CHAPTER III. SECOND PERIOD: FROM THE DISCOVERY OF GOLD IN CALIFORNIA UNTIL THE PASSAGE OF THE LODE LAW OF 1866. 240. Discovery of gold in Califor- 241. Origin of local customs. ? 44. Legislative and judicial rec- 45. Federal recognition. 46. Local rules as forming part of present system of mining law. 247. Federal legislation during the second period. 248. Executive recommendations to congress. 249. Coal land laws Mining claims in Nevada- Sutro tunnel act. § 40. Discovery of gold in California and the Mexican cession.- Commodore Sloat raised the American flag at Monterey, July 7, 1846. Marshall discovered gold at Coloma 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.' The discovery of gold and reports of its extensive distribution throughout the foothill regions of the Sierra The Gadsden purchase added to the public domain 45,535 square miles, and formed part of the present territories of Arizona and New Mexico. Nevadas brought to the shores of the Pacific a tide of immigration from all parts of the world. All nationalities, creeds and colors were soon represented and swarmed into the mineral regions of the golden state, which thenceforward became a beehive of gold-seekers, with their attendant camp-followers. § 41. Origin of local customs.- No system of laws had been devised to govern the newly acquired territory. By virtue of the treaty, the title to the lands containing the newly discovered wealth was vested in the federal govern ment. Until March 3, 1849, no attempt was made by congress to extend the operation of any of the federal laws over California, and on this date the revenue laws only were so extended.1 Until the admission of the state into the union, California was governed by the military authorities. Colonel Mason, on February 12, 1848, issued a proclamation as military governor, wherein he attempted to put an end to local uncertainty on this delicate subject of international law, by decreeing that "From and after this date the Mexican "laws and customs now prevailing in California relative to "the denouncement of mines are hereby abolished."" Whether the power to abolish laws if they had a potential existence was confided to a military commandant or not, the force of the proclamation was recognized for the time, and the mining population found itself under the necessity of formulating rules for the government of the several mining communities, and establishing such regulations controlling the occupation and enjoyment of mining privileges as the exigencies of the case demanded and as the disorganized condition of society required. Of course, these pioneer miners were all trespassers. They had no warrant or license from the paramount proprietor. Colonel Mason, who, in connection with Lieutenant W. T. Sherman, 19 U. S. Stats. at Large, p. 400; Yale on Mining Claims, p. 16. 2 Yale on Mining Claims, p. 17. visited the scenes of the earliest mining operations, thus pictures the situation: "The entire gold district, with very few exceptions of 'grants made some years ago by the Mexican authorities, "is on land belonging to the United States. It was a matter "of serious reflection with me how I could secure to the "government certain rents or fees for the privilege of pro"curing this gold; but upon considering the large extent "of country, the character of the people engaged, and the "small scattered force at my command, I resolved not to "interfere, but permit all to work freely."" Thus left to "work freely," some show of order was brought out of chaos by the voluntary adoption of local rules or general acquiescence in customs whose antiquity dated from the discovery of the "diggings." Thus originated a system which, in the course of time, extended throughout the mining regions of the west as new discoveries were made, and subsequently came to be recognized as having the force of established law. Naturally, these regulations varied in the different districts as local conditions varied. 42. Scope of local regulations. Some of the primi tive codes were quite comprehensive in their scope, and undertook to legislate generally on the subject of civil rights and remedies, crimes and punishments, as well as providing rules for the possession and enjoyment of mining claims. For example, those adopted at Jacksonville, California, provided for the election of an alcalde, who propounded the law in a court from whose judgment 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 "draught or burden," or to enter a tent or dwelling and steal therefrom gold-dust, money, provisions, goods, or other valuables, amounting in value to one hundred dollars or over, was considered a 1 Public Domain, p. 314. 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 having his head and eyebrows close-shaved, and by being driven out of camp. The willful 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. When we consider the conditions under which these rules were framed, we can readily appreciate their virtue. Generally speaking, however, the miner's code confined itself to regulating the mining industry. At first the miner's labor and research were confined to surface deposits, and to the banks, beds, and "bars" of the streams-that is, to the claims usually called "placers,"-quartz or lode mining not having been inaugurated until a later period. A detailed review of the rules and customs adopted and in force in the various districts would serve no useful purpose. A unique collection of them will be found in the interesting and valuable report made by Mr. J. Ross Browne while acting as commissioner of mining statistics.1 Mr. Yale, in his work on mining claims and water rights, also gives a full and accurate synopsis of the local mining codes. The main object of the regulations was to fix the boundaries of the district, the size of the claims, the manner in which the claims should be marked and recorded, the amount of work which should be done to hold the claim, and the circumstances under which the claim was considered abandoned and open to occupation by new claimants.3 Of these rules and customs, Mr. Yale thus sums up his views: 1 Mineral Resources, 1867, pp. 235-247. 2 Mining Claims and Water Rights, p. 73. 3 J. Ross Browne in Mineral Resources, 1867, p. 226. "Most of the rules and customs constituting the code. "are easily recognized by those familiar with the Mexican "ordinances, the continental mining codes, especially the Spanish, and with the regulations of the stannary convo"cations among the tin bounders of Devon and Cornwall, "in England, and the High Peak regulations for the lead "mines in the county of Derby. These regulations are "founded in nature, and are based upon equitable princi"ples, comprehensive and simple, have a common origin, are matured by practice, and provide for both surface and "subterranean work, in alluvion, or rock in situ. In the "earlier days of placer diggings in California, the large "influx of miners from the western coast of Mexico, and "from South America, necessarily dictated the system of "work to Americans, who were almost entirely inexperi"enced in this branch of industry. With few exceptions "from the gold mines of North Carolina and Georgia, and "from the lead mines of Illinois and Wisconsin, the old "Californians had little or no experience in mining. The "Cornish miners soon spread themselves through the state, "and added largely, by their experience, practical sense, "and industrious habits, in bringing the code into some"thing like system. The Spanish-American system which "had grown up under the practical working of the mining. "ordinances for New Spain, was the foundation of the rules "and customs adopted. They reflect the matured "wisdom of the practical miner of past ages, and have their foundation, as has been stated, in certain natural laws, easily applied to different situations, and were propagated "in the California mines by those who had a practical and "traditional knowledge of them in their varied form in "the countries of their origin, and were adopted, and no "doubt gradually improved and judiciously modified, by "the Americans." Halleck aptly states the main source and underlying theory of these local regulations: "The miners of California have generally adopted, as "being best suited to their peculiar wants, the main prin'ciples of the mining laws of Spain and Mexico, by which "the right of property in mines is made to depend upon discovery and development; that is, discovery is made the "source of title, and development, or working, the condition "of the continuance of that title. These two principles |