This feature of the civil law underlies most of the continental systems, as well as those of the Spanish-American republics. It is the regalian doctrine, which also prevails as to royal mines (gold and silver), under the common law of England.1

The equitable estate, the dominium utile, which was vested in the subject, was permanent in its character, and has been defined as an ownership which the possessor could describe and claim as such against all the world, save and except his lord the emperor.

This estate was analogous to the tenancy by copyhold under the English common law, the tenant being seized thereof as against all the world, saving and excepting only his lord.2

It also bears a striking resemblance to the tenure by which a mining claimant holds a perfected but unpatented mining location upon the public mineral lands of the United States.

The theory of the civil law is thus clearly stated by Mr. Halleck:

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"All continental publicists who have written upon the subject lay down the fundamental rule, that mines, from their very nature, are not a dependence of the ownership "of the soil; that they ought not to become private prop"erty in the same sense as the soil is private property; but "that they should be held and worked with the understanding, that they are by nature public property, and "that they are to be used and regulated in such a way as "to conduce most to the general interest of society."

12. Mining laws of France. From the earliest times, the French law placed all mines, whether in public or in private lands, at the disposition of the nation, and made the working of them subject to its consent and to the surveillance of the government.'

The French law divided the subject of mining into three classes mines, minières, and carrières.

1 Bainbridge on Mines, 4th ed., p. 117.

2 Id., p. 200.

3 Introduction to De Fooz on the Law of Mines, p. x, ? 2.

Id., p. xv., 28.

Mines, properly speaking, were those wherein the substances were obtained from underground workings, the extraction of which required extensive development and elaborate machinery. In the language of De Fooz,—

"Mines of this kind constitute a part of the domain of the "state: they are to be ranked as the property of society, "and should be confided to the sovereign authority; and "this authority should have a general control over their extraction. In this consists the system of the regalian "right of mines."

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Taking the act of April 21, 1810, as the basis of the French law, as it existed during the period presently under consideration, we give the following outline of its general features:

Mines.-Those were considered as mines which were known to contain, in veins, beds, or strata, gold, silver, platinum, quicksilver, lead, iron (in veins or beds), copper, tin, zinc, bismuth, arsenic, manganese, antimony, molybdenite, plumbago, or other metallic substances; sulphur, coal, fossilized wood, bituminous substances, alum, or sulphates. To this category, by law of June 17, 1840, salt springs and salt mines were added.

Mines could only be worked in virtue of an act of concession, which vested the property in the concessionaire, with power to dispose of and transmit the same like other property, except that they could not be sold in lots or divided without the consent of the government, given in the same form as the concession. Royalties were payable to the owners of the surface and to the government. No one could make searches for the discovery of mines in land which did not belong to him, unless with the consent of the proprietor of the surface, or with the authorization of the government, subject to a previous indemnity to the proprietor and after he shall have been heard. The proprietor might make searches without previous formality; but he was required to obtain a concession before he could establish a mine-working. From the moment a mine was

1 Halleck's De Fooz on the Law of Mines, p, 10.

conceded, even to the proprietor of the surface, this property was distinguished from that of the surface, and was thereafter considered as a new property. Concessions were obtained by petition, addressed to the prefect, who registered it, and posted notice thereof for a period of four months. Proclamations were required to be made at certain places and times at least once a month during the continuation of the postings. Investigations were required to be made by the prefect of the department on the opinion of the engineer of mines, the results being transmitted to the minister of the interior. In the absence of opposition, concessions were granted by an imperial decree, deliberated upon in council of state. The act of concession determined the extent, which was to be bounded by fixed points taken on the surface of the soil, and by passing vertical planes from the surface into the interior of the earth to an indefinite depth. The engineers of mines exercised, under the orders of the interior and the prefects, a surveillance of police, for the preservation of edifices and the security of the soil. Royalties were payable to the government proportional to the yield, in addition to a fixed tax, called "ground tax." Forfeiture of the privilege granted by the concession resulted from a failure to comply with its terms, or from suspension of the works, if by such suspension the wants of consumers were affected, or if the suspension had not been authorized by the mining authorities.

Minières included the iron ores called alluvial, pyritous earths suitable for being converted into sulphate of iron, aluminous earths and peats, and such substances as could be worked by open pits or temporary subterranean works. The ownership of minières was in the surface proprietor; but they could not be worked by subterranean works except by permission. When worked by open workings, a declaration was required to be made to the prefect of the department. No royalties were paid to the government.

Carrières (quarries) included slates, building-stones, marble, limestones, chalks, clays, and all varieties of earthy or

stony substances, including pyritous earths, regarded as fertilizers, all worked in open cut or with subterranean galleries.

Workings of carrières in open cut were made without permission, under the simple surveillance of the police. When the working was carried on by means of subterranean galleries, it was subject to surveillance as in the case of mines. No royalties were paid to the government.

13. Mining laws of Mexico. We have no immediate concern with the present mining laws of Mexico. The existing code of that republic is a substantial departure from the old order of things, and furnishes the best example of a liberal and progressive system of mining laws of any which has heretofore been adopted in any country. But we are dealing with matters of history, and are called upon to consider the state of the Mexican law of mines at the time of the discovery of gold in California and the acquisition by our government of the territory ceded by the treaty of Guadalupe Hidalgo.

Upon the establishment of the independence of Mexico (1821), it adopted, in reference to mining, the laws existing previous to its separation from Spain, with such modifications only as were rendered necessary by the alteration. from a monarchical to a republican form of government.'

Questions concerning mines and mining rights in the republic depended, in a great measure, during the period which engages our present attention, upon the provisions. of the Spanish ordinance of the 23d of May, 1783; and, in fact, until a comparatively recent period, these ordinances. were still in force, and constituted the principal Mexican code on that subject."

The following is an epitome of such parts of these ordinances as are germane to the present inquiry:

Nature and conditions of mining concessions.-Mines were declared to be the property of the royal crown.

C

1 Rockwell's Spanish and Mexican Law, p. 21.

2 Castillero v. United States, 2 Black, 371.

Without

being separated from the royal patrimony, they were granted to subjects in property and possession in such manner that they might sell, exchange, pass by will, or in any other manner dispose of all their property in them upon the terms on which they themselves possessed it, and to persons legally capable of acquiring it. This grant was made upon two conditions: First, that the grantees should pay certain proportions of the metal obtained to the royal treasury; second, that they should carry on their operations in the mines subject to the provisions of these ordinances, on failure of which at any time the mines of persons so making default should be considered as forfeited, and might be granted to any person who should denounce them.

Rights of discoverer - Pertenencia.-The discoverers of new mineral districts were permitted to acquire three pertenencias, or claims, on the principal vein, a pertenencia being two hundred varas, or yards, along the course of the vein.' The discoverer of a new vein in a district known and worked in other parts was entitled to two pertenencias, either contiguous or separated.

Right to mine, how acquired.-The organization of district tribunals was provided for, called deputations of miners, to whom, within ten days after discovery, the discoverer should present a written statement. This statement was required to contain the discoverer's name and those of his associates, his place of birth, residence, and occupation, together with the most particular and distinguishing features of the tract, mountain, or vein discovered, all of which were noted in the registry of the deputation. Notices of this statement, its object and contents, were required to be fixed to the doors of the church, the government houses, and other public buildings of the town, for the sake of general notoriety. Within ninety days thereafter, the discoverer

The term "claim" is here used as the equivalent of the Spanish word pertenencia (literally, a portion), without regard to the technical definition of the word given by some of the American courts in later years.