the exchequer and all the justices of England, it was held, by their unanimous judgment, "that by the law all mines of gold and silver within the realm, whether they be in the hands of the queen or of the subjects, belong to the queen, by prerogatives, with the liberty to dig and carry away the ores thereof, and with other such incidents thereto as are necessary to be used for the getting of the ore;" and also "that a mine royal, either of base metal containing gold or silver, or of pure gold and silver only, may, by the grant of the king, be severed from the crown, and be granted to another, for it is not an incident inseparable to the crown, but may be severed from it by apt and precise words." This case was decided in 1568, during the reign of Queen Elizabeth, and continues until this day an authoritative exposition of the doctrine of the common law. It is conclusive to the point that the right to the mines was not regarded by that law as an incident of sovereignty, but was regarded as a personal prerogative of the king, which could be alienated at his pleasure.' The title to mines in Maryland was vested by the charter in the 'lord proprietary,' as he was called, subject only to a royalty of one fifth part of them in favor of the crown. In an exposition by Kilty of ‘original titles as derived from the proprietary government, and more recently from the state of Maryland,' called the 'Landholder's Assistant,' and which has been referred to by counsel on both sides in the argument as a work of authority, it appears that the proprietary formulated from time to time rules and regulations for the disposition of his land, called 'conditions of plantations, instructions, etc.' These 'conditions of plantations, instructions,' etc., became matter of record, and, so far as extant among the public records of the state in the year 1808, are printed in the work referred to, which was issued in that year, and were originally carried into effect by some one or other of his lordship's agents and chief officers in the province, such as his 'lieutenant general,' his 'chief gov ernor,' his 'lieutenant governor,' and later by the governor and council, and others charged with the management of land affairs. Three steps were necessary for transferring the title from the proprietary to the individual seeking the patent. The first was a warrant issued by the proper officer, and which was the authority to the surveyor of the county to survey and lay off the particular quantity of land; the next step was the returning by the surveyor of his certificate of survey; and the third step was the issue of the patent. In the course of time another form of warrant came to be issued, called the 'warrant of resurvey.' Parties having several contiguous tracts by patent from the land office procured from it a warrant of resurvey, authorizing the surveyor to resurvey those tracts, the grounds assigned for which were the uncertainty of existing bounds, and the desire of the parties to connect several ad

joining tracts in one survey. At first the privilege of taking in adjoining vacancy over and above the quantities originally granted did not attach to this kind of warrants, but this subsequently became the main object of these resurveys. On resurveys lands included in elder surveys were excluded, and allowance made for the deficiency, either in contiguous vacancy or elsewhere. On the other hand, where land had been included in surveys beyond the quantity to which the party was entitled, the excess, denominated 'surplus land,' was claimed by the proprie tary; and, as this surplusage was more common than vacancy, it gave rise to numbers of warrants, sometimes demanded by parties when they found that the excess of their grants could not be concealed, and on other occasions issued by direction of the government where information of surplusage was obtained. In 1735 it was determined to grant warrants to the first discoverers, enabling them to make resurveys on the lands of other persons, and to become purchasers of the surplusage found therein.

"All the patents that were issued by the proprietary contained an exception of royal mines, and we understand those terms to mean mines of gold and silver; and the consequence, was that they did not pass by these grants, but remained in the proprietary, as his separate property. Notwithstanding the common-law maxim as to the ownership of property, 'cujus est solum, ejus est usque ad caelum,' there may be two separate owners of the same land. A man may own the surface of the ground, and underneath the surface may be owned by another person; so that, as the patent issued with that reservation, the proprietary remained the owner of the mines. The present owners of the land, deriving title by mesne conveyances from the patents, claim that they are entitled to the mines; but, as the patentee did not take the mines of gold and silver, I do not see how the last owner has acquired title thereto. There can be no question here of adverse possession, or title by adverse possession, in the position taken by the claimants to these mines. The then proprietary was divested of his title by the American Revolution. When the Revolution broke out, the British subjects left this country, perhaps for their country's good; and the effect of the Revolution, I might say, with regard to the royalty that had been reserved by the king, was to transfer it to the state, and the property of the proprietary was confiscated by an act passed by the state in 1780, c.*45, of the session of that* year. When you contrast this act of confiscation with the act passed by the congress of the United States during the late Civil War, it will be seen that the latter act subjected the property of those in hostility to the government to seizure and condemnation by judicial proceedings and sale, and directed that the proceeds of the sale should be

