the extraordinary conditions which confronted them, and so well did they accomplish their task as to mining that the rules and customs adopted by the miners, first in California and later on in other territories and states, received the approval of the courts, of the local Legislatures, and, finally, of Congress.

Of these miners' rules and regulations, and the relation which the act of Congress of 1866 bore to them, Mr. Justice Field, in a passage often quoted, said: "The discovery of gold in California 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 cañons, and probing the earth in all directions for the precious metals. Wherever they went, they carried with them that love of order and system and 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, and their possessory right to such ground secured and enforced, and contests between them either avoided or determined. These rules bore a marked similarity, varying in the several districts only according to the extent and character of the mines; distinct provisions 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

5 The state of California, admitted to the Union in 1850, recognized miners' rules in 1851 by an act which provided that: "In actions respecting mining claims, proof shall be admitted of the customs, usages or regulations established and in force at the bar or diggings embracing such claims; and such customs, usages or regulations, when not in conflict with the Constitution and laws of this state, shall govern the decision of the action." St. 1851, p. 149, c. 5. Prior to any legislation by Congress, this act was held to make the miners' rules part of the general law.

"These usages and customs were the fruit of the times, and demanded by the necessities of communities who, though living under the common law, could find therein no clear and well-defined rules for their guidance applicable to the new conditions by which they were surrounded, but were forced to depend upon remote analogies of doubtful application and unsatisfactory results. Having received the sanction of the Legislature, they have become as much a part of the law of the land as the common law itself, which was not adopted in a more solemn form." MORTON v. SOLOMBO COPPER MIN. CO., 26 Cal. 527, 532, 533.

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 lawmakers, 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." •

And again, in St. Louis Smelting & Refining Co. v. Kemp," Mr. Justice Field said: "Previously to the act of July 9, 1870, Congress imposed no limitation to the area which might be included in the location of a placer claim. This, as well as every other thing relating to the acquisition and continued possession of a mining claim, was determined by rules and regulations established by miners themselves. Soon after the discovery of gold in California, as is well known, there was an immense immigration of gold seekers into that territory. They spread over the mineral regions, and probed the earth in all directions. in pursuit of the precious metals. Wherever they went they framed rules prescribing the conditions upon which mining ground might be taken up-in other words, mining claims be located and their continued. possession secured. Those rules were so framed as to give to all immigrants absolute equality of right and privilege. The extent of ground which each might locate-that is, appropriate to himselfwas limited, so that all might, in the homely and expressive language of the day, have an equal chance in the struggle for the wealth there, buried in the earth. * * * The rules and regulations originally established in California have in their general features been adopted throughout all the mining regions of the United States. They were so wisely framed, and were so just and fair in their operation, that they have not to any great extent been interfered with by legislation, either

6 JENNISON v. KIRK, 98 U. S. 453, 457-458, 25 L. Ed. 240. Of this passage Mr. Lindley says: "This exposition of the law governing mining rights, as it existed in the early history of the mining industry in the West, leaves nothing to be added by the author. The decision stands as a forensic classic. Judge Field was a part of the history of which he wrote. He served as an alcalde during the chaotic period antedating the admission of California as a state. He served his state in its first legislatures, and was the author of many of its early laws. As Chief Justice of its Supreme Court, his was the task to solve the great and overshadowing questions which arose over land titles in a new state coming into the Union under peculiar and novel conditions, and he carried to the Supreme bench of the United States, not only the practical knowledge acquired by personal contact with the mining communities, but a trained judicial mind." I Lindley on Mines (2d Ed.) § 44.

7 104 U. S. 636, 649, 650, 26 L. Ed. 875.

state or national. In the first mining statute, passed July 9, 1866, they received the recognition and sanction of Congress, as they had previously the legislative and judicial approval of the states and territories in which mines of gold and silver were found."

The fundamental thing to bear in mind about these early mining rules and customs, which related to district boundaries, the size and method of location of claims, the keeping of records by a district recorder, the amount of work required to keep a location alive, the way in which claims could be forfeited, when they should be deemed abandoned, etc., is that they are the foundation stones upon which our American mining law has been built. They have been called the American common law of mining."

With reference to the origin of these rules, the following words of a prominent mining lawyer are of interest: "Did these miners initiate or create their regulations something after the fashion ascribed to the makers of our own federal Constitution by Mr. Gladstone? Or did they but consciously adopt and here put in force known mining regulations of other countries, of which they were informed by tradition or reading, or by the knowledge of the inhabitants of these different lands who congregated in this new world? This is a subject of dispute. Those who adopt the views of Rousseau find here an illustration of the civil compact; others, the reproduction of laws derived intentionally from older states; others, the application of the organizing faculty of the American people to the circumstances of their new situation. Upon the one hand, it is asserted most vigorously, by those familiar through participation in the work, 'that the large emigration of young men who rushed to this modern Ophir found no laws governing the possession and occupation of mines but the common law of right, which Americans alone are educated to administer; that they were forced by the very necessity of the case to make laws for themselves.' Again, it is asserted that the mining code, as far as it can be traced, has sprung from the customs and usages of the miners, with rare applications of common-law principles by the courts to vary them; or that the origin of the rules and customs of the miners is immediately recognized by those familiar with Mexican ordinances and continental mining codes, and with the regulations of the Stannary convocations among the tin bounders of Devon and Cornwall in England, and the High Peak regulations of the lead mines in the county of Derby; finally, that all

