provisions. Not even the Act of the 9th of September, 1850, admitting California into the Union, extended the general laws of the United States over the State by express provision. Not until the Act of September 28th, 1850, establishing a District Court in the State, was it enacted by Congress "that all the laws of the United States which are not locally inapplicable shall have the same force and effect within the said State of California as elsewhere within the United States."

FREE MINING.

Though no general federal laws were extended by Congress over the late acqusitions from Mexico for more than two years after the end of the war, the paramount title to the public lands had vested in the federal government by virtue of the provisions of the treaty of peace, and the public land itself had become part of the public domain of the United States. (The Supreme Court of California did afterward, when first organized, in Hicks vs. Bell, 3 Cal., 219, attempt by certain obiter dicta to put forth the doctrine of the paramount title being in the State of California, but this attempt at judicial legislation was soon after abandoned and reversed.) The army of occupation, however, offered no opposition to the invading army of prospectors. The miners were in 1849 twenty years ahead of the railroad and the electric telegraph, and the telephone had not yet been invented. In the parlance of the times, the prospectors "had the drop on the army." In Colonel Mason's unique report on the situation which confronted him, discretion waits upon valor. "The entire gold district," he wrote, "with few exceptions of grants made some years ago by the Mexican authorities, is on land belonging to the United States. It was a matter of serious reflection with me how I could secure to the government certain rents or fees for the privilege of procuring this gold; but upon considering the large extent of the country, the character of the people engaged, and the small scattered force at my command, I am resolved not to interfere, but permit all to work freely." It is not recorded whether the resolute Colonel was conscious of the humor of his resolution.

"Persons who have not given this subject special attention," said Senator Stewart of Nevada, addressing the United States Senate in support of the Bill of 1866, "can hardly realize the wonderful results of this system of free mining. The incentive to the pioneer held out by the reward of a gold or silver mine, if he can find one, is magical upon the sanguine temperament of the prospector. For near a quarter of a century a race of men, constituting a majority by far of all the miners of the West, patient of toil, hopeful of success, deprived of the associations of home and family, have devoted themselves, with untiring energy, to sinking deep shafts, running tunnels thousands of feet in solid granite, traversing deserts, climbing mountains, and enduring every conceivable hardship and privation, exploring for mines, all founded upon the idea that no change would be made in this system that would deprive them of their hard-earned treasure. Some of these have found valuable mines, and a sure prospect of wealth and comfort when the appliances of capital and machinery shall be brought to their aid. Others have received no compensation but anticipation—no reward but hope. I assert, and no one familiar with the subject will question the fact, that the sand plains, alkaline deserts, and dreary monuments of rock and sagebrush of the great interior, would have been as worthless today as when they were marked by geographers as the Great American Desert, but for this system of free mining fostered by our own neglect, and matured and perfected by our generous inaction.”

CALIFORNIA COMMON LAW OF MINES.

The prospectors and miners, were, then, at the start, simply trespassers upon the public lands as against the government of the United States, with no laws to guide, restrain or protect them, and with nothing to fear from the military authorities. They were equal to the occasion. "Finding themselves far from the legal traditions and restraints of the settled East," says the report of the Public Lands Commission of 1880, "in a pathless wilderness, under the feverish

excitement of an industry as swift and full of chance as the throwing of dice, the adventurers of 1849 spontaneously instituted neighborhood or district codes of regulations, which were simply meant to define and protect a brief possessory ownership. The ravines and river bars which held the placer gold were valueless for settlement or home-making, but were splendid stakes to hold for a few short seasons and gamble with nature for wealth or ruin.

