally, free of royalty to the state. Benefit societies for miners (knappschaftsvereine) are established by law. Bog iron ore; gold nuggets in the soil (in Prussia); gold placers (in Bavaria); coal (in Saxony and some other states); iron (in Silesia); salt and salines (in Hanover); mineral springs and amber (except in East Prussia and West Prussia, where amber found in the sea or on the beach belongs to the state) are exceptions to the mining law, and belong to the landowner.

II.315.16

—A brief notice of the mining laws of France will suffice, first, because the mining industry of that country is limited (though in 1810, when the statute of Napoleon was promulgated, the productive mines of Rhenish Prussia belonged to France, and these mines were actually worked according to French law until 1865); secondly, because the French system, unlike the English, the German and the Spanish. has had little to do with the development of our own mining law. By the decree of 1791, after the abolition of feudal rights, the mines and mineral deposits of France were declared to be the property of the nation, and the government was authorized to make "concessions" of them, such concessions to be always temporary only, and the preference to be given to the landowner, to whom was moreover expressly reserved all that part of every mineral deposit lying within one hundred feet of the surface. These provisions amounted nearly to a prohibition of general mining. The law of 1810 declared, in accordance with the Code Napoleon, that the property in minerals goes with the property in land, but that the government may separate the two, granting the mineral right, even in perpetuity, to another than to the landowner. on the simple condition of a tribute paid to the latter. Mines only are subject to these conditions. In this class certain underground workings are included; minieres (open works) and carrieres (quarries) are left to the landowner. The tax paid to the state is 2 per cent. of the gross product.

II.315.17

—The Spanish ordinance of mines, published in 1783, has been substantially in force ever since in Mexico, and was the law in the territories which the United States acquired from Mexico by conquest and purchase. It asserts the right of sovereignty over all species of metals, and authorizes the concession of mining rights only so long as the mine is worked. It is also very full in its directions as to the manner of mining, attempting to correct, in this way, the tendency to reckless robbery of mines, inevitable under such tenure. The size of claims (invariably "square locations") is regulated by the dip of the vein as shown by a shaft thirty feet deep; the length of the claim along the course of the vein being 200 yards (varax) and the width from 100 to a maximum of 200 yards, according to the dip, the smallest width being granted to a claim on a vertical vein, and the greatest on a vein departing forty-five degrees or more from the vertical. These measures are so calculated that under the most frequent circumstances (the dip varying from forty-five degrees to sixty degrees from the horizontal) the vein will pass out of the claim at the vertical depth of 600 feet, at which depth, the ordinance naively remarks, it is commonly much exhausted. It need hardly be said that the introduction of steam engines and the construction of deep adits has long since rendered it possible to mine to the depth of over 3,000 feet. The taxation of Mexican mines has always been heavy, especially in the form of the export tax on bullion. Spain did for her western provinces what Carthage and Rome had done for Spain, and the spirit of her legislation, the desire to wring as much plunder from the rich mines as possible, has lingered in the land. It is believed that a more liberal treatment of the mining industry, with the view of attracting and protecting foreign capital. will hereafter obtain.

