Mineral Land Policy Prior to 1848. Previous to the discovery of gold in California the United States government had experience with mining regulations of lands containing only the base metals. The early policy of the government was to reserve the mineral lands, subject to lease by miners. For a few years the miners paid the rent with some regularity, but after 1834 the expense of collecting the rent exceeded the amount collected. Hence in his message to Congress of December 2, 1845, President Polk recommended to abolish the leasing system, and to offer the mineral lands for sale. He pointed out that the leasing system had not only proved a burden upon the national treasury, but had led to a wasteful manner of working the mines, and had given rise to much "friction between the United States and individual citizens." 2 By the acts of Congress of July 11, 1846, March 1, 3, 1847, the mineral lands for lead, copper, and other base metals were put on the market for sale. 3
Attempts to Legislate for the California Mines. When gold was discovered in California 4 the government found itself at a Acknowledgment is due Professor Herbert E. Bolton for advice and suggestions. loss for knowledge as to how to act. The plans suggested by the government's agents in California differed greatly. Colonel Mason recommended either to grant licenses to work small tracts of land, of about one hundred yards square, at a rent ranging from one hundred to one thousand dollars per annum; or to sell the lands in tracts of twenty or forty acres, at public auction, to the highest bidder. 5 On the other hand, Thomas Butler King, in his report to the President, strongly opposed the policy of selling the mineral lands. He believed that capitalists, by means of paid secret prospectors, would find out the best lands, overbid the poor miners, and thus monopolize the best mineral lands. The inequality in the distribution of wealth would produce discontent among the poor miners, and it would be doubtful whether any law opposed to the interests of the great masses could be enforced. Even the employment of troops would be ineffectual, for the soldiers would desert, and anarchy would result. His plan was to regard the mineral lands as the common treasure of the American people, and any American citizen, by paying to the commissioner of mines an ounce of gold, or sixteen dollars, should be entitled to receive a license to dig anywhere in California for one year. The money collected from these gold mines was to be devoted to educational purposes and to the construction of roads and bridges in the mineral districts; and to the discharge of the indemnity to Mexico. 6
Shortly after Mason's report was received in Washington, President Polk recommended to Congress either to preserve the mineral lands of the Pacific coast for the use of the United States government; or to sell them in small quantities, at a fixed minimum price which should secure a large return of money to the national treasury, and at the same time "lead to the development of their wealth by individual proprietors and purchasers." 7 In accordance with these recommendations, the Senate Committee on Public Lands reported a bill to divide the mineral lands into lots of about two acres each, to be offered for sale at public auction, at a price not less than $1.25 an acre. Senator Benton was opposed to any plan which aimed to secure revenue from the mineral lands, especially from the placers, which contained only one crop of gold. His own bill provided for agents to grant permits for working the mines without any revenue purposes. His policy, he claimed, would preserve order among the miners; while the plan of the committee would place the miners in opposition to the law. 8 Neither plan was adopted.
Also President Taylor and his Secretary of the Interior, Ewing, took considerable interest in the mineral land question. Secretary Ewing recommended that the quartz mines, which required large capital for their successful working, should be sold; but the placer mines should be leased on favorable terms, so that many industrious citizens could work them and pay the rent out of the proceeds. He did not think that the government would experience difficulties in collecting the rent. In his annual message of December 4, 1849, President Taylor recommended that the gold fields be divided into small tracts "and be disposed of by sale or lease." 9
In the absence of any legislation the military officials in California, who had charge of all government property in the territory, adopted the laissez faire policy with regard to the gold fields. Colonel Mason believed that the miners ought to pay some rent to the government for the privilege of digging in government lands, but since he had no instructions to that effect, nor sufficient soldiers to enforce such rules in such an extensive territory, he decided not to interfere. General Smith at first intended to expel all the foreigners from the gold fields. He admitted that legally all gold diggers were trespassers, but since Congress always made distinctions in favor of early settlers by granting pre-emption, he felt justified in allowing American citizens to work in the mines. He wrote to the consul at Panama, asking him to inform the other consuls on the South American coast that the laws of the United States forbidding trespassing on the public lands would be enforced by him in California against all foreigners. 10 Under the color of this proclamation many American miners undertook to drive out the South American and Mexican miners. But General Riley declared that no persons, neither American citizens nor foreigners, had any right to dig gold in California on government land; but until Congress should legislate in this matter, he would not permit any class of miners to monopolize the gold fields. 11
Attitude of California to the Mineral Land Question. The question of the regulation of the gold fields attracted great interest in California. The discussion on the subject at the constitutional convention of 1849 indicates that the general sentiment of the delegates, particularly from the mining districts, was in favor either of free mining, or government regulations for the benefit of the state. One resolution requested Congress to allow the free use of the mineral lands to all American citizens. Another resolution recommended that Congress should by legislative enactment throw open the placer mines to all people, at the payment of five dollars a month for the permit to dig. The income from this source was to be turned over to the State of California. Some favored the entire relinquishment of the mines to the state. 12
The first legislature took considerable interest in the mining question. In the assembly two reports were submitted by a select committee, advocating that the privilege of working the mines should be restricted to American citizens, and foreigners who had legally declared their intention to become citizens. The argument was that California had been acquired at the expense of the American nation, hence the benefits from this acquisition should accrue to Americans only. It was also argued that most of the foreign miners were adventurers, peons of low character, who might jeopardize the morals of the young Americans, and in time of war a large foreign population in California would prove a positive danger to the safety of the state. On the question of the disposition of the mineral lands the committee could not agree. The majority was not opposed to leasing or even selling the mineral lands in small tracts. But the minority report opposed the policy of leasing as well as selling, believing that either system would result in the monopolization of all the best placers in the hands of the capitalists. The policy advocated in the minority report was to let the American citizens work the mines freely without a tax other than what might be necessary to secure them some protection. 13 The adoption of the minority report by the assembly indicates that the policy then advocated was commonly favored in California, especially among the mining communities.
