5.

Supplemental District Rules, Regulations, and Customs.

6. The Attitude of the Courts Toward the Miner.

DEFINITION OF AMERICAN MINING LAW.

1. American mining law consists of (1) federal legislation; (2) supplemental state legislation; and (3) local mining rules, regulalations, and customs. All these, judicially expounded and applied, constitute the law applicable to that part of the public mineral domain of the United States which has been disposed of, and to that part which is to be disposed of, under the federal mining act of 1866 and the subsequent federal mining acts.

American mining law consists of mining customs and legislation interpreted by court decisions in the light of the history of mining in America. It is found primarily in congressional legislation and in United States Supreme Court decisions; but these are supplemented by the decisions of the lower federal courts and of the state courts, by such state enactments as are authorized by and are consistent with the acts of Congress, and by such district mining rules, regulations, and customs as are consistent both with the state laws and with the congressional legislation. American mining law is the law applicable to

COST.MIN.L.-1

what remains of the public mineral domain of the United States and to those.parcels of mineral lands which have been disposed of under the federal mining acts to individuals, but to which for certain purposes, such as to govern extralateral rights, the mining laws still appl American mining law relates, therefore, to those parts of what are now or have been the public mineral lands of the United States, to which the federal mining statutes have applied, and to which, even after patent and for some purposes, they still apply.

THE ORIGIN OF AMERICAN MINING LAW.

2. American mining law began with the discovery of gold in California, and its first phase was that of rules, regulations, and customs adopted and enforced by the miners in the various mining districts created by them. These rules, regulations, and customs governed the location and retention of mining claims. They originated in necessity, have received federal as well as state approval, and have been called the American common law of mining.

It was through the discovery of gold in California in 1848 that American mining law came into existence.1 The discovery of gold on the public land of the United States in the then comparatively inaccessible region of California, and the consequent rapid influx there of thousands of miners and adventurers, created in an astonishingly short space of time unique conditions, which demanded and received a legal solution just as unusual. The inrushing treasure seekers found a land belonging to the United States and under military government, and they proceeded to enter in and possess it, although there was no precedent for such action, and although the English common-law theory of sovereign mining rights was distinctly against it. On February 12, 1818, the Mexican laws relating to mining were declared by Colonel Mason, the military governor of California, to be of no force and effect, and the population of the gold fields thereupon proceeded to

1 "Commodore Sloat raised the American flag at Monterey July 7, 1846. Marshall discovered gold at Coloma [Cal.] in January, 1848. The treaty of Guadalupe-Hidalgo was concluded February 2, exchanged May 30, and proclaimed July 4, 1848. This treaty added to the national domain an area of more than half a million square miles, embracing the states of California, Nevada, Utah, the territories of Arizona (except the Gadsden Purchase of 1853) and New Mexico west of the Rio Grande and north of the Gadsden Purchase, and the state of Colorado west of the Rocky Mountains, and the southwestern part of Wyoming." 1 Lindley on Mines (2d Ed.) § 40.

2 His proclamation read: “From and after this date the Mexican laws and customs now prevailing in California relative to the denouncement of mines are hereby abolished." Yale on Mining Claims and Water Rights, 17. Compare Castillero v. U. S., 2 Black (U. S.) 18, 17 L. Ed. 360.

evolve mining laws of their own. The military governor did not interfere, for, as he said, while the entire gold fields, with the exception of a few Mexican land grants, belonged to the United States, and he was anxious to secure rentals and fees from those who took the gold therefrom, still, "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 to permit all to work freely, unless broils and crimes should call for interference."

3

Left by the military governor to "work freely" in a country where general law was undefined and largely unenforceable, the mining population, under the leadership, seemingly, of the Cornish miners, adopted a system of miners' regulations, enacted at meetings of the miners of self-created mining districts, and also evolved customs which the miners of the respective districts enforced, even though those customs were not embodied in the regulations adopted at the miners' meetings. The regulations voted at the early miners' meetings applied to many things beyond the legal jurisdiction of such assemblages. For instance, they imposed banishment for Asiatics, whipping and banishment for practicing lawyers, and death for horse or mule stealing and for murder. But so far as they prescribed rules about mining matters they were, in general, legally valid. Trespassers upon the public domain,

3 Report of August 17, 1848, contained in Donaldson's Public Domain, 312317, at page 314.

4 A good example of the early rules is found in those of Jacksonville mining camp, in Tuolumne county, Cal. They are found in Donaldson's Public Domain, 317, 318, and are as follows:

"Article I. The officers of this district shall consist of an alcalde and sheriff, to be elected in the usual manner by the people, and continue in office at the pleasure of the electors.