II.315.18

—We are now prepared to explain the history of the relation of our own government to the mining industry. It is based entirely upon the common law. True, the early English colonial grants asserted some crown rights in the metals. Thus the great charter of King James to the London and Plymouth companies (1606) provided that one-fifth of the gold and silver, and one-fifteenth of the copper, which might be discovered, should belong to the crown. But long before the revolution, the right of landowners to all minerals beneath the surface appears to have been recognized. Before the adoption of the federal constitution, the confederate congress, in prescribing a form of grant of patent for lands in the western territory, reserved "one-third part of all gold, silver, lead and copper mines within the same for future sale or disposition." It was not, however, until the acquisition of the lead regions of the upper Mississippi. under the Louisiana treaty with France, in 1803, that the question assumed practical importance. Under the power given by the constitution to congress to dispose of the public lands, the lead mines were reserved from sale, and in 1807 the president was authorized to lease them for not more than five years. The policy of reserving from the operations of ordinary grants of public land mineral lands and lands containing known salines or mines, has continued to the present time, and is incorporated in all the formal statutes relating to the subject. It is held, however, that land not officially set apart as "mineral," and not known to contain salines or mineral deposits, being once conveyed by the government to a private purchaser or settler, all subsequently discovered mineral deposits belong to him. The attempt to lease the mines on the public domain, shown in the act of 1807 above mentioned, was the first and last experiment of our government in that direction. The leases covered tracts at first three miles square (afterward reduced to one mile) and bound the lessees to work the mines with due diligence, and return to the United States 6 per cent. of the ores obtained. The first leases were not issued until 1822, and the product did not become considerable until 1826, when it began to increase rapidly. After 1834, however, in consequence of the immense number of illegal entries of mineral lands at the Wisconsin land office, the miners and smelters refused to pay rents any longer, and the government was unable to collect them. Meanwhile, by a forced construction (afterward declared invalid) of the act for leasing the lead mines, hundreds of leases were granted to speculators in the Lake Superior copper region. where a wild excitement prevailed from 1843 to 1846. In the latter year, the bubble burst; the issue of permits and leases was suspended as illegal; and in acts passed in 1846 and 1847 the policy of selling the mineral lands outright was adopted by the government. The act of July 11, 1846, authorized the sale of the reserved mineral lands in the states of Illinois and Arkansas, and the territories of Wisconsin and Iowa, at an increased rate of $1.25 per acre, as a minimum, but still reserved them from pre-emption. The act of March 3. 1847, creating the Chippewa land district in Wisconsin territory, ordered a geological survey, granted pre-emption to parties in possession of lead mines by occupation from discovery, or by lease under the United States, by paying $5 per acre, and provided for public and private sales at the same price. The act of March 1, 1847, ordered the sale of the copper mines in the state of Michigan, after a geological survey; precedence to be given to lessees of the government, who need pay but $2.50 per acre, the minimum at public sales being $5. The act of March 3, 1849, organizing the department of the interior, transferred to it the powers exercised under the preceding act by the treasury, and still earlier by the war department, with regard to the mines of the United States. The act of Sept 26, 1850, repealed the acts of 1847, and placed the mineral lands within the districts referred to on the same footing, as to sale, private entry and pre-emption, as other public lands of the United States, saving the rights of the lessees.

II.315.19

—The application of the policy of sale to the public mineral lands west of the Missouri encountered peculiar embarrassments, arising from two main causes. Large portions of this territory were acquired from Mexico; and the United States, in assuming sovereignty, assumed also, it was held, the ownership of the metals which pertained to sovereignty under the Spanish ordinances. In the case of existing Spanish agricultural grants, not expressly conveying the mineral right, that right would thus belong to the United States, not to the grantees. But our courts finally held that when such a grant was confirmed by a United States patent the mineral right was thereby conveyed to the grantee, whether it had been originally so conveyed to him by the grant or not, because the United States patent gives a full title in fee according to the common law. By this decision a great source of difficulty was removed, although certain evils resulted from the acquisition in this way, by agricultural grantees, of much larger areas of mineral land than could have been acquired under the ordinary operations of our laws. A second and more extensive difficulty in disposing of the mineral lands in the Rocky mountains and on the Pacific slope arose from the fact that, under the excitement beginning with the discovery of gold in California, and continuing as a motive power ever since, population rushed into these regions in advance of the public surveys, indispensable to an orderly sale of the lands. The government was taken by surprise; and for nearly twenty years it permitted miners to enter upon the public lands, dig and carry away gold, silver, copper, quicksilver and other valuable minerals, without attempting to assert its dominant ownership. A system of possessory titles, good as against all claimants except the United States, grew up under local customs and regulations, which the subsequent legislation of congress recognized, as a matter of temporary policy, to a mischievous extent.

II.315.20

—The first mining on the Pacific coast after the acquisition of the region by the United States, was the "gulch" and "placer" mining for gold in California. (It is difficult to fix exactly the dates of the beginnings of mining in the different territories. The following list is approximately correct: The rediscovery of gold in California—previously known to hunters, Indians and Jesuit missionaries—took place in 1848. Gold mining began practically in Arizona in 1850, in Oregon in 1852, in Colorado in 1859, in Idaho and Montana in 1860. Quicksilver mining on a regular scale began at New Almaden, California, about 1851. Hydraulic mining began in California about 1853. The mining of silver ore from the Comstock lode, in Nevada, in the neighborhood of earlier gold diggings, began about 1853.)