Fremont's Bill. Shortly after the California delegation took their seats in Congress, Fremont introduced a bill in the Senate to make temporary provision for the working of the gold mines in California. Its leading principle, in the opinion of its author, was to reject all ideas of making the minerals in California a source of revenue for the Federal government; and to prevent any possibility of the lands being monopolized by the capitalists. The bill provided for a number of agents in the mining districts whose duties were to grant permits to American citizens, to visit the mines, and settle disputes. The quantity of land allowed to each miner was to be a thirty-foot square lot to be worked by manual labor on a placer, and two hundred and ten feet square the size of a lot to be worked by machinery in the rocks. The fee for the permits was to be one dollar a month for a placer, and twenty-five dollars a month for a mine. A certain per cent of the proceeds from the sale of the permits was to go for internal improvements in the State of California. No person could have two permits at the same time; but to encourage prospecting the first discoverer was to have double the quantity without paying any fee. The agents, together with a jury of six disinterested miners in the neighborhood, were to settle all disputes equitably.
The bill elicited considerable discussion in the Committee of the Whole. Seward moved to amend the bill, extending the privilege of mining gold to persons who should legally declare their intention of becoming citizens. Such a policy, he said, would induce immigration to California. The California Senators agreed to the amendment after it was modified to include only Europeans. The principal objection of Ewing was the absence of any provision in the bill insuring the national government a revenue from the mines, to cover the expenses of the acquisition of the territory. His amendment provided that the miner should deliver weekly the gold collected to the United States district agent and be paid in United States coin at the rate of sixteen dollars an ounce, which was the current rate in California. Any one refusing to comply with this law should forfeit the permit and location. Benton and the California Senators opposed the amendment, contending that the government's experience with the lead mines in Illinois and Missouri were conclusive against any idea of deriving a revenue from the California mineral lands. The amendment was rejected.
Filch, on the other hand, opposed Fremont's bill on the ground that it was a leasing system, which had been found to be impracticable to be carried out in a decentralized government like the United States; and in derogation to the rights of the states, for it withheld from state taxation great quantities of land. His substitute plan provided for the giving of the legislative sanction of the national government to a policy of the freedom of the mines unhindered by any agents and permits. This was the policy that was actually pursued, without legislative provision, up to 1866. It was, however, believed in the Senate that some machinery was needeed for the preservation of order in the mines. After being amended, Fremont's bill passed the Senate, but its friends did not succeed in getting it taken up in the House, where it was laid over to the next session. 14
In an "Address to the People of California," Fremont defended his plan, maintaining that, in view of the novelty and difficulty of the subject, his policy was the most practicable and the most liberal to the miners. 15 But the majority of the people of California were against government regulation of the mineral lands. The bill is odious and impracticable, said the Picayune. 16 The Courier was opposed to rents or fees, except on the quartz mines. 17 The Sacramento Transcript held that on account of distance Congress was not competent to legislate wisely for the gold mines. 18 There is but one method left for the disposal of the California mineral lands, said the Herald, and that is the cession of those lands to the State of California, for the state will know better than the Federal government how to administer the mines. 19
California's Opposition to Fillmore's Recommendation. In spite of the determined opposition of California to the policy of selling the gold fields, President Fillmore and his Secretary of the Interior, Stuart, recommended to Congress to divide these lands into small tracts to be sold "under such restrictions, as to quantity and time, as will insure the best price, and guard most effectually against combinations of capitalists to obtain monopolies." They admitted that the leasing system would be more profitable to the government, and would afford the best securities against monopolies, but such a system, they believed, would create feuds between the government and the lessees, making it difficult to collect the rents. 20
President Fillmore's recommendation was criticized in California as undemocratic and in the interest of the capitalists. The suggestion of President Fillmore, said the Pacific News, shows that the authorities in Washington do not understand the situation in California. The adoption of such a policy would inevitably result in monopoly, and in such a case the land would be either kept for speculation and not be mined; or the laboring people would be forced to pay a high price for it. The Herald pointed out that the miners had no desire to own the title in fee simple, for as soon as the "lead" gives out they move to another place. The mineral lands, said the Alta, are best as they are now, and they can never become a source of revenue for the government. 21 In the assembly a joint resolution was adopted declaring that the policy of selling the mineral lands would be in conflict with the true interests of the state and nation, for the richest mineral lands would fall into the hands of speculators, resulting in the stoppage of immigration and the retardation of the progress of California. It warned the government that the miners, grown up in a spirit of independence, had become accustomed to consider the mineral lands as a common heritage, and would not brook any interference. 22 The Whig state convention adopted a resolution favoring the retention of the mineral lands by the government, "for the benefit of the miners, to be worked by them, free from any tax or toll whatever." 23 In their messages to the legislature Governors McDougal and Bigler deprecated the policy of leasing or selling the mineral lands. 24
While the majority of the people of California opposed the leasing or selling the gold fields, there was, however, no unanimity of opinion on any other policy. A convention of miners and settlers was held in Sacramento, but the opinions voiced there were too dissimilar to lead to a well digested plan for the regulation of the mineral lands. Some held that the rules and regulations adopted by the miners were working satisfactorily; others, however, held that some definite legislation was needed to unify the mining regulations. But the question was who should legislate, Congress or the state legislature. It was contended that for the want of necessary experience Congress could not legislate properly for the mineral lands, hence it should relinquish them to the state. 25
The determined opposition of California to their former plan convinced President Fillmore and Secretary Stuart that the mineral land question "is a subject surrounded by great difficulties." They now recommended to Congress to leave the gold fields open to the industry of all American citizens "until further experience shall have developed the best policy to be ultimately adopted in regard to them." "It is safer to suffer the inconvenience that now exists, for a short period," said the President, "than by premature legislation to fasten on the country a system founded in error, which may place the whole subject beyond the future control of Congress." 26 The policy of laissez faire recommended by President Fillmore was favored in California, especially among the miners. 27
