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 MINING LAW

THE

GROWTH

OF

MINING

237

LAW

By R. L. McWilliams MINES have always occupied a peculiar position in the laws of all countries. This has been due primarily to the peculiar interest with which governments from the earliest times have looked upon the precious metals. The value of those metals both to the people for the purposes of commerce and to the government for its maintenance and defense, early brought about certain restric tions connected with the ownership and operation of all mineral deposits. The con trol of them was included in the regalia or royal rights, which the king had by virtue of his prerogative.1 Athens was almost alone in holding that the State had an absolute property in all mines. Under the theory obtaining in other countries, the king could merely grant the right of working mines to certain persons with proper supervision, reserving the right to a certain percentage' of their products. It was decided in Spain as early as 1343 that mines were so vested in the king that they did not pass in his grant of land though not expressly excepted. The grantee might work the mines but was obliged to turn over two-thirds of the product to the king. Upon the separation of Mexico from Spain the former country retained the same principle. That fact was subsequently the cause of considerable controversy when the rights of the miners in California came up for settle ment. In England the rights of the crown ex tended only to the precious metals. Blackstone gives as the reason therefor, that those metals were essential for purposes of coinage.2 We find the reasons for the general rule stated more fully in argument in the early case of The Queen v. The Earl of Northum

berland, decided in 1568.* It was there said that this right belonged to the king, in the first place, because of "the excellency of the thing, for of all things within this realm which the soil produces or yields, gold and silver is the most excellent, and of all persons in the realm the king is, in the eyes of the law, the most excellent." The second reason lay ' ' in the necessity of the thing, " as it was one of the principal duties of the king to defend his subjects, and he could not do so without a plentiful supply of treasure, "and there fore inasmuch as God has created mines within this realm as a natural provision of treasure for the defense of this realm, it is reasonable that he who has the government and care of the people whom he cannot defend without treasure, should have the wherewith to defend them." As a final reason was given, the convenience to the subjects in the way of mutual commerce and traffic. In a later case2 it was decided that if lead, tin, copper, or iron mines had gold or silver mixed in the ore, though of less value than the other metals, that the king could not hold jointly with the subject, and conse quently took the whole. There was, how ever, a strong dissent, and the popular opinion was so strongly opposed to the rule that it was subsequently repealed. . According to the new statute passed in its stead, the king was allowed in such cases to take the pro ceeds, but only upon the payment therefor within thirty days at certain specified rates.* This did not, however, apply to the tin mines in the counties of Devon and Corn wall.

1 Plowden, 310. • I Wm. & M., ch. 30;
 * Plowden, 336.

5,Wm. & M. ch. 6.