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paid into the treasury of the United States. If any property was seized, and such legal proceedings were not taken, the title never was passed, but remained in the owner. The act of Maryland is much stricter in its terms. "After a long recital of grievances committed by England, the act of Maryland declares: 'And it is hereby enacted and declared that all property within this state, debts only excepted, belonging to British subjects, shall be seized, and is hereby confiscated to the use of this state.' In section 7, on the assumption that the title was at once vested in the state by the preceding enactments, the act goes on, and directs that certain property, being certain iron works, lands, and stock therein mentioned, 'shall be, and are hereby, appropriated and set apart as a fund for making good and sinking certain bills of credit which had been emitted by the state.' The act further enacted 'that all British property confiscated in virtue of this act, and not thereby appropriated for the redemption of the bills of credit lately emitted by this state, and for the payment of debts, shall be subject to the disposal of the general assembly.' To remove any doubt of the meaning of the law, in chapter 49 of the same session, it is enacted that certain commissioners shall be appointed, for the purpose of preserving all British property seized and confiscated by the act of the present session,' just before referred to, and that the said commissioners shall be, and are hereby declared to be, in the full and actual seisin and possession of all British property seized and confiscated by the said act, without any office found, entry, or other act to be done, and the said commissioners shall and may, as soon as may be, appoint proper persons, in all cases that they may think necessary, to enter into and take possession of any part of the said property,' etc. This was a complete divesting, at once, of the title to the property owned by British subjects, and vesting it in the state, or in the commissioners to represent the state. Chapter 51 of the same session goes on, and appropriates the manors owned by the late lord proprietary in several counties to certain purposes; and it provides that this state will forever warrant and secure to the purchasers and their heirs any British property sold in pursuance of this act, and will protect them in the peaceable possession thereof.' This was followed by another act, relating to forfeited estates and sales of reversionary rights, where they were estates tail. There was another act in relation to claims against forfeited property by individuals, and section 2 of the latter act provided for the confiscation of the property of British subjects which may be in the possession of others without any proper claim upon them. All of which shows the scope of the confiscation, and that these acts were intended to reach every piece of property that belonged to British subjects. This intent runs all through them, in fact,

and it is not necessary to refer to them in further detail. It is sufficient to say that it was the effort of the state to appropriate everything -every species of property-that belonged to British subjects; and of course that would include mines, as well as anything else. Certain grace was given to the owners of the property. They were allowed a certain time in which to come forward and swear fealty to the state and in that way save their property.

"During the argument an inquiry was made whether the state of Maryland had ever made any reservation, in her patents issued since the Revolution, of mines auu quarries, or whether its legislation was silent on that subject, from which it might be inferred that she never intended to confiscate that species of property. A partial answer to that inquiry, at least, is found in chapter 20 of the act of 1783, relating to the sale of confiscated property, by which it is enacted 'that in all sales of the said lands there shall be a reservation of one fifth part of all mines of gold or silver found thereon to this state, which reservation shall be expressed in the deeds for the said lands.' That showed that the subject of the ownership of mines was brought to the attention of the legislature, and that the state assumed itself to be the owner of the mines, as well as of the surface of the land, and hence assumed that granting it would pass the mines, unless there was a reservation; and so the state reserved one fifth in all mines that might be found on this confiscated property. Now, it is true that there is no mention in the legislation of the state in regard to mines or mineral lands, except in connection with the sale of the property, and the only object of any legislation would be directed towards a sale of the property; and it would have been useless to direct any sale of mines in the state at that time, which would account for the absence of legislation on that subject. It was not suspected at that time that any mines existed in the state. If there had been any idea that there were mines existing, there is no room for doubt at all, in view of the spirit manifested in this legislation in the series of acts running nearly twenty years, that the state would have been prompt in declaring as forfeited the interests of British subjects therein. It appears that nothing was ever done by the state that amounted to a relinquishment of any rights that were vested in it by confiscation. If there were any mines, however, they were the property of the state, by another act of the state, which act assumes that the state was the owner of the same by reason of the action taken, which I have before referred to. Ing the case that I have heretofore cited (Moore v. Smaw) there was no hesitation at all upong the part of the justice, in delivering the opinion of the court,*in holding that, 'at the* date of the cession of California to the United States, no minerals of gold or silver had been discovered in the land embraced by the