8 For early district regulations, see the Report of J. Ross Browne on Mineral Resources in 1867, being H. R. Ex. Doc. No. 29, 39th Cong., 2d Sess.; Yale on Mining Claims and Water Rights, pp. 73-84. See, also, address by Mr. C. J. Hughes, Jr., of Denver, in 24 Am. Bar Ass'n Rep. (1901) p. 320 ff.

King v. Edwards, 1 Mont. 235.

these regulations are founded in nature, based upon equitable principles, comprehensive and simple, have a common origin, and are matured by practice. Halleck expressed the opinion that in the main the miners adopted, as best suited to their wants, the principles of the mining laws of Mexico and Spain, by which the right of property in mines is made to depend upon discovery and development, and that discovery is made the source of title, development or working the condition of its continuance, and that these two principles constitute the basis of all their local laws and regulations. The merit of adoption, the power of perceiving their appropriateness, and willingness to enforce them, whatever the source of suggestion or origin, belongs to the men who made these laws. At first they constituted all the law there was upon the subject, and we have here a modern instance of an original congregation of the people creating the law required by their necessities, upon the assumption that the right to legislate was inherent in the people themselves. They proceeded upon the theory that the public domain belonged to the people; that the mineral therein was the subject of free private acquisition, as a reward for discovery and occupation; and thus defied in effect the settled traditions and laws. of other countries, and the right of the United States as a government to the mineral contained in its lands. The forms adopted, the methods of operation, the ideas of right, the machinery of justice selected by these miners in their primitive, inartificial, but direct and expressive, resolutions, present to the student of jurisprudence and of its originals instructive objects of investigation, since they contain the history of the formation and growth of a living system of law." 10

However the rules originated, it must be said that the miners' meetings at which they were adopted played a part in the education and civilization of the mining frontier comparable only to the influence of the New England town meeting on New England institutions.

THE FEDERAL MINING STATUTES.

3. Though the state of California early laid claim to the gold and silver in the public domain within the state, the California Supreme Court in 1861 abandoned the doctrine and opened the way for uncontested federal legislation. Accordingly in 1866 Congress passed the first federal mining act. That act authorized the location of mining claims and provided for the patenting of lode claims. The failure to provide for the patenting of placer claims was corrected by the placer act of 1870, and the acts of 1866 and 1870 were merged in and im

10 Mr. Charles J. Hughes, Jr., of Denver, Colo, in 24 Am. Bar Ass'n Rep. (1901) pp. 325-327.

proved by the act of 1872. The act of 1872, as amended, is embodied in the provisions of the Revised Statutes of the United States on mining and the amendments thereto.

The Question of State Sovereignty.

Very early in the history of California the question of whether the state of California or the federal government owned the gold and silver in the public domain arose. It was conceded on all sides that under the government of Spain the right to the minerals was in the crown, and that on the separation of Mexico that right passed to and vested in the Mexican nation. It was also conceded by everybody that by the cession of California to the United States the title to the minerals passed from the Mexican nation to the United States. But it was contended "that the minerals of gold and silver which passed by the cession were held by the United States in trust for the future state, and that upon the admission of California the ownership of them vested in her." 11 The last contention was upheld by the California Supreme Court in 1853.12 That court said: "It is hardly necessary at this period of our history to make an argument to prove that the several states of the Union, in virtue of their respective sovereignties, are entitled to the jura regalia which pertained to the king at common law" 13—and asserted further: "In reference to the ownership of the public lands, the United States only occupied the position of any private proprietor, with the exception of an express exemption from state. taxation. The mines of gold and silver on the public lands are as much the property of this state, by virtue of her sovereignty, as are similar mines in the lands of private citizens. She has, therefore, solely the right to authorize them to be worked, to pass laws for their regulation, to license miners, and to affix such terms and conditions as she may deem proper to the freedom of their use. In her legislation upon this subject she has established the policy of permitting all who desire it to work her mines of gold and silver, with or without conditions; and she has wisely provided that their conflicting claims shall be adjudicated by the rules and customs which may be established by bodies of them working in the same vicinity." 14

Perhaps it was this assertion of state rights, as much as anything, that prevented early mining legislation by Congress, for it was not until 1861, at the beginning of the Civil War, in the case of Moore v.

11 MOORE v. SMAW, 17 Cal. 199, 217, 79 Am. Dec. 123.

12 Hicks v. Bell, 3 Cal. 219. See, also, Stoakes v. Barrett, 5 Cal. 36.

13 Hicks v. Bell, 3 Cal. 219, 226.

14 Hicks v. Bell, 3 Cal. 219, 227.