The policy of "non-interference" was practically followed until the passage of the acts of July, 1866, and July, 1870. During this period, however, the mineral land question continued to be a vital issue in state politics. In the first place, there was the feeling of uncertainty and fear that speculators might influence Congress to take up again the proposition to sell the mineral lands. Hence it was deemed necessary at the party convention, and in annual messages of the governors to reiterate that public opinion in California was opposed to leasing or selling the mineral lands. 28
Foreign Miners' Tax. Then there was the vexatious question of the foreign miners. The American miners who considered the gold fields as the heritage of the American people, looked with jealousy on the continual influx of Asiatics and Latin Americans into the mines. To check the influx of undesirable foreign miners, and to insure a large revenue to the state, the first legislature passed an act prohibiting non-American citizens from digging gold in California without a foreign miners' license. The license fee was twenty dollars a month. 29
The foreign miners protested and evaded the law. The American miners and their sympathizers criticized the evading foreign miners as ungrateful people, intruders upon American soil. But the merchants, whose interests suffered by the exodus of a large number of customers, denounced the act as impolitic, unjust, and illegal. The Picayune questioned the right of the state to legislate and control property belonging to the United States. It pointed out that the foreign miners' act was in violation of commercial treaties between the United States and Mexico, where it was provided that the citizens of both countries should not be subjected to any other charges, or contributions of taxes than such as are paid by the citizens of the states in which they reside. The act, therefore, violated Article 6 of the United States Consititution, which declares that the treaties made by the United States "shall be the Supreme Law of the Land." 30
In the case of the People v. Naglee, 31 the California Supreme Court upheld the constitutionality of the law. It held that the state had the power to require the payment by foreigners of a license fee for the privilege of mining within the state; and that the act was not repugnant to the Constitution of the United States, for the power of taxation is one of those powers retained by the state and it cannot be taken away from it by a treaty between the United States and a foreign government.
The opposition to the foreign miners' tax, and the difficulties encountered in collecting the license fee, led to the repeal of the act in 1851. 32 But the American miners held public meetings protesting against allowing Asiatics and Latin Americans to dig freely in the mines. They petitioned the legislature to enact a law prohibiting the importation of Asiatics, and to prevent those in California from entering the gold fields. The miners threatened to take the law into their own hands. 33
In 1852 the legislature passed a new foreign miners' bill. 34 Because the license fee was only three dollars a month, there was less opposition to the new act. Many protest meetings, however, were held denying the right of the state legislature to pass such laws. Where and when did the Federal government authorize California to legislate for the mines? asked the Alta. 35The French miners felt themselves slighted when they saw how exacting the collectors were with the Latin nations; while the English, Irish, and Germans were seldom required to pay the tax. They protested against the foreign miners' tax and appealed to the French government for protection. The San Francisco Echo du Pacifique asserted that the tax on French miners was illegal, because the state had no right to levy a tax on mineral lands which were government property; and also because the act violated a consular convention signed in 1853 by representatives of the American and French governments wherein it was provided that the French people in the United States should not be compelled to pay taxes, except those which were equally imposed on all citizens. The Echo advised the French miners to take the case to the Supreme Court of the United States. 36
Mines and State Taxes. There were also the questions of quartz mining, state taxes, and the settlement of the state. The southern agricultural counties complained that their ranches were taxed to their full market value; while the mining claims, yielding thousands of dollars to their owners, were not paying any taxes. They pointed out that the six southern counties, with a population of 6,367 souls, paid more taxes than the twelve mining counties with a population of 11,917 souls. Yet the mining counties had fortyfour representatives in the legislature, while the six southern counties had only twelve representatives. To escape the heavy taxation the southern counties advocated a revision of the constitution in matters of taxation, or the division of the state. 37 Others complained that the growing quartz mine industry, which required the investment of considerable amounts of capital, was being retarded for the want of titles in fee. 38
But the great stumbling block in the way of equalization of taxes and the investment of capital in quartz mining was the ownership of the mineral lands by the Federal government. Various plans were proposed. The committee on mines and mining interests in the assembly advocated to continue the policy of non-interference in the placer mines, until the time when capital would have to be applied. But it favored granting to the owners of quartz mines a title for a certain period during which time the grantee could "transfer or work her claim at pleasure." Meanwhile the state should be authorized to levy and collect taxes on the assessed value of the property of the quartz miners. It was also proposed to induce the Federal government to grant the mines to the state. 39
A committee composed of one member from each of the mining counties within the state was appointed in the assembly to report as to the expediency of calling a miners' state convention to consider a policy with reference to the mines. The majority report of the committee, presented March 19, 1853, was opposed to a miners' state convention, fearing that it might result in a recommendation to Congress "for the adoption of some system of which miners would be required to procure a fee simple title to their claims, that they may be subject to additional taxation." The miners contended that the mining occupation was full of hardships, and it would be difficult to assess mining claims fairly; that a fee simple title would not keep the miner a single day longer when he found it impracticable to work his claim. 40 The miner of California, said the Sacramento Union, should be as free as the air, and any project of legislating for the mineral lands by the state or Federal government would be impracticable and impossible to enforce the law. A fee simple title, said the State Journal, would produce confusion and hardship. The policy of the state and nation should be "hands off," said the Placerville Herald. 41 Thus an attempt of the agricultural and commercial interests to devise a policy for the taxation of the mines was frustrated by the miners.
