kind. Nesmith contended himself with voting against it. Nye opposed it, and said it would be good policy to let the whole subject alone, and not legislate upon it at all. This speech left his real position somewhat indefinite. In the course of the debate however it became manifest from the remarks of Senator Sherman, Buckalew and Hendricks that the real merits of the bill were beginning to be appreciated by the Senate. The two authors of the bill congratulated themselves on this sign of progress, and resolved to try again. It was called up again on the 28th by Mr. Stewart, and was debated by Senators Stewart, Conness, Sherman, Hendricks and others. After being amended slightly by Mr. Stewart the bill passed the Senate. When it was first introduced the bill had no friends in the House, but after it passed the Senate some of the Pacific delegation began to regard it favorably. It should have gone in the House to the Committee on Mines, of which Mr. Higby was chairman; but Mr. Julian, who is an old member and was then chairman of the Committee on Public Lands, seized on the bill at once, and had it transferred to his committee. Mr. Stewart addressed him self to the members of it, and got every one of them but Julian, but he was intractable. He wanted his bill to go first, and would not let this supersede it. The House, too, was canvassed, and was found to be favorably disposed, but there was no way of getting at the bill. In the meantime Higby had passed a bill from the Committee of Mines in regard to Ditches. It contained only three provisions, and bore no resemblance to the bill in question, but it related to the same subject. When this bill came into the Senate the mining bill was tacked on as a substitute, and was passed. It was then sent back to the House and went on the Speaker's table. In that condition it required a majority to refer it. To get that majority Julian exerted all his strength, but failed. The bill was passed in the House without amendment, and became a law. This accounts for its being entitled An Act Granting the Right of Way to Ditch and Canal Owners through the Public Lands, and for Other Purposes.' I have been par

ticular in hunting up all the facts bearing on the struggle, for the reason that the bill evolved from it is the most important, so far as California is concerned, that has ever been passed by Congress. The rules that have recently been proposed for the execution of the law, it is thought, will meet the wants of the miners. If they do not they will be amended. If difficulty should arise as to the authority to make such regulations under the law a simple resolution, which can be passed any day, will be sufficient to legalize them. It is now thought best not to have the general subject opened again. It is far better to perfect the system which has been established as practical experience shall point the way, than have any more agitation over it in Congress. The result of the whole fight is the grant of all the mines to the miners, with some wholesome regulations as to the manner of holding and working them, which are not in conflict with the existing mining laws, but simply give consistency and uniformity to the whole system. The escape from entire confiscation was much more narrow than the good people of California ever supposed. If either of the bills originally introduced had passed the Pacific States and territories would have received a blow from which they never would have recovered. The Government could only have receded after the most irreparable damage had been done."

In 1870 the mining law was amended. In 1872 the mining laws were recast and passed by Congress as “An Act to promote the development of the mining resources of the United States," which embodied all previous congressional legislation, and added some new and wholesome features. This Act and the amendments thereto constitute the law of the land in relation to the location and right to the possession of mining claims-quartz or placer, upon the public domain; and the right to acquire by purchase the government title to the same.

"The Acts of Congress of 1866 and 1872 dealt with a practical necessity of miners; they were passed to protect locations on veins or lodes, as miners understood those

terms.' (Field, Justice U. S. Sup. Ct. in Richmond Eureka Case, 4 Sawyer, 316.)

"The act of 1872 preserves to the miner the rights acquired under the Act of 1866, and confers upon him additional rights. Under the Act of 1866 he could only hold one lode or vein, although more than one appeared within the lines of his surface location. The surface ground was allowed him for the convenient working of the lode or vein located, and for no other purpose; it conferred no right to any other lode or vein. But the Act of 1872 alters the law in this respect; it grants to him the exclusive right of possession to a quantity of surface ground, not exceeding a specified amount, and not only to the particular lode or vein located, but to all other veins, lodes and ledges, the top of apex of which lies within the surface lines of his location, with the right to follow such veins, lodes or ledges to any depth." (Id. 323, 324.)