II.315.21

—The placer miners of California early adopted local rules with reference to the size of their claims, and the use of the water necessary to work them. Since the country was swarming with eager adventurers, it was natural that actual occupation should be recognized as necessary to maintain title, and that abandonment should work forfeiture in favor of some new comer. As to the size of claims, they were usually restricted according to the nature of the deposit, as a "gulch," "creek," "bar," or "flat" digging, etc. In gulches and creeks, however, it was common to grant to each claimant a certain number of linear feet along the stream by the whole width, whatever it might be. When the miners proceeded, by an easy transition, to "quartz mining," i.e., to the development of the quartz veins which they had discovered as the sources of the accumulated wealth of the placers, they carried over to this new industry such of the placer rules as they could conveniently apply, and, in particular, the two above mentioned, of necessary continuous occupation and of a single definite dimension of claim. Very likely there were among them German miners who remembered the gestrecktfeld of their fatherland. At all events, it was this, and not the square location of Mexico, that was generally adopted in the quartz mining camps, and has been incorporated into the federal statutes. The principle of recording claims, and deciding conflicts in favor of priority of record, is another feature of the American mining customs, as of all German mining codes.

II.315.22

—Unfortunately, there was no uniformity in the customs of different localities. The inhabitants of a certain district held a mass meeting, declared the boundaries of their district as they chose (usually not encroaching on any other already established, unless by way of division of a district found to be inconveniently large), fixed the size of claims and the amount of work necessary to hold them, elected a recorder, and adjourned—to meet again and alter their laws if they should see fit. Often the first settlers (three men have been known to hold a mass meeting, and thus fix the limits and laws of a new district) arranged matters more liberally for themselves than for the hundreds who rushed in afterward; and with the larger population there came the imperative reform. The records were, in many places, carelessly kept, laying the foundation for much litigation and opening the door to fraud.

II.315.23

—As has been remarked, the United States passively allowed this system or chaos of local customs to exist for many years. The miners on the public lands were technically trespassers; yet by a series of decisions in the state courts, and finally in the United States supreme court (3 Wallace, 97). it was held that their possessory rights, as against all claimants except the United States, were capable of being transferred, taxed, and valued in money. Finally, an act of congress (July 27, 1865,) declared that actions for the recovery of mining claims should not be affected by the paramount title of the United States, but should be judged according to the law of possession. The principle was recognized again in the act of May 5, 1866. concerning the boundaries of Nevada, in which the possessory titles of citizens holding mining claims were recognized, with a distinct proviso that they should not be considered as titles in fee. The act of July 25. 1866, granting the right of way and other important privileges to the Sutro tunnel (draining the Comstock lode in Nevada). excepted from its grants that lode and all others then in actual possession of other persons, unless the same should be abandoned or forfeited under local laws. It also provided—the first and last instance of the kind in our federal legislation—that the mines "drained, benefited or developed by the tunnel" should be subject to certain payments in return. This general principle is found in Spanish ordinances (Tit. X, Art. 3), which provide for rewards and royalties to the constructors of adits, or for the assessment of mines benefited thereby, in the proportion of the benefit derived, to pay the expense of such construction. A similar feature is found in the German codes. The act of July 26, 1866, was the first general law on the subject of the mines on the public lands. It declared (Sec. 1). that the mineral lands, surveyed or unsurveyed, were open to exploration and occupation by all citizens or those who had declared their intention to become citizens, subject to such regulations as might 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"; (Sec 2), that any person or association claiming a vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar or copper, having expended thereon not less than $1,000. and having a good possessory right under the local laws or customs, might file a diagram, conforming in dimensions to the said customs. "enter such tract and receive a patent therefor, granting such mine, together with a right to follow such vein or 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), that the application and diagram should be posted and advertised for ninety days, to permit the presentation of adverse claims, after which (there being no adverse claims) the survey should be made, covering one lode only, and the patent issued on payment of $5 per acre and costs; (Sec. 4), that the survey might be varied from the rectangular form to suit the circumstances and local customs, but "no location hereafter made shall exceed 200 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, together with a reasonable quantity of surface for the convenient working of the same, as fixed by local rules," and "no person may make more than one location on the same lode, and not more than 3,000 feet shall be taken in any one claim by any association of persons"; (Sec. 5), that local legislatures might provide rules for working, "involving drainage, easements and other necessary means"; (Sec. 6), that the appearance of adverse claims should cause a stay of proceedings for patent, until these had been settled by the courts. The remaining sections refer to additional land districts, rights of way for roads and ditches, the use of water (determined by priority of possession for mining, agricultural or other purposes), and the rights of settlers upon agricultural lands under the pre-emption and homestead laws.