grant to the Fernandez or by the grant to Alavrada, and of course no proceedings had been taken by which any individual interest in them was acquired from the government. They constituted, therefore, at that time, the property of the Mexican nation, and by the cession passed, with all other property of Mexico within the limits of California, to the United States.' Under the common law of England, there was an implied reservation of mines of gold and silver. Looking at the terms of the cession under the act of 1791, we will find that they are much stronger than those employed in the act of cession of property in California to the United States, because they contained absolute words of cession, while the other does not. The language is 'that all that part of the said territory called "Columbia" which lies within the limits of this state shall be, and the same is hereby, acknowledged to be forever ceded and relinquished to the congress and government of the United States, in full and absolute right, and exclusive jurisdiction, as well as of soil as of persons residing or to reside thereon, pursuant to the tenor and effect of the eighth section of the first article of the constitution of the government of the United States.' These words, of course, are to be taken distributively. Congress and the gov ernment were given the full and absolute right over persons, and they are given the full and absolute right to the soil, and exclusive jurisdiction over both person and soil. It is rather difficult to see how they could be more specific in conveying whatever rights the state had in the land and soil. The state, of course, could only transfer to the United States the interest which it had; and to make the matter as clear as possible and remove doubt, a proviso was added: "That nothing herein contained shall be so construed to vest in the United Staes any right or property in the soil, so as to affect the rights of individuals therein.' In other words, the state did not undertake to grant away the rights of individuals, but did undertake to give to the United States all her rights, both as to soil and persons who resided in the part of the state ceded. The state relinquished all rights which she had, and at the same time provided that the United States should not have any right in the soil that would affect the rights of individuals. The history that I have given of this property excludes all idea that the law did vest in the individuals the right to the mines. Nobody can doubt that the public domain passed to congress, and that it has always acted upon that assumption in granting patents to vacant land that it has sold; and we can see no reason to doubt that the right of the state to any mines on the land separate from it also passed, by this grant of the territory in full and absolute right, and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon.' We cannot escape from the conclusion that all public property of the state of Mary

land, within the District, passed by the cession, and that the legislature, by its act of cession, transferred all interests in any possi ble gold mines in this District to the United States.

“But a patent was introduced at the argument, of a later date, from the state of Maryland to Robert Peter, under whom these present owners claim title, and that patent has no reservation of any gold or silver mines; and it was claimed that, for this reason, whatever interest the state formerly had in these mines passed by this patent. That patent was dated in 1803. It will be remembered that the congress of the United States assumed formal jurisdiction over this District, and provides for its government, by the act of February 27, 1801, three years before the date of this patent. The state of Maryland, of course, could not convey land that had already been ceded to the United States. But this paper suggests certain serious inquiries. The patent was a resurvey patent based upon a warrant dated the 12th day of May, 1800, which was nine months before the actual assumption of jurisdiction here by congress; and the first inquiry is whether that did or did not give the parties equitable title, being prior to the time that the land was actually taken possession of under the cession by the congress of the United States. That inquiry suggests one or two questions. The first is: Under the law of Maryland, did the land laws remain in force in that part of the territory ceded until the removal of the seat of government; and, if so, did the issuing of this warrant give an inchoate title,-an equitable title which would prevail against the subsequent acquisition of the same legal title by the United States? The letter of the law seems to be that in all cases of resurveys no equitable title is created until the certificate of survey is returned to the land office. Upon the issuing of the warrants of resurvey the party had two years, under the law, within which to have the survey returned, and pay the fees. It seems to me that no equitable charge could be laid against this property by reason of the issuing of the warrant of resurvey. The patent does not say that that survey was returned to the surveyor's office. The warrant was not issued until 1800, and the patent was not issued until 1803, and the presumption would therefore be that the certificate of survey was not returned until after 1801; so that there is nothing upon the face of this patent which would justify us in saying that there could be an equitable title acquired through the warrant.

