1846.

No. 22.

The Sovereign right of Michigan to the Mines and Minerals within her borders.

REPORT:

BY MR. LITTLEJOHN, FROM THE JUDICIARY COMMITTEE.

The committee on the judiciary, to whom was referred the bill introduced by the committee on public lands, "declaratory of the interests of Michigan in mines and minerals, &c.," have had the same under consideration, and instructed the undersigned to submit thereon the following report:

The principles upon which the bill before the committee is based, are principles of vast importance to the new states, as involving attributes of sovereignty, the want of which would create an invidious distinction between the old and new states.

The main questions for Have the United States as a

investigation would seem to be, first: government, any constitutional capacity to exercise original municipal jurisdiction, sovereignty, or etninent domain within the limits of a state, or elsewhere, except in the cases in which it is expressly gran ted? Secondly, Did the deeds of cession by Virginia, and the ordinance of 1787, vest in or grant to the United States municipal eminent domain over the territory north-west of the Ohio river, except in trust, to hold it. for the new states to be formed therein, and to invest them with it to the same extent with the old states? And thirdly, have the United States any thing beyond a bare proprietary right of soil in trust to sell to bona fide purchasers, as to any of the public domain within the limits of a new state, after its admission into the Union "on an equal footing with the original states, in all respects whatever?"

Your committee would not arrogate to themselves the ability satisfactorily to discuss and settle these propositions. They would shrink from the exhibition of their imperfect reasoning before the public, were it not for the pleasing hope that abler pens may thereby be enlisted, and mightier intellects induced to search out and establish both

theoretic truths and practical results. The importance of an early adjustment of all conflicting rights of sovereignty and eminent domain, must be apparent to every individual at all conversant with the developments of mineral wealth now in progress in the Upper Peninsula of Michigan. The actual relation subsisting between the State of Michigan and the general government, founded in, and deducible from the cession by Virginia-the ordinance of '87, and subsequent Congressional and conventional acts, are ably set forth and fully discussed in the recent report of the Senate committee on public lands. The legislature have already expressed their conviction of the impolicy, injustice, and unconstitutionality of the system of leasing by the general government, of the mineral lands within our borders, by adopting the joint resolutions accompanying said report.

So far, then, as the enactments collated and embodied in said report with the deductions therefrom, are applicable to the matters now under consideration, your committee feel at liberty to refer there. to, without a repetition here. At the same time it is much to be regretted that the committee on public lands have seemingly overlooked the last crowning act between the state and the general government, by which the subject of the public lands and the interests of the state therein have been further defined and regulated. The act here referred to, bears date June 23, 1836, and contains inter alia, the following, designed to limit and define the reservation in section 4, of the act to provide for the admission of Michigan, &c., "That the said state shall never interfere with the primary disposal of the soil within the same by the United States, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers thereof." It is by the provisions of this act that the state became entitled by cession to her school lands, University lands, state building, and salt spring lands, and also to 5 per cent of the nett proceeds of sales of public lands within her borders, for the construction of roads and canals.

The theory of sovereign rights is, in its plentitude, mainly confined to political jurisdiction, although the rights of property are in some respects necessarily incident thereto. All governments, whether despotic or popular, take their position alike upon the deep foundations of society. At their inception, all vested rights, and all personal priv

ileges and immunities theretofore claimed or conceded, were scattered broadcast, or grouped in inconsiderable masses around them. Thence the elements of political jurisdiction were drawn, whatever the form of government, but with this difference-that despotic power may consist of elements wrenched from the unwilling but impotent masses by an exertion of physical force, whilst popular governments are reared from voluntary grants and concessions, by the people, having for their basis, a system by compact, of correlative rights. and duties. But in either case, the political powers, whether usurped from, or conferred by a people, when duly embodied, constitute the sovereignty of that people, and as such, are clothed with certain attributes, prerogatives and inherent rights. One of those rights well established in its universality by the common law, recognized by the people, and exercised by all independent sovereignties, is, "that the right "to gold and silver and the baser metals with which either is connected, "within the territorial limits of an independent government," primarily "attaches to and belongs to such government, in virtue of its sover"eignty." This is a single sovereign power, but in most authors upon national law, will be found grouped with others, under the more general designation of eminent domain. Thus in Vattel Law of Nations, section 244, the following phrase occurs: "The right which 'belongs to the society, or the sovereign, of disposing, in case of ne'cessity, and for the public safety, of all the wealth contained in the 'state, is called the eminent domain. It is evident that this right is 'in certain cases, necessary to him who governs, and is, consequently 'a part of the empire or sovereign power."

Such was, and is the doctrine of the common law, the validity and binding force of which was fully recognized in all the original statesin the constitution of the United States, Article 7, of amendmentswas reasserted in the ordinance of 1787, expressly guaranteeing its provisions to the people of the northwestern territory, (subsequently extended to all the public domain in the southern and western portions of the Union,) under the plain but emphatic language, that "the inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus and trial by jury of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the

common law." In all the elementary common law works in the old and new world, we find this same doctrine of eminent domain, both as to soil, navigable rivers and precious metals expressly asserted. In the state of New York as early as 1786 we find the legislature recognizing the same, and separating between the minerals and the soil, by directing in all grants of lands by the state a reservation of mines minerals, &c. This was only by way of caution to the purchaser, because by the principles of the same common law, mines and minerals do not pass from the sovereign by general grant of the soil, but in all cases require an express and specific grant.

Such is the common law doctrine as between the sovereign and an individual, whether subject or citizen. But as between sovereign and sovereign, there is a striking peculiarity. Mines and minerals, navigable waters, the soils under them, and the shores between high and low water mark, are not proprietary rights, but attributes of sovereignty. Hence we find that in all transfers of domain between sovereignties, the above rights are all severed from the right of property in the soil, and do not pass by treaty or grant. Sovereignty transfers itself, and when that passes, all the inherent rights of sovereignty pass also.

Thus at the period of the revolution, it is a main error to suppose that the sovereign rights of the thirteen states were inchoate, and only attached when the treaty of peace was signed and ratified between them and Great Britain. E contra, when the last of the immortal band of signers had placed his name at the foot of the Declaration of Indepencence, eo instanti! thirteen sovereignties sprang into existence, clothed with the attributes and possessing the inherent rights of sovereignty as fully as the crown of Great Britain had done before. Sovereignty had transferred itself. The Eagle had ejected the Lion. Thenceforward, through all the perils of that eventful contest, the struggle was, not to achieve independence, but to maintain it.

If, then, the previous views can be sustained, your committee submit, that the original states became, each for itself, entitled to all the rights of sovereignty, jurisdiction, and eminent domain, not, however, in the plenitude of a royal prerogative of the crown of Great Britain, but to be held and exercised subject to the constitution and laws of its own government. Vatel L. Nations, sec. 244, et passim.