II.315.24

—The act of July 9, 1870, provided for similar proceedings as to "placers," ("including all forms of deposit excepting veins of quartz or other rock in place"), such claims not to exceed 160 acres for each person or association, and to be sold at $2.50 per acre.

II.315.25

—The act of 1866 proved defective in practice, not only as to certain administrative details, but also in three important particulars: it covered mines of gold, silver, cinnabar and copper only; it left too much latitude to the mining customs, to which it nevertheless gave the full rank of law; and it was obscure as to the nature of the title conferred by the patents granted under it. The last point requires a brief further explanation. The terms "tract," "patent," "land adjoining shall be sold," etc., and the provision for payment by the acre, all pointed to a title in fee; but the usage of miners, the conditions of such localities as Virginia City, Nevada, (where a large town had been built, and town lots were daily bought and sold, on the land comprising the Comstock vein outcrop), and finally, in accordance with these influences, the construction of the statute by the highest courts (overruling in some instances contrary decisions below), settled the title to apply to the vein only, with the surface as an easement for convenient working. Entering upon the surface of another's patented claim, to explore for veins alleged to be other than the vein named in the patent, was therefore no trespass.

II.315.26

—The act of May 10, 1872, now incorporated in the revised statutes, corrected the three defects above named, as well as others less important. It extended (Sec. 2, or Rev. Stat., Sec. 2320) the privileges of location to lodes bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits. It overruled in some particulars the local customs, providing (Sec. 2) that 1,500 feet should be the maximum length of a mining claim, 300 feet on each side of the middle of the vein at the surface the maximum, and 25 feet on each side the minimum, width; that no location should be made before the discovery of the vein within the limits of the claim (abolishing the custom of locating so-called "extensions" of neighboring mines); that the end lines of each claim should be parallel. It declared (Sec. 3, or Rev. Stat., Sec. 2322) that all lode locators in good standing under local regulations not in conflict with United States laws, should "have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes and ledges [these terms are synonymous] throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically although such veins, lodes or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations," but that this right of possession outside the location should be confined between vertical planes extending through the end lines of the location, and should not authorize the owner to enter upon the surface of a claim owned or possessed by another. It prescribed (Sec. 5, or Rev. Stat., Sec. 2324) that locations and records should be made in a certain way, and that on all claims located after the date of the act, $100 worth of labor should be performed annually as the condition of possessory title, until patents should be taken. On claims located be fore the act, $10 worth of labor for each one hundred feet along the vein was required annually to maintain title. The time for the first annual expenditure on this class of claims was subsequently extended (act of March 1, 1873) to June 10, 1874, and again (act of June 6, 1874) to June 10, 1875. These concessions relieved individual cases of hardship, but served to prolong for some years the mischievous practice, under local customs and rules contrived for the purpose of holding large numbers of claims without either working or purchasing them. Since 1875 this practice is extinct; the annual work (called by our western miners "assessment work") required by the United States law making it too expensive a speculation.