State Ownership of the Minerals. There had always prevailed an opinion in California that by right the gold fields belonged to the state and not to the Federal government. This doctrine gained considerable popularity when the State Supreme Court held in the case of Hicks v. Bell that, "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 hands of private citizens." This principle was reiterated two years later in the case of Stoakes v. Barrett. 42 The Placer Times and Transcript congratulated the people of California upon the "acquisition of so splendid a heritage." Why should we entrust these matters, it said, to those who are removed from us thousands of miles, and who do not possess the necessary knowledge nor sympathy to manage the mines efficiently. 43
In the Senate, Dosh introduced a bill which assumed for the state, by virtue of its sovereignty, the ownership of all the mines. In his minority report on the bill, Dosh contended that under the Spanish and Mexican law, the minerals in all lands, public and private, were reserved to the sovereignty. The right to the mines in these lands became vested in the "sovereignty which superseded that of Mexico," that is the State of California. This conclusion was based upon the following argument: For many years previous to the conquest by the United States, the department of California had a "regularly organized government"; this system of laws, with some modifications, continued in force until the time when the state government was put into full operation. "The first recognition of California by Congress was as an independent sovereignty," a state; and by reason of that independent sovereignty, the right of eminent domain "which had been transferred to the government of the United States by the treaty of Guadalupe Hidalgo, by the act admitting California into the Union, passed to the sovereignty of this state." 44
The majority of the committee reported adversely to the passage of the bill, maintaining that the mineral lands belonged to the Federal government. The placer miners feared that the doctrine of state ownership of the mines was fraught with great danger to the mining interest, "that it would not be a great while until those lands would be wrested from the miners and placed in the hands of monopolists." All they asked was "to be let alone." They claimed that the Federal government, who was the rightful owner of the mines, had "solemnly declared" that these lands should not be surveyed and sold, but should be open to the free use and enjoyment of all American citizens, under the mining laws adopted by the miners themselves. 44
Miners' Rules and Regulations. These miners' rules and regulations, 46 which seemed to suit the interest of the miners so well, were the outgrowth of necessity and experience, built upon the foundation of the European and Mexican mining laws, and adjusted to the needs of the new environment. By 1860 there grew up a miners' code based on equitable principles, democratic in character. The main object of these rules and regulations was to fix the size, manner of recording, working, and holding the claims. The size varied according to the richness of the placers, ranging from ten to one hundred and fifty feet square. In general a reasonable amount of work had to be done in order to establish and hold a claim to a placer mine. The purpose of limiting the size of the claims, and defining the condition of holding them, was to guard the mines from being monopolized. Here we notice the common aversion of the frontier democracy to monopoly. The promulgation of the rules and the settlement of disputes were also handled in a typical frontier democratic fashion. The rules were generally framed and amended at a public mass meeting, conducted in an informal manner. The disputes were settled by an arbitrary board of miners, selected by the disputants from the neighboring mining camps, or by a miners' jury previously appointed at a miners' meeting.
The state legislature, after some consideration, declared by statute 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 claim; 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. 47 Thus the legislature declared the miners' law to be binding in matters relating to mining claims. The "let alone" policy of the Federal government was interpreted by the miners as a tacit approval by the Federal government of their mining code.
Awakening of the Mining Question in Washington. Ever since Fillmore's recommendation of 1851, the mining question slept in Congress. In his annual report of 1858 Secretary of the Interior Thompson revived it, pointing out the need of adopting some definite policy with regard to the mineral lands. 48 California immediately protested against "Congressional tinkering" with the mines. Congressman Scott asserted that the government had no right to dispose of the California gold fields, and that it could never enforce such a policy, for California would "resist to the last any such encroachment on the part of the Federal government."