"In the absence of State and Federal laws competent to meet the novel industry, and with the inbred respect for equitable adjustments of rights between man and man, which is the inheritance of centuries of English common law, the miners only sought to secure equitable rights and protection from robbery by a simple agreement as to the maximum size of a surface claim, trusting, with a well-founded confidence, that no machinery was necessary to enforce their regulations other than the swift, rough blows of public opinion. The gold seekers were not long in realizing that the source of the dust which had worked its way into the sands and bars, and distributed its precious particles over the bed rocks of rivers, was derived from solid quartz veins, which were thin sheets of mineral material enclosed in the foundation rocks of the country. Still in advance of any enactments by legislature or congress, the common sense of the miners, which had proved strong enough to govern with wisdom the ownership of placer mines, rose to meet the question of lode claims, and decreed that ownership should attach to the thing of value, namely, the thin, sheet-like veins of quartz, and that a claim should consist of a certain horizontal block of the vein, however it might run, but extending indefinitely downward with a strip of surface, on or embracing the vein's outcrop, for the placing of necessary machinery and buildings. Under this theory, the lode was the property, and the surface became a mere easement.

"This early California theory of a mining claim, consisting of a certain number of running feet of vein with a strip of land covering the surface length of the claim, is the obvious foundation for the federal legislation and present system of public

disposition and private ownership of the mineral lands west of the Missouri River. Contrasted with this is the mode of disposition of mineral-bearing lands east of the Missouri River, where the common law has been the one rule, and where the surface tract has always carried with it all minerals vertically below it.

"The great coal, iron, copper, lead, and zinc wealth east of the Rocky Mountains, have all passed with the surface titles, and there can be little doubt that if California had been contiguous to the eastern metallic regions, and its mineral development progressed naturally with the advance of home making settlements, the power of common law precedent would have governed its whole mining history. But California was one of those extraordinary historic exceptions that defy precedent and create original modes of life and law. And since the developers of the great precious metal mining of the far West have for the most part swarmed out of the California hive, California ideas have not only been everywhere dominant over the field of industry, but have stemmed the tide of federal land policy and given us a statute book with English common law in force over half the land and California common law ruling in the other.”

"The discovery of gold in California," says Justice Field, speaking from the Supreme Bench of the United States, “was followed, as is well known, by an immense immigration into the State, which increased its population within three or four years from a few thousand to several hundred thousand. The lands in which the precious metals were found belonged to the United States, and were unsurveyed and not open by law to occupation and settlement. Little was known of them further than that they were situated in the Sierra Nevada mountains. Into these mountains the emigrants in vast numbers penetrated, occupying the ravines, gulches and canyons and probing the earth in all directions for the precious metals. Wherever they went they carried with them the love of order and system of fair dealing which are the prominent characteristics of our people. In every district which they occupied they framed certain rules for their government, by

which the extent of ground they could severally hold for mining was designated, their possessory right to such ground secured and enforced, and contests between them either avoided or determined. These rules boie a marked similarity, varying in the several districts only according to the extent and character of the mines; distinct provision being made for different kinds of mining, such as placer mining, quartz mining, and mining in drifts or tunnels. They all recognized discovery, followed by appropriation, as the foundation of the possessor's title, and development by working as the condition of its retention. And they were so framed as to secure to all comers within practicable limits absolute equality of right and privilege in working the mines. Nothing but such equality would have been tolerated by the miners, who were emphatically the law-makers, as respects mining upon the public lands in the State. The first appropriator was everywhere held to have, within certain well-defined limits, a better right than others to the claims taken up; and in all controversies, except as against the government, he was regarded as the original owner, from whom title was to be traced. * * * These regulations and customs were appealed to in controversies in the State Courts, and received their sanction; and properties to the value of many millions rested upon them. For eighteen years, from 1848 to 1866, the regulations and customs of miners, as enforced. and moulded by the Courts and sanctioned by the legislation of the State, constituted the law governing property in mines and in water on the public mineral lands."

Jennison vs. Kirk, 98 U. S. 453.

ORIGIN OF RULES AND REGULATIONS.

There is considerable difference of opinion whether these rules and regulations were the spontaneous creation of the miners of "'49 and the spring of '50." Mr. Gregory Yale, in his valuable treatise on "Mining Claims and Water Rights," contends that they are not, and claims that Senator Stewart of Nevada, in his brilliant letter to Senator Ramsey, of Minnesota, ascribes undeserved merit to the early miners