877. Character of the miners and the laws made by them - Result of the discovery of gold in California.The discovery of gold in California was followed, as is well known, by extensive immigration into the state, which increased its population within three or four years from a few thousand to several hundred thousand people. The lands in which the precious metals were found belonged to the United States and were reserved and were not open by law to occupation and settlement. Little was known of them, except that they were situated in the Sierra Nevada mountains. Into these mountains emigrants in vast numbers penetrated, occupying the ravines, gulches and canyons, and probing the earth in all directions for the precious metals.1

In the case just cited, Mr. Justice Field, speaking of the history of the times and of the miners and the rules made by them, uses this language: "Wherever they went they carried with them that love of order and system and fair dealing which are prominent characteristics of our people. In every district which they occupied they framed certain rules for their government, by which the extent of ground which they could safely hold for mining was designated, their possessory right to such ground enforced, and contests between them either avoided or determined. These rules bore a marked similarity, varying in the several districts only according to the character and extent of the mines, distinct provisions being made for different kinds of mining, such as placer mining, quartz mining, and mining in drifts or tunnels. . . The first appropriator was everywhere held to have, within certain well-defined limits, a better right than others to the claim 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.” 2

$78. Consent of the governed-A social compactPenal provisions.-They were laws resting on compact Jennison v. Kirk, 98 U. S. 453, 25 L. ed. 240.

2 Id., 25 L. ed. 242. See also Watervale M. Co. v. Leach (Ariz.), 33 Pac. Rep. 420.

1

alone — that is, so far as their validity was concerned. But nevertheless, as a general rule, laws were never more faithfully observed than were those. There may have been other reasons for this truth-doubtless there were, as we shall presently observe. The great truth that “law is organized power" was never more positively demonstrated than in respect of the miners' rules. It is true, as said by Senator Stewart: "They (the miners) made the law and they obeyed it." But it is not too much to say that obedience was as rigidly enforced here as under the most exacting municipal authority. Concerning this subject Mr. Lindley has succinctly grouped some of the penal provisions of the miners' rules and the mode of enforcing the same, and as no more correct statement can be made, we take the liberty of reproducing it: "For example, those adopted at Jacksonville, California, provided for the election of an alcalde, who propounded the law in a court from whose judg ment there was no appeal, and wherein the rule of practice was 'to conform as nearly as possible to that of the United States; but the forms of no particular state shall be required or adopted.' To steal a mule or other animal of 'draft or burden,' or to enter a tent or dwelling and steal therefrom gold-dust, money, provisions, goods or other valu ables, amounting in value to $100 or over, was considered a felony, and on conviction thereof the culprit should suffer death by hanging.' Should the theft be of property of less value, the offender was to be 'disgraced' by hav ing his head and eyebrows close-shaved, and by being driven out of camp. The wilful and premeditated taking of human life was an offense of the same grade as stealing a mule, death being the penalty. A sheriff was elected to carry judgments into effect, and generally to enforce the decrees of the judge and preserve the peace."2

§ 79. Notice, boundaries, work required and other provisions Forfeiture, and for what.- These rules without

1 Speech of Mr. James C. Carter, 2 Lindley, Mines, § 42, pp. 46, 47. see ante, § 1.

exception required discovery to precede location, the posting of notice and recording the claim, and the marking of boundaries, as the essentials of a valid location or claim. They also required work as a condition of holding them, which was usually specified as a fixed amount in value or a fixed number of days within a given period. No dog-in-themanger policy, no drones, were allowed here. It was a common understanding that when a location was made it would be followed with the requisite amount of development work or improvements, and forfeiture was the penalty for not working.1

$80. Forfeiture, what constitutes - Grounds for.— But forfeiture only followed when that was made the penalty. It mattered not what harsh rule was sought to be established requiring work, or any other act, as a condition to obtain or hold a claim; unless forfeiture was made the penalty, the court, following well-known rules, declined to make that the consequence of failure. The supreme court of California in an early case, which has been followed as authority, thus states the rule: "The right of a mining claim vests by the taking in accordance with local rules. The failure to comply with any one of the mining rules and regulations of the camp is not a forfeiture of title. It would be enough to hold the forfeiture as the result of a non-compliance with such of them as make non-compliance a cause of forfeiture." 2

§ 81. Dips, spurs and angles-Origin of the termsSource of the apex rule.-The phrase, "dips, spurs and angles," as defining or intended to define the right to pursue the vein on its downward course or dip, seems to have had its origin as a phrase, or more properly a series of phrases, in the miners' rules. Nothing of a similar nature was known under the Mexican law, the common law or the civil law.

