CHAPTER XXVI.

MINES ON THE PUBLIC DOMAIN.

PRECIOUS METALS AND OTHER VALUABLE DEPOSITS.

The precious-metal bearing States and Territories of the public domain are California, Colorado, Oregon, Nevada, Idaho, Montana, Wyoming, Utah, New Mexico, Arizona, Dakota, and Washington.

Lead and copper lands in Arkansas, Missouri, Iowa, Michigan, Minnesota, and Wisconsin were sold under special mining laws, the mineral being conveyed with the soil, and are included in cash entries.

Under the acts of 1866 and 1872, and the placer act, there have been patented to June 30, 1880, 3,978 lode or vein claims, containing 38,435.11 acres, at $5 per acre, realizing $197,778, and 1,303 placer claims, containing 110,186.03 acres, at $2.50 per acre, realizing $288,767; total, 5,281 claims, containing 148,621.14 acres, and realizing $486,545.

MINERAL RESERVATIONS IN NORTHWEST TERRITORY.

In the ordinance of May 20, 1785, for the disposal of lands in the "Western Territory," it is ordered that there shall be reserved "one-third part of all gold, silver, lead, and copper mines, to be sold, or otherwise disposed of as Congress shall hereafter direct," the deed to be given by the Commissioners of the Loan Office, with a clause of reservation in the words of the act.

The mineral resources of the country at that time were but little known. Our pres ent Western precious metal regions, and the base-metal belt of the Mississippi, were almost entirely within the domain of France and Spain. The copper regions of Lake Superior had just come into possession of the United States by the definitive treaty of peace with Great Britain. Some gold and lead had been found in the Southern colonies-now States-but not on public domain, and economic minerals were but little known or used. The reserving clause in the ordinance of 1785 sugge-ts the reservations as to minerals, by way of royalty or sovereign dues, in some of the crown charters for colonization in America, and further shows the existing doubt as to the policy of the Government in relation to holding, leasing, or selling mines and mineral

lands.

CONGRESSIONAL ACTION.

By resolution of April 16, 1800, Congress authorized the President to employ an agent to collect material information relative to the copper mines on the south side of Lake Superior. This contained a clause "and to ascertain whether the Indian title to such lands as might be required for the use of the United States in case they should deem it expedient to work the said mines, had been extinguished." Thus Congress at this period seems to have had in mind the direct working and control of mines by the United

States.

March 3, 1807, Congress, by section 5 of an act for the sale of certain lands now in Ohio and Indiana, provided that lead mines in Indiana, with as many contiguous sec

tions of land to each as the President might deem necessary, should be reserved for future disposal by the United States; and

Any grant which may hereafter be made for a tract of land containing a lead mine which has been discovered previous to the purchase of such tract from the United States shall be considered fraudulent and null; and the President of the United States shall be, and is hereby, authorized to lease any lead mine which has been or may hereafter be discovered in the Indiana Territory, for a term not exceeding five years. This inaugurated the policy of the United States of leasing mineral lands.

It will be noted that this reserving clause contained a proviso for reserving lands for mine easements. These reserved adjacent sections were afterwards used by the lessees for dumpage-grounds, and the timber thereupon used for smelting. The leases provided for this.

Congress, March 25, 1816, in an act relating to settlers on the public lands of the United States, provided

That in all cases where the tract of land applied for includes either a lead mine or salt spring, no permission to work the same shall be granted without the approbation of the President of the United States.

This provision of law was continued by two separate acts until March 3, 1819. The House of Representatives, February 8, 1823, by resolution, asked for information in regard to the mining regions of the West. The President in reply transmitted such information as he at that time had (see Ex. Doc. 128, first session Eighteenth Congress). This Congressional inquiry and the reply related to lands containing base metal and iron.

By act of March 3, 1829, Congress conferred authority on the President to expose to sale as other public lands "the reserved lead mines and contiguous lands in the State of Missouri,” with this qualification, that at least six months' public notice should be given, “with a brief description of the mineral region in Missouri and the lands to be offered for sale, showing the number and the localities of the different mines (then) known, the probability of discovering others, the quality of the ore, the facilities for working it, the further facilities, if any, for manufactures of shot, sheet lead, and paints, and the means and expense of transporting the whole to the principal markets of the United States."