The Alta and the Bulletin warned the government not to attempt to prescribe mining regulations, or expect to realize any revenue from the mines. "A revolution and nothing short of it," they threatened, "would in all probability be the result of any improper interference on the part of the general government, with the rights of that large and deserving class of our population." And if persisted in "would result in the loss of California to the Federal Union.'' 49
The California Senators now introduced a bill to legalize the existing state of affairs which the government had tacitly sanctioned, and thus remove the technical charge that the miners were trespassers on the public lands. The bill brought forth a long discussion. Senator Latham reminded the Senate that the California Supreme Court had decided that the right to the mines existed in the state. But the opposition contended that such a law would be equivalent to a virtual cession of the mineral lands to the State of California, or to private individuals, without any remuneration to the Federal government. The bill was rejected. 50
Effect of the Civil War on the Mining Question. At the outbreak of the Civil War the mining question was again revived. The costliness of the war and the depleted condition of the national treasury convinced the Federal authorities that it would be no more than just to make the valuable gold and silver mines contribute some revenue to the government. Secretary of the Interior, Caleb B. Smith, and Commissioner of the General Land Office, Edmunds, called the attention of Congress to the advisability of taxing the mines. "When multiplied demands upon the treasury weigh upon it with unprecedented pressure," argued Commissioner Edmunds, "it could not be deemed unreasonable, after the hundreds of millions of dollars allowed to be taken free of cost, if the government should hereafter subject the product of such mines to a moderate seigniorage." 51
California immediately protested against the taxing plan, maintaining that it would be a "tax on labor and enterprise"; a policy that would be inexpedient from an economic as well as from a political point of view, for it would discourage the production of the precious metals—the sinews of war. The legislature adopted a resolution opposing the passage of any law taxing the gold and silver mines. In his annual message of January, 1863, Governor Stanford criticized the plan to tax the mines. He believed that it would be better to dispose of the land in small tracts, thus enabling the state to tax the mines. 52
But Commissioner Edmunds and Secretary of the Interior Usher urged the abandonment of the policy of "non-interference." Commissioner Edmunds pointed out that the auriferous regions in British Columbia had been made by proper control and management a source of revenue to the British government; while the mines of the precious metals in the United States had been left open to the people of all nations, without the payment of any tax whatever. Thus during the sixteen years of free mining, $100,000,000 had been extracted from the mines, "without a dollar's revenue to the national exchequer." At a time when the "nation is weighed down with financial obligations," he argued, the mining industry should contribute its share to sustain the government. His plan was to require the placer miner to secure a license to his mine by the payment of a small sum. When found profitable, the claimant could continue to work it by the payment of a reasonable amount per foot, with a certain percentage upon the produce secured. 53
At the next year Secretary of the Interior Harland and Secretary of the Treasury McCulloch urged again the discontinuance of the policy of "non-interference." Secretary McCulloch denounced any system of leasing the mines as impracticable, un-American, and unconstitutional. His advice was to sell the mineral lands and "substitute an absolute title in fee for the indefinite possessory rights or claims now asserted by the miners." Such a system, he held, would give a character of permanency to the mining districts. 54 Commissioner Edmunds, however, maintained that it would be inexpedient to sell the mineral lands. He pointed out that without expensive investigation the government could not fix the minimum price which should bear an equitable ratio between the various locations. And if the explorations should be left to individuals, then the lucky miner who should discover a rich deposit would keep the fact secret until he became the possessor of it. In view of the many difficulties, and the system of mining rights which had grown up in the mining regions, Commissioner Edmunds believed that no wise policy could be devised until the whole question had been more carefully investigated by the government. 55
There was, however, a prevailing belief in Washington that the time had come to abandon the policy of non-interference. On July 9, 1865, Julian, Chairman of the House Committee on Public Lands, reported a bill providing for the sale of the gold and silver mines in small tracts, at the minimum price adjusted according to the size and value of the deposit. It limited the quantity which one individual could buy to forty acres, and it prohibited combinations among the different bidders. In an elaborate speech Julian denounced the non-interference policy as "financial profligacy," "legislative madness." "How long," he exclaimed, "will the people thus sport with their resources and bear with the public servants who are thus recreant to the public good?" Moreover, the sale of these lands, he argued, would benefit also the mining districts, for under the system of tenancy at will permanent settlements were impossible, and the population was nomadic, dispensing with home life and public life. "It is a conspiracy against the establishment and sacredness of the American home!" he exclaimed. The bill was recommitted. 56 To gain more information on the subject, several members of Congress visited the mineral regions of the Pacific coast.