LECTURE NO. IV.

GROWTH OF CUSTOMS, RULES AND REGULATIONS AMONG MINERS IN RELATION TO MINING.

To attempt an extended statement of miners' customs, rules and regulations reaching backward into the misty past, is beyond the purpose of this lecture. The customs in the mining district of Spain finally crystallized into positive royal ordinances about the beginning of the eleventh century. Indeed, it is claimed with much plausibility, that in the line of conquests, Spain had been overrun and occupied by Phoenicians, Carthaginians, Romans, Goths and Moors in respective order; and that each conquering nation in turn adopted the existing mining customs and usages formed in force. These are credited with being wise and equitable, and combined civil liberty with due subordination to the reigning sovereign and the laws of the kingdom.

"

Halleck in his Mining Laws of Spain and Mexico,"gives a compilation of the Spanish mining laws from 1263 to 1584, and from 1584 until 1849, that are very interesting to peruse. No doubt that many things in them would now be rejected as wholly inapplicable to our situation, but many considerate and just provisions can be formed. The historians, Gibbon and Guizot are lavish in their laudations of the clearness and wisdom of Spanish laws which were the outgrowth of custom. Although emanating ostensibly as royal ordinances from the sovereign, they were formulated by learned and experienced men, held in high veneration in Church and State for benevolence and wisdom.

"

The changes of time has suggested many changes in these mining rules and regulations of that country, and their adoption elsewhere. A royal decree of 1783 promulgated the Royal Ordinances for the direction, regulation and government of the miners in New Spain, and of its Royal Tribunal General." Many matters in these are similar to the customs, usages, rules and regulations of miners in California, and leave no doubt of their origin. Among these are the rights or privileges of the discoverer of a mine, whether on public or private land, his right to the use of surface ground for the convenient working of his mine— being liable for any damage that the owner might suffer in consequence, which should be assessed and paid; the right of way for water over private lands under similar conditions.

Here, I transcribe from Vale's " Mining Claims and Water Rights," pages 58-9, what is there stated.

66 THE REGULATIONS AND CUSTOMS OF MINERS.

"The real mining code, so far as it can be traced by legal ear-marks, has sprung from the customs and usages of the miners themselves, with rare applications of common law principles by the courts, to vary them. Most of the rules and customs constituting the code, are easily recog

nized by those familiar with the Mexican ordinances, the continental mining codes - especially the Spanish, and with the regulations of the Stannary Convocations among the tin bounders of Devon and Cornwall, in England, and the High Peak regulations for the lead mines in the County of Derby. "These regulations are founded in nature, and are based upon equitable principles, comprehensive and simple, have a common origin, are matured by practice, and provide for both surface and subterranean work, in alluvion, or rock in situ.

"In the earlier days of placer digging in California, the large influx of miners from the western coast of Mexico and South America necessarily dictated the system of work to Americans, who were almost entirely inexperienced in this branch of industry, with a few exceptions from the gold mines of North Carolina and Georgia and from the lead mines of Illinois and Wisconsin. The old Californians had little or no experience in mining. The Cornish miners soon spread themselves through the State, and added largely by their experience, practical sense, and industrious habits, in bringing the Code into something like system. The Spanish-American system which had grown up under the practical working of the mining ordinances for New Spain, was the foundation of the rules and customs adapted.

"Senator Stewart has ascribed undeserved merit to the early miners, in pronouncing them the authors of the local rules and customs. In his letter to Senator Ramsey of Minnesota, he says that the miners were forced from the necessity of the case, to make laws for themselves; that each mining district formed its own rules and adopted its own customs; the similarity of which throughout the entire mining region, extending over an area of fifty thousand square miles, was so great as to attain all the beneficial results of well digested general laws. They were democratic in their character, guarding against every form of monopoly, requiring continued work and occupation in good faith, to constitute a valid possession.

"This letter is an interesting paper coming from a rep