"There is a still more important question, and that is whether the state of Maryland at that period could convey any interest, legal or equitable, in the property. In the act of 1791, ceding this property to the United States, there is this proviso: "That the jurisdiction of the laws of this state over the persons and property of individuals re

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siding within the limits of the cession aforesaid shall not cease or determine until congress shall by law provide for the government thereof, under their jurisdiction, in manner provided by the article of the constitution before recited.' Now this continues in force the jurisdiction of the laws of the state of Maryland over the persons and property of individuals residing therein. To make that applicable to the present case, it would be necessary to have extended it to the property held by the state, but it seems to me that that extended no further than to say that the laws that affected private rights should continue in force until proper provision was made by congress. See what the consequence would be if another construction had been given to it. The state of Maryland extended to the Virginia shore; and suppose that after this cession, and before 1801, the state of Maryland had undertaken to cede to the state of Virginia the whole bed or bottom of the Potomac river, from its source to its mouth, including that part in the District of Columbia. Doubtless congress could have had something to say about it after the cession had been made. We are satisfied, therefore, that the proviso does not continue in operation the land laws of the state of Maryland, and consequently no title could be derived at the date of this survey and patent, or at the date when the warrant upon which it was based was taken out. We are satisfied that the proviso does not continue in operation the land laws of the state of Maryland as to the public lands owned by the state within the said District, and that consequently no title to such lands could be obtained by patent from the state after the act of 1791.

"At a much later time a citizen of Maryland who owned a tract of land in this District died, making a will disposing of his land, and appointing an executor, and, the executor having declined to act, the chancellor appointed a trustee to carry out the trusts of the will, and the title was declared vested in that trustee, and a sale directed to be made; and the proceedings were in accordance with the law of Maryland. But this court had no hesitation in declaring the whole proceedings null and void, for want of jurisdiction in the chancellor to give the relief asked for.

"Upon the whole case, therefore, we are of the opinion that, if there are any deposits of gold in this ground, they are the property of the United States. This motion upon the part of the government is granted."

The opinion of the supreme court of the District on the motion to rescind the order directing the commissioners to disregard the evidence relating to the existence of gold deposits was as follows:

(December 14, 1891.)

"Mr. Justice COX. In this matter a motion has been made to rescind the order here

tofore passed by this court directing the commissioners to disregard the evidence as to the deposits of gold in two of the tracts, numbered 39 and 42, the former being the property of Shoemaker, and the latter that of Truesdell. "It will be remembered that the conclusion announced by the court was founded upon a patent which was introduced on the part of the government, and dated in 1772, from the proprietor to one White, by which the royal mines-that is, the mines of gold and silver-were expressly reserved to the proprietor, and our argument was that they were derived through confiscation by the state and on behalf of the United States through the cession of 1791, and, if such gold deposits existed there, they were the property of the United States. The present motion is based upon additional evidence said to have been discovered since the first order. "The first patent granted to White affecting the premises was on a resurvey in 1760, in which the land was granted without any reservation of royal mines, and it is supposed that those claiming under White were allowed to refer their title back to the first muniments of title, and that it is not affect ed or vacated by the subsequent patent of 1772, in which there was an express reservation of all royal mines. As to the character of the tenure of land in this country since the Revolution, it has been said that it has become allodial. That is all true, but it must be remembered that at the date of the commencement of these tenures all land in Maryland was held as essentially feudal. In the first place, the charter of Lord Baltimore conveyed to him this land, not to be held by knight's service, but by fealty, and a certain proportion of the precious metals that might be discovered on the land was reserved; and, if Lord Baltimore granted this land in fee simple afterwards, the grantee held, not of the crown, but of him,-the lord proprietor. In this charter it is expressly stated that, notwithstanding the statutes of quia emptores, Lord Baltimore was authorized to create minor court barons, and grant patents to lands to be held in fee simple, but upon the rendition of such services, customs, and rents as he should think proper, to be laid by him, and not by the crown, and in all these patents issued by him in fee simple there was that reservation and fealty, at least generally, in place of any other service, so that relation, as to the tenure by which the land was holden, existed all through between the lord proprietor and his grantees, just as it did under the feudal system.

"Now, to go back to the common law. A lessee for life or years could surrender his estate, and take a new estate from the reversioner. Not only could that be done by the tenant, but the acceptance of a new estate by the grantee was itself a surrender of the old one, and that, upon the principle that the two could not consistently stand together, and the acceptance of the latter one neces