February 6, 1839, the House of Representatives

Resolved, That the President be requested to cause to be prepared a plan for disposal of the public mineral lands, having reference as well to the amount of revenue to be derived from them, and their value as public property, as to the equitable claims of individuals upon them; and that he communicate to Congress all the information in the possession of the Treasury Department relative to their location, value, productiveness, and occupancy, and that he cause such further information to be collected and surveys to be made as may be necessary for this purpose.

Dr. David Dale Owen explored the Territories of Iowa and Wisconsin, by order of the President, under this resolution. (See report Dr. Owen, Ex. Doc. No. 239, First session Twenty-sixth Congress.)

In the pre-emption act September 4, 1841, section 10 provided that "No lands on which are situated any known salines or mines shall be liable to entry under and by virtue of the provisions of this act."

In United States r. Gear (3 How., 120), the Supreme Court of the United States, 1845, held that the act of June 26, 1834, did not subject lead mines to ordinary sale or preemption in certain districts thereby created.

EXECUTIVE ACTION AS TO MINES.

President Polk, December 2, 1845, in his first annual message said:

The present system of managing the mineral lands of the United States is believed to be radically defective. More than a million acres of the public lands, supposed to contain lead and other minerals, have been reserved from sale, and numerous leases upon them have been granted to individuals upon a stipulated rent. The system of granting leases has proved to be not only unprofitable to the Government, but unsatisfactory to the citizens who have gone upon the lands, and must, if continued, lay the foundation of much future difficulty between the Government and the lessees. According to

the official records, the amount of rents received by the Government for the years 1841, 1842, 1843, and 1844, was $6,354.74, while the expenses of the system during the same period, including salaries of the superintendents, agents, clerks, and incidental expenses, were $26,111.11, the income being less than one-fourth of the expense. To this pecuniary loss may be added the injury sustained by the public in consequence of the destruction of timber, and the careless and wastful manner of working the mines. The system has given rise to much litigation between the United States and individual citizens, producing irritation and excitement in the mineral region, and involving the Government in heavy additional expenditures. It is believed that similar losses and embarrassments will continue to occur while the present system of leasing these lands remains unchanged. These lands are now under the superintendence and care of the War Department, with the ordinary duties of which they have no proper or natural connection. I recommend the repeal of the present system, and that these lands be placed under the superintendence and management of the General Land Office as other public lands, and be brought into market and sold upon such terms as Congress in their wisdom may prescribe, reserving to the Govern ment an equitable percentage of the gross amount of mineral product, and that the pre-emption principle be extended to resident miners, and settlers upon them, at the minimum price which may be established by Congress.

April 18, 1876, the Attorney-General of the United States, in an opinion respecting the mineral lands on Isle Royal, Lake Superior, held, that "salines, gold, silver, lead, and copper mines" were reserved for “future disposal of Congress."

CASH SALES OF MINERAL LANDS ORDered.

By act approved 11th July, 1846, Congress ordered "the reserved lead mines and contiguous lands in the States of Illinois and Arkansas and" then "Territories of Wisconsin and Iowa" to be exposed to sale as other public lands, with the exception: that six months' notice be given, with brief description of the mineral region, as required by the act of 1829 respecting Missouri; stipulating further that such lands should not be subject to pre-emption until after public offering, and subject to private entry; that upon proof to the register and receiver of any tract containing lead ore, and of being so worked, no bid should be received at less than $2.50 per acre, but if not sold at that price, nor entered at private sale within twelve months thereafter, to be subject to sale as other public lands. (See D. D. Owen's survey.)

By an act of 1st March, 1847, Congress ordered the organization of the Lake Superior district in the upper peninsula of Michigan, directed that a geographical examination and survey be made of those lands, and conferred authority on the President for the public sale, after six months' notice, of such land as contained “copper, lead, or other valuable ores,” with description of locality of mines, &c., the minimum price at public sale to be $5 per acre, and where not thus disposed of at public auction, to be subject to private sale at that price. (See Foster and Whitney's survey.)

By the act of 3d March, 1847, the Chippewa land district in Wisconsin was organized, a geological examination and survey ordered, and the lands disposed of in like manner to those in the Lake Superior district, in Michigan.

Congress March 3, 1849, created the Department ("Home Department") of the Interior, and thereafter the supervision of mineral lands was transferred to the General Land Office in that Department.