"Art. II. In case of the absence or disability of the sheriff, the alcalde shall have power to appoint a deputy.

“Art. III. Civil causes may be tried by the alcalde, if the parties desire it; otherwise, they shall be tried by jury.

"Art. IV. All criminal cases shall be tried by a jury of eight American citizens, unless the accused shall desire a jury of twelve persons, who shall be regularly summoned by the sheriff and sworn by the alcalde, and shall try the case according to the evidence.

"Art. V. In the administration of law, both civil and criminal, the rule of practice shall conform as near as possible to that of the United States; but the forms and customs of no particular state shall be required or adopted. "Art. VI. Each individual locating a lot for the purpose of mining shall be entitled to twelve feet of ground in width, running back to the hill or mountain and forward to the center of the river or creek, or across a gulch or ravine (except in cases hereinafter provided for), lots commencing in all cases at low-water mark and running at right angles with the stream where they are located.

"Art. VII. In cases where lots are located according to Art. VI and the parties holding them are prevented by the water from working the same, they

and far from the seat of government in actual distance and in the means of communication, the swarming thousands, suddenly engaged in mining in California, had to create for themselves laws adapted to

may be represented by a pick, shovel, or bar until in a condition to be worked; but, should the tool or tools aforesaid be stolen or removed, it shall not dispossess those who located it, provided he or they can prove that they were left as required; and said location shall not remain unworked longer than one week, if in condition to be worked; otherwise, it shall be considered as abandoned by those who located it (except in cases of sickness).

"Art. VIII. No man or party of men shall be permitted to hold two locations, in a condition to be worked at the same time.

"Art. IX. No party shall be permitted to throw dirt, stones, or other obstructions upon located ground adjoining them.

"Art. X. Should a company of men desire to turn the course of a river or stream for the purpose of mining, they may do so (provided it does not interfere with those working below them), and hold and work all the ground so drained; but lots located within said ground shall be permitted to be worked by their owners, so far as they could have been worked without the turning of the river or stream; and this shall not be construed to affect the rights and privileges guaranteed or prevent redress by suit at law.

"Art. XI. No person coming direct from a foreign country shall be permitted to locate or work any lot within the jurisdiction of this encampment. "Art. XII. Any person who shall steal a mule, or other animal of draught or burden, or shall enter a tent or dwelling and steal therefrom gold dust, money, provisions, goods, or other articles amounting in value to $100 or over, shall, on conviction thereof, be considered guilty of felony, and suffer death by hanging. Any aider or abettor therein shall be punished in like manner.

"Art. XIII. Should any person willfully, maliciously, and premeditatedly take the life of another, on conviction of the murder, he shall suffer death by hanging.

"Art. XIV. Any person convicted of stealing tools, clothing, or other articles, of less value than $100, shall be punished and disgraced by having his head and eyebrows close-shaved and shall leave the encampment within 24 hours.

"Art. XV. The fee of the alcalde for issuing a writ or search warrant, taking an attestation, giving a certificate or any other instrument of writing shall be five dollars; for each witness he may swear, two dollars; and one ounce of gold dust for each and every case tried before him.

"The fee of the sheriff in each case shall be one ounce of gold dust and a like sum for each succeeding day employed in the same case. The fee of the jury shall be half an ounce in each case.

"A witness shall be entitled to four dollars in each case.

"Art. XVI. Whenever a criminal convict is unable to pay the costs of the case, the alcalde, sheriff, jurors, and witnesses shall render their services free of remuneration.

"Art. XVII. In case of the death of a resident of this encampment the alcalde shall take charge of his effects and dispose of them for the benefit of his relatives or friends, unless the deceased shall otherwise desire it.

"Art. XVIII. All former acts and laws are hereby repealed and made null and void, except where they conflict with claims guaranteed under said laws. "Abner Pitts, Jr., Secretary.

"Jacksonville, January 20, 1850."