tion of a bureau of mining was recommended in his last annual report, and stating that there can be no sufficient reason for withholding these mineral lands from the market (The Public Domain, in 1883, page 319), says:

"Congress has not legislated with a view to securing an income from the product of the precious metals from the public domain. It is estimated that two or three hundred thousand able-bodied men are engaged in such mining operations on the public lands, without authority of law, who pay nothing to the government for the privilege, or for permanent possession of property worth, in many instances, millions to the claimants.

"The existing financial condition of the nation obviously requires that all our national resources and the product of every industrial pursuit, should contribute to the payment of the public debt. The wisdom of Congress must decide whether the public interest would be better promoted by a sale in fee of these mineral lands, or by raising a revenue from their annual product."

In the annual report of the Secretary of the Treasury for the year 1865, the substitution of an absolute title in fee for the indefinite possessory rights or claims under which the mines were held by private parties was earnestly recommended:

"The attention of Congress is again called to the importance of early and definite action upon the subject of our mineral lands, in which subject are involved questions not only of revenue, but social questions of a most interesting character. Copartnership relations between the government and the miners will hardly be proposed, and a system of leasehold, (if it were within the constitutional authority of Congress to adopt it, and if it were consistent with the character and genius of our people,) after the lessons which have been taught of its practical results in the lead and copper districts, cannot of course be recommended.

"After giving the subject as much examination as the constant pressure of official duties would permit, the Secretary has come to the conclusion that the best policy to be

pursued with regard to these lands is the one which shall substitute an absolute title in fee for the indefinite possessory rights or claims now asserted by miners. The right to obtain 'a fee simple to the soil' would invite to the mineral districts men of character and enterprise; by creating homes (which will not be found where title to property cannot be secured), it would give permanency to the settlements, and, by the stimulus which ownership always produces, it would result in a thorough and regular development of the mines.

"A bill for the subdivision and sale of the gold and silver lands of the United States was under consideration by the last Congress, to which attention is respectfully called. If the enactment of this bill should not be deemed expedient, and no satisfactory substitute can be reported for the sale of these lands to the highest bidder, on account of the possessory claims of miners, it will then be important that the policy of extending the principle of preemption to the mineral districts be considered. It is not material, perhaps, how the end shall be attained, but there can be no question that it is of the highest importance in a financial and social point of view, that ownership of these lands, in limited quantities to each purchaser, should be within the reach of the people of the United States, who may desire to explore and develop them."

FIRST FEDERAL LEGISLATIVE RECOGNITION.

No action by Congress even indirectly recognized the conditions under which the miners had taken possession of the mines until the Act of February 27, 1865, providing for a District and Circuit Court for the district of Nevada, the ninth section of which provides as follows:

"No possessory action between individuals in any of the courts for the recovery of a mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land on which such mines lie is in the United States, but each case shall be adjudged by the law of possession."

The only other two instances before the general law of 1866, where Congress recognized possessory rights or rules of miners, or granted a fee in mineral lands, were local in their character and application; one was section 2 of the Act of May 5, 1866, (14 U. S. Stat. at Large, 43), concerning boundaries of the State of Nevada; and the other was the Act of Juy 25, 1866, (14 U. S. Stat. at Large, 242), commonly known as the Sutro Tunnel Act.

INTRODUCTION OF LODE LAW OF 1866.

On May 28, 1866, Senator Conness, chairman of the committee on mines and mining in the United States Senate, reported back to that body Senate bill No. 257, entitled "An Act to regulate the occupation of mineral lands, and to extend the right of pre-emption thereto," and recommended the passage of a substitute. In his report, he took strong grounds against all measures for the sale of the mines to the highest bidders and for the taxation of those engaged in working them. He claimed that it was the first duty of Congress to set at rest all doubts and apprehensions affecting mining property by the promulgation of a policy which should give full and complete protection to all existing possessory rights upon liberal conditions, with full and complete legal guarantees, and which should provide the most generous conditions looking toward further explorations and developments. He especially commends the features of the bill recognizing the rules and regulations of the miners:

"Another feature of the bill recommended," says the report, “is, that it adopts the rules and regulations of the miners in the mining dstricts where the same are not in conflict with the laws of the United States. This renders secure all existing rights of property, and will prove at once a just and popular feature of the new policy. Those 'rules and regulations' are well understood, and form the basis of the present admirable system in the mining regions; arising out of necessity, they became the means adopted by the people themselves for establishing just protection to all.

"In the absence of legislation and statute law, the local courts, beginning with California, recognize those 'rules and regulations,' the central idea of which was priority of possession, and have given to the country rules of decision, so equitable as to be commanding in their national justice, and to have secured universal approbation. The California reports will compare favorably, in this respect, with the history of jurisprudence in any part of the world. Thus the miners' 'rules and regulations' are not only well understood, but have been construed and adjudicated for now nearly a quarter of a century. It will be readily seen how essential it is that this great system, established by the people in their primary capacities, and evidencing by the highest possible testimony, the peculiar genius of the American people for founding empire and establishing order, shall be preserved and affirmed. Popular sovereignty is here displayed in one of its grandest aspects and simply invites us not to destroy, but to put upon it the stamp of national power and unquestioned authority."

LEGISLATIVE HISTORY OF THE BILL.

The legislative history of the passage of this bill, which, after certain amendments went upon the statute-book as the general lode mining law of July 26, 1866, under a very anomalous title, is the history of a battle royal in the favor of the lasting interests of the Western gold-producing regions. I have taken the account of it from Yale's valuable work on "Mining Claims and Water Rights," pages 10 to 12, but have not had the opportunity to verify from the original official records the account there given.

"The miners of California," says Mr. Yale, writing in 1867, "and the States and Territories adjacent thereto, have but a very inadequate idea of the imminent peril in which the pursuit in which they are engaged was placed at the commencement of the Thirty-ninth Congress. Two years ago there was a strong dispositon in Congress and the East, generally, to make such a disposition of the mines as would

pay the national debt. The idea of relieving the nation of the payment of the enormous taxes which the war had saddled upon us by the sale of the mines in the far distant Pacific Slope, about which few people here have any knowledge whatever, was the most popular that was perhaps ever started --compelling other people to liquidate our obligations, has been in all ages and in all nations a highly comfortable and popular proceeding. There were some at the time of which I write who would not be satisfied with the sale of the mines. They held that even after the sale the government should be made a sharer in the proceeds realized from them. The first bill on the subject was introduced in the Senate by Mr. Sherman, of Ohio, and in the House by Mr. Julian, of Indiana. Both of these bills contained the most odious features. Sherman's bill went to the committee on public lands, of which Mr. Stewart was a member. After much consideration, it was understood that the committee would report adversely. Julian's bill received a much more favorable consideration in the House. In fact, the House. went so far as to pass a resolution endorsing legislation substantially of the character contemplated in Julian's bill. After much canvassing, Mr. Conness and Mr. Stewart came to the conclusion that it was no longer safe to act on the defensive, and that it was necessary to determine what legislation would be acceptable, and to make a bold move to obtain it. The Secretary of the Treasury was then one of the strongest advocates of the sale of the mines, and appeared to be under the impression that it would yield a large revenue. The movement thus far had been encouraged by him, and it was thought that a partial success of his views would be more satisfactory to him than an entire defeat. Mr. Conness accordingly suggested to him to have a bill prepared in his department, which would avoid the odious provisions of the other two propositions, and get some Senator to introduce it, assuring him that a liberal measure would receive the favorable consideration of the Pacific delegation. The result was that the secretary had prepared the