MINERAL LANDS IN CHARGE OF THE WAR DEPARTMENT.

The acts of July 11, 1846, and March 1 and 3, 1847, made a radical change in the method of disposition of mineral lands on the public domain, abolished leases, and substituted cash sales. The act of 1849 transferred the charge of these lands from the War Department, where they had been since the ordinance of Congress of 1785, to the Department of the Interior.

August 28, 1850, the Attorney-General of the United States held that public lands containing "iron ore merely" are not the "mineral lands" referred to in the second section of the act of March 1, 1847 (act for the sale of copper, lead, or other valuable ores in Lake Superior district).

The act of 26th September, 1850, ordered the mineral lands in the Lake Superior dis

trict in Michigan, and Chippewa district in Wisconsin, to be offered at public sale in the same manner, at the minimum, and with same rights of pre-emption as other public lands, but not to interfere with leased rights.

THE DISCOVERY OF GOLD IN CALIFORNIA.

The discovery of gold at Coloma, Cal., by John W. Marshall, January 19, 1848, necessitated a change in the mineral laws of the United States. Copper, lead, and iron had prior to this been the minerals for which the laws were made. In the ordinance of 1785 gold and silver were reserved out of abundant caution, but now gold had actually been discovered on the public domain, and legislation was necessary.

EXECUTIVE RECOMMENDATIONS.

President Fillmore, in his annual message of December 2, 1849, said:

I also beg leave to call your attention to the propriety of extending at an early day our system of land laws, with such modifications as may be necessary, over the State of California and the Territories of Utah and New Mexico. The mineral lands of California will, of course, form an exception to any general system which may be adopted. Various methods of disposing of them have been suggested. I was at first inclined to favor the system of leasing, as it seemed to promise the largest revenue to the Government and to afford the best security against monopolies, but further reflection and our experience in leasing the lead mines and selling lands upon credit have brought my mind to the conclusion that there would be great difficulty in collecting the rents, and that the relation of debtor and creditor between the citizens and the Government would be attended with many mischievous consequences. I therefore recommend that instead of retaining the mineral lands under the permanent control of the Government, they be divided into small parcels and sold, under such restrictions as to quantity and time as will insure the best price and guard most effectually against combinations of capitalists to obtain monopolies.

December 3, 1849, the Secretary of the Interior, Hon. Thomas Ewing, calling attention of Congress to the discovery of gold in California, said:

The right to the mines of precious metals, which, by the laws of Spain, remained in the Crown, is believed to have been also retained by Mexico while she was sovereign of the territory, and to have passed by her transfer to the United States. It is a right of the sovereign in the soil as perfect as if it had been expressly reserved in the body of the grant; and it will rest with Congress to determine whether, in those cases where lands duly granted contain gold, this right shall be asserted or relinquished. If relinquished, it will require an express law to effect the object, and if retained, legislation will be necessary to provide a mode by which it shall be exercised. For it is to be observed that the regulation permitting the acquisition of a right in the mines by registry or by denouncement was simply a mode of exercising by the Sovereign the proprietary right which he had in the treasure as it lay in and was connected with the soil. Consequently, whenever that right was transferred by the transfer of the eminent domain, the mode adopted for its exercise ceased to be legal, for the same reason that the Spanish mode of disposing of the public lands in the first instance ceased to be legal after the transfer of the sovereignty.

Thus it appears that the deposits of gold, wherever found in the Territory, are the property of the United States. Those, however, which are known to exist upon the lands of individuals are of small comparative importance, by far the larger part being upon unclaimed public lands. Still our information respecting them is yet extremely limited; what we know in general is that they are of great extent and extraordinary productiveness, even though rudely wrought.

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No existing law puts it in the power of the Executive to regulate these mines, or protect them from intrusion. Hence, in addition to our own citizens, thousands of persons, of all nations and languages, flock in and gather gold, which they carry away to enrich themselves, leaving the lands the less in value by what they have abstracted, and they render for it no remuneration, direct or indirect, to the Government or people of the United States. Our laws, so strict in the preservation of public property that they punish our own citizens for cutting timber upon the public lands, ought not to permit strangers, who are not and who never intend to become citizens, to enter at pleasure on these lands, and take from them the gold which constitutes nearly all their value.

