California Romantic and Resourceful | Page 6

this Union, with only such limitations as are expressed in the
section in which this power is given. The government, of which
Colonel Mason was the executive, had its origin in the lawful exercise
of a belligerent right over a conquered territory. It had been instituted
during the war by the command of the President of the United States. It
was the government when the territory was ceded as a conquest, and it
did not cease, as a matter of course, or as a necessary consequence of
the restoration of peace. The President might have dissolved it by
withdrawing the army and navy officers who administered it, but he did
not do so. Congress could have put an end to it, but that was not done.
The right inference from the inaction of both is, that it was meant to be
continued until it had been legislatively changed. No presumption of a
contrary intention can be made. Whatever may have been the causes of
delay, it must be presumed that the delay was consistent with the true
policy of the Government[5]."
This guess, being the last guess, must now be taken as authoritative.
The prospectors and miners were, then, in the start, simply trespassers
upon the public lands as against the Government of the United States,
with no laws to guide, restrain or protect them, and with nothing to fear
from the military authorities. They were equal to the occasion. The
instinct of organization was a part of their heredity. Professor Macy, in
a treatise issued by Johns Hopkins University, once wrote: "It has been
said that if three Americans meet to talk over an item of business, the
first thing they do is to organize."
"Finding themselves far from the legal traditions and restraints of the
settled East," said the report of the Public Land Commission of 1880,
"in a pathless wilderness, under the feverish excitement of an industry
as swift and full of chance as the throwing of dice, the adventurers of
1849 spontaneously instituted neighborhood or district codes of
regulation, which were simply meant to define and protect a brief

possessory ownership. The ravines and river bars which held the placer
gold were valueless for settlement or home-making, but were splendid
stakes to hold for a few short seasons and gamble with nature for
wealth or ruin.
"In the absence of State and Federal laws competent to meet the novel
industry, and with the inbred respect for equitable adjustments of rights
between man and man, the miners sought only to secure equitable
rights and protection from robbery by a simple agreement as to the
maximum size of a surface claim, trusting, with a well-founded
confidence, that no machinery was necessary to enforce their
regulations other than the swift, rough blows of public opinion. The
gold-seekers were not long in realizing that the source of the dust
which had worked its way into the sands and bars, and distributed its
precious particles over the bedrocks of rivers was derived from solid
quartz veins, which were thin sheets of mineral material inclosed in the
foundation rocks of the country. Still in advance of any enactments by
legislature or Congress, the common sense of the miners, which had
proved strong enough to govern with wisdom the ownership of placer
mines, rose to meet the question of lode claims and sheet-like veins of
quartz, and provided that a claim should consist of a certain horizontal
block of the vein, however it might run, but extending indefinitely
downward, with a strip of surface on, or embracing the vein's outcrop,
for the placing of necessary machinery and buildings. Under this theory,
the lode was the property, and the surface became a mere easement.
"This early California theory of a mining claim, consisting of a certain
number of running feet of vein, with a strip of land covering the surface
length of the claim, is, the obvious foundation for the Federal
legislation and present system of public disposition and private
ownership of the mineral lands west of the Missouri River. Contrasted
with this is the mode of disposition of mineral-bearing lands east of the
Missouri River, where the common law has been the rule, and where
the surface tract has always carried with it all minerals vertically below
it.
"The great coal, copper, lead and zinc wealth east of the Rocky
Mountains has all passed with the surface titles, and there can be little
doubt if California had been contiguous to the eastern metallic regions,
and its mineral development progressed naturally with the advantage of

homemaking settlements, the power of common-law precedent would
have governed its whole mining history. But California was one of
these extraordinary historic exceptions that defy precedent and create
original modes of life and law. And since the developers of the great