1 Yale, Mining Claims and Water Rights, pp. 77-79.

2 McGarrity v. Byington, 12 Cal. 231, 426; Johnson v. McLaughlin, 1 Ariz. 493, 4 Pac. Rep. 130.

True, as we have had occasion to remark, the idea of the existence of a right, or, perhaps more properly, that a right should exist in the discovery of a vein, to follow it on its dip wherever it might go, must have proceeded partially from the right recognized in Derbyshire of granting a more extended right in respect of a "rake vein " than any other.1 And likewise in an ancient Prussian statute, long obsolete, wherein the right was accorded to a discoverer or owner of a superficial outcrop of a vein to pursue it any depth on its dip. This thought may also have received an impulse from. the doctrine laid down by De Fooz, who, quoting from Jousselin, says: "Mines can be worked with advantage only when they are treated en masse, or in sections of a certain extent, without reference to surface boundaries." At all events the discussion of this question, which is postponed to a future portion of this work, opens a field for discussion wherein much can be said upon both sides. On the one hand it is but simple justice that he who discovers the outcrop or apex of a vein should be permitted to follow it on its dip wherever it may go to an endless extent; while on the other hand there is no shutting our eyes to the fact that in practice it has been provocative of more disputes than any other one principle of mining law. Indeed, that seems to have been the main cause for the abolition of the system in Prussia.5

§ 82. Alien ownership opposed-Early traces of thought, afterwards crystallized into statute.- Enough has already appeared herein to illustrate the righteous opposition to the practice, as matter of right, of aliens locating and holding mining claims; that it was a fruitful source of disputes and trouble cannot be questioned; that the encroachment of pauper labor presented a serious menace to existing political

1 See ante, §§ 34, 35. See also Yale, Mining Claims and Water Rights, p. 77.

2 Mineral Resources, 1869, p. 195. 3 De Fooz, Mines, p. 12; Jousselin,

Traite des servitudes d'utilite publique.

4 Post, Part XI.

5 Klosterman, Prussian Mining Laws, 1870.

of

conditions cannot be gainsaid; and that the seriousness of this question prompted the insertion in the federal statute of the provision that the mineral lands were open only to location by citizens of the United States and those who had declared their intention to become such, no one will dispute. That the force of the statute has somewhat miscarried, as we shall see when we consider that question,' detracts nothing from the seriousness of the mischief sought to be corrected by it, and hence one of the purposes of its enactment. To illustrate the force of these observations we need only quote the words of one who, from the fact of living and practicing and writing law at a time contemporaneous with the evil, is therefore best qualified to speak of it: "The mining laws always provide for the legal status of those who shall be entitled to the privileges of the miners of the district. The restriction is to citizens and those entitled under the law to become citizens. The construction among the miners under these laws excludes the Mongolian race. In some of the laws, like those of Columbia district, Tuolumne county, the rule is that 'no Asiatics shall be allowed to work in this district.' This excludes them as laborers as well as locators. At New Kanaka Camp, in the same county, article 7 reads: Chinamen shall not be allowed to own claims in this district, either by purchase or pre-emption.' The rule is general throughout the mines. The holders of claims are not allowed to employ Chinamen to work for them. This sentiment is deep-rooted and all-pervading. There are exceptions in some localities where the matter is treated with silent toleration. The law of the case is another matter, and it is beyond the reach of state legislation to alter it, as seen when treating upon the foreign miners' tax, and the true correction must be left to time, which is the most convenient remedy for social evils when there is no other at hand."2

1 See post, Part V.

Rights, pp. 75, 76. See also ante,

2 Yale, Mining Claims and Water §§ 63-68.