It would be a waste of time to show that none of the reasons thus advanced in support of the right of the crown to the mines can avail to sustain any claim of the State to them. The State takes no property by reason of " the excellency of the thing," and taxation furnishes all the requisite means for the expense of government. The convenience of citizens in commercial transactions is undoubtedly promoted by a supply of coin, and the right of coinage appertains to sovereignty. But the exercise of this right does not require the ownership of the precious metals by the State, or by the federal government, where this right is lodged under our system, as the experience of every day demonstrates.
The right of the crown, whatever may be the reasons assigned for its maintenance, had in truth its origin in an arbitrary exercise of power by the king, which was at the time justified on the ground that the mines were required as a source of revenue. The same regalian right was recognized on the continent, as in England, and of its origin, Gamboa in his commentary on the mining ordinances of Philip II. thus speaks: " Upon the breaking up of the Roman Empire, the princes and States which declared themselves independent, appropriated to themselves those tracts of ground in which nature has dispensed her most valuable products with more than ordinary liberality, which reserved portions or rights were called rights of the crown. Among the chief of the valuable products are the metallic ores of the first class, as those of gold and silver, and other metals proper for forming money, which it is essential for sovereigns to be provided with in order to support their warlike armaments by sea and land, to provide for the public necessities, and to maintain the good government of their dominions."
It follows from the views we have thus expressed, that the first position advanced by the defendants cannot be sustained; that the gold and silver which passed by the cession from Mexico were not held by the United State-, in trust for the future State; that the ownership of them is not an incident of any right of sovereignty; that the minerals were held by the United States in the same manner as they held any other public property which they acquired from Mexico; and that their ownership over them was not lost, or in any respect impaired by the admission of California as a State.
The second position of the defendants is, that if the minerals did not vest in the State by her admission into the Union, they remained the property of the United States notwithstanding their patents to the Fernandez and to Fremont. This position is not based upon any language of the patents; for it is admitted that their terms of grant would operate in case of a conveyance of an individual, to pass all the interest which the grantor could possess in the land. It is based upon the supposition that as the Act of March 3d, 1851, provides for the recognition and confirmation of the rights acquired by the grants from Mexico, the patents were only intended as evidence on the part of the United States of such recognition and confirmation. By those grants, as we have seen, no interest in the minerals of gold and silver passed to the grantees, and if the patents amount only to an acknowledgment of the rights derived from the former government, that interest still remains in the United States. This view of the patents is not justified by any provisions of the act. The object of the act is to "ascertain and settle " private land claims in California. * * * "For all claims finally confirmed," reads the act, "by the said commissioners, or by the said District of Supreme Court, a patent shall issue to the claimant upon his presenting to the general land office an authentic certificate of such confirmation, and a plot or survey of the said land, duly certified and approved by the surveyor-general of California."
There is nothing in the act restricting the operation of the patents thus issued to the interests acquired by claimants from the former government, or distinguishing the patents in any respect from the general class of conveyance made, under that designation, by the United States. To all claimants alike, whose claims have been finally confirmed, patents are to issue without words of reservation or limitation, with the exception that they shall not affect the interests of third persons, an exception which would exist independent of its legislative recognition. Such being the case, the question arises as to what passed by the patents to the Fernandez and to Fremont, and to this question there can be but one answer: all the interest of the United States, whatever it may have been, in everything connected with the soil, in everything forming any portion of its bed or fixed to its surface, in everything which is embraced within the signification of the term land, and that term, says Blackstone, "includes not only the face of the earth, but everything under it or over it. And, therefore," he continues, "if a man grants all his lands, he grants thereby all his mines of metal, and other fossils, his woods, his waters, and his houses, as well as his fields and meadows." Book II. 19. Such is the view universally entertained by the legal profession as to the effect of a patent from the general government. The United States occupy, with reference to their real property within the limits of the State, only the position of a private proprietor, with the exception of exemption from State taxation, and their patent of such property is subject to the same general rules of construction which apply to conveyances of individuals. From the operation of conveyances of this nature, that is, of individuals, the minerals of gold and silver are not reserved unless by express terms. They pass with the transfer of the soil in which they are contained. And the same is true of the operation of the patent - the instrument of transfer of the governmental proprietor, the United States; no interest in the minerals remains in them without a similar reservation. Nor is there anything in the language of the Supreme Court, in the opinion rendered in the Fremont Case, which gives countenance to any other view. The attorney-general of the United States objected to the confirmation of the claim of Fremont upon the ground that the grant of Alvarado contained mines of gold and silver. His argument was to this effect: that as the mines did not pass to the grantee by the Mexican law, the claim should not be confirmed, as Fremont would obtain as a consequence of such confirmation a patent which would pass the minerals, to which, by the original grant, he was not entitled. But to this the court replied that, under the mining laws of Spain, the discovery of a mine of gold and silver did not destroy the title of the individual to the land granted, and that the only question before the court was the validity of the title; and whether there were any mines in the land, and if there were any, what were the rights of sovereignty in them were questions which must be decided in another form of proceeding, and were not submitted to the jurisdiction of the commissioners or the court by the act of 1851 ; in other words, the court said, in substance, that its consideration was confined to the title presented, and the effect of its decree and the patent following it upon the ownership of the minerals was a matter with which it had nothing to do.