CHAPTER II.

FIRST PERIOD: FROM THE FOUNDATION OF THE GOVERNMENT TO THE DISCOVERY OF GOLD IN CALIFORNIA.

? 28. Original nucleus of the national domain. The national government acquired no rights of property within the present boundaries of the thirteen original states, nor in the states of Vermont, Kentucky, Maine, or West Virginia, which were severally carved out of territory originally forming a part of some of the original states.

The first acquisition of national domain which became. subject to the disposal of congress was by cessions of territory claimed by seven of the original states. These cessions, commencing with that by the state of New York (March 1, 1781), and ending with that of Georgia (April 24, 1802), brought within the jurisdiction and control of the federal government all that portion of the present area of the United States now comprising the states of Tennessee, Illinois, Indiana, Ohio, Michigan, Wisconsin, those portions of Alabama and Mississippi lying north of the thirty-first parallel, and that portion of Minnesota lying east of the

Mississippi river. This area, with the exception of Tennessee (in which the public lands were practically absorbed by the claims of North Carolina, the surplus being subsequently ceded to the state),' constituted the original nucleus of our national domain.2

229. Mineral resources of the territory ceded by the states. In this period of our national history but little was known of the mineral resources of the country, and economic minerals were but little known or used."

Gold had been found in moderate quantities in use among the Indian tribes of the present southern states, and the Spaniards, under the leadership of De Soto, were supposed to have discovered gold in North and South Carolina and Georgia; but the existence of this royal metal in any considerable quantity was purely legendary.'

Copper was known to exist in the Lake Superior region. The Jesuit priests had made extensive explorations on the upper peninsula, and had given glowing accounts of the abundance of copper there found. Other explorers confirmed these discoveries, and brought back legends of gold and precious stones."

In 1771, when this region had passed from the dominion of France, a company was organized in London, the Duke of Gloucester being one of the incorporators, to mine copper on the Ontonagon river. What little metal was obtained was shipped to England; but nothing resulted from the venture."

This was practically the extent of public information upon the subject at the time congress passed its first ordinance on the subject of mineral lands.

1 Public Domain, p. 83.

2 Florida was ceded to us in 1821 by Spain (Public Domain, 116), but until a very recent period was not known to contain any substances commercially classed as mineral. Its phosphate deposits on public lands are subject to the general mining laws of congress.

* Public Domain, p. 306.

4

Century of Mining-Trans. Am. Inst. M. E., vol. v., p. 166.

5 Id., p. 169.

Trans. Am. Inst. M. E., vol. xix., p. 679.

30. First congressional action on the subject of mineral lands.-The definitive treaty of peace between Great Britain and the United States, concluded at Paris, September 3, 1783, practically settled our northern boundary, although this was a subject of controversy for several years after. When the lake region became subject to the unquestioned jurisdiction of the United States, the territory was in the occupancy of the Indians, and no settlements were attempted in that section until a much later period.

The first legislative declaration of congress with reference to mineral lands is found in the ordinance of May 20, 1785, entitled "An ordinance for ascertaining the mode of disposing of lands in the western territory."

Under this ordinance surveyors were to be appointed from each state, to act under the direction of the geographer. The territory was to be divided into townships six miles square, and these townships subdivided into sections. one mile square (six hundred and forty acres). Meridian and base lines were to be established, and the rectangular system of surveys was adopted, which has ever since been in general use.

In making these surveys, the surveyors were required. to note all mines, salt licks, and mill seats that should come to to their knowledge.

Reservations were made of four sections in each township for the use of the United States, one section (the sixteenth) for the maintenance of schools in that township, and a certain proportion, equal to one seventh of all the lands surveyed, was to be distributed to the late continental army.

There was also reserved, to be sold or otherwise disposed of as congress should thereafter direct, one third of all gold, silver, lead, and copper mines.

The unreserved sections or lots were to be allotted to the several states, according to their pro rata, and the lands thus allotted were to be sold at public vendue by the commissioners of the loan offices of the several states, by whom,

deeds were to be given. These deeds were to contain a clause, "excepting therefrom and reserving one third part of all gold, silver, lead, and copper mines within the same."

Considering the then state of public information as to the mineral resources of the newly acquired national domain, it is manifest that the reservations in the ordinance were not based upon any economic reasons. The impression undoubtedly existed, as it had from the period of the earliest discoveries and explorations in America, that the newly acquired territory was rich in precious and economic metals, and that some day they might prove a source of national revenue. But it is apparent that the policy of thus reserving a portion of this class of lands was but an adaptation of the system pursued by the mother country in dealing with her colonies, and following the example set by the crown, to whose rights the American confederation had succeeded.

§ 31. Reservation in crown grants to the colonies.In almost all of the crown grants to the colonies, clauses were inserted reserving to the sovereign a certain fixed proportion of the royal metals discovered.

The charter of North Carolina (1584), granted to Sir Walter Raleigh by Elizabeth, contained the following reservation:

"Reserving always to us, our heirs and successors, for all "services, duties, and demands the fifth part of all the ore "of gold and silver that from time to time, and at all times "after such discovery, subduing, and possessing, shall be "there gotten and obtained.""

This form of reservation, is found, with few exceptions, in all of the succeeding grants, viz: the three charters of Virginia (1606, 1609, 1611), which also reserved one fifteenth of all copper; Massachusetts bay (1629); the grant

1 Journals of Congress, vol. x., p. 118.

2 Charters and Constitutions, part ii., p. 1380.

3 Id., part ii., p. 1890, 1898, 1904.

* Id., part i., p. 932.

of New Hampshire by the president and council of New England to Captain John Mason (1629-confirmed 1635);1 the charter of Maryland to Lord Baltimore (1632), upon whom was imposed the additional burden of rendering annually two Indian arrows; the grant of the province of Maine to Sir Ferdinando Gorges (1639); Rhode Island and Providence plantations (1643); Connecticut (1632); the charter of Carolina, granted by Charles the Second to the Earl of Clarendon, Duke of Albermarle, and others (1663, 1665), reserved a royalty of one fourth of the royal metals and the annual payment of twenty marks."

5

The grant of the province of Maine by Charles the Second to James Duke of York (1664), was an exception. In this grant, "our dearest brother covenants and promises "to yield and render to his sovereign annually forty beaver "skins when they shall be demanded," and in return received a grant of all the mines and minerals.

William Penn was required to yield and pay "two beaver skins, to be delivered at our castle of Windsor on the first day of January of every year," in addition to the one fifth part of all gold and silver ores.

It was but natural that the United States in its first dealings with its public lands should provide for similar reservations. It was the force of precedent, rather than considerations of public and economic policy, that suggested those provisions of the ordinance reserving a part of the mineral lands for the use of the government.

232. No development of copper mines until 1845.By resolution of April 16, 1800, congress authorized the president to employ an agent to collect information relative to copper mines on the south side of Lake Superior, and "to ascertain whether the Indian title to such lands as might be required for the use of the United States, in case

1 Charters aud Cohstitutions, part ii., pp. 1271, 1274.