Attitude of California. Public opinion in California was divided on the mineral land question. The quartz miners, the agricultural and commercial interests, generally favored a policy which should confer titles in fee to the miners. Such a policy, it was argued, would induce people to settle down and make improvements on their claims, and would result in the equalization of taxation. But the placer miners were opposed to any change, fearing that any system devised by Congress would be inimical to the interests of the miners. "The mining interest of the Pacific States and Territories is destined to receive too much affectionate attention at Washington this winter," said the Sacramento Union. The Union argued that the nomadic character of the mining population was due not to the want of titles in fee simple, but to the very nature of the miners' trade, and no government title could keep the miners after the deposit had become unprofitable. 58 In an elaborate memorial drawn up at the miners' state convention of January, 1866, and forwarded to Washington, it was pointed out how the policy of selling the mineral lands would revolutionize the whole system of mining under which the mines had been developed to the benefit of the state and the nation. But in view of the existing situation, argued the memorialists, the next wisest policy would be to extend the pre-emption system over the mineral lands; to donate to their possessors the claims which they held under the miners' regulations. 59
Passage of the Act of 1866. The settlement of the mineral land question came in the first session of the thirty-ninth Congress. On May 28, 1866, Conness of California, Chairman of the Senate Committee on Mines and Mining, reported a bill favorable to the mining interests of the Pacific coast. After a long discussion the bill passed the Senate. When it came to the House, Julian succeeded in having it referred to his Committee on Public Lands. This meant the defeat of the bill, for Julian insisted on the measure which he had introduced and reported. Finding their plan thwarted in the House, Senators Conness and Stewart called up a House bill entitled an "Act granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for Other Purposes," and skillfully managed to carry a motion to strike out the whole of the House bill except the enacting clause and insert the mining bill which had been passed in the Senate. In spite of Julian's opposition, the friends of the measure managed to push it through the House, and it became a law. 60
This great act of July 26, 1866, legalized the miners' rules and regulations, which were not in conflict with the laws of the United States, and made it possible to acquire a title in fee simple to the precious-metal bearing lands. The first section reads:
The mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States.
It also provided to allow miners who had or who would hereafter occupy and improve a mine, according to the local regulations, to receive a patent at the cost of five dollars per acre. As a preventive against monopolies it was provided that "no location hereafter made shall exceed two hundred feet in length along the vein for each locator, with an additional claim for discovery to the discoverer of the lode," and no person was to make more than one location on the same lode. The maximum for an association of persons was three thousand feet. 61
The new policy was generally well received in California.
The passage of the bill [said the San Francisco Bulletin] whatever defects it may develop when more critically developed and enforced, marks a change in the public land policy equal in importance to the adoption of the pre-emption and homestead system. . . . Eastern and European capital will flow to California and Nevada in large sums under the new system. . . . The new law will furthermore secure equality of taxation. . . . California may well rejoice at its passage. 62
The Placer Herald, a mining paper, hailed the new policy as the dawn of a new era for California. "It is the fairest and most practicable proposition that has yet been considered in Congress," said the Sacramento Union. "It is a great stride toward the final adjustment of a dangerous question, and a vast improvement upon the measures broached at Washington at various periods during the past three years." According to the Bulletin not a single newspaper was opposed to the act. 63 In his message of 1866 Governor Low said: "The apprehension of miners in regard to unwise and unfriendly legislation by Congress touching the mineral lands has been allayed by the passage of just and generous laws which guarantee the actual possession to those on whom the prosperity of the state so largely depends." 64
The Act of July 26, 1866, pertained only to vein mines. No provision was made to acquire title to placer mines. The committee in Congress believed that since the placers were becoming exhausted, there was no need to legislate for them. The Act of July 9, 1870, provided also for the placer mines, ordering the sale of these mines at $2.50 an acre. It limited the extent of one location by an individual or an association to one hundred and sixty acres. In other respects the placer locations were to conform to local rules and regulations. The Act of May 10, 1872, 65 "to promote the development of the mining resources of the United States," in general reaffirmed the policy outlined in the former two acts, especially with regard to exploration and purchase of the mineral lands.
Summary. The question of the control and disposition of the mineral lands was an agitating subject in the state, and to some extent in Washington, for about eighteen years. During this period the general government made several attempts to legislate for the mines, but it lacked the necessary information and courage to work out a definite policy. As a result the administration floundered from one plan to another: at one time it suggested the system of leasing; at another time, it suggested selling the lands in small parcels; and when California protested against either system, it recommended not to interfere at all with the mines. It was, of course, much easier to follow the policy of "masterly inactivity" than to brave the opposition of California. And thus in. spite of some protest against the failure of the government to assert its rights to the mines, the government treasury did not derive any revenue of the hundreds of millions of dollars worth of gold extracted during this period from the Pacific coast mines by people from all parts of the globe. 66 It was due to the exhaustion of the placer mines, and the heavy cost of the Civil War, that the government finally adopted a policy to derive some revenue from the mines.
The passage of the several mining acts marked the end of the policy of reserving the gold and silver mines to the government. Thus came to a close another chapter in the history of the relations of California with the national government. The controversy about the control and disposition of the gold and silver mines on the Pacific coast demonstrates the influence and effect of public opinion in a state or particular section of the country upon the policies of the Federal government.
3. United States Statutes at Large, IX, 37, 146-147, 179.
4. Marshall's discovery of gold in Sacramento valley was on January 24, 1848. But long before 1848 gold had been found in California near the Colorado River, near present San Diego County, around Los Angeles, and Monterey. The mineralogist, James D. Dana, of the Wilkes expedition in 1841, mentioned in his book on mineralogy that gold had been found in Sacramento valley. In his letter to Secretary Buchanan, Thomas O. Larkin wrote on May 4, 1846, that there was no doubt that gold, silver, and other minerals would be found in California. Report of Browne upon the Mineral Resources of the States and Territories West of the Rocky Mountains, November 24, 1866, in H. Ex. Doc. 29, 39 Cong., 2 Sess., 13-14 (1289).