II.315.27

—Thus, by a long and irregular course, the mining law has reached a form unprecedented as a whole in history, yet resembling in details here and there some features still maintained, or already discarded, by foreign nations. It grants to locators, and the United States patent to mineral land confirms, a peculiar right. which may be summed up as the ordinary common law right to the surface and all beneath it. plus certain addition and minus a certain deduction—the addition being the right of the locator to follow veins of which his land contains the apex, down ward, between the end planes of his location into his neighbor's land; and the deduction being a similar right possessed by the adjoining neighbor. The meaning of the terms "vein, lode or ledge," "top or apex," etc., which the law does not define, has been more or less completely settled by the courts. By the act of February 18, 1873, deposits of iron or coal are excepted from the act of 1872, as are all the public mineral lands in Michigan, Wisconsin and Minnesota. The act of May 5, 1876, excepts also Missouri and Kansas. A separate act (March 3, 1873, Rev. Stat., Sec. 2347-2352) provides for the pre-emption, entry and purchase of coal lands, 160 acres by an individual, or 320 (or under certain conditions 640) acres by an association, at a minimum price of $10 per acre for lands more, and $20 per acre for lands less, than fifteen miles from a completed railroad. Under these provisions, speculation in coal lands by the parties engaged in building railroads in Colorado, Utah, Montana and Arizona is now active. That the United States mining law is in many respects still defective can scarcely be denied. The large amount of costly litigation under this system, as compared with the almost total absence of mining litigation proper in the older states, under the common law system, is a striking and unanswerable fact. In 1879 a special public land commission, consisting of the commissioner of the general land office, the director of the geological survey, and three civilians appointed by the president, was authorized by congress to consider the whole question of the land laws, surveys, etc. This commission, consisting of J. A. Williamson, commissioner. etc., Clarence King, director, etc., and Messrs. Thomas Donaldson, A. T. Britton and J. W. Powell, made an elaborate "preliminary report" in February, 1880, including a large amount of testimony, and the draft of a new land code recommended to congress. As regards the mineral lands. its most important features are the final abolition of mining districts and district officers, the sweeping adoption of "square locations," i.e., the ordinary common law system now obtaining in the older states, and certain provisions tending to force possessory owners to become purchasers within a reasonable period. No legislative action has been taken; and it is doubtful whether the prejudices of the mining communities will permit so radical a change. The committee's report and accompanying documents will remain, however, a treasury of information on this subject.

II.315.28

—One means for encouraging the mining industry has been employed by all civilized governments, namely, the collection and publication of mining statistics. In this country the several states have performed the work most irregularly. Pennsylvania, New Jersey, Ohio, Indiana, Michigan, Nevada, California, and perhaps some other states, at present keep up more or less complete statistical bureaus. The federal government began by doing it very imperfectly in the census and in the statistical bureau of the treasury; then, more carefully, for the public lands in and west of the Rocky mountains, through special commissioners reporting to the secretary of the treasury (1866-76); then through the reports of the director of the mint at Washington and of the various topographical and geological surveys of the interior and war departments. There is now a perceptible tendency, on the part especially of those states which have done the least, to develop their own resources and industries, to extend the national geological and statistical work, heretofore confined chiefly to the national lands, into the states. The surrender of state sovereignty, when it comes in the form of a deliverance from state responsibility and expense, seems to have no terrors, even for the sternest opponents of centralization.

II.315.29

—The police regulation of mining operations is, in the United States, confined to the protection of the lives of workmen, and does not extend to the prevention of waste or the securing of permanence in mining. It is exercised. if at all, by state and local authorities only.

II.315.30

—Hon. A. S. Hewitt, in a presidential address before the American institute of mining engineers, in June, 1876, gives a table, prepared by the writer. showing the production of leading metals and minerals in the United States during the first century of national independence. The following table has been constructed from that, by condensation, correction and addition, bringing it to the end of 1881. It claims approximate accuracy only, but may serve to show the growth of the mining industry of the country.

II.315.31

Table.  Click to enlarge in new window.*54

II.315.32

—The following table is intended to show the general extent of the mining industries of the principal European states. It is mostly from official sources, and gives the product of the year 1879. The units employed are, for everything but gold and silver, metric tons of 1,000 kilogrammes, equal to 2,205 pounds avoirdupois, nearly; for gold and silver, kilogrammes (one kilogramme equals 2,679 pounds or 32,151 ounces Troy). With the exception of coal and salt, the table represents the product of metallurgical rather than mining industry, and does not record, therefore, the crude ores which are exported from certain countries. The export of iron ore from Spain was, in 1879, about 2,700,000 tons; and several hundred thousand tons were exported from Algiers. Chili exported, in 1879, 49,390 tons of copper, of which 80 per cent. was in bars and ingots, 17¼ per cent. in regulus, and 2 8/6 per cent. in ores. Australia produced, in 1879, 8,133 tons of tin, and Bauca and Billiton about 10,000 tons.

