These meetings enacted laws for the punish ment of offenders, including all grades of offenses. From lack of jails and places of con finement for persons convicted of violating the laws, capital punishment was inflicted on the more serious offenders, and those convicted of lower grades of crimes were flogged or banished, Here also were formulated and adopted rules and regulations for the govern ment of mining claims. These rules stated the miners' rights, prescribed the size of mining claims, the method of locating, holding and working them, and declared the rules as to abandonment and forfeiture, and even the method of using water. They usually stated the conditions that would excuse the working of a claim and permit the claimant to retain title. In some instances, the rules and regula tions prescribed the qualifications of locators of claims. Recorders were selected, and their duties were usually defined, including the re cording of claims in a suitable book to be kept for that purpose, the book to be open for the inspection of interested persons. A miners' rule or regulation did not acquire validity by the mere enactment, but its legal force arose from the customary obedience thereto after its adoption, and unlike a statute it lost its force and validity from general disuse. On this theory a rule or regulation duly enacted by a regular meeting might on abandonment be sup planted by an unwritten custom that prevailed generally, however different or even contrary to the original written rule.
The origin of these miners' rules and regu lations is not well authenticated. It cannot be attributed solely to the American genius for formulating laws, but rather to the American genius for adopting practical ideas and em bodying them in workable codes. The gold hunters incorporated into these local codes the valuable features of the mining laws of foreign countries. Their information came from miners working with them from Cornwall, Derby and Devonshire; from Mexico, Chile and Conti nental Europe. These brought with them the mining laws of their several countries and into the local codes were incorporated the best fea tures of the Chilean, the Mexican and the Spanish mining laws and the rules and terms that were born in the stannary parliament of Cornwall, Derby and Devonshire. These facts, even in the absence of other authority, are sufficiently attested by the mining terms that were incorporated into the earliest of these regulations and that still in form and substance are found in the present mining codes, and in the prevailing mining vernacular.
These rules and regulations were the govern ing codes of the early prospector and miner. They were of such importance as to be recog nized in all Congressional enactments, and are by statutes in the mining States made admissible in evidence in actions relating to mining claims. Federal and State laws governing the location of mining claims have supplanted these local laws, but their influence is stamped upon these statutes, and is reflected in the jurisprudence of Federal and State courts.* Federal Mining Five days after the admission of California as a State, 14 Sept. 1850, Senator Fremont introduced a bill eto make temporary provisions for the working and discovering of gold mines and placers in California and providing order in the gold mining districts." The discussion of the Fremont bill showed on the part of some senators a desire for the government to retain the ownership of all minerals in the public lands and to create a revenue from the mining opera tions. A majority of the senators, as evidenced by the vote, were against the revenue idea and in favor of making the mineral lands open to free acquisition and the minerals subject to private ownership without fee, license or royalty. Senator Fremont's bill passed the Senate, but reached the House too late in the session for action.
The miners of California and the people of the country generally accepted the provisions of this bill and the sentiments expressed by the majority vote of the Senate as at least reflect ing the attitude of the United States govern ment toward its mineral lands. They assumed that the miners who had been taking the min erals were not to be regarded as trespassers but that these minerals were, and would con tinue to be, open for free exploration, and the fruit of the miners' work was to be without rent or royalty. From 1848, to 1866, the
miner dug over the valleys, tunneled into the mountains and took from the earth a billion dollars worth of the precious metals without a single expression of assent or dissent from the owner of both land and minerals. In this period of time these gold hunters accumulated, erected, owned and were operating on the pub lic lands millions of dollars' worth of mining property and were increasing and continuing their industry on the assumption that no barrier would be interposed to their operations.
Congress, on 27 Feb. 1865, passed an act pro viding that possessory actions between persons for the recovery of mining claims or for dam ages thereto should not in any wise be affected by the fact that the paramount title to the land and the mineral was in the United States. Pro ceding the 39th Congress, December 1865, agita tion was general on the question of free mining and on the disposal of mineral lands as dis tinct from that of other public lands. Some public men and private citizens advocated a royalty on minerals as a source of substantial revenue to aid in the payment of the national debt which had reached an alarming sum. Another party insisted that no distinction should be made between the disposal of mineral lands and other public lands. A third party, which proved to be the majority, opposed any change of policy after such long delay and acquiescence on the part of the government. On 13 Dec. 1865, George W. Julian, chairman of the House Committee on Public Lands, introduced a bill providing for the subdivision and sale of gold and silver lands and for the coinage of these minerals as mined. The bill proposed a change in the policy respecting the disposal of mineral lands and was intended to increase the revenues. On 9 April 1866, Senator Sherman of Ohio in troduced a bill embodying the recommendations of the Secretary of the Treasury providing for the payment of royalties on the products of mines. This bill was amended by the Commit tee on Mines and Mining, representing the majority, and favored the free mining policy. The bill as passed by the Senate was entitled, aA bill to legalize the occupation of mineral lands and to extend the right of pre-emption thereto.* It was taken up in the House on 3 July 1866, and on motion was referred to the Committee on Public Lands, but no opportunity was ever given either the Committee or the House to consider the bill. Mr. Higby of California, on 8 March 1866, introduced in the House a bill entitled, °Granting the right of way to ditch and canal-owners in the State of California over the public lands.* This bill was passed 13 June 1866. This bill was taken up in the Senate and amended by substituting the bill formerly passed by the Senate and, as amended, was passed by that body 20 July 1866. The amended bill was taken up in the House 21 July 1866, when the Senate substitute was explained by Mr. Ashley of Nevada, and on his motion the previous question was ordered and the bill was ready to be Put upon its passage. Mr. Julian and his followers bit terly assailed the proceedings and viciously at tacked the bill. After much filibustering, Mr. Julian was given the privilege of explaining its provisions and he charged that it was an attempt to put the bill through under a rule with no opportunity for debate or ment and that interested persons were attempt ing to force through the House a measure arevolutionizing the whole land policy of the government, abdicating in the name of the nation its authority and jurisdiction over the richest mineral possession on the face of God's earth, found imbedded here and there over a million square miles of our national territory.* Thereupon the motion to pass the bill under the previous question was reconsidered and withdrawn and the entire matter was open for discussion and those opposing the bill were given a full hearing. A substitute embodying his views was offered by Mr. Julian and re ceived only 17 votes, and on 26 July 1866 the substituted Senate bill passed the House by a vote of 77 to 37.