5. H. Ex. Doc., 17, 31 Cong., 1 Sess., 532-533 (573).
6. H. Ex. Doc., 59, 31 Cong., 1 Sess., (577).
7. Richardson, Messages, IV, 643.
8. Cong. Globe, 30 Cong., 2 Sess., 257-259. Benton held that the gold mines were a curse and not a blessing to a nation, for they demoralize a people.
9. Richardson, Messages, V, 20; Cong. Globe, 31 Cong., 1 Sess., App. 22-23.
10. H. Ex. Doc., 17, 31 Cong., 1 Sess., 704, 707, 708, 710 (573).
11. Ibid., 788-789 (573); Sacramento Placer Times, July 9, 1849.
12. Browne, Debates, 430-431, 461, 462, 463-464.
13. Cal. Legislature Jours., 1850, 802-816.
14. For the bill and debates see Cong. Globe, 31 Cong., 1 Sess., 1815, 1869, 2018, 2029-2030, App., II, 1362 et seq.
15. The "address" was printed in the San Francisco Alta, December 24, 1850, and the San Francisco Pacific News, December 24, 1850. Hereafter "San Francisco" will be omitted from the San Francisco newspapers.
16. Picayune, November 14, 1850; Pacific News, December 6, 1850.
17. Courier, November 12, 1850; January 31, 1851.
18. Sacramento Transcript, December 6, 1850.
19. Herald, January 30, 1851.
20. H. Ex. Doc., 31 Cong., 2 Sess., 11, 27-28 (595).
21. Alta, March 1, 1851; Pacific News, January 28, February 21, February 28, 1851; Picayune, September 18, 1851; Sacramento Transcript, January 31, 1851; Herald, January 5, 25, 30, 1851.
22. Cal. Legislature Jours., 1851, 1021. The resolution and long preamble were printed in the Pacific News, January 29, 1851.
23. Davis, Political Conventions in California, 13.
24. Cal. Sen. Jour., 1852, 17, 78-79.
25. Alta, March 1, August 5, 13, 1851; Herald, June 6, 1851; Picayune, September 18, October 11, 1851; Pacific News, March 6, 1851; Sacramento Union, January 26, 1852.
26. Richardson, Messages, V, 127; H. Ex. Doc., 2, 32 Cong., 1 Sess., 501 (635).
27. Cal. Assembly Jour., 1853, App. Doc. 35, pp. 4.
28. Cal. Sen. Jour., 1853, 23; 1854, 23; 1855, 41-42; Davis, Political Conventions in California, 13, 20, 36.
29. Cal. Legislature Jours., 1850, 217, 493-497; Cal. Statutes, 1850, 221-223.
30. Pacific News, October 10, 1850; Picayune, August 14, 1850. Inflammatory bills Were posted on the trees in the mines. One of them read: Note to foreigners: "It is time to unite, Frenchmen, Chileans, Peruvians, Mexicans, there is the highest necessity for putting an end to the vexations caused by the Americans in California. . . ." (Cal. Legislature Jours., 1851, 660; Pacific News, May 28, 1850.)
31. People v. Naglee, 1 Cal., 232-255.
32. Cal. Statutes, 1851, 424. Instead of a monthly revenue of several hundred thousand dollars, as it had been estimated by the legislature of 1850, the total amount received from this source up to December 15, was only $29,731.16.
33. Meetings were held at Auburn, Horse Shoe Bar, Michigan Flat, and various other places. (Alta, July 1, 16, 1852; Sacramento Placer Times and Transcript, May 9, 1852.)
34. Cal. Statutes, 1852, 84-87. The fee was raised to four dollars a month at the next session, and the act was further amended in 1855. (Ibid., 1853, 62-65; 1855, 216-217.) The receipts for 1854 were $100,557.92, and for 1855, $123,323.28. (Fankhauser, Financial History of California, 160.)
35. Alta, May 12, 1852; June 24, 1853; Cal. Assembly Jour., 1853, App. Doc. 28, pp. 1-21; Cal. Sen. Jour., 1855, App. Doc. 19, pp. 1-13.
36. Bulletin, June 23, 1860. The reason for the partiality was partly due to the clannishness of the French and their lesser readiness to become citizens. See Malloy, Treaties, Conventions, International Acts . . .I, 531.
37. Cal. Assembly Jour., 1852, 12-13. Governor McDougal pointed out in his annual message that the six southern counties with a population of 6367 souls had paid into the state treasury for the fiscal year ending July 1, 1851, the sum of $41,705.26; while the twelve mining counties, with a population of 119,917 souls, had paid during the same period only $21,253.66. The amount of capitation taxes assessed in the twelve mining counties was $51,495.00, and the amount returned as delinquent $47,915.00; while the amount assessed in the agricultural counties was $7,205.00 and the amount returned as delinquent $3,291.50.
38. Alta, January 28, December 8, 1852.
39. Cal. Assembly Jour., 1852, 829-835. Also see report of the Senate special committee. (Cal. Sen. Jour., 1852, 584-588.)
40. Cal. Assembly Jour., 1853, App. Doc. 35.
41. For a discussion of the mineral question during this period see Alta, March 16, May 20, 1853; Sacramento State Journal, February 17, 1853; Sacramento Union, January 28, 1856, December 12, 1857, January 22, 1858, February 12, 18, 22, 25, 1859. In the opinion of the Alta the state's taxable property would be increased by $200,000.00 if the mines were granted to the miners.