II.315.33

Table.  Click to enlarge in new window.

II.315.34

—The following miscellaneous statistics may also be of interest in this connection. The production of lead in 1881 is estimated (in metric tons) as follows: Spain, 120,000; Germany, 90,000; England, 67,000; France, 15,000; Italy, 10,000; Belgium, 9,000; Greece, 8,000; Austria, 6,000; Russia, 1,500; United States, 110,000; total, 436,500; which is nearly the whole ascertainable product of this metal in the world—that of Asia being unknown, and that of Australia and South America insignificant. The European product of spelter (metallic zinc) for 1880 is estimated (in metric tons) as follows: Germany, 99,405; Belgium, 65,000; England, 22,000; France, 13,715; Austria, Poland, etc., 3,200; total, 203,330. Great Britain produced, in 1881, about 10,000 metric tons of tin; Australia and Tasmania, 12,000; and Banca and Billiton, 11,000.

II.315.35

—BIBLIOGRAPHY. The following works may be consulted with profit on the subject of this article: Classic authors, particularly Strabo, Pliny and Diodorus; Dr. J. F. Reitemeir's Geschichte des Bergbaues und H¯ttenwesens bei den Alten Völkern, Gottingen, 1785; Count Kaspar Sternberg's Geschichte des Bergbaues und der Berggesetzgebung des Königreichs Böhmen, Prague, 1838—this work contains the full text of the oldest German mining code, that of Iglau; the Journal für Bergrecht, Bonn, monthly; the Annales des Mines, Paris, monthly; Councillor R. Klostermann's Das Preussische Berggesetz, also the editions and commentaries of Oppenheim and Huysson; the codes and commentaries of Hesse, Nassau, Saxouy, etc.; the German Cyclopædias of Zedler, Halle, 1733, Meyer and Brockhaus, Leipzig, 1877, and later—articles Bergbau, Bergrecht, Bergherr, etc.; R. P. Collier's Treatise on the Law Relating to Mines, London, 1849, Philadelphia, 1853; Prof. J. D. Whitney's Metallic Wealth of the United States,Philadelphia, 1853; J. A. Rockwell's Compilation of Spanish and Mexican Law in Relation to Mines, etc., New York. 1851—there is a larger work on the subject by Gen. H. W. Halleck; Gregory Yale's Legal Titles to Mining Claims and Water Rights in California, San Francisco, 1867; the Reports of the United States Commissioner of Mining Statistics. Washington, 1867-76; the Reports of the various United States Geological Surveys, and of the Director of the Mint; George A. Blanchard and Edward P. Weeks' Law of Mines, Minerals and Mining Water Rights, San Francisco, 1877; Henry N. Copp's United States Mining Decisions. Washington, 1874, United States Mineral Lands. Washington, 1881, and Land Owner, Washington. monthly; the Report of the Public Lands Commission, Washington, 1880; Hon. A. S. Hewitt's A Century of Mining and Metallurgy in the United States, Trans. Am. Inst. of Mining Engineers, vol. v., Easton, Pa., 1877. Several parliamentary "blue-books" contain much information as to the administration of mines in Great Britain. The writer's views on the United States mining law in its different stages will be found more at length in the successive Reports of the Commissioner of Mining Statistics; a communication to the Public Lands Commission, appended to its report. A paper on the Eureka-Richmond Case, Trans Am Inst. of Mining Engineers, vol. vi, 1878. and the files of the Engineering and Mining Journal, New York, weekly. The above list might be indefinitely extended, particularly as to foreign authorities; but the works named will be found to contain abundant further references for those who desire to pursue the subject still more widely or deeply.

R. W. RAYMOND.


Notes for this chapter


54.
The ton in this table is the gross ton of 2.240 pounds avoirdupois. The flask of quicksilver is 76½ avoirdupois. The barrel of petroleum is 42 gallons.

Footnotes for MOHAMMEDANISM

End of Notes


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