In Hicks v. Bell, the court states correctly that, according to the common law of England, mines of gold and silver were the exclusive property of the crown, and did not pass in a grant of the king under the general designation of lands or mines, but it assumes that this right of the crown - this regalian right - vested in the State. " It is hardly necessary," in the language of the opinion, " at this period of our history to make an argument to prove that the several States of the Union, in virtue of their respective sovereignties, are entitled to the jura regalia which pertained to the king at common law." It is in this assumption that the error of the decision consists. Under the general designation of jura regalia are comprehended not only those rights which pertain to the political character and authority of the king, but also those rights which are incidental to his regal dignity, and may be severed at his pleasure from the crown and vested in his subjects. It is only to certain rights of the first class that the States, by virtue of their respective sovereignties, are entitled. It is to the second class that the right to the mines of gold and silver belongs.
In the great case of The Queen v. The Earl of Northumberland, I Ploden, 310, which was argued before the Barons of 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 lands of the queen or of subjects, belong to the queen by prerogative, with 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 unto 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.
No reasons in support of the prerogative are stated in the resolution of the judges, and those advanced in argument by the queen's counsel would be without force at the present time. Onslow, the queen's solicitor, says Plowden, "alleged three reasons why the king shall have mines and ores of gold and silver within the realm, in whatsoever land they are found. The first was, in respect to the excellency of the thing, for of all things which the soil within this realm produces or yields, gold and silver is the most excellent, and of all persons in the realm, the king is, in the eye of the law, most excellent. And the common law, which is founded upon reason, appropriates everything to the person whom it best suits, as common and trivial things to the common people, things of more worth to persons in a higher and superior class, and things most excellent to those persons who excel all others; and because gold and silver are the most excellent things which the soil contains, the law has appointed them (as in reason it ought) to the person who is most excellent, and that is the king. . . . The second reason was, in respect to the necessity of the thing. For the king is the head of the weal-public and the subjects are his members; and the office of the king, to which the law has appointed him, is to preserve his subjects, and their preservation consists in two things, viz.: in an army to defend them against hostilities, and in good laws. And an army cannot be had and maintained without treasure, for which reason some authors, in their books, call treasure the sinews of war; and, therefore, inasmuch as God has created mines within this realm, as a natural provision of treasure for the defense of the realm, it is reasonable that he who has the government and care of the people, whom he cannot defend without treasure, should have the treasure wherewith to defend them. . . . The third reason was, in respect of its convenience to the subjects in the way of mutual commerce and traffic. For the subjects of the realm must, of necessity, have intercourse or dealing with one another, for no individual is furnished with all necessary commodities, but one has need of the things which another has, and they cannot sell or buy together without coin. . . . And if the subject should have it (the ore of gold or silver), the law would not permit him to coin it, nor put a print or value upon it, for it belongs to the king only to fix the value of coin, and to ascertain the price of the quantity, and to put the print upon it, which being done, the coin becomes current for so much as the king has limited. But if the subject should have the ore of gold and silver which is found in his land, he could not convert it into coin, nor put any print or value on it. For if he makes coin, it was high treason by the common law before the statutes of 25th Ed., 3 Cap. 2, as it appears by 23d Ass., where a woman was burnt for forging or counterfeiting money, and it was high treason to the king, because he has the sole power to make money. So that the body of the realm would receive no benefit or advantage if the subject should have the gold and silver found in mines in his lands; but, on the other hand, by appropriating it to the king, it tends to the universal benefit of all the subjects in making their king able to defend them with an army against all hostilities; and when he has put the print and value upon it, and has dispersed it among his subjects, they are thereby enabled to carry on mutual commerce with one another, and to buy and sell as they have occasion, and to traffic at their pleasure. Therefore, for these reasons, viz., for the excellency of the thing, and for the necessity of it, and the convenience that will accrue to the subjects, the common law, which is no other than pure and tried treason, has appropriated the ore of gold and silver to the king in whatever land it be found."