42. Hicks v. Bell, 3 Cal., 227; Stoakes v. Barrett, 5 Cal., 39. But in Moore v. Smaw, and Fremont v. Flower (17 Cal., 223), the supreme court of California refused to sustain the doctrine advanced in the above cases
43. Placer Times and Transcript, August 14, 1853. The Alta of August 12, 1853, and the Sacramento Union of August 17, 1853, expressed themselves against the doctrine of state ownership of the mines.
44. Cal. Sen. Jour., 1857, 275-281. The same opinion was expressed by J. W. Denver of California in his speech in Congress on the California land claims. (Cong. Globe, 34 Cong., 1 Sess., 1842.) There was also considerable controversy between the state and federal authorities with regard to the question whether or not the mineral lands were included in the township grant of 1853. The federal authorities contended that the grant contemplated only such townships that could be legally surveyed and divided into sections. But since the mineral lands were excluded from survey by an act of Congress, there could be no such selections upon them. The California authorities, on the other hand, maintained that the Act of 1853 contained no reservation with regard to the mineral lands, and the mining districts were in need of educational facilities just as well as other districts. See Cal. Sen. and Assembly Jours., 1863, 38-44.
45. Cal. Sen. Jour., 1857, 274-275.
46. Good accounts of the miners' rules and regulations are given in Yale, Legal Titles to Mining Claims and Water Rights, Chaps. VII, VIII; Shinn, Mining Camps, Chaps. II, X, XIII, XXI, XXIII. See also Browne's Report in H. Ex. Doc., 29, 39 Cong., 2 Sess., 226-264 (1289).
47. Cal. Statutes, 1851, 149.
48. H. En. Doc., 2 , 35 Cong., 2 Sess., 77 (997).
49. Cong. Globe, 35 Cong., 2 Sess., 1.487; Alta, January 14, 1859; Bulletin, November 24, 26, 1858.
50. For the bill and debate see Cong. Globe, 36 Cong., 1 Sess., 1754, 1771, 1777, 1795.
51. H. Ex. Doc., 1, 37 Cong., 2 Sess., 445, 489 [1126 1/2].
52. Cal. Sen. Jour., 1863, 41-42; Cal. Statutes, 1862, 601.
53. H. Ex. Doc., 1, 38 Cong., 2 Sess., 5-6, 39-42 (1220).
54. H. Ex. Doc., 1, 39 Cong., 1 Sess., pp. III-IV (1248); H. Ex. Doc., 1, 39 Cong., 1 Sess., 31-32 (1254).
55. H. Ex. Doc., 1, 39 Cong., 1 Sess., 38-43 (1248).
56. See Cong. Globe, 38 Cong., 2 Sess., 7, 684-7.
57. Cal. Assembly Jour., 1865-1866, 58.
58. Sacramento Union, January 6, 1866. Resolutions against selling or taxing the mineral lands were adopted at the state Democratic Convention (Davis, Political Conventions in California, 209, 224, 229). But also see Bulletin, January 19, June 29, July 6, 31, 1866.
59. The memorial was published in the Sacramento Union, January 31, 1866.
60. For the several bills and debates see H. Rep., 66, 39 Cong., 1 Sess (1272); Cong. Globe, 39 Cong., 1 Sess., 1844, 2965; H. Rep., 105, 39 Cong., 1 Sess. (1240); Cong. Globe, 39 Cong., 1 Sess., 3225-3237, 3451-3454, 3951-3952, 4054. A full account of the history of the passage of the bill was given by a correspondent in Washington, published in the Alta on May 17, 1867. A different view of the same subject is given by Julian in his Political Recollections, 286-292. "The clumsy and next to incomprehensible bill," he says, "thus became a law, and by legislative methods as indefensible as the measure itself."
61. United States Statutes at Large, XVI, 251-252.
62. Bulletin, July 31, 1866.
63. Sacramento Union, June 23, 1866; Bulletin, August 8, 1866.
64. Cal. Sen. Jour., 1867-1868, 53.
65. United States Statutes at Large, XVI, 217-218; XVII, 91-96.
66. In his report of 1866, Browne estimated the total production of gold in California up to 1865 at about $900,000,000. The gold exportation from San Francisco during these years was as follows:1849, $4,921,250;1850, $27,676,346; 1851,$42,582,695;1852,$46,588,434;1853, $57,330,034;1854, $51,328,653; 1855,$45,182,631;1856,$48,880,543;1857, $48,976,697;1858, $47,548,025; 1859,$47,649,462;1860,$42,203,345;1861, $40,639,080;1862, $42,561,761; 1863,$46,071,920;1864, $55,707,201;1865, $44,984,546. Total, $740,832,623. To this he added $200,000,000, the amount carried away during this sixteen years unmanifested. Report Upon the Resources of the States and Territories West of the Rocky Mountains, H. Ex. Doc., 29, 39 Cong., 2 Sess., 50 (1289).
How to cite:
Ellison, Joseph, "THE MINERAL LAND QUESTION IN CALIFORNIA, 1848-1866 ", Volume 030, Number 1, Southwestern Historical Quarterly Online, Page 34 - 55. http://www.tsha.utexas.edu/publications/journals/shq/online/v030/n1/article_6.html
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