Some legal provision is necessary for the protection and disposition of these mines, and it is a matter worthy of much consideration how they should be disposed of so as best to promote the public interest and encourage individual enterprise. In the

division of these lands regard should be had to the convenience of working every part of them containing gold, whether in the alluvion merely or in the fixed rocks. And, that such division may be made in the best manner practicable to promote the general interest and increase the value of the whole, a geological and mineralogical exploration should be connected with the linear surveys, which should be made with the assistance and under the supervision of a skillful engineer of mines.

The mining ordinances of Spain provide a mode of laying out the mines, which ap. plies only to districts where veins of ore occur in the rocks, and where it is to be mined by following the metaliferous dike or stratum in the direction of its dip, and along its line of strike. But the gold which is found in the alluvion in California is continuous over a great extent of country, and it may be wrought upon any lot having surface earth and access to water. This district may be, therefore, divided into small lots, with a narrow front on the margin of the streams, and extending back in the form of a parallelogram. Where gold is found in the rocks in situ, the lots to embrace it should be larger, and laid off according to the Spanish method with regard to dip and strike. But so various are the conditions under which the precious metals may be found by a careful geological exploration, that the mode of laying off the ground cannot be safely anticipated, but must be left to the direction, on the spot, of a skillful engineer, whose services will be indispensable.

The division, disposition, and management of these mines will require much detail; but, if placed on a proper footing, they may be made a source of considerable revenue. It is due to the Nation at large that this rich deposit of mineral wealth should be made productive, so as to meet, in process of time, the heavy expense incurred in its acquisition. It is also due to those who become the lessees or purchasers of the mines that they should be furnished by the Government with such scientific aid and directions as may enable them to conduct their operations not only to the advantage of the Treasury, but also with convenience and profit to themselves. This scientific aid cannot be procured by individuals, as our people have little experience in mining, and there is not, in the United States, a school of mines, or any in which mining is taught as a separate science.

If the United States sell the mineral lands for cash, and transfer at once all title to the gold which they contain, but a very small part of their value will probably be realized. It would be better, in my opinion, to transfer them by sale or lease, reserving a part of the gold collected as rent or seignorage.

After mature reflection, I am satisfied that a mint at some convenient point will be advantageous to the miner, and the best medium for the collection and transmission of the gold reserved. Gamboa, a Spanish author of much science and practical observation, and at one time president of the Royal Academy of Mexico, strongly recommended the establishment of a mint in their principal mining district, as a means of collecting and transmitting the rents reserved by the Crown, and especially to give a legitimate currency to the miners, that they might not be compelled from necessity to barter their bullion in violation of law. The same reasons would apply here with equal force.

When the land is properly divided, it will, in my opinion, be best to dispose of it, whether by lease or sale, so as to create an estate to be held only on condition that the gold collected from the mine shall be delivered into the custody of an officer of the branch mint. Out of the gold so deposited, there should be retained for rent and assay, or coinage, a fixed per cent., such as may be deemed reasonable, and the residue passed to the credit of the miner, and paid to him at his option in coin or stamped bullion, or its value in drafts on the Treasury or mint of the United States. The gold in the mine, and after it is gathered, until brought into the mint, should be and remain the property of the United States. The barter, sale, gift, or exportation of any portion of it before it shall have been delivered at the mint, and so coined, or assayed and stamped, or its concealment with intent to avoid the payment of rent or seignorage, should involve a forfeiture of the gold itself, and also of the mine. The terms of lease or sale should be favorable to the miner, and the law should be stringent to enforce the payment of seignorage and rents.

So far as the surface deposits extend, I am of opinion that leases will, for yet a further reason, be preferable to the sales of lands. If sold, they will pass at once into the hands of large capitalists; if leased, industrious men without capital may become the proprietors, as they can work the mines and pay the rent out of the proceeds. But where gold is found in the rocks in place, the case is different. These must necessarily fall at once into the hands of large capitalists or joint stock companies, as they cannot be wrought without a heavy investment.

Some persons, whose opinions are entitled to much weight, apprehend difficulty in collecting the rents, if the mode of disposition which I suggest be adopted; but this, I think, is without a full consideration of the condition of the country and the means of enforcement. Gold, unless coined or stamped at the mint, could not circulate in California against a legal provision, and subject to a penalty such as is suggested. It could not be carried across the continent